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Federalism After Gonzales v. Raich

The Lewis and Clark Law Review has published a most interesting symposium entitled: "Federalism After Gonzales v. Raich."  Lawreview_mediumThey have also put the symposium articles online for free download.  Here are links to all the articles, though if you only have limited time, Pushaw's neo-federalist framework is quite sensible, and well worth reading:

Foreword: Limiting Raich by Randy E. Barnett

Is Morrison Dead? Assessing a Supreme Drug (Law) Overdose by Jonathan H. Adler

Why Not Heighten the Scrutiny of Congressional Power when the States Undertake Policy Experiments? by Ann Althouse

Raich and Judicial Conservatism at the Close of the Rehnquist Court by Eric R. Claeys

Rescuing Federalism After Raich: The Case for Clear Statement Rules by Thomas W. Merrill

“Society Must Be [Regulated]”: Biopolitics and the Commerce Clause in Gonzales v. Raich by John T. Parry

The Medical Marijuana Case: A Commerce Clause Counter-Revolution? by Robert J. Pushaw, Jr.

What Hath Raich Wrought? Five Takes by Glenn H. Reynolds & Brannon P. Denning

Thanks, Uh, I Guess

Laura O, a law librarian and author of the excitingly-titled Oregon Legal Research blog writes:

What's in a blog name?: Here's an interesting blog for attorneys and law students. Everything from the "Hee-Bee Jee-Bee Test", overcriminalization, and Tarasoff, to sociopathic clients and Judge Aldisert. Curious?  But the blog's name, "Crime and Federalism", doesn't tell you much about its content - dull, non-descriptive name, interesting blog.

Well, gee, thanks!  I like your blog too, even though its authors wear combat boots!

Campaign Contributions, Bribery, and the First Amendment

Peter Henning has a fascinating post entitled Prosecuting Campaign Contributions as Bribes.  The post was interesting to me because the federal bribery statute is a hobby horse of mine; and the difference between bribe and campaign contribution is knotty enough to keep me interested.

I've even been working on a paper where I make this claim: The federal bribery statute is unconstitutional under the First Amendment because it's unconstitutionally overbroadbreath, namely, it criminalizes garden-variety campaign contributions. 

You can read the draft here.  This is a very rough draft (it's almost more of an outline than a draft article) that I haven't been able to get to for a bit.  Fortunately (or not!), I'm busy enough making money that I don't have much time to non-blog-related scholarship.  Anyhow, if you have any substantive comments (saying, point-x is weak is not helpful, since, like I said, it's a draft, so there are a lot of weak points), I'd love to hear them.

Download federal_bribery_statute_campaign_contributions_and_the_first_amendment.pdf

Should the Supreme Court Get Busy?

Jason Mazzone, blogging at Concurring Opinions, asks: "Why does the Supreme Court accomplish so little?"  He continues:

Last term, the Supreme Court issued opinions in just 74 cases. That’s pretty pathetic. It means there are many areas of the law that are unsettled or unreviewed; many important issues in which the Supreme Court could helpfully weigh in but it doesn’t; many issues that, once decided, will not reach the Court again for decades, if ever.

As someone who lives in the Ninth Circuit (and as someone generally sympathetic the outcome of 1983 and crim pro cases in the Ninth), I am happy the Supreme Court is institutionally lazy.  In any event, the problem isn't with the number of cases; it's with case selection.  The Court is obsessed with the minutiae of capital cases while ignoring other major sentencing issues (say Booker retroactivity, which affects tens of thousands of people).  And the Court is obsessed with crim pro cases in general.

Here's what seems to be ruining the Court's docket (I say "seems" because the court's voting on what cases to review is kept secret): The liberal justices keep voting to grant cert. on very narrow death penalty-related issues in an effort to attack the death penalty at the margins.  If other very important cases dealing with very unjust sentences go unreviewed, so be it.  Then you have the conservative justices, who keep voting to grant cert. in an effort to attack the Fourth Amendment at the margins.  Hudson v. Michigan and Randolph v.Georgia - both state court opinions - each address very narrow Fourth Amendment issues.  There was no compelling need for the Supreme Court to review these issues, especially considering the dozens of other big issues that needed addressed. 

But so long as the liberals are obsessed with narrowing the application of the death penalty, and the conservatives are obsessed with narrowing Fourth Amendment protections, the Court will have poor case selection.  Even if the Court reviewed more cases, it would still just review the "wrong" ones.

UPDATE: Orin Kerr has a thoughtful post here.

Odds of Winning on Appeal

Ruggero Aldisert, author of Winning on Appeal and one of the finest federal appellate judge, offers these sobering statistics:

United States Court of Appeals—National Average of Reversals
[for 2002]

ALL APPEALS......................... 9.5%
U.S. Prisoner Petitions..............9.5
Other U.S. Civil Cases..............11.0
Private Prisoner Petitions..........9.9
Other Private Civil Cases..........12.2


From this, we conclude that the reversal rates from 1998 to 2002 for all appeals averaged 9.54 percent. Expressed otherwise, here are your odds of reversing the district court:

  • All appeals: 1 in 10
  • Criminal cases: 1 in 18
  • Private civil actions: 1 in 9

Since these numbers are averages, I suspect that cases reviewed de novo have a better chance of success than those subject to an abuse of discretion standard of review.  Even so, a case reviewed under even the "generous" de novo standard of review has a poor chance of winning. Perhaps lawyers, as fiduciaries to the clients, should be required to share these statistics with their clients before accepting a large retain for any appellate work.

Of course, every lawyer will say every case is unique.  Fair enough.  But clients deserve to know that, in general, it's not merely likely that they will lose on appeal; rather, it's almost guaranteed.

For more statistics on reveral rates and other interesting federal-courts-related data, check out the Federal Judicial Caseload Statistics site.

Why Is No One Talking About This?

I spotted this news story over the weekend and can't believe the lack of debate on it:

Under new legislation tacked onto a House crime bill, DNA samples would become as routine as snipped umbilical cords.

The Safe Streets for America bill calls for doctors to do a simple buccal swab for DNA of every infant delivered in a hospital or birthing center. "We are simply asking that as a baby cries, a doctor take a swab from the child's mouth. It is painless, quick, and a sure way to build a comprehensive national DNA databank," said the sponsor of the bill.

The results would be kept in a newly formed Genome Resource Center, jointly managed by the Department of Health and Human Services, and the Justice Department. Law enforcement officers would not have unlimited access to the database, but could apply to a judge for access to it upon showing a reasonable basis to believe a crime had occurred and the DNA database might be "material" in solving the crime.

"This is no invasion of privacy," the bill's sponsor noted. "Adequate safeguards are in place to assure that no one goes rummaging through the database on a lark."

A spokesman for the American Civil Liberities Union cried foul. "This is a shocking invasion of the privacy of each and every American, and is an afront to our liberties," she said.

Others weren't so sure. "Surely, no infant has an expectation of privacy, and procedure contemplated is no more invasive than the cutting of an umbilical chord," saw law professor, Chandra Rafshamundie, a professor of constitutional and intenational law at the newly founded Law School of the Atlantic, in New Jersey.

Administration officials praised the bill. "In years to come, no crime need go unsolved," the president said. Administration officials are considering a call for swabs as a condition of entry into the United States, arguing that it is no more invasive than state implied consent laws requiring motorists to yield to sobriety tests. Also under consideration is swabbing of persons registering to vote and renewing driver's licenses.

Voting on the bill is expected early this week.

Okay, I didn't see this story. But I did wake up wondering how long it would be until this occurred.

SexLaw and Consent

Ken Lammers has an interesting series of posts on various laws governing sex, including this interesting post on consent in the U.K.  Consent is a huge issue in many sexual assault cases; and in "date rape" cases, it's the only issue.  Many states (including Illinois) require the prosecution to prove two elements of consent: 1) that the victim did not consent, and 2) that the defendant actually knew the victim didn't consent.  The first element is easy enough to prove, as all the complaining witness need say is, "I did not consent."  The second element is more difficult to prove, and is what keeps many people wrongly accused of date rape rape from being convicted.

In some jurisdictions (if memory serves me, New York and it now seems, England) the prosecution need only prove that a reasonable person in the defendant's shoes would have known that the complaining witness did not consent.  Basically, it turns a rape case into a negligence action.  In negligence states, the prosecution can more easily prove its case, since the prosecutor doesn't have to prove that the defendant intended to rape anyone.  He just has to show that the defendant acted unreasonably.  Get a jury who thinks that sex with someone after a couple of cocktails is per se unreasonable and you can see the potential problems.

The sad thing about date rape cases is this: America is sexually puritanical.  The only way many people can relax enough to have sex is after a couple of drinks.  Should people not have sex after they've had a couple of drinks?  Whether or not you've thought of it this way, in some states their sexual assault laws criminalize drinking-and-boinking.  After all, if someone falsely accused you of something in a negligence state, do you really think you could beat the charge?  In an era of mandatory registration, would you even want to fight the charge?  Any good lawyer would tell you to cop a plea to anything that would keep you off the registristry.  Anyone other than St. Thomas More would accept such a deal, his or her own wrongdoing notwithstanding.

These days, having casual, drunken sex is extremely stupid because not only does one risk getting an STD or an unplanned pregnancy, but one also faces rape potential charges.  Some parents have a double standard when setting sexual boundries for their sons and daughters.  Not me - I'll keep 'em both up in check.  After all, there are lots of people like Kristy Holden in the world.

Tookie Williams' Pending Execution

Doug Berman is the source for information on the Williams' execution.  Her has links to court documents in these posts:

Having read all the court documents, I have these tentative thoughts:

  • According to the L.A. County District Attorney's office, redemption is impossible.  Once a person is sentenced to death, he can never escape that sentence.  That's a fair enough argument, as far as these things go.  But I've actually heard prosecutors argue that the death penalty need not be abolished because, in the appropriate case, a death sentence can be commuted.  That argument, hot air though it always was, now doesn't even deserve to pass through one ear to go out the other.

  • Having been around a lot of prisoners, I'm not convinced that Mr. Williams is a changed man.  Prisoners almost always find some schtick - some way to make people think they've changed.  Those of us who have believed in people convicted of violent crimes and then have been burned, likely view Mr. Williams' change of heart with some skepticism.

  • Should it matter whether whether Williams' heart has changed, given that he has done so many good deeds?  This is a tough question.  When deciding whether to grant Williams clemency, what should matter most - works and one's heart?
  • The argument that there are some doubts about whether Williams killed the people he was convicted of killing aren't persuasive.  After all, as the founder of the Crips, he did enough dirt that he "deserves" to be where he is at.  As a legal purist, I  don't believe this; but the people he needs to persuade do.  Even if he didn't kill those four people, he should claim responsibility.  Sometimes you have to "cop" to something you didn't do to avoid an unjustly harsh punishment.  It's not fair, but with one's life in the balance, it should be survival over all.