Law

If at first you don’t succeed, try, try again.  That would seem to be the lesson from the Court’s decision in Alleyne v. United States, which today resolved a decade-old controversy regarding the constitutional distinction between two kinds of sentences: mandatory minimums and statutory maximums. Deputy Solicitor General Michael R. Dreeben arguing the case for the U.S. (Art Lien) Congress uses a variety of devices to constrain judges’ sentencing discretion.  One method is to define a maximum punishment allowed by law, but to permit that maximum to be increased where certain facts are shown.  For instance, Congress frequently authorizes higher maximum penalties for those who possess or sell illegal drugs – the greater the quantity, the higher the maximum sentence a judge may lawfully apply.  A second method constrains the judge’s discretion by requiring the judge to impose at least a specified minimum sentence under certain circumstances.  For example, federal child exploitation laws calibrate the minimum sentence to be applied to a sexual predator based upon the age of the victim – the younger the victim, the longer the mandatory minimum.  These kinds of floors and ceilings have many critics and fans.  From the legislature’s perspective, they provide predictability and uniformity with respect to the sentences applied to particular classes of defendants; judges, however, generally view these provisions as depriving the judiciary of the discretion necessary to tailor a sentence to the specific characteristics of the offender. Since its Apprendi v. New Jersey decision in 2000, the Court has granted defendants the right under the Sixth Amendment to demand that a jury find any and all facts – using the “beyond a reasonable doubt” standard – that could enhance a statutory maximum sentence.  Apprendi held that any fact which increases a defendant’s maximum sentence is considered an “element” of the criminal offense, and that the Sixth Amendment requires all offense elements to be proven to a jury beyond a reasonable doubt. Yet the Court has simultaneously maintained that a defendant has no right to insist on similar jury findings for facts that trigger mandatory minimums.  Under its 2002 decision in Harris v. United States, the Court has permitted sentencing floors to be triggered by a judge’s factual findings using a “preponderance of evidence” standard.  The Harris Court reasoned that Apprendi’s rule applied only to statutory ceilings, not floors, because only the former expose a defendant to a longer sentence than the law would otherwise permit.  In other words, what the Harris Court found significant was that a mandatory minimum is likely always to be lower than the maximum sentence the judge could lawfully impose.  Accordingly, only those facts that authorize the maximum sentence are “essential” elements of the offense that must be proven to a jury beyond a reasonable doubt. . Harris was a five-to-four decision that has been long been criticized for its seeming inconsistency with the constitutional rule in Apprendi.  The five-member majority in Harris included Justice Breyer, who explained in his separate concurrence that his vote was based on his inability “yet [to] accept [Apprendi’s] rule,” rather than his agreement with the proposition that a sentencing floor is constitutionally distinct from a sentencing ceiling.  As Apprendi was reinforced and applied to new contexts in the dozen years after it was decided, observers increasingly asked whether Justice Breyer’s rationale in Harris had withstood the test of time.  Raising precisely that question, defendants have repeatedly, and until today unsuccessfully, asked the Court to overrule Harris over the past several years. Enter Alleyne.  Alleyne’s case arose out of a robbery in which he and an accomplice robbed a local store’s daily deposits from a manager who was driving the deposits to the bank.  The duo tricked the manager into stopping his car, after which Alleyne’s accompl

(Orin Kerr) This morning the Supreme Court decided a very important criminal procedure case, Salinas v. Texas, by a 5-4 vote. I’m guessing that you haven’t heard of Salinas. And it probably won’t get much attention in the press. But it should: Salinas is likely to have a significant impact on police practices. And it’s a fascinating case for legal nerds, too. So I thought I would explain the issue in Salinas and offer some thoughts on why it matters and what it might mean. I. A Brief History of Fifth Amendment Protections To understand Salinas, you need to know a little bit of Fifth Amendment history. Before 1965, the Fifth Amendment right against self-incrimination had been interpreted pretty consistently to provide only a relatively narrow right. Under the pre-1965 cases, the Fifth Amendment only gave you a right to decline to answer the government’s questions when asked a question under the threat of judicially-imposed punishment and when you formally asserted the right. Imagine you’re a witness called to the stand in a criminal case. If you don’t answer the prosecutor’s questions, you can be held in contempt of court and jailed. Under the Fifth Amendment, if you have a reasonable belief that the answers to the prosecutor’s questions will implicate you in a crime, you can “plead the Fifth” and not have to answer the questions. Under that pre-1965 view, all the Fifth Amendment does is let you assert your right ex ante to get out of answering a question when otherwise the law would force you to answer it under threat of legal penalty. (The thinking as to why you need to assert the privilege is that only the suspect knows when his answer would be self-incriminating; the suspect needs to assert the privilege so a judge can step in at that point and assess whether the privilege applies.) Two cases in the mid-1960s made important cracks in that doctrinal edifice. First, in Griffin v. California, 380 U. S. 609 (1965), the Supreme Court held that the Fifth Amendment did not permit the government to comment on the defendant’s failure to testify at trial. Pre-Griffin, if the defendant chose not to testify, the prosecutor could argue that the defendant’s silence showed his guilt. (After all, an innocent person wrongly charged with a crime surely would want to explain his innocence to the jury, right?) Griffin reasoned that it would gut the Fifth Amendment if the prosecutor could argue that silence was guilt; the defendant would in effect be forced to testify to avoid that adverse inference. So the “spirit” of the Fifth Amendment barred commenting on the failure to testify even though the defendant did not formally plead the Fifth and was not compelled to speak by force of law. The second case that cut against the traditional understanding of the Fifth Amendment was Miranda v. Arizona, 384 U.S. 436 (1966), just a year after Griffin. Miranda is the famous “right to remain silent” case, and it held that before the police can admit a defendant’s statement during a custodial interrogation, the police must first inform him of his rights and then obtain a waiver of his rights. The reasoning of Miranda was that custodial interrogation was special. When a person was in custody and was questioned by the police, the environment was so coercive that the Court needed a set of special protections (the warnings and waiver) to ensure that the answers to police questions were voluntary and not coerced. The complex set of rules announced in Miranda was justified as a way of protecting the Fifth Amendment right. But the fit has always been awkward. Indeed, Miranda was actually argued as a Sixth Amendment case, not a Fifth Amendment case; it was a surprise to everyone when the Court announced that the Miranda rules were part of the Fifth Amendment. And the Court has struggled to find the right place for Miranda in constitut

Sepper on “Doctoring Discrimination in the Same-Sex Marriage Debates” Elizabeth Sepper (Washington University St. Louis) has posted to SSRN her working paper Doctoring Discrimination in the Same-Sex Marriage Debates,  Indiana L.J. (forthcoming 2014).  Here is the abstract: As an increasing number of state legislatures legalize same-sex marriage, some religious believers refuse to serve same-sex married couples. In the academy, law and religion scholars frame these refusals as “conscientious objection” to the act of marriage. They propose “marriage conscience protection” that would allow public employees and private individuals or businesses to refuse to “facilitate” same-sex marriages. They rely on the theoretical premise that commercial actors’ objections to marriage are equivalent to doctors’ objections to controversial medical procedures. Their proposal is then modeled on medical conscience legislation, which allows doctors to refuse to perform abortions. Such legislation, they say, would dispel conflicts over same-sex marriage and lead to acceptance of gay couples’ relationships. This Article argues that same-sex marriage objections lack the distinct and compelling features of conscientious objection recognized by law. It offers the first systemic critique of medicine as a construct for the same-sex marriage debates. It demonstrates that legislative protection of conscientious objection has been limited to life-and-death acts for which the objector has direct responsibility and further justified in medicine by ethical commitments particular to the profession – bases that are absent from the marriage context. By identifying the theoretical foundation of conscientious objection protections, this Article provides the groundwork for distinguishing between conscience claims that can be justified and those that cannot, in medicine and beyond. This Article further contends that the experience of medical conscience legislation represents a cautionary tale, rather than the success story that marriage conscience proponents claim. Conscience protection in the medical model could actually increase conflict and entrench opposition. Ultimately, these critiques undermine the theoretical and practical foundations of “marriage conscience protection.” They suggest that antidiscrimination law, where we have traditionally balanced religion and equality, constitutes a more useful lens through which to view religious accommodation. The full paper is available here. -Bridget Crawford Feminist Law Professors

Aristides N. Hatzis (University of Athens - Department of Philosophy & History of Science) has posted Rule of Law, Individual Rights and the Free Market in the Liberal Tradition: The Case of Greece (Bridging the Gap: Arab-European Dialogue on the Basics of Liberalism, Ronald Meinardus, ed. Cairo: Friedrich Naumann Foundation for Liberty, 2013) on SSRN. Here is the abstract: The western liberal tradition is closely connected with the idea of rights and the rule of law. Rule of law is the idea of a civil society governed by a Constitution which sets limits to government power and protects individual rights against any authority, even against the political will of a majority. The development of the western democratic theory from Ancient Athens to the British parliamentary system, the American Constitution and the French Revolution is mostly a development of two different and often contrasting principles: the democratic principle of people’s sovereignty and the liberal principle of the protection of individual rights. The balance between these two principles defines the quality of constitutional democracy. Greece was one of the first liberal democracies of the modern era. Nevertheless, contemporary Greece lags behind modern liberal democracies in many respects. The experience of Greece could be most useful for the new Arab democracies and Egypt in particular.

Mar Jimeno-Bulnes (University of Burgos - Faculty of Law) has posted American Criminal Procedure in a European Context (Cardozo Journal of International and Comparative Law (JICL), Vol. 21, No. 2, 2013) on SSRN. Here is the abstract: Research is focused...

Posted by D. Daniel Sokol Tommy Staahl Gabrielsen (Department of Economics, University of Bergen) and Bjorn Olav, Johansen (Department of Economics, University of Bergen) explore RESALE PRICE MAINTENANCE AND UP-FRONT PAYMENTS: ACHIEVING HORIZONTAL CONTROL UNDER SELLER AND BUYER POWER. ABSTRACT:...

Posted by D. Daniel Sokol Yongmin Chen (Economics, University of Colorado) and Marius Schwartz (Department of Economics, Georgetown University) have an interesting paper on Differential Pricing When Costs Differ: A Welfare Analysis. ABSTRACT: This paper analyzes the welfare effects of...

Analysis Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial.   If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling. The Court had taken on the case of Salinas v. Texas to decide whether it violates the Fifth Amendment for prosecutors to use pre-arrest silence as evidence of guilt.   But the Court did not reach that issue, since it said that one must say something that invokes the Amendment’s protection, or else it does not apply.  Prosecutors’ use of the silence is then permitted, it ruled. “A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Justices Samuel A. Alito, Jr., wrote.  The Court rejected the argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea. Justice Alito’s opinion had only the support of two other members of the Court — Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy.   Justice Clarence Thomas, in a separate opinion joined by Justice Antonin Scalia, would have answered the constitutional question that the Court had agreed to hear in this case, and declare that prosecutors could have used the suspect’s silence against him at the trial even if he had specifically claimed a Fifth Amendment right. The Alito opinion, though, did control the outcome of the case, rejecting the constitutional challenge to the murder conviction of a Houston man, Genovevo Salinas.  He had voluntarily gone to a police station with officers to talk about the murder of two brothers in 1992.  He was not under arrest, and was not in custody, so he had no right to “Miranda warnings” telling him that he had a right to silence. He answered almost all of the officers’ questions, but simply sat silent when the officers asked him if shotgun casings found at the scene would match his gun.  He acted very nervous in response, but said nothing.  Prosecutors used the fact that he said nothing to help convince the jury that he was guilty.  He was convicted and is serving a twenty-year sentence. The Court rejected the argument by Salinas’s attorney that, since he was not in custody at the time and had not been given warnings about his rights, that he did not have to explicitly claim the protection of the Fifth Amendment when he did not want to answer the police questions about the shotgun casings.   The Court had previously said, in a number of other contexts, that one had to invoke the right for it to take effect, but it had never done so in the setting of a voluntary encounter of an individual with officers at a police station. The Alito opinion said that there was no formal way an individual had to use to invoke his Fifth Amendment right, and concluded that it has not been hard for courts to figure out when that right has, in fact, been invoked. Justice Stephen G. Breyer wrote the dissenting opinion, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.  They would have ruled that courts should examine all of the specific circumstances of an individual’s encounter with police to decide whether, in fact, that person’s silence was an attempt to claim the Fifth Amendment right. This decision, in plain English: The Constitution’s Fifth Amendment gives an individual suspected of crime a right not to be forced, by police or other government officials, into giving up evidence that would show he or she was guilty of a crime.   The Court had ruled previously, in the famous case of Miranda v. Arizona in 1966, that an individual who was being held by police and co

Biden looks awfully good compared to Obama here.

Steven Davidoff, Barbara Black and Eric Chaffee gave me the honor of delivering the keynote address at the fourth annual National Business Law Scholars Conference at Ohio State University last week. Now, Gordon Gee, president of Ohio State, had just announced his retirement. This followed several bad jokes he’d made that had become public—about Notre Dame, Catholic priests and relative literacy across the Southeastern Conference.  Besides encouraging his retirement, I understand that the board of trustees have now banned attempts at public joke telling on the OSU campus, including at conferences.  Which was a relief, because I didn’t have any good jokes to start with, I told the audience. After that obligatory bit of humor, it was on to remarks based on one of my recent books, The AIG Story, which I wrote along with the company’s long-time chairman Hank Greenberg. One of the book’s themes that I wanted to highlight is the dangers of a one-size-fits-all approach to corporate governance.  For the assembled audience of young business law scholars, moreover, I wanted to intersect that with some thoughts on scholarly life, my notes on which follow. It is wonderful to be able to write law review articles that other scholars respect as well as books for a general audience, I said.  They are connected.  Both require networks. I felt little need to tell those assembled about the value of participating in conferences; they were there. It takes work and is worthwhile. Frank Partnoy reminds me of my advice to him when he entered teaching: hit on all cylinders. Teach well, help your students, write articles, books, op-eds, essays, white papers; give workshops and lectures; testify and run host conferences; meet the press; today I extol blogging as well—as I do here at Concurring Opinions. That brought me to the book, The AIG Story. The opportunity to write it came to me from a former student. He works in Greenberg’s inner circle. They were hunting for a co-author. My student remembered me, a vital link.  Another was an insurance angle: I had worked with Warren Buffett, hosting a conference about his letters at Cardozo Law School back 1996 in my fourth year of teaching.  Also on substance, besides the Buffett work, which I published as a book, I’d written articles and books in relevant areas: accounting, governance, insurance, financial regulation. Moving full circle, out of the book I’ve generated 2 scholarly products so far. One is the final chapter, about AIG in 2008, which I’ve posted on SSRN.  Second is a fresh scholarly piece, forthcoming in the Florida Law Review, extending points I highlighted in the talk: Corporate Governance in Deferred Prosecution Agreements (also on SSRN). So the scholarly enterprise is vast and iterative—it begins in the classroom, includes articles that lead to books, books that lead back to articles and all of that back to class. All the while, moreover, this scholarship matters. In addition to having intrinsic value, it has influence. That is usually wonderful, but ideas can be misused or applied in ways we neither intend nor like. Popular recent examples include laments of tech pioneers in Silicon Valley who deplore their innovations being harnessed for government surveillance programs; or consider Adam Liptak’s recent piece in the New York Times about how the law professors who founded the Innocence Project, my former Cardozo colleagues—rue the Supreme Court’s use of their work recently when validating warrantless extraction of DNA samples. (Maryland v. King.) The same problem of unintended consequences can afflict business law scholarship. That’s where the theme of The AIG Story I discussed intersects with my reflections on scholarship.  The theme is the danger of a one-size-fits-all approach to corporate governance, which has become a feature of corporate America in the past 25 years, an accidental byproduct of some scholarly discourse. After highlighting what I found from studying AIG, I reiterate