David Souter gives the Harvard Commencement Address

The Harvard Gazette has posted the entire speech that Retiring Justice David Souter of the SCOTUS gave at this year’s Harvard commencement.

It’s an interesting read for a number of reasons.  As ludicrous as this may sound, his introduction line hooked me:

“When I was younger, I used to hear Harvard stories from a member of the class of 1885.”

Think about that.  1885.  That alone is pretty crazy and gives you a sense of the history behind Justice Souter.  Perhaps it betrays my youth that this impresses me, but it does.  As an individual who saw the birth of the internet in their lifetime, thinking back to someone who lived in the 1880s quite honestly boggles my mind.

His speech is a great read, as it explains Souter’s judicial philosophy and explains some of the lessons he learns.  More importantly, it gives the reader (or listener, if you heard him) a glimpse into his perspective on the US constitution.

Justin Ide/Harvard Staff Photographer

Justice David H. Souter signs the guest book inside Massachusetts Hall prior to the Morning Exercises at Harvard's 359th Commencement.

When I was younger, I used to hear Harvard stories from a member of the class of 1885.  Back then, old graduates of the College who could get to Cambridge on Commencement Day didn’t wait for reunion years to come back to the Yard.  They’d just turn up, see old friends, look over the new crop, and have a cup of Commencement punch under the elms.  The old man remembered one of those summer days when he was heading for the Square after lunch and crossed paths with a newly graduated senior, who had enjoyed quite a few cups of that punch.  As the two men approached each other the younger one thrust out his new diploma and shouted, “Educated, by God.”

Even with an honorary Harvard doctorate in my hands, I know enough not to shout that across the Yard, but the University’s generosity does make me bold enough to say that over the course of 19 years on the Supreme Court, I learned some lessons about the Constitution of the United States, and about what judges do when they apply it in deciding cases with constitutional issues.  I’m going to draw on that experience in the course of the next few minutes, for it is as a judge that I have been given the honor to speak before you.

The occasion for our coming together like this aligns with the approach of two separate events on the judicial side of the national public life:  the end of the Supreme Court’s term, with its quickened pace of decisions, and a confirmation proceeding for the latest nominee to fill a seat on the court.  We will as a consequence be hearing and discussing a particular sort of criticism that is frequently aimed at the more controversial Supreme Court decisions:  criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties.  A good many of us, I’m sure a good many of us here, intuitively react that this sort of commentary tends to miss the mark.  But we don’t often pause to consider in any detail the conceptions of the Constitution and of constitutional judging that underlie the critical rhetoric, or to compare them with the notions that lie behind our own intuitive responses.  I’m going to try to make some of those comparisons this afternoon.

The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution, and on a template for deciding constitutional claims, that go together something like this.  A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution.  The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed.  Once they have been determined, the facts on their face either do or do not support the claim.  If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim.  On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.

There are, of course, constitutional claims that would be decided just about the way this fair reading model would have it.  If one of today’s 21-year-old college graduates claimed a place on the ballot for one of the United States Senate seats open this year, the claim could be disposed of simply by showing the person’s age, quoting the constitutional provision that a senator must be at least 30 years old, and interpreting that requirement to forbid access to the ballot to someone who could not qualify to serve if elected.  No one would be apt to respond that lawmaking was going on, or object that the age requirement did not say anything about ballot access.  The fair reading model would describe pretty much what would happen.  But cases like this do not usually come to court, or at least the Supreme Court. And for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.  Here’s the leadup:

…The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.  These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

But this explanation hardly scratches the surface.  The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time.  Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony.  Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them.  And this can be tricky.  To show you what I’m getting at, I’ve picked two examples of what can really happen, two stories of two great cases.  The two stories won’t, of course, give anything like a complete description either of the Constitution or of judging, but I think they will show how unrealistic the fair reading model can be.

I think you should read it.

Forgetting a child in the backseat

The 2010 Pulitzer Prize Winner for Feature Writing was Gene Weingarten of the Washington Post, for his rather lengthy article on the horror and legal issues surrounding parents who have forgotten their children in the backseats of cars.

Rightfully so, the Pulitzer Prize website notes that this is a haunting story, and one that is full of the emotional torment of parents who make one fatal mistake. 

It focuses on Miles Harrison, a man described as both an amiable person and a conscientious father.  Up until that day in July.  Weingarten writes that

The charge in the courtroom was manslaughter, brought by the Commonwealth of Virginia. No significant facts were in dispute. Miles Harrison, 49, was an amiable person, a diligent businessman and a doting, conscientious father until the day last summer -- beset by problems at work, making call after call on his cellphone -- he forgot to drop his son, Chase, at day care. The toddler slowly sweltered to death, strapped into a car seat for nearly nine hours in an office parking lot in Herndon in the blistering heat of July.

This is an awful tale, but one that is not the least bit unusual.  This has happened more times than anyone wants to admit.  It’s a terrifying scenario, but one that grows as parents try to balance the multitude of things going on each day in modern life.  In the days of Blackberries and constant emails, of work leaching into private life, of multi-tasking on the drive to work, these things happen.  Oddly, part of the reason is because of the push to keep children safe by forcing them to ride in the backseat.  Weingarten states:

Two decades ago, this was relatively rare. But in the early 1990s, car-safety experts declared that passenger-side front airbags could kill children, and they recommended that child seats be moved to the back of the car; then, for even more safety for the very young, that the baby seats be pivoted to face the rear.

What’s fascinating about this article is the focus on the personal and emotional penance these individuals face.  According to the law, they are often charged with manslaughter.  At least sometimes.  Although the facts are nearly identical in every case, statistically the numbers don’t work out.  Weingarten notes that:

According to statistics compiled by a national childs' safety advocacy group, in about 40 percent of cases authorities examine the evidence, determine that the child's death was a terrible accident -- a mistake of memory that delivers a lifelong sentence of guilt far greater than any a judge or jury could mete out -- and file no charges. In the other 60 percent of the cases, parsing essentially identical facts and applying them to essentially identical laws, authorities decide that the negligence was so great and the injury so grievous that it must be called a felony, and it must be aggressively pursued.

The distinction appears to be with the state prosecutor.  Usually, when ruled an accident, the DA says that there was no intent to commit a crime and that this was just a tragic accident.  In others, the DA states that intent is not an issue because it was negligent.

Harrison was found not guilty.  But that seems to barely register with him.  The parents in these situations punish themselves far more.  The article changes its focus onto two women, Lyn Balfour and Mary Parks.  Balfour’s tale is depressing and yet poignant.  She was charged with second-degree murder for forgetting her son.  And she fought it.  And won.  That charge requires intent, where is involuntary manslaughter would not. 

From a strictly legal viewpoint, the prosecution of those involved in these incidents is discretionary.  There is little to be said beyond the fact that it is up to the individual state prosecutors to decide whether or not to make a case of it.  The reasons for choosing to prosecute are their own, and one that result in tremendous repercussions.  While many argue that these parents deserve to be held accountable for their mistake, many others state that this is an accident that can happen to anyone.  And more importantly, they note that the private hell and torment that these parents go through far exceeds any criminal charge. 

[Source: Washington Post]

McDonald’s fires a hero

Nigel Haskett was working for McDonalds in 2008 when something tragic happened.  A man was assaulting a woman in the restaurant, and Haskett interceded.  Haskett managed to get the man to leave, but he soon returned and shot Haskett several times. 

Thankfully, Haskett survived and underwent successful surgery.  But when Haskett applied for Worker’s Compensation Benefits, he was denied.  According to the Arkansas Times,

Misty Thompson, a claims specialist with McDonald's insurer, Ramsey, Krug, Farrell and Lensing, said in a letter to the Commission that “we have denied this claim in its entirety as it is our opinion that Mr. Haskett's injuries did not arise out of or within the course and scope of his employment.”

That seems a bit absurd, to me.  According to Haskett’s lawyer, McDonalds says that directly intervening goes against the training McDonald’s employees are given.  They are supposed to simply call 9-1-1. 

While I understand the need to protect the safety of the employees, it seems too much to deny benefits to a heroic employee.  I have not been able to find the outcome of the hearing yet, so it is unclear how the WCB ruled.  It is entirely possible that they will agree with McDonalds that this outside the course of Haskett’s employment.  That would be a travesty, as acting to protect a customer while on duty at work (especially as Haskett never left the restaurant to pursue the aggresssor) should be covered by the scope of his duties.

If nothing else, as a policy, McDonalds should not directly penalize individuals who do choose to intervene.  We shall see.

[Source: Arkansas Times]

How to Fix the Legal System

An interesting talk by Philip K. Howard.

Elections Canada privacy problems

So the Canadian government’s Privacy Commissioner decided to investigate the practices of  Elections Canada.  The concern was that since organizations like this collect such a large amount of personal information from citizens,  they are prime targets for identity theft. 

I guess there was some valid concerns that came out of this investigation, and the main points are produced below.

• At least one per cent of voters lists have gone missing during elections and byelections.
• Elections Canada collects too much personal information on Canadians, including some teenagers too young to vote.
• Paper and electronic copies of voter lists are widely circulated to political parties and candidates, who aren't covered by the same privacy laws that federal employees have to abide by. Stoddart said that is a notable gap in Canada's privacy legislation.
• Such parties don't have a formal way to report privacy breaches to Elections Canada.
• Canadians aren't fully informed about how their personal information will be used.

It’s tough to conduct an election without a lot of the personal info collected by Elections Canada.  It helps determine your identity at the poll and should stop voter fraud.  But the Commissioner is right in that this info is at extreme risk of being stolen.  Poll workers are generally just regular citizenry, paid a fair wage but not one that could compete with the lure of ill-gotten gains. 

Or a situation like this could emerge:

Stoddart cited one example from 2006, when RCMP discovered lists of voters' names and addresses at an office belonging to the Tamil Tigers, classed in Canada as a terrorist organization, which was allegedly using them to find people who might help them financially

That is a concern that never would have crossed my mind, but apparently it exists.  It would be worthwhile to make the changes to Elections Canada as soon as possible, to prevent any further breaches.

[Source: CBC]

Joe Arpaio – Sheriff with a vendetta

I’ve been biting my tongue on this one and just watching it unfold, but it’s been a pretty wild story.  I started reading about this once Sheriff Arpaio’s deputy was jailed for confiscating a lawyer’s court document in court. 

Now the story gets more and more outrageous.  First, Arpaio railed against the Judge’s decision, now he’s taken to actively pursuing the judges who rule against him.  The Judge who jailed the deputy, Superior Court Judge Gary Donahoe, has been arrested by the Sherriff’s office and is being accused of hindering prosecution, obstructing justice and bribery. 

The complaint names all five members of the Board of Supervisors, Maricopa County Manager David Smith, Deputy County Manager Sandi Wilson, Wade Swanson of the Office of General Litigation, Presiding Judge Barbara Mundell, Judge Anna Baca, Judge Gary Donahoe, Judge Kenneth Fields, attorney Thomas Irvine, and attorney Edward Novak.

This is a pretty major allegation, and the coverage of it has been extremely unfavourable.  The Phoenix New Times has been very critical, and has reported that pretty much no evidence was offered over these vague allegations.  This is what the New Times says:

Judge Donahoe removed the County Attorney's Office from investigating the court tower construction, he rejected the notion of holding indicted superivisor Don Stapley in contempt of court for alleged wrongdoing, and he jailed detention officer Adam Stoddard on a contempt of court charge.

So first Thomas filed a RICO lawsuit alleging that Donahoe and other superior court judges are part of some vague and convoluted conspiracy, working together to see that the new court tower (with all those big offices and marble floors) is built and the sheriff's office/county attorney's office investigation is thwarted.

Then they charge the big kahuna himself, Judge Donahoe, with criminal counts.

Arpaio’s office also got a warrant to search the home and chambers of Judge Beverly Mundell.  This is an extremely inappropriate manoeuvre, especially with little-to-no evidence of wrongdoing.  Thankfully, the Court of Appeal has stopped the search warrant for now.

TPM has also alleged that Arpaio is under FBI investigation for allegedly using his authority to retaliate against political adversaries. 

This is a chilling story, and one I hope comes to a speedy resolution.

TV is an essential good

We’ve been highlighting the ridiculous over here at ThinkLegal, and this is no exception.  A judge in Brazi has ruled that television is an essential good.

A man in Sao Paulo brought an action against a store for not replacing his broken TV.  The judge awarded $2,600 in “moral damages”, that is damages suffered because this man couldn’t watch TV.

"Without it, how can the owner watch the beautiful women on 'Big Brother,' the national news broadcast or a football game," the judge quipped.

It’s an absurd decision.  While I understand some of the point of view here, in that TVs are indeed extremely common, there is absolutely no way it can be considered an essential good.  Food, shelter, heat, those sort of things all make sense.  I would even argue education and water should count.  But TV?  Hell no.

[Source: Reuters]