March 2011

  • March 25, 2011
    Guest Post

    By Amanda Frost, Professor of Law, Washington College of Law, American University.
    More than 135 law professors have signed a letter advocating that Supreme Court justices be subject to the same ethical rules as lower federal court judges and that an individual justice's decision not to recuse him or herself from a case be reviewed by others. A bill recently introduced in the House of Representatives would establish such reforms.

    Russell Wheeler of the Brookings Institute has criticized the letter and the bill on three grounds. Wheeler argues that these proposals: 1) "rest on basic factual misunderstandings about federal judicial ethics regulations"; 2) "are probably unconstitutional in part"; and 3) "could create a ‘cure-worse-than-the-disease' situation."

    I am one of the signatories of the law professor letter, and thus have decided to respond to Russell Wheeler's critique. This response is solely on my own behalf, and I do not speak for either the other signers of the letter or for the sponsors of the pending bill.

    (1) Neither the bill nor the letter contains factual misunderstandings about judicial ethics.

    Wheeler acknowledges that both the Code of Conduct and the Judicial Conduct and Disability Act of 1980 apply only to lower federal court judges, and not Supreme Court Justices. That disparity is the principal complaint in the law professor letter, and would be rectified were the pending bill to become law. But Wheeler argues that the letter mistakenly assumes that lower court judges are required to abide by the Code of Conduct. He points out that although the Judicial Conduct and Disability Act of 1980 establishes procedures for investigating and sanctioning judges, violations of the Code of Conduct do not automatically lead to a finding of misconduct. From this, he concludes that lower federal court judges are not "required" to follow it.

  • March 25, 2011
    Gov. Scott Walker's aggressive tactics to crush collective bargaining in Wisconsin include a dark underbelly TPM's Josh Marshall writes.

    Marshall highlights a situation involving University of Wisconsin professor William Cronon who wrote a blog post at Scholar as Citizen examining the "sudden and impressively well-organized wave of legislation being introduced into state legislatures that all seem to be pursuing parallel goals only tangentially related to current fiscal challenges - ending collective bargaining rights for public employees, requiring photo IDs at the ballot box, rolling back environmental protections, privileging property rights over civil right ...."

    Cronon also authored a piece for The New York Times in which he compared Gov. Walker's (pictured) efforts to push an anti-workers' rights measure through the state legislature to the infamous work of former U.S. Senator Joe McCarthy.

    Professor Cronon's criticism, Marshall writes, triggered a harsh reaction from the Wisconsin Republican Party. It lodged "a state open records request to gain access to Cronon's personal emails to get a look at what communications or discussions or sources or anything else" that went into Cronon's work.

    Marshall writes:

    Now, 'personal' is up for some reasonable debate here. This is his university email. And he's a Professor at the University of Wisconsin, the state university. So he's a state employee. Still, he's not an elected official or someone doing public business in the sense you'd ordinarily understand the term. Nor are they looking at anything tied to the administration of the University, which is legitimately a public matter. In the ordinary sense we tend to understand the word it's his personal email. And the range of requested documents leave no doubt about what they're after.

    Cronon has responded to the Republican Party's move, noting its use of the state open records request is a "perversion" of the law, Marshall noted.

    In his New York Times column, Cronon said Gov. Walker's conduct, which has spurred enormous protests at the state capitol, "has provoked a level of divisiveness and bitter partisan hostility the likes of which have not been seen in this state since at least the Vietnam War. Many citizens are furious at their governor and his party, not only because of profound policy differences, but because these particular Republicans have exercised power in abusively nontransparent ways that represent such a radical break from the state's tradition of open government."

    In a guest post for ACSblog, former Wis. Attorney General Peg Lautenschlager lauds state Judge Maryann Sumi for temporarily halting Gov. Walker's bill to strip collective bargaining rights from workers, saying it was a blatant violation of the state's open meetings law.

  • March 24, 2011
    Guest Post

    By Ian Bartrum, assistant professor of law, Drake University Law School. Professor Bartrum teaches constitutional law, law and religion, and constitutional theory. He has also taught at Vermont Law School, and has served as the Irving Ribicoff Fellow at Yale Law School. This post is part of an ACSblog symposium marking the one-year anniversary of the Affordable Care Act.
    On the first anniversary of the Patient Protection and Affordable Care Act, Republicans continue to push the judiciary to intervene and revisit a debate they lost in the political branches. At this writing, five District Court judges have weighed in on the constitutionality of the Act: three have found it constitutional and two have not. In the meantime, the argument rages in state legislatures, policy think tanks, and the legal academy. The majority of legal experts, including as esteemed and nonpartisan a scholar as Yale's Akhil Amar, have concluded that the law passes constitutional muster. But other more conservative scholars have disagreed.

    The primary constitutional question centers on the provision known as the "individual mandate." That provision requires those without health coverage through their jobs, who are above the federal poverty line, either to buy a minimum level of health insurance -- at a rate not more than 8 percent of their monthly income -- or to pay a penalty of either $695 or 2.5 percent of income (whichever is higher). So in practical terms, the mandate is not all that onerous; but it is critically important. Because the law prevents insurers from discriminating against people based on preexisting conditions, it must ensure that people do not simply wait until they get sick to buy coverage -- if everyone did that, insurance would be impossible. But it's clearly not the practical effect that matters to health care opponents; it's the principle at stake. The Constitution, they say, does not allow the federal government to intrude this far into our lives.

    In particular, opponents say the mandate exceeds Congress's authority to regulate interstate commerce. The objections are of two kinds. First, scholars such as Georgetown's Randy Barnett argue that what Congress is regulating is not commerce. Second, pundits like the Cato Institute's Timothy Sandefur have argued that the mandate is not a regulation of commerce. Neither position stands up to serious scrutiny.

  • March 24, 2011
    The United States and Torture
    Interrogation, Incarceration, and Abuse
    Marjorie Cohn, editor

    By Marjorie Cohn, a professor at Thomas Jefferson School of Law, past president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Cohn edited The United States and Torture: Interrogation, Incarceration and Abuse, a collection of essays.
    Army Pfc. Bradley Manning, who is facing court-martial for leaking military reports and diplomatic cables to WikiLeaks, is being held in solitary confinement in Quantico brig in Virginia. Each night, he is forced to strip naked and sleep in a gown made of coarse material. He has been made to stand naked in the morning as other inmates walked by and looked. As journalist Lance Tapley documents in his chapter on torture in the supermax prisons in The United States and Torture, solitary confinement can lead to hallucinations and suicide; it is considered to be torture. Manning's forced nudity amounts to humiliating and degrading treatment, in violation of U.S. and international law.

    Nevertheless, President Barack Obama defended Manning's treatment, saying, "I've actually asked the Pentagon whether or not the procedures . . . are appropriate. They assured me they are." Obama's deference is reminiscent of President George W. Bush, who asked "the most senior legal officers in the U.S. government" to review the interrogation techniques. "They assured me they did not constitute torture," Bush said.

    The order for Manning's nudity apparently followed what he described as a sarcastic comment he made to guards after their repeated harassment of him regarding how he was to salute them. Manning said that if he were intent on strangling himself, he could use his underwear or flip-flops.

    "In my 40 years of hospital psychiatric practice, I've never heard of something like this," said Dr. Steven Sharfstein, a former president of the American Psychiatric Association. "In some very unusual circumstances, when people are intensely suicidal, you might put them in a hospital gown. ... But it's very, very unusual to be in that kind of suicide watch for this long a period of time."

  • March 24, 2011
    Guest Post

    By James Grimmelmann, Associate Professor of Law, New York Law School.

    On Tuesday, Judge Denny Chin quietly deflated the Google Books settlement. His long-awaited opinion in Authors Guild v. Google, Inc. rejected a proposed settlement, which would have given Google the right to sell electronic copies of out-of-print books. The opinion is short, readable, and filled with eloquent quotations from objections, many filed pro se. It moves quickly through more issues than I could discuss in a blog post, so here I'll focus on its central holding, that this kind of "forward-looking business arrangement" is simply beyond the court's power to approve under Rule 23.

    The basic issue posed by the settlement has always been that it turns an ordinary class action inside-out. The underlying lawsuit, filed in 2005 by authors and publishers, objected to Google's program to scan books, index them, and show short "snippets" of a few sentences as search results. In the normal course of things, this suit would have proceeded to a judgment, either that Google infringed copyright or that its book search engine was protected fair use.

    And ordinarily, any settlement would have fallen somewhere between those two possibilities. Perhaps it would have allowed Google to continue some of its scanning but not all of it, and perhaps Google would have paid copyright owners, but not as much as they could have won at trial. It would have been, in short, a genuine compromise between the parties' legal positions.

    When the settlement was proposed in 2008, and amended in 2009, however, it had metastazied into something much more ambitious: a combination of universal library and ultimate bookstore. Google would use its scans to sell complete digital copies of the books to consumers and libraries. It would keep 37 percent of the revenue, and the remaining 63 percent would be split between authors and publishers according to a complicated formula. The whole thing would be subject to an intricate, almost Rube Goldbergian governance scheme involving Google, authors, publishers, libraries, and a new Book Rights Registry to keep track of everything.