In results released by the Law School two weeks ago, Walker held a one point edge over Barrett. But the new results are within the margin of error for the poll. Professor Charles Franklin, director of the poll, said in releasing the results that the race remains close enough that either candidate could win in the end.

Awareness of the candidates for lieutenant governor, Republican incumbent Rebecca Kleefisch and Democrat Mahlon Mitchell, is much lower than that for Walker and Barrett, but the results at this point are very similar, with Kleefisch ahead by six points. The June 5 ballot includes separate voting for governor and lieutenant governor.

Opinion in the presidential race in Wisconsin also has shifted toward the Republican candidate in recent weeks, the poll found. Former Massachusetts Governor Mitt Romney and President Barack Obama, the Democratic incumbent, were tied at 46% each among likely voters in the new round of the year-long Law School polling project. In results in January through April, Obama led Romney. In addition, results when people were asked if they had favorable or unfavorable opinions of the candidates improved for Romney and declined for Obama between the April round of polling and the new polling, which was conducted last week.

Complete results, including data on every question asked, can be found by clicking here.

When it comes to the issue of poor people and their legal problems, passing the buck to lawyers in private practice is par for the course. Those who have the greatest ability to affect the problem and acknowledge it as a societal issue always give it back to the lawyers.

So much for venting.

The fact is, more lawyers should do pro bono, and not because those with the money and power shift the attention to the profession. Lawyers should be involved in pro bono because we took an oath that said we would; because we are ethically obliged “to provide legal services to those unable to pay;” because with very few exceptions, no one else can represent the unrepresented poor; because the problem is overwhelming; because it is the right thing to do.

Many lawyers accept that responsibility but many do not. It is estimated that in 2011, fewer than 500 civil cases statewide were successfully referred out to private practice lawyers by the organizations who attempt to find pro bono lawyers to represent poor people. Using methodology based on numbers found in the State Bar’s important Bridging the Gap study and the 2010 Census; ignoring the fact the situation has deteriorated since both of those databases were created, and conservatively estimating that only 10% of “poor people legal problems” require representation by a lawyer, there were over 8,000 matters in Wisconsin in 2011 in which a poor person needed a lawyer.

Different studies or methodologies might produce different results, but a huge gap results from any analysis. And the poorly funded legal services organizations cannot make up the difference.

Some clarity for purposes of discussion is needed here. Different people have different definitions of pro bono. I have had lawyers tell me that they chalk up any unpaid bill as pro bono. And many lawyers provide representation to arts organizations, civic, community and religious groups, Wills for Heroes, veterans and other good causes that do not involve poor people.

When I talk about poor people pro bono, I am talking about legal services for indigent people or organizations whose clientele is largely made up of indigent people. That is the unrepresented group. That is where the justice gap exists.

I have invested some time over the years in the business of studying the marketing of pro bono representation. I have read articles, attended conferences, joined organizations; I have interacted regularly with the professionals who deal with pro bono recruitment on a daily basis.

On the one hand, I can speak from the heart about the people who need pro bono legal services and the effect on their lives, and on the other hand I can make a case for the “selfish” reasons to do pro bono — how it trains young lawyers, litigators and non-litigators, how it makes a firm look good to the courts and to the community, how it makes good business sense.

And the arguments I have heard for not becoming involved in pro bono, such as lack of opportunity and time, are not convincing. Hard-working pro bono leaders such as Pat Risser of the Volunteer Lawyers Project and Jeff Brown of the State Bar will happily find you a pro bono project. Check out the State Bar’s pro bono website, where opportunities abound.

Also, as someone who has seen bond lawyers obtain domestic abuse injunctions, estate planners argue for Social Security disability payments, and corporate lawyers undertake immigration representation, I am not moved by the argument that pro bono is only for litigators. The brief advice clinics sponsored by Marquette at the House of Peace, the Justice Center and other places, show that non-litigators from virtually every practice area are willing to advise poor people. We need the same involvement in the area of direct representation.

The lack-of-time argument also is difficult to make. Four to five hours a month is a small investment to promote justice. The State Bar’s Delivery of Legal Services Committee is trying to make it even easier, studying a proposal that would exchange required CLE credit for pro bono representation. Purists see that as a form of payment; proponents see it as a necessity to encourage involvement, noting that seven other states already provide CLE.

One lawyer whom I approached about becoming involved in pro bono told me that the $50 a year that the Supreme Court takes from him and gives to the Wisconsin Trust Account Foundation is his pro bono contribution. But that is an excuse, not a substitute for doing pro bono. His $50 buys only a couple of hours of representation from a public interest lawyer.

All of this has led me to the realization that some lawyers just need to be focused on the problem and the availability of pro bono opportunities. Others must be reminded about the oath, and their ethical obligation to the poor. And others, unfortunately, just don’t care.

I sometimes despair that the last group is the majority. As any of the pro bono professionals will tell you, frustration is part of their job description.

But so is hope. Every year in late April I head up Wisconsin Avenue to the law school for a pick-me-up. The occasion is the induction ceremony for the school’s Pro Bono Society at Marquette’s Law School. This year 100 students satisfied the induction requirement of 50 hours of pro bono service, just as many had done before them. The ceremony is a major celebration at the law school, as it should be.

These are future lawyers who do care. Here’s hoping they never change.

The editors of the blog asked several law school faculty to write about the people who have been the most formative figures in their careers as legal educators. This fourth submission in the series is by Professor Chad M. Oldfather.

The path I took to law school was direct in the sense that I went right from college. But in more important senses it was as indirect as could be. Growing up as (what for the sake of simplicity we’ll call) a farm kid I knew no lawyers, and nothing of the world of business. “Work,” as I understood the term, implied getting dirt under one’s fingernails. My momma wasn’t gonna let me be no cowboy, but neither could the prospect of me being a doctor or lawyer or such have figured too prominently in her plans. The world of professionals was, to me, a great unknown, an uncharted land inhabited by a whole different sort of person.

All of which means simply that I’ve had a greater need for formative professional influences than the average bear. Like everyone else, I needed to learn how to be a lawyer in the sense of developing the necessary skills. But to a greater extent than most everyone else I also needed to recognize and then internalize the norms of professional interaction. Put differently, I knew there’d be unwritten rules. What I didn’t know was how they’d be different from the ones I grew up with.

I had the great good fortune to begin my career as a clerk to Judge Jane Roth.

It was a tremendous place to start. Judge Roth has what I regard as the ideal judicial temperament, approaching each case on its own terms, with modesty, and with no effort to push some grand agenda. Perhaps most importantly, as my first professional boss she demonstrated to me that there is no conflict between having an impish sense of humor and an important job that one takes seriously.

To be sure, many of my own law professors influenced the way I teach. Just as parents find themselves echoing their own parents, so have I found myself at the front of the classroom repeating some of the lines of those who taught me. At times it has felt like playing a role, as if I were fielding a question in the character of one of my professors. That happens less often now after a decade at the front of the room. When it does, I am almost always channeling (what is undoubtedly the poor person’s version of) Mike Klarman, who has served as an important teacher, mentor, and friend.

In most important senses, though, the most formative influences on me were the lawyers with whom I had the good fortune to spend my early years in practice. I had a couple fancy lines on my resume that helped to get me in the door at Faegre & Benson, but once inside it quickly became clear that all that mattered was whether I was a good lawyer. My colleagues – and it pretty quickly became clear that I was working “with” them rather than “for” them – came from the Ivy League and the Big Ten, cities and small towns, money as old as it gets in Minneapolis and no money at all. They taught me how to be a lawyer – that one must both sweat the details and be creative, that the law is only a piece of the puzzle and not the puzzle itself, and that ours is at bottom a service industry.

And they served as models in a broader sense as well. From them I learned that one of the worst sins a person can commit is to boast or otherwise take himself too seriously. That, if a mid-level associate happens to be in the midst of a fairly involved negotiation at the time he’s scheduled to be leaving on vacation, the appropriate thing for a senior lawyer to do is walk into the conference room and tell that mid-level associate that the senior lawyer will take it from there because it’s important to have a life. That even if you’ve never once had to worry about money you still drive a mid-market American car to the Park & Ride lot from which you take the bus to work. That the most important thing is serving your clients, and that to that extent at least we are all in this together.

I do not mean to suggest that it was all happy all the time, that I did not have my complaints, or that there aren’t ways in which I’ve cherry-picked and otherwise whitewashed my memories the way we so often do. But from this remove I’m able to appreciate the good lessons I learned more than I could at the time. And those, it seems, are the ones worth remembering.

I could go on. There have been others who have influenced me, both as a teacher and as a scholar. I haven’t even mentioned my clients and students, all of whom have helped to shape me in important ways. But so much of who I am as a lawyer and a law professor is a product of my time with Tom Mayerle, John Wheaton, Scott Anderegg, Matt Bogart, Jim Dueholm, Charlie Ferrell, Terri Simard, Becky Rom, Tom Crosby, Gary Gandrud, and everyone else who spent their days on the 25th floor of the (then) Norwest Center. I only imperfectly reflect what I learned, and I struggle with how to bring some of these lessons into the classroom. But I will, I am certain, never again have the privilege of working with a group of people whom I so uniformly like and admire. And I am honored to continue to count them among my friends.

“I don’t mean to say that George Kennan did all of that,” Gaddis said, answering the question. “But if I were to pick one central idea that was key to making the second half of the 20th century more peaceful than the first half, I think it was the idea of containment, I think it was the idea that you could deal with the Soviet Union without having a new world war with them on the one hand and without appeasing them on the other hand. And that really was George Kennan’s idea. So I would say if we back off and look at big ideas and big consequences, this man is extraordinarily influential.”

Kennan, a Milwaukee native, was the subject of Gaddis’ biography, “George F. Kennan: An American Life,” which was awarded a Pulitzer Prize in April. Gaddis came to Milwaukee at the invitation of the Law School. He spoke with Gousha, the Law School’s distinguished fellow in law and public policy, before an audience of about 200.

Gaddis painted a picture of Kennan as a brilliant, but complex person who had great, almost prophetic insights into global issues, but who was almost never happy with himself or how things were going in the world. He was “one of the greatest American writers of the 20th Century,” Gaddis said (Kennan won two Pulitzer prizes for memoirs he wrote) but “he was one of those people who was incapable of self-congratulation.”

Shaped in part by the death of his mother when he was two months old, Kennan’s life was one in which he used the diaries he kept for many decades as a form of therapy for the dissatisfactions he felt. “He was always lonely wherever he was,” Gaddis said.

Gaddis first met Kennan in the early 1980s when Gaddis was an instructor at Ohio University and wrote a book on the American post-World War II approach to dealing with the Soviet Union. He sent chapters to Kennan, who reacted positively. That led to Kennan to offer Gaddis broad access to himself, his voluminous papers, and his associates so that Gaddis could write a biography. The agreement was that Kennan would not read the book and it would not appear until after Kennan’s death. Kennan lived to 101, dying in 2005.

Kennan grew up in Milwaukee, the son of a lawyer, and went to what is now St. John’s Northwestern Military Academy in Delafield. From there, he went to Princeton and developed a strong interest in diplomacy and Russia. He joined the American foreign service and became fluent in Russian.

Kennan rose through the diplomatic ranks and became deputy head of the US mission in Moscow in the aftermath of World War II. Frustrated with American attempts to cooperate with the Soviet Union and feeling his voice wasn’t being heard in the State Department, Kennan sent a 5,500 word telegram to his superiors in February 1946, outlining what he thought American strategy should be. “The Long telegram” became one of the most influential and famous documents in American diplomatic history. Gaddis said the telegram was dictated in a rage. “He broke all the rules,” but what he said in the telegram “became the central idea of the grand strategy of the United States in the Cold War era.”

Gousha asked Gaddis if Kennan was comfortable being known as the author of containment. “Oh, God, no,” Gaddis said. In the 1990s, Kennan said containment was a terrible idea and he was sorry he thought of it. Kennan felt the idea had been managed wrong, and he disowned some of the ways it was applied, including how it shaped the nuclear arms race.

But Kennan was proud of his role in creation of the Marshall Plan, the American plan to assist western European countries get back on their feet in the aftermath of World War II. Gaddis said the Marshall Plan was important not only for the tangible help it provided but for the impact it had on the psychology of both western and eastern Europe in that era, an impact that helped stem the spread of the Soviet Union’s sphere of influence.

Kennan was not always right and some of the things he did, such as ambassadorships to the Soviet Union and Yugoslavia, were not successful, Gaddis said. He said Kennan was someone whose spontaneous actions sometimes had huge impact and whose planned actions sometimes fell flat.

An audience member asked what Kennan would think of the state of the world if he were around today. “You would not hear anything that would be reassuring from him,” Gaddis said.

The conversation was taped for later rebroadcast on Milwaukee Public Television. A video also can be viewed by clicking here.

When I enrolled in law school, my goal was to become a lobbyist. I majored in Political Science as an undergraduate student, worked for a state senator as a legislative aide and believed that a law degree would help me reach my professional goals. Upon enrolling in law school, my interests immediately shifted. I loved the law school environment. Before the end of my first year, I decided that my future was in the legal academy. Upon reaching the epiphany that altered the course of my professional career, I began to study my professors’ teaching styles so that I could emulate them when I entered the academy.

Several of my law school professors have been formative figures in my career as a legal educator. I learned the importance of consistency from Professor Jeffrey Shaman. I found Professor Wayne Lewis to be the most proficient professor in using the Socratic Method. Professor Jerold Friedland became a lifelong friend and mentor. But, the professor who had the most profound impact on my career as a legal educator was the late Professor James “Jim” Colliton. I followed his footsteps by working at the Chief Counsel’s Office of the Internal Revenue Service upon graduating from law school, earning my LL.M. in Taxation from Georgetown and becoming a tax professor. I took only one class with Professor Colliton – Estate and Gift Taxation. However, Professor Colliton’s impact on my professional life had little to do with the estate and gift tax principles such as the unified credit, marital deduction and Crummey trusts. Undoubtedly, Professor Colliton did an amazing job teaching those principles. What distinguished Professor Colliton from many other professors was his innate ability to connect with students both inside and outside of the classroom. Simply stated, Professor Colliton was one of the most supportive, helpful and caring faculty members that I have ever met. I graduated from law school over 20 years ago, but he remained a mentor and became one of my closest friends until he lost his courageous battle with cancer a few years ago.

As professors, our primary responsibility is to train future lawyers. I learned from Professor Colliton that that responsibility extended beyond the classroom. Excellent instruction is an absolute necessity. Professor Colliton was an outstanding in-class instructor, but he was also a tremendous mentor to students, including mentoring students who had never enrolled in any of his classes. I spent many hours in Professor Colliton’s office discussing careers in tax law. Therefore, I learned that law professors must not neglect the mentoring responsibility to law students. While the demands of scholarship, committee work, class preparation and other responsibilities are daunting at times, students should feel comfortable stopping by a professor’s office not only to discuss coursework but also to seek career advice, particularly during these weak economic times. Finally, I learned from Professor Colliton that the responsibility to our students continues after they graduate. When I decided it was time for me to enter the academy six years after graduating from law school, I sought Professor Colliton’s advice. He encouraged me to pursue my goals and was instrumental in helping me secure a position by guiding me through the whole process.

I have been in academia now for many years, and I know that the lessons I learned from Professor Colliton will last a lifetime.

A recent post on the ConLawBlog posed the question of how many African-American lawyers there were in the United States in 1930.  This is a subject that I have been studying for some time, and thanks to a heads up from Professor Idleman, I was able to answer the question.

According to the U.S. Census, in 1930, there were only 1247 black lawyers in the entire United States in 1930, out of a total number of 160,605 lawyers.  Of the 1247, 1223 were male and only 24 were female.

Even though the Great Migration had begun after World War I, the bulk of the African-American population still lived in the South in 1930. However, thanks to racial prejudice and limited economic opportunities below the Mason-Dixon line, a significant majority of black lawyers lived outside the South.

The largest concentrations of black male lawyers was in Illinois, which had 187 male African-American attorneys. Other states with significant numbers were New York (117); Ohio (94); Michigan (63); and Indiana (62). The only Southern jurisdictions with comparable numbers were the District of Columbia (94); and Virginia (57).

Complete state-by-state breakdowns for the 24 females are not provided in the published Census Reports for 1930.  The largest number of black female lawyers appears to have been in the District of Columbia, where there were four.

As a percentage of total lawyers, black male lawyers accounted for more than 2% of total male lawyers only in the District of Columbia (2.8%) and Virginia (2.4%). If female lawyers are included — and the number of female lawyers in those two jurisdictions is available — the percentage of black lawyers in each of those two jurisdictions actually goes up slightly, but was still less than 3%.

Nowhere was the absence of black lawyers in 1930 more shocking than in the Deep South.  In spite of the large black population, proportionately much larger than it is today, Alabama had only 4 black lawyers, while Mississippi, Louisiana, and Florida had only 6, 8, and 10, respectively.  The totals for Georgia and South Carolina were just 14 and 13.

Black lawyers were more numerous in the other former Confederate states, but only slightly: North Carolina (27), Tennessee (26), Arkansas (16), and Texas (20).

Not surprisingly, given the small pre-World War II black population of Wisconsin, black lawyers were scarce in the Badger State.  According to the 1930 Census, there were only three black male lawyers in Wisconsin in 1930, although there was also at least one black female attorney, former Marquette law student Mabel Raimey.  (The three black male lawyers included law partners George Heriot DeReef, A.B. Nutt, and James Weston Dorsey, and Ambrose B. Nutt, all of Milwaukee.)

By way of comparison, Minnesota had 11 black lawyers in 1930, while Iowa had 7.  North and South Dakota had none.

But if threats of protests and recalls and the prospect of voter dissatisfaction would not cause her to veer off course, it was not surprising that the promise and presence of $2.6 million in civil legal aid — money designated to help poor people with legal problems — was no deterrent. That the funding did not come from tax revenue but instead from a court surcharge was meaningless. That Wisconsin had been the second last state in the country to fund civil legal aid was irrelevant. The money disappeared.

Well not quite disappeared. In a twist that still rankles those who worked so hard to get that money into the budget, Senator Darling’s committee did not cut the funding from the budget, it gave the money to district attorneys.

Lack of funding for representation of poor people with civil legal issues is an enormous problem that is getting worse. As the economy sputters, creating more legal problems for the poor, the people with control of the wallets decide that the life-changing issues faced by the poor are no different than the care and maintenance of a public park. Cutbacks are required. No apologies are given.

So Wisconsin’s Joint Finance Committee can undo civil legal aid without a hiccup. Congress can cut funding for the Legal Services Corporation, the agency that helps fund many of the legal service organizations, with ease. And our Wisconsin Supreme Court can refuse to endorse a system to appoint lawyers for poor people in civil cases, in part because it worries about what it would cost.

The result is that the organizations that are in existence to provide legal representation to the poor have to eliminate jobs and serve fewer people. Already the estimate is that 80% of the poor who need representation do not get it, and the number is growing. The court system slows to a crawl under the weight of unrepresented litigants.

Associates with Ivy League degrees in large law firms take days to write memoranda about issues that the unrepresented poor have to deal with alone, on the spot. The lawyers don’t own the problems; they get to turn off the lights and go home at night. The poor carry their problems wherever they go.

As Tom Cannon, the Executive Director of the Legal Aid Society, wrote in an opinion column in the Milwaukee Journal Sentinel in support of the so-called Civil Gideon petition:

If you are poor and face 10 days in jail for a bar fight, you are entitled to a free lawyer under state and federal law. If you are poor and face eviction, foreclosure, bankruptcy, domestic violence, repossession of the family car, garnishment of your wages, loss of child custody or denial of disability benefits to which you are entitled, you are on your own.

It is one of society’s embarrassments. Frustrating and disappointing, it is most of all impossible to comprehend the ease with which the plight of impoverished civil litigants is dismissed. It gets no media attention. The bar’s advocacy on the issue is often tepid.

And legislators, like Senator Darling, don’t care.

In addition to a long career as a member of the Wisconsin bar, Zummach also played and coached basketball at Marquette, and from 1939-1942, he served as head coach of the Sheboygan Redskins of the National Basketball League, a forerunner of the NBA.

Zummach, a Milwaukee native, attended Marquette High School, and enrolled as a college student at Marquette in 1929. He began playing basketball for Marquette in 1930, and he entered the law school in 1932, with one year of varsity eligibility remaining.

Zummach continued to play on the Hilltopper varsity team as a first year law student and then switched to the role of assistant coach once his eligibility as a player expired. When he received his law degree in 1935, Frank was a member of the second class of Marquette Law students to be admitted to the bar under the diploma privilege. Because of the quality of his work in law school, he received the J.D. degree, rather than the then more common, L.L.B.

Frank gave up coaching in the fall of 1942 and for the next six decades, he practiced law in Sheboygan. In the late 1990’s, he was “rediscovered” by basketball historians and was a frequently lauded figure in basketball circles during the final fifteen years of his life.

For more on Frank’s career, see my post “The Marquette Law School Graduate Who Coached in the NBA Finals.” An extended obituary from the Sheboygan Press can be found at here.

Had it been properly preserved, the most substantial legal issue on appeal would have been the question left open by United States v. Santos, 553 U.S. 507 (2008): whether, in a traditional money-laundering prosecution, the government must prove that the allegedly laundered proceeds are net profits, as opposed to gross receipts, of the underlying crime. (See my blog post about Santos here). However, since the Santos issue was raised for the first time on appeal, the court used plain-error review and found that the defendants could not satisfy the standard given the “unsettled state of the law.” (2)

Hosseini and Obaei also raised an interesting voir dire issue.

At the defendants’ request, the trial judge questioned the panel of prospective jurors about bias against Iranian-Americans. The question elicited troubling responses from two prospective jurors. One said that Muslims were a “huge threat” and indicated that she was “scared of them.” Another prospective juror revealed that he had “a problem with people that weren’t born in this country.” Both were excused for cause.

Hosseini and Obaei then requested individualized questioning of all of the remaining members of the venire on religion and national origin bias. Based on what they had just heard from the dismissed jurors, their concerns don’t seem unreasonable.

On the other hand, it is not clear that individualized questioning would have been a helpful response to those concerns. As the trial judge oberved in denying the defendants’ request, “[Q]uestioning creates a suggestion. . . . [W]hat that basically does is to heighten the problem instead of easing a problem.”

Is this correct — does individualized questioning exacerbate bias by making it more salient in the minds of prospective jurors? This seems an excellent question for social scientific research. Offhand, I’m not aware of any studies on this question, though, and the Seventh Circuit did not cite any. Instead, the court invoked the wide discretion that trial judges are granted in managing voir dire, and observed, “[O]rdinarily, questioning jurors as a group is sufficient to satisfy the Sixth Amendment, even when the defendant belongs to a racial, ethnic, or religious minority and juror bias on one or more of these grounds might be a concern.” (19)

The Seventh Circuit also rejected arguments made by the defendants concerning misjoinder, the exclusion of evidence by the trial judge, and sufficiency of the evidence.

The case is United States v. Hosseini (Nos. 08-1879 & 08-1880) (full text available here).

Cross posted at Seventh Circuit Updates.

On appeal, Setser argued unsuccessfully that the district court lacked authority to make a concurrent/consecutive decision relative to a state sentence that had not yet been imposed.  In Setser’s view, it was up to the Bureau of Prisons to make the call, based on its authority under 18 U.S.C. § 3621(b) to decide whether federal sentences are to be served in a state or federal facility.  The Fifth Circuit rejected this view, and the U.S. Supreme Court affirmed in a 6-3 decision earlier this spring.

The majority opinion by Justice Scalia and dissenting opinion by Justice Breyer both engage in a fair bit of (inconclusive, in my view) parsing of statutory language.  What strikes me as a bit more interesting is the playing out, in another legal context, of the running argument between Scalia and Breyer over bureaucratic sentencing — an argument that has done much to animate the long line of cases following Apprendi v. New Jersey.

Consider Breyer’s argument in Setser.  In his view, the key consideration was that the district court was not in a position to make a consecutive/concurrent decision that would best implement the aims of the sentencing guidelines:

In a word, the sentencing judge normally does not yet know enough about what will happen in the sentencing-proceeding-yet-to-come to be able to construct a sentence that meets the Guidelines’ instructions and which, in doing so, helps to assure that different individuals who engage in the same criminal behavior will typically receive roughly comparable sentences.  (5)

[A] sentencing judge typically needs detailed information when constructing a multiple-count or multiple-conviction Guideline sentence. The fact that the future sentence has not yet been imposed means that information will often be lacking, and that in turn means that the exercise of such authority would risk confusion and error. A sentencing judge who believes, for example, that the future conviction will be based upon different relevant conduct (and consequently orders a consecutive sentence) could discover that the second conviction rests upon the same relevant conduct (warranting a concurrent sentence). Mistakes of this kind increase the risk of sentencing disparity and, insofar as the first judge guesses wrong, they can mean a less honest sentencing process as well.  (7)

[A] more practical solution to potential problems presented by a future sentencing proceeding lies closer at hand. The BOP has the statutory authority to effect concurrent service of federal and state sentences and is well situated to take into account both the intent of the first sentencing judge and the specific facts developed in the second sentencing.  (9-10)

Breyer’s reasoning reflects a bureaucratic approach to sentencing in at least three respects.  First, it adopts as an overriding value the bureaucratic imperative of treating like cases alike.  Second, it embraces the particular way of achieving uniformity that is embodied by the (bureaucratically promulgated) sentencing guidelines.  Third, it relies on a bureaucratic agency, the BOP, to make the key consecutive/concurrent decision instead of a judge.

All of this calls to mind Breyer’s extended rearguard action against the Scalia-led Apprendi revolution — an action that was intended by Breyer to preserve the bureaucratic federal sentencing guidelines system.  Indeed, in his concurring opinion in Apprendi, Scalia derided what he called “Justice Breyer’s bureaucratic realm of perfect equity.”  Apparently immune to the ridicule, Breyer continues to push precisely the same vision of sentencing in his Setser dissent as he did twelve years earlier in his Apprendi dissent.

In the Apprendi line of cases, Scalia consistently sought to contrast Breyer’s vision with what he characterized as the “common-law ideal of limited state power” (to quote his opinion for the majority in Blakely v. Washington).  Paradoxically, the Apprendi decisions purported to vindicate the traditional power of the jury, but (as all sensible observers recognized) the real effect of the decisions was to increase the power of the judge.

Scalia’s majority opinion in Setser also invokes the common-law tradition, but more forthrightly associates that tradition with judicial sentencing discretion:

It is fundamental that we construe statutes governing the jurisdiction of the federal courts in light of “the common-law background against which the statutes . . . were enacted,” New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 359 (1989), and the same approach is appropriate here, where the issue concerns a matter of discretion traditionally committed to the Judiciary. Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings.  (4)

Also echoing his Apprendi opinions, Scalia sounded the theme of separation of powers in his response to Breyer’s reasoning:

The basic claim of Setser, the Government, and the dissent is that when it comes to sentencing, later is always better because the decisionmaker has more information. That is undoubtedly true, but when that desideratum is applied to the statutory structure before us here it is overwhelmed by text, by our tradition of judicial sentencing, and by the accompanying desideratum that sentencing not be left to employees of the same Department of Justice that conducts the prosecution.  (10-11, citation and footnotes omitted)

To the extent that one sees Setser as a replay of an old argument on the Court, it is interesting that all of the Justices who joined the Court post-Apprendi lined up with Scalia.  Put alongside last term’s decision in Pepper v. United States, which was authored by newcomer Justice Sotomayor, Setser seems to signal that there is much support on the Court right now for judicial sentencing discretion, which may have important implications for the future direction of “reasonableness review” of federal sentences.

Speaking of which, Setser itself considered the reasonableness of the district court’s consecutive/concurrent decision.  Setser argued that it was unreasonable because the state court’s subsequent decision to run the state sentences concurrently rendered the federal sentence a logical impossibility.

In addressing this claim, the Court assumed for the sake of argument that Booker reasonableness review applies to the consecutive/concurrent decision.  However, the Court held that later events cannot render an otherwise reasonable sentence unreasonable.

So what is to be done with Setser’s impossible sentence?  The Court dropped the problem in the lap of the Bureau of Prisons:

This is where the Bureau of Prisons comes in—which ultimately has to determine how long the District Court’s sentence authorizes it to continue Setser’s confinement. Setser is free to urge the Bureau to credit his time served in state court based on the District Court’s judgment that the federal sentence run concurrently with the state sentence for the new drug charges. If the Bureau initially declines to do so, he may raise his claim through the Bureau’s Administrative Remedy Program. See 28 CFR §542.10 et seq. (2011). And if that does not work, he may seek a writ of habeas corpus.  (13)

In other words, the Supreme Court may not have seen the last of Monroe Setser.

Cross posted at Life Sentences.

But there are still a lot of undecided likely-voters in the election set for May 8 – about 19% — which needs to be kept in mind, Professor Charles Franklin, director of the poll, said in an “On the Issues with Mike Gousha” session at Eckstein Hall.

Head-to-head poll results for a possible final election for governor on June 5 between Barrett and Republican Gov. Scott Walker indicate a race that is effectively a tie at this point. Results for both all registered voters and for those who say they are likely to vote put one percentage point between Barrett and Walker (in one case, with Barrett ahead, in one case with Walker ahead, and, in both cases, with differences that are clearly within the margin of error).

The poll results found Democratic President Barack Obama holding a nine point lead over Republican presidential candidate Mitt Romney, an increase from the March results. But Franklin said Wisconsin is shaping up as a state that will be in play in the fall presidential campaign.

Full results for the poll, including video of the session at which the results were released and Powerpoint slides of key results, can be found by clicking here.

Today I particpated in another debate over the constitutionality of the Affordable Care Act’s individual mandate.  At the invitation of the Milwaukee Chapters of the Federalist Society and the American Constitution Society, I debated Robert Levy of the Cato Institute over luncheon at the Milwaukee Athletic Club.  My thanks to our hosts, to Mr. Levy, and to the audience.  Below are my prepared remarks.  My previous post on the consitutionality of the individual mandate can be viewed here.

In December 1783, George Washington gave a toast at a dinner celebrating the formal dissolution of the Revolutionary Army.  He did not use his toast to offer a tribute to individual liberty.  Nor did he sing the praises of limited government.  Instead, his toast was a simple expression of what he hoped the future would bring to our new nation. He raised his glass and he said: “Competent powers to Congress for general purposes.”

We must never forget that our Constitution is a document that was intended to create competent powers for Congress for general purposes.

Much of what Mr. Levy cites in oppostion to the individual mandate is based upon abstract principles.  However, when we interpret the Constitution, we do not begin with abstract theories of political philosophy, and then attempt to shoehorn those theories into the text.

Instead, when we interpret the Constitution, we begin by looking to the text itself.

The power to “regulate,” which is the power delegated to Congress under the Commerce Clause, is the power to prescribe the rules by which commerce is governed.  The word “regulate” means “to direct” or “to command.”  Therefore, the plain meaning of the word “regulate” in the text includes a grant to Congress of the power to require action.

Next we look to precedent.

Chief Justice John Marshall set the guiding principles of Commerce Clause jurisprudence when he wrote, in Gibbons v. Ogden (1824), that once the Court satisfies itself that the regulation of interstate commerce is involved, the power of Congress is plenary.  When John Marshall said “plenary,” he meant that it was not for the Court to impose a limit on the means that Congress chooses in the exercise of its delegated power.

Following Justice Marshall, the Supreme Court has long stated that so long as the law in question does not contravene an independent constitutional provision, the only question appropriate for judicial review is whether the subject matter of the regulation is interstate commerce.  Chief Justice Harlan Fisk Stone said in 1941, in United States v. Darby, “Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause.”

Does the individual mandate infringe on a constitutionally protected right?  No.  So really the main question that concerns us today is whether the individual mandate is a regulation of interstate commerce.  It is.

The Affordable Care Act deals with real, quantifiable externalities in the national market for health insurance.  The decision of some persons to forgo the purchase of commercial insurance leads to unreimbursed costs being passed along to consumers across state lines.  The current amount of uncompensated emergency room care has been estimated to add $1,000 per year to the average family’s premium.  Because the Affordable Care Act mandates that insurance companies offer coverage to those with pre-existing medical conditions, the total dollar amount of cost-shifting from the uninsured to the insured would increase significantly if the individual mandate were not imposed.

Congress can clearly regulate the purchase of health insurance once you arrive at the emergency room, as a transaction with a substantial effect on interstate commerce in the aggregate.  Can Congress mandate the purchase of insurance in advance of your emergency room visit, in reasonable anticipation of a virtually inevitable future transaction?

We know that Congress can regulate potential future actions under the Commerce Clause.  It is well settled that Congress can prohibit future activity under the Clause.  Does it make a difference if, instead of prohibiting future acts, Congress mandates that future acts take place?

The case of Wickard v. Filburn (1942) is the closest precedent to the individual mandate.  The law upheld in Wickard forced farmers to enter the market and purchase wheat that they might otherwise prefer to grow themselves.

The decision to forego health insurance is similar to the decision of the farmers to forego the wheat market.  In both cases, Congress is requiring the consumer to participate in the national market.  The only difference is that the farmer wants the wheat now while the health care consumer wants to delay their purchase as long as possible.  If the offensive nature of the individual mandate simply reduces to a question of timing, then one has to question why such a distinction should make a difference.

It is true that there was a time at the end of the Nineteenth Century when the Supreme Court adopted rules under the Commerce Clause that sought to enforce formalistic distinctions.  The Court limited Congress to the regulation of activities with a “direct” connection to commerce, as opposed to “indirect,” or permitted Congress to regulate “sales” but denied Congress the power to regulate “manufacturing.”

During this period, the Court was engaged in a quixotic effort to define an intrastate zone of commerce subject to exclusive state control, while simultaneously marking the boundary of an interstate zone of commerce subject to primarily federal control.  The premise behind this misguided effort was that the Constitution embodied a system of dual federalism, whereby the 10th Amendment prescribed limits on the scope of the powers delegated to Congress.  Similarly, under the line of cases exemplified by Lochner v. New York (1905), the Supreme Court was engaged in a parallel effort to distinguish between the regulation of private economic choices, which were protected as part of the liberty preserved under the Due Process Clause, from matters of public concern which were found to be appropriate subjects for government regulation.

Both of these efforts were doomed to fail.  The American economy was rapidly growing and changing, and commerce became too intertwined and all pervasive to be capable of sorting into separate and well defined little boxes.

What is most notable about the Supreme Court’s experiment with formalistic labels, as a means of policing Congress’ power under the Commerce Clause, is how the Court’s reasoning relied upon the recitation of a parade of horribles. So, for example, in the 1895 case of United States v. E.C. Knight & Co., the Court struck down a federal law forbidding any merger of manufacturing companies that resulted in a monopoly, on the grounds that corporate consolidations were not commerce because they were not activities that directly involved the shipment of goods. This opinion said:

If it be held that the term [commerce] includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining – in short, every branch of human industry.

In order to avoid this parade of horribles, the Knight decision rejected the argument that the consolidated companies would, at some later date, send manufactured goods into the stream of commerce.  The Court said, in essence, that future commercial activity could not be used to justify the present regulation of intrastate affairs. Sound familiar?

The “inactivity” argument leveled at the individual mandate is nothing more than an attempt to re-introduce formalistic rules designed to limit the scope of Congress’ delegated power.

The problem with this attempt is that a unanimous Supreme Court rejected formalism, and repudiated the experiment with dual federalism, in Wickard v. Filburn.

The most important aspect of the Wickard opinion was its recognition that once Congress has made the factual finding that the effect on interstate commerce justifies federal regulation, the Supreme Court did not have any objective standard upon which it could reject such a finding.  As Justice Jackson wrote to his law clerk:

At what point these effects have enough vitality to confer federal jurisdiction and at what point they have passed outside it, we have no standards to determine, and I am not at all sure of our capacity to invent a standard that would have any validity upon the immediate case to which it is applied. In such a state of affairs, the determination of the limit is not a matter of legal principle, but of personal opinion; not one of constitutional law, but one of economic policy.

Wickard creates a presumption that congressional statutes passed pursuant to the Commerce Clause are constitutional, and places the burden upon the party challenging the statute to show that the activity being regulated, in the aggregate, has no substantial effect on interstate commerce.

The more recent cases of Lopez and Morrison do not apply to the individual mandate. United States v. Lopez held that Congress cannot regulate non-economic behavior based on an attenuated link to interstate commerce. An individual’s decision whether to self-insure or whether to purchase commercial insurance clearly falls within the realm of economic behavior.

United States v. Morrison held that Congress may not regulate individual interstate economic behavior if the aggregate impact of this behavior on interstate commerce is negligible. The cost shifting impact of uncompensated medical care is well documented, and hardly negligible.

I note here that there is no quantifiable cost shifting involved when I refuse to eat broccoli or when I decline to purchase a health club membership. If I subsequently get sick, where is the factual basis for asserting that my illness was due to a lack of broccoli as opposed to excessive sodium intake? How does one quantify the percentage of my poor health attributable to a lack of exercise as opposed to a genetic predisposition?

Compare these examples to the situation with uncompensated health care, where the provider gives the uninsured an itemized bill, accounts for the amount of annual uncompensated care on its books, and budgets an increase in prices in order to recapture those costs. I submit that if Congress were to regulate broccoli consumption or health care memberships without any quantifiable factual basis the Supreme Court would have ample authority under the Morrison case to reject such fantasies.

Even if we adopted the formalistic rule that inactivity cannot be commerce, the purchase of health insurance would still be subject to congressional regulation under a separate theory: it would be non-economic activity subject to control as a necessary and proper part of an overall scheme of interstate regulation.

To quote Justice Stone in United States v. Darby: “The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end . . . .”  Under this principle Congress can regulate even noneconomic local activity, where that regulation is necessary and proper to a more general regulation of interstate commerce.  Justice Scalia said the same thing in 2005 in his concurrence in Gonzales v. Raich, which upheld federal regulation of marijuana grown for personal use.

The Darby case is instructive as well.  The Court concluded that Congress had power under the Commerce Clause to impose minimum wage and hour provisions for workers.  The Court further held that since the labor conditions of the workers fell within Congress’ Commerce Clause authority, Congress could also require employers to create and keep records that evidenced compliance with those conditions.  In other words, employers who were willing to comply with the congressional command could not argue that Congress’ power only reached their actual treatment of workers.  Instead, Congress could also require that those employers take the additional action of creating documents that reflect their compliance.  Congress could mandate the creation of documents as a necessary and proper means of enforcing its minimum labor conditions.

Therefore, under existing precedent, Congress may impose the individual mandate as either part of interstate commerce itself or else as noneconomic activity necessary to the regulation of interstate commerce.

Is there no limiting principle that defines the outer boundary of Congress’ power under the Commerce Clause?

From the beginning, John Marshall insisted that the only limiting principle on Congress’ exercise of this delegated power is the political process.  In defining the scope of Congress’ power in Gibbons v. Ogden (1824), Marshall said that “[t]he wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are . . . the sole restraints . . . to secure them from its abuse.”

In the almost two centuries since the Gibbons case, the members of the Supreme Court have returned often to the idea that once interstate commerce is affected, the political process itself comprises the sole limit on Congress’ lawmaking authority.

In 1922, Chief Justice Taft, in the case of Stafford v. Wallace said: “This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly non-existent.”

Later, writing to his law clerk about the breadth of the decision in Wickard v. Filburn, Justice Jackson said: “Federal power can, of course, discredit itself by attempting more than is just or can break down attempting more than it has capacity to organize or administer.  Its excesses and irresponsibilities it must answer for at the polls.”

Much of the objection to the individual mandate revolves around the concept of coercion.  Does the individual mandate transgress some line as an invasion of individual liberty?  Opponents of the individual mandate like to focus on the fact that it requires persons to take an action that they do not wish to take.

The same argument was made in opposition to the Civil Rights Act of 1964, which prohibits discrimination in privately owned hotels and restaurants.  Testifying before Congress, James J. Kilpatrick stated his view that that law went beyond the scope of the Commerce Clause:

Here the Congress proposes to impose a requirement to serve . . .  Here Clancy’s Grill and Mrs. Murphy’s Hat Shoppe are equated with AT&T.  The neighborhood drug store is treated as the gas company.  It must serve.  Within the realm of Section 202, the owner has no option, no right of choice.

Senator Norris Cotton of New Hampshire questioned whether under the Commerce Clause Congress could pass a law requiring restaurants to have fish available on Fridays or to have kosher food available at all times.  The response of Dean Erwin Griswold of the Harvard Law School to these complaints was simple: the only question was the constitutionality of the present bill; there was no need to defend every conceivable bill Congress might take up in the future.

The bootstrapping argument is similarly unconvincing. The argument is that by mandating a commercial transaction, Congress is creating the circumstance that gives it the power to regulate the transaction. There is nothing unusual or pernicious about a branch of the federal government defining the scope of its own power. The Supreme Court did so in Marbury v. Madison. The Executive Branch does so quite often in the realm of national security.

In plain vanilla Commerce Clause cases, Congress is engaging in a form of jurisdictional self-definition whenever it finds facts sufficient to support a substantial effect on interstate commerce.  The Court kept congressional fact-finding within reasonable bounds in the Morrison case, and I have no doubt that the Court could require Congress to point to actual and quantifiable cost-shifting across state lines should Congress decide at some future date to mandate the purchase of health club memberships.  Simply shouting the word “bootstrapping” adds nothing of significance to the debate over Congress’ power.

Some opponents object to the means chosen by Congress in the Affordable Care Act, and argue that Congress should accomplish its objectives by imposing a tax instead.  Arguments over the wisdom of the method chosen by Congress should be directed at that body, and not to the Supreme Court.

A straightforward application of the relevant precedent leads to the conclusion that the individual mandate falls within the scope of the Commerce Clause, as that Clause has been interpreted by the Supreme Court throughout its history — with the exception of one interregnum that the Court repudiated over 70 years ago.  Mr. Levy’s objections to the individual mandate begin with the premise that the mandate fails the test of the Commerce Clause as it is currently understood, but upon further examination it appears that his true objection is that he is philosophically opposed to the current test itself.

The Supreme Court faces a choice. It can evaluate the constitutionality of the individual mandate under our current understanding of the text and the precedent.  Or it can reject the assumptions that underlie our current Commerce Clause jurisprudence and chart a new course.  Any decision of the Court that reverses the fundamental understanding of the Commerce Clause as expressed in Wickard and Gibbons, and that leaves a zone of commerce subject to state regulation alone — or even worse subject to no regulation at all — would be a deliberate break with past precedent.  Beyond the creation of needless uncertainty, there is the very real risk that the Supreme Court would leave us with a Congress without competent powers for general purposes.

ACKNOWLEDGEMENTS

In preparing my remarks, I consulted the following sources:

George Washington’s toast is reported in Ron Chernow, WASHINGTON: A LIFE (2010).

The quotations from Justice Jackson’s memos to his clerk, and much useful commentary, can be found in Paul R. Benson, THE SUPREME COURT AND THE COMMERCE CLAUSE, 1937-1970 (1970).

A useful analysis of the Supreme Court’s detour into formalism is contained in Barry Cushman, Formalism and Realism in Commerce Clause Jurisprudence, 67 U. CHI. L. REV. 1089 (2000).

A response to the bootstrapping arguments deployed against the Affordable Care Act is made by Joseph Blocher in What We Fret About When We Fret About Bootstrapping, 75 LAW AND CONT. PROB. 145 (2012), also available on SSRN.   

Second, Cybercrime Review explores “new technology, recent legal developments, and interesting arguments at the intersection of computers and the law.”  The authors are a current Marquette student, Justin Webb, and Jeffrey Brown, a student at the University of Mississippi School of Law.  In addition to being law students, both Justin and Jeffrey have impressive professional credentials in the IT field.  Justin’s comment on GPS tracking and the Fourth Amendment appeared in the most recent issue of the Marquette Law Review.

The editors of the blog asked several law school faculty to write about the people who have been the most formative figures in their careers as legal educators. This is the second submission in the series, and it is by Professor John J. Kircher.

The answer to the question “who has been the most formative figure in your career as a legal educator” is very easy for me. It is one name, Professor James D. Ghiardi. During the course of my career Jim Ghiardi has been my law professor, my boss, my mentor, my golf partner, my colleague, my coauthor and my second father. I feel very fortunate to have had the ability of spending a great deal of time with him over the course of my career. Many learning experiences came from that, not only observing what he said, but also what he did.

My initial exposure to the man was in my first year of law school. He was my Torts professor. There was no attorney in my family and, other than characters in movies and on television, I never had any personal exposure to one. I was impressed. He was dressed in a business suit, unlike many undergraduate faculty members to whom I had been exposed. They dressed like their students, possibly thinking that undergraduate chic might make them appear young – certainly not professional. Jim told us that law was a profession and that he expected us to act and think like professionals. He told us what his role would be in the classroom and what our role should be.

A significant sign of Jim’s professionalism is evidenced by the fact that he was elected by the members of the State Bar of Wisconsin to be President of that organization. As far as I can discern he is the only “academic lawyer” to have achieved that status. However he was more than an academic lawyer. He was and continues to be a true professional. He certainly was and continues to be my role model.

The majority and dissenting judges in Chaidez all agreed that the case turned on whether Padilla announced a new rule of criminal procedure, within the meaning of Teague v. Lane, 489 U.S. 288 (1989). With only a couple of execeptions not relevant here, Teague prohibits retroactivity for new rules. So, the question in Chaidez seems to boil down to whether Padilla announced a new rule or merely applied the basic ineffective assistance test of Strickland v. Washington, 466 U.S. 668 (1984).

From the majority’s perspective, it was decisive that Padilla produced a concurring and a dissenting opinion, both of which were supported by two justices and both of which expressed the view that Padilla constituted a “dramatic departure from precedent.” That four justices saw Padilla as not mandated by precedent provided strong evidence that it announced a new rule. Additional evidence to this effect came from the great weight of pre-Padilla lower-court precedent, which recognized an exception to Strickland for failures to advise regarding collateral consequences of convictions.

Judge Williams, in dissent, emphasized the flexible, open-ended nature of the basic Strickland test: “[W]here the starting point is a rule of general application such as Strickland, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent.” 655 F.3d at 695 (quoting Wright v. West, 505 U.S. 277 (1992) (Kennedy, J., concurring)).

It will be interesting to see whether the Supreme Court endorses Williams’ approach. It would seemingly minimize the effectiveness of the Teague bar in Strickland cases, and perhaps in many other sorts of cases in which constitutional rights are defined by reference to broadly worded standards (e.g., Brady materiality decisions or determinations of whether a person was ”in custody” for Miranda purposes.) Read for all its worth, the Williams approach might eliminate the Teague bar for any precedent that did not expressly overturn an otherwise-controlling decision.

But I’m not so sure that limiting the effectiveness of Teague would be such a bad thing. What really motivated the Teague plurality to adopt the retroactivity bar was a desire for greater finality in criminal litigation, particularly when it comes to federal habeas courts reviewing the judgments of state courts.

Since Teague, however, Congress has erected a host of new statutory obstacles that federal courts must overcome before upsetting state-court judgments. Particularly noteworthy is 28 U.S.C. § 2254(d), which largely codifies the Teague rule for habeas petitions attacking state-court convictions. Also relevant are the new one-year statute of limitations for habeas petitions and new restrictions on filing multiple habeas petitions. Finally, procedural default rules that antedate Teague also impose important constraints on the ability of defendants to challenge longstanding convictions based on favorable new precedent. Against this backdrop, Teague has largely outlived its usefulness.

In practice, adopting a more relaxed approach to Teague would likely only benefit a very small number of defendants, most or all of whom would be individuals (like Chaidez herself) challenging federal convictions–convictions whose finality does not implicate the federalism considerations that seem to have animated Teague.

Cross posted at Seventh Circuit Updates.

I had the same experience some time later when I became involved in the most pressing problem facing our legal system: the inability of poor people to afford legal representation for the important life-changing issues they face. I had been involved in pro bono from the day I was graduated from Marquette, handling divorces, landlord-tenant issues, even a capital punishment case in Texas. I enjoyed the rewarding nature of the work and appreciated the hands-on experience. The clients I represented seemed to appreciate having a lawyer.

But while I was helping individuals now and then, and feeling comfortable that I was doing some good, I was blissfully ignorant of the big picture issues and challenges that had the system in a chokehold — the lack of funding for legal service providers, the reluctance of lawyers to become involved in pro bono, the resistance of some to changes in the delivery of legal services to poor people, the lack of leadership from those in the best position to lead. My eyes were anything but open.

And then, thinking it might be interesting, I joined the Legal Services to the Indigent Committee of the Milwaukee Bar Association. I was asked to sit on the board of Legal Action of Wisconsin. More committees and boards followed and soon I was immersed in, and sometimes overwhelmed by, the challenge of securing access to justice for poor people. Once again, I discovered that it is a lot easier when you don’t know about all of the issues.

The problem of the unrepresented poor should not be easy for any of us, however, and the issues that compound the problem are too important to be ignored. I hope to heighten your awareness of them as the alumni blogger this month. These issues raise questions with no easy answers. They occupy the time and effort of a relatively small group of people, but they should tax all of us.

They go right to the heart of equal justice under the law.

In part, the unpredictability also reflects the absence of a completely satisfying way to sever the mandate if it is unconstitutional. Because the PPACA lacks a severability clause, covers such a diversity of topics, and reflects a variety of legislative compromises, it is hard to identify a clear legislative intent with respect to severability. Because the invalidation of the mandate will render certain aspects of the core health-care reforms financially problematic, it is unsatisfying to focus exclusively on the textual separability of the mandate from surrounding provisions. And because courts are poorly equipped to appreciate the complexities of health care policy, it seems problematic to base severability on anticipated financial implications.

That being said, I think we can reasonably make a couple of predictions about this aspect of the decision. First, if the Court holds that the individual mandate is not severable, that holding will rest on the votes of the conservative Justices, who generally seemed much more skeptical of severability than their counterparts during oral argument.

Second, and regardless of whether the Court severs the mandate, most—maybe even all—of the Justices will emphasize that the Court has a general preference for severance, and that severance is often an appropriate result because of the permissiveness of the doctrine. I think the liberal Justices will make this point in emphasizing that the mandate should be severable. And I think that the conservative Justices will make the point because of their previously stated preference for as-applied challenges.

The story on the latter point goes like this: The Roberts Court has repeatedly expressed a preference for as-applied challenges over facial challenges. The distinction between the two, and thus the justification for the preference, requires a liberal severability doctrine: If the law disfavors or prohibits severance, the result of successful as-applied challenges will tend to mirror that of successful facial challenges by dictating total statutory invalidation. This follows from the so-called “valid-rule requirement,” which holds that partially invalid statutes cannot remain operative because litigants are entitled to judgment under constitutionally valid rules of law. By contrast, if severance is easy to obtain, the result of successful as-applied challenges will often be partial invalidation, as the Court’s preference intends. In emphasizing that severance is generally appropriate, the conservative Justices will buttress the distinction between facial and as-applied challenges by preserving the tendency for the latter to yield only partial, rather than wholesale, statutory invalidation. The distinction won’t matter in the PPACA litigation, but it will elsewhere.

Otherwise, all bets are off. I’m not sure whether the Court will sever, or how they will sever if they choose to do so.

Cross-posted at PrawfsBlawg.

B7.1.1—Abbreviation in General

When citing to other court filings in the same case, abbreviate the titles of those documents and cite a paragraph or page within the document. The 19th edition of the Bluebook permits a writer to choose to enclose the cite in parentheses or not. For now, my preference is to use the parentheses. (What do readers think about this change in form?)

Example: (Jefferson Aff. ¶ 2.) or Jefferson Aff. ¶ 2.

Cites to the record use an “R. at page number” format. Example: R. at 5. or (R. at 5.)

If the citation refers to the entire sentence, it comes after the period in the sentence. Place a period before the end parenthesis.

Refer to B7.1.4 regarding citation with PACER/ECF.

Example: The Plaintiff was driving a blue Ford. (Williams Aff. ¶ 7.)

If the citation only refers to part of the sentence, place the citation within the sentence immediately after the fact supported by the cite. Assuming the sentence contains two cites, place the period for the second citation after the parenthesis to emphasize that the second cite refers to the latter half of the sentence.

Example: Jones was in studying in Chicago (Jones Aff. ¶ 6), and Carson was visiting South Dakota (Carson Aff. ¶ 8).

Example 2: Smith did not observe anything unusual that day (Smith Aff. ¶¶ 2-3), and he received no phone calls from Jones (Jones Aff. ¶ 10). Notice the hyphen in this example to show citation to consecutive paragraphs.

BT.1: Abbreviating Titles of Court Documents

This list should be used in conjunction with B7.1.1 to abbreviate titles of court documents.

Words of more than six letters may also be abbreviated, even if the words do not appear in the list.

Omit articles and prepositions.

Other words in a document title may be omitted if the document can be unambiguously identified.

B7.1.2—Pinpoint Citations

Use a page, paragraph, or line as a pincite (do not use p. before a page number). Separate line and page references with a colon.

Other subdivisions such as paragraphs should be identified. Per Bluebook Rule 3.3(c), use more than one paragraph symbol to indicate multiple paragraphs. Do not put a space between the two symbols (see examples above).

It’s customary to use “at” with appellate record cites, but the 19th edition does not require “at” with other page number references in record cites.

B7.1.3—Date

Use a date to emphasize a significant date or when documents are otherwise indistinguishable, such as when the same person has provided multiple affidavits.

Example: (Elliot Aff. ¶ 7, March 9, 2012) and (Eliott Aff. ¶ 6, March 29, 2012)

B7.2—Short Forms

Use short forms as applicable after the long form is first given.

The Bluebook allows the use of id. with record cites. Id. should be underlined or italicized consistently with other cites in the brief.

The editors of the blog asked several law school faculty to write about the people who have been the most formative figures in their careers as legal educators. This, the first submission in the series, is by Professor J. Gordon Hylton.

I left law school with no particular intention of becoming a law professor; however, when I did become one 10 years later, my views as to the proper purpose and content of legal education had been significantly shaped by my contact with a variety of individuals. Although I spent most of my first decade after law school in graduate school in History and American Studies and as a teacher of undergraduates, my experiences during those years clearly shaped my future approach to law teaching.

As a legal educator, I have been an advocate of the historical approach the study of law, and early on I had the good fortune to study under and work with a large number of exceptional historians, some of whom specialized in the history of law and some of whom did not.  

This group included David Rankin and Thomas LeDuc at Oberlin College, G. Edward White, Chuck McCurdy, and Paul Gaston at the University of Virginia, and David Herbert Donald, Morton Horwitz, Bernard Bailyn, and Alan Brinkley of Harvard University. From all of these, and especially from Professor Donald, I learned that in law, as in everything else, an understanding of the past is a precondition for understanding the present.

The importance of casting the net wide enough to include cultural history in the study of law was brought home to me by my studies in the Harvard History of American Civilization program and especially by my association with Professors Daniel Aaron, Warner Berthoff, and Andrew Delbanco of the Harvard English Department.

I actually began thinking about a career in law teaching shortly after beginning graduate school, and toward that end I enrolled in a Harvard Law School course entitled “Preparing for Law Teaching” during my second year of graduate school. The class was ear-marked for LL.M. students interested in careers in legal education, and it was taught by former Harvard Law School Dean Albert Sacks. The course was conducted in seminar style, and each week a member of the Harvard Law School faculty offered a different class on some aspect of legal education.

While completing my Ph.D., I also served as a teaching assistant for Archibald Cox and briefly as a research assistant for Charles Haar, both distinguished legal scholars and members of the Harvard Law Faculty. Haar was an advocate of incorporating non-traditional historical materials (i.e., those not pertaining to estates in land and future interests) into the study of law, and Cox, of course, was legendary for his role in as the Watergate Special Prosecutor.

Although I didn’t become a law professor until several years later, my first experience as a teacher of law in a university environment came from 1980 to 1982 when I was a Lecturer in the undergraduate Legal Studies program at Brandeis University. Aping the instructional methods of law school, I led undergraduates through an introduction to the legal method based on the same sort of case-based analysis that is associated with the 1L year. In that position, I benefited greatly from my association with Professor Saul Touster, a former law professor who directed the Brandeis program (which was, interestingly enough, housed in the American Studies department).

Because my doctoral dissertation dealt with the development of the American legal profession in the era between the Civil War and the Great Depression, I also dealt regularly with issues pertaining to the history of legal education in my scholarly work. On one occasion, I also was asked to fill in for Professor Cox as the lecturer in his undergraduate course, “The Supreme Court and the Constitution.”

Outside of academia, my experiences as a law clerk for Justices Albertis Harrison and Lawrence I’Anson of the Virginia Supreme Court and my brief stints with the Massachusetts Commission Against Discrimination and the Harvard University General Counsel’s Office all gave me a much better sense of how legal principles and theories operate in the real world, certainly better than the sense that I had coming immediately out of law school.

I was also indirectly involved in legal education while I was in graduate school. In law school at the University of Virginia, I had served for a year as a student assistant to Albert Turnbull, the Dean of Admissions and Placement, and that experience had given me the opportunity to see how the administrative side of legal education operated from the inside. In a similar vein, while in graduate school I was for several years an undergraduate pre-law adviser at Harvard which required me to be knowledgeable about law schools in general and the law school admissions process in particular.

When I actually became a real law professor in 1987 at the Chicago-Kent College of Law, my approach to legal education and legal scholarship had been affected by all of the experiences discussed above. Moreover, my own studies of the history of legal education had convinced me that within the realm of “non-clinical” law schools courses, there were really three different types of courses—first year courses, upper level “doctrinal” courses, and “law and” courses (like legal history)—each with different goals and objectives.

The classroom teaching styles that I initially adopted were, I now realize, very much influenced by several of my teachers at the University of Virginia Law School, especially Tom Bergin (in first year courses), Charles Whitebread (upper level courses) and Ted White (legal history courses).

For teaching materials during the first part of my career, in which I taught only Property, Constitutional Law, and Legal and Constitutional History, I was very influenced by earlier experiences. For example, I used Charles Haar’s Property and Law in my first year Property class; I assigned Gunther’s famous Constitutional Law casebook (which Cox had used) in Constitutional Law, and I constructed my first Constitutional History seminar around Ted White’s The American Judicial Tradition.

During my first year of law teaching, I also benefitted enormously from the opportunity to engage in regular conversations about legal education with my new colleagues Ralph Brill and Randy Barnett. The fact that Ralph and Randy agreed on absolutely nothing in regard to legal education helped sharpen the discussions.

I was also much impressed by Northwestern Professor Anthony D’Amato’s article, “The Decline and Fall of Law Teaching in the Age of Student Consumerism,” which appeared in the Journal of Legal Education (37 J. Leg. Ed. 461 (1987)), during the semester that I began law teaching. Although I had already essentially reached the same conclusion, this article convinced me that the so-called Socratic Method, if used rigorously but fairly, was an extremely effective way of teaching first year law students.

Now 25 years into my law teaching career, I continue to draw upon my colleagues for insight and inspiration, and I learned long ago that the goal of high quality, meaningful legal education is a constantly moving target.

When Nancy Pelosi was asked about the potential for a constitutional challenge to the health care law, her response was “you’ve got to be kidding.” The substance of her response – “look, we used the commerce power and that permits us to do almost whatever we want” – reflected large patches of conventional wisdom.

Many lawyers (particularly those trained before the Rehnquist Court began to push back against an unlimited commerce power) and, in particular, Progressive legal academics thought that this dragon had been slain long ago. They assumed that the idea that there might be structural limits on the federal constitution had been relegated to the status of flat earth creationism and alchemy.

Legal Progressives believed that the notion that the commerce power does not give Congress a generalized police power had been reduced to a meaningless genuflection to history and the intent of the founders – something that only a far right remnant who mutter about the Federalist 51 and the lost constitution believe is – or ought to be – true.

As a political and historical matter, pushing aside structural limits on the power of the federal government was a cardinal – and necessary – achievement of the Progressives’ constitutional project.

If you wish to (and believe that you can) “rationalize and improve” significant swaths of social activity through centralized regulation and, if you believe, as Daniel Patrick Moynihan put it, that “everything relates to everything” such that regulation must be comprehensive and that “there are no social interests about which the national government does not have some policy or other,” these structural limits get in the way.

You will not see limitations on what Congress can do to manage a national and interdependent economy – as I think Madison saw them – to be important safeguards of negative liberty, state sovereignty, and factional abuse. To the contrary, you will think that they frustrate reform and impede positive liberty. You will regard them as undemocratic in that they make it more difficult for a current majority to do what it wants to do.

On the other hand, more classical liberals – we call them conservatives today – see the sweeping away of limitations of the power of the federal government as an infringement on the liberty of individuals and voluntary associations. They will see this “brush clearing” project as a threat to federalism and anti-democratic in that they attenuate political accountability. They see them as flattering the hubris of elites who believe that they can do far more than they actually can and as empowering the special interests – Madison called them factions – who inevitably capture the regulatory process.

As early as 1908, Woodrow Wilson called for structural limits on Congressional power to be read out of the Constitution:

There can be no successful government without the intimate, instinctive co-ordination of the organs of life and action. . . . Living political constitutions must be Darwinian in structure and in practice. All that progressives ask or desire is permission—in an era when “development,” “evolution,” is the scientific word—to interpret the Constitution according to [the] Darwinian principle.

Legal Progressives have had a great deal of success in achieving this “brush clearing” objective. Nevertheless, the differing attitudes that we see on the part of politicians, commentators, and jurists toward the health care law can be placed in the context of this long-running dispute. Although courts don’t necessarily resolve constitutional questions – and won’t resolve this one – simply in terms of the debate, these differing attitudes color how smart people on both sides see – and characterize – the same facts.

With that bit of context, let’s turn to the doctrinal dispute over the health care law.

The commerce power has – with a few important bumps in the road – been ascendant since the New Deal. This was not always so and was not always expected to be the case. Madison, writing in Federalist 45, thought that the constitution established a federal government whose powers were “few and defined” while those remaining with the states were “numerous and indefinite.” He saw the commerce power as something of a minor thing “from which no apprehensions” concerning the disruption of federal scheme “are entertained.”

Yet, within the lifetime of those who are still among us, the commerce power has been transmogrified from regulation of the channels and instrumentalities of interstate commerce to those activities having a direct impact on commerce to regulation of those activities which, even if wholly instrastate and (perhaps) noncommercial and noneconomic, can be rationally thought to have a substantial impact on interstate commerce.

The poster child of the commerce power “mission creep” might be Wickard v. Filburn. In that case, the Court held that Congress could forbid a farmer engaged in interstate commerce from growing wheat to feed his own livestock. The offending wheat, although it would not enter interstate commerce, would reduce the amount that the farmer might buy on the interstate market. This reduction in demand would frustrate Congress’ efforts to regulate the market in a way that will raise the price of wheat.

If Congress can do that, the argument goes, there must be very little that it cannot do.

But still – if you look closely – it isn’t quite so clear. The law has not yet settled on a virtually unlimited commerce power. The Supreme Court has continued to say the Congress has only enumerated powers and that the commerce power is not unlimited. It has continued to say that the commerce power may not be read to give Congress a general police power.

On two occasions, the Rehnquist Court – for the first time since the New Deal and to the astonishment of legal Progressives – invalidated congressional exercises of the commerce power. In United States v. Lopez, the Court held that the commerce power cannot reach non-economic activity. It held that something that is not economic cannot be made economic because of it has economic impacts.

The Lopez Court expressly rejected the idea that the commerce power could reach activity – in this case the possession of guns in school zones that could lead to gun violence – can be regulated simply because it will create costs that will be borne by third persons – insurers and the government – and affect interstate commerce. Concurring, Justice Kennedy wrote, “[i]n a sense, any conduct in this interdependent world has an ultimate commercial origin or consequence but we have never said that the commerce power reaches so far.”

Similarly, in United States v. Morrison, the Court held that one cannot justify what is, in substance, the exercise of a federal police power by saying that what it prevents will have economic impacts on interstate commerce

What appeared to be a substantial push back against sixty years of commerce power jurisprudence was, at least, given pause by the result in Gonzales v. Raich. In that case, the Court rejected an as-applied challenge to application of the Controlled Substances Act to ban the home cultivation of marijuana for medicinal use – as permitted by California law. Carving out an exception for home grown medicinal marijuana would render unworkable Congress’ ban on the sale of marijuana in the interstate market. Home production would inevitably be drawn into the market and frustrate federal enforcement efforts.

What Wickard did for wheat, Raich did for weed. In fact, Justice Scalia went so far as to suggest that the commerce power might even reach noneconomic power if necessary to effectuate a comprehensive regulatory scheme.

But Raich might mean less than a mere description of the outcome would suggest. It was an “as-applied” challenge. Still the Court said that there are limits. Still the Court said that the commerce power was not the equivalent of a federal police power. Even after Raich, there was reason to think that the health care act might be vulnerable.

Of course not everyone thought so. When I suggested at a faculty meeting that the challenge would be taken seriously and even if unsuccessful could get 4 votes I was looked at as if I had just questioned the catastrophic view of anthropogenic global warming (which, in fairness, I probably had).

But then the plaintiffs started to have success. Several district courts and one federal Court of Appeals struck down the mandate. The problem is, I think, that the individual mandate – at least for those who do retain some belief in enumerated and limited powers – is close to – if it does not reach – the constitutional gag reflex.

The individual mandate provisions in the health care law are unprecedented and extraordinary. The law purports to regulate what – at least at first blush – seems to be, not only noncommercial but non-economic activity. The prescribed conduct is, in fact, the refusal to engage in commercial or noneconomic activity. This does not seem to be activity at all.

Congress is, for the first time, using the commerce power to tell individuals people how to allocate their own resources with no possibility of escape. The Eleventh Circuit, in striking down the mandate, put it like this:

Every day, Americans decide what products to buy, where to invest or save, and how to pay for future contingencies such as their retirement, their children’s education, and their health care. The government contends that embedded in the Commerce Clause is the power to override these ordinary decisions and redirect those funds to other purposes. Under this theory, because Americans have money to spend and must inevitably make decisions on where to spend it, the Commerce Clause gives Congress the power to direct and compel an individual’s spending in order to further its overarching regulatory goals . . . .

The Congressional Budget Office has said that upholding the mandate could “open the door to a mandate issuing government taking control of virtually any resource allocation decision that would otherwise be left to the private sector.”

Congress is using the commerce power to require people to engage in an activity – to purchase a product or to enter into a transaction – simply because one is alive. This may be why Justice Kennedy said, at oral argument, that the individual mandate – and its constitutional implications – changes the nature of the relationship of the individual to the federal government in a fundamental way.

While I recognize that some people’s response to this may be to shrug and suggest that this is as it should be. Abuses can be tempered by the political process, the provisions of the Bill of Rights or, perhaps, substantive due process.

But the majority of the Court – for good reasons in my view – does not see it that way. They want a limiting principle and, as we will now see, there does not appear to be one.

The question becomes how one is going to characterize the thing being regulated by the individual mandate – can one adopt a persuasive verbal formulation that this is regulating commerce or an economic activity that has a substantial effect on commerce without creating a protean commerce power?

There are essentially two arguments offered by the government. The first is that the failure to buy something is a decision to self- insure. On this view, the refusal to participate in commerce now is a decision about – or at least has an impact upon – how one will participate in commerce later.

This decision, it is said, will have an impact on commerce because many who decide to “self insure” will, in fact, do no such thing or will do it inadequately. They will be unable to pay for health care at the time that they need it and, due to federal law requiring that certain kinds of care be provided – perhaps combined with societal conventions against the denial of care – that inability to pay will shift the cost of that care to others.

As a causal sequence, this is probably correct although, ironically, the individual mandate does not apply to many of those who actually cause cost shifting to occur. As the 11th Circuit noted, 34.1% of these cost shifters are poor and not subject to the mandate. 18.9 % are foreign nationals illegally present in the US and not subject to the mandate, 7.6% are those who are insured but fail to pay out of pocket costs that the mandate does not eliminate, and 20.1% are those who lost their insurance but cannot get it due to pre-existing conditions. Presumably such people will no longer exist – or more accurately many fewer will exist – under the new law due to its guaranteed issue provisions. More on that later.

But let’s accept the connection. It tracks – at least to some degree . But the causal connections in Lopez and Morrison tracked, too. The exercise of the commerce power in those cases did not fail because gun violence or gender related violence did not cause cost shifting or affect interstate commerce. The commerce justification failed because the activity being regulated was not economic in nature. It did not consist of the production, distribution, or consumption of commodities.

So the fact that the failure to buy insurance will result in cost shifting can’t, in and of itself, support regulation under commerce power. There are too many things that would apply to including, as the 11th Circuit noted, many other forms of insurance. Indeed, such a justification would apply to any allocation of resources that might be thought to be unwise and lead one, at some point in the virtue, eligible for government assistance or private charity.

A variation on the theme is premised on the fact that almost everyone will use health care at some point and Congress is merely advancing the point at which one must pay for it.

But, in fairness, that’s not the government’s only argument.

It wants to distinguish health care as unique because almost everyone will eventually consume it. It is said to be inevitable, unpredictable, expensive, subject to a federal mandate that at least certain types be provided and, as we say, results in cost shifting.

But it is unclear that the supposedly unique nature of health care is of constitutional significance. If Congress is empowered to regulate commerce and we think that, at minimum, this should require the regulated activity to be economic activity associated with commerce, does that power require parties to engage in economic activity or to enter into commerce earlier than they might otherwise? Does it require them to prepare themselves to enter into commerce so, when they do, it will be on terms and in a way that Congress prefers?

To be sure, you can string together a verbal formulation that says this. The English language is malleable and you can always characterize the failure to do something now as affecting the options that one will have later. If the latter activity is subject to regulation, you can say, why then the earlier one should be as well.

But you can’t do that and continue to say that the commerce power is limited. There are all sorts of things that everyone – or almost everyone – will someday need. We will all participate in the markets for food, clothing, shelter, employment, retirement income, and even, alas, burial. There are all sorts of ways in which one’s decision to allocate one’s resources or to refuse it engage in some form of economic or commercial activity will affect our subsequent participation in those markets.

And, of course, all of these things may affect – even impose costs upon – others. If I decide to forgo saving, I will impose burden on others if I become disabled, seek to retire or die (thereby requiring burial). If I refuse to learn a marketable skill, I may become a ward of the state. All of these things seem at least as likely as the prospect that an uninsured person will consume health care for which he or she cannot pay – or at least close enough to question whether the state has offered an effective limit on the commerce power.

There is, however, another way in which the government attempts to justify the individual mandate. Let’s assume that refusing to engage in an economic activity cannot be said to be economic activity and, therefore, failing to buy insurance is not economic activity. Perhaps requiring people to buy it will be necessary to make other regulation – guaranteed issue and community rating – work. Isn’t this within Raich?

Strictly speaking, of course, these regulations would still work – they’d just result in more expensive insurance. Nevertheless, you can say the words. Making regulation more expensive makes it more difficult – perhaps even impractical.

But you can’t say these words if you believe that there should be any meaningful limit on the commerce power. There are all sorts of noneconomic activity that will frustrate a regulatory scheme – if by frustrate you mean raising the cost of regulation. If I don’t eat right or exercise, I will almost certainly require more health care. If I don’t use available resources to buy a new form of hybrid, insufficient demand will leave the cost of these vehicles high interfering with Congress’ attempt to reduce carbon emissions produced by interstate commerce. If I save – and do not spend – my resources, I may frustrate an economic stimulus package.

There are a number of legal academics supporting the constitutionality of the mandate who will admit that these justifications for the mandate offer no limiting principle – and they don’t care. As noted above, they say that there ought not to be any limit on Congressional authority other than those set forth in the Bill of Rights or, perhaps, by some notion of substantive due process.

But a majority of the Court seems to believe otherwise – I would say for very good reasons – and this is why Solicitor General Verelli was in so much trouble in the oral argument. Unless a majority of the Court can find a persuasive and substantial limiting principle that he could not suggest, the individual mandate will not survive.

There are many fascinating aspects of the story, including the recently uncovered evidence of what exactly caused the ship to sink — not a massive gash in its hull, as had long been supposed, but rather a buckling of the plates over five compartments, due in part to the failure of potentially substandard rivets. For want of a rivet, the Titanic was lost. And there’s also the interesting question of why there was so little panic among the passengers as the ship went down. But I want to focus on one that I’m fairly sure is not going to get covered this week: the connection between the sinking of the Titanic and our modern Electronic Communications Privacy Act, the federal law that makes it a crime to intercept communications without either a court order or the consent of one of the parties.

The connection stems from the role of “wireless telegraphy” — radio, as it’s now known — in the Titanic disaster. Earlier on the day of the disaster, the Titanic had received no less than 6 messages over the wireless warning of ice, but only three of those made it to the bridge. The final warning, at 10:30pm local time, from the SS Californian, stated that the Californian was stopped for the night, stuck in an ice field nearby; but the Titanic‘s radio operator cut off the message with his reply: “Shut up! Shut up! I’m working Cape Race!”, meaning that he was attempting to communicate with the wireless telegraph station at Cape Race, Newfoundland, and the Californian‘s transmissions were interfering. At 11:30pm, the Californian‘s sole wireless operator turned off the set and went to bed. At 11:40pm, Titanic struck its iceberg, and at 12:05am, began transmitting distress calls — at first CQD, but later a newer distress call coming into vogue: SOS. The Californian, its wireless set turned off, received none of those. Instead, the captain of the Californian repeatedly tried to signal the passenger liner it had seen to the south by lamp, but there was no reply.

This failure to communicate seems scandalous, and it was seen that way at the time, but it is partly explained by the novelty of radio in 1912. The wireless operators on the Titanic were not part of the ship’s crew; they were employees of the Marconi Wireless Telegraph Company, and their primary job was to convey private messages to and from the ship’s passengers. They passed on the iceberg warnings to the bridge as a favor, but obviously the Titanic‘s operators did not view such ship-related tasks as their core mission. Similarly, the Californian‘s wireless operation was hardly viewed as an essential ship function; that explains why the radio went unattended after 11:30.

That would all change in the wake of the Titanic disaster, and finally we come to our connection to the Electronic Communications Privacy Act. Within a week of the sinking, a U.S. Senate subcommittee began an investigation. Among the problems cited was the failure to use wireless telegraphs effectively. The result was the Radio Act of 1912. The 1912 Radio Act required radio operators to be licensed, and set up a detailed set of regulations, mostly pertaining to distress calls. (It even specified the distress call to be used: “. . . – - – . . .”) But it also contained a provision prohibiting radio operators from “divulg[ing] or publish[ing] the contents of any messages transmitted or received by such station, except to the person or persons to whom the same may be directed, or their authorized agent, or to another station employed to forward such message to its destination, unless legally required so to do by the court of competent jurisdiction or other competent authority.” This was the first federal electronic communications privacy statute passed in the United States. (Several states had already passed laws protecting ordinary landline telegraph messages.)

But events were already overtaking Congress’s attempt to regulate in this area. In 1912 the technological breakthrough that would allow radio to become a mass media force was just emerging: the triode vacuum tube, which made it possible to amplify a radio signal in a receiving set so that the listener could hear voices and sounds, and not simply interruption of the signal. In other words, the triode made the devices that we now call “radios” practical. By the 1920s, the first broadcasts of sounds over the air were being made to receiving sets owned by members of the public. In order to account for the exploding popularity of radio, Congress passed the Radio Act of 1927, regulating the new industry.

In the course of doing so, Congress updated, but did not fundamentally alter, the privacy provision for the wireless telegraphs that were still being sent, again requiring radio operators to preserve the secrecy of telegrams. But it also, essentially for the first time, inserted a general prohibition against the interception of private communications: “[N]o person not being authorized by the sender shall intercept any message and divulge or publish the contents, substance, purport, effect, or meaning of such intercepted message to any person….” “Intercept” was not defined, but it is often used as a term for someone other than the intended recipient obtaining a radio communication as it is being transmitted. Interception of a radio telegram means to acquire a signal — i.e., tune into the frequency on which it is being transmitted using some sort of receiver — and then obtain the contents by listening to it and decoding it. Section 605 of the Communications Act of 1934, passed seven years later, generalized the interception prohibition to “any interstate or foreign communication by wire or radio.”

The 1934 Act began a pattern that has troubled regulation of electronic communications privacy ever since: the re-use of old statutory language in new contexts. “Intercept” was clear enough for radio transmissions, but what does it mean to intercept a telephone call? Is it intercepted when someone overhears one side of the conversation, or listens in on an extension telephone, or attaches a recorder to the line with one party’s consent? The courts struggled with questions like those for three decades, until the modern Wiretap Act was adopted in 1968. The Wiretap Act defined “intercept” as “the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4). So “acquisition” is officially in the definition now, but instead of defining the means of getting access to the communication — acquiring a signal — “acquisition” refers to the act of listening after access (“aural” means relating to the ear or sense of hearing). The only limitation on access in the definition is that it involve some sort of device.

So what about listening to a lawfully made recording of a conversation without the consent of a party? Is that an interception? Courts have held that it is not, on the theory that it would create far too many practical problems in enforcing the Act — it would be difficult to know in advance if listening to a recording was legal or not, and it would create innumerable potential violations arising from a single recording. Courts therefore distinguish such “aural acquisitions” by listening to a recording from others that do fall within the definition. But in order to do that, courts had to read in a requirement that the interception be “contemporaneous” with transmission. This has become particularly problematic after yet another amendment that largely left the statutory language in place — the Electronic Communications Privacy Act, passed in 1986. The ECPA broadened the Wiretap Act so that it included email, but only through minimal rewording of the existing Wiretap Act. In particular, the definition of “intercept” was altered to refer to “aural or other acquisition of the contents of any wire, electronic, or oral communication” through the use of a device. It’s not clear how the “contemporaneousness” requirement, introduced to exempt listening to recordings, fits with the typical way in which email communications are surveilled. The easiest way to monitor someone’s email is to make a copy of it as it sits in some intermediate, temporary storage somewhere on a computer network. Does it “acquire” an email to make a copy of it as it sits in memory on a router or other device en route to the recipient? Some courts have said no, others yes.

Congress has been toying with amending the ECPA for at least a year. One thing it could do to make the statute clearer is finally lay the ghosts of the Titanic to rest, and make the language fit for technology in 2012 rather than 1912.