June 20, 2009
A Clockwork Orange; or, Why Some are More Equal Before the Law Than Others
The likely defense of "good faith" cast a new light on the civics staple we feed our kids: "All men are equal before the law." Gibson v. Mississippi, 162 U.S. 565, 591 (1896).
These seven professionals will place their liberty in the hands of 12 jurors on the question of "good faith." There's no summary judgment in criminal cases. United States v. Critzer, 951 F.2d 306, 307 (11th Cir.1992) (per curiam) ("There is no summary judgment procedure in criminal cases.").
But lets assume for a moment that all the government's proof in the tax-fraud case is based on truckloads of documents that FBI and IRS agents seized from defendants' offices during the execution of search warrant that, for one reason or another, violated the Fourth Amendment -- for example, the warrants lacked probable cause connecting the location to be searched to the items to be seized.
The prosecution would oppose application of the exclusionary rule, claiming that the agents acted in "good faith." The "good faith" question does not require a jury. Instead, the judge will make a summary decision by looking at similar past cases and decide if the agent's conduct violated clearly established law. (Guess who wins those arguments in nearly every case.)
Let's say the government dismissed the indictment, and the defendant's filed a civil-rights lawsuit against the agents for violating their 4th Amendment rights.
The same analysis would apply. The term of art in a civil case is "qualified immunity," instead of "good faith." But the two are the same. There's no jury. No drama. Just a judge looking at the warrant and supporting application and similar cases before writing, "everything's A-OK over here, so agents acted in good faith and the lawsuit's dismissed."
So, returning to my initial point, the irony here is that when law enforcement breaks the law -- the constitution, no less -- a plea of good faith is heard by a judge and based on a survey of the controlling case law. But when seven professionals are accused of structuring an illegal tax shelter, their good-faith defense goes to a jury.
Some folks -- like federal agents -- are just more equal than others.
Or . . . we're all in "A Clockwork Orange" now.
-- shertaughPosted at 10:17 AM
June 2, 2009
Elizabeth Edwards to Open Furniture Store
-- Eric
Posted at 4:21 PM
May 18, 2009
My Grandparents Were Incarcerated at Manzanar ...
(Though I must admit, their book selection ain't too shabby!)
-- EricPosted at 10:55 PM
Typing Head
Posted at 7:47 PM
April 22, 2009
A Lovely Lunch with Jay Bybee
How I wish I could turn back the clock so that I could get up and leave.
(It's worth recalling, by the way, that Senator Russ Feingold opposed Bybee's nomination on the ground that the Administration had refused to make available the legal memoranda that Bybee prepared while at OLC. How prescient that objection now seems...)
Posted at 9:56 AM
April 21, 2009
Warner Brothers on the Second Amendment
Boston District Attorney Yosemite Sam had the following to say: "Dagnabit! What in tarnation does a fella need these doggone infernal machines for?!? Blast it all, I'm a-gonna make him pay!!"
Posted at 1:28 PM
April 17, 2009
"Laying Blame for the Past"
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.Why is it that we think it right that the South Africans lay blame for the past, and the Argentinians lay blame for the past, and the Austrians lay blame for the past, and the Germans lay blame for the past, and the Russians lay blame for the past, and the Iraqis lay blame for the past ... but not us?-- Eric
Posted at 8:34 AM
March 31, 2009
Maybe Ford Will End Up Where GM Is.
("Right around now" would be a very advisable thing, given that there's a $3400 tax credit for the purchase of hybrids that expires today, March 31, and is replaced by a credit of just half that amount, which itself expires after the next quarter.)
The answer from my area Ford dealer: Good luck finding one. He said he'll have a single vehicle, "a white one," in maybe around a month. And he said that no North Carolina dealers have any in stock right now.
And we wonder why the US auto industry is struggling?
Posted at 9:23 AM
March 18, 2009
%$#%$#
Every time I see it. No matter how many times.
Posted at 6:15 PM
March 16, 2009
Some Stories Will Bring A Blogger Out Of Retirement.
I am not making this up.
UPDATE, March 25: I just had a nice phone conversation with Mark Rusin, the Child Nutrition Director for the Chapel Hill-Carrboro City Schools. He explained to me that the meal that was served in February was a "Southern Cooking" meal (including fried chicken, but no watermelon because it's too expensive this time of year) that the cafeteria occasionally offers as a promotional meal. The idea, he says, was not to link that meal to Black History Month -- and in fact, the meal is occasionally offered at other times of the year. He surmises that when the cafeteria contacted those who do the school announcements to inform them of the promotional meal, somehow someone outside the cafeteria staffed must have linked the meal to Black History Month, which was not what the cafeteria intended.
(I do know that the meal was presented to the students on the morning announcements as linked to Black History Month; not only is this what my daughter told me, but two recent items in the school newspaper registered student complaints about the linkage. The school newspaper is not available online, it seems.)
-- EricPosted at 6:58 PM
November 5, 2008
The View from That Other Illinois State Senator.
Posted at 8:20 AM
November 4, 2008
Shehecheyanu.
Your video for today:
-- EricPosted at 8:46 AM
October 8, 2008
It's Enough To Be On Your Way.
-- EricPosted at 5:27 PM
September 29, 2008
On Second Thought, Maybe There Is Something Worse.
Posted at 5:21 PM
September 23, 2008
Hey You With The Pretty Face!
-- EricPosted at 4:43 PM
September 11, 2008
Palin
1. Astonishment.
2. Perverse joy.
3. Disbelief.
4. Anger.
5. Abject terror.
I'll be stuck at stage 5 from now until Election Day.
-- EricPosted at 9:44 PM
September 9, 2008
It's a Sad Situation.
-- EricPosted at 10:18 AM
September 8, 2008
Funnye. He Doesn't Look Jewish.
Posted at 10:27 AM
September 2, 2008
Put a Little Birdhouse in Your Soul.
-- EricPosted at 9:32 AM
August 25, 2008
A Milestone
And so this:
Posted at 9:20 AM
August 18, 2008
The Biggest Lie of the Greatest Generation
To wit: a new article I'm posting to SSRN today entitled "Hirabayashi: The Biggest Lie of the Greatest Generation." The article presents important new archival findings about Hirabayashi v. United States, 320 U.S. 81 (1943), which upheld the constitutionality of a racial curfew imposed on Japanese Americans in World War II. The Court concluded that because of the enormous security threat facing the United States -- a threatened invasion of the West Coast by Japan in the months after the Pearl Harbor attack -- the ordinary constitutional prohibition on "discrimination based on race alone" was not controlling.
The Court emphasized the threat of an invasion because that is what the government's lawyers told the Court the West Coast was facing. "Invasion" was the constant drumbeat not only of the government's brief but also the Solicitor General's oral presentation to the Court.
It turns out that all this talk of invasion was a lie. At the time that military officials planned and implemented the racial curfew, there was no danger of a Japanese invasion of the West Coast. The army and navy viewed any sort of Japanese invasion of California, Oregon, or Washington as impracticable. They were neither anticipating nor preparing for any such event. Indeed, during the key time period of early 1942, the Army was more concerned with scaling back the defense of the West Coast from land attack than with bolstering it.
What's more, the lawyers who signed the government's brief in Hirabayashi knew this. By the time they filed the brief in May of 1943, they had known for months that the military foresaw no Japanese invasion of the coast in the months after Pearl Harbor, and that the curfew was not part of a plan to resist an invasion. Yet this knowledge did not stop them from representing to the Court in Hirabayashi that the "principal danger" that military officials had "apprehended" was "a Japanese invasion" which "might have threatened the very integrity of our nation."
My article documents all of this from primary archival sources, and then goes on to speculate about what might have led Justice Department lawyers to such a large and consequential deception. Perhaps I'll blog more about that soon. In the meantime, though, you can download the article here.
-- EricPosted at 8:30 AM
July 29, 2008
"A Life Without the Distraction of Television ..."
Posted at 5:58 PM
July 28, 2008
Yes, I Am Still Here ...
-- Eric
Posted at 11:32 AM
June 26, 2008
The Heller Decision -- Saw That One Coming a Mile Away
(The opinion can be downloaded here, courtesy of SCOTUSBLOG.)
I posted in regard to Heller back on March 24th, after oral argument.
My post focused on an 1846 ruling by the Georgia Supreme Court called Nunn v. State. And I suggested, based on Nunn and other early 19th century gun cases, that the 2nd Amendment protects an individual's right to own a gun subject to reasonable regulation.
In its opinion today, the 5-member majority to the Heller opinion four times cited and twice discussed the Nunn decision. Justice Breyer's dissent likewise cited Nunn.
So, Mom and Dad (if you can read this in Heaven), law school wasn't a total waste of time.
-- shertaughPosted at 10:50 AM
May 16, 2008
And, While I'm On The Subject ...
Posted at 2:49 PM
Xanadu!
-- EricPosted at 2:25 PM
May 12, 2008
Ziggy Hair Essential.
(Found while looking for local bands in search of a bassist, which I am planning to become...)
-- EricPosted at 6:13 PM
May 6, 2008
"Exporting American Dreams"
Oh, come on. Do you expect me to believe that? Of course you didn't.
Neither did I. But we'll all have a chance to learn more about this fascinating episode in Marshall's life this summer, when Mary Dudziak's new book "Exporting American Dreams: Thurgood Marshall's African Journey" hits the bookstores.
It gets a great review from Publisher's Weekly. (Go here and scroll a bit more than halfway down.)
-- EricPosted at 5:27 PM
April 29, 2008
Berkeley's New Hire! Muller Scoops Leiter!
Not only that, but I found a picture of the professor getting started on his summer writing project:
Posted at 8:48 PM
April 26, 2008
"American Inquisition" Hits Youtube!
It's a pretty good talk, I think, though I confess that my attention is mostly drawn to the facts that (a) the chair was very low, (b) I have more of a Philadelphia accent than I thought I did (you hear it especially in the "o" and "ow" sounds), (c) when I'm talking, I look a bit more like my mother than I thought I did.
-- EricPosted at 10:33 AM
