Faculty Scholarship Digest

July 2014

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.


Articles

Kimberly P. Jordan, Kids are Different: Using Supreme Court Jurisprudence about Child Development to Close the Juvenile Court Doors to Minor Offenders, 41 N. Ky. L. Rev. 187 (2014).

This article is part of a symposium regarding juvenile justice. Kim uses a recent series of Supreme Court cases regarding juveniles in the criminal justice system to argue for substantial reforms in juvenile justice at the state level, with specific examples of successful programs. As the article describes, over the past decade, the Supreme Court has developed a principle that “kids are different” from a constitutional perspective with regard to criminal justice. Rather than seeing teenagers as “small adults,” the Court has relied on psychological and physical differences in brain development between juveniles and adults to ban capital punishment and mandatory life without parole sentences for juveniles and to hold that courts must consider juvenile status in determining whether police questioning amounted to “custodial interrogation.” Kim notes both the impact of these decisions and a reduction in the earlier movement to treat juveniles as adults in the criminal justice system.

Yet, the article contends, such movement is not enough. “[J]uvenile courts across the country are dealing with an ever-increasing number of children,” as juvenile courts are increasingly used to enforce disciplinary rules (e.g., school attendance, curfews) that would not be criminal for adults and do not involve violence. Kim describes the documented, negative long-term consequences “when these children cross the juvenile court threshold.” Juvenile court jurisdiction for such misdemeanors and school-based offenses is driven by a desire to stop children from “the path to further criminal activity” and by the obligation of schools to keep their buildings safe. Yet, the article contends, for some of the reasons the Court has found constitutionally significant in other contexts, juvenile court involvement is not the developmentally appropriate way to accomplish these ends. The article surveys alternative approaches states are succeeding with, including positive behavior supports in schools, increased use of diversion programs, and increased collaboration between the different government systems that troubled juveniles are often involved with.


Ingrid A. B. Mattson, Untapped Potential: A Study of Academic Online Legal Research Guides, 32 Legal Reference Services Q. 247 (2013).

The law libraries of ABA-accredited law schools create an extraordinary number of on-line research guides---by Ingrid’s count, the number is approaching 6,000. The median number for a law library is about twenty (Georgetown is “tops” with 209), and only about a dozen law schools do not have any. [Moritz has sixteen as of this writing, by the way, and they are easily accessed by clicking “Research Guides” on the left side of the library’s homepage.] Ingrid has reviewed these guides by looking closely at the output of twenty-five representative law schools and, separately, at the research guides on a particular topic, immigration law.

The article provides an insightful description of the field, describing four general categories of resources now grouped under the term research guides: (i) lists of legal resources, what we used to call bibliographies, which are important for what they select but beyond that have little editorial addition; (ii) pathfinder-style guides, which are “collections of resources with some degree of context, guidance or analysis written by a law librarian;” (iii) process oriented guides, e.g., Guide to Finding U.K. Law in the Law Library or Using Looseleaf Services; and, finally, (iv) other things that law librarians decided would be of broader interest, such as directories or, for example, Mobile Apps for Law Students. The article provides excellent guidance for the formatting and hosting of these guides, guidelines regarding such challenging issues as keeping the guides current and their internal links valid, and recommendations for providing dates regarding these issues. The article concludes with useful questions a law library should be able to answer about its own research guides to ensure that it is using it resources wisely in the ever-growing production of these items.


John B. Quigley

John B. Quigley, Vienna Convention on Consular Relations: In Retrospect and Into the Future, 38 S. Ill. U. L.J. 1 (2013).

John is a leading authority on the law of consular relations, and has written books on the subject. This article is the lead piece in a symposium celebrating the 50th Anniversary of the Vienna Convention on Consular Relations. John explains the history of the convention and the important compromise that allowed it to go forward: agreeing to be a party to the convention did not automatically entail submission to the International Court of Justice---that step required agreeing to a separate protocol, which many states (including the United States) have done, but some have not. The article examines in particular the rights of citizens arrested abroad to support from the consular office of their home country in the country in which they are arrested. The Convention creates consular rights of access and notice for arrestees along these lines and John covers struggles to give full effect to these provisions. The article then makes the case for a right of consular access as an independent human rights matter, and notes the existing human rights treaties that could be cited in support of that argument.


Peter M. Shane, Foreword: The NSA and the Legal Regime for Foreign Intelligence Surveillance, 10 I/S: J.L. & Pol'y for Info. Soc'y 259 (2014).

This essay introduces the eleven articles in the outstanding I/S Journal symposium titled NSA Surveillance: Issues of Security, Privacy and Civil Liberty. In the tradition of such a Forward, Peter gives an overview of the subject and discusses the contributions of each of the pieces. The articles cover four key questions related to the National Security Agency: (i) the legality (from both statutory and constitutional perspectives) of the NSA’s surveillance and information gathering activities; (ii) the contribution of those activities to national security, and (iii) their impact on civil liberties; and, finally, (iv) possible avenues for constructive change. The essay’s careful overview of the history of government interception and collection of communications (including the legislative milestones of Title III, the Foreign Intelligence Surveillance Act (“FISA”), and the Patriot Act) over the past century sets the framework for these discussions and is itself an education to all but the most initiated.

In a final section, Peter makes a separate observation from these materials. Much of the government’s surveillance activities have been approved by the Foreign Intelligence Surveillance Court (“FISC”), a body of federal judges that hears the government’s applications ex parte and keeps much of its work under seal. It has become apparent that the FISC has tended to approve aggressive interpretations of FISA by the executive branch that likely expand the government’s surveillance power beyond what most observers believed Congress was authorizing in enacting the statutes. At the same time, it appears that the FISC has been fairly strict in monitoring minimization and other implementation rules regarding the surveillance it approves. The essay suggests that this approach may be a compromise on the part of the FISC, trading the more obvious interpretations of FISA for tacit executive acquiescence in the power of the FISC to constrain executive action and for some genuine impact on the privacy harms from executive action. The FISC thus has served important functions, the essay contends; charges that it is a mere rubberstamp miss the broader inter-branch power context in which it operates and may exaggerate its realistic ability to constrain executive action. Notwithstanding that partial validation, the essay has clear criticisms for the FISC’s approach: both the lack of public knowledge (and hence debate) of what is actually occurring and the possibility of approval of activities that could not be plausibly defended through conscientious statutory interpretations are serious drawbacks.


Supreme Court Brief

Douglas A. Berman

Douglas A. Berman, Brief of Law Professor as Amicus Curiae in Support of Petitioners, Jones v. United States, No. 13-10026 (U.S. filed June 26, 2014).

The traditional rule in criminal sentencing, at least as a constitutional matter, is that, following an adequate procedure, judges at sentencing may rely on their own factual findings. A controversial sidelight of this is that a jury may convict a defendant of Crime A (say, drug possession) but acquit of a more serious Crime B (say, possession with intent to distribute), and then the judge, in sentencing for Crime A, can give a longer sentence based on the judge’s finding that the defendant also acted as charged in Crime B (i.e., that he possessed the drugs with intent to distribute). In 1997, the Supreme Court rejected a constitutional challenge to this practice even under the Federal Sentencing Guidelines, where the facts at issue and their sentencing consequences are clearly delineated.

The defendants in this case suffered just such a finding, at least tripling the range of their sentence. Doug urges the Supreme Court to hear the appeal on the grounds that, at least in this context, the Court’s more recent precedents indicate that this practice violate the Sixth Amendment right to trial by jury and its accompanying protections. Doug’s argument relies on the Court’s Apprendi line of decisions, which began by holding that the statutory maximum punishment for a defendant’s conduct could not be raised merely on a finding by the judge at sentencing. Doug argues that, although the Court has interpreted the Federal Sentencing Guidelines to be not so binding on sentencing judges as to run afoul of this rule, the Guidelines still have enough “controlling influence” to raise constitutional concerns when the injury to the Sixth Amendment interest is sufficiently great. The brief sets out the argument why judicial finding of facts surrounding the offense that were expressly rejected by the jury create just such an injury (a conclusion some district courts have reached, but the Courts of Appeals have generally rejected).