The Georgetown Law Journal Online

Welcome to The Georgetown Law Journal Online, the blog and online companion to The Georgetown Law Journal.

The Georgetown Law Journal Online, like the Journal, is a general legal publication that contains more informal blog posts as well as formal responses to in-print scholarship, scholarly debates, and case comments. The launch of The Georgetown Law Journal Online coincides with a significant benchmark in the Journal‘s history: the celebration of its 100th Volume.

In reflecting on one hundred years of Journal scholarship, it seemed fitting to also look forward to where the next century will take us. With that in mind, The Georgetown Law Journal Online asked four great modern legal minds to write about the intersection of the law and the Internet:

Ken Jost, the Supreme Court editor for CQ Press, was also once the editor-in-chief of The Georgetown Law Journal. In addition to his work at CQ, Mr. Jost is an adjunct faculty member at Georgetown Law and the author of his own legal blog, Jost on Justice. His inaugural post on The Georgetown Law Journal Online touches on how the Internet has affected legal scholarship and journalism.

Radley Balko, a senior writer and investigative journalist for The Huffington Post, writes on civil liberties and crime.  His award-winning journalism has been featured in a multitude of places, from The Wall Street Journal to Playboy. His inaugural post on The Georgetown Law Journal Online tells two stories that demonstrate the power of the Internet to bring about justice and effect legal change.

Pamela Jones is the founder and former editor of Groklaw, a landmark blog addressing the law and open source issues. As one of the first people covering the law as it intersected with the Internet and technology, Ms. Jones’s inaugural post for The Georgetown Law Journal Online reflects on the growth of the open-source movement and the continued need for online involvement from academia.

Mike Sacks is the Supreme Court reporter for The Huffington Post, a recent Georgetown Law  graduate, the founder of First One @ One First, a blog he began in law school, reporting directly from the Supreme Court. Mr. Sacks will close out the inaugural week of The Georgetown Law Journal Online by discussing the potential role of online blogs on legal scholarship and the legal world in general.

We hope that you continue to check in to The Georgetown Law Journal Online for a wide range of legal commentary and scholarship in the days, months, and years to come.

“The Internet changes everything,” they told us in the mid-90s.

But what about law? Has the Internet changed it too? Certainly, it has changed forever how legal research is done. In the United States, digital filing has changed the lives of associates and paralegals everywhere, making it necessary for law firms to learn about metadata and proper redaction techniques, as some hapless law firms have discovered. Judges have new worries and now routinely warn jurors what not to do on the Internet.

Can we blame the Internet for what I call Litigation For Effect, where parties sue not so much for a legal outcome as for an anticompetitive purpose? It used to be unusual for companies to comment on active litigation. Nowadays, we hear complaints that parties sue so they can trash a competitor without the usual fear of libel lawsuits or to cause legal uncertainty about a competitor’s products, apparently to diminish sales, or even to boost the plaintiff’s stock price. It’s no longer unusual for a party in litigation to comment on its position, or to put up a web page explaining its side of the story, or in one notorious case involving the SCO Group even to send Congress a lobbying letter.

And there’s another area of the law that has been affected directly by the Internet and by this new wave of litigation for effect, and that’s the reaction to it by ordinary people, many now willing to group together to search for usable evidence as a group project to answer the allegations in the press in civil litigation they care about.

Groklaw was the first, a group of people interested in the Linux operating system, spontaneously springing up in reaction to legal threats against Linux, showing how ordinary mortals could work cooperatively to find usable evidence. Groklaw is still searching for evidence in court cases, particularly nowadays for prior art in patent litigation, and so I’d like to tell you how it started, how it works, what it achieved, how it can benefit you, and how you can help.

The 1995 BusinessWeek article, The Software Revolution, that quoted J. Neil Weintraut of Hambrecht & Quist saying that the Internet changes everything explained that “the Web has turned into a huge virtual disk drive” full of every possible kind of information, all accessible to anyone using any operating system’s browser.

One large hard drive that anyone anywhere can access, contribute to, and communicate about is a recipe for group work. People all over the world can work together now, despite living in far-flung states or even countries. That is how a completely free operating system, Linux, was born and grew to adulthood now, 20 years later.

No matter who you are, if you are on the Internet, you are likely using Linux every day. Do you ever go to Google? Google runs on Linux. So do AmazonFacebook, and Twitter.

If you use the federal court system, odds are you are using Linux, even if you don’t realize it, because the courts began to switch to Linux to run core operations in 2003. The White House chose Linux in 2009 as part of a move to Open Source solutions. Google’s Android, which also runs on Linux, is taking over the smartphone world. Perhaps you’ve heard about all the current litigation, brought by the proprietary software big guns and some patent trolls, trying, some believe, to slow Android down or put a cloud of legal uncertainty over it to discourage its adoption by vendors.

A sustained attack on Linux began in late 2002, with a company called SCO, previously known as Caldera, claiming that Linux was an unauthorized derivative work of its proprietary Unix and that as a result it was allegedly was infringing its “UNIX intellectual property.” That was eventually ruled to be untrue, after two district court judges, the Hon. Dale A. Kimball and the Hon. Ted Stewart, one bench trial, an appeal, and one Utah jury eventually established that Novell, not SCO, owned the copyrights at issue. There is a second appeal, argued on January 20, 2011, still pending at the Tenth Circuit Court of Appeals.

Yes, that means Groklaw has been covering the same SCO litigations for nearly a decade, and it’s still not finished.

When I first noticed SCO and wrote my first Groklaw article about its claims, SCO Falls Downstairs, Hitting its Head on Every Step, it was mid-May of 2003. How did I know it would likely fail? I knew its case against Linux, at least, was hopeless because I knew Caldera had released its own Linux distribution under the General Public License, GPL version 2, and I knew what that meant. I also saw it was continuing to distribute, despite claiming otherwise in June of 2003, so I figured its goose was cooked by the GPL’s terms. So I began to blog about it and provided extensive resources explaining details and showing where to go to find more information.

In the first interview I ever did, I explained why I started Groklaw:

I reasoned like this originally: I am not a lawyer. I am not a programmer. I have no influence. I have few friends in high places. I am not a political person. I belong to no organizations. What can *I* do?

By that question, I don’t mean I gave up. I mean I seriously thought about what could I do. I wanted to do something. . . .

All right, I said to myself, what can I do well? The answer was, I can research and I can write. Those are the two things attorneys and companies hire me to do for them. I decided, I will just do what I do best, and I’ll throw it out there, like a message in a bottle.

Today, Groklaw has more than 12,000 members and a vastly larger international readership. It was the Internet that made Groklaw Groklaw, because as readers discovered Groklaw, they brought with them their knowledge, technical skills, and work experience. As I read their comments, I realized they knew computer history. Computers are fairly new, and they had lived it all, in some cases from the beginning. I began to share in articles what they posted, and group work began in earnest.

Just this one page on Groklaw, a collection of contracts, copyright registrations, and other documents relevant to the SCO litigations, demonstrates how deeply readers were following along. The public, clearly, wanted to know all they could learn, despite having otherwise no interest in the law. They wanted to know and they wanted to help.

But for it all to work, Groklaw had to explain how the legal process works, so the technical community could understand things like the rules of evidence and what constitutes prior art and how to research sufficiently to find usable materials.

And the community did help. It became the purpose of Groklaw for the technical community gathered there to help lawyers to comprehend technical details in litigation, with the hope that court rulings would be based on technical realities. In fact, one feature of Groklaw is that any lawyer needing to understand a technical matter is free to ask Groklaw for help. Later, as lawyers also joined Groklaw, they in turn could explain the legal process to the technical community.

Groklaw‘s prior art searching has been remarkably effective. In IP Innovation v. Red Hat, for example, a Groklaw member actually still had a working Amiga computer, which he offered to Red Hat after reading about the litigation on Groklaw, and it was used at trial in a live demonstration of prior art in Red Hat’s successful defense. It was one of three principal examples of prior art used at trial, all of which Groklaw readers had mentioned in comments. Here’s an example.

As Red Hat’s VP and Assistant General Counsel for Intellectual Property said after the verdict in IP Innovation v. Red Hat came in, “The jury’s decision shows that the open source community can stand up to coercion based on bad software patents, and that juries can see through arguments based on FUD.”

Groklaw is made up 100% of volunteers. Willing volunteers have attended court hearings and trials faithfully for all these years, in Utah, in California, in Colorado, in Washington, DC, in Delaware, and even in Europe, so as to inform everyone of each step in the legal process of cases Groklaw follows closely. In the SCO v. Novell trial in 2010, volunteers attended every day of the 15-day trial and reported promptly to me each night so that it was possible for Groklaw to present in-depth coverage. Here are a couple of examples.  Here’s a sample of our reporting from the courthouse on the last day of the trial, which you can compare with the transcript from that day. I think you’ll see that these lay reporters did a remarkable job. It’s because they cared so much.

Other volunteers, before the courts switched to digital filing, personally went to the various courts to pick up documents, digitize them, and upload them to Groklaw‘s database. They did this for years, at their own expense. Others helped to prepare text versions of the PDFs, so that the materials would be easily searchable and easier to use for those who depend on screen readers. This is incredibly boring work, as I can testify from the heart, and yet we do it. It’s challenging to make sure it’s done as accurately as possible, and yet volunteers have done massive amounts of this work, as you can see in just one example, transcribing the exhibits filed in the antitrust case, Comes v. Microsoft, a project we are still working on. Even though the case settled, the exhibits had been made public by the judge, but they were organized only by number, making them extremely difficult to use for anything. Our Groklaw collection as text, however, makes them easily searchable, and in the Novell v. Microsoft antitrust litigation over WordPerfect, some Comes exhibits appeared.

Anyone is free to use our resources, and even SCO’s lawyers have done so. All my articles are released under a Creative Commons license. Groklaw has won many awards over the years, but its secret is that it’s an application of Open Source principles, but in a new area. No one knows as much as all of us together, as the saying goes. And Groklaw is still morphing and growing.

Recently I handed the editorship of Groklaw over to a lawyer, Mark Webbink, because as Groklaw is moving more and more into prior art searching, I recognized my limitations in that area. He is also a law professor, and our hope is that his law students will join in the Groklaw project. You can too. And if you are a law professor, please consider assigning Groklaw work to your students for credit. Why shouldn’t law students be assigned to cover trials happening near them? What could be better training than to watch some of the world’s best litigators at work? Others can explain some aspect of IP law. Groklaw‘s readers are still hungry to learn. If you’d like to do something like Groklaw, but different, please do.

The Internet is vast. There’s still plenty of room to educate the public on how the law works and why it matters so much.

Pamela Jones is the founder of Groklaw, an award-winning blog covering legal issues concerning open-source and software issues. 

At last year’s Symposium in Celebration of Justice John Paul Stevens, sponsored by the Georgetown Law Journal, the recently retired jurist informed me that he knew my work.  I was in my final semester at Georgetown, not a member of the Journal, and never once published—nor intended to publish—a student note in any law review.  Rather, the symposium’s nonagenarian of honor had read my blog.

Justice Stevens has stated that he knew it was time to retire when he stumbled over some words while summarizing from the bench his epic dissent in Citizens United.  But within the Court’s remarkable debate over the merits of the case, another remarkable thing happened: both Justice Anthony M. Kennedy’s majority opinion and Stevens’s dissent made reference to blogs as akin to books and pamphlets in their ability to impact political reality.  In so doing, the Court debuted the word “blog” into the United States Reports.

Meanwhile, Chief Justice John G. Roberts has gone on the record as a skeptic of the printed law review’s utility beyond the academy.  In comments this summer to the Fourth Circuit Conference, the Chief said:

Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.

This caricatured description of the bound quarterlies’ contents provoked a flurry of commentary in the blogosphere, where journalists and academics countered the Chief’s take.  For example, Ken Jost, CQ Researcher’s Supreme Court Editor and former EIC of GLJ (and, I understand, a fellow Ipsa Loquitur introductory blogger) noted the dissonance of the Chief’s views, which came on the heels of the Court’s decision in Wal-Mart v. Dukes, a case that made ample reference to the late Professor Richard Nagareda’s 2009 NYU Law Review article, “Class Action Certification in the Age of Aggregate Proof.”

I do not highlight this disagreement to take sides, even if I do have my prejudices.  Rather, I believe the Chief’s comments, coupled with the recognition of blogs in Citizens United, set the stage quite nicely for the launch of Ipsa Loquitur.  If executed well, Ipsa Loquitur can defy the Chief’s stereotype of law journal content by relentlessly reporting, analyzing, or even creating the moment’s most engaging issues in law, policy, and politics.

And this is where my happy meeting with Justice Stevens comes in.  He learned of my blog not because of any affiliation with a top-tier law school.  Rather, he knew my blog because it had a distinct identity that attracted readers and made for memorable coverage of and commentary on the Supreme Court.  Indeed, law school rules don’t apply on the blogs.  Here, no one cares about rankings or GPAs or resumes.  The Main Journal masthead won’t impress info-hungry Internet trawlers looking for something worthwhile in their RSS reader.  In this world, the strength of a governing idea—an identity, a purpose, a personality, an angle—is what separates the must-reads from the ether-shouters.

The challenge, then, for Ipsa Loquitur is to figure out how to separate its guiding purpose and values from that of a law journal.  Whereas GLJ’s existence is justified by staffing itself with bluebookers who aced 1L and making up for its limited readership with future citations in the U.S. Reports, Ipsa Loquitur must look beyond the journal office to identify its writers not by their statistics but rather by their voices.  Without such personalities whose words can ring throughout the legal community and into the greater blogosphere, Ipsa Loquitur will become just another law journal’s online supplement masking its milquetoast nature with a cute and clever name, and will suffer from the very irrelevance that the Chief has attributed to its printed parent.

But as a Georgetown Law alumnus, I know that one can’t go three feet on campus without encountering someone wonderfully worked up over something happening somewhere in the world.  Give those people a platform and Ipsa Loquitur will succeed . . . and still have space for an online colloquy promoting the upcoming GLJ issue’s lead article presenting a Rawlsian interpretation of the Coase Theorum’s impact on the adjudicative systems of uncontacted Amazonian tribes.

Mike Sacks L’10 is current the Supreme Court reported for The Huffington Post. He created and maintained First One @ One First, a Court-watching blog.

In a thoughtful response to my article, Rethinking Federal Circuit Jurisdiction, Ori Aronson notes that judges “work in context, be it social, cultural, or . . . institutional,” and that “context matters” to their decisions.  Indeed, the primary aim of my article was to spur a conversation about the context in which the judges of the Federal Circuit—who have near plenary control over U.S. patent law—decide cases.  That context includes many matters in narrow areas of law that bear little relation to the innovation and economic concerns that should animate patent law.  To inject those concerns into the court’s province, my article introduced the concept of limited specialization, under which the Federal Circuit would retain exclusive jurisdiction over patent cases (and possibly a few other areas) while also being granted nonexclusive jurisdiction over a variety of cases that are normally appealed to the regional circuits.

In a similarly insightful response to my article, Cecil Quillen is doubtful that limited specialization would fix what he calls “the Federal Circuit problem.”  Instead, he prefers the model of “polycentric decision making” embraced by, most notably, Professors Craig Nard and John Duffy in their important and provocative article, Rethinking Patent Law’s Uniformity Principle. Under that model, multiple appellate courts would decide patent cases, permitting inter-court dialogue and enhancing the possibility for self-correction when one court makes a mistake.

. . . .

To help inaugurate Ipsa Loquitur, I’ve been asked to write a bit about the law, the Internet, and my job as a criminal justice reporter.

I suppose I’ll start by telling you about the Internet’s role in what are probably the two biggest stories of my career. The first is the story of Cory Maye, a 21-year-old (at the time) black man who was sentenced to death for killing a white police officer during a botched drug raid on Maye’s home. I found the case while researching a paper for the Cato Institute on the increasing use of paramilitary police tactics in America.

I had reviewed hundreds of such raids by the time I read a short A.P. account of Maye’s case. A number of things didn’t seem right. Maye had no prior criminal record. He had only a burnt marijuana cigarette in his home, not the large stash of drugs police thought they’d find. His 18-month-old daughter was in the house with him when the raid happened. After firing three shots, he surrendered with bullets still left in his gun. All of these bits of information pointed to a guy who thought he was being robbed or invaded, not the sort of guy who would intentionally kill a cop.

I made some calls and discovered that Maye’s name wasn’t even on the search warrant, nor was the name of his girlfriend, with whom he shared the house. Moreover, the man who lived in the apartment next to Maye’s had drug charges pending against him from several months earlier. This had all the signs of other tragic, mistaken raids I had researched.

In December 2005 I posted Maye’s story on my blog. The post was immediately picked up by Glenn Reynolds of Instapundit and then spread across the blogosphere in a matter of hours. Conservatives saw Maye as a man defending his home. Liberals saw him as a victim of racial injustice and an example of the myriad problems with the death penalty. Libertarians saw both of those things, and a drug war injustice to boot.

Abe Pafford, at the time an associate at the D.C. law firm Covington & Burling read my coverage of Maye’s story through a link at National Review Online. Pafford had a daughter about the same age as Maye’s, and asked himself what he’d have done if he’d been in Maye’s position—that is, home with his daughter, awoken to the sound of men breaking into his home, and forced to decide in a panic whether to use lethal force. Within a few months, Pafford convinced his firm to take Maye’s case pro bono.

With Covington & Burling’s talented and well-funded representation, and with a savvy local defense attorney heading up his defense, Maye’s death sentence was thrown out a year later. Late last year, the Mississippi Supreme Court granted him a new trial. Earlier this summer, Maye’s attorneys and local prosecutors agreed to a plea bargain. Maye would plead guilty to manslaughter and be sentenced to time served. He came home to his family in July.

The second story came as a result of covering the Maye story, and the Internet also played a role. The doctor who performed the autopsy on the police officer Maye shot, Steven Hayne, gave some scientifically dubious testimony at Maye’s trial. Basically, Hayne testified that because the trajectory of the bullet in Officer Ron Jones’ body was downward, it seemed likely that Maye was standing when he shot Jones, not lying down as he claimed. The problem is that there are a number of variables that can affect a bullet’s trajectory, including (and most notably) the position of the victim. A bullet that travels upward through a crouched victim, for example (like, say, a police officer who had just run up three steps into an apartment), can appear to have traveled downward when the body is laid prostrate on an autopsy table.

I spoke to a couple other defense attorneys in Mississippi, and found that Hayne had given some questionable testimony in other cases. So I put up a post on my blog about him. One of my readers at the time was a med student, and sent the post to one of his professors, who happened to be a forensic pathologist. He sent the post to a listserv for medical examiners and, within a few hours, got responses from medical examiners all over the country who had encountered odd testimony and reviewed shoddy work from Hayne in other cases.

That led to several years of reporting on Hayne and the forensics system in Mississippi. Since then, two men convicted due to testimony from Hayne and his sidekick, the forensic bite mark specialist Michael West, have been exonerated by DNA testing. A 13-year-old boy convicted of murder because of questionable testimony from Hayne was also retried and acquitted. And in 2009, Hayne himself was terminated and barred from doing any more autopsies for Mississippi’s prosecutors.

The Web and the Crime Beat

Beyond those two cases, though, the web has become such a critical and central part of how I do my job it almost seems odd to write about how I use it. I can’t imagine not using it. I guess one thing I have noticed is that as I’ve developed a niche and received more exposure for my work, people now send me tips and leads—more leads than I could ever have time to check out. They come from defense attorneys, friends and relatives of convicts, activists, and sometimes the convicts themselves. So it has become necessary to develop a new set of skills. In addition to your proactive sniffing out stories by, say, looking through legal databases or developing sources, my job is increasingly about sifting through the leads people email me so I don’t waste time chasing empty stories. You learn to judge a story’s promise by the language someone uses when summarizing the case, or to prioritize emailed leads based on who sent them.

To give one example, I’ve found that a tip from a public defender about an injustice or wrongful conviction nearly always checks out. The reason I think is that most people public defenders represent are guilty. So a PD isn’t likely to waste his time and credibility trying to get a reporter interested in a story that isn’t a clear-cut case of injustice.

The Internet has influenced the legal debate in some other interesting ways. When Cato published my paper on police militarization in 2006, we also included a Google Maps application plotting police raids, including a description of what happened in each raid and cites to sources. You can now find similar interactive maps providing visual representations of criminal justice issues, including incidents of people who have been arrested recording police officers, or the near-encyclopedic catalog of police misconduct at the Injustice Everywhere site.

The proliferation of citizen-shot videos of alleged police abuse around the web is itself a fascinating development. Where the police narrative of an interaction with a citizen was once given deference by police and prosecutors, we’ve now seen a number of cases where a citizen-shot video directly contradicts what police officers have put in their reports. It’s a welcome bit of transparency, but it’s not without its costs. Police have reacted by seizing cameras, erasing videos, even arresting citizen videographers, usually illegally, and with little consequence for the cops.

But the proliferation of these videos has almost certainly shifted public opinion, both about the tendency of courts and prosecutors to defer to police narratives, and about the arrest of citizens who record cops. (And that police are arresting people who record them tends to reinforce the perception that maybe they aren’t always telling the truth.)

As a journalist, I obviously favor complete transparency, and I believe the right to record on-duty cops is protected by the First Amendment. As a libertarian, I also think it’s healthy that the public in general is becoming more skeptical of police and prosecutors. But it’s also important to be cognizant of the possibility that while the Internet is creating more awareness of police misconduct (unquestionably a good thing), it may also be creating the false impression that police misconduct is on the rise. In fact, most criminologists agree that police departments are more professional than ever, and misconduct is more likely than ever to be investigated. That doesn’t necessarily (and in my opinion, doesn’t) mean it is investigated often enough, or that misbehaving cops are always (or even frequently) appropriately disciplined, or that the infamous Blue Wall of Silence doesn’t still exist. It just means that it’s important not to mistake the web’s ability to expose misconduct—and the resulting increased awareness of misconduct—for an increase in the actual incidence of misconduct.

What Else Could Be Done?

There are other ways the web could be used to make the criminal justice system more transparent and accountable (and to make my job easier!). Perhaps the most obvious step is to free up access to court opinions. Since appellate court opinions carry the force of law, it’s rather astounding how difficult it can be to access them. It would be nice if courts started posting trial transcripts as well, but that would require quite a bit more bandwidth and manpower.

Just in general, more criminal justice records should be posted online. After a mistaken drug raid on a local mayor made national headlines, the state of Maryland passed a law—the only law of its kind in the country—requiring every police department in the state that has a SWAT team to issue a biannual report on how many times the SWAT team was deployed, under what circumstances, what was found, and whether any shots were fired. That information is available to the public and has been useful in looking at which jurisdictions use their SWAT teams more frequently and why.

Police personnel records should also be posted online. Police unions often argue that cops have a right to privacy while on the job, but given that the names of citizens who arrested are usually published in newspapers before they’re tried or convicted, it doesn’t seam unreasonable to allow public access to the names of cops who have been accused of misconduct—especially when you consider that police officers carry a gun and are authorized to use deadly force. The most obvious benefit here is to see if the same names turn up in multiple complaints, and whether the police agency that employs them has done anything about it. I can’t tell you how many times a cop who commits egregious misconduct that makes headlines is later found to have had multiple complaints against him that were swept under the rug.

It would also be nice to see the names of prosecutors and defense attorneys included in appeals court opinions, particularly opinions that find incidence of prosecutorial misconduct or ineffective assistance of counsel. There’s a practical reason for this beyond just shaming (which is a pretty good reason in itself). As it stands, there’s no easy way to search legal databases to see if a given prosecutor has been cited for misconduct on multiple occasions, or if a public defender has a history of successful ineffective assistance claims. Given that both are public employees entrusted with some incredibly important responsibility, it ought to be easy run a check to see how often an appeals court has found them lacking.

Generally speaking, unless there’s a compelling reason not to (like protecting the identities of undercover cops or confidential informants), the default position of police agencies, prosecutor’s offices, and courts should be to post all information online.

Radley Balko is a senior writer and investigative reporter for the Huffington Post, where he covers civil liberties and the criminal justice system. He also writes about music and culture in Nashville, Tennessee, where he lives.

In his fascinating critique of Federal Circuit jurisdiction, Professor Gugliuzza employs multiple tools of institutional analysis in order to explore the “dark matter” that comprises most of that Court’s docket—its unsung caseload of the nonpatent variety—and to stimulate our institutional imagination in search of a better jurisdictional structure. Through a combined analysis of its theoretical and ideological foundations, its institutional practices, and its doctrinal proclivities, Gugliuzza deconstructs the Court of Appeals for the Federal Circuit, only to imagine its reconstruction as a forum for the production of more accurate, more effective, and more just legal norms.

After locating the discussion within the context of ongoing scholarly and policy debates over the costs and virtues of court specialization as a general institutional trend in contemporary judiciaries, Gugliuzza turns to the Federal Circuit. The court, which stands out in conventional discourse as the “Supreme Patent Court,” centralizing all patent appeals under an effective near—though not complete—exemption from Supreme Court review, in fact dedicates only one third of its formal docket to intellectual property cases. Another small share of the court’s jurisdiction concerns international trade cases, but the bulk of the caseload encompasses various administrative appeals whose relation to intellectual property or to innovative market activity remains unclear—veterans’ appeals, federal-personnel appeals, government-contracts appeals, and more.

The Internet has transformed news coverage of and commentary about the judiciary—up to and including the Supreme Court—but the transformation is incomplete. The Supreme Court and the Federal Judiciary still resist the technological innovations that could give Americans front-row seats, in their living rooms or at their computer desks, to watch the court system in real life and real time.

When I was editor of the legal newspaper The Los Angeles Daily Journal in the 1980s, we covered the U.S. Supreme Court with a system that would have made Rube Goldberg shake his head. With no Washington correspondent, we hired a messenger to pick up decisions at the court when released and fax them to my reporter in Los Angeles.

Fax machines at the time were glacially slow, but the three-hour time difference allowed my reporter to get the opinions—however many and however long—soon enough to read and digest them, work the phones for comment, and get her story in by mid-afternoon.

Today, thanks to the Internet, I can get opinions from the Supreme Court at my desk almost as soon as they are announced in the courtroom. No big deal. My office is a twenty-minute cab ride away. But I can get opinions from any number of other courts also almost as soon as they are released. And so can everybody else.

The Supreme Court posts opinions on its website, available to computer users worldwide, as the justices are announcing the decisions. Many federal and state courts do likewise. That’s how I got the recent decisions on President Obama’s health care law from federal appeals courts in, respectively, Cincinnati and Atlanta. Or the gay marriage rulings from state supreme courts all over the country.

The public benefits from this convenience for reporters in the form of quicker and smarter coverage. I mean no disrespect to legal affairs reporters for local news organizations. That’s how I started in my hometown of Nashville, Tennessee. But a reporter who has followed the health care or gay marriage litigation from the start may write a better story or analysis than the local. Conversely, the local court reporter can do a better job of explaining the impact of a Supreme Court decision with the opinion in hand, not just a wire service story, as I had to do back in Nashville.

It’s not just opinions, of course. A court can put just about anything on its website: docket information, briefs, transcripts, even audiotapes or videotapes of court sessions. That’s how I covered the arguments in real time in the Proposition 8 case before the California Supreme Court. And a court can use the Internet to send e-mail notices of proceedings. That’s how a long list-serve of reporters, commentators, and court-watchers keeps up on every development in the new Proposition 8 case in federal court.

This is all so wonderful that one would expect every court in the land to make maximum use of this technology. Wrong. The Supreme Court remains dead set against televising proceedings. The Federal Judiciary is only a few millimeters farther along. The Judicial Conference approved a voluntary pilot program last year (September 14) for a limited number of district courts to permit video coverage of civil cases—but only with the permission of both parties.

Only two weeks later, the Supreme Court actually took a step backward. Starting with Bush v. Gore in 2000, the Court had adopted a practice of releasing audiotapes of arguments in major cases immediately after the sessions were over. Over time, however, the justices had second thoughts about the hassle of selecting important cases for this special treatment. So they decided September 28 to make audiotapes of all arguments available on the court’s web site, but only at the end of the week. Yes, the tapes are now readily available to anyone interested, days after the event. But for news coverage on radio or TV, the delay is fatal.

The justices and their federal judge colleagues resist because many like their anonymity, worry about grandstanding, and fear a loss of confidence once the public sees that they put their robes on one sleeve at a time. But transparency could equally benefit the court system while educating the public.

One concrete example makes the point. Sometime soon, Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 terrorist attacks, will go on trial before a military tribunal in Guantanamo Bay, Cuba. Courtroom capacity is limited, and few reporters, experts, or observers can afford the time or expense to go for the trial.

The military commissions have been very controversial. Human rights advocates, not to mention millions of Muslims in this country and around the world, doubt that KSM can possibly receive a fair trial. Perhaps he will. But to prove it, greater transparency is needed.

As Brookings Institution expert Benjamin Wittes suggests, the Pentagon’s Office of Military Commissions could do a better job of posting briefs, transcripts, and so forth on its web site in real time. More significantly, Wittes suggests the proceedings be videocast in real time, at least via closed circuit, to select sites around the country.

Wittes would actually let C-SPAN cover the trial, but the military justice manual appears to bar that possibility. Closed-circuit presentation, however, would be “a big breakthrough,” he says, giving legitimacy, if deserved, to what looks to many like a second-class justice system.

The Supreme Court rebuffed even that degree of openness when the federal judge hearing the challenge to California’s anti-gay-marriage Proposition 8 wanted to stream the trial proceedings to select U.S. courthouses around the country. By a 5-4 vote along conservative–liberal lines, the Court in January 2010 ruled that Judge Vaughn Walker had not followed proper procedures in revising local court rules to permit the closed-circuit videocast.

Camera-shy justices ought to get over their problem. At the least they ought not stifle moves toward openness by judges in lower federal courts. Lady Justice may wear a blindfold, but she ought not blindfold a public that is entitled to hear and see what goes on its court system, taking full advantage of the Internet-age technology.

Kenneth Jost, editor-in-chief of The Georgetown Law Journal, Vol. 69, is Supreme Court editor for CQ Press and author of the annual series The Supreme Court Yearbook and the one-volume encyclopedia Supreme Court From A to Z. He blogs at Jost on Justice.

Professor Gugliuzza’s article, Rethinking Federal Circuit Jurisdiction, is a massive piece of scholarship inquiring into the jurisdiction of the United States Court of Appeals for the Federal Circuit and proposing jurisdictional remedies in the hope of curing the Federal Circuit’s problem with patent law.

Specifically, Professor Gugliuzza proposes to transfer much of the subject-matter jurisdiction of the Federal Circuit other than its exclusive patent jurisdiction to other courts and to fill the resulting void with appealed nonpatent cases, particularly commercial cases that involve business and economic issues, for example antitrust cases, in the hope that the Federal Circuit will thereby become educated in the economics of innovation and establish patent law doctrines that foster innovation and avoid establishing patent law doctrines that impede and diminish innovation.

In response to:

It is an honor and a privilege, both to have garnered Professor Rothstein’s careful and sympathetic reading of my article A Foundation Theory of Evidence (hereinafter “Foundation Theory”) and to have the opportunity to respond to his thought-provoking comments in these pages. I’m gratified that Professor Rothstein has agreed with some of Foundation Theory and, while as yet unconvinced on some key points of my argument, remains open to being convinced. No one has more authority than Professor Rothstein to judge a piece of evidence scholarship and call out the thin patches in its argument, and I welcome his suggestion that I try to elaborate some aspects of my argument further in future articles.
My basic argument in Foundation Theory is that relevant evidence must be “well founded,” by which I mean “case-specific, assertive, and probably true.” Proffers to the jury cannot be “relevant evidence” without these qualities. This principle follows logically from the requirement of our legal system that a claimant can only win the imposition of liability (civil or criminal) on a defendant by proving things that probably did happen rather than things that may have happened. Claimants must present a specific narrative that includes the factual elements required by the substantive law for a particular claim. Some specific thing must have happened to give rise to liability, and the claimant must commit himself to a specific, detailed narrative of what happened. I argue further that all evidentiary facts that are necessary to proving this narrative must be probably true if the overall narrative is to be found probably true.

Download .pdf for full response.

Professor David Schwartz’s A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be “case-specific, assertive, and probably true.” His shorthand for the tripartite requirement is that evidence must be “well founded.” Hence, he calls his theory the “foundation theory of evidence” and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, he says, and although there are only a few evidentiary areas where the Federal Rules of Evidence and their state progeny specifically require something analogous to this requirement, he finds the requirement almost universally applied in trials across the country by judges’ rulings (going by a variety of other names) and in decisions by parties about what evidence to offer as a practical matter.

There will be those, steeped in the traditions of Evidence, who will feel he has not made the case that most evidence must be case-specific, assertive, and probably true. Nor will they be convinced that this is why supporting evidence in the “conditional relevancy” situation is required. I think a follow-up article will be required to beef up his argument for the traditionalists, and even for fence-sitters like myself. But I trust that even his detractors will agree that he has revealed a widespread phenomenon that has gone under the radar: that evidence which could not be found to be probably true by a jury is usually excluded, or not offered, though the rationale may be fuzzy or varied. This is enormously useful for litigators to know. Further, even the skeptics will find his analysis along the way to be intriguing and full of other
valuable insights.

The Supreme Court’s decision this week to review the constitutionality of life-without-parole sentences imposed upon individuals convicted of homicide crimes committed at age fourteen and younger in Miller v. Alabama and Jackson v. Hobbs stunned sentencing law advocates and Court watchers, myself included. This commentary will contextualize these two grants of certiorari within the Court’s shifting Eighth Amendment jurisprudence and the broader debate over the harshest forms of juvenile sentencing.

Both Evan Miller and Kuntrell Jackson were charged with capital murder at fourteen, automatically transferred to adult court based upon the underlying offense, convicted, and then sentenced to life without parole under Alabama and Arkansas’s mandatory sentencing schemes, without any consideration of their age or other mitigating circumstances. The one additional wrinkle in Jackson—and the likely reason the Court also granted certiorari in this case—is that the defendant was charged and convicted as an accomplice to felony murder, did not himself commit the killing, and was not shown to have had any intent or awareness that any killing would take place.

Thus, combined, Miller and Jackson give the Supreme Court the opportunity to decide whether life without parole is unconstitutional when imposed on an individual fourteen years or younger (1) for a homicide offense, (2) as a result of a mandatory sentencing scheme, or (3) as a non-triggerman accomplice without a showing of “intent to kill.” Notably, the cases also ask the court to recognize a new, distinct category of defendants—or subcategory of juveniles—deserving different treatment under the Eighth Amendment: those fourteen and younger.

Supreme Court review in Miller and Jackson may seem mundane to those who have not been focused on the evolution of juvenile sentencing law and policy in recent years, but this double grant of certiorari is far from run-of-the-mill.

This will be the third time in just six years that the Supreme Court has considered whether a particular form of punishment should be categorically forbidden for juveniles—and, even more remarkably, the second time in just one and one-half years that the Supreme Court will address the constitutionality of juvenile life without parole (JLWOP).

In 2005, the Supreme Court held that capital punishment for individuals convicted of crimes committed before the age of eighteen constitutes cruel and unusual punishment under the Eighth Amendment. Roper v. Simmons was a landmark decision, as juveniles became only the third category of defendants—along with the insane and those diagnosed with mental retardation—to be categorically excluded from the death penalty.

Ending JLWOP, therefore, was no more than a pipe dream before Roper. The primary battle for juvenile justice advocates at the time was ending the juvenile death penalty—and it was a steep, uphill battle. Yet, despite Justice Kennedy’s implicit approval of JLWOP as a supposedly humane alternative to the death penalty in Roper, Justice Kennedy also made explicit references to international law and norms as a justification for ending the juvenile death penalty and broad statements about the reduced culpability of juveniles, which made Roper a source of inspiration and energy for a handful of advocates who, after the decision, began to start taking JLWOP abolition more seriously.

Chief among these advocates was Bryan Stevenson, now lead counsel in both Miller and Jackson. Following Roper, Stevenson and his organization, the Equal Justice Initiative of Alabama (EJI), began to challenge the life-without-parole sentences of juveniles, starting with Ashley Jones, a fourteen-year-old girl sentenced to the penultimate sentence in Alabama. In preparation for Ashley’s case, EJI spent thousands of hours developing research that ultimately led to a seminal report, published in 2007 and entitled Cruel and Unusual Punishment: Sentencing 13- and 14-Year-Old Children to Die in Prison, and to the launch of a national campaign.

Incredibly and against all odds, on May 5, 2009, a little more than four years after Roper was decided, the Supreme Court granted certiorari in Sullivan v. Florida and Graham v. Florida to review the constitutionality of JLWOP. No one expected the Court to review any cases on this issue so soon after Roper, let alone two.

Stevenson represented Joe Sullivan, who was convicted of aggravated rape at age thirteen. Stevenson wanted to focus the Court’s attention then on the now-primary issue in both Jackson and Miller; that is, the cruel and unusual application of JLWOP to the very young—fourteen years of age and under—for all offenses, including homicide. Byran Gowdy, Counsel for Terrance Graham, sentenced to life without parole for armed robbery, on the other hand, took a different strategy. He argued for a bright-line prohibition on the application of life-without-parole on those convicted of nonhomicide crimes committed when younger than eighteen.

The Supreme Court ultimately chose to toe Graham’s line: On May 17, 2010, the Supreme Court dismissed the writ of certiorari as improvidently granted in Sullivan (presumably because the decision below had rested on an “adequate and independent state ground”), and decided in Graham to bar the imposition of JLWOP for nonhomicide crimes.

Still, Graham was an unquestionably landmark decision, representing the first time the Court ever applied its more searching “categorical” Eighth Amendment analysis—up to that point reserved solely for capital sentences—to a term-of-years sentence. In striking down life without parole for an entire class of offenders, the Court ruptured the longstanding jurisprudential barrier between capital and non-capital sentences, prompting even the normally reserved Justice Clarence Thomas to declare dramatically in dissent that “‘death is different’ no longer.”

However, to overcome the death-is-different Eighth Amendment problem and reach JLWOP, the Court ended up reinforcing another life and death partition: the line between homicide and nonhomicide offences. Throughout his majority opinion, Justice Kennedy went out of his way to make absolutely clear that the holding only applied to nonhomicide offenders, employing the word “nonhomicide” no less than forty-seven times. Drawing from the lessons of Coker v. Georgia, which barred the imposition of the death penalty for rape, Enmund v. Florida, which barred the imposition of the death penalty for non-triggerman felony murderers, and most recently Kennedy v. Louisiana, which barred the imposition of the death penalty for child rapists, the Court unequivocally recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of such punishments than are murderers.” Applying this principle to those serving JLWOP for nonhomicide crimes, the Court found that “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”

This acknowledgment was, of course, welcome news for Terrance Graham and the 128 other prisoners serving JLWOP for nonhomicide offenses. But the remaining 2,500-plus prisoners serving JLWOP for homicide were left to wonder why the Court’s sweeping statements about the similarities between the death penalty and JLWOP, the differences between kids and adults, the importance of redemption and hope, and the existence of an international consensus against all forms of JLWOP did not apply equally to them.

I have kept close track of Graham’s treatment on the ground since the decision. Up until the grants of certiorari in Miller and Jackson, the legal landscape for JLWOP abolitionists was bleak, to say the least.

Since Graham, lower federal courts and state courts took the Supreme Court at its word, unanimously rejecting attempts to extend Graham to homicide offenses. Citing the Graham Court’s unambiguous distinction between homicide and nonhomicide crimes, twenty-nine courts from thirteen states, including the Alabama Court of Criminal Appeals in Miller, and four federal courts, declined to extend Graham to fourteen– to seventeen-year-olds convicted of murder. All but six of these sentences (five of which were from California) were mandatory.

But Graham did not clarify what actually qualifies as a “nonhomicide” offense. Fourteen other courts, including the Arkansas Supreme Court in Jackson, denied relief to prisoners serving JLWOP for murder as a non-triggerman accomplice. In Jackson, however, two state Supreme Court justices filed a notable dissent arguing that Graham should be extended to cover non-triggerman accomplices as the defendant “did not kill and any evidence of intent to kill was severely lacking.” One other justice concurred in the judgment, but wrote separately to voice his dissatisfaction with the mandatory nature of the sentence imposed. More recently, in In re Sparks, the Court of Appeals for the Fifth Circuit permitted the defendant, who was sentenced to LWOP at age sixteen as a non-triggerman aider and abettor, to file a second (or successive) habeas corpus petition in federal court to resolve whether felony murder constitutes “homicide” under Graham.

Three state courts have reviewed the constitutionality of JLWOP for attempted murder, with a Delaware Court upholding the sentence, ruling that the dispositive issue was the “intent to kill,” and the First and Second Florida District Court of Appeals ordering resentencing because the conduct did not “result in death.” Arguments to extend Graham to life sentences with the possibility of parole for nonhomicides have not encountered such helpful ambiguity, however, even with sentences as high as 139 years: They have generally been unavailing, although a debate has been underway since Graham among various state and federal courts in California about whether de facto JLWOP sentences (that is, exceedingly long term of years sentences) benefit from Graham’s protection. So far, out of thirteen California nonhomicide cases, four sentences (ranging from fifty-six to 307 years) were deemed “de facto LWOP” and remanded in accordance with Graham.

Given this post-Graham legal landscape (where there is no substantial disagreement in the lower courts over Graham’s inapplicability to “homicide” crimes, including non-triggerman felony murderers, even under mandatory sentencing schemes, no matter how young the defendant), the recency and already-unprecedented nature of Graham, and the historically constrained Eighth Amendment review of sentences outside of the death penalty, it seemed highly unlikely that the Supreme Court would readdress the issue any time soon.

Which brings me back to how I began this commentary: Surprised by the Supreme Court’s decision to review the questions presented in Miller and Jackson, yet of course also intrigued, as the two cases provide an ideal vehicle for the Court to address several critical questions left unanswered by Graham.

The two somewhat more straightforward of these questions are (1) whether mandatory JLWOP is unconstitutional and (2) whether non-triggerman accomplice murder where no “intent to kill” is present falls within the ambit of Graham. In both cases, the plain language of Graham itself seems to compel the affirmative answers the petitioners seek.

As to the mandatory nature of the sentencing schemes, the Graham court itself explicitly noted that “criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.” Even Chief Justice Roberts, concurring in the judgment as to Terrance Graham’s sentence specifically, but arguing forcefully against the bright line drawn by the majority, demanded that sentencing judges be able to take the defendant’s youth into account on a case-by-case basis. As to the issue in Jackson of whether non-triggerman accomplice liability should be considered “homicide” or “nonhomicide,” as already discussed above, the heart of Graham’s holding was the recognition that “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”

The Court, therefore, could—and may— decide to simply rule narrowly in both cases, foregoing altogether the third, yet more fundamental question of whether children fourteen and younger are a distinct class of juveniles, who require greater Eighth Amendment protection—where JLWOP is unconstitutional in all circumstances, including homicide—than older juveniles aged fifteen to seventeen. Though the Supreme Court successfully dodged the issue last year by dismissing Sullivan, I find it hard to imagine a repeat this time around. The strength of Miller and Jackson, and the reason I think the Court was willing to grant certiorari so close in time to Graham, derives from this urged distinction between a “young adolescent” and “older teen.” This distinction is necessary to allow the Court, if a majority is reached, to rule that JLWOP is unconstitutional for murder without overturning Graham.

To encourage the Court to recognize young adolescents as a constitutionally significant category of offenders, the Miller and Jackson petitions primarily marshal brain science to show that the “three key features of youth” stressed for juveniles of all ages in both Roper and Graham—lack of maturity, vulnerability to negative external influences, and the fact that children “are not fully formed personalities”—“gain[] added force in considering the culpability of children fourteen years of age and younger.” The petitions subsequently describe and stress how the same rationales used in Roper and Graham to undermine each of the recognized “legitimate penological goals”—retribution, deterrence, incapacitation, and rehabilitation—apply to an even greater extent when considering younger adolescents.

Perhaps the clearest distinction though between the two age categories seems to be in national sentencing consensus. For while there are currently over 2,500 fifteen-to-seventeen year olds serving JLWOP for homicide in forty-one states, there are only seventy-three children age fourteen and younger who have been sentenced to JLWOP in only eighteen states (compared to the approximately 129 juveniles of any age sentenced to JLWOP for nonhomicide offenses found to be “exceedingly rare” in Graham). This “extreme rarity”—as the petitions put it—is even more striking considering that over the last twenty years 3,632 children age fourteen and younger were arrested for homicide, meaning that they received a life-without-parole sentence only two percent of the time.

I will not at this point go further and attempt to predict the ultimate outcome of these cases: Their very existence on the Supreme Court’s docket has made me weary of making any such predictions in the juvenile sentencing context, especially this early on in the game. Nonetheless, a relatively safe bet is that no matter how narrowly or broadly the Court rules, the decision will only apply to those aged fourteen and under. Every question on which the Court granted certiorari is limited to this distinct age group. Thus, no matter the outcome, the vast majority of individuals serving JLWOP will again remain without relief, including two defendants from Kuntrell Jackson’s home state of Arkansas, whose JLWOP sentences for accomplice murder committed at age sixteen and seventeen were recently upheld by the Arkansas Supreme Court.

In the meantime, advocates for JLWOP reform should not hold their breath for sweeping JLWOP changes following Miller and Jackson, but rather should continue to seek relief in lower federal and state courts, lobby state legislatures, which seem more and more likely to entertain JLWOP reform legislation, and as I have argued at length elsewhere, look to Congress for a potential federal fix.

Scott Hechinger, J.D., 2010, NYU School of Law, was the 2010-2011 Sinsheimer Children’s Rights Fellow at the Partnership for Children’s Rights in New York and currently serves as judicial law clerk for The Honorable Raymond J. Dearie of the U.S. District Court for the Eastern District of New York for the 2011-2012 term. He recently published “Juvenile Life Without Parole: An Antitode to Congress’s One-Way Criminal Law Ratchet” in The NYU Review of Law and Social Change.

In “Let ‘Em Play”: A Study in the Jurisprudence of Sport, Professor Mitchell Berman offers a thoughtful and engaging defense of the concept of temporal variance, the notion that “some rules of some sports should be enforced less strictly toward the end of close matches.”   In support of his position, Professor Berman draws on various professional sports, including tennis, basketball, and baseball.  Largely absent as a source of information or subject of the overall discussion is hockey, a sport with which Professor Berman acknowledges he is less familiar.

As it happens, I am a dedicated fan of hockey  and, coincidentally, this sport seems to expose problems with temporal variance.  Also, the idea that rules in sports should be enforced less strictly at certain moments of matches is not unlike the recurring and contemporary contention that the Constitution should not be strictly observed in times of war.   As it happens, I am also a professor of constitutional law with expertise  and experience  on the judicial enforcement of the Constitution in the post-9/11 context.  The purpose of this response is to address my concerns with temporal variance, which stem from my appreciation for the enforcement of rules in hockey and for the role of the courts in wartime settings.  These concerns may counsel the reader to reconsider the merits of temporal variance as a preferred or justifiable practice in sports or law.