In Teaching Evidence, Making the Case for Cases

By Associate Professor Kevin Lapp

I've previously stated my enthusiasm for the problem-based approach to teaching evidence. Embracing the use of problems necessarily means that my students are not reading a lot of cases. Indeed, the textbook that I use has only a few case excerpts that are longer than a paragraph, and does not contain a single case that is reproduced in its entirety. Despite my preference for using problems, I recognize that there are drawbacks to not assigning cases for reading. In this post, therefore, I want to push back against myself a bit and make the case for using judicial opinions in Evidence class.

First, though, a few brief thoughts on what I like about problems. One distinct advantage is that problems are shorter than judicial opinions. Instead of procedural history, or factual recitations, or statements of the governing law, problems get right to work, providing students with all the information that I want them to have in order to focus their attention on the things I want them to focus on (and nothing more). It's much cleaner to have a crafted problem that is one paragraph long than it is to have a 2 page case that includes facts that aren't relevant or important to the rule that the case discusses. Another advantage is that I craft problems that allow me to change the facts very easily to illustrate the critical elements and nuances of a particular rule's application. With cases, the fact set-up is often messier, and it can be harder to offer simple factual adjustments that might change the result or bring into play a particular foundational element of hearsay exception. Finally, presenting the students with problems, instead of cases, allows me to treat the material as a puzzle to be solved (as compared to judicial opinions, which are puzzles already solved).

But there are downsides to teaching by problems. Perhaps the biggest one I've identified thus far is that my students do not get the benefit of reading a judge's organized analysis of a particular legal issue. For all their warts (which themselves can be teaching tools), judicial opinions provide models for legal analysis. They typically start with the facts, outline the relevant law (including its rationale), and then apply the specific words of the law and the underlying rationales to the facts. It's often exactly what I want my students to learn how to do. And while our class discussions about problems involve the students identifying the relevant rule and its elements, and then making arguments about the proper application of the law to the facts, the result is rarely so clean. A student may jump right to the conclusion without explaining how she got there, a student may begin with a justification (I think it should be kept out because it's not reliable) without deciding whether it was even admissible, or a student may fumble with the specifics of the applicable rule. There are, of course, teaching techniques to deal with these situations, if not reduce their occurrence. But the legal analysis we conduct in class for a problem is rarely as organized as a judicial opinion.

And that's the biggest advantage I'm discovering to using judicial opinions. Having the students state and apply the law without reading cases leaves students without models for good legal analysis. Because good legal reasoning (be it writing or oral advocacy) comes not just from practice with problems, but also from reading and hearing good examples of legal analysis, one big benefit of assigning judicial opinions is that the students are able to see an organized application of a given rule to a set of facts. That this is done as the students are first getting to know the terms of a particular rule and its rationale has me convinced that reading cases is even more valuable.

There are plenty of others benefits to using cases, such as allowing me to introduce the students to individual judges (and thus remind them that the law is applied by humans who had prior experiences before they came to the bench, and who decided other cases, etc., etc.) and giving them authority that they can reference throughout the semester.

The upshot of this is that I've found myself slowly gathering case excerpts and assigning them as supplemental reading, not because I think the factual scenarios of the cases provide particularly excellent starting points for learning the rules (I almost universally think that my problems are more finely tuned as instruments of teaching the content of the law) but because I am recognizing the benefit that my students get from the example of the judge's analysis.

One question that lingers - is it better to have the students read 3-4 short cases, or 1 case with a richer discussion/analysis? Would it be better to find cases that I can assign in their entirety, or are case excerpts acceptable? As always, your insights are welcome.

Voter ID: The Diversity in the Details

By Associate Professor Justin Levitt

This op-ed originally appeared in Constitution Daily.

Voter ID laws are back in the news. Curiously, the most recent action concerns one of the oldest cases.

Judge Richard Posner wrote the 2007 appellate opinion upholding Indiana's strict photo ID law -- the first legal one in the country -- against a challenge. Justice John Paul Stevens wrote the 2008 opinion for the Supreme Court upholding that upholding. Both have recently publicly mused about the merits of arguments by the judges that disagreed. That sort of reflective appreciation for the opposing view is sufficiently unusual that it has provoked a flood of commentary.

And that flood of commentary has largely lost sight of two very important distinctions. First,

ID laws are not all the same.

Every state makes sure, when people come to the polls, that they are who they say they are. It's the details of how they do this that matter. Some states compare signatures. Many see whether they can match up Social Security digits, or ask for a document like a utility bill or paycheck, off a long list. Some have a shorter list of approved documents. Some ask for a government-issued photo ID card from those who have one, and demand a special affidavit from those who do not.

And some now require specific photo ID cards from all but the legally indigent, preventing eligible voters who do not have photo ID on Election Day from casting a valid ballot at the polls. (Most such states have more lax documentary requirements for voting absentee.) Even within this category, there is variety: some accept student IDs, for example, and some do not.

Facile Turnout Stats on Voter ID: Wrong, the First Time

By Associate Professor Justin Levitt

This op-ed originally appeared in The Huffington Post.

Judge Richard Posner and Justice John Stevens wrote the 2007 Court of Appeals'majority opinion and 2008 Supreme Court plurality opinion, respectively, upholding Indiana's strict photo ID law against challenge. Their recent public musings about the merits of the dissenting opinions in those cases are sufficiently unusual to have provoked a flood of commentary.

One of these commentaries stands out. Hans von Spakovsky, who has served as a local election official, at the FEC, and at the Department of Justice, joined the mix again last week. In a piece titled "Right the First Time," Mr. von Spakovsky defends Judge Posner's original opinion upholding the ID law.

His primary argument ridicules the notion that ID has stopped some voters from casting their ballots, by pointing to Indiana's consistent turnout gains since the law was implemented. Indiana's law was implemented in 2006. But turnout increased 2 percent from 2002 to 2006 (including in counties with large minority populations), increased 8 percent for Democrats and 5 percent for black voters from 2004 to 2008, increased (including for black voters) from 2006 to 2010, and increased again for black voters from 2008 to 2012. Therefore, he claims, Indiana's ID law can't possibly have hurt voters, particularly minorities.

I don't know if Mr. von Spakovsky will talk about Kansas: After Kansas implemented a strict ID law in 2012, black turnout dropped by 2 percent, and Latino turnout dropped by 21 percent.

Conclusions about the role of ID from either set of numbers are, of course, nothing but garbage. They should fail Statistics 101 at any school in the country.

Continue reading the remainder of this post on www.huffingtonpost.com.

Can Executive Officials 'Veto' Initiatives Passed by the Voters?

By Professor Karl Manheim and Adjunct Professors John S. Caragozian and Donald Warner

This op-ed originally appeared in the Oct. 21 edition of the Los Angeles Daily Journal.

A case has reached the 9th U.S. Circuit Court of Appeals that may further determine the fate of the initiative process in California. In Vivid Entertainment v. Fielding, No. 13-56445 (9th Cir. filed Aug. 20, 2013), the court is being asked whether an initiative will be invalidated, even after its constitutionality has been upheld at trial, because executive officials have abandoned its defense.

Vivid follows on the heels of Hollingsworth v. Perry, decided by the Supreme Court in June. In Hollingsworth, same-sex California couples challenged voter-approved Proposition 8, which had banned same-sex marriage. The U. S. district court ruled that Prop. 8 was unconstitutional, and state officials refused to appeal. Accordingly, Prop. 8's official proponents -- who had successfully intervened as defendants at trial -- appealed. The 9th Circuit affirmed the district court's ruling of unconstitutionality, and the proponents petitioned for certiorari.

The Supreme Court held that Prop. 8 proponents lacked Article III standing and dismissed the appeal. Chief Justice John Roberts' majority opinion stated that only state "officials" may represent the state's interests in defending a voter-enacted initiative. Although the California Supreme Court earlier had held that Prop. 8's official proponents were authorized by state law to represent the state's interests, Roberts characterized the proponents as mere "bystanders" for Article III purposes.

Vivid challenges another voter-passed initiative, and elected officials are again refusing to defend it. Measure B, which was passed by Los Angeles County voters, requires, inter alia, condom use by actors in adult films made in the county. Vivid's plaintiffs -- movie producers and actors -- sued the county in U. S. district court, claiming that Measure B was an unconstitutional restriction on expression.

What's New and Old About Asbestos Litigation?

By Professor Georgene Vairo

On October 1-2, the ABA TIPS Asbestos Litigation Task Force held its second round of hearings at Loyola Law School, Los Angeles. The Task Force was created to study the current state of asbestos litigation and consider ways in which fairness for both claimants and defendants can be achieved. The L.A. hearing, as well as an earlier hearing in Washington, D.C., revealed deep divisions among plaintiffs' attorneys and defendant attorneys on what needs to be done to deal with current aspects of what the U.S. Supreme Court once described as an "elephantine mass." Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999).

A 1991 Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 (Mar. 1991) sets forth the challenge: "[This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015."

We are only two years away from that date, and the asbestos litigation has morphed significantly and shows no sign of abating any time soon. Back in 1991, the Judicial Conference report identified numerous problems: growing dockets in state and federal courts; delays in getting to trial; long trials with complex issues being litigated over and over; transaction costs that dwarfed any recovery. Additionally, "the exhaustion of assets threatens and distorts the process; and future claimants may lose altogether." One piece of "good news" is that the federal MDL that was established in the same year is near completion of the resolution of most of the cases filed in the federal courts.

Much Ado About McCutcheon

By Associate Clinical Professor Jessica Levinson

This piece appears in Pacific Standard.

Shaun McCutcheon wants to make political donations to federal candidates. Allow me to clarify; McCutcheon wants to make a LOT of political donations to federal candidates. The Republican National Committee, among others, wants him to be able to do so. So what's the problem?

Currently, McCutcheon can give $2,600 per election directly to a federal candidate, a total of $48,600 per election to all federal candidates, and $74,600 per election to federal political party committees and political action committees, or PACs, that give money to federal candidates. Put another away, McCutcheon (and other individuals) are subject to a $123,200 per election aggregate contribution limit with respect to candidates, political parties, and PACs. McCutcheon, a general contractor living in Alabama, would like to change that. The result is the latest and greatest campaign finance question to hit the high court since Citizens United.

In the early 1970s, in the wake of the Watergate scandals that lead to the resignation of President Nixon, Congress implemented the nation's first comprehensive campaign finance law. The law limited how much could be given to and spent by candidates, how much could be spent by independent groups and organizations, required that certain donations and expenditures be disclosed to the public, and created a system of public campaign financing for presidential candidates.

In 1976, in a decision that remains the bedrock of campaign finance law, Buckley v. Valeo, the U.S. Supreme Court essentially accepted half of Congress' attempt to regulate money in politics. The court upheld limits on contributions, disclosure provisions and the public financing program. However, the court struck down limits on spending by candidates and independent organizations. In the court's patchwork opinion it upheld the limits on the total amount of contributions that donors could give to candidates, political party, and other political committees, finding that those limits were a way to prevent the evasion of the direct limits on contributions from individuals to candidates. The court's analysis is less than satisfying on this point. In the almost 40 years since that decision much has changed regarding campaign finance laws. Money now flows relatively freely, and in some cases in undisclosed amounts, through our political system. But the aggregate limits on contributions have stood.

Now the Supreme Court appears poised to change that and the only question for McCutcheon is how big his likely win will be. In order to determine the size and scope of McCutcheon's potential victory, we need to look at the current state of the law.

Al Bahlul, Conspiracy, and the Misuse of History

By Professor David Glazier

This piece originally appeared on Lawfare.

The oral arguments in Monday's D.C. Circuit en banc review of Ali Hamza al Bahlul's military commission conspiracy conviction essentially came down to competing views of history. The government concedes that conspiracy is not a recognized war crime under international law. But rather than accepting chief prosecutor Brigadier General Mark Martins' plan to move forward using more credible charges, the Justice Department argued that the Guantánamo commissions can try conspiracy based on historical U.S. practices. Relying largely on research by prosecution team member Haridimos Thravalos (discussed on Lawfare here and here), the government asserts the existence of a "domestic" U.S. law of war which includes conspiracy to overcome concerns that its initial codification in the Military Commissions Acts of 2006 cannot be applied retroactively. Al Bahlul naturally disagrees.

After reviewing each authority cited by Thravalos' article and the government's briefs, I believe that al Bahlul has the best of this argument for reasons I expressed to the court in an amicus briefand have more fully developed in a draft law review article available here. As I see it, there are two basic flaws in the domestic law arguments:

(1) Virtually every credible reference to the law of war, including the sources the government relies on, describes the law of war as being part of international law. 

(2) None of the cases cited as domestic "law of war" conspiracy prosecutions really stand up to exacting scrutiny. On closer examination, each one seems to (a) represent the prosecution of completed, rather than inchoate, conduct; (b) ground the conspiracy charges in domestic legal jurisdiction under martial law or military government rather than the law of war per se; or, (c) use conspiracy as a mode of liability rather than charging conspiracy as a substantive offense.

Introducing our Inaugural Guest Journalist Blogger

I am excited to announce a new Summary Judgments feature: the Journalist Guest Blogger. We see this as a way for those who report on the law to weigh in on its inner workings. And not many reporters know the law better than Gina Barton, whose investigative reporting on law-enforcement and criminal-justice issues at the Milwaukee Journal Sentinel has earned her a series of prestigious journalism awards. We are proud to count Gina as an alumna of the first class of our Civil Justice Program's Journalist Law School and honored to present her as the first Summary Judgments Journalist Guest Blogger.

-Associate Dean Michael Waterstone

Legal Community Divided over Standard of Review in Suspect's Death

By Gina Barton, Guest Journalist Blogger
Reporter, Milwaukee Journal Sentinel

What is the definition of an intentional failure?

Debate over the answer to that question divides the legal community in Milwaukee after the death of Derek Williams, who died after gasping for breath and begging for help in the back of a Milwaukee police car.

Officials at the Milwaukee Police Department, Milwaukee County District Attorney's office and at the city's civilian Fire and Police Commission all watched a squad video that captured Williams' eight-minute struggle to breathe and concluded officers did nothing wrong.

After an investigation by the Milwaukee Journal Sentinel, which included a 10-month battle for a copy of the video, the medical examiner's office changed its ruling on the manner of death from natural to homicide. As a result of the revised findings, the district attorney re-opened the case, appointing a special prosecutor and calling for an inquest.