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A Plea Bargaining Strike

I am seldom shocked these days, but the article in this week’s New Yorker about Kalief Browder is astonishing.  Browder is arrested for theft.  He does not receive bail.  He is imprisoned for three years on Rikers Island without trial.  Then the prosecutor dismisses the case (because the alleged victim moved to another country).  How this could go on without a successful Sixth Amendment claim is beyond me.  (Browder is now suing for damages).  The New York criminal justice system (at least in the City) should be deeply ashamed.

This leads me to ask a broader question about the constitutional guarantee of a “speedy trial.”  Nobody would be surprised to learn that trials are much less speedy now than they were in 1791 or 1868.  Some of that is unavoidable, but I wonder to what extent this constitutional right is ripe for rediscovery.  Consider that this is a right that protects defendants.  If the state cannot get its case together in a timely way, then the charges must be dismissed.  Moreover, if a state or local criminal justice system is underfunded such that trials cannot happen quickly, then the charges must be dismissed.  At least that could be how the Sixth Amendment is applied.  My sense, though, is that courts rarely find that a defendant’s speedy trial right is violated.  (I can tell a good story about the related right to a “public trial” from my clerking days, but I’ll save that for another post.)  An originalist could have a field day with this subject.

This brings me to my last thought.  People often complain about the use of plea bargaining and its abuses.  Imagine for a moment that there was a plea bargaining strike.  Under any reasonable interpretation of the Sixth Amendment, most of the striking defendants should go free.  Why?  Because the current criminal justice could not handle so many trials–the delays and backlog would be enormous.  That suggests the existence of a significant right/remedy gap.

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FAN 34 (First Amendment News) Hybrid PACS — yet another case goes to High Court

I am posting this column a few days early since I will be traveling this week, but next week I’ll return to the scheduled Wednesday postings.

* * * *

Contributions earmarked solely for use in independent expenditures by “hybrid” political committees that engage in both independent expenditures and direct contributions to candidates appears destined to be a coming campaign-finance law battleground. — Judge Edith Brown Clement (2014)

Dan Backer

Dan Backer

The cases seem endless — that is, all those campaign cases that are finding their way to courts. One gets dizzy just drying to keep up with all of them as they are listed weekly on Professor Rick Hasen’s Election Law blog.

Recall, last week I posted a story about a campaign finance case that James Bopp, Jr. filed with the Supreme Court on Friday. Before the digital ink on that case could dry, voila, a new campaign finance case found its way to the Court only moments ago.

The case: Stop This Insanity Inc Employee Leadership Fund et al v FEC.  

The two issues in the case are: (1) Whether a political committee that makes highly restricted direct contributions has a First Amendment right to engage in unrestricted non-contribution activities through a separate and segregated non-contribution account, and (2) Whether the First Amendment forbids a government from restricting political speech based on the disclosure interest—an interest in providing the electorate with information about the sources of election-related spending—including when a more narrowly tailored remedy is available.

→ The man principally behind the case is a mild-mannered and quiet sort of guy, Dan Backer. He is no big time K street lawyer. No, his professional credentials are much more modest. He is the founder and principal attorney for DB Capitol Strategies, a campaign finance and political law firm in Alexandria Virginia. More importantly (and as David Skover and I noted in our book When Money Speaks), he was one of the driving forces behind the successful litigation of McCutcheon v. FEC (2014). When his team lost that case in the D.C. Circuit (in an opinion by Judge Janice Rogers Brown), it did not stop him — he took the case to the Supreme Court where Erin Murphy successfully argued the case for the Petitioner.

And now, Backer and a new team are at it again, in yet another campaign finance case — and again challenging a ruling by Judge Brown and her colleagues on the D.C. Circuit.

Lower Court ruling — “‘You can’t always get what you want'” 

→ Court of Appeals decision (D.C. Cir., Aug, 5, 2014), per Judge Janice Rogers Brown (joined by Judges Thomas Griffith and David Sentelle). Here is how Judge Brown began her opinion:

“The iconic musician Mick Jagger famously mused, ‘You can’t always get what you want. But if you try sometimes, well, you just might find, you get what you need.’ The Rolling Stones, You Can’t Always Get What You Want, on Let It Bleed (Decca Records 1969). Here, Stop This Insanity Inc. (STII)—a grassroots organization—wants to remove the congressionally-imposed binds on solicitation by separate segregated funds, a type of political action committee connected to a parent corporation. What it needs, however, it already has—an unrestrained vehicle, in the form of that parent corporation, which can engage in unlimited political spending. Because this less-obsolete and less-onerous alternative exists, we decline Stop This Insanity’s invitation for us to tinker with what has become a statutory artifact.”

And here is how she ended it, albeit with musical flare:

“STII is already capable of sweeping solicitation. And yet, it wants a vehicle capable of soliciting without transparency. The Court has endorsed disclosure as “a particularly effective means of arming the voting public with information,” McCutcheon, 134 S. Ct. at 1460, and the Appellants’ approach would stifle the Government’s ability to achieve that endeavor. Our Constitution does not compel such a result.IIIWe may never know why the Appellants wish to do things the hard way. The Constitution, however, does not guarantee a right to be obstinate. Try as it might, STII will get no satisfaction.”

Tillman Breckenridge

Tillman Breckenridge

The players

 Counsel of record on Cert. PetitionTillman J. Breckenridge.

 Other Counsel in the Case: The petition was filed by Tillman Breckenridge and Tara Brennan of the Reed Smith law firm, working in conjunction with the William & Mary Law School Appellate and Supreme Court Clinic, and Dan Backer.

→ Counsel for the FEC in Court of Appeals: Erin Chlopak, Acting Assistant General Counsel, Federal Election Commission.

The initial advisory opinion request to the FEC and court filing were done by Steven Hoersting and Dan Backer.

Circuit Split

In his cert. petition, Mr. Breckenridge maintains that “the D.C. and Second Circuits directly conflict with the Fifth and Tenth Circuits on whether hybrid PACs can be prohibited.” The cases to which he refers are:

  1. Stop This Insanity Inc Employee Leadership Fund et al v FEC (D.C. Cir., 2014)
  2. Vermont Right to Life Comm., Inc. v. Sorrell (2nd Cir., 2014)
  3. Catholic Leadership Coal. of Tex. v. Reisman (5th Cir., 2014)
  4. Republican Party of N.M. v. King (10th Cir., 2013)

 → Will such differences in the Circuits be enough to prompt four of the Justices to review the enmeshment issue and/or the discourse one? Here is Professor Rick Hasen’s prediction: “I give this a reasonable chance of a cert. grant, given the circuit split (though not on the disclosure issues, but on the coordination/enmeshment issue.”

On a related matter: Federal judge rules donor disclosure required for political documentary

This from the JURIST website (Sept. 23, 2014):

The US District Court for the District of Colorado denied on Monday a request by Citizens United for a preliminary injunction to allow the conservative organization to air a political documentary without disclosing the film’s advertising donors as required by state law. The documentary, Rocky Mountain Heist, which the group hopes to air before November’s elections, “concerns various Colorado advocacy groups and their impact on Colorado government and public policy.” Citizens United argued, on First Amendment grounds, that its organization should be considered a “press entity,” entitled to the same exemptions as traditional media outlets, which are not required to disclose their donors. Otherwise, the group argued, it would be the victim of “viewpoint-based discrimination.” The court disagreed stating that people should be able to “discern the private interests behind speech when determining how much weight to afford it.” Citizens United intends [press release] to appeal this ruling to the US Court of Appeals for the Tenth Circuit.

Supreme Court: Results of Sept. 29th Conference Read More

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Should More Land Use Professors be Libertarians? Part II

In my previous post, I asked why more land use/local government law professors do not identify as libertarians, considering the role many of us have played in exposing the dysfunctional workings of local government.

If there is an obvious argument in favor of the status quo in land use/local government regulation, it is that all the alternatives seem worse. Let us consider some of the candidates:

The Market

 An unimpeded free market in land use development would apparently be the worst of all worlds, as there would be no way to prevent open space from being gobbled up by new housing, roads and schools becoming impossibly congested, or a refinery locating next to a single-family home (or, perhaps more likely, a landowner threatening to build a refinery in order to extort his neighbor, a common scenario in pre-zoning Chicago).  In a densely populated society, we need some way of ensuring that landowners consider the impact of their land use on neighbors.   The good people of Oregon realized this after an ill-advised ballot initiative a few years ago effectively wiped out zoning, and suddenly a single landowner could, for example, subdivide his parcel into 100 lots for single-family homes with no regard for the impact the development would have on local services or infrastructure. The ballot initiative was repealed by a subsequent initiative a few years later.

In my previous post, I mentioned Houston as a possible alternative to most places’ current system of land use regulation. Houston is often touted for its lack of zoning, and corresponding low home prices. I should point out, however, that Houston is not quite a free-market paradise. Houston has a full complement of land use laws, including subdivision regulations (to prevent downtown-houston-at-night-1430683-sthe aforementioned 100 lot problem) billboard regulations, and the like. The city even enforces restrictions contained in private covenants.   As my friend and Houstonian Matt Festa points out, Houston has a quirky city charter that prohibits zoning without a voter initiative, so the city does lots of land use regulation but simply calls it something other than zoning.  And, while I’m on the subject, does anyone really think the reason Houston has lower land prices than San Jose is because of zoning? Read More

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Iconic or Scandalous: Olivia Pope and Annalise Keating – Black Women Lawyers on Prime Time TV

Welcome to the second decade of the twenty-first century, there are now two black women lawyers on Thursday prime time television thanks to screen writer, director and producer Shonda Rhimes. Rhimes, an increasingly powerful player in the broadcast world, first garnered widespread acclaim in 2005 as the creator and executive director of the long-running medical drama Grey’s Anatomy and its spin-off, Private Practice (2007-2013). In 2010 she entered the legal terrain with Scandal, about a high-powered Washington, D.C. political fixer who is having an affair with the married President of the United States. The fixer, Olivia Pope, is a well-educated and well-connected lawyer who runs a crisis management firm, Pope and Associates. Scandal started its fourth season on Thursday.

By the way, Olivia Pope, played by Kerry Washington, and Shonda Rhimes, the producer, are black women. So unsurprisingly a flurry of anticipatory articles and posts appeared when ABC announced Rhimes’ latest production, How to Get Away with Murder, which also aired Thursday immediately after Scandal. Annalise Keating (played by Viola Davis) is a tenured black woman law professor who also runs her own law firm. (Isn’t this a no, no under the ABA rules?) But anticipation quickly turned into controversy when New York Times television critic, Alessandra Stanley, started her article about the new show with: “When Shonda Rhimes writes her autobiography, it should be called ‘How to Get Away With Being an Angry Black Woman.’” Oops, so perhaps we have not progressed that far in race relations after all.

Stanley’s column set-off a firestorm on the internet. One of the most interesting critiques of Stanley’s troubling discussion of Rhimes and black women actors was posted by Margaret Lyons on Vulture.com.  Even Rhimes sent a few tweets.  The result was an apology from the Times’ Public Editor  and the obligatory “non-apology” from Stanley.

This much discussed controversy, however, is not the subject of my post. I am more concerned about the content of Scandal and How to Get Away with Murder than with how the executive producer and female actors are described by critics. As I celebrate the emergence of Kerry Washington and Viola Davis, as lawyers in starring roles on prime time television, I worry, not about whether these shows are breaking old well-worn stereotypes about black women as angry and sexually permissive, but rather whether my students will see these fictional women lawyers as legal icons to be emulated.
Read More

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JOBS Act, Sarbanes-Oxley and US Stock Market Competitiveness

Steve Bainbridge posts that we now have evidence that the facilitations that the JOBS Act provided to emerging growth companies for going public are ineffective. Steve also points out that since the early 2000s we have seen the US stock markets appearing less competitive than foreign markets. Let me add that we also have evidence that the Sarbanes-Oxley Act of 2002 (SOX) lengthened the time to going public and increased the probability of a private sale instead of an IPO. (SSRN has tons of papers on the mostly negative consequences of SOX but also a couple of papers suggesting indeterminate answers.) This means that SOX moved returns away from entrepreneurs and public investors to private equity funds. Although the costs of compliance have dropped and perhaps we cannot definitively say that SOX was a mistake, we cannot say it was a success either and the JOBS Act did not cure the inefficiencies that SOX produced. So, it is time to accept that the way to restore competitiveness is to repeal the dubious SOX provisions. Read More

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FAN 33.1 (First Amendment News) — Gov. Brown signs Confederate flag ban

Symbols of the Confederate flag are so unwelcome in California that this past Thursday Governor Jerry Brown signed legislation prohibiting state agencies from selling or displaying items bearing the Stars and Bars.

According to an August 21, 2014 news report in the Los Angeles Times:

A bill that would prohibit California from displaying or selling merchandise with the Confederate flag is headed to Gov. Jerry Brown’s desk, after getting final legislative approval in the Assembly on Thursday. The measure by Assemblyman Isadore Hall III (D-Compton) would prohibit the state from displaying or selling merchandise emblazoned with the Confederate flag. The ban would not apply to images of the flag found in books, digitial media or state museums if displayed for educational or historical purposes. Hall introduced the bill, AB 2444, after his mother, on a visit to the Capitol, saw a replica of Confederate money sold in the gift shop. The money contained a picture of the flag.The bill passed the Assembly on a bipartisan 66-1 vote, a symbol, Hall said, of “standing together united to fend off the ugly hatred of racism that’s been portrayed and demonstrated through the emblem of the Confederacy.”

The bill provides:

8195. (a) The State of California may not sell or display the Battle Flag of the Confederacy, also referred to as the Stars and Bars, or any similar image, or tangible personal property, inscribed with such an image unless the image appears in a book, digital medium, or state museum that serves an educational or historical purpose.

(b) For purposes of this section, “sell” means to transfer title or possession, exchange, or barter, conditional or otherwise, in any manner or by any means whatsoever, for consideration. “Transfer possession” includes only transactions that would be found by the State Board of Equalization, for purposes of the Sales and Use Tax Law, to be in lieu of a transfer of title, exchange, or barter.

It’s now the law.

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University of Toronto Law Journal – The Residential School Litigation and Settlement

utlj-logo

University of Toronto Law Journal – Volume 64, Number 4, May 2014

The Residential School Litigation and Settlement
Guest Editors: Mayo Moran and Kent Roach

This is the first symposium issue to take an in-depth look at Canada’s Aboriginal Residential School litigation which was the largest class action in Canadian history and the innovative agreement that settled it. The volume provides insider and comparative perspectives on the settlement agreement as well as outlining the historical and contemporary context of the residential schools that many Aboriginal people in Canada were required to attend. The issue also includes critical examinations of the litigation and of various features of the settlement itself. It also looks at the larger context including the conduct of lawyers in the litigation.

Mayo Moran is Dean and James Marshall Tory Professor of Law at the Faculty of Law University of Toronto.
Kent Roach is Professor of Law and Prichard-Wilson Chair of Law and Public Policy at the University of Toronto Faculty of Law

This issue contains:

Introduction: The Residential School Litigation and Settlement
Mayo Moran, Kent Roach

Residential schools, respect, and responsibilities for past harms
John Borrows

The settlement process: A personal reflection
Kathleen Mahoney

The role of reparative justice in responding to the legacy of Indian Residential Schools
Mayo Moran

Blaming the victim: Canadian law, causation, and residential schools
Kent Roach

Unsettling the lawyers: Other forms of justice in Indigenous claims of expropriation, abuse, and injustice
Carrie Menkel-Meadow

Full text of the University of Toronto Law Journal is available online at UTLJ Online, Project Muse, JSTOR, HeinOnline, Westlaw, Westlaw-CARSWELL, LexisNexis and Quicklaw.

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An Important New Paper on Veil Piercing Procedure

Sam Halabi (Tulsa) has written an important and interesting new paper on veil piercing, titled Veil-Piercing’s Procedure.

“With the lines between shareholders and corporations blurring over constitutional rights like free exercise of religion and political speech, questions as to how and under what circumstances the law respects or disregards the separation between shareholders and their corporations have never been more urgent. In the corporate law literature, these inquiries have overwhelmingly focused on the doctrine of piercing the corporate veil, a judicial mechanism normally applied to hold shareholders responsible for the obligations of corporations. The last twenty years of veil-piercing scholarship has been largely devoted to empirical analyses of veil-piercing cases collected from Lexis and Westlaw searches. Since 1991, scholars have been trying to mine cases for ever more variables that might predict when and under what circumstances judges disregard the separation between shareholders and their corporations. This Article argues that these scholars have focused on the substance of veil-piercing law to the detriment of another factor: civil procedure. This Article is the first to survey civil procedure and evidentiary rules that affect existing veil-piercing studies including pleading standards, threshold presumptions, burdens of proof, jury access and waiver. The Article ultimately argues that phenomena scholars now ascribe to the “incoherence” of veil-piercing law are explicable in the context of veil-piercing’s procedural fluidity.”
The paper breaks new ground on a very, very well trodden field.  (Full disclosure: Sam critiques my work with Christy Boyd on this topic, and we’re mostly guilty as charged.)  I continue to think that veil piercing is a vastly over-written topic, but this paper makes a real contribution and is worth reading. Check it out.

 

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FAN 33 (First Amendment News) What is a PAC? The next big issue?

This is the hottest issue in campaign finance litigation right now. James Bopp, Jr. 

James Bopp

James Bopp

What is the next big campaign finance class of cases, the ones most likely to go the Supreme Court? Ask different people and you will get pretty much the same answers, ranging from “soft money” cases to certain kinds of campaign disclosure cases to campaign speech and judicial elections cases to certain kinds of contributions made by for-profit and non-profit corporations cases, among others.

James Bopp, a noted campaign finance lawyer, has his own views on the matter. Here is the issue that he thinks will get considerably more judicial attention in the near future: “whether an issue advocacy group, that does some political speech, can be deemed to be a Political Action Committee even though it is not under the control of a candidate and it’s major purpose is not the election or nomination of candidates.” Moreover, he stressed that this “is an important issue since deeming a group to be a PAC vitiates the right to political speech that groups won in Citizens United, since no issue advocacy group wants to suffer PAC burdens to do a small amount of political speech.”

Circuit split

Most recently, this issue was examined by a three-judge panel of the Second Circuit in a case familiarly named Vermont Right to Life Committee, et al v. Sorrell (June 28, 2014). The opinion was written by Judge Christopher Droney and joined in by Judges Richard Wesley and Vincent Briccetti. The case for the Petitioners was argued by Randy Elf (with James Bopp, Jr., on the brief).

In a variety of challenges to Vermont’s campaign laws, the Court rejected the Petitioners’ argument that the state’s PAC disclosure requirements violate the First Amendment because Vermont may only impose a disclosure regime on an organization if “the major purpose” of the organization is to advance a candidacy.” Here is Judge Droney’s reply to that argument:

Prior to Citizens United, the Fourth Circuit held that an organization could only be subjected to a political committee regulatory regime if the organization met “the major purpose” test. N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 288‐89, 295 (4th Cir. 2008) (“NCRL III”). However, since Citizens United and its approval of extensive disclosure regimes, two Circuits have concluded that the major purpose test is not a constitutional requirement. See Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 490 (7th Cir. 2012) (“[T]he line‐drawing concerns that led the [Supreme] Court to adopt the major purpose limitation for contribution expenditure limits in Buckley do not control our overbreadth analysis of the disclosure requirements . . . .”).  Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 59 (1st Cir. 2011) (“We find no reason to believe that this so called ‘major purpose’ test, like the other narrowing constructions adopted in Buckley, is anything more than an artifact of the Court’s construction of a federal statute.”); see also Human Life of Wash., Inc.  v. Brumsickle, 624 F.3d 990, at 1009‐11 (9th Cir., 2010) (concluding that Buckley did not lay down a bright‐line test requiring that the major purpose of an organization must be to support or oppose a candidate, and that a state law regulating organizations with a major purpose of engaging in such actions was constitutional).

We join the Circuits that have considered PAC definitions in this context after Citizens United and hold that the Constitution does not require disclosure regulatory statutes to be limited to groups having “the major purpose” of nominating or electing a candidate.

 Counsel for Respondent: Eve R. Jacobs‐Carnahan (Megan J. Shafritz, on the brief), Assistant Attorneys General for the State of Vermont.

Amicus briefs in support of the Respondent were filed by J. Gerald Hebert, the Campaign Legal Center and Democracy 21.

 Additionally, George Jepsen, Attorney General for the State of Connecticut and Maura Murphy Osborne, Assistant Attorney General for the State of Connecticut, filed an amicus brief for the States of Connecticut, New York, Hawaii, Iowa, Kentucky, Minnesota, Montana, New1 Mexico, and Washington, all joined in support of the Respondent.

The next move: “Several cases raising this issue,” says Bopp, “will be filed with the Supreme Court, including one this Friday contesting the decision of the Second Circuit in Vermont Right to Life v Sorrell.”

→ See also below re C-SPAN link on Heritage event (Sept., 18) on campaign finance law and the First Amendment (with Floyd Abrams, Ronald Collins, Adam Liptak, Erin Murphy, and James Swanson).

New Litigation

Challenge to bans on controversial subway ads  Read More

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Should More Land Use Professors be Libertarians?

Many professors who study land use and local government law, myself included, consider ourselves leftists rather than libertarians. That is, we have some confidence in the ability of government to solve social problems. Nevertheless, were you to pick up a randomly selected piece of left-leaning land use or local government scholarship (including my own) you would likely witness a searing indictment of the way local governments operate. You would read that the land use decisionmaking process is usually a conflict between deep-pocketed developers who use campaign contributions to elect pro-growth politicians and affluent homeowners who use their ample resources to resist change that might negatively affect their property values. Land use “planning” – never a great success to begin with – has largely been displaced by the “fiscalization” of land use, in which land use decisions are based primarily on a proposed land use’s anticipated contribution to (or drain upon) a municipality’s revenues. Public schools in suburban areas have essentially been privatized due to exclusionary zoning practices, and thus placed off limits to the urban poor, whereas public schools in cities have been plundered by ravenous teachers’ unions.

The organization of local governments, on the surface a merely technical matter, has fallen victim to a similar pattern of what public choice scholars call “rent-seeking.” Cities look to annex neighboring unincorporated areas in order to gobble up their tax base, while affluent small areas incorporate in order to resist the redistribution of wealth to poorer neighborhoods and prevent unwanted land use sitings. Metropolitan regions have been fragmented into dozens of little local fiefdoms, each acting with little regard for its neighbors. Sprawl, inefficiency, interlocal inequality and de facto racial segregation are the consequences, and the norm, in most metropolitan regions. Read More