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The Economics of Constitutional Challenges

February 20th, 2009

Most Americans understand, at some level, that they have certain constitutional rights. Most probably can’t name any but the most popular, and even then probably don’t understand the full scope or limits on those rights. Thankfully, we live in a time when most of these constitutional rights have been heavily litigated, producing reams and reams of case law. Today, if you were to be arrested in a way that violations an established constitutional rights, all you would have to do is pay for a lawyer to argue the case before a judge (sometimes just to the cops) and you get off for cheap. Heck, even a public defender can do that much.

In situations where the rights have not been litigated, or the case law is contradictory (a.k.a. racial factors in public education), you don’t have such cheep options. You either accept the status quo — generally set by the executive — or you hirer a lawyer to argue the case before a District Judge, an Appellate Judge, and then finally the Supreme Court. Such cases often run into the seven digits once everything is done. Thankfully, when most Americans find themselves on the expensive end of a Constitutional question, they can appeal to the ACLU to help out. The ACLU will marshal its army of pro bono attorneys and argue the case from start to finish. Pretty handy service. Read more…

probonogeek Law

No, amazon cannot decide you’re a felon, but…

December 4th, 2008

The Don–who came up with these names?–asked me if I would comment on the Lori Drew verdict. Instead of posting on his blog, I figured I’d post here and link from there, thus keeping all the juicy page views for me and my Google AdWords empire (I kid, I kid).

The general story here is that person did something most folks agree was bad, but since none of our existing criminal statutes really fit the action in question, the prosecutors in the case used the Computer Fraud and Abuse Act to seek conviction for what amounts to a violation of the MySpace Terms of Service. The Don expressed understandable apprehension to the idea that a corporation like Amazon could wield their TOS in such a way as to make site visitors into felons. But first a little context might assist in seeing if this is really a sign of the end of the world, or just another day in America.

Let’s start with the concept of trespass law. Now, there are some folks who say trespass law is stupid and people should be able to go where ever they like. If you fall into this group, you can just stop reading now, because I can’t help you. But assuming you agree that trespass law is good and proper, you have to ask yourself some questions. Consider your personal dwelling. If someone comes into your house uninvited they are obviously trespassing. It’s a clear cut case and criminal prosecutors will have no problem getting a conviction. Let’s change the fact pattern slightly and say instead of a house, it’s a store with a large public area for browsing the merchandise, and an employees’ only area in the back. Now, if someone goes into the public space, they aren’t trespassing, right? They have been invited into the space by the owner and are what we in the legal business would call an invitee. But once the visitor goes into the employees’ only space, they move from the invitee column into the trespasser column.

The question then is what makes the distinction between the public space where you’re an invitee and the private space where you’re a trespasser? The answer is private law. In the case of the store it’s enforced by a little sign posted on the door to the employee area that says “Employees Only.” Two little words, perhaps, but two words backed by the power of the state penal system. Essentially what we’ve done is say in the law “we think there are some places you shouldn’t be able to go, but since we can’t specify all those places, we are going to empower private law to specify on a case-by-case basis.” Now, of course, there are limits, like clear notice and the moderating force of a jury. I realistically can’t imagine a jury convicting someone mistakenly entering into an employee area, no matter how well marked it may have been.

These same principles apply to the internet just as well as they do to the physical word. In fact, there is a rather famous example of this sort of private law backed by criminal law that is clear as day… it’s called the DMCA. I wrote a post years ago on this very topic, feel free to read it if you have a moment. Owners of copyrighted materials can seek federal criminal prosecution if you break a “technological measure,” which could really be just as simple as a little button that says don’t copy me. The slashdot crowd goes crazy over this… how can it be a crime to break such a stupid technological measure, they demand to know! To which I ask, is it any more or less of a crime if I break into a locker with a tiny pad lock instead of a huge deadbolt? I certainly shouldn’t think so.

Which brings us back around to the Lori Drew verdict. MySpace makes clear that you are an invitee into their online space so long as you conform to their Terms of Service. The moment you stop conforming to their TOS, you become a trespasser… just as if you had entered into the employees only area. This isn’t to say that every violation of an online TOS is going to result in criminal prosecution, because we have prosecutors, judges, and juries all in the business of continuously evaluating what is and isn’t worth prosecuting on a day-by-day basis. Just because you engage in felonious acts doesn’t make you a felon, or we’d all be in the slammer. What it does mean is if you engage in activity that you know is wrong–even if that activity is solely online–and it ends up with someone dying, you’d best get yourself a lawyer.

probonogeek Law

On Citzenship, the 14th Amendment, and Political Discourse

June 15th, 2008

Unless you live in a some sort of political cave, by now you know the United States Supreme Court ruled that the denial of Habeas Corpus to detainees held in Guantanamo Bay by the Military Commissions Act of 2006 is unconstitutional. It was a 5-4 split decision with the dissenters saying some very nasty things that makes one think they were not talking to the legal world at large, but rather trading in fear mongering so often employed by those convinced of the “Islamofascist” threat. However, it is not my intent to quibble with either side of the decision… I think it’s pretty clear I support the majority’s approach here. No, my problem is with the political discourse that has emerged since the decisions announcement.

Republicans in Congress, in particular Senators who have enough personal clout to actually matter, have declared they will do whatever it takes to undo this “harmful” decision. John McCain and Lindsay Graham have both spoken of legislative efforts to narrow the scope of the decision. This, in of itself, is fine. In fact, it’s what is supposed to happen. The political branches make a law, the Court review the law with facts, rules whether it passes Constitutional muster, and if it doesn’t, the political branches go and give it another try. The problem is when these Senators craft their words as combative… that they will fight for the little guy to see justice done in the face of an evil, overbearing Supreme Court. It makes it sound as if the Senators are white knights out to rectify deep wrongs inflicted upon the helpless, regardless of the consequences. Passing over the obvious fact that it is the Courts, not the Congress, that is trying to grant some small level of humanity to the helpless, this sort of dialog only serves to tarnish the view of the Court in the public eye. The long term consequences of that tarnishing is no worse that the presidential reputation destroying effects of the last eight years of the Bush Administration. The Courts are our courts, and when we tear them down, we do ourselves no service.

This, however, is just a minor quibble… my real objection is to the language used to vilify not the Court itself, but the decision they rendered. Here is a typical example from John McCain, “[the detainees] are not citizens, they do not have the rights of citizens.” This is a true statement. The detainees are not citizens, and ergo do not have the rights of citizenship. So what?

Implicit in Sen. McCain’s language is that the rights granted by the Constitution are to be enjoyed by citizens, and citizens alone. Three interesting observations emerge from the language.

First, a simple word frequency analysis (a common tool of political scientist) of the United States Constitution reveals that the drafters and subsequent amenders were not very interested in the concept of citizenship beyond the right to vote. The term appears in the Constitution (including amendments) a grand total of of nine times. Five instances are in relation to the federal and state privileges and immunities clauses (more on that in a moment) and the other four times relate to voting rights or apportionment of representatives.

Second, the Constitution is not a positive rights document. Meaning the rights are not granted to citizens… the First Amendment does not say “you have the right to say whatever”, it says (paraphrasing) “the government does not have the right to stop you from saying whatever.” Our Constitution is a negative rights document, by which power is taken away from the government, not granted to the people. You can read through nearly every clause and you’ll find they are all phrased as “the government can or cannot do X”. So going back to the first point, when we talk about “privileges and immunities”, there really aren’t any constitutional privileges or immunities beyond the right to vote, most are defined by statute.

So, let’s take a look at the language of the Constitution that relates to Habeas Corpus:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

And here we find yet another negative right… “shall not be suspended.” The clause is found in Section 8 of Article I, which is a big list of the things Congress is forbidden from doing. In other words, Congress may not suspend Habeas Corpus, except under specific circumstances (which the court, in other cases stemming from the Civil War, has made clear cannot be a case-by-case basis… either the writ is entirely suspended for everyone, or it is not). Note there is no mention of citizenship, simply that the Congress may not suspend. I admit I’m glossing over some interesting bits of Federal Con Law here… like could the Congress abolish the writ altogether forever? Many suggest that the Congress could do that, but that’s different from denying the writ to just a subset of the population.

Finally, conservatives have been increasingly pushing this notion of citizenship. It is part of the dialog surrounding immigration rights and so called “illegals.” The concept of citizenship infers a right to be here, and all others walk a fine line… heaven help you if you upset us, or we will deport you in a flash. The next step in that project seems to be to redefine the what it means to be a citizen. As I already demonstrated, the Constitution is primarily concerned with the right to vote… but now we see state legislation stripping illegal immigrants of their right to access social benefits, deny access to state colleges, even attempts to discriminate against their children. Some have gone so far as to propose altering the Constitution such that being born in the United States is not enough to establish citizenship.

So far these efforts are targeted at those who come to the States illegally… but it seems only a matter of time before the citizenship discourse gets to the point where we turn a suspicious eye to the legal immigrants who are not citizens. What then? Will John McCain declare that the First Amendment only applies to citizens?

probonogeek Law, Politics

Google vs. Privately Owned Community

June 2nd, 2008

This isn’t really a story about Google, but I was tipped off by a tech-legal blogger about the story because of Google’s involvement with the St. Paul suburb of North Oaks, Minnesota. The basic story boils down to (1) North Oaks residents actually own the roads in their town and have a trespassing ordinance, (2) Google violated that ordinance when it took photos of the town for its Street View program, (3) North Oaks city council requested the photos of the entire city be removed, (4) Google complied.

From a Public Relations standpoint, I have no argument with Google’s decision… however, I do think there is a dangerous first amendment precedent waiting in the wings here. In Marsh v. Alabama the U.S. Supreme Court ruled that First Amendment activity was still protected in the town of Chickasaw, Alabama even though every square inch of the town was private property owned by the Gulf Shipbuilding Corporation. The company had baned religious leafleting and the Court said the company was the State in that situation and thus must abide by the First Amendment.

I think the situation in Chickasaw, Alabama is analogues to North Oaks, Minnesota… except, instead of a for-profit company owning the streets, individuals bound by their deeds through the North Oaks Home Owners Association own the streets. But the situation is otherwise the same in that a private entity is attempting to get around the State Action doctrine by abolishing the State. But in so doing, they create a new State in all but name, and thus under Marsh must allow First Amendment activities. There remains the question of whether taking photos from streets is a First Amendment activity, a question I am not immediately familiar with, although I believe it is protected.

Either way, I imagine Google complied for the same reason it complies with requests from private citizens… it doesn’t have to under the law, but it does out of respect for privacy. My question now is what happens if a “citizen” of North Oaks, Minnesota writes to Google saying they wish to opt back into Street View?

probonogeek Law, Technology

The Court & The Public

December 6th, 2007

In the past week I have read no fewer than three different editorials about the need for the Supreme Court to allow cameras into oral arguments, or at a minimum release same day tapes of the proceedings. Most recently I read this anemic editorial by the Washington Post. The outcry is the same… people deserve the right to see the proceedings of the court because it’s a public institution. I couldn’t agree more with the objective, transparency of public institutions is paramount to good decision making… even courts, who are the least participatory of our political institutions.

Where these critics go wrong is in thinking that cameras make a difference… or that oral arguments are someone the “functioning” of the court. The events leading up to a legal decision are a complex web of filings and briefs, of which oral arguments is but one tiny piece. Lawyers generally agree that cases are won and lost on the brief… oral argument is just an chance to run through the briefs and address questions raised by the justices. But it’s not like the questions are unexpected and no Supreme Court practitioner worth their salt leaves an unanswered question in hopes the topic comes up during orals. It’s all there, in the brief, which are publicly available.

Yet, this isn’t even the most amazing part about how incredibly transparent our legal process really is. Consider for a moment the House of Representatives. On a given day the 425 members cast votes on a number of different issues. Now imagine if each of those members had to write down why they voted the way the did, had to cite previous votes by themselves and those who held the seat before them as justification, and had to provide a detailed step-by-step analysis of their thinking. Wouldn’t that be something? If the members of Congress had to publicly justify every single one of their votes! How would constituents feel if their member wrote they voted for a particular provision because they got a fat donation check!

Of course, House members don’t have to justify their votes… nor do Senators… nor do Presidents (except in the case of a Veto, which is a whole other can of worms). Two out of three branches of government may exercise their constitution powers without a single word of explanation and routinely do so. The Court, in shocking contrast, explains everything. Complete with citations, justifications, historical narratives, transcripts, finds of fact, depositions, and the decisions of the District and Appellate Court from which the appeal originated. It’s an overwhelming amount of information and quite frankly more transparency than your average Joe is really interested in. But, it’s the law, and the law isn’t easy… the law is complex, and no matter how simplistic campaigns may make governing seem, we should never allow the law to become a sound-byte.

So why then fixate on oral arguments? It is but one small (some might argue insignificant) part of the process. When a whole world of records is available to analyze, why are we getting all worked up over this? Lawyers, who have the most to gain from a transparent court, have never demanded it… so why suddenly is everyone else?

I don’t have an answer, but I fear it’s part of a larger trend to treat the court (federal or state, doesn’t seem to matter) as just another political body, whose officials should be subject to the whim of the electorate and the twenty-four hour media machine. It’s a bad trend that strikes a blow at yet another of our critical institutions designed to protect the minority from the tyranny of the majority. What I do know is that someday I want to attend an oral argument, not for the knowledge, but for the singular experience. If I ever want to know what actually happened in a case, I’ll crack open a book.

probonogeek Law, Politics

Stupid Federal Appeals Court…

August 3rd, 2007

It’s been months, months, since I last blogged, which is really a shame because there are so many interesting things I could have blogged about. Supreme Court rulings, 2008 Presidential Primary shenanigans, new web projects, plans to move, looking at new cars, etc, etc. And yet, for whatever reason, I didn’t “pick up my pen” and it is my loss.

But today I read something that really makes my blood boil, so I’m back at the keyboard ready to take a stand. Feel free to read my primary source first, but if don’t have the time, here’s the summary. Pharmaceutical companies hold patents on drugs that give them sole authority over who gets to manufacture the drug. As a general rule, they elect to only allow themselves to make the drug, which means they have zero competition and without competition they can set whatever prices they want. Most non U.S. countries combat this by regulating the price of drugs, the result is in the United States drug costs are quite a bit higher than any where else in the world.

So, the District of Columbia, in their own effort to combat what they see as excessive prices, adopted a city ordinance that allows for a civil suit if the cost of a patented drug is 30% higher than in Canada, Germany, Australia or the United Kingdom. On appeal to the Federal Circuit Court of Appeals–my least favorite court for a number of reasons I’ve previously blogged about–deemed this to be in violation of the patent laws and an illegal usurpation of federal power.

I say fooey to that. But D.C. Council member David A. Catania has a more nuanced responce.

It implies that patents would ban any legislation that affects the ability of patent holders to charge whatever they please, which is absurd. The Supreme Court has already upheld legislation that mandates price discounts to participate in Medicaid formularies. And no one has argued that states cannot enforce antitrust and other rules that limit monopoly prices of drugs indirectly — although the full logical thrust of the opinion would do just that.

I tend to agree. Patents only authorize the patent holder to control manufacture and use, it does not convey absolute pricing control, although absent regulation it is the natural result of a patent. But if this court ruling is correct, it means that if I obtain a patent on gun, which a state later decides to ban, or at least regulate, for safety reasons, the state would be in violation of the Patent Act and unable to do so. Essentially, anything patented is beyond state regulation! (The Congress, I presume, can still regulate under the ruling since they have the authority to trump the Patent Act.)

As is well documented, on the topic of patent law interpretation (as opposed to patent application) the Federal Circuit has a very poor record. If the Supreme Court accepts cert, and I pray they do, you can bet the farm they will overturn as they have nearly everytime the Federal Circuit has claimed its specialized area of law trumps all others.

When will Congress realize that giving an appeals court exclusive jurisdiction over a single area of law while denying them any jurisdiction over other areas ensures that the exclusive area will become paramount in all matters? Laws must be balanced with consideration to the competing interests and a specialized court like the Fed Circuit is tantamount to pressing down on one side of the scales.

probonogeek Law

The California Lawyers Say It’s So…

April 10th, 2007

Today, in the mail, I received two very important letters.

The first informed me that a settlement has been reached in the case of Rodriguez, et al. v. West Publishing Corp., d/b/a BAR/BRI, and Kaplan, Inc. For those following along at home, I’m “et al.” Turns out BAR/BRI has been engaged in a little anti-trust no no resulting in a class action. And since no class is sufficiently classy without me, I was asked to tag along. There is $47 million in an escrow account which the lawyers get first crack at (to all you class action nay-sayers… those lawyers are welcome to their share in my opinion. I didn’t have to lift a finger, will be getting some money back, and BAR/BRI is going to stop the antitrust behavior. Not a bad outcome for such an “inefficient” system). Then us plaintiffs get our share of the remainder, pro rated, based on the fee we paid. The pool includes all BAR/BRI customers in all states from 1997 – 2006, but since California’s bar is one of the most expensive and the fee increased each year, my pro rata should be exceptionally pro, if you know what I mean. The award can be as much as 30% of my fee… which would be nearly $1000.

The other letter, this one from a different group of lawyers, wrote to tell me I am a moral person. It’s strange to get a letter from lawyers saying, “yes good sir, you are moral enough to be one of us,” but there it is. I posted it on my refrigerator with my new shiny UW Alumni Magnet (it says I’m an Alumni by the power vested in the UW Alumni Board of Trustees… what power do you suppose that could be? The power to ask for money on a bimonthly basis?)

So, that completes the final hurdle to becoming a licensed lawyer in the State of California: Ethics Bar, check; Bar Exam, check; moral character evaluation, check; ridiculous application fee, check. The only thing left is for the Supreme Court to complete the paperwork and send me a form asking for dues. That’s right, my very first act as a licensed lawyer will be to pay yet more dues.

Now if only I had one of those fancy law jobs so I could afford to pay ‘em. I suppose I do have that settlement money coming…

probonogeek Law, Personal

Giving The District a Vote

March 23rd, 2007

The Washington Post reports today that efforts to grant the District of Columbia an actual, factual, vote in the House of Representatives was derailed by a poisin pill amendment, offered by Rep. Lamar Smith (R-Tex.), overriding the District’s strict anti-gun laws. Very clever on the Republican’s part in one of two ways. Either it puts Democrats from conservative districts in a tough spot (voting against gun freedom), or, it forces the Democratic Leadership to bring the bill up for consideration under a closed rule, thus reversing on a pledge to run the House in a more open manner.

House procedural maneuvering aside, none of this may matter as the President has said he will veto the bill should it reach his desk. He, or at least his advisors, believe the law is unconstitutional. The first clause of Article I, Section 2 of the Constution reads:

The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

Which supports the President’s claim… states get representatives, not districts. It’s worth noting that the President also stated the the McCain-Feingold Bipartisan Campaign Finance Reform Act was unconstitutional, and yet is bears his signature.

Of course, the Democrats have their own legal argument. They point to Article I, Section 8, Clause 17 (the Enclave Clause), which says:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings

This clause has been read to mean the Congress can do pretty much whatever it wants within the confines of the District (makes me a little sad for the residents of DC… would you want Congress to effectively be your city council and state legislature all at the same time?).

Unfortunately, I have to side with the Republicans on this one, at least as far as the legal argument goes. There are two problems with using the enclave clause. First, it makes no meaningful distinction between the District of Columbia and military bases. Both are governed under the same clause and Congress may legislate with equal force. Which means if the District can be granted representation under the enclave clause then so can all of the military bases around the country.

Second, and for me more powerful, is the 23rd Amendment, which grants the District representation in the electoral college as if it were a state (with the minor provision that they can never get more votes than the smallest state, so they are pretty much stuck at three votes). If the Democrats were right about the enclave clause, this amendment would never have been necessary, Congress could have simply granted the District electoral representation by legislative action. Instead they went to all the trouble of assembling 2/3rds of the House and the Senate and a majority in 3/4ths of all the state legislatures.

Given this precedence, it is hard to argue that legislation, even if well intended, can alter the voting rights clearly outlined by the Constition. There have been efforts to grant the District either statehood or full voting rights under another constitutional amendment akin to the 23rd. The statehood route poses many complications (for example, could the new state pass a law ousting the national government?) and is not really consistent with the founders vision of a national capital free from state intervention. The full voting rights option, on the other hand, is pretty straightforward. The key obstacle is history–it’s been tried before and failed–and partisan positioning–Republicans won’t vote to grant representation to a Democratic stronghold unless they get the same in return.

But perhaps both can be overcome is sufficient political will. If the voting rights folks can frame the issue correctly, show how the Republicans are preventing a giant city from participating in self-governance, focus on representation in the House by dropping the demand for Senators, and then really push the issue when it goes out into the states, then maybe they have a chance. As for the current effort, I sincerely doubt it.

probonogeek Law, Politics

Seeking Special Protection

March 9th, 2007

We all know about Arthur Anderson, the big accounting firm that went down with Enron in 2002. Suddenly we went from having “The Big Five” accounting firms to “The Big Four.” See, the Federal Securities & Exchange Commission (SEC) imposes pretty significant reporting requirements on any publically traded firms. Both before and after the adoption of Sarbanse-Oxly, many of these reporting requirements can only be fulfilled by an outside accounting firm. The large companies rely exclusively on the Big Four to fullfill their outside auditing needs.

But, did you know that before there was The Big Five there was The Big Eight? Presumably there was also the Big 12 and the Not Quite as Big 17. The accounting business, like so many businesses, have been seeking efficiency through mergers since the 70’s. Taking smaller companies and merging them into successively larger companies. So imagine my surprise when I read in the Washington Post today that these same companies are seeking legislative protection from liability because, and I quote, “We just don’t want to be put out of business.”

There tactic here is classic. Since they provide such a valuable and necessary service, they will argue that it is better, for society as a whole, if they are essentially immune from suit so as to ensure the few of them that remain continue to function. It would be worse, they will say, for there to be only three or two firms than for one of them to engage in fraud and get off the hook. It’s the same argument the airlines make when they get huge federal bailouts.

The critical difference between airlines and accounting firms is that there is only so much market capacity for airlines. Given the huge capital resources needed to run airlines, terminals, ticketing, etc, it is safe to conclude that there is an optimal number of airlines and that it is a relatively small number. But the accounting firms only real capital cost is in brain power. The more clients they have, the more brains they need to employ. My guess is the whole thing scales rather well… which is why they merged together in the first place. If there is no lost efficiency from merging two firms, both with 50 employees into a single firm with 100 employees (maybe less), then you’re going to do it on the grounds of eliminating competition. It’s a no brainer (excuse the pun).

I consider this classic short term profit driven thinking. One of the central principles of computing, especially network computing, is to reduce the number of single points of failure. You never want a system to rely on one part which, should it fail, the entire system will go down. The same principle applies to civilization. You don’t want everyone employed in the same job, you don’t want your food source to be in one location, you don’t want all your energy to come from the same kind of fuel. The more you diversify the better prepared we are for unforeseen, yet inevitable, changes in circumstances. It’s the same principle behind a diversified stock portfolio.

Yet everytime one of these accounting firms merged together, we got closer and closer to a single point of failure. Now the four firms are so huge and have such an iron grip on the market that it is near impossible for a new market entry. The public traded companies have no choice but to hire one of the Big Four, and thus no medium sized accounting firm can ever become Big #5. Now the possibility of a bankruptcy due to a civil lawsuit is a big deal… the investment system needs these firms to survive, regardless of the cost.

Which brings me the final thought of who, exactly, bears these costs? See, when there is fraud, and that fraud is aided by an accounting firm, the investors have civil recourse to recover lost funds. When a company goes bankrupt, like Enron did, there’s not a lot of money available to make those investors whole. To be clear, “investor” should conjure up both thoughts of already rich billions as well as the middle class saving for their kid’s college and industrial workers pensions (the stock market, it’s not just for elite any more!). If the purpose of the civil justice system is to make those damaged whole again, then going after an accounting firm who helped perpetrate the fraud just makes sense. If the SEC, or Congress, goes along with the Big Four’s wishes, don’t think those unrecoverable damages just go away. Instead, all those damages felt by the collapse of a public company will be carried by investors, while the accountants who both aided and likely benefited by the fraud, will continue to operate without any punishment or financial loss. Talk about a single point of failure.

probonogeek Law

Supreme Court Docket Watch

February 27th, 2007

The decision to grant or deny Supreme Court review has been made in two important cases, one involving the Washington State primary and the other involving criminal sentencing. I’ve blogged about the Washington State primary system before, my belief that the state parties are shooting themselves in the foot, and that the courts holdings so far have been rather inflexible given the political nature of the question.

Well, now we are going to get the Supreme Court’s opinion on whether the top-two system is constitutional or not. Louisiana has been using the system for years, so they better be on the lookout… remember, it was California, who adopted Washington’s previous system, that went to the Supreme Court last time. If Washington loses like California lost, a national precedent will have been set.

Legal mumbo-jumbo aside, I have to wonder what the courts are doing with all of this? If the blanket primary is unconstitutional, and the top-two is unconstitutional, it begins to seem as if the Constitution has a preferred sort of primary, even though the constitution makes no mention of a primary and the founders, through Federalist 10, make clear that factions–only possible through primaries–are to be avoided. Personally, I found the District Court and 9th Circuit court opinions on the top-two system to be less than convincing. Their holding boils down to relying on the earlier blanket primary holding in California Democratic Party vs. Jones, concluding that anything which diminishes a political party’s right to “speak” by selecting a candidate is unconstitutional.

Given that free speech is generally a balancing test, I don’t think the courts really gave the question the appropriate scrutiny it deserves. The whole idea behind the top-two system is to say the parties don’t get to decide who appears on the general ballot. They can use whatever system they want to pick who gets to use the party political apparatus, but such authority does not extend to deciding who gets to run for office. Put another way, it’s not limiting the party’s right to speak, it’s saying the state isn’t going to listen.

The other case, involving a 200 year sentence for a man found with 20 pictures of child pornography on this computer, was denied review. The case sought to question whether such a long sentences (10 years for each photo), served consecutively (instead of concurrently, as most jurisdictions would do) violated the ban against cruel and unusual punishment. The state court review only asked whether the 10 years per photo was fair, and having decided in the affirmative, it did not question the state’s decision to apply the sentence consecutively.

What’s interesting about this case to me is the quote in the article from a Professor Berman.

For a host of good reasons, the justices think they have a role in regulating extreme corporate punishment, but I fear the court doesn’t embrace a role in regulating extreme individual punishment.

He is referring to the court’s decisions limiting punitive damages, such as the rough guideline that the punitive should never be more than nine times the actual damages.

For me, the critical distinction here revolves around state decision making. In the case of punitive damages, the decisions are made by juries within the context of judge made common law. Which gives the Supreme Court a critical role in forming, and revising, those precedents. The criminal punishment, on the other hand, is not by common law. Because of the due process clause of the Constitution (5th or 14th Amendment, take your pick), all crimes, and their punishments, must be the product of the legislature. Which means Arizona’s decision to impose consecutive terms, instead of concurrent terms, was made by the state legislature. If the result is seen as excessive, then the political process is the proper route for change.

probonogeek Law, Politics