Armchair Justice

How Small will Flast Get?

2006-12-02T11:33:00.000-08:00

The Court is taking yet another citizen standing case, deciding whether taxpayers have standing to challenge the constitutionality of President Bush's faith-based initiative. (AP report here). This may be the closest case in terms of its facts to the wacky Flast v. Cohen case where the Court held that taxpayers have standing to challenge federal property grants to religious organizations. As the Court has made clear by repeatedly refusing to expand Flast beyond its facts, this is the only situation where people can sue the government just because they don't like what the government is doing.

Last term the Court decided DaimlerChrysler v. Cuno, and unanimously held that the plaintiffs lacked standing to challenge state tax subsidies to an automanufacturer. Standing had been asserted based on taxpayer status only. The Court didn't overturn Flast in that case, but it's difficult to see how they can avoid doing so in dismissing the faith-based initiative case without completely sacrificing what's left of its credibility in the taxpayer standing arena.

Habeas Erosion: It's Not Just for Military Detainees Anymore

2006-11-12T12:05:00.000-08:00

The Ninth Circuit recently upheld the denial of a habeas petition against a truly asinine factual background. When the petitioner was arrested and interrogation began, he said to the arresting officer: "I plead the Fifth." The officer replied "Plead the Fifth. What's that?" and continued the interrogation. The state court rejected the petitioner's claim that he was denied his Fifth Amendment right against self-incrimination when the officers failed to stop the questioning when the petitioner asserted his right.

The District Court denied the habeas petition, and the Ninth Circuit upheld the denial. The Ninth Circuit opinion was written by the larger-than-life Judge Alex Kozinski, who has a large army of cultish admirers among the legal profession. Judge McKeown dissented.

Hopefully realizing that any reasonable officer would know what "I plead the Fifth means, Kozinski justified his absurd result by citing to the deference requirements in AEDPA. Kozinski acknowledged that, but for AEDPA, he "might be writing a very different opinion."

Assuming we can take Lord Kozinski at his word, this is a disturbing example of how habeas protection is being eroded out of existence by federal statute. But as the dissent says, it's difficult to see how any level of deference can justify upholding the state court on these facts.

Boo, Judge Kozinski.

Do We Need Specialized Trial Courts for Patent Cases?

2006-11-04T10:41:00.000-08:00

Armchair Justice says: NO!

At the close of the latest session of Congress, the House of Representatives passed H.R. 5418, "To establish a pilot program in certain United States district courts to encourage enhancement of expertise in patent cases among district judges." The bill would, among other things, allow district court judges to volunteer for designation as patent judges, whereby all patent cases in that district would be funneled to the patent judges. The bill is the latest effort to attack the high reversal rate at the Federal Circuit, which stands at an abnormally high rate of about 30-35%. Congress hopes that increased expertise at the trial level will produce better results more likely to be upheld by the Federal Circuit.

Meanwhile, the U.S. Supreme Court is attacking the Federal Circuit reversal problem from the other direction. According to a recent article from the National Law Journal:

"From 1990 to 2001, the court granted certiorari eight times, heard eight cases and affirmed the Federal Circuit's decisions 50 percent of the time. But from 2002 to now, the court granted certiorari nine times, heard seven cases -- and did not affirm in any of the cases."

So, as Congress is trying to create better results at the district court level, the Supreme Court is reversing the results at the Federal Circuit level. So what's going on at the Federal Circuit?

The Federal Circuit was created in 1982, and is unique in that it is the only federal court of appeals based entirely on jurisdiction, rather than geography. It sits in Washington, D.C., but its appeals are based on its exclusive appellate jurisdiction over a handful of federal cases, most notably patent cases. The goal in creating a single Circuit Court to hear patent appeals was to create consistency within patent law and avoid forum shopping. On the latter point, there's still a great deal of forum shopping in patent law (the Northern District of California, Western District of Wisconsin, Eastern District of Texas, District of Delaware, and District of Massachusetts are currently the most popular), so the Federal Circuit hasn't done much there.

In terms of consistency, the Federal Circuit hasn't done much better. While there are obviously no circuit splits in patent law, there are plenty of intra-circuit splits among the twelve judges on the Federal Circuit. Most experienced patent litigators will tell you that your result on appeal depends on the panel you draw. Even on clear questions of law for which there is established precedent, the judges vary greatly in the ways in which they apply (or ignore) the commands of the Supreme Court and their own precedential decisions.

Will specialized trial courts change this? I'm doubtful. There is certainly an expertise problem in many (though not all) District Courts when it comes to patent cases, but increased expertise will do nothing to address the overall willfulness of the Federal Circuit. Rather than increasing judicial specialization in patent law, I believe it's time to acknowledge that the Federal Circuit experiment has failed and return to regional jurisdiction over patent appeals.

There are plenty of benefits of having competing circuits deal with federal appeals. Giving the Federal Circuit more authority to draw from (and perhaps ignore) would assist them in reaching their own conclusions. It would also cast into sharper relief their decisions to ignore authority, and perhaps force them to either justify it doctrinally or stop doing it. In addition, I just don't think that patent law is as strange and mysterious as everyone thinks it is. Plenty of federal law is complex. The fact that patent law's complexity is derived partially from its technological subject matter doesn't mean it should have its own circuit.

Slate's Dopey Religious Freedom Diatribe

2006-10-14T11:53:00.000-07:00

I just read this article written by two attorneys in the New York Attorney General's office about how courts treat religious freedom claims. They focus on two cases which, they claim, illustrate the judiciary's assault on God and the Constitution. In one, a New York village argued that a "Shabbos House" located near a hospital (a facility providing free lodging to observant Jews who want to visit their loved ones on the Sabbath but can't travel) was being operated in violation of local zoning laws and needed to be shut down. At the time the article was written the hearing had just taken place before in a U.S. District Court, so the court hasn't reached the merits of the arguments yet. Another case involved a Jewish day school that wanted to expand its facilities, and attempted to exploit a federal law proscribing zoning decisions that substantially burden religious practice. The Second Circuit "expressed doubt that the law's prohibitions could extend to any facilities that would be used for secular purposes" such as computer, music and art classes.

The article's authors argue that these cases illustrate the improper tendency on the part of courts to treat religious practices as secular activities. The authors argue that this tendency leads courts to improperly hold that state regulations directed toward secular activities are valid despite the fact that they infringe on religious practices. The authors interpret the prevailing jurisprudence as this: "If the conduct is susceptible to any secular justification, it is not entitled to religious liberty protection."

While attacking this approach as overly constrained the authors nonetheless appear to propose the bizzaro version of the same rule: If the conduct is susceptible to any religious justification, it is entitled to full religious liberty protection.

This is inconsistent with the long-standing (and, I would argue, doctrinally sound) principles that (1) a generally applicable regulation that creates an incidental burden on religious practice is valid so long as the regulation is not motivated by hostility toward a particular religious group and (2) a secular activity does not become a religious activity simply because a religious group chooses to engage in it. If a religious organization chooses to operate a school it must do so in compliance with state restrictions on the operation of schools. The Shabbos house is a closer call -- it isn't clear that the Shabbos house is actually a "transient motel" as argued by the village -- but since the court hasn't reached that issue yet it seems premature for the authors to be attacking it as part of a judicial trend. But if the Shabbos house is indeed a "motel" within the applicable statutory definition, and the state has decided that it doesn't want motels next to hospitals, the religious group isn't entitled to put it there. Put another way, two individuals who decide to engage in the same activity should not be treated differently under applicable regulations simply because one of them engages in the activity because they believe God says they should and the other one doesn't.

The authors blame the framers of the First Amendment for "our dysfunctional religion jurisprudence," claiming that "the twin mandates of permitting free exercise of religion while prohibiting its establishment by government are often on a collision course that puts the justices in the constitutional equivalent of swerving into oncoming traffic to avoid hitting a dog." If one takes the view that the Free Exercise clause creates an affirmative duty on the part of the government to facilitate religious practices, this analysis is correct. However, another view (and one supported by decades of Supreme Court precedent) is that the two religion clauses of the First Amendment are consistent and complimentary. The Establishment Clause prohibits the government from affirmatively sponsoring and supporting religion; the Free Exercise clause prohibits the government from affirmatively attacking or restraining religion. When the government acts in the secular sphere and its secular laws have either positive or negative effects on religious life (as is often the case, given our highly regulatory system of government), neither clause is implicated.

Finally, in bemoaning the difficulty of categorizing activities as either religious or secular, the authors suggest that all morality is religious in origin. It isn't a great leap from this questionable premise to the idea that, because all law is driven by values, all law is morally driven and therefore inherently religious. This, of course, is exactly the notion that the First Amendment was specifically designed to exclude from American government.

Patent Reform

2006-09-20T10:42:00.000-07:00

A consortium of technology companies is lobbying Congress for patent reform. According to the article, the two main things the consortium is asking for are (1) adopting a "first to file" rule to replace the current "first to invent" rule, and (2) messing around with remedies and damages for patent infringement. This should be interesting.

The first to file rule has always been controversial. Everywhere else in the world where patent rights are recognized, if two people invent the same thing and one files a patent application first, the first filer gets the patent. Period. In the United States, the second filer can get the patent if he shows that he actually invented the technology before the first filer. Needless to say, this creates a lot of complications in patent cases and a lot of money for law firms.

The attraction of the first to invent rule is that it bestows the benefit of intellectual property ownership on the first person to actually develop the subject matter of the property. This is a nice idea in theory, but there are at least two reasons for adopting the first to file rule. First, it would bring us in line with the rest of the civilized world in terms of the way we treat intellectual property (something that's increasingly important what with the international trade and all).

Second, and more philosophically, it would implement a more progressive construction of intellectual property rights. Intellectual property lacks the trappings of traditional property, and the precise contours of IP rights have always been hard to define. For this reason, the government has always been deeply involved in creating and interpreting IP rights. Imposing a first to file requirement would make it clearer that IP rights are government-created, and one of the steps in securing those rights is asking for them in a timely manner.

Regarding remedy reform, this is definitely something that courts have had problems with. The eBay case didn't do much to clarify the injunction standard, and the Blackberry fiasco, which ended in settlement, didn't create any helpful legal precedents. Interestingly, the article claims that Congress' interest in this field was prompted in large part by fear among Congress members and staffers that their Blackberrys would go dark. This may be a needlessly self-interested justification for taking up legislation, but ideally the experience will lead lawmakers to take a more down-to-earth view of patent enforcement.

Disarming the Private Attorney General

2006-09-08T10:38:00.000-07:00

Apparently other states are considering legislation akin to California's beloved Proposition 64, which limits the private enforcement of unfair competition laws by placing various factual and administrative hurdles in the way of class action suits. The main drag is the requirement that the private litigaent suffer an actual injury in reliance on the alleged unfair business practice (usually a misrepresentation), prohibiting private attorneys from suing on behalf of the general public.

Okay, the whole point of class action litigation is that no individual has suffered enough of an injury to merit an individual lawsuit, so this focus on injury is absurd. Proposition 64 was sold to California voters as a way to prevent mom and pop restaurant owners (who are just trying to feed their families, just like you and me) from being nailed by meritless shake-down lawsuits. An admirable goal, to be sure. But there are ways to do that without preventing corporate abuses by large companies to go unpunished by a disinterested state attorney general. Class action plaintiffs' lawyers generally aren't the best that the Bar has to offer. They're often not the consumer crusaders thay make themselves out to be. Of course they're in it for the contingency fees. But empowering private lawyers to sue on behalf of the general public is a perfectly legitimate way to enforce consumer protection laws, particularly where the state government can't be counted on to do it its damn self.

Unfortunately when you put the howling masses in charge of legislation you get black-and-white, overbroad policies like this. Hopefully if other states do take on tort reform the legislatures will be able to come up with more nuanced provisions.

Circuit Split

2006-09-08T10:33:00.000-07:00

Dang.* Apparently the Ninth Circuit had 73 male clerks and 73 female clerks last year.

Against the grain, as always.

* By the way, I'm becoming increasingly frustrated with the number of VC posts devoted to Republican talking points. I also never read the comments. I think the best way to read that particular blog is by focusing on posts from the Brothers Volokh.

California's Wacky Electoral College Proposal

2006-08-26T10:51:00.000-07:00

I heard about this on NPR the other day and found it intriguing. It's a proposal by the California legislature that would allocate all of California's Electoral College votes to the winner of the national popular vote (as opposed to the California popular vote, which is the current system). The article states that the legislation would become effective only if states with a combined vote count of 270 electoral votes did the same thing. Apparently Colorado, Illinois, Louisiana, and Missouri are considering similar legislation. If this eventually worked out, the winner of the national popular vote would be elected President and the Electoral College would essentially be eliminated apart from its formalisms.

This is obviously spurred by the 2000 election, when the debate over the legitimacy of the Electoral College gripped the nation mainly along partisan lines. Without the Electoral College, close presidential elections would largely be in the hands of the most populous states -- California, New York, and Texas. With the Electoral College, close elections are still largely in the hands of a few swing states. Either way, a handful of states wield disproportionate power in deciding who gets to be President. As a practical matter I think a system that chooses important states based on population is better than a system that chooses them based on purpleness (this coming, of course, from a life-long and committed resident of the great state of California).

But policy aside, is it constitutional? I've never studied Election Law, so I asked a colleague who had taken the course in law school. He said that he didn't study this sort of thing in Election Law, but did provide some valuable insights. He pointed out that states can't mandate how their Electors vote; state legislatures can only choose which Electors go to Washington. But he also pointed out that states currently choose the Democratic or Republican slate of Electors assuming they'll vote a certain way without forcing them to, so the statute could be workable on those grounds. He was also baffled at why any state other than California, New York, or Texas would go along with something like this. Finally, he made the observation that if the legislation is contingent upon a consortium of states with 270 votes, it would have to change after each census.

But this statute goes beyond changing the way electors are chosen and behave. It essentially eliminates the Electoral College system by allowing a consortium of do-gooder states to impose direct democracy by choosing the President based on the national popular vote. Could something like this happen without an actual Constitutional amendment? The reply was that we've already monkeyed around with the Electoral College without benefit of Constitutional amendments. The Electoral College as we know it today -- where electors are chosen based on statewide popular voting -- is a great deal different from the way it looked at the end of the eighteenth century. The fact that a change would have the substantive effect of removing all of the operative effects of the Electoral College shouldn't change that.

Okay, so it's constitutional. Back to policy. Is it a good idea? Armchair Justice says: YES!. The Electoral College strikes me as one of a number of compromises that was necessary to bring a series of would-be independent nation-states into a united federalist system (see the last clause of Article V of the U.S. Constitution for what is perhaps the most important compromise). It was a way of allowing smaller states to have more influence in the national election. That may have been a good idea back in the formative years of Our Nation, but it doesn't make a lot of sense today. There's no good reason for the President to be selected by other than a national popular vote.

But wouldn't this decrease the power of smaller states? Perhaps. If so, that's not a bad thing. A vote in California shouldn't be worth less than a vote in Wyoming simply because more people choose to live in California. Besides, as it stands now any state -- big or small -- only gets disproportionate influence in the Presidential election if it's a swing state. If California weren't reliably blue or reliably red, candidates would spend half their campaigns in the few hundred miles between San Diego and San Francisco.

I'd like to see this legislation come into effect, but it doesn't seem very likely.

The Priest and the Parking Ticket

2006-08-23T10:15:00.000-07:00

A Catholic Priest was ticketed for parking in a hospital ambulance zone, and is now fighting the ticket. He parked there to deliver Last Rites to a dying patient after responding to an emergency call from a family member.

A generally applicable law that has an incidental effect of interfering with a particular religious practice doesn't run afoul of the Free Exercise Clause, and that seems to be the situation here. The priest doesn't seem to be proceeding on First Amendment grounds, however, but on "humanitarian grounds." He may have a point, but all things considered $115 doesn't seem like an unreasonable price to pay to ensure someone's passage into Heaven. It might be time for the patient's family to make a donation in that amount to the church.

Hooray Exclusionary Rule

2006-08-20T00:09:00.000-07:00

The recent ruling regarding the NSA's warrantless wiretapping has led to a lot of discussion about the warrant requirement in the Fourth Amendment, including a debate over at the Volokh Conspiracy about the originalist interpretations of the amendment. I'm not a big fan of originalism, since I subscribe to the idiotic belief that individual rights were not frozen in time in 1791, but this post by Randy Barnett raises some interesting issue. The post is a synopsis/commentary regarding Akhil Amar's originalist interpretation (which Orin Kerr refutes via Thomas Davies in this post). Although the Conspirators seem to be discussing the warrant requirement itself, I'm more interested in the exclusionary rule, which is the rule that evidence obtained by law enforcement in violation of the Fourth and/or Fifth Amendments is inadmissible against the person whose rights have been violated (which means, by the way, that if the police violate someone else's constitutional rights and find evidence that inculpates you, they can use it against you).

The exclusionary rule is a judge-made doctrine, which leaves it open to criticism of this sort. And with the Supreme Court having recently ruled, in Hudson v. Michigan, that the exclusionary rule does not apply to a police officer's failure to "knock and announce" before executing a warrant, some are saying that the exclusionary rule may soon be a thing of the past. This would be very bad. A rule is only as effective as its consequences -- and excluding key evidence that was obtained illegally is quite a consequence. Not having an exclusionary rule may have made sense in colonial times when, according to Amar, law enforcement officials could be sued for trespass for violating the Fourth Amendment. However, since the advent of sovereign immunity interpretation of the Eleventh Amendment (another Supreme Court-made doctrine, despite the fact that we fought a whole revolutionary war to rid ourselves of this kind of monarchistic nonsense), such civil suits are no longer available as a remedy. The only realistic way to give the protections of the Fourth and Fifth Amendments any teeth at all is to invalidate the illegal investigative conduct by barring the illegally obtained evidence.

The Supreme Court dug a hole for itself by reading the Eleventh Amendment to say that "The ~~King~~ State can do no wrong." Eliminating the exlusionary rule would mean that the Eleventh Amendment repealed the Fourth and Fifth.

As for the warrant requirement itself, it seems clear to me that the warrant clause and the unreasonable search and seizure clause are two different things. The Court has mashed them together by holding that a warrantless search is per se unreasonable (unless it falls into one of a number of clearly defined exceptions). A better rule might be that a search supported by a warrant is per se reasonable, while a warrantless search is subject to some sort of reasonableness inquiry by the court. I'm not afraid of a little judicial discretion here and there, so that kind of rule would be fine by me.

First Amendment Victory for Philadelphia Strip Club

2006-08-17T10:01:00.000-07:00

The Third Circuit has struck down a lewdness statute as overbroad under the First Amendment, allowing the topless bar that challenged the suit to proceed with its alcoholic breast-exposing activities. The case sort of goes into what a lewdness statute can cover without being unconstitutional -- naked ballet, naked concerts, and naked "ordinary theater" must be exempted, apparently.

More interesting, from my own law geek perspective, is the song-and-dance about distinguishing the case from an earlier Third Circuit case that held a similar New Jersey statute constitutional. The government argued in the current case that the statute was fine because it was only enforced against strip clubs, and thus didn't supress legitimate expressions of nakedness. The court disagreed, saying that the statute, as written, could be enforced against too many different types of entertainment. What saved the New Jersey statute in the previous case was the fact that a New Jersey state court had interpreted the statute as applying only to purely sexual establishments, and with that gloss by the court the statute was not overbroad. The Pennsylvania courts haven't applied a similar interpretation to the statute at issue here.

The case is Conchatta Inc. v. Miller.

Supreme Court November Oral Argument Schedule

2006-08-14T15:48:00.000-07:00

SCOTUSblog has the day-by-day schedule of the first round of oral arguments for the upcoming term. Since the Supreme Court only exists to decide abortion cases, mark November 8 on your calendar.

Fantasy Baseball and the Non-Copyrightability of Facts

2006-08-14T11:23:00.000-07:00

Continuing the tradition of stupid baseball-related lawsuits (the best to date being the imbroglio over the Los Angeles Angels of Aneheim), MLB teams and the players union sued a fantasy league operator for running the league without the express written consent of Major League Baseball. A judge has tossed the lawsuit, holding that player statistics are historical facts and therefore not copyrightable.

The players are expected to appeal, and the suit may go forward on right of publicity/misappropriation grounds. These are basically state law claims that people turn to when they can't get what they want out of copyright law (Supremacy Clause be damned). There was at least one case in California where a right of publicity claim succeeded where a copyright license failed -- a celebrity successfully sued for misappropriation where an advertiser (or maybe a pinball machine designer, I may be getting my cases confused) had licensed a copyrighted image from the movie studio. Kozinski didn't like that one bit.

Who Says the Commerce Clause is Boring?

2006-08-11T17:16:00.000-07:00

It's fitting that my first post here would be about a Commerce Clause case, since I'm a long-time devotee of the increasingly powerful grant of Congressional authority. One of the few Constitutional provisions that grants Congress the power to regulate day-to-day private activities (by granting authority to regulate interstate commerce), it has been used by Congress, with varying degrees of success, to regulate things like violence against women (struck down), handguns near schools (also struck down), and marijuana cultivation (upheld!). The fact that none of these things have any realistic association with interstate commerce illustrates the fact that Congress has necessarily stretched the limits of the Commerce Clause in order to satisfy its yearning for plenary police power over private activity.

And the Supreme Court has reacted to this envelope-pushing with varying degrees of tolerance. The conventional wisdom is that the "conservative" justices favor limited commerce power, promoting the federalist principle that the regulation of private activity should be left to the states. "Liberal" justices, meanwhile, favor federal regulations and are therefore willing to stretch the definition of "interstate commerce."

The pro-federal regulation camp won a major victory last year in Gonzales v. Raich, where the Court held that the private, purely intrastate cultivation of marijuana could legitimately be regulated by Congress under the Commerce Clause. The "liberals" on the Court carried the day. This was a head-scratcher to a lot of non-law geeks who figured the liberal justices would side with the pot smokers.

So, what could be more exciting than a Commerce Clause case about marijuana? How about a Commerce Clause case about child pornography? That's right, the Eleventh Circuit, applying Raich, has held that a federal statute criminalizing child pornography is constitutional where the film and paper used to create the offending materials traveled in interstate commerce. In U.S. v. Smith, the Eleventh Circuit read Raich as standing for the premise that "Congress may regulate purely intrastate activity, whether economic or not, that could be rationally considered incident to Congress’s comprehensive regulation of interstate economic activity." (Emphasis added.)

This basically means that Congress can regulate anything as long as it involves somebody buying something. Or, not buying something that they might otherwise have bought if they weren't doing the thing. If that isn't plenary federal police power I don't know what is.

About this Blog

2006-08-11T15:58:00.000-07:00

Armchair Justice is the anonymous blog of an attorney (known to us only as "AJ") who would like his professional career to advance unfettered by his public legal ramblings.

Most of the posts on this blog will relate to recent or pending legal decisions or legal issues. The cases and issues will be selected for commentary based on their high-profile nature and/or overall law geekiness. Decisions which AJ regards as particularly ass-headed will receive special attention, since a lawyer is never more entertaining than he is when in dissent.

AJ is a graduate of a fancy-pants law school living in San Francisco. He's a legend in his own mind. He likes to write about himself in the third person, just like he's doing right now.

Introduction

2006-08-10T09:01:00.000-07:00

Welcome to Armchair Justice.

More to come!

(Seriously.)