Amici Curiae: Googling the Law, Algorithmic Cotton Gins and The State-Always-Wins Edition

NY Trials 9/11 for Plotters Still A “State-Always-Wins” System
U.S. Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other 9/11 defendants will be tried before civilian courts in New York, the city that The Christian Science Monitor calls the “terror trial capital of the US.” Salon’s Glenn Greenwald would no doubt disagree with that assertion. While acknowledging that the move is “both politically risky and the right thing to do,” Greenwald blasts the Obama administration for creating “a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict.” Other suspects will be tried, if at all, in military commissions — and those won’t be happening in downtown Manhattan, but more likely a military brig in South Carolina. Greenwald notes, for example, that Omar Khadr, a Canadian held at Guantanamo Bay, is not being sent to New York. “We’ll look at the Khadr matter … and we will, as that case proceeds, see how it should be ultimately treated,” Holder said at a news conference after the announcement. Greenwald’s gloss: “So even for 15-year-olds who we imprison for seven years with no charges, we refuse to give them a trial. And note how the Canadian press account stresses our multi-tiered system of justice and how their citizen is receiving second-tier due process — an observation that one can be sure will repeat itself worldwide.” Greenwald also takes Holder to task for his testimony before Congress on Thursday.

Meanwhile, John Yoo seems to have been clinically discombobulated by the developments this week. In his recent op-ed in The Wall Street Journal, Yoo asked, “Will [our soldiers] have to read al Qaeda terrorists their Miranda rights? Will they have to secure the “crime scene” under battlefield conditions? Will they have to take statements from nearby “witnesses”?” Responding to Yoo at Opinio Juris, Maj. John Dehn, an assistant professor of law at West Point, says of Yoo’s “pragmatic argument” that “only an extremely limited understanding of combat operations would lead one to believe that law enforcement-like compliance with the American Bill of Rights should be expected or required during armed conflict.”  The Yoo-ian straw man notion of combat thus dismissed, Dehn goes on to say that the due process now afforded Mohammed and others has no foundation whatever in the Bill of Rights. Dehn briefly surveys American history, Supreme Court precedent, and the ideas of military theorist Francis Lieber, finally concluding that “the procedural and substantive rights to which [Mohammed] and others are entitled are only those required by federal statute or by international laws governing armed conflict. They do not stem from the Bill of Rights because those protections simply do not apply.”

In Italy, Speedy Trials Mean No Trials
“If you live in Italy and are planning to commit a moderately severe crime — perhaps beating your children, or a white-collar offence such as cooking the books, or even stabbing your neighbour — the law might soon be of little hindrance to you,” The Economist advises this week. Only weeks after Italy’s constitutional court overturned a law granting Prime Minister Silvio Berlusconi immunity from prosecution while in office, his government has introduced a law that would require charges against a defendant be dropped two years after they are laid unless the trial has been completed. Each of the two appeals allowed to defendants and prosecutors would similarly have two-year deadlines imposed. “In a court system that is overloaded, underfunded and renowned for inefficiency, the chances of completing each of the three stages in less than 24 months are low,” the paper concludes. “The law sounds like madness, but not if you are Mr Berlusconi.” The prime minister is a defendant in two trials, for tax fraud and bribery, both of which would be timed-out were the law was adopted.

Hopes for Obama-led Reformation of U.S. Judiciary Dimming
“President Obama has sent the Senate far fewer judicial nominations than former President George W. Bush did in his first 10 months in office, deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments,” Charlie Savage of The New York Times reports. In sharp contrast to his predecessor, who had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure, Obama has only offered 12 nominations to appeals courts and 14 to district courts. With fears growing that in next year’s midterm elections Democrats will lose their precarious yet filibuster-proof 60-seat Senate majority, liberals are calling for the president to pick up the pace. “It’s not any secret that among the civil rights community and other folks there has been a growing concern about the pace of nominations and confirmations,” Theodore Shaw of Columbia Law School told the Times. “You have to move fairly quickly because things are going to shut down before you know it, given that next year is an election year and who knows what is going to happen in the midterm elections. No one wants a blown opportunity.” Conservatives, too, are forthcoming with their criticism: “On judges as on so much else, this administration seems to be much less competent than both its supporters and critics expected,” M. Edward Whelan III, president of the Ethics and Public Policy Center, said.

Look out Lexis: Google Scholar Takes On the Law
Pro se litigants, worry not about your lack of Lexis: Google is here. “For average citizens,” Anurag Acharya of Google Scholar said in a blog post this week, “it can be difficult to find or even read [the] landmark opinions [that make up the common law]. We think that’s a problem: Laws that you don’t know about, you can’t follow — or make effective arguments to change.” And so, more than 80 years of U.S. federal caselaw (including tax and bankruptcy courts) and over 50 years of state caselaw is now fully searchable online for free, notes Rick Klau, a product manager at Google. Canadian law, alas, is not included, though citations to cases from up north to appear in search results. As the WSJ Law Blog notes, Acharya’s introductory post, geared toward the public at large, makes some rather precious comments about the nature of legal opinions: “As we worked to build this feature, we were struck by how readable and accessible these opinions are. Court opinions don’t just describe a decision but also present the reasons that support the decision.” (Imagine how they would have reacted if they had gotten their hands on some Denning.)  Eugene Volokh offers a critical appraisal of the service.

SCOTUS Nixes the Conceptual Better Mousetrap
“It wasn’t supposed to be this way,” says The Wall Street Journal’s L. Gordon Crovitz of the present state of American patent law, marked as it is by commercial uncertainty and judicial confusion surrounding “business methods” and their entitlement to patent protection. Last week, the U.S. Supreme Court heard arguments in Bilski and Warsaw v. Kappos, a case about the patentability of mathematical formulae for managing business risk. The court’s members, reports Crovitz, were noticeably at sea as to whether or not intangibles like concepts of how to build a better hedge-fund deserve any legal recognition beyond a thumbs-up for their being “simply better ideas.” In intent and application, says Crovitz, patent jurisprudence has historically concerned itself with “inventing cotton gins or improving plowshares,” as opposed to tinkering with abstractions; an algorithmic method, for instance, with its peculiar admixture of hypothesis, uncertain novelty, and substantive proximity to extant patents, is addressed by precedent only with difficulty. To judge by the questions posed the plaintiffs’ counsel by the court, the Supremes are extremely skeptical as to the validity of such patent claims. Among other derisive hypotheticals levelled at counsel for the plaintiff, the best were Justice Scalia’s comments on horse-whispering technique and Justice Sotomayor’s on the patentability of “useful arts” like “method[s] of speed dating.”

War Crimes: Deportation and Duress
The Toronto Star reports that the Federal Court of Appeal has ordered the Canadian government to review the deportation of accused Nazi war criminal Helmut Oberlander. Oberlander, who served in mobile killing squad unit Ek 10a of the Einsatzkommando, entered Canada in 1954 and failed to admit his wartime activities to immigration officials. Although Oberlander’s misrepresentations alone were sufficient grounds for denial of entry, the case has been complicated by the Federal Court of Canada (Trial Division)’s recognition of the common-law defence of duress. In that proceeding, Oberlander was judged not complicit in unit Ek 10a’s crimes. On one hand, the presiding judge found that “Mr. Oberlander could not have been unaware of the function of the unit … [and that he] … acknowledged that at some time while serving with Ek 10a he was aware of its execution of civilians.” On the other hand, though, the judge wrote that “duress … operates to excuse the complicity so that the complicit individual is exonerated of culpability.” The defence of duress now carries sufficient force to vitiate the war criminal provisions of the Immigration Act that obtained at the time of Oberlander’s entry into Canada, and this is the problematic crux of the Federal Court’s recent decision. Needless to say, the court’s decision has come in for some strong criticism. The Canadian Jewish Congress, for instance, perhaps sensing that duress could conceivably serve as an effective defence in any war-crimes proceeding, has attacked the decision as being grounded in a “hyper-technical point of interpretation”; in the CJC’s view, the court wrongly faulted the Canadian government for refraining to adequately address the element of duress in Oberlander’s conscription into the Einsatzkommando.

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