AB 1024 was passed by the California Assembly and Senate in September, largely in response to a pending case before the California Supreme Court. Sergio Garcia graduated from law school and passed the California bar exam. He was initially granted a law license, but it was then rescinded due to his undocumented status.
Garcia had been brought to the U.S. as a toddler, went back to Mexico at the age of 9, then returned to the U.S. as a teenager. He has been waiting for a green card for nearly 10 years. The California Supreme Court heard oral arguments in early September and early indications were that Garcia's bid for admission would be unsuccessful, prompting the legislature to act.
The U.S. Supreme Court has cited Internet materials 555 times since 1996, but tracking down the information isn’t always easy.
According to a new study by co-authored by Harvard law professor Jonathan Zittrain, half of the hyperlinks in Supreme Court opinions no longer link to the information originally cited. The New York Times covers the results. “Supreme Court opinions have come down with a bad case of link rot,” the Times says.
Click for full screenshot.
According to the study, many of the links did turn up Web pages, but
they didn’t go to the original information cited or the information had
materially changed. Sometimes when the information changed, there was no
note indicating the update.
The Times notes one hyperlink in an opinion about violent video games
by Justice Samuel A. Alito Jr. Users who click on the link are taken to
an error message
that reads: “Aren’t you glad you didn’t cite to this Web page? … If you
had, like Justice Alito did, the original content would have long since
disappeared and someone else might have come along and purchased the
domain in order to make a comment about the transience of linked
information in the Internet age.”
The Supreme Court clerk does keep a hard copy of hyperlinked
materials, but Zittrain suggest another solution: a platform that would
allow authors to generate, store, and reference archived data. He is
working on such a platform, called Perma.cc, which is supported by a
group of law libraries and nonprofits. Though the project would
initially focus on legal scholarship, it would also work for the Supreme
Court, Zittrain told the Times.
An ABA task force is recommending wholesale changes in the financing
of legal education, the elimination of some law school accreditation
standards, and it is pushing for more innovation and practical skills
training in law school educational programs.
The task force is also calling on courts, state bar associations and
bar admitting authorities to come up with new or improved frameworks for
the licensing of limited legal service providers.
[T]ask force member Nancy Hardin Rogers, a professor emeritus
at Ohio State University, wrote separately to seek public comment on a
different approach to some of the law school pricing and funding
problems identified by her colleagues.
Rogers noted a recent proposal by the Obama administration (and cited this New York Times
article that covered it) that would base federal financial aid to
students on such factors as a school’s tuition, graduation rates, debt
loads, earnings potential and the percentage of lower-income students
The task force recommends, among other things, that the ABA undertake
a fuller examination of law school funding and pricing issues than the
task force has been able to do. It also suggests that the ABA Section of
Legal Education and Admissions to the Bar revise accreditation
standards that increase the costs but not necessarily the quality of a
legal education. And it calls on state supreme courts, state bar
associations and lawyer regulatory agencies to look for ways to reduce
the educational requirements for admission and authorize people without
JDs to provide limited legal services.
The task force will use the public comments it receives on the draft
report to help prepare its final report and recommendations, which it
plans to issue by Nov. 20, the filing deadline for consideration by the
House of Delegates at the ABA’s Midyear Meeting in February in Chicago.
A research attorney working for the Kansas Court of Appeals lost her job and now faces disciplinary action from the Kansas state bar. It's all because of tweets she sent about a former Kansas attorney general with his own ethics issues. The former AG was appearing in front of the Kansas Supreme Court regarding his conduct while attorney general. The research attorney was apparently viewing the proceedings online using her work computer from her office in the same building. She sent several colorful tweets (you can read the text of her ill-advised tweets here). She later said that she'd intended the tweets for a few friends and didn't realize they were publicly visible.
On November 7, the U.S. Court of Appeals for the Seventh Circuit reversed a 2011 decision allowing two Americans to recover damages from former Secretary of Defense Donald Rumsfeld for torture they endured at the hands of the American military in Iraq. In Vance v. Rumsfeld , the court held that “a common-law right of action for damages should not be created” and that in any case Rumsfeld and other “remote superiors” were entitled to immunity for such conduct.
The court’s decision is in line with recent decisions out of the Fourth Circuit and the District of Columbia Circuit, although the ruling is said to go further (see a New York Times editorial here). Importantly, the decision also marks a departure from the 41-year-old Supreme Court precedent in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). In Bivens, the Court held that when federal agents inflict harm in violation of the Fourth Amendment, individuals suffering such harm may recover damages.
The dissent in Vance contended that the ruling confers “absolute civil immunity to the U.S. military for violations of civilian citizens’ constitutional rights” and “leave[s] citizens legally defenseless to serious abuse or worse by their own government.” [REG]
this week, Governor Jerry Brown signed a bill that would allow California
voters to register to vote as late as Election Day. While the law does
not take effect this year, it is expected to be in place by the 2016
presidential election or even sooner, depending on how quickly the State is
able to establish the required voting database (more information about the
legislation, AB1436, can be found here).
the meantime, California’s current law requires registration 15 days prior to
an election: October 22 for this year’s General Election (November 6). Also, it is very important to double-check your registration status even if you already registered, because technical errors often prevent voters for accessing the polls on Election Day. For California,
below are some useful links:
The City and County of San Francisco retained Aequitas, an audit firm, to review residential mortgage loans that resulted in 2009-2011 foreclosure sales. The Aequitas report begins with a short primer on California residential lending and foreclosure law, explaining that California's statutory foreclosure process used by most lenders is a non-judicial process with very little oversight. Alarmingly, Aequitas reports:
Overall, we identified one or more irregularities in 99% of the subject loans. In 84% of the loans, we identified what appear to be one or more clear violations of law.
The report goes onto detail the particular types of irregularities and their respective frequencies (full report). The report concludes:
... with so many homes being foreclosed and with so little oversight, California’s foreclosure process appears utterly broken.... California’s real estate laws were designed to address a far simpler, much different market.... California’s hoary statutory foreclosure process is complicated by outmoded assumptions and problematic ambiguities. It is in the best interest of all—the mortgage industry, securities investors, homeowners and communities—to modernize California’s real estate laws so that these issues are more effectively addressed.
In November 2011, the University of San Diego Moot Court Board hosted the 23rd Annual Criminal Procedure National Tournament. This year’s problem was written by USD Moot Court Executive Board member Matthew Stephens. One of the two issues argued in the competition was whether warrantless installation and use of a GPS tracking device on a suspect's vehicle to monitor its movements on public streets violates the Fourth Amendment.
Earlier this week, the United States Supreme Court answered with a unanimous "yes" in United States v Jones, 565 U. S. __ (2012), but the justices differed widely on their reasoning.
The majority opinion, authored by Justice Scalia (joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor), presents the case as a fairly straightforward search and seizure case of the physical trespass variety. The Fourth Amendment guarantees persons the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…" Jones' vehicle is his "effect." Law enforcement physically intruded upon Jones' vehicle in the process of installing and receiving data from the GPS tracking device. In true Originalist fashion, Scalia reasons that the framers would have recognized such physical intrusion as a search and, therefore, it constitutes a search.
Scalia summarily dispenses with more recent cases that have addressed GPS and other surveillance technology under a "reasonable expectation of privacy" analysis introduced in under Katz v. United States, 389 U.S. 347 (1967). He reasons that this case requires no "reasonable expectation of privacy" analysis because the Fourth Amendment protects against, at a minimum, physical trespass. The "reasonable expectation of privacy analysis" is only required for actions that do not involve a physical trespass. In Scalia's words, "the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." Jones, slip op. 8.
In compartmentalizing physical trespass searches separately those involving no physical trespass, the court avoids answering the bigger questions about the Fourth Amendment (and other privacy law) implications of current and future technologies.
Justice Sotomayor joined Justice Scalia's opinion (winning him the majority) but also filed her own concurring opinion. Justice Sotomayor endorses Justice Scalia's framing of physical trespass searches: "the trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs." Jones, slip op. Sotomayor concurrence, 2. But Justice Sotomayor goes on to express concern over searches that do not involve physical trespass, even when the party seeking to protect a privacy interest has willingly provided the contested information to a third party.
Justice Alito's concurring opinion (joined by Justices Ginsburg, Breyer, and Kagan) rejects Justice Scalia's analysis of physical trespass searches, asserting that the "reasonable expectation of privacy" analysis set out in Katz provides the exclusive test for all Fourth Amendment cases. In particular, Justice Alito points to Oliver v. United States, 466 U. S. 170 (1984), in which a police trespass onto a suspect's "open field" was found not to constitute a search within the meaning of the Fourth Amendment: "[I]n determining whether expectations of privacy are legitimate. ‘The premise that property interests control the right of the Government to search and seize has been discredited’" (citations omitted). Jones, slip op., Alito concurrence, 6.
There's no shortage of commentary in the blawgosphere - here are just a few posts:
Washington Post: Robert Barnes, Supreme Court Warrants Needed in GPS Tracking
Slate: Dahlia Lithwick, US v Jones Supreme Court Justices Alito and Scalia brawl over technology and privacy
SCOTUS Blog: Tom Goldstein, Reactions to Jones v. United States: The government fared much better than everyone realizes
SCOTUS Blog: Lyle Denniston, Opinion Recap Tight Limit on Police GPS Use
NY Times: Adam Liptak, Justices Say GPS Tracker Violated Privacy Rights