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Alternatives to the “Living Constitution”

Nonoriginalist theories of constitutional law are often associated with the idea of the “Living Constitution.”  In a rough sense, the metaphor captures the notion that the Constitution can and should evolve to keep pace with the ever-changing nature of our modern society.  Therefore, the theory goes, judges should be permitted to engage in “dynamic” or “loose” readings of the constitutional text so as to ensure that a very old document remains able to meet the needs and challenges of today’s world.

The living Constitution metaphor often prompts the following sort of rejoinder: “Wait a minute!  Article V of the Constitution prescribes a specific and (arguably) exclusive set of procedures for changing the document’s meaning.  And if a changed world does in fact demand changed constitutional law, then those are the procedures that we should use to achieve the requisite changes.”  Judges, on this view, should not be allowed to circumvent the Article V process by informally according a “living” meaning to the constitutional text.  To permit judicial updating of this is sort is to license judicial infringements on popular sovereignty: “We the People” are the authors of the Constitution, so only “We the People” should be able to amend it.   Let’s call this argument the “Article V Objection.”

To me, the Article V Objection to the “living Constitution” is both powerful and weak.  It’s powerful in that it identifies some very real problems with the notion of a freely changing constitutional text.  But it’s weak in the sense that it doesn’t resolve the questions of whether and to what extent judges may change the content of constitutional law .  In other words, the Article V Objection doesn’t so much destroy the idea underlying the “living Constitution” metaphor as it suggests some alterations to its framing.

Here, then, I want to present three alternative re-framings of the “living Constitution” idea, each of which (a) countenances at least some forms of judicially-initiated changes to constitutional law; and (b) offers, to my mind, a more adequate (though not necessarily definitive) response to the Article V Objection.  Each of these re-framings, moreover, carries with it different a set of implications regarding the sorts of constitutional reforms that judges should be permitted to pursue.  In that sense, then, the re-framings may afford us the added benefit of teasing out some internal subtleties and disagreement points that lie lurking within appeals to the “living Constitution,” full stop.

Thus, without further ado, let’s meet our contestants:

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FAN 27 (First Amendment News) — Humanitarian Law Project petition before High Court

Seventeen and a half years for translating a document? Granted, it’s an extremist text.                                                                                      — David Cole

Tarek Mehanna may not be a very nice person. But the narrowing of his liberties has consequences for us all.                             — Rachel Levinson-Waldman

The case is: Mehanna v. United States.

Tarek Mehanna

Tarek Mehanna

The issue is: Whether a citizen’s political and religious speech may constitute provision of “material support or resources” to a foreign terrorist organization (FTO) under the “coordination” rubric of Holder v. Humanitarian Law Project, when the government conceded that petitioner was not instructed by the FTO, and the evidence showed that he did not interact with the FTO, but rather viewed, translated, and disseminated materials of his own choosing, while expressing moral support for certain views of the FTO, and associating on the Internet with persons who the government claims had themselves associated with the FTO.

→ Summary of relevant facts as stated by the appellate court: “In 2004, the defendant, an American citizen, was 21 years old and living with his parents in Sudbury, Massachusetts. On February 1, he flew from Boston to the United Arab Emirates with his associates, Kareem Abuzahra and Ahmad Abousamra. Abuzahra returned to the United States soon thereafter but the defendant and Abousamra continued on to Yemen in search of a terrorist training camp. They remained there for a week but were unable to locate a camp. The defendant then returned home, while Abousamra eventually reached Iraq.

“The second cluster of activities was translation-centric. In 2005, the defendant began to translate Arab-language materials into English and post his translations on a website — at-Tibyan — that comprised an online community for those sympathetic to al-Qa’ida and Salafi-Jihadi perspectives. Website members shared opinions, videos, texts, and kindred materials in online forums. At least some offerings that the defendant translated constituted al-Qa’ida-generated media and materials supportive of al-Qa’ida and/or jihad.”

→ The charges against the Defendant included:

  • one count of conspiracy to provide material support to al-Qa’ida;
  •  one count of conspiracy to provide material support to terrorists knowing or intending its use to be in violation of 18 U.S.C. § 956 and  § 2332
  • one count of providing and attempting to provide material support to terrorists, knowing and intending its use to be in violation of 18 U.S.C. § 956 and § 2332
  • and one count of conspiracy to kill persons in a foreign country

→ ACLU of Massachusetts press release re trial verdict: “Mehanna Verdict Compromises First Amendment, Undermines National Security,” Dec. 20, 2011: “Under the government’s theory of the case, ordinary people–including writers and journalists, academic researchers, translators, and even ordinary web surfers–could be prosecuted for researching or translating controversial and unpopular ideas. If the verdict is not overturned on appeal, the First Amendment will be seriously compromised.”

Op-Ed Commentaries 

On Appeal before First Circuit

In an opinion by Judge Bruce Selya, a three-judge panel of the First Circuit denied the Defendant Tarek Mehanna‘s First Amendment challenge. Here is how Judge Selya (former chief judge of the United States Foreign Intelligence Surveillance Court of Review) began his opinion:

Terrorism is the modern day equivalent of the bubonic plague: it is an existential threat. Predictably, then, the government’s efforts to combat terrorism through the enforcement of the criminal laws will be fierce. Sometimes, those efforts require a court to patrol the fine line between vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association. This is such a case.

And here is how Judge Selya closed his opinion in ruling against the Defendant Tarek Mehanna:

Cases like this one present a formidable challenge to the parties and to the trial court: the charged crimes are heinous, the evidentiary record is vast, the legal issues are sophisticated, and the nature of the charges ensures that any trial will be electric. In this instance, all concerned rose to meet this formidable challenge. The lawyers on both sides performed admirably, and the able district judge presided over the case with care, skill, and circumspection. After a painstaking appraisal of the record, the briefs, and the relevant case law, we are confident — for the reasons elucidated above — that the defendant was fairly tried, justly convicted, and lawfully sentenced.

→ Amici on behalf of the Petitioner in the First Circuit included:

  • Alex Abdo, Hina Shamsi, Matthew R. Segal, and Sarah R. Wunsch on brief for American Civil Liberties Union and American Civil Liberties Union of Massachusetts
  • Pardiss Kebriaei, Baher Azmy, and Amna Akbar on brief for Center for Constitutional Rights
  • Nancy Gertner, David M. Porter, and Steven R. Morrison on brief for National, Association of Criminal Defense Lawyers
  • E. Joshua Rosenkranz and Orrick, Herrington & Sutcliffe LLP on brief for Scholars, Publishers, and Translators in the Fields of Islam and the Middle East
Judge Bruce Selya

Judge Bruce Selya

The government was represented by Elizabeth D. Collery, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice.

→ Sabin Willett is the counsel of record representing the Defendant Tarek Mehanna in his petition to the Court. In his petition, Mr. Willett’s First Amendment arguments include the following:

  1. “In Humanitarian Law Project, the Court addressed the important question of whether speech could be criminalized as provision of material sup- port in the form of a “service” to an FTO. Deciding that such speech can be unlawful when it takes the form of directly-interactive teaching, the Court interpreted §2339B as imposing criminal liability for speech that is a “service” if that speech is sufficiently “coordinated” with the FTO. This Court did not further define ‘coordination,’ nor hold that all “coordinated” speech could be criminalized consistent with the First Amendment. . . . Outside the narrow factual context of Humanitarian Law Project, the legal contours of ‘coordination’ remain a riddle. The word does not appear in any relevant section of the statutes. The decision uses “coordination” to describe the specific conduct found unlawful in that case, but provides no general definition, and leaves open that some levels of ‘coordination’ may be lawful.”
  2. “Petitioner argued below that a constitutional definition of ‘coordination’ requires an inquiry into the relation of the speaker to the FTO, and cannot be based in the content of his speech. If an FTO directs the defendant to write, the defendant’s compliance might provide a service that the Constitution does not protect, but that service would lie in compliance, not content.”
  3. Certain counts of the Petitioner’s conviction violated his right of association.

→ The government’s brief in opposition can be found here.

Historical Aside re Humanitarian Law Project

The case for the government was argued by Solicitor General Elena Kagan

The case for the Humanitarian Law Project was argued by Professor David Cole

Transcript of oral argument here

Interview with Robert Post re his latest book Read More

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Magna Carta and Anti-Semitism

Many sacred constitutional texts have unfortunate provisions.  The Constitution countenanced slavery (while using euphemisms for the word).  The Declaration of Independence called Native Americans “merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes, and conditions.”  And the Act of Settlement of 1701 barred anyone who “shall profess the Popish Religion or shall marry a Papist” from the Crown.

Magna Carta’s embarrassment is its description of Jews.  One provision stated: “If anyone who has borrowed from the Jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt so long as he remains under age.”  Another added that “if any man dies indebted to the Jews, his wife shall have her dower and pay nothing of that debt.”  This latter provision adds that “[s]o shall it be done with regard to debts owed persons other than Jews,” which makes you wonder why Jews were singled out earlier.  At that time, the Church took a strong position against loaning money at interest, which in practice made Jews the only creditors, so Magna Carta could have just said “anyone who has borrowed money” or “if any man dies indebted” to achieve the same result.  I would be curious to hear more from medievalists or English legal historians on this point.

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Robin Williams — The Man Who Made Us Laugh & Defended the Right to Do So

It is a very sad day when a very funny man takes his own life. Depression takes its deadly harvest.Screen Shot 2014-08-11 at 10.47.34 PM

And so we must suffer the loss of one of America’s greatest comedians, Robin Williams.

In the weeks and months ahead, many a wreath will be laid in his honor and many will share their stories of how this remarkable and witty stand-up comedian left his special imprint on their lives.

As I think back on him, I am reminded of that life flow that stirred within him in Good Morning Vietnam (1987). Remember the opening scene when as a DJ for Armed Forces Radio Service Williams screamed into the early a.m. microphone: “Goooooooooooooooood morning, Vietnam! This is not a test, this is rock-n-roll! Time to rocket from the delta to the DMZ. Is that me or does that  sound like an Elvis Presley movie? Viva Da Nang. Viva Da Nang, Da Nang me, Da Nang me. They’re gonna get a rope and hang me. Hey, is it a little early for being that loud? Too late: Oh, it’s 0-600. What does the O stand for? Oh my God it’s early!”  (see YouTube video here).

If I may add my own humble memory of Robin: In 2003, I helped to organize a group of comedians, lawyers, professors and others to petition Governor George Pataki to posthumously pardon Lenny Bruce. When we approached Robin Williams (via Penn & Teller as I recall), he agreed immediately to lend his name to the cause. Why? Because he believed in comedy and free speech . . . and in Lenny Bruce, too.

Robin Williams was a free spirit in the best of the American tradition. And he gave vibrant life to the First Amendment and in the process was amazingly funny.

Long may his memory last.

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The U.S. Supreme Court Should Reverse Wynne – Narrowly

Maryland State Comptroller of the Treasury v. Brian Wynne requires the Supreme Court to decide whether the U.S. Constitution compels a state to grant an income tax credit to its residents for the out-of-state income taxes those residents pay on out-of-state income.

Brian and Karen Wynne live in Howard County, Maryland. As Maryland residents, the Wynnes pay state and county income taxes on their worldwide income. Maryland law provides that its residents who pay income taxes to states in which they do not live may credit those payments against their Maryland state income tax liability. However, Maryland grants no equivalent credit under the county income tax for out-of-state taxes owed by Maryland residents on income earned outside of Maryland.

When the Wynnes complained about the absence of a credit against their Howard County income tax for the out-of-state income taxes they paid, Maryland’s Court of Appeals agreed, holding that such credits are required by the nondiscrimination principle of the Constitution’s dormant Commerce Clause. The absence of a credit against the county income tax induces Maryland residents like the Wynnes to invest and work in-state rather than out-of-state. This incentive, the Maryland court held, may impermissibly “affect the interstate market for capital and business investment.”

For two reasons, the U.S. Supreme Court should reverse. First, Wynne highlights the fundamental incoherence of the dormant Commerce Clause test of tax nondiscrimination: Any tax provision can be transformed into an economically equivalent direct expenditure. No principled line can be drawn between those tax provisions which are deemed to discriminate against interstate commerce and those which do not. All taxes and government programs can incent residents to invest at home rather than invest out-of-state. It is arbitrary to label only some taxes and public programs as discriminating against interstate commerce.

Suppose, for example, that Howard County seeks to improve its public schools, its police services, or its roads. No court or commentator suggests that this kind of routine public improvement violates the dormant Commerce Clause principle of nondiscrimination. However, such direct public expenditures, if successful, have precisely the effect on residents and interstate commerce for which the Court of Appeals condemned the Maryland county income tax as discriminating against interstate commerce: Better public services also “may affect the interstate market for capital and business investment” by encouraging current residents and businesses to stay and by attracting new residents and businesses to come.

There is no principled basis for labeling as discriminatory under the dormant Commerce Clause equivalent tax policies because they affect “the interstate market” of households and businesses. Direct government outlays have the same effects as do taxes on the choice between in-state and out-of-state activity. If taxes discriminate against interstate commerce because they encourage in-state enterprise, so do direct government expenditures which make the state more attractive and thereby stimulate in-state activity.

Second, the political process concerns advanced both by the Wynne dissenters in Maryland’s Court of Appeals and by the U.S. Solicitor General are persuasive. Mr. and Mrs. Wynne are Maryland residents who, as voters, have a voice in Maryland’s political process. This contrasts with nonresidents and so-called “statutory residents,” individuals who are deemed for state income tax purposes to be residents of a second state in which they do not vote. As nonvoters, nonresidents and statutory residents lack political voice when they are taxed by states in which they do not vote.

Nonresidents and statutory residents require protection under the dormant Commerce Clause since politicians find it irresistible to export tax obligations onto nonvoters. The Wynnes, on the other hand, are residents of a single state and vote for those who impose Maryland’s state and local taxes on them.

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What is the Largest University in the United States?

You are probably surprised to learn that, if you look at crime data gathered by the Department of Education under the Clery Act, the largest 4-year higher education institution is Liberty University. For those not familiar with Liberty, it was founded in 1971 in Lynchburg, Virginia by Jerry Falwell. According to the school’s 2012 submission to the Department of Education, it had 74,372 students. It seems that Liberty has a booming business in online education and counts students enrolled through that program in its student body. A slightly lower number of students, 12,600, are actually in residence. According to the school’s website, there are now 90,000 online students making it the only 4-year college or university with over 100,000 students. I have to say that I am troubled by the nice, round numbers of students in both categories on the website. Are those just estimates and Liberty does not know its precise enrollment? Or is it really committed to all student totals being evenly divisible by 100?

Liberty’s inclusion of online students as part of Clery Act crime reporting obligations has the effect of substantially decreasing reported crime rates on campus. That seems to frustrate the intention of the law as crimes by online students are not tracked. It also makes it difficult for researchers to properly assess the real rates of reported on-campus crime. One might think that Liberty would be a little more careful in its submissions after running into problems during a Clery Act audit. In 2013, the Department of Education stated its intention to fine Liberty for $165,000 because of numerous violations in prior reporting activity. Of course, in reviewing the past Clery Act audits, I did not see one school penalized for failing to accurately count its student body. But there is always a first.

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Coming Soon: Law School Tuition $11,000

coquillette While today’s Harvard Law students are about to pay the hoary institution as much as $54,580 in annual tuition, a new law school designed on the original Harvard Law model plans to charge $11,000.  I have just received an offer to join its faculty and find the model intriguing.

Designed by the renowned legal historian, Dan Coquillette, once Dean of Boston College and former colleague of mine, the new school will have no administrators but rather an automated system, no books but a digital library, and two faculty members who will teach three courses per semester to a class of thirty-five students.  There will be no ABA accreditation and the school will have to compete on the apprenticeship model.

Dan’s idea arises from his research for his magisterial history of Harvard Law School, where Dan has long been the Charles Warren Visiting Professor of American Legal History.  Called “On the Battlefield of Merit,” Harvard University Press will publish this multi-volume history, volume one telling of how apprenticeship competition nearly  destroyed the infant law school.

In Harvard Law’s golden age, there were just two faculty members, Joseph Story and Simon Greenleaf, who taught all the courses. With a faculty-student ratio of 17.5:1, Story also published a treatise a year.

As Dan explained in his appointment offer to me:

The students of the Story-Greenleaf School read like a Who’s Who of the New Republic, and they uniformly praised their Law School experience, particularly the close mentoring and inspiration they got from their two teachers.  Of course, Story and Greenleaf knew every student in the School. The physical plant was terrible; the Library, open to Harvard Square, often lost more books a year then it gained; and the only nonacdemic employee was a janitor who spoke Latin.  The students did not care, as long as there was Story at one end of a log, and a student at the other.

If we replicated that School exactly, setting faculty salaries at today’s levels and including all overhead, student tuition would be 20% of what they pay now. I am ready when you are.

I believe that this offer is non-transferable but, hey, you never know.

BC Book Club

Annual Book Author Party, BCLS Faculty (2004): Zyg Plater, Frank Garcia, Dan Coquillette, Jim Repetti, Paul McDaniel, Larry Cunningham, Bob Bloom, David Wirth, John Garvey.

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F.F. — Make of him what you will, but . . .

Felix Frankfurter

Felix Frankfurter

I want to recommend a relatively new article in the Journal of Supreme Court History. It is impressively researched, commendably thoughtful, and refreshingly balanced. Before doing so, however, permit me to say a few prefatory words.

It is hard to be fair when writing of those with whom we disagree, and harder still when we dislike their personal manner. Arrogant, argumentative, and devious – these are not the words that fair-minded scholars like to use unless the fit is fair. All of which takes us back in time to this man: Felix Frankfurter (1882-1965).

What to make of him?

As a Supreme Court Justice he was, in Mel Urofsky’s words, “a divisive figure whose jurisprudential philosophy is all but ignored today.” Others have been even less kind in their assessment of the temperament and jurisprudence of the Justice from Vienna. While Cass Sunstein has recently labored to revive respect for Justice Frankfurter and his judicial opinions, that effort may prove Sisyphean (save, perhaps, in a few discrete areas involving federal jurisdiction).

Still, there was more to Felix Frankfurter than the life he led on the Court between 1939 and 1962. The trajectory of his career (fueled by hard work, ambition, and brilliance) is an immigrant-come-to-America success story at its best. His work – first with Louis Brandeis and then on his own – to advance the cause of fair and humane labor practices exemplifies the Progressive movement in its glory. Then there was the role he played early on in helping to launch the ACLU. With a mix of courage and insight, he later called for a retrial for Nicola Sacco and Bartolomeo Vanzetti by way of an impressive lawyer-like article he published in the Atlantic in 1927; the article was thereafter expanded into a small book. And, of course, there is more, much more, which brings me back to that article I alluded to earlier.

Sujit Raman

Sujit Raman

Sujit Raman (the chief appellate lawyer in Maryland’s U.S. Attorney’s office) has just published an engaging and highly informative article. Its title: “Felix Frankfurter and His Protégés: Re-examining the ‘Happy Hot Dogs.’” It captures Felix in all his complexity and does so with objective nuance. With skilled brevity Raman also sketches the story of the Jewish immigrant’s struggle to assimilate, the Harvard Law student’s meritocratic success, the progressive’s desire to improve government when he went to work for Henry Stimson (first in New York and then in Washington, D.C), and then the Harvard professor’s cultivation of the best and brightest, whom he invited to his Sunday teas.

Above all, Sujit Raman’s real story is about Felix Frankfurter’s “greatest legacy,” namely, the “legions of students he trained and nurtured at the Harvard Law School, . . . who, in their own right, shaped the age in which they lived.” Consistent with that objective, Frankfurter’s “avowed intent as a professor was to instill in his students an interest in public service, and from his earliest days, he began collecting recruits for his crusade.” In time, they would come to be known as Frankfurter’s “Happy Hot Dogs” as Hugh Samuel Johnson tagged them.MTE5NTU2MzE2MjE5NDc1NDY3

Could he be snobbish? Yes. Could he be petty? Yes. Spiteful? Yes. Did he delight in manipulating matters from unseen sidelines? Yes again.

Clearly, F.F. had his psychological warts. Yet, when one steps back and beholds the man and this patch of his life work at a detached distance, he stands rather tall. Why?

Now, to cut to the chase: “Frankfurter was one of the New Deal’s intellectual architects as well as one of its most accomplished draftsmen of policy – yet he had no legislative portfolio or any official position in the Roosevelt Administration.” Moreover, adds Raman, “Frankfurter was the New Deal’s principal recruiting agent. He placed his protégés in all levels of government, and consequently his vision was carried forth, albeit indirectly, by his able lieutenants.” In sum, “the New Deal was in many ways the embodiment and culmination of Frankfurter’s life work.”

James Landis

James Landis

In the span of 28 pages (buttressed by 127 scholarly endnotes), Sujit Raman fills in many of the blanks in the Professor-and-the-New-Deal story. While he is cautious not to exaggerate Frankfurter’s role and influence, Raman’s account makes it difficult to deny the remarkable magnitude of Frankfurter’s unique impact on public law and its operation at a crucial stage in our legal history.

True, the “Happy Hot Dogs” story has been told before and from a variety of perspectives (see, e.g.,  here and here). Even so, Mr. Raman does what others before him have not quite done: he tells the story in a concise yet authoritative way and with enough panache to draw the reader back in history for glimpses into the exciting world of F.F. and his adept protégés – the likes of Thomas G. Corcoran (video here), Benjamin V. CohenJames M. Landis, David Lilienthal, and Charles Wyzanski, among others. They were all part of Frankfurter’s network, all “elite lawyers” hand picked because of their ties to F.F. and their “reformist inclinations.”

Whatever your opinion of Felix Frankfurter, his star may yet brighten anew, though probably not in the universe of Supreme Court history and jurisprudence. His true galaxy was elsewhere – in that realm where the “minds of men” move the gears of government to places only once imagined in classrooms in Cambridge.

Ask your librarian for, or go online or order a copy of, Sujit Raman’s illuminating article in volume 39 (March 2014, #1, pp. 79-106)) of the Journal of Supreme Court History. Better still, join the Supreme Court Historical Society. Either way, it will serve you well.

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Tony Stewart, Kevin Ward, Jr., and Murder

As many of you have probably read by now, NASCAR driver Tony Stewart is reported to have killed Kevin Ward, Jr. during a dirt track race in New York. If you are curious to see what happened, Deadspin has the video posted here. In the lap previous to Ward’s death, it appeared that Stewart’s car made contact with Ward’s causing Ward’s car to collide with the track wall. Ward exited his vehicle and and walked toward the inside of the track making angry gestures (presumably at Stewart). The racers were under a caution flag after the collision between Stewart and Ward. As Stewart’s car approached Ward, Ward appeared to shout and wave his arms in an angry manner. Stewart’s vehicle appeared to fishtail and strike Ward. Ward was caught in a rear tire of Stewart’s car and was flung a significant distance. Ward’s body laid still on the track and he was later pronounced dead.

Not surprisingly, such an event has triggered strong emotional responses on Twitter and throughout the Web. Many have declared this case an obvious murder. Others have said that Stewart committed vehicular manslaughter. Others have put the blame squarely on Ward for walking into dangerous traffic on a dirt track. I thought it was worth shedding a little light on the topic based upon what the actual law is and the common mistakes observers are making about that law.

Unless Stewart states that he meant to kill Ward (which there is no indication he will do), the likely only viable theory of murder under New York law is murder in the 2nd degree which is defined as:

“Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person…”

Some who witnessed the event and/or the video have stated that Stewart appeared to accelerate in an effort to either bump Ward or spray dirt at him. It is possible that such conduct could rise to the level of “depraved indifference” or at least get to the jury on that question. Other videos or statements might contradict that theory.

Unless I am misreading NY law, I don’t think vehicular manslaughter is an option for the state (unless Stewart was intoxicated). I’m happy to hear from NY criminal law experts in the comments if I am mistaken. That would mean that the general manslaughter provisions would have to be used. First degree would require:

“1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or 2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.”

If the state could prove that Stewart meant to physically hit but not kill Stewart, “1.” could apply. If Stewart actually meant to kill Ward, but was under an extreme emotional disturbance (e.g. rage due to race and prior accident), then “2.” could be a viable outcome.

Second degree manslaughter is fairly straight-forward in New York:

“He recklessly causes the death of another person…”

Although “recklessly” appears as the mens rea requirement for both 2nd degree murder and 2nd degree manslaughter, the type of recklessness required to prove murder (“depraved indifference”) is tougher for the prosecutor to show.

There is also a possible negligent homicide charge which is defined as:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”

Commentators who believe Ward’s “recklessness” or “negligence” make Stewart innocent of wrongdoing will likely disappointed in how criminal law works in this area. The thought processes of the Ward are irrelevant to whether Stewart would be guilty of murder or manslaughter. The conduct and thoughts of Ward are only meaningful under criminal law insofar as Stewart understood them and took action as a result. So, if Ward made it impossible for Stewart to avoid him (which there is no indication of), then the causation element of murder or manslaughter wouldn’t be met. Similarly, if Ward provoked Stewart in a way that was legally sufficient to trigger an extreme emotional disturbance (again, there is no evidence of this that I have seen), then Stewart should not be convicted of murder. It is a common mistake for 1L’s to focus on the victim’s actions and thoughts in analyzing negligence/reckless fact patterns in Criminal Law and so it is not at all surprising to see such confusion in public discourse. In such cases, it is even theoretically possible for a defendant to be guilty of murder or manslaughter, but not the tort of wrongful death (despite the difference in burden of proof) because tort law more directly includes the conduct of the victim in determining wrongdoing. Criminal law, on the other hand, puts the focus squarely on the acts and thoughts of the defendant.