Bob Dylan and the Law

Dylan - Photo Coutesy of Alberto Cabello

Today is Bob Dylan’s birthday. He is seventy (70) today. Millions of people will no doubt take note. Hundreds of bloggers too will hop on the bandwagon. Much real and electronic ink will be spilled today and why should this blog be any different?

I’ll just tell you that Dylan’s lyrics are cited in legal opinions and scholarly legal articles far more than anyone else. Almost three times more than his closest rival, the Beatles. By the end of 2007 his lyrics had been cited 186 times.

Not bad for a humble folk-singer.

Corporate Privacy

In the last two days, three remarkable things – in my life, anyway – have occurred. Justice Scalia has written two straight opinions with which I agree and Justice Roberts has made me laugh. Normally, of course, I don’t trouble you with my personal reactions to judicial opinions; they are what they are and when one piques my interest, my job is to explain it as best I can.

Both of the opinions by Justice Scalia require a longer post than I have time for today. The chuckle from Justice Roberts came in the Court’s opinion today holding that corporations – however much they get preferential treatment as real people – do not get treated as real persons with a right to “personal privacy” under Freedom of Information Act (FOIA) requests. The corporation in the case, AT&T, argued that it was entitled to personal privacy. Here is the last paragraph of Justice Robert’s opinion for the Court.

We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase“personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law 12 FCC v. AT&T INC. enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

The judgment of the Court of Appeals is reversed.

It is so ordered.

What Was Congress Thinking?

Among the things that judges and law professors love to argue about is how a judge interprets the written words of a constitution or a law. In the United States the Constitution proscribes what must happen before something becomes a law: It must be voted upon and passed by majorities in both the House of Representatives and the Senate, then signed by the President.

Truman Committee Hearings during WWII

But Congress usually does a lot of work on the proposed law before it is passed. Usually staffers write the bill, either in the White House or committee staffers in Congress do it. In the normal course, committees on both sides of the Hill hold hearings on the bills which are often rewritten or amended as the process continues. Then, before both houses of Congress vote, all congressmen have the opportunity to be heard about the bill. Their debate and the record of the hearings gets written down and saved. The statute becomes law after passage by both houses and signature by the president. (Or by both houses overriding the president’s veto.) Lawyers call the record of passage the “legislative history.”

But the language of statutes is like that of politics, “designed,” wrote Orwell, “. . .to give an appearance of solidity to pure wind.”

Laws, like all human language, can be, and often are, ambiguous. The job of “disambiguating” ambiguous laws belongs to judges.

So, of course, Justice Scalia has opinions about how they are to go about it.

So does Justice Breyer and his ideas differ from Justice Scalia’s. The two of them have been in the news lately because they sometimes go to law schools and other public fora to debate about it.

Which makes one of this week’s opinions of the Supreme Court interesting. By a vote of 7-2 the court interpreted a statute allowing a private citizen to sue on behalf of the U.S. Government when the government has been overcharged by someone or some corporation. Justice Scalia agreed with the result but added a short concurring opinion expressing his disdain for “legislative intent” as revealed by the record of congressional action before the bill became a law.

Justice Scalia, as always, is succinct:

I agree that the stray snippets of legislative history . . . the dissent have collected prove nothing at all about Congress’s purpose in enacting [the law at issue] But I do not share the Court’s premise that if a “‘legislative purpose’” were “‘evident’” from such history it would make any difference. The Constitution gives legal effect to the “Laws” Congress enacts, Art. VI, cl. 2, not the objectives its Members aimed to achieve in voting for them. If [the law’s] text includes state and local administrative reports and audits, as the Court correctly concludes it does, then it is utterly irrelevant whether the Members of Congress intended otherwise. Anyway, it is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of “history” that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.

Justice Breyer dissented, believing that the majority misinterpreted Congress’s intent in passing the law and maintaining that a it is a part of a judge’s job to resolve ambiguities by looking at legislative intent.

Unlike Scalia, Breyer hardly ever is succinct.

But it didn’t matter. Justice Breyer didn’t write the dissent. He has a new soul-mate on the question of legislative intent. Justice Sotomayor wrote the dissent and all Justice Breyer had to do was sign her opinion. She thinks the Court misread Congress’s intent as discerned from the text of the law and the legislative history.

One can imagine that Justice Scalia was not pleased.

We pass without comment on Justice Scalia’s 100 plus page opinion in the gun case where he does exactly what he usually disdains. Only he goes beyond what Congress intended: He discerns what the pre-industrial-age-male, property-owning voters intended when they voted to ratify the Bill of Rights. Apparently their intent is relevant and easier to discern than that of 20^th Century legislators.

Amazingly, Justice Scalia’s divinations of what those voters of long ago intended almost always accords with his own inclinations. Probably a coincidence.

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For more on legislative history, here is an informative page about the Congressional Record.

The opinion of the Court to which this post refers is here.

For more on Justice Scalia’s views about original intent see this post discussing two conservative judges’ take on his opinion in the Heller case.

Judicial Umpires

Apparently it had been a long time since I rode a cable car in San Francisco. During a recent photographic expedition, I was astonished to learn that the fare for a one-way ride is now five dollars. Getting on the car I said to the conductor, “The last time I rode a cable car it was fifty cents.” He smiled and said, “Welcome back.”

Aside from that, San Francisco is well; fresh crab is in season, North Beach swims in the odor of garlic, King Tut is back at the de Young, and the Irish Coffee at the Buena Vista is as good as ever.

But the title of this post is “Judicial Umpires” so I must have intended to write about something other than San Francisco. Long-time readers remember that this blog has little patience with judges pretending to be umpires. The worst example of this nonsense in recent times came during Chief Justice Roberts’ confirmation hearing, but it shows up all the time, like junk mail.

But I may have been underrating the Chief Justice. While in San Francisco I saw a quote from Sidney Morgenbesser, the Columbia University philosophy professor who died a few years ago. Perhaps Chief Justice Roberts had his fingers crossed under the table when pontificating about judges being umpires and was thinking of Morgenbesser who recognized three types of umpires: the realist who says,“I call them the way they are”; the subjectivist who says, “I call them the way I see them,” and the conventionalist, who declares, “I call them and then they are.”

By that definition, Judges who believe they are umpires are conventionalists. Like quantum physicists forcing electrons to make decisions by measuring them. Or the City of San Francisco deciding to charge five bucks for a cable car ride.

Where Does a Corporation Live and Who Cares?

Ambrose Bierce

I need to explain what a corporation’s “principle place of business” is and then why you care. That will take awhile, so please bear with me, remembering always Ambrose Bierce’s definition of a corporation: An ingenious device for obtaining individual profit without individual responsibility.

We’ll begin with a quick review. In the United States two court systems coexist.  Each state maintains its own state court system and the federal government maintains the federal courts. Federal courts, established in Article III of the Constitution, are courts of “limited jurisdiction” which means that Congress sets the parameters of what their powers are in a system in which the federal government has only limited powers.

When they are talking about courts’ power — the power to decide cases and order the parties around — lawyers often talk about the “jurisdiction” of a court.  That is just a long, four syllable lawyer-word meaning, “the power to act.”

One of the ways that Congress controls the power or jurisdiction of federal courts is by requiring what is known as “diversity of citizenship.”  Oceans of ink have been spilled explaining “diversity jurisdiction” in federal courts. But for our purposes now, we’ll use a simplified definition.  For us “diversity jurisdiction” means that federal courts have the power to decide cases which arise between citizens of two different states.

We all know what states we live in, so sometimes it’s easy to determine if a federal court has “jurisdiction” to decide a civil case.  (We’re only talking about civil cases today, not criminal cases.)  If I am a resident of New York and I come to Massachusetts for a visit, run a red light and plow into your car causing you, a Massachusetts citizen, damage, the federal courts have jurisdiction to decide your case against me.  Of course, your Massachusetts state courts also have jurisdiction to decide the case so, in my hypothetical both court systems have the power to decide your case.

So that’s easy.  You live in Massachusetts, I live in New York; diversity jurisdiction exists and the federal courts can hear our dispute. But your lawyer, no dummy, will sue me in your state court.

 

But what about corporations?  Remember, corporations have been endowed by their creators — us — with certain inalienable rights.  In fact, they have all the legal rights of real people. Actually they have more; they get to live forever and we don’t.

Where does this legal fiction, this corporation, live?  Since we’ve decided, against all logic, to treat it as a person, it must live somewhere.  Real people do, so it must too.

All Congress has said is that a corporation lives in the state in which it has its “principal place of business.”

What does that mean?  Does it mean the state in which the corporation was created?  The state where its corporate offices are?  Or the state where it does most of its business?

Nobody knows for sure, but the Supreme Court is getting ready to tell us.

And now we come to the part about why you care.

I won’t keep you in unnecessary suspense: You care because in a lawsuit between you and a corporation, the corporation is more likely to beat you in a federal court than in a state court — especially if it is a big corporation.

Hertz rents more cars in California than anywhere else.  In fact, it makes about 20% of all its money there.  A group of California consumers, people just like you and me, sued Hertz in a class action alleging various sharp dealings on the part of Hertz, but it doesn’t matter whether it was Hertz or Goldman Sachs, or the Bank of America, or your friendly credit card company or some other behemoth corporation, say Microsoft.

What matters is that the citizens of California sued Hertz in California’s state courts. But Hertz’s lawyers know just as well as any other lawyer that Hertz will get better treatment in federal court than in a California state court.  So, Hertz — as any self-respecting corporation in similar circumstances would do — removed the case from the California court and dumped into the federal court.  The California citizens reacted, demanding that the federal court send the case back to the California court where it was originally filed.  Now the case is before the United States Supreme Court  which will decide where Hertz lives.

Guess who is going to win.

Hertz will win because corporations don’t want to get sued in California state courts, even though a great many of them make most of their money in California, love doing business there, and take advantage of California’s laws while making money.

Not that anyone will actually say that is why Hertz and corporate America are going to win the case.  The justices will actually announce a new rule: “Corporations are citizens of the state where they have their corporate offices.”  Some of the justices, including Justice Stevens, will even write that they are adopting this rule as a favor to ordinary citizens who need to sue corporations.  The new rule will be simple and easy to apply so plaintiffs in all other states will know just to go straight to the federal court system. And lose.

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Next time we’ll look at why corporations do better in federal court and also why we can safely predict that Hertz is going to win.

In the meantime, you can read the briefs filed in the Supreme Court here and read a transcript of the recent oral argument here.

Another First Monday in October

It’s the first Monday in October again, President Obama is back from his unforced error in Copenhagen, we’ve survived the first New York Times Sunday Magazine knowing that we are deprived permanently of William Safire’s “On Language” column — or would that read better if I split the infinitive and wrote “are permanently deprived” ? — and the Supreme Court is back in town, ready to render several 5-4 decisions before the new term ends.

At the New York Times, Adam Liptak, who replaced Linda Greenhouse as the Times Supreme Court reporter, wrote a good synopsis of many of the business cases before the Court this year and did it without once using the word “liberal” for which he is to be congratulated.  Eva Rodriguez of the Washington Post reviewed the docket and managed the same feat.  Kudos to her.

By next June, we should have some idea of whether the word can be applied to Justice Sotomayor.  Early indications are that she too will be a moderate, but we’ll have to wait to know for certain.  In the meantime, we’ll soldier on, waiting for the day when the word “liberal” will once again be useful in describing Supreme Court justices.

Judge Sotomayor Steals My Supreme Court Seat

Bah!  Humbug!  I see that the twits worked and have, once again, denied me my rightful place on the Supreme Court.  On the other hand, I suppose I have to admit that Judge Sotomayor is likely to be a good justice.  And, one has to acknowledge that Professors Karlan, Minow, and Sullivan, Judge Wood, and Governors Granholm and Napolitano have impeccable credentials as well.  It was almost enough to convince me that President Obama had better choices than me.  In fact, it even made me think he should appoint more than one woman to the Court.  But not before me!

I would be such a fine justice!  I would rip through Justice Scalia’s supposed intellectual edifices like a hot knife through mustard, inventing new senseless metaphors as I go.  Justice Kennedy would run for cover before my cerebral battering ram.  Cut from the same cloth as Douglas, Black, Brennan, and Marshall, I would return the appellation “liberal” to the Supreme Court and ruthlessly expose Chief Justice Roberts for his secret method of deciding cases: Always pick the powerful against the weak, never mind the law.

But, I agree entirely with Professor Karlan, who said earlier this week that while she would love to be on the Supreme Court, it would not have been worth trimming her sails during her entire career.

For now, expect to begin hearing from faux Justice Winchester and his judicial brethren.  Enough is enough.  I can see no reason to continue to deprive the real Supreme Court — and the Nation — of the benefit of my thinking on legal issues of our time.  If a series of obtuse, purblind presidents refuse to put me on the real court, I’ll just make up one of my own.

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For a serious discussion of the current landscape of constitutional scholarship, here is a good survey to be published in the New York Times Sunday Magazine this week.  For the best short, scholarly survey of progressive thinking about the constitution you can’t do better than this.

Commas, the Constitution and John McCain

This blog is shy about plunging into various methods of constitutional interpretation. In fact, we have done it only once, in the 2nd Amendment case currently before the Supreme Court. But we haven’t been bashful about discussing the profligate use that the Founding Fathers made of commas; sprinkling them here and there without the slightest concern for the vexation that would someday result.

Moreover, your loyal blogger was a practicing lawyer for most of his career at the bar and practicing lawyers hardly ever touch a question of constitutional interpretation. Busy making a living in the trenches, of necessity, we leave that to our judicial and academic colleagues. (You can tell in law school which legal career a student will end up in: “A” students become law professors, “B” students become judges, “C” students become practicing lawyers. I forget what “D” and “F” students become, but it isn’t good.)

But now that I have moved into the exalted realm of “Blogger” I can no longer avoid these troublesome constitutional questions that hardly ever matter to practicing lawyers. For instance, no lawyer I know has the time to worry about whether John McCain could legally be the President of the United States.

But now I have to. Otherwise my loyal reader will not be armed with the necessary knowledge when the question arises at a cocktail party.

(Editor’s Note: Does our loyal reader ever go to cocktail parties? That sounds kind of elitist.)

Here are the facts: John McCain was born in Panama, not the United States. His Navy father was stationed there at the time.

The Constitution says, in Article II, section 1, clause 4:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

That is a single sentence, 61 words long and containing four commas and one semi-colon.

As we have noted before, two basic schools of thought exist as to how one interprets the language of the Constitution: Originalism and the Living Constitution. Myriads of sub-methods have been thought up by law professors and judges but time hurtles on and we are all mortal, so that will have to do for today. Republicans and conservatives tend to be originalists who believe that the text and the meaning of the words at the time of adoption control interpretation. Democrats and liberals tend to subscribe to the Living Constitution, a document susceptible to contemporary interpretations.

Our mission: To deliver a legal opinion about whether John McCain can be president. Be careful now. Are you an originalist? What work are the commas which set off the clause, “. . .at the time of the adoption of this Constitution” doing? Let me make it worse. The Founders actually play around with those commas. They were in the first draft, removed from the second, and then put back in. Even worse, they declined an invitation from Alexander Hamilton to write, “[n]o person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.”

In other words, unlike two of the three commas in the Second Amendment, these commas were intentional and received conscious attention from the drafters. They have to mean something. They may not be ignored.

Finally, you must know that, under standard grammatical rules of the 18th Century, the phrase, “at the time of the adoption of this Constitution” refers to both preceding clauses, i.e., to “natural born Citizen” and to “Citizen of the United States.” Since that is the case, an originalist must decide that no person not alive at the time of the adoption of the Constitution could legally be president. Zachary Taylor was the last legal president. You can read much more about the commas, and from real law professors, here, especially footnote 46.

This interpretation, required by the commas, is not as far-fetched as it sounds. Many of the Founders, especially Thomas Jefferson, would be astounded to discover that the Constitution they wrote is still in effect. They assumed that every generation or so the people of the United States would come together in new constitutional conventions and write new constitutions. Jefferson even thought an occasional revolution would be a good thing.

If you are an originalist, all the presidents from John Adams to Zachary Taylor were legal but there is a question about George Washington. The Constitution was “adopted” after 9 states ratified it. Virginia, the legal residence of George Washington, was the tenth state to ratify; which means that Washington was not a citizen of the United States at the time of the adoption of the Constitution because Virginia was not yet a part of the United States. His presidency was illegal.

So John McCain can’t be president. We can expect the Supreme Court, with its five person majority of Republican originalists, will so hold by a 5-4 vote. Of course, the Court will also announce, in dicta, that no one else can be president either, since no one is left who was alive at the time of the Constitution’s adoption. What that will mean for the nation is unknown, but that is no new thing for the Court: It didn’t know what Bush v. Gore would mean for the nation either, but they decided the case anyway. And, to an originalist, it doesn’t matter what happens. The Constitution means what it said on the day it was adopted and that is the end of the matter.

Stay tuned for our next exciting episode of constitutional interpretation when we decide whether the United States Air Force is constitutional.

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UPDATE MAY 2, 2008

The Washington Post, in its continual efforts to keep up with this blog, ran a story today about Senator McCain’s legal status and whether he can, under the Constitution, hold the office of the presidency.

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UPDATE,  MAY 6, 2008

I’ve just learned, from no less a source than Steven Colbert, that the photo above of President Bush and Senator McCain was taken in Arizona on McCain’s birthday, August 29, 2005 — while New Orleans was being destroyed by Hurricane Katrina.

The Machinery of Death

Death is on the Supreme Court’s docket this week. In a gruesome opinion — actually a splintered set of opinions, 97 pages worth — the Court held that the three drug lethal injection method of killing a human who has received the death penalty is not unconstitutional. After issuing that opinion, the Court heard oral argument in a case from Louisiana which poses the question of whether a child rapist can constitutionally be executed.

The Court has, over the years of the Republic, upheld hanging, shooting and electrocution as means of killing someone convicted of a capital crime. But each method fell into disfavor and eventually became cruel and unusual punishment which the Eighth Amendment to the Constitution outlaws. The method du jour is a three drug injection. The first drug supposedly puts the recipient into a deep coma so that he cannot feel the pain which the next two drugs indisputably cause if they are administered to someone capable of feeling pain. But the second drug immobilizes the person so there is no way of knowing whether he is feeling pain or not. Nine justices filed seven opinions. So much for a clear legal ruling. Only three justices agreed on a reason for upholding the method of inducing death.

Then the Court moved on to a Louisiana case in which a step-father received the death penalty for a particularly violent, ghastly rape of his step-daughter which did not result in her death. (Capital punishment for crimes which do not result in the death of the victim is increasingly rare. Death of the victim is not a requirement for child-rapists to get the death penalty under the Louisiana statute.)Many states allow execution of child-rapists only after a second conviction. Louisiana is the only one that allows execution for a first-offense.  Prior Supreme Court decisions resulted in an oral argument which swirled around the wide breadth of the Louisiana statute and whether a “national consensus” exists on the question.

In other words, legal niceties about death consumed the day at the Court. Small wonder that Justice Blackmun decided that the unseemly legal morass of death penalty jurisprudence simply isn’t worth it. He wrote, “From this day forward, I no longer shall tinker with the machinery of death.”

[sic]

Occasionally, judges with senses of humor allow some of that humor to seep into their opinions. Recently the Ninth Circuit Court of Appeals had before it a case about the Communications Decency Act of 1996. Roommate.com operates a web site designed to match people with rooms to rent with people seeking a place to rent. Subscribers to the service can post specific preferences, including preferences that would violate the fair housing laws if applied to lending institutions or real estate agents. The question before the court was whether Roommate was exempt from those requirements under the law Congress passed in 1996 regarding web-based communications. The author of the opinion, Judge Kozinski — well known for his writing ability and his sense of humor — spent some time describing some of the preferences which were posted on the Roommate web site. He wrote the following, including footnotes 34 and 35 of the court’s opinion:

Some common themes are a desire to live without “drugs,
kids or animals” or “smokers, kids or druggies,” while a few
subscribers express more particular preferences, such as preferring to live in a home free of “psychos or anyone on mental medication.” Some subscribers are just looking for someone who will get along with their significant other (34) or with their most significant Other. (35)

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(34) “The female we are looking for hopefully wont [sic] mind having a little sexual incounter [sic] with my boyfriend and I [very sic].”

(35) “We are 3 Christian females who Love our Lord Jesus Christ . . . . We have weekly bible studies and bi-weekly times of fellowship.”