Concurring Opinions

Doe v. Wal-Mart: Must Common Law be Reformed to Protect Workers?

2009-11-07T22:08:41Z

Outsourcing, with or without offshoring, through extended supply chains of goods and services has come to be a common way to organize a business. Using contract law to divide and subdivide what was once a single enterprise (or start one from scratch) into separate legal entities is ever more useful to businesses as they try to cut their costs to become ever more competitive. If vertical integration was once the norm – e.g., Ford’s River Rouge plant where iron ore, coal, sand, rubber came in one end and Ford cars came out the other – the norm is now to have flat and horizontal relation-based groups of legally independent entities that can stretch around the world. The business entities farthest from the core of the enterprise frequently are almost ephemeral in to their organization, ownership and even life span. These frequently operate at the fringe of the formal economy and often in the informal economy where they escape coverage by the domestic labor and employment laws of the place where the work is performed. “Middlemen” operated as a bridge between the core enterprise and the far end of the supply chain where the productive work is actually performed.

The common law generally favors this type of private ordering in part because it looks at so many issues through a lens that sees only the two parties immediately involved in the transaction. The common law does not generally take too much account of the effects on third parties, including workers participating in the full enterprise from one end of the supply chain to the other. What is becoming ever more clear is that the common law leaves labor and employment interests in the dust, unable to keep up, incapable of protecting workers.

A recent common law case demonstrates the freedom enterprise has to organize its affairs to its own interests while escaping any obligation to workers down line in the supply chain. In Doe v. Wal-Mart Stores, Inc., plaintiffs were employees of enterprises located around the world that make and sell goods to Wal-Mart. Wal-Mart’s contracts with plaintiff’s employers all incorporate Wal-Mart’s Code of Conduct obliging these suppliers to provide basic labor standard protections to their employees and allowing Wal-Mart to monitor compliance including canceling contracts if the suppler “fails or refuses to comply” with the Code. Requiring suppliers to agree to the Code shields Wal-Mart from attack, including consumer boycotts, for selling goods made by child labor or under other sweatshop conditions. Nevertheless, the workers at the ends of the supply chain were in fact not provided the labor protections the Code claimed to mandate. Claiming injury from their employers’ mistreatment, plaintiffs sued Wal-Mart because it failed to either monitor or enforce compliance with its Code. The Ninth Circuit, applying traditional common law, rejected all four of plaintiffs’ claims. First, plaintiffs were not third party beneficiaries of the contracts between plaintiffs’ employers and Wal-Mart. Second, Wal-Mart was not a joint employer of these employees with their employers. Third, Wal-Mart owned no duty to plaintiffs and so it could not to be held to be negligent. Fourth, Wal-Mart was not unjustly enriched by the employers’ mistreatment of the plaintiffs. In short, independent contractor law allows Wal-Mart to arrange its legal relationship with its supplier to their mutual advantage while also cutting off the claims of the employees of the suppliers. As has been true from the earliest sweatshop days in the garment business, the actual producers are completely contingent, ready to disappear and to reappear in a new format at a new location at a moment’s notice in order to avoid any obligations owed the workers. Sweatshop conditions have grown far beyond the garment industry to include electronics and many other labor intensive businesses.

So, ironically, those interested in workers’ rights might need to start thinking about reforming the common law, at least as it applies to employees, if law is to be relevant to worker protections. For the purposes of worker protection, enterprises may have to be reconceptualized so that the Wal-Marts of this world are viewed as a single enterprise from the beginning to the end of the supply chains, without regard to the private ordering they engage in to divide the whole into many parts. In fact, if not law, they do form a functional whole, despite the present law that separates them into many independent legal entities. The normative basis for such a new approach is that, if the Wal-Marts of this world are not responsible for labor standards to workers to the very end of the supply chain, then no one is.

If enacting the Employee Free Choice Act and the various civil rights bills pending in Congress face tremendous challenges to be enacted, the question is whether legislation to reconceptualize workers’ rights in these subdivided enterprises has any chance at passage. In the recent era, the common law courts have also retreated from the advances made when what we call “employment law” was just beginning to blossom.

The Yale Law Journal Online: Marriage, Property and [In]Equality: Remedying ERISA’s Disparate Impact on Spousal Wealth

2009-11-06T15:11:00Z

The Yale Law Journal Online is pleased to announce the publication of Marriage, Property and [In]Equality: Remedying ERISA’s Disparate Impact on Spousal Wealth, by Paula A. Monopoli. In this piece, Monopoli argues that Congress has a historic opportunity to resolve an ongoing gender disparity in ERISA through considered pension reforms. She outlines the steps that may be necessary to bring federal pension law into alignment with the general movement toward gender equality in marriage property law.

Preferred citation: Paula A. Monopoli, Marriage, Property and [In]Equality: Remedying ERISA’s Disparate Impact on Spousal Wealth, 119 YALE L.J. ONLINE 61 (2009), http://yalelawjournal.org/2009/11/4/monopoli.html.

From the other side at AALS . . .

2009-11-06T12:34:20Z

It has been a decade since I slept poorly at the Wardman in November – and I must admit to having some unpleasant flashbacks. Last night, like 10 years ago, I got lost on my way to an interviewing suite. I still find the bar scene a little anxiety producing. So – to those of you interviewing today – many of us on the other side of the couch do have empathy for you!

Needless to say, I acknowledge the difference. We on the interviewing side are happily (hopefully) ensconced as academics – a position that is frankly worth running from hotel suite to hotel suite. We are (hopefully) happy to talk about the benefits of our particular institution. And it has been fabulous to read the scholarship of those on the market.

I thought I’d post this morning mainly to wish you all good luck — and to explain why I am not posting anything substantive until next week. And a quick tip: when you are given the opportunity to ask any questions – find a question that allows for an interesting and idiosyncratic answer. I promise that every school will have an identical answer to the ubiquitous “what support does your institution have for junior faculty.” We all have colloquia, research stipends, and collegial sharing of documents. We all generally do try to give junior faculty reasonable teaching loads, etc. And if we don’t do any of these things, we won’t acknowledge it here!

Update on the Grassley Amendment

2009-11-05T23:53:34Z

It appears that Sen. Charles Grassley (R-IA) has pulled his amendment (that I blogged about on Tuesday here) to the National Criminal Justice Commission Act that would have prevented the commission from even discussing the decriminalization or legalization of any controlled substance. Grassley was asked about the amendment by a reporter yesterday during a conference call. He did not explain why he decided to pull the amendment, but did affirm that it would have applied to stop the discussion of even medical marijuana by the Commission. Law Enforcement Against Prohibition has the relevant exchange between Grassley and the reporter.

Lawyers: Don’t Trade on Inside Information!

2009-11-05T22:50:45Z

In my corporations classes, I urge my students planning a career in corporate and securities law to resist the ubiquitous opportunities and occasional temptations to trade on the basis of material non-public information. I offer in terrorum encouragement by emphasizing that all trades are tracked and that enforcement authorities periodically review them for unusual patterns. Those are traced back to professional advisors, including law firms, having been involved in related deals. It is not difficult for authorities to catch these violations.

Along with dozens of others apparently caught up in the ongoing insider trading scandal at Galleon, today, an associate at the prestigious firm, Ropes & Gray, is alleged to have violated securities laws by using confidential information obtained from clients to profit in securities trades. Lawyers, as fiduciaries, who obtain material information through client representation, violate their fiduciary obligations and hence federal securities laws when they trade on it. See United States v. O’Hagan, 541 U.S. 642 (1997).

Over at the Wall Street Journal blog, Ashby Jones is asking how common insider trading is among lawyers. This is obviously a difficult empirical question. I can add, however, that (a) in the four years that I practiced law at Cravath, Swaine & Moore, one of my fellow-associates engaged in this activity (with his brother) and authorities prosecuted him (in 1995) for it and (b) during the two years before that when I was a paralegal at Skadden, Arps, one of the associates for whom I worked did so (with his sister) and he was likewise caught (in 1990).

In addition, the famous case embracing the so-called misappropriation theory of insider trading, United States v. O’Hagan, 541 U.S. 642 (1997), involved a lawyer—a partner at Dorsey & Whitney, representing Grand Met in its acquisition of Pillsbury, who generated nearly $4 million in unlawful trading gains from the knowledge.

I repeat to my students, past and present, and all lawyers: do not do this!

The Employer’s Strategy in Gross v. FBL Financials

2009-11-04T17:43:28Z

Last Term in Gross v. FBL Financials, a 5-4 decision written by Justice Thomas, the Court decided that a plaintiff bringing a claim of individual disparate treatment age discrimination — an ADEA action — must prove, by a preponderance of evidence, that age was the “but-for” cause of defendant’s treatment of plaintiff. Thus, unlike Title VII, the burden of persuasion never shifts on the issue of linking what happened to plaintiff— “an adverse employment action” — to defendant’s intent to discriminate, even if plaintiff had produced evidence that age was “a motivating factor” of the defendant. This is an important discrimination case since the Court appears to be adding age cases to discrimination cases under the ADA (before its recent amendments) that deserve lesser enforcement than the Title VII claims of race, color, sex, national origin and religion discrimination. It will have ramifications in other areas of discrimination law, including retaliation cases and cases brought under 42 U.S.C. 1981. It even raises the question whether the iconic McDonnell Douglas v. Green approach to proving defendant’s intent to discriminate applies in age act cases. (So far, the two circuits deciding that question continue to apply McDonnell Douglas).

For those not interested in employment discrimination law, of which I suppose there may be a few, this may not seem a startling decision. But for those attuned to discrimination litigation and to Court watchers generally, the decision came as a quite a surprise. Most surprising is that the Court answered a question not presented to it for decision. In most situations when the Court determines that some question other than the one presented has come to the fore, certiorari is dismissed as improvidently granted or the case is remanded to the lower courts to decide this new question.

The question originally presented in Gross was: “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” What this referred to was Title VII authority that allowed burden shifting to the defendant of the issue of linkage between defendant’s intent to discriminate – the employer’s motivation for its action — and plaintiff’s harm and how that burden shifting might apply in age discrimination cases. Long story short, the Justice O’Connor’s concurring opinion back in a 1989 Title VII sex discrimination case, Price Waterhouse v. Hopkins, came to be viewed by the lower courts as the holding since her opinion was seen as the narrowest basis for the decision in which there was no majority. She required plaintiff to introduce “direct” evidence of discrimination in order to rely on a “substantial factor” test of linkage that shifted the burden of persuasion to the defendant to prove a same-decision defense. The 1991 Civil Rights Act then amended Title VII so that plaintiffs established liability by showing defendant’s intent to discriminate was only “a motivating factor,” with the burden then shifting to the defendant to prove the same-decision defense to full remedies, not to liability. The new provisions did not mention “direct” evidence and so Title VII was interpreted in Desert Palace v. Costa as not requiring any “direct” evidence threshold to the use of the new “a motivating factor” standard.

The question presented in Gross was how that all worked out in an age discrimination case. Up until the employer filed its reply brief, the case proceeded on the assumption that burden shifting applied, with the question being whether or not the plaintiff needed to point out “direct” evidence to take advantage of that shift in the burden of persuasion. Raised for the first time in its reply brief to plaintiff’s brief on the substance, the employer argued that a prior question needed to be answered before that question could be decided: Was burden shifting ever available in an ADEA case? The Court agreed that it should answer that question instead of the one presented and answered it in favor of defendant. Thus, the original question presented was mooted out.

For Court watchers, the more interesting question is why the employer decided so late in the game to try to shift the focus of the case.

One explanation is that the employer changed counsel. Carter Phillips of Sidley & Austin, a very experienced Supreme Court practitioner, took up the case. But why did Phillips decide that his chances of winning improved if he could get the Court to change the focus of the case? In this era when there is some talk of the Court taking a “minimalist” approach to its decisionmaking, it seemed a bold move to ask the Court to answer a prior question with much deeper and broader potential implications than the one the Court said it was going to decide. Of course, if the Court dismissed the writ as improvidently granted, defendant still would win because it won below. But, a remand to the lower courts would delay, if not prevent, that victory. And, the Court could answer that question in favor of the plaintiff and still decide that “direct” evidence was not needed when the plaintiff sought to use the burden shifting approach to linkage. At a minimum, the strategic decision to ask the Court to decide a different question than the one presented was not without risk.

One reason to try to change the focus of the case was that answering the question the employer now posed allowed the Court a way to avoid deciding the messy question of what “direct” evidence exactly is. As a background in Desert Palace, there was a slew of authority going every which way on that question. That uncertainty is understandable since, at bottom, there is no “direct” evidence of someone’s state of mind in the classic sense of evidence that proves the ultimate fact in dispute without the need to draw any inferences: State of mind is not directly observable. Recognizing this, some of the lower courts had rested on a formulation that “direct” evidence really meant strong circumstantial evidence of defendant’s intent to discriminate. That was a distinction, however, that could not hold. In Desert Palace, the Court avoided having to get into that swamp of authority by deciding that the plaintiff never needed any direct evidence to get burden shifting in Title VII mixed-motive cases. In Gross, the Court could avoid answering the same question, but this time by deciding that burden shifting was never available in individual disparate treatment ADEA cases, whether or not a plaintiff could point to some evidence that might be characterized as “direct.”

Perhaps a more significant reason to try to shift the focus was based on the change in the composition of the Court, especially the retirement of Justice O’Connor, since Price Waterhouse had been decided. Recently in Smith v. City of Jackson, the Court had decided that the disparate impact amendments to Title VII did not apply in an age case, but that the Title VII disparate impact authority pre-existing the 1991 Act did apply. Based on Smith, many Court watchers predicted that it was likely that the Court would find that the Title VII authority on linkage that pre-existed the Act would also apply in individual disparate treatment cases claiming age discrimination. That would leave open the question whether or not Justice O’Connor’s concurring opinion in Price Waterhouse applied to require “direct” evidence to get burden shifting – that is, whether Justice O’Connor’s concurring opinion was the holding of Price Waterhouse that applied to age discrimination cases. With Justice O’Connor being replaced by the more conservative Justice Alito, Phillips may have decided that the employer would win the votes all four Justices to the right of the middle of the Court — the Chief Justice and Justices Scalia, Thomas and Alito. Saying it another way, without those four, the employer’s case was doomed. Thus, the goal was to pick up one more vote, with Justice Kennedy the likely target since he sat in the middle of the Court. It maybe was not so clear that Justice Kennedy would go one way or the other on the “direct” evidence question since he had thought that there should never be burden shifting in Title VII, a point he made clear in his dissent in Price Waterhouse. Phillips might have calculated that it would be easier to persuade Justice Kennedy that he was right all along in Price Waterhouse and that it should be overruled, than it would be to get him to agree on the narrower question of how burden shifting worked as to the need for “direct” evidence if burden shifting applied somehow.

The gamble paid off: Justice Thomas appeared to undermine if not explicitly overrule Price Waterhouse, saying, “it is far from clear that the Court would have the same approach [as it took in Price Waterhouse] were it to consider the question today in the first instance.” With Price Waterhouse gone, burden shifting for age act cases was also gone. Though we did not know this until Gross, the linkage standards of both the ADEA and, at least before the 1991 Amendments, Title VII were always the same: “but-for” with the burden of persuasion on the plaintiff. Neither Title VII nor the ADEA had burden shifting even though we did not know that until Gross was decided in 2009. Therefore, adopting a bold strategic move paid off for the employer and its counsel before the Supreme Court.

In Memoriam

2009-11-05T01:28:51Z

Mary Mitchell, a beloved member of the Indiana University — Indianapolis faculty, passed away today after a sudden illness. Mary was a wonderful teacher who cared deeply about her students and fought passionately for her beliefs during her three decades at the law school. We are all devastated by this loss.

One Year of Prop 8: A recap

2009-11-04T17:25:48Z

A year ago today, California voters adopted Proposition 8 by a 52-48 margin. Last night, voters on the other side of the country voted the same way, by almost exactly the same margin.

I was interviewed earlier today about the issue, and the anchor asked a few questions like “What happened?” and “What’s next?” In the interview environment, I could give only quick sound bite answers. But those are complicated questions which deserve deeper discussion. So in this post, I’ll talk about what has happened in the marriage equality movement over the past year; and in a follow up, I’ll talk about what’s next for marriage equality.

Post-Prop-8 events fall into six major categories:`

1. The necessary clarification on interim marriages. Prop 8 proponents argued that those marriages were invalid; the Cal Supreme Court rejected that argument in its May 2009 decision, effectively grandfathering in those marriages.

2. The state law constitutional challenges. Advocates including the NCLR, the City of San Francisco, and the Attorney General made a variety of state law challenges to Prop 8, including that it was a revision (I explain this to lay audiences as meaning “too big to be passed by the referendum process”) and that it violated fundamental rights under the state constitution. Those claims were dismissed by the Cal Supreme Court in May as well. Thus, the May decision upheld Prop 8 in general, but also grandfathered in the interim marriages.

3. The federal law challenges. This is the lawsuit filed in Federal court by Ted Olson and David Boies. It recently passed the first hurdle, as the judge rejected the motion to dismiss the lawsuit. The suit is ongoing, but it widely viewed as a longshot.

4. Related news in California, mostly backlash-related. There was a massive backlash after the November election, with highly visible protests and vigils, and some violent or otherwise illegal incidents (like vandalism). Activists also used disclosure laws to bring economic sanctions of sorts, posting information on the internet to facilitate boycotts against Prop 8 supporters. Some activists have also argued for legal sanctions over Prop 8 campaign issues, in particular that churches and other organizations violated campaign disclosure laws. There has been a visible counter-backlash as well, as churches and individual supporters have argued that they are being unfairly targeted for exercising their own rights of speech and voting.

5. Political developments in other states. This is where things have gotten really interesting. On November 5th of last year, only one jurisdiction in the country (Massachusetts) allowed same sex marriage. A year later, there are now five (and it was awfully close to six, with Maine.) Despite Prop 8, marriage equality has been on the upswing.

Iowa and Connecticut courts ruled in favor of marriage equality. Vermont, Maine and New Hampshire pioneered a new trend with marriage equality bills passed by the legislature. This potentially undercuts the highly effective democratic-legitimacy rhetoric that same sex marriage was being forced on the public by unelected judges. (But see Maine, in future discussion.)

Maine and New Hampshire are especially important, for different reasons. Maine’s law went to the voters today, and while it failed there are very interesting ramifications of the Maine vote (which we will see in the follow up post). New Hampshire pioneered a compromise model with built in conscience protections for religious officiants and organizations. The model of legislatively passed marriage equality bills with conscience protections may be the future of the movement.

6. Finally, developments in federal law. Here, it has largely been the sound of silence. There has been recent movement on some gay rights issues (the recent hate crimes bill) but there has been deafening silence on the Defense of Marriage Act (DOMA). As long as DOMA is on the books, marriage equality cannot exist, because federal law (social security, tax, immigration) does not recognize same sex marriages. President Obama made a campaign promise to repeal DOMA. So far, there has been no movement on that front.

That’s my recap of what has happened over the past year in marriage equality (or, what I would have told the interviewer if I had had 20 minutes). In a follow up post, I’ll address the equally complicated question of, “what next?”

Election Night 2009

2009-11-04T04:59:38Z

Like any good political junkie, I have been spending the past few hours switching back and forth between MSNBC and CNN on the television while frantically reloading talkingpointsmemo.com on my laptop. We have results in for the two big governors races, with Republicans picking up wins in Virginia and New Jersey. Meanwhile, the most closely watched ballot initiative, the marriage equality initiative Measure 1 in Maine (for those who have not been following the measure closely, a “No” vote on Measure 1 is a vote in favor of gay marriage), remains too close to call.

Flying under the radar (on this already somewhat under the radar election night), however, were two drug policy reform measures in Maine and Breckenridge, Colorado. And both appear to have won handily, with Mainers voting to approve the creation of a licensed medical marijuana dispensary system for patients to obtain medicinal marijuana and Breckenridge residents voting to decriminalize possession of up to one ounce of marijuana.

And with that, it’s back to reloading talkingpointsmemo.com for me.

AALS Hiring Conference

2009-11-04T00:15:48Z

I’ll be in DC (mostly in a hotel room) on Friday and Saturday as chair of IU-Indy’s hiring committee. If any regular readers of CoOp will be at the conference, email me and perhaps we can find some time to meet up.

Politicians: Have you talked to your constituents about drug policy?

2009-11-04T00:03:42Z

Thanks to Deven and the rest of the Concurring Opinions crew for the opportunity to guest-blog this month, I’m very excited to be here. I’ll be blogging mostly about drug policy issues, though I will likely touch on some other topics along the way as well (warning to those easily bored: this may involve me giving into my nerdiest law nerd-temptations and writing a post or two about facial and as-applied challenges.)

In my first post here though, I’d like to raise the question of why it is that reforming drug policy in the United States continues to be such a taboo political topic. This something that I think about often, but it is especially fresh in my mind with some less-surprising-than-it-should-be-news from today about Senator Jim Webb’s (D-VA) bill to create a historic blue-ribbon commission to study our nation’s criminal justice system, with a focus on reducing our unusually high incarceration rate. Sen. Charles Grassley (R-IA), has proposed an amendment to the bill that would prohibit the commission from making any “findings related to . . . criminal justice policies and practices or reform recommendations that involve, support, or otherwise discuss the decriminalization of any offense under the Controlled Substances Act or the legalization of any controlled substance listed under the Controlled Substances Act.”

Grassley’s proposal would be odd enough if it merely prevented the panel from recommending the decriminalization or legalization of any controlled substance. After all, it isn’t as if Webb’s commission will be writing the laws themselves; their task will to make recommendations that law-makers would be free to ignore or follow as they choose. Grassely’s proposal goes beyond restrictions on recommendations, however, by seeking to prohibit even the mere discussion of decriminalizing or legalizing any controlled substance. While Grassley is at it, maybe he should also instruct the commission members to shield their eyes from recent reports by the United Nations and the CATO Institute that found Portugal’s 8-year-old drug decriminalization policy has been a great success.

Of course, Grassley is far from alone among politicians in his aversion to even discussing alternatives to our current drug policy. In many ways, President Obama’s “drug czar” Gil Kerlikowske has been a breath of fresh air for his willingness to entertain and even advocate for certain drug policy reforms. But, when asked about legalization, his stock answer is that “legalization is not in the president’s vocabulary, and it’s not in mine.” Even the judiciary has gotten into the act, with the Supreme Court’s 2007 decision in Morse v. Frederick, which held that the First Amendment does not apply to protect student speech that school officials reasonably view as promoting illegal drug use.

So: why are we so afraid even to discuss ideas like decriminalization or legalization? For some of my quick, initial thoughts (and a request for yours as well), follow me to the flip…

One answer might be that politicians are afraid of a backlash at the polls, and I do not doubt that this is part of the reason. At the height of the drug war in the 1980’s it may have even been a major reason. But, today, I don’t think that we can explain it away that easily. For one thing, some major drug policy reforms are now relatively popular among voters. Though only 40-45% of Americans favor legalizing marijuana, for example, the idea is still more popular than a number of issues that are considered to be perfectly within the mainstream of political thought, including decreasing immigration levels or support for the war in Iraq.

And, polls aside, the issue I’m raising here is a more fundamental one. My concern is not the opposition to, say, legalizing marijuana; it is the reluctance to even discuss these issue (or, in Kerlikowske’s case, to acknowledge that he or President Obama knows what the definition of the word “legalize” is.) In this sense, I think that drug policy occupies a fairly unique place in our political discourse. There are plenty of issues with strong feelings on both sides and still many others where both parties are mostly united in their views. But, I have a very hard time coming up with examples of other issues where we as a society seem to live in fear of the simple mention or study of a key set of policy options.

I believe there are a number of different factors that may explain why drug policy reform is so uniquely disfavored in our political discourse, and I’ll be returning to this question throughout my guest-blogging stint this month with additional thoughts. For now though, I’ll close this post by very briefly offering a suggestion for one dynamic that I believe may provide an explanation. It is that our drug policy is conceived of not just as any other policy, but as a “war on drugs” whose mission is a “drug free” society. By framing our drug policy in these terms, the language by which we judge our policy is no longer “costs” vs. “benefits” but “winning” vs. “losing.” And, as a result, the idea of a Portuguese-style decriminalization system with civil drug courts is not just another policy option–it becomes akin to surrender. (For anyone who may be interested in the rhetoric of the war on drugs in more detail, I recommend this fine book by Andrew B. Whitford and Jeff Yates that was published just this year.)

Fordham Law Review, Volume 78 Number 2 (November 2009)

2009-11-03T23:47:37Z

Volume 78

November 2009

Number 2

THE ROBERT L. LEVINE DISTINGUISHED LECTURE
OVERCOMING BARRIERS TO IMMIGRANT REPRESENTATION:
EXPLORING SOLUTIONS

Deepening the Legal Profession’s Pro Bono
Commitment to the Immigrant Poor
Hon. Robert A. Katzmann

Report of Subcommittee 1: Increasing Pro Bono Activity

The Representational and Counseling
Needs of the Immigrant Poor
Jennifer L. Colyer, Sarah French Russell, Robert E. Juceam & Lewis J. Liman

Reports of Subcommittee 2: Enhancing Mechanisms for Service Delivery

Introduction
Claudia Slovinsky

The Immigration Representation Project:
Meeting the Critical Needs of Low-Wage and
Indigent New Yorkers Facing Removal
Jojo Annobil

Barriers to Representation for Detained
Immigrants Facing Deportation: Varick
Street Detention Facility, A Case Study
Peter L. Markowitz

Report of Subcommittee 3: Addressing Inadequate Representation

Regulating Immigration Legal Service Providers:
Inadequate Representation and Notario Fraud
Careen Shannon

Essay

A View from the Immigration Bench
Hon. Noel Brennan

Epilogue

Representation for Immigrants:
A Judge’s Personal Perspective
Hon. Denny Chin

ARTICLES

Disclosure, Deception, and Deep-Packet
Inspection: The Role of the Federal Trade
Commission Act’s Deceptive Conduct
Prohibitions in the Net Neutrality Debate
Catherine J. K. Sandoval

The Dog That Didn’t Bark: Stealth
Procedures and the Erosion of Stare Decisis
in the Federal Courts of Appeals
Amy E. Sloan

NOTES

Where Were the Accountants?
Deepening Insolvency as a Means of Ensuring
Accountants’ Presence When Corporate
Turmoil Materializes
Lauren Colasacco

It’s Been a Privilege: Advising Patients
of the Tarasoff Duty and Its
Legal Consequences for the Federal
Psychotherapist-Patient Privilege
Elisia Klinka

How the Decisions in Favor of the Stein
Thirteen Will Affect the Litigation of
Corporate Crime and Department of
Justice Policies and Expand the
Sixth Amendment Right to Counsel
Christopher McNamara

The Free Jammie Movement: Is
Making a File Available to Other Users over a
Peer-to-Peer Computer
Network Sufficient To Infringe the Copyright
Owner’s 17 U.S.C. § 106(3) Distribution Right?
Ken Nicholds

Answering Justice Scalia’s Question:
Dual Sovereignty and the Sixth
Amendment Right to Counsel
After Texas v. Cobb and Montejo v. Louisiana
Ryan M. Yanovich

COMMENT

Delayed Access to Generic Medicine:
A Comment on the Hatch-Waxman
Act and the “Approval Bottleneck”
Ankur N. Patel

Engaged – and Engaging – Scholarship – Paul Butler’s Let’s Get Free

2009-11-03T22:56:34Z

I am thrilled to be back at Concurring Opinion – thanks to Solangel, Dan and the other regulars for having me. The timing of this visit is propitious for me – I am returning from a policy-focused (and surprisingly non-academic) sabbatical and I have been thinking a great deal about how best to stay engaged in policy/politics while also returning to academic culture. The worlds of advocacy and academia are distinct, obviously, and reconciling them can be challenging.

While I have been wrestling with these challenges, some of our academic colleagues, have I think, been meeting them – Richard Thompson Ford’s, The Race Card, Kenji Yoshino’s, Covering are two examples. Most recently, and in some ways the most salient to my own aspirations, is Paul Butler’s recent book, Let’s Get Free: A Hip-Hop Theory of Justice.

Butler’s book is extraordinary – he is a wonderful writer and tells a compelling story about his days as a prosecutor and his own improbable arrest and trial. But while books by lawyers about their practice are often fun reads – and this one is – what is most impressive is that Butler’s book is a theory of criminal justice. Butler is doing far more than telling a good story about lawyering. He has taken his scholarly agenda (which as many of us know has landed him impressive placements in law reviews) and rendered it readable. He weaves high level traditional theory, data, narrative, very candid self-critique, and insights from hip-hop. It may seem like a gimmick to have a sentence containing Snoop Dogg and Jeremy Bentham – but in Butler’s book, it’s not. He obviously knows both intimately and uses them to brilliant effect (and for the record, I don’t particularly like hip-hop).

This book intends to engage people outside academia into joining a political/legal struggle for a dramatically different method of criminal justice - most notably for drug offenders. The first half is a critique of our current system – from Butler’s perspective as an insider resulting from his years as a federal prosecutor. The second half is his alternative theory of criminal justice – drawn from the outsider’s perspective of “the hip hop nation.” The first half is fabulous – primarily because Butler is so brutally honest about his own experience and his own complicity in what he now considers to be a failed system.

I admit to being more skeptical when I began the second half – which presents his “hip hop” theory of justice. As a teen ager in the 80s, I danced to “Rapper’s Delight,” too, but I stick with late Temptations rather than many of the other artists he relies upon. But after reading the book through, I think the idea of bringing insights about crime and punishment from this particular community has enormous utility. What ultimately persuaded me was Butler’s argument (relying upon Rawls) that the people best situated to devise a system of punishment are those who aren’t sure how they will fare under the system. And Butler is exactly right that those who make up “the hip hop nation” are “both the most likely to be arrested and incarcerated for crimes and the most likely to be victims of crimes.” (131). Therefore, their ideas about who should be punished and how should be heard.

I don’t necessarily adhere to all of Butler’s arguments, but I deeply admire the book – and the method of bringing his academic ideas into popular culture – while also relying upon one particular form of popular culture’s own ideas. I would love to hear about other examples of engaged – and engaging – scholarship!

Buffett Bullish on America

2009-11-03T22:45:51Z

Economic prognosis positive is the signal to hear today from Warren Buffett and Berkshire Hathaway’s agreement to buy 100% of the stock of the railroad, Burlington Northern Santa Fe, consolidating the company’s 22% ownership stake in a $34 billion acquisition.

As an author of books on Buffett’s investment philosophy, including a compilation of his letters I prepared for a law review symposium at Cardozo Law School in 1997, I’m quoted in tomorrow’s USA Today story covering the deal (written by Adam Shell).

Adam’s story correctly reflects my take on the deal as squarely meeting Buffett’s traditional criteria: a business within Buffett’s “circle of competence” (i.e., that is easy for him to understand), run by people he “likes, trusts and admires,” and at a price reflecting good value for money.

More broadly, the story reflects how this acquisition is a very public statement that Buffett is “bullish on America,” the long-time slogan of erstwhile investment bank Merrill Lynch (now a part of Bank of America).

There’s one way the deal and Berkshire’s disclosure is unusual: Buffett says this acquisition is a big “bet” on Burlington, its management, and the US economy. Buffett does not usually talk about investing using the word “bet” or other gambling terms, eschewing them in favor of emphasizing cool, calculated, rational evaluation of business and its environment.

Another notable feature about this investment, Berkshire’s largest acquisition ever, is how Burlington is particularly strong, among railroads, in transporting goods from West coast ports into America’s heartland. Forecasting high returns doing that suggests a prediction that, as the US economy recovers, the country will remain heavily reliant on imports, certainly of goods and probably of energy, especially from China and East Asia.

Maybe there is a gamble here, on both a US recovery and the post-recovery shape of trade, manufacturing and consumption. And there is always risk in investment. But this one fits enough within traditional Berkshire investments that it suggests being bullish again may be a safe bet. [Disclosure: I own Berkshire Hathaway stock, and have for many years.]

Photo Credit: Norman Goldberg (Buffett teaching my Corporations class at Cardozo Law School, 1998)

Fear of a Google Planet

2009-11-03T20:09:47Z

Should we fear Google? This question, unthinkable ten, maybe even five, years ago, seems to dominate internet policy discussion today. AT&T is afraid of Google Voice. Apple might be afraid of the Google Phone. Microsoft is afraid that Google Apps will make its Office suit redundant. These fears are justified, but they are also good. In most cases Googlephobia is a condition suffered by competitors. Google will probably kill off some competitors, but it will force many more to continue to innovate and provide better products to the consumer at lower prices. So, yes, some people should fear Google. But should we the public?

“Fear is often preceded by astonishment, and is so far akin to it, that both lead to the senses of sight and hearing being instantly aroused. In both cases the eyes and mouth are widely opened, and the eyebrows raised.” Charles Darwin, The Expression of the Emotions in Man and Animals.

In its pre-settlement incarnation, the Google Book Search (GBS) project was merely an astonishing attempt to build a comprehensive search engine to allow full text searching inside millions of books. The GBS envisaged in the Settlement (before the DOJ sent the parties back to the drawing-board) was much more ambitious. Not satisfied with digitization, indexing and limited display of books consistent with copyright law’s fair use doctrine, Google, the Authors Guild and a handful of publishers struck a deal which allowed for the commoditization of digital books as direct substitutes for paper copies. Subject to an opt-out and a few other exclusions, the Settlement swept in almost all books subject to U.S. copyrights and established an entirely new institutional framework for clearing digital book rights.

My personal view is that justified astonishment at the GBS Settlement has, in too many cases, given way to unjustified fear. Google is still far from being the new Microsoft as the Department of Justice’s Christine Varney has asserted. It certainly does not act like it. Google’s track record of openness and innovation are heartening and there is very little evidence so far that they plan on abandoning their “don’t be evil” corporate culture.

Googlephobia appears to be the foundation of some pretty wild assertions in the context of the Google Book dispute in particular. Google conceives that it is set to liberate out-of-print books from their dusty dungeons on the relatively inaccessible shelves of the worlds great libraries. Critics of the deal (and the initial more modest GBS) see plans for monopolization of hitherto non-existent markets, the destruction of libraries, universities and even the book itself.

The Google Book Settlement was not perfect, but my own fear is that Googlephobia and the intervention of the Department of Justice have left us worse off than we would have otherwise been. The Google skeptics are right about a number of the Settlement’s shortcomings, but now that the parties renegotiating the deal we had all better hope that GBS version 3 is better, fairer, and more accessible — not just smaller and less ambitious.

It might be naive to simply trust in Google, but the fear Google now inspires seems equally misplaced.

From the Concurring Opinions mailbox

2009-11-03T20:14:02Z

We get lots of mail. Some messages are very useful and make it onto the blog; others are useful, but not really blog material. A substantial portion of messages are nice but basically irrelevant to the Co-Op bloggers. And another substantial portion is . . . err, quirky. Fortunately, we just received one example which so perfectly captures the category, that I thought I’d reproduce it in its entirety for our readers’ edification and enjoyment. (One note — due to the deficiencies of control-V, the widespread use of boldface in the message did not properly copy. My apologies. Rest assured that the original contained substantial use of boldface.) Everything that follows this paragraph (including section breaks, editing notes, and several “emphasis added”s) is from our interlocutor. Enjoy!

***

Who was the last law school prof (or even a Supreme or even a law school student) to read the 1787-1788 Federalist (at least 1,000 times) to get ANY clue about what the 1787 U.S.A. Constitution says or means regarding *federalism* ???
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Evidently it also needs to be repeated that the overriding responsibility of this Court is to the Constitution of the United States, no matter how late it may be that a violation of the Constitution is found to exist.
Chessman v. Teets, 354 U.S. 156, 165 (1957).
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25 Jan 2001

RE: Limited U.S.A. Government Powers

The U.S.A. Constitution has been mystified and subverted mainly due to “to pay the Debts and provide for the common Defence and general Welfare of the United States” (Art. I, Sec. 8, Cl. 1) and “To regulate Commerce *** among the several States ***” (Art. I, Sec. 8, Cl. 3) [with the resulting intentional systematic destruction of the legislative powers of the States -- reducing them almost to nothing, especially since 1936].
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In connection with the below comments in the Federalist about the LIMITED POWERS of the U.S.A. government — note –

Declaration of Independence 4 July 1776, last paragraph.

We, therefore, the Representatives of the *United* States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these *United* Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor. [BOLD and * added.]

STATES – PLURAL
*******
[1777] Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

STATES – PLURAL

Art. I. The Stile of this Confederacy shall be “The United States of America”.

STATES – PLURAL

Art. II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. [See later 10th Amdt.]

Art. III. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

STATES – PLURAL
*******
1783 U.S.A.- Great Britain Peace Treaty

The definitive treaty of peace and friendship between his Britannic majesty and the *United* States of America, signed at Paris the 3d day of September, 1783.

[Preamble omitted]
Art. I
His Britannic majesty acknowledges the said *United* States, viz. New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign, and independent states; that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claim to the government, proprietary, and territorial rights of the same, and every part thereof.
[Arts. II-IX omitted] [BOLD and * added.]

STATES – PLURAL [See the land titles in such 13 States.]

The 1787 U.S.A. Constitution has some NATION-State type language —

Art. I, Sec. 10, Cl. 1 has in part “No State shall enter into any treaty, alliance, or confederation, ***” which is treaty type language derived from the 1777 Articles of Confederation, Art. VI, para. 2.

Art. IV, Sec. 1 (full faith and credit) and Art. IV, Sec. 2, Cl. 1 (return of alleged criminals) have treaty type language derived from the 1777 Articles of Confederation, Art. IV, paras. 4 and 3 respectively.

Art. VII has the “establishment of this Constitution between the States so ratifying the same”. (emphasis added)

STATES – PLURAL

Independent *foreign* NATION-States admitted into the Union — Vermont (Republic) in 1791 (State 14) and Texas (Republic) in 1845 (State 28).

Each of the 50 States is a NATION-STATE — like the United Kingdom, France, Germany or Spain and NOT some sort of vague village, mini-town or township.

The Federal and State governments are separate sovereignties with separate and unequal legislative, executive and judicial powers. Tarble’s Case, 80 U.S. 397, 406 (1871); U.S. v. Cruikshank, 92 U.S. 524, 549-551 (1875); U.S. v. Wheeler, 435 U.S. 313, 316-318 (1978); Printz v. U.S., 521 U.S. 898, 918-922, 928 (1997); U.S. v. Morrison, 529 U.S. 598, 607, 615, 618 (2000) [NOT that ANY opinion of the U.S.A. Supreme Court is necessary on the subject].

Thus — the government of/for the *UNITED* STATES of America is a *Super-National* government created for the joint benefit of the NATION-STATE governments — regardless of the effects of the 1861-1865 Civil War, World War I and World War II (and A-L-L Supreme Court cases to the contrary).

See the earlier *United* States of the Netherlands which was the model for the U.S.A. government in the 1787 Federal Convention (after an attempt to have ONE government for all 13 States failed).

http://en.wikipedia.org/wiki/Dutch_Republic

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Federalist, 1787-1788 (Number-Paragraph) –

http://www.constitution.org/fed/federali.txt

A. Limited U.S.A. Government Powers
————
14-8 In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction.

17-1 AN OBJECTION, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of America. It may be said that it would tend to render the government of the Union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the States for local purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government.

[Added - Of course in this New Age of statism the *mere domestic police of a State* is of very great interest to statists in D.C.]

32-2 An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant. I use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. These three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: The last clause but one in the eighth section of the first article provides expressly that Congress shall exercise “exclusive legislation” over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers Congress “to lay and collect taxes, duties, imposts and excises”; and the second clause of the tenth section of the same article declares that, “no state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws.” Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any State; in consequence of which qualification, it now only extends to the duties on imports. This answers to the second case. The third will be found in that clause which declares that Congress shall have power “to establish an UNIFORM RULE of naturalization throughout the United States.” This must necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.

32-3 A case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. I mean the power of imposing taxes on all articles other than exports and imports. This, I contend, is manifestly a concurrent and coequal authority in the United States and in the individual States. There is plainly no expression in the granting clause which makes that power exclusive in the Union. There is no independent clause or sentence which prohibits the States from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the States in relation to duties on imports and exports. This restriction implies an admission that, if it were not inserted, the States would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the States remains undiminished. In any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the Union of the power of laying such duties implied the exclusion of the States, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a NEGATIVE PREGNANT that is, a negation of one thing, and an affirmance of another; a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. It would be mere sophistry to argue that it was meant to exclude them absolutely from the imposition of taxes of the former kind, and to leave them at liberty to lay others subject to the control of the national legislature. The restraining or prohibitory clause only says, that they shall not, without the consent of Congress, lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the States, with the consent of the national legislature, might tax imports and exports; and that they might tax every other article, unless controlled by the same body. If this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the Union? It is evident that this could not have been the intention, and that it will not bear a construction of the kind.

32-4 As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it inexpedient that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty.

32-5 The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary.

39-14 But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

40-9 (part) We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.

40-10 The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old.

45-3 Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale.

45-4 We have seen, in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. Although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. ***

45-9 The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

45-10 The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.

82-3 The principles established in a former paper [fn. 1] teach us that the States will retain all pre-existing authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former, as well as the latter. And under this impression, I shall lay it down as a rule, that the State courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.

[fn.] 1. No. 32.
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B. General Welfare Clause

The B paragraphs below were NOT brought up in United States v. Butler, 297 U.S. 1, 64-68 (1936).
————
41-5 That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers.

41-21 The power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. This power, also, has been examined already with much attention, and has, I trust, been clearly shown to be necessary, both in the extent and form given to it by the Constitution. I will address one additional reflection only to those who contend that the power ought to have been restrained to external — taxation by which they mean, taxes on articles imported from other countries. It cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. But we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. As long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. As soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. In a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. A system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them.

41-22 Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

41-23 Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

41-24 But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

41-25 The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are “their common defense, security of their liberties, and mutual and general welfare.” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

45-11 If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to taxation may be regarded as the most important; and yet the present Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defense and general welfare, as the future Congress will have to require them of individual citizens; and the latter will be no more bound than the States themselves have been, to pay the quotas respectively taxed on them. Had the States complied punctually with the articles of Confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion, that the State governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To maintain that such an event would have ensued, would be to say at once, that the existence of the State governments is incompatible with any system whatever that accomplishes the essental purposes of the Union.
————
C. Interstate Commerce Clause

The C paragraphs below have NOT been brought up in hundreds of U.S. Supreme Court cases starting with Gibbons v. Ogden, 22 U.S. 1 (1824). The purpose of the interstate commerce clause was to give power to the Congress to remove State BURDENS on interstate commerce by declaratory laws, such as — No State shall impose a tax on property passing through such State and going to another State (but a State may impose equal weight taxes on all vehicles within or passing through such State).

I.E. to REDUCE any STATE BURDENS on commerce from State A passing through State B and going to State C. SOOOOO difficult to understand — whether or not State B likes such commerce passing through State B.
Since the Indian tribes are internally *foreign* and foreign nations are externally *foreign* the commerce with them is totally subject to the Congress.
————
7-5 The competitions of commerce would be another fruitful source of contention. The States less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each State, or separate confederacy, would pursue a system of commercial policy peculiar to itself. This would occasion distinctions, preferences, and exclusions, which would beget discontent. The habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. We should be ready to denominate injuries those things which were in reality the justifiable acts of independent sovereignties consulting a distinct interest. The spirit of enterprise, which characterizes the commercial part of America, has left no occasion of displaying itself unimproved. It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular States might endeavor to secure exclusive benefits to their own citizens. The infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars.

7-6 The opportunities which some States would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary States. The relative situation of New York, Connecticut, and New Jersey would afford an example of this kind. New York, from the necessities of revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants of the two other States in the capacity of consumers of what we import. New York would neither be willing nor able to forego this advantage. Her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. Would Connecticut and New Jersey long submit to be taxed by New York for her exclusive benefit? Should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? Should we be able to preserve it against the incumbent weight of Connecticut on the one side, and the co-operating pressure of New Jersey on the other? These are questions that temerity alone will answer in the affirmative.

11-12 An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope, from the diversity in the productions of different States. When the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety, not less than the value, of products for exportation contributes to the activity of foreign commerce. It can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value; arising from the competitions of trade and from the fluctations of markets. Particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. The speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the United States would bid fair to be much more favorable than that of the thirteen States without union or with partial unions.

11-13 It may perhaps be replied to this, that whether the States are united or disunited, there would still be an intimate intercourse between them which would answer the same ends; this intercourse would be fettered, interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply detailed. A unity of commercial, as well as political, interests, can only result from a unity of government.

22-1 IN ADDITION to the defects already enumerated in the existing federal system, there are others of not less importance, which concur in rendering it altogether unfit for the administration of the affairs of the Union.

22-2 The want of a power to regulate commerce is by all parties allowed to be of the number. The utility of such a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. It is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. The want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the States. No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, in ushering into the House of Commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of Great Britain, and that it would be prudent to persist in the plan until it should appear whether the American government was likely or not to acquire greater consistency. [fn.1]

[fn.] 1. This, as nearly as I can recollect, was the sense of his speech on introducing the last bill.

22-3 Several States have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the State, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist.

22-4 The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. “The commerce of the German empire [fn. 2] is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.” Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.

[fn.] 2. Encyclopedia, article “Empire.”

42-11 The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.

42-12 The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.

[emphasis added]
————–
What cannot be done directly cannot be done indirectly. Cummings v. Missouri, 71 U.S. 277, 325 (1867); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 778, 829 (1995).
A law must be tested by its operation and effect. Near v. Minnesota, 283 U.S. 697, 708-709 (1931); U.S. Term Limits, Inc., supra, 514 U.S., at 831.
—-
Thus — nonstop brain dead constitutional law *federalism* stuff especially since 1936 — directly related to the INSANE Hoover – Roosevelt government deficits in Deficit City in 1929-1941 that destroyed private capital investment (making houses, factories, equipment, cars, trucks, etc.) (and cut JOBS, JOBS, JOBS) in Great Depression I — leading to the *modern* (i.e. Stone Age) warfare / welfare regimes in the U.S.A. —- pending Dollar Judgment Day — due to accumulated U.S.A. / State / Local govt debts now about $ 15 TRILLION.

Duke Law Journal Volume 59 November 2009 Number 2

2009-11-02T22:52:47Z

Volume 59 October 2009 Number 2

Articles

How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court

Vanessa Baird & Tonja Jacobi

Living Originalism

Thomas B. Colby & Peter J. Smith

Notes

Reasonableness Meets Requirements: Regulating Security and Privacy in Software

Paul N. Otto

Making Amends: Amending the ICSID Convention to Reconcile Competing Interests in International Investment Law

Kate M. Supnik

Retrieve All Pieces

Vanderbilt Law Review En Banc PCAOB Roundtable

2009-11-02T22:30:56Z

Vanderbilt Law Review En Banc is pleased to present the “first take” pieces for its inaugural Roundtable from Professors Hal Bruff, Steven Calabresi, Gary Lawson, Rick Pildes, and Christopher Yoo. The debate is on Free Enterprise Fund v. Public Company Accounting Oversight Board. Professor Peter Strauss’s previously laid the foundation for the debate with his introductory piece. We will also be publishing response pieces from the professors on December 7.

Harold H. Bruff, Bringing the Independent Agencies in from the Cold, 62 Vand. L. Rev. En Banc 63 (2009).

Gary Lawson, The “Principal” Reason Why the PCAOB is Unconstitutional, 62 Vand. L. Rev. En Banc 73 (2009).

Richard H. Pildes, Putting Power Back Into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional, 62 Vand. L. Rev. En Banc 85 (2009).

Steven G. Calabresi & Christopher S. Yoo, Remove Morrison v. Olson, 62 Vand. L. Rev. En Banc 103 (2009).

The Passive Voice in Statutory Interpretation

2009-11-02T20:38:41Z

Thanks to Dan et al. for the opportunity to guest-blog this month. For my first guest post, I want to highlight a little-noticed tool of statutory construction that has reared its head in a handful of recent Supreme Court decisions: inferences based on Congress’s use of the passive voice in criminal statutes. I first noticed Supreme Court reliance on the passive voice to construe a criminal statute in Justice Kennedy’s dissenting opinion in Jones v. United States (1999). Jones involved construction of the federal carjacking statute, 18 U.S.C. §2119, which then read as follows:

“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”

Defendant Jones had participated in a carjacking with two other men. While Jones and one of the other men held up the victims, a third man had stuck his gun in one of the victims’ ears and later struck that victim on the head. The issue in the case was whether clauses (1), (2) and (3) of §2119 are sentencing provisions, specifying punishment/sentencing possibilities for the offense set forth in the first paragraph, or whether they are three different offenses (one being a carjacking offense, two being carjacking + serious bodily injury, and three being carjacking + serious bodily injury resulting in death). The classification mattered because the indictment did not charge any of the facts relating to bodily injury mentioned in clauses (2) or (3) and the jury instructions defined the elements of the government’s burden of proof with reference only to the first paragraph of §2119. If clauses (2) and (3) were deemed sentencing provisions, this would not matter, and Jones could be sentenced to 25 years based on the serious bodily injury caused to one of the victims; if clause (2) and (3) were read as separate offense provisions containing new elements, then the government’s failure to plead these elements in the indictment and prove them before the jury would preclude it from seeking the 25-year penalty against Jones.

In a 5-4 opinion, the Supreme Court concluded that “the fairest reading of §2119” was to treat the serious bodily harm provision as an element of a separate offense, rather than as a mere sentencing enhancement. Justice Kennedy, joined by three other dissenters, disagreed—relying in part on the fact that the statute “uses the active voice in the main paragraph and the passive voice in clauses (2) and (3).” While recognizing that the rule was not an absolute one, Justice Kennedy argued that “[i]n the more common practice, criminal statutes use the active voice to define prohibited conduct”— and the passive voice when listing sentencing factors. This inference based on the statute’s use of the “passive voice” certainly did not do all, or even the bulk, of the work in leading Justice Kennedy (or the other dissenters) to the conclusion that clauses (2) and (3) should be read as sentencing enhancements, but the dissenters did emphasize it to bolster/corroborate their reading of the statute.

More recently, in Dean v. United States, the Supreme Court majority relied on Congress’ use of the passive voice to bolster its interpretation of a firearms enhancement provision in 18 U.S.C. §924(c)(1)(A). That statute contains a three-part structure similar to the carjacking statute at issue in Jones:

“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

This time, there was no dispute over whether clauses (ii) and (iii) were sentencing provisions or separate offense provisions—the parties agreed that they were sentencing provisions. The disagreement instead was over whether clause (iii) contains a requirement that the defendant intend to discharge the firearm. (Defendant Dean had carried a gun while robbing a bank; as he was collecting money from a teller’s drawer, the gun accidentally discharged.) The Court, in a 7-2 opinion, held that clause (iii) did not contain an intent requirement. Justice Roberts’ opinion for the Court began by noting that the text of clause (iii) “does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation.” The opinion went on in the next paragraph to note that Congress’ use of the passive voice “further indicates” that the clause does not require proof of intent because the “passive voice focuses on an event that occurs without respect to a specific actor, and therefore without respect to any actor’s intent or culpability. It is whether something happened—not how or why it happened—that matters.”

These two Supreme Court references to the passive voice as interpretively significant—employed a decade apart—appear to be isolated. A quick Westlaw search reveals only four other post-1944 Supreme Court statutory opinions that even mention the passive voice, and those do so only to observe that Congress’s use of the passive voice leaves the statute’s meaning indeterminate. See United States v. Wilson, Watson v. United States, Gladstone Realtors v. Village of Bellwood, and E. I. du Pont de Nemours & Co. v. Train.

So, what to make of the Court’s “passive voice” references in Jones and Dean? It is hard to tell. If we can generalize from two cases, the Supreme Court seems most likely to give interpretive weight to a statute’s use of the passive voice when that use is repeated throughout a statutory provision (e.g., in multiple clauses), perhaps suggesting a deliberate structural choice. Moreover, as with most grammar canons, the Court seems likely to employ passive-voice-based inferences only to bolster or corroborate a statutory interpretation reached through other interpretive canons and tools. Upshot: For counsel seeking to convince the Court to interpret a criminal statute in a particular direction, it is worth making passive-voice based arguments favoring a particular construction—but briefs are best off leading with other interpretive tools and throwing the passive voice argument in as a corroborative device.

The Return of Penal Colonies

2009-11-02T21:11:23Z

On Friday, attorneys for six of the Uighurs held in Guantanamo Bay announced that they have been transferred to live on the island of Palau. (Pitcairn Island must have been unavailable). Perhaps all of the detainees who are the parties in Kiyemba (just taken on certiorari by the Supreme Court) will be resettled to render the case moot.

This ad-hoc way of dealing with the detainee issue strikes me as problematic. In effect, it allows the Executive Branch unfettered discretion to establish penal colonies around the world and place curbs on the post-release activities of detainees without any due process whatsoever. While I’m sure most of the detainees would prefer some freedom on some random island over prison, I think that Congress needs to take a look at this practice and consider establishing some guidelines.