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Posts by David Yin

Mar 29

How Predictive is Questioning During Oral Argument?

Posted 53 days ago by David Yin

The mainstream media and legal blogosphere have covered the oral arguments in the Patient Protection and Affordable Care Act litigation (Dept. of Health and Human Services v. Florida) ad nauseam. The NYTimes certified, ”[t]here is no tea-leaf reading like Supreme Court tea-leaf reading” and excerpted commentary from notable sources:

Lyle Denniston from SCOTUSBlog determined that the argument ended “with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.” Other observers, listening to the same argument, were not so optimistic about the law’s chances. Andrew Cohen of The Atlantic reported “[t]he initial wisdom from the commentariat coming out of Tuesday’s argument, after all the barking by court conservatives, is that the insurance mandate is in trouble.” Jeffrey Toobin of the New Yorker declared, in a much-criticized rant, “This is a train wreck for the Obama administration… This law looks like it’s going to be struck down. I’m telling you all of the predictions, including mine, that the justices would not have a problem with this law were wrong.” Dahlia Lithwick of Slate penned a piece titled, “A Moment of Silence for Obamacare.”

All this analysis elides the antecedent question, which is how much stock should we be putting into these pointed questions?

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Mar 23

“Flagrant Conduct” and the Perfect Prosecution, Pt. 2

Posted 59 days ago by David Yin

In last week’s post, I wrote about how “perfect plaintiffs” can be outcome-determinative to the resolution of a case, or the crafting of a rule. Today we return to Dale Carpenter’s book Flagrant Conduct on Lawrence v. Texas,and the importance of a “perfect prosecution.”

Harris County Criminal Court, Texas

In some cases where plaintiffs seek to challenge unjust laws, the challenge might be that those very laws are rarely enforced against private activity. Yet the fact that sodomy laws were rarely enforced did not diminish their invidious and destructive character. As Prof. Carpenter explains:

Homosexuals, unprotected from job discrimination in Texas and most other states in the 1990s, could be fired simply for being gay. Divorced gay parents could lose custody or face onerous restrictions on visitation with their children on the ground that they were presumptively criminal. Legislators used the existence of the sodomy law as a reason not to grant any civil rights protections to homosexuals…. Being branded a criminal class was also an invitation to discrimination and even violence….

Yet as previously discussed, if laws are not enforced, they cannot be challenged because no person has standing to sue. So the gay rights community not only needed the perfect plaintiffs (as perfect as the best public relations team could make), they also needed a willing prosecution. Thus one particularly fascinating aspect of Flagrant Conduct was how a false police report about a man waving a gun turned into one of the most important civil rights cases in history.

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Mar 15

“Flagrant Conduct” and the Perfect Prosecution, Pt. 1

Posted 67 days ago by David Yin

My colleague Peter Dunne previously blogged about University of Minnesota Law professor Dale Carpenter‘s new book, Flagrant Conduct, on the Lawrence v. Texas (2003) decision. (Full disclosure: I attend UMN myself, and in fact took Constitutional Law last semester with Prof. Carpenter). While both Peter and Prof. Mike Dorf agree that the particular facts of a case perhaps ought to matter less to the Supreme Court, for better or for worse that is not how the judicial branch works. The Supreme Court not only cannot issue advisory opinions on merely hypothetical cases (hence the standing doctrine, mootness, ripeness, etc.), but also it has shown itself to be particularly sensitive to the factual disposition of the cases before it.

Clarence Earl Gideon

For example, the claim of ineffective assistance of counsel is governed by Strickland v. Washington (1984), where the defendant must show that counsel’s performance (a) fell below an objective standard of reasonableness, and (b) there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland came out of the 11th Circuit, included crimes of murder and kidnapping, and involved a defendant acting against counsel’s explicit advice in voluntarily confessing and waiving his right to a jury. The defendant was convicted, but at sentencing, his attorney may have failed to investigate all avenues of mitigating evidence. The 11th Circuit ultimately rejected Strickland’s claim on the basis of the aforementioned two-pronged test, which was later upheld and adopted by the Supreme Court. However, as recently as a couple of years prior, the 11th Circuit’s ineffective assistance of counsel claim was defined by Goodwin v. Balkcom (11th Cir. 1982). In that capital case, the 11th Circuit found that there had been ineffective assistance of counsel because the defense attorney failed to examine procedures for jury selection and thus did not object to conspicuous racial and gender problems with the jury, and failed to investigate the facts to raise a second defense. That court concluded that under the “totality of the circumstances” and “taken together” counsel’s actions deprived Goodwin of the representation due any client. The speculation is that if Goodwin (or another case) had come up to the Supreme Court instead of Strickland, the current standard for ineffective counsel may very well have been different, and perhaps more generous to defendants. Read more

Mar 6

Start Counting Prison Crime in National Crime Statistics

Posted 76 days ago by David Yin

Christopher Glazek’s recent article in N+1 Magazine created a stir with his zealous advocacy of radical change in the prison system. Glazek’s urgings range from the politically impossible to the morally outrageous: “The US prison system doesn’t need reform–it needs to be abolished”; “Prison abolitionists should be ready to advocate a massive expansion of the death penalty if that’s what it takes to move the discussion forward. A prisonless society where murderers were systematically executed and rapists were automatically castrated wouldn’t be the most humane society… but it would be light-years ahead of the status quo”; “Abolishing prisons and releasing all the prisoners would amount to a deregulation of criminal punishment. It would mean letting the private sector determine how best to prevent ourselves from getting robbed. In high finance, the laissez-faire approach has proved to be a disaster; for petty crime, it would be a boon” and etc.

Despite his questionable and objectionable policy recommendations, Glazek does make an important observation: In our reporting of national crime statistics, we fail to account for the large body of crime occurring in our nation’s prisons.

The U.S. Department of Justice releases annually a National Crime Victimization survey on crime statistics in the United States. The 2010 survey, released in Sept. 2011, shows a drop in violent and property crime from 2009 to 2010, and a historic reduction since 2001. This national trend in falling crime rates has been widely celebrated, from agencies like the FBI to newspapers like the Baltimore Sun. Between 2001 and 2010, the total number of violent crime victimizations dropped from 5.7 million to 3.8 million. Of particular interest was the drop in sexual assault/rape victimizations from 248,250 in 2001, to 188,380 in 2010, a 24% change.

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Feb 3

United States v. Shipp: The Supreme Court’s Only Criminal Trial

Posted 108 days ago by David Yin

While the Court routinely passes judgment on matters of criminal procedure or substantive due process, it has only once invoked its original jurisdiction on a criminal trial. In 1906, the Supreme Court heard its first and only criminal trial. The crime was contempt of the Supreme Court. United States v. Shipp saw the Supreme Court personally exercise power to punish a community that actively defied its orders, helped clarify and advance the constitutional rights of prisoners, and served as “the genesis of federal ha­be­as corpus actions in state criminal cases.”

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Jan 27

United States v. Jones and Judicial Modesty

Posted 115 days ago by David Yin

Earlier this week, the Supreme Court handed down one of the most highly anticipated decisions of the term in United States v. Jones. Despite arriving at what many consider to be a laudable result, the Court has been criticized for not going far enough in protecting the public from invasions of privacy using modern technology. Yet whether the Court applied the majority’s 18th-century view of property rights, or a the minority’s 21st-century understanding of GPS technology, the likelihood remains that no present rule of the Court could likely be used to satisfactorily protect our privacy even for the next twenty years, much less into the 22nd-century. Viewed in the same lens as the Court’s Bilski decision, Jones’ narrow ruling may be a recognition that the Court is not competent to predict the next tracking technology, and leaves a vacuum for Congress to fill.

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Jan 17

Mayo v. Prometheus Labs: Should Medical Research Be Patentable?

Posted 125 days ago by David Yin

In Mayo Collaborative Services v. Prometheus Labs, the Supreme Court must decide whether Prometheus Labs’ medical correlation informing patient treatment based on levels of a small-molecule in the blood is patentable. The patent should be held legally invalid under 35 U.S.C. 101, and ought to be unpatentable as a matter of public policy because such patents seriously hinder medical advancement.

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Dec 20

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In Defense of Clarence Thomas

Posted 153 days ago by David Yin

Clarence Thomas joined the Supreme Court in October, 1991. On February 22, 2006, Thomas posed a question during oral argument–and has stayed silent ever since. His silence has been the subject of much commentary and speculation, and perhaps, inevitably, ridicule and accusations of un-intellectualism. This disparaging category of charges is unfair, and deserves some scrutiny.

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Dec 2

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Ninth Circuit Approves Compensation for Bone Marrow Stem Cell Donation

Posted 171 days ago by David Yin

Yesterday, the Ninth Circuit correctly approved compensation for donors of hematopoietic stem cells if taken from peripheral blood, instead of directly from the marrow in our bones. From a legal standpoint, there is little difference between the circulating hematopoietic stem cells and any of your other blood cells–they are found in the same place, removed in the same manner, and will be quickly and easily replenished by the donor’s body. Notwithstanding the complaints of the Justice Department, the law must adapt with new scientific discoveries, and new medical technology.

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Nov 23

Attorney Compensation Under the Vaccine Act

Posted 180 days ago by David Yin

Recently the Supreme Court reviewed the certiorari petition in Rodriguez v. Sebelius, a case involving the compensation of attorneys representing claimants under the National Childhood Vaccine Injury Act. This Vaccine Act created a no-fault compensation program for persons injured by vaccines, motivated by the fear that traditional tort liability was causing vaccine manufacturers to stop developing and producing medicines vital for public health.

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