The Faculty Lounge

Bobby Ahdieh Appointed Dean at Texas A&M

Texas A&M University has announced the appointment of Robert ("Bobby") H. Ahdieh as the Dean and holder of the Anthony G. Buzbee Endowed Dean’s Chair at its School of Law. Dean Ahdieh will arrive at Texas A&M from Emory University, where he is the K.H. Gyr Professor of Private International Law.

Texas A&M's announcement is here.

Indiana Supreme Court Steps Up for Kids

Apropos of juvenile interrogation law, which is being revisited and discussed by court watchers as the U.S. Supreme Court weighs whether to accept sixteen-year-old Brendan Dassey’s voluntariness appeal, I received some unrelated but still very good news yesterday.

Yesterday, the Indiana Supreme Court handed down an opinion in In re B.A. that clarifies when a child being questioned by school administrators is entitled to constitutional protections, such as the Miranda rights.  Northwestern Pritzker School of Law’s Bluhm Legal Clinic – in particular, our Center on Wrongful Convictions of Youth, which I co-direct along with Megan Crane – was honored to submit an amicus brief in the case, which was skillfully argued by Indiana lawyer Amy Karazos.  Our amicus brief was based in part on our staff’s electrifying experience attending a seminar held by John E. Reid & Associates at which police interrogation trainers taught school administrators how to question children using criminal interrogation techniques (that’s right, you read that correctly). 

Reid & sequential interrogations

The Supreme Court has yet to decide whether it will review the voluntariness of Brendan Dassey’s March 1, 2006, confession to raping and killing photographer Teresa Halbach. It will do so today. Numerous interrogation-related issues of first impression arose in Dassey’s case, largely in the context of Miranda custody, Miranda waiver and use of the Reid interrogation technique on juvenile offenders. But sadly, none of those issues were available for presentation to the Supreme Court because trial counsel for Dassey waived them. All that was left for appellate counsel before the Supreme Court was the question of whether his March 1, 2006, confession was voluntary for purposes of the due process clause. Dassey’s petition for Supreme Court review would have been much stronger if these issues were available for inclusion. Unlike the uniqueness of his Miranda-related issues, the Court has considered innumerable voluntariness issues dating back to Hopt v. Utah in 1884.

Today, we consider another set of unpreserved issues, largely focused on Miranda custody and waiver, which arose on Feb. 27, 2006, when law enforcement interrogated Dassey for the third time and the second time that day. The second Feb. 27 interrogation went unexplored by the Netflix documentary series Making a Murderer and untested by his trial counsel. Had Dassey’s then lawyer had a firm understanding of the Reid interrogation technique, then perhaps he would have had a fuller range of preserved Miranda-related arguments to present in his Supreme Court petition.

How the Gill Decision Raised the Stakes of the 2018 Elections

The outcome of the Supreme Court’s two major gerrymandering cases—Gill v. Whitford and Benisek v. Lamone—could hardly have been more anticlimactic from a legal perspective, and yet the significant political impact of the Court’s decision may be felt for years to come.

Like many others, I had hoped that the justices—particularly the swing justice, Anthony Kennedy—would use the unique opportunity before the Court to articulate a judicially-manageable standard for assessing the constitutionality of redistricting plans.

But that did not happen. Instead, the Supreme Court dodged the merits of both cases, invoking Article III standing grounds to remand the Wisconsin case (Gill) and procedural grounds to remand the Maryland case (Benisek).

Although Monday’s outcome might appear innocuous, a closer look suggests that opponents of partisan redistricting suffered a serious defeat. Accordingly, with gerrymandering still on the table as a legally permissible option for the 2021 redistricting process, the state elections in 2018 and 2020 are more important than ever. They will likely determine the contours of America’s legislative and congressional districts until the 2030s.

Against the Rehabilitation of Hirabayashi v. United States

This tweet from Steve Vladeck brought to my attention that last Friday, the Defense Department submitted a brief to a military commission favorably citing and extensively quoting Hirabayashi v. United States, 320 U.S. 81 (1943). 

This strikes me as a fateful moment.  The Japanese American cases of WWII (by which I mean Hirabayashi and Korematsu, not Ex parte Endo) have, for a couple of decades at least, been understood as part of the Supreme Court "anti-canon," the Decisions That Shall Not Be Named.  Dred Scott.  Lochner (pace David Bernstein).  It's not just scholars who've said this.  Justices have said it in their confirmation hearings, and sometimes in print as well.  (And not just the "liberals.")

This is what normalization looks like in the context of law.  The unthinkable becomes thinkable, and then it's done, and if it's done brazenly and repeatedly, it becomes mundane. 

And then it's on to the next step.

The citation of Hirabayashi is especially worrisome.  Over the years, almost all of the critical attention has focused on the Korematsu case, the 1944 decision in which the Court, by a 6-3 vote, upheld the mass exclusion of Japanese Americans from the West Coast. It has always troubled me that Hirabayashi, the Court's earlier, unanimous endorsement of the dusk-to-dawn curfew imposed on Japanese Americans, has been off the radar.

Nobody on the Supreme Court has favorably cited Korematsu in decades.  It's (regrettably) a bit different with Hirabayashi.  Justice Thomas has cited it approvingly.  (See his dissent in Hamdi v. Rumsfeld, 542 U.S. 507, 584 (2004).

Let us be clear:  Hirabayashi is every bit as flawed as Korematsu. 

Indeed, it's arguably more flawed.  My archival research turned up compelling evidence of additional important Justice Department misrepresentations to the Supreme Court in the Hirabayashi litigation beyond those that formed the basis of the grants of writs of error coram nobis to Messrs. Korematsu and Hirabayashi in the early 1980s.  The coram nobis grants were based on the revelation of government misrepresentations about the internal threat of subversion that Japanese Americans posed.  What I uncovered was evidence that the government also significantly misrepresented the nature of the external threat the country was facing -- the threat of Japanese military action against the West Coast.

This is a moment for those of us who oppose the rehabilitation of Korematsu and Hirabayashi to make our voices heard.  Clearly. 

We're not going back to that bad old place.

Juneteenth and Jeff Sessions

Today is Juneteenth, and I have an oped on CNN.com drawing a parallel between family separation under slavery and family separation under contemporary zero tolerance.  Here is the gist:

On Juneteenth, let's commit to ending separation of parents and children at the border

On this day in 1865 -- commemorated now as Juneteenth -- news of emancipation reached the enslaved people of Texas. The complete abolition of slavery, which became irrevocable later that year with the ratification of the 13th Amendment, meant the end of involuntary servitude and the beatings, assaults and torture that often accompanied it. It also meant the end of forced family separation.

It is likely that no one celebrating the original Juneteenth could have imagined that family separation would again become officially authorized -- in fact, required -- by the United States government over 150 years later.

And yet here we are in 2018, watching the Trump administration forcibly remove children, including nursing infants, from their mothers, in the name of a "zero tolerance" policy toward illegal immigration.

You can read the entire piece here.

Judging Judicial Minimalism

The Court avoided the issue of partisan gerrymandering yesterday by remanding Gill v. Whitford on standing grounds. A number of commentators have noticed the Court's recent minimalism. Garret Epps asserts that the “Court so far has taken every possible opportunity to avoid important decisions.” Dahlia Lithwick asserts that Court is “now too frightened of public outcry to decide anything.” Howard Wasserman suggests that, because the Court hears so few cases, it should do a better job of selecting cases that provide a vehicle for rulemaking to guide the lower Courts. But, as Eugene Volokh points out, “some, both on the left and on the right, have argued that such narrow decisionmaking, or remand or dismissal on procedural grounds, are often a good idea, and that the Supreme Court should indeed often decide as little as possible.”

In my view, judicial minimalism is much more defensible in cases like Masterpiece Cakeshop than in Gill.  As I argue in my forthcoming article, I think the Court should issue narrow and constrained rulings when attempting to produce change on contentious social issues.  The history of cases like Dred Scott, Brown, Roe, and Goodridge all arguably teach that bold rulings on such issues can incite backlash that undermines the very goal that the Court was attempting to achieve.  (My paper adds Prigg v. Pennsylvania to this list).  In an earlier post, I argued that the issue presented in Masterpiece Cakeshop arguably fits within this paradigm. A broad decision in either direction could have provoked public outcry from the other side, prompted attacks on the Court, and influenced the midterm elections.  It also might have been hard to predict the consequences of a broad decision on related legal issues.

I think the gerrymandering issue in Gill is different. As Epps points out, “everyone agrees partisan gerrymanders are naughty.” The issue has been studied at length, and there is little need for further debate over the merits of gerrymandering. And, although a decision that ended extreme partisan gerrymandering would hurt Republicans overall, it would also apply to the many states that have been gerrymandered by Democrats, like the district at issue in Benisek. It therefore seems unlikely that a strong decision on gerrymandering would have produced social backlash of the type that major social issues like segregation, abortion, or same sex marriage invoked.  Of course, bringing an end to gerrymandering would produce change at the polls, but that change would be attributable to fair voting rules rather than anger at the Court. 

There is another, more fundamental reason, to reject judicial minimalism in gerrymandering. As Justice Kagan’s concurrence explains, gerrymandered districts are far more likely to produce radical and uncompromising representatives.  When swing voters are ignored and the most important election is the party primary, partisan social issues like religious liberty are more likely to influence elections.  In other words, limiting partisan gerrymandering could help prevent backlash against unrelated Court rulings in the future.

Finally, as Justice Kagan’s concurrence explains, “Courts have a critical role to play in curbing partisan gerrymandering.”  Going back to Caroline Products, gerrymandering distorts the political process, and the states lack the incentives to fix the problem.  Although judicial minimalism often makes sense on divisive social issues that split the nation, strong action from the Court is needed on gerrymandering.

Fun Fact About Family Detention

During World War II, thousands of German, Japanese, and Italian nationals were arrested and imprisoned by the Department of Justice as enemy aliens under the authority of the Alien Enemies Act of 1798.  (This was a different process from the one that led to the mass removal and imprisonment of everyone of Japanese ancestry from the West Coast.)

Many of these enemy aliens had families in the United States -- wives and children.  These family members faced long-term separation from their husbands and fathers.

The federal government adopted a policy of facilitating the unification of these families.  It set up a family internment camp at Crystal City, Texas, and allowed the wives and children to join the husbands and fathers in the camp.  Here's a propaganda film describing it: 

So:  in a time of war, the government tried to keep the children of enemy aliens with their parents.

Just sayin'.

A Few Thoughts about the Husted Case

I just got back to the United States last night from the Netherlands, where I gave a paper at a fascinating international law conference (the topic of the conference was “Contingency in the Course of International Law”) at the University of Amsterdam. I will write about the conference, which I really enjoyed, in more detail later this week.

But in the meantime I have a few observations to make about the U.S. Supreme Court’s controversial ruling in Husted v. A. Philip Randolph Institute, which the Court handed down last week while I was in Europe. In a 5-4 decision, the Court’s conservative majority upheld a key provision in Ohio’s voter registration statute, which the plaintiffs allege has resulted in the purging of thousands of eligible voters from the state’s voting rolls in violation of the National Voter Registration Act of 1993 (as amended by the Help America Vote Act of 2002).

Even from my vantage point 3,000 miles away in Europe, it was clear the Husted decision was extremely unpopular with the mainstream media, the Democratic Party, and many voting rights advocates, who immediately accused the conservative justices of aiding and abetting voter disenfranchisement. For example, in an op-ed for The Hill newspaper, Democratic Congressman Tim Ryan wrote, “With this decision, Ohio Secretary of State John Husted and states across the country were given the all clear to silence American voters.” 

Although I agree with the critics that the Ohio registration statute is not good public policy, Justice Alito’s ruling was nevertheless quite reasonable in light of the NVRA’s statutory language. For better or worse, the controlling federal law gave the Supreme Court no choice but to uphold the Ohio statute. 

A few points strike me as particularly important about the ruling.

More on Self-Pardons

"The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged."

-- Martin v. Hunter's Lessee, 14 U.S. 304, 326 (1816)

Not long ago I put up a post here noting the extreme rarity of the reflexive use of the verb "to grant," both in the 18th century and now.  (This in the context of whether the president can "grant" a pardon to himself.)  I contrasted the verb "to grant" with the verb "to give," which does have a common reflexive usage.  I believe we'd all agree, for example, that President Trump can "give himself" credit.  (In fact, I think I've even seen him do it!)  The verb "to grant," as I understand its meaning, operates differently. 

Michael McConnell makes short work of my argument, observing that a person can "grant" property to himself as a trustee to hold in trust for certain purposes.

I'm not sure that the example does the work for him that he believes it does.  My point is that the verb "to grant" connotes a transfer from an entity to another that has no claim of right to the thing granted.  Note that McConnell's example involves a a grantor's grant of something to himself "as a trustee."  That's significant, isn't it?  There are two different legally recognized entities here that play distinct roles -- a grantor and a trustee.  There remains here the one-entity-to-a-different-entity sense.  The grantor isn't really giving the thing to himself, the grantor.  He's giving something to a different entity, a trustee, who in this case happens also to be the same person who's playing the role of grantor.

But this obscures the larger and more important point that is captured in the Hunter's Lessee quote atop this post.  The inquiry into original meaning is not an inquiry into original rare-and-odd-but-still-conceivable meaning.  It's an inquiry into original natural and obvious meaning.  So even if it's true that one can locate rare scenarios in which a grant can go from the grantor to the grantor, all this means is that if we could sit down with the ordinary person in 1789, we would have to go on at some length about a unique and unusual sense of a word, and the 1789 person would listen, cock his head, look skeptical, and then maybe finally come around to saying, "ohhhhhhh, I see what you mean -- you're using "grant" in that specific and rare sense, aren't you?  OK then."

Surely that can't be how the work of original meaning gets done, can it?

Let's take an example.  Suppose that, upon a vote of condemnation by a 2/3 vote in the House of Representatives, the Speaker were to take a member  to a third-story window and throw him out of it to the ground below, breaking his leg.  Suppose that the injured member sued the Speaker in tort.  And suppose that as a defense the Speaker were to raise this language of Article I, Section 5:  "Each House may ... with the Concurrence of two thirds, expel a Member."

"That's just what I did," the Speaker argues. "I expelled him. I can't have liability in tort for doing what the Constitution, in terms, allows me to do."

 Here we would expect a judge to invoke the ancient doctrine of "oportet te quasi ludens loqui" ("you've got to be kidding").

Yes, there is a sense of the verb "to expel" that captures the sense of physically ejecting something (or someone) from a place.  But is there any reasonable argument that the ordinary meaning of the word "expel" in the context of Article I, Section 5 includes that sense? 

"The words are to be taken in their natural and obvious sense," says Justice Story.  I agree.

Call for Papers—Judicial Diversity in Transnational Courts — AALS 2019 New Orleans

 The AALS Sections on European and African Law invites submissions of paper proposals for the upcoming panel, “Judicial Diversity in Transnational Courts,” which will take place at the 2019 AALS Annual Meeting (New Orleans, January 2-6 2019). Submissions from junior scholars are encouraged. Confirmed speakers include Laurence Burgorgue-Larsen, Professor at the Sorbonne Law School at the University Paris I; Josephine Jarpa Dawuni, Assistant Professor of Political Science, Howard University; Sally J. Kenney, Newcomb College Endowed Chair Professor, Tulane University; and Iyiola Solanke, Professor of Law, Leeds University, UK. The proceeds of the panel will be published as a special issue of the Connecticut Journal of International Law.

Program Summary: Why do so few women and people of color serve on transnational courts and tribunals? Given the paucity of seats available to each nation on the international bench, it should be easy for states to nominate, vote, or appoint them in greater numbers. Yet, despite a series of initiatives to increase gender parity, women, particularly women of color, continue to be conspicuously underrepresented on these courts. Why does it matter? There is now an extensive body of scholarship discussing the reasons why domestic judiciaries might strive for more diversity, including increased legitimacy, dispelling stereotypes, higher quality decision-making and outcomes, and internal institutional change. Are there additional, specific benefits to greater judicial diversity to be expected at the transnational level? Convening leading scholars in the fields of equality law and transnational courts, this panel will address these questions with a special focus on European and African regional courts. 

Submission guidelines:

• To be considered, submit a title and abstract (300 words maximum) to Mathilde Cohen (mathilde.cohen@uconn.edu) and Fernanda Nicola (fnicola@american.edu) by August 15, 2018.
• Paper drafts will be due on December 15, 2018 to be circulated among panel participants. Final papers will be due on March 1 and should be between 7,000 and 8,500 words.

Doc Watson

Deep River Blues 

Make Me a Pallet on Your Floor 

NKU Chase College of Law Dean Search Announcement

From colleagues at NKU:

Founded in 1893, the Salmon P. Chase College of Law has for 125 years provided service to students and the legal community throughout the Commonwealth of Kentucky and across the Ohio River to Cincinnati and its environs.  Chase is a jewel in the crown of Northern Kentucky University, with a history that predates that of the University.  Long known as the “The Lawyer’s School.”  Chase has served both traditional and non-traditional students throughout its history and in recent years has gained a strong reputation for the quality of its clinical and other experiential learning programs.

NKU and the Chase College of Law now seek a Dean to continue this tradition of success and service.  The Dean is the chief executive of the law school and serves on the leadership team of the University.  Leading a committed faculty and staff in service to a dedicated and hard-working student body, the Dean will be in a position to make significant contributions to the future of the institution.

The academic experience at Chase extends beyond the classroom and provides Chase students with the tools they need to be successful members of the bar.  Students have the opportunity for hands-on learning experiences in Chase’s clinics and numerous externship programs.  These placements provide students with first-hand, practical understanding of the law by trying real cases and working alongside local practitioners.  The knowledge and experience they gain supplements lessons learned from the casebook and the classroom.  Chase is optimally poised to build upon these offerings and thus to position itself and its graduates for the changing legal and business environment.

 

Gawker Delenda Est

"Gawker must be destroyed" was the original title of my new essay on Hulk Hogan's lawsuit against Gawker Media, just posted on The American Prospect.  The actual title, provided by my editor, is "The Gawker Case Has Become More Interesting."  The piece is a long-form review of Ryan Holiday's new book about the case, Conspiracy: Peter Thiel, Hulk Hogan, Gawker, and the Anatomy of Intrigue. Here is the gist:

When Hulk Hogan sued Gawker Media for invasion of privacy, it first seemed like a battle of loudmouths, with nothing much at stake other than entertainment value. Hogan (real name: Terry Bollea) was a retired professional wrestler who had become famous for flexing his muscles in center-ring, shredding his ripped tee-shirt, and occasionally touting his sexual abilities in promotions and interviews. Gawker.com was a gossip heavy and highly profitable website—among several others operated by Gawker Media—best known for a prurient obsession with celebrities and willingness to publish almost anything that would attract clicks and page views. 

The issue in the case was Gawker.com’s publication of a short clip from a secretly recorded video, in which Hogan was shown having sex with his best friend’s wife. The trial, which ended in March 2017, resulted in a staggering $140 million verdict against Gawker Media and its founder Nick Denton. Hogan eventually settled for $31 million, and Gawker Media filed for bankruptcy, which appeared to be the end of the matter. There was a lot more to it than that, however, as Holiday explains in profound detail. More than just a courtroom soap opera, Bollea v. Gawker Media provides significant insights about the role of financial power in litigation and, not coincidentally, the legal ethics of Trump’s lawyer, Charles Harder.

Two months after the Gawker verdict, The New York Times reported that the Silicon Valley billionaire Peter Thiel, a co-founder of PayPal and an early investor in Facebook, had financed Hogan’s lawsuit to the tune of over $10 million. Thiel, the most prominent Trump supporter in Silicon Valley, had been enraged at Gawker Media since 2007, when he was outed as gay by Gawker’s technology gossip site Valleywag. Thiel  referred to his financing of Hogan’s lawsuit as "one of my greater philanthropic things that I've done," but many people would simply call it retribution.  Holiday is non-judgmental. He calls it a “conspiracy,” which to him is not a pejorative. “When it comes to conspiracies, there are good ones and terrible ones and complicated ones.” In this case, he leaves it to his readers to decide.

You can read the entire essay here.

Interested in Joining Application for Trusts & Estates Collaborative Research Network?

Bridget Crawford (Elisabeth Haub School of Law at Pace University, New York) and Kate Galloway (Faculty of Law, Bond University, Australia) are preparing an application to the Law and Society Association for the formation of a Trusts & Estates Collaborative Research Network.  Here's a description of the function of the proposed network:

This CRN will provide a forum within the Law & Society Association for scholars from all disciplines who are interested in the effects on society of the law, practice and effects of succession (also referred to as inheritance) and wealth transfers (whether at death or during lifetime, outright or in trust). Subjects of inquiry may involve any aspect of government or social policy with respect to trusts, estates, inheritance, wealth transfer, equity or courts with jurisdiction over these issues. Participants are encouraged to apply multi-disciplinary and interdisciplinary approaches to questions across the range of scholarship in this area: issues related to transfer of wealth between spouses or family members; preferences created for certain types of transfers or transfers to particular classes of individuals; the transfer of wealth to charities or non-profit organizations; generational equity; issues of social and economic inequality; comparative aspects of the law of succession and the law of trusts more broadly; the relationship between/among gender, race, sexual orientation, socioeconomic class, immigration, language status, disability and the law of succession and the law of trusts; the socio-linguistics of testation and wealth transfer; access to estate planning justice for low- and middle-income individuals; questions of cultural or group inheritance rights; and similar issues.

If you would like to be part of the application for the Trusts & Estates CRN, please send an email to Bridget Crawford (bcrawford at law.pace.edu) and indicate whether you are a current Law & Society member. For those who are not familiar with the operations of the LSA (very large) Annual Meeting, one principal function of the CRNs is to "bundle” papers and panels into coherent thematic programs with chairs and commentators. All who are interested are welcome to join the initial application. Non-U.S. scholars warmly encouraged to join the application.

Resistance

Those of us who teach the Korematsu case are sometimes asked by thoughtful students why it is that so many thousands of Japanese Americans acceded in their removal and imprisonment -- why they went without protest. 

The answer is that they didn't -- and that the stories of resistance are much more numerous (and sometimes even more interesting) than Fred Korematsu's.  American Public Media and the Smithsonian are in the midst of an excellent podcast called "Order 9066" that tells the story of Japanese American removal and incarceration.  This week's episode focuses on Japanese Americans' resistance.  It's worth a listen, and maybe a recommendation to students.

What’s Wrong With the Anti-Semitism Awareness Act

The following is a statement in opposition to the proposed Anti-Semitism Awareness Act, written by Cary Nelson and other members of the Alliance for Academic Freedom.  (I am a member of AAF; I did not participate in drafting this statement.)

[Reprinted from Inside Higher Ed]

What’s Wrong With the Anti-Semitism Awareness Act

The Alliance for Academic Freedom is an organization of liberal and progressive academics that combats infringements on academic freedom relating to the Israeli-Palestinian conflict on college campuses, including academic boycotts of Israel.

We oppose the Anti-Semitism Awareness Act now before the U.S. Congress because we believe it endangers academic freedom, too. We believe its language could encourage punishments of legitimate expressions of political opinion. We don’t believe that Congress should be in the business of setting forth official definitions of ant-Semitism. And we do not think any definition of anti-Semitism, including one originally drafted with the needs of European data collectors utmost in mind and then adopted (with minor changes) by the U.S. Department of State for diplomatic purposes, has any legitimate application by Congress to contentious political speech on campus.

Some of us are scholars of anti-Semitism. We are aware that anti-Semitism’s manifestations change over time. There is a robust debate, both inside the Jewish community and among experts on the issue, over the relationship between anti-Zionism and anti-Semitism. Sometimes anti-Zionism constitutes anti-Semitism; sometimes it doesn’t. Regardless, Congress has no business deciding when it does or doesn’t, nor should it be in effect stating that political expressions it deems anti-Semitic are essentially presumed relevant to a Title VI case.

ABA and Cooley Nearing Settlement?

Back in April, I incorrectly surmised that Cooley and the ABA had reached a settlement in their lawsuit.  How else to explain the ABA's decision to find Cooley back in compliance with Standard 501(b)?  (For more on that harebrained decision, see here.)  Well, this time there is some actual evidence (not just my conjecture) that the two sides may be nearing a settlement.  Earlier today, the Judge assigned to the case referred the matter to a Federal Magistrate for the purpose of holding a settlement conference.  (See order here.)  there were two things that Cooley really cared about in this lawsuit - being found back in compliance with 501(b) and getting permission ("acquiescence" in ABA parlance) to open a branch of the law school at Western Michigan's home campus in Kalamazoo.   This "major change" is to be considered at the Accreditation Committee's next meeting on June 28, 2018.  Assuming this decision goes Cooley's way, Cooley will have got both of the things that they wanted.  By settling, the ABA can avoid awkward litigation over its seemingly arbitrary enforcement of Standard 501(b), and avoid the risk of litigating similar issues in multiple jurisdictions, with the potential that a negative ruling in the Cooley case could aid the cause of one of the InfiLaw law schools in that ongoing litigation. 

A Community with a Lot of Bears and Very Little Law

I'd like to recommend a podcast to you.  If you're interested in thinking about how communities develop nearly beyond the reach of the law, I think you'll like it.

It's called "Out Here," and it's a project of Erin McKinstry, a freelance journalist.  The "out here" the title refers to is the "town" of McCarthy, Alaska, a tiny dot in the middle of the vast wilderness of Wrangell-St. Elias National Park.  (We're talking VAST.  It's the size of Yellowstone, Yosemite, and the country of Switzerland combined.)  Long ago a copper mining boom town, McCarthy was abandoned for decades until a few intrepid souls moved there to scratch out a solitary existence back in the 70s.  Over the last several decades the population has slowly grown.  The residents have struggled with change, with development, with community-building -- all in a place so remote that there's virtually no recourse to (or desire for) law.

McKinstry weaves a quiet, lovely narrative with the threads of the stories of residents, some of them old-timers and some of them more recent arrivals.  There's plenty to entertain -- moose and bear encounters, failed and successful romances, and even a traumatizing murder rampage that took the lives of a sizable percentage of the town's year-round population.  Evocative original music.  And, on the show's website, stunning photos of life "out there," like this picture of the mail shack in "downtown" McCarthy.

I really enjoyed it.  Perhaps you will too.  It's on iTunes and in all of the other usual places for finding podcasts.

Reid & Brendan Dassey’s Lost Defense

Brendan Dassey is down to his last strike. Having filed his petition for a writ of certiorari before the U.S. Supreme Court, his case is over if the Court declines to grant cert. The petition argues that Dassey’s March 1, 2006, confession was involuntary. Using that confession against him at trial, the petition argues, violated the Fourteenth Amendment’s due process clause. Dassey’s petition has appropriately generated considerable media coverage (here and here for example) alongside scholarly commentary (here and here for instance).

But the value of Dassey’s case for educational purposes involves much more than the voluntariness issue.  That issue has taken prominence only because it is an issue preserved for appeal.  But Dassey’s case presents other perhaps more fruitful grounds for challenging his conviction that were not preserved by earlier lawyers.  Most critically, Dassey’s early lawyer failed to preserve critical Miranda-based arguments related to custody.

One of those unpreserved issues arose on Feb. 27, 2006, when law enforcement interrogated Dassey for the second time. The interrogation, which the Making a Murderer Netflix documentary series did not feature or mention, offers another example of how an attorney’s knowledge of the Reid interrogation technique can better inform Miranda-related arguments. Investigators would interrogate Dassey three times that day. Today, in this fifth post, I’ll consider what took place in the first of those interrogations and how it could have supported an important Miranda-based defense that a defense attorney with an understanding of Reid could have raised.