The University of Chicago Law School Faculty Blog

Torture and Reliance on Official Misstatements of Law

Yesterday, while releasing new “torture memos,” President Obama made a statement that many interpret as categorically disclaiming any future prosecutions of CIA personnel for torture. I don’t know what Obama’s intentions are, but it is worth paying attention to what he actually said: “[I]t is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” This statement is quite similar to one Eric Holder made in writing during his confirmation hearings in January (in response to a question from a Republican Senator): "It is, and should be, exceedingly difficult to prosecute those who carry out policies in a reasonable and good faith belief that they are lawful based on assurances from the Department of Justice itself."

Herring and the Exclusionary Rule

On Wednesday, the Supreme Court announced the decision in Herring v. United States, a case I discussed on the blog in October. The 5-4 majority opinion (you can guess the votes) expands the good faith exception to the Fourth Amendment exclusionary rule in precisely the way that I said may prove transformative.

The facts involve a record-keeping error. A police officer arrested Herring after a police warrant clerk told the officer that there was an outstanding warrant for Herring’s arrest. In a search incident to the arrest, the officer found an illegal handgun and drugs. Unfortunately, the clerk was mistaken. The court that issued the warrant (for a failure to appear) had recalled it five months earlier, but no one had bothered to update the warrant database. There being no warrant and no probable cause for Herring’s arrest, the lower courts find it plainly illegal. But those courts avoid excluding the illegally obtained evidence by extending an earlier Supreme Court decision, Arizona v. Evans, that allowed the good faith exception when clerical personnel of a court made a similar data entry mistake.

In October, I noted that this seemingly narrow distinction in the source of the error – court clerk vs. police clerk – could be significant. Every other good faith exception to the exclusionary rule has involved an error made by judicial or legislative personnel. If the exception also applies to mistakes the police made themselves, then there will be a potential good faith issue in every case of a Fourth Amendment violation.

Audio: Richard McAdams on the Fourth Amendment

You may have noticed that it's been awfully quiet around here; It's the calm before the storm at the Law School as we prepare for classes to start on Monday. If you're looking to fill the hours between now and then, have a listen to the first Faculty Podcast of the new year. Recorded on October 6 of last year as part of the Law School's annual First Monday series, Bernard D. Meltzer Professor of Law Richard McAdams gave a talk entitled "The Fourth Amendment in Transition?"

Wither the Exclusionary Rule?

On October 7, the Supreme Court heard argument on a significant Fourth Amendment issue –- application of the good faith exception to the exclusionary rule –- that could lead to a dramatic contraction in the primary remedy for Fourth Amendment violations. The case is Herring v. United States. A police officer arrested Herring after a police warrant clerk told the officer that there was an outstanding arrest warrant for him. In a search incident to the arrest, the officer found an illegal handgun and drugs. Unfortunately, the clerk was mistaken. The court that issued the warrant (for a failure to appear) had recalled it five months earlier. There being no warrant nor any probable cause for Herring’s arrest, it was plainly illegal.

The normal remedy would be to exclude the evidence found as a consequence of the illegal arrest. But the prosecutor convinced the lower courts to instead extend the good faith exception to the exclusionary rule.

Equality and Establishment: Reply to Nussbaum

I thank Martha Nussbaum for her gracious response to my post a few days ago. Here I offer a brief reply.

As to my first hypothetical -– rotating school prayers -– I agree with Prof. Nussbaum but I think the argument she makes is less about equality than liberty. I think it is right to worry that the proposal would involve coercion of schoolchildren and therefore violate liberty of conscience. But my point is that the coercion could be made to occur, more or less, on an equal basis. That the practice remains objectionable shows, I think, that there is more going on to the Establishment Clause than a respect for equality, i.e., that liberty plays at least an independently important role. Perhaps I misread Nussbaum in saying otherwise, but the point of my original post is to say that a pure equality theory leads to more unconventional doctrine.

On Nussbaum's Equality Theory of the Establishment Clause

In her work presented at Monday’s Law & Philosophy Workshop, Martha Nussbaum interestingly ties the religion clauses to a concern for equality – to the need for the state to treat its citizens with equal respect. For the Establishment Clause, this means that separation of church and state is not an end, but only one possible means of achieving the end of equality. I find this approach intriguing, but I think the doctrinal implications are even bolder and more unconventional than Prof. Nussbaum acknowledges. Though she observes that equality requires less separation than does some Supreme Court precedent, she generally finds the equality rationale to support the existing doctrinal requirements for the separation of church and state. I am not so sure. Consider two examples.

First, if a public school principal rotates through a variety of public prayers and secular statements (the latter including but not limited to statements of agnostic skepticism or atheistic certitude), should we not conclude that this rotation pays equal respect to all citizens of the school? (Alex Kolod notes in her blog entry that I asked this question in the Law & Philosophy workshop). Think of this proposal as like the old “fairness doctrine”: public schools are permitted to have official prayers, but if they do, they must give “equal time” (or possibly proportionate time) to each religious tradition as well as to those traditions rejecting religious belief. It also partly corresponds to the rotation of prayers in the United States Congress (though I believe they exclude agnostic or atheistic statements). The counter-example of the high school graduation prayer shows that the rotation idea might not work for every occasion, but it would still be a marked departure from doctrine if the concern for equality led to permitting a centralized daily prayer (say, over the intercom) in public school classes.

Conference: "Torture, Law, and War"

On February 29 and March 1, the Law School hosted an extraordinary conference devoted to the topic “Torture, Law, and War: What are the moral and legal boundaries on the use of coercion in interrogation?” The conference, which was sponsored by the Law and Philosophy Workshop with assistance from the Center for Comparative Constitutionalism, showcased the interdisciplinarity for which a Chicago legal education is renowned. Participants looked at the central question from the perspective of a wide range of fields, from law and public policy to psychology and history. Speakers included scholars from a dozen universities as well as the Law School's own Adam Samaha, Susan Bandes, Richard McAdams, Martha Nussbaum, Geoffrey Stone, Scott Anderson, and Eric Posner.

The conference keynote speaker was Justice Albie Sachs of the Constitutional Court of South Africa (pictured above). His talk, “Four tales of terrorism,” gave a first-hand account of his own torture by South African security forces and his brush with death when they attempted to assassinate him with a car bomb. It also described the principles behind the rejection of torture and capital punishment by the ANC, both before and after coming to power in South Africa. His talk discussed at some length four instances of terrorism, and the responses that courts and political leaders in South Africa made to them. Through these, he argued for the importance of adhering to the rule of law, including a refusal to resort to capital punishment, and also for the possibility of reconciliation with those who have previously used torture and terrorism against oneself and one’s own side in political struggles.

Audio and video of the keynote address, along with the  other panels of the conference, are now available on the conference web page.

McAdams on the Economic Costs of Inequality

Richard McAdams recently posted a short paper to SSRN entitled "Economic Costs of Inequality" The abstract is below and the full paper is available here.

Economic Costs of Inequality

RICHARD H. MCADAMS
University of Chicago Law School November 2007
U of Chicago Law & Economics, Olin Working Paper No. 370
U of Chicago, Public Law Working Paper No. 189

Abstract:    
This brief chapter surveys some of the economic literature concerning the instrumental costs of material inequality. Economic theory predicts, and econometric evidence finds, that inequality increases crime and political corruption and, in certain circumstances, constrains growth.

McAdams on "Reforming Entrapment Doctrine in United States v. Hollingsworth"

Should a person willing to offend be able to raise an entrapment defense because he is not actually capable of offending? In a paper recently added to SSRN (see the abstract below), Professor McAdams examines this issue decided a few years ago in a closely divided en banc opinion by the Seventh Circuit, in which Chief Judge Posner wrote the majority opinion deciding in favor of the defendants and Judge Easterbrook wrote one of the dissents.

Reforming Entrapment Doctrine in United States v. Hollingsworth

RICHARD H. MCADAMS
University of Chicago Law School
University of Chicago Law Review, Vol. 74, 2007

Abstract:    
This short essay, written for a symposium commemorating Richard Posner's twenty-fifth year as a judge, examines Judge Posner's majority opinion for a closely divided en banc decision on the federal entrapment defense. The cases considers a fundamental issue in the meaning of the element of predisposition. Judge Posner crafts a boldly innovative reading of the Supreme Court precedent on the topic, introducing the element of position or readiness to predisposition. I claim the result, properly understood, is to rationalize the doctrine of entrapment.

The Special Prosecutor's Authority

In anticipation of possible indictments in the Plame investigation, commentators have recently expressed the hope that the Special Prosecutor Patrick Fitzgerald will not charge anyone with only cover-up offenses such as perjury or obstruction of justice. The idea is that Fitzgerald should pass on charging such offenses unless he can also charge the same person with a "substantive" crime, especially the crime that gave rise to the investigation, which (roughly) prohibits those with security clearances from knowingly disclosing a covert operative's status. Two days ago Sen. Kaye Hutchinson stated on "Meet the Press" that she hoped that, if there were an indictment, it would be "on a crime and not some perjury technicality." Nicholas Kristof makes essentially that point in today’s New York Times. In the Weekly Standard, Bill Kristol makes a similar but weaker point – that Fitzgerald should not bring a perjury charge unless it is "clear cut" nor any obstruction charge unless it is "willful and determined."