Begging The Question

Saturday, January 21, 2006

Go Hug Yourself
According to this article in the Montgomery Advertiser, Saturday is National Hugging Day. I find the article humorous because it proposes a hug quota I'm running way behind, and because its headline purports to be the findings of a "survey" on people's willingness to be hugged by strangers. (In the words of the article, "There are many likes and dislikes, do's and don'ts that define and divide our nation -- churchgoers and heathens, Democrat or Republican, Auburn or Alabama, Cat People vs. Dog People. But few lines in the sand are harder to cross than that which separates huggers and non-huggers.") So someone accosts twelve random people with an offer of hugs, and two turn her down. The article declares this to be a finding that 1 in 6 don't like hugs. I think the methodology is a bit suspect, but I'll accept the general premise that some people aren't huggers. I suppose I don't mind a hug, so if you run into me on Saturday, feel free to help me meet my quota. And good luck meeting yours.

Thursday, January 19, 2006

Sweet Soul Music
I thought it was interesting that soul/R&B singers Lou Rawls and Wilson Pickett both died this week. It's not like Thomas Jefferson and John Adams dying the same day or anything, but Sweet Lou Rawls and Wicked Wilson Pickett do have a link that goes back decades. They were both mentioned in Arthur Conley's classic 1967 tune, "Sweet Soul Music." The song is a tribute to the best soul singers back then, including Rawls, Pickett, Sam & Dave, Otis Redding, and of course, James Brown, the king of 'em all, y'all. But now the song is starting to sound a little grim, like it's a jinx or something. As of today, Rawls, Pickett, Redding, Dave Prater, and even Conley are dead. If I were Sam Moore or James Brown this week, I'd be very careful, and take an extra vitamin. This white boy's going to go put on some sweet soul music, and I recommend you do the same.

Ayotte and John Roberts
Via PrawfsBlawg, I found this excellent analysis at Balkinization of yesterday's Supreme Court decision in Ayotte v. Planned Parenthood, the New Hampshire case concerning minors' access to abortions. Does anyone remember that old marketing line, "When you're really good, they call you Cracker Jack"? Well, the Ayotte decision convinced me that John Roberts is Cracker Jack.

When the case was argued, it became pretty clear that the decision wouldn't produce some sweeping statement about the continued legality of abortion in America. Still, it seemed unlikely that there would be a compromise, unanimous decision. In fact, many people were speculating that the case would have to be reargued after Justice O'Connor's replacement took the bench. However, a unanimous decision is what we got. There wasn't even a rogue concurrence or one of those dissents from a footnote. The opinion looked more like one of the Court's many summary reversals of a Ninth Circuit habeas decision than a potentially major case on abortion, remedies, and statutory interpretation.

Certainly O'Connor has to get a lot of credit for that. In what may be her last opinion for the Supreme Court (note that I don't say her last opinion ever; I think it would be a lot of fun to see her sit by designation on the circuit courts from time to time), she produced something all the Justices felt comfortable signing off on. But she only had that chance because the Chief Justice assigned her to write the opinion. Maybe that was a no-brainer, assigning the opinion to the "swing vote" and simultaneously giving Justice O'Connor a chance to write something of a valedictory opinion on what is one of the defining issues of her tenure. And maybe the others all signed on as much out of affection for O'Connor as out of complete agreement with the language of the opinion.

But this Court isn't stocked with shrinking violets. No one would have been surprised if Ayotte turned out 5-4 (and all the news reports would have said how fitting a farewell that is for O'Connor the swing vote). No one would have been surprised to see Justices Scalia or Thomas file an opinion reminding us of their opposition to the underlying abortion jurisprudence. Professor Balkin notes at least twice his surprise that these more conservative Justices went along with O'Connor's language.

But consider what would have happened if one or both of those two decided to file a separate opinion. Suddenly Chief Justice Roberts has a tough decision to make. Either he would have to sign on with Scalia and/or Thomas, or stick with O'Connor. And either way, he would have made somebody mad. If he had signed on to O'Conner's opinion, and not joined a statement by Scalia and/or Thomas repudiating the abortion decisions, Roberts's conservative supporters would have been incensed. Accusations of a second Souter-ing! Wailing and rending of garments! Frankly, they would have seen it as a betrayal of their support for Roberts and the man who nominated him, President Bush. While such a refusal could have been explained as perfectly consistent with the notion of judicial restraint -- not expounding on issues not required for the decision -- abortion opponents would have seen it as a sign that Roberts wasn't with them 100%.

On the other hand, signing on to an opinion from Scalia or Thomas would cause problems, too. Roberts, after all, told the Senate Judiciary Committee that the abortion decisions deserved respect as precedents. Going out of his way to malign those precedents so early in his tenure would simply confirm liberals' fears that he was a "stealth" nominee. But with Roberts safely on the Court, the only target for Roberts's opponents would be Judge Samuel Alito. Being "burned" so recently by Roberts, they would adopt a "fool me twice, shame on you" or "once bitten, twice shy" attitude towards Alito. I'll go so far as to say that I think if Roberts had not joined O'Connor's opinion in Ayotte, the Senate Democrats would have filibustered Alito.

Obviously, if I could see these consequences, I'm sure Scalia and Thomas could, too. But again, they're not exactly meek about their opinions. In fact, you could almost see one or both of them filing a separate opinion, either (a) as a final shot in the long-running roundabout with O'Connor over abortion, or (b) some kind of statement that they're above politics and will speak their truth regardless of the consequences. Political considerations certainly didn't lead them to back off in Bush v. Gore, after all.

For whatever reason, though, Scalia and Thomas kept silent in Ayotte. I certainly have no inside knowledge. Maybe they came to that conclusion wholly on their own, or maybe Roberts persuaded them to go along with O'Connor's opinion. Note also another potential consequence, if Scalia or Thomas had written a dissent that Roberts decided to join: In that event, as a Justice in the minority, he would have lost the power to assign the opinion. That responsibility would have fallen to Justice Stevens, and who knows what would have happened then.

Maybe I'm reading too much into all this. As Ed Whalen at NRO's Bench Memos noted (quoting a pro-life litigator), O'Connor's opinion was "probably the best that could be hoped for" by abortion opponents. Scalia and Thomas (and Roberts?) knew that staying in the fold increased the chances of a narrow opinion. But I think O'Connor could have gotten five votes even if she had written in much broader language.

So I have to think that, in addition to assigning the opinion to O'Connor, Roberts had a big hand in keeping the decision unanimous. Whether that was due to his persuasive abilities or merely the other Justices' consideration of the delicacy of his position, I can't say. But I can't help comparing this case to events in the book The Brethren in which Chief Justice Burger bungled. If Roberts were a weak Chief, he could have very easily mismanaged the Ayotte case. Instead, I think he's pretty sharp. It may be too early to call John Roberts "Cracker Jack," but I bet we will by the time he retires.

Tuesday, January 17, 2006

What is the Tipping Point for Constructive Notice? And What Will We Do Then?
I've been thinking lately about the idea of constructive notice. Constructive notice is a "legal fiction." Legal fictions are things we assume to be true in order to make the legal system run more smoothly, even if in some cases the assumed fact isn't true. My favorite is probably the assumption that juries always follow the judge's instructions. "The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process." Richardson v. Marsh, 481 U.S. 200, 211 (1987). (A close second is the admissibility of "dying declarations" over hearsay objections because "[t]he admission of the testimony is justified upon ground of necessity, and in view of the consideration that the certain expectation of almost immediate death will remove all temptation to falsehood and enforce as strict adherence to the truth as the obligation of an oath could impose." Mattox v. United States, 146 U.S. 140, 152 (1892). Or, to put it more colloquially, "No man would meet his maker with a lie upon his lips.")

Anyway, constructive notice is the legal fiction we use to assume that someone has received notice (usually of a lawsuit) even though the person may not actually know anything about it. Requiring "actual notice" in every case would be cumbersome and inefficient. The Supreme Court has generally upheld the concept of constructive notice against Due Process challenges by ruling that Due Process merely requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action." Often (along with mailing notice to the party's address), this includes publication of the notice in the local paper. You've probably seen these notices, but probably never read them in great detail. We resort to these methods when we can't give actual notice (for example, by hand-delivering a complaint on a defendant).

I'm generally okay with constructive notice. To require actual notice would encourage cat-and-mouse games by those trying to avoid process. It's inefficient. And note that the Fifth and Fourteenth Amendments require only "due" process, not "perfect" process.

As it turns out, the Supreme Court heard arguments this morning in a case involving notice. I didn't know this until I saw a nice description of the case on SCOTUSBlog, so maybe I have some kind of Supreme Court telepathy. The case is called Jones v. Flowers, and it came from Arkansas, but it's not a catfight over Bill Clinton between Paula Jones and Gennifer Flowers. It's about a guy who lost his house when he didn't get notice of the tax delinquency. He later sued, claiming the subsequent sale to a third party was invalid. Notably, the defendants in his suit rely in great part on the fact that they published notice of the tax sale in the local paper.

Will we ever get to a point where that isn't enough, not merely on the facts of particular cases but because Due Process requires something more? Legal fictions may be handy assumptions, but they should be based on a kernel of truth. There was a time when legal notices were tacked to the courthouse door, because that was a good way to get the news out in an age before broadcast media. The same was true of newspaper publication when nearly everyone read a newspaper every day. Publishing legal notices in the newspaper is a great way to inform somebody of pending legal action -- so long as that person reads the paper!

But newspaper readership has been steadily falling for years, and now only about half the population reads a paper every day. (link, link, link) (I'll note that older people are more likely to read the paper, and the population is aging, but I'm not convinced that will reverse the trend when the people getting older are the same ones not reading the paper now.) And even among those who read (some of) the paper, how many read the legal notices? How much more would newspaper readership have to decline before it becomes a farce to assume that publication of legal notices in the paper is sufficient "to apprise interested parties of the pendency of the action"?

Assuming that day ever arrives, what alternative is there? By then, we'll probably all have GPS chips implanted in our skulls, so process servers will be able to track us down. But failing that, will we make litigants buy billboards or tv commercial time in the hopes of reaching the non-newspaper reader? One benefit of more people reading newspapers online is that we could better track how many people clicked over to the legal notices page. (I tried to find them on a few big papers; it's kind of hard.) But what about notice via email? Delivery to someone's inbox seems as likely to reach the intended party as a tiny box in the back of the paper. And there are programs that would allow us to prove that the email was opened.

What about, instead of the newspaper, posting a notice on Craigslist? Craigslist has already changed classified advertising; legal notices seem to be a good fit for this system. A friend sends me news that South Korea has instituted a system of sending legal notices to cell phones. We could do that here, couldn't we? Moreover, there's no reason not to. If I'm trying to serve somebody, and my certified letter gets returned as undeliverable (like the situation in Jones v. Flowers), why not send an email, post a notice on Craigslist, and send a text message? They're all cheaper than running a classified ad in the newspaper (I'd do that, too, of course). That would provide at least a tiny bit of insulation against a Due Process challenge.

One day, courts will have to decide whether newspaper publication is good enough to provide enough notice that it's still fair to assume a party knows about the pendency of the action. And one day, courts will have to decide if a more high-tech method of providing notice is as good or better than newspaper notice. But at a minimum, we shouldn't be too wedded to legal fictions when the basis for them falls away. As always, your thoughts are appreciated.

I've Been Memed Again!
Kristine at Divine Angst tagged me with the latest meme, so here goes.

Four Jobs You've Had In Your Life
1. Lawyer
2. Substitute teacher
3. Intern at a publishing company
4. Counselor/tutor at a summer program for high school kids taking college courses. I was actually thinking of writing a post about that summer, but I'm not sure it would interest anyone else.

Four Movies You Could Watch Over And Over
1. Animal House
2. Boogie Nights
3. The Blues Brothers
4. All the President's Men

Four Places You've Lived
1. Durham, North Carolina
2. Arlington, Virginia
3. Charlotte, North Carolina
4. The city where I clerked

Four TV Shows You Love To Watch
1. My Name is Earl
2. Harvey Birdman
3. The Andy Griffith Show
4. Ellen

Four Places You've Been on Vacation
1. Disney World
2. Niagara Falls
3. Lansing, Michigan
4. "Knoxville! Knoxville! Knoxville!"

Four Websites You Visit Daily
1. Dilbert
2. Westlaw
3. The Corner
4. Slate
(I didn't want to play favorites amongst my blogging friends.)

Four Of Your Favorite Foods
1. Chick-fil-A fries
2. Bojangle's fries
3. Fuddrucker's fries
4. Sweet tea

Four Places You'd Rather Be
1. Back in law school
2. Back in my clerkship
3. Back in college
4. Back in bed

Four Albums You Can't Live Without
1. My Grateful Dead mix tapes
2. "Weezer" (The Blue Album)
3. "A User's Guide to They Might Be Giants"
4. "Genius: The Best of Warren Zevon"

Four People To Tag With This Meme
I hate tagging people with these things, so I'll throw it open to all comers. Have at it, folks!

Monday, January 16, 2006

Final, Final Thoughts on DNA
I know I said I was done with this topic, but after seeing this lame AP story via CNN today, I had to add a few thoughts. The story is about the "CSI effect" showing up in courtrooms ever more often. Jurors, having seen crime procedurals like "CSI" and "Law & Order," come to court expecting prosecutors to wrap up cases in a neat little bow, complete with all manner of forensic evidence like DNA. They get disappointed when such evidence isn't a part of the government's case.

The story is lame for at least two reasons. First, this is old news. PrawfsBlawg noted almost nine months ago a similar (and better) "Newsweek" article. While the AP story has a newer example or two, there's not much in there that couldn't have been written a year ago, and no specifics on whether the "CSI effect" has grown since then.

The other reason the story's lame is that it buys in to the government's position that the "CSI effect" makes things unfairly hard on prosecutors. While I know (and jurors are instructed) DNA and CSI-type forensics aren't required to prove a case, there's nothing wrong with jurors expressing skepticism over the evidence the government does offer up. A quote from the AP piece:
In one case, an 11-year-old girl pointed at a defendant and said, "That's the man who shot my father." But jurors found him not guilty. One later explained: "I would have liked to see some evidence, like finding the gun with fingerprints."
Now, of course, the witness's testimony was "some evidence," but couldn't the AP article have noted all the scholarly work highlighting flaws in eyewitness accounts? Without knowing anything else about the case, we can't say if the AP is right to present this as a case where the jurors acquitted a guilty man.

All in all, I think this is a slipshod, lazy piece of work. I don't really doubt the existence of a "CSI effect," but this story doesn't tell me very much about it.

A Few Questions About "24" (Warning: Spoliers)
I watched the season premiere of "24" tonight. I knew it was quite the television phenomenon, and knew the basic idea behind the series, but I had never watched an episode before tonight. I'm not even sure why I watched tonight, but I guess I just had the tv on Fox when it started, and once President Palmer got shot, I was hooked. I can certainly see why so many have found the show so compelling over the first four seasons. But I have a few questions for devotees.
  • First, if I start watching this season, will I be hopelessly lost trying to put together the backstory? If I decide to stick it out, I'll read some episode guides, but I'm not sure how much those will help.
  • When Jack Bauer ran into President Palmer's brother, it seemed like they knew each other. I assumed Palmer had been told that Bauer was a suspect, but there seemed to be more to it. Did they meet in a previous season?
  • I suppose there's only one super-agent Jack Bauer, but was Chloe a field agent? She didn't seem nearly as competent as Jack (except with the computer stuff).
  • Speaking of computers, and leaving aside Chloe's ability to log in to secure systems without anyone knowing, would it be common for one agent (Edgar, I think) to know another's (Chloe's) password?
  • When we heard that "chatter" indicated the Russian President's helicopter was a target, and everyone expressed relief when it landed without incident, shouldn't the natural assumption have been that he could be a target upon leaving the summit?
  • Okay, a few more speculative questions, just to see what your guesses are. How did President Palmer get info about the Russians? And doesn't it seem a little far-fetched that he would only tell the First Lady about it? And how did they know he knew about them? And why wait until that morning to kill him, given the chance that it might scuttle the summit? What are the Russians going to demand? How did the President's advisor get mixed up with them? And am I just dumb to look for any logic in all this?
I'll probably think of more questions after tomorrow's two-hour set. I'm usually very reluctant to jump into established series, but I thought tonight's show was pretty good. Thanks for your thoughts.

Sunday, January 15, 2006

Final Thoughts on Roger Coleman
When I was in college, I subscribed to an email list from an anti-death penalty organization. I quit reading it regularly years ago, but it still shows up in my spam folder. I was curious, though, what their response to the Roger Coleman news would be. Their response was pretty much what I predicted.

James McCloskey, the Director of Centurion Ministries, the group that has been at the forefront of Coleman's supporters, called the test results "a bitter pill to swallow" and "a kick in the stomach," because he has been promising Coleman since before the execution that he would clear Coleman's name. Peter Neufeld, co-founder of the Innocence Project said that the tests resolved one case, but "[d]on't answer serious doubts about the fairness of the criminal justice system." Abraham Bonowitz, the Director of Citizens United Against the Death Penalty, said, "I still find it difficult to believe that any human being could have done what the state said Coleman did in the time frame in which they said he did it," although he did acknowledge that the tests prove Coleman did it.

Other activists weren't so ready to give up on Coleman. Bonowitz quotes one emailer who wrote, "Many of us were convinced of his innocence, and many of us still are. I am. How do we know for sure that the DNA that was tested was actually his? Of, if it was really his, that it was not taken from some other source? All the eveidence, DNA and everything else, always resides in the possession of the police, coroner and/or DA. How can we be entirely certain that the evidence presented for testing was not bogus -- not as to its origin, but to where it was found? I don't trust the 'authorities.' Do you?" I don't think Bonowitz or many others think this way, but he printed it to his email list, which might mean he gives it some credence. (To be clear, I don't.)

I think death penalty opponents will eventually be able to accept that Coleman duped them, and/or will move on to the next "cause" case. But statements like the ones above are why I think the "finality" argument from those opposing DNA testing is specious. "Finality" isn't about ending all controversy over a case, it's merely about not being able to address those controversies in court. (Rare exceptions exist.)

There's an interesting story (subscription req'd) in the January "Texas Monthly" about the sorry state of the Houston DNA lab, Texas's new law allowing for DNA testing in old ("final") cases, and how some judges have been reading the law very narrowly and rejecting requests for testing. I just don't see any good reason not to allow testing in any case in which it could make a difference. So I'm glad it finally happened in the Coleman case. I didn't really care what the outcome was (although I'll admit it would have been a much more interesting story if the tests had exonerated him), but no one could really call the case "final" until now.

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    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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