June 2017

  • June 30, 2017
    Guest Post

    *This piece originally appeared on The Global Legal Post's blog on June 30, 2017

    by Reuben Guttman, Partner, Guttman, Buschner, & Brooks

    Legal academics are sniffy about practitioners who teach. But, says Reuben Guttman, this outdated view does a disservice to the legal profession.

    Scholarship means academic study or achievement. It is word without rigid limitations except perhaps when it comes to law schools which more and more are interpreting the word “scholarship” to mean theoretical endeavor not directly connected to the practice of law. This may seem odd but it is quite true. Today the word "scholarship" seems, in part, used as a pretext to discriminate against those whose academic endeavours favour the actual practice of law. Surprisingly, those whose work entails writing case books, legal treatises, or teaching classes on trial advocacy, are not what law school insiders call scholars. This means they are not favoured for tenure track positions or prestigious chairs. Sometimes they are relegated to the title of "professor of practice," which means that their endeavors are so connected to actual legal work that they cannot just be known as a professor.

  • June 29, 2017
    Guest Post

    by Rachel Meeropol, Senior Staff Attorney and Associate Director of Legal Training and Education at the Center for Constitutional Rights

    Having litigated the case that would become Ziglar v. Abbasi for the last fifteen years, since the summer I graduated from law school, my first impressions of the Supreme Court’s 4-2 decision were somewhat provincial. I represent six men who were detained after 9/11 for minor immigration violations. Though there was never any reason to suspect my clients of ties to terrorism, they were beaten, harassed, kept from contacting lawyers and loved ones, denied the ability to practice their religion, deprived of sleep and held in solitary confinement until they were cleared of any potential connection to terrorism by the FBI and deported. Last week’s Supreme Court decision denying them an opportunity to sue for monetary damages against the former federal officials that designed the policies that led to their restrictive confinement marks a low point in their long struggle for justice and compensation. Perhaps unsurprisingly, my first thoughts were how they would be impacted and where the case could go from here. With the benefit of a few days distance, I have forced myself to undertake the decidedly unpleasant task of considering the bigger picture: Just how badly does Justice Kennedy’s opinion eviscerate the Bivens doctrine? Spoiler alert: quite a lot.  

    Some background first: unlike constitutional violations by State officials, there is no statute that allows people to sue federal officials for damages for constitutional violations. Instead, civil rights plaintiffs have relied on a trio of Supreme Court cases, stating with Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, that implied a damages cause of action directly under the Fourth Amendment, the Equal Protection Clause and the Eighth Amendment. Since 1980 the Supreme Court has consistently rejected attempts to “expand” the Bivens doctrine to allow damage actions against federal agencies, private corporations and private actors and to limit its application where Congressional action in the field leaves no room or no need for an implied cause of action. But over the same period, the Supreme Court and the circuits assumed the availability of many other Bivens claims that met the central purpose of the doctrine: compensating victims of federal officer wrongdoing where such compensation would otherwise be unavailable, and deterring individual federal officers from future illegality. Abbasi stands in sharp contrast to these decades of precedent. 

  • June 29, 2017
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law

    Last week, the Supreme Court at long last ruled on the case of James McWilliams, a man sentenced to death thirty-one years ago in Alabama, without any assistance of a mental health expert, despite evidence that he was psychotic and had organic brain damage. His lawyers argued he had no way to show the jury he did not deserve the death penalty without his own medical expert. The Justices agreed.

    The ruling may impact death penalty cases around the country, where mental health evidence is often central. But the ripple effects may be felt across our entire criminal justice system, where as a shocking federal report highlighted last week, vast numbers of people in our jails and prisons have serious mental health issues.

    As a fundamental matter of due process, the Justices said in McWilliams’ case, the judge must give a defendant, who cannot afford one, a mental health expert to effectively “assist in evaluation, preparation, and presentation of the defense.” The Court also emphasized that the simplest way to be sure the defendant has a fair trial is to provide a qualified expert.  

    Instead, what McWilliams received was a “Lunacy Commission”---yes that was what it was called in Alabama---with three experts who readily concluded he was sane and had no relevant mental health problems worth telling the jury about. One government expert did note he had “genuine neuropsychological problems” and records showed he was being given several psychotropic medications in jail, including anti-psychotics. The defense lawyer asked repeatedly for an expert to examine those records and examine McWilliams. The trial judge always refused. 

  • June 29, 2017

    by Caroline Fredrickson

    With people’s longevity increasingly approaching the century mark, lifetime tenure on the Supreme Court is itself getting old.  Some scholars on both sides of the ideological divide have offered a proposal: an 18-year term limit on Supreme Court Justices’ service. This idea may relieve the nominations process of painful political pressure and bring both accountability and better predictability into our judicial system. And, the term aligns with historic numbers – eighteen years is close to the average term of service on the highest court in the past 100 years.

    Why change a time-honored tradition?

    Today's Supreme Court is “polarized along partisan lines in a way that parallels other political institutions and the rest of society;” government scholar Norm Ornstein observes.

    “Lifetime appointments give presidents the incentive to overvalue younger, more ideological candidates and overlook those who are at the height of their careers,” the nonpartisan Fix the Court group asserts based on Ornstein’s writings.

    “Life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history,” Professors Steven G. Calabresi and James Lindgren point out in their paper. They also found Justices remain influential on the court well into their 80s, longer than ever before in American history. These days court vacancies actually delay justice; political storms form too quickly after a Justice who spent decades handing down decisions dies.

    Thus, 66 percent of Americans polled during last year’s monumental crisis wanted to end life tenure for Supreme Court Justices, as they endured the colossal failure to fill a departed Justice’s seat.

  • June 28, 2017
    Guest Post

    by Chris Calabrese, Vice President, Policy, Center for Democracy & Technology

    Last week in United States vs. Microsoft, the Department of Justice (DOJ) petitioned the Supreme Court to decide the reach of the U.S. government when compelling U.S. companies to turn over data stored outside the U.S. Courts are divided on the issue. The Second Circuit Court of Appeals held that the Electronic Communications Privacy Act (ECPA) cannot reach extraterritorially. Magistrates in other circuits have disagreed, interpreting the search as occurring where a company discloses data, not where the data is seized. However, what no one disputes is that as the number of requests skyrockets, the system for accessing data across borders is deeply in need of reform and that courts are ill-suited to tackle the complicated equities at stake.

    The current system uses Mutual Legal Assistance Treaties (MLATs) to allow foreign law enforcement to pass requests to their domestic counterparts, who in turn serve them on specific providers. The process is slow and sometimes frustrating for law enforcement. U.S. service providers are frequently caught in the middle – they are not only worried about violating the privacy rules of a particular country, but also about thwarting legitimate investigations. At the same time, privacy advocates rightly note that U.S. law – undergirded in many cases by the protections of the Fourth Amendment – is particularly strong and should not be abandoned.

    While there are no perfect solutions to this problem, at the Center for Democracy & Technology we have argued that significant progress can made through a package of reforms focused in four areas: