Law

(Orin Kerr) Over at MotherJones, Kevin Drum has an interesting post on the AP leak investigation: Here’s Why the Government Went Ballistic Over the AP Leak. Also, over at Slate, Emily Bazelon and former VC blogger Eric Posner debate whether the subpoenas of the AP records were justified. Eric gets the better of the argument, I think, but it’s a helpful exchange either way.

in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 4572 The Dangers of Surveillance Neil M. Richards, Washington University in Saint Louis - School of Law, Date posted to database: March 25, 2013 2...

by Gene Howington, Guest Blogger Bring me a plate of whatever and something wet to drink! A friend of mine sent me this picture. I know that apathy is a problem for a great number of our fellow citizens, but come on. Sure, it’s silly, but do you think this is clever? Is it indicative of a larger problem with the American mindset? Both? Or do you just not care? ~submitted by Gene Howington, Guest Blogger

Submitted by Charlton Stanley (Otteray Scribe), guest blogger Dr. Isaac Ray The relationship between mental health and the legal system is a turbulent one at best. One major problem is they speak two different languages. For example, insanity is a legal term found nowhere in any psychiatric or psychological diagnostic manual. There are several key words used commonly by both professions, but which have quite different meanings. The words “validity” and “reliability” are part of the vocabulary of science. To a scientist, the word validity means that a test measures what it claims to measure. When a test is intended to measure depression or anxiety, the user can assume it measures depression and anxiety. Reliability refers to the repeatability of a test or measurement. If we give the same test to the same subject several times, all the scores will fall within the standard error of measurement 95% of the time. When an attorney uses the word validity, it means, Binding; possessing legal force or strength; legally sufficient. The legal interpretation of the word reliability suggests the subject matter is trustworthy, and that one can rely on it. However, when a scientist says something is reliable, it means whatever is being tested will get the same results with every retest, within the Standard Error of Measurement. An examination of the literature of both professions reminds us of the quip attributed to George Bernard Shaw, “[We] are two peoples divided by a common language.” When I was in graduate school, a well-known attorney gave an invited lecture to the student body. The speaker made several sweeping generalizations about the mentally ill; all of them displaying a stunning ignorance of facts. Then he turned his venom on those in the mental health professions, referring to mental health professionals scornfully as, “Soul doctors.” I would like to say people like him are rare, but they are not. I have known judges who, quite literally, did not believe in mental illness. We had one of those in our area who, mercifully, retired a few years ago.  People like that remind me of those misogynistic knuckle-draggers who don’t believe there is such a thing as rape. Now, back to the stormy relationship between the legal system and mental illness. In 1581, Edward II said that under English Common Law, if a defendant had no more understanding than a “wild beast,” then they should not be held responsible for crimes committed in that state. By the 18th century, British courts elaborated on this distinction and developed the “wild beast” test: If a defendant was so bereft of sanity that he understood the ramifications of his behavior “no more than in an infant, a brute, or a wild beast,” he would not be held responsible for his crimes. Daniel M’Naghten That was the standard until 1843, due to one of the most precedent setting trials of all time. In 1838 an American psychiatrist, Dr. Isaac Ray published a book called, A Treatise on the Medical Jurisprudence of Insanity. Five years after the publication of Dr. Ray’s book, Daniel M’Naughten attempted to assassinate the Prime Minister of England, Sir Robert Peel. As luck would have it, Sir Robert decided to ride in the carriage of Queen Victoria that day. The only occupant of the Prime Minister’s carriage was his secretary, Mr. Edward Drummond.  M’Naughten leaped onto the Prime Minister’s carriage armed with a pistol “loaded with gunpowder and a leaden bullet.” Mistaking Drummond for Sir Robert, M’Naughten shot him. Drummond languished for a few days, whereupon he expired. M’Naughten was charged with murder. His trial was held in 1843. His attorney, Alexander Cockburn, was one of the best lawyers in England at the time.  Cockburn was familiar with Dr. Ray’s seminal work on the legal implications of mental illness and its application to an insanity defense. Cockburn’s brilliant and persuasive defense won an acquittal, standing the ‘wild beast’ principle on its head.

By Mark Esposito, Guest Blogger The Obama Administration was rocked last week by two political scandals that Republicans claim makes Watergate look like a jaywalking ticket. Pious GOPers decried the lack of response to the Benghazi terrorist attacks and then blasted the Administration (as well as US Senators Chuck Schumer and Jeanne Shaheen) for sicking the IRS on their lapdog grassroots movement that’s neither grassroots nor a movement, the Tea Party. Seems the Republicans say they can do national defense better and are willing to produce quotes from doctored emails to prove it. On the home front, the knives were out for that whipping boy of the “Don’t Tax Us” crowd — the IRS. Calling for jail sentences, leading Republicans like House Speaker John Boehner,  House Oversight and Government Reform Committee member Rep. Jason Chaffetz, and  29 other Republicans who sponsored legislation to really, really, make IRS political retribution illegal (it is already) are shocked … shocked that some politically active conservative groups were scrutinized over tax exempt status when they were forced by two rogue IRS examiners to fill out long questionnaires that went public. Never mind that no group was actually denied the status despite their applications that said that these “social welfare” organization weren’t really social welfare organizations anyway but political ones, or that that “legalest” of tax  dodges –501(c)(3) & (4) status — has become a bad joke used to attack the other guys politics.  What mattered to leading Republicans now (Oh, yeah in less ox-gored days a year ago,  Senator Minority leader Mitch McConnell blasted liberal groups for you guessed it — using tax exempt status to attack the GOP), is that they finally have something to use politically against the Administration. You can almost hear the sighs of relief coming from the parlors at the country clubs and over the lemonade and cookies in the church basements can’t you? But are the scandals resonating with  the rest of the American people? The answer seems to be: “Well, that depends.” If you’re Republican and conservative, the answer is most assuredly  ”yes.” For the rest of America it’s a decidedly “Maybe.”  Here’s the recent polling about who’s watching the scandals: By a slight majority, Americans are interested but clearly not enthralled. Now let’s see who’s watching by political affiliation: The other question is, “Who thinks the scandals deserve major investigations to –as those public-spirited Republicans say — get to the facts?”: Thus, according to Gallup, Americans are paying less attention to the Benghazi and IRS “scandals” than they do to other major news stories. According to the polling service the interest in the two stories is “well below the average for news stories Gallup has tracked over the years.” Are the GOP engaging in more wishful thinking as most of their punditry did in the last Presidential election? The answer here is another “maybe.” Let’s look at political affiliation since the  2012 elections: If I’m reading these tea leaves correctly, the number of folks identifying  themselves as GOPers looks to be holding as steady as  Lindsey Vonn (ok I like Lindsey) on a downhill run. So maybe what Fox News claims was an outright theft of the last presidential election and what Republican lawmakers see as their last, best hope to cripple the Obama Administration is fools gold after all. Of course, things can change in an instant in D.C. as we all know, but do Boehner, McConnell, and their Tea Party cronies look like first place finishers to you? If so, I’ve got some Triple Crown bets on Orb you might like? Source: National Memo ~Mark Esposito, Guest Blogger

From the New York Times: The so-called hit rate — often measured as a percentage of stops that lead to an arrest or summons — has long been at the center of the fraught public debate over the stop-and-frisk tactic....

At 9:30 a.m. on Monday we expect orders from the May 16 Conference. Our list of “Petitions to watch” for that Conference is here. At 10 a.m. we expect opinions in argued cases. We will begin live blogging shortly before 9:30. On Thursday the Justices will meet for their May 23 Conference. Our list of “Petitions to watch” for that Conference is here. In association with Bloomberg Law

Josh Bowers (University of Virginia School of Law) has posted Two Rights to Counsel (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract: This forthcoming essay argues that there is not one constitutionally recognized right to counsel,...

Sexual Behavior and Critics of Consent Theory Over (here) at The Atlantic, Conor Friedersdorf has in interesting take on whether consent is an appropriate litmus test for measuring ethical sexual behavior. Unfortunately, the article’s title — The Ethics of Extreme Porn: Is Some Sex Wrong Even Among Consenting Adults? — is overly sensational and not especially illuminating of the article’s content.  To be fair, he does start with an evaluation of some pornography, but his subject is sexual behavior of all kinds. Here is an excerpt: [Critics of consent] seem to imply (but may or may not believe, were it to come up directly) that consent as a cultural lodestar is a shameful moral abdication, indicative of an age where other, much more important norms have been abandoned. As I see it, the emphasis on consent in today’s sexual morality isn’t decadence. However incomplete, it is a historic triumph. And growing reverence for consent would gradually make our culture radically more moral. A good read. -Bridget Crawford Feminist Law Professors

(David Kopel) On Friday, May 17, fifty-four Colorado Sheriffs filed a civil rights lawsuit in Federal District Court in Denver, against two anti-gun bills passed by the Colorado legislature in March. Joining the Sheriffs as Plaintiffs are the Colorado Farm Bureau, disabled persons, Outdoor Buddies (an organization that helps disabled persons participate in outdoor sports), the Colorado Outfitters Association (the trade association for hunting guides), the National Shooting Sports Foundation (the trade association for the firearms industry), magazine manufacturer Magpul, federally-licensed firearms dealers, the state’s largest shooting range, the Colorado State Shooting Association (governing body for the shooting sports in Colorado), and Women for Concealed Carry. The Complaint is available here. The lawsuit involves House Bill 1224 (a sweeping ban on magazines, including small magazines) and House Bill 1229 (an unworkable system of background checks for temporary transfers of firearms, and for private sales). The Complaint alleges violations of the Second Amendment, Fourteenth Amendment (vagueness), and Title II of the Americans with Disabilities Act. A 38 minute video of the press conference announcing the suit is available on YouTube. In this case, I am representing the Sheriffs. Friday afternoon, Grand County Sheriff Rodney Johnson joined the case, bringing the number of plaintiff Sheriffs to 55 out of the 62 elected County Sheriffs in Colorado. (Denver and Broomfield have appointed Sheriffs who run the jail, but do not have the comprehensive responsibilities of the elected Sheriffs.) The Complaint will be amended next week to reflect Sheriff Johnson’s participation.