Law

The Verizon Data Order and Why It Matters

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G lenn Greenwald of The Guardian had a major scoop yesterday, revealing a court order requiring the communications giant Verizon to hand over information about all the calls in its system, domestic or international. As Greenwald explains, this means "the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing." This is a major story that reveals glaring flaws in the current rules governing surveillance and national security—p articularly since, as Atlantic Wire 's Elspeth Reeve points out , it's unlikely that Verizon is the only company being required to turn over records of the calls made by its customers, or that this is the only type of information being sought by the government To be clear, the potential legal and policy problems of this policy are not the same as those of the Bush administration's warrantless wiretapping, which went ahead without the approval of the special...

Scalia Gets It Right

AP Images/Charles Rex Arbogast
The collection of DNA evidence is a powerful crime-control tool, but it also has the potential to lead to greater invasions of privacy. Today, a bare majority of the Supreme Court held in Maryland v. King that the former considerations should outweigh the latter. The Court's ruling both creates important Fourth Amendment law and illustrates some important facts about the personnel on the Court. The question at issue in Maryland v. King is whether DNA information could be collected (via a cheek swab) from someone arrested for—but not convicted of—an offense. The facts of the case certainly make a superficially compelling argument for permitting the practice, as DNA evidence collected from Alonzo King was used to identify him as a suspect in a rape case. But the fact that the policy "worked" in this particular case is not, in itself, an argument that the practice of collecting DNA information from people who haven't been convicted of a crime is a "reasonable" search and seizure under...

Not Too Shabby So Far: Obama's Judicial Legacy

flickr/The Library of Congress
Flickr/Cliff E arlier this week, the White House announced that President Barack Obama would name nominees to fill three vacant seats on the D.C. Circuit Court, touching off a new battle between the White House and Republicans over filibusters and presidential privileges. Despite the fact that appointing judges is one of the powers given to every president by the Constitution, some Republicans reacted as though Obama were doing something horrible by fulfilling this obligation. (You'd almost think they didn't accept the legitimacy of his presidency.) In any case, this argument is likely to heat up over the next few weeks, so we might benefit from some context as charges and counter-charges start flying. To begin with, some background. The nominations at issue here are those to the circuit courts—also known as the courts of appeals—and to the district courts. There are 13 circuit courts with a total of 179 seats, and 89 district courts with a total of 677 seats. The circuit court seats...

Shorting the D.C. Circuit

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Flickr/Cliff At least since the Reagan administration, Republicans have taken judicial nominations, especially to the federal circuit courts , much more seriously than Democrats have. As a result, Republican presidents have gotten relatively more nominees confirmed, and their nominees have been younger and more ideologically consistent than their Democratic counterparts. Yesterday, however, there was a sign that this could be changing. As the Prospect 's Paul Waldman noted , Michael Shear of The New York Times reported that President Obama would be simultaneously nominating individuals for all three current vacancies on the D.C. Circuit. This move is clearly intended to make Republican obstructionism a major issue of Obama's second term. And while it's not clear how this bold advance will play out, under any scenario something good will come out of it. As Waldman notes, for now the central Republican argument against the nominations is that Obama is trying to "pack the court." As...

Republicans Looking Sheepish On Obama Court Nominees

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One of the biggest criticisms activist liberals have had of the Obama administration is that they have not moved aggressively to put their stamp on the federal judiciary. While there has certainly been Republican obstruction of Obama nominees, in many cases the administration hasn't even bothered to nominate anyone to open seats. There are currently 82 vacancies on the federal bench, and in 58 of those, the administration has offered no nominee. So it's good news that they have announced that they are about to offer nominations for the three vacancies on the Court of Appeals for the D.C. Circuit, widely considered the second most important court in the nation, since it hears many critical cases involving the scope of government power. It looks like the administration is betting that the more nominations they put up at the same time, the more attention the issue will get if Republicans try to block them, and the more attention it gets, the more difficult Republican filibusters will be...

Washington, Colorado, and the Headaches of a Legal High

AP Photo/Damian Dovarganes
When Colorado and Washington State passed ballot measures legalizing marijuana last November, they weren’t just the first states in the country to do so—they were the first governments in the world to do so. While other nations and states, most notably the Netherlands and California, have decriminalized marijuana possession, the drug is still technically illegal. That means that while it’s tolerated by law enforcement, the government need not concern itself with a full-scale system for regulation and taxation. But there are advantages to legalizing the drug; Washington and Colorado can have a hand in making the product safer while they benefit from tax revenues. Both states are in the early stages of creating systems for taxation and regulation; the Washington State Liquor Control Board released a set of standards earlier this month, while Colorado’s state legislature has passed a series of recommendations from a task force. The differences between the two states' approaches will...

Five Voting Fights You’ll Care About Come Election Time

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Remember last year when we all cared about voting policies? Back then, newspapers were filled with updates on different states’ legal battles over strict voter ID—the laws that require photo identification to cast a ballot. Republicans pushed the laws, ostensibly to combat fraud, but Democrats and voting-rights advocates argued that the actual goal was to suppress likely Democratic voters, since poor and nonwhite communities disproportionately lack ID. With Republicans controlling an unprecedented number of state legislatures in the wake of the 2010 Tea Party wave, voter-ID bills began popping up across the country in 2011 and 2012. Similar battles emerged when some states tried to remove names from voter rolls too close to an election. Then there was early voting; Republicans, most notably in Florida and Ohio, cut back early voting days and hours, and voters in several Florida counties faced hours-long lines. Then Obama won, created a commission to find solutions and everyone stopped...

The DOJ's Freedom of Speech Breach

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O n Monday, news broke that federal officials had secretly seized the phone records of Associated Press reporters. AP President Gary Pruitt reacted with understandable anger, calling the seizure "an overbroad collection of the telephone communications of The Associated Press and its reporters." Is Pruitt right? There are two questions that need to be answered. Was the seizure legal? And, if so, was it justified? The answer to to the first question, at least based on what we know now, is "probably." A subpoena for records as part of an investigation, as opposed to a search warrant, does not require judicial approval. Intuitively, it may seem as if the First Amendment should shield the press from government investigators. But, at least under current Supreme Court doctrine, this isn't the case. In the 1972 landmark case Branzburg v. Hayes , the Court held that "[t]he First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury...

D.C. Circuit v. Worker Rights

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Last week, a decision by the D.C. Circuit Court of Appeals provided an excellent example of how both presidential action and inaction can matter. Because of the former, the National Labor Relations Board had issued a rule intending to alleviate the power disparities between workers and employers. But in part because of action by Republican presidents and inaction by Democratic presidents, the rule is no longer in effect. And while the outcome of the case is hardly surprising, the sheer radicalism of the court's holding is yet another sign of how in the tank much of the powerful D.C. Circuit is for powerful business interests. The case involved a 2011 regulation issued by the NLRB which required employers to post notices informing workers of their right to join a union and providing basic information about how to contact the NLRB. The regulation was challenged by business groups based on an assortment of legal arguments. The District Court upheld the authority of the NLRB to issue the...

LLM: Lawyers Losing Money

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American University’s Washington College of Law (WCL) is in crisis. Situated in the toughest job market for lawyers in the United States, the Washington, D.C. school has fallen 11 spots in the U.S. News rankings since the class of 2013 applied. This is in part due to the release of detailed employment statistics that show the schools’ full-time, long-term legal employment rate of 39 percent ranks 5th out of 7 area law schools. A group of students have started a petition to fire Dean Claudio Grossman and a WCL theatrical troupe staged a play, “Grossman’s Eleven,” alluding to the 2001 heist movie starring George Clooney. The school is undergoing a $130 million expansion and has moderately grown its LLM program—a once rare post-graduate degree whose recent proliferation is becoming to critics a symbol of unscrupulous law school practices. American is not alone in growing its LLM program. From the early 1970s to the late 1990s, the LLM was a marginal degree aimed primarily at foreign...

The House Takes Mass Incarceration to Task

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AP Photo I n today's Washington, the formation of a bipartisan committee and/or commission is generally reason to cringe . Today, however, Congress created a bipartisan committee that could deserve optimism. The House Committee on the Judiciary Over-Criminalization Task Force will address an extremely severe problem: mass incarceration in the United States. There is very good reason for the formation of the committee. The rates of incarceration in this country are staggering . The United States imprisons more people per capita than any country in the world—not only far more than any comparable liberal democracy, but more than the world's authoritarian regimes as well. Even worse, this mass incarceration reflects and exacerbates racial and economic inequalities. As scholars such as Michelle Alexander and Becky Pettit have shown in chilling detail, mass incarceration has taken a massive toll on racial minorities. One in every 36 Hispanic men over the age of 18—and one in 15 African-...

Schneiderman Strikes Back

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New York Attorney General Eric Schneiderman, who headed a group of state attorneys general that won homeowners and former homeowners a $26 billion settlement from five mega-banks over their foreclosure abuses, announced yesterday that he’d sue two of the banks—Wells Fargo and Bank of America—for allegedly violating the terms of the settlement. The February 2012 settlement with those two banks, as well as JP Morgan Chase, Citibank, and Ally Financial (formerly GMAC), had required the banks to adhere to a set of standards that would end the kind of abuses that had led to wholesale foreclosures of homes when they could have worked out alternative arrangements with the homeowners. Some of those standards—such as requiring the banks to notify struggling homeowners within five days that they had received the documents required to modify mortgages—sound so obvious they shouldn’t have needed to be codified, yet it was precisely such practices that the banks had repeatedly shunned. Homeowner...

You Think We Have Lots of Guns Now...

The first working gun made (almost) entirely on a 3-D printer.
There's even more exciting gun news today, coming from a small nonprofit organization called Defense Distributed . They announced that they have successfully test-fired a gun made almost entirely in a 3-D printer. The only part that wasn't 3-D printed was the firing pin. And the bullet, of course. Now previously, people had made gun components in 3-D printers, but prior tests of entire weapons had been unsuccessful. This raises some rather troubling questions, which we'll get to in a moment. But first, here's their short video, which shows the firing and construction of the gun, inexplicably interspersed with shots of World War II-era bombers: They may call this thing "The Liberator," but it's a little too impractical to be able to liberate anyone at the moment. It's probably highly inaccurate, and it holds only one bullet. But this is more a proof-of-concept than anything else, and if you want to, you can go to their website and download the plans, then print one out on your own 3-D...

Emotion and Reason in the Gun Debate

Images from the web site of Crickett Firearms, which sells guns for kids.
You may have heard the story of Caroline Sparks, the 2-year-old Kentucky girl who was killed this week when her brother, all of 5 years old himself, took the rifle he got for his birthday and shot her in the chest. I suppose we should be thankful this kind of thing doesn't happen even more often; as a Kentucky state trooper told CNN, "In this part of the country, it's not uncommon for a 5-year-old to have a gun." I'm sure that when gun-rights advocates heard the story, they said, "Oh geez, here we go again." They'd have to deal yet again with people being upset when innocents get killed with guns. They'd have to explain that as tragic as Caroline's death is, it doesn't mean that we should change the law on background checks. After all, that 5-year-old boy got his gun from his parents, not at a gun show. Whatever you think about gun advocates, could they be right on this point? Sure, it's a little rich coming from people who are constantly stoking fears of home invasions, fascist...

The Sequester v. The Sixth Amendment

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Fifty years ago, the Supreme Court famously declared in Gideon v. Wainwright that the government was required to supply counsel to defendants who cannot afford it. The noble ideals of the Bill of Rights, Justice Hugo Black wrote in that case, "cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him." Unfortunately, as journalist Karen Houppert demonstrates in exhaustive detail in her terrific new book, Chasing Gideon , in practice the requirements of Gideon have often been flouted by governments. This week provides two excellent examples of the way in which the dysfunctions of American government have translated into inadequate legal representation for those accused of crimes. First of all, the sequester that resulted from Republican hostage-taking in 2011 is undermining both public safety and the rights of defendants. Because of the sequester, people working in the federal public defender's office in Boston will face furloughs—...

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