Faculty Blog, Haynes, Judges, New England Law Review, U.S. Supreme Court

Faculty Blog: Supreme Court Effectively Upholds Fifth Circuit Judge’s Injunction of DAPA in U.S. v. Texas

By: Dina Francesca Haynes  Last week, the Supreme Court issued its (non)-decision in Texas v. United States. At issue: whether one judge in Texas could enjoin a federal immigration program crafted by the Executive Branch, and whether the Executive Branch had exceeded its authority in so doing. I wrote about this case earlier this year, predicting a 4-4 split with the current court one justice down. Unfortunately, my prediction was borne out. The 5th Circuit—specifically one judge, Judge Hanen (who was recently accused of abuse of discretion when he imposed sanctions on federal government attorneys whose arguments he didn’t like)—had earlier decided that the State of Texas had established a substantial likelihood of success on the merits of their procedural and substantive claims required for an injunction. What is unusual in this case is that a district judge's preliminary injunction applies nationwide (and not, as would ordinarily be the case, in the judge's district only).

4th Amendment, 5th Amendment, 6th Amendment, Constitution, criminal law, Criminal Procedure, Exclusionary Rule, Faculty Blog, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Friedman, New England Law Review, Privacy, U.S. Supreme Court

Faculty Blog: Utah v. Strieff: The Court Reminds Us That Constitutional Privacy is Essentially Meaningless

By: Lawrence M. Friedman  The U.S. Constitution prohibits the government from pursuing its policy goals in ways that conflict with individual rights protections—except, as the Supreme Court reminds us in its decision in Utah v. Strieff, where the protection of privacy under the Fourth Amendment is concerned. The remedy for a Fourth Amendment violation is exclusion of the evidence obtained as a result of an illegal search or seizure. Deterrence of governmental misconduct has been the animating principle of the exclusionary rule for decades (though it was originally just one of several rationales), and the nature of the Court’s cost-benefit deterrence analysis has led it, time and again, to conclude that the costs of suppression outweigh any potentially beneficial deterrent effect. As Justice Clarence Thomas explains in the opening paragraph of his opinion for the majority in Strieff, “even when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.”

4th Amendment, 5th Amendment, 6th Amendment, criminal law, Criminal Procedure, Due Process, Faculty Blog, Fifth Amendment, First Amendment, Fourteenth Amendment, Hansen, New England Law Review, Sixth Amendment, U.S. Supreme Court

Faculty Blog: Williams v. Pennsylvania Raises Major Concerns About U.S. Justice System

Professor Eldred wrote that this latest decision is a missed opportunity by the Court that could undermine the long-term value of the decision, particularly when, as Professor Eldred notes, there was significant literature and research in this area available to the Court. Here, I want to address another issue raised by the facts of the case that should alarm anyone concerned about the fairness of our criminal justice system—namely, the role of the prosecutor. While I can’t say that this was another missed opportunity by the Court to address the question since it was not directly before the Court, the troubling story recounted by the facts of the case serves as an important backdrop and raises important questions about the quality of justice in death penalty and other cases. In its recounting of the facts of the case, the Court noted that the prosecutor assigned to the murder case against Williams sent a two-page memorandum to the district attorney requesting approval to seek the death penalty. The then-district attorney, later Chief Justice of the Pennsylvania Supreme Court, approved the request by writing: “Approved to proceed on the death penalty.” The case before the Court was about whether the district attorney who penned that approval could some 30 years later sit as one of the justices on the court called upon to vacate William’s stay of execution. The Supreme Court also noted a number of Brady violations that the prosecuting attorney allegedly committed in the case, as well as the fact that none of this information—the prosecution memo and approval by the district attorney or the possible Brady violations—came to light until the Philadelphia Court of Common Pleas ordered the district attorney’s office to produce previously undisclosed files, many years after Williams’ trial.

1st Amendment, Affordable Care Act, Constitution, Faculty Blog, Fourteenth Amendment, New England Law Review, U.S. Supreme Court, Uncategorized

Faculty Blog: Zubik v. Burwell: The Supreme Court Punts on Religious Nonprofits’ Challenge to the Affordable Care Act Contraceptive Coverage Opt-Out

Last month, the U.S. Supreme Court declined to weigh in on the merits of religious nonprofit organizations’ challenge to the Patient Protection and Affordable Care Act’s contraceptive coverage religious opt-out regulations. The regulations allow religious nonprofits to avoid the legal responsibility of covering contraceptives in their health insurance plans by providing notice that they object to doing so on religious grounds. The petitioners in the cases consolidated in Zubik v. Burwell claimed that furnishing this notice imposed a substantial burden on their religious exercise. In a per curiam opinion, the Court noted that supplemental briefing that addressed whether contraceptive coverage could be provided to the petitioners’ employees without the required notice had revealed the feasibility of such an option. The Court remanded the cases for investigation of this option, without making a decision on the plaintiffs’ Religious Freedom Restoration Act (RFRA) claim.

Due Process, Eldred, Faculty Blog, Federal Courts, Judges, New England Law Review, U.S. Supreme Court

Faculty Blog: The Psychology of Conflicts of Interest in Williams v. Pennsylvania

The U.S. Supreme Court’s recent decision in Williams v. Pennsylvania, handed down during the turmoil in the presidential campaign over the heated rhetoric on judicial impartiality, adds to the Supreme Court’s growing jurisprudence on the due process requirements for judicial disqualification. The issue in the case—whether a justice on the Pennsylvania Supreme Court could properly adjudicate a death penalty case when he had previously been the prosecutor who authorized capital charges against the defendant—set the stage for a ruling that could have provided broad guidance on the due process parameters for judicial disqualification, especially in criminal cases. Yet the Court’s holding may end up having only limited impact. As others have already started to note, the test announced by the Court—“that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a crucial decision regarding the defendant’s case”—will be hard to prove and adds little additional guidance to what is already available under existing ethical standards for judicial recusal in most states. In addition, my guess is that there are few cases in which a prosecutor-turned-judge will be asked to rule on a case in which he or she was previously involved, so this test is likely to directly apply to only a narrow band of future situations.

Faculty Blog, Federal Courts, New England Law Review, Singer, U.S. Supreme Court

Faculty Blog: Spokeo v. Robins: Two Challenges to Identity

Even in the age of social media and internet searches, in which our public and private lives are increasingly (and often voluntarily) blurred, there is still something jarring about learning that your identity has been misrepresented or misconstrued. For Thomas Robins, that moment came when Spokeo, Inc., a “people search engine,” assembled an online profile of him that contained an array of incorrect information, including inaccurate statements of his age, family status, wealth, and education. Robins responded by filing a class action complaint against Spokeo in federal district court, alleging that Spokeo’s willful failure to check the accuracy of his personal information entitled him to statutory damages under the Fair Credit Reporting Act of 1970 (FCRA). The district court originally dismissed the case for lack of standing, finding that while the FCRA conferred a private right of action against reporting agencies like Spokeo that failed to comply with the Act’s statutory requirements, Robins himself had not suffered an “injury in fact.” In particular, Robins could not point to any concrete harm he had suffered as a result of the incorrect reporting. The Ninth Circuit reversed, concluding that the FCRA had conferred a right upon Robins to be free from false reporting, and that Robins had sufficiently alleged that Spokeo had violated his individual statutory rights by misreporting information. But on May 16, the Supreme Court vacated the Ninth Circuit’s opinion by a 6-2 vote, and remanded the case for further proceedings.

Editor Blog, New England Law Review

Contributing Author Profile: Eric J. Gouvin

Contributing Author: Christine L. Vana
The New England Law Review is honored to announce that Eric J. Gouvin will be contributing to On Remand this spring. Gouvin, Dean of Western New England University School of Law, has contributed to corporate law scholarship and entrepreneurship education since 1991, when he first became a member of Western New England’s faculty. In addition to teaching numerous courses in corporate, transactional, and entrepreneurship law for the past twenty-five years, Dean Gouvin established both the Small Business Clinic and the Center for Innovation & Entrepreneurship at Western New England.

Civil Rights Act, Due Process, Editor Blog, Equal Pay, Gender Discrimination, New England Law Review, Policy, Student Writing, transitional justice, U.S. Supreme Court

Article Preview: Why Is Your Grass Greener than Mine?: The Need for Legal Reform to Combat Gender Discrimination in Professional Sports

Contributing Author: John Kulevich
Sports arose in the primitive era as activities used to train warriors for battle. They continue to this day, though for different purposes: as a form of recreation, as a profession, and as a form of relaxation for spectators watching them. While women who play sports have gradually gained some acceptance in society, they experience gender discrimination and inequality compared to their male counterparts, in the form of lower wages, fewer endorsements, and less media coverage. This is especially true in professional sports. Tanya Dennis, the author of Why Is Your Grass Greener than Mine?: The Need for Legal Reform to Combat Gender Discrimination in Professional Sports, proposes a new statute (the “Professional Sports Act of 2015”), which provides women protection against gender discrimination in professional sports, and explains why the current state of the law is not adequate. For example, Title IX prevents gender discrimination in federally funded educational institutions, and this protection includes prohibition of gender discrimination in school athletics within those educational institutions. As a result of this protection from gender discrimination in school sports, women’s sports have become more popular and received more media attention. Nevertheless, Title IX does not apply to professional sports and therefore cannot protect women from gender discrimination in professional sports.

Article II, Competency, Congress, Constitution, Executive Power, Faculty Blog, Federal Courts, Friedman, Judges, Judicial Elections, Judicial Performance Evaluation, Judicial Review, New England Law Review, Nominations, Policy, President Obama, U.S. Supreme Court

Faculty Blog: The Ninth Justice

At this writing, Senate Republicans continue to refuse even to hold a hearing on President Obama's nominee to succeed the late Associate Justice, Antonin Scalia, on the U.S. Supreme Court. The fullest explanation of their collective decision to ignore the Senate's constitutional role in the judicial appointment process has come from Utah Senator Orrin Hatch who, in a recent New York Times op-ed, spelled out their arguments. In that piece, Senator Hatch attacked President Obama’s judicial appointments for embracing “the sort of judicial activism Justice Scalia spent his career seeking to curtail.” Worse, in Senator Hatch’s view, when Democrats controlled the Senate they were complicit in this effort. Thus, he concludes, voters should decide what kind of Supreme Court they want through the 2016 Presidential election—which can happen only if the Senate delays confirmation proceedings on the President’s nominee, Judge Merrick Garland. He argues that considering a nominee today would be “irresponsible” and, he concludes, not “in the best interests of the Senate, the judiciary and the country.”

5th Amendment, 6th Amendment, criminal law, Criminal Procedure, Due Process, Equal Protection, Faculty Blog, Federal Courts, Federalism, Gideon, Miranda, New England Law Review, Police Interrogation, Policy, prosecutors, Right to Counsel, Siegel, Sixth Amendment, transitional justice

Faculty Blog: Luis v. United States and a Right to Counsel for the Rich

By: David M. Siegel The Sixth Amendment, which the Supreme Court has for over half a century interpreted to afford indigent criminal defendants a right to a lawyer at government expense, now also provides wealthy defendants something: protection from the government’s freezing their untainted assets (as opposed to those traceable to, or proceeds of, crime) to prevent retaining counsel of their choice. As principled—and protective of the Sixth Amendment—as this distinction may be, it reinforces something much more pernicious: there is now effectively a right of the rich to be free from impoverishment by the government, to protect their Sixth Amendment right to retain counsel of their choosing, while the identical Amendment does not provide an indigent defendant access to an actual lawyer of anyone’s choice. Luis v. United States, was quite simple: federal law permits pre-trial freezing of certain criminal defendants’ assets that are proceeds of the crime, traceable to the crime, or of equal value to either of the first categories. Ms. Luis allegedly obtained $45 million through health care-related fraud, but when indicted had only $2 million, which the government agreed was neither proceeds of nor traceable to the fraud. Freezing these funds, to satisfy what the government contended would be restitution upon conviction, would preclude her hiring counsel of her choice. If the Sixth Amendment truly conferred a right to hire counsel of one’s choice, then did it also prevent the government from vitiating this right by freezing all one’s resources with which to pay counsel? Yes, the Court found, although not for any reason that commanded a majority.