Especially when “the Law” are police officers mounted on horses, riding in the direction of rioters. This photo is part of a dramatic Washington Post photo gallery on the riots in north London after a 29 year-old man died during an attempted arrest.
Official caption: “Mounted police officers chase rioters on the streets in Tottenham. Lewis Whyld / Associated Press.”
[The suit] appears to allege quite remarkable facts. The John Doe plaintiff, a U.S. citizen and Army veteran who was serving as a contractor in Iraq in 2004 as an Arabic translator, was “detailed to a United States Marine Corps Human Exploitation Team operating in the United States military bases along the Iraq-Syria border.” Doe alleges that he was detained by U.S. forces and held for more than nine months at Camp Cropper and subjected to various coercive interrogation practices there–before being released and allowed to return to the United States. For three months, he was held, he claims, in communicado. At other times, he was held with hard-core Al Qaeda. His personal property, he claims, has never been returned, and he remains on a terrorist watch list that makes him subject to scrutiny whenever he returns to the country from international travel.
One quibble with the text of the opinion itself: hyperlinks to case law in the opinion? Excellent. Those hyperlinks going to Westlaw? Big public access fail.
The Justice Department on Monday filed a lawsuit in the U.S. District Court for the Northern District of Alabama, alleging that Alabama’s recently-enacted state immigration law, referred to as H.B. 56, is unconstitutional. A short summary from the New York Times states:
The law, which goes beyond an immigration enforcement bill Arizona adopted last year, requires public schools to determine the immigration status of all students starting in kindergarten and makes it a crime to knowingly give a ride in a vehicle to an illegal immigrant. It requires police officers to inquire about the status of anyone they stop if they suspect the person might be an illegal immigrant.
The new lawsuit filed by the Justice Dept. has three causes of action:
The full complaint is below.
Sailing to Hastings -- Bayeux Tapestry, Bayeux / Personal picture taken by user Urban, February 2005. Shared under CC license.
Yesterday I was going along, reading a 1994 Pennsylvania Supreme Court decision, Commonwealth v. Leet, 537 Pa. 89, 641 A.2d 299 (Pa. 1994). The case deals with whether a sheriff in Pennsylvania can make warrantless arrests for violations of the Pa. Vehicle Code that are committed in the sheriff’s presence. (Short answer: Yes).
To discover what powers sheriffs had at common law in England, the Leet Court states that “even prior to the Conquest, the sheriff was a powerful officer, with both judicial and executive powers.” I stopped right there. “The ‘Conquest?’” I thought to myself. “Do they mean the Norman Conquest? The Norman Conquest that happened all the way back in 1066? And if so, when did it become acceptable to just call it ‘the Conquest?’”
In the next sentence I discovered that the Court did indeed mean to discuss the powers of the sheriff before the Norman Conquest of 1066, citing to a book about said Conquest. The Court discussed it further:
The sheriff nonetheless played a central role in the English civil courts from before the Norman Conquest until the Magna Carta; the sheriff was, at the beginning of the period, “a great local lord.” Stenton, English Justice: 1066-1215, at 80. Prior to the Conquest and in the decades immediately thereafter, the sheriff was more akin to a judge than a law enforcement officer, id. at 48, 55, 74, sheriffs serving at times as appellate judges, id. at 57.
It’s almost as if the justices on the Pennsylvania Supreme Court had a contest to see who could get the earliest possible historical reference into a judicial opinion; 1066 is certainly a very strong contender. Anyway, I’m still a little baffled as to how it’s acceptable to refer to the Norman Conquest on first reference as merely “the Conquest,” but perhaps any other conquest is not nearly so notable as the Norman one.
And if you know about 1066 and All That, that is a Good Thing.
Newly retired Supreme Court Associate Justice David Souter discusses his future plans at a Constitution Day appearance at Harvard Law School in 2009. Photo by Matthew Hutchins. Shared under CC license.
You would think that retirement for a Supreme Court justice would be quite relaxing: after years of reading briefs and working on opinions, a justice would be able to relax and take a break from all of the work of deciding cases. Someone apparently forgot to tell this to Justice David Souter. In an ABA Journal piece looking at the post-retirement activities of Justices O’Connor, Stevens, and Souter, the justice from New Hampshire is described as “less visible than his fellow ex-justices. But he has hardly been a recluse. Like O’Connor, Souter has served by designation on federal appeals court panels, and he even wrote the decision in a case last year. (Stevens has not yet served on any appeals panels.)”
Justice Souter has written more than just one decision when serving on appeals courts panels; he’s written several. By my research, he’s written a total of 25 published and unpublished decisions — all of them as part of close-to-home First Circuit panels. Among the highlights:
After the jump, citations for the rest of Justice Souter’s published First Circuit opinions to date, if you’re really interested…
So many starred items to share from my Google Reader account, so little time:
Makeshift Metropolis: Ideas About Cities, by Witold Rybczynski. Summer means non-law reading, like this fascinating and accessible book on the history of city planning ideas over the last century (give or take a few decades). It has a good overview of the City Beautiful and Garden City movements, along with the unrealized ideas of Le Corbusier and Frank Lloyd Wright, along with plenty of observations about how different cities (NYC, Philly, DC, Chicago, etc.) work and don’t work.
During the July 7, 2005 London bombings, the person that posted this screenshot noted: "This Wikipedia entry has been updated nearly once every 30 seconds for the entire day." Clay Shirky also alluded to this example in his book, Here Comes Everybody. Probably an example where frequent edits in the heat of the moment could potentially compromise reliability, even as it serves a powerful information-disseminating function. Flickr photo shared under CC license by Jem Stone.
Previously, I had highlighted some of the more acceptable uses of Wikipedia in judicial opinions, according to Lee Peoples’ article, The Citation of Wikipedia in Judicial Opinions. I promised a look at some of the questions Joseph Gerken would want judges to ask, drawn from his article, How Courts Use Wikipedia, 11 J. App. Prac. & Process 191 (2010).
Gerken introduces the discussion of what questions courts should ask with this statement: “It would be simplistic simply to ask whether courts should cite Wikipedia. The cases demonstrate that there are at least some occasions when citing Wikipedia is at worst harmless and at best potentially beneficial. The more important questions, summarized below, are contextual.” Id. at 223.
Gerken’s Questions:
A court must take special care that, in using Wikipedia, it is not either displacing witnesses and the jury by taking a contested factual issue out of the trial arena or depriving counsel of the opportunity to rebut and respond to a factual assertion by introducing a Wikipedia entry sua sponte. These questions related to displacement of roles are of primary importance because disregarding them could lead the court to commit reversible error.
Id. at 226.
There you have it. Not only are these questions good for judges to think about, I would imagine they’re good for anyone else doing legal writing — attorneys, law clerks, and law students. If you want to read the full text of Gerken’s article (and you should, it’s interesting!), it is available on HeinOnline or Wexis.
You’re going along, reading a judge’s opinion or a brief in a case, following the analysis or the argument, when a citation stops you cold. Not just any citation. But a citation to Wikipedia.
“Uhh, ok,” you think to yourself. “Why is there a cite to Wikipedia? They couldn’t have done any better?” Skepticism is not something that I would assume is helpful to your case when you create it in the mind of a legal reader.
I am far from a Wikipedia hater. While I haven’t ever edited a Wikipedia article, I’d say I use it fairly often to get a handle on basic information. But the aspects of Wikipedia that make it a strong resource for basic information can make it a troubling resource in a legal setting. Many commentators and judges have pointed out that relying on Wikipedia in a legal setting is concerning 1] because the open edit nature of Wikipedia means that information can be changed quickly, and 2] because of the sometimes “dubious quality” of the information in some Wikipedia articles. See Lee F. Peoples, The Citation of Wikipedia in Judicial Opinions, 12 Yale J. L. & Tech. 1, 3 (2010).
Potentially more authoritative than many Wikipedia articles. ""The Iraq War: A Historiography of Wikipedia Changelogs" is a twelve-volume set of all changes to the Wikipedia article on the Iraq War. The twelve volumes cover a five year period from December 2004 to November 2009, a total of 12,000 changes and almost 7,000 pages."
Joseph L. Gerken, a reference librarian at the University of Buffalo Law Library, surveyed the various ways in which courts have cited Wikipedia in judicial opinions, and found that citations to the online encyclopedia were often innocuous, whether it was used as support for a quip or other dictum, to fill gaps in the record due to a case’s procedural posture (like in pro se civil rights cases), to clarify medical facts and religious practices, decoding police jargon, or in clarifying terms used in Social Security cases. Joseph L. Gerken, How Courts Use Wikipedia, 11 J. App. Prac. & Process 191, 193-99 (2010).
So when, if ever, would it be appropriate to use Wikipedia in a judicial opinion? Perhaps a better question is to ask when it should not be used. Peoples notes several situations in which a judicial opinion should not use Wikipedia:
Peoples thinks that courts could use Wikipedia when a party relies on a Wikipedia article and discussion of it would be appropriate; to help define a variety of words like new slang terms, pop culture references, and technical and computer terms; for evidence of common usage or plain meaning of a contract term; for determining current community standards or public perception in trademark cases; to assess the substance of expert testimony; to use as a jumping-off point for other sources; and last, to assist in discussing a collateral matter that is not central to the case. Id. at 31-33.
Gerken agrees that in general, some citations to Wikipedia in judicial opinions may be permissible. Next time, a look at the questions he’d want courts to ask.
The New York Times posted one of its Room for Debate features on asylum adjudication in the wake of an article about falsified asylum claims. These claims got more attention after the revelation that the accuser of Dominique Strauss-Kahn falsified parts of her asylum application.
The piece focuses on many valuable changes, including the Refugee Protection Act and the need for independent immigration courts. It’s great to see these proposed changes get some attention.
[I've written about the Refugee Protection Act previously.]
[I]t will be interesting to see how a movement to more experiential learning models may impact public interest programming at law schools. Clinical programs, externships, and pro bono work are already among the main avenues through which students can get hands-on legal experience, so it’s possible that a push toward more experiential learning programs may lead to a boost in public interest opportunities.
Everybody in America is entitled to an opinion on anything. But I’ve covered a lot of criminal trials and served on several juries. I have seen a jury convict a member of my immediate family. And all of that has made me reluctant to criticize a jury’s work. … Juries can reach wrong verdicts. But justice will succeed when juries know that if they take their responsibilities seriously — and most juries I have seen close-up have — they are free to reach decisions they know may be unpopular.
