Friday, December 15, 2017

Con Law Exam 2017: Pardon Power, Trump, Braavos, and More

by Michael Dorf

Per my usual practice, I have set forth below the exam I recently gave to my first-year constitutional law students. It's got two questions with two parts each and was an 8-hour open-book take-home with a 2,500-word limit. Feel free to submit answers in the comments. I'm busy grading the students' exams, so I won't comment further on answers submitted here.

Question 1

On January 10, 2018, Special Counsel Robert Mueller’s investigation of alleged Russian interference in the 2016 election and related matters leads to a grand jury indictment of Donald Trump, Jr. In response, President Trump issues a full pardon to his eldest son. Sustained criticism ensues, with critics in the press and elsewhere complaining that the president is abusing his power by favoring a close family member. On January 13, Trump tweets:

Thursday, December 14, 2017

Making a Murderer Postscript: The Perversion of Henry Friendly's Innocence Concern

by Michael Dorf

In 1970, the University of Chicago Law Review published an article titled Is Innocence Irrelevant? Collateral Attack on Criminal Judgments by federal appeals court judge Henry Friendly. Judge Friendly was a judicial conservative in the small-c sense, non-ideological, committed to deciding cases narrowly, and an expert legal craftsman. As a young lawyer, Chief Justice John Roberts clerked for Friendly during Friendly's later years, and Roberts is fond of quoting (though not always abiding by) Friendly's aphorism that if it is not necessary to decide an issue to decide a case it is necessary not to decide the issue.

Is Innocence Irrelevant? was somewhat uncharacteristic of Friendly in that it offered a controversial policy proposal on a politically contentious issue. Writing in a period of transition from the Warren Court to the Burger Court, Friendly lamented that federal habeas corpus petitions by prisoners sentenced under state law were too often succeeding based on procedural irregularities that had no connection to innocence. To use the more nakedly political argot, federal courts were letting guilty state prisoners off on technicalities. Quoting Justice Hugo Black's dissent in a then-recently-decided case, Judge Friendly offered what he regarded--and what many still regard--as a self-evidently sensible proposition: "the defendant's guilt or innocence is at least one of the vital considerations in determining whether collateral relief should be available to a convicted defendant."

The ensuing nearly five decades have proven Judge Friendly prophetic--but probably not in a way that he would have approved. In 1976, the Supreme Court held that habeas corpus would not be available at all for petitioners claiming that otherwise-reliable evidence obtained in violation of the Fourth Amendment was used to convict them. The next year, the Court would make it considerably harder for petitioners who had failed to raise their objections in compliance with state court rules to obtain relief in federal court on otherwise meritorious claims. Other judicial narrowings followed and then, in 1996, Congress passed and President Bill Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which further limited habeas corpus.

The Court decisions and AEDPA have made it much more difficult for prisoners without plausible constitutional claims that bear on innocence to obtain relief via habeas corpus. To my mind, that is understandable if not ideal: understandable because innocents serving prison sentences or awaiting execution suffer a much graver injustice than guilty parties whose proceedings were tainted by constitutional error; not ideal because habeas review once served, but no longer serves, as a means of ensuring that state court judges under political pressure to be tough on crime give full effect to the constitutional rights of criminal defendants.

But even if one thinks that Congress and the courts were right to cut back on habeas in cases where prisoners raise claims that speak only to the fairness of the proceedings, not to guilt or innocence, there is cause for alarm. Modern habeas law honors only half of Judge Friendly's agenda. It makes the bringing of habeas petitions by guilty defendants considerably harder than in the Warren Court era. But it also makes it extremely difficult for the innocent to obtain habeas relief. That proposition was on full display late last week in an en banc ruling by the US Court of Appeals for the Seventh Circuit.

Spoiler Alert: I will now discuss a case that figures in the Netflix documentary series Making a Murderer. If you intend to watch it but have not yet done so, you might want to bookmark the column and come back here after viewing.

Wednesday, December 13, 2017

The Embattled Trump Presidency: Lessons from Fiction

By William Hausdorff

It’s easy to get overwhelmed by information overload regarding the colorful Trump White House, its defenders and its attackers.  But as I learned from Libra, Don DeLillo’s fictionalized account of the John F. Kennedy assassination, one doesn’t need to know exactly what is happening to understand the main plot lines. 

That novel suggested that the essence of the Kennedy story was that there were at least three potentially murderous groups who felt aggrieved. These included Mafia figures furious that he named his brother as Attorney General, anti-Castro figures seething at Kennedy’s lack of support for the Bay of Pigs invasion, as well as pro-Castro figures outraged at the administration’s open hostility to Cuba.

As described in Philip Shenon’s excellent non-fiction analysis, the latter group, to which Lee Harvey Oswald belonged, may have been especially enraged by the news of US attempts to assassinate Castro.  In some ways, then, it didn’t matter who ended up pulling the trigger.

What are the broad lines of the Trump story here?

Tuesday, December 12, 2017

When Liberty and Equality Conflict -- And When They Don't

by Michael Dorf

My latest Verdict column dives into the weeds of the Masterpiece Cakeshop case. To summarize and over-simplify, I argue that while there are hard cases that pit liberty against equality, Masterpiece Cakeshop should be deemed an easy case. That's not because the baker has no interests in this case. He may well have a substantial stake in the outcome of the case. It's just that he cannot win on his free speech claim without blowing up anti-discrimination law, and his claim that he has suffered discrimination based on religion does not find support in the record.

Here I want to address an issue I use to frame the discussion in the column: Should we understand apparent conflicts between liberty and equality as genuine--as value pluralists like Isaiah Berlin and Bernard Williams argued--or should we regard them as spurious--as Ronald Dworkin did? I'm not going to try to definitively resolve that question, but I am going to try to use it as a way of distinguishing two kinds of cases: those in which the (real or apparent) sacrifice of liberty for the sake of equality is a source of moral regret and those in which it is not.

Monday, December 11, 2017

Republicans' Vapid Defenses of Reverse-Robin Hood Policies

[Note: This column was revised and edited for clarity at 8:05pm on December 11, 2017.]

by Neil H. Buchanan

As the Republicans in Congress try to drag their highly unpopular tax bill across the finish line, they have become ever more brazen in admitting what they really think about non-rich people who dare to complain about the feed-the-rich shamelessness of the Republicans' plan.  In case anyone had forgotten, Republicans are again making it clear that they think that non-rich people are lazy, shiftless leeches.

An op-ed by two analysts at the New America Foundation cuts through the nonsense and points out the fundamental reality: "Republicans Are Bringing ‘Welfare Queen’ Politics to the Tax Cut Fight."  Senator Orrin Hatch's recent complaint about "people who won’t help themselves, won’t lift a finger and expect the federal government to do everything" merely reminds us of Speaker of the House Paul Ryan's "makers and takers" meme and especially of Ryan's former running mate's infamous "47 percent" comments.  These, in turn, were mere updates of Ronald Reagan's infamous (and completely imaginary) "welfare queen" in 1976 who supposedly worked the system to the tune of millions of dollars of undeserved benefits.

Republicans also make arguments that, if taken seriously (which they should not be), would ultimately prove that all taxation (even regressive taxation) is immoral.  Although some Republicans might be willing to own up to that claim, a party that is obsessed with Pentagon spending and spending money to keep brown- and black-skinned people in their places -- which often means out of the country entirely -- needs to have some way of separating acceptable forms of taxation from unacceptable forms.

Republicans are stuck, because they have no way to justify tax cuts for the rich without insulting everyone else, and they cannot make choices among taxes because they are committed to the belief that all taxes are inherently bad.  What we end up with is the current mess of a tax bill and the shockingly bad salesmanship on display from the Republicans.

Saturday, December 09, 2017

The Year of the Terrible

By Eric Segall

The Year of the Terrible started on January 20th when the newly elected President of the United States gave his inauguration speech to the largest, most devoted crowd in the history of inauguration speeches. During that speech, he made clear what kind of role model and world leader he was going to be by proudly proclaiming “From this moment on, it's going to be America First…. We will follow two simple rules: buy American and hire American.” Of course, while Trump was speaking, his National Security Advisor Michael Flynn was allegedly on the phone texting a comrade that a joint nuclear power project with Russia was “good to go.” The melding of the Kremlin and the White House was off to a very good start.

Friday, December 08, 2017

The Other Kind of Sexual Harassment

by Sherry F. Colb

In my column this week, I discuss what I take to be at least one reason for the longstanding reluctance (by men and women) to believe women who say they have been raped or sexually harassed by seemingly normal, ordinary men. The reason has to do with the disturbing implications of acknowledging that such conduct has occurred. Disbelief in individual cases then functions as a form of denial across the board. In this post, I want to talk about a type of sexual harassment that has not been on the national radar lately but that is nonetheless a significant impediment to women's equality and to their sense of safety and wellbeing in the workplace.