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Category: General Law

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The World Dan Markel Created

dan markelThere have been such moving tributes to Dan Markel posted online that I wondered what I could add that hasn’t already been said about him. I didn’t know Dan as closely as many others, but I was fortunate to get to know him back in 2005. He was, as so many have said, one with a genuine passion for ideas.  Within the first few minutes of meeting him, Dan had already invited me to write some guest posts on his new blog, PrawfsBlawg.  I  barely knew him, but he was already cajoling me to blog as if he had known me for years.

I took him up on his offer.  As I began blogging on his site, he kept on encouraging me and sharing ideas with me.  “What do you think about this?”  “What do you think about that?” “You should write about this.”  Dan never eased in to anything, he didn’t gradually build speed.  You met him, and you’d find yourself instantly on a moving train.

I really loved blogging and stuck around PrawfsBlawg for quite a while before moving here to Concurring Opinions.  I thus owe my entry into the blogosphere to Dan.  Through Dan, and the people he brought to PrawfsBlawg, I met quite a lot of friends along the way.  When I think of the great people that Dan brought into my life — either directly or indirectly — it is quite an amazing list.

Dan had an intensity about nearly everything, especially ideas.  Typically, such intensity can push others away, but Dan’s intensity was paired with an exuberance and warmth.  I was not as closely in touch with Dan in recent years.  But whenever I saw Dan, he had a way of making me feel like we had been friends forever without any gaps.  And it was genuine — Dan really cared about people.

One of the refrains from the tributes to Dan is that he worked tirelessly to build a community.  His achievement here is something that is worth underscoring because it is so extraordinary.  The community Dan fostered was not merely a gathering of people.  It existed not just in meetings but in cyberspace too.  It encompassed junior law professors and senior ones.  It extended to scholars in a multitude of fields.  Dan’s community was one of friendship as well as one of ideas.   He was serious about academic engagement.

And what he created grew exponentially.  Our blog spun off of PrawfsBlawg, and other blogs have spun off of our blog.  Many blogs about law owe their origin in some way to Dan.   Many people were brought together because of Dan, spawning numerous co-authored works and lasting friendships.

The amount of friendships, collaborations, discussions, ideas,  and events that Dan played a role in creating is staggering.   Dan created more than just a community — he created a world.

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Our Condolences to the Family, Friends, and Colleagues of Dan Markel

We at Concurring Opinions wish to extend our condolences to the family, friends, and colleagues of Dan Markel. Dan was an extraordinary legal scholar, teacher, and blogger, as this tribute attests.  He contributed immeasurably to the legal community. His compassion, wit, insight, and camaraderie touched all of us. He will be sorely missed, and his life and work, long remembered. 

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FAN 23 (First Amendment News) — Paul Smith & Erin Murphy Debate Campaign Finance Law

Paul Smith & Erin Murphy

Paul Smith & Erin Murphy

It was quite an evening as Paul Smith and Erin Murphy went back-and-forth in a lively exchange discussing the McCutcheon case, campaign financing law, and the First Amendment. Professor David Skover moderated as the two one-time case foes — Erin represented Shaun McCutcheon & Paul filed an amicus brief on the other side — debated the pros and cons of government regulation. In his own casual, confident, and witty way, Paul pushed his views while Erin took it all in stride, always calm, cautious, and pointed. The exchange took place at the Washington, D.C. offices of Levine, Sullivan, Koch & Schulz (there was a live videocast feed to the firm’s New York office). This was the latest First Amendment salon. The discussion ranged from the technical to the philosophical as the two advocates and the discussants teased out various arguments. In the end, Smith and Murphy came together with big smiles and a firm handshake (the pair worked on the same side in the recently decided Aero case.)

Among others, the discussants included: Lee LevineBenjamin GinsbergLaura Handman, James Swanson, Joel Gora, Adam Liptak, David Savage, Jess Bravin, Stephen WermielKatherine Bolger, and Jeff Bowman (former AA to FEC Chairman Scott Thomas).

John Seigenthaler (1927-2014) – the Man Who Loved Light 

“His commitment to the First Amendment was unflagging.” Ken Paulson

“A champion of the First Amendment, giant of journalism,  and a wonderful human being.”              – Judy Woodruff 

We lost John Seigenthaler last week — he was 86. I was privileged to have worked with John while I was at the Newseum’s First Amendment Center, first in Arlington, Va. and then in Washington, D.C. John founded the Center in 1991.

In a recent USA Today column, Ken Paulson (John’s friend and longtime colleague) observed:

John Seigenthaler

John Seigenthaler

“John was . . . the first editorial page editor of the then-new USA TODAY in 1982, developing the most balanced opinion pages in the country. For every USA TODAY editorial there would be a countervailing view. John embraced light instead of heat.”

“He was fueled by his passion for the First Amendment, the sense that every voice has value. He liked to tell the story of a liberal woman who found conservative radio deeply offensive. He told her ‘whenever I want to hush Rush, I turn the knob.’ With a pained expression she responded, ‘Then I get G. Gordon Liddy.’ John would roar with each retelling.”

“In 1991 John retired from his newspaper role to found the First Amendment Center. It was a role he was born to. Long an advocate for the underdog, John was a passionate champion for the five freedoms that few Americans knew much about and inevitably took for granted.”

Gene Policinski, a friend who worked with John since 1981, offered this life assessment of his colleague: “John’s passion for the First Amendment was driven by a belief in equality and in the ‘marketplace of ideas.’ He had a lifelong commitment to the idea that this nation would not just endure but would prosper if its citizens could freely discuss, debate, and decide public issues without the burden of the heavy hand of government.” (see here, too)

→ For more about John and his remarkable life, see:

High Court Agrees to Hear Sign Ordinance Case  Read More

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Teaching with Bad Court Opinions

In teaching Criminal Law, I like to use one or two cases a semester where the court opinion seems to fundamentally misunderstand a legal concept that we are discussing. I think doing so accomplishes two ends: 1) it provides a clear illustration of a common mistake students make so that they can better avoid it; and 2) shows that, particularly in criminal law, there is a high need for good lawyers and judges. I was curious if anyone else teaches using opinions that are not just flawed, but almost certainly wrong. As an example, this is an excerpt from a case (Pennsylvania v. Collins, 810 A.2d 698 (Pa. Super. Ct., 2002)) I used in teaching summer starters last month about the voluntary act requirement.

The evidence at the trial established that, on March 17, 2001, Collins agreed to pick up her friend, Megan Neff, and drive to McDonald’s to purchase a milkshake for Collins’s mother. On her way to Neff’s house, Collins stopped at a mini-market, where she encountered several acquaintances. They invited her to a party in a nearby neighborhood and Collins accepted the invitation. While at the party, Collins drank something that “tasted like fruit punch.” Fifteen minutes later, she left the party and went to Neff’s residence. Collins arrived at Neff’s house and complained that she was suffering from a headache. As the two proceeded to McDonald’s, Neff observed that Collins was not engaged in conversation. Without explanation, Collins drove past the McDonald’s and straight through five or six stop signs without stopping. Neff began to yell at Collins telling her to stop the vehicle, but Collins gave no indication that she heard Neff. Collins turned the vehicle and began to swerve into oncoming traffic. Shortly thereafter, Collins applied the brake and Neff steered the car off the road. At that point, Collins appeared to lose consciousness. When the police arrived, Collins was slumped over the steering wheel of the car. As ambulance attendants took Collins out of the vehicle, she regained consciousness and began to scream and lash out at the attendants. At the hospital, Collins’s urine sample tested positive for phencyclidine or PCP.

The Commonwealth charged Collins with Driving Under the Influence of a Controlled Substance (phencyclidine or PCP) and Failure to Comply With Duties at a Stop Sign. At the conclusion of the trial, the jury found Collins guilty of driving under the influence of a controlled substance…. Collins appealed… Collins [] asserts that the trial court should have required the Commonwealth to prove that she voluntarily ingested the controlled substance. We disagree. Section 3731 states, in pertinent part:

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined. A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances:
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(2) While under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to a degree which renders the person incapable of safe driving.

75 Pa.C.S. § 3731(a)(2). Therefore, in order to sustain a conviction under Section 3731(a)(2), the Commonwealth had to prove beyond a reasonable doubt that Collins was: (1) driving, operating or physically controlling the movement of a vehicle and (2) that while operating the vehicle, Collins was under the influence of a controlled substance to such a degree as to render her incapable of driving safely.
Collins’s arguments would require this Court to engraft an additional element–namely voluntariness–into the DUI statutory scheme. However, the statute does not make use of the terms “intentionally,” “knowingly” or “willfully.” Therefore, the Commonwealth was not required to prove that Collins’s intoxication was intentional or voluntary…. Collins also contends that the trial court’s jury instructions violated Section 301 of the Pennsylvania Crimes Code. We find this argument to be unpersuasive. Section 301 states, in pertinent part:

§ 301. Requirement of voluntary act
(a). General rule.–A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
18 Pa.C.S. § 301….

Moreover, as discussed above, the statutory language found in 75 Pa.C.S. Section 3731(a)(2) omits any reference to culpability. We interpret this omission to mean that the legislature intended Driving Under the Influence to be a strict or absolute liability offense. Therefore, we conclude that the trial court’s jury instructions did not violate the voluntary act requirement of Section 301.

In my experience, students sometimes conflate mens rea and the voluntary act requirement in cases involving intoxication (rather than separating the analysis of intoxication into actus reus and mens rea). I think the Collins case can show how that conflation happens and why it is a mistake. The Collins court dismisses the universal voluntary act requirement in Pennsylvania because the court believed the statute to be strict liability. That’s a non sequitur. And so a woman who involuntarily ingested PCP was convicted for driving under the influence of the PCP that she didn’t voluntarily consume. The case also provides a nice contrast with State v. Martin which I believe most (?) Criminal Law casebooks include in the voluntary act section. I welcome any thoughts on the using the Collins case and “bad” opinions in general as teaching tools.

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Etiquette at the State of the Union

I’m curious if anyone knows the answer to the following question.  By tradition the Justices who attend presidential speeches to a Joint Session of Congress do not applaud (or, at least, rarely do) as a sign of judicial neutrality.  When did this custom get started?  Who was the Justice who first decided that this was the appropriate practice?

Here’s a related point.  Justice John Marshall Harlan (the younger) took the position that Justices should not vote in elections as a sign of judicial neutrality.  This norm, though, never caught on (at least as far as I know).  Why?

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The Dilemma of Thomas Marshall

120px-Thomas_R._Marshall_in_his_Senate_office_croppedA theme that I’m thinking about exploring in a future work is the unsuccessful resolution of constitutional crises.  We focus on the people who raise their game at these times (the Framers, Abraham Lincoln, etc.), but perhaps we would learn more by studying folks like James Buchanan.  What was he thinking in 1860 when he did not stop secession?

The best example of this genre is Vice President Thomas Marshall, who was Woodrow Wilson’s #2 when Wilson had his stroke in 1919.  I have a soft spot for Marshall, as he was a Hoosier and is buried near where I used to live.  But he has a poor reputation, since he did not take charge when Wilson became disabled and thus allowed the country to drift at what turned out to be a crucial time (establishing a new international order after WWI).

My initial examination suggests that this account is not correct.  Marshall did lay out a path for taking over the presidency in private conversations with congressional leaders and some Cabinet members.  He said he would do so if there was some declaration by Wilson’s wife and doctor that he was disabled, and/or a joint resolution of Congress saying that the presidency was vacant.  (The “and/or” is important but unclear to me so far.)  Neither came (more on that later) and thus he felt he could not act.

In fairness, Marshall was in a tough spot.  First, Wilson’s wife and doctor did their best to conceal the truth about his health.  Second, Wilson didn’t like Marshall, thus he was less inclined to turn over power than he might have been.  Third, Marshall was concerned about setting a precedent whereby the VP and some Cabinet members could simply oust the President on health grounds.  In the absence of any law or clear guidance, his answer was actually a sensible one.  He wanted some clear (if unorthodox) institutional authority from Congress in the absence of a presidential resignation (temporary or not).  It’s worth adding that there is an allegation that opponents of the League of Nations in the Senate blocked a joint resolution because they thought their chances of defeating the Treaty of Versailles were better with a disabled Wilson in office, though I’m not sure if that is true.

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FAN 22 (First Amendment News) — New Documentary on Mr. First Amendment — Nat Hentoff

imagesPerhaps no person alive better embodies the spirit of the First Amend — robust, rebellious, free-flyin’ and straight-talking — than Nat Hentoff. Fuse the life spirit of Lenny Bruce together with that of the early Bob Dylan and add a dollop of Miles Davis’ jazz and Allen Ginsberg’s poetry and you’ll get a sense of Hentoff’s persona. There is also a Tom Paine quality about him — feisty in his defense of freedom, no matter how unpopular it makes him. Some liberals love him, some conservatives admire him, and some libertarians applaud him — but very few come along for the full Hentoff monty. And that’s the way he likes it! If you have an open mind and a tolerant side, you gotta love the guy . . . if only at a First Amendment distance.

If any of this strikes a chord in your free-speech consciousness, then check out the new documentary on Nat — The Pleasures of Being out of Step, directed by David L. Lewis. Here is a description of the documentary:

Pleasures profiles legendary jazz writer and civil libertarian Nat Hentoff, whose career tracks the greatest cultural and political movements of the last 65 years. The film is about an idea as well as a man – the idea of free expression as the defining characteristic of the individual. . . . Pleasures wraps the themes of liberty and identity around a historical narrative that stretches from the Great Depression to the Patriot Act. Brought to life by actor Andre Braugher, the narration doesn’t tell the story – it is the story, consisting entirely of writings by Hentoff and some of his subjects. With a potent mix of interviews, archival footage, photographs and music, the film employs a complex non-linear structure to engage the audience in a life of independent ideas and the creation of an enduring voice.

At the core of the film are three extraordinarily intimate interviews with Hentoff, shot by award-winning cinematographer Tom Hurwitz. The film also includes interviews with Floyd Abrams, Amiri Baraka, Stanley Crouch, Dan Morgenstern, Aryeh Neier, Karen Durbin, Margot Hentoff and John Gennari, among others. It features music by Duke Ellington, Miles Davis, John Coltrane, Bob Dylan and Charles Mingus, and never-before seen photographs of these artists and other cultural figures at the height of their powers.

 Here is the trailer.

→ Here is the bookThe Pleasures of Being Out of Step: Nat Hentoff’s Life in Journalism, Jazz and the First Amendment.

 Screenings have been in New York and are now happening on the West Coast.

Nat Hentoff on Bill Buckley's Firing Line

Nat Hentoff on Bill Buckley’s Firing Line

Hentoff Books

Some of Nat Hentoff’s books on free speech and related topics include the following:

→ As if that were not enough (and I left out all the jazz books), I gather that the 89-year-old Hentoff is working on a new book.

Video clips

See and hear the man himself on this Brian Lamb, C-SPAN (YouTube) interview with Nat (go here).

→ And go here, too, for Richard Heffner’s Open Mind interview with Nat.  (See also here for a Cato Interview)

→ One more — this is precious: The young Nat debating the young Bill Buckley on Firing Line.

Shaun McCutcheon Launches Litigation Group

The petitioner in the landmark McCutcheon v. FEC (2014) case has decided he wants to do more to further the cause of the First Amendment as he understands it. To that end, Shaun McCutcheon has launched a foundation – the Coolidge-Reagan Foundation.

→ Its purpose? “The Foundation is dedicated to defending, protecting, and advancing political speech.” Read More

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Whatever Happened to Harriet Miers?

Miers_Harriet_newpgWith Justice Alito writing the last two opinions of the Term, I was overwhelmed by a sense of curiosity about what happened to Harriet Miers–President Bush’s first pick for Justice Alito’s seat.  Turns out that after she left the Administration she went back to her old law firm–here is her firm bio.  It’s interesting that the profile does not list “Nominated to be an Associate Justice of the Supreme Court” as one of her accomplishments (after all, how many other people can say that?)

In my draft article (almost done!), I note that Justice Fortas’s ethical problems made it much harder for presidents to appoint a close advisor to the Court without getting hit with the charge of cronyism.  The Miers nomination reinforced that understanding, though she had other issues.

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Need an alternative to the third party doctrine? Look backwards, not forward. (Part I)

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In light of the renewed discussion on the future of the third party doctrine on this blog and elsewhere (much of it attributable to Riley), I’d like to focus my next couple of posts on the oft-criticized rule, with the aim of exploring a few questions that will hopefully be interesting* to readers. For the purpose of these posts, I’m assuming readers are familiar with the third party doctrine and the arguments for and against it.

I’ll start with the following question: Let’s assume the Supreme Court decides to scale back the third party doctrine.  Where in the Court’s Fourth Amendment jurisprudence should the Justices look for an alternative approach?  I think this is an interesting and important question in light of the serious debate, both in academia and on the Supreme Court, about the third party doctrine’s effect on privacy in the information age.

One answer, which may represent the conventional wisdom, is that there simply is nothing in the Supreme Court’s existing precedent that supports a departure from the Court’s all or nothing approach to Fourth Amendment rights in Smith and Miller.  According to this answer, the Court’s only choice if it wishes to “reconsider” the third party doctrine is to create new, technology specific rules that address the problems of the day.  (I’ve argued elsewhere that existing Fourth Amendment doctrine doesn’t bind the Court to rigid applications of its existing rules in the face of new technologies.)

A closer look at the Court’s Fourth Amendment jurisprudence suggests another option, however. The Supreme Court has not applied the underlying rationale from its third party doctrine cases to all forms of government intrusion.  Indeed, for almost a century the Supreme Court has been willing to depart from the all or nothing approach in another Fourth Amendment context: government searches of dwellings and homes.  As I’ll discuss below, the Supreme Court has used various tools—including the implied license rule in last year’s Jardines, the standard of “common understandings,” and the scope of consent rules in co-habitant cases—to allow homeowners, cohabitants, tenants, hotel-guests, overnight guests, and the like maintain Fourth Amendment rights against the government even though they have given third parties access to the same space.

In other words, it is both common sense and black letter law that a person can provide third parties access to his home for a particular purpose without losing all Fourth Amendment rights against government intrusion. Letting the landlord or the maid into your home for a limited purpose doesn’t necessarily give the police a license to enter without a warrant—even if the police persuade the landlord or the maid to let them in. Yet the Court has abandoned that type of nuance in the context of informational privacy, holding that sharing information with a third party means forgoing all Fourth Amendment rights against government access to that information (a principle that has eloquently been described as the “secrecy paradigm”). As many have noted, this rule has had a corrosive effect on Fourth Amendment rights in a world where sensitive information is regularly shared with third parties as a matter of course.

Why has the Court applied such a nuanced approach to Fourth Amendment rights when it comes to real property and the home, but not when it comes to informational privacy?  And have changes in technology undermined some of the rationale justifying this divergence? These are questions I’ll explore further in Part II of this post; in the meantime I’d love to hear what readers think about them. I’ll spend the rest of this post providing some additional background on the Court’s approach to privacy in the context of real property searches.

More after the jump.

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