Author Archive for sam-kamin
Kennedy v. Louisiana Argued Tomorrow
posted by Sam Kamin
March 27th marked six months in the United States without an execution. For a nation that executed nearly 100 of its citizens only 9 years ago, this is a pretty amazing feat that has gone largely unnoticed in the popular press.
The Supreme Court hears argument tomorrow in Kennedy v. Louisiana, a case testing the Constitutionality of Louisiana’s child-rape death penalty statute. In 1977’s Coker v. Georgia the Supreme Court struck down Georgia’s death penalty statute, holding that the death penalty is an unconstitutionally disproportionate punishment for “the rape of an adult woman.” Ever since then the question left open by the opinion has gone unanswered: Is the death penalty also disproportionate for the rape of a child?
April 15, 2008 at 9:15 pm
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John Yoo and Tenure
posted by Sam Kamin
I am not a first amendment lawyer nor am I well-qualified to write about academic freedom, but I have been intrigued by the discussion of whether John Yoo can or should be fired in connection with his authorship of the infamous torture memo.
The National Lawyer’s Guild, which opposed efforts to fire Ward Churchill at the University of Colorado, has called for Yoo to be fired. Obviously, the two situations are not identical. Churchill’s views were “merely” unpopular and the investigation into his background would never have taken place but for the outrageousness of his speech. By contrast, Yoo’s speech has led to tangible results, results that the NLG claims constitute war crimes.
April 13, 2008 at 5:29 pm
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Little Help?
posted by Sam Kamin
As has been noticed, there are a lot of us criminal law types here this month. There also seems to be, with the exception of the fascinating case that Daniel Solove noted the other day, a relative dearth of criminal law and procedure questions percolating through the courts at the moment. So I thought I would take advantage of this moment for purely selfish purposes.
I am at the earliest stages of putting together a Criminal Procedure casebook. This task has required me to reflect on my own teaching of the course and to question a lot of what I do and say in the course. I have never been terribly happy teaching Criminal Procedure; I find that the class lacks any organizing principles and that the doctrines come across as very results-driven and fact-specific. Unlike Criminal Law which I truly enjoy teaching, Criminal Procedure has often felt like a chore. I’m hoping that this project helps change that.
So I’m not going to ask you to organize Criminal Procedure for me or to outline my book. But I am curious what those of you out there who teach Criminal Procedure like or loathe about doing so. Is there a particular case or doctrine that gets you energized? Is there some part of the class that you feel compelled to teach even though you detest either the leading case, the result, or the reasoning? After the jump, my thoughts.
April 7, 2008 at 10:51 pm
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More on Pearson v. Callahan
posted by Sam Kamin
I posted on Monday about the Supreme Court’s grant of cert in Pearson v. Callahan and its request for briefing on the question of whether to overturn Saucier v. Katz. For those of you who don’t follow qualified immunity law closely (are you really out there???) Saucier required federal courts consider Section 1983 and Bivens actions to consider the merits of the plaintiff’s claim before turning to the proffered defense of qualified immunity. Saucier has been unpopular with both lower federal courts and many of the Justices of the Supreme Court (*shameless plug* for a defense of Saucier, see my forthcoming article. *end plug*)
What’s curious about this case to me is that, although the Supreme Court has asked the parties to brief the question of whether Saucier should be overturned, I can’t imagine why either the petitioner or the respondent would care about that question. Saucier’s ordinal mandate perhaps helps plaintiffs in the long run because it requires federal courts to establish federal law rather than simply saying that the federal issue is a close one and that therefore the defendant wins on qualified immunity. Saucier is also probably defendant unfriendly in the long run because it keeps them in civil rights cases longer and likely makes it easier for plaintiffs to recover against them. (Of course, it’s also possible that law-abiding public officials want to know what that law is so that they can conform their conduct to it, but that’s a conversation for another day.)
April 4, 2008 at 12:27 pm
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Qualified Immunity and Saucier v. Katz
posted by Sam Kamin
Thanks to Dave and the rest of the authors here for inviting me to guest this month. I’m really looking forward to it.
I want to start with a word about a case in which the Supreme Court granted certiorarari on last week. In #07-751, Pearson v. Callahan, the Supreme Court granted cert on the Fourth Amendment question presented but also asked the parties to brief the following question:
“Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”
In Saucier the Supreme Court had mandated that when a federal court considers a qualified immunity case, it must decide the merits of a plaintiff’s constitutional claim before turning to the defendant’s assertion of qualified immunity. The Supreme Court has stated that this order-of-decisionmaking rule encorages the development of constitutional law and provides crucial guidance to official actors regarding what the Constitution requires of them.
Saucier has not been popular with lower federal courts or with a number of members of the Court itself. In a forthcoming article in the George Mason Law Review I urge the Court not to overturn Saucier. I take issue both with those who argue against Saucier on prudential grounds and those who argue that deciding the substantive question before the immunity quesiton violates Article III’s ban on advisory opinions.
March 31, 2008 at 1:11 pm
Posted in: Civil Rights, Constitutional Law, Supreme Court
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