Commentaries
2013
BOUMEDIENE’S WAKE
Andrew Tutt
Boumediene was doomed the day it was decided. In failing to elaborate on the substantive rights of aliens detained overseas, in assigning exclusive jurisdiction over post-Boumediene habeas claims to a circuit court of appeals that doubted the wisdom of intervention, and in fashioning a balancing test for federal court jurisdiction that only the prison at Guantánamo could meet, Boumediene laid the blueprint for its own elusion. Justice Scalia crisply summarized the strategy: henceforth, to slip through Boumediene’s grasp, the military would be well advised to keep prisoners in Afghanistan, transfer them to other foreign military bases, and turn them over to allies for detention.
THE STREETCAR DILEMMA: PREVENTING INCURABLE HARM THROUGH TIMELY ENFORCEMENT OF THE ANTITRUST LAWS
Brian N. Biglin
In the United States, free market competition and consumer choice are uniquely safeguarded through the antitrust laws contained in the Sherman and Clayton Acts. The antitrust laws enable prosecutors (at the Department of Justice and the Federal Trade Commission) and private citizens to prevent and punish anticompetitive activities. As legal tools, they are only as good as the prosecutors that wield them. These laws are capable of reversing anticompetitive conduct, and, in many cases, preventing the negative effects which emanate from that conduct. When it comes to preventing those effects, the timing of legal action is often paramount. There is one cautionary tale that vividly illustrates this proposition, particularly because it continues to cast a shadow today. This Commentary will revisit United States v. National City Lines, in which the government successfully prosecuted a notorious conspiracy among the nation’s largest corporations—but not before the conspiracy had taken its intended toll by destroying dozens of urban rail systems.
2012
GUILTY UNTIL PROVEN INNOCENT: EVIDENCE TAMPERING, DRUG AND CRIME LAB MISCONDUCT AND LAW ENFORCEMENT ETHICS
Alicia M. Hilton
On September 17, 2012, Massachusetts Public Health Commissioner John Auerbach resigned from his position amid an investigation into a massive evidence tampering scandal. The former chemist at the heart of the scandal, Annie Dookhan, handled evidence in more than 34,000 drug cases. Revelations of Dookhan’s alleged misconduct prompted the closure of the William A. Hinton State Laboratory Institute in Jamaica Plain, Massachusetts. Dookhan has confessed that she failed to perform required drug tests, tampered with evidence bags, altered samples so they would test positive for drugs when they contained no illegal substances, altered the weight of drugs, and forged other chemists’ signatures on drug samples. More than twenty inmates have been freed or had their sentences suspended or bail reduced because of the scandal, but at least 1,141 inmates are still incarcerated based on evidence processed by Dookhan. Though Dookhan came under scrutiny in 2011 when she removed ninety samples from an evidence room without authorization, she continued to work at the lab until March 2012. Dookhan even testified as an expert witness after she was suspected of committing misconduct.
THE RELATIVE RELEVANCE OF LARSON: AWAD V. ZIRIAX AND THE LARSON APPROACH TO ANTI-SHARIA PROVISIONS
Martin R. Kafafian
In 2010, the Oklahoma voters amended their state constitution to preclude state courts from considering or applying Sharia law. Sharia law is unique among the world’s legal systems because of its religious and secular origin and application. Immediately after the Save Our State Amendment (hereinafter “SOS Amendment”) was adopted by referendum, it was challenged as violating the Free Exercise and Establishment Clauses. After the district court in Awad v. Ziriax struck down the SOS Amendment under Lemon, the Tenth Circuit voided the law under Larson. The oft-invoked Lemon test serves as the default analysis among the fractured panoply of Establishment Clause jurisprudence, while Larson v. Valente survives at the margins. This Comment will argue that the Larson analysis remains relevant and, because of the unique nature of Sharia law, serves as the proper framework under which to analyze the SOS Amendment’s “compound discrimination.”
PAVING THE WAY FOR LEGALIZED SPORTS GAMBLING
Michael Muehle
Sports gambling, particularly Internet sports gambling, is a booming industry even during these lean economic times. Technology continues to advance at a rapid pace—Congress and the federal government also need to advance and embrace the modern world. Currently, the federal government regulates gambling as if we live in the world as it was between 1976 and 1990. Those dates are important in this context because the states that did not legalize sports gambling during that period are now barred from engaging in it because of the Professional Amateur Sports Protection Act of 1992 (“PASPA”). PASPA makes it illegal to bet on professional and amateur athletics. . . . This commentary will explore the laws blocking the way to legalized sports gambling, both online and at brick-and-mortar establishments, namely PASPA, a set of federal statutes, and finally the Unlawful Internet Gambling Enforcement Act (“UIGEA”).
THE IRISH STATE CASE, INTERROGATION TECHNIQUES AND THE GLOBAL WAR ON TERROR
Edward M. Neafsey
In Ireland v. the United Kingdom, also known as the Irish State Case, the European Court of Human Rights (“ECHR”) held that the “five techniques” of interrogation violated Article 3 of the European Convention on Human Rights. In doing so, the ECHR determined that there was a significant legal distinction between conduct constituting “torture” and conduct amounting to “inhuman and degrading treatment.” This decision would play a critical role in U.S. government analysis of interrogation of al-Qaeda and Taliban detainees during the global war on terror. It would also be revisited by British authorities during an investigation into prisoner abuse during the Iraq Conflict. The report in that investigation—the Baha Mousa Public Inquiry—was released in 2011. It recommended, among other things, that the British Ministry of Defense issue standing orders, which would forbid use of the five techniques during military operations and make them subject to criminal sanction. This article reviews the decision in the Irish State Case in Part I, and the report in the Baha Mousa case in Part II. In Part III, it analyzes how the legal issues raised by the use of special techniques to interrogate “enemy combatants” abroad have been handled in the United States.
In the companion cases of State v. Gaitan and State v. Goulbourne, the New Jersey Supreme Court reversed the court of appeals judgments, denying the defendants the right to post conviction relief. The court held 5–2 that the holding of the United States Supreme Court in Padilla v. Kentucky, is not entitled to retroactive application on collateral review because it represents a new constitutional rule of law, for Sixth Amendment purposes, which imposes an affirmative obligation on defense attorneys to advise their clients of the deportation consequences of pleading guilty. Although the New Jersey state standard of State v. Nuñez-Valdéz applies, the court also held that the defendants were not entitled to relief because neither was given false or affirmatively misleading advice regarding the deportation consequences of their guilty pleas. In arriving at these holdings, the court carefully reviewed the existing body of state and federal law.
THE CONNECTION BETWEEN UNINTENTIONAL INTESTACY AND URBAN POVERTY
Reid Kress Weisbord
American inheritance law provides sweeping protections for testamentary freedom, a legal doctrine that grants the owner of property during life the power to control its disposition at death. Americans strongly favor testamentary freedom, a preference reflecting deeply engrained attitudes about ownership and property rights. When a person dies without a will, however, testamentary freedom lapses, and property is distributed to heirs determined by statutory rules of intestacy. Intestacy statutes generally reflect the probable intent of the typical decedent and distribute property to surviving family members roughly in the following order: spouse, descendants, parents, descendants of parents, grandparents, descendants of grandparents, and (in some states) stepchildren.
Although popular domestically, the principle of testamentary freedom is not shared universally. Indeed, our views about testamentary freedom distinguish American inheritance law from foreign countries that severely constrain the power to control the transmission of property at death.
BOOK REVIEW – FRIENDLY FIRE – HENRY FRIENDLY: GREATEST JUDGE OF HIS ERA. BY DAVID M. DORSEN. CAMBRIDGE, MASS.: THE BELKNAP PRESS OF HARVARD UNIVERSITY PRESS, 2012. Pp. 498. $35.00
Reviewed by Jonah J. Horwitz
There are two questions one expects to be addressed, if not answered, in the biography of a great historical figure: 1) how did his life relate to his work and 2) how does his work stand up to the test of time. These are especially vexing questions for the biographer of a great judge. For the relationship, if any, between a judge’s life and his work is a loaded subject, and the assessment of a judicial legacy carries with it all manner of perilous political and ideological assumptions. Nevertheless, the biographer must hazard answers, or there is little point in reading the book at all. Although David M. Dorsen has produced an impressive biography of Henry Friendly—prodigiously researched, skillfully written, and discerningly edited—it provides only sketchy and contradictory responses to these two fundamental questions. In the final analysis, therefore, the book is a noble failure, a victim of its own admirable ambitions.
2011
A decade ago, the United States Supreme Court held that a newly enacted law that attaches adverse immigration consequences to certain criminal convictions could not be retroactively applied in the case of an immigrant who was convicted of the offense pursuant to a guilty plea before enactment of the new law. Since then, the courts of appeals that have addressed the same issue in the context of an immigrant who was convicted at trial, rather than after a guilty plea, have done so with remarkable divergence. Some courts have held that, unlike immigrants who pled guilty, immigrants who went to trial cannot show that they detrimentally relied on the old law; accordingly, the new law may be applied retroactively. Other courts have rejected the detrimental reliance requirement. In this article, I argue that detrimental reliance, while properly viewed as a factor in retroactivity analysis, must not be viewed as a requirement for challenging the retroactive application of a new law to past acts.
THE SUPREME COURT TO CLASS ACTION ARBITRATION: DROP DEAD
Arnold Shep Cohen
In a series of decisions beginning in 1991, the United States Supreme Court has continually enforced individual binding arbitration agreements for employment disputes. Since 2010, the Court has issued two decisions that have gone in the opposite direction, when it restricted the use of class action arbitrations. The juxtaposition of these two lines of cases could not present a starker contrast, with the Court‟s strained, result-oriented reasoning becoming evident. The upshot is that corporations can force plaintiffs to submit to binding arbitration, avoiding a jury trial, without the corresponding fear that they can be saddled with a class action arbitration. As a result, an individual plaintiff will easily forfeit access to both a jury trial and a class action arbitration claim.
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