Westlaw Classic Going Away Soon

I understand from emails I received that Westlaw Classic is going away on July 1, 2014.  It was last summer when the folks at Three Geeks and a Law Blog noted that WestlawNext Accounted for 80% of the Westlaw revenues.  The post there predicted Classic would go away at the end of 2014.  That was almost right, but certainly right enough for a prediction.

I remember the WestlawNext introduction tour.  I wasn’t sure about WestlawNext at the time.  The “Google”-ization of the search box was an interesting concept.  I wasn’t keen on it then because the new platform seemed more search oriented than browse and search.  That has changed over time with various interface adjustments.  Gone, for example, is the need to put a prefix before a search to indicate that it was Boolean.  I still use the Classic platform on occasion for some tasks.  There is the familiarity factor at work here.  I won’t necessarily miss Classic when it goes away.  WestlawNext is pretty solid at this point.

Turning to Westlaw’s competitor, Lexis has seemed to go in the opposite direction with the LexisAdvance interface.  I thought it was a good product when it was introduced.  The standard database list was available along with a souped up search box.  That changed essentially into the interface we have now.  I know that Lexis has received its share of withering comments over Advanced.  I certainly have made my thoughts clear to the company.  I could elaborate here but there is no point.  I am aware that Lexis is beta testing a new interface that it says addresses customer concerns.  The last target date I heard for release was sometime this summer.  My attitude is that I would prefer the company to get it right than put out an improvement that still needs significant work.  – Mark

Supreme Court Action: Pre-emption of Common Law Under the Airline Deregulation Act

The second case decided by the Supreme Court last Wednesday us Northwest, Inc. v. Ginsberg (12-462).  It concerns whether the Airline Deregulation Act pre-empts state common law claims, here a claim for violating the implied covenant of good faith and fair dealing, against an airline when the airline revokes membership in a frequent flyer program.

Rabbi S. Binyomin Ginsberg became a member of Northwest’s WorldPerks program in 1999, and as a result of extensive travel on Northwest flights, he achieved “Platinum Elite” status (the highest level available) in 2005.  The agreement language for the plan gave Northwest the sole discretion of determining abuse.  Rabbi Ginsberg apparently filed numerous complaints based on the quality of services he received.  Northwest gave him program benefits due to his complaints.  Northwest, however, terminated his membership in the program in 2008 for abuse.  The details of the complaints and Northwest’s responses are in the opinion.

Rabbi Ginsberg sued on four counts:  (1)  Northwest had breached its contract by re­voking his “Platinum Elite” status without valid cause; (2) Northwest violated the duty of good faith and fair dealing because it terminated his membership in a way that contravened his reasonable expectations with respect to the manner in which North­west would exercise its discretion; (3) he asserted a claim for negligent misrepresentation; and (4) he alleged intentional misrepresenta­tion.   The action sought class action status.

The District Court dismissed the complaint as pre-empted by the Airline Deregulation Act.  Rabbi Ginsburg appealed only the dismissal of the duty of good faith and fair dealing claim to the Ninth Circuit.   That Court reversed on circuit precedent holding that the claim was too tenuous to be related to the objectives of the Act.  The Supreme Court reversed.

The language of the Act pre-empts state regulation in areas of “price, route, or service of an air carrier.”  The Court, reviewing its precedent, noted that the pre-emption language should be interpreted broadly.  Common law claims easily fell into the statutory language of “law[s], regulation[s], or other provision[s] having the force and effect of law,” with “provisions” covering common law claims.  The Court stated that reward programs did affect rates as benefits included perks that could be redeemed for tickets and upgrades.  Minnesota law, which governs here, does not allow contracts to write out the provision of good faith and fair dealing.  This makes it a component of state law.

The Court noted further that the breach of contract claim is invoked from a private agreement rather than an obligation imposed by the State.  As such, Rabbi Ginsberg may have prevailed in that claim had he appealed its dismissal.  He did not and that issue was not before the Court.  Justice Alito delivered the opinion for a unanimous Court.  – Mark

Supreme Court Action: Elections And Money

For those who have been wondering why there have been gaps in the posting, it’s because I’ve been dealing with major medical issues that came to a head last week.  I hope to ease back into regular coverage of those items I think are interesting.  With that, let’s head back to last Wednesday where the Supreme Court issued two opinions. 

The first of these is McCutcheon v. Federal Election Commission (12-536).  McCutcheon contributed to political campaigns within the guidelines established by the e Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA).  These establish two limits on contributions.  One is a limit on how much a contributor can give to an individual or political advocacy group.  The second is a limit of the aggregate contributions.  It is the latter that was challenged in court. 

The Court’s jurisprudence instructs that the purpose of FECA is to prevent quid pro quo corruption and it’s appearance, and is sufficiently related to an important governmental purpose to survive a First Amendment challenge.  The Court, however, has narrowed the mechanisms related to serve that purpose.  In this case the statutory aggregate limits were struck down as violating the First Amendment.  There may be differing views on how lobbying, for example, may be related to the appearance of public corruption, but the Court endorses it as central to democracy:   

In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit political speech. We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access . . . are not corruption.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 360 (2010). They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns. 

I need not go into the rationale the Court uses to reach the conclusion that limits on aggregate political contributions violate the First Amendment.  The case has generated quite a bit of commentary in the popular press.  I recommend these selected stories and commentary: 

The New Yorker:  The John Roberts Project (by Jeffrey Toobin) 

I’ll address the second case tomorrow. –Mark

Supreme Court Action: Misdemeanors And Firearms, FICA, and Lanham Act Standing

The Supreme Court issued one opinion on Wednesday and two on Tuesday.  The case from Wednesday is United States v. Castleman (12-2371).  Castleman pleaded guilty in Tennessee to the misdemeanor offense of having “intentionally or knowingly cause[d] bodily injury to” the mother of his child.  Federal authorities discovered that Castleman was selling firearms on the black market.  He was indicted on a variety of charges including a violation of 18 U.S.C. §922(g)(9) which forbids the possession of firearms by anyone convicted of “a misdemeanor crime of domestic violence.”  The question before the Court was whether the domestic violence conviction qualified as a conviction to invoke §922(g)(9).

Castleman argued that his conviction did not qualify as a misdemeanor crime of domestic violence because it did have the use of physical force as an element.  The District Court agreed that physical force for purposes of the federal statute must entail violent contact with the victim.  The Sixth Circuit affirmed, though it equated physical force as the same as required under a related statute, the Armed Career Criminal Act (ACCA), and a Supreme Court case, Johnson v. United States, 522 U.S. 133 (2010),  that interpreted “violent felony” under the ACCA.  The Sixth Circuit found that Castleman’s conviction for domestic violence did not qualify as a misdemeanor offence under this analysis.

The Supreme Court reversed, holding that Congress incorporated the common-law meaning of “force” which could be offensive touching.  This would support a common-law battery conviction.  Domestic violence can include acts which would not be characterized as “violent” in a nondomestic context.  Congress intended the use of the words “domestic violence” as a term of art in the statute.  Castleman’s other arguments which relied on legislative history and Court doctrines were rejected.

Justice Sotomayor delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Kennedy, Ginsburg, Breyer, and Kagan.  Justice Scalia filed an opinion concurring in part sn concurring in the judgment.  Justice Alito filed an opinion concurring in the judgment and was joined by Justice Thomas.  Justice Scalia would have reached the same conclusion as the majority on narrower grounds.

The first case from Tuesday is United States v. Quality Stores, Inc. (12-1408).  The issue is whether severance payments given to employees involuntarily terminated due to Quality Store’s bankruptcy are exempt from FICA withholding.  Quality Stores made payments to severed employees according to various plans and reported the payments as wages on W-2 forms.  The company also withheld taxes and FICA contributions in making payments.  It later sued on behalf of itself and its employees for the return of that money.  The Bankruptcy Court, the District Court, and the Sixth Circuit Court of Appeals held for Qualities Store.  The Supreme Court reversed.

The Court examined the FICA statute’s definition for wages and stated that severance payments easily fell into the description:

FICA defines “wages” as “all remuneration for employment, including the cash value of all remuneration (including benefits) paid in any medium other than cash.” §3121(a). The term “employment” encompasses “any service, of whatever nature, performed . . . by an employee for the person employing him.”  §3121(b).

The Court noted that statutory exemptions from FICA included severance pay granted when an individual retires due to a disability.  This was specific enough to conclude that general severance pay was not exempt from FICA withholdings.  Similar historical changes to the Act and parts of the IRS Code further supported the Court’s opinion.  Justice Kennedy delivered the opinion of the Court and was joined by all members except Justice Kagan who did not participate in the case.

The second case from Tuesday comes from the Sixth Circuit as well.  It is Lexmark Int’l Inc. v. Static Control Components, Inc. (12-873).  Lexmark sells printer cartridges for its printers that contain chips which limit them as the only cartridge that work in Lexmark printers.  Lexmark had a program in place that gives consumers incentives to return used cartridges to Lexmark (the “Prebate” program) so they may not be used by third party “remanufacturers.”  Static Control manufactures chips which mimic those of Lexmark’s allowing remanufacturers to bypass cartridge controls set in place by Lexmark.  Lexmark sued Static Controls for copyright violations.

Static Control countersued for violations of the Lanham Act.  The Act authorizes suit for misleading statements or representations of fact.  The allegations of Static Control’s counterclaim are that Lexmark mislead consumers into thinking they had to legally return cartridges under the Prebate program; further, Lexmark sent letters to remanufacturers advising them that it was illegal to use Static Control’s chips to refurbish Lexmark cartridges.

The District Court dismissed the counterclaim.  The Sixth Circuit reversed, though it used a different test to determine whether Static Control had standing to bring the Lanham Act claim.  There were three competing options within the Circuit Courts:

[The Sixth Circuit] observed that the Third, Fifth, Eighth, and Eleventh Circuits all refer to “antitrust standing or the [Associated General Contractors] factors in deciding Lanham Act standing,” as the District Court had done. Id., at 410 (citing Conte Bros. Automotive, Inc. v. Quaker State-Slick 50, Inc., 165 F. 3d 221, 233–234 (CA3 1998); Procter & Gamble Co. v. Amway Corp., 242 F. 3d 539, 562–563 (CA5 2001); Gilbert/Robinson, Inc. v. Carrie Beverage-Missouri, Inc., 989 F. 2d 985, 990–991 (CA8 1993); Phoenix of Broward, Inc. v. McDonald’s Corp., 489 F. 3d 1156, 1162–1164 (CA11 2007)). By contrast, “[t]he Seventh, Ninth, and Tenth [Circuits] use a categorical test, permitting Lanham Act suits only by an actual competitor.” 697 F. 3d, at 410 (citing L. S. Heath & Son, Inc. v. AT&T Information Systems, Inc., 9 F. 3d 561, 575 (CA7 1993); Waits, supra, at 1108–1109; Stanfield v. Osborne Industries, Inc., 52 F. 3d 867, 873 (CA10 1995)). And the Second Circuit applies a “‘reasonable interest’ approach,” under which a Lanham Act plaintiff “has standing if the claimant can demonstrate ‘(1) a reasonable interest to be protected against the alleged false advertising and (2) a reasonable basis for believing that the interest is likely to be damaged by the alleged false advertising.’” 697 F. 3d, at 410 (quoting Famous Horse, Inc. v. 5th Avenue Photo Inc., 624 F. 3d 106, 113 (CA2 2010)). The Sixth Circuit applied the Second Circuit’s reasonable-interest test and concluded that Static Control had standing because it “alleged a cognizable interest in its business reputation and sales to remanufacturers and sufficiently alleged that th[o]se interests were harmed by Lexmark’s statements to the remanufacturers that Static Control was engaging in illegal conduct.” 697 F. 3d, at 411.

Lexmark argued the case on “prudential standing,” or as the Court put it:

“‘the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff ’s complaint fall within the zone of interests protected by the law invoked.’”

The Court stated that Static Control’s allegations fell within the zone of interest that the statute authorizes.  The Court’s analysis of the Lanham Act statute language shows that it protects false advertising in a commercial (as opposed to consumer) context.  Further, Lexmark’s statements to other remanufacturers can be considered as proximate cause of Static Control’s business losses.  Static Control has stated a claim under the Lanham Act though must still prove its allegations at trial.  Justice Scalia delivered the opinion for a unanimous Court.  – Mark

White House Office of Science and Technology Orders Agencies to Develop Policies on Open Access to Science Collections

The federal government wants to make its physical scientific collections accessible through consistent policies that are used to manage those collections.  A memorandum to that effect was issued yesterday by the Office of Science and Technology Policy Director John P. Holden.  I’m quoting part of the directive:

a) Develop and clearly describe procedures for making scientific collections more accessible to educators and researchers, including non-Federal scientists, to maximize public benefit.

b) Work with the Smithsonian Institution to ensure that information on the contents of and how to access the agency’s scientific collections is available on the Internet in a central Federal clearinghouse and to maintain participation in the Federal clearinghouse once it is established.

c) Use machine-readable and open formats, data standards, and common-core and extensible metadata for all new information creation and collection to facilitate search and discoverability and provide clear public guidance for accessing collections materials, consistent with the Executive Order on Making Open and Machine Readable the New Default for Government Information.

d) When available and where not limited by law, make freely and easily accessible to the public all digital files in the highest available fidelity and resolution, including, but not limited to, photographs, videos, and digital 3D models, and associated records and documentation, describing or characterizing objects in government-managed scientific collections.

e) Associate digital files describing or characterizing scientific collections with the agency’s collections catalog and the central Federal clearinghouse referenced in Section 3(b) of this memorandum. By default, this information should be in machine-readable and open formats.

The complete memorandum is here.  A press release from the OSTP describing the memorandum is here. – Mark

Short Takes On The News: Digitizing the Vatican Library, the Good Law School Classes, and Public Privacy

The Vatican has announced that it will digitize manuscripts contained in the Vatican Library that date back to the very beginning of the Church.  Some 1.5 million pages will be digitized and placed online over the next four years.  NBC News has more details on the project.  Some of the libraries holdings were microfilmed during World War II when it was thought that Rome would be bombed.  The film now resides at St. Louis University in Missouri, of all places.

The Volokh Conspiracy asks the magic question “What law school classes have you found especially useful for your practice of law?”  There are 25 responses as of this writing and most of them identify courses such as evidence, legal writing, constitutional law, criminal law and procedure, civil procedure, and other substantive classes.  No one (so far) has identified practice oriented classes such as trial advocacy or clinical experience.  Then again, no one has identified what I call the “touchy feely” classes—those that are based in legal philosophy or social sciences.

Those interested in privacy, especially in the context of filming police officers on duty in a public place might find interesting two decisions from the Illinois Supreme Court.  Illinois has criminalized such conduct with a statute deemed on of the toughest in the nation.  The Seventh Circuit Court of Appeals upheld a determination that the statutes are likely unconstitutional.  See A.C.L.U. v. Alvarez, 679 F.3d 583 (7th Cir. 2012).  The Illinois Supreme Court also found the statute to be unconstitutional and an overbroad burden on speech.  This is from the summary of People v. Melongo 2014 IL 114852:

In this decision, the supreme court said that its analysis was guided by its holding in People v. Clark, 2014 IL 115776, announced on the same day as this case, in which the court held the eavesdropping statute violative of the first amendment to the United States Constitution under the overbreadth doctrine. Here, the supreme court said again that the statute is simply too broad in deeming all conversations to be private and not subject to recording absent consent, even if the participants have no expectation of privacy, and in also criminalizing the publication of those recordings. All of this burdens substantially more speech than is necessary to serve any legitimate interest in protecting conversational privacy, making the statute invalid on its face. This defendant cannot constitutionally be prosecuted for divulging the conversations she recorded.

Both Melongo and Clark were decided without dissent.  – Mark

Short Takes On The News: Tenure, Wikipedia, Campaign Finance, and Viacom Settles With Google

The ABA Council on Legal Education and Admissions to the Bar met over the weekend.  The Council decided to leave the faculty tenure requirement in place.  The news that the Council had considered weakening it to a requirement of job security met with intense opposition from individual faculty and the Association of American Law Schools.  Readers will probably know that I was in favor of the change because I believe it would law school administrations more flexibility in dealing with law school costs in times of lower enrollment (like now).  The National Law Journal published details surrounding the decision as well as a few others made at the meeting.

Harvard is seeking a Wikipedian in Residence.  That person, according to an article in The Atlantic, is “someone who can serve as a kind of liaison between Wikipedia and the academic, cultural, and intellectual institutions whose source material its entries rely on.”  That would be Harvard and its collections in this case.  Other major institutions such as the British Museum have such a person in place.  I think it’s a great idea though I wonder how the Wikipedia community will take to the idea.  There have been situations in the past where pages became battlegrounds between historians and the editors.

Salon features a story about McCutcheon v. FEC which is an election case pending before the Supreme Court.  The question presented is:

Federal law imposes two types of limits on individual political contributions. Base limits restrict the amount an individual may contribute to a candidate committee ($2,500 per election), a national-party committee ($30,800 per calendar year), a state, local, and district party committee ($10,000 per calendar year (combined limit)), and a political-action committee (“PAC”) ($5,000 per calendar year). 2 U.S.C. 441a(a)(1) (current limits provided). Biennial limits restrict the aggregate amount an individual may contribute biennially as follows: $46,200 to candidate committees; $70,800 to all other committees, of which no more than $46,200 may go to non-national-party committees (e.g., state parties and PACs). 2 U.S.C. 441a(a)(3) (current limits provided) (see Appendix at 20a (text of statute)). Appellants present five questions:

1. Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national-party committees.

2. Whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest.

3. Whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially.

4. Whether the biennial limit on contributions to candidate committees, 2 U.S. C. 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

5. Whether the biennial limit on contributions to candidate committees, 2 U.S.C. 441a(a)(3)(A), is unconstitutionally too low.

If one hated Citizen United for striking down contribution limits, one will hate this case as well if the Court strikes down the remaining limits.  On the other hand, plutocrats with political interests everywhere should rejoice.

And finally, the Google/Viacom battle over alleged YouTube copyright violations was settled according to news reports.  Viacom lost twice at trial on the DMCA safe harbor provisions that YouTube claimed.  It took seven years to get to this point.  I’ve often said win, lose, or settle, the lawyers get paid.  CNET News has a good analysis of the case.  – Mark

A Peek Inside the Inbox

As a writer for the Blog I get a tremendous amount of press releases and other publicity information in my inbox.  Sometimes the subjects are interesting enough to lead to a post.  Other times the subject is interesting but not viable to publish.  I obviously act as the filter here.  Since it’s Friday, usually the day I can wander subjectively, I thought I would share some of these items with readers.

For example, Senator Barbara Boxer tells us that she testified before the Senate Rules and Administration Committee on the 10th of March on the LINE Act.  She introduced the legislation with Senator Ben Nelson.  It would require states to minimize waiting time at polls for voters by developing contingency plans when lines are long.  It targets states where long lines frustrated voters. Her video testimony is here, and more details about legislation are here.  I should mention that I am an avid reader of political stories though I tend to keep my opinions mostly to myself when it comes to the Blog.  I reserve my snarky comments to the comment sections for these stories.

I get offers to review books or articles that go somewhat afield of the law but are interesting nonetheless.  Here are several titles I could have received as review copies:

  • World War I For Kids by R. Kent Rasmussan (Chicago Review Press, 2014).  The release notes that this is the 100th anniversary of the beginning of WWI.  The book description:  With vibrant illustration and original images, hands-on activities, and clear explanations on everything from how the war began to how United States’ entry into the war helped end it, World War I for Kids pinpoints the war’s impact on later historical events and encourages critical thinking. Instead of offering a laundry list of battles, names, and dates, Rasmussen notes that “it is more important to know what events were truly significant, why they happened as they did, and how they were connected with one another.”  I love watching stuff about World War I on what used to be the History Channel.  I watched one of the Channel’s documentaries on the Battle of Jutland on DVD recently.  Great stuff.  It’s a pity they don’t do more of it.
  • As I write this piece, Oxford University Press sent this to my inbox:  Oxford University Press recently published Dealing with Losers: The Political Economy of Policy Transitions, by Michael J. Trebilcock. This book explores the political economy of transition cost mitigation strategies in a wide variety of policy contexts including public pensions, U.S. home mortgage interest deductions, immigration, trade liberalization, agricultural supply management, and climate change, providing tested examples and realistic strategies for genuine policy reform.
  • Routledge sends this:  There is a threat to preserving the historical record of the Northern Ireland Troubles which may be as hazardous as any fire or flood. In a new article published in the journal Archives and Records James Allison King warns that the fallout from a recent intervention by the British Government risks silencing people’s accounts that would otherwise have been put on record.  In his paper, “‘Say nothing’: silenced records and the Boston College subpoenas”, King examines the ‘Belfast Project’ at Boston College, a ground-breaking oral history endeavour in which interviews gave valuable and previously unheard accounts of the Irish conflict. Those contributing were promised that the recordings wouldn’t be released until after their death. However, investigations by the Police Service of Northern Ireland’s Historic Enquiries Team into the 1972 murder of Jean McConville intervened. This resulted in the relevant interviews being subpoenaed by the US Federal Government at the request of the UK. An ongoing court battle has succeeded in limiting the number of oral histories to be released for now.  Read the article online here.  Readers know that I’ve covered the troubles at Boston College’s archive on this issue.
  • West Academic Publishing sent this:  Graduation time is just around the corner!  Coming next month is an indispensable volume of wisdom and advice for law students of all ages written by Paula A. Franzese, a nationally-acclaimed educator and unprecedented ten-time recipient of the Professor of the Year Award.  A Short & Happy Guide to Being a Law Student (West Academic Publishing March 2014) is a daily companion for school, work and life, Franzese shares essential wisdom on how to be one’s best and features five guideposts for success as well as priceless advice on how to succeed in class, on exams, on job interviews, at work and in relationships.  March 3, 2014 | West Academic Publishing | ISBN-978-0-314-29107-3 | Paperback | 293 pages | $17.00.

There is a press release that announces that  George Washington University created a highly informative infographic detailing a paralegal career titled,  “Changing the Legal Landscape: The Evolution of the Paralegal”  The over-saturation of the legal landscape is leaving eager law school graduates struggling to find suitable positions. With the decreasing employment rate for lawyers, one facet of this field is on the rise—paralegals. Due to their flexibility in working in a variety of areas of law and affordable starting salary compared to lawyers, paralegal careers are rising exponentially. Many attorneys thrive in the roles of managers, planners, and strategists, while paralegals tend to be very detail oriented and succeed as technicians and fact experts.

Readers may not know that I have lectured in commercial CLE programs aimed at paralegals.  The ABA and others have discussed the idea that law schools should consider creating programs that educate students in aspects of the law without leading to a J.D.  I believe law schools should be naturals at educating paralegals rather than leaving it to a separate program.

Finally, our friends at the American Library Association make this announcement:

On Friday, March 14, 2014, the American Library Association (ALA) will award President Barack Obama’s Review Group on Intelligence and Communications Technologies the 2014 James Madison Award during the 16th Annual Freedom of Information Day at the Newseum in Washington, D.C. The Presidential Review Group will receive the award for calling for dozens of urgent and practical reforms to the National Security Agency’s unlawful surveillance programs.

“The Review Group’s recommendations are aligned with the American Library Association’s commitment to maintaining public access to government information,” said Barbara Stripling, president of the American Library Association. “Thanks to the steadfast commitment of this group, impractical reforms to the government’s unconstitutional surveillance practices may soon be on the horizon.”

The full press release is here.

Thanks for reading.  And to all the press officers out there, keep sending the stuff.  I may do more of these posts every now and then.  – Mark

Some Thoughts On The 25th Anniversary of the Internet

The Internet turned 25 years old today.  At least that is what several articles in the press are reporting.  That anniversary is somewhat in dispute, but hey, crowdsourcing is never wrong, right?  The news report on the local CBS radio outlet pointed out that anyone under 25 would not know a time without the Internet.  Well, duh.  Perspectives change.  I never knew a time without television, radio, telephones, cars, or any of the other technological advances that allow individuals to roam and communicate freely.  It’s evolution.  Anyone remember the telegraph?  Think of Morse code as packets sent over a wire to a receiving station, though a bit more manual than what we are used to today.  Evolution.

The Internet itself has evolved.  I don’t need to go into things like Gopher sites (remember them?).  I remember complaints in the early days when advertisers and merchandisers established web sites to sell us stuff.  Some believed this was the wrong direction for a medium with such a strong educational potential.  The Internet is now an enthusiastic marketing paradise for consumers and companies alike.  Education is in fact one of the products.

I want to harken back to a few events at the dawn of the Internet age that come to mind when these anniversaries pop up.  I don’t know if anyone remembers Usenet.  It was (and is still is) a global discussion board for all kinds of topics.  Law academics and technologists would use it to share ideas about the distribution of legal materials.  The discussions were substantive and interesting.  A message appeared in 5,000 newsgroups one day in April, 1994 from the law practice of Cantor and Siegel.  It offered firm services in regard to a green card lottery.  The discussion groups exploded in outrage.  My point about this is outrage or not, spam should join the terms death and taxes as certainties.  Wikipedia has more information about this.

The second event happened a little bit earlier.  Anyone remember Lotus 1-2-3?  It was the spreadsheet software of choice before Microsoft Excel hit the market.  Lotus announced in 1990 that it intended to sell CDs with contact and other demographic information for 120 million U.S. consumers.  It would include purchasing habits in the information set.  The collective outrage forced Lotus to cancel the project approximately one year later before any CDs were released.  Today the discussion focuses around how much of our information corporate collates.

I think we have more or less accepted the concept that we are tracked.  How secure that information is kept and who has access to it seems to dominate the conversation these days.  There are those, of course, who believe we shouldn’t be tracked at all.  I acknowledge their fight.  I think the best we can get is control over how our information is used in some form.  I’m not averse to being surprised in this policy fight, however.

My point for those 25 year olds who never knew a life without the Internet is simple.  You also may not have known an Internet without spam, without tracking, without government interference, without being characterized or classified.  Consider the cultural norms that have evolved with the Internet and decide if you’re happy with the trade-offs you accept for convenience.  The Internet wasn’t always the way it is now.  Some of those old norms still have value.  — Mark


Law School Rankings Are Out Today

The 2015 U.S. News law school rankings are out and available here.  Read ‘em and weep. — Mark

Supreme Court Action: Railroad Right-of-Ways

The Supreme Court issued one opinion this morning.  It concerns a land grant to a private individual subject to a right of way given to a railroad under the General Railroad Right-of-Way Act of 1875.  The question is who gets the land associated with the right of way when the railroad abandons the right-of-way?  The Government claimed that the subject land reverted back to federal control.  The current owners of the full parcel, in this case the Marvin M. Brandt Revocable Trust, claimed the right-of-way grant to the railroad was an easement that extinguished when it was abandoned.

The issue was litigated in federal district court where the judge held for the Government.  The Tenth Circuit Court of Appeals affirmed.  The Supreme Court reversed.  The history of the Act, the specifics land patent grant to the Brandts, the history of land grants generally, and the various changes to the legislation are contained in the opinion.  They are relevant for context, though the Court based its decision on a case decided some 70 years earlier where the Government argued the exact opposite of what argued in this case.  That earlier case is Great Northern R. Co. v. United States, 315 U.S. 262 (1942) where the Government stated “the 1875 Act granted an easement and nothing more.”

Though there had been changes to the Act over the years, its terms still applied. The Government wanted to limit the affect of Great Northern R. Co. on this dispute.  The Court stated that nothing had changed that required it to modify the earlier opinion.

The case is Marvin M. Brandt Revocable Trust v. United States (12-1173).  Chief Justice Roberts delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan.  Justice Sotomayor filed a dissenting opinion.

Friday Fun: Courtoons

The site does not appear to be updated past 2011, but the legally related cartoons are fun nonetheless if not seen before.  Personally, I’m hoping the Supreme Court takes a break so we can get on to other things.  Visit Courtoons.net here.  – Mark

Supreme Court Action: Interpreting Time Limits in the Child Abduction Treaty

The third opinion released by the Supreme Court on Wednesday is Lozano v. Montoya Alvarez (12-820).  The case involves the timing of filing a petition for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction.  The timing of the filing has consequences concerning the remedy available.  A petition filed within one year of the abduction allows the court to order the child return.  A petition filed after one year allows the court to order the child returned unless it is shown that the child is settled in its new environment.

The timeline in this case finds both parties living with their daughter in London until November 2008 when Montoya Alvarez left Lozano for a women’s shelter.  The mother and child left the United Kingdom in July of 2009 and ultimately settled in New York.  Lozano did not locate them until November of 2010.  He filed a petition for the return of the child in federal district court.  That court denied the petition as filed after the one year limitation and that the child was now settled in New York.  The Second Circuit affirmed.

The Supreme Court affirmed the decision.  The Court ruled that equitable tolling would not be applied in this case.  It noted that the treaty was a compact between nations and that American law, in this case equitable notions from the common law, could not be used to interpret the intent behind the treaty.  The enabling act passed by Congress does not address this issue and as such, does not apply to the issue of tolling the time to file a petition.  Further analysis describes the time limits set forth in the treaty language not to be a statute of limitations.  The rest of the opinion is consistent with these notions.

Justice Thomas delivered the opinion for a unanimous Court.  Justice Alito filed a concurring opinion and was joined by Justices Breyer and Sotomayor.  – Mark

Supreme Court Action: Aiding and Abetting and Arbitration in a Treaty Context

The Supreme Court has been busy in the last week.  Three more opinions were released earlier this morning.  The first of these is Rosemond v. United States (12-895).  Rosemond was part of a drug deal gone bad.  He was with others who planned to sell a pound of marijuana to two individuals.  The parties met and the buyers snatched the marijuana without paying for it and ran off.  The sellers gave chase.  Someone, possibly Rosemond, fired a gun in the general direction of the buyers.

The Government charged Rosemond with violating 18 U.S.C §924(c) which criminalizes armed drug deals.  The Government further charged Rosemond with aiding and abetting that offense under 18 U.S.C. §2.  The federal district judge gave jury instructions that covered the §2 charge and the jury found Rosemond guilty of aiding and abetting.  The real dispute is with the instructions given for the charge under §924(c).  The trial judge instructed the jury that Rosemond was guilty of aiding and abetting the §924(c) offense if he (1) “knew his cohort used a firearm in the drug trafficking crime” and (2) “knowingly and actively participated in the drug trafficking crime.”  Rosemond was convicted on the §924(c) charges and the Tenth Circuit affirmed.

The Supreme Court reversed as to the disputed instructions.  The Court held that the instructions required the Government to prove that Rosemond had advance knowledge that his cohort had a gun to satisfy §924(c).  The case was returned to the Tenth Circuit for further proceedings.  Justice Kagan delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Kennedy, Ginsburg, Breyer, and Sotomayor.  Justice Scalia joined the opinion with the exception of footnotes 7 & 8, presumably because these presented hypotheticals unnecessary to the disposition of the case.  Justice Alito filed an opinion concurring and dissenting in part and was joined by Justice Thomas.

The second case decided today is BG Group PLC v. Republic of Argentina (12-138).  It’s an arbitration case based on the terms of an investment treaty between the United Kingdom and Argentina.  The terms required disputes to be sent to the local courts and then to arbitration if no decision is rendered in 18 months.  BG Group belonged to a consortium that held a majority interest in MetroGAS which had an exclusive license to distribute natural gas in Buenos Aires.  The license provided that gas tariffs would be calculated in dollars and provide a reasonable rate of return.  Argentina changed its law to calculate the tariffs in pesos which caused losses rather than profits.

BG accused Argentina of violating provisions of the treaty and went directly to arbitration.  Argentina objected to skipping the local courts.  The arbitration panel said it had jurisdiction due to factors such as Argentina changing other laws which restricted access to its courts.  The panel ruled in BG Group’s favor.  Both Argentina and BG Group appealed the decision in federal district court in the District of Columbia.  Argentina wanted to overturn the decision and BG Group wanted to confirm it.  That Court affirmed the award.  The Court of Appeals reversed saying the U.S. Courts had to determined the rights under the treaty de novo  and should not give deference to the arbitrators conclusions.  It further held that BG Group had to use the Argentina courts first and then wait the 18 months before proceeding to arbitration.

The Supreme Court reversed.  It stated that the local litigation provision was up to the arbitrator to decide and courts should give deference to those decisions.  It said if the treaty were  an ordinary contract it would be interpreted against the parties intent.  Courts use presumptions to determine these intentions when the contract is silent about the threshold questions about arbitration.  One presumption is that courts decide “arbitrability” and arbitrators decide application of procedural preconditions for the use of arbitration.  The provisions at issue in this case are procedural giving the arbitrators the ability to decide whether there needed to be compliance with the treaty terms in light of the events.

The Court stated that treaties are essentially contracts between two countries and that calling document a treaty makes no difference to the analysis here.  The local litigation requirement in the text of the treaty  is not a condition of consent, nor is there any language that overcome a court’s presumptions.  Justice Breyer delivered the opinion of the Court and was joined by Justices Scalia, Thomas, Ginsburg, Alito, and Kagan.  Justice Sotomayor joined with the exception of Part IV-A-1.  She also filed an opinion concurring in the judgment.  Chief Justice Roberts filed a dissenting opinion and was joined by Justice Kennedy.

The third case is Lozano v. Montoya Alvarez (12-820).  The case covers time limits in which to initiate actions under the Hague Convention on the Civil Aspects of International Child Abduction.  I will summarize that opinion in a later post. –Mark

Supreme Court Action: Whistle-blowers and Sanctions for Fraudulent Litigation in Bankruptcy

The Supreme Court issued two opinions this morning.  They deal with whistleblower suits in the context of the Sarbanes-Oxley Act of 2002 and the power of a court to sanction a debtor under the Bankruptcy Code for inducing fraudulent litigation in an attempt to shield some of his debts.

The whistleblower case is Lawson v. FMR LLC (12-3).  The Sarbanes-Oxley Act of 2002 was passed as a reaction to the collapse of the Enron Corporation.  Lawson and Zang filed separate actions alleging adverse actions after reporting or questioning accounting methods (Lawson) or statements in draft reports to the SEC (Zang).  The both worked for private contractors related to the Fidelity family of mutual funds.  Fidelity is a publicly owned company without any employees.  It conducts business through its contractors.  The relevant portion of the Act reads:

“No [public] company . . . , or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of [whistleblowing or other protected activity].” §1514A(a) (2006 ed.).

The First Circuit ruled that the Act applied only to employees of public companies.  The Supreme Court reversed holding that the Act applied to a public company’s private contractors.  The Court stated that the plain language of the statute supports this interpretation.  It rejected arguments that this holding would allow employees of company officers and employees as remote as housekeepers and gardeners to be covered by the Act as theoretical.  The Court further analyzed the legislative history of the Act as well as precedent related to comparable provisions in the U.S. Code to support its conclusion.  It noted that most funds are structured as public companies without employees.  A contrary result would create a big hole in the enforcement scheme enacted by Congress.

Justice Ginsburg delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Breyer and Kagan.  Justices Scalia and Thomas joined as well in principal part.  Justice Scalia filed an opinion concurring in principal part and concurring in the judgment and was joined by Justice Thomas.  Justice Scalia believed that the Court’s invocation of legislative history was unnecessary for the result.  Justice Sotomayor filed a dissenting opinion and was joined by Justices Kennedy and Alito.

The bankruptcy case is Law v. Siegel (12-5196).  Law filed for Chapter 7 bankruptcy.  He claimed $75,000 as a homestead exemption under California law for the home which he valued at $363,348.  This is allowed by §522(b)(3)(A) of the Bankruptcy Code.  He also claimed that the sum of two voluntary liens on the house exceeded its value.  Siegel, the bankruptcy estate trustee, challenged these successfully as a fiction and incurred some $500,000 in legal fees to that end.  The Court allowed Siegel to assess Law’s $75,000 homestead exemption to cover some of the fees.  The Ninth Circuit affirmed.

The Supreme Court reversed, essentially stating that the Bankruptcy Court could not invoke inherent powers to sanction abusive litigation practices when prohibited by other parts of the Code.  §522 bars administrative expenses on the allowable homestead exemption.  The Court noted that no one had timely objected to the homestead exemption.  As such it became final before the surcharge was imposed.  The Court rejected other precedent as not controlling the case.  In spite of the burden to the bankruptcy trustee, the Court said there were other monetary sanctions the Bankruptcy Court could impose.  Justice Scalia delivered the opinion for a unanimous Court.  – Mark

Supreme Court Action: Protests at Military Bases and State Law Based Securities Class Actions

I was intending to write the summary of the Supreme Court’s most recent opinions released last week much earlier than when I published this post.  The delay was caused by a medical emergency in that my oldest cat, William, became comatose on Wednesday evening.  His condition continued to worsen and he had to be euthanized the following day.  He was 14 when he died.  He was a great companion, full of affection, and I will miss him.  Now, back to business.

The Court issued two opinions last Wednesday.  The first of these is United States v. Apel (12-1038).  Apel was convicted of violating 18 U.S.C §1832 which makes it a crime to reenter a military installation after being ordered not to by the officer in command.  The location here is the Vandenberg Air Force Base in California.  There are two highways which bisect the Base and these are fenced from the rest of the installation.  These exist by operation of an easement granted by the United States to California as the Base sits exclusively on federal land.  The Base commander has additionally set up an area to be used for peaceful protest adjacent to one of the highways.

The record shows that Apel went beyond the designated protest areas in 2003 and 2007 and trespassed on base property where he threw blood at the Base sign.  These actions resulted in convictions where he was incarcerated for a nominal amount of time.  He was specifically restricted from entering the base but ignored the Base commander’s order in 2008 and 2009.  He was completely barred from the base as a consequence, including the highway and protest areas.  Apel ignored that order and continued to use the protest area.  He was escorted off the base each time he appeared.

A Magistrate Judge fined Apel $355 dollars for his conduct in violation of §1382.  The District Court upheld the fines and that the conviction would not violate the First Amendment.  The Ninth Circuit reversed.  It held that the statute does not apply.  The government would have to prove it had exclusive right of possession and that the easement precludes enforcement of the statute for conduct in the protest area.

The Supreme Court reversed.  It held that the boundaries of the Base define the authority of the Base commander and that included the areas covered by the easement.  The Court rejected precedent that said the Government had no jurisdiction for off-Base housing:

But Phisterer only confirms our conclusion that §1382 does not require exclusive use, possession, or control. For there we interpreted “military station” to mean “a place where troops are assembled, where military stores, animate or inanimate, are kept or distributed, where military duty is performed or military protection afforded,—where something, in short, more or less closely connected with arms or war is kept or is to be done.” Id., at 222. To describe a place as “more or less closely connected” with military activities hardly requires that the military hold an exclusive right to the property.  Rather, “military duty” and “military protection” are synonymous with the exercise of military jurisdiction. And that, not coincidentally, is precisely how the term “military installation” is used elsewhere in federal law.

The Court further rejected Executive Branch documents stating that §1382 requires “exclusive possession” as these are not definitive as they may rely on law in flux.  These documents do not create rights and are not entitled to deference. The Court called the rest of Apel’s argument conclusory.  One point about the case is that the Court makes no ruling on the First Amendment issue lurking in the case.  The Court of Appeals never reached this issue and as such it is not before the Court.  The case was returned to the lower courts for further review.

Chief Justice Roberts delivered the opinion for a unanimous Court.  Justice Ginsburg filed a concurring opinion that was joined by Justice Sotomayor.  Justice Alito also filed a concurring opinion.

The other opinion filed last Wednesday is Chadbourne & Parke, LLP v. Troice (12-79).  It involves the application of the Securities Litigation Uniform Standards Act of 1998 (Litigation Act or Act) to class actions brought under state law against defendants who helped Allen Stanford effectuate his Ponzi scheme.  The Justice Department successfully prosecuted Stanford for fraud.  The Stanford International Bank was subject to $6 billion in fines.  The respondents, plaintiffs at trial, filed class actions against Stanford agents in Texas and Louisiana under each state’s law.  The Litigation Act prohibits large securities class actions brought under state law.

The relevant portion of the Litigation Act for this case is the phrase “misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security.”  The Act further specifies that the securities in question must be traded on a national exchange for the Act to apply.  The cases were consolidated in federal court where the District Court judge dismissed the actions. The judge concluded that the securities in this case were not “covered” securities nor traded on national exchanges. However, there were allegations that the securities were represented to be backed by “covered” securities.  This was enough of a connection to apply the Act and dismiss the action.  The Fifth Circuit reversed, holding that the connection was too tangential to apply the law.

The Supreme Court affirmed the Fifth Circuit largely on the basis of the statutory language compared to the alleged facts in the case.  It agreed that by statutory definitions that the Act did not apply when the securities in question were neither covered under the Act’s language nor traded on a national exchange.  The Court further stated that its holding is consistent with precedent.  A good portion of the opinion rebuts the dissent’s view that the holding in this case will diminish the Government’s ability to prosecute fraud cases under the various Securities Acts.

Justice Breyer delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Scalia, Thomas, Ginsburg, Sotomayor, and Kagan.  Justice Kennedy filed a dissenting opinion and was joined by Justice Alito.  –Mark

Supreme Court Action: Just a Short Summary With More To Come

The Supreme Court issued two opinions this morning.  They are United States v. Apel (12-1038), and Chadbourne & Parke LLP v. Troice (12-79).  The first case involves the authority of a base commander to bar individuals from access to a military installation under federal law.  The second case involves whether class action lawsuits based on state law for “uncovered” securities can proceed in light of a federal law that bars class actions by investors in some circumstances.  I will provide commentary on these decisions by tomorrow.

In other litigation worth noting, the Ninth Circuit released an opinion ordering Google/YouTube to take down the anti-Islamic film “Innocence of Muslims.”  The Appeals Court reversed the District Court denying the takedown.  The case raises the rarely litigated issue of whether an actor/actress retains a copyrightable interest in their work.  Again, more on this later.  –Mark

Supreme Court Action: Forfeiture, Warrantless Searches, and Personal Jurisdiction

The Supreme Court issued three opinions this morning.  They are Kaley v. United States (12-464), Fernandez v. California (12-7822), and Walden v. Fiore (12-574).  The Kaley case addresses the issue of pre-trial asset forfeiture when a defendant wants to use some of the money to hire a lawyer of choice.  The controlling federal statute allows a court to freeze s defendant’s assets prior to trial if they are subject to forfeiture upon conviction.

The grand jury indicted Kerri and Brian Kaley for reselling stolen medical devices and laundering the proceeds.  The Government filed a motion to freeze $500,000 in assets which the judge granted.  The Kaleys challenged the order as they wanted to use the money to hire an attorney.  The judge held a hearing on whether the money was traceable to the alleged crime and upheld the forfeiture order with the exception of $63,000.  The judge refused, however, to hold a hearing on the validity of the grand jury’s probable cause finding.  This was the basis for triggering the asset forfeiture under the statute.  The Eleventh Circuit affirmed.

The Supreme Court affirmed.  It stated that the grand jury’s finding of probable cause is conclusive and will not be challenged.  A finding of probable cause can be made reliably without an adversarial proceeding.  Further, if the indictment can affect the liberty of those charged, it can affect their property as well.  The Court cited precedent to show that there are no Fifth or Sixth Amendment violations in these circumstances even if it means the defendants cannot hire an attorney of choice.  In any event, the Kaleys are not entitled to a re-determination of the grand jury’s conclusions.  Justice Kagan delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Alito.  Chief Justice Roberts filed a dissenting opinion and was joined by Justices Breyer and Sotomayor.

The Fernandez case concerns whether a tenant can authorize a premise search without a warrant when an absent co-tenant had earlier refused consent.  Police suspected that Fernandez was the perpetrator of a robbery.  Police were directed to an apartment where Fernandez was said to be located.  They knocked on the door and were greeted by Roxanne Rojas.  She was crying, bruised, and carrying a baby.  The police removed Fernandez from the premises on suspicion of assaulting Rojas.  Fernandez objected to the police entering the apartment.  He was taken to a police station.

An officer returned to the apartment later in the day and received oral and written consent from Rojas to search the apartment.  The police found evidence that linked Fernandez to the robbery.  Fernandez moved to suppress the evidence.  The trial court denied the motion and ultimately found Fernandez guilty.  The California Court of Appeal affirmed.

The Supreme Court affirmed.  The Court stated that the general rule is that a tenant can consent to a valid warrantless search in the absence of a co-tenant.  Fernandez argued that he had initially objected to the search when he was present in the first encounter and that should be valid until he changed his mind.  He further argued that his absence was caused by his removal and arrest by the police.  As to the first argument, it does not square with precedent which sought to avoid a formalistic rule on duration and scope of procedures necessary to define an objection.  Essentially, absence is enough, even if the police caused the absence.  Earlier precedent suggesting that police could avoid objections by removing the tenant only applies in cases where removal is not objectively reasonable.  That is not the case here.  Justice Alito delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Breyer.  Justice Ginsburg filed a dissent and was joined by Justices Sotomayor and Kagan.

The Walden case concerns the application of personal jurisdiction over an out-of-state defendant. Walden was a police officer working as a deputized DEA agent at a Georgia airport.  He searched Fiore’s luggage as well as that of Fiore’s companion and seized $97,000 in cash from the two.  He advised them that the money would be returned later if the source of the cash was legitimate.  Walden was tipped about this from DEA agents in Puerto Rico who had initially examined the luggage at the airport there.  Fiore explained that these were casino winnings.  Fiore and his companion were cleared for their flight to Atlanta and ultimately to California.

Walden filed an affidavit of forfeiture with the U.S. Attorney’s Office.  Fiore objected to it as it contained misleading information and did not include statements about the lack of evidence for drugs or other contraband.  The DEA returned the money and no charges were filed.  Fiore and his companion filed a Bivens suit in Nevada on the basis of the encounters and Walden’s conduct in filing the affidavit.  The district court dismissed for lack of personal jurisdiction.  The Ninth Circuit reversed, at least in reference to the false probable cause in the affidavit aimed at Nevada residents.

The Supreme Court reversed.  It basically held that personal jurisdiction had to be established by contacts with the forum rather than contacts with plaintiffs.  Everything happened in Georgia.  Walden had no contacts with Nevada that would support extending jurisdiction to the Nevada district court.  Justice Thomas delivered the opinion for a unanimous Court.  Speaking of Justice Thomas, check out Jeffrey Toobin’s post, Clarence Thomas’s Disgraceful Silence, in The New Yorker.  –Mark

Supreme Court Action: Incompetence of Counsel When Using An Expert

[Note:  The link to the opinion seems to have changed since this morning.  Try getting it here.]

The Supreme Court issued one opinion today.  It involves whether counsel is competent under the standard of Washington v. Strickland, 466 U.S. 668 (1984) in the context of the selection and use of expert witnesses in a criminal trial.  The case is Hinton v. Alabama (13-6440).  Hinton was tried for murder stemming from a number of robberies at restaurants.  The managers at two restaurants were shot and killed while a third survived.  The surviving manager identified Hinton as the perpetrator.  The police search Hinton’s house and recovered a .38 caliber revolver belonging to his mother.

The State’s forensic experts concluded that all six bullets recovered from the crime scenes were shot from the same gun which they identified as the one recovered from Hinton’s residence.  Hinton’s attorney concluded that he needed expert testimony to counter that presented by the State.  He filed motions requesting money for that purpose.  The judge granted $1,000 as both he and Hinton’s attorney mistakenly believed the statute in effect capped the available fees that could be awarded.  The Judge invited Hinton’s attorney to file additional fee requests during the trial.  Hinton’s attorney did not take the Judge up on the offer.

The defense hired Andrew Payne as the best expert available for $1,000.  No other expert would take the case at such a low fee.  Payne’s qualifications were scant.  He testified in cases as an expert on firearms and toolmark identification just twice in the last eight years.  One of the two cases involved a shotgun rather than a handgun.  Payne testified that the barrel of the gun was corroded and that it was impossible to say with certainty that the bullets were fired from Hinton’s gun.  He also testified that the bullets did not match one another.

The State successfully attacked Payne’s credibility on his background and his analysis.  Payne’s expertise was in military ordinance and not firearm and toolmark identification.  His degree, awarded some 50 years before the trial, was in civil engineering.  Further, Payne sought assistance from one the State’s experts in using a microscope as he had only one functioning eye.   The jury ultimately convicted Hinton and recommended the death penalty.

Hinton filed a postconviction petition contending that his attorney’s handling of the expert and failure to request more money rendered him incompetent.  He produced three experts who were exceptionally qualified including one who had worked at the FBI forensic laboratory for 6 years.  The other two worked at the Dallas County Crime Laboratory and had testified in several hundred cases.  All of them stated that they could not conclude that the bullets had been fired from Hinton’s gun.  The Court denied the petition because the experts had not departed from Payne’s conclusion.

The Alabama Court of Criminal Appeals affirmed the denial.  The Alabama Supreme Court reversed.  It said the issue for the case was whether Payne was qualified to testify as a firearms expert.  The Circuit Court concluded that Payne was qualified under Alabama evidentiary rules.  The appellate court affirmed and the Alabama Supreme Court denied review.  Hinton petitioned the Supreme Court.

The Supreme Court examined the record and found that it was unreasonable for Hinton’s attorney not to seek further expert fees.  This was compounded by his belief that Payne was not a very good expert but felt he was stuck with Payne because of the $1,000 limitation.  The Court clarified how it viewed the situation:

We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” Strickland, 466 U. S., at 690. We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.

The Court reversed and remanded the case per curiam.  The moral of the story:  use legal research for due diligence.  –Mark

Upcoming Webinar of the Digital Public Library of America

OCLC Research is presenting a free webinar called “Inside the Digital Public Library of America” Presented by Dan Cohen.  From the description:

In this OCLC Research Distinguished Seminar Series presentation, Dan Cohen goes behind the scenes to discuss how the DPLA was created, how it functions as a portal and platform, what the staff is currently working on, and what’s to come for the young project and organization.

More information and sign-up is here.  –Mark


Get every new post delivered to your Inbox.

Join 184 other followers