Save Trestles?

When I wrote papers in law school, I often succumbed to a particular temptation– to write long, source-packed footnotes whose main purpose was to demonstrate that I’d read a bunch of interesting stuff, or managed to chase down a slightly difficult but ultimately irrelevant point. This is ultimately not a habit that is kind on the reader. (Sorry, Carol Rose and Bob Ellickson!) But consider this blog post an entry in the same genre.

The frantic “Save Trestles” stories from Surfrider sparked my curiosity about where “they” could possibly be building a road that would threaten a beach break, who “they” were, and what was going on. So far as I can tell, the following things are true. A state agency called the Transportation Corridor Agency had plans to extend the 241 toll road, which would fork off of I-5 and run north (and inland of the interstate). The road would have gone through San Onofre State Park, where it arguably would have impacted the sand and water drainage in a way that ultimately might have disturbed the beach break at Trestles. The California Coastal Commission and U.S. Secretary of Commerce ultimately invalidated the plans, in part because there was an alternate route for the road that didn’t go through the park.

The Transportation Corridor Agency now wants to build a small chunk of the road, presumably with plans to keep extending it in the future. The chunk may be consistent with both the original and alternate route (I can’t tell).

So far so good. One reason for Surfrider to be concerned is that the alternate route really is inferior– the new toll road wouldn’t actually intersect with the interstate, but would instead require a short drive over surface streets to get from one to the other. And for that reason, I find it easy to imagine that once the road has started, there will be strong political pressure to connect it to the interstate after all. But even imagining that to be true, I’m not sure which way it cuts. If the justification for for bidding Option 1 is the adequacy of Option 2, then the undesirability of 2 might just reinforce that 1 was okay all along.

There’s also room for an observation here about incentives, environmentalism, and the public trust. When the government wants to build a road through private property, the law of just compensation forces it to (roughly) internalize the costs it imposes on those whose land it takes. But when the government builds a road through public property with environmental benefits or uses, it imposes costs too. It’s just that those costs aren’t commodified and aren’t compensated. (Hence the idea of the public trust.) Ideally, the government would consider those costs too, but I rather doubt that it works that way.

Do You Remember an Inn, Miranda?

The arrest of the Boston Marathon suspect has made “Miranda Rights” a trending topic on Twitter, as the authorities have apparently decided not to Mirandize him.  This has in turn put renewed attention on this old story about the FBI’s aggressive interpretation of the public-safety exception to Miranda, instructing agents to avoid Mirandizing terror suspects for as long as possible.

This prompts the question: why do law enforcement officers have any objection to Mirandizing terror suspects?  I can think of four possibilities.

1: Miranda really works. That is, there are suspects who would be prepared to give the police information, but after being told that they don’t have to, would decide to keep quiet. While this view appears to be the premise of Miranda itself, most people I know who are familiar with the criminal justice system don’t find it likely.  It would be highly surprising if this were true.

2: It’s not the Miranda warnings, it’s the Miranda rights.  I haven’t done enough research to know whether this holds water, but I wonder if the decision to delay Mirandizing also delays the various other rules that go along with Miranda.  Can a suspect who is in custody but not Mirandized still invoke his Miranda rights, along with the prophylactic rules that go with them?  Can that suspect’s refusal to answer questions be used against him at trial (pending Salinas)?  In other words, it might be that in addition to providing information, Mirandizing a suspect actually changes his legal status in an important way.  I don’t know if this is actually true and nobody has provided this as an explanation, but I have been wondering about it.

3:  It’s politics.  The administration is anti-Miranda because Lindsey Graham wants them to be, and the administration wants to find low-cost ways to make Lindsey Graham think they’re tough on terrorism.  I wouldn’t rule this out, but it doesn’t answer the question of why Lindsey Graham cares.

4:  Synechdoche.  Nobody cares about the Miranda rights themselves.  But Miranda is the iconic beginning of the criminal process, so Mirandizing somebody is a symbol that we might give them criminal due process rights, rather than military detention.  For those who think that military detention is tougher than criminal justice (and it’s not clear that’s correct, but lots of folks do seem to think it), fighting Miranda is rally just a publicly-digestible way to insist that the war on terror is a war, not a law enforcement operation.

Fun With Hearing Lists

There’s lots of interesting stuff in the hearing list for the April argument session at the Court.  In the category of “Will’s new obsession” is Adoptive Couple v. Baby Girl, an Indian law/family law case that may provoke the Justices to talk about colorblindness and Indian law for the first time in a while.  I’m embarrassed to say I hadn’t been following the case closely until I noticed that it was being argued by Lisa Blatt, Paul Clement, Charles Rothfeld, and Ed Kneedler, and realized that something big must be afoot!

The session also features a Rothfeld-Blatt rematch in Tarrant Regional Water District v. Herrman, and some biggish criminal cases like Kebodeaux and Salinas.  Then there’s the category of “first time arguments by great young lawyers,” like my former Robbins Russell colleague Dan Lerman, my former SCOTUS colleague Rob Yablon, and the famous John Bash.  The audio releases for the next two weeks are going to be quite a treat!

Robert Cover and Leon Kendall

My first reaction upon reading this was, well, that seems obviously right. A trial judge in the Virgin Islands found prosecutors guilty of misconduct. When the Virgin Islands Supreme Court reversed him, he recused himself, because he recognized that he was bound by higher authority but also felt that his conscience wouldn’t allow him to participate in what he saw as a grave injustice. Affronted, the Virgin Islands Supreme Court held him in criminal contempt. Now the Third Circuit has reversed, ruling that the trial judge’s First Amendment rights had been violated.

But the more I think about it, the less I am convinced that this is right. Leave aside the oddity of having the Third Circuit review the decisions of the Virgin Islands Supreme Court (a result that has since been eliminated by statute). I think it might be a mistake to think of judges as having First Amendment rights in their judicial rulings. They are government agents, not private actors– they speak from the bench with authority because they have the power to rule over others, not because they are thought to be wise or because they have the right to mouth off. I think this is the point Robert Cover was making when he said, “The judges deal pain and death.” (Violence and the Word, 95 Yale L.J. 1601, 1609.)

Between Ysursa v. Pocatello‘s holding that inferior government units don’t have free speech interests against their superiors, and Garcetti v. Ceballos‘s holding that government employees don’t have free speech rights in their on-the-job speech, the First Amendment ruling here seems counterintuitive at best. I can imagine a defense of lower-court defiance derived from the separation of powers or the constitutional oath, but that’s not the path the Third Circuit followed and it’s not clear to me how those principles apply in the Virgin Islands. In any case, the Third Circuit’s opinion is such a mess of confusion and overlong footnotes that it’s conveniently hard to follow.

Constitutional doctrine aside, the Third Circuit’s ruling does not strike me as a blow for justice either. In this particular case the trial judge may be ruling on the side of the powerless, but First Amendment rights are content-neutral, so the same idea would presumably apply to judges who refused to institute clemency orders or desegregation decrees.

But maybe we should at least be impressed by the trial judge’s bravery in standing up against prosecutorial abuse. I hate to spend all of my time on this blog as a contrarian, but I am skeptical of that too. Is this really the only case in which the trial judge has been forced to do something unjust by his superiors? I highly doubt it. By making such a big fuss out of this case, the judge implicitly ratifies the many other cases in which he didn’t. And by engaging in such a self-indulgent display of his own personal purity, he sidesteps the more important questions about how to reconcile one’s obligations to the system one has decided to work for with one’s ethical obligations as a human being. I think Robert Cover would agree with me about that one too.

Illinois v. Moore

The Illinois Supreme Court has upheld the state’s ban on carrying loaded and accessible firearms. This conflicts with the Seventh Circuit’s decision striking down the same statute, but state prosecutors apparently plan to follow the state decision, not the federal one. That is certainly their right for now, though I predict a cert grant in the near future, if the Seventh Circuit doesn’t take this en banc.

But I am troubled by one alternate ground of reasoning in the state’s opinion:

Moreover, defendant’s constitutional challenge additionally suffers because of his status as a felon. Neither Heller, McDonald, nor Moore has suggested the second amendment right to keep and bear arms guarantees a felon’s ability to own and possess a firearm. See Heller, 554 U.S. at 626 (“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons”); McDonald, 561 U.S. at ___, 130 S. Ct. at 3047 (repeating Heller’s “reassurances” regarding felons); Moore, 702 F. 3d at 940 (finding bans limited to felons do not fall within second amendment protection). Accordingly, we reject defendant’s constitutional claim and affirm his convictions under the AUUW statute.

As I understand it, it’s not as if Illinois actually has a ban “limited to felons.” The Court is just suggesting that even a ban that has nothing to do with a defendant’s felony can never be challenged by a felon. I’m not at all convinced that a defendant’s prior conviction can save a criminal conviction that in no way depended on a defendant’s being a felon.

It’s constitutionally permissible for the state to have an arson statute that forbids burning flags in public. But if you’re charged under an impermissible flag-burning statute, you’re permitted to challenge the conviction, and it’s no answer that you could could have been convicted under a different statute that would have been constitutional.

These kinds of overbreadth/as-applied problems are a little perplexing, and I’m not sure I’m right about how to resolve them. But I am sure that the Illinois Supreme Court is driving through them much too fast.

Mammas don’t let your babies grow up to be tax lawyers

The most-emailed story on the New York Times webpage right now is this column from The Ethicist, discussing the ethics of being a tax lawyer:

I am a tax lawyer. Is advising wealthy companies of ways to reduce their tax bills through sophisticated legal structures ethically permissible? The structures take advantage of legal loopholes in the tax legislation.

The ethics of specific professions create unique realms of responsibility. In the same way that a defense attorney is ethically obligated to give his client the best possible defense — even if he’s convinced of the individual’s guilt — your principal responsibilities lie with the company hiring you. You need to do your job to the best of your abilities, within the existing rules. You should, however, voice your moral apprehension about the use of such loopholes to the company you represent.

I have to say, I find this answer odd. I think The Ethicist is actually on to something when he generalizes from the case of providing legal assistance to wealthy companies to the case of providing legal assistance to the indigent facing prison time. But then he adds that you “should” (ethically, I gather?) exhort your clients not to take advantage of the legal options you just advised them about.

Would anybody say that to a criminal defense attorney? Would anybody say that you “need to do your job to the best of your abilities” to defend your client zealously before trial, at trial, and at sentencing, but that you “should, however, voice your moral apprehension” about your client’s conduct and tell them that the honorable thing to do is confess and go to prison? Surely not. At least, I hope not.

In the criminal defense context, I think we all manage to understand that passing moral judgment on one’s clients (and telling them so!) is simply not the lawyer’s job, let alone the lawyer’s ethical obligation. Yet in other contexts, we seem inconsistent about this. Think, for example, of the many arguments that Gabriella Blum takes on in this superb essay about legal ethics and the war on terror, where she argues that critics “have missed a fundamental point about the attorney-client relationship. It is the client–in this case, the government–who is ultimately responsible for making policy decisions, not the attorney.”

Just so. We ought to distinguish more between the task of providing advice about the law and the task of providing advice about the right thing to do.

“I’m not a cop … I’m her father.”

An episode of Castle I watched last night (“Target”) perplexed me slightly. Normally I don’t think it’s fair to subject fictional procedurals to the actual details of American constitutional law, but the last time I researched a point of procedure relevant to an episode of Castle (the law of juvenile interrogations) I was surprised to learn that the episode had gotten it exactly right. This time, I’m not so sure.

The scene: Richard Castle has a personal stake in finding a missing person, but the (wounded) suspect refuses to talk. While still at the crime scene, Castle convinces his partner to leave him alone with the suspect. When the suspect insists again that he knows his Miranda rights and is invoking them, Castle forebodingly points out that he is not a police officer, just a private citizen who’s a father of the victim. Offscreen, Castle basically goes “Dirty Harry” on the suspect (we hear screams, Castles emerges with the information).

So one reaction is that Castle’s claim not to be a state actor is highly questionable. Can the police really circumvent the 5th and 6th Amendments by bringing the victims’ families along, then putting them in a room with the suspects they wish to interrogate? The practice seems obviously suspect on its own.

But my bigger problem is with the inconsistency this would create. Let’s suppose that it’s true that Castle acts as a private citizen in these encounters where he accompanies the police. Even if that’s so, then doesn’t his presence in this warrant-execution, and nearly every home search in the show, violate the Court’s ruling in Wilson v. Layne? Wilson held “that it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant.” If Castle’s presence is in aid of the police conduct (plausible), then he is almost certainly subject to the limits on police interrogations; if it is not, then he is almost certainly in violation of Wilson.

Of course, there are presumably state laws against hurting people in order to extract information from them, so maybe the answer is just that Castle is a lawbreaker and doesn’t care. (“If you touch me I’ll press charges” // “I don’t care.”) The interrogation was unlawful but they’re counting on the victim not to sue and pressing charges only in French courts.

A World Without Gideon

How many Supreme Court decisions can you name that are both thoroughly entrenched (i.e., virtually nobody wants them to be overturned, and indeed many people would be upset if they were overturned) and plainly inconsistent with originalism (i.e., even originalists don’t have a plausible defense of the decisions– not something like the air force or Brown, where non-originalists are the ones who insist on the inconsistency)? Gideon v. Wainwright, now fifty years old, is the best candidate I can think of.

The blogosphere and journals are full of celebrations of Gideon— and of course one can see why it is celebrated. But would a world without Gideon really be so bad? Kent Scheidegger notes that even before Gideon, some governments provided appointed counsel. And Doug Berman speculates that Gideon actually made it easier to enact punitive drug laws that burden the poor. Moreover, we shouldn’t forget how low the funding and quality are for some of the legal representation that exists only because of Gideon. Nor should we forget that (at least under the current system) pro se defendants often do better than represented ones.

Finally, I think we should ask what kinds of non-governmental organizations would exist in a world without Gideon. I understand from folks who have tried that it is very very hard to raise money or political action for criminal defendants, especially poor ones. But I wonder if that would still be true in a world where that was the only way to fund basic defense counsel– might the folks who currently poor money and resources into (say) fighting the death penalty poor it into a group of lawyers to defend the indigent accused of more mundane crimes? Maybe not, or maybe not enough. But in my more pessimistic days I wonder if the results would really be worse than what we’ve got.

Necessity and Propriety

I assume that every budding academic has a system for keeping track of paper ideas, since it takes far more time to execute papers than it does to conceive them.  Mine is a giant, disorganized text file of half-eaten outlines and mysterious questions and citations.  Even the text itself is a mess at this point, having been converted frequently and badly between various PC text readers and the excellent if uncooperative iOS Plaintext App.  I can’t even figure out whether to keep pouring ideas into the document (which I can’t read half the time) or start over.

If I were starting over, the next two things I’d include are two articles on the Necessary and Proper Clause, something I’ve been thinking about increasingly as I finish my forthcoming article, Rethinking The Federal Eminent Domain Power.  One article, “(Groping) Toward A Theory of The Necessary and Proper Clause,” would try to explain why the time is increasingly ripe for something like my historically-inflected theory of the Necessary and Proper Clause, and would try to provide the basic framework for operationalizing that theory.  The other, “Necessary and Proper Step Zero” would address the anterior question of when a claimed federal authority requires the implied powers of the Necessary and Proper Clause at all, and when it is part of the explicitly enumerated powers– a question that seems to be the crux of the disagreement between Ernie Young and his critics.