Law school clinics and American law

The April 30, 2013 issue of Law Week (Vol. 81, No. 41: the Supreme Court opinions issue) reports three interesting decisions, but these decisions are also interesting for another reason, visible in the lists of counsel at the end of each case. It turns out that clinical programs were on the briefs for all three cases.

The Stanford Law School Supreme Court Litigation Clinic helped represent Adrian Moncrieffe in his successful challenge to the argument that his conviction for possession of 1.3 grams of marijuana with the intent to distribute (not necessarily to sell) was an aggravated felony barring him from eligibility for certain discretionary relief from deportation. Moncrieffe v. Holder (No. 11-702, decided April 23, 2013)

The Institute for Public Representation, a program of Georgetown University Law Center, helped represent the plaintiffs/petitioners in McBurney v. Young (No. 12-17, decided April 29, 2013), an unsuccessful effort to establish that Virginia’s Freedom of Information Act, which offers access to information only to Virginians, was unconstitutional under either the Privileges and Immunities Clause of the US Constitution’s Article IV, § 2, cl. 1, or under the Constitution’s “dormant commerce clause.”

The George Mason University School of Law Supreme Court Clinic helped represent the State of Louisiana in Boyer v. Louisiana (No. 11-9953, decided April 29, 2013), in which the Supreme Court dismissed the writ of certiorari as improvidently granted. Boyer contended that the prolonged delays in his trial were attributable to the state’s failure to fund the public defender system, and that his right to a speedy trial had been violated, but the Court, over a dissent by Justice Sotomayor (joined by Justices Ginsburg, Breyer, and Kagan) did not rule on the constitutional question.

It may be that no member of the clinical community will agree with the arguments advanced by all three of these clinical programs in these cases. That’s fine, and just as academic freedom gives protection to clinics undertaking controversial cases so it gives protection to debate over what cases clinics ought to take. But what strikes me about this issue of Law Week is the unmistakable illustration of the fact that clinics are now a force shaping American law, in many local courts and offices and also in the highest court in the land. 

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And here's another: Levin v. United States (No. 11-1351, decided March 4, 2013): In this case the Supreme Court unanimously overturned a court of appeals decision, and determined that a federal statute, which made suits against the United States itself the exclusive remedy for medical malpractice by armed forces medical personnel, permitted rather than prohibited suits against the US for "medical battery" (the performance of an unconsented-to medical procedure). The veteran who brought this suit had no lawyer in the Supreme Court, and the Court appointed an amicus curiae, James A. Feldman, to brief and argue the veteran's case. Feldman was joined on the briefs by the University of Pennsylvania Law School Supreme Court Clinic (and also by "Georgetown University Law Center" -- perhaps another clinic?) on the briefs. In footnote 5 of its opinion, the court observed that "Amicus Feldman has ably discharged his assigned responsibilities and the Court thanks him for his well stated arguments" -- a compliment that seems well deserved, since the Court unanimously found in the veteran's favor, and that appears to apply not only to Mr. Feldman but to those who were with him on the briefs.

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And another: Lozman v. City of Riviera Beach (No. 11-626, decided Jan. 15, 2013): Here again the Stanford Law School Supreme Court Litigation Clinic was involved, this time representing the petitioner Fane Lozman. Lozman owned a rather ungainly houseboat, and "[a]fter various disputes" between him and the marina where he had the houseboat docked, the City of Riviera Beach, Florida brought suit against the houseboat (in rem, against the thing, as the law phrases it) in federal court, invoking the court's admiralty power. But this exercise of admiralty power evidently depends on whether the "thing" being proceeded against is a "vessel" or not. Lozman contended that his houseboat was not a vessel, a term defined by statute to mean "capable of being used ... as a means of transportation on water." Despite the fact that the houseboat had been towed on one occasion across two hundred miles of water, a majority of the Supreme Court agreed with Lozman that his houseboat was no vessel, over a vigorous dissent by Justice Sotomayor, joined by Justice Kennedy (an unusual grouping!). So the Stanford clinic helped represent at least two winning litigants in the Supreme Court this year.

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And the most recent I've seen: United States v. Kebodeaux (No. 12-418, decided June 24, 2013): Kebodeaux, who in 1999 "had consensual sex with a 15-year-old girl when he was a 20-year-old Airman in the U.S. Air Force," as Justice Thomas writes in his dissent, was court-martialed, convicted, and served three months in prison. He also received a bad-conduct discharge, and on his return to civilian life became subject to sexual offender registration requirements in a federal statute called the Wetterling Act. Subsequently Congress replaced those requirements with new and in some respects tighter ones, in the Sex Offender Registration and Notification Act (SORNA), passed in 2006. After moving from one Texas city to another, Kebodeaux didn't update his sex offender registration as SORNA required, and as a result he was convicted of the crime of failure to comply with the SORNA requirement, a felony, and sentenced to a year and a day in prison.

There are many things one might want to argue to challenge this conviction, but as the case came to the Supreme Court it apparently did not feature any challenge based on the argument that SORNA's changes in Kebodeaux's legal obligations long after his crime and conviction violated either the ex post facto or the due process clauses of the constitution. Instead, the sole issue the Court addressed (though Justice Thomas spoke about more) was whether Congress had any power to subject Kebodeaux to SORNA at all. Since obviously no provision of the Constitution expressly authorizes Congress to pass sex offender registration laws, the case was a test of the meaning of the "Necessary and Proper" clause, which authorizes Congress to pass any laws necessary and proper to carrying out any of the powers of any branch of the federal government.

That meant that this case became a site of battle over the breadth of federal powers, with four of the conservative justices in one way or another making clear that they were opposed to too broad an understanding of the Necessary and Proper clause (though two of them, Roberts and Alito, found narrower rationales on which to affirm this particular statute's validity). Ironically, it also meant that the liberal justices, who might have been expected to find Kebodeaux's situation disturbing, instead found themselves defending the concept of broad congressional "Necessary and Proper" authority and in the process affirming Kebodeuax's conviction for violating the federal sex offender registration statute.

Among the people responsible for Kebodeaux's briefs, albeit in a losing cause, was the Northwestern University Supreme Court Practicum.

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Another case handled by the Stanford Law School Supreme Court Litigation Clinic was Chaidez v. United States (No. 11-820, decided February 20, 2013). The Clinic represented Ms. Rozelva Chaidez, a Mexican citizen and lawful permanent resident in the United States, who pleaded guilty to mail fraud and was sentenced to probation and restitution in a conviction that "became final in 2004." In 2009 the government began removal proceedings against her (ironically triggered by her application for citizenship), based on her conviction, which qualified as an aggravated felony for which removal is mandatory. She then tried to have that conviction overturned on the ground that, as she contended, "her attorney never advised her of that fact, and at the time of her plea she remained ignorant of it." That potentially stated a claim for relief under an important 2010 Supreme Court decision, Padilla v. Kentucky. Padilla decided that criminal defense attorneys had a constitutional obligation "to provide advice about the risk of deportation arising from a guilty plea," as the Chaidez Court put it. But under yet another Supreme Court decision, Teague v. Lane, 489 U.S. 288 (1989), Chaidez could only invoke Padilla retroactively -- her conviction having taken place years before Padilla was decided -- if the decision in Padilla did not count as a "new rule." The Supreme Court decided, 7 - 2, that Padilla did state a new rule, and so Chaidez lost her case.

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The University of Pennsylvania Law School Supreme Court Clinic was also on the brief on behalf of the successful petitioner, Jeffrey Lee Chafin, in Chafin v. Chafin (No. 11-1347, decided February 19, 2013). The Chafins were embroiled in a dispute with each other over custody of their very young daughter. Invoking the Hague Convention on the Civil Aspects of International Child Abduction, which the US is a party to and which it implemented through a 1988 statute called the International Child Abduction Remedies Act, Ms. Chafin sued in 2011 in an Alabama federal trial court for an order determining that her daughter's "country of habitual residence" was Scotland. She won, and the court refused to stay (postpone the impact of) its ruling. Ms. Chafin at once took her daughter to Scotland. Mr. Chafin appealed -- but the federal Court of Appeals concluded that since it could not force Ms. Chafin to bring the child back from Scotland the case was now moot and so Mr. Chafin's appeal couldn't be ruled on. (In a particularly ironic twist, Mr. Chafin was subsequently ordered by the trial court to pay $94,000 of Ms. Chafin's expenses based on the proceedings that had taken place at the trial level.) As the case reached the Supreme Court, it didn't raise directly any issues concerning the Child Abduction treaty and statute. Instead, the question was whether the case was truly moot -- a matter of constitutional law, arising from the requirement that federal courts can only rule on "cases or controversies," simple terms that turn out to require a lot of definition. The Supreme Court ruled unanimously that Mr. Chafin's case was not moot, among other reasons because a US court could still order Ms. Chafin to return the child (though she might disobey the order) and because that $94,000 also represented a concrete, continuing matter in controversy.

That's 8 cases last term in which law school clinics helped represent one of the parties -- really quite a remarkable presence in the overall work of the Supreme Court. And that doesn't include the briefs clinics likely also filed as friends of the court (amici) in cases where they weren't representing one of the actual parties.

Why US courts won't be hearing cases involving torture so much anymore

In Kiobel v. Royal Dutch Petroleum (No. 10-1491, April 17, 2013), the Supreme Court unanimously decided that US federal courts could not hear a case contending that Royal Dutch Petroleum and Shell Transport and Trading Company had violated the law of nations by helping Nigerian troops ferociously suppress opposition to the companies' oil extraction activities in the Ogoniland region of Nigeria.

That's an important decision, and a debatable one, but as I said all 9 justices of the Supreme Court agreed on it. What they didn't agree about was the rationale.

The dispute among the justices can be summed up bluntly: they disagreed about whether US courts could hear a case about torture, if the torture took place outside the US. (If some justices did feel torture outside the US could be the basis for a suit - as they did - why was the court unanimous about rejecting this case? The answer is that the lawsuit wasn't brought against the alleged government wrongdoers, but only against private entities accused of aiding them. Bad as aiding another government's "atrocities" is, no one on the Court saw it as a sufficient basis for federal court action.)

What was the basis of the justices' disagreement? Much of what they say is focused on a rather dry legal question: does the "presumption against extraterritoriality" apply to interpretation of the Alien Tort Statute? That statute, 28 U.S.C. 1350, on the books since 1789, reads as if it allows anyone to sue anyone, in US court, for violations of international law. But the presumption against extraterritoriality says that ordinarily Congress' statutes should be assumed to be aimed at regulating events in the US, not abroad. If that presumption applies to the Alien Tort Statute, then the law's seemingly broad language would be read much more narrowly.

The strongest argument against applying this presumption to this statute is that everyone agrees that one thing the statute was meant to allow is suits against pirates, and pirates undoubtedly acted primarily outside the US - so Congress must have wanted to act extraterritorially at least to some extent.

But what about torturers? Chief Justice Roberts, writing for the majority, says that "pirates may well be a category unto themselves," whose legal status has no lessons for the treatment of other wrongdoers today. Justice Breyer and three other liberal justices maintain, in contrast, that torturers are today's pirates, "'common enemies of all mankind,'" and equally within the statute's reach.

But the most startling point the majority makes has very little to do with the pirate analogy. Instead, it is the observation that accepting this lawsuit "would imply that other nations, also applying the law of nations, could hale our citizens into their courts for alleged violations of the law of nations occurring in the United States, or anywhere in the world."

This observation is quite correct. Justice Breyer argues that a number of limiting doctrines that he would apply "should obviate the majority's concern," but I don't think he is right. if the United States has a special interest in not becoming a sanctuary for torturers, as he argues, then so would other countries. And it is one of the undeniable  legacies of the past decade of war that there are quite a number of Americans, including former President George W. Bush and former Vice President Dick Cheney, who were involved with conduct, notably water boarding, that many people in the world regard as torture.  

Whether that reality justifies reading the Alien Tort Statute narrowly can be debated. The majority argues for such a narrow interpretation so as to leave to today's lawmakers the question of whether to now write an expansive statute whose existence might encourage other nations to claim similar authority over Americans. We might think, instead, that those who adopted this statute in 1789 already made the decision about how to position the US with respect to international law, and that they did not anticipate, and so did not seek to guard against, the possibility that we would someday find ourselves on the wrong side of international law.

But what is clear is that we have arrived very much on the wrong side of the law, in the view of many people around the world. And our fear of Americans' being haled into court around the world now seems to contribute to our own courts stepping back from contributing some measure of justice in suits against other enemies of all mankind. That result strikes me as yet another of the sad results of our losing our bearings in the war on terror.

The Baga, past and future

The story Frederick Lamp tells in his fascinating book Art of the Baga begins as a portrayal of timeless beliefs, but then deepens into a story of the decline and fall of those beliefs, and of their possible rebirth in new form. Here are a few snapshots from that story: 

The Baga believe, or rather believed, that they could create their own "spiritual power" (158). The amazing masks of D'mba, expressing the profound impact of mature women in society, are apparently a conscious invention. They aren't "spirits" but they are powerful. Everybody creates gods, but almost no one acknowledges having done so; the Baga seem to come closer than most.

Yet this intense spiritual world must now be gone. Even when Lamp wrote, in the 1980s, almost everyone who actually recalled the innermost secrets was very old. Those elders would not pass on what they knew, because the rituals in which their knowledge was to be shared were no longer practiced. So this knowledge was simply disappearing, unless, as Lamp hopes, the elders still have some method of transmission as secret as the knowledge itself. (253)

How did this elaborate world of belief come to an end? Lamp tells us that the Baga ritual culture was finally destroyed not by French colonialists – though they undermined its role – but by a wave of Islamization, accompanied by violence. This was not the Islamist fundamentalism that is so prominent today, but something much more local, in the mid-1950s. (224) What gave it such force? Perhaps, as is often the case with religious outpourings, politicians' calculation played an important part. But Lamp thinks that something else was going on too. He suggests that the ritual world of the Baga was so all-consuming, and so tilted in favor of Baga elders, that Baga young men were ready to throw over the old customs in favor of freedom. So the amazing and rich culture that we are tempted to mourn was an oppression to those young Baga who helped end it. (238-39)

And yet, in the 80s, Baga young people were trying to reclaim their cultural heritage – in part with the aid of a visiting art historian, Lamp himself, who became in his words "a patron of the arts, as the ceremonial organization or the council of elders would have been in the past." (256) It's reasonable to guess that these efforts have included a rebirth of the actual making of classic Baga masks. A Baga mask made today may not be a ritual object, but it may still deserve to be called "authentic," because it reflects a popular movement at cultural reclamation. And its purchase, say by a Westerner, may not be a further blow to an endangered culture, but a support for that culture’s resurgence. And perhaps it is not out of character for a people that once believed it could create a spiritual power to now believe it can reclaim its lost culture. In this sense, both the new masks and the entire effort at self-re-invention are expressions of the rich Baga tradition. 

Review my sister's book!

Last month, Christopher Buckley reviewed my sister Lucy Ellmann’s new novel Mimi in the New York Times Sunday Book Review for March 17, 2013. He didn’t seem to like it much. I won’t link to it, but you can look it up.

It’s not so easy to refute a book review. Of course every reviewer is entitled to his – or her – opinion. (Usually “his”: most reviewers at the Book Review, and a number of other journals, are men, as shown in a recent statistical analysis by VIDA: Women in Literary Arts.) Nevertheless I wrote a letter to the Book Review in response. They haven’t printed it – perhaps they don’t like letters from authors’ brothers – but I will, here:

            To the Editor:

Christopher Buckley’s review of Lucy Ellmann’s new novel Mimi is so over the top in its hostility to the book that one searches for an explanation. Can he really be that upset about italics? Or could he possibly see the book’s Manifesto as an actual call for men to solve the world’s problems by giving all their money to women? Buckley asks a couple of times if perhaps he is missing the point, and wonders if the book should be read as a Swiftian modest proposal. In my opinion, that notion misses the point twice. The book is neither a tract nor a satire, but rather a romance, and its Manifesto is not advocacy but the imagined expression of a man who has at long last and after much suffering found love in a woman’s arms. The books Buckley imagines and dislikes aren’t the one Lucy Ellmann wrote.

Sincerely,

Stephen Ellmann

PS: I am the author’s brother – but since Buckley finds time in his review to sniff about the “numerous Ellmanns” my sister includes in her acknowledgments, I feel I too have been touched by his review and have acquired a right of reply.

So what to do? Well, Lucy’s book features a Manifesto, and I wish to speak in similar vein:  

Literary critics of America, you have nothing to lose but your chains. Don’t be daunted by one man’s opinion. Read Lucy’s book and review it! 

Our funny world -- e.g., at the Motor Vehicle Commission

My wife doesn't have my last name. I am fine with this, and the State of New Jersey has no objection either. But it turns out that in at least one place my wife's keeping her own name has some consequences. Suppose (well, let's say "assume") that she had wanted to re-register the car that's in my name. Not to re-register it in her name, but to re-register it on my behalf. If she did have my last name, she could have done so with no problem whatsoever. But since she doesn't, the only way she could have accomplished this feat would have been for me to grant her a power of attorney -- and that document would have had to be notarized! Oddly enough, I wound up re-registering the car myself.

I don't want to make too much of this. My wife and I were hardly subjected to an injustice. Even the inconvenience could have been avoided if I'd taken care of the paperwork by mail a month earlier (sigh). And the power of attorney form, which I've been studying this afternoon, applies not only to renewal of registration but also to transfer of registration and various other auto-related steps as well, and some of those might actually pose dangers of theft or fraud.

But really -- is there no way to take account more easily of the fact that many people today are married but don't share last names? Surely we should fix this anomaly as soon as global hunger has been alleviated!

How did South African troops wind up fighting and dying in the Central African Republic?

This past Sunday, March 24, 2013, the President of the Central African Republic, François Bozizé,  was deposed by the rebels of "Seleka" (a name meaning simply "Alliance"). It’s difficult, from a distance, to see much reason to regret Bozizé's departure; the NY Times describes the country under his "rule" as essentially ungoverned, with the nation's mineral wealth largely untapped and its people caught in dire poverty. Nor is his departure in any strong sense a blow to democratic principles; the ejected President took power via a coup of his own back in 2003, and then won what the Times calls "questionable votes." But it's also not clear how admirable the rebels are, though they clearly had good reason to be dissatisfied with Bozizé. Their leader, Michel Djotodia, himself a former civil servant, immediately suspended the constitution for the three years, according to another NY Times report. 

Whether the change of power will in any way address the country's important problems remains to be seen. What we do know is that the latest coup was far from bloodless. The Washington Post reports that the former President has escaped to neighboring Cameroon and requested asylum in Benin, but meanwhile, according to another NY Times report, 78 bodies have been found in the streets of Bangui, the Central African Republic’s capital.

That total probably doesn’t include another 13 people who died in combat – 13 people who were soldiers in the South African National Defence Force. 27 more South African soldiers were injured, according to the South African Mail and Guardian. South Africa's secretary of defense, Sam Gulube, says that the South African troops fought bravely, trying to stem a rebel advance, though there are also suggestions that they were under-equipped and under-manned.

But the most important issue is, how did they get there in the first place? One way to rephrase that question is to ask why South African troops were trying to stem this rebellion at all. To that question there are some troubling possible answers. There are indications that South Africa’s ANC leaders turned their attention to the Central African Republic in part because of potential business deals that would have benefited ANC figures or even the ANC itself.

But perhaps the troops’ presence there had nothing to do with any politicians’ self-interest, and was simply an effort by South Africa, a “regional power,” to help calm troubled waters in another African state. (For reports indicating that the UN asked South Africa not to withdraw its troops early this year, even after a shortlived agreement between the government and the rebels had called for their withdrawal, see here and here.) But if the reasons for South African troops' presence were disinterested, they may still have been unwise. So we might ask, who decided that sending troops to the Central African Republic was a wise policy? (There are, after all, a lot of troubled waters in Africa to be calmed.)

The answer to this last question is: the President, joined perhaps by his Cabinet. South Africa’s constitution – so vigilant and liberal on many issues – is by no means strict in its regulation of the President’s power to deploy troops abroad. This is a subject I've written about, most fully in a chapter of the treatise Constitutional Law of South Africa. (The chapter isn't freely available online, but for an earlier version, see here.) In fact, the President needs no specific Parliamentary approval whatsoever to "authorize the employment of the defence force ... in fulfillment of an international obligation." (South African Constitution, section 201(2)(c).) 

South African troops have been in the Central African Republic for years, but President Zuma extended the agreement with the Central African Republic that was the basis for their presence in December 2012, and South Africa then sent an additional 200 troops in January 2013, despite the already-deteriorating security situation. While that reinforcement evidently was reported to Parliament early this year, and provoked some controversy at the time, no news story I’ve seen has indicated that Parliament ever did approve this intervention. 

South Africa does not yet have, as far as I know, any equivalent to the US War Powers Resolution, which at least requires Congressional approval of US troops’ entry "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances" if the troops remain on the scene for more than approximately 60 days. But it’s not clear that such a statute would have meaningfully restricted the South African President’s power either, since it’s possible to debate elaborately when hostilities are in fact "clearly indicated by the circumstances." 

It’s also possible, it appears, for South African missions – like American ones – to “creep,” since the troops in the Central African Republic were sent there to "build capacity" of local forces but wound up attempting to repel a rebel assault. The Mail and Guardian, reporting on the mission's history, quotes an observer in South Africa who notes that "Just last week Bozizé had a meeting with President Zuma here in South Africa ... There's some suggestion he was here to plead for help to defend his government in the face of an imminent attack."

Military power is very hard to regulate through a constitution, as ample U.S. experience makes clear. It is sad to see this point again confirmed in South African experience as well.  And it's difficult not to see the deaths of these South African soldiers as singularly pointless.