A New Twist on Traffic Stops
There are a jazillion Fourth Amendment cases involving automobile traffic stops that begin with the stop and end with a search of the car and the discovery of drugs inside. But how many cases are there that involve a traffic stop of a guy riding a bicycle that leads to a search of the bike and discovery of drugs inside the bike? Today’s decision by the Fourth Circuit in United States v. Currence is the first one I have read. With gas prices up, maybe we’ll be seeing more of these.
Thanks to Decision of the Day for the link.
Why Does SSRN Require Readers To Visit An Abstract Page?
I was interested in this discussion at Prawfs between bigwigs at SSRN and bePress about the relative merits of these two important services for viewing legal scholarship online, and was particularly intrigued by Bernie Black’s explanation of why you can’t download a paper from SSRN without first visiting the paper’s abstract page. I’ve always found this element to SSRN kind of annoying: I want people to read my papers, and I don’t want them to get lost or give up at the abstract page.
So why does SSRN require the abstract page? If I understand Bernie correctly, the goal is to ensure that each counted download is a reliable signal of a reader’s genuine desire to read that particular paper:
SSRN takes great care to ensure that paper downloads are an accurate measure of reader interest in an author’s work. First, we ensure that only informed decisions to view a full text of a particular paper, rather than uninformed explorations triggered by a catchy or vague title, count as a download. Every download starts with a reader visiting the paper’s “abstract page”. Only readers who still want the paper, after seeing the abstract, can download the paper. In general, only one out of three abstract views result in a download.
Interesting. I wonder, though, is a decision to download a paper from an abstract page really an “informed decision”? Isn’t it just based on the title, the author, and a catchy abstract? And if the one-out-of-three ratio is pretty widely shared across different papers, which in my experience it is, is the abstract page really informing readers versus just making it harder to see the paper itself?
To be clear, I think having an abstract page has some advantages for some readers. For example, it makes it easier to surf around without using lots of bandwith. If you’re on a slow connection, it makes it easier to look around without waiting for .pdfs to load. But it’s not obvious to me that the abstract page means that the downloads are more meaningful. (I should add the caveat that I don’t know if download numbers are ever meaningful, but that’s a debate for another day.)
On a more cynical note, I wonder how much of SSRN’s business model hinges on abstract visits. SSRN is a for-profit business, and in addition to bringing law to the people they presumably also want to maximize their revenue. As best I can tell, the abstract page is where SSRN posts its advertisements: Every SSRN abstract page has one of those annoying “Ads by Goooooogle” strips down the right hand side of the page that posts a series of topic-specific advertisements.
I don’t know how much SSRN makes from its Google AdWords advertising, but the amount might be significant. People who view SSRN abstracts are a very specific marketing target group, and SSRN probably gets on the order of 100,000 abstract page reloads a day. (Or more, perhaps much more.) As a result, getting rid of the abstract page presumably might lead to smaller profits for the owners of SSRN, a group that I believe includes Bernie Black. Of course, whether that is an important part of SSRN’s business model or just a bonus resulting from SSRN’s focus on meaningful downloads is something that only the SSRN folks can answer.
Posner on Breyer’s “Active Liberty”
Judge Richard Posner reviews Justice Stephen Breyer’s book “Active Liberty” in the latest issue of the Yale Law Journal: Justice Breyer Throws Down the Gauntlet (.pdf, 19 pages). An excerpt:
[A]bstractions like “democracy” and “active liberty” are so vague and encompassing that they can be deployed on either side of most constitutional questions. A decision invalidating a statute on constitutional grounds may seem undemocratic, but even if it is not a democracy-enhancing decision (as reapportionment decisions are widely thought to be), it can be defended as an application of the “higher democracy” embodied in the Constitution. So originalists are democrats along with the loose constructionists. Likewise federalists, who want to honor the democratic choices made at the state and local level, and nationalists who want to honor the democratic choices made at the federal level. And are judges more democratic when they are giving legislators a helping hand (loose construction) or when they are sticking to the statutory language (strict construction)?
. . . [T]he curious consequence of [Breyer’s] eclecticism is that it puts the judge in approximately the position he would occupy if he had no constitutional theory. For couldn’t Justice Breyer pull a stick out of his bundle to justify any decision that he wanted to reach? It’s not as if the sticks have different weights; each is available to tip the balance in a particular case. Breyer has articulated an approach that appears to be loose enough to accommodate any result that a judge might want to reach for reasons the judge might be unwilling to acknowledge publicly, such as a visceral dislike for capital punishment, abortion, affirmative action, or religion.
The idea that conservative Justices do not legislate from the bench is rhetoric rather than reality. It is seductive rhetoric; it may have seduced Justice Breyer, who insists that he doesn’t legislate from the bench either, that he is the better originalist because he grasps the democratic character of the Constitution. At this level, the debate between conservatives like Scalia and liberals like Breyer is a semantic fog. Because of the vagueness of the Constitution’s key provisions and the strong emotions that constitutional cases arouse (in part because of the large, well-nigh irreversible consequences of the decisions in some of these cases), Justices are forced back on personal elements, which include ideology as shaped by temperament, experience, and deepseated beliefs, in deciding how to vote. It has always been thus and always will be. Lawyers will want to read Justice Breyer’s engaging book not to find the Holy Grail of constitutional and statutory interpretation but to learn about Breyer’s values, about what makes him tick as a Supreme Court Justice, and about how therefore to craft arguments that will have a chance of persuading him.
You can check out other reviews of Breyer’s book by Cass Sunstein and Paul Gewirtz, along with the rest of the latest issue, at this page.
A Comment About Comments
I haven’t posted about my comment policy for a while, and it has morphed a bit over time, so I thought I would explain the comment policy for those who are interested.
First, comments here are moderated. My goal in moderating comments is to ensure a productive and interesting debate. Fortunately, most of the comments this blog receives are good: I would say I end up approving about 80% of the submitted comments.
The flip side of that is that I end up not posting about 20% of the submissions. The most common ground for rejecting a comment is relevance: Sometimes commenters just want to vent about something, and it has nothing in particular to do with the post or the comment thread. I also occasionally reject comments that are just repetitive with other comments, and I occasionally reject comments when it seems to me that the author just doesn’t have a clue what he is talking about. These are editorial judgments, of course, and I apologize if I make a mistake once in a while. But my sense is that I can create a more useful forum for readers by moderating comments that way, even if it takes up my time to do it.
Two more points. First, some commenters have pre-approved names/e-mail addresses: When the software recognizes a comment from them, it posts the comment automatically without waiting for moderation. I mostly reserve this for people I know, or know of, or who have a history of submitting good comments. (It’s theoretically possible to game that system, but so far this hasn’t happened: If it does I’ll just move to a more formal account-based system.) I also reserve the right to edit submitted comments. Sometimes readers will submit a long comment that has a great beginning, but that goes on forever or that changes topics midstream. I reserve the right to edit the comment, along the lines of a letter to the editor.
Finally, I realize that this comment policy isn’t to everyone’s liking. Some people think it is very important for anyone to be able to comment on a post, and think that the blog is better on the whole with more comments rather than fewer. I can certainly see that argument, but I’m trying something a bit different here. I hope most readers find it helpful, even though I realize some may disagree.
Partners, Associates, and Law Firm Feedback Loops
Associates at many large law firms often complain that partners are much more interested in making lots of money than helping them develop skills. In particular, partners love to pick up clients that have mind-numbingly boring legal problems requiring lots and lots of billable hours. The hours billed translate into lots of money for the partners, and the years spent on boring if not useless work is suffered primarily by the associates instead of the partners.
Maybe I’m completely offbase here, but it seems to me that law students interviewing for associate positions really should want to know which big firms are the worst offenders in this category. At the same time, my sense is that they have relatively little way of finding that out. I remember being pretty clueless when I was interviewing for summer associate gigs: I had a rough sense of the size and prestige of different firms, and I had a vague sense that I wanted to do “litigation,” but other than that I really didn’t even know what kinds of questions to ask. Looking back on it, the firm’s enthusiasm for taking painfully boring but high-billing work would have been a pretty useful piece of information. It’s not the kind of question you would bring up in an interview, of course, but it would be a good thing to know.
So here’s the question: Is there a good way to get feedback to law students and other applicants about a given firm’s client selection priorities? There are lots of indirect ways, I realize, such as associate satisfaction surveys and retention rates. But my sense is that students would be able to make better choices — and law firms would be able to better balance the tradeoffs of money versus quality associates — if there were a more direct way for potential employees to know how employers viewed the business side of the firm.
Any thoughts? Or is the question silly, because all firms view the business side in the same way?
Tim Wu at Lessig Blog
Tim Wu is guestblogging at Lessig Blog this week, mostly writing about his terrific new book co-authored with Jack Goldsmith, “Who Controls the Internet?”
2007 AALS Annual Meeting Moved to DC
E-mail from Carl Monk tells me that the AALS Annual Meeting (not the meat market, but the sort-of-academic conference) in January 2007 has been moved from San Francisco to Washington, DC, because of continuing labor disputes in San Francisco:
Many of you will recall the labor problems that threatened to cause strife during the 2005 Annual Meeting. Those problems have not been resolved, and there is currently a public union boycott of all of the major properties in San Francisco. Based on many discussions with both labor officials and hotel management over the last few months, we have concluded that there is a reasonable possibility that the current boycott could result in a strike during the time of the AALS Annual Meeting.
AALS has not investigated the merits of the San Francisco labor dispute and takes no position on that dispute. It is clear however that the quality of the Annual Meeting, and attendance at the meeting, would be negatively affected in the event of a strike. Some speakers would decide to cancel and, in all likelihood, it would be too late for Sections to substitute equally well qualified speakers; some potential registrants would also choose not to attend the meeting.
Moussaoui Will Not Receive the Death Penalty, Jury Decides
So sayeth the news wires. Given that he pled guilty to the murder count, I would imagine that this is pretty much the end of the story (legally, at least).
Lecture by Justice Breyer
The Associated Press has a report on Justice Breyer’s recent lecture at New York Law School. According to the report, Justice Breyer argued that the heart of the Constitution is democracy, democracy has boundaries, and the Supreme Court is “the boundary patrol” of that democracy. You can view Justice Breyer’s lecture here, beginning at around the 10:40 minute mark. Thanks to Howard for the link.
I Suppose If You Put It That Way….
In response to Peter Lattman’s question whether big firm associates who decide not to try for partnership are slackers or just smart, someone with the pseudonym “NYC First-Year Associate” left this comment:
Wouldn’t you question the logic of people who worked 70 hours a week in exchange for a six percent chance at a promotion that is only possible 8.5 years down the road?
Picker on Copying
Over at the U of Chicago Faculty Law Blog, Randy Picker has a very interesting post on copying, plagiarism, and copyright infringement.
Explaining the Cooler Bench
Linda Greenhouse has an interesting article in the New York Times on oral argument and the Roberts Court that points out that the Justices are asking fewer questions and giving litigants more time to answer. The question is, why?
Has Chief Justice John G. Roberts Jr., himself the veteran of 39 Supreme Court arguments as a lawyer, shared with his colleagues the perspective from the other side of the bench, or maybe even laid down some new rules?
The latter theory is unlikely; the court’s ethos calls for signaling rather than rule-making. To the extent that the new chief justice is leading by example — and there is no doubt that he is in charge of the courtroom — he is offering a model of how to ask questions that are tightly phrased, penetrating and often the last thing a lawyer wants to hear.
This is just speculation on my part — I have only seen one day’s argument with the new set of Justices, and didn’t notice a difference in the argument — but I wonder if there is an easier explanation. When the same set of nine Justices had been on the bench together for eleven years, the dynamics were well-settled. Everyone knew who the swing vote was, and how other Justices might react to a given line of questioning. With new Justices, there is much more uncertainty. And with uncertainty comes fewer questions. That’s one theory, at least.
Mexico to Legalize Possession of Small Amounts of Cocaine, Heroin, Marijuana and Other Drugs
According to the Associated Press, President Vincente Fox of Mexico is set to sign a bill that will legalize the possession of ‘personal use’ amounts of marijuana, cocaine, heroin, and unnamed “other drugs.”
Millions of Americans live near the U.S-Mexico border. In light of that, the Mexico law raises an interesting question: Is it legal for an American citizen to travel to a foreign country where drugs are legal, to take the drugs in that country, and then to return to the United States? I don’t know, but I’m sure some readers do (purely out of academic interest, of course).
WSJ on Unhappy Associates
Today’s Wall Street Journal has an interesting story, Law Firm Life Doesn’t Suit Some Associates (pass-through link). Okay, so this isn’t exactly breaking news or anything, but the piece is still worth a read. It begins:
At most big law firms, the partner-associate compact goes something like this: The partners give the associates big salaries, meals on the client, cars home at night, fancy offices, secretaries and a prestigious name on their résumés. The associates give their complete professional devotion and availability — every hour of the day, every day of the year.
That compact has gone unspoken, and largely unquestioned, until recently.
More and more associates at law firms across the U.S. are second guessing whether they want to sign over their lives to their jobs. Some are working fewer hours. Some are losing interest in making partner. And they are leaving big law firms in droves: “The rate of associate attrition we’re seeing today at big firms is the highest level we’ve ever seen,” says Paula A. Patton, chief executive of the NALP Foundation, a nonprofit group in Overland Park, Kan., that examines law-firm hiring trends and practices.
Hat tip:WSJ Law Blog.
New Right to Take Drugs Announced Today by D.C. Circuit
The D.C. Circuit announced a new fundamental constitutional right today in Abigail Alliance for Access to Better Drugs v. Eschenbach. I assume you would like to know what your fundamental constitutional rights are, so here is the new one:
the right of a mentally competent, terminally ill adult patient to access potentially life-saving post-Phase I investigational new drugs, upon a doctor’s advice, even where that medication carries risks for the patient.
First, some background. The FDA has a policy forbidding the sale of of new drugs that the FDA has determined, after Phase I trials on human beings, are sufficiently safe for expanded human testing (Phase II of the approval process) but are not yet approved. A group of terminally ill patients wanted the FDA to permit them to use the investigational drugs even if they are risky and not approved. They sued the FDA, claiming that the the FDA’s policy violated their constitutional right to take drugs. The district court dismissed the complaint on the ground that the patients had no such constitutional right.
The D.C. Circuit reversed in a divided opinion by Judge Bazelon Judith Rogers. The court held that that the FDA policy infringed a fundamental constitutional right and remanded to the district court to determine if the FDA’s regulatory scheme could survive strict scrutiny. As I understand the opinion, the basic reasoning of the opinion is as follows:
(1) The right to control one’s body is fundamental, Cf. Cruzan, and also implies a right to preserve oneself.
(2) If you have a right to preserve oneself, you have a right to access medications that you think you need to preserve oneself.
(3) Regulating drugs interferes with your right to access medications which you think you need to preserve yourself.
(4) Regulating drugs is a historically recent practice.
(5) The historical absence of drug regulation implies an “individual liberty deeply rooted in our Nation’s history and tradition” to be free of drug regulations.
(6) The FDA’s ban on the sale of unapproved but initially tested life-saving drugs infringes that liberty interest in the case of terminally ill patients.
(Cites to articles by Larry Tribe and Robert Post along the way, natch.) The opinion’s holding:
We conclude, upon applying the Glucksberg analysis and heeding the protected liberty interests articulated by the Supreme Court, that where there are no alternative government-approved treatment options, a terminally ill, mentally competent adult patient’s informed access to potentially life-saving investigational new drugs determined by the FDA after Phase I trials to be sufficiently safe for expanded human trials warrants protection under the Due Process Clause.
Douglas “Constitution in Exile” Ginsburg joined the majority opinion; Judge Griffith dissented. Hat tip: Howard.
A Thought on Law and Technological Change
Excellent feedback on my Bloggership paper (from Larry Solum, James Grimmelmann, Michael Froomkin, and others) reminds me of a recurring problem that arises when we write about the social impact or legal implications of any new and developing technology. Technology is always a moving target, and you don’t know exactly what it will look like tomorrow. This means that you face a choice: Either you can write about what the technology looks like today, or else you can imagine what you expect the technology will look like tomorrow. If you write about the technology today, you risk mistaking an accidental trait for an inherent one. If you speculate about what the technology may become, you risk ignoring reality by simply assuming problems away. To get around this problem, you need either a crystal ball or exceptionally good luck.
John Roberts, Samuel Alito, and Second-Principles Conservatism
Today’s decision in Holmes brings up a question that I have been wondering about ever since Roberts and Alito were nominated: What kind(s) of conservatives are Alito and Roberts, and how different will they be from Scalia and Thomas? Here’s a bit of speculation. To be clear, I’m the first to admit that we don’t yet have the evidence to prove this argument is correct; that’s why I call it speculation, after all. But hopefully the speculation is at least food for thought.
My speculation is that Roberts and Alito will end up harkening back to an older kind of judicial conservatism — a conservatism more like Justice Harlan or Justice Frankfurter than Scalia or Bork. If you’ll allow me to paint with a very broad brush, Justices Scalia and Thomas have a radical element to their approach to constitutional law. They see the Court as having deviated from the true Constitution, and to varying degrees want the Court to return to first principles. You can see this when either Thomas or Scalia writes an opinion suggesting a significant change in Supreme Court doctrine, such as Scalia’s majority opinion in Crawford v. Washington or Thomas’s concurrence in United States v. Lopez. A careful reader senses a certain excitement, a freshness, in the tone of the opinion.
My guess is that Alito and Roberts will end up being quite different. My sense is that both Justices are basically at peace with the Warren Court. To be sure, they wouldn’t have joined the Warren Court’s more controversial opinions, and they may be willing to soften some hard edges of those opinions over time. And they’ll probably end up voting with Scalia and Thomas in a lot of cases.
At the same time, my guess is that Roberts and Alito are conservatives more in an institutional sense. If Scalia and Thomas are first-principles conservatives, Alito and Roberts are more second-principles conservatives. There’s more Bickel and less Bork; more of a focus on craft within the four corners of existing precedents and principles than a return to first principles.
That’s my speculation, at least. Your thoughts?
Computers, Freedom & Privacy Conference
The annual Computers, Freedom & Privacy Conference is being held in Washington, DC, this week, starting tomorrow and continuing through Friday. Tomorrow morning, Michael Woods and I will be co-teaching a tutorial on electronic surveillance statutes:
ECPA, FISA, and Other Four Letter Words
This tutorial will present an overview of the two statutes that regulate Internet surveillance: the Electronic Communications Privacy Act (ECPA) and the Foreign Intelligence Surveillance Act (FISA). The tutorial will explain why the statutes were passed, how they work, and, in some cases, how they don’t work.
I’ll also be participanting on a Friday panel on cell-site surveillance. You can get the entire schedule for the conference here.
Holmes v. South Carolina and Constitutional Theory
Today’s decision in Holmes v. South Carolina provides an interesting data point (datum?) for those who like to debate the impact of various theories of constitutional interpretation on the Supreme Court. The Holmes case applied a line of Supreme Court precedents that sets up a balancing test, and all nine Justices signed on to Justice Alito’s opinion. The opinion simply applies existing precedent without resorting to any first principles. I’m not saying that this decision is unusual: What’s interesting is how common it is. In most constitutional cases, the Justices apply a body of precedent and reach outcomes quite apart from any grand constitutional theories. While some may believe that “stare decisis is fo’ suckas,” reliance on precedent remains the default mode of analysis in Supreme Court decisions among all nine of the Justices.
Alito’s First Opinion Gives New Trial to Capital Murder Defendant on Due Process Grounds
The Supreme Court handed down Holmes v. South Carolina today, the first opinion by Justice Samuel Alito. In this case, a very elderly woman was brutally raped, which led to serious injuries and eventually her death. Holmes was charged with capital murder, and his lawyer’s defense was (in part) that the crime had been committed by another person, Jimmy White. The trial court excluded this defense. The Supreme Court of South Carolina affirmed the conviction, ruling that the government’s evidence against Holmes was so strong that the evidence that Jimmy White had committed the offense was inadmissible.
In the decision announced today, the Supreme Court unanimously reversed. According to Justice Alito, the South Carolina court had taken a standard evidentiary rule that courts can exclude evidence that is unduly distracting and “radically changed and extended the rule” starting in a 2001 decision to regulate when defendants are allowed to put on particular defenses. Instead of excluding evidence when it would be too inflammatory or distracting, the new rule gave judges the power to look at the government’s case and then decide whether the defense could go on in light of the judge’s sense of its strength. According to Justice Alito, this rule was inconsistent with the Due Process requirement (as articularted in prior precedents) that a defendant’s right to put on a defense cannot be abridged by evidence rules that infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve.
From the opinion:
The rule applied in this case appears to be based on the following logic: Where (1) it is clear that only one person was involved in the commission of a particular crime and (2) there is strong evidence that the defendant was the perpetrator, it follows that evidence of third-party guilt must be weak. But this logic depends on an accurate evaluation of the prosecution’s proof, and the true strength of the prosecution’s proof cannot be assessed without considering challenges to the reliability of the prosecution’s evidence. Just because the prosecution’s evidence, if credited, would provide strong support for a guilty verdict, it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case. And where the credibility of the prosecution’s witnesses or the reliability of its evidence is not conceded, the strength of the prosecution’s case cannot be assessed without making the sort of factual findings that have traditionally been reserved for the trier of fact and that the South Carolina courts did not purport to make in this case.
The rule applied in this case is no more logical than its converse would be, i.e., a rule barring the prosecution from introducing evidence of a defendant’s guilt if the defendant is able to proffer, at a pretrial hearing, evidence that, if believed, strongly supports a verdict of not guilty. In the present case, for example, the petitioner proffered evidence that, if believed, squarely proved that White, not petitioner, was the perpetrator. It would make no sense, however, to hold that this proffer precluded the prosecution from introducing its evidence, including the forensic evidence that, if credited, provided strong proof of the petitioner’s guilt.
The point is that, by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is “arbitrary” in the sense that it does not rationally serve the end that the Gregory rule and other similar third-party guilt rules were designed to further. Nor has the State identified any other legitimate end that the rule serves. It follows that the rule applied in this case by the State Supreme Court violates a criminal defendant’s right to have “ ‘a meaningful opportunity to present a complete defense.’ ” Crane, 476 U. S., at 690 (quoting Trombetta, 467 U. S., at 485).
Very good stuff, I think. The reasoning is tight and highly persuasive, and Alito speaks from experience in the field of criminal law. This was ‘only’ a unanimous opinion, but I take it as a sign of good things to come from Justice Alito.