Tagged: Supreme Court

1

Lack of Civil Gideon and Unauthorized Practice of Law Rules — Are They Consistent?

The recent focus on Civil Gideon triggered by the pending US Supreme Court case, Turner v. Rogers (please track the Turner Symposium here on Concurring Opinions, when the decision comes down), has set me thinking about the relationship between Civil Gideon and our current unauthorized practice of law (UPL) rules. By UPL rules, I mean the current sets of laws that generally fence off large areas of legal activity, making it unlawful for anyone without a law degree to provide services in those areas in any context at all.  I do not mean the general concept that legal services of different kinds can be regulated.

Here’s my question:  In the end, isn’t a ruling that there is no right to civil Gideon assistance in a case really the same as a ruling, at least in significant stake state deprivation cases, that the case is simple enough that people can do it on their own – even if technically the court is more likely to use a balancing test saying that the case is easy enough that it is unfair to make the state pay for counsel.  See, e.g. Lassiter v. Dept of Social Services, 452 U.S. 18, 33 (1981) (analyzing, in Part III, limited impact on the outcome on the specific facts, of lack of counsel); Turner v. Rogers, Transcript of Oral Argument, at 20-21, (Associate Justice Alito questioning petitioner’s counsel Seth Waxman as to whether it would be sufficient if the Court were to require judicial engagement when determining the issue of whether defendants are in civil contempt for having “willfully” refused to pay, except in harder cases — “And then if you run into some of these complicated legal problems or arguably complicated legal problems that you referred to, maybe in particular cases there would be need for the appointment of counsel.”)

Insofar as the Court denies a right to counsel for matters that are too simple, wouldn’t that also eliminate any basis for UPL rules?  After all, the premise of UPL rules is that a matter is too complex to be handled by non-attorneys. The main other argument for ULP rules is that there is a need for the activity to be regulated as to the “character” of the person helping and the quality of the service, but that is really a different matter, that could be taken care of in many ways other than requiring a legal education and the passing of the bar exam — see below.)

Put another way, where is the justification for the legal system to say, in any important matter that triggers due process concerns, that it is OK to require that a lawyer, and only a lawyer be allowed to help, and then to refuse to make one available?  Either the case is simple enough for non-lawyers to help, in which case the UPL prohibitions make no sense (and are arguably unconstitutional in such circumstances), or it is too complicated for a non-lawyer.  If it is too complicated, there must be help from a lawyer, and one should be provided to those unable to pay.  Indeed Professor Tribe points out the unconstitutionality of requiring the use of a legal path, and then making it financially impossible, Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that if state prescribes only one method of dissolving marriage – judicial divorce, it can not deny the route to those who can not afford it; here the state is requiring that help must come from an admitted lawyer, and then refusing to provide one to the indigent.)

Any claimed middle group of cases — that a case is complicated enough that you can not allow non-lawyers to help, but simple enough that people can not do it on their own, just makes no ultimate sense.  I suppose one could assert that there is so much easier for a self-represented litigant to handle their own case than for a non-lawyer to help them that you can require people to handle their own cases.  But the only reason I could think of for this would be that the process of drawing out what someone else’s actual problem is, is so difficult that you need a law degree to do it. But we all know that the skill of drawing out from someone what their problem is, is hardly taught in law school at all — more likely in social work school.

As to the skill of legal “issue spotting,” that would be just as much needed by the self-represented as by any helper, and if needed in a case, should move it into the category of those needing counsel. Remember too, at least in this country, the structure of UPL rules cannot be justified as preventing unregulated commercial exploitation of the vulnerable.

In this country those rules reach to any activity that is substantively considered the practice of law, regardless of the relationship between the helper and the helped, regardless of whether provided by a non-profit or one in business, and regardless of whether money changes hands.  So the rigor and comprehensiveness of ULP rules can not be justified in such ethical and protective terms, but only in skill terms.  There are, of course, legitimate concerns about the ethics and quality of services provided by non-lawyers (as by lawyers), but there are many regulatory ways of taking care of this.  Abolishing or modifying the rules governing UPL is not the same as having no consumer protection regime.  Such an appropriate protective regime might potentially include registration, an insurance requirement, a complaint mechanism, and/or limitation to certain activities, including possibly to non-profit practice. Moreover, getting the line right would make it easier for appropriate consumer protection enforcement.

You could also argue, I suppose, that UPL rules do no harm, because, after all, you can always represent yourself, and a lawyer is denied only in cases where it would make no difference.  But surely that is a matter for the person providing or receiving the help to decide, and, to the extent we might be talking about associational or commercial relationships, that relationship can only be reasonably, not unreasonably, regulated.  (Indeed the prohibition, particularly in the associational non-commercial contest, might raise First Amendment questions.  It may well be that these First Amendment implications and the over and under inclusiveness of the current structure of UPL are what might doom the current bright line between lawyers and non-lawyers and between legal practice and non-regulated activities.)

In the end, I would hope that this insight — if it is that — will help us all focus more comprehensively on the whole access issue with its many components, and on the need not to focus on battles about small parts of it.

Final Note:  Although I have focused this early pre-post on the possible UPL implications of Turner, this is, of course, just one aspect of the much larger conversation we are anticipating once Turner comes down.

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A Tale of Two Writs

Yesterday’s New York Times editorial, “A Right without a Remedy,” finally shines a spotlight on what anyone familiar with the Guantanamo detainee habeas corpus litigation already knows: the steady erosion of the Supreme Court’s 2008 decision in Boumediene v. Bush, and the open disdain for that decision exhibited by several D.C. Circuit judges, most notably A. Raymond Randolph.

The upshot is that we now have two very different conceptions of habeas corpus at Guantanamo: one as a meaningful judicial check on executive power; the other as a legal proceeding in which the judiciary remains powerless to remedy unlawful executive action.

In Boumediene, the Supreme Court held that Congress’s effort to strip Guantanamo detainees of the right to habeas corpus violated the Constitution’s Suspension Clause and ordered the district courts to conduct prompt hearings into whether the petitioners were being lawfully held. Since then, district courts in Washington, D.C., have issued merits decisions in 59 habeas cases, finding no legal basis for the detention in 38 of them.

The D.C. Circuit, however, has taken increasingly narrow view of district court’s power to inquire into the government’s evidence, reversing or vacating and remanding habeas grants in three cases and affirming habeas denials in four of six cases (the other two denials were vacated and remanded). To date, the Circuit has not affirmed a district court grant of habeas nor outright reversed a district court denial.  Along the way, Randolph, along with Circuit Judge Janice Rogers Brown, have suggested that the government might satisfy its burden merely under a “some evidence” standard, as opposed to the higher, preponderance of the evidence standard the Department of Justice is advocating.

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The Supreme Court on School Interrogations and Parental (Dis)empowerment

The Supreme Court has in the past several weeks granted certiorari in two cases involving the rights of juveniles in police interrogations in the school setting.  In Greene v. Camreta, the Ninth Circuit Court of Appeals ruled that the interrogation of a juvenile by police authorities in the school setting in the absence of a warrant, court order, exigent circumstances, or parental consent, was an unconstitutional seizure under the Fourth Amendment of the United States Constitution.  In the Matter of J.D.B., the Supreme Court of North Carolina held that a 13 year old burglary suspect who was interrogated by police officials in his school without parental notification and consent, was not in custody, and thus he was not entitled to have Miranda warnings read to him.   By agreeing to hear both J.D.B. and Greene in this term, the Supreme Court is undoubtedly seeking to clarify the legal standards surrounding the increasing law enforcement presence in public schools.   However, on a broader level, the Court is also entering into the societal discussion regarding the role of the public school in American democracy.  As it is increasingly accepted that the school is becoming the central societal institution, the lack of parental notification for the interrogations in Greene and Camreta is of particular concern.  The marginalization of parental involvement in such issues of morality and law may stem from a growing suspicion regarding the rearing abilities of parents.  If the Supreme Court does not elevate the right of parental involvement in school interrogations to Constitutional concern, then it will be throwing judicial weight to society’s growing cynicism toward the ability of parents, especially in challenging urban contexts, to manifest parental responsibility.

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Republicans Come Out of Hiding

After weeks of virtual silence, Republicans are stepping up their public attacks on Supreme Court nominee Elena Kagan. And they are using some rather strange arguments. The new line of attack is that Kagan is incapable of being impartial because of her political/policy role in the Clinton administration. Senate Minority Leader Mitch McConnell, who on Sunday would not rule out a filibuster of Kagan, is leading the charge with a new narrative that Kagan is more of a “political operative” than a lawyerly type. McConnell cites memos that Kagan wrote about campaign finance reform while she worked for Clinton. Quoting McConnell from the Senate floor:

In other words, these memos and notes reveal a woman whose approach to the law was as a political advocate — the very opposite of what the American people expect in a judge.

Sen. McConnell’s logic would cast nearly every justice who ever served on the Court as an “advocate” seemingly incapable of being impartial. What Sen. McConnell — and frankly all senators, both Republican and Democrat — apparently needs to remember is that lawyers are supposed to be zealous advocates for their clients’ interests. While Kagan’s role in the Clinton White House was as a policy adviser and not as a lawyer, the role she played parallels the manner in which a lawyer represents a client. As Obama spokesman Ben LaBolt notes, Kagan simply gave Clinton advice “that reflected the president’s well-established views.” She worked to advance Pres. Clinton’s agenda, just like a lawyer works to advance his/her client’s interests. Most Supreme Court justices were lawyers who represented clients before they entered the judging profession.  They worked to advance their clients’ interests.

It is clear that Sen. McConnell and fellow Republicans are trying to dig up new criticisms of Kagan in the run-up to the confirmation hearings. But this line of attack is weak and would cast doubt on all of the sitting justices. Chief Justice Roberts and Justice Scalia worked to advance the interests of Republican presidents before they were judges. Justice Breyer was special counsel to the Senate Judiciary Committee, where he worked with then Chairman Sen. Ted Kennedy. And Justice Ginsburg worked to advance women’s rights as an ACLU litigator. All were simply doing their jobs — being advocates for their clients/bosses. Beyond these examples, several former justices, of course, served in explicitly political capacities, e.g., Justice O’Connor was a state legislator, some justices were senators prior to service on the Court, and Chief Justice Taft was president before joining the Court.

Photo credits:  Stephen Crowley/The New York Times

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Return of the Necessary and Proper Clause (Just in Time for Health Care)

The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.  U.S. Const. Art. I, § 8.

The big news last week concerning the fate of the federal health care legislation was not the entrance of new plaintiffs into the litigation challenging the statute or the government’s filing its opposition brief in the suit brought by Virginia.  The big news was United States v. Comstock and the continuing resurgence of the Necessary and Proper Clause of the Constitution (quoted above).

The constitutional challenges focus on the so-called individual mandate, taking effect in 2014, which will require that most people either own health insurance or pay a penalty.  Legally, the arguments against the legislation lack merit.  As I have argued elsewhere, under contemporary Commerce Clause doctrine, Congress can impose the individual mandate as part of its comprehensive regulation of the interstate market in health insurance.  Further, the provision is structured as a tax on those who fail to purchase insurance, thus falling within Congress’s even broader taxing authority.

Rhetorically, however, the opponents’ arguments may have some appeal.  How, the critics insist, can Congress’s constitutional authority to regulate interstate commerce extend to regulating the non-commercial activity of doing nothing (i.e., not buying insurance)?  Doing nothing is not commerce, the law’s opponents proclaim.  Can you make a federal case out of taking a nap?

The answer to this rhetoric comes from the Court’s great rhetorician, Justice Antonin Scalia.

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Courting Kennedy

[Note: This essay is cross-published on the blog Dissenting Justice.]

President Obama and other supporters of Elena Kagan have argued that she has the capacity to form coalitions with conservatives, especially Justice Anthony Kennedy — the Supreme Court’s lone swing vote. There are a number of underlying assumptions to this argument, including that Kennedy’s opinions are malleable on a significant number of issues and that a colleague on the bench can push him on those malleable questions.

There is certainly some legitimacy to these assumptions. Political scientists who research the Court have found that ideological moderates are among the most malleable members of the bench. Furthermore, Sandra Day O’Connor and David Souter most likely influenced Kennedy in the influential case Planned Parenthood v. Casey, which upheld Roe v. Wade– even as it opened the door to far more intrusive regulations of abortion. These observations, however, do not demonstrate that Kagan or any other future justice can wield influence upon Kennedy (or other conservatives).

First, it is unclear whether Kagan herself is a progressive or a political moderate, like Kennedy or O’Connor. Her academic writings just do not provide enough insight to place her definitively within a particular judicial camp.

Furthermore, supporters of the idea that Kagan can move Kennedy discount the substantial role that other factors play in shaping judicial opinion. The positions held by the Executive, Congress, social movements and voters all impact judicial decisionmaking, and according to the academic literature in this area, moderates are more susceptible to these external influences than others. Viewed in this light, Kennedy’s vote to uphold Roe could reflect the fact that a majority of voters believe in the right to terminate a pregnancy. Similarly, his vote against “partial-birth” abortion could relate to the fact that a majority of voters oppose late-term abortion.

Of course, Kennedy’s own ideology, Court precedent, the facts of each case, arguments of legal counsel, and debates with other justices likely influence Kennedy’s opinions as well. But the assertion that Kagan can serve as a consensus builder fails to acknowledge the host of other factors outside of debates with colleagues that substantially impact judicial opinion.

People who believe that Obama should appoint someone who can “flip” Kennedy have a limited understanding of the dynamics of judicial decisionmaking. They reduce it to an intellectual exercise where the “best argument” combined with grace and warmth dictate outcomes. Also, as Dalia Lithwick argues, liberal advocates of a Kennedy pal affirm a myth that “conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room.” Both camps, however, are motivated by ideology and external political factors. This reality makes the search for someone who can sway Kennedy a bizarre calculation for a nominee to the Supreme Court.

Note: Other legal commentators have made similar arguments. See:

Is Kennedy Easily Manipulated

Asking “Who can sway Kennedy?” is no way to pick Justice Stevens’ replacement.

6

Me, Justice Stevens, and the Dublin Marathon

Here is a sentence I never expected to write. So there I was on Monday in the middle of running the Dublin Marathon when I decided to listen on my Ipod to a C-Span podcast interview with Justice Stevens. I had traveled to Dublin to run the actual Dublin marathon and to co-host Antitrust Marathon IV: Marathon with Authority, a round table discussion co-hosted with the British Institute of International and Comparative Law and the Irish Competition Authority.

Around Mile 11, I was hurting and turned from a combination of Irish rock and random songs to some pod casts. After some short New York Times and NPR pod casts, I remembered that I had downloaded a series of C-Span interviews with the current Justices and Sandra Day O’Connor.

I have a special fondness for Justice Stevens. We are both Chicagoans, Cub Fans, and Northwestern Law grads. More improbably, we even had the same antitrust professor (James Rahl) at Northwestern, albeit about 35 years apart. That plus the fact he was primarily an antitrust litigator before going on the bench was enough to get me to devote the next 30 some minutes, and about 3 miles, to the Stevens interview.

A lot of it was a fluffy discussion of his chambers and personal history. But mixed among the fluff and the questions for non-lawyers (What is certiorari?), there were a handful of interesting tidbits. Justice Stevens talked about the reasons and impact of not participating in the cert pool, the importance of writing his own first drafts, and his interest in having the court hear a few more cases than its current docket. There are no smoking guns or shocking revelations, but Justice Stevens does mention the need for Justices from diverse legal backgrounds, such as veterans and litigators, as an important mix for the Court to have on the bench. Justice Stevens is of course both and as far as I know the only current Justice to actually have made his living as a litigator.

The main thing I came away with was the genuine niceness of the good Justice which was my impression from the only time I ever met him. In 1993, I taught in a summer program in Innsbruck, Austria where Justice Stevens was lecturing. Instead of staying for the three days as promised, he stayed and lectured the entire week and interacted warmly with the students and the rest of the faculty. At one point, a student asked him to sign the packet of course materials which he did after class. Because he did not want to play favorites, he then stayed and patiently signed for more than a hundred students.

In the pod cast interview, Stevens demurred on picking a most important or favorite case. But when asked about a most memorable experience, he didn’t hesitate and proudly mentioned throwing out the first pitch at Wrigley Field before a Cubs game at the age of 85.

With that, I grinned, quickened my pace a bit, and headed up the next of an endless series of hills on my way around Dublin on a surprisingly warm and sunny late October day.

I have not listened to the rest of the interviews. But if anyone else has, please post if there are particularly revealing or interesting moments.

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In Favor of Wise Latinas

It is time to stop privileging gender and race in Supreme Court nominations. History shows a very clear and disturbing pattern of decisionmaking along gender and racial lines.

Don’t believe me? Just look at the numbers, and you will see an existing, overwhelming pattern of decisionmaking based on race and gender. Here goes: For 180 years, every single person to sit on the Court was a white male. The list of Supreme Court justices between 1789 and 1967 is an unbroken chain of nearly 100 white men.

Since 1967, we’ve seen a total of two women and two Black men on the court. That is, four of the fifteen Justices since 1967 (27%) have been women or Black men, while eleven of the fifteen (73%) have been white men.

Supreme Court history has been one of total domination by white men for 180 years, followed by a period of token representation for other groups, but always a large controlling majority of white men. Not bad for a demographic group which currently makes up only 1/3 of the U.S. population! Read More