Monthly Archives: April 2016

Carter Coal Lives

trainstatusThe DC Circuit issued a major separation of powers ruling today in Ass’n of American Railroads v. DOT. The main part of the opinion adopts a view of the non-delegation doctrine that I explained and relied on as part of the argument in my article Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17 (2000), so I’m glad about that–at least in principle; whether these facts justified invocation of the doctrine I leave for others to decide. The legal issue was whether in addition to the well-known and now rather (but not utterly) toothless non-delegation doctrine that limits the breadth and discretion that Congress might give a federal agency, there is a parallel doctrine, rooted in the Due Process Clause and in the Carter Coal case, that prevents Congress from giving public regulatory power to self-interested parties who might then wield it against their competitors.

To reach that doctrinal point, the panel (Judge Brown and Senior Judges Sentelle and Williams), had to decide that Amtrak is not a governmental body for Due Process non-delegation purposes. I’m not so sure about that given the previous decisions of the Supreme Court relating to Amtrak, which have treated it as governmental for other purposes.

I have rather more serious doubts about the panel’s alternate holding that the arbitrator who could have been appointed to settle disputes between Amtrak and the plaintiff railroad would have been an Officer of the United States, and not an inferior officer. There are two issues here, both en banc and cert bait. First, there’s the question of ripeness. The panel argues that this is a structural violation, and that even the threat of an improperly appointed decision-maker down the road so taints the process that it must be thrown out before it is even invoked. That is plausible, but not compelling. More difficult to swallow is the method by which the panel decided that the official in question was not inferior but a full Officer. Suffice it to say that the panel got there from what amount to first principles, a process that (too conveniently) ignored the two major modern Supreme Court cases on the topic. If those cases, Morrison v. Olson and Free Enterprise Fund v. PCAOB had not existed, the panel’s opinion might be hailed as a model of clarity and simplicity. As it neither cites nor, I would argue, much follows them, I think the case for further proceedings may be strong.

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Mysteries of Twitter (II)

Question-markEach section of JOTWELL is set up with a basically identical wordpress blog. (Don’t ask why, there were good reasons to do it that way when we started.)

Each section forwards posts to twitter via Twitter Feed. The tweets appear at the Jotwell twitter feed. Most of them look terrible — the user photo we run is blown up to show a gigantic close-up of the author’s forehead! But some don’t. They look just like they should. I can’t figure out what’s different about them.

Bonus puzzle: Back in 2011, one Jason Otwell grabbed the “Jotwell” handle on Twitter. He posted once in 2012, once in 2014, and once in 2015. I’d like to ask him if he’d donate the account to us – it would be a good deed and might be worth a charitable donation. But either I can’t locate him, or can’t get him to return my snail mail or email. How do I figure out how to communicate with him?

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Mysteries of Twitter

Something is duplicating my blog posts on Twitter. Or rather, two somethings.

Doubtlessly, they are both things I set up myself some time long in the past, set and forgot. Now I have to reverse engineer it to figure out what they are.

The one that makes nicer posts is Twitterfeed. I want to keep that one and kill the other one. But I not sure what the other one is. Presumably it should show up in the — shockingly long — list of Twitter Apps I’ve enabled, which is how I cottoned on to Twitterfeed. Perhaps the other is WordPress’s native twitter feed which I hope I’ve disabled.

This post will tell.

(Of course the real mystery of Twitter is how I ended up on the list of Top 50 Law Professors to Follow on Twitter, when almost all my Tweets come from this blog…. Oh well, I’m near the bottom, maybe I’ll fall off next year.)

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Everyone Hates Cruz

Add John Boehner to the list:

“Lucifer in the flesh,” the former speaker said. “I have Democrat friends and Republican friends. I get along with almost everyone, but I have never worked with a more miserable son of a bitch in my life.”

I don’t see it in the archives, but it’s hard to believe I haven’t blogged my favorite Ted Cruz joke yet:

Q: Why should people hate Ted Cruz on sight?

A: It saves time.

OK, it’s my only Ted Cruz joke so far, but comments are open.

Previously: Tell Us What You Really Think

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None Dare Call it Perjury?

FBI analysts gave consistently false testimony for 20 years, leading to hundreds of convictions, including at least 32 defendants sentenced to death. “Of those, 14 have been executed or died in prison.”

Yet the Washington Post manages to write an entire article about this conspiracy to pervert the course of justice without using the words “perjury” or “conspiracy”. Seems we’re calling it “flawed testimony” this year: FBI admits flaws in hair analysis over decades.

The issue is the (lack of) scientific validity and certainty of supposedly incriminating forensic evidence such as the comparison of hair samples and bite marks:

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

The findings likely scratch the surface. The FBI said as of mid-April that reviews of about 350 trial testimonies and 900 lab reports are nearly complete, with about 1,200 cases remaining.

The bureau said it is difficult to check cases before 1985, when files were computerized. It has been unable to review 700 cases because police or prosecutors did not respond to requests for information.

Also, the same FBI examiners whose work is under review taught 500 to 1,000 state and local crime lab analysts to testify in the same ways.

I suppose it is possible that in some cases the FBI examiners didn’t understand that they had been trained to lie, and in those cases it was merely a (in some cases literally fatal) denial of due process rather than perjury, due to a lack of mens rea. But surely at least some of the examiners, or the trainers, have to have known what they were doing?

Anyway, according to 18 U.S.C. § 3282, the statute of limitations for perjury is five years, and the most recent of these cases is 16 years old, so I guess everyone at the FBI is safe.

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They Deserve Each Other

We deserve better.


Cruz Pre-Taps Fiorina. Photo: Flickr/Gage Skidmore

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