Among the better legal blogs is The Wall Street Journal’s Lawblog. Recently, there was an interesting piece written by Jacob Gershman.

Gerhsman’s piece is about Justice Scalia getting it embarrassingly and profoundly wrong in a recent dissent. There is no doubt that what happened is an embarrassment for Justice Scalia, and you might wonder what the tenor of the conversation was between the justice and his law clerks after this was reported.

But, does it also raise a question about the degree of collegiality and communication on the Supreme Court as a whole? Opinions of both the majority and dissent are circulated. Why did no one say, “Justice Scalia, I know I’m just a law clerk for another justice, but you might want to check that paragraph?”  Or why didn’t a colleague say, “Antonin, you got this part wrong?” Gershman’s piece sets the table for that discussion:

Everybody makes mistakes — even Supreme Court justices. But a factual error in a Tuesday opinion by Justice Antonin Scalia was unusually glaring.

Hours after the Supreme Court handed down a ruling on Tuesday in an air pollution regulation case, legal observers spotted something wrong with the justice’s dissent.

The court revived an Environmental Protection Agency regulation that limited power-plant emissions blowing across state lines. In doing so, the court said the EPA could consider the cost-effectiveness of emission controls in deciding how much pollution a state must reduce.

In his dissent, Justice Scalia wrote:

This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS.

Problem is, it wasn’t the EPA making that argument back then, but the trucking industry.

“Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder,” wrote University of California-Berkeley law professor Daniel Farber.

The Supreme Court posted a corrected version of the dissent. The sentence now reads:

This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns.,Inc., 531 U. S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS.

The court also changed a subhead above that passage. It used to say, “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” It now reads: “Our Precedent.”

Over at Volokh Conspiracy, Case Western Reserve University law professor Jonathan H. Adler notes the irony.

“The worst part of it is that Scalia should know this because the author of the Supreme Court’s decision in Whitman v. American Trucking Assns was none other than Scalia,” he said.

“Alaska Supreme Court says state has duty to protect inmates from one another”

The Anchorage Daily News has this article reporting on a ruling that the Supreme Court of Alaska issued recently:

A former inmate in Alaska’s only maximum security prison can go ahead with his claim that he warned correctional officers of trouble with “cocky, young” inmates in his prison block only to suffer serious injuries after another prisoner punched him.

In a decision released Friday, the Alaska Supreme Court said a lawsuit by the injured man, Richard Mattox, can go forward against the Department of Corrections. Bones in Mattox’s face were shattered in the incident, the opinion said.

Alaska’s prison system has a duty to protect the lives and health of inmates in its custody, the opinion, written by Chief Justice Dana Fabe, said.

“We have not previously considered whether assaults by other inmates fall within the scope of a jailer’s duty to protect, but our precedents point in that direction, permitting liability even for intentional harmful acts, including assault by prison staff as well as suicide,” the opinion says.

There is no reason inmate-on-inmate violence should be treated any differently, the justices said, pointing to prisoner assault cases from New York and Kansas.

Read more here.

I recently had the opportunity to discuss criminal law and plea bargaining with a group of judges from Turkey.

There is no plea bargaining in Turkey, and there apparently is some discussion about whether allowing plea bargaining in Turkey would be an improvement in that nation’s criminal justice system. In the United States, there are many who see plea bargaining as a necessary evil, and others who simply see it as evil, as well as those who see alternative dispute resolution (plea bargaining) as a healthy aspect of civil, family and criminal law.

It is in this context that Yehonatan Givati’s (Hebrew University of Jerusalem – Faculty of Law) article, Legal Institutions and Social Values: Theory and Evidence from Plea Bargaining Regimes (Journal of Empirical Legal Studies, Forthcoming), seems interesting no matter where you fall on the spectrum.

Here is the abstract:

How do social values shape legal institutions across countries? To address this question I focus on one important legal institution — the use of plea bargaining in criminal cases. I develop a model in which the optimal scope of plea bargaining depends on social values. Specifically, a lower social emphasis on ensuring that innocent individuals are not punished, and a greater social emphasis on ensuring that guilty individuals are punished, lead to a greater use of plea bargaining. Using unique cross-country data on social preferences for punishing the innocent versus letting the guilty go free, as well as an original coding of plea bargaining regimes across countries, I obtain results that are consistent with the model.

The Associated Press reports that the United States Supreme Court today ruled that, “prayers that open town council meetings do not violate the Constitution even if they routinely stress Christianity.”

The court said in 5-4 decision that the content of the prayers is not significant as long as officials make a good-faith effort at inclusion.

The ruling was a victory for the town of Greece, N.Y., outside of Rochester.

In 1983, the court upheld an opening prayer in the Nebraska legislature and said that prayer is part of the nation’s fabric, not a violation of the First Amendment. Monday’s ruling was consistent with the earlier one.

Justice Anthony Kennedy, writing for the majority, said the prayers are ceremonial and in keeping with the nation’s traditions.

“The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce nonbelievers,” Kennedy said.

Justice Elena Kagan, in a dissent for the court’s four liberal justices, said the case differs significantly from the 1983 decision because “Greece’s town meetings involve participation by ordinary citizens, and the invocations given — directly to those citizens — were predominantly sectarian in content.”

Although the Associate Press reported that the decision was 5-4, it was a much more divided United States Supreme Court.  Justice Anthony M. Kennedy delivered the opinion of the Court in large measure for Town of Greece v. Galloway, No. 12-696. Justices Antonin Scalia and Clarence Thomas joined most, but not all of the opinion of the Court. Justice Samuel A. Alito, Jr. issued a concurring opinion, in which Justice Scalia joined.  Justice Clarence Thomas issued an opinion concurring in the judgment, in which Justice Scalia joined in part. Justice Breyer issued a dissenting opinion.  Justice Elena Kagan also issued a dissenting opinion, in which Justices Ginsburg, Breyer, and Sotomayor joined.

The New York Times has an interesting article that begins:

How well can computers interact with humans? Certainly computers play a mean game of chess, which requires strategy and logic, and “Jeopardy!,” in which they must process language to understand the clues read by Alex Trebek (and buzz in with the correct question).

But in recent years, scientists have striven for an even more complex goal: programming computers to read human facial expressions.

The practical applications could be profound. Computers could supplement or even replace lie detectors. They could be installed at border crossings and airport security checks. They could serve as diagnostic aids for doctors.

Researchers at the University of California, San Diego, have written software that not only detected whether a person’s face revealed genuine or faked pain, but did so far more accurately than human observers.

The full article can be found here.

You may have heard about the young girls in Nigeria who were recently kidnapped. Yesterday I wrote a commentary for MinnPost which begins,

Bryan:  “I don’t know who you are. I don’t know what you want. If you are looking for ransom, I can tell you I don’t have money. But what I do have are a very particular set of skills, skills I have acquired over a very long career. Skills that make me a nightmare for people like you. If you let my daughter go now, that’ll be the end of it. I will not look for you, I will not pursue you. But if you don’t, I will look for you, I will find you, and I will kill you.”

It was a memorable line by a fictional dad in the movie Taken. Language like that virtually always should be reserved for the cinema. But this is that rare time where the world community needs to join together and speak for the parents and daughters who have been abducted in Nigeria:  “If you let the girls go, that will be the end of it. But if you do not, we will find you and we will kill you.”

On April 16th, 234 Nigerian schoolgirls were kidnapped.

That is not a misprint:  234 daughters never came home to their parents. These children remain missing.  I hope that you will join with me in doing something to help these children.

The complete article can be found here.

ABC News has posted online video of the interview that George Stephanopoulos conducted with retired Justice John Paul Stevens from the broadcast of “This Week.”

For those who would prefer to read Justice Stevens’ work, ABC News has also posted this excerpt of his new book, Six Amendments: How and Why We Should Change the Constitution.

A fellow AJA member sent a heads-up about a scathing portrait of an urgent new American crisis:

Over the last two decades, America has been falling deeper and deeper into a statistical mystery:

Poverty goes up. Crime goes down. The prison population doubles. Fraud by the rich wipes out 40 percent of the world’s wealth. The rich get massively richer. No one goes to jail.

In search of a solution, journalist Matt Taibbi discovered the Divide, the seam in American life where our two most troubling trends—growing wealth inequality and mass incarceration—come together, driven by a dramatic shift in American citizenship: Our basic rights are now determined by our wealth or poverty. The Divide is what allows massively destructive fraud by the hyperwealthy to go unpunished, while turning poverty itself into a crime—but it’s impossible to see until you look at these two alarming trends side by side.

In The Divide, Matt Taibbi takes readers on a galvanizing journey through both sides of our new system of justice—the fun-house-mirror worlds of the untouchably wealthy and the criminalized poor. He uncovers the startling looting that preceded the financial collapse; a wild conspiracy of billionaire hedge fund managers to destroy a company through dirty tricks; and the story of a whistleblower who gets in the way of the largest banks in America, only to find herself in the crosshairs. On the other side of the Divide, Taibbi takes us to the front lines of the immigrant dragnet; into the newly punitive welfare system which treats its beneficiaries as thieves; and deep inside the stop-and-frisk world, where standing in front of your own home has become an arrestable offense. As he narrates these incredible stories, he draws out and analyzes their common source: a perverse new standard of justice, based on a radical, disturbing new vision of civil rights.

Through astonishing—and enraging—accounts of the high-stakes capers of the wealthy and nightmare stories of regular people caught in the Divide’s punishing logic, Taibbi lays bare one of the greatest challenges we face in contemporary American life: surviving a system that devours the lives of the poor, turns a blind eye to the destructive crimes of the wealthy, and implicates us all.

The book is available at your local bookstore.

Professor Adam M. Gershowitz, of William & Mary Law, notes that warrantless cellphone searches are unnecessary when they can be stored in Faraday bags or wrapped in aluminum foil to prevent the remote wiping of information.

Gershowitz and other criminal law professors filed an amicus brief on behalf of the defendants in Riley v. California and United States v. Wurie, argued yesterday before the Supreme Court.

There are a lot of blogs that cover legal affairs. Many simply are not written well or don’t provide in depth analysis of complicated legal issues. The SCOTUS blog does both, as illustrated by this piece written by Amy Howe.

The article deals with the case pending before the Supreme Court regarding the ability of the police to “search” cell phones without a warrant:

It was a series of events straight out of the children’s book If You Give a Mouse a Cookie – the Law and Order edition.  The storyline goes something like this:  If you are driving a car with expired tags, the police might pull you over.  If they do, they will ask to see your driver’s license.  When you give it to them, they will run a computer check and learn that it has been suspended.  So they decide to impound the car.  But before they tow the car away, they search it.  When they search it, they discover two handguns under the hood, so they arrest you.  When they arrest you, they take your smart phone.  When they take your smart phone, they read your text messages.  When they read the messages, they see texts which suggest that you might be a member of a local gang.  Based in part on those texts, they suspect that you may have been involved in a gang-related shooting a couple of weeks ago, and so they look at your phone again, where they find more evidence to support the theory that you belong to a gang and were involved in the shooting.

Continue reading here.