FSU College of Law Research Center Blog

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

GARCETTI et al. v. CEBALLOS

In a 5 to 4 vote the Supreme Court ruled Tuesday May 31st that free speech rights do not protect government employees, even whistleblowers, from punishment for comments made on the job.  Read the Opinion here.

Posted by Jon Lutz

Marshall v. Marshall

The United States Supreme Court, in a 9-0 opinion written by Justice Ginsburg, decided the scope and applicability of the probate exception to federal jurisdiction.  "Once described by a 7th Circuit Court of Appeals judge as “one of the most mysterious and esoteric branches of the law of federal jurisdiction,” the probate exception allows federal courts to hear claims brought by heirs to a decedent’s estate so long as the federal court doesn’t interfere with probate proceedings or take control of the property in custody of the state court. The exception was articulated in the 1946 Supreme Court opinion in Markham v. Allen."  The case was reversed and remanded to the 9th Circuit Court of Appeals, which had initially determined that Mrs. Marshall's claim was “in substance nothing more than a thinly veiled will contest.”  To the amazement of many, Mrs. Marshall won the day.

Excerpts from On the Docket, Medill School of Journalism, Northwestern University.

Petitioner's Brief available here.

Posted by Marin Dell

Documents in the News - Kansas Teen Privacy Opinion

Judge J. Thomas Marten of the Federal District Court for the District of Kansas ruled yesterday (April 18, 2006) in a case that sought to prevent enforcement of Kansas Attorney General Phill Kline’s application of the state mandatory reporting statute, Kan. Stat. Ann. § 38-1522, through an Attorney General’s Opinion, to consensual underage sexual activity. The AG’s opinion required reporting of all consensual underage sexual activity as sexual abuse.  In its order, the court granted plaintiffs' request for a permanent injunction against enforcement of the interpretation, holding that "a plain reading of the statute vests mandatory reporters, such as health care providers, with discretion to determine when there is 'reason to suspect a child has been injured' as a result of sexual abuse."

Posted by Mary McCormick

Documents in the News - Lethal Injection

An article in today's New York Times (page A14) describes an order entered in Willie Brown, Jr. v. Theodis Beck (E.D. N.C. 4/17/2006) allowing North Carolina to use a "bispectral index (BIS) monitor" to determine whether Mr. Brown is unconscious before proceeding with his execution by legal injection. The BIS monitor is made by Aspect Medical Systems.  Read a copy of the opinion here.

Posted by Mary McCormick

Nomination of Judge Alito

The University of Michigan Law Library has set up a page of links on Judge Alito here.  More information will be added when confirmation hearings begin in January.

Posted by Robin Gault