The Florida State College of Law Research Center Blog

Iftikhar Chaudhry reinstated

Iftikhar Chaudhry has been reinstated as Pakistan's Chief Justice. See earlier posts on Iftikhar Chaudhry here and here. 

More information on his reinstatement here and here. 

Posted by Jon Lutz

Hillary Clinton and the Emoluments Clause

There is an interesting post on The Volokh Conspiracy Blog about Hillary Clinton and the Emoluments Clause.  The emoluments clause states:

No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office.*

The salary of the Secretary of State has increased while Hillary Clinton was Senator so this might make here ineligible to be Secretary of State. 

Read The Volokh Conspiracy post here.

Read more here.

Posted by Jon Lutz

Iftikhar Chaudhry

In late 2007 The National Law Journal chose deposed Chief Justice Iftikhar Chaudhry as its Lawyer of the Year for standing up for the preservation of the rule of law under the Presidency of Pervez Musharraf.  in November 2007 Musharraf imposed a state of emergency, suspended the constitution and arrested Chaudhry along with seven other justices.   See this earlier post for more information.  Chaudhry is currently in the US to receive awards from the New York City Bar Association and Harvard Law School.

See here and here for more information.

Posted by Jon Lutz

Forensic Psychology and Lie Detection

There is evidence that fMRI's (functional Magnetic Resonance Imaging) are more effective at detecting lies then traditional lie detector tests.  Different areas of the brain show greater activity when someone lies then when they tell the truth.  It's more work for the brain to lie and fMRI's can detect that activity.  However more work still needs to be done.  Scans from one individual to another vary greatly so interpretation is still problematic. And there are ethical concerns.  Bioethicists warn that "mental privacy" and the Fifth Amendment right to withhold self-incriminating evidence is at risk. 

To read more see:
Complex brain imaging is making waves in court
Can MRI Scanner be a lie detector? Experts debate technology
Forensic Psychology and Lie Detection

Posted by Jon Lutz

To keep or not to keep the Electoral College?

Is it time to scrap the Electoral College. MIT is having a conference titled To keep or not to keep the Electoral College: New Approaches to Electoral Reform?  Experts in six areas of electoral college studies, including: constitutional law, history, logical foundation, campaign and election strategies, mathematics and politics are attending.  Here's an excerpt from the conference description:

Conference goal: Since its creation in 1787, the Electoral College has remained the most mysterious mechanism for electing a President of a country. There is no consensus among mathematicians, systems scientists, and political scientists studying the Electoral College on whether it can satisfactorily serve the U.S. in the 21st century, especially after two close elections in 2000 and in 2004. Discussions of the Electoral College in the media mostly focus on opinions about this unique election mechanism and are not based either on its established quantitative features or on its true merits and obvious deficiencies, leaving them unknown  or unclear to an overwhelming majority of the electorate.

The conference aspires to inform media representatives of what is really known about key Electoral College features, as well as to spotlight unsolved systems problems associated with analyzing this controversial election mechanism.                

Leading Electoral College experts, along with the authors of recent proposals to reform the Electoral College and to improve its use in presidential elections, will review already known features of the Electoral College, as well as new findings. This will help the media avoid publishing and airing incomplete and sometimes incorrect information about the system of electing a U.S. President, confusing voters and affecting civic participation. Some quantitative features of the Electoral College, especially the way it works in close elections, will be briefly discussed in a simple manner.

Read more about the conference here.

Posted by Jon Lutz

Code: Version 2.0

Lawrence Lessig has updated his "minor classic" Code: Version 2.0. Here's a description from Amazon.com.

The "alarming and impassioned"* book on how the Internet is redefining constitutional law, now reissued as the first popular book revised online by its readers (*New York Times)

There's a common belief that cyberspace cannot be regulated-that it is, in its very essence, immune from the government's (or anyone else's) control. Code, first published in 2000, argues that this belief is wrong. It is not in the nature of cyberspace to be unregulable; cyberspace has no "nature." It only has code-the software and hardware that make cyberspace what it is. That code can create a place of freedom-as the original architecture of the Net did-or a place of oppressive control. Under the influence of commerce, cyberpsace is becoming a highly regulable space, where behavior is much more tightly controlled than in real space. But that's not inevitable either. We can-we must-choose what kind of cyberspace we want and what freedoms we will guarantee. These choices are all about architecture: about what kind of code will govern cyberspace, and who will control it. In this realm, code is the most significant form of law, and it is up to lawyers, policymakers, and especially citizens to decide what values that code embodies.

Posted by Jon Lutz

Early Supreme Court Decision Dates

Sometimes it's hard to determine the exact date of early Supreme Court decisions, because the date of the decision doesn't appear below the case name in the first 107 volumes of the U.S. Reports.  But now there is a list online titled: Dates of Supreme Court Decisions and Arguments, United States Reports Volumes 2-107 (1791 - 1882).  The list was prepared by Anne Ashmore.

See it here.

Posted by Jon Lutz

The Perfect Crime

Brian Kalt, Associate Professor of Law at Michigan State College of Law, has written an interesting and provocative article, The Perfect Crime. This article was the fruit of his research on the Sixth Amendment vicinage requirement.  Professor Kalt notes, "Venue (the place a trial is held) and vicinage (the place from which jurors are drawn) are at the root of our problem; they have let people get away with murder before.  In England before 1548, it "often happene[d]" that a murderer would strike his victim in one county, and "by Craft and Cautele" avoid punishment by making sure that the victim died in the next county.  An English jury could only take cognizance of the facts that occurred in its own county, so no jury would be able to find that the killer had committed all the elements of murder."  And apparently, there is a "zone of death" [in the United States].. which "sits at the perimeter of Yellowstone National Park."  Felonies with impunity?  Read more of Professor Kalt's outlying constitutional arguments at SSRN.

Excerpt from: Kalt, Brian C., "The Perfect Crime". Georgetown Law Journal, Vol. 93, No. 2 Available at SSRN: http://ssrn.com/abstract=691642

Posted by Marin Dell taken from Teknoids listserv

Presidential Signing Statements

A blue ribbon American Bar Association task task force on presidential signing statements released a report on July 24, 2006.  You can read a news release here or more from the American Bar Association here.

Read the American Bar Association's Task Force Report with Recommendations.

Presidents can add signing statements to a law passed by Congress.  They may do this (1) to explain to the public what the likely effects of the law may be, or (2) to indicate to the Executive Branch how to interpret an enactment or (3) to inform Congress and the public that the Executive Branch thinks that a certain provision of the law may be unconstitutional in certain applications.  It is this third view that is controversial.  Presidential signing statements of George Bush covering from 2001-2006 have been collected on a temporary website.  You can access them, at least for a while, at the links below:
Annotate Text of the Signing Statements
Unannotated Text of the Signing Statements
Index to the Signing Statements

Posted by Jon Lutz

Supreme Court Limits the Exclusionary Rule

"The U.S. Supreme Court limited the time-honored exclusionary rule yesterday when it held that evidence seized in a home search may still be used for trial even after police failed to "knock and announce" before entering."  Hudson v. Michigan was decided on June 15, 2006.

"The 5-4 decision also underlines the change in the makeup of the court now that Justice Samuel A. Alito Jr. has replaced Sandra Day O’Connor. Hudson was one of two cases reargued this term after Alito joined the court, hinting at a 4-4 split among the justices in the wake of O’Connor’s departure. Alito likely tilted the decision toward the more restrictive use of the exclusionary rule elaborated in Justice Antonin Scalia’s majority opinion."

"The knock-and-announce rule, under which police are required to wait before entering a suspect’s residence, "has never protected … one’s interest in preventing the government from seeing or taking evidence described in a [search] warrant," Scalia wrote. "Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable."

Excerpts from: http://www.abanet.org/journal/ereport/jn16hudson.html

The issue for "Wayne State University Law School professor David Moran, who will argue Hudson’s case, [is that] the 4th Amendment’s protection against “unreasonable searches and seizures” is at stake. At issue...is whether evidence obtained after a knock and announce violation is the fruit of an “unreasonable” entry, and therefore subject to suppression. “The criminal prosecution of officers is never going to happen,” he said, citing Mapp v. Ohio (1961), which called other remedies “worthless and futile.”  [H]e could find only two cases in which a knock and announce victim won a civil lawsuit against the police, and in those cases the victim was awarded only $1."

Excerpt from: http://docket.medill.northwestern.edu/archives/002753.php

People v. Hudson (Unpublished Michigan Court of Appeals opinion)

Hudson v. Michigan (U.S. Supreme Court Brief for Respondent)

Posted by Marin Dell