Author Archive for erica-goldberg
Sources of Inspiration
posted by Erica Goldberg
On Saturday, I watched the USA women’s basketball team play Croatia. It was a fantastic game, mostly because the US team was anticipated to dominate (in an exhibition game, the US beat Croatia by 54 points), but didn’t do so until the fourth quarter. At several points, it looked like Croatia might win. As it turned out, the final score was 81-56. My friend, who steadfastly predicted that the US women would win by over 20 points despite leading by only 4 points with 9 minutes left in the game, remarked that when one team is so much better than another, the underdog’s luck will eventually run out. This reaffirmed my faith that sports, like many things, are more about achievement and skill than luck (yes, I root for the dynasties/the Yankees/Michael Phelps because I love to witness true greatness). Congratulations to both teams for their achievements.
For my last post as a July guest blogger, I am linking to one of the other favorite things I’ve viewed this summer. It’s a TED talk by brain researcher Jill Bolte Taylor about her experience having a stroke, and the insights she gained about how the different sides of the brain impact our perceptions of our place in this world. Like the Olympics, it’s truly inspiring.
Thanks to CoOp for the opportunity to blog during a wonderful July. In addition to being truly awestruck by the achievements of our athletes and brain researchers, I finished my law review article, precipitated by great comments on posts during my April guest blogging stint. I have greatly enjoyed the discussions on my other posts as well.
July 30, 2012 at 2:40 pm
Posted in: Uncategorized
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Chick-fil-A, Nudity Bans, and the Speech/Conduct Distinction
posted by Erica Goldberg
In the wake of the very public opposition to gay marriage by Dan Cathy, president of Chick-fil-A, local government officials have taken steps to make Chick-fil-A unwelcome in their cities. Although these officials may express their justified antipathy towards Chcik-fil-A, denying it permits to operate restaurants on the basis of Chick-fil-A’s viewpoint is clearly unconstitutional. Professor Eugene Volokh, on The Volokh Conspiracy, has fully covered why. This isn’t a close First Amendment case.
It seems strange to me that Chicago’s Mayor Rahm Emanuel, who supported an alderman’s decision to block permits for Chick-fil-A to build a second store in Chicago, wouldn’t realize this. It would be painfully obvious that Boston, for example, couldn’t deny building permits to a clothing store because the store, for example, donated money to Ron Paul. Or, Boston couldn’t decide to fire a teacher for her speech about gun control unrelated to her job duties written in a private newspaper (although the city may have almost total control of her speech in the classroom). So, why aren’t the free speech implications of this case more apparent?
My guess is because Chick-fil-A’s speech, and the company’s expression through its donation of money to anti-gay rights causes, begins to blur the speech/conduct distinction. As Professor Volokh notes, Chick-fil-A, a private speaker, cannot be denied a governmental benefit on the basis of its viewpoint, but if Chick-fil-A discriminated in serving or hiring decisions, the company could be punished. This is because, while speech cannot be punished, conduct can. This speech/conduct divide is what preserves our First Amendment values. Chick-fil-A’s statements against gay marriage, when they sound like “I think we are inviting God’s judgment on our nation when we shake our fist at him and say, ‘We know better than you as to what constitutes a marriage,’” make it difficult for us to believe that the company’s views won’t bleed into its conduct and impact hiring decisions. And even if the company doesn’t breach the speech/conduct divide, I cannot imagine that a gay couple would feel entirely comfortable entering the establishment holding hands (although they certainly should).
July 26, 2012 at 9:42 am
Posted in: First Amendment
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Quantifying Probable Cause
posted by Erica Goldberg
The quantification of legal standards is an important and interesting topic that has garnered much attention in various contexts. We know that the preponderance of the evidence standard requires greater than 50% certainty, but most other legal standards, including beyond a reasonable doubt, probable cause, and reasonable suspicion, remain undefined numerically. The debate remains active between what I’ll call “fuzzy types,” who distrust the incorporation of math (with its potential false sense of precision) into the law, and “hard types,” who seek to add increased precision and clarity using numbers.
My first Concurring Opinions blog, posted in April, and the discussions that followed inspired a paper on quantifying probable cause. Getting Beyond Intuition in the Probable Cause Inquiry seeks to assign a numerical value to probable cause in situations where quantifiable evidence is already a critical factor in the probable cause inquiry. This would occur where, for example, an alert by a drug sniffing dog is the sole evidence offered to satisfy probable cause. The paper uses a hard-type approach, but largely in situations where the valid concerns of the fuzzy types are minimized. I have posted a draft of the paper at SSRN, and I will be submitting the paper during the August submission season.
I will post more blogs in July, but I’d like to thank everyone who commented on my blog posts. The discussions have helped shape this paper. I am a huge champion of legal blogs, both because of their ability to facilitate exchanges of more accessible length than law review articles, and because of their ultimate benefit to the content of law review articles.
July 24, 2012 at 11:04 am
Posted in: Law School (Scholarship)
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Teaching Criminal Procedure “Objectively”
posted by Erica Goldberg
The new semester is a little over a month away, and I have begun reflecting on whether I’d like to change certain teaching techniques from last year to this year. One of my main objectives as a professor is to foster a classroom environment where students feel free to disagree respectfully with each other and with me. One of the main ways to achieve this objective, I had believed, was to express my own personal opinions as little as possible.
This proved to be a difficult task, especially when teaching Criminal Procedure. Criminal Procedure is designed around assertions of constitutional rights based in the Fourth, Fifth, and Sixth Amendments. The Court’s most impassioned (and possibly compelling) language usually focuses on fears of an oppressive government and the importance of privacy rights. From Katz to Miranda to Brown v. Mississippi, students are exposed to police abuses and the need to prevent them. Of course, the importance of effective law enforcement is also highlighted, and the goals of law enforcement and the protections of the Constitution are not always in tension, but the course is very individual-rights centric.
July 18, 2012 at 11:41 am
Posted in: Law School (Teaching)
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Is There a Reasonable Expectation of Privacy in Illegal Activity?
posted by Erica Goldberg
My previous blog posts on drug sniffing dogs have flirted with this issue. Commenters seem most inflamed by it. Yet, it is dogma that there is no Fourth Amendment right to privacy in possessing contraband. The rationales animating the Fourth Amendment currently protect those who are ultimately found to possess contraband only as a way to shield the innocents, who do not possess contraband but may have other embarrassing items in their possession. According to the Supreme Court, we protect the guilty only to safeguard the innocent from intrusive government action.
Because the Court has held that there is no reasonable expectation of privacy in contraband, intrusions that are “binary,” or test only for the presence or absence of contraband, do not implicate Fourth Amendment rights. Thus, police officers may use drug sniffing dogs, test white powder for cocaine, or use child pornography detection software to search only for digital contraband without any suspicion justifying their actions. (This does not mean that law enforcement can use any means to do so, and Florida v. Jardines will test how intrusive binary searches can be, but I do not believe that Jardines will overturn the proposition that no suspicion is needed before using a drug sniffing dog in a less intrusive way.)
The Seventh Circuit has even extended this logic to hold that there is no reasonable expectation of privacy in illegal activity, no matter where it occurs. The Court of Appeals in United States v. Brock, 417 F.3d 692 (7th Cir. 2005), allowed a canine sniff at the door to a man’s room once his roommate consented to allow the police access to the home. This would be one way of deciding Florida v. Jardines, although I doubt the Supreme Court will go as far as the Seventh Circuit. If you’re interested in the “contraband exception” to the Fourth Amendment, check out Timothy MacDonnell, Orwellian Ramifications: The Contraband Exception to the Fourth Amendment, 41 U. MEM. L. REV. 299 (2010).
July 13, 2012 at 5:15 pm
Posted in: Criminal Procedure
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Newspaper Must Unmask Anonymous Commenter
posted by Erica Goldberg
An Idaho judge ruled on Tuesday that a Washington newspaper, The Spokesman-Review, must reveal identifying information about an anonymous commenter. The commenter, ironically named “almostinnocentbystander,” remarked in two comments on the newspaper’s blog that Tina Jacobson, the chairwoman of the Kootenai County Republican Party, may be embezzling funds from the Party. Specifically, the comment claimed “Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina’s blouse??? Let’s not try to find out.” Another comment, according to the judge’s written opinion, used the words embezzlement, mentioned Jacobson’s position as bookkeeper, and accused Jacobson of refusing to allow others to review treasurer’s reports. The comments were removed from the blog after 2.5 hours, but Jacobson sued for defamation. In denying the newspaper’s motion to quash the subpoena, the judge also ruled that two other commenters’ identities need not be revealed because their posts were not defamatory.
I have been watching episodes of Ally McBeal on Netflix, and, as John Cage says, “I am troubled.” Perhaps innocentbystander’s comments technically meet the standard for defamation in Idaho (Communicating information to others, that tends to harm plaintiff’s reputation, causing damages to plaintiff.) But was that comment really damaging enough to unmask almostinnocentbystander? The primary harm to Jacobson’s reputation that allowed this suit to proceed was that Jacobson herself ordered an audit of GOP books.
July 12, 2012 at 11:01 am
Posted in: First Amendment
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Florida v. Jardines: How is the Supreme Court going to clean up its drug sniffing dog mess?
posted by Erica Goldberg
Briefs and amicus briefs are being filed in a Supreme Court case that could have a major impact on Fourth Amendment jurisprudence in order to resolve a major mess. The question in Florida v. Jardines is whether a police officer can use a drug sniffing dog at someone’s door to determine if there is contraband inside the home. The mess is a result of the tension between the Supreme Court’s holdings, the reality of using drug sniffing dogs, and our intuitions about privacy.
First, the Supreme Court has held that, when performed in a minimally invasive way, like at an airport or outside one’s car, the use of a drug detection dog is not considered a “search” that implicates the Fourth Amendment or requires any suspicion. This is largely due to the fact that the use of drug sniffing dogs is considered a “binary search,” which either detects or fails to detect the presence of contraband. Because the Court has held in no uncertain terms that we have no legitimate expectation of privacy in contraband (I’m not as certain about this proposition when considering the history and purpose of the Fourth Amendment), a device or dog that detects only whether contraband is present or absent does not invade any expectations of privacy.
However, as Professor Leslie Shoebotham’s amici curiae brief (detailed on EvidenceProf blog) argues, drug sniffing dogs often detect the presence of molecular compounds found in both contraband and innocent items, such as vinegar or soap. Another way of framing this is that drug sniffing dogs are not binary because of their tendency to false positive. And there we have Mess Number 1: the Supreme Court’s drug sniffing dog jurisprudence is based on the false idea that the use of a drug sniffing dog is not a search because it detects only the presence or absence of contraband. It is unlikely that the Supreme Court in Jardines will reverse its firmly established position that the use of drug sniffing dogs is not a search. Instead, the Court will likely rely on the holding that a dog binarily alerts or does not alert to the presence of contraband, but will treat as a separate question whether a dog is accurate enough in its alert to give the police probable cause to obtain a warrant and conduct a full search of the home.
Thus, Mess Number 1 is more easily resolved than Mess Number 2, which concerns our intuition. It FEELS wrong for the police to march up to random homes and sniff doors with a drug detection dog. Yet, if the use of a drug detection dog does not actually infringe upon privacy rights or require any suspicion, that’s exactly what could happen. How is the Supreme Court going to distinguish a car or a suitcase from a house if the use of a dog is not a search at all?
July 10, 2012 at 1:02 pm
Posted in: Constitutional Law, Criminal Procedure
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The Right To Be Unpatriotic
posted by Erica Goldberg
I feel great pride in being American. America does not have clean hands with respect to many of its international dealings, and I feel shame and sadness in that, but I believe strongly in many quintessentially American ideals- like diversity, meritocracy, autonomy, and New York pizza.
One of the things that fuels my patriotism is our acceptance of those who express unpatriotic sentiments. My two favorite Supreme Court cases concern the right to be unpatriotic. In honor of the Fourth of July, I will be ruminating upon West Virginia v. Barnette and Wooley v. Maynard.
Barnette held that the right to freedom of conscience prevents public schools from forcing students to recite the pledge of allegiance. According to Justice Jackson, “no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing.” These words remain true today, although in different contexts. Wooley held, again as a First Amendment value, that New Hampshire cannot force its citizens to display license plates carrying the motto “Live Free or Die.” Of course, the precious irony in both of these cases is that the government was compelling citizens to pledge loyalty to concepts of liberty. But, in the end, actual liberty prevailed.
The fact that burning the flag cannot be specifically outlawed, thanks to Texas v. Johnson, is what gives the flag its power. Feel free to share with me your favorite Supreme Court cases. (My third favorite is Schmerber v. California, because I enjoy the nuances in self-incrimination law, but that’s not as relevant to the Fourth.)
July 4, 2012 at 2:07 pm
Posted in: Uncategorized
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The Harm in “The Harm in Hate Speech”
posted by Erica Goldberg
Jeremy Waldron’s new book “The Harm in Hate Speech” has rightfully received a lot of attention. Professor Waldron’s book provides an important and multi-layered justification for what many refer to as “hate speech” regulations. These regulations, like the following example from the Danish Penal Code, prohibit statements “by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin . . . . ” Such regulations are antithetical to the American free speech paradigm, but exist in many other Western democracies.
Waldron believes that, in light of America’s uniquely speech protective history and jurisprudence, his arguments are unlikely to impact the law. I fear that he is wrong. His arguments are ingenious, and therefore quite dangerous. Former Justice John Paul Stevens and former judge, and current professor, Michael McConnell have excellently rebutted Waldron’s arguments in their reviews of his book. I’d like to add a few points of my own.
Like other scholars who seek stronger regulations against hate speech, Waldron connects his arguments to the values of equality enshrined in the Fourteenth Amendment. He argues that hate speech, and its appearance and tolerance in society, undermine certain groups’ senses of inclusion, security in their equal standing, and dignity. Because the Fourteenth Amendment was enacted after the First Amendment, it is tempting to argue that protection of inclusion and dignity supersedes free speech protections. Yet, there is no true conflict between the government’s inability to regulate pure speech and the requirement that the government apply its laws equally to everyone. Losing a sense of security in one’s equal standing is not the same as actually losing that standing.
July 2, 2012 at 4:24 pm
Posted in: First Amendment
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The ACA, Citizens United, and Unfair Public Perception of the Supreme Court
posted by Erica Goldberg
I’m thrilled to be guest blogging for Concurring Opinions for July. By mid-month, I’ll post a draft of a recently completed article on quantifying probable cause, a topic inspired by my April guest blogging stint. In the meantime, I’d like to add my reaction to Thursday’s epic Supreme Court decision upholding the Affordable Care Act, with a focus on judicial legitimacy.
I am quite pleased with the commentary on the Supreme Court’s Affordable Care Act decision, from commentators on
the left and on the right. I am greatly disturbed, however, by the intractable cynicism about the Supreme Court that has gripped the public. The belief that Justices decide cases largely due to their own politics, I submit, actually enables Justices to do so, leading to a vicious cycle.
The attached poster, which has been circulated widely, urges voters to re-elect President Obama so that the Supreme Court can overturn Citizens United, which invalidated laws restricting the ability of corporations, nonprofits, and unions to engage in certain forms of political advocacy during elections. Whatever your opinion of Citizens United, reducing that case’s holding to a three-word declaration that “corporations are people” is simplistic and misleading. Citizens United refused to allow corporate expenditures on speech to be hampered based on the identity (or corporate status) of the speaker. Even Justice Stevens’ dissent acknowledged that corporations receive First Amendment protections in certain situations. The poster’s results-oriented, un-nuanced view of the case is irresponsible.
I could dismiss the poster as political pandering, but “corporations are people” seems to be what a significant portion of the public thinks that Citizens United decided. They also believe it was decided this way based on five Justices’ favoritism of corporations and antipathy towards campaign finance reform. I believe that the media is partially to blame for the public’s conflation of the results of a case with the political biases of the Justices. Articles discussing politically-charged Supreme Court cases often attribute the outcome of a case to the Justices as if the reasoning/procedural posture is secondary, and as if no Justice ever voted to invalidate a statute that he favored or uphold a statute that she abhorred. Just look at United States v. Alvarez, issued on the same day as the Affordable Care Act was deemed a tax. Surely six Justices are not in favor of individuals falsely claiming to be decorated soldiers, yet they invalidated a statute criminalizing such lies.
June 30, 2012 at 3:27 pm
Posted in: Constitutional Law, Jurisprudence
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On the Intersection of Speech and Politics
posted by Erica Goldberg
This will be my last post guest blogging on Concurring Opinions; I am so grateful for the experience.
Almost everyone agrees that university campuses should be bastions of free speech. Fervent disagreement, however, exists just below the surface of that statement. Depending on how values are prioritized, individuals may differ on when speech becomes harassment, when speech becomes punishable conduct, and when speech is too controversial, extreme, or offensive to be permitted in the classroom. What are your first (and then your second, and third) thoughts when you hear about a UC Santa Barbara professor who emailed his students graphic photographs comparing Holocaust victims to Palestinians in Gaza? Or, what is your reaction to students in a Yale fraternity, as part of an initiation, chanting “No means yes, yes means anal” while marching around campus. Do your views change when you hear about Georgetown University denying official recognition to a pro-choice student organization because of its Catholic and Jesuit tradition?
Prior to joining Penn State Law as a Visiting Assistant Professor, I worked at the Foundation for Individual Rights in Education, an organization that spoke out against the three universities that sought to punish the UCSB professor and the Yale fraternity, and refused recognition to the H*yas for Choice. (The asterisk is because Georgetown will not permit the group to attach the term Hoyas to its name.) While at FIRE, I, a committed feminist, personally argued that the Yale fraternity’s chants did not constitute actionable harassment. Although Yale, like Georgetown, is a private university, both promise their students free speech rights.
I was constantly disheartened that FIRE was labeled as partisan, because it indicates how many people connect the speech they seek to protect to their own political beliefs and assume that others do the same. When FIRE staffers write columns on The Huffington Post, the organization is accused of being liberal. In most other circumstances, FIRE is dismissed as a conservative mouthpiece, because much of the speech that is censored on campuses is viewed as more harmonious with conservative causes.
April 26, 2012 at 5:43 pm
Posted in: First Amendment
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Where Have All Our Fourth Amendment Rights Gone?
posted by Erica Goldberg
The Supreme Court will decide on Friday whether to review Virginia v. Banks, a case that could potentially expand the “exigent circumstances” exception to the warrant requirement of the Fourth Amendment. The Supreme Court could also use this case as a vehicle to further limit the exclusionary rule, which precludes admission of the fruits of Fourth Amendment violations into evidence at trial. The Virginia Court of Appeals held that police cannot use evidence found in a suspect’s jacket, grabbed by police with the intention of keeping him warm after arresting him in his home, when they have no warrant or other constitutional reason to search and seize the jacket. I fear that the Supreme Court, following its trend of eviscerating our Fourth Amendment rights, will find a way for courts to admit into evidence the gun found in Mr. Banks’s jacket.
I’ve been pondering some Hamlet-like questions. Is it better for the Court to candidly admit that it wants to tie Fourth Amendment violations solely to police bad faith, and thus undo many applications of the exclusionary rule that apply regardless of the officer’s intentions (this is where the Court seems to be going, unfortunately), or is it better for the Court to slowly chip away at Fourth Amendment rights? It’s hard to see how this case presents a true exigency, but instead of frankly announcing that the exclusionary rule applies only in cases of bad faith by the police, the Court may squeeze Banks into the exigent circumstances exception. More of our Fourth Amendment rights will remain in the latter scenario, because the Court won’t invalidate the exclusionary rule jurisprudence, but the doctrine will be disingenuous and incoherent. And, is it better to have Fourth Amendment rights that cannot be enforced through the exclusionary rule than never to have any Fourth Amendment rights at all? Maybe we should incentivize police officers, by not applying the exclusionary rule, to perform nice gestures like grabbing a suspect’s coat (without permission from the suspect). To exclude or not to exclude: that is the question.
April 24, 2012 at 7:20 pm
Posted in: Constitutional Law, Criminal Procedure
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Drug Sniffing Dogs and Quantifying Probable Cause, Redux
posted by Erica Goldberg
My first post on the reliability of drug detection dogs was linked to by EvidenceProf Blog, where Colin Miller makes an excellent point about why quantifying probable cause may be more feasible than quantifying proof beyond a reasonable doubt. Although an artificial imposition of a numeric value on the proof beyond a reasonable doubt standard will likely confuse jurors, writes Miller, we believe in many contexts that judges are better equipped to navigate complex evidentiary matters.
Since judges- not jurors- decide whether probable cause justifies a particular search, quantifying probable cause might not unearth such a parade of horribles, the fear of which has imprisoned the probable cause standard in fuzziness for so long. We may need to quantify probable cause to decide if a positive alert by a drug sniffing dog gives the police enough suspicion to conduct a full search of a person’s car, or suitcase, or of the person’s person.
Let me be clear. I am not arguing (at least for now) that every probable cause determination should be calculated according to a mathematical algorithm where the evidence has to yield a certain likelihood of criminal behavior (40%?, 50%?, 51%?) before probable cause is satisfied. However, if the Supreme Court affirms the Florida Supreme Court’s holding that evidence of a dog’s false positive rate must be admitted as part of the probable cause inquiry, courts will have to grapple with some quantification of probable cause. Unless the Supreme Court decides that a positive alert by a drug detection dog is never, on its own, sufficient to establish probable cause, courts will confront situations where a dog’s positive alert is the sole reason to suspect someone of possessing drugs. This could occur at an airport, or at a drunk driving checkpoint, or anywhere where drug dogs are permitted to routinely sniff individuals without suspicion. In that case, courts will have to decide if the dog sniff alone is sufficient to establish probable cause.
April 23, 2012 at 3:04 pm
Posted in: Constitutional Law, Criminal Law, Criminal Procedure
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After a Year of Teaching
posted by Erica Goldberg
Yesterday began the last week of my first year of teaching. I taught Civil Procedure and Criminal Procedure as a Visiting Assistant Professor, so a colleague dubbed me the “Pro Prof.” There is still so much more to understand about becoming a challenging, inspiring, and effective professor, but I doubt I’ll learn in any other year the amount I learned in these two semesters. So, for the purpose of comparing notes with other professors, here are a few reflections accumulated after a thoroughly enjoyable year of professing.
1. Teaching is about balance. It’s necessary to find the optimal balance of informality (students tend to participate more and have more fun in a relaxed learning environment) with authority. There’s a balance of writing out notes but not wedding yourself to them. I also had to balance making deliberate choices about the kind of professor I wanted to be (modeling humbly after my law school professors) with the inevitable facts about who I am. When you speak for 1.5 hours in front of a classroom, your actual personality inevitably emerges. It turns out, I’ll never be as tough as Professor Kingsfield, but I can force myself to look disapproving if a student’s cell phone accidentally rings during class, and I can challenge students through my fervent, yet compassionate, Socratic questioning.
2. What excites the students will surprise you. It takes a few weeks with a new class to learn which types of questions, and which ways of phrasing/posing questions, will promote the best classroom discussions. Just because I am interested in the theories behind each rule of Civil Procedure doesn’t mean my students wouldn’t rather discuss whether a plaintiff can aggregate the claims of conjoined twins to meet the amount in controversy (this was an actual hypothetical a student posed in my class). That said, don’t give up on trying to get the students to come around to what excites you about the law.
April 17, 2012 at 6:49 pm
Posted in: Teaching
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Bloggers v. Bloggers
posted by Erica Goldberg
I’m truly stumped by this one. On the one hand, there is no better test of a free speech enthusiast’s commitment to principle than a case where a self-proclaimed “journalist” harasses bloggers by creating websites to ruin their Internet footprints. On the other hand, when the tactics of an individual are so corrosive to the free exchange of ideas, can they really be called speech?
A $2.5 million judgment was awarded against Crystal Cox for defamation after she allegedly purposely destroyed the reputation of Obsidian Financial Group, LLC and its firm principal Kevin Padrick. She’s also targeted popular blogger Marc Randazza (and his daughter), creating websites to affect their Google footprints, then offering her services to undo the reputational harms that she has perpetrated.
Because most of what Cox wrote was too hyperbolic and subjective to give rise to a defamation suit, Cox was sued only for a blog post with specific statements that Padrick and Obsidian committed fraud. Cox claims to have a source for these statements, but she was not able to prove their veracity. Under Oregon’s libel laws, media persons do not have to reveal their sources, and plaintiffs seeking presumed damages against journalists must prove that statements were made with “actual malice.” However, according to the district court, Cox is not a media person. She has no journalistic credentials, does not engage in fact-checking and other techniques of journalists, and does not contact the “other side” to get multiple perspectives on a story.
April 15, 2012 at 3:19 pm
Posted in: First Amendment
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While the Court Takes on the ACA, America Takes on “Judicial Activism”
posted by Erica Goldberg
Whatever the Court decides with respect to the constitutionality of the Affordable Care Act, it will be a loss for all of us. It will more intensely polarize liberals and conservatives, pit the executive branch against certain members of the judiciary, and create more cynicism about the Court’s decisionmaking process. However, one excellent outcome of the Court hearing this case is that it has us talking more intelligently about “judicial activism” and when we can appropriately launch that criticism. Judicial activism has for too long been used in an entirely self-serving, activist way.
Jon Stewart, in a fairly fair and balanced take on the ACA, exposed both liberals’ and conservatives’ flip flopping on when they think it’s acceptable for the Court to override the democratic process. Orin Kerr, at The Volokh Conspiracy, has a great piece on the many meanings of judicial activism. This term has plagued our country since before the Warren Court, and a consistent understanding of its meaning would both help us more rigorously critique the Court and give us more sympathy for the Court’s rulings.
The debate on judicial activism also benefits us by forcing us to account for our own judicial philosophies. The one thing I’d like to add to the discussion is a rudimentary solution. If the real problem is “rulings based on personal or political considerations,” why not ask judges to account for their judicial philosophies? There are a number of reasonable ways to interpret the Constitution – evolving notions of liberty, textualism, original public meaning, purposivism, or some wacky combination. If each Justice, in some way, propounded his or her own results-neutral approach to the Constitution and was held accountable to it (not in any legal way, but socially accountable), we could feel more secure in knowing that the decisions are based on each Justice’s approach to the Constitution that is more abstract than the Justice’s personal politics in a particular case. Even if any judicial philosophy is political at some level of abstraction- for instance, favoring personal liberty over economic liberty because of a general view that the Constitution favors non-economic freedoms- the Justices would at least have to adhere to that philosophy. We wouldn’t have the problem of conservative Justices all of a sudden wanting to expand the Commerce Clause when marijuana is at issue.
Adhering to one’s neutral philosophy is challenging. Justices must also factor in precedent, and judicial philosophies are a complicated algorithm that may and should change over time. But I’d like to know how Justice Kennedy intends to decide on the constitutionality of the ACA, and I’d feel more secure about the legitimacy of the Court if he had a fairly well articulated view (outside of his rationale in any individual opinion) of how much deference he gives to precedent, how he approaches the Commerce Clause, etc. This may be asking too much of Justices, but we’re already asking them to decide the fate of most of our rights. (I know Justice Scalia has a well-articulated view of constitutional interpretation, and I know he doesn’t follow it in inconvenient cases, and we all chastise him for this. We also applaud him when he renders results that oppose his personal politics, as in free speech and criminal procedure cases. I’d like to see this process happen for all of the Justices.)
April 10, 2012 at 11:05 am
Posted in: Constitutional Law
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Rules v. Standards Across Constitutional Rights
posted by Erica Goldberg
I’ll admit my bias: I desire for the law to be clear and elegant. In law school, I preferred rules over standards (this has relaxed somewhat with age). Part of what drew me to the legal academy was the opportunity to produce scholarship that closes logical loopholes in jurisprudence, unifies inconsistent doctrines, and harmonizes precedent. At the margins, I’d often rather the law be more clear than more “correct.”
This bias may stem from an innate personality attribute (some of us are foxes and some are hedgehogs), or a belief that clarity promotes the rule of law. It is also likely that my initial area of interest and scholarship, First Amendment law, influenced my approach. An abundance of fact-bound inquiries and totality of the circumstances tests would eviscerate the spirit of free speech protected by the Amendment. First Amendment law is not without its balancing, but most of us have internalized the idea that judges are not generally permitted to decide which speech of private citizens has value and which speech does not. The First Amendment reflects a deep fear that those in power will dictate community values. Clear rules are necessary to prevent corruption of the doctrine, and the slope is considered very slippery. These clear rules are what led eight Justices on the Supreme Court to decide that the Westboro Baptist Church has the right to spew their simultaneously incoherent and pointedly hateful message, and for the same eight Justices to hold that depictions of animal cruelty are protected speech. These rules are why we can burn the flag as symbolic speech.
In teaching Criminal Procedure, I have repeatedly been struck by the fact that this sort of clarity is sorely lacking from cases concerning restrictions on criminal prosecution. It’s easy to come up with hypos for Crim Pro, because it’s so often unclear how a new fact pattern will be decided by the Court. Do suspected terrorists deserve their Miranda rights? Surely, they do. Miranda was intended as a bright-line test for suspects receiving custodial interrogation. Yet, somehow, both Senator McCain and the Obama administration feel that the decidedly narrow public-safety exception to Miranda may apply to this entire class of people.
April 3, 2012 at 11:18 am
Posted in: Constitutional Law, Criminal Procedure, Uncategorized
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The Reliability of Drug Sniffing Dogs
posted by Erica Goldberg
Of the many things that make my Criminal Procedure students cynical about the Supreme Court, perhaps the most frustrating is that the Court has refused to quantify the probable cause standard. The Supreme Court’s grant of certiorari last week in Florida v. Harris gives the Court the perfect opportunity to at least place probable cause within some numerical band.
Harris is a particularly good vehicle for making the probable cause standard less fuzzy. In Harris, the Florida Supreme Court confronted the issue of when a dog’s positive alert gives the police probable cause to search a vehicle. Unlike in most assessments of probable cause, which involve informants or suspicious seeming individuals, police have data that quantifies the accuracy of drug sniffing dogs. A dog’s field history includes its rate of false positives, when a dog alerts to the smell of drugs that are not actually present in the vehicle. The Florida Supreme Court held that a dog’s field history must be introduced as part of the probable cause inquiry. If the lower court’s opinion is upheld, the Supreme Court should tell us what sort of false positive rate is too unreliable to permit a full search of a car.
Courts consistently and expressly eschew technical conceptions of probable cause in order to provide police officers with flexibility to exercise their judgment in unfolding situations. In addition, courts focus on whether an officer has a reasonable belief that a suspect has committed or is committing a crime. This metric allows for probable cause to be found in situations where one reasonable officer might assess an 80% likelihood that a suspect is driving drunk, for example, even if another reasonable officer might think there is only a 40% likelihood. We might be tempted to assume the courts require that a reasonable officer be able to believe a crime has been committed by greater than a 50% likelihood, but this has not been made explicit. All officers must prove to a court assessing a vehicle search is a reasonable ground for belief of guilt. Further, when a court is making a probable cause determination for itself in determining if a warrant should issue, it must decide only if there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” What is a fair probability?
In the context of drug detection dogs, where we have actual data on reliability, assigning a numerical value to probable cause — or at least to the maximum false positive percentage upon which an officer can rely — would add much needed clarity to Fourth Amendment law. It also does not undermine police officers’ ability to use their intuition, because the event precipitating a search is not an officer’s informed judgment, but the alert from a dog.
April 1, 2012 at 12:16 pm
Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Uncategorized
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