FedSoc Blog

Ninth Circuit Voids HP Printer Class-Action Settlement Citing High Attorney Fees

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by Publius
Posted May 15, 2013, 2:45 PM

According to Reuters:

A divided federal appeals court on Wednesday voided a class action settlement between Hewlett-Packard Co and millions of consumers who bought its inkjet printers over nearly a decade, saying the fees awarded to the consumers' lawyers were too high.

The decision by the 9th U.S. Circuit Court of Appeals in San Francisco could discourage class action settlements involving "coupons" rather than cash, saying Congress intended that class action lawyers not be awarded fees "grossly disproportionate" to relief obtained by the people they represent.

In the HP case, Circuit Judge Milan Smith wrote for a 2-1 majority that fees should take into account the value of coupons actually being redeemed, not the total coupon relief offered. The 9th Circuit returned the case to U.S. District Judge Jeremy Fogel in San Jose, California, for further proceedings.

The settlement was intended to resolve claims that consumers who bought HP printers between September 2001 and September 2010 were misled into spending too much on or misusing ink cartridges.

HP agreed to provide up to $5 million of coupons, known as "e-credits," for future printers and printer supplies on its website, and to improve disclosures. Lawyers for the consumers were awarded $1.5 million of fees and $597,000 of costs.

About 122,000 of the millions of class members filed claims before Fogel granted final settlement approval in March 2011.

But the accord drew objections from people including Ted Frank, a longtime advocate against high legal fees.

They said the settlement was the product of collusion between lawyers for HP and consumers, and violated portions of the federal Class Action Fairness Act that govern fees in settlements that have coupon components. . . .

Categories: External Articles

Fourth Circuit Ponders “What Is a Pirate?”

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by Publius
Posted May 15, 2013, 11:57 AM

The Associated Press reports:

In the violent world of piracy, Mohammad Saaili Shibin was a multilingual negotiator based in lawless Somalia, working his cellphone to negotiate multimillion-dollar ransoms for merchant ships and sailors that dared to venture into pirate-infested international waters off Africa.

Does that make him guilty of piracy?

The question was the central argument Tuesday as a federal appeals court debated with an attorney seeking to overturn Shibin's piracy conviction and a government prosecutor arguing against it.

A three-judge panel of the 4th U.S. Circuit Court of Appeals is expected to issue an opinion in several weeks or longer in a case that could ultimately end up before the U.S. Supreme Court.

A federal judge sentenced Shibin last August to a dozen life sentences for his role in the hijacking of a German merchant vessel in 2010 that involved the torture of crewmembers to secure a higher ransom and the shooting deaths of four Americans aboard the yacht Quest in 2010.

Shibin has been called the top U.S. catch since it joined an international effort to combat piracy off Africa. That effort has brought nearly 20 bedraggled pirates for prosecution to Norfolk, where ships based at the huge naval base there have been deployed to combat the crimes.

James O. Broccoletti argued his client couldn't be convicted of piracy because he never set out on the high seas, a requirement set out by U.S. law. "He never left Somalia," he told the judges.

Define the "line, where does it cut off," for someone to be considered a pirate? asked Judge Paul V. Niemeyer. "I'm trying to find out what piracy is," he said.

Broccoletti responded that the crime must occur in international waters. "He never left the territorial water of Somalia," he said.

U.S. law governing piracy, which dates back nearly two centuries, defines piracy as boarding a ship at sea and robbing it. Since the U.S. began its crackdown in 2010, courts have come to conflicting conclusions on how the law should be interpreted.

The government maintains the U.S. statute incorporates broader international law and recognizes that piracy is an organized crime. That means it includes those who work onshore, such as Shibin, to research how much ransom a pirated vessel can come up with and to negotiate a payment for release.

"It's very difficult to get them," Assistant U.S. Attorney Benjamin Hatch told the judges. "It was very difficult to get Mr. Shibin. But we got him."

Broccoletti and Hatch, a lead prosecutor in the U.S. piracy convictions, each could barely string two sentences together as Niemeyer, Judge Diana Gribbon Motz and Judge Henry F. Floyd fired question after question at the two attorneys. The questioning, though, didn't signal which way they were leaning on the appeal. . . .

Prosecutors are seeking the death penalty against the three men charged with shooting the Americans on the Quest.

Eleven other men who boarded the yacht have pleaded guilty and been sentenced to life terms.

Quest owners Jean and Scott Adam of Marina del Rey, Calif., and friends Bob Riggle and Phyllis Macay of Seattle were the first Americans to be killed in pirate attacks in the Gulf of Aden and Indian Ocean.

Shibin also was involved in the piracy of the Marida Marguerite, a German-operated tanker carrying $10 million worth of fuel when it was hijacked in early May 2010.

Investigators said the Somali pirates tortured the 22 crewmembers "in indescribable ways" for hours at a time before receiving several million dollars' ransom and releasing the ship on Dec. 27, 2010.

 

Categories: External Articles

Is Obama Right that the IRS Is an “Independent Agency”?

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by Publius
Posted May 15, 2013, 9:03 AM

Yesterday Eileen J. O'Connor commented at ExecutiveBranchReview, FedSoc's new blog devoted to executive branch regulatory activity:

On Friday, White House Press Secretary Jay Carney, and yesterday President Obama himself, declared that the Internal Revenue Service is an “independent agency.”  Not so, unless they are redefining the term.

Most Executive Branch departments are headed by a Cabinet Secretary (except for the Department of Justice, which is headed by the Attorney General of the United States) who is nominated by the President and confirmed by the Senate.  Within the Departments are agencies that carry out the various responsibilities of the Department.  They, too, are headed by Senate-confirmed Presidential appointees.  An “independent agency” is an agency of the federal government that is not part of an Executive Branch department.   These are generally boards and commissions, like the National Labor Relations Board and the Federal Communications Commission.

But just as the Federal Bureau of Investigation is part of the Department of Justice, the Internal Revenue Service is part of the Department of Treasury.  As with other federal agencies, each is headed by a Senate-confirmed Presidential appointee.  Neither of these is an “independent agency.”

In 1976, to prevent another 48-year term of service like J. Edgar Hoover’s, Congress enacted Public Law 94-503, limiting the service of an FBI Director to a single term of no more than 10 years. Director Mueller is now completing a Congressionally-approved two-year extension of his ten-year term.  Rather than find a new FBI Director, President Obama chose to hold over President Bush’s selection.

Effective in 1997, Congress enacted 26 USC 7803, creating a five-year term for the IRS Commissioner.  Charles Rossotti was the first IRS Commissioner to be appointed to a five-year term.  He was followed by Mark Everson, and then by Douglas Shulman, who left IRS when his term ended last November.  Shulman had announced as early as April 2012 that he would not seek a second term.  More than a year hence, the Administration has not nominated a successor.

Press Secretary Carney noted at his press briefing Friday, “The individual who was running the IRS at the time was actually an appointee from the previous administration.”

Can this mean the Administration subscribes to the axiom: “In politics, it’s not whether you win or lose, it’s how you place the blame”?

The Wall Street Journal similarly editorialized today:

One notable aspect of the Internal Revenue Service scandal is President Obama's strange view of accountability within the executive branch. In his Monday remarks addressing the targeting of conservative groups for tax-exempt scrutiny, Mr. Obama declared that the IRS is "an independent agency."

In his press briefing after the story broke on Friday, White House press secretary Jay Carney hit the same note. "The IRS is an independent enforcement agency with only two political appointees," he said.

The IRS is many things, but "independent" isn't one of them. It is formally part of the Treasury Department and is headed by the Commissioner of Internal Revenue, who is appointed by the President. The Commissioner is accountable to the President reporting through the Treasury Secretary.

The White House has also been at pains to stress that former Commissioner Douglas Shulman, who told Congress in 2012 that there had been no targeting of political groups, was appointed by George W. Bush. So the Commissioner is accountable to the President, as long as he's the former President? Or what?

This attempt to distance Mr. Obama from any control of the IRS is especially rich in light of the Administration's recent attempts to bend other genuinely independent agencies like the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) to its will via non-recess recess appointments. The Administration is currently petitioning the Supreme Court to hear its appeal of the D.C. Circuit's decision declaring its NLRB recess appointments unconstitutional. . . .

 

 

Categories: External Articles

Second Circuit Rules NY Fire Dept. Did Not Intentionally Discriminate Against Minorities

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by Publius
Posted May 14, 2013, 5:01 PM

According to the Daily News:

The U.S. Court of Appeals has rejected a Brooklyn judge's ruling that the city intentionally discriminated against minority applicants to the FDNY, and ordered a new bench trial before a different judge to determine that issue.

The panel of appellate judges, though, left in place the appointment of a court-ordered monitor to oversee the FDNY's efforts to recruit more minorities and develop anti-discrimination policies. But the FNDY can do their recuitment in-house instead of hiring outside consultants.

The decision is a victory for city lawyers, who argued that Federal Judge Nicholas Garaufis had wrongly accused Mayor Bloomberg of willfully failing to end discrimination in the predominantly white ranks of the fire department.

In an 82-page decision, the appellate judges noted that intentional bias is not proved so much by steps city officials did not take, rather by than intentional actions they undertook.

But the appellate decision left in place most of the Garaufis' remedies to cure the disparate treatment.

"We do not believe the cited omissions of the mayor or the (fire) commissioner suffice to support a reasonable inference that they declined to act because they wanted to discriminate against black applicants," the judges wrote.

"In light of the myriad duties imposed upon the chief executive of a city of eight million people, more evidence would be needed," to prove Bloomberg or any other city official intentionally tried to keep blacks and Hispanics out of the FDNY, the judges concluded.

The Justice Department under then President George Bush had filed suit in 2007 against the city alleging that two written exams for firefighter candidates were biased against minorities. The Vulcan Society of black firefighters later joined the suit in Brooklyn Federal Court.

Vulcans' lawyer Richard Levy said the appellate decision leaves untouched the $128 million in back pay and damages to minorities who were never hired from those two tests or their hiring was delayed.

"We are extremely pleased that the Second Circuit recognized significant problems in the manner in which the District Court handled the case," said Corporation Counsel Michael A. Cardozo. . . .

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Obama Administration Says Universities Must Implement Broad Speech Codes

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by Publius
Posted May 14, 2013, 12:40 PM

Eugene Volokh, Gary T. Schwartz Professor at UCLA School of Law, writes at the Volokh Conspiracy:

The Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights is telling universities to institute speech codes. And not just any old speech codes: Under these speech codes, universities would be required to prohibit students from, for instance,

  • saying “unwelcome” “sexual or dirty jokes”
  • spreading “unwelcome” “sexual rumors” (without any limitation to false rumors)
  • engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
  • engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, picture,s or written materials”
  • making “unwelcome” sexual invitations.

This is not limited to material that a reasonable person would find offensive. Nor is limited to material that, put together, creates a “hostile, abusive, or offensive educational environment.” (I think even speech codes that would have these requirements are unconstitutional, but the speech codes that the government is urging would in any event not have these requirements.) Every instance of such material of a “sexual nature,” under the government’s approach, would be “sexual harassment” and would need to be banned.

Why do I say this? The explanation has quite a few moving parts, because of how the government has articulated its theory. But here’s a brief summary. . . .

Categories: External Articles

Justice Department Obtained Associated Press Phone Records in Leak Investigation

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by Publius
Posted May 14, 2013, 8:04 AM

The Washington Post reports:

In a sweeping and unusual move, the Justice Department secretly obtained two months’ worth of telephone records of journalists working for the Associated Press as part of a year-long investigation into the disclosure of classified information about a failed al-Qaeda plot last year.

The AP’s president said Monday that federal authorities obtained cellular, office and home telephone records of individual reporters and an editor; AP general office numbers in Washington, New York and Hartford, Conn.; and the main number for AP reporters covering Congress. He called the Justice Department’s actions a “massive and unprecedented intrusion” into newsgathering activities.

The aggressive investigation into the possible disclosure of classified information to the AP is part of a pattern in which the Obama administration has pursued current and former government officials suspected of releasing secret material. Six officials have been prosecuted, more than under all previous administrations combined.

In a letter to Attorney General Eric H. Holder Jr., the AP’s president and chief executive, Gary B. Pruitt, said that the Justice Department sought information beyond what could be justified by any specific probe and demanded that the government return the phone records and destroy all copies.

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” Pruitt wrote to Holder. “These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”

The inquiry is one of two leak investigations ordered last June by Holder. The second involves a New York Times report about the Stuxnet computer worm, which was developed jointly by the United States and Israel to damage nuclear centrifuges at Iran’s main uranium-enrichment plant.

The two leak inquiries were started after Republicans in Congress accused the Obama administration of orchestrating news stories intended to demonstrate the president’s toughness on terrorism and improve his chance for reelection. The Republicans sought a special prosecutor, but Holder instead named two veteran prosecutors to handle the inquiries.

In the AP case, the news organization and its reporters and editors are not the likely targets of the investigation. Rather, the inquiry is probably aimed at current or former government officials who divulged classified information.

But experts said the scope of the records secretly seized from the AP and its reporters goes beyond the known scale of previous leak probes.

“This investigation is broader and less focused on an individual source or reporter than any of the others we’ve seen,” said Steven Aftergood, a government secrecy expert at the Federation of American Scientists. “They have swept up an entire collection of press communications. It’s an astonishing assault on core values of our society.” . . .

 

Categories: External Articles

Tomorrow 5/14: FedSoc Event and Webcast “Is the Patent System Working or Broken?”

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by Publius
Posted May 13, 2013, 4:05 PM

Today, people read almost daily reports about the "broken patent system" in newspaper articles, blogs and at social media websites. Is this true? On the one hand, the high-tech and biotech industries seem awash in patent litigation, and Congress, the FTC, and the Supreme Court are considering adopting a variety of reform measures. On the other hand, the availability of patents and the property rights they secure are driving  technological innovations once imagined only as science fiction - tablet computers, smart phones, genetically modified seeds, genetic testing for cancer, personalized medical treatments for debilitating diseases, and many others - and these technological marvels are now a commonplace feature of our lives.

A panel of distinguished jurists will discuss these two conflicting perspectives on whether the patent system today promotes or hampers innovation: Arthur Gajarsa, former Judge on the Court of Appeals for the Federal Circuit, Paul Michel, former Chief Judge of the Court of Appeals for the Federal Circuit, and Richard Posner, Judge of the Court of Appeals for the Seventh Circuit. The panel will be moderated by Douglas Ginsburg, former Chief Judge of the Court of Appeals for the D.C. Circuit and a Professor of Law at George Mason University School of Law.

The panelists have combined many years of experience in adjudicating patent cases, writing and speaking on patent or IP policy, and engaging with legal and policy issues closely connected with the patent system, such as antitrust and law and economics. With wide-ranging views on the current health of the patent system and the relevant solutions, the panel discussion will be insightful and illuminating. The event is co-sponsored by the Center for the Protection of Intellectual Property at George Mason University School of Law and the Federalist Society's Intellectual Property Practice Group.

Featuring:

  • Hon. Arthur J. Gajarsa, former Judge, U.S. Court of Appeals, Federal Circuit
  • Hon. Paul R. Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit
  • Hon. Richard A. Posner, Judge, U.S. Court of Appeals, Seventh Circuit
  • Hon. Douglas H. Ginsburg, Senior Circuit Judge, U.S. Court of Appeals, D.C. Circuit and Professor of Law, George Mason University School of Law - Moderator

Event details:

Start : Tuesday, May 14, 2013 12:00 PM

End   : Tuesday, May 14, 2013 2:00 PM

Location: National Press Club, 529 14th St. NW, Washington, DC

This event will be webcast live. 

Registration details:  Registration for this event is now closed. There is no cost to attent this event. Lunch will be included.  Please dial 202-822-8138 with any questions.

Categories: Upcoming Events

High Court Sides with Monstanto in Seed Case

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by Publius
Posted May 13, 2013, 2:10 PM

Wired's Threat Level blog reports:

The Supreme Court on Monday for the first time backed patents for a self-replicating technology — Monsanto’s “Roundup Ready” soybeans — along with its licensing agreement that allows farmers to use them only once.

Regardless of how unnatural the conditions may seem, the licensing agreement with farmers also forbids the seeds to be resold for commercial planting, and they cannot be used for research, crop breeding or seed production.

Welcome to farming in the age of patented, genetically modified organisms, which in this case concerned soybean crops that withstand herbicide.

In the end, a unanimous Supreme Court found that intellectual property rights took precedent over nature. The high court ruled against an Indiana soybean farmer whom a lower court had ordered to pay $84,456 in damages and costs to Monsanto in 2009 for infringing its soy bean patents.

“If simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention,” Justice Elena Kagan wrote for the majority. “The undiluted patent monopoly, it might be said, would extend not for 20 years as the Patent Act promises, but for only one transaction. And that would result in less incentive for innovation than Congress wanted.” (.pdf)

Knox County farmer Vernon Bowman’s dirty deed? The 74-year-old bought soybean seed from a local grain elevator that was contaminated with the patented seed, which he used to produce beans on his 299 acres.

The case addresses the question of how far down the stream of commerce — in this instance the farming cycle — can a company control its patents, especially for products like soybeans that easily self-replicate. A lower court, an appeals court and even the President Barack Obama administration had maintained the stream is virtually endless.

The Supreme Court agreed.

“Were the matter otherwise, Monsanto’s patent would provide scant benefit,” Kagan wrote, adding: “Our holding today is limited—addressing the situation before us, rather than every one involving a self-replicating product.”

The Obama administration had told the Supreme Court in a filing that the justices should not concern themselves with the possibility that such rigid patent protectionism could undermine traditional farming techniques, where parts of one harvest are often used to produce the next. The administration said Congress “is better equipped than this court” (.pdf) to consider those concerns.

Monsanto had told the court that, if the justices sided with the farmer, such a decision would doom its business model.

“Without reasonable license restrictions prohibiting the replanting of second- and later-generation soybeans, Monsanto’s ability to protect its patented technology would effectively be lost as soon as the first generation of the product was introduced into the market,” the agriculture giant told the high court in a filing.

In April 2013, FedSoc's Environmental Law & Property Rights Practice Group and Intellectual Property Practice Group poduced a podcast on the case. The podcast featured:

  • Prof. Adam Mossoff, Professor of Law, George Mason University School of Law
  • Mr. Douglas T. Nelson, Executive Vice President, General Counsel and Secretary, CropLife America
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Click here to listen to the recording.

Justice Ginsburg: Roe v. Wade Was Too Sweeping, Says Prefers “Judicial Restraint”

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by Publius
Posted May 13, 2013, 10:52 AM

According to the AP:

One of the most liberal members of the U.S. Supreme Court, Justice Ruth Bader Ginsburg could be expected to give a rousing defense of Roe v. Wade in reflecting on the landmark vote 40 years after it established a nationwide right to abortion.

Instead, Ginsburg told an audience Saturday at the University of Chicago Law School that while she supports a woman's right to choose, she feels the ruling by her predecessors on the court was too sweeping and gave abortion opponents a symbol to target. Ever since, she said, the momentum has been on the other side, with anger over Roe fueling a state-by-state campaign that has placed more restrictions on abortion.

"That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly," she told a crowd of students. "... My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change."

The ruling is also a disappointment to a degree, Ginsburg said, because it was not argued in weighty terms of advancing women's rights. Rather, the Roe opinion, written by Justice Harry Blackmun, centered on the right to privacy and asserted that it extended to a woman's decision on whether to end a pregnancy.

Four decades later, abortion is one of the most polarizing issues in American life, and anti-abortion activists have pushed legislation at the state level in an effort to scale back the 1973 decision.

Ginsburg would have rather seen the justices make a narrower decision that struck down only the Texas law that brought the matter before the court. That law allowed abortions only to save a mother's life.

A more restrained judgment would have sent a message while allowing momentum to build at a time when a number of states were expanding abortion rights, she said. She added that it might also have denied opponents the argument that abortion rights resulted from an undemocratic process in the decision by "unelected old men."

Ginsburg told the students she prefers what she termed "judicial restraint" and argued that such an approach can be more effective than expansive, aggressive decisions.

"The court can put its stamp of approval on the side of change and let that change develop in the political process," she said. . . .

Asked about the continuing challenges to abortion rights, Ginsburg said that in her view Roe's legacy will ultimately hold up.

"It's not going to matter that much," she said. "Take the worst-case scenario ... suppose the decision were overruled; you would have a number of states that will never go back to the way it was."

 

 

Categories: External Articles

Legal Scholars Argue that Police Right to Use Abandoned DNA Poses a Threat

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by Publius
Posted May 13, 2013, 8:45 AM

The Boston Globe ran a lengthy article that begins:

Imagine you sto by a Starbucks one morning, and the shop is robbed only minutes after you leave. Witnesses say the perpetrator was drinking coffee, so investigators retrieve dozens of cups from the trash, looking for genetic evidence. When they analyze it, they may find the robber’s DNA, but they’re going to find many other people’s as well—including yours.

What can they do with that information?

Instinctively, it feels like the answer should be “nothing”—that the DNA is yours, and anyone who uses it without your permission has crossed a line. Those molecules contain data about your heritage, your appearance, your predisposition to disease—all kinds of secrets you had no intention to release to the world when you threw your cup away.

But the legal reality is something quite different: Your DNA has just entered a gray area.

“In general the idea is anything you intentionally relinquish to the public, to scavengers, in the garbage, is free for anyone,” said Elizabeth Joh, professor of law at the University of California Davis. This is true for your hard drive, your diary, your credit card statements—and it’s true for your DNA, regardless of whether you realize you’re casting it aside.

Legal scholars call this material “abandoned DNA,” and Joh is one of a handful of thinkers saying it’s time the law reckoned with what rights we have to this trove of extremely personal information. Detritus containing DNA was effectively useless to most people two decades ago. But today it is becoming faster and cheaper to sequence fragments of DNA—revealing the unique genetic material that begins to make us who we are—and the law has yet to catch up. State laws are a patchwork of regulations, and most jurisdictions, including Massachusetts, are mum about the privacy status of the DNA we leave behind us every day.

Legal scholars argue that the free-for-all status of abandoned DNA poses an immediate threat to our privacy, not just because of problems that might arise down the line, but because of abuses that are already possible. The problem is hard to solve because abandoned DNA doesn’t fit neatly into any of our existing legal categories: We have a strong expectation of privacy about our medical records, and state and federal laws increasingly protect genetic information; by contrast, simple property left behind belongs to anyone who picks it up. The DNA we leave behind is neither and both: It is garbage that also contains vital information. And right now, as far as the law is concerned, it is essentially fair game.

***

To the extent that the legal system is grappling with abandoned DNA, it’s chiefly in the criminal realm. Police are making more active use of DNA all the time, collecting and storing the information it contains, and a vigorous debate is underway about the privacy rights we have over our DNA in the context of an investigation. Later this spring the Supreme Court will decide, in the case Maryland v. King, whether the police can force a suspect to give a DNA sample when he or she has merely been arrested—but not yet convicted—for a crime.

“Abandoned DNA” comes into play when the police don’t have a DNA sample, and can’t force a suspect to give one up. In Washington in 2003, police posed as a fictitious law firm and sent a letter with a return envelope to a murder suspect named John Nicholas Athan, inviting him to participate in a fake class-action lawsuit. He replied, and police lifted DNA from Athan’s saliva on the seal of the envelope and used it to convict him of the killing. The Washington State Supreme Court reviewed the technique and ruled it permissible, explaining that as soon as a letter goes in the mail, “The envelope, and any saliva contained on it, becomes the property of the recipient.”

What might at first seem like clever police work strikes Joh as a very slippery slope. In treating DNA the same way we treat the envelope it came on, she suggests, we miss some important differences. First, DNA is uniquely hard to hang onto: It’s in stray hairs and on chewing gum, and we constantly give it away without choosing to. “What can a person do to so stop shedding DNA?” she asks. Second, there is a meaningful difference between physical objects that contain DNA and the information encoded on them. The former is just spit on the sidewalk; the latter reveals facts about us that we may not even want to know ourselves, and we’d like to think that the law can also make that distinction.

That might sound very subjective—that the difference between a molecule of gum and a molecule of DNA is how we feel about it—but privacy law does sometimes hinge on just that. In a landmark 1967 decision, the Supreme Court expanded Fourth Amendment rights, which prohibit illegal searches and seizures, to include what Justice John Harlan called the “reasonable expectation of privacy”—which, to genetic-privacy advocates, clearly applies to DNA. . . .

 

Categories: External Articles

IRS Apologizes for Inappropriately Targeting Conservative Political Groups in 2012 Election

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by Publius
Posted May 10, 2013, 12:58 PM

The Associated Press reports:

The Internal Revenue Service inappropriately flagged conservative political groups for additional reviews during the 2012 election to see if they were violating their tax-exempt status, a top IRS official said Friday.

Organizations were singled out because they included the words "tea party" or "patriot" in their applications for tax-exempt status, said Lois Lerner, who heads the IRS division that oversees tax-exempt groups.

In some cases, groups were asked for their list of donors, which violates IRS policy in most cases, she said.

"That was wrong. That was absolutely incorrect, it was insensitive and it was inappropriate. That's not how we go about selecting cases for further review," Lerner said at a conference sponsored by the American Bar Association.

"The IRS would like to apologize for that," she added.

Lerner said the practice was initiated by low-level workers in Cincinnati and was not motivated by political bias. After her talk, she told The AP that no high level IRS officials knew about the practice.

Agency officials found out about the practice last year and moved to correct it, the IRS said in a statement. The statement did not specify when officials found out.

About 75 groups were inappropriately targeted. None had their tax-exempt status revoked, Lerner said.

Senate Republican Leader Mitch McConnell of Kentucky called on the White House to investigate.

"Today's acknowledgement by the Obama administration that the IRS did in fact target conservative groups in the heat of last year's national election is not enough," McConnell said. "I call on the White House to conduct a transparent, government-wide review aimed at assuring the American people that these thuggish practices are not under way at the IRS or elsewhere in the administration against anyone, regardless of their political views."

Many conservative groups complained during the election that they were being harassed by the IRS. They accused the agency of frustrating their attempts to become tax exempt by sending them lengthy, intrusive questionnaires.

The forms, which the groups made available at the time, sought information about group members' political activities, including details of their postings on social networking websites and about family members.

Certain tax-exempt charitable groups can conduct political activities but it cannot be their primary activity.

IRS Commissioner Douglas Shulman told Congress in March 2012 that the IRS was not targeting groups based on their political views.

"There's absolutely no targeting. This is the kind of back and forth that happens to people" who apply for tax-exempt status, Shulman told a House Ways and Means subcommittee.

Shulman was appointed by President George W. Bush. His 6-year term ended in November. President Barack Obama has yet to nominate a successor. The agency is now being run by acting Commissioner Steven Miller.

"The Ways and Means Committee has persistently pushed the IRS to explain why it appeared to be unfairly targeting some political groups over others – a charge they repeatedly denied," said Rep. Charles Boustany, R-La., chairman of the Ways and Means oversight subcommittee.

"The IRS's `too little too late' response is unacceptable, and I will continue to work to ensure there are protections in place so no American, regardless of political affiliation, has their right to free speech threatened by the IRS," Boustany said.

Tea Party groups were livid on Friday.

"I don't think there's any question we were unfairly targeted," said Tom Zawistowski, who until recently was president of the Ohio Liberty Coalition, an alliance of tea party groups in the state.

Zawistowski's group was among many conservative organizations that battled the IRS over what they saw as its discriminatory treatment of their effort to gain non-profit status. The group first applied for non-profit status in June 2009, and it was finally granted on Dec. 7, 2012, he said – one month after Election Day.

During the 2012 election, many tea party groups applied for tax-exempt status under section 501 (c) (4) of the federal tax code, which grants tax-exempt status to social welfare groups. Unlike other charitable groups, these organizations are allowed to participate in political activities but their primary activity must be social welfare.

That determination is up to the IRS.

Lerner said the number of groups filing for this tax-exempt status more than doubled from 2010 to 2012, to more than 3,400. To handle the influx, the IRS centralized its review of these applications in an office in Cincinnati.

Lerner said this was done to develop expertise among staffers and consistency in their reviews. As part of the review, staffers look for signs that groups are participating in political activity. If so, IRS agents take a closer look to make sure that politics isn't the group's primary activity, Lerner said.

As part of this process, agents in Cincinnati came up with a list of things to look for in an application. As part of the list, they included the words, "tea party" and "patriot," Lerner said.

"It's the line people that did it without talking to managers," Lerner. "They're IRS workers, they're revenue agents."

In all, about 300 groups were singled out for additional review, Lerner said. Of those, about a quarter were singled out because they had "tea party" or "patriot" somewhere in their applications.

The IRS statement said that once applications were chosen for review, they all "received the same, even-handed treatment."

Lerner said 150 of the cases have been closed and no group had its tax-exempt status revoked, though some withdrew their applications.

"Mistakes were made initially, but they were in no way due to any political or partisan rationale," the IRS said in a statement. "We fixed the situation last year and have made significant progress in moving the centralized cases through our system."

Marcus S. Owens, who spent a decade leading the IRS division that oversees tax-exempt organizations, said Friday that it made sense that the problem arose among workers in Cincinnati because the agency "really has delegated a lot of authority" to local offices to make decisions about handling their workload.

But Tea Party groups weren't buying the idea that the decision to target them was solely the responsibility of low-level IRS workers.

"It is suspicious that the activity of these `low-level workers' was unknown to IRS leadership at the time it occurred," said Jenny Beth Martin, national coordinator for Tea Party Patriots, which describes itself as the nation's largest tea party organization. "President Obama must also apologize for his administration ignoring repeated complaints by these broad grassroots organizations of harassment by the IRS in 2012, and make concrete and transparent steps today to ensure this never happens again."

 

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Dershowitz: Ted Cruz One of My Smartest Students at Harvard Law

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by Publius
Posted May 10, 2013, 10:21 AM

The Daily Caller reports:

Famed Harvard Law School professor Alan Dershowitz ranks Sen. Ted Cruz among the school’s smartest students, adding that the Canada-born Texan can run for president in 2016.

Cruz was a “terrific student,” Dershowitz told The Daily Caller. “He was always very active in class, presenting a libertarian point of view. He didn’t strike me as a social conservative, more of a libertarian.”

“He had brilliant insights and he was clearly among the top students, as revealed by his class responses,” Dershowitz added.

Dershowitz also gave a high estimate of Massachusetts Democratic Sen. Elizabeth Warren — who has decidedly different political views than Cruz.

Dershowitz says he and Cruz would often debate issues presented in Dershowitz’s criminal law class. “Cruz’s views were always thoughtful and his responses were interesting,” the law professor explained. “I obviously disagreed with them and we had good arguments in class. I would challenge him and he would come up with very good responses.”

Cruz’s “career has not surprised me. I thought he would go on to accomplish important things.”

“His movement toward social conservatism has surprised me a little bit,” Dershowitz added, but “people will change and perhaps when you are at Harvard Law School you are less likely to espouse a socially conservative point of view.”

Cruz “was an outstanding student in my class,” Dershowitz said. “Without a doubt he is among the smartest students I’ve ever had… I’ve had great students but he has to be at the top of anyone’s short list, in terms of raw brain power.”

Dershowitz places Cruz alongside Warren among the Senate’s smartest members.

“Their election raised the IQ level of the Senate discernibly. The two of them have to be among the smartest senators now,” Dershowitz said.

Dershowitz and Cruz stayed in touch when Cruz was a law clerk for Justice William Rehnquist and then Texas solicitor general. Dershowitz called Cruz and wished him well when he ran for U.S. Senate.

Does Dershowitz think Cruz should run for president?

“The question is whether he can,” Dershowitz said. “I think he can. I think he’s a natural-born citizen and therefore he’s eligible to run. There will be challenges, perhaps, to his eligibility.”

But Dershowitz doesn’t think that his old student would win the 2016 GOP nomination.

“I don’t think he’ll get the nomination when you think about Rubio and posturing himself a little more to the center on immigration,” Dershowitz said. “Cruz won’t run in 2016 and that he’ll wait. Just a prediction. He would probably establish himself first before he ran.” . . .

Senator Cruz delivered the keynote address at FedSoc's 2013 Annual Student Symposium.  To read a summary of his remarks, click here.

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DOJ and FBI Say Don’t Need Warrants to Obtain E-Mails, Facebook Chats

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by Publius
Posted May 10, 2013, 7:06 AM

According to CNET:

The U.S. Department of Justice and the FBI believe they don't need a search warrant to review Americans' e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.

Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they're not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.

The U.S. attorney for Manhattan circulated internal instructions, for instance, saying a subpoena -- a piece of paper signed by a prosecutor, not a judge -- is sufficient to obtain nearly "all records from an ISP." And the U.S. attorney in Houston recently obtained the "contents of stored communications" from an unnamed Internet service provider without securing a warrant signed by a judge first.

"We really can't have this patchwork system anymore, where agencies get to decide on an ad hoc basis how privacy-protective they're going to be," says Nathan Wessler, an ACLU staff attorney specializing in privacy topics who obtained the documents through open government laws. "Courts and Congress need to step in."

The Justice Department's disinclination to seek warrants for private files stored on the servers of companies like Apple, Google, and Microsoft continued even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. A previously unreleased version of an FBI manual (PDF), last updated two-and-a-half years after the appellate ruling, says field agents "may subpoena" e-mail records from companies "without running afoul of" the Fourth Amendment. . . .

Not all U.S. attorneys have attempted to obtain Americans' stored e-mail correspondence without a warrant. The ACLU persuaded a judge to ask whether warrantless e-mail access has taken place in six of the 93 U.S. Attorneys' offices -- including the northern California office that's prosecuted an outsize share of Internet cases. The answer, according to assistant U.S. attorney Christopher Hardwood, was "no."

Still, the position taken by other officials -- including the authors of the FBI's official surveillance manual -- puts the department at odds with a growing sentiment among legislators who insist that Americans' private files should be protected from warrantless search and seizure. They say the same Fourth Amendment privacy standards that require police to obtain search warrants before examining hard drives in someone's living room, or a physical letter stored in a filing cabinet, should apply.

After the IRS's warrantless e-mail access policy came to light last month, a dozen Republican and Democratic senators rebuked the agency. Their letter (PDF) opposing warrantless searches by the IRS and signed by senators including Mark Udall (D-Colo.), Mike Lee (R-Utah), Rand Paul (R-Ky.), and Ron Wyden (D-Ore.) said: "We believe these actions are a clear violation of the Fourth Amendment's prohibition against unreasonable searches and seizures."

Steven Miller, the IRS' acting commissioner, said during a Senate hearing that the policy would be changed for e-mail. But he left open the possibility that non-email data -- Google Drive and Dropbox files, private Facebook and Twitter messages, and so on -- could be accessed without a warrant. . . .

 

 

 

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6th Circuit Revives Michigan Law Barring School Districts from Deducting Teachers’ Union Dues

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by Publius
Posted May 09, 2013, 5:48 PM

Education Week reports:

A federal appeals court on Thursday reinstated a Michigan law that bars school districts from deducting teachers' union dues for their employees.

A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 2-1 that the state's Act 53, a 2012 measure that by its own terms was meant as "a check on union power," likely does not violate the free speech or equal protection rights of teachers' unions. The court threw out a lower court's injunction that had kept the law from taking effect.

The case accepts as a given that public-employee unions benefit from having agencies such as cities or school districts collect union dues and fees from their workers and pass them along to the unions. When the unions have to collect such dues on their own, there are added transaction costs as well as less of a yield than when the dues are withheld from government paychecks.

The National Education Association and its Michigan affiliate argued in their challenge to Act 53 that by barring only school employers (as opposed to cities, counties, or other agencies) from withholding dues for union-affiliated employees, the state was practicing a form of viewpoint discrimination that infringed the free speech rights of the teachers' unions.

The 6th Circuit majority rejected the arguments.

"Public Act 53 does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind," Judge Raymond M. Kethledge wrote for the majority in the May 9 decision in Bailey v. Callaghan. "Instead, the act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. That is not a First Amendment concern."

The majority said a 2009 decision by the U.S. Supreme Court in Ysursa v. Pocatello Education Association foreclosed one of the NEA's key arguments because that ruling said the First Amendment "does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression."

But in a lengthy dissent, Judge Jane Branstetter Stranch said the Supreme Court's Ysursa decision involved an Idaho restriction on public-payroll checkoffs for union political activities, not for general dues. And the Idaho restriction at issue covered all public-employee unions, "not just a disfavored few," Stranch said.

She said Act 53 "impermissibly discriminates against school unions because Michigan disagrees with the positions they advocate." . . .

 

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Can Disparities in Gender and Ideology at Harvard Law School Be Compared?

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by Publius
Posted May 09, 2013, 4:01 PM

Nicholas Rosenkranz, professor at Georgetown Law School, comments at the Volokh Conspiracy:

The Harvard Crimson is currently running “a three-part series on gender disparity issues at [Harvard] Law School.” Part I reports that there are 17 tenured or tenure-track women out of 92 total on the Harvard Law School faculty. It goes on to report:

Since she took the helm of the school four years ago, [Dean] Minow has worked to change these numbers. Her first step: hiring equal numbers of men and women for entry-level faculty positions since 2009. This year, the Law School has made two hiring offers, one to a man and one to a woman.

Annually, the entry-level hiring committee conducts about 40 interviews, which are balanced in terms of gender breakdown. From these initial interviews, the hiring committee whittles down the pool of potential candidates, who must present to a faculty workshop, secure the recommendation of the hiring committee, and finally secure the approval of the faculty as a whole before they are hired. All the while, the hiring committee is careful to retain an equal number of male and female candidates, according to Law School professor David J. Barron ’89, chair of the entry-level committee.

The goal of having more female faculty members is “very much part of the consciousness, and consciousness matters,” said Barron.

At least as described, this sounds rather like a strict 50/50 gender quota, doesn’t it?

Reading this article, I couldn’t help but recall the recent conference on intellectual diversity at Harvard Law School. Readers may recall that Dean Minow issued an eloquent endorsement of intellectual diversity in conjunction with that conference:

“He who knows only his own side of the case, knows little of that.” John Stuart Mill’s insight carries importance for any place of learning and special significance for a law school. For one cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections. Even if there were no other reasons available, this would supply sufficient basis for a robust commitment to intellectual diversity among the faculty and students, courses and journals, activities and speakers at Harvard Law School.

But there are other powerful reasons to pursue and nurture intellectual diversity at Harvard Law School. We recruit extraordinary students and work hard to equip them to pursue great careers and great dreams. Both in honing their aspirations and equipping them to achieve them, nothing works as well as serious intellectual encounters with smart and motivated individuals with varied viewpoints. Faculty and students also advance knowledge and law reform through scholarship and public service. Here, too, debates within and across groups deepen scholarship and test law reform ideas. It would be wonderful if one did not have to leave Harvard Law School to discover objections and improvements to descriptions and revisions of financial institution behavior, consumer products safety, national security strategies, federalism, and constitutional adjudication, just to name a few current subjects of research and reform work, but it will suffice if being at Harvard Law School affords faculty and students with super preparation for any ideas and concerns that may be encountered elsewhere. This is the path of truth-seeking; this is the method of iterative improvement. Yet there is at least one more crucial reason for placing priority in intellectual diversity within this institution. The bet made by commitments to the rule of law and to democracy is that we can use reason and participatory institutions to govern diverse and often contentious individuals and groups. That bet cannot prevail without cultivation of leaders who set the example for civil and curious engagement across all kinds of divides—be they defined by race, region, class, language, political party, gender, ideology, or other signifiers of difference. Modeling and cultivating honest and engaged discussion across lines of difference is not only our best practice. It is our commitment to make good on the privileges that the Harvard Law School enjoys, reflects, and bestows.

John Stuart Mill also wrote, “In all intellectual debates, both sides tend to be correct in what they affirm, and wrong in what they deny.” I am not sure he is right, but I think we will make more progress testing this and many other propositions in the company of talented people who draw sustenance from varied and clashing intellectual resources. We may even find surprising points of agreement and convergence, but we would not even know of this wonderful possibility in the absence of intellectual diversity.

In light of Dean Minow’s statement, I wonder whether the goal of having more conservative/libertarian faculty members is now also “very much part of the consciousness” at Harvard. (For what it’s worth, women are far better represented than conservatives/libertarians on almost all top law faculties, including Harvard’s.) Will Harvard Law School also be adopting a strict 50/50 quota for intellectual diversity? Is this sort of quota appropriate for gender? If so, would it not also be appropriate for ideology?

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