En Garde!

What with the Supreme Court eroding the Fifth Amendment today (Scalia's back to whittling away at the Bill of Rights this week), I don't feel like engaging in any detailed state-of-the-law reportage. (Though if I did, I would acknowledge that our stochastic Court occasionally gets it right, as in striking the Arizona "evidence of citizenship" law as adding new requirements to voting registration beyond those set forth by Congress in the National Voter Registration Act, which preempts contradictory state laws--a result that is clearly right as a matter of statutory interpretation and constitutional construction.)

No, sorry.

I'd rather play with swords. And here's a glimpse:



OK, OK, not as dramatic as this:



Still, the only sport I've ever enjoyed.

How to *Really* Succeed at an Internship...

Or, simply, sue.

So, some years ago, I had a trial in front of the United States District Judge William H. Pauley, who struck me as a consistently fair, if tough, judge.

These traits can be seen in his opinion in Glatt v. Fox Searchlight Pictures, in which he held that interns who "worked as paid employees work, providing an immediate advantage to their employer and performing low-level tasks not requiring specialized training," were "classified improperly as unpaid interns and are 'employees' covered by" the the Fair Labor Standards Act ("FLSA") as well as New York's labor laws. Judge Pauley's reasoning on these factors is instructive as to what constitutes employment and what an internship:

1. Primary Benefit: "Searchlight received the benefits of their unpaid work, which otherwise would have required paid employees. Even under Defendants' preferred test, the Defendants were the 'primary beneficiaries' of the relationship, not Glatt and Footman."

2. No Formal Training Program:

Undoubtedly, Glatt and Footman received some benefits from their internships, such as resume listings, job references, and an understanding ofhow a production office works.68 But those benefits were incidental to working in the office like any other employee and were not the result ofinternships intentionally structured to benefit them. Resume listings and job references result from any work relationship, paid or unpaid, and are not the academic or vocational training benefits envisioned by this factor.

3. Displacing Employees:

Glatt and Footman performed routine tasks that would otherwise have been performed by regular employees. In his first internship, Glatt obtained documents for personnel files, picked up paychecks for coworkers, tracked and reconciled purchase orders and invoices, and traveled to the set to get managers' signatures. His supervisor stated that "[i]fMr. Glatt had not performed this work, another member ofmy staffwould have been required to work longer hours to perform it, or we would have needed a paid production assistant or another intern to do it.

(H/T to Rebecca Greenfield's analysis of the opinion, the structure of which which I have adopted after reviewing the opinion myself).

Judge Pauley denied summary judgment against the plaintiffs, and certified that the matter was properly brought as a class action, appointing a class representative. In view of the small amount of individual damages, and the expenses of federal litigation, that makes these claims (for now, at any rate) economically viable. The case is one to watch, as all if the plaintiffs prevail and the appellate courts affirm, the way internships are administered will change for many companies.

The Kindness of Strangers

So, I was traveling today from Albany back home to Brooklyn.

The rain started coming down while I was up there, and had reached near-Biblical proportions by the time I was nearing Kingston, New York on the way home.



A perfect time (not) to blow a tire.

Seriously.

I pulled off the Thruway, and, with my unerring Pathfinder sense of direction, managed to get hopelessly lost. Spying a Stewarts sign, I pulled in, and stalking into the shop, got considerably wet in doing just that. The two young ladies behind the counter were cheery and let me use the phone (the total failure of my cell phone carrier up there is a byword in the town, apparently.) They also recommended the chili, while I waited. The man from AAA came in a flash (I hadn't even finished the chili), and, rather than put the spare on, he methodically fixed the tire (!).

So really, this is a shout out to the good people of Hurley, New York; the kind ladies at the Post Office, who traded rain jokes with me and threatened to spoil the season finale of Game of Thrones if I didn't promise to watch it; Joe from Paramount Garage & Transmission, and the anonymous customer at Stewarts who started paging for info from the local Yellow Pages to help me out on a blustery day.

And, of course, my friends at Stewarts, who make good chili. Very good chili, as a matter of fact.

They all earned my thanks for getting me back on the road, but even more so for turning what could have been a major derailment of my day into something that I'll always remember with a smile.

My only regret is that I didn't follow the chili up with some Adirondack Bear Paw Ice Cream. Really, what was I thinking?

A Sprig of Basil.

I hate to be ungracious about it, but in the real world, Rathbone'd have Flynn's guts for garters.



Besides, could Flynn do this?



(Oh, how they loved their musical numbers in the 1930s!)

The Windmills of the Academic Mind

Akhil Reed Amar has long had the reputation of being a liberal. And so it it with some perturbation that, in viewing reactions to Maryland v. King, discussed here, I read this half-baked drivel:

DNA is already revolutionizing law enforcement. The ability for police to use cheek swabs of arrestees rests on a threadbare majority. The closeness of the vote, and the unusual coalitions on either side, suggest that the matter is far from settled. Justice Samuel A. Alito Jr., who was part of the majority, rightly called the case, Maryland v. King, “perhaps the most important criminal procedure case that this Court has heard in decades.”

As prosecutors, police agencies and civil libertarians consider the ruling’s implications, Justice Scalia’s stark dissent — and the fact that President Obama’s two appointees to the court so far agreed with it — makes it worthy of scrutiny, even if he was on the losing side. His argument is deeply flawed, because he did not get his history quite right.

Justice Scalia summarized his scathing dissent from the bench — a rare act that signals sharp disagreement. His opinion opened with these lines: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

But the Fourth Amendment’s text is not nearly so simple as he makes it out to be. It merely requires that all searches and seizures be not “unreasonable.” Its words do not distinguish between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.

OK, seriously? Watch the conjuring trick at work here:

STEP 1: Amar is setting an artificially high standard here--he is stripping "unreasonable" of any context, and requiring Scalia (and Ginsburg, Kagan and Sotomayor)to find a specific statement form a specified founder, all the while assuming that he cannot, even though,

STEP 2: The Supreme Court uses common law reasoning to develop constitutional doctrine, especially in construing texts like the Fourth Amendment which are not, as Amar correctly notes, self-explanatory. In the Fourth Amendment context, for nearly half a century, the leading case of Katz v. United States (1967) has long set out the template:

Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U.S. 20, 33, for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . ." Wong Sun v. United States, 371 U.S. 471, 481-482. "Over and again, this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U.S. 48, 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment [n18] -- subject only to a few specifically established and well delineated exceptions.

Now, as to searches of biological data--drawing of blood, for example, to test for alcohol in the wake of a drunk driving arrest--the Court has long found that such searches can only be justified when exigent circumstances, such as the deterioration of evidence of intoxication, made getting a warrant impracticable--an exception which the Court found just this year in Missouri v. McNeely is not a given in every case due to the greater facility in obtaining warrants as well as the increased sensitivity of blood testing. In particular, the Court in McNeely emphasized that the warrant requirement

applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U. S. 753, 760 (1985); see also Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 616 (1989).

Notably, the Court acknowledged that "blood testing is commonplace in society and typically involves virtually no risk, trauma, or pain," but nonetheless found that this does not diminish the Court's "recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests."

STEP 3: Nor does the analogy to fingerprinting resolve the question; where a compelled intrusion into the body raises heightened Fourth Amendment concerns, the deposit of prints has been treated as raising less concerns; even then, it has become a regularly established incident to an arrest, which does not contravene the reasonable expectations of privacy, as long as the arrest is pursuant to a warrant. More here. That line may seem paper thin, but Scalia's argument is based on the common law of the Fourth Amendment, unpacking the meaning of "unreasonable" over two centuries. Amar, by slicing away this well-established approach to broad constitutional terms (dating back to Marbury v. Madison), tries to make Scalia look unreasonable.

STEP 4: Amar never addresses the opinion's reasoning, just the result. He likes the latter, but as pointed out eloquently in Scalia's dissent, nobody really believes the former--that the reason for the DNA sample is to identify the suspect. Of course it's not; it's to ship over to the Cold Case Unit, and see if we have any matches. The fact that Amar is comfortable with that outcome as a good thing doesn't make the search reasonable in terms of any standard criteria for determining the reasonableness of searches and seizures, oh, ever. That fact is rather supported by the fact that the only reason relied on by the majority is a transparent falsehood, never a good building block for constitutional analysis.

STEP 5: Ask where the dispositive quotes from the Framers are. Yeah, Scalia didn't need them, because he had the Court's own jurisprudence to build on, but c'mon, Tony, you're the history buff, Amar taunts, setting a new test.He should check out John Adams. (In fact, he probably has, since a part of the linked article takes Amar to task, quite properly, for his radically indeterminate Fourth Amendment analysis, which eschews any kind of standard other than incident-specific reasonableness, discerned from an after the fact standpoint.)

What is Amar really up to here? I'd suspect that his real bugbear is Scalia's (admittedly somewhat tattered by now) originalism--his resort to historical argument to address an ambiguity in the text. But the problem here is that Scalia's dissent isn't particularly originalist; it's a classic common law analysis, as John Jay Osborn describes in his 1979 novel The Associates:

Back in the dusty pages of a volume from 1899, you'll find an egg, ready to hatch, some judge with a new idea. In 1900, you'll find a case where the idea has broken out of its shell. It's sitting there, a sentence, words, a definitive statement, a rule. You catch glimpses of the rule as it flashes through the cases. . . . As it flashes through the cases, you see the rule grow or diminish. Say it grows. The descriptive side enlarges. More and more activity comes under the kind of conduct it outlines. "Do not discriminate." All right, what's discriminate, against whom, for what reasons? You start maybe with blacks, and a hundred years later everyone is included in the description--do not discriminate against the handicapped, women, homosexuals, children, the aged

This bog-standard common law reasoning Osborn describes is exactly what Scalia is engaged in here. It's routine, not remotely controversial.

Amar may be serving his own project of arguing that the Fourth Amendment has no answers for us, only questions. That does not, however, readily translate into a constitutional right--merely an unending "intellectual feast" that provides no guidance for law enforcement or protection for the citizenry. It's no way to do law, however interesting the seminar might be. Scalia has this one right.

Disappointed! (With a Helping of Credit Where Due)

Yesterday's decision by the Supreme Court in Maryland v. King is an exercise in rationalization. A 5-4 majority of the Court found that "When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” The majority described the procedure as "quick and painless," and justified by "the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” The majority explained that this practice “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang members to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene.”

Except, of course, that it is. Because we all know--and indeed the facts of the case squarely presented--that the purpose of the DNA swab isn't to identify the prisoner; as Justice Scalia made clear in his superb dissent, the purpose of the DNA swab is to use the DNA to investigate whether the prisoner may have been guilty of other crimes of which the State has no reason to suspect him of having committed. Scalia refuses point-blank to accept the argumentum excrementum taurorem that the swab is solely for identification purposes:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work

I have long maintained that from 1986 to 2000, Scalia was "often an ornament of the Court," having by and large been genuinely engaged in a principled effort at an originalist jurisprudence--not one I often agreed with, but intellectually consistent and worthy of respect. His return to form is most welcome.

As to Justice Breyer joining this disingenuous majority opinion, I'll outsource my commentary to Kevin Kline:



Kidding aside, in the second edition of First Amendment, First Principles (2004), I noted the disappointing tendency of Justice Breyer to explicitly balance away constitutional rights in favor of his preferred policy outcomes. This is just one of a series of his living down to this description, I'm afraid.

Anglocat at the Forum

So this past Sunday, I was the guest speaker at the Rector's Forum at St. Barts. I spoke about the St Barts' EFM group, of which I am the mentor, and about the program generally. You can, if you are of a mind, listen to it here.

Many thanks to Buddy Stallings, and to the wonderful Roz Dimon, a terrific artist in her own right, as well as being St Barts' Communications Director, for getting the audio up so fast.