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classyfoxdestiny · 3 years ago

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Despite highest disruptions since 2014, here's the list of bills passed in Parliament

India

oi-Madhuri Adnal

| Published: Thursday, August 12, 2021, 17:05 [IST]

Deplorable actions by opposition Members of Parliament (MPs) have become a norm. Their actions in this session were not an exception but a continuation. From tearing of the rule book last year to the opposition indulging in most unparliamentary conducts ever witnessed by this House, the conduct of opposition is becoming shameful day by day.

This was said in a press conference today in New Delhi. The press conference was attended by Union Ministers Shri Piyush Goyal, Shri Dharmendra Pradhan, Shri Mukhtar Abbas Naqvi, Shri Prahlad Joshi, Shri Bhupendra Yadav, Shri Anurag Singh Thakur, Shri Arjun Ram Meghwal and Shri V Muraleedharan.

The Ministers pointed out that opposition had publicly stated that the session should be washed out.

Their intention was to not let the house conduct business. Infact, the Government had offered discussions on several occasions. However, appeals for discussions fell on deaf ears and they even took papers from the hands of the Hon’ble Minister and tore them. Even the Hon’ble Prime Minister was not allowed to introduce the Newly sworn In Council of Ministers.

Some Opposition members desecrated the sanctity of the House by climbing the Sanctum Sanctorum (Garbhagriha), namely the table located at well of the House and threw the Rule Book at the Chair. The Member of Parliament who stood on the table in the Parliament was not only standing on the table but was trampling upon Parliamentary ethics. He was not only throwing a book at the chair but was also throwing Parliamentary conduct out of the House. Such behaviour is unprecedented in our House and the opposition has done grievous harm to the reputation of the house. Opposition’s behaviour was an assault on the dignity of the institution and could have grievously injured the Secretary General.

Misbehaviour by the Opposition members is a shameful disgrace in the Parliamentary History of India. It is rather unfortunate that the opposition MPs are not even apologetic about their actions. Rather they are considering these shameful actions as acts of valour.

Shri Piyush Goyal said that opposition has misbehaved throughout the session only because they do not want issues of public welfare to be discussed. It is demanded that strict action should be taken on the shameful and obstructive behaviour of the Opposition. They wanted to create Opposition unity to foster national disunity. They owe answers to the nation.

The Opposition questions over bills being passed in din. However, it is their refusal to allow parliamentary debate that has left no choice. From merely shouting, they have shifted to violence and manhandling staff to disrupt parliamentary process. Also, where was this concern about passage without discussion when numerous bills were passed in din during the UPA rule. Between 2006 and 2014, the United Progressive Alliance (UPA 1 & 2) government passed a total of 18 Bills in a hasty manner.

Despite highest disruption since 2014, the no. of bills passed per day during this session in Rajya Sabha was the 2nd highest since 2014 (i.e. 1.1 bills per day passed). The time lost due to interruptions / adjournments (till Aug 11) was 76 Hours 26 Minutes and the highest average time per day lost due to interruptions / adjournments since the 231st session of Rajya Sabha in 201 was 4 Hours 30 Minutes.

Despite all the chaos and disruption, 19 Bills passed in Rajya Sabha (incl. Constitutional Amendment on OBC reservation also passed), which are in national interest and will benefit the poor, OBCs, workers, entrepreneurs, & all sections of our society. This reflects the commitment, productivity and ability of the Govt to drive legislative agenda in the Parliament, which aims to fulfil the aspirations of its citizens. It will shape the future of our country. Govt successfully carried out Govt business during the session.

Details of the Monsoon Session

1. The Monsoon Session, 2021 of Parliament which commenced on Monday, 19th July, 2021 has been adjourned sine die on Wednesday, the 11th of August, 2021. The Session provided 17 sittings spread over a period of 24 days.

2. The Session, which was originally scheduled to have 19 sittings from 19th July till 13 August, 2021, was curtailed due to continuous disruptions in both the Houses and completion of essential government business.

3. During the Session, 22 Bills were passed by both the Houses of Parliament which includes two appropriation Bills relating to the Supplementary Demands for Grants for 2021-22 and the Demands for Excess Grants for 2017-2018 which were passed by Lok Sabha, transmitted to Rajya Sabha and are deemed to have been passed under Article 109(5). The complete list of these 22 Bills is annexed.

4. Four Bills replacing the Ordinances, namely, the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2021, the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2021 and the Essential Defence Services Ordinance, 2021 which were promulgated by the President before Monsoon Session, were considered and passed by the Houses.

5. Some important Bills, passed by Houses of Parliament are as under :-

A. ECONOMIC SECTOR/EASE OF DOING BUSINESS MEASURES

The Taxation Laws (Amendment) Bill, 2021 provide that no tax demand shall be raised in future on the basis of the said retrospective amendment for any indirect transfer of Indian assets if the transaction was undertaken before 28th May, 2012.

The General Insurance Business (Nationalisation) Amendment Bill, 2021 provides for greater private participation in the public sector insurance companies and to enhance insurance penetration and social protection and better secure the interests of policy holders and contribute to faster growth of the economy.

The Deposit Insurance and Credit Guarantee Corporation (Amendment) Bill, 2021 enables easy and time-bound access by depositors to their own money, even when there are restrictions on banks. It is proposed to provide that even if a bank is temporarily unable to fulfil its obligations due to restrictions such as moratorium imposed on it, depositors can access their deposits to the extent of deposit insurance cover through interim payments by the Corporation.

The Limited Liability Partnership (Amendment) Bill, 2021 converts certain offences into civil defaults and changes the nature of punishment for these offences. It also defines small LLP, provides for appointment of certain adjudicating officers, and establishment of special courts.

The Factoring Regulation (Amendment) Bill, 2021 seeks to help micro, small and medium enterprises significantly, by providing added avenues for getting credit facility, especially through Trade Receivables Discounting System. Increase in the availability of working capital may lead to growth in the business of the micro, small and medium enterprises sector and also boost employment in the country.

B. TRANSPORT SECTOR REFORMS

The Marine Aids to Navigation Bill, 2021 provides for the development, maintenance and management of aids to navigation in India; for training and certification of operator of aids to navigation, development of its historical, educational and cultural value; to ensure compliance with the obligation under the maritime treaties and international instruments to which India is a party.

The Inland Vessels Bill, 2021 promotes economical and safe transportation and trade through inland waters, to bring uniformity in application of law relating to inland waterways and navigation within the country, to provide for safety of navigation, protection of life and cargo, and prevention of pollution that may be caused by the use or navigation of inland vessels, to ensure transparency and accountability of administration of inland water transportation, to strengthen procedures governing the inland vessels, their construction, survey, registration, manning, navigation.

The Airports Economic Regulatory Authority of India (Amendment) Bill, 2021 proposes to amend the definition of “major airport” so as extend its scope to determine the tariff for a group of airports also, which will encourage development of smaller airports.

C. EDUCATIONAL REFORMS

The National Institute of Food Technology Entrepreneurship and Management Bill, 2021 declares certain institutions of Food Technology, Entrepreneurship and Management to be the institutions of national importance and to provide for instructions and research in food technology, entrepreneurship and management.

The Central Universities (Amendment) Bill, 2021 seeks to amend the Central Universities Act, 2009 inter alia to provide for the establishment of a University in the name of “Sindhu Central University” in the Union territory of Ladakh.

D. SOCIAL JUSTICE REFORMS

The Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021 seeks to adequately clarify that the State Government and Union territories are empowered to prepare and maintain their own State List/ Union territory List of socially and educationally backward classes.

The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 provides that instead of the court, the district magistrate (including additional district magistrate) will issue such adoption orders. The Bill adds that serious offences will also include offences for which maximum punishment is imprisonment of more than seven years, and minimum punishment is not prescribed or is less than seven years.

The Constitution (Scheduled Tribes) Order (Amendment) Bill, 2021 to modify the list of Scheduled Tribes in relation to the State of Arunachal Pradesh.

6. In the Rajya Sabha, two Short Duration Discussions under Rule 176 were held on “the management of COVID-19 pandemic, implementation of vaccination policy and challenges of the likely third wave” and on “the agricultural problems and solutions” (remained inconclusive)

7. Further, One Bill namely “The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021” and one old pending Bill namely “The Indecent Representation of Women (Prohibition) Amendment Bill, 2012” were withdrawn in Lok Sabha and Rajya Sabha respectively.

I – 22 BILLS PASSED BY BOTH HOUSES OF PARLIAMENT

1. The National Institute of Food Technology Entrepreneurship and Management Bill, 2021 2. The Marine Aids to Navigation Bill, 2021 3. The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 4. The Factoring Regulation (Amendment) Bill, 2021 5. The Inland Vessels Bill, 2021 6. The Insolvency and Bankruptcy Code (Amendment) Bill,2021 7. The Coconut Development Board (Amendment) Bill, 2021 8. The Airports Economic Regulatory Authority of India (Amendment) Bill, 2021 9. The Commission for Air Quality Management in National Capital Region and Adjoining Areas Bill, 2021 10. The Essential Defence Services Bill, 2021 11. The Limited Liability Partnership (Amendment) Bill, 2021 12. The Deposit Insurance and Credit Guarantee Corporation (Amendment) Bill, 2021. 13. The Constitution (Scheduled Tribes) Order (Amendment) Bill, 2021. 14. The Tribunals Reforms Bill, 2021 15. The Taxation Laws (Amendment) Bill, 2021 16. The Central Universities (Amendment) Bill, 2021 17. The General Insurance Business (Nationalisation) Amendment Bill, 2021 18. The National Commission for Homoeopathy (Amendment) Bill, 2021 19. The National Commission for Indian System of Medicine (Amendment) Bill, 2021 20. The Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021 21. *The Appropriation (No.3) Bill, 2021 22. *The Appropriation (No.4) Bill, 2021

II – 2 OLD BILLS THAT WERE WITHDRAWN

1. The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 2. The Indecent Representation of Women (Prohibition) Amendment Bill, 2012

*The two Bills, as passed by Lok Sabha were transmitted to Rajya Sabha for its recommendation, are not likely to be returned to Lok Sabha within the period of fourteen days from the date of their receipt in Rajya Sabha. The Bills will be deemed to have been passed by both Houses at the expiration of the said period in the form in which they were passed by Lok Sabha under clause (5) of article 109 of the Constitution.

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Story first published: Thursday, August 12, 2021, 17:05 [IST]

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thisismysociallyawkwardblog-blog · 8 years ago

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The dreaded uni post.

This is terrible but I forgot to upload (thank u anon who reminded me) If anything gets anyone mad or anything negative at all I’m so sorry pls forgive me.

The news has recently been full of Donald Trump's win at the US Presidential Elections. This surprised many as the firm favourite to win was Hillary Clinton, wife of ex-president Bill Clinton. It seemed the competition was none-existent, with Hillary appealing to women; people of colour; the LGBTQ+ community; and the youth, while also having a mass of celebrities backing her, with the slogan “I’m With Her” plastered on every surface possible, from t-shirts to mugs, and even greetings cards. However come election day, Trump won by what appeared to be a landslide; winning over 28 of the states and racking up a total of 290 electoral votes compared to Clinton’s 19 states and 232 electoral votes. The new presidential elect has said some risky things during his campaign, slating women, people of colour, and the LGBTQ+ community. In this article I’m focusing on how the women of America feel about their new president and their feelings about everyday life now Trump is in power.

In shadow of the election, I took to Tumblr to ask the question, “How do you feel now that Trump has come into power?” with a side note on how readers feel about Hillary losing and what this may have done for the progress of women in terms of gender bias. When I posted this question to my followers, I did not expect the response I got. My post very quickly received many shares and likes, and I got many women messaging me their opinions on the topic.

“No, I do not feel safe. We’ve elected a man that has been accused of raping a thirteen year old girl, and has stated that he would sexually assault a woman. As a woman, and a sexual assault survivor, I can honestly say I have never felt less safe. It is condoning rape culture and basically letting everyone know “hey it doesn’t matter if you rape or sexually assault a woman, you can still be leader of the free world.” The fact that Trump supporters wanted to repeal the 19th amendment (the right for women to vote) should honestly speak for itself. While I feel like the progress of women isn’t completely stopped, the fact that a qualified, dignified, and all around better candidate lost to a man with little to no views of foreign policy shows the sexism in our country.”

“I feel safe and believe that her loss was not the result of sexism, but the result of anger at her scandals… I would love to see a woman become President, and while I dislike Trump, I am glad the first female President will not be Clinton.”

These are only two of the responses I received, but I received many more. There seemed to be a general split between people who were fine with Trump winning and women with a genuine fear of what is to come for them, the latter being more prominent in my research.

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maxwellyjordan · 5 years ago

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Ask the author: The enduring and controversial legacy of the Warren Court

The following is a series of questions posed by Ronald Collins to Geoffrey Stone and David Strauss in connection with their new book, “Democracy and Equality: The Enduring Constitutional Vision of the Warren Court” (Oxford University Press, 2020).

Geoffrey Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School. He served as dean of the law school from 1987-1994 and provost of the University of Chicago from 1994-2002. Stone was a law clerk to Supreme Court Justice William J. Brennan Jr. and before that a law clerk to Judge J. Skelly Wright on the U.S. Court of Appeals for the District of Columbia Circuit.

David Strauss is the Gerald Ratner Distinguished Service Professor of Law and Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic at the University of Chicago Law School. Before joining the law school faculty, he worked as an attorney-advisor in the Office of Legal Counsel at the U.S. Department of Justice and was an assistant to the Solicitor General of the United States.

Stone and Strauss, along with Yale Law School professor Justin Driver, are the editors of the Supreme Court Review.

Welcome, Geoffrey and David, and thank you for taking the time to participate in this question-and-answer for our readers. And congratulations on the publication of your latest book.

* * *

Question: “Democracy and Equality” is the 18th book in the “Inalienable Rights” series published by Oxford University Press. As the editor of the series, Geoffrey, congratulations on such an impressive array of books by everyone from Richard Epstein to Laurence Tribe and from Martha Nussbaum to Nadine Strossen. Might you tell us what’s in the works for the next volume or two?

Stone & Strauss: By coincidence, the next two volumes in the series, which will be published in 2020, both deal with the issue of religion. In the 19th volume, Jack Rakove, a Pulitzer Prize-winning historian at Stanford, has written “Beyond Belief, Beyond Conscience,” which explores the evolution of religious freedom from the 16th century to the modern era, focusing especially on history, philosophy and political theory.

In the 20th volume, Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, and Howard Gillman, chancellor of the University of California, Irvine, have written “The Religion Clauses: The Case for Separating Church and State,” which focuses on what the authors see as the troubling directions our conservative justices are now taking insofar as they reject the idea of a wall separating church and state.

Question: The first book in the “Inalienable Rights” series was Richard Posner’s “Not a Suicide Pact: The Constitution in Times of a National Emergency” (2006). In the editor’s note to that volume, Geoffrey and Dedi Felman wrote: “Rights invite discussion: What is a constitutional right? What are the counterbalancing duties?”

In terms of the Warren Court’s civil rights and civil liberties jurisprudence, what do you see as some of the major counterbalancing duties?

Stone: As a bit of background, I should explain that back in 2004 Dedi Felman, then an editor at Oxford, came up with the idea for the Inalienable Rights series. I had just published “Perilous Times: Free Speech in Wartime” (2004), and Dedi persuaded me to take on the challenge of serving as editor of this series. The goal was to produce a series of books, written by distinguished legal scholars, that would be relatively brief (roughly 40,000 words, lightly footnoted), that would deal with important issues of constitutional law and that would be both interesting to constitutional law experts and accessible to general readers. Dedi left Oxford shortly thereafter, and David McBride has taken on her role in the years since. Initially, we imagined that the series would consist of perhaps six volumes published over eight years. We never imagined that we would publish 20 volumes, with more no doubt to come. The authors in the series have included truly remarkable scholars, including not only the individuals you mention above, but also Cass Sunstein, Pam Karlan, Lee Bollinger, Mark Tushnet, Michael Klarman, and on and on and on.

In terms of your question about “counterbalancing duties,” I assume we were referring most fundamentally to the doctrine of precedent and to the obligation of justices not to reach results merely because they think those results reflect good public policy for the nation, but to honestly ground their decisions in principles of interpretation that are true to the fundamental concerns of specific constitutional provisions and to an approach to constitutional interpretation that is grounded in the aspirations of the Framers and in a principled understanding of the central reasons for judicial review.

As we hope to demonstrate in “Democracy and Equality,” in our view, although the justices of the Warren Court often confronted problematic precedents, they had a deep understanding of the most fundamental reasons for judicial review and of the essential role of our Supreme Court in our constitutional system – most centrally, to make sure that majorities do not disregard the rights and interests of those without the political power to protect themselves, or abuse their power to manipulate the rules of democracy in order to ensure their continued dominance. As we argue in the book, the Warren Court confronted difficult issues of precedent, but did so in a manner that fulfilled the most central reasons for having a Supreme Court in the first place.

Question: As a matter of originalist jurisprudence, do you think Alexander Bickel’s memorandum for Justice Felix Frankfurter in Brown v. Board of Education (1954) carried the day, or do you think Raoul Berger had the better argument in his book, “Government by Judiciary” (1977), in which he argued that Bickel’s historical defense was untenable?

Stone & Strauss: The Warren Court, of course, never claimed to be “originalist.” In Brown, and then emphatically in Loving v. Virginia (1967), the case that struck down laws forbidding interracial marriage, the Warren Court was quite clear that it was not pretending to follow the original understandings. In that respect, the Warren Court was intellectually honest in a way that not everyone has been.

In fact, the question you ask, by itself, shows how impoverished “originalist jurisprudence” is. Berger’s claim that the 14th Amendment was not understood at the time to establish a principle of racial equality is pretty clearly correct, even if some of Berger’s specific arguments are flawed. So originalists have to tie themselves in knots to try to explain how originalism can be made consistent with cases like Brown and Loving. Bickel’s account – essentially, to emphasize the principles underlying the 14th Amendment and its capacity for growth, rather than how people at the time understood it – is of a piece with one of the ways originalists try to save their approach from generating unacceptable conclusions.

If we understand originalism that way, about principles and the capacity for growth, then it can be unobjectionable; everybody can be an originalist. But that version of originalism also doesn’t really limit judges, decide controversial cases or explain how U.S. constitutional law develops.

Question: In your conclusion, you argue that the Warren Court would have rejected the Second Amendment argument in District of Columbia v. Heller (2008) on historical and textual grounds. I assume the same would hold true for the court’s ruling in McDonald v. City of Chicago (2010), which applied the Second Amendment to the states.

If so, why did those originalist and textualist standards not defeat the constitutional claim in Malloy v. Hogan (1964)? The majority in Malloy, per Justice William Brennan, incorporated the Fifth Amendment privilege against self-incrimination against the states with little, if any, originalist support.

Stone & Strauss: Right – the Warren Court was not, and did not purport to be, originalist, and that’s true of the incorporation decisions, too. Justice Hugo Black emphasized the text and what he said were the original understandings, but his view was not accepted by the Warren Court as a whole.

Incorporation – the application of the Bill of Rights to the states – was a Warren Court success story. But it was not based on original understandings. At the time of most of the incorporation decisions, the received historical view was that the 14th Amendment was not understood to incorporate the Bill of Rights. Justices Felix Frankfurter and John Marshall Harlan, who were very historically minded, opposed incorporation on that ground.

We now know, thanks to the impressive work of some important scholars, that this received understanding was too simple and that the history is actually quite complicated – no surprise there. But by the end of the Warren Court, incorporation had become the norm, except for a couple of well-established exceptions (basically, the Seventh Amendment and the Fifth Amendment’s grand jury clause). It became the norm for a variety of reasons having nothing to do with the history or, for that matter, the text. In part it was, as we say in the book, one of the Warren Court’s weapons against state criminal-justice systems that were engines of white supremacy or, at least, badly dysfunctional. More generally, as the Warren Court made the protections of the Bill of Rights more extensive and elaborate, it made a lot of sense not to operate with separate sets of rules for federal and state governments, particularly in the area of law enforcement.

Heller was wrong, but once it was decided, it became an uphill struggle to keep the Second Amendment from being incorporated, precisely because the Warren Court made incorporation the norm.

Question: As you note, in a 1980 Santa Clara Law Review article, Justice Arthur Goldberg declared: “Without actually overruling Mapp v. Ohio, which applied the exclusionary rule to the states], the present Court has riddled it so full of loopholes as to render its effect almost meaningless.”

Might the same be said of one of the Warren Court’s most famous decisions, Miranda v. Arizona (1966)? Have Mapp and Miranda become “almost meaningless”?

Stone & Strauss: No. Although in the years since Mapp the increasingly conservative justices of the Burger, Rehnquist and Roberts Courts have limited the impact of Mapp in a string of decisions, illustrated by United States v. Calandra (1974), Stone v. Powell (1976) and Herring v. United States (2009), many police departments across the nation have reformed themselves in response to Mapp. Despite the limitations the Burger, Rehnquist and Roberts Courts have imposed on the scope of the exclusionary rule, the central holding of Mapp remains intact. As Yale Kamisar has observed, “it is comforting to know that, although battered and bruised,” Mapp “remains in place – waiting for a future Court to reclaim the torch.”

As with Mapp, the ever-more conservative justices since the end of the Warren Court have limited the impact of Miranda. In Harris v. New York (1971) for example, the Burger Court held, over the dissents of Black, Brennan and Justices William Douglas and Thurgood Marshall, all of whom had joined Miranda, that statements made by a suspect in the course of custodial interrogation could be used to impeach the defendant’s credibility if he testified in his own behalf at trial. Over time, though, Miranda came increasingly to be accepted as the culture of the police station as law enforcement practices became more civilized and more positive.

In 1993, the Rehnquist Court declared that, in the 27 years since Miranda was decided, “law enforcement has grown in constitutional as well as technological sophistication, and there is little reason to believe that the police today are unable, or even generally unwilling, to satisfy Miranda’s requirements.” In 2000, in Dickerson v. United States, Chief Justice William Rehnquist expressly reaffirmed Miranda, noting that “Miranda has become embedded in routine police practice” and there is no principled “justification for overruling Miranda.”

Nonetheless, the Roberts Court has continued to undermine Miranda. In Berghuis v. Thompkins (2010), for example, the court, with Chief Justice Roberts joining Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito in the majority, held that an individual arrested for murder who remained silent for three hours after being warned of his right to remain silent, despite continued and ongoing police interrogation, had waived his rights when he finally gave in and responded to a question.

Although Miranda has become generally accepted, how it will fare in the hands of justices who do not share the Warren Court’s vision of the Constitution remains to be seen.

Question: It seems that the court since the Warren era has preferred creating numerous exceptions to landmark liberal rulings to formally overruling them. Consider another quotation, for example, from Rehnquist in Dickerson : “While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, … we do not believe that this has happened to the Miranda decision. If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling.”

Do you think the exceptions to Roe v. Wade (1973) carved out since the ruling have undermined Roe’s doctrinal underpinnings, leaving it vulnerable to being overruled? Or do you think the court will continue to riddle it with exceptions?

Stone & Strauss: Roe was a profoundly important decision. Although it was not a Warren Court decision, there is little doubt that the Warren Court would have reached the same result in 1973. One thing that is interesting – and revealing – about Roe is that five of the seven justices in the majority were appointed by Republican presidents Dwight Eisenhower and Richard Nixon (Brennan, Chief Justice Warren Burger, and Justices Potter Stewart, Harry Blackmun and Lewis Powell). The two dissenters were appointed by Republican President Nixon (Rehnquist) and Democratic President John Kennedy (Justice Byron White). In short, Roe was a remarkably nonpartisan decision.

Things have changed dramatically since 1973, though, as presidents from both parties have increasingly appointed justices with what they hoped were preconceived views on abortion. Nonetheless, although Republican presidents have appointed 14 of the 18 justices in the last 50 years (even though they have won the popular vote in only six of the last 13 presidential elections), Roe has survived.

It is true, of course, that the court over that period has handed down several important decisions limiting Roe, including Maher v. Roe (1977), Harris v. McRae (1980), Planned Parenthood v. Casey (1992) and Gonzales v. Carhart (2007), but the plain and simple fact is that, despite those decisions, at least the core of Roe has survived notwithstanding the many attacks on it. That is due largely to the fact that four Republican-appointed justices in this era – Kennedy, John Paul Stevens, Sandra Day O’Connor and David Souter – were deeply committed to the principle of precedent and to the rights of women. Unfortunately, in our view, the five Republican-appointed justices now on the court (Roberts, Thomas and Alito, alongside Neil Gorsuch and Brett Kavanaugh) are likely to cast Roe aside. They might do this quickly, or in a series of decisions over the next three or four years, but as long as they remain in the majority, they will almost surely do this.

Question: In all 12 cases you discuss, the various rights claims were vindicated. But what of important Warren Court cases in which a claim was denied, as in Brennan’s opinion in Roth v. United States (1957), in which the court held that obscenity is not protected by the First Amendment?

How important was Roth to the Warren Court’s First Amendment jurisprudence?

Stone & Strauss: It’s important to understand that the Warren Court’s jurisprudence evolved over time as the makeup of the court changed. Indeed, although Chief Justice Earl Warren joined the court in 1954, the only decision of the 12 we discuss in our book that was handed down before 1961 was Brown. Brown was, of course, a profoundly important and transformative decision, but with that one exception the Warren Court as we know it didn’t really take on its historic identity until the early 1960s. At the time Roth was decided in 1957, the court still had Frankfurter and Justices Harold Burton, Tom Clark and Charles Whittaker on it. It was not surprising that those justices would not welcome a “radical” decision giving broad constitutional protection to obscenity. Moreover, Warren himself was personally quite put off by what at the time was understood to be obscene expression.

On the other hand, although Roth might be seen today as a somewhat timid decision, Brennan’s opinion for the court gave much greater First Amendment protection to sexual expression than existed almost anywhere in the nation. The dominant approach to defining obscenity in the United States at that time was still rooted in the 1868 English case of Regina v. Hicklin, which held that any material that tended to ��deprave and corrupt those whose minds are open to such immoral influences” must be deemed “obscene” and therefore could be banned. Brennan, building on lower-court and state-court decisions that had increasingly interpreted anti-obscenity statutes more narrowly – although not based on the First Amendment – held that sexual expression could not be prohibited consistent with the First Amendment unless “the dominant theme of the material taken as a whole appeals to the prurient interest” of the “average person” applying “contemporary community standards.” Although Roth did not go nearly as far as Douglas and Black wanted (they maintained that so-called “obscene” expression should be fully protected by the First Amendment), it was in fact a cautious, but meaningful step forward in the protection of sexual expression.

Moreover, nine years later when the Warren Court revisited the question in Memoirs v. Massachusetts, Brennan, joined by Warren and Justice Abe Fortas, with concurrences by Black, Douglas and Stewart, held that sexual material could not be deemed obscene unless, in addition to the requirements set out in Roth, it also had “no redeeming social value.” By the time the Burger Court came into being, this test had proved so expansive in its protection of sexual expression that the justices of the Burger Court felt it necessary in 1973 in Miller v. California and Paris Adult Theater v. Slaton to cut back substantially on the Warren Court’s approach to sexual expression and the First Amendment.

Question: Harlan dissented from some of the Warren Court’s seminal rulings, including Mapp and Miranda. How, if at all, do his dissents inform our understanding of constitutional law?

Stone & Strauss: Harlan today has an excellent reputation, deservedly so, but it is more despite than because of his dissents from some of the Warren Court decisions. His opinions as a whole reflect a respect for tradition and precedent, a recognition of the importance of being principled and a genuine effort to get things right without political or ideological precommitments.

Harlan misjudged the criminal-procedure revolution, in the cases you mention for example, and he was mistaken about some other Warren Court initiatives, notably reapportionment. But even then, his opinions presented the right kinds of challenges to the Warren Court. And although he was often a “conservative” dissenter on the Warren Court, he was the intellectual godfather of Roe – he was not on the court at the time of Roe, but his opinion in Griswold v. Connecticut (1967) paved the way for Roe, and the approach he took in Griswold became the foundation of so-called unenumerated rights more generally.

To give just a couple of other examples: In Cohen v California (1971), Harlan wrote an opinion upholding the First Amendment right of an individual to wear a jacket saying “Fuck the Draft” in a courthouse, even though he himself undoubtedly found that kind of display worse than distasteful. But he understood the nature and importance of dissent in the Vietnam War era. And in Bivens v. Six Unknown Named Agents (1971), Harlan wrote an exceptionally thoughtful opinion explaining why people should be able to sue federal officials who violate their constitutional rights. More recent courts have been relentlessly hostile to Bivens but have never met Harlan’s arguments on the merits. The conservative counter-revolution on the Supreme Court has been, in many ways, as much a repudiation of Harlan as of the Warren Court.

Question: As you note in your chapter on Loving, in the aftermath of Brown the Warren Court was reluctant to declare prohibitions on interracial marriage unconstitutional.

You write: “The Justices, in what amounted to a kind of judicial civil disobedience, had decided that they had to violate Congress’s jurisdictional statute in order to protect Brown.”

What do you make of this “judicial civil disobedience”? And given the cultural state of affairs in America in the early 1970s, was the Supreme Court warranted in refusing to hear Baker v. Nelson (1972), a case challenging a Minnesota anti-gay-marriage law?

Stone & Strauss: Whatever might be said about Baker, it was not an act of judicial civil disobedience; the court complied with the jurisdictional statutes (Baker was a decision on the merits), and there was no established law favoring same-sex marriage at the time. The question of when the court should hold back on establishing constitutional rights that it would otherwise recognize because it is concerned about a public backlash – that is a very difficult question. Disobeying a legal obligation because of a concern about backlash is the most extreme example. Maybe it is a partial answer to say that, in the real world, the justices are, in fact, going to take the risks of a backlash into account (as they perceive those risks), no matter what those of us on the outside might say.

This issue – whether the court should have held back because of a concern about backlash –might have arisen in a dramatic way in the run-up to Obergefell v. Hodges, the 2015 decision that established a right to same-sex marriage, had public opinion not moved so quickly in favor of same-sex marriage. But as it was, the court did not have to face that issue squarely.

Question: What might the Warren Court have done had it heard Buckley v. Valeo (1976), in which the court under Chief Justice Warren Burger struck down spending limits in the Federal Election Campaign Act of 1971?

Stone & Strauss: This is a fascinating question. To keep things simple, we’ll focus only on the contribution and expenditure limits, although that leaves out some interesting parts of the law. At the time Buckley was decided, there were only four justices from the Warren Court still on the Supreme Court – Brennan, Stewart, White and Marshall. Brennan and Stewart voted to uphold the contribution limits but to strike down the expenditure limits. White voted to uphold both the contribution and expenditure limits. Marshall voted to uphold both the contribution and expenditure limits (but only as applied to candidates themselves). In short, the four holdovers from the Warren Court all voted to uphold the contribution limits, but were all over the lot on the expenditure limits. Given this distribution of votes, it’s difficult to predict what Warren, Black, Douglas, Harlan and Fortas would each have done had they still been on the court in 1976.

Part of the reason this is so difficult is that the Warren Court deeply valued both the freedom of speech and the proper functioning of the democratic process. A case like Buckley arguably put these central values in conflict. On the one hand, the members of the Warren Court generally believed that individuals should have a right to speak their minds, but on the other hand they also believed that government could constitutionally intervene in the democratic process to ensure that it functions fairly.

Although the remaining justices of the Warren Court clearly disagreed about how best to strike the balance in 1976, we have little doubt that by the time Citizens United v. Federal Election Commission made it to the court in 2010 a substantial majority of the Warren Court justices would have voted to uphold the McCain-Feingold Bipartisan Campaign Reform Act. This is so because by this time the destructive impact of money in the political process had grown far more severe than had been the case in 1976. Moreover, although the limitation on free speech was not insignificant, it was viewpoint-neutral and thus made the danger to free-speech values much less serious than if the law had expressly treated supporters of Democratic candidates differently from supporters of Republican candidates. And given the increasingly dangerous impact money was having by 2010 on a well-functioning democracy, it seems clear that most of the Warren Court justices, like Stevens and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor in Citizens United (and O’Connor, who had voted to uphold the act a few years earlier in McConnell v. Federal Election Commission), would have voted to uphold the central provision of the McCain-Feingold Act.

Question: In cases such as Jones v. Alfred H. Mayer Co. (1968) and Katzenbach v. Morgan (1966), the Warren Court relied on the 13th and 14th Amendments to uphold Congress’ power to enact anti-discrimination laws that apply to the federal government and the states. Do you think we will see more rulings like the one in Shelby County v. Holder (2013), which struck down such a law, Section 4(b) of the Voting Rights Act of 1965?

Stone & Strauss: The Warren Court was, of course, criticized for “activism” – for declaring laws unconstitutional. But more recent conservative courts have generally accepted the “activist” decisions: Brown, Loving, Reynolds v Sims (1964), Miranda, Gideon, Griswold, the school prayer cases, the First Amendment cases.

The Warren Court decisions that have fared the worst at the hands of conservative courts have been the decisions that upheld acts of Congress. Katzenbach v. Morgan, which you mention, was effectively overruled by City of Boerne v. Flores (1997); Shelby County is hard to square with South Carolina v. Katzenbach (1966), to say the least; and the Warren Court’s generous view of Congress’ power under the commerce clause (which was the basis for upholding key provisions of the Civil Rights Act of 1964) was systematically limited by the Rehnquist and Roberts Courts.

In other words, the conservative courts’ biggest objection to the Warren Court seems to be that the Warren Court was too deferential to Congress – too willing to step aside and let the people’s elected representatives in Congress run things. That was part of the Warren Court’s abiding commitment to democracy. One of the reasons we wrote the book was that we thought the legacy of the Warren Court was misunderstood – by conservatives, by moderates and even by liberals – and this is a prime example.

Question: You suggest that, consistent with its rulings in Brown and Loving, the Warren Court would have sustained affirmative-action programs in order to help rectify the grave and lasting wrongs of slavery. You write: “Racial classifications do not present a critical constitutional problem unless they reinforce something comparable to white supremacy.” How might the Warren Court have applied that formula in the context of affirmative action?

Stone & Strauss: Critics of affirmative action like to say that Brown and Loving stand for a principle of colorblindness – that “racial classifications” are across the board unacceptable. That’s a mischaracterization. The problem with the racial classifications of the Jim Crow era is that they were used to subordinate African Americans, and the logic of the Warren Court decisions is that racial classifications are unacceptable when they are used to oppress minority groups.

Affirmative-action measures – classifications that benefit minorities – may be good or may be bad, but that is a decision that should be entrusted to the political process; there is no reason for the courts to step in. Current law has moved far away from that way of thinking, but that is the right way to understand the principle that underlies the Warren Court decisions about race.

Question: In a nutshell, what would you say is the central difference between the constitutional jurisprudence of Warren and that of Roberts?

Stone & Strauss: As the title of our book suggests, the “enduring constitutional vision of the Warren Court” was its concern with democracy and equality. Warren certainly shared that vision. What this meant, simply, is that in exercising the fundamental responsibility of judicial review in cases like Brown, Mapp, Engel v. Vitale (1962), Gideon v. Wainwright (1963), New York Times Co. v. Sullivan (1964), Reynolds, Griswold, Miranda, Loving, Katz v. United States (1967), Shapiro v. Thompson (1968) and Brandenburg v. Ohio (1969) – which are the central focus of our book –Warren and the Warren Court focused on ensuring that the American Constitution protected the rights of minorities and the essential requisites of a well-functioning democracy. That was – correctly, in our view – the core focus of Warren’s interpretation of our Constitution. Of course, as we say in the book, there were some cases in which Warren, and his court, did not follow through on that vision. But there is an overall principled coherence to the work of the Warren Court.

It is much more difficult to define the “constitutional jurisprudence” of Roberts and his court. Quite frankly, when one reviews such cases as Heller, Citizens United, Shelby County, Burwell v. Hobby Lobby (2014), Trump v. Hawaii (2017) and Rucho v. Common Cause (2019), and the dissenting opinions in Obergefell, Whole Woman’s Health v. Hellerstedt (2016) and Fisher v. University of Texas (2016), it is difficult to discern a principled approach to constitutional interpretation.

“Originalism” is not a plausible theory of constitutional interpretation, as we have said, and does not even purport to be the basis of most of these decisions. The text does not answer the questions posed by these cases. The Roberts Court is certainly not an avatar of judicial restraint – it is far more willing to invalidate important acts of Congress than the Warren Court ever was – or of following precedent. The affirmative-action and gun-control cases belie any principled commitment to federalism. Although Warren and Roberts were both Republicans, appointed by Republican presidents, the difference in their courts’ approach to constitutional interpretation is dramatic.

Question: In your view, recent developments in the court’s equality and liberty jurisprudence “paint a bleak picture.” Where does that leave those who value the constitutional vision of the Warren Court?

Stone & Strauss: There are historians who say that the Warren Court was a one-off: a product of a particular constellation of political and legal forces that is unlikely to be replicated. That may be true, of course. But we wrote the book not as an exercise in nostalgic hagiography – the Warren Court made its share of mistakes, as we say in the book – but in order to hold out an ideal of the role the Supreme Court could play in a democratic society.

In particular, we wanted to refute the notion that the Warren Court was just a liberal counterpart to the conservative courts that have succeeded it. The current administration, and the current Senate leadership, have tried to make the courts an instrument of partisan warfare. Things don’t have to be that way, and they weren’t that way for the Warren Court. Warren was one of the most successful Republican politicians of his generation. Brennan was appointed by a Republican president. White, a Kennedy appointee, dissented from many of the Warren Court’s criminal-procedure decisions, as well as from Roe. Harlan, an establishment Republican appointed by a Republican, believed the Constitution protected reproductive rights; Black, a New Deal Democratic senator, vehemently disagreed. But every one of those justices shared the core commitments of the Warren Court – its war on racial apartheid and its defense of democracy.

What the Warren Court shows, we think, is that the Supreme Court can transcend partisanship and help fulfill the highest ideals of American democracy. That should be our aspiration for the future of the courts, however discouraging things might seem right now.

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legalseat · 6 years ago

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AI in the Legal Sector

I first started researching the use of artificial intelligence (AI) in the legal space in mid-2017, when my consulting firm was commissioned by a client to conduct a study of its usage by law firms. I began as we often do—with a news search that produced about 150,000 results. I dug into several articles and industry pieces in an attempt to understand the challenges and opportunities that this emerging technology was creating and then began conducting interviews with law firms. After interviewing 22 leading firms (more about the definition of “leading” and the results of that research later) on their use of AI, I completed my research and submitted the results to the client late last year.

My partners and I gleaned so much information on the application of AI in the legal sector that we decided to make it the subject of our June session at the Somerville Forum. This intimate, one-of-a-kind forum is an invitation-only gathering of leaders within the legal industry who are actively involved with accelerating innovation.

About the Somerville Forum on AI

The Somerville Forum was named after Mary Somerville, a leading writer, astronomer, and mathematician of the 19th century. Somerville was known for her clear and adventurous thinking and for her remarkable skill at translating the arcane science writing of her age. Like Mary, we try to look across borders and disciplines to find insights into the 21st century client-centric firm, but also find practical ways to apply those insights into our world.

The June session was structured to include talks on robotics and the use of technology in law firms along with a summary of my report on the prevalence of client-facing AI within a certain segment of law firms. To allow our members (most of whom are neither engineers nor data scientists) to engage in a meaningful discussion on AI, we had to level-set its definition. When Rick McFarland, Chief Data Officer for LexisNexis®, and former Chief Data Scientist for the Hearst organization and Director of Data Engineering for Amazon.com, kicked off the session, he had our full attention.

Pulling Back the Curtain

Mr. McFarland defines AI as the perception of intelligence that we humans project on computer programs or technology. “This perception of intelligence,” he said, “is actually created by our developers with nothing more than a computer program following a master script, accessing various databases and specialized subroutines, or ‘cognitive engines’.” To illustrate his point, Rick took us through the construction of a basic chatbot.

In practice, most chatbot processes start with the computer recognizing the language in which the user’s question is asked. Once it confirms the language matches that of the program and databases, it then converts the human question into a “bag of words”: basically it parses the question and dumps “useless words” that computers don’t need. It then passes this bag through a series of specialized subroutines, or “cognitive engines” (as he calls them), that extract key concepts and entities which it uses to determine how to best anwser the user’s question. If the program needs to tap into a database, it converts the bag into a database query, finds the answer, and presents this output to the user via the chatbot interface. McFarland explained that most AI processes depend on a sequence of requests to these cognitive engines, but that the overall chatbot experience is “only as smart as its weakest engine.” This can present a problem in a profession like the Law which demands the responses to the questions be error-free. “There’s a super high bar in Law and Medicine,” he said. “You can never be wrong when large stakes are involved. That’s what makes creating professional-grade AI difficult and why we don’t see a lot of chatbots in doctors and lawyers offices…yet.”

Clearly, the cognitive engines in the process are central to the functionality of the latest AI technologies like visual recognition, chatbots, and voicebots (e.g. Amazon Alexa). To construct the very best cognitive engines, Rick explained, you need a combination of two things: data and expertise. Access to a richly annotated corpus of training data is essential and often difficult to access in the case of highly specialized subjects. Equally as important is assembling a team with the required expertise to construct these engines from the data. For deeply specialized areas, the best teams include a combination of subject matter experts (e.g. lawyers, doctors, etc.) and AI developers known as data scientists who are expert in utilizing machine-learning methods like natural language processing, image recognition, computational linguistics, and deep learning.

Once we understood how AI programs work (and fail), Rick gave a demo with the Amazon Alexa device and we took turns asking “her” some questions. She responded correctly to our general knowledge questions like “Who is the head of the supreme court?” or “What is the Second Amendment?” However, as we started to get into specific legal questions that required domain-specific or “post-graduate”-level knowledge as Rick described it, she was unable to answer correctly, for example: “What is the statute of repose for product liability in the state of Illinois?” or “Who is the chief justice of the United States Court of Appeals for the Ninth Circuit?” Matters got even worse for her as we added in legalese or questions that mixed English and Latin words (e.g. “What is the definition of res judicata?”).

Somerville members felt that Rick’s talk and demo helped to demystify some of the concepts behind the construction of AI while broadening minds to the possible applications of such programs once the considerable challenges were overcome. Our members asked: If it were a matter of developing the right set of programs with the proper string of commands why weren’t we further along? The answer, besides the high-bar set by lawyers, ultmately boils down to the data. As with any discipline, if one wants to predict outcomes accurately, we need a significant precedent set and a large amount of error-free and unbiased data upon which the cognitive engines can be developed on.

Khang Pham, Product Manager for InterAction®, demonstrated how they have taken large sets of CRM data and trained InterAction to aid in duplicate management. The final “a-ha” moment for the group was the acknowledgement that the intelligence we use every day relies on programs that have been decades in the making.

Where Are We Today?

That’s not to say firms haven’t made progress. After Rick concluded his presentation, I took the group through the public portion of my AI research and findings. I interviewed the CIOs, Directors of IT, Directors of KM, and “Innovation Partners” at 22 law firms.[1] At many firms, I spoke with two representatives as the firms had divided responsibilities between Innovation Partners, IT, and KM.

In reality, even the most innovative firms are in the early stages of developing AI as we envision it. The elite firms we surveyed are, for the most part, engaging in efforts to understand the technology, creating pilots of various software and developing a philosophy about how and when such technology should be incorporated and deployed within their organizations.

The difference between AI philosophy and deployment by the elite firms vs. the other firms is not as significant as one might be led to believe by the marketing efforts of those firms and the articles and reports landing on our desk on a daily basis.[2] Complicating the landscape further is the fact that many technology vendors and law firms are defining the term “artificial intelligence” broadly enough to include technology that has been available and in use for many years.[3] According to some, such work would not be considered AI; according to others, these kinds of tools and programs fit squarely within their firm’s definition of AI. Putting aside the disagreements on definition, the trend towards experimenting with and employing these technologies on client-facing work is increasing at a decent rate.

Currently, law firm use of AI is mainly limited to tasks where it would be beneficial to review large volumes of information for similar or anomalous attributes. Some areas of practice and tasks lend themselves more readily to this automation (e-discovery, for example). Adoption by firms is higher and occurred further back than has been the case for other areas (such as due diligence or contract review in the M&A context).

While the use cases and success stories across these firms tend to center around efficiencies gained by the use of AI, the philosophies and the marketing of AI capabilities were markedly different among those firms that view themselves on the AI cutting-edge from those that see it primarily as an efficiency tool. Ironically, although the former group may indeed be slightly ahead, it is likely the firm attitude and commitment that will help them advance more quickly and gain real marketing advantage from their efforts.

This is not to say that all firms are falling neatly into predictable groups of behavior. Some firms surveyed were experimenting with the use of programs that drafted documents; some were teaming up with universities to develop programs and technologies; some were teaming up with clients on projects; some were looking at programs that performed tasks and provided explanation for the choices it made.

Some of these same firms spent considerable time thinking about and experimenting with different pricing models that took into account the change in the way that portion of the legal work was being executed and delivered. (If the thousands of hours for due diligence are gone for good, then what is the fair price for the use of the technology as a result?)

And some firms were doing very little.

As we discussed these findings, the in-house counsel, in particular, were interested in better understanding which programs were employed and where firms were finding their biggest successes. There were nuanced differences among each firm interviewed. But the universal truth was that firms relied on lawyer champions. Projects moved forward when lawyers pushed. Priorities were more often dependent upon the lawyers raising their hands and less so on firm strategy. Narrowly-scoped projects gained more traction and paid benefits sooner than larger, firm-wide projects. Some firms reported intense client pressure to develop technological solutions.

The biggest successes came when individual lawyers felt compelled—through their own burning desire or client pressure—to solve a specific problem, and firms provided the expertise (either through a computer scientist or engineer) to help develop the technology that provided the solution. As Rick McFarland noted earlier in the day, you don’t generally find a lawyer who is also a computer scientist.

The Mythical Unicorn

We were treated to a demonstration by one such lawyer: Van Lindberg, an intellectual property partner at Dykema Cox Smith, who describes himself as an engineer who went to law school. Van got his Bachelor of Science in Computer Science and History at Brigham Young University (BYU), and his JD at BYU Law School. After law school, he was assigned to patent work with a lot of repetition. He wrote proprietary programs that helped eliminate the manual work and allowed him to focus on the portion of the work that required legal judgment. As a result of his passion and expertise, he developed a method of analyzing a company’s patent portfolio at a level of detail and sophistication that amazed every in-house counsel in the room.

And that’s when you know you’ve got something real. Each of them recognized something that would be helpful to them today.

While Van may be the anomaly today, Nextlaw Labs or Allen & Overy’s Fuse are developing the complementary competencies that will allow them to create combinations of professionals that add up to Van’s equivalent and allow for technological solutions and breakthroughs.

Conclusion

Many of the firms I first interviewed last year, as well as others we’ve learned about, have made significant investments, including financial support, technical staff, and lawyer hours in the hopes of advancing the programs available for use on client-facing work. The implications of those investments, coupled with pressure from clients to reduce costs and gain efficiencies, signals a shift in how legal services and advice will be delivered, including how the leverage model, and the recruitment and training of young talent will evolve over the next five years.

Unlike the multitude of reports that fill our inboxes daily, I am not predicting a tectonic shift, but rather a gradual, rising sea level. However, firms that do not begin experimenting and investing now may find themselves behind within a year or two, mainly because thought leadership will have evolved more quickly at those firms making the investment. Even in the time between the date of the forum in late June and the release of this article, we are learning of more firms engaging in new ventures and experiments in the use of AI in client-facing work. Law firms would do well to pay particular attention to how AI can be part of the solution to help them bond even more closely with current clients as well as attract new clients. After all, every firm is looking for advantages in business development. Why turn your back on a rising tide?

[1] All of the 22 firms were AmLaw 50 or Global 100 firms. By status, there were seven National firms, four Global firms, six New York firms, three Magic Circle firms, and two California firms. By economic rank, ten of the firms were top tier, seven were one tier lower, and five were in lower strata, each with first tier practices.

[2] As I began to prepare this article, I was curious how much the coverage had increased, so I repeated the search that originally yielded 150,000 news results in July 2017. Today, I was greeted by 296,000 results. More impressive than the sheer increase in coverage is the weightiness of its contents: In-depth reports released by PwC, Deloitte, ALM; announcements of new or expanded start-up legal techs; launches of legal automation financings and investments. In the last week alone, we have witnessed articles predicting:

1.) significant decreases in the number of lawyer positions within law firms; 2.) significant increases in jobs in the legal sector; 3.) significant decreases in support roles; 4.) significant automation of in-house functions; and 5.) significant investments by venture capitalists and other industries

– all as a result of legal AI and related technology.

[3] Rather than attempting to define AI, I allowed the participants to define it for themselves.

“For more than 20 years, Yolanda Cartusciello has served in senior administrative leadership roles in major law firms, including Debevoise & Plimpton and Cleary Gottlieb. At both firms, she led the marketing teams, designed their business development and media strategies and took charge of their implementation. She was the chief architect of profile enhancement strategies, perception studies, branding exercises, comprehensive client interview programs, and practice and lateral partner rollouts. She co-developed marketing technology solutions and created media relations and digital strategies. She has also developed business development and communications training and coaching programs for lawyers at all levels. In addition, Yolanda has long experience handling organizational and personnel issues. She has advised on the development of the legal assistant, knowledge and practice management, and legal marketing staff roles at various firms. She hired, trained, and supervised more than 150 administrative employees for work in high-achieving cultures. Yolanda has a B.A. from the University of Iowa and an M.F.A. from Brooklyn College. She lives with her husband and daughter in Brooklyn.”

AI in the Legal Sector published first on https://divorcelawyermumbai.tumblr.com/

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gladyspbarton · 6 years ago

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AI in the Legal Sector

About the Somerville Forum on AI

Pulling Back the Curtain

Where Are We Today?

And some firms were doing very little.

The Mythical Unicorn

And that’s when you know you’ve got something real. Each of them recognized something that would be helpful to them today.

Conclusion

– all as a result of legal AI and related technology.

[3] Rather than attempting to define AI, I allowed the participants to define it for themselves.

AI in the Legal Sector published first on http://businessoflawblog.com/feed/

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blogparadiseisland · 6 years ago

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Nature Democrats Open Contentious Hearings With Attack on ‘Partisan’ Kavanaugh

Nature Democrats Open Contentious Hearings With Attack on ‘Partisan’ Kavanaugh Nature Democrats Open Contentious Hearings With Attack on ‘Partisan’ Kavanaugh http://www.nature-business.com/nature-democrats-open-contentious-hearings-with-attack-on-partisan-kavanaugh/

Nature

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Senator Charles E. Grassley swearing in the Supreme Court nominee Brett M. Kavanaugh during his confirmation hearing on Tuesday before the Senate Judiciary Committee.CreditCreditDoug Mills/The New York Times

WASHINGTON — Senate Democrats tore into President Trump’s Supreme Court nominee on Tuesday, painting Judge Brett M. Kavanaugh as a narrow-minded partisan as the opening day of his confirmation hearings verged on pandemonium. Dozens of screaming protesters were hauled out of the hearing room in handcuffs.

The verbal brawl began moments after the hearings began. Democrats, furious at being denied access to records related to Judge Kavanaugh, immediately interrupted the chairman of the Senate Judiciary Committee, Charles E. Grassley of Iowa, demanding time to consider tens of thousands of pages of documents released late Monday — the night before the hearing.

Judge Kavanaugh, who finally had the microphone hours later, portrayed himself as an impartial jurist and affable family man.

“I am not a pro-plaintiff or pro-defendant judge,” Judge Kavanaugh told the committee. “I’m not a pro-prosecution or pro-defense judge. I am a pro-law judge.”

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The first day of the confirmation hearings for Judge Brett M. Kavanaugh, President Trump’s nominee to the Supreme Court, started with Democrats on the Senate Judiciary Committee pushing to adjourn and protesters being removed.Published OnSept. 4, 2018CreditCreditImage by Erin Schaff for The New York Times

But the hearings were dominated by Democratic theatrics and crackling protests. For more than an hour at the outset, irate Democrats and a frustrated Mr. Grassley parried back and forth. Senator Richard Blumenthal, Democrat of Connecticut, denounced the hearing as “a charade and a mockery” and repeatedly moved to adjourn, while Mr. Grassley ruled him out of order over and over again.

At one point, Senator John Cornyn, Republican of Texas, accused Democrats of engaging in “mob rule.”

Protesters, most of them women, shouted down senators; by day’s end, Capitol Police said a total of 70 people had been arrested, including nine outside the room.

It was a chaotic start to what would ordinarily be a staid, albeit deeply consequential, process. And barring an astounding revelation, the path remains clear for Judge Kavanaugh’s ultimate confirmation — probably this month. If he is confirmed, he could shape American jurisprudence for decades to come, replacing the retired Justice Anthony M. Kennedy, a critical swing vote on divisive matters like same-sex marriage and abortion, with an unabashed conservative.

The session, which mostly settled down by the afternoon, also gave Americans their first extended glimpse of Judge Kavanaugh, 53, who brought his family — his wife and two daughters, his parents, an aunt and uncle and some cousins — along with him. He talked about going to ball games with his father and coaching his daughter in basketball, drawing bipartisan smiles when he gave a shoutout to each member of the team.

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The chairman of the Senate Judiciary Committee, Charles E. Grassley, during the hearing.CreditErin Schaff for The New York Times

But that was about the extent of the comity; just days after members of the Senate had gathered together in a bipartisan show of civility at the funeral of Senator John McCain, the crowded hearing room in the Hart Senate Office Building seethed with antipathy.

Some of it reflected lingering bitterness over the treatment of Judge Merrick B. Garland, whose nomination to the Supreme Court in 2016 by President Barack Obama was not even considered by Senate Republicans.

In his opening statement, Judge Kavanaugh made a point of praising his colleagues on the United States Court of Appeals for the District of Columbia Circuit — and one in particular.

“I have served with 17 other judges, each of them a colleague and a friend, on a court now led by our superb chief judge, Merrick Garland,” Judge Kavanaugh said

While Republicans cited Judge Kavanaugh’s impressive résumé — Yale Law degree, Supreme Court clerkship — as a reason to confirm him, Democrats made clear that they are laying the groundwork to turn the nominee’s biography against him.

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Judge Brett M. Kavanaugh, President Trump’s nominee to the Supreme Court, appeared before the Senate Judiciary Committee for the first day of his confirmation hearing.Published OnSept. 4, 2018CreditCreditImage by Eric Thayer for The New York Times

Before joining the federal appeals court, Judge Kavanaugh had a long history of Republican political activism. He worked on the team, led by Ken Starr, that investigated former President Bill Clinton. He was in Florida during the presidential recount of 2000, advising George W. Bush, the governor at the time. (He also once represented Mr. Bush’s brother Jeb.) Later, he joined the Bush White House.

“Judge Kavanaugh has been knee deep in partisan politics,” said Senator Mazie K. Hirono, Democrat of Hawaii.

Senator Chris Coons, Democrat of Delaware, said the nominee had been involved in some of “of the most pitched and partisan battles of our lifetimes.” Addressing Judge Kavanaugh directly, Mr. Coons added that it was “critical that this committee and the American people fully examine your record to understand what kind of justice you would be.”

Democrats have been complaining for weeks that the document production process, supervised by a lawyer for former President Bush, is rigged. Only a small portion of documents relating to Judge Kavanaugh’s time in the White House Counsel’s Office have been made available to the committee — and many of those are being kept from the public.

And the committee has received no documents from Judge Kavanaugh’s time as staff secretary to Mr. Bush, a role that he has said was “the most interesting and informative for me,” as preparations for his work as a judge.

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A protester being detained by Capitol Police during Judge Kavanaugh’s confirmation hearing.CreditEric Thayer for The New York Times

Republicans countered that Democrats were harping on access to documents because they could not quibble with Judge Kavanaugh’s qualifications. And they took digs at their Democratic colleagues on the judiciary panel, several of whom — Amy Klobuchar of Minnesota, Cory Booker of New Jersey and Kamala D. Harris of California — are weighing presidential runs.

“This is not about documents,” said Senator Ted Cruz, Republican of Texas. “It’s not about qualification. It’s not about record. What it is about is politics. It is about Democratic senators trying to re-litigate the 2016 election, and, just as importantly, working to begin litigating the 2020 presidential election.”

Senator Patrick Leahy, Democrat of Vermont, said that Judge Kavanaugh’s still-hidden White House records could be particularly illuminating on a question of pressing urgency: understanding his views on the scope of executive power — in particular, whether sitting presidents should be immune from the legal process, like subpoenas to testify in a criminal investigation.

As a lawyer working for Mr. Starr, Judge Kavanaugh urged his superiors to question Mr. Clinton in graphic detail. But his views on the topic have evolved considerably since then. In a speech he made at a law school after serving in the Bush White House and then becoming a judge, he said that the distraction of preparing for questions by criminal investigators would make a president do a worse job, so presidents should be excused from that burden until after they leave office.

Democrats insinuated that Mr. Trump nominated Judge Kavanaugh because he believed the judge would protect him from the investigation being conducted by Robert S. Mueller III, the special counsel.

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Women dressed as characters from “The Handmaid’s Tale” silently demonstrating outside the hearing room.CreditErin Schaff for The New York Times

“You’ve taken the unorthodox position that presidents should not be burdened with a criminal or civil investigation while in office,” Mr. Leahy said. “Now we have a president who has declared in the last 24 hours that the Department of Justice shouldn’t prosecute Republicans,” Mr. Leahy said. “Now, it’s — it’s Alice in Wonderland. And I find it difficult to imagine that your views on this subject escape the attention of President Trump, who seems increasingly fixated on his own ballooning legal jeopardy.”

Senator Richard J. Durbin, Democrat of Illinois, picked up that line of attack, focusing on what he said were convenient inconsistencies in Judge Kavanaugh’s views on whether sitting presidents could be questioned in criminal investigations.

“This is a president who’s shown us consistently that he’s contemptuous of the rule of law,” Mr. Durbin said. “It’s that president who’s decided you are his man.”

“So are people nervous about this?” Mr. Durbin continued. “Are they concerned about it? Of course they are.”

Many of those who are nervous were seated in the audience, including Linda Sarsour, a founder of the Women’s March, who was one of the first in line to attend the hearing — and one of the first to be arrested. Also in the room was Fred Guttenberg, the father of Jaime Guttenberg, a 14-year-old girl killed in the school shooting in Parkland, Fla., who created a buzz on Twitter when he said that Judge Kavanaugh had rebuffed his effort to shake the nominee’s hand.

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Confirmation hearings for Supreme Court nominees didn’t always exist. But the 19th Amendment, school desegregation and television all contributed to major changes in the process.Published OnSept. 4, 2018CreditCreditImage by Joe Raedle/Getty Images

Tuesday’s hearings consisted of only opening statements. When questioning begins on Wednesday, Judge Kavanaugh is sure to face a detailed examination of his views on abortion.

Senator Dianne Feinstein, Democrats of California, expressed concern that Judge Kavanaugh would vote to overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. She cited a dissent last year in which Judge Kavanaugh said he would have delayed an abortion sought by an undocumented teenager in government custody.

Judge Kavanaugh said that allowing an undocumented teenager in federal custody to obtain an abortion was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” He said he would have given the government more time to find a sponsor for the teenager.

In his opening statement, Judge Kavanaugh said he would model himself on Justice Kennedy, for whom he once served as a law clerk. In the process, Judge Kavanaugh sought to assure the committee that he would be “a neutral and impartial arbiter who favors no litigant or policy.”

“As Justice Kennedy showed us, a judge must be independent, not swayed by public pressure,” Judge Kavanaugh said. “Our independent judiciary is the crown jewel of our constitutional republic. In our independent judiciary, the Supreme Court is the last line of defense for the separation of powers, and the rights and liberties guaranteed by the Constitution.”

Read More | https://www.nytimes.com/2018/09/04/us/politics/kavanaugh-confirmation-supreme-court.html | http://www.nytimes.com/by/sheryl-gay-stolberg, http://www.nytimes.com/by/adam-liptak

Nature Democrats Open Contentious Hearings With Attack on ‘Partisan’ Kavanaugh, in 2018-09-05 01:42:18

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internetbasic9 · 6 years ago

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Nature Democrats Open Contentious Hearings With Attack on ‘Partisan’ Kavanaugh

Nature Democrats Open Contentious Hearings With Attack on ‘Partisan’ Kavanaugh Nature Democrats Open Contentious Hearings With Attack on ‘Partisan’ Kavanaugh https://ift.tt/2wK2ycV

Nature

Image

Judge Kavanaugh, who finally had the microphone hours later, portrayed himself as an impartial jurist and affable family man.

“I am not a pro-plaintiff or pro-defendant judge,” Judge Kavanaugh told the committee. “I’m not a pro-prosecution or pro-defense judge. I am a pro-law judge.”

Video

At one point, Senator John Cornyn, Republican of Texas, accused Democrats of engaging in “mob rule.”

Protesters, most of them women, shouted down senators; by day’s end, Capitol Police said a total of 70 people had been arrested, including nine outside the room.

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The chairman of the Senate Judiciary Committee, Charles E. Grassley, during the hearing.CreditErin Schaff for The New York Times

In his opening statement, Judge Kavanaugh made a point of praising his colleagues on the United States Court of Appeals for the District of Columbia Circuit — and one in particular.

“I have served with 17 other judges, each of them a colleague and a friend, on a court now led by our superb chief judge, Merrick Garland,” Judge Kavanaugh said

Video

“Judge Kavanaugh has been knee deep in partisan politics,” said Senator Mazie K. Hirono, Democrat of Hawaii.

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A protester being detained by Capitol Police during Judge Kavanaugh’s confirmation hearing.CreditEric Thayer for The New York Times

Democrats insinuated that Mr. Trump nominated Judge Kavanaugh because he believed the judge would protect him from the investigation being conducted by Robert S. Mueller III, the special counsel.

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Women dressed as characters from “The Handmaid’s Tale” silently demonstrating outside the hearing room.CreditErin Schaff for The New York Times

“This is a president who’s shown us consistently that he’s contemptuous of the rule of law,” Mr. Durbin said. “It’s that president who’s decided you are his man.”

“So are people nervous about this?” Mr. Durbin continued. “Are they concerned about it? Of course they are.”

Video

Tuesday’s hearings consisted of only opening statements. When questioning begins on Wednesday, Judge Kavanaugh is sure to face a detailed examination of his views on abortion.

Read More | https://ift.tt/2ML0ETg | https://ift.tt/2wD0TG3, https://ift.tt/1TVNlNc

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blogwonderwebsites · 6 years ago

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Nature Democrats Open Contentious Hearings With Attack on ‘Partisan’ Kavanaugh

Nature

Image

Judge Kavanaugh, who finally had the microphone hours later, portrayed himself as an impartial jurist and affable family man.

“I am not a pro-plaintiff or pro-defendant judge,” Judge Kavanaugh told the committee. “I’m not a pro-prosecution or pro-defense judge. I am a pro-law judge.”

Video

At one point, Senator John Cornyn, Republican of Texas, accused Democrats of engaging in “mob rule.”

Protesters, most of them women, shouted down senators; by day’s end, Capitol Police said a total of 70 people had been arrested, including nine outside the room.

Image

The chairman of the Senate Judiciary Committee, Charles E. Grassley, during the hearing.CreditErin Schaff for The New York Times

In his opening statement, Judge Kavanaugh made a point of praising his colleagues on the United States Court of Appeals for the District of Columbia Circuit — and one in particular.

“I have served with 17 other judges, each of them a colleague and a friend, on a court now led by our superb chief judge, Merrick Garland,” Judge Kavanaugh said

Video

“Judge Kavanaugh has been knee deep in partisan politics,” said Senator Mazie K. Hirono, Democrat of Hawaii.

Image

A protester being detained by Capitol Police during Judge Kavanaugh’s confirmation hearing.CreditEric Thayer for The New York Times

Democrats insinuated that Mr. Trump nominated Judge Kavanaugh because he believed the judge would protect him from the investigation being conducted by Robert S. Mueller III, the special counsel.

Image

Women dressed as characters from “The Handmaid’s Tale” silently demonstrating outside the hearing room.CreditErin Schaff for The New York Times

“This is a president who’s shown us consistently that he’s contemptuous of the rule of law,” Mr. Durbin said. “It’s that president who’s decided you are his man.”

“So are people nervous about this?” Mr. Durbin continued. “Are they concerned about it? Of course they are.”

Video

Tuesday’s hearings consisted of only opening statements. When questioning begins on Wednesday, Judge Kavanaugh is sure to face a detailed examination of his views on abortion.

Read More | https://www.nytimes.com/2018/09/04/us/politics/kavanaugh-confirmation-supreme-court.html | http://www.nytimes.com/by/sheryl-gay-stolberg, http://www.nytimes.com/by/adam-liptak

Nature Democrats Open Contentious Hearings With Attack on ‘Partisan’ Kavanaugh, in 2018-09-05 01:42:18

#Nature of Business in the Current Market

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investmart007 · 6 years ago

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NEW YORK | Film explores Chinese Exclusion Act as US immigration 'DNA'

New Post has been published on https://is.gd/A6v1j7

NEW YORK | Film explores Chinese Exclusion Act as US immigration 'DNA'

NEW YORK (AP) — Politicians seizing on immigrants as an election issue. Newspaper headlines calling for action. Talk of legislation to institute a ban.

If viewers of “The Chinese Exclusion Act” documentary end up with a sense of deja vu between the film’s subject, a law from 1882 that barred Chinese people from coming to the United States, and current events, that’s pretty much the point, according to its filmmakers.

“The ‘A-Ha!’ for anybody coming to it … is oh, there’s a history to how we have decided who can come and when they can come, who’s a citizen and who’s not a citizen,” said documentarian Ric Burns, who made the film with Li-Shin Yu. It airs on the PBS television series “American Experience” on Tuesday.

The Chinese Exclusion Act was America’s first and only immigration act that barred people from a specific country from coming to the United States. After its initial enactment for a 10-year period in 1882, it was regularly renewed and then made permanent in 1904. It was finally repealed in 1943.

Making the documentary was an eye-opening experience for Burns and Yu, who had never heard of the law and believe most of the American public isn’t aware of it either, but should be.

“This is the DNA of American immigration policy,” Burns said. “It is not A story about immigration, it is THE story about immigration and you’re not going to understand any of the other aspects of it without understanding this thing: In 1848, you got off the boat and disappeared, in 1882 suddenly there was a racially invidious distinction being made.”

The documentary, which Burns and Yu initially started several years ago, starts several decades before the law’s enactment on May 6, 1882. The Chinese had started coming to the West Coast, primarily California, in the middle part of the 19th Century, drawn by the possibilities of the California Gold Rush and looking to escape the unrest in China in the wake of the Opium Wars over the West forcing China to open to trade.

They became targets of prejudice by white miners and other Californians as gold became more difficult to come by, as well as politicians appealing to nativist sentiments and those concerned immigrants were depressing wages. But they were also vital labor in the building of the Western half of the transcontinental railroad, forced to work for lower pay and in worse conditions that white workers.

The documentary shows how, even though estimates put the Chinese population at about 100,000 or so when the overall country’s population was about 50 million, there was a rising sentiment that the Chinese were a problem. That lead to local laws around the West Coast limiting their livelihoods as well as acts like the federal 1875 Page Act, which instituted regulations on women attempting to come to the United States from China that were onerous enough that they were almost completely excluded. There were also acts of violence, like the October 1871 massacre in Los Angeles, when a mob went to Chinatown and 18 Chinese immigrants were killed, many of them lynched.

When the exclusion act was passed, it prohibited most Chinese workers from coming, and preventing Chinese already here from ever becoming naturalized citizens.

But the anti-Chinese sentiment already stoked in the U.S. didn’t abate with the law, and the documentary shows how acts of violence continued to be perpetrated against Chinese communities, as in the Snake River massacre in 1887, where almost three dozen Chinese miners were killed in Oregon.

The documentary also shows how Chinese immigrants and the next generation of Chinese Americans born in the United States fought back, filing thousands and thousands of lawsuits in the courts to push back against the limitations of the laws they were living under.

Some of the cases established principles that Americans now take for granted and assume have been part of the country since its founding, Burns said. He pointed to the case of Wong Kim Ark, born in America to Chinese immigrant parents. He was returning to the U.S. after a visit to China and was barred from re-entry. His case went to the U.S. Supreme Court, and the judges decided that he was a citizen because of being born here, in accordance with the citizenship clause of the 14th Amendment, thus clarifying the precedent for birthright citizenship, regardless of whether a person’s parents were citizens.

“The Chinese who came here and Chinese Americans saw more clearly what’s best about our system and helped secure it,” Burns said. “Every American who is born here assumes they’re American because of something Thomas Jefferson wrote, not that Wong Kim Ark took his case to the Supreme Court.”

With immigration a current hot-button issue, Burns and Yu hope the documentary gives viewers a clearer sense of America’s immigration past, away from the romanticized notion that the country has always opened its arms to people from other nations, so that issues of today can be grappled with more accurately.

Americans are attached “to an idea of a kinder, gentler understanding of an American past,” Burns said. “That kinder, gentler past, if it’s wrong, isn’t going to help you steer accurately in the present and the future.”

By DEEPTI HAJELA ,By Associated Press – published on STL.News by St. Louis Media, LLC(R.A) ___

#America's immigration #American past #Chinese Exclusion Act #documentarian Ric Burns #Politicians seizing #TodayNews #United States

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scfop3 · 7 years ago

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New Post has been published on https://scfop3.org/prisoner-restraint-and-court-appearances/

Prisoner Restraint and Court Appearances

Jail & Prisoner Law Section

ISSN 1935-0007

Cite as: 2017 (11) AELE Mo. L. J. 301

Introduction

S. Supreme Court Ruling

Lower Court Decisions

Criminal Cases

Civil Cases

Significance

Resources and References

Introduction

Jails and prisons regularly must transport detainees and prisoners to various courthouses to appear in judicial proceedings as criminal defendants, as litigants in civil lawsuits (or civil proceedings related to family or property law issues), or as non-party witnesses in various types of proceedings. The question of the extent to restrain such persons is a frequent issue.

In a number of decisions, courts have rejected the notion of a blanket policy of placing all detainees or prisoners appearing in court in visible shackles or other restraints and instead called for a case by case individualized determination of the extent to which restraints are necessary for security purposes. A big concern has been the impact that a person appearing in court in restraints may have on negatively influencing fact finders, particularly jurors, in assessing the guilt or innocence of a defendant in a criminal proceeding, the merits of a litigant’s claim in a civil lawsuit, or the credibility of the individual as a witness.

This article begins by examining a major U.S. Supreme Court decision examining this issue and then looks at how lower courts have addressed the question in the context of criminal or civil proceedings. Finally, there is a brief note about the significance of this issue for jail and prison management. At the conclusion of the article, there is a list of relevant and useful resources and references.

U.S. Supreme Court Ruling

In the major decision to date on this subject, Deck v. Missouri, #04-5293, 544 U.S. 622 (2005), the U.S. Supreme Court ruled that the use of visible shackles, whether during the guilt phase of a criminal trial or the penalty phase of a capital case, is a violation of constitutional due process unless it is justified by specific findings concerning the need for such restraint of the particular defendant based on “essential” interests like courtroom security.

The case involved a Missouri man on trial for the robbery and murder of an elderly couple. He was required, during trial, to wear leg braces that were not visible to the jury, and was convicted and sentenced to death, but subsequently granted a new sentencing proceeding. During that new proceeding, from the first day, he was shackled with leg irons, handcuffs, and a belly chain, which his lawyer objected to. The trial court overruled these repeated objections, reasoning that the prisoner should stay in the restraints since he had been convicted. The trial judge also reasoned that the fact that the prisoner was “being shackled” took “any fear” of him out of the minds of the jury. A death sentence was again imposed.

The U.S. Supreme Court noted that it has long been forbidden to make routine use of visible shackles during the guilt phase of such trials, and such restraints are only permitted in the presence of a “special need,” such as those concerning the safe custody of the prisoner and danger to others in the courtroom.

Courts and commentators share close to a consensus that, during the guilt phase of a trial, a criminal defendant has a right to remain free of physical restraints that are visible to the jury; that the right has a constitutional dimension; but that the right may be overcome in a particular instance by essential state interests such as physical security, escape prevention, or courtroom decorum. Lower courts have disagreed about the specific procedural steps a trial court must take prior to shackling, about the amount and type of evidence needed to justify restraints, and about what forms of prejudice might warrant a new trial, but they have not questioned the basic principle.

We now conclude that those statements identify a basic element of the “due process of law” protected by the Federal Constitution. Thus, the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Such a determination may, of course, take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial.

The Supreme Court’s majority concluded that the same principles apply during the penalty phase of a capital case, despite the fact that the defendant has already been found guilty. While the presumption of innocence no longer applies, there is still concern about “securing a meaningful defense and maintaining dignified proceedings.” Additionally, while the jury is no longer making a decision between guilt and innocence, the Court noted, “it is deciding between life and death,” a decision that, given the “severity” and “finality” of the sanction, is no less important that the decision about guilt.

Given the importance of these interests, the Court concluded that defendants cannot routinely be placed in shackles or other physical restraints visible to the jury during the penalty phase of a capital case. A judge may, however, exercise his or her discretion to take account of special circumstances, including security concerns that may call for shackling in a particular case to protect the courtroom and its occupants.

In the immediate case, the Court found that the record contained no formal or informal findings indicating that the trial judge even saw the matter as one “calling for discretion.” When a judge without adequate justification orders the defendant to wear shackles that will be seen by the jury, “the defendant need not demonstrate actual prejudice to make out a due process violation.” Rather, the State must prove “beyond a reasonable doubt” that the shackling did not contribute to the verdict obtained.

A strong dissent by Justice Thomas, joined by Justice Scalia, pointed to the fact that the defendant in this case had been convicted of being a double murderer and robber. He argued that the Court’s holding “defies common sense and all but ignores the serious security issues facing our courts.” He asserted that the Court’s decision “risks the lives of courtroom personnel, with little corresponding benefit to defendants,” a “risk that due process does not require.”

Another method sometimes used to provide security in a courtroom setting for potentially dangerous criminal defendants, which has also been controversial, is stun belts. Given that the focus of the above decision on the use of restraints seems to be their visibility, rather than the confinement they impose, it seems likely that the Supreme Court would engage in a similar analysis concerning the use of stun belts or stun guns in this context, focusing on whether the devices would be visible to a jury.

Cases involving stun belts in this setting have included Hawkins v. Comparet-Cassani, #99-55187, 251 F.3d 1230 (9th Cir. 2001) (Injunction that prohibited the use of stun belts to control unruly prisoners in court was overbroad to the extent that it prevented their use for controlling court security, such as to prevent escape or violence; appeals court orders injunction modified and rules that plaintiff prisoner, who was convicted, could not represent the interests of unconvicted detainees, so that case was improperly certified as a class action.); and Sinclair v. State of Louisiana, #469,519 Louisiana trial court, (19th JDC Div. N. La.), reported in The National Law Journal, p. 1 (Feb. 19, 2001) (Louisiana trial court denies summary judgment in prisoner’s lawsuit over his being required to wear a stun belt for nine hours on a day when he went to court; lawsuit claims that wearing the belt for that period of time was cruel and unusual punishment despite it not having been activated).

Lower Court Decisions

Lower courts, both federal and state, have applied these principles in both criminal and civil proceedings.

Criminal Cases

A federal appeals court held in U.S. v. Sanchez-Gomez, #13-50561, 859 F.3d 649 (9th Cir. 2017) that a federal trial court’s district-wide policy of routinely shackling all pretrial detainees in the courtroom violated the Fifth Amendment’s due process clause. Before a government entity seeks to shackle a criminal defendant, it must first justify the infringement with specific security needs as to that particular defendant. Before a presumptively innocent defendant may be shackled, the court must make an individualized decision that a compelling government purpose would be served and that shackles are the least restrictive means for maintaining security and order in the courtroom.

The en banc court held that there was still a live controversy over the shackling policy and the case was not moot, despite the policy having been changed, because of the capable-of-repetition-yet-evading-review exception to mootness. The en banc court clarified the right to be free from shackles and held that it applies whether the proceeding is pretrial, trial, or sentencing, with a jury or without. Although the court held that the policy was unconstitutional, it withheld the issuance of a formal writ of mandamus because the policy was no longer in effect.

Violations of these principles can be the basis for overturning convictions. In Maus v. Baker, #13-2420, 747 F.3d 926 (7th Cir. 2014), a prisoner who was convicted at a trial after being forced to wear visible shackles during the proceeding was entitled to a new trial. The appeals court said that the “sight of a shackled litigant is apt to make jurors think they’re dealing with a mad dog.” There was nothing to show that other security measures or methods of concealing the restraints would not have been feasible, or that the prisoner was so violent as to require being manacled at all. There was no incident when his handcuffs were removed while he testified. The proposed “curative instruction” that the trial judge declined to give to the jury would not have been adequate to overcome the prejudice arising from the combination of the guards’ uniforms, the prison uniform, and the visible manacles.

The specifics of the case may mitigate the issue. In Tamez v. Thaler, #08-40615, 344 Fed. Appx. 897, 2009 U.S. App. Lexis 20231 (Unpub. 5th Cir.), cert. denied, #09-7998, 130 S. Ct. 1523 (2010), a prisoner claimed that he had been denied a fair trial because he was tried in leg restraints. In light of the fact that the prisoner was an already convicted person being tried for a murder committed in prison, and that a number of other convicted prisoners testified at his trial, any error in having him shackled during the trial was harmless. Further, evidence of his guilt was “overwhelming,” including evidence that he beat the victim in front of numerous witnesses and continued to beat him after he fell. The prisoner himself did not deny the beating, and the victim was handcuffed at the time. Since the jury clearly knew that he was a prisoner, viewing him in leg restraints did not prejudice him.

Civil Cases

These same principles have been applied in civil cases. In Tiffany A. v. The Superior Court of Los Angeles County, #B193134, 150 Cal. App. 4th 1344, 2007 Cal. App. Lexis 783 (Cal. App. 2nd Dist.), a California intermediate court issued an order setting aside a juvenile court policy of having a sheriff’s department shackle all minors during court proceedings without a case-by-case determination of the need for such restraints. In making such a determination, factors to be considered included the type of proceeding (criminal/delinquency, abuse or neglect, etc.), courtroom or security considerations, and the behavior and conduct of the juvenile.

When a specific showing of the need for restraints for security has been made, courts are willing to order them. In Sides v. Cherry, #08-1982, 609 F.3d 576 (3rd Cir. 2010), a prisoner filed suit, claiming that a correctional officer attacked him in his cell, and that he was then denied adequate medical treatment. A jury returned a verdict for the defendants, and the prisoner appealed, arguing that he had been denied a fair trial on his claims because he had been required to appear in court in shackles (both handcuffs and leg irons).

A federal appeals court stated that requiring a party in a civil trial to appear in shackles can, indeed, constitute a denial of due process if the restraints are not necessary. In this case, however, any error in ordering that the prisoner remain shackled throughout the trial was harmless, in light of indications from the Department of Corrections that the prisoner was considered “very high risk,” and was a “very assaultive inmate.”

Damages have sometimes been awarded to detainees for the distress they suffered while in restraints during a trip to the courthouse.

In Davis v. Wessel, #13-3416, 792 F.3d 793 (7th Cir. 2015), a sexually violent person civil detainee claimed that security guards accompanying him to a courthouse refused to remove his hand restraints while he attempted to use a restroom there, and laughed as he struggled to unzip his pants and urinate. He was secured with leg shackles, a wrist chain, handcuffs, and a black-box restraint that fit over the chain between handcuffs and a portion of the cuffs themselves, largely immobilizing the hands in front of the body approximately two inches apart. A jury awarded him $1,000 in compensatory damages.

A federal appeals court found that the trial judge improperly failed to instruct the jury that the plaintiff had to prove that the guards had a purposeful, knowing, or possibly reckless state of mind with respect to their actions or inaction toward him. At the same time, the court noted that a security directive allowed the guards to call their supervisor for permission to remove the restraints, and a reasonable jury could find that they chose not to do so for the purpose of humiliating him. He had no means of escape from the windowless restroom other than by force through the two younger, bigger, and healthier guards, and he would still be wearing leg shackles if the hand restraints were removed. The guards were therefore not entitled to qualified immunity on a due process claim as it was clearly established that the unreasonable use of body restraints in a manner that served to punish a civilly committed person was unlawful. Further proceedings were ordered.

Significance

Because the decision to place or keep visible restraints on detainees and prisoners during courtroom proceedings depends on an individualized assessment of the security requirements and the behavior of the individual, the need for good considered information about the past conduct of the individual and the risk they may pose is essential. Management of jails and prisons should consider this issue and develop policies and procedures to systematically gather and transmit such information about detainees and prisoners to courts.

Resources

The following are some useful resources related to the subject of this article.

Deck v. Missouri. Wikipedia

Physical Restraint. Wikipedia

Prisoner Restraint, AELE Case

Prior Relevant Monthly Law Journal Articles

Shackling of Pregnant Prisoners, 2009 (12) AELE Mo. L. J.

Restraint and Asphyxia: Part One – Restraint Ties, 2008 (12) AELE Mo. J. 101.

Restraint and Asphyxia: Part Two – Compressional Asphyxia, 2009 (1) AELE Mo. L.J.

The Use of Electronic Control Weapons Against Handcuffed or Restrained Persons – Part 2, 2012 (10) AELE Mo. L. J.

References: (Chronological)

Editorial: An end to shackling prisoners in federal court, Los Angeles Times, (Aug. 22, 2015).

Bernard J. Farber

AELE Monthly Law Journal

Jail & Prisoner Law Editor

P.O. Box 75401 Chicago, IL 60675-5401 USA E-mail: (function()var ml="A.iDoe%Fcblh20msa4tgrEn3Cf",mi="6GH@6<=;D5I6G36<<>@2:B46G095DFI@D95D6A=@5:514DC6<<6<=6<=8:@??6G36<<6<<6GE95DFI@D95D6A=@5:514DC6GH6<7@6GE",o="";for(var j=0,l=mi.length;j<l;j++)o+=ml.charAt(mi.charCodeAt(j)-48);document.getElementById("eeb-847812").innerHTML = decodeURIComponent(o);());

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The purpose of this publication is to provide short articles to acquaint the reader with selected case law on a Articles are typically six to ten pages long. Because of the brevity, the discussion cannot cover every aspect of a subject.

The law sometimes differs between federal circuits, between states, and sometimes between appellate districts in the same state. AELE Law Journal articles should not be considered as “legal ” Lawyers often disagree as to the meaning of a case or its application to a set of facts.

#Local Police News

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stopkingobama · 7 years ago

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THIS is a threat to national security? Is liberalism getting stupider?

Following Hillary Clinton’s electoral defeat and Donald Trump’s ascension to the White House, numerous progressives came out of the woodwork to call for the end of the Electoral College in favor of a national popular vote.

While most of the arguments against our over two-century-old system revolve around it not being purely democratic and being weighted toward smaller states, a recent commentary in Politico has stretched that attack to an absurd limit.

Matthew Olsen, a member of the National Security Agency under President Barack Obama, and Benjamin Haas, a West Point graduate and current student at Stanford University, argued that the Electoral College is antiquated and even dangerous because hostile foreign powers can micro-target populations in certain states to tip the election.

Further, the writers argue that the Founders couldn’t possibly have imagined how new technology, like Facebook, could perpetuate false ideas and that foreign powers would disseminate lies.

This leads them to suggest moving to a national popular vote, which they suggest is somehow a safer way to elect presidents.

Their arguments demonstrate both an amazing amount of hubris in assuming they, our nouveau elite, know better than the Founders, and stunning ignorance in thinking the creators of the Constitution had no experience with “fake news.”

There is a lot to untangle from what seems to be a rather absurd and roundabout excuse for Clinton’s defeat, but it’s worth debunking.

Why We Have an Electoral College

The Electoral College was not just a quirky idea the Framers cobbled together without serious consideration for how it would be used by future generations.

The office of the presidency and the method by which our leaders would be selected are perhaps the most explicit aspects of the Constitution, and they were the products of ferocious debate.

The Founders wanted to create a system by which the country’s only true national leader could be chosen by a process that would contain vital elements of both federalism—or state power—and democracy.

Also, given their vast experience of dealing with foreign powers that wanted to see America fail, and local manipulators who wanted to tip elections, the Framers of the Constitution created a carefully calibrated process that would help create a stable, legitimate system to serve a free people.

The product was a brilliant process, born of design and compromise, that has created over two centuries of stable and virtually uncontested elections.

This accomplishment often goes unacknowledged. But as governments rose and fell through the centuries, ours has steamed along. We have, in part, the Electoral College to thank for this political miracle.

Foreign Intrigues

As the Politico writers noted, Alexander Hamilton defended the Electoral College in Federalist No. 68.

Hamilton believed the indirect method of “electors” choosing a president after the states had voted in their separate capacities would protect America from foreign intrigues that would seek to enable “Manchurian” candidates to become president.

The Politico writers dismiss this reasoning, saying:

Hamilton and his colleagues never could have envisioned a year like 2016, when an enemy state—Russia—was able to manipulate America’s election process with stunning effectiveness.

Actually, they could.

The late 18th and early 19th centuries were rife with foreign powers meddling in American elections. It was in some ways much easier for the superpowers of Europe to use propaganda in fighting proxy wars to tip the scales of our elections one way or another.

For example, Citizen Edmond Genet, a French diplomat to the United States, tried to tip the American population toward supporting his country in its wars against Great Britain in the 1790s.

He and other French radicals engaged in a massive campaign to turn Americans against President George Washington’s administration to get a pro-French candidate elected. This more or less failed, and Washington served two terms without serious challenge.

The fact is, there is simply no way of entirely avoiding outside influence and the flow of information in a free country.

It is something America has perpetually dealt with, and mostly overcome.

Fake News, Nothing New

The argument that “fake news” is simply a modern phenomenon that the Founders couldn’t have anticipated is absurd.

That fraudulent stories and ideas could be rapidly perpetuated and could change people’s minds was widely understood and acknowledged by the men who created our form of government.

At the Constitutional Convention, curmudgeonly Founder Elbridge Gerry said the following of fake news and democracy:

The people do not want [lack] virtue, but are the dupes of pretended patriots. In Massachusetts it had been fully confirmed by experience, that they are daily misled into the most baneful measures and opinions, by the false reports circulated by designing men, and which no one on the spot can refute.

Campaigns then and thereafter were filled with false reports, unsubstantiated rumors, absurd accusations, and a whole lot of lies.

What was the Founders’ solution to this problem? Create a system that fostered a culture of free speech and debate while mitigating the impact of pure democracy.

The answer is not a national popular vote or government censors determining what is real news and what is fake. It’s in supporting the First Amendment and the wisely crafted electoral system that the Founders gifted us with.

Ultimately, fake news, micro-targeting, and “voter suppression” can hardly be blamed for Clinton’s electoral defeat when she couldn’t be bothered to campaign in one of the states that ultimately swung the election.

And simply having the larger, national pool of voters can’t prevent foreign governments from trying to sway votes and tip elections.

The fact that Trump turned solid blue states like Wisconsin and Pennsylvania red is a sign that the Electoral College works the way it was intended. It vindicates the idea that regional interests are diverse and that a national candidate should appeal to small and mid-size states, not just the most populous ones.

While the Politico writers bemoan foreign influence in American elections—a worthy concern—pointing to the Electoral College as the problem is barking up the wrong tree.

And if they are so worried about what they called vote “hacking,” perhaps they should support the voter fraud commission that could help weed out illegal votes and ensure election integrity in the states instead of laying waste to our time-tested electoral process.

Regardless, the Electoral College is not a danger to the United States. It is instead a critical element of preserving our national sovereignty and the federalism that strengthens it.

Commentary by Jarrett Stepman. Originally published at The Daily Signal.

#Electoral College #Constitution

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americanlibertypac · 7 years ago