Reading Justice Scalia

Antonin Scalia is widely regarded as a brilliant jurist in the legal community. His intellectual prowess is unquestioned by those who agree and disagree with him. In reading his opinions, it is clear that his education is broad and deep and his wit is razor sharp. He uses a rhetorical format that relies on abstract principles, precedent and history to build solidly convincing and, occasionally, infuriating opinions. Recently Justice Scalia, joined by Justice Thomas, dissented in the petition of Troy Davis for writ of habeas corpus. Justice Stevens concurred in granting the petition and, like Scalia, took the unusual step of issuing an opinion on the petition. The opinions of Stevens and Scalia are not only in opposition, but take on a recriminatory tone. I am not a Scalia fan, but I was taken aback by this opinion. At first glance it is as though the two men were not looking at the same petition. In a way, they are not. Although each sees the same words, their vastly different perspectives lend different weight to the arguments presented by each side. Stevens is concerned with the possibility of executing an actually innocent man while Scalia seems concerned with the two problems. First, the broadening of federal habeas corpus review and second, the questioning of the constitutionality of 2254(d)(1).


It would be unfair to assume that Scalia does not care if an innocent person is executed. Rather, he has confidence that the constitutional safeguards currently in place make that impossible and not just unlikely. In this case, Scalia appears confident that the system has worked and is unsympathetic to the argument that procedural barriers have stood in the way of truth. The procedural barrier being the Anti-Terrorism and Effective Death Penalty Act, Section 2254(d) of the act states that:


(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Davis was convicted based on numerous eye witnesses and he even put himself at the scene. Since his conviction in 1991, all but two witnesses has recanted their testimony. The witnesses now claim to have been coerced by police. SCOTUS ordered the district court to hold an evidentiary hearing to determine whether evidence that could not have been obtained at the time of trial "clearly" establishes Troy Davis's innocence. According to Scalia, the evidence has already been examined and the result is reliable. Imagine the judicial burden of cases more than two decades after the crime. In order for the system to function, it must be able to rely on testimony given under oath and subject to cross examination. For Scalia, the judicial and political safeguards protect the rights of the accused and going beyond that is unwarranted by the Constitution and impractical in application. Justice Scalia may be cantankerous, but he does have a point. The problem for Justice Stevens and many others is that a system designed to protect the rights of the accused that has historically been less protective of racial minorities does not warrant the confidence Justice Scalia places in it when a man's life is at risk. I look forward to the district court's review of the evidence.

Ricci v. DeStafano - Evidence that Judge Sotomayor is outside the mainstream of legal thinking?

The recent Ricci Decision received a lot of press, and not simply because it was another 5-4 decision on a controversial topic: how, whether, and when the disparate impact of employer practices can be used to establish discrimination under the Title VII of the Civil Rights Act of 1964. The “real” issue, as several commentators saw it, was the decision overturned a per curium decision, in which Judge Sotomayor participated. In affirming the Distirct Court’s ruling, the panel on which Judge Sotomayor sat, let stand a decision which had barred white firefighters, who had successfully passed an advancement exam, from receiving their promotions. Interestingly, the issue framed by some commentators was whether Judge Sotomayor’s decision to participate in per curium affirmation of the District Court exposed her as “extreme” or whether it exposed her as a judge who follows precedent?

As background, the theory of disparate impact holds that an employer may be liable for discrimination even if an employer is not motivated by discriminatory intent. In 1971, the Supreme Court first described the disparate impact theory in Griggs v. Duke Power Co., 401 U.S. 424, 431-2 (1971): Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability." In 1989, the Supreme Court lowered the employer’s burden from proving business necessity to merely producing evidence of business justification. Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 657 (1989). The Civil Rights Act of 1991 reinstated the burden of proof on the employer to show business necessity once the plaintiff has demonstrated a prima facie case of disparate impact.

The Court in Ricci, held that the defendant violated Title VII of the Civil Rights Act of 1964 by setting aside test results that plaintiffs passed based solely on a fear that certifying the test, would invite a disparate impact lawsuit. By not certifying the tests, those who did well were not promoted and, according to the Ricci Court, subject to illegal discrimination based on race.

So what does Judge Sotomayor’s decision reveal about her place in the legal continuum? I argue that it reveals absolutely nothing about the soon-to-be Justice Sotomayor. The fact that the current Supreme Court split 5-4 on this case, itself, shows that Judge Sotomayor is not “outside” of current legal thinking. It also shows that Judge Sotomayor’s (and her two fellow appellate court judges) reliance on existing precedent to affirm the District Court was not lacking foundation. Although the short per curium opinion did not provide detail, it seems that the three judges of the Circuit Court believed that the disparate impact on racial minorities of the firefighter exam was so unambiguous as to need to further analysis.

And, here, perhaps is where the real issue lies. Judge Sotomayor had before her one of the more controversial legal issues of our time, and one which routinely splits judges along “liberal” and “conservative” lines. But instead of authoring or signing onto a long opinion, carefully analyzing this complex issue -- and there by expressly revealing where she stands on this issue -- Judge Sotomoayer and her fellow judges simply decided the facts and law before them were clear, and declined to even draft a signed opinion. That decision denied both the left and the right from obtaining detailed information about where she stands on this issue, and that is what is so frustrating to commentators who would like to make the Ricci decision tell us more than it does about Judge Sotomayor.

Google your way to better results

Google is a fun and helpful resource. Most law students like using it because it is easier than a lot of databases used by lawyers. The skills and strategies used in Westlaw or Lexis can also be employed while using Google. All you have to do is consider how Google works. It is well known that Google's search algorithm is a company secret, but the general approach Google employs has been shared by Google. While the details of their algorithm is shrouded in secrecy to prevent people from gaming the system as well as to keep Google ahead of their competitors, the basics are widely known.

Google uses automated programs called spiders or crawlers to scour the Internet retrieving information in the form of words on each web page. The information is indexed and from the index Google applies the algorithm to create a rank of pages based on the query entered. Most people simply type in a key word or two, but a good search applies Boolean logic (AND/OR/NOT) to obtain results that maximize the relevance of your results. You can use AND/OR/NOT concept through Google's Advanced Search page.

When writing your query or search, keep in mind that Google indexes the information retrieved by the spiders in such a way that the content of the page and the pages own description determine whether it will be found in a particular search. If a page mentions certain key words in the page in itself and in the title, that page will likely be ranked high in a search using that key word. However, if you only ask for what you do not want and do not ask Google to omit irrelevant items you will waste time sorting through results. If you are looking for a story about a crime committed you can type in your relevant key word, but you can also ask Google not to bring back results involving crimes you aren't interested in. Because Google's index takes into account each word on a page you can easily eliminate unwanted results. For instance, using Google's Advanced Search tools you can search for murder, but not robbery. Next time you are using Google click on Advanced Search to the right of the search box to see all the ways you can control your results.


Developing your search skills will help you find the perfect place for dinner in record time, but more importantly, it will help you become a better lawyer.

Bad Legal Advice

Talk of prosecuting Bush legal eagles who wrote memoranda that provided legal justification for torture is swirling around the blogosphere and the traditional media. The Wall Street Journal legal blog argues that bad advice is bad, of course, but not criminal. Traditionally organizations have relied on the advice of legal counsel, but acting on the advice of counsel is not a defense to criminal liability. To leap from criminal culpability of the actor to criminal culpability of the attorney whom the actor relied upon to conform his conduct is troubling to the legal community and for good reason. However, these are extraordinary circumstances.

The Uniform Code of Military Justice (UCMJ) clearly states that it is the obligation of those subject to the code to disobey unlawful orders. This legal concept was made explicit to unambiguously reject the Nuremberg Defense. The Nuremberg Defense is essentially that the defendant is not liable for his acts because he was following orders he was legally bound follow. This is relevant now because military personnel relied upon the advice of the President's counsel and conducted interrogations that violated the Geneva Convention and the UCMJ. (Any argument that water boarding, stress positions, sleep deprivation, sexual humiliation, striking repeatedly, but without the intent to cause substantial bodily harm do not violate those agreements is too specious to warrant a serious reply.) Obama has assured the Central Intelligence Community (CIA) that those who acted in reliance of the so-called Torture Memos will not be prosecuted. This stance has been harshly criticized by the left. On its face, Obama's position is essentially a redux of the Nuremberg Defense. It may be politically attractive and practical in the context of the continued threat of Al Qaeda and other terrorist organizations to take this stance, but it overlooks one of the most important lessons of the Nuremberg Trials: each individual must be held accountable for his actions if we are to be free from state sanctioned atrocities against humanity.

So, what do we do with the lawyers? The front line actors are allowed by the Geneva Conventions to use the defense of following orders to mitigate liability, but not absolve it. Arguably, if the documents created by the lawyers were used as a basis to commit crimes, their bar standing may be in jeopardy (though politically within the Bar, that result is extremely unlikely). I doubt they can be prosecuted for bad advice unless they knowingly issued the memoranda in question with the intention of causing others to commit violations of the law. Since it seems the primary purpose of the memos was to explain how the torture techniques were not illegal, criminal prosecution seems unlikely.

Drug Laws

Rep. Maxine Waters is at it again with the introduction of H. R. 1466: Major Drug Trafficking Prosecution Act of 2009. The purpose of the bill is to re-direct federal resources to tracking and prosecuting the big fish of the drug trade while easing some of the pressure on low level drug offenders. Currently, federal sentencing guidelines focus on drug weight and constricts the court's discretion in sentencing. 21 U.S.C 960(b) mandates harsh mandatory minimums based on drug weight and ties the hands of the court. The law was intended to create fairness in sentencing by tying sentence length directly to the seriousness of the offense. The innovation of crack cocaine inverted the result. A low level drug runner would receive a higher sentence than someone with a comparable or greater amount of cocaine because cocaine in crack form is heavier than cocaine in powder form.

The argument against Rep. Waters’s position is that the law should be changed, but not in the manner she proposes. Instead of removing mandatory minimum sentences Congress should alter the law to impose mandatory minimums equally based on street value instead of weight. By focusing on street value the disproportionality problem would be solved and the disincentives to bring narcotics into the U.S. would remain in place.

A third approach championed by libertarians, the extreme left and others is to end the War on Drugs because it needlessly impinges personal freedom and, more importantly, it cannot be won. The money spent on drug interdiction and prosecution is better spent elsewhere.

Legal Writing from Law School to the Bar Exam

As discussions about writing final exams and drafting sample bar essays swirl around the library, it is time to emphasize the basics that you all know. Repeat after me: IRAC! IRAC! IRAC! It is impossible to emphasize this acronym enough. Every law school exam answer should state the issue, explain the rule governing the issue, analyze the facts pertinent to the issue and provide a conclusion. Organizing by using IRAC on an exam will help to ensure you cover all of the issues. Organizing by using IRAC on the Bar will help you get more points on each essay. (Remember, the bar essays are graded by tired attorneys. Don't make them work harder to see if you included the right information, because they are unlikely to take that extra time to try to understand your unique method of answering an essay.) A simple but very thorough explanation of IRAC can be found at this website. LawNerds will walk you through spotting the issue, outlining the rule, the analysis and the conclusion. What you will find on the internet is no substitute for the hard work of learning to think and write like a lawyer, but this site will help to clarify the basic framework required to answer law school exam questions and bar exam questions.

Child Online Protection Act and Free Speech

Last month the US Supreme Court refused to hear Mukasey v. ACLU, effectively ending the Child Online Protection Act (COPA). Had it ever been enforced, COPA would have required commercial distributors of material harmful to minors to prevent access to their web sites by said minors. “Material harmful to minors” was defined so loosely by the law that materials which would not even qualify as obscene under current obscenity law would had to have been screened from minors lest their impressionable little minds be warped by seeing Venus at the Mirror or The Three Graces. “Well, at least we don’t have to worry about this sort of encroachment on the first amendment now that a Democrat is in the White House” you might say. In the words of an unfortunately still alive and certainly not that great sports commentator, “Not so fast, my friend”.

First, COPA was signed into law in 1998 by Bill Clinton, so party affiliation is not necessarily a good predictor of free speech support. And second, there is a strong argument to be made that the most serious threats to free speech currently come from the left, not the right. The Fairness Doctrine would never be brought back by a Republican White House, but might (depending on who you ask) by a Democratic one. The college campus is not known as a hotbed of conservatism these days, but speech codes which restrict what students and faculty can say and where they can say it are commonplace at both private and public universities. And blasphemy laws are making a comeback in places such as the UK , Canada , and the UN. Sure, they call it a ban on the “defamation of religion” or Combating Defamation of Religions Resolution (UN), but these laws are essentially a return to the old time blasphemy laws. Don’t think so? Just as Dutch MP Geert Wilders who was recently barred from entrance into the UK based on a movie he helped produce or ask writer Mark Steyn who had to defend himself in front of the Canadian Human Rights Commission against charges of blasphemy human rights violations for excerpts from his book that were published in Maclean’s magazine.

And if the individual attacks on free speech from the left and the right weren’t bad enough, when the two sides team up they can be downright distressing. The McCain–Feingold Act was a bipartisan effort which severely restricts the central purpose of the first amendment, political speech. And who can forget those blasts from the past, the Parents Music Resource Group (which brought us those explicit language warning stickers on albums and was headed by known right-wing nut Tipper Gore) and the Meese Commission (making it more difficult to buy Playboy at gas stations and convenience stores since 1986).

Now, you may argue that some of these examples I have given are justifiable restrictions on free speech for a variety of reasons (you won’t convince me, but you can try). The point is, they are restrictions on free speech. And they aren’t coming from storm troopers in black uniforms, but from smiling faces on both the left and the right claiming these restrictions are for your own good. Or even worse, they are “for the children”.

By David Novak, JD