Canon 4 of the Code of Ethics for Judicial Employees requires me to consult with my Judge regarding the appropriateness of blogging related to the law. After our conversation, I decided that to continue summarizing other cases might create the appearance of impropriety when the same issues could arise before my chambers. Clerks, like Caesar’s wife, must be beyond reproach.
While I could continue to blog until I start work this fall, I would rather avoid that appearance all together. Therefore, I am discontinuing this blog until after my clerkship ends, at some point in 2009. Thank you to the readers, and to those who have so graciously helped my readership grow.
I am leaving this blog up both because I hope to return, and so that the sidebar remains active to return the favor. If someone wishes to join this blog to write similar case summaries, I would also be interested in that, as I do not believe a passive association with the writing would create any negative appearance -- I would be in the same position as if I was reading a HLR case comment.
Thursday, May 29, 2008
Wednesday, May 21, 2008
Split Widened: Is Simple Battery a Crime of Physical Force?
Per United States v. Hays, 2008 WL 2108079 (10th Cir. May 20, 2008)
Steven Daniel Hays was convicted of simple battery under Wyoming law in 2003. The Wyoming statute criminalized “unlawfully touch[ing] another in a rude, insolent or angry manner or intentionally, knowingly or recklessly caus[ing] bodily injury to another.” He was then indicted for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. Under the federal statute, the previous conviction must have “as an element, the use or attempted use of physical force”. 18 U.S.C. § 921(a)(33)(A). The question in this case is whether the first part of the Wyoming statute – touching another in a rude manner – meets this requirement; because the majority holds that it does not, it did not reach the second part of the statutory definition.
The majority opinion, authored by Judge Seymour, finds that it does not. She holds that physical force, as used in the federal statute, means more than mere physical contact. Rather, “some degree of power or violence must be present”. Judge Seymour candidly notes that the circuits have split on this issue, with the CA 7,9 agreeing and the CAs 1,8, 11 all holding that rude or insolent touching does satisfy the federal requirement of physical force.
Judge Ebel cites these cases in his cogent dissent. He notes that the Wyoming statute does not criminalize mere touching, but rather “rude, insolent or angry” touching – precisely those kinds likely to lead to an escalation of violence. He openly encourages the Supreme Court to resolve the split in note four of his dissent. It will be interesting to see if the United States takes him up on the invitation
Steven Daniel Hays was convicted of simple battery under Wyoming law in 2003. The Wyoming statute criminalized “unlawfully touch[ing] another in a rude, insolent or angry manner or intentionally, knowingly or recklessly caus[ing] bodily injury to another.” He was then indicted for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. Under the federal statute, the previous conviction must have “as an element, the use or attempted use of physical force”. 18 U.S.C. § 921(a)(33)(A). The question in this case is whether the first part of the Wyoming statute – touching another in a rude manner – meets this requirement; because the majority holds that it does not, it did not reach the second part of the statutory definition.
The majority opinion, authored by Judge Seymour, finds that it does not. She holds that physical force, as used in the federal statute, means more than mere physical contact. Rather, “some degree of power or violence must be present”. Judge Seymour candidly notes that the circuits have split on this issue, with the CA 7,9 agreeing and the CAs 1,8, 11 all holding that rude or insolent touching does satisfy the federal requirement of physical force.
Judge Ebel cites these cases in his cogent dissent. He notes that the Wyoming statute does not criminalize mere touching, but rather “rude, insolent or angry” touching – precisely those kinds likely to lead to an escalation of violence. He openly encourages the Supreme Court to resolve the split in note four of his dissent. It will be interesting to see if the United States takes him up on the invitation
Welcome Back
The last month has been incredibly busy for me. I attended a college reunion as well as beach week. I finished a sports season, in which my team made it to the sweet sixteen round of the national playoffs before losing by one goal. Finally, and most importantly, I am now engaged.
I made the obvious choice to leave off blogging in the interim. I now rejoin the debate, rejuvenated by my time off. There has been much going on in my time off. I wanted to mourn the passing of my main inspiration – Decision of the Day. Robert Loblaw has performed a great service for almost three years, and deserves much more than the humble praise that I can offer. I also intend to respond, albeit belatedly, to Feddie’s call for ideas.
For now though, I will return to my main occupation – discussing appellate opinions that create or note circuit splits. It is my hope that my regular readers will rejoin me in due course. Please, as always, feel free to drop me an email regarding this blog’s coverage or your interest.
I made the obvious choice to leave off blogging in the interim. I now rejoin the debate, rejuvenated by my time off. There has been much going on in my time off. I wanted to mourn the passing of my main inspiration – Decision of the Day. Robert Loblaw has performed a great service for almost three years, and deserves much more than the humble praise that I can offer. I also intend to respond, albeit belatedly, to Feddie’s call for ideas.
For now though, I will return to my main occupation – discussing appellate opinions that create or note circuit splits. It is my hope that my regular readers will rejoin me in due course. Please, as always, feel free to drop me an email regarding this blog’s coverage or your interest.
Friday, April 25, 2008
Split Widened: Is Consular Notification (Or Notification Of the Availability Consular Notification) An Actionable Individual Right?
Per Mora v. People of N.Y., 2008 WL 1820836 (2d Cir. Apr. 24, 2008)
Medellin made waves when came down, but it turns out the Supreme Court in that case (as with others before it) did not decide an issue that had split the circuits: Whether the Vienna Convention’s provision requiring police officers to notify detainees that they could communicate with their consulate. Instead a majority of the court Court assumed, without so holding, that the Vienna Convention did so. The Circuits have split on this issue. The CAs 4,5,6,9, and now 2 hold that the Vienna Convention does not create judicially-enforceable rights, whereas the CA 7 holds that it does. The separate question of whether the Vienna Convention is self-executing was not raised in this case.
Article 36(b) provides: “if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;”
The CA 7 says that this language is clear that it creates an individually enforceable right; how else can you read “of his rights.” Moreover, the CA 7 argues, this is clearly not a right conferred on the sending State, because its exercise depends on the request of the detainee. As final support for its position, the CA 7 looks to State Department circulars, and DOJ regulations referring to Article 36 as providing an individual right.
The CA 2 disagrees, noting that the obligation to inform a detainee of his rights is, itself, never phrased as a right; nor does this or any other provision of the Vienna Convention state whether private individuals can pursue judicial enforcement of the treaty in the domestic courts of the States-party. The CA 2 also relies on the Preamble to Article 36 and the Convention as a whole, which disclaim any purpose to benefit individuals. Finally, the State Department submitted an amicus brief in conjunction with the Department of Justice urging the conclusion that the Convention does not confer a judicially-enforceable individual right. The CA 2 says the views of the Executive concerning treaty interpretation are entitled to great deference.
As an interesting aside, the panel requested the United States to provide information regarding other states’ practices with regards to private suits for money damages for violations of Article 36. 91 countries replied, 90 of which do not permit such suits to go forward. In addition, the State Department informed the panel that only a handful of countries had interpreted Article 36 as providing an individual right. The opinion does not state, however, how many of the countries had interpreted the Article the other way (i.e. if the handful was 100% or 10% of the countries to have considered the question). Such state practice is meaningful in the interpretation of treaty obligations.
Medellin made waves when came down, but it turns out the Supreme Court in that case (as with others before it) did not decide an issue that had split the circuits: Whether the Vienna Convention’s provision requiring police officers to notify detainees that they could communicate with their consulate. Instead a majority of the court Court assumed, without so holding, that the Vienna Convention did so. The Circuits have split on this issue. The CAs 4,5,6,9, and now 2 hold that the Vienna Convention does not create judicially-enforceable rights, whereas the CA 7 holds that it does. The separate question of whether the Vienna Convention is self-executing was not raised in this case.
Article 36(b) provides: “if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;”
The CA 7 says that this language is clear that it creates an individually enforceable right; how else can you read “of his rights.” Moreover, the CA 7 argues, this is clearly not a right conferred on the sending State, because its exercise depends on the request of the detainee. As final support for its position, the CA 7 looks to State Department circulars, and DOJ regulations referring to Article 36 as providing an individual right.
The CA 2 disagrees, noting that the obligation to inform a detainee of his rights is, itself, never phrased as a right; nor does this or any other provision of the Vienna Convention state whether private individuals can pursue judicial enforcement of the treaty in the domestic courts of the States-party. The CA 2 also relies on the Preamble to Article 36 and the Convention as a whole, which disclaim any purpose to benefit individuals. Finally, the State Department submitted an amicus brief in conjunction with the Department of Justice urging the conclusion that the Convention does not confer a judicially-enforceable individual right. The CA 2 says the views of the Executive concerning treaty interpretation are entitled to great deference.
As an interesting aside, the panel requested the United States to provide information regarding other states’ practices with regards to private suits for money damages for violations of Article 36. 91 countries replied, 90 of which do not permit such suits to go forward. In addition, the State Department informed the panel that only a handful of countries had interpreted Article 36 as providing an individual right. The opinion does not state, however, how many of the countries had interpreted the Article the other way (i.e. if the handful was 100% or 10% of the countries to have considered the question). Such state practice is meaningful in the interpretation of treaty obligations.
Thursday, April 24, 2008
Split Created: Is Claim-Splitting Permitted By The Contract Disputes Act?
Per Phillips/May Corp. v. United States, 2008 WL 1808548, *5-*9 (Fed. Cir. Apr. 23, 2008)
Now I have truly covered every circuit. Phillips/May was awarded a contract to design and construct a Religious Ministry Facility at a military base. It completed the project over a year and a half late, after various contract modifications were made. A month after completing work, Phillips/May submitted ten claims to the Contracting Officer. The officer failed to act on any of these claims, and this inaction constituted an appealable rejection after sixty days. Phillips appealed nine of the ten claims the Armed Services Board of Contract Appeals Ultimately, the parties entered into a global settlement agreement with respect to the nine claims, and the Board entered judgment to that effect.
Six months later, Phillips/May appealed the denial of the tenth claim to the Court of Federal Claims. After the suit was filed, the Contracting Officer offered a determination that Phillips/May was collaterally estopped from raising this claim separate from the other nine claims which arose out of the same set of transactional facts. The question in this appeal is whether the unique procedures of the Court of Federal Claims and public contract disputes permit claim-splitting without raising issues of res judicata, contrary to the general procedure of civil actions.
41 U.S.C. § 609(d) suggests that claim-splitting is permitted in contract actions: “If two or more suits arising from one contract are filed in the United States Court of Federal Claims and one or more agency boards,” the Court of Federal Claims may consolidate them in the interests of justice. This provision does envision separate suits arising from the same contract, and would seemingly resolve this case.
Judge Dyk, on behalf of a unanimous panel, however, notes that this provision does not clearly state that the splitting of all claims, as opposed to transactionally unrelated claims, is permissible. Relying on this ambiguity, this panel of the Federal Circuit then turns to the drafting and legislative history of the Contracts Dispute Act. Congress specifically included, considered, and finally eliminated statutory language which would have expressly permitted claims-splitting between fora. The panel concludes that this rejection implies that Congress intended for claim preclusion to apply with its normal force. The panel does recognize, in a footnote, that it is creating a circuit split from the CA 6.
I think that the Federal Circuit in this case gets Congress’s intent 100% right, and the language of the statute 100% wrong. The manufactured ambiguity just isn’t there. The statutory section permits separate suits “arising from one contract,” meaning separate suits that arise from similar facts. It will be interesting to see what happens if Phillips/May pursues certiorari – an issue of statutory interpretation on which the circuits are split and that governs the jurisdiction of courts when reviewing public contracts seems important enough... Then again, the split is largely irrelevant because almost all these cases go to the Federal Circuit.
Now I have truly covered every circuit. Phillips/May was awarded a contract to design and construct a Religious Ministry Facility at a military base. It completed the project over a year and a half late, after various contract modifications were made. A month after completing work, Phillips/May submitted ten claims to the Contracting Officer. The officer failed to act on any of these claims, and this inaction constituted an appealable rejection after sixty days. Phillips appealed nine of the ten claims the Armed Services Board of Contract Appeals Ultimately, the parties entered into a global settlement agreement with respect to the nine claims, and the Board entered judgment to that effect.
Six months later, Phillips/May appealed the denial of the tenth claim to the Court of Federal Claims. After the suit was filed, the Contracting Officer offered a determination that Phillips/May was collaterally estopped from raising this claim separate from the other nine claims which arose out of the same set of transactional facts. The question in this appeal is whether the unique procedures of the Court of Federal Claims and public contract disputes permit claim-splitting without raising issues of res judicata, contrary to the general procedure of civil actions.
41 U.S.C. § 609(d) suggests that claim-splitting is permitted in contract actions: “If two or more suits arising from one contract are filed in the United States Court of Federal Claims and one or more agency boards,” the Court of Federal Claims may consolidate them in the interests of justice. This provision does envision separate suits arising from the same contract, and would seemingly resolve this case.
Judge Dyk, on behalf of a unanimous panel, however, notes that this provision does not clearly state that the splitting of all claims, as opposed to transactionally unrelated claims, is permissible. Relying on this ambiguity, this panel of the Federal Circuit then turns to the drafting and legislative history of the Contracts Dispute Act. Congress specifically included, considered, and finally eliminated statutory language which would have expressly permitted claims-splitting between fora. The panel concludes that this rejection implies that Congress intended for claim preclusion to apply with its normal force. The panel does recognize, in a footnote, that it is creating a circuit split from the CA 6.
I think that the Federal Circuit in this case gets Congress’s intent 100% right, and the language of the statute 100% wrong. The manufactured ambiguity just isn’t there. The statutory section permits separate suits “arising from one contract,” meaning separate suits that arise from similar facts. It will be interesting to see what happens if Phillips/May pursues certiorari – an issue of statutory interpretation on which the circuits are split and that governs the jurisdiction of courts when reviewing public contracts seems important enough... Then again, the split is largely irrelevant because almost all these cases go to the Federal Circuit.
Wednesday, April 23, 2008
Fun: What Frequently Cited Law Review Article Has Had The Biggest Influence In The Courtroom?
This blog has previously discussed what popular television show has appeared most frequently in the pages of the Federal Reporter. Prompted by this recent trivia post at PrawfsBlawg, I decided to see if the law review articles that had a major effect within academia also had a similar effect outside the ivory tower, more specifically, in the courtroom.
I selected the top thirty articles as listed on PrawfsBlawg and described in Fred Shapiro’s 1996 law review article. Some of these articles were too old to be included in the Westlaw database themselves, so I could not use the citing references tool. Instead, I structured a search looking for the author’s last name within a paragraph of the title within a paragraph of one of the journal identifiers within a paragraph of the year of publication. For example, the search for the law review article most cited in other articles was: Coase /p “The Problem of Social Cost” /p Econ! /p 1960. I performed this search within the allcases and cta databases of Westlaw separately.
My table of results can be found here (PDF). Looking at the data, three quick conclusions came to mind. First, it is good to be a Justice – even your academic writings are frequently cited in court materials. The top two articles were published over a century ago, and only three of the top ten were published after 1970. Four of the top five also deal with issues of individual rights, whereas the fifth deals with the study of law as a science. These facts lead to the second conclusion – law review articles were more influential in the past, when they dealt with black-letter law. For more on this phenomenon, see here (NY Times article), here (Volokh discussion and linkwrap), and here (.PDF study). The final conclusion is not all that surprising. Some of the articles which have proved the most influential in the academy have not been able to reach outside the ivory tower and into the courtroom. (This author thinks that might be for the better).
I selected the top thirty articles as listed on PrawfsBlawg and described in Fred Shapiro’s 1996 law review article. Some of these articles were too old to be included in the Westlaw database themselves, so I could not use the citing references tool. Instead, I structured a search looking for the author’s last name within a paragraph of the title within a paragraph of one of the journal identifiers within a paragraph of the year of publication. For example, the search for the law review article most cited in other articles was: Coase /p “The Problem of Social Cost” /p Econ! /p 1960. I performed this search within the allcases and cta databases of Westlaw separately.
My table of results can be found here (PDF). Looking at the data, three quick conclusions came to mind. First, it is good to be a Justice – even your academic writings are frequently cited in court materials. The top two articles were published over a century ago, and only three of the top ten were published after 1970. Four of the top five also deal with issues of individual rights, whereas the fifth deals with the study of law as a science. These facts lead to the second conclusion – law review articles were more influential in the past, when they dealt with black-letter law. For more on this phenomenon, see here (NY Times article), here (Volokh discussion and linkwrap), and here (.PDF study). The final conclusion is not all that surprising. Some of the articles which have proved the most influential in the academy have not been able to reach outside the ivory tower and into the courtroom. (This author thinks that might be for the better).
Tuesday, April 22, 2008
Splits Noted: Issues concerning the Piracy of Encrypted Satellite Television Signals
- Does 47 U.S.C. § 605(e)(4) Apply to end-users of Piracy Devices?
- Does a District Court Have Discretion Not To Award Damages For Piracy of an Encrypted Satellite Signal Under the Wiretap Act?
Per DIRECTV, Inc. v. Rawlins, 2008 WL 1777856, *7-*10 (4th Cir. Apr. 21, 2008)
With the coverage of this case, this blog has now covered a case from every circuit court capable of creating or noting a circuit split. It has also had visitors from every inhabited continent, and over 1,300 unique visitors. The most visitors continue to come from the U.S. Courts. I want to thank again those who have helped me start up, particularly Appellate Law & Practice, California Blog of Appeal, Decision of the Day, Obsidian Wings, Sentencing Law & Policy, and Southern Appeal. Please visit those blogs (links on the side) to help me thank them.
DIRECTV has been vigilant in pursuing actions against those who pirate its satellite television signal, instituting legal action against more than 25,000 defendants (see here). It commenced the instant action against defendant Rawlins after discovering evidence that he had purchased five devices enabling Rawlins to watch DIRECTV programming without paying for a subscription. DIRECTV alleged violations of the Cable Act and the Wiretap Act. After Rawlins failed to appear, DIRECTV moved for default judgment including a permanent injunction, statutory damages, attorneys’ fees, and costs. The district court granted summary judgment, entered an injunction, awarded DIRECTV costs and fees, but denied statutory damages under either Act. DIRECTV only appealed the denial of damages under the Wiretap Act.
Nonetheless, Judge Duncan considers the history and provisions of both acts as they apply to this case. The Cable Act proscribes the unauthorized reception of an encrypted satellite signal by end users, 47 U.S.C. § 605(a), and the manufacture, assembly, modification, importation, exportation, sale, or distribution of piracy devices or equipment, 47 U.S.C. § 605(e)(4). The former provision is punishable by statutory damages of not less than $1,000 and not more than $10,000, whereas the latter provision is punishable by statutory damages of not less than $10,000 and not more than $100,000. 47 U.S.C. § 605(e)(3)(C)(i)(II). Any award of damages is subject to the discretion of the district court.
The panel, unanimous on this point, notes that the circuits have split on the question of whether § 605(e)(4) may be applied to end-users (CA 4,5) or is limited to upstream manufacturers (CA 9, several district courts). In this case, the district court denied summary judgment to DIRECTV on its claim under § 605(e)(4), finding that that section was limited to upstream manufacturers. Even though the trial judge did not mention the contrary Fourth Circuit precedent on this issue, the panel does not address it because DIRECTV did not appeal the failure to award damages under the Cable Act.
Pirating a satellite signal also violates the Wiretap Act, which forbids the interception of any wire, oral, or other electronic communication. 18 U.S.C. § 2511(1)(a). Like the Cable Act, the Wiretap Act provides a civil remedy to those harmed by violations of its provisions. 18 U.S.C. § 2520. The statute provides for mandatory damages for the piracy of non-encrypted satellite communications in an amount ranging from $50-$1000. 18 U.S.C. § 2520(c)(1). For the theft of encrypted satellite communications, the statute provides for discretionary statutory damages in amount of $10,000 or $100 per day for each day of violation, whichever is greater. 18 U.S.C. § 2520(c)(2).
As this case concerns the piracy of DIRECTV’s encrypted signal, the latter provision applies. Judge Duncan notes that, despite the statute’s permissive language (“may”), the circuits have split over whether the award of damages under § 2520(c)(2) is discretionary. The CAs 4,6,8,11 all hold that it is discretionary, whereas the CA 7 requires a court to award damages.
Having thus concluded that the decision to award damages under either act lies within a district court’s discretion, the panel concludes the trial judge in this case abused his discretion by considering legally irrelevant factors. It therefore remands to the district court to consider whether damages under the Wiretap Act would be appropriate in light of the relevant concerns.
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