As my facebook network mushroomed to over 300 friends I realized that the breadth of my facebook network was limiting its depth. There were things I would like to update my friends about, but did not feel like sharing with all of my fbf’s (facebook friends, not to be confused with bff’s). Thus began the unfriending experiment, or RIF (reduction in friends) [...]]]> Too many friends. This in not a problem that most of us would have considered before the phenomenon of social networking, but it is real enough that “unfriend” and the gerund form “unfriending” have not only made it into the New Oxford American Dictionary this year, “unfriend” was named the 2009 Word of the Year.

As my facebook network mushroomed to over 300 friends I realized that the breadth of my facebook network was limiting its depth. There were things I would like to update my friends about, but did not feel like sharing with all of my fbf’s (facebook friends, not to be confused with bff’s). Thus began the unfriending experiment, or RIF (reduction in friends) if you prefer.

My first approach was to unfriend everyone who I believed also had too many friends. Anyone with 800 fbf’s is simply not discerning enough for my liking, and I did not consider the fact that this lack of discernment may have been the only reason they were friends with me to be particularly redeeming. The first wave of unfriending was satisfying, but it left me wanting more (well less actually).

Next to go were professional acquaintances who did not seem to use facebook very much. Still too many friends, hard choices would need to be made. I unfriended several people that I genuinely like in the real world, but who use facebook in ways I don’t care for – the main one being to post links to their twitter feeds or blog posts.

By this stage I was down under 200 and I realized that if I nixed all of the spouses of friends I would be able to streamline even further. Old school acquaintances who I had never much cared for were the next victims of this online massacre. They probably should have been the first, but I was in a sentimental mood when I began. My unfriending mania reached its peak when I realized that I was in shooting distance of 100. Some arbitrary choices were made and all of a sudden I was down to a manageable 99 friends. Mission accomplished.

None of my unfriended friends have complained, I expect few have even noticed. I post more regularly to facebook now and read my remaining friend’s posts with more interest. In fact, I am so happy with my small circle of facebook friends that I am thinking of adding a few more.

SO, WHAT LED YOU TO WRITE THIS BOOK?

FRIEDMAN:  The proper role of judicial review has always been one of the real challenging questions in constitutional law.  The goal of most scholars has been to [...]]]> Gerard recently blogged about Barry Friedman’s exciting new book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, and lucky for us at CoOp, I had a chance to talk to Friedman about the book.  Friedman is the Vice Dean and Jacob D. Fuchsberg Professor of Law at New York University School of Law whose vast and impressive scholarship focuses on constitutional theory and judicial decisionmaking in constitutional cases.   He answered several questions about the book; I produce his remarks below.

SO, WHAT LED YOU TO WRITE THIS BOOK?

FRIEDMAN:  The proper role of judicial review has always been one of the real challenging questions in constitutional law.  The goal of most scholars has been to find a theory that reconciles judicial review with democracy, necessarily seeing the two as inconsistent.  From the time I began teaching I hoped to jump into that debate – except that I never saw the two as inconsistent.  Whether it was Planned Parenthood v. Casey, Furman v. Georgia or Bowers v. Hardwick, I saw the Court as responsive to public opinion.  As some readers of the blog no doubt know, I wrote several (infelicitously named) law review articles looking at the question of when the “counter-majoritarian difficulty” took hold.  I then read a lot of political science.  Finally I decided a book was in order.

THERE ARE A LOT OF HISTORIES OF THE SUPREME COURT, AND OF JUDICIAL REVIEW.  WHAT MAKES YOURS DIFFERENT?

FRIEDMAN:  Well, the focus of most histories is on what the Court is doing at any given time – as well as why, and what the impact is on constitutional law.  Instead of focusing on the Court, my book is about how the public responded to judicial decisions, and how the interaction between the Court and the public shaped both the institution of judicial review, and the meaning of the Constitution.

DO YOU HAVE ANY PARTICULAR INTELLECTUAL ASPIRATION FOR THE PROJECT, BESIDES TELLING THE STORY?

FRIEDMAN:  Besides selling books?   Seriously, though, my hopes depend on the audience.  I certainly would like to put to rest what has been the dominant criticism of judicial review, that it necessarily trumps majority will.  That applies both in the general public and the academy (though I’m certainly more skeptical of success in the former).  But the book differs from a lot of books in one notable respect – the theory animating the history is at the end of the book, not the beginning.  There are two reasons for that.  First, on the advice of friends I came to understand that it was easier to “get” the theory having seen all the evidence.  But more important, I intended the book to suggest a research agenda.  We’ve been asking the wrong questions about judicial review for a long time; it is an auspicious moment for legal academics and their counterparts in the social sciences to pursue some new avenues, ones I believe are more apt.CAN YOU GIVE US AN EXAMPLE?

FRIEDMAN:  Sure.  I don’t argue the Court always is in sync with public opinion, only that the public has the capacity to hold it accountable.  But we don’t know enough about the mechanisms of this, and we certainly don’t know when the Court is likely to interpret the Constitution in a way consistent with the predominant views of the community.  There certainly are areas of slack.  For example, I’m currently working on a piece about stealth overruling that gets at some of this.  Increasingly I find scholars asking questions of this sort, and if The Will of the People spurs more inquiry of that nature, I’ll be very happy.

In their article, Professors Solove and Richards propose a new theory for when civil liability for speech will trigger First Amendment protections that focuses on the nature of the government power involved.  In his response, Professor Zick critically examines the choice and meaning of power, and the boundaries that a power-defining approach would draw.

Here is what I found:

Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that [...]]]> In their Legislation casebook, William Eskridge, Philip Frickey, and Elizabeth Garrett observe that between 1984 and 2006, the Supreme Court cited the rule of lenity in just over one-fourth of its cases interpreting criminal statutes and agreed with the government’s interpretation in over 60% of those cases. I thought it would be interesting to see how those figures compare to the still-nascent Roberts Court’s cases interpreting criminal statutes. 

Here is what I found:

Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that favored the defendant. In only six of the cases did the Court reference the Rule of Lenity—four times in dissent, one time in both the plurality opinion and the concurring opinion providing the fifth vote, and one time in a concurring opinion alone.

The two justices most likely to reference the rule of lenity (i.e., who exhibited the highest rates of reference to the rule over the relevant time period) were Justices Scalia and Stevens, each of whom referenced or joined an opinion referencing the rule in four¹ of the twenty-five cases. Justice Ginsburg exhibited the next-highest rate of reference to the rule, invoking it or joining an opinion that invoked it in three² of the cases; Justice Souter invoked or joined an opinion invoking the rule in two³ of the cases, while Justices Breyer, Roberts, and Thomas did so only once.⁴ Justices Alito and Kennedy did not reference or join an opinion referencing the rule of lenity in a single case during this time period.

Upshot:  Eskridge’s, Frickey’s, and Garrett’s finding that the rule of lenity plays a role in just over one-fourth of the Court’s criminal statutory cases seems to be holding steady in the Roberts Court. The Court may be shifting ever-so-slightly to a more equal rate of interpretations that favor the government versus the defendant, though it is too early and the sample size is too small to tell. Perhaps most interestingly, the rule of lenity seems to be losing steam as an interpretive aid: In the past several Supreme Court terms, it almost always has been cited by justices in dissent—even in the fourteen cases in which the Roberts Court interpreted the statute to favor the defendant, it rarely (one time) relied on the rule of lenity to reach its result. In light of this trend, it may be worth asking whether this longstanding rule of statutory construction is nearing its deathbed?

————————————————————————————————-

1.  See James v. United States (Scalia and Stevens, dissenting); United States v. Santos (Scalia plurality opinion, Stevens concurring opinion); Begay v. United States (Scalia concurring opinion); United States v. Rodriquez (Stevens joining Souter dissenting opinion); United States v. Hayes (Scalia joining Roberts dissent); Dean v. United States (Stevens dissent).

2.  See James (joined dissent), Santos (joined plurality), Rodriquez (joined dissent).

3.  See Santos (joined plurality), Rodriquez (authored dissent).

4.  Justice Breyer authored a dissenting opinion citing the rule in Dean v. United States; Justice Roberts authored a dissenting opinion invoking the rule in Rodriquez; and Justice Thomas joined the relevant portionf of the plurality opinion in Santos.

The politics of integration are also complex.  When is integration in a neighborhood cause for celebration and when has it shaded into the dreaded gentrification?  Are poor children of color most likely to be effectively educated in opportunity rich, integrated schools or will the teachers and administrations in such schools favor kids from wealthy families with helicopter parents?  These questions are real and should be topics for debate among policy makers, researchers, community residents, and parents.   

Unfortunately, this complexity and, to an even greater extent, anxiety about even [...]]]> Most of us recognize that our society will be stronger if our students are educated in diverse settings and our neighborhoods not divided by race or ethnicity.  Yet integration in education and housing remains an elusive goal and is often seen as secondary to measurable academic achievement or affordable housing.   

The politics of integration are also complex.  When is integration in a neighborhood cause for celebration and when has it shaded into the dreaded gentrification?  Are poor children of color most likely to be effectively educated in opportunity rich, integrated schools or will the teachers and administrations in such schools favor kids from wealthy families with helicopter parents?  These questions are real and should be topics for debate among policy makers, researchers, community residents, and parents.   

Unfortunately, this complexity and, to an even greater extent, anxiety about even acknowledging race have led many to shy away from these issues.  Not everyone, though.  Over 300 people attended a conference this past week at Howard University School of Law, entitled Reaffirming the Role of School Integration in K-12 Public Education Policy: A Conversation Among Policymakers, Advocates and Educators. The conference brought together Obama administration officials, civil rights advocates and researchers, educators, and parents.  If you are interested in the discussion, you can access the live blog here.

Michael Arrington (TechCrunch Founder): “I’m worried about privacy–the companies out there gathering data on us, the stuff we do on Twitter, the publicly scrapeable stuff on Facebook.  It’s amazing how much data there is out there on us.  I’m worried that it can be abused and will be abused.”

Phil Malone (Harvard Law School, Director of Berkman Center for Internet and Society’s Cyberlaw Clinic explaining that viruses can deposit illegal pornography on unwitting individuals’ computers causing the innocent to be branded sexual deviants): “Sometimes the dog does eat your homework.”

Thanks to Time and the Washington Times.

The most significant change appears to be the narrowing of the scope of out-of-print works. The revised settlement is limited to U.S. works registered with the Copyright Office and non-U.S. works registered with the U.S. Copyright Office, or published in Canada, the United Kingdom or Australia. According to Google’s FAQ, “After hearing feedback from foreign rightsholders, the plaintiffs decided to narrow the class to include countries with a common legal heritage and similar book industry practices.” To [...]]]> On November 13, 2009, the parties in the Google Book litigation filed an Amended Settlement Agreement and a motion for preliminary approval of the amended settlement with the District Court. The amended agreement is available here. Elinor Mills at CNET has a good summary of the revised agreement.

The most significant change appears to be the narrowing of the scope of out-of-print works. The revised settlement is limited to U.S. works registered with the Copyright Office and non-U.S. works registered with the U.S. Copyright Office, or published in Canada, the United Kingdom or Australia. According to Google’s FAQ, “After hearing feedback from foreign rightsholders, the plaintiffs decided to narrow the class to include countries with a common legal heritage and similar book industry practices.” To sweeten the deal for Australia, Canada and the UK, their publishers and authors will have their own representation on the board of the rights registry which oversees the settlement.

The Financial Times reports that 95 per cent of all foreign works will no longer be included in Google’s digital book archive. Google will have to find a way of working with international rightsholder organizations to broaden the reach of their database.

As predicted, the revised agreement now includes greater protections for rights holders who cannot be traced before a book is scanned and made available online. Money derived from orphan works will be held for 10 years and unclaimed funds will now be distributed to charities in Australia, Canada, the UK and the US. Under the previous version of the Settlement, the Registry actually benefited from failing to locate the relevant copyright owners.

The agreement does not do anything to extend the orphan works license to Google’s competitors, that will still require legislative intervention. However the most favored nation clause which diminished the Registry’s incentives to deal with third parties if and when that legislation is forthcoming has been deleted from the agreement.

There are other significant changes worth mentioning, but they will have to wait for another day.

Update: Though I posted this as a quick, semi-humorous, item, SueSimp raises a good and substantive point in the comments that this case presents an example of the difficulties of [...]]]> My criminal defense attorney friends not-infrequently lament that their clients foolishly post incriminating information to facebook, twitter, myspace, etc.  But, it turns out that social networking sites can help criminal defendants too.  From New York comes news of a robbery suspect who had the charges against him dropped because of a facebook status update that gave him a rock-solid alibi.  At the time of the crime, the now-cleared Rodney Bradford was on his computer and posted the message that is the title of this post to facebook: “On the phone with this fat chick… where my IHOP.”

Update: Though I posted this as a quick, semi-humorous, item, SueSimp raises a good and substantive point in the comments that this case presents an example of the difficulties of eye-witness ID.  The suspect in this case was originally picked out of a lineup and, if not for his facebook status update, he may very well have ended up in prison on the basis of what we now know was a mistaken ID.

Headwinds to a Clean Energy Future: Nuisance Suits Against Wind Energy Projects in the United States Stephen Harland Butler

Capital Crime: How California’s Administration of the Death Penalty Violates the Eighth Amendment Sara Colón

Full Faith and Credit for Status Records: A Reconsideration of Gardiner Shawn Gebhardt

Accountability for Private Military Contractors Under the Alien Tort Statute Jenny S. Lam

Assessing California’s Hybrid Democracy Richard L. Hasen

Cornell Law Review, Volume 95 Number 1 (November 2009)

Articles

The Structural Case for Vertical Maximalism Tara Leigh Grove

Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory? Victoria Nourse & Gregory Shaffer

Essay

Evolutionary Theory and the Origin of Property Rights James E. Krier

Notes

Negative Equity and Purchase-Money Security Interests Under the Uniform Commercial Code and the BAPCPA Geoffrey M. Collins

An Uncertain Precedent: United States v. Santos and the Possibility of a Legislative Remedy Evan Ennis

I am definitely ready for a sandwich.

In a recent article, The Hidden Legacy of Holy Trinity Church:  The Unique National Institution Canon (forthcoming, 51 William & Mary Law Review __ (2009))—in which I argue that the Supreme Court quietly has employed a “unique national institution canon” to give preferential legal treatment to certain special/unique American entities (Christian churches, baseball, railroads, tobacco, Native Americans)—I [...]]]> How do canons of statutory interpretation come into being? What qualifies a court’s method of reasoning in a statutory case as a rule or canon of construction? Last week, I wrote about the Supreme Court’s use of the passive voice as an interpretive guide in two somewhat recent criminal cases. Does this mean that we now have a “passive voice” canon of statutory interpretation, at least in criminal cases?

In a recent article, The Hidden Legacy of Holy Trinity Church:  The Unique National Institution Canon (forthcoming, 51 William & Mary Law Review __ (2009))—in which I argue that the Supreme Court quietly has employed a “unique national institution canon” to give preferential legal treatment to certain special/unique American entities (Christian churches, baseball, railroads, tobacco, Native Americans)—I touch on this question of how different interpretive methodologies become canons or rules of statutory construction.

One position might be that any time the Supreme Court, as the highest court in the land, uses an interpretive methodology, that methodology becomes a rule or canon of statutory construction. This seems to be the view taken by William Eskridge, Philip Frickey, and Elizabeth Garrett in their Legislation casebook, which contains an appendix compiling “The Supreme Court’s Canons of Statutory Interpretation.” More generally, I would suggest that interpretive methodologies rise to the level of canons of statutory construction when they can lay claim to one or more of the following: (1) frequent use by the Supreme Court; (2) longevity, as when the methodology originated in English courts or long has been listed in Sutherland’s definitive treatise on Statutes and Statutory Construction;(3) grounding in some fundamental tenet of the American legal system (e.g., the Constitution); or (4) fostering consistency with longstanding judicial treatment of particular words or subject matters.

The expressio unius maxim, for example, gained its canonical status primarily through longevity—it is a Latin maxim used often by the English courts and is prominent in Sutherland’s—and also has been used frequently by the Supreme Court. The Rule of Lenity similarly derives its authority from its longevity (Justice Scalia has defended the canon on the grounds that it “is almost as old as the common law itself”) and from its basis in the fundamental constitutional due process principle that criminal laws should give fair notice of the behavior that is outlawed.  Interpretive techniques with a shorter historical pedigree, such as the whole act and whole code rules, have achieved canonical status because they promote the consistent treatment of statutory words, phrases, sections, and subject matter.  And one of the newest additions to the statutory interpretation canon, the federalism clear statement rule, earned its stature through frequent Supreme Court use coupled with a grounding in the fundamental constitutional principle of federalism.

In my view, the basic thread connecting all of these paths to canonical status is established convention. Whether their authority derives from pedigree, frequent use, constitutional authority, or precedential weight, the interpretive canons are treated as such because they are believed to reflect rules or norms with which legislators are familiar. The “canons” are given special status, rather than treated as ordinary legal argument styles or logical inferences, because they (are believed to) reflect the background understandings against which legislators draft statutory language and against which judges, lawyers, and those affected by a statute are meant to read that language.

By this reasoning, the Court need not label an interpretive methodology a “canon” of statutory interpretation for it to be considered such. Indeed, the Supreme Court routinely relies on well-known canons such as the “dog that didn’t bark” canon, the expressio unius maxim, and the whole act rule without identifying the canon on which it is relying, or even indicating that the argument it is making is based on an established canon of construction.   See, e.g., Scheidler v. N.O.W., 547 U.S. 9, 20 (2006) (dog that didn’t bark); Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Ed., 550 U.S. 81, 88 (2007) (dog that didn’t bark); Rowe v. New Hampshire Motor Transport Ass’n, 128 S.Ct. 989, 997 (2008) (expressio unius); Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 298 (2006) (expressio unius);  LaRue v. DeWolff, Boberg & Assocs., Inc., 128 S.Ct. 1020, 1025-26 (2008) (whole act rule); Hinck v. United States, 550 U.S. 501, 506 (2007) (whole act rule).  Thus, I submit that the nature and extent of the Supreme Court’s reliance on particular interpretive methodologies—rather than its act of giving a label to the methodology it is using—should drive our analysis of whether an interpretive methodology rises to the level of an established rule or canon of statutory construction.

Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

Kurt Lash, James P. Bradley Chair of Constitutional Law, Loyola Law School; Author, The Origins of the Privileges or Immunities Clause (Georgetown Law Journal, forthcoming)

David Gans, Program Director, Constitutional Accountability Center; Author, The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment

This event is open to the public and sponsored by The Georgetown Law Journal, the Georgetown Law chapters of the American Constitution Society for Law and Policy and the Federalist Society for Law & Public Policy Studies, and the Georgetown Law Militia.

Friday, November 13, 2009, 12:30 [...]]]> Alan Gura, Partner, Gura & Possessky, PLLC; Lead Counsel, District of Columbia v. Heller; Lead Counsel, McDonald v. Chicago

Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

Kurt Lash, James P. Bradley Chair of Constitutional Law, Loyola Law School; Author, The Origins of the Privileges or Immunities Clause (Georgetown Law Journal, forthcoming)

David Gans, Program Director, Constitutional Accountability Center; Author, The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment

This event is open to the public and sponsored by The Georgetown Law Journal, the Georgetown Law chapters of the American Constitution Society for Law and Policy and the Federalist Society for Law & Public Policy Studies, and the Georgetown Law Militia.

Friday, November 13, 2009, 12:30 – 2:30 p.m.
Georgetown University Law Center
McDonough Hall – Hart Auditorium
600 New Jersey Avenue, NW
Washington, D.C. 20001

The panelists will discuss the current Supreme Court case McDonald v. Chicago, in which the Court will decide whether the 2nd Amendment is incorporated to apply to the states. Following up on its decision in District of Columbia v. Heller, the Court may decide to breathe life into the Privileges or Immunities Clause of the 14th Amendment, a clause which has essentially remained “vain and idle” since the Slaughterhouse cases in 1873.

The panelists will provide a historical understanding of the Privileges or Immunities Clause, whether it can properly serve as a vehicle for incorporation, and the implications that would result if the Court adopts this position.

I ended up listening to the arguments from inside the “lawyer’s lounge” for overflow Supreme Court bar members (one of the [...]]]> I’ve been in Washington, DC for the past few days to attend the oral arguments in Graham and Sullivan, the juvenile life-without-parole cases.  Though I’m not normally in the habit of flying across the country to see oral arguments, I’m team-teaching a small seminar about the two cases and we decided to organize a class trip for the occasion.  There were a few snags, but all in all it was a lot of fun.  (It also brought back some wonderful memories for me of my very first trip to see oral arguments at the Supreme Court as part of a seminar I took in college.)

I ended up listening to the arguments from inside the “lawyer’s lounge” for overflow Supreme Court bar members (one of the aforementioned snags was our miscalculation of exactly how tough it would be to get in to hear the arguments.)  I don’t have too much new to add to all of the excellent (and much more timely) commentary on cases.  Like many others, I thought that the most interesting development was Chief Justice Roberts’ focus on incorporating age into Eighth Amendment proportionality review.  The idea is not one any of the parties discussed in their briefs.  The attorneys for Graham and Sullivan advanced the view that life without parole for juveniles for a non-homicide offense is cruel and unusual.  Meanwhile, the State of Florida took the position that the standard proportionality test should apply and that the sentences in each case easily met that standard.  Splitting the difference by incorporating age into proportionality review seems to be an appealing way to reconcile the Courts’ jurisprudence regarding juveniles and the death penalty with its proportionality jurisprudence.  And, at least on the surface, the idea seems like it might provide an avenue for a majority of the Court to come together around a single standard.  I do wonder, however, how an approach along the lines of what Justice Roberts’ seemed to be proposing might actually play out in these cases.

Assuming, for the sake of argument wild speculation, that Roberts can get a plurality together to adopt his idea (let’s say, himself, Kennedy and Sotomayor), there is certainly no guarantee that they would be able to agree about the details–namely, the weight an offender’s age should be given in the test.  Conceivably, we could see a highly fractured Court with a number of Justices coming together around the basic premise of incorporating juvenile status into proportionality review but then diverging significantly (and in very different ways) after that.  I’ll admit that I have not yet had the opportunity to read all of the great commentary on the case and so I imagine someone has already speculated (very likely much more insightfully than I have) about how a Roberts-test might result in a number of different opinions that each follow his basic idea but agree on little else.  However, having gone to DC for the argument while guest-blogging here, I could not resist writing up a quick a post to add my two cents about the case (especially since doing so has been a convenient way to productively avoid the mountain of email waiting for me in my inbox.)