Category: Courts

0

Stanford Law Review, 64.2 (2012)

Stanford Law Review

Volume 64 • Issue 2 • February 2012

Articles
National Security Federalism in the Age of Terror
Matthew C. Waxman
64 Stan. L. Rev. 289

Incriminating Thoughts
Nita A. Farahany
64 Stan. L. Rev. 351

Elective Shareholder Liability
Peter Conti-Brown
64 Stan. L. Rev. 409

Note
Harrington’s Wake:
Unanswered Questions on AEDPA’s Application to Summary Dispositions

Matthew Seligman
64 Stan. L. Rev. 469

Comment
Boumediene Applied Badly:
The Extraterritorial Constitution After Al Maqaleh v. Gates

Saurav Ghosh
64 Stan. L. Rev. 507

2

Stanford Law Review Online: Physical and Regulatory Takings

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Richard A. Epstein entitled Physical and Regulatory Takings: One Distinction Too Many. In light of Harmon v. Kimmel—a case challenging New York’s rent control statute on petition to the Supreme Court—Epstein provides a succinct economic takedown of uncompensated regulatory takings in four distinct areas: rent control, support easements, zoning, and landmark preservation statutes. In suggesting a unified approach to eminent domain whether the taking is physical or regulatory, he writes:

Unfortunately, modern takings law is in vast disarray because the Supreme Court deals incorrectly with divided interests under the Takings Clause of the Fifth Amendment, which reads: “nor shall private property be taken for public use, without just compensation.” The Supreme Court’s regnant distinction in this area is between physical and regulatory takings. In a physical taking, the government, or some private party authorized by the government, occupies private land in whole or in part. In the case of a per se physical taking, the government must pay the landowner full compensation for the value of the land occupied. Regulatory takings, in contrast, leave landowners in possession, but subject them to restrictions on the ability to use, develop, or dispose of the land. Under current law, regulatory takings are only compensable when the government cannot show some social justification, broadly conceived, for its imposition.

Thus, under current takings law, a physical occupation with trivial economic consequences gets full compensation. In contrast, major regulatory initiatives rarely require a penny in compensation for millions of dollars in economic losses. . . .

The judicial application of takings law to these four different partial interests in land thus destroys the social value created by private transactions that create multiple interests in land. The unprincipled line between occupation and regulation is then quickly manipulated to put rent control, mineral rights, and air rights in the wrong category, where the weak level of protection against regulatory takings encourages excessive government activity. The entire package lets complex legal rules generate the high administrative costs needed to run an indefensible and wasteful system. There are no partial measures that can fix this level of disarray. There is no intellectual warrant for making the categorical distinction between physical and regulatory takings, so that distinction should be abolished. A unified framework should be applied to both cases, where in each case the key question is whether the compensation afforded equals or exceeds the value of the property interest taken. The greatest virtue of this distinction lies not in how it resolves individual cases before the courts. Rather, it lies in blocking the adoption of multiple, mischievous initiatives that should not have been enacted into law in the first place. But in the interim, much work remains to be done. A much-needed first step down that road depends on the Supreme Court granting certiorari in Harmon v. Kimmel.

Read the full article, Physical and Regulatory Takings: One Distinction Too Many by Richard A. Epstein, at the Stanford Law Review Online.

3

Openings

Sometimes, opening sentences tell you exactly what you need to know about what’s to follow.  That’s certainly true of literature.  Consider the beginning of Fyodor Dostoevsky’s Notes From Underground (translation Richard Pevear and Larissa Volokhonsky): “I am a sick man . . . I am a wicked man.  An unattractive man.  I think my liver hurts.”  Genius, really.  And this notion is definitely true of opinions.  Take, as an example, Wal-mart Stores v. Dukes: “We are presented with one of the most expansive class actions ever.”  Justice Scalia, from the get go, made clear that the class was doomed.  I imagine that readers have other humdingers of beginnings, do tell.

4

Civil Trial Judge Excesses and Leo Strine’s AIG Slur

Should civil trial courts describe the pleadings alleging wrongdoing in criminal terms? In reading large numbers of opinions in corporate cases over the years, I can recall only one judge who did so.  The judge was Leo Strine, an otherwise-obscure figure known among corporate law devotees because of his seat on the Delaware court that hears many business disputes among corporate interests.

In a shareholder lawsuit, Strine was evaluating whether the plaintiffs’ lawyers had alleged a link between their general claim that a corporation lacked adequate internal controls and their further claim that two corporate directors, in particular, knew of this.  Strine acknowledged that making the link between a general failure of internal control and someone’s personal knowledge, and therefore culpability, requires a fair amount of detailed specifics.  The defendants had challenged the plaintiff’s complaint as deficient in this regard.  Strine then wrote the following (the snide style appears in the original, as I am quoting this literally):

“But here? Really? The Complaint fairly supports the assertion that AIG’s Inner Circle led a—and I use this term with knowledge of its strength—criminal organization.”

The prejudicial quality of this calculated and intemperate statement is obvious. It was also gratuitous, because it is beyond the relevant jurisdiction, experience and pleadings.  According to lawyers and participants in the case, the statement crystalized Strine’s biased attitude throughout the case and others he oversaw involving the same people.  All arose out of the corporate power struggle of March 2005 in which the board of American International Group, under pressure from Eliot Spitzter, ousted Hank Greenberg, its chairman and chief executive of forty years (and leader of what Strine maliciously called the “Inner Circle”).

In addition to being substantively inflammatory, Strine’s gratuitous comment was dangerous because of its timing. Strine published that statement in February 2009, in a case that was trivial in terms of the stakes for Greenberg.  It was just four months before a civil trial would begin in New York federal court where Greenberg fought his former company over $20 billion worth of property. 

As it turned out, Greenberg won the $20 billion case, following a three-week jury trial, though the jury deliberated for only half a day and the judge, Jed Rakoff, said the plaintiffs did not come close to making out a case. Even so, Strine’s reckless comments could have biased those jurors too.  Strine should not have written those words.  It would have sufficed to say the pleadings met the required standard.  He should expunge the invective from the record or at least apologize for it.  Strine would also do well generally to abandon the snide, malicious, gratuitous style of writing on display in this opinion, which is injudicious and unbecoming.

The case was In re American International Group Shareholders’ Derivative Litigation, 965 A.2d 673 (Strine, Delaware Chancery, February 10, 2009).

3

Stanford Law Review Online: The Ninth Circuit’s Perry Decision and the Constitutional Politics of Marriage Equality

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Yale’s William N. Eskridge Jr. entitled The Ninth Circuit’s Perry Decision and the Constitutional Politics of Marriage Equality. Eskridge provides an accessible summary of the opinion and defends the judgment against detractors who claim it went too far—or didn’t go far enough:

In the blogosphere, Judge Reinhardt’s Perry opinion has come under heavier fire from commentators favoring marriage equality than from those opposed to equality. Some gay-friendly commentators have lamented that the Ninth Circuit did not announce a general right of lesbian and gay couples to marry all over the country and have criticized the court’s narrow reasoning as “dishonest,” analytically “wobbly,” and “disingenuous.” In my view, the court got it right, as a matter of law and as a matter of constitutional politics.

Start with the role of federal courts of appeals in our rule of law system: their role is a limited one, a point these pro-gay commentators have neglected. Such courts (1) are supposed to address the particular factual context presented by the parties, (2) must follow the binding precedent of their own circuit and of the Supreme Court, and (3) ought usually to choose narrow rather than broad grounds for decision. Judge Reinhardt’s Perry opinion is exemplary along all three dimensions. . . .

Should Judge Reinhardt have gone further, to rule that lesbian and gay couples in all states enjoy a “fundamental” right to marry, resulting in strict scrutiny that would be fatal to the exclusion of such couples in the laws of the more than forty states now denying marriage equality? For two decades, I have maintained that the Constitution does assure lesbian and gay couples such a fundamental right. But I am not a court of intermediate appeal. As such a court, the Ninth Circuit panel was right, as a matter of standard legal practice, not to engage this broader argument.

He concludes:

Marriage equality is an idea whose time has come for California, as well as for New York, whose legislature recognized marriage equality last year. But has its time come everywhere in the country? I fear not. The nation’s constitutional culture is much more accepting of lesbian and gay couples today than at the turn of the millennium, but much of the country is still hostile to gay people generally and marriage equality in particular.

Does that mean the Ninth Circuit and the Supreme Court should cower behind a constitutional heckler’s veto? Of course not. But when the hecklers are the bulk of the audience, the constitutional speaker needs to tread more carefully. Courts can help put an issue on the public law agenda, and they can channel discourse into productive directions. They can also help create conditions for falsification of stereotypes and prejudice-driven arguments, such as the canard that gay marriage will undermine “traditional” marriage. But courts cannot create a national consensus on as issue about which “We the People” are not at rest. And nationally, the people are not at rest.

In the United States, as a whole, marriage equality is an idea whose time is coming. And Judge Reinhardt’s decision in Perry v. Brown advances the ball just a little, and not too much.

Read the full article, The Ninth Circuit’s Perry Decision and the Constitutional Politics of Marriage Equality by William N. Eskridge Jr., at the Stanford Law Review Online.

1

Did Spitzer and Levitt Stoke the Financial Crisis?

Many are to blame for the financial crisis and plenty of reports and analyses have been written detailing assorted causes and assigning responsibility.  Overlooked in accepted versions of events are two fateful decisions and their context: Eliot Spitzer’s overzealous drive to oust Hank Greenberg from heading AIG, and Arthur Levitt’s governance reforms implemented at AIG shortly thereafter.

The ouster of Greenberg and transformation of AIG are pivotal events because before the ouster and reforms, AIG wrote few of the credit default swaps that became the centerpiece of the crisis, but wrote increasingly risky and unhedged swaps thereafter.  Many informed people consider it extremely unlikely or nearly impossible to imagine that, had AIG still been run by Greenberg under its traditional governance structures, the swap business at AIG could have gotten so out of hand. 

In that telling, Spitzer’s aggressive tactics to have Greenberg ousted and Levitt’s ambitious reforms were at least indirect contributing causes of the crisis and its severity.  The actions and ideas therefore deserve greater scrutiny than they have been given.  

In Spitzer’s case, it’s important to highlight how he took many steps that were at least dubious as a matter of prosecutorial ethics; in Levitt’s case, the reforms were extreme departures from traditional corporate governance. Potential lessons include the importance of prosecutors not overstepping their bounds and the value of adhering to some traditions in the development of corporate governance. Read More

0

Personhood to artificial agents: Some ramifications

Thank you, Samir Chopra and Lawrence White for writing this extremely thought-provoking book! Like Sonia Katyal, I too am particularly fascinated by the last chapter – personhood for artificial agents. The authors have done a wonderful job of explaining the legal constructs that have defined, and continue to define the notion of according legal personality to artificial agents.

The authors argue that “dependent” legal personality, which has already been accorded to entities such as corporations, temples and ships in some cases, could be easily extended to cover artificial agents. On the other hand,  the argument for according  “independent” legal personality to artificial agents is much more tenuous. Many (legal) arguments and theories exist which are strong  impediments to according such status. The authors categorize these impediments as competencies (being sui juris, having a sensitivity to legal obligations, susceptibility to punishment, capability for contract formation, and property ownership and economic capacity) and philosophical objections (i.e. artificial agents do not possess Free Will, do not enjoy autonomy, or possess a moral sense, and  do not have clearly defined identities), and then argue how they might be overcome legally.

Notwithstanding their conclusion that the courts may be unable or unwilling to take more than a piecemeal approach to extending constitutional protections to artificial agents, it seems clear to me the accordance of legal personality – both dependent and, to a lesser extent  independent, is not too far into the future. In fact, the aftermath of  Gillick v West Norfolk and Wisbech Area Health Authority has shown that various courts have gradually come to accept that dependent minors “gradually develop their mental faculties,” and thus can be entitled to make certain “decisions in the medical sphere.”

We can extend this argument to artificial agents which are no longer just programmed expert systems, but have gradually evolved into being self-correcting, learning and reasoning systems, much like children and some animals. We already know that even small children exhibit these notions. So do chimpanzees and other primates. Stephen Wise has argued that some animals meet the “legal personhood” criteria, and should therefore be accorded rights and protections. The Nonhuman Rights Project  founded by Wise is actively fighting for legal rights for non-human species. As these legal moves evolve and shape common law, the question arises as to when (not if)  artificial agents will develop notions of “self,” “morals” and “fairness,” and thus on that basis be accorded legal personhood status?

And  when that situation arrives, what are the ramifications that we should further consider? I believe that three main “rights” that would have to be considered are: Reproduction, Representation, and Termination. We already know that artificial agents (and Artificial Life) can replicate themselves and “teach” the newly created agents. Self-perpetuation can also be considered to be a form of representation. We also know that under certain well defined conditions, these entities can self-destruct or cease to operate. But will these aspects gain the status of rights accorded to artificial agents?

These questions lead me to the issues which I personally find fascinating: end-of-life decisions extended to artificial agents. For instance, what would be the role of aging agents of inferior capabilities that nevertheless exist in a vast global network?  What about malevolent agents? When, for instance, would it be appropriate to terminate an artificial agent?  What would be the laws that would handle situations like this, and how would such laws be framed? While these questions seem far-fetched, we are already at a point where numerous viruses and “bots” pervade the global information networks, learn, perpetuate, “reason,” make decisions, and continue to extend their lives and their capacity to affect our existence as we know it. So who would be the final arbiter of end-of-life decisions in such cases? In fact, once artificial agents evolve and gain personhood rights, would it not be conceivable that we would have non-human judges in the courts?

Are these scenarios too far away for us to worry about, or close enough? I wonder…

-Ramesh Subramanian

0

Stanford Law Review, 64.1 (2012)

Stanford Law Review

Volume 64 • Issue 1 • January 2012

Articles
The Right Not to Keep or Bear Arms
Joseph Blocher
64 Stan. L. Rev. 1

The Ghost That Slayed the Mandate
Kevin C. Walsh
64 Stan. L. Rev. 55

State Sovereign Standing:
Often Overlooked, but Not Forgotten

Kenneth T. Cuccinelli, II, E. Duncan Getchell, Jr.
& Wesley G. Russell, Jr.
64 Stan. L. Rev. 89

Establishing Official Islam?
The Law and Strategy of Counter-Radicalization

Samuel J. Rascoff
64 Stan. L. Rev. 125

Lobbying, Rent-Seeking, and the Constitution
Richard L. Hasen
64 Stan. L. Rev. 191

Note
Bringing a Judicial Takings Claim
Josh Patashnik
64 Stan. L. Rev. 255

9

Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read More

1

Stanford Law Review Online: How to Reach the Constitutional Question in the Health Care Cases

Stanford Law Review

In a Note just published by the Stanford Law Review Online, Daniel J. Hemel discusses a jurisdictional issue that might delay a ruling by the Supreme Court on the constitutionality of the Patient Protection and Affordable Care Act, and a novel way in which the Solicitor General could bypass that hurdle. In How to Reach the Constitutional Question in the Health Care Cases, he writes:

Although the Supreme Court has agreed to hear three suits challenging the 2010 health care reform legislation, it is not at all clear that the Court will resolve the constitutional questions at stake in those cases. Rather, the Justices may decide that a Reconstruction-era statute, the Tax Anti-Injunction Act (TA-IA), requires them to defer a ruling on the merits of the constitutional challenges until 2015 at the earliest. . . . Fortunately (at least for those who favor a quick resolution to the constitutional questions at stake in the health care litigation), there is a way for the Solicitor General to bypass the TA-IA bar—even if one agrees with the interpretation of the TA-IA adopted by the Fourth Circuit and Judge Kavanaugh. Specifically, the Solicitor General can initiate an action against one or more of the fourteen states that have announced their intention to resist enforcement of the health care law, and he can bring this action directly in the Supreme Court under the Court’s original jurisdiction. Such an action would be a suit for the purpose of facilitating—not restraining—the enforcement of the health care law. Thus, it would open up an avenue to an immediate adjudication of the constitutional challenges.

Read the full Note, How to Reach the Constitutional Question in the Health Care Cases by Daniel J. Hemel, at the Stanford Law Review Online.