Excerpts from faculty commentaries in the press.

The other night on TV, I saw an actual jury deliberating in a real case. It happened in an Arizona court that allowed discreetly placed cameras and microphones to record “the secret world of jury deliberations,” as they were described on the court’s Web site. Drastically edited (three days down to 15 minutes), the deliberations were a dramatic highlight in each episode of “State v.,” an ABC series, produced by the news division, that aired nationwide for five weeks this summer. As an old trial lawyer, criminal procedure teacher and lover of the American jury, I worry about cameras in the jury room. Recording deliberations could change the nature of the jury in unpredictable and perhaps unconstitutional ways. And while post verdict interviews of individual jurors by the media and others are also problematic, filming the deliberations as they occur-and then airing them on nationwide TV for entertainment purposes-raises these concerns to a new level. The Bill of Rights guarantees that a group of ordinary citizens stands between the state and a criminal defendant. The resulting system is far from perfect, and any particular jury’s mistakes are all too visible. Yet most people who have experienced juries directly, and most scholars who have studied the institution, believe in the jury system. They see it not only as a historic symbol of democracy but also as a practical institution that performs its job well. But to function in its intermediary role, a jury must be completely independent: of the state, of the parties and of the community itself. It comes together as a group of strangers, ignorant of the case and its participants. It meets only on this one matter, never to be officially reconstituted, and it will never be held accountable for its verdict. An equally important aspect of the jury’s independence is that it deliberates in secret and need not defend or justify the process by which it reaches its decision. —-BARBARA BABCOCK, Judge John Crown Professor of Law, “Preserving the Jury’s Privacy,” New York Times, July 24,2002

 

No baseball in September? That could well happen, with the strike deadline approaching and owners and players engaged in a high-stakes game of chicken. A strike would cost each party plenty of money, and it would break the heart (again!) of the diehard fan. I’m thinking in particular of the hearts of my sons Sam and Gabe, who are praying that the Giants eke out a victory in the wild-card race. It doesn’t have to be this way. A simple change in the tax law could prevent the strike-or at least reimburse the long-suffering fans for their losses. I propose that for each game missed, the owners face a tax of 80 percent on all revenue received in a post strike game. Miss one game, the tax applies for the first post-strike game; miss two games, the tax applies for the first two post strike games. And so on. As with any good tax law, there’s a loophole. The tax due to missed games can be avoided-but only if the team sells snacks and drinks for a nickel apiece. Hopefully, this threat of reduced concession revenue would produce an agreement. Ifnot, well, at least we’d get to munch on nickel hot dogs, as it would be cheaper to offer bargain snacks than to pay the 80 percent tax. If we must survive an October without baseball, we can take solace in next summer’s discount dinners in the bleachers. —JOSEPH BANKMAN, Ralph M. Parsons Professor of Law and Business, “Nickel Hot Dogs or Else,” San Jose Mercury News, Aug. 25, 2002

 

Leave aside the doubts that many strategic experts have about whether an attack from Iraq is imminent; instead, perhaps we should be cautious about insisting that a country’s saber-rattling is enough to justify a lawful war. Because come to think of it, if we stretch the meaning of “imminent attack,” it starts to sound as though Iraq would be justified in responding to our country’s war preparations. That’s the irony: The more we try to enlarge international law to justify an attack on a nation that has not yet attacked us, the more we may legitimize its own (or another nation’s) response to warnings of attack. The truth is our country likes having international law on its side, which is why we invoked it in Nuremberg to punish Nazis, and after Sept. 11 to justify our attack on Afghanistan as self-defense. Our country often acts as though our power comes from what we stand for and not just from the heat we pack. If the Bush administration really thinks it is worth invading Iraq without considering international law, it should say so. The problem is that the moral high ground is central to our national narrative. Any leader who wants to risk losing that ground had better have a pretty good reason. When it comes to Iraq, though, the administration acts as though the time for reason has just run out. —MARIANO·FLORENTINO CUELLAR, Assistant Professor of Law, “If You Don’t Like the Law, Do You Still Have to Obey It?, San Jose Mercury News, Sept. 10, 2002

 

[W]hile it is frequently reported that 17 of the 24 active judges [on the ninth Circuit] were appointed by Democrats, this sly insinuation about the politics of the court is simply mistaken. Of the 24 active judges, 12 are clearly conservatives, six are moderates, and only six could fairly be characterized as liberals. In practical terms, this means that in order to defend a “liberal” opinion reversing a death sentence due to serious constitutional infirmities against an effort to reconsider the case en banc, the defense must hold all the votes of the liberals and garner ‘all the votes of the moderates-most of whom favor the use of capital punishment. Conversely, reconsideration of a “conservative” opinion requires the votes of all the liberals, all the moderates, and a defection by one conservative. These nearly insurmountable odds ensure that the ninth Circuit is no liberal court. Moreover, those few remaining liberals on the Ninth Circuit are no more likely to be reversed than their conservative colleagues. For example, in the Supreme Court term just ended, the unrepentant liberal Judge Stephen Reinhardt was reversed twice, but so was iiber-conservative Judge Alex Kozinski. In the 1999-2000 term, the Supreme Court granted certiorari in 10 of the circuit’s cases, half of them authored by conservatives, and reversed in nine. The only judge to be reversed twice during that term was conservative Judge Diarmuid O’Scannlain, who was, ironically, one of the leading proponents of breaking up the Circuit to reduce its reversal rate. Neither the size nor the illusory “liberal bias” of the Ninth Circuit explain its frequent reversal. Indeed, we can stop searching for the reason that the Ninth Circuit is so often “wrong,” because the problem is not that the Ninth Circuit is “wrong” and the Supreme Court “right.” The problem is that we are living in a time when the constitutional terrain is rapidly shifting. The Supreme Court is discarding many landmark precedents that have enjoyed decades of adherence.— MICHELE LANDIS DAUBER, Assistant Professor of Law, “The Ninth Circuit Follows,” Legal Times, Aug. 23, 2002

 

The military says openly lesbian, gay or bisexual recruits threaten “unit cohesion.” On the battlefield, this justification is merely improbable; in a Judge Advocate General’s] Corps law office, it is absurd. For decades America’s top law firms and law schools have banned discrimination on the basis of sexual orientation. Nowhere has collegiality or reputation suffered as a result. For America’s law schools, this is a matter of educational policy. They welcome all viewpoints and all thoughtfully expressed opinions. Yet the military’s “don’t ask, don’t tell” policy discriminates against certain students precisely on the basis of expression. Law schools have two goals: to teach students how to interpret and apply the law, and to teach them how to stand in defense of it. For years law schools have stood in defense of the anti-discrimination principles they teach. Now the military is forcing them to bend their principles – and the cost falls not on the schools but on their students. —GEORGE FISHER, Professor of Law, “Power over Principle,” New York Times, Sept. 7, 2002

 

Since Sept. 11, the Bush administration, like previous administrations in times of national security crisis, has claimed that exigency trumps ordinary procedure. True, we have seen no mass quarantine of Middle Eastern immigrants, nor yet the use of military tribunals to do civil courts’ work. But we have seen immigrants placed in secret deportation proceedings, and American citizens suspected of terrorist ties denied counsel and placed in military brigs. We have watched as Congress sped to approve new antiterrorism measures that increased surveillance of e-mail messages and expanded the power of a secret foreign intelligence court to approve wiretaps. We have heard government lawyers argue for dramatic expansion of the category of enemy combatants. Such measures draw little public outcry, for swift and decisive action against amorphous danger is naturally popular, and civil rights and liberties seem a luxury reserved for safer times. But constitutions, like diets, are meant to restrict us most when temptation is greatest. And our constitution, unlike many others, contains no emergency clause providing for its own suspension. In a series of bold decisions, federal judges have acknowledged as much and sought to enforce traditional constitutional values-opening deportation proceedings to the press, requiring access to counsel and questioning the foreign intelligence justifications for domestic surveillance. Such decisions, if upheld, offer us a chance to break the cycle of excessive deference to executive prerogative in national emergencies. A continuous constitution is our greatest protection from terrorism in the first place, and now is the time to hold true to its principles. —-KATHLEEN M. SULLIVAN, Dean and Richard E. Lang Professor of Law and Stanley Morrison Professor of Law, “Reflections on an America Transformed,” New York Times, Sept. 8,2002

 

It would not be difficult to rejigger the Moussaoui case as a RICO prosecution. Al Qaeda is an “enterprise” by any fair reading of the precedents. It has what courts call an “ascertainable structure” and a clear organizing purpose. And the dead or distant hijackers and planners themselves committed RICO predicate acts. IfMoussaoui can be shown to have committed two crimes himself to help further al-Qaeda’s goals, or by appropriating any of al-Qaida’s resources, he could be guilty of a “substantive” RICO count. That’s obviously a problem if not one of the steps taken by Moussaoui was itself a crime. But RICO’s infinite magic goes further. Even though RICO itself looks like a conspiracy law, there’s a separate crime of conspiring to violate RICO. Call it double-counting or legalistic mysticism, but so long as Moussaoui in some way “adopt[s] the goal of furthering or facilitating the criminal endeavor” (to quote the Supreme Court in Salinas v. United States), he is guilty of conspiring with someone else’s RICO violation and through those always available leveraging rules he can be guilty of every crime committed by any co-conspirator committed to furthering the goals of al-Qaeda. And, with a bit more leveraging, the deathpenalty-eligible acts of the (now dead) hijackers can be imputed all the way back to Moussaoui. So why hasn’t the government used RICO in the terror trials? Perhaps prosecutors thought merely invoking the mobster! racketeer imagery ofRICO would have trivialized the crimes of Sept. 11. Perhaps they feared that the transparent utility of RICO in easing their case might backfire, might cause the jurors to spit in the face of Congress for making things too easy for the government. But calling al-Qaida a RICO enterprise would add color to an already dramatic case, and it might just help the government sprinkle the magical federal conspiracy dust on an even wider group of characters. Congress has supplied a special instrument to combat large, conspiratorial organizations; the government should try to sell it to jurors. At the very least it would be preferable to indefinite detentions or secret tribunals. —-ROBERT WEISBERG, Edwin E. Huddleson, Jr., Professor of Law, “RICO Suave: Using Federal Racketeering Law to Prosecute al-Qaida,” Slate, July 9, 2002