Site Meter


3

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:
****
(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.

5

The Strange Doctrinal Legacy of Lawrence v. Texas

I’m currently working on a project concerning the doctrinal legacy of Lawrence v. Texas and continue to be amazed at the varied ways judges have read Justice Kennedy’s majority opinion. The Supreme Court’s opinions in the case have been cited over 700 times, but only rarely in an expansive manner. Justice Scalia’s parade of horribles, articulated in his dissent, has not been realized (particularly in regard to criminal laws). Laws criminalizing prostitution, public indecency, adultery, adult incest (even without blood relation), fornication, bigamy, bestiality, obscenity, and drug use have all survived Lawrence challenges.

However, in a few unanticipated areas Lawrence has had a notable effect. In one instance, Smithkline Beecham Corp. v. Abbot Laboratories (9th Cir. 2014), Judge Reinhardt on the Ninth Circuit cited Lawrence, along with other Supreme Court opinions regarding sexual orientation, in a Batson challenge case.  Reinhardt concluded that “heightened scrutiny applies to classifications based on sexual orientation and that Batson applies to strikes on that basis.” As a result, the court held that the decision to exclude a juror on the basis of sexual orientation violated Batson and ordered a new trial.

A stranger application, in my opinion, arose from a defamation lawsuit in Massachusetts. The First Circuit did not resolve the issue but described the district court holding in the case as follows:  “… the court held that imputing homosexuality cannot be considered defamatory per se…” Amrak Productions, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005); Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass. 2004). The district court’s holding was particularly unusual because it did not need to reach the issue at all. The district court held, and the First Circuit agreed, that the plaintiffs had simply failed to state a defamation claim.

What strikes me as remarkable after reviewing all the cases that have cited Lawrence is that the majority opinion has primarily had effects in areas of law far outside of what was anticipated. Indeed, anti-sodomy laws, like the one at issue in Lawrence, are still enforced in several states (primarily in cases involving prostitution crimes and minors). So, does that mean that commentators were just really bad at predicting the effect of the new Lawrence doctrine? Or did Scalia’s dissent serve its function by encouraging courts to read Lawrence narrowly in the areas of law with which he was concerned?

3

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?

0

On National Ice Cream Day, Thanks Dairy Queen

DQIn honor of National Ice Cream Day (July 20), here is a brief celebration of Dairy Queen, an institution of American culture—entrepreneurial, legal, literary, and familial—that helped put this cold concoction on the national calendar. I developed these reflections when researching my upcoming book, Berkshire Beyond Buffett: The Enduring Value of Values (Columbia U. Press 2014), which provides deep looks at the corporate culture of Berkshire Hathaway’s fifty-plus subsidiaries, including Dairy Queen.

While full treatment must await publication of the book (which can be pre-ordered now), here are a few passages along with many outtakes—i.e., sections that did not make it into the final book because they are too technical, but may appeal to readers of this blog interested in the history of franchising businesses and intellectual property rights.

Dairy Queen’s roots date to 1927’s founding of Homemade Ice Cream Company by John F. (“Grandpa”) McCullough (1871‒1963) and his son Alex near the Iowa-Illinois border. Innovative ice cream makers, they experimented with temperatures and textures and eventually pioneered soft ice creams. One discovery: ice cream was frozen for the convenience of manufacturers and merchants, not for the delight of consumers.

At first, the McCulloughs were unable to interest any manufacturer in building the necessary freezers and dispensers to serve soft ice cream. Luckily, however, Grandpa happened to see a newspaper ad in the Chicago Tribune describing a newly-patented continuous freezer that could dispense soft ice cream. Grandpa answered the inventor/manufacturer, Harry M. Oltz, and the two made a deal in the summer of 1939.

The McCullough-Oltz agreement entitled Oltz to patent royalties equal to two cents per gallon of soft ice cream run through the freezer; the agreement also granted the McCulloughs patent licensing rights in the Western U.S., while Oltz retained them for the Eastern part of the country. The agreements that McCullough and Oltz made with licensees seemed to cover only the patent, rather than the DQ trademark, and contained few quality controls.

After World War II, DQ stores hit their stride, drawing lengthy lines of increasingly loyal customers enjoying the cooling effects of soft ice cream all sultry-summer long. The customer throngs at one store in Moline, Illinois caught the attention of Harry Axene. An entrepreneurial farm equipment salesman for Allis-Chalmers, Axene wanted to invest in the business. He contacted the McCulloughs and acquired both the rights to sell the ice cream in Illinois and Iowa as well as an interest in the McCullough’s ice cream manufacturing facility. Read More

4

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.

stairway-to-heaven-1319562-m-720x340
0

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

0

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.

Failed Fiduciaries: Pension Funds’ Alliances with Private Equity Firms

As Yves Smith has reported, “the SEC has now announced that more than 50 percent of private equity firms it has audited have engaged in serious infractions of securities laws.” Smith, along with attorney Timothy Y. Fong, has been trying to shed light on PE arrangements for months, but has often been blocked by the very entities taken advantage of by the PE firms. As Smith concludes:

[I]nvestors have done a poor job of negotiating agreements so that they protect their interests and have done little if any monitoring once they’ve committed to a particular fund. As we’ll chronicle over the next few days, anyone who reads these agreements against the disclosures that investors are now required to make to the SEC and the public in their annual Form ADV can readily find numerous abuses. . . . But rather than live up to their fiduciary duties, pension funds that have invested in private equity funds haven’t merely sat pat as they were fleeced; even worse, they’ve been staunch defenders of the private equity industry’s special pleadings.

The SEC Chair has also harshly criticized the arrangements. States are making token efforts to reform matters after being exposed, but don’t expect much substantive to be done. The key problem is the distinction between those running pension funds, and what Jennifer Taub calls the “ultimate investors“–those whose accounts are being managed. Until their interests are better aligned, expect to see more sweetheart deals via “alternative investments.”

0

Truth, Candor, and Crisis at Yeshiva University

Among universities in trouble, the darkest cloud hangs over Yeshiva University, a venerable Jewish institution founded in New York in 1886. The University acknowledges huge economic losses and failed investment policies and is taking extraordinary steps to balance its books, including ceding control over its one-time crown jewel, Albert Einstein College of Medicine, which has close friends of its law school, Benjamin N. Cardozo School of Law, very concerned.  Critics, moreover, see a death spiral and question the leadership’s candor.

Amid calls for the resignation or dismissal of Yeshiva’s president, Mr. Richard M. Joel, he says the University will no longer engage with the media on fiscal questions. The Wall Street Journal reports that the University has hired the crisis-management communications firm, Kekst & Co., but any benefits from that hiring are not yet obvious.sunlight

In a familiar pattern facing other organizations in crisis, what both sides miss in this dangerous heightening of tensions is the importance of trust to any institution’s health. To resolve this crisis, as always, the institution’s leadership must regain trust by explaining how its current fiscal stewardship advances the institution’s mission. Critics must not rush to judgment and hear the leadership out on what it has learned from recent problems and plans for the future.

Like other investors, part of Yeshiva’s problems are due to the financial collapse of 2008, but its roots are a bit deeper and offer broader lessons. Since at least 1993, the board of trustees oversaw Yeshiva’s endowment and made investment decisions. University policy permitted trustees to invest endowment in funds the trustees managed, despite conflicts of interest, so long as they made full disclosure.

During the early 2000s, the trustees increasingly allocated endowment to their own hedge funds, which were heavily weighted in risky securities. By 2008, the endowment, valued at more than $1 billion, held riskier investments than those of peer institutions. The financial upheaval of 2008 thus hit Yeshiva even harder than most peers, shrinking its endowment by more than $300 million, including $100 million due to the Ponzi scheme of Bernie Madoff, whose top victims also included a Yeshiva trustee.

While it appears that the trustees and the administration acted in good faith, even if no laws were broken, poor judgment abounded. The loose conflict-of-interest policy certainly was a mistake, as a trustee’s personal involvement skews his judgment. Reputable and durable institutions scrupulously avoid the remotest appearance of impropriety. For stalwarts like Yeshiva, this principle of integrity, coupled with an ethic of prudence, should govern investment decisions.

The University learned its lesson from this calamity and has adopted new policies that may serve as a model for other endowments. It created a professional investment office to set strategy, updated oversight protocols, and established a rigorous conflicts policy. While thus implicitly recognizing earlier weaknesses, the University has not offered a mea culpa nor has it identified particular past faults—whether sins of omission or commission, of process or substance, or whether the product of mere haplessness or of actual chicanery. That reticence allows unimpressed critics to overlook the significance of these reforms.

It is hard to measure objectively the exact economic costs of Yeshiva’s policies or market onslaughts from which it has suffered. One result of this difficulty is wildly different numbers being reported by the University and critics—ranging from $300 million to a staggering $1.3 billion. However, it is less important to achieve consensus on financial figures than to find common ground on productive next steps.

At stake is advancing the institution’s core mission, which is not to maximize endowment or earn a profit but to promote knowledge and teach students. The fiscal drama becomes a superficial distraction from fundamental academic judgments about the relation among current and future pedagogical, scholarly, scientific, cultural and religious needs and resources.

Constituents would rightly like to know more about Yeshiva’s finances as well as the academic thinking behind decisions concerning building or closing facilities and forming or ending joint ventures and programs. For example, when Yeshiva recently ceded managerial control over Einstein College of Medicine to another institution to cut costs, it did not publicly detail the educational rationale. Critics jumped on the move, assuming and asserting that it was a sign of distress rather than a shrewd maneuver that promotes the University’s goals.

When institutions are imperiled in this way, the best course of action is to make certain that the operative facts are publicly known, to identify lessons learned, and to act on them. In that spirit, the University might do well to form an independent task force with unlimited access to University information charged to report a public assessment of where things stand and where they are going. Lifting the cloud over this 128-year old bastion of Judaism, such a look would enable Yeshiva University to move forward with its important business of education.

Lawrence A. Cunningham, a graduate and former faculty member of Yeshiva University’s law school (Cardozo), is a professor at George Washington University and the author of the forthcoming book, Berkshire Beyond Buffett: The Enduring Value of Values.

Beyond Too Big to Fail

After documenting extraordinary rent-seeking (and gaining) by financial institutions, John Quiggin comes to the following conclusion:

[A]ny serious attempt to stabilize the macroeconomy and return to sustainable improvements in living standards must involve a drastic reduction in the size and economic weight of the financial sector. Attempts at regulating derivatives markets have proved utterly futile in the face of massive incentives to take profitable risks, backed up by the guarantee of a government bailout.

The only remaining option is to separate these markets entirely from the socially useful parts of the financial system, then let them fail. Publicly guaranteed banks should be banned from engaging in all but the most basic financial transactions, such as issuing loans and bonds and accepting deposits. In particular, banks should be prohibited from doing any business with institutions engaged in speculative finance such as trade in derivatives. Such institutions should be required to raise all their funds directly from investors, on a “buyer beware” basis, and should never be bailed out, directly or indirectly, when they get into trouble.

The theme of separating out the utility-like, payment systems management functions of banks, from speculative finance, is something I’ve been hearing in a good deal of British thought on financial regulation.  I expect American policy makers to catch up soon.