Guest Post

  • May 19, 2015
    Guest Post

    by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; Guttman is a member of the ACS Board of Directors.

    *This piece originally appeared on The Global Legal Post.

    When the United States Supreme Court issued its decisions in Bell Atlantic Corp v Twombly, 550 U.S. 544 (2007) and Ashcroft v Iqbal, 556 U.S. 662 (2009), there was sea change in the standard by which judges evaluated lawsuits to determine their sufficiency to withstand a motion to dismiss. Rather than merely placing a defendant on notice of a claim, the Court established a new standard. Plaintiffs must allege facts allowing a court to find that a claim is plausible. In reviewing the allegations of the complaint, courts are challenged to weed out conclusory statements and base their analysis on only the factual pleadings of the Complaint.

    Naturally, Iqbal and Twombly have raised serious access to justice issues for plaintiffs who must muster the facts without an opportunity to gather evidence through discovery. The “plausibility” standard is of course entirely subjective; what is plausible to one judge based on his or her life’s journeys may not be plausible to another. And with the challenge to plead facts, plaintiffs are undoubtedly encouraged to put the “kitchen sink” into their complaints and plead complaints that are exponentially larger than those of yesteryear.  

    With all of the problems caused by Iqbal and Twombly, there is a nugget of gold that can be snatched as a teaching lesson. The notion that litigants are instructed to make their cases based on facts and not conclusions or hyperbole, is a solid concept.  

  • May 14, 2015
    Guest Post

    by Nicole Fortier, counsel, Brennan Center for Justice

    It’s well known today that the United States is the biggest incarcerator in the world. With five percent of the world’s population, we house nearly a quarter of its prisoners. That’s over two million Americans behind bars. The number of people we imprison has increased over 400 percent since 1980. But in that time the federal prison population grew over 700 percent. Today, it has 208,609 inmates housed within its walls – more than any individual state.  The country now spends $80 billion per year on state and federal corrections.

    This dramatic growth was no accident. It was the direct result of laws passed in the 1980s and 1990s by policymakers hoping to combat rising crime rates. Their solution: over-criminalize and over-punish behavior – particularly at the national level. They expanded federal criminal laws, increased penalties, removed sentencing discretion from judges, and encouraged states to do the same.

    It’s clear that together, these laws cast too wide of a net. But it is important to dig further to understand whom they caught in that net. Exploring the demographics of those in federal prison can help us understand the real consequences of these policy decisions.

  • May 8, 2015
    Guest Post

    by John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, Inc., which filed a brief in support of marriage equality, together with the NAACP. Follow him on Twitter @jpscasteras.

    It was a familiar scene at the U.S. Supreme Court: states argued that allowing certain couples to marry would impose long-term harms upon children, families and social institutions. They contended that it is not the judiciary’s place to scrutinize restrictions upon the freedom to marry.  And they fell back upon the claim that the definition of marriage is a longstanding tradition.

    No, I’m not talking about last week’s argument on same-sex marriage; I’m referring to the 1967 case of Loving v. Virginia, which ultimately struck down bans on interracial marriage as unconstitutional. Switch a few names and adjectives and you could have approximated swathes of the oral argument from 48 years ago, listening to Virginia defend a central vestige of segregation.  Indeed, Virginia now acknowledges that it had supported interracial marriage bans and school segregation with “the same arguments offered by marriage equality opponents today” and powerfully concedes that it was on the “wrong side” of those issues.

    The resemblance should come as no surprise.  Civil rights groups like the NAACP Legal Defense Fund and NAACP have long advanced briefs and analyses about the logical and legal parallels between interracial marriage and same-sex marriage.  Recently, Bloomberg and the Wall Street Journal released new studies comparing our nation’s ability to progress on these two issues.  Courts around the country have recognized the enduring relevance of Loving’s holding that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness” and that “all the State’s citizens” possess a fundamental right to marry.

    Likewise, last week, the justices repeatedly focused on Loving, referencing it ten times in the transcript and another half-dozen times indirectly.  Justice Kagan explored how “Loving was exactly what this case is” and Justice Breyer explained that the states’ reliance upon tradition today is “the same way we talk[ed] about racial segregation.”  The Solicitor General put it eloquently: allowing states to discriminate against same-sex couples “will approximate the nation as a house divided that we had with de jure racial segregation,” and he did not “know why we would want to repeat that history.”

  • May 8, 2015
    Guest Post

    by Jennifer Daskal, Assistant Professor of Law, American University Washington College of Law. Follow her on Twitter @jendaskal. [Cross-posted at Just Security]

    Yesterday the Second Circuit declared the NSA’s bulk telephone metadata program unlawful.  Specifically, it ruled that it was unauthorized by section 215 of the USA PATRIOT Act (and thus did not reach the constitutional law questions).  At the same time, however, it declined to grant an injunction that would have halted the program and instead sent the case back to the district court to reconsider the issues. As the Second Circuit recognized, many of the issues many of which could may be mooted by congressional action (or inaction) between now and June 1, when this key statutory provision is set to expire.

    The program’s continuing operation, at least for the next few weeks, has prompted commentators such as Orin Kerr to describe the ruling as “merely symbolic.”  I disagree.  To be sure, the telephony metadata program has long been given outsized attention relative to its impact and importance. But the ruling has significant import nonetheless not just for what it means for the continued operation of the program, but for the range of interconnected areas that the opinion addresses.  Below are four key, and substantive, implications of the ruling.

    1.      Collection Matters

    The Second Circuit resoundingly rejected the government’s argument that there is no cognizable injury until data is actually analyzed and reviewed.  According to the government,  appellants had no standing because they could not establish that the metadata associated with their telephone calls (i.e. the numbers called, received, and duration of the call) had actually been analyzed, rather than merely collected; absent subsequent review, the suffered no injury in fact.  The government makes analogous arguments with respect to other forms of bulk collection: Don’t worry we have robust limitations as to who can access the data and why.

    The Second Circuit was not persuaded, and rightly so.  As the Second Circuit concluded, collection is properly analyzed as a government seizure. If the collection is unlawful, then “appellants have suffered a concrete and particularized injury,” even without a subsequent review by human actors.  In other words, collection matters, even if the subsequent use restrictions are robust and strictly followed. That’s because we have a separate privacy interest not just in how the government uses our data, but in the government’s collection of our data in the first place.

  • May 6, 2015
    Guest Post

    by Julie Nice, Herbst Foundation Professor of Law and Dean’s Circle Scholar, University of San Francisco School of Law

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Whatever Justice Kennedy decides on the question of whether states can ban same-sex marriage, the name Obergefell will mark this landmark moment in constitutional history.  That’s fitting because the remarkable story of undying love between James Obergefell and his late husband, John Arthur, is truly what the battle for marriage equality is about.              

    The Obergefell story is about two men determined to marry before one of them succumbed to the ruthless disease that was taking his life.  It’s a story about a medical plane transporting two men to a wedding on a tarmac in a state that would recognize their same-sex marriage.  It’s a story about the pain of the indignity suffered when their home state refused to recognize their love and their marriage on that ultimate of legal documents, the death certificate.  It’s a story about seeking “that same ennoblement” bestowed on heterosexual couples.

    It’s also a story all-too-familiar within my own family.  My sister Suzanne Nice and her partner, Maureen Martin, devoted themselves to the life they built together and sustained for over thirty years.  Through the beauty of their quiet harmony, they provided an inspiring model of loving commitment to all of us in their circle of family and friends.  Maureen died early in 2014, just months before Illinois began recognizing same-sex marriage.

    When Maureen’s death suddenly appeared imminent, we furiously attempted to obtain a medical exemption from Cook County officials to authorize their marriage ahead of the announced date upon which Illinois would begin recognizing same-sex marriages.  But the bureaucratic requirements were impossible to meet given Maureen’s deteriorating condition, and time ran out far too quickly.  I sat in the funeral home with Suzanne, alongside Maureen’s brother and sister, barely able to endure bearing witness to my sister’s pain as she was forced to acquiesce to a death certificate listing Maureen as single and never married.

    As my mind listened to the Justices sparring with the lawyers about the constitutionality of denying same-sex marriage, my heart was with Suzanne and Maureen, James and John, and the countless other devoted same-sex couples who have suffered a similar denial of dignity.