FedSoc Blog

SCOTUS Sides with Police in 4th Amendment Case

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by Publius
Posted December 15, 2014, 2:04 PM

Supreme Court Sides With Police In 4th Amendment Case Arising from Officer’s ‘Mistake of Law’Reason reports:

In a decision issued this morning, the U.S. Supreme Court sided with the police in a case arising from an officer’s “mistake of law.” At issue in Heien v. North Carolina was a 2009 traffic stop for a single busted brake light that led to the discovery of illegal drugs inside the vehicle.

According to state law at the time, however, motor vehicles were required only to have “a stop lamp,” meaning that the officer did not have a lawful reason for the initial traffic stop.

Did that stop therefore violate the 4th Amendment’s guarantee against unreasonable search and seizure? Chief Justice John Roberts held that it did not. “Because the officer’s mistake about the brake-light law was reasonable,” Roberts declared, “the stop in this case was lawful under the Fourth Amendment.”

Read the full post.

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Why Doesn’t the U.S. Public Agree with International Law’s Absolute Ban on Torture?

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by Publius
Posted December 12, 2014, 11:11 AM

Why Doesn’t the U.S. Public Agree with International Law’s Absolute Ban on Torture?Julian Ku, writing at Opinio Juris, comments:

FiveThirtyEight.com points out that the Pew Research Survey, which has polled Americans on whether torture can be justified since 2004, has found a decline in support for the absolute ban on torture.  Indeed, in its last survey back in 2011, 53% of those surveyed said torture could “sometimes” or “often” (!!) be justified.  Another nearly 20% were willing to allow torture in “rare” cases.  Only 30% or so of those polled supported an absolute ban on torture, which is the position taken by international law.  This means nearly 70% of the U.S. public seems to be willing to tolerate torture in some exceptional circumstances.

Read the full post.

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Judge Posner: “I think privacy is actually overvalued.”

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by Publius
Posted December 10, 2014, 9:33 AM

Judge Posner: Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, spoke at a privacy and cybercrime conference this week. Computerworld reports:

"Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct," Posner added. "Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you."

Congress should limit the NSA's use of the data it collects -- for example, not giving information about minor crimes to law enforcement agencies -- but it shouldn't limit what information the NSA sweeps up and searches, Posner said. "If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that's fine," he said.

In the name of national security, U.S. lawmakers should give the NSA "carte blanche," Posner added. "Privacy interests should really have very little weight when you're talking about national security," he said. "The world is in an extremely turbulent state -- very dangerous."

Read the full article.

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Epstein: Curbing the Abuses of China’s Anti-Monopoly Law

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by Publius
Posted December 03, 2014, 2:09 PM

Epstein: Curbing the Abuses of China’s Anti-Monopoly LawThe Center for the Protection of Intellectual Property blog has a sneak peek of a forthcoming policy brief by Professor Richard A. Epstein, who was the keynote speaker at our recent Patents & Innovation Conference. Prof. Epstein writes:

There are increasing complaints in both the European Union and the United States about a systematic bias in China’s enforcement of its Anti-Monopoly Law (AML). In an extensive report on China’s abuse of its antitrust laws in advancing its own domestic economic policies, for instance, the U.S. Chamber of Commerce noted among many wide-ranging examples a recent action against Microsoft in which Chinese antitrust authorities used a “speculative possibility of licensor hold-up” following Microsoft’s acquisition of Nokia to justify a decree under the AML to “cap license fees for domestic licensees of mobile handset-related software.” . . .

The unfortunate situation in China is one example of a dangerous set of practices which could spread to other countries, motivated either by imitating what China has done or retaliating against its abuses. The risk is that the disease can spread all too easily. Until reforms are implemented in both the substance of the AML and the enforcement practices of the Chinese authorities, American policymakers and enforcement authorities should do everything they can to avoid aiding this misuse of antitrust as a domestic economic policy cudgel.

Read the full preview.

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17th Annual Faculty Conference

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by Publius
Posted November 25, 2014, 9:56 AM

17th Annual Faculty ConferenceRegistration is now open for the 17th Annual Faculty Conference at the Omni Shoreham Hotel in Washington, DC. Jaunary 3 & 4, 2015.

The purpose of our Annual Faculty Conferences is to provide an opportunity for those interested in the Society to share ideas and scholarship with each other.

Featured panels and events:

  • The Executive Power to Not Enfore the Law
  • Debate: Resolved, that the Affordable Care Act does not authorize subsidies for individuals purchasing health insurance through federal exchanges
  • Private Enforcement versus Government Regulation
  • The Administrative State: Within the Bounds of Law?

For more information or to register, please visit our website

Categories: Federalist Society

Commentary: President Obama Should Not Act Unilaterally on Immigration

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by Publius
Posted November 20, 2014, 10:00 AM

Commentary: President Obama should not act unilaterally on immigrationAt the Volokh Conspiracy, David Bernstein comments:

Previous presidents have had the same discretion under the immigration laws that Obama has. But no president had ever used his immigration discretion simply to evade Congressional opposition to his policies, nor to extend de facto legal status to so many people. It corrodes public respect for the legal system when the president uses loopholes to evade the normal legislative process and enact an extremely controversial, wide-ranging policy that Congress has rejected. And if President Obama can do this with regard to immigration, what’s to stop future presidents, including conservative Republican presidents, from using similar tactics? Bad behavior by one president inevitably becomes precedent for bad behavior by future presidents.

I’ll quote Jonathan Chait here: “Our Constitution and legal structure alone don’t secure the Republic. We also depend on norms — or an implied understanding of what sort of behavior is acceptable.” . . .

Read the full post.

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Direct New Challenges to Bakke Ruling

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by Publius
Posted November 19, 2014, 10:07 AM

Direct New Challenges to Bakke Ruling Two interesting challenges to Regents of the University of California v. Bakke made the news this week. SCOTUSblog reports:

The saga over the use of race in selecting new college entrants that began with the Supreme Court’s famous ruling in Regents of the University of California v. Bakke nearly four decades ago now has a new chapter — and it is intended to be the final one.  Two lawsuits, filed Monday in federal courts against two major universities, are crafted to eventually put before the Supreme Court an explicit plea to overrule Bakke and later decisions on the issue. . . .

Harvard University — ironically, the same institution that had provided an affirmative action model that the Supreme Court embraced in the Bakke case — is one of the targets of the new challenges.  The other lawsuit names the University of North Carolina at Chapel Hill.

“Given what is occurring at Harvard and at other schools,” the lawsuit filed in Boston argued, “the proper response is the outright prohibition of racial preferences in university admissions — period.  Allowing this issue to be litigated in case after case will only perpetuate the hostilities that proper consideration of race is designed to avoid.”

The North Carolina complaint, filed in Greensboro, often uses some of the same language as in the Harvard case.  It asserted that “UNC-Chapel Hill and other academic institutions cannot and should not be trusted with the awesome and historically dangerous tool of racial classification.  As in the past, they will use any leeway the Supreme Court grants them to use racial preferences in college admissions — under whatever rubric — to engage in racial stereotyping and other forms of discrimination to advance their social-engineering agenda.”

Both lawsuits were filed by an organization headed by the same civic activist and strong foe of race-based policymaking, Edward Blum, who put together the Fisher case and is now planning to return that case to the Court in coming weeks.   The organization suing now is the Students for Fair Admissions, Inc., a non-profit advocacy group created to represent students who fail to gain admission to major colleges  and believe that their race was the reason; Blum is its president.

Read the full article.

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Commentary: Chevron Deference About to Hit a Snag

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by Publius
Posted November 18, 2014, 10:27 AM

Chevron Deference About to Hit a SnagAt the Library of Law and Liberty blog, Philip Hamburger writes:

A recent Supreme Court order portends interesting limits on the Securities Exchange Commission and on Chevron deference. Earlier this fall, I observed how the SEC evades jury rights and other rights of criminal defendants by proceeding against them in SEC hearings. Now, as noted by Ed Mannino, the Supreme Court is beginning to focus on a related danger.

In the course of denying certiorari in Whitman v. United States, Justice Scalia (joined by Justice Thomas) asks:

Does a court owe deference to an executive agency’s interpretation of a law that contemplates both criminal and administrative enforcement?

The question matters for the SEC. This agency has been getting Chevron deference for its administrative interpretations of the securities laws, thus allowing it in effect to make the criminal law that the government relies on in its securities prosecutions.

The Supreme Court has settled that, as quoted by Scalia, “A court owes no deference to the prosecution’s interpretation of a criminal law.” Indeed, criminal statutes “are for the courts, not for the government, to construe.”

SEC interpretations are therefore very problematic . . .

Read the full post here.

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SCOTUS Orders: One Grant (Two Consolidated Cases), One Per Curiam Opinion

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by Publius
Posted November 17, 2014, 10:02 AM

SCOTUS Orders: One Grant (Two Consolidated Cases), One Per Curiam OpinionThe Order List is here.

(1) The Court granted cert today in Bank of America v. Caulkett and Bank of America v. Toledo-Cardona.  The question presented in those cases is: "Whether, under Section 506(d) of the Bankruptcy Code, which provides that “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void,” a Chapter 7 debtor may “strip off” a junior mortgage lien in its entirety when the outstanding debt owed to a senior lienholder exceeds the current value of the collateral."

(2) The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument was granted in several cases: B&B Hardware v. Hargus Indus., Alabama Dept of Revenue v. CSX Transp., and Hana Financial v. Hana Bank.

(3) Prof. Jeffrey Fisher (Stanford) was appointed counsel in Ohio v. Clark.

(4) The Court issued a per curiam opinion reversing the Ninth Circuit in Glebe v. Frost, a habeas case.  Frost had been convicted of several bank robberies but argued that his state trial court improperly forced him to chose between a theory of duress and contesting criminal liability.  The state supreme court (Washington) agreed, but deemed the error non-structural and ultimately harmless in light of the evidence presented and the proper jury instructions issued.  The District Court dismissed Glebe's habeas petition but the Ninth Circuit reversed, finding structural error  Per SCOTUS' reversal of the Ninth Circuit today:

"Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the Court of Appeals had power to grant Frost habeas corpus only if the Washington Supreme Court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d). Here, the Ninth Circuit held that the Washington Supreme Court unreasonably applied clearly established federal law by failing to classify the trial court’s restriction of closing argument as structural error. That decision cannot stand. Assuming for argument’s sake that the trial court violated the Constitution, it was not clearly established that its mistake ranked as structural error. Most constitutional mistakes call for reversal only if the government cannot demonstrate harmlessness. Neder v. United States, 527 U. S. 1, 8 (1999). Only the rare type of error—in general, one that “‘infect[s] the entire trial process’” and “‘necessarily render[s] [it] fundamentally unfair’”—requires automatic reversal. Ibid. None of our cases clearly requires placing improper restriction of closing argument in this narrow category."

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SCOTUS Can End Fraudulent Payouts in BP Spill Case

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by Publius
Posted November 12, 2014, 10:05 AM

SCOTUS Can End Fraudulent Payouts in BP Spill CaseBoyden Gray, at Investor's Business Daily, comments:

To its credit, BP has shown an enormous commitment to repairing the damage caused by the spill. In the weeks following the incident, the company moved quickly to set up a fund to compensate businesses affected by the disaster.

Kenneth Feinberg, a lawyer who had handled compensation paid to victims of 9/11, was retained to pay claims, and he distributed the money to those who could demonstrate that the spill had harmed them. Sidestepping a prolonged litigation process in this way allowed the company to deliver relief to local victims quickly and efficiently.

In just 16 months, Feinberg had distributed $6.3 billion to roughly 200,000 claimants.

But bypassing the litigation process also ignored one class of self-entitled claimants — namely the local lawyers who expect to cash in on every catastrophe. In this context, one should never forget the old adage that one lawyer in town will just scrape by but two or more lawyers there will do very well indeed.

Determined to elbow their way into the mix, the local tort bar launched its own lawsuit. BP reached a settlement, which was initially estimated to cost $7.8 billion. But this time, a local lawyer named Patrick Juneau was appointed to distribute the money through a court-supervised program.

Juneau's interpretation of the class settlement has been broad, to say the least. Unlike Feinberg, the new administrator has seen fit to dole out BP's money not only to deserving parties, but also to businesses that suffered losses for reasons entirely unrelated to the Deepwater Horizon spill.

Read the full article.

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SCOTUS Orders: No New Grants, Several Per Curiam Opinions

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by Publius
Posted November 10, 2014, 10:10 AM

SCOTUS Orders: No New Grants, Several Per Curiam OpinionsThere were no new cert grants today, though the Court appended several per curiam decisions to the order list:

(1) The motion of the SG for leave to participate in oral argument and for divided argument was granted in Kellogg Brown & Root Servs. v. United States ex rel. Carter.

​(2) The motion of petitioners for divided argument in the Mortgage Bankers Association cases (Nickols and Perez) was denied.​

(3) The Court issued a per curiam, summary reversal of the Fifth Circuit in Johnson v. City of Shelby, which is notable to the extent it emphasizes the limits of the pleading requirements set forth in Twombly and Iqbal:

​"Plaintiffs below, petitioners here, worked as police officers for the city of Shelby, Mississippi. They allege that they were fired by the city’s board of aldermen, not for deficient performance, but because they brought to light criminal activities of one of the aldermen. Charging violations of their Fourteenth Amendment due process rights, they sought compensatory relief from the city.

Summary judgment was entered against them in the​ ​District Court, and affirmed on appeal, for failure to invoke 42 U. S. C. §1983 in their complaint.​  ​We summarily reverse. Federal pleading rules call for​ ​“a short and plain statement of the claim showing that the​ ​pleader is entitled to relief,”​ ​Fed. Rule Civ. Proc. 8(a)(2);​ ​they do not countenance dismissal of a complaint for​ ​imperfect statement of the legal theory supporting the​ ​claim asserted.​​....​Our decisions in ​​Bell Atlantic Corp.​ ​v.​ ​Twombly, 550​ ​U.S. 544 (2007), and​ ​​​Ashcroft​ ​v.​ ​Iqbal, 556 U. S. 662​ ​(2009), are not in point, for they concern the​ ​factual​ ​alle​​gations a complaint must contain to survive a motion to​ ​dismiss. A plaintiff, they instruct, must plead facts sufficient to show that her claim has substantive plausibility.​  ​Petitioners’ complaint was not deficient in that regard.​  ​Petitioners stated simply, concisely, and directly events​ ​that, they alleged, entitled them to damages from the city.​  ​Having informed the city of the factual basis for their​ ​complaint, they were required​ ​to do no more to stave off​ ​threshold dismissal for want of an adequate statement​ ​of their claim.​... For clarification and to ward off further insist​​ence on a punctiliously stated “theory of the pleadings,”​ ​petitioners, on remand, should be accorded an opportunity​ ​to add to their complaint a citation to §1983.​"​ ​​

​(4)  The Court issued a per curiam opinion reversing the Third Circuit's denial of qualified immunity to police officers in Carroll v. Carman.  The question presented was: "(1) Whether, when a police officer approaches a residence to conduct a “knock and talk,” the Fourth Amendment requires the officer to go to the “front door” even where it reasonably appears that some other entrance is also customarily used by visitors; and (2) whether the court of appeals erred in holding that such a rule was “clearly established” for purposes of qualified immunity."  After discussing the facts and several background cases, the Court resolved the second question without deciding the first:

We do not decide today whether those [earlier] cases were correctly decided or whether a police officer may conduct a “knock and talk” at any entrance that is open to visitors rather than only the front door. “But whether or not the constitutional rule applied by the court below was correct, it was not ‘beyond debate.’” Stanton v. Sims, 571 U. S.___, ___ (2013) (per curiam) (slip op., at 8) (quoting al-Kidd, 563 U. S., at ___ (slip op., at 9)). The Third Circuit therefore erred when it held that Carroll was not entitled to qualified immunity."

(5) Justice Scalia, joined by Justice Thomas, issued a statement respecting the denial of cert in Whitman v. United States. The question presented was:

"(1) Whether, in a prosecution for insider trading under § 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), the relevant inside information must have been a “significant factor” in the defendant’s decision to buy or sell, or whether -- as the court below held -- mere “knowing possession” of inside information suffices for a criminal conviction; (2) whether, in a prosecution for insider trading under § 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), the “fiduciary duty” element must be proved under well-established principles of state law, or whether -- as the court below held -- courts may define and impose the applicable fiduciary duty as a matter of federal common law; and (3) whether exculpatory testimony given by a witness during a deposition in a closely related federal enforcement proceeding is admissible under Federal Rule of Evidence 804(b) in a subsequent criminal trial when the witness is unavailable, or whether -- as the court below held -- such testimony may be excluded merely because it was given in a civil rather than criminal proceeding.

Although the Court denied cert., Justices Scalia and Thomas signaled an interest in restraining deference to agency interpretation where criminal enforcement is involved: "This case, a criminal prosecution under §10(b) of the Securities Exchange Act of 1934, 48 Stat. 491, as amended, 15 U. S. C. 78j(b), raises a related question: Does a court owe deference to an executive agency’s interpretation of a law that contemplates both criminal and administrative enforcement?....I doubt the Government’s pretensions to deference. They collide with the norm that legislatures, not executive officers, define crimes....With deference to agency interpretations of statutory provisions to which criminal prohibitions are attached, federal administrators can in effect create (and uncreate) new crimes at will, so long as they do not roam beyond ambiguities that the laws contain...The Government’s theory that was accepted here would, in addition, upend ordinary principles of interpretation. The rule of lenity requires interpreters to resolve ambiguity in criminal laws in favor of defendants. Deferring to the prosecuting branch’s expansive views of these statutes​ ​“would turn [their] normal construction . . . upside-down,​ ​replacing the doctrine of lenity with a doctrine of severity.”​ ​Crandon​ ​v.​ ​United States, 494 U. S. 152, 178 (1990)​ ​(SCALIA, J., concurring in judgment). ​Whitman does not seek review on the issue of deference, and the procedural history of the case in any event makes​ ​it a poor setting in which to reach the question. So I agree​ ​with the Court that we should deny the petition. But​ ​when a petition properly presenting the question comes​ ​before us, I will be receptive to granting it.​"

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SCOTUS to Hear Challenges to Health Law Subsidies

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by Publius
Posted November 07, 2014, 1:35 PM

SCOTUS to Hear Challenges to Health Law SubsidiesThe Associated Press reports:

The Supreme Court agreed Friday to hear a new challenge to President Barack Obama's health care law.

The justices said they will decide whether the law authorizes subsidies that help millions of low- and middle-income people afford their health insurance premiums.

A federal appeals court upheld Internal Revenue Service regulations that allow health-insurance tax credits under the Affordable Care Act for consumers in all 50 states. Opponents argue that most of the subsidies are illegal.

In the appeal accepted Friday, opponents of the subsidies argued that the court should resolve the issue now because it involves billions of dollars in public money.

The court rarely steps into a case when there is no disagreement among federal appellate courts, unless a law or regulation has been ruled invalid.

But at least four justices, needed to grant review, apparently agreed with the challengers that the issue is important enough to decide now.

Read the full article.

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Sixth Circuit: Now, a Split on Same-Sex Marriage

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by Publius
Posted November 07, 2014, 9:34 AM

Sixth Circuit: Now, a Split on Same Sex MarriageSCOTUSblog reports:

Breaking ranks with a wide array of other federal courts, and coming close to setting up almost certain review by the Supreme Court, a divided federal appeals court in Cincinnati on Thursday upheld bans on same-sex marriage in four states.  Dividing two to one, the U.S. Court of Appeals for the Sixth Circuit overturned lower-court rulings in cases from Kentucky, Michigan, Ohio, and Tennessee.

Probably the only way that this ruling would not predictably lead to Supreme Court review, it appears, is if there is a request for en banc review in the Sixth Circuit, and that request is granted.

The decision was based largely on the two-judge majority’s view that the question whether to move the nation toward same-sex marriage in every state is for the people or the states, and not for judges applying the national Constitution. . . .

UPDATE: The American Civil Liberties Union, one of the legal advocacy groups involved in the case, said “we will be filing for Supreme Court review right away.” Presumably, the other attorneys involved will coordinate their filings, although each case is likely to be appealed separately.

Read the full article.

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Should Republicans Bring Back the Judicial Filibuster?

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by Publius
Posted November 05, 2014, 12:04 PM

Should Republicans Bring Back the Judicial Filibuster? WSJ graphic.Ed Whelan at the National Review comments:

In Tuesday’s elections, Republicans won control of the Senate and expanded their majority in the House. In the coming weeks and months, Republicans in Congress must focus on developing and pursuing a winning agenda over the next two years — an agenda that will help elect a Republican president in November 2016 and provide that president with a governing majority in Congress. But a small cadre of current and former Senate staffers is instead pressing Republican senators on what strikes me as a profoundly foolish and destructive diversion: reinstating the filibuster — more precisely, the 60-vote cloture threshold — for lower-court (and executive-branch) nominees. . . .

The greatest impact of reviving the judicial filibuster would come in 2017 — if a Republican president has been elected and Republicans retain control of the Senate. In that scenario, the judicial filibuster would confer on the Senate Democratic minority massive power over judicial nominations and thus deprive the Republican president of a governing majority. Indeed, Democrats would be even freer to abuse the judicial filibuster than they even were in the George W. Bush years, as Republicans, having revived the filibuster during Obama’s last two years, would be especially vulnerable to charges of unprincipled opportunism if they then acted to curtail it.

Read the full article.

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Greve: Prosecuting with Dynamite

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by Publius
Posted November 04, 2014, 2:13 PM

Prosecuting with Dynamite | Library of Liberty and Law BlogAt the Library of Law and Liberty Blog, Michael S. Greve comments:

So here’s how this went down, supposedly: Mr. Yates, a commercial fisherman, tools around on his “Miss Katie” in the Gulf of Mexico. Along comes a vessel with government officials (state officials, but deputized by the feds to enforce federal fishing laws). The officials board Miss Katie and find suspicious red grouper: the fish look too small. They measure some of the fish and find that six dozen are below the legal size of 20 inches. They instruct Mr. Yates to keep the small fish in an ice box until docking, and depart. Mr. Yates instructs his crew to toss the offending fish overboard and to replace them with legal specimens.

He gets indicted and convicted (30 days in the slammer and three years supervised release)—under what law? 18 USC 2232(a) (destruction or removal of property to prevent seizure); and (drumroll!) the Sarbanes Oxley Act (SarbOx). Enacted in the wake on the Enron scandal to combat financial wrongdoing, SarbOx threatens up to 20 years in prison for anyone who

"knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States." [18 USC 1519]

The fish are “tangible objects” and so good night, says the government. Wrong, say Mr. Yates’ lawyers and numerous amici: the statute prohibits making a false entry [etc] in any record, document, or tangible object—like a computer. It’s aimed at punishing the destruction of information, and the fish had none.

Read the full article.

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