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Author: Amanda Frost

1

Senseless Secrecy

An editorial in yesterday’s New York Times criticized the current administration’s attempts to reclassify decades old information, such as the number of missiles and bombers in the United States’ arsenal during the Nixon era. The editorial notes that this administration seems to have taken classification to new and frivolous levels, and cites the National Security Archive’s postings on “dubious secrets”, which lists dozens of cases in which the government classified information that no reasonable person would find worthy of secrecy. (My favorite example is the decision by a 1999 CIA reviewer to classify a Ford-era CIA memo discussing plans to sabotage the “annual courier flight of the Government of the North Pole” by its “Prime Minister and Chief Courier S. Claus”).

Like the classification process, the executive may also have misused the state secrets privilege. (That’s the same privilege that the government is asserting as grounds for dismissal of cases challenging the NSA’s warrantless wiretapping program). That privilege was first formally recognized by the Supreme Court in United States v. Reynolds, where the government asserted the privilege to prevent disclosure of the Air Force’s accident investigation report on the crash of a B-29 aircraft in a tort suit brought by widows of three civilians on board. The government argued that the report contained information about secret Air Force missions, and the Court agreed that the report should be withheld from discovery to protect national security. When the report was finally declassified and publicly disclosed, however, it did not appear to contain any information relevant to national security. (For more details on the Reynolds case, see “Who Will Guard the Guardians? Revisiting the State Secrets Privilege of United States v. Reynolds,” published in Federal Contracts Report, vol. 80, no. 11, September 30, 2003)

These examples make me wonder whether government officials who erroneously classify information should be subject to some type of penalty. Not only do these sorts of misclassifications keep information about the workings of the government from the public, they may also jeopardize national security by making judges skeptical of the executive’s judgment and thus less likely to defer in those cases in which secrecy is actually justified.

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Note to U.S. Bar Examinees: It Could Be Worse

japanese flag.jpgAmerican University Washington College of Law, where I teach, has recently established an exchange program with Ritsumeikan University, a law school located in Kyoto, Japan. Our students and faculty regularly visit there, and a group of Ritsumeikan students comes to American University each summer for three weeks to study U.S. law. As a result of my law school’s connection to Ritsumeikan, I have learned a little about the Japanese legal education system, which is in a fascinating period of transformation right now.

Until very recently, Japan has offered no post-graduate legal education. Instead, students would study law as undergraduates and then take the National Law Examination, a wickedly difficult exam with a less than three percent pass rate, producing only 1,200 new lawyers a year. (Compare that with the 2005 U.S. bar passage rate of 64% percent, which produced 51,958 newly-licensed U.S. lawyers that year.) Whatever one may think about the number of lawyers in the United States, the paucity of Japanese lawyers is widely recognized as a problem for the world’s second largest economy. Without lawyers, Japanese businesses and citizens are denied access to courts, with inevitable consequences for the growth of the economy and the advancement of social justice.

In June 2001, the Justice System Reform Council proposed major changes to the Japanese legal education system, which it had developed during its two years of studying the problem. In response to the Council’s recommendations, Japan has established post-graduate professional law schools, such as Ritsumeikan, to provide a three-year legal education with the goal of improving the quality and quantity of Japanese lawyers. A J.D. degree is now a basic requirement for those who will take the new National Law Examination. The pre-established pass rate is higher than before, though still extraordinarily low by U.S. standards – only 3,000 students will be permitted to pass the exam each year. It will be interesting to see how these changes affect Japan in the years to come.

So for those recent graduates of U.S. law schools (and a certain professor at Stanford Law School) who are awaiting their bar results, take a moment to be grateful that your chances of getting licensed to practice law are considerably higher than those of your Japanese counterparts.

6

NewsFlash: Westlaw is Fallible!

Like many lawyers, I rely heavily on Westlaw and other electronic databases for research. So I was disturbed to discover that Westlaw had failed to note some pretty important developments in a case I had been litigating — omissions that may have affected the way other courts view the issue.

The case is Peoples v. CCA, which I have discussed in a previous post. My petition for rehearing en banc was granted on December 22, 2005, but Westlaw failed to note that information in either a yellow flag or in the history link. I called Westlaw to report that problem as soon as I noticed it in late January, and Westlaw fixed it quickly by attaching a yellow flag to the case and noting that en banc review had been granted. In the meantime, however, the Fourth Circuit had already cited to the panel opinion as supporting its view of the issue, apparently unaware that the Tenth Circuit had agreed to rehear the case en banc. (Though in fairness I do not believe that information would have changed the Fourth Circuit’s mind).

Then the en banc court issued a per curiam opinion in which it affirmed the district court by an evenly divided vote, which vacated the panel opinion. Westlaw has failed to note this change in the panel opinion’s status, despite the two telephone calls I have already made reporting this problem. And courts continue to cite the panel opinion as if it is good law.

No system of recording cases and their histories is failsafe, and I think that Westlaw and Lexis both do a pretty good job most of the time. I certainly don’t have a better system to propose. But this citation error makes me realize how heavily we all rely on electronic databases for our information about case law, and how one mistaken citation can affect a rapidly developing area of the law.

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Immigration Judges Face Annual Review

The New York Times reported yesterday that immigration judges will hereafter be subject to annual performance evaluations. This change in policy is prompted by recent and widespread criticism of their decisions by the federal courts of appeals. The immigration judges have come under attack not just for issuing poor decisions, but also for “bullying” and “brow-beating” the people who appear before them. For example, in a recently decided case, Cham v. Attorney General of the United States, the Third Circuit described the Immigration Judge’s behavior as “cruel” and “abusive,” and directed the case be reassigned to a new judge.

The Department of Justice has recently conducted a comprehensive review of Immigration Judges’ decisions, but has yet to publicly disclose its findings. Since I cannot think of a good basis for withholding findings of an investigation of this kind from the public, I hope that someone pursues access to that information through a Freedom of Information Act request.

4

It’s Time for the Supreme Court to be Heard

microphone.jpgWe are heading into the first full Supreme Court term in 19 years with a new Chief Justice, John Roberts, who is sure to consider changing some of the Court’s policies. So it seems worth asking once again why the Court does not immediately release audio broadcasts of all oral arguments.

Same-day release of oral argument audio tapes was unheard of until December 2000, when the Court permitted it in Bush v. Gore. Since then, the Court has several times allowed the immediate release of oral argument audio tapes in high profile cases, such as those concerning the rights of Guantanamo Bay detainees and challenges to affirmative action programs in higher education. But the vast majority of oral arguments are inaccessible to anyone who cannot wangle a seat at a Supreme Court argument. An official at the Court’s Public Information Office said only that it was the Court’s “tradition” to withhold tapes of oral arguments for release until the start of the next term, months after the cases have been decided. The Court should rethink that practice.

Listening to the arguments provides insight into how cases will likely be decided and perhaps even a view of how future cases presenting related issues will be resolved – information that is too important to be reserved to the handful of Supreme Court bar members who can make it into the courtroom. Although transcripts of oral arguments are published on the Supreme Court’s website, they are not available until approximately ten days after the argument, and in any case a cold transcript is no substitute for an audio recording because the tone of voice, pace of response, and emphasis on certain words and phrasings is lost.

I was in the courtroom in 2002 for the oral argument debating the constitutionality of Virginia’s cross-burning law, and I can attest that only someone who heard the argument could have felt the power of Justice Clarence Thomas’ comments on the history of cross-burning, or understood the impact of his words on the justices’ view of that case. More generally, only those who hear the justices speak can detect sarcasm or disbelief in their voices, or know when they are truly asking questions and when they are making pronouncements about how the case should be decided.

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Does familiarity breed contempt?

I have been reading some interesting articles on the factors that contribute to a court’s or judge’s reversal rate. Because I live in, and litigate cases in, Washington, D.C., where the federal district and circuit court judges occupy the same building, I began to wonder whether there is any correlation between sharing a courthouse and the frequency with which the appellate court reverses the district court. Similarly, I would be interested to know whether workplace proximity affects the frequency with which the appellate court orders a district court judge to recuse him or herself from sitting on a case. The articles I have found do not address this question.

The federal courthouse in D.C. provides district and circuit court judges with lots of opportunity to interact in the elevators, cafeteria, parking lot, gym, and at various courthouse functions (for example, at the annual chili cook off organized by Judge Sentelle, or at the holiday caroling hosted by Judge Henderson). Would these sorts of frequent, casual social interactions change the way the appellate judges review their district court colleagues? I could see it cutting either way. On the one hand, the appellate judges might give a little more deference to that district court judge who seems friendly, sensible, smart, and always remembers to ask after the kids when they run into each other in the hallways. On the other hand, the water-cooler familiarity might lead appellate judges to view some of their lower court counterparts as less reliable and trustworthy than others. Although I doubt workplace proximity is a major factor in reversal rates, I would guess that it plays in a little at the margins.

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Crowded House (and Senate)

capitol_hill.jpgThe New York Times today reports on overcrowding on senators-only elevators at the Capitol. The article is of the mocking, “here’s-a-quarter-call-someone-who-cares” variety, but I think it nonetheless picks up on a real issue. Having spent this summer moonlighting as a staffer for the Senate Judiciary Committee, I can confirm that overcrowding is a big problem on Capitol Hill.

I have devoted my professional life to public interest law and now academia, and so I had not thought of myself as someone who cares about workplace amenities. But I was taken aback by the uncomfortable working conditions in the Dirksen Senate Office Building, where I spent most of the summer. The elevators are painfully slow, and when they are arrive they are often jammed too full to allow anyone waiting to board. (I never attempted to board a senators-only elevator, as the NYT reported some staffers do, but I can certainly understand the temptation.) The eating options are abysmal, expensive, and packed during the peak lunch hours. More than once I observed staffers forced to “lunch” on popcorn from a stand in the basement – the cheapest and quickest way to ingest some calories in time to run back and deal with whatever crisis is brewing. And office space is a joke. Staffers with vital jobs are in windowless cubicles with little workspace, no privacy, and no opportunity for quiet contemplation.

So why should anyone care? Well, I don’t claim that improving working conditions on Capitol Hill should become a national priority. But nonetheless I think the time lost waiting for elevators, foraging for food, and trying to find a quiet place for a conference call is a net loss for taxpayers. And I wonder if it doesn’t create an atmosphere of anxiety, annoyance, and general frustration that infects the day-to-day interactions of staffers and senators with each other and the constituencies they serve.

But perhaps I take a good lunch a little too seriously.

12

Tied Up in the Tenth Circuit

tied_up.jpgI have been litigating a case in the Tenth Circuit that produced an unusual result. I lost before the panel, but a strong dissent from Judge Ebel convinced the Tenth Circuit to rehear the case en banc. Twelve judges sat on the case. On May 17, 2006, just a week after the en banc argument, I received the Court’s per curiam opinion announcing that it was evenly divided, 6-6. The Court thus affirmed the district court and vacated the panel opinion without issuing any law for the circuit. This frustrating result has created a mini-debate among those I have consulted about filing a cert. petition in the Supreme Court. Some of the experienced Supreme Court practitioners with whom I have discussed the case are convinced that the 6-6 split increases the likelihood that the Supreme Court will grant cert., while others believe that the lack of any precedent on this issue in the Tenth Circuit detracts from its cert-worthiness. I would be very interested to hear from anyone with an opinion on the matter whether they think the Tenth Circuit’s tie vote makes this case a better, or worse, candidate for Supreme Court review. (Obviously, getting the Court to grant review is always a long shot; I’m just interested to know how people think this odd result from the en banc court will affect my chances).

For those who are interested, here is a little background information on the case: My client, Cornelius Peoples, filed suit in the Kansas District Court against prison guards employed by Corrections Corporation of America (CCA). Mr. Peoples, a federal prisoner, alleges that guards at CCA’s Leavenworth, Kansas, facility failed to protect him from attacks by other prisoners even after he repeatedly requested that he be removed from his cell block for his own safety. Claiming a violation of his Eighth Amendment rights, he brought suit under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Although it’s clear that Mr. Peoples could have brought a Bivens action if he were incarcerated in a government-run prison, the circuits are divided on the question whether prisoners can sue private prison guards for constitutional violations. It has been an interesting case to litigate, but I am sorry that I have not been able to get a better result for my client.