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From: TimF6/29/2017 11:14:20 PM
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Court Says Gov't Has To Give Back $167,000 It Seized During A String Of 4th Amendment Violations
from the rare-loss-for-civil-asset-forfeiture dept

The Ninth Circuit Court of Appeals has no good news for the lying law enforcement officers who were hoping to walk off with $167,000 of someone else's money. Two years ago, the district court ruled in favor of Straughn Gorman, who was subjected to two lengthy traffic stops in less than an hour by officers hoping to help themselves to cash he was carrying in his RV.

After stopping Gorman for a non-violation (driving too slow in the left lane), State Trooper Greg Monroe spent roughly a half-hour trying to obtain consent to search Gorman's RV. His reasonable suspicion? Gorman's use of the word "chick" to describe the girlfriend he was driving to visit and the supposedly "rehearsed" aspects of his employment history. Trooper Monroe performed an extensive background check on Gorman while hoping to prolong the stop until a K-9 unit could be deployed, but even his non-routine call to an El Paso DEA records center failed to drag out the traffic stop long enough for it to arrive.

All Monroe knew when he finally let Gorman go is Gorman had at least $2,000 on him. Monroe wasn't going to let this money get away, so he called up another officer from another agency and "relayed his suspicions." He also told the other officer (Deputy Doug Fisher) to bring a drug-sniffing dog with him. Fisher wasn't assigned to patrol the highway Gorman was traveling on, but decided that would be the best use of his time.

Fisher pulled over Gorman after his tire touched the fog line a couple of times. Another records check was run, even though Fisher already knew what results to expect, thanks to Trooper Monroe's heads-up. The drug dog supposedly alerted near a right-rear compartment of the RV. Gorman gave the deputy permission to search that area, but that wasn't good enough for Fisher. Fisher said the alert gave him permission to search the entire RV. This resulted in the discovery of $167,000 in cash, which Fisher took. Gorman was (again) free to go. Gorman was never charged with any criminal act, much less given a citation for the supposed moving violations that predicated the two stops.

The government appealed the lower court's decision, which gave Gorman back his $167,000 plus legal fees. It raised a number of defenses for its actions (which included the state's attorney omitting several facts about the two searches from its affidavits), but the Appeals Court is no more receptive of this deception and deceit than the lower court. From the decision [PDF]:
We hold that the search of Gorman’s vehicle following the coordinated traffic stops violated the Constitution and affirm the district court’s order granting Gorman’s motion to suppress. Gorman’s first roadside detention was unreasonably prolonged in violation of the Fourth Amendment. The dog sniff and the search of Gorman’s vehicle, in turn, followed directly in an unbroken causal chain of events from that constitutional violation. As a result, the seized currency is the “fruit of the poisonous tree” and was properly suppressed under the exclusionary rule.


The coordinated action at issue in Gorman’s case offers a prime illustration of the value of the “fruit of the poisonous tree” analysis. The analysis allows us to see the officers’ conduct in Gorman’s case as what it is: a single integrated effort by police to circumvent the Constitution by making two coordinated stops. When the result of one stop is communicated and, on that basis, another stop is planned and implemented, the coordinated stops become, in effect, one integrated stop that must as a whole satisfy the Constitution’s requirements. An illegal police venture cannot be made legal simply by dividing it into two coordinated stops.
This won't be the only time officers behave this way. The Supreme Court's Rodriguez decision stated traffic stops are over once the "objective is complete." This forces officers to be a bit more creative if they're engaged in fishing expeditions without reasonable suspicion to extend the stop. One "solution" is shown above: have a second law enforcement officer initiate a stop to prolong the roadside investigation without triggering the protections of Rodriguez. Another "solution" is to have K-9 units perform stops or be in close proximity, thus lowering the chances of a court finding the stop to be "prolonged."

Both of these solutions are violations of Rodriguez, even if some courts will award the government points for effort. Fortunately, there are a few courts adhering to the intent of the decision: it's not the length of the Fourth Amendment violation, it's the violation itself.

Unfortunately, anything cash-related tends to make officers bypass their better judgment and push the edge of the Fourth Amendment envelope. The good news -- at least for Straugh Gorman -- is he's getting all of his cash back, plus legal fees. That it took more than two years for this to happen is unfortunate, but to be expected -- especially in a legal system that's stacked against victims of civil asset forfeiture.

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From: TimF7/3/2017 1:50:02 PM
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Do liberal judges have a problem applying Chevron? (Or are conservative agencies bad at following statutory directions?)
By Jonathan H. Adler June 30

The Supreme Court nomination of Neil Gorsuch helped propel a largely academic debate over judicial deference to agency interpretations of law to the fore. Under the Chevron doctrine, agency interpretations of ambiguous statutory language are to be upheld, provided that the agency interpretations are themselves reasonable. Although Chevron deference is not always available, when it can be invoked it helps agencies defend their actions in federal court. Then-judge Gorsuch’s opinions questioning Chevron highlighted long-simmering disputes over the doctrine’s wisdom. (For my own take on this question, see here.)

In theory, Chevron helps prevent judges from relying upon their own policy preferences when reviewing agency decisions. It does this by instructing courts to defer to agency decisions about how ambiguous statutory language should be interpreted. In effect, it tells judges: Unless the statute is clear, let the agency have its way, provided it’s not doing anything the statute clearly prohibits.

Does Chevron fulfill its purposes? A new paper by Kent Barnett, Christina Boyd and Christopher Walker shows that appellate courts are not as consistent in applying Chevron deference as some might like. Here’s the abstract:

Do federal circuit courts consistently apply Chevron deference’s framework when reviewing agency statutory interpretations? Or do political dynamics result in courts gaming the Chevron doctrine? To answer these questions, we empirically analyze circuit-court decisions from 2003 until 2013 that review agency statutory interpretations. Our results — from the largest and most comprehensive database of its kind — confirm longstanding intuition and earlier, more limited studies: courts do not consistently apply Chevron. Our findings, nevertheless, offer some surprising insights into the political dynamics of applying Chevron. When courts reviewed liberal agency interpretations, all panels — liberal, moderate, and conservative — were equally likely to apply Chevron. But when reviewing conservative agency interpretations, liberal panels applied Chevron significantly less frequently than conservative panels. Contrary to limited prior studies, we find no evidence of “whistleblower” or disciplining effects when judges of different judicial ideologies comprised the panel. Viewed together, our results provide important implications for the current debate on whether to eliminate, narrow, or clarify Chevron’s domain.

Worth highlighting is the apparent finding that liberal and conservative panels are not equally consistent in their application of Chevron. As the authors discuss in the paper:

It turns out that conservative judges tend to apply Chevron deference at effectively the same rate regardless whether the agency interpretation is liberal or conservative. And liberal and conservative judges apply Chevron at effectively the same rate for liberal agency interpretations. But when it comes to conservative agency interpretations, we find that liberal judges are less likely to apply Chevron deference. In other words, Chevron deference appears to constrain conservative judges as to liberal interpretations, but not vice versa.

What does this mean? There are several possibilities. Among other things, it is possible that conservative agency interpretations are less likely to be worthy of Chevron deference, perhaps because existing regulatory statutes have underlying liberal purposes or Republican administrations are more prone to taking liberties with statutory language in agency implementation. (See, for instance, the George W. Bush administration’s approach to the 1990 Clean Air Act, which led to repeated losses in federal court.) Under this interpretation, liberal judges are simply more likely to call out such excesses than are conservative ones.

Another possibility, of course, is simply that liberal judges are less constrained by Chevron than their conservative brethren. Under this interpretation, suggested by the authors, such judges are less likely to grant Chevron deference to agency actions with which they disagree. This would suggest that Chevron does not consistently constrain judges from considering or relying upon their policy preferences in rendering their decisions. Without looking at the specifics of the agency actions under review, it is impossible to know for sure.

As the authors note, this research is of potential relevance to ongoing debates about whether Chevron deference is worthwhile. As a general matter, Chevron deference helps agency actions survive judicial review. As prior research has shown, agencies tend to win in appellate courts when Chevron deference is applied. Yet this new research suggests Chevron might not help all agency actions equally.

Some commentators have suggested that abandoning Chevron deference now might make Trump administration deregulatory efforts more vulnerable to judicial review. Yet if liberal judges are less likely to apply Chevron to conservative agency actions — such as efforts to deregulate — abandoning Chevron might not matter as much in a court such as the U.S. Court of Appeals for the D.C. Circuit, which has a sizable liberal majority. This could make the Trump administration more willing to support proposed legislation to eliminate Chevron deference. Such legislation has already passed the House and is under consideration in the Senate.

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From: TimF7/18/2017 3:26:22 PM
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Judicially Supervised Plunder
by Mark Pulliam

The unexpected retirement of Judge Janice Rogers Brown, 68, from the U.S. Court of Appeals for the D.C. Circuit will trigger a well-deserved celebration of her extraordinary judicial career, both as a federal appellate judge (since 2005) and previously as a member of the California Supreme Court (1996 to 2005). It will be difficult for President Donald Trump to appoint a replacement that comes anywhere close to filling the shoes of the of the forceful, fearless, and independent Brown, whose nomination by President George W. Bush to the nation’s second most influential court in 2003 was delayed for two years by Democratic opposition. Despite a filibuster in the U.S. Senate, Brown was ultimately confirmed in 2005 by a 56 to 43 vote, when the so-called Gang of 14 reached an agreement to avoid Republicans’ invocation of the “nuclear option.” Hopefully, Brown will continue to serve on the D.C. Circuit as a judge with “senior status.”

One of Brown’s recent decisions is illustrative of her unflinching commitment to the rule of law. In Keepseagle v. Perdue (2017), the parties to a class-action settlement sought court approval for the distribution of $380 million of federal tax revenues to certain nonprofit organizations that were not parties to the litigation. The settlement was upheld by a 2 to 1 vote; Brown wrote a remarkable 43-page dissent.

Here’s the background: The lawsuit was filed in 1999 by Native American farmers who claimed that the U.S. Department of Agriculture had discriminated against them when they applied for credit and benefits under various government programs. In 2010, after more than a decade of “discovery”—meaning plaintiffs’ lawyers fishing for supporting evidence through laborious, expensive-to-respond-to document requests, interrogatories, and depositions—the federal government agreed to settle the case. The settlement, to be funded by the U.S. Treasury, provided for payments to class members starting at $50,000 if they satisfied a minimum evidentiary standard, and ranging up to $250,000 if they met a higher standard of proof.

The “settlement fund” was calculated to be $680 million, although the precise amount of payments to qualifying class members wouldn’t be known until the claims process was completed. It was expected that at least 10,000 claims would be filed, and that most of the claims would be successful.[1] Claimants had 180 days from the effective date of the settlement in which to file a claim. Instead of specifying that any unused monies in the settlement fund would revert to the Treasury, the settlement agreement provided that any “leftover funds” be paid to nonprofit organizations that served Native American farmers.

As it turned out, the fund was grossly excessive. In the words of the Keepseagle majority, “Far fewer people made claims than anticipated. At the conclusion of the claims process, only $300 million of the $680 million settlement fund had been paid out.” Just 5,191 claims were received, and only 3,605 were successful—far fewer than expected. The discrepancy was astonishing in light of the length and amount of factual discovery conducted prior to settlement, for which class counsel received a $60.8 million payday.

Surprised by the magnitude of the unused balance, which exceeded the compensation paid to the qualifying class members, the parties to the litigation renegotiated the settlement agreement. Again, instead of agreeing that the “leftover funds” would revert to the Treasury, the parties reached a “compromise” pursuant to which each claimant would receive an additional $18,500 (and a payment on their behalf to the Internal Revenue Service to cover the tax liability), and the balance would be paid to third-party charities. The payment of settlement funds to third parties was referred to in the litigation as a “cy-près distribution.”

The federal district court approved the modification of the settlement. But a disgruntled class member appealed, contending that the “leftover funds” should be distributed to the successful claimants, not third parties.

The D.C. Circuit upheld the district court. Applying an “abuse of discretion” standard, the majority concluded that “the negotiated compromise fairly balances the parties’ competing positions.” The majority declined to consider an argument made by the disgruntled class member for the first time on appeal, challenging the payment of “leftover funds” to third parties as a violation of the U.S. Constitution’s “appropriations clause” (Article I, Section 9, Clause 7), on the ground that it would expend Treasury funds to non-litigants without a specific appropriation by Congress.

The majority held that the failure to raise this objection in a timely manner constituted a waiver. Enter Judge Brown, whose devastating dissent began with these words:

$380,000,000 is, to use the late Senator Dirksen’s wry phrase, “real money.” That is what has been left on the table for private disbursement in this case. Perhaps one day, I will possess my colleagues’ schadenfreude toward the Executive Branch raiding hundreds-of-millions of taxpayer dollars out of the Treasury, putting them into a slush fund disguised as a settlement, and then doling the money out to whatever constituency the Executive wants bankrolled. But, that day is not today.

Brown’s colleague, Judge Robert Wilkins (appointed by President Barack Obama), joined the majority but wrote a separate concurring opinion responding to Brown’s dissent, which he accurately (but probably sarcastically) characterized as “a tale of corruption and conspiracy, in which the plaintiffs and the Government were complicit in bilking the nation’s taxpayers to pay a political ransom.” For 43 pages, Brown denounced the settlement agreement as an unconstitutional appropriation without congressional approval, a defect that cannot be waived.

Citing the Federalist Papers, Brown observed:

The Executive Branch may wish to favor certain interests on the taxpayer’s dime. It may wish to use the Judicial Branch’s enforcement of settlement agreements to avoid asking Congress for an appropriation. But the Constitution’s design gives the People’s elected representatives a means to thwart these “overgrown prerogatives.” . . . By limiting the “judicial Power” to resolving “Cases” and “Controversies,” . . . the Constitution ensures the Judicial Branch has “no influence over . . . the purse.” . . . Expenditures toward the fulfilment of public policy are integral to policymaking itself, and policymaking is left to the legislature. . . . In short, congressional control over the People’s purse is a structural limit on both the Executive and Judicial Branches.

Enforcing collusive class-action settlements that enrich third parties at the expense of taxpayers constitutes an egregious distortion of the doctrine known as cy-près, which originated in the field of trusts and estates. (It means “as near as possible,” a reference to amending the terms of a trust as closely as possible to the original intention of the settlor or testator.) It’s also an irresistible temptation for abusive litigation, and a fundamental usurpation of constitutional authority. Wrote Brown:

If the Government wishes to achieve certain purposes by expending taxpayer money to people with no monetary claims against the United States, a legislative appropriation is required. No such appropriation exists here. Neither authorizing nor policing a cy pres distribution scheme in a class action settlement with the United States is consistent with constitutional limitations. Because the money was appropriated to pay claims, and those claims have been compensated, the more than $380,000,000 that remains here should be returned to the American People.

Brown closed her dissent with a warning about the dangers of government officials spending “other people’s money” in violation of the Constitution’s system of checks and balances:

Those allegedly discriminated against have been compensated by the public fisc, and that payment occurred via a process that—while ripe with politics and folly—was ultimately permitted by law. But, to the extent the Government would like to additionally account for this discrimination by funding nonprofits and charities that work to end discrimination against Native Americans, this should be the decision of the People and their elected representatives. It should not be the decision of Justice Department lawyers, class counsel, and the judiciary.

This is originalism at its finest.

Perhaps prompted by Brown’s dissent, on June 5, 2017 Attorney General Jeff Sessions announced that, with limited exceptions, Department of Justice lawyers may no longer enter into agreements that provide for payments to third parties, including cy-près agreements. Judge Brown will be missed.

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From: TimF9/15/2017 11:27:16 AM
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The Case of the Phantom Frog
Thursday August 3rd, 2017
Posted by Craig Eyermann

Imagine if land that had been held in your family for decades were suddenly subject to new environmental regulations that would severely limit what you could do on that land, where you would not be able to do things like build a new house on it, cut down trees on it, or even to farm it the way your family had for generations.

As you might imagine, the value of your family’s land would plunge, because it would no longer be attractive to people who might consider buying it, because those same restrictions would apply to them.

Now imagine that those new environmental regulations were imposed by the federal government, egged on by environmental activists, that are intended to preserve the natural habitat of an endangered species of frog that had not been seen anywhere on or near your land for nearly half a century. And in a particularly cruel twist, you discover that your family’s land would not even provide a suitable habitat for the endangered species in question unless the government compelled your family to spend thousands of dollars to transform it into a suitable habitat for the endangered frog.

If that sounds like a bizarre nightmare scenario of government bureaucracy, you’re right. RealClearInvestigations James Varney describes a very peculiar case of government regulations run amuck in the name of protecting the dusky gopher frog.
The phone call came out of the blue in 2011.

A federal biologist on the other end of the line told Edward B. Poitevent II that the U.S. Fish & Wildlife Service intended to designate a large swath of Louisiana woods that had been in his family for generations a “critical habitat” for the endangered dusky gopher frog.

Poitevent was confused because the frog had been neither seen nor its croak heard on the land since the 1960s. Later he would learn that his land is not, in fact, a suitable habitat for the frog anyway.

“No matter how you slice it or dice it, it’s a taking of my land in that I can’t use it or sell it now,” said Poitevent, a New Orleans lawyer.

A half century after disappearing from the 1,500-acre parcel in Louisiana, the dusky gopher frog will likely appear this month in filings urging the U.S. Supreme Court to settle the matter after years of costly litigation.

In one sense, the case illustrates the conflicts that arise as conservationists and the government use the Endangered Species Act to protect privately held lands. But legal scholars say the absent amphibian could provide a broader test of just how far the government’s regulatory reach can extend under the Constitution.
The legal case in favor of the homeowner will come down to a court’s determination of what constitutes an “unreasonable” restriction imposed by an ambiguously-worded federal regulation, where common sense has not been allowed to enter the argument as lower level judges have found against the landowners, claiming that their legal hands were tied by a 1982 Supreme Court precedent that awarded a profound amount of legal deference to federal regulators regardless of the specific facts that apply to the case.

With that being the situation, the Case of the Phantom Frog will be an interesting one to follow as it moves through the nation’s appellate courts, particularly if it ultimately reaches the Supreme Court where it could prompt the court to overturn all or part of its previous decision that benefited the interests of federal regulators over those of regular Americans.

On a final note, this kind of environmental-activist directed policy affects far more than a family-owned farm in Louisiana. On July 31, 2017, some 1.8 million acres (2,812 square miles) of farm, ranch and timber lands in the Sierra Nevada mountain range in California had similar restrictions imposed upon them by the U.S. Fish and Wildlife Service, which were defined as “critical habitat” for three species of frogs and toads.

Would the government be so set on imposing such environmental regulations if it were required to fully compensate regular Americans for diminishing the value of their property?

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From: TimF10/7/2017 3:57:41 PM
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Dorf offers a critique of originalism, but he does not defend any alternative (or set of alternatives). For reasons that will become apparent, this way of proceeding is problematic. The question for constitutional theory is not originalism or not originalism: the relevant question is whether originalism is better than the alternatives. This means that evaluation of originalism should proceed by the method of pairwise comparison.

Pairwise comparison requires that originalism be compared to the alternatives: originalism versus common law constitutionalism, originalism versus pluralism, originalism versus moral readings, and so forth.

For example, Dorf argues that originalism is not more determinate than the alternatives, but his post does not even attempt to show that this is the case. He does argue that originalist judges make conservative decisions, but he does not even address the question as to what decisions they would have made if they had adopted an alternative methodology. For some alternatives, it seems obvious that originalism would be more constrain--even if originalist judges are highly imperfect. For example, if the court operated on the basis of the moral readings theory (advocated by Ronald Dworkin and James Fleming) then it seems likely that the originalist judges would have had even more conservative voting records. Justice Scalia made this point several times with respect to his votes in some First Amendment and Fourth Amendment cases.

It would be helpful if Professor Dorf would specificy what alternative or set of alternatives to originalism he has in mind when he claims that originalism is not more constraining than the alternatives.

Dorf believes that originalism's past demonstrates that originalist judges are not practicing "honest originalism." In his original post, he relied on a study by Jessee and Malhorta. In Part Three of my series of posts, I demonstrated that this study does not show what Dorf asserts. Of course, there are many other studies of judicial ideology. For example, the Martin-Quinn scores for the Justices over time also place Scalia and Thomas on the right of the Court, with Alito sometimes ranked as more conservative than Scalia. But shifting to another study will not help Dorf. For reasons that Ward Farnsworth has explained in depth, Martin-Quinn scores simply will not serve the purpose to which Dorf puts them. These scores are not based on a data set of decisions in which originalism plays are role, and they simply have nothing to say about the question whether Scalia and Thomas failed to engage in "honest originalism." Moreover, generalizing about originalism on the basis of decisions by two Justices has obvious problems.

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From: TimF11/25/2017 1:20:07 AM
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Defendants, Not Their Attorneys, Should Decide Whether to Admit Guilt
By Jay Schweikert

Criminal defense is personal business. A criminal defendant may never face a more momentous occasion than his trial, nor one where his decisions have greater personal consequence. For this reason, the Constitution not only mandates rights for the accused but also secures a defendant’s autonomy in the exercise of those rights: “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Faretta v. California, 422 U.S. 806, 819 (1975).

Robert McCoy sought to exercise his autonomy on one of the most fundamental decisions a defendant can possibly make—whether to admit or deny his own guilt before a jury. On trial for his life, McCoy made an informed, intelligent, and timely decision to maintain his innocence and put the state to its burden. But that decision was not respected. Over McCoy’s express objection, the trial court permitted his attorney, Larry English, to tell the jury that McCoy was guilty of murder. With the court’s approval, English even purported to relieve the state of its burden to prove McCoy guilty of murder beyond a reasonable doubt. Following this brazen violation of McCoy’s autonomy, the jury returned a unanimous verdict for first degree murder and sentenced McCoy to death.

The Louisiana Supreme Court upheld McCoy’s conviction, and effectively treated his insistence on deciding for himself whether to admit or deny guilt as a claim for ineffective assistance of counsel. But that framing elides the fundamental interest at issue here. In a capital case with overwhelming evidence, it may be tactically advantageous to admit guilt, with the hope of avoiding the death penalty at the sentencing phase. But the issue is not whether such a strategy is reasonable; it is whether a mentally competent defendant, fully informed of his situation, may decide for himself whether to maintain innocence and demand the state prove his guilt beyond a reasonable doubt.

Once a defendant has chosen to be represented by counsel, his attorney has the power to make many binding decisions of trial strategy. But admitting guilt over a client’s express objection is much more than a mere strategic decision; it strikes at the very purpose of a jury trial—the adjudication of guilt—and eviscerates the defendant’s prerogative to decide upon the objectives of representation by counsel. A criminal justice system built upon the presumption of innocence, with ample procedural protections for the accused to put the state to its burden, becomes a process in which an admission of guilt is forced upon a presumptively innocent defendant without his consent.

Beyond the defendant’s personal interest, failure to respect defendant autonomy damages the criminal justice system as a whole. McCoy’s trial reflected the gross spectacle of a divided defense—where the defendant must interrupt and object to his own lawyer’s presentation, and is then impeached by his own counsel under cross-examination. Such a presentation to the jury threatens the adversarial system itself, and undermines public confidence in the fair administration of justice. Adopting the government’s position would also put defense counsel in impossible ethical dilemmas and encourage more defendants to proceed pro se, even if they otherwise would have welcomed the assistance of counsel. The defendant, his lawyer, and the system as a whole will all be best served by a clear decision protecting the defendant’s autonomy.

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From: TimF11/25/2017 1:21:23 AM
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Courts Should Police Sweetheart Settlements Where Only the Lawyers Benefit
By Ilya Shapiro, Trevor Burrus, and Reilly Stephens

Class actions allow a single plaintiff, or group of plaintiffs, to represent the interest of a larger “class” of people with the same or similar legal claims. In practice, such cases are driven not by the actual plaintiffs, however, but by lawyers who conceive and control the lawsuit—and too often reap an outsized portion of the rewards. Allowing lawyers to negotiate on behalf of people who don’t even know they’re being represented creates opportunities for self-dealing, where the lawyers sell off the legal rights of absent class members in exchange for hefty attorney fees. Because of these potential conflicts of interest, courts are called upon to police class actions to a far greater extent than they are in the course of other litigation.

Amy Yang is one of these exploited absent class members. She objects to the settlement of a set of antitrust actions against various airlines serving routes between the U.S. and Asia, alleging a price-fixing conspiracy. The problem is that the certified class includes members who have no real chance of recovery at trial: those who purchased their tickets through a third party (think Expedia or Orbitz) and those whose flights originated abroad. Under the antitrust laws, only those who directly purchased tickets from airlines for flights originating in the United States are eligible for recovery, yet those sure losers are included in the class on an equal basis with as valid claims. Indeed, most of the class is probably ineligible for recovery, since most people buy tickets through third-party websites these days rather than directly from the airline.

But a larger class means a larger fee, and so the plaintiff’s lawyers—known as “class counsel”—weighed the class down with bogus claims to inflate their own payday. This is great for the lawyers, but it comes at the expense of class members with legitimate claims, who see their recovery diluted to make up the difference. Yang, represented by the Competitive Enterprise Institute’s Center for Class Action Fairness, has asked the Supreme Court to put a stop to this skullduggery. Cato filed a brief urging the Court to take the case. Our brief focuses on the constitutional imperative that courts effectively police the class-action system to ensure that all citizens are afforded constitutional due process. To do otherwise would place all our legal rights in the hands of the plaintiffs’ bar, to be auctioned off so they can buy beach houses and sports cars.

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From: TimF11/25/2017 1:23:26 AM
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Stash House Stings: When the Government Can Invent Crimes and Criminals
By Trevor Burrus and Reilly Stephens

Imagine a friend approaches you with an opportunity for what he believes will be easy money: a guy he met knows where some local drug dealers store their merchandise—a great big pile of it, fifty kilos, lightly guarded. Your friend’s guy thinks it could be grabbed relatively easily and flipped for a hefty profit. The whole thing sounds sketchy to you, but cash is tight this month and stealing from drug dealers does not feel like the most morally objectionable of crimes. Perhaps not the most sophisticated sort (and having watched a bit too much TV), you soon find yourself in a van on your way to the score.

Except there was no score—it never existed—and your friend’s “guy” is actually a police officer, whose colleagues arrive and arrest you and charge you with conspiracy to traffic in a controlled substance (the mythical fifty kilos) while carrying a firearm (your friend brought one along). Never mind that the drugs you are being punished for trafficking are make-believe—as is the place from which you were to steal them—you now face fifteen years in prison for indulging a yarn spun by the government.

These are, with some simplification, the facts of United States v. Conley, handed down last week by the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit felt itself bound to uphold the conviction, but not without first referring to the practice as “tawdry” and “question[ing] the wisdom and purpose of expending the level of law enforcement resources and judicial time and effort in this prosecution.” The Court of Appeals quoted from the trial judge’s opinion in the same case, who declared Conley’s fifteen-year sentence for an imaginary crime “devoid of true fairness … serv[ing] no real purpose other than to destroy any vestiges of respect in our legal system and law enforcement that this defendant and his community may have had.” The trial judge was required however to impose it due to mandatory minimum sentences set by Congress.

The Seventh Circuit is not the first to encounter this practice of prosecuting hypothetical criminals for crimes of the government’s concoction, nor the first to express its displeasure. The opinion itself cites eight other opinions from around the country that take a dim view of this gimmick. One judge on the Sixth Circuit declared “the concept of these ‘stash house sting’ operations [is] at odds with the pride we take in presenting American criminal justice as a system that treats defendants fairly and equally under the law.” Another, on the Third Circuit, argued “the potential for abuse and mischief [here] is endemic.” Yet, in case after case, courts give the thumbs up.

Perhaps the most disturbing aspect of this ploy is that it empowers the government to define the crime it is inventing. Since drug sentences are tied to the weight of the drugs at issue, the officers can inflate the sentence by inflating the imaginary bag of drugs. Since they made up a stash house with fifty kilos, Conley was charged with fifty kilos, if they’d said two kilos, or three hundred, or one million, the sentence would have been different—criminal justice as magical realism.

The average reader may well wonder why this could be considered anything other than entrapment. After all, if the government told you to commit a crime it should not have the gall to demand you be punished for it—a sort of inverse of the traditional definition of chutzpah, where the man who killed his parents asks the court to take mercy on him as an orphan. But the entrapment defense is very narrow, creating results that would be farcical if they were not so tragic. Take Conley: because the government agent didn’t go to Conley directly but to his eventual associates who in turn recruited Conley, the Seventh Circuit held Conley couldn’t claim entrapment. The government may therefore concoct a conspiracy and induce one party to carry it out, who then recruits third parties to help him. After all are arrested, the primary party, who has a potential claim of entrapment, is given a reduced sentence for testifying (as happened in this case), and they throw the book at whoever else was ensnared.

And to what end? Advocates of more aggressive criminal law enforcement warn we are experiencing a new crime wave; the claim seems dubious, but even if it is true, the mind boggles as to how it improves matters to let the government make up nonexistent crimes to punish. Surely those resources could be better focused toward those pursuing violent ends on their own initiative? Given the bulging seams of our current prison capacity, what good does it do to shackle unsuspecting rubes with decades-long sentences of the government’s manufacture? Yet the mischief will continue until courts stop simply gritting their teeth and start showing some judicial grit.

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From: TimF2/26/2018 3:54:48 PM
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Whatever Happened to Michael Mann's Defamation Suit (2018 edition)
It's been over a year since a petition for rehearing en banc was filed and the D.C. Court of Appeals has yet to act.
Jonathan H. Adler|Feb. 11, 2018 12:08 pm

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From: TimF2/26/2018 3:58:26 PM
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The Judicial Nomination Train Keeps Rolling

Whatever else the Trump Administration is (or is not) doing, it continues to announce excellent judicial nominees for federal appellate courts - while showing it's capable of working with Democratic Senators.

Jonathan H. Adler
Feb. 14, 2018

Last weekend Beltway pundits may have proclaimed the White House was off the rails, but the Trump judicial nomination train remains on track. The White House announced its eleventh set of judicial nominees on Monday. As we've come to expect, the Administration put forward an impressive list of jurists, led by four noteworthy picks for appellate courts, including several who are guaranteed bipartisan support.

The latest appellate nominees are Andy Oldham (Fifth Circuit), Michael Scudder (Seventh Circuit), Amy St. Eve (Seventh Circuit) and Mark Bennett (Ninth Circuit). In addition, Trump nominated John Nalbandian (Sixth CIrcuit) and Joel Carson (Tenth Circuit) in January and December, respectively.

Oldham currently serves as General Counsel for Texas Governor Greg Abbott, and previously worked in the Texas Solicitor General's office, the Justice Department Office of Legal Counsel, and in private practice in Washington, DC. He clerked for Justice Samuel Alito on the Supreme Court and Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit. His nomination is no surprise, as he is razor sharp and had been among those considered for prior Texas vacancies on the Fifth Circuit. Of this week's nominees, he's also the one most likely to end up on a future Supreme Court short list.

Two of this week's nominees are for Illinois seats on the Seventh Circuit. Scudder is a White House and Justice Department veteran who is now a partner at Skadden Arps. He clerked for Justice Anthony Kennedy and has taught at both the Northwestern Pritzker and University of Chicago law schools. St. Eve is a federal district court judge in the Northern District of Illinois and former Whitewater prosecutor. She, too, has taught at Northwestern. Bennett is the former Hawaii Attorney General and a former Assistant U.S. Attorney who has taught at the University of Hawai'i at Manoa.

Although news stories tend to suggest the White House refuses to consult with Senators about potential judicial picks, this week's nominations tell quite a different story. All of the appellate nominations announced this week enjoy the support of their home-state Senators, including those from states with deep-blue delegations.

While Senator Mazie Hirono (D-HI) has led the attack against some of Trump's judicial nominees in the Senate Judiciary Committee, she joined Senator Brian Schatz (D-HI) in praising Bennett as a "well-qualified" pick for the Ninth Circuit. Perhaps more surprising is the statement released by Senators Dick Durbin (D-IL) and Tammy Duckworth (D-IL) praising the Trump Administration's Seventh Court picks:
We are pleased that the President has nominated Judge St. Eve and Mr. Scudder. They both have the experience, integrity, and judgment that we look for in federal judges, and we expect them to serve with distinction on the Seventh Circuit. We appreciate the Administration's willingness to work with us and with our nonpartisan screening committee to reach consensus on nominees who will serve the people of Illinois well. We look forward to guiding these nominations through the Senate.
The latest set of nominations illustrates that the Administration is more than willing to consult with home-state Senators before making judicial picks, even for appellate courts. All that's necessary is for Senators to negotiate in good faith. They also suggest that insofar as vacant seats on some courts languish without nominees, it's unlikely due to a lack of effort by the White House Counsel's office.

If Senators Hirono, Schatz, Durbin, and Duckworth could come to terms with the White House on potential appellate nominees, what's stopping Senate delegations from states with other longstanding vacancies? There are several vacancies on the U.S. Court of Appeals for the Ninth Circuit which have been declared "judicial emergencies" - including one seat that has been vacant for over two years - and yet the California Senators seem completely unwilling to cut a deal.

Judge Alice Batchelder of the U.S. Court of Appeals for the Sixth Circuit announced her intention to take senior status upon the confirmation of her successor and there's still no nominee for her position. Judge Batchelder sits in Ohio, and there's no lack of highly qualified potential nominees the White House would readily put forward with Senator Rob Portman's enthusiastic support. Senator Sherrod Brown (D-OH), on the other hand, appears to have been wholly uncooperative. It's as if he (and some of his Democratic colleagues) are looking for ways to make Senate Judiciary Committee Chairman Charles Grassley (R-IA) ignore their blue slips.

Even with this week's announcement, there remain quite a few seats to fill. As of this week there are 146 vacancies on federal courts, which accounts for approximately 16 percent of the federal bench. An additional thirty seats are classified as "future vacancies," as the judges in these seats have announced their intent to retire on a date certain or upon the confirmation of their successor. Seventeen of the current vacancies are on federal appellate courts, as are seven of the future vacancies. Not including those announced Monday, there are 50 pending nominations, including seven for appellate seats. Although the Senate has sought to expedite the confirmation process, the nomination pipeline remains full. (Information on vacancies and pending nominees may be found here.)

The Trump Administration has made judicial nominations a priority. With a few notable exceptions, it has succeeded in putting forward highly qualified nominees. At the same time, it has shown a willingness to work with home state Senators in selecting nominees. Yet I doubt this cooperative posture will last forever. Where home state Senators are unwilling to engage in good faith consultation with the Administration, I expect the White House will evenutally proceed on its own -- and given the current make-up of the Senate, these nominees will get confirmed, with or without home state support.

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