Category Archives: Courts

Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology

Source: Bernard Chao, Catherine S. Durso, Ian P. Farrell, Christopher T. Robertson, University of Denver – Sturm College of Law, Legal Studies Research Paper No. 17-03, February 23, 2017

From the abstract:
The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about privacy do not reflect actual public expectations, it may undermine the legitimacy of the criminal justice system and exacerbate social unrest.

Although prior research has shown that the police disproportionately target younger people and minority communities, judges tend to be male, white, educated, affluent, and older than the general population. Their intuitions may thus be systematically different. Even worse, cognitive science suggests that judges may have difficulty putting themselves into the shoes of the searched person or considering the reasonableness of the police tactics from an ex ante perspective, without knowledge about the fruits of the search.

With 1200 respondents, we conducted a large-scale survey experiment to test whether, and if so, why, contemporary Fourth Amendment jurisprudence diverges from the societal norms it purports to protect and reflect. We identify a range of privacy expectations for 18 different police practices. We use oversampling, reweighting, and randomization to investigate particular causes of this disparity between judicial and public expectations. We conclude by suggesting better ways forward, so that social science evidence can replace judicial speculation.

Supreme Court vacancy, 2017: An overview

Source: Ballotpedia, 2017

On January 31, 2017, President Donald Trump nominated Neil Gorsuch to succeed Justice Antonin Scalia on the U.S. Supreme Court. Scalia was a member of the U.S. Supreme Court for three decades. If confirmed, Gorsuch would be the seventh justice to have once clerked at the Supreme Court, but the first to serve on the court with the justice with whom he clerked. He clerked for Justice Byron White, who was the first Supreme Court clerk to serve as a justice, and for Justice Anthony Kennedy, who is the senior associate justice on the court. ….

Confirmation hearings on Gorsuch’s nomination before the Senate Judiciary Committee began on March 20, 2017.

On March 16, 2016, President Barack Obama nominated the chief judge of the United States Court of Appeals for the District of Columbia Circuit, Merrick Garland, to the Supreme Court, but the U.S. Senate took no action on the nomination, returning Garland’s nomination to the president at the sine die adjournment of the 114th Congress on January 3, 2017. The 294-day period set a record for the longest interval from nomination to Senate action for any Supreme Court nominee, besting the 125-day interval attending Justice Louis Brandeis’ nomination in 1916.

Page contents:
Timeline
The announcement
Major players in Gorsuch’s nomination
See also
Footnotes

Related:
Potential nominee profile: Neil Gorsuch
Source: Eric Citron, SCOTUSblog, January 13, 2017

Does Neil Gorsuch Believe in Liberty and Equality for All?
Source: David Gans, New Republic, March 20, 2017
The judge’s selective approach to constitutional originalism raises serious questions about his respect for the Second Founding after the Civil War.

Former Law Student: Gorsuch Told Class Women ‘Manipulate’ Maternal Leave
Source: Arnie Seipel, Nina Totenberg, NPR, March 20, 2017

Neil Gorsuch Has Web of Ties to Secretive Billionaire
Source: Charlie Savage, Julie Turkewitz, New York Times, March 14, 2017

The Lies of Originalism
Source: Matt McManus, Jacobin, March 20, 2017
Neil Gorsuch’s originalist philosophy isn’t uniquely unbiased or respectful of democracy. It’s a handmaiden of American reaction.

Judge Gorsuch and Johnson Resentencing (This is Not a Joke)
Source: Leah M. Litman, University of California, Irvine School of Law, UC Irvine School of Law Research Paper No. 2017-07, January 22, 2017
This paper describes an opinion by Judge Gorsuch that addresses when federal criminal defendants may file petitions for habeas corpus to challenge their convictions or sentences.

Introduction: A close look at Judge Neil Gorsuch’s jurisprudence

Source: Amy Howe, SCOTUSblog, March 3, 2017

There will never be another Antonin Scalia. When he died on February 13, 2016, the brilliant and pugnacious jurist left behind a legacy that included almost singlehandedly bringing originalism – the idea that the Constitution should be interpreted according to what it meant when it was adopted – to the forefront of legal debate, both at the Supreme Court and more broadly. Accepting the nomination to fill the vacancy left by Scalia’s death, Judge Neil Gorsuch spoke for many when he called Scalia “a lion of the law.”

Like Scalia, Gorsuch describes himself as an originalist: In a 2016 speech at Case Western Reserve University, he told his audience that judges should interpret the Constitution and the law “by focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.” But, if he is indeed confirmed, what effect will Gorsuch have on specific areas of the law? Last fall we hosted a symposium in which 25 different authors took closer looks at the effect that a hypothetical conservative or liberal nominee to replace Scalia might have on high-profile issues like reproductive rights, the First Amendment and class actions.

With confirmation hearings for Gorsuch scheduled to begin on March 20, we are no longer operating in the abstract. In his ten years on the U.S. Court of Appeals for the 10th Circuit, Gorsuch has still not weighed on all of the topics that we covered in last year’s symposium – including, for example, affirmative action, abortion and gun rights. But there is still plenty to learn about his jurisprudence and views on other topics, and how those views might compare with Scalia’s. Today we will kick off a series of posts by blog staffers and lawyers from the law firm of Goldstein & Russell, P.C., that will examine those views in greater depth and, we hope, provide a better sense of how Gorsuch might change the court, if at all.

Supreme Court Appointment Process: President’s Selection of a Nominee

Source: Barry J. McMillion, Congressional Research Service, CRS Report, R44253, February 6, 2017

The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is of consequence because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or never at all, during a particular President’s years in office. Under the Constitution, Justices on the Supreme Court receive what can amount to lifetime appointments which, by constitutional design, helps ensure the Court’s independence from the President and Congress.

The procedure for appointing a Justice is provided for by the Constitution in only a few words. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ..Judges of the supreme Court.” The process of appointing Justices has undergone changes over two centuries, but its most basic feature—the sharing of power between the President and Senate—has remained unchanged: To receive appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate.

Political considerations typically play an important role in Supreme Court appointments. It is often assumed, for example, that Presidents will be inclined to select a nominee whose political or ideological views appear compatible with their own. The political nature of the appointment process becomes especially apparent when a President submits a nominee with controversial views, there are sharp partisan or ideological differences between the President and the Senate, or the outcome of important constitutional issues before the Court is seen to be at stake.

Additionally, over more than two centuries, a recurring theme in the Supreme Court appointment process has been the assumed need for professional excellence in a nominee. During recent presidencies, nominees have at the time of nomination, most often, served as U.S. appellate court judges. The integrity and impartiality of an individual have also been important criteria for a President when selecting a nominee for the Court…

Special report on Supreme Court nominee Neil Gorsuch

Source: Reporters Committee for Freedom of the Press, 2017

On January 31, President Donald Trump nominated Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to fill the U.S. Supreme Court vacancy left by the death of Justice Antonin Scalia in February of 2016. Gorsuch does not have an extensive history of deciding cases involving free speech, free press, and freedom of information issues, but the opinions he authored or joined during his more than 10 years on the Tenth Circuit that do touch upon those issues reflect the application of well-established First Amendment principles in a consistent way.

His decisions in libel and invasion of privacy cases show a willingness to uphold protections for speech rights against tort claims even in controversial cases, such as when a television station publicized the names of undercover police officers in a story involving accusations of sexual assault, or when another television station showed a photo of the perpetrator in a sexual assault video. Gorsuch also wrote an opinion applying the “substantial truth” doctrine, which holds that libel claims cannot rest on minor inaccuracies, in a case brought by a federal prisoner identified as a member of the Aryan Brotherhood.

In an area of increasing concern to journalists, Gorsuch joined a panel opinion holding that a broad warrant to search the computers and papers of a journalist accused of criminal libel for any evidence of any crime violated the Fourth Amendment. He also joined in an opinion upholding the constitutionality of a state statute requiring sex offenders to disclose all of their social media and web site accounts to police, acknowledging an interest in anonymous speech but finding that the statute was not a content-based restriction on speech.

His work in Freedom of Information Act, court access, and copyright cases is not substantial, and a campaign finance case stressed the First Amendment interests at stake but was decided as an equal protection case. More detailed summaries of these cases follow. ….

The Supreme Court Vacancy and Labor: Neil Gorsuch

Source: Hannah Belitz, OnLabor blog, January 31, 2017

This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.

Neil Gorsuch currently serves as a judge on the United States Court of Appeals for the 10th Circuit. He was appointed by President George W. Bush on May 10, 2006 and confirmed just over two months later. As SCOTUSblog and numerous other outlets have pointed out, Judge Gorsuch may be “the most natural successor” to Justice Scalia, “both in terms of his judicial style and his substantive approach.”

Last August, Judge Gorsuch “made real waves in the normally sleepy world of administrative law” by advocating the end of the doctrine of Chevron deference. See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1158 (10th Cir. 2016) (Gorsuch, J., concurring). Writing a separate concurrence to his own opinion, Judge Gorsuch opined, “We managed to live with the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron very little would change – except perhaps the most important things.” Id.

The following provides an overview of Judge Gorsuch’s opinions in cases involving the NLRB and employment discrimination. ….

Past Due: Examining the Costs and Consequences of Charging for Justice in New Orleans

Source: Mathilde Laisne, Jon Wool, and Christian Henrichson, Vera Institute of Justice, January 2017

From the overview:
In 2015, government agencies in New Orleans collected $4.5 million in the form of bail, fines and fees from people involved in the criminal justice system and, by extension, from their families. Another $4.7 million was transferred from the pockets of residents to for-profit bail bond agents. These costs have become the subject of considerable public attention. Because many “users” of the system have very low incomes or none at all, there is growing concern that charging for justice amounts to criminalizing poverty, especially when people who can’t pay become further entangled in the justice system. In 2015, the city spent $6.4 million to incarcerate people who couldn’t pay bail or conviction fines and fees. By focusing on bail decisions and fines and fees assessed at conviction, Past Due, and its accompanying technical report, reveals the costs and other consequences of a system that tries to extract money from low-income people and then jails them when they can’t pay.
Related:
Technical Report
Summary

The Algorithm as a Human Artifact: Implications for Legal {Re}Search

Source: Susan Nevelow Mart, University of Colorado Law School, October 26, 2016

From the abstract:
When legal researchers search in online databases for the information they need to solve a legal problem, they need to remember that the algorithms that are returning results to them were designed by humans. The world of legal research is a human-constructed world, and the biases and assumptions the teams of humans that construct the online world bring to the task are imported into the systems we use for research. This article takes a look at what happens when six different teams of humans set out to solve the same problem: how to return results relevant to a searcher’s query in a case database. When comparing the top ten results for the same search entered into the same jurisdictional case database in Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel, and Westlaw, the results are a remarkable testament to the variability of human problem solving. There is hardly any overlap in the cases that appear in the top ten results returned by each database. An average of forty percent of the cases were unique to one database, and only about 7% of the cases were returned in search results in all six databases. It is fair to say that each different set of engineers brought very different biases and assumptions to the creation of each search algorithm. One of the most surprising results was the clustering among the databases in terms of the percentage of relevant results. The oldest database providers, Westlaw and Lexis, had the highest percentages of relevant results, at 67% and 57%, respectively. The newer legal database providers, Fastcase, Google Scholar, Casetext, and Ravel, were also clustered together at a lower relevance rate, returning approximately 40% relevant results.

Legal research has always been an endeavor that required redundancy in searching; one resource does not usually provide a full answer, just as one search will not provide every necessary result. The study clearly demonstrates that the need for redundancy in searches and resources has not faded with the rise of the algorithm. From the law professor seeking to set up a corpus of cases to study, the trial lawyer seeking that one elusive case, the legal research professor showing students the limitations of algorithms, researchers who want full results will need to mine multiple resources with multiple searches. And more accountability about the nature of the algorithms being deployed would allow all researchers to craft searches that would be optimally successful.

Out of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution and Constitutional Limitations

Source: Henry Ordower, J. S. Onésimo Sandoval, Kenneth Warren, Saint Louis University Legal Studies Research Paper No. 2016-14, October 18, 2016

From the abstract:
The matter of police and municipal courts as revenue producers became increasingly prominent following Michael Brown’s death from a police shooting. This article considers the use of misdemeanors, especially traffic violations, for the purpose of collecting substantial portions of the annual operating budgets in municipalities in St. Louis County, Missouri. The article argues that the revenue raising function of traffic offenses has displaced their public safety and traffic regulation functions. The change in function from public safety to revenue suggests that the governing laws are no longer valid as exercise of policing power but must be reenacted under the taxing power in order to remain valid. Constitutional tax limitations in Missouri, however, prohibit the increase of existing or enactment of new taxes without an affirmative vote of the electorate. Municipalities have circumvented the constitutional taxing limitations by using laws enacted under policing powers in violation of the constitution. The police and the municipal courts enforcing traffic laws have produced a racially discriminatory and regressive local tax system that violates the tax limitations of the Missouri constitution.

Why the Supreme Court matters for workers

Source: Michele Gilman, The Conversation, October 31, 2016

…..Almost five decades of a conservative Court majority have sharply limited the rights of workers to unionize, form class actions and fight discrimination. The results have been profound and help explain the deterioration of the working class and the rise of economic inequality in recent decades.

The court is now in a 4-4 split between liberal and conservative justices. The Senate’s refusal to confirm President Barack Obama’s nominee to replace Scalia means it’s likely the next occupant of the Oval Office will get to pick who fills that seat – and possibly several more. That will determine the kind of court Americans have for years or even decades to come.

Conservative appointments by a President Trump would likely continue the decimation of workplace justice, particularly collective efforts to improve working conditions and pay. As I have documented, a look back at some of the court’s recent rulings shows how…..
Related:
Workers, the Courts, and the Election
Source: Andrew Strom, OnLabor blog, November 3, 2016

….When it comes to the courts, the media has a tendency to focus on gun control, abortion rights, and to a lesser extent, LGBTQ rights. While these issues are important to many voters including workers, the media pays far less attention to a set of issues of major relevance to all workers; namely, worker protection laws. And when it comes to worker protection, it matters enormously which party controls judicial appointments. While there are, of course, plenty of cases where judges appointed by Republican Presidents rule in favor of workers, there are also many close (and sometimes not so close) cases where judges make value judgments, and in doing so, they can either view a case from the perspective of a worker or an employer……