Kathleen Williams nominated

“Look, you need some kind of system. You can’t just have all these piles of paper underneath your desk.”
“I have a system. I know where everything is.”
“Only because it’s all here on the floor. Just grab something, deal with it, and move on to the next one.”
“I like to mull things over, reflect on them.”
“You can’t do that with everything because then nothing gets done. Look, what’s this one?”
“Troop drawdown schedules.”
“OK, let’s put that one aside. What about this?”
“Sanctions for North Korea.”
“Hillary announced those yesterday.”
“She did?”
“Yup. Toss it. See? We’re making progress. Look, here’s an easy one.”
“What, this district court nomination? I don’t know. I just nominated someone for something in that district.”
“That was in February. Old news. Come on, quit messing around. You have a ton of work to do. Just sign right here and stick it in the out box.”
“Fine.”
“Good. Let’s move on.”

Back to life, back to reality

The new LRW—I still can’t say “L-Comm”; maybe in time—faculty are all here and somehow the Powers That Be found offices for all ten of them. And they’re definitely going to need someplace to hide because there are rumors that we are getting another bloated first-year class. (I mean in terms of numbers, not girth. We try to admit attractive people here. Just because we are letting in hordes doesn’t mean we don’t have standards, you know.) I’m sure we’ll find someplace to put them, too. The important thing is that we’re doing something to address the nation’s shortage of lawyers.

I was planning to link to the bios of the new LRW faculty because the whole lot of them is extremely impressive in terms of credentials and enthusiasm for this stuff. Snoots one and all, to borrow from DFW. But I can’t find them on the School of Law website anywhere—an oversight that will no doubt be corrected when I send a link to this post to the right people. Anyway, one has a Ph.D. in something and they all went to great schools and have had interesting jobs. I don’t remember much more than that because that journey to Europe intervened between the interviews and this moment and, well, some memories faded along the way.

Almost home

Honestly, I have no idea what’s been going on. I mean, there was this thing about the guns:

ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II–C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.

I take it I’m still allowed to have one. And there were some other important cases, but I just haven’t had the energy to delve into the morass. Seriously, someone needs to take control of that Court. If Brown v. Board could be unanimous, why is it that we have to put up with this sort of nonsense today? It gets a little tiring to have to unravel these fractured holdings. And frankly it reflects poorly on the institution and on the entire common law system. Get it together and check your egos, people. Stuff like this looks pretty silly.

Maybe I’m just spent. All I know is that the cowbell in “Hard Day’s Night” seemed far more pronounced as I walked across London to my class this morning than ever before. Here’s the thing: without the cowbell, that song isn’t half as good. With the cowbell, it’s an inspiration. I can’t explain it more than that. Maybe you have to hit bottom to realize what I’m saying. And don’t even get me started on the typewriter in “9 to 5”. Dolly’s a genius, and that’s all there is to it.

A rant on the Court’s latest release

The accompanying photograph is, of course, utterly gratuitous and has nothing to do with this post or with anything for that matter.

The Supreme Court managed to turn what should have been an easy backhanded slap at the Ninth Circuit into a train wreck. SWAT officer Jeff Quon was issued a text pager by his department, which he used about 10% for work and 90% for sending his friends, his wife, and his mistress personal messages including sexually explicit ones (so graphic that I can’t find them quoted anywhere, not in the lower court opinions or the briefs or motions). In the meantime, his mistress was mixed up in some police dispatcher’s proclivity for tipping off the Hell’s Angels to police investigations. Once all this comes out, Quon along with his friends and family (remember the MCI friends-and-family plan?) all discover the Fourth Amendment and make a federal case about their expectations of privacy. We expected privacy! Give us money! Nine out of nine justices surveyed say they lose because, even if they expected privacy, the department acted reasonably in monitoring its pagers. But justices Scalia and Stevens both write concurrences, which is a sure sign that the other seven did something wrong.

Sure enough, they did. Here it is:

The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, 277 U.S. 438 (1928), overruled by Katz v. United States, 389 U.S. 347, 353 (1967). In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. It is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

You can imagine what Justice Scalia does with that: abdication of duty, feeble excuse, you sound really old, etc. All that and more is true. That the justices don’t understand how pagers or email or cell phones are used by the rest of America is a huge problem because it makes any attempt by them to evaluate “expectations of privacy” not merely speculative but random. That they admit this is, as Justice Scalia says, probably an even bigger problem.

More to the point, though, to suggest that Olmstead was precipitous because the telephone was too hard for the justices to grasp is ludicrous. The 1928 Court was not so coddled as to not have used telephones the way today’s justices seem to have avoided getting a laptop. The issue in Olmstead—and again in Katz—was whether the Fourth Amendment protected tangible property only. Katz did not hold that there was a reasonable expectation of anything “in a telephone booth.” It expressly disavowed any such holding: “The Fourth Amendment protects people, not places.” Katz held that the Fourth Amendment protected intangible conversations from unwarranted snooping. Katz then went on to concoct (in Harlan’s concurrence) the unworkable expectation-of-privacy nonsense.

That the problem is the expectation-of-privacy rubric itself is evident in the more interesting of the two issues that the Court sidesteps (the other being whether Quon himself had any expectation of privacy):

Petitioners and respondents disagree whether a sender of a text message can have a reasonable expectation of privacy in a message he knowingly sends to someone’s employer-provided pager. It is not necessary to resolve this question in order to dispose of the case, however. Respondents argue that because “the search was unreasonable as to Sergeant Quon, it was also unreasonable as to his correspondents.” They make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to Quon’s correspondents.

This comes about as close as the Court has to recognizing that the Katz test is deeply flawed.

Still 57 strong

It was a little touch-and-go, but all 57 students got out of Holland. Suffice it to say that the official communiqué from the SoL to yours truly read, “Keep up the good work.” I’m not at liberty to disclose anything more.

The students were all bused off to Versailles today and, so, I could reacquaint myself with Paris. Part of that meant having a drink with an old friend, who happens to be here and who is a partner at a Coral Gables firm, which happens to hire our students from time to time. He and his wife (who, coincidentally enough, was on this very study abroad trip once upon a time as a student) are enjoying accommodations a notch above what The Powers That Be allotted for me and a veritable world away from where the students are ensconced.

Having last year learned a good bit about how this ought to be done, I divided the 57 into groups of 5 or 6 and assigned them each a topic for panel discussion. (Details, if you really want to know, are available for download in the sidebar.) And, at the start of each class, I announce which two other groups are responsible for grilling the group presenting the readings with probing questions. This ensures that everyone has to read everything. As the best ’80s TV detective once (and only once) famously intoned, so far it’s working. Not only did Group 1 far surpass my expectations, but the entire class got into the asking of questions.

Laws are all really just guidelines

I had plenty of time, but it didn’t take long. Once I saw that Justice Breyer wrote the decision for the Court in this Dolan case and that Scalia and Stevens both signed Roberts’ dissent, I started searching for the expedient paragraph. See, Justice Breyer is too intellectually honest to omit the paragraph that begat the opinion in the first place. Maybe he thinks it makes the opinion more persuasive. It only makes it more transparent:

As we have said, a defendant who, like petitioner here, knows that restitution will be ordered and is aware of the restitution amount prior to the expiration of the 90-day deadline can usually avoid additional delay simply by pointing to the statute and asking the court to grant a timely hearing. That did not happen here. And that minimal burden on the defendant is a small cost relative to the prospect of depriving innocent crime victims of their due restitution.

It’s all so expedient and efficient and fatuous and dangerous and Breyer-esque that I don’t even know where to start. Yes, I do: Defendants don’t have the burden of prosecution. Second, judges don’t just cheerfully grant a hearing when a defendant points out that they are not doing their job. (“You want restitution? I’ll order you some restitution. Don’t you worry.”) For another thing, victims can sue for damages; they don’t need restitution to be imposed at sentencing. Enough said about this case.

I had time to read Dolan (but instead read Nuremberg stuff and watched four episodes of Arrested Development) because I had to kill four hours at a swank hotel’s bar in Holland. Yes, it’s the study abroad program again. And, yes, I quite accidentally signed up to spend four days in Amsterdam with 57 law students under my direction. I know, I know. I’ve made a huge mistake.

The sound of silence

Let me explain this term’s three Supreme Court cases tweaking Miranda v. Arizona. Suppose that Aunt Clara gets arrested and the police want to talk to her. Aunt Clara can magically banish the police, but she has to know the magic words. (Berghuis v. Thompkins) This is not as easy as you might think. (As Justice Sotomayor’s dissent points out in footnote 9, none of these incantations works Miranda magic: ­“I’m not going to talk about nothin,’” “I just don’t think that I should say anything,” “I don’t even like talking about it man … I told you … what happened, man … I mean, I don’t even want to, you know what I’m saying, discuss no more about it, man,” “Then put me in jail. Just get me out of here. I don’t want to sit here anymore, alright? I’ve been through enough today,” “Okay, if you’re implying that I’ve done it, I wish to not say any more. I’d like to be done with this. Cause that’s just ridiculous. I wish I’d … don’t wish to answer any more questions,” “I really don’t want to talk about that.”) Aunt Clara being Aunt Clara, she won’t know the magic words.

Samantha knows the magic words, and Aunt Clara could magically render the police mute until Samantha came to help her. But she would have to know the magic words for that, too. And the police no longer have to tell Aunt Clara that such a spell is even possible. She’s a witch, after all; she’s supposed to know these things. (Florida v. Powell)

Even if Aunt Clara did somehow successfully utter the mute-until-Samantha-gets-here incantation, that spell now expires in 14 days. (Maryland v. Shatzer) Then, whether or not Samantha has found Aunt Clara, the police can speak again, and Aunt Clara has to either cast the muting spell again or the banishing spell. Aunt Clara being Aunt Clara, she is not going to remember whether or how she cast the muting spell in the first place, much less have any idea how to cast the banishing spell.

Whenever Aunt Clara is finally brought to court, Samantha will try to explain how the police were overbearing and got what Aunt Clara said all wrong. But, the judge is going to have all the patience and understanding of Endora and, after doing the Exasperated Eye-Roll®, will just throw Aunt Clara into jail for as close to forever as she can.

How does any of this make any sense, you ask? Well, it all depends on what you think Miranda is meant to accomplish. If you think that Miranda

reflects “many of our fundamental values and most noble aspirations,” our society’s “preference for an accusatorial rather than an inquisitorial system of criminal justice”; a “fear that self­ incriminating statements will be elicited by inhumane treatment and abuses” and a resulting “distrust of self­ deprecatory statements”; and a realization that while the privilege is “sometimes a shelter to the guilty, it is often a protection to the innocent.”

then this is crazy and you are what we call a “dissenting justice.” If, on the other hand, you think “[t]he main purpose of Miranda is to ensure that an accused is advised of and understands the right to remain silent and the right to counsel” then there is no reason for anyone to read into your actions. How are the police supposed to know that, by ignoring their two-hour onslaught of questioning, you are signaling a desire to be left alone? Quit being so coy. Open your mouth and tell them you are being silent. It’s the same idea behind, “This page intentionally left blank.”

Did I mention that spelling counts?

The examination software we use disables the automatic correction of students’ orthographical lapses. One 3L remarked, “That is so stupid. We are always going to have computers to check our spelling.” This, of course, explains the millions of typos. As far as I can tell from the 1Ls’ attempts to cram every bit of legal jargon and every last case name from the syllabus into their essays, disarmed of their computers, America’s youth are left to communicate with an exiguous, phonemically created lexicon, just a couple of steps removed from a pictographic language. No doubt this is borne of their habitual, perfunctory, and constant missives re: everything and nothing via instant- and text-messaging. The results auger the death of English as we have known it.

Worse, somehow, somewhere, these poor souls seem to have gotten the idea that the more buzzwords and case names they can throw onto my computer screen as I scroll through their meanderings, the better their grade. Ha! I don’t even read that stuff. If I wanted to read one string of vainglorious allusions after another, I could save a lot of trouble by giving an exam that said only: “Searches (Discuss)”. Instead, what I am going to have to do to thwart this dizzying regurgitation of piles of nonsense is impose totally arbitrary rules—like, no case names and no words with more than five letters. Then they’d have to think and not just ramble.

Fortunately, there is the occasional little gem to buoy my spirit and keep me moving through the pile, e.g.: “Intimate activities take place in garages, like working on one’s car.”

Speaking of nuts …

I skimmed all of the cases the Supreme Court decided today. I’ve never done that before—at least not as far as I remember. But my other alternative was to grade more 1L exams. That means the highlight of my day was Justice Stevens’ unanimous opinion for the Court in American Needle v. National Football League. The case holds that the NFL does not function as a single entity when it gives Reebok an exclusive license to make all the baseball caps and skullies with all the NFL logos. The NFL’s argument was pretty ludicrous: that anything the teams agree to do together is exempt from § 1 of the Sherman Act because the teams have to cooperate to stage football games at all. What does that have to do with my having to make do with a relatively small gamut of football-themed hats, all designed by a European company and not by American Needle? As Justice Stevens put it, “[A] nut and a bolt can only operate together, but an agreement between nut and bolt manufacturers is still subject to § 1 analysis.” The opinion is something of a coup d’grâce for JPS, who was an antitrust expert before being appointed to the Seventh Circuit, the court he reversed in American Needle. Plus, he gets to gratuitously mention that the NFL was “[o]riginally organized in 1920,” which is, of course, the year JPS was born. There are a few other self-referential bits, but they’re only funny if you spent the day reading the same three essay answers over and over on a computer screen. Plus, I’ve already forgotten most of them because my brain is pretty fried.

You know what helps with the essay reading? If you have a Mac, do this: hold down the Control, Option, and Command keys and then press “8”. That helps a lot. It’s also fun to do to all the machines at an Apple store.

“It’s an emergent norm.”

That was how one of my contemporaries and colleagues at another law school explained his having resorted to multiple-choice exams. I have to say, I was a little stunned that this particular colleague did this since he, far more than I, is hook-line-and-sinker into all of academia’s self-referential pomposity. I mean, this is a guy who throws phrases like “emergent norm” around in casual conversation and who used to go to several of the panel discussions at the AALS annual meeting because he found them interesting. (That’s the American Association of Law Schools, by the way, whose conference is the only event I know of that makes law school itself look like a good time.) I thought hard-core academics were supposed to be all about making students answer mind-bending essay questions full of nuanced, tricky issues. And here I find that they have computers grading their bubble-in answer sheets for them. Sure, reading essays written by 1Ls is maddening and tedious like few other things, but there are harder jobs than this one out there. And no one comes here to learn to memorize nonsense. That’s what they take Bar-Bri for.

MY COLLEAGUE RESPONDS:

You young people today are just so open about everything in your puerile blogs. I have to admit being somewhat surprised about your emotive reaction to my multiple choice questions. Are your silly little short answers any better? Fill-in-the-blank? Do fact scenarios so implausible that they never will appear in real-life really test relevant legal skills? In any event, my multiple choice questions are all about policy. More important than understanding a theory is understanding who coined it. Hence knowing that Kant is a retributivist is more important than understanding what retributivism actually means. We actually don’t know what it means.