Vol. 98

Substantial Government Interference with Prosecution Witnesses: The Ninth Circuit’s Decision in United States v. Juan

On January 7, 2013, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued its decision in United States v. Juan.  As a matter of first impression, the Ninth Circuit held that the constitutional proscription on substantial governmental interference with defense witnesses also applies to prosecution witnesses.  By extending the “substantial interference” rule to prosecution witnesses, Juan fundamentally, albeit implicitly, recognized a Sixth Amendment Confrontation Clause aspect of the “substantial interference” rule. Moreover, future application of Juan may require that courts consider the propriety of a factfinder receiving evidence about any governmental actions that potentially caused a prosecution witness to “alter” his or her testimony. Ultimately, given the strong potential of Juan-type situations to occur in future prosecutions, courts will have ample opportunity to further analyze and refine the Juan rule’s prohibition on substantial govern-mental interference with prosecution witnesses. Full essay here.


No Explanation Required? A Reply to Jeffrey Bellin’s eHearsay

You see why I tell you I ain’t want to be no damn juror. Some dude just come by my house and tell me he going pay me money to say not guilty. Now I don’t know what to do, because if I tell the judge they’re going to know it’s me.

I know, right. Now I scared because I don’t want them to do anything to me or [my daughter][. . .]***

The above were text messages sent by a juror to her sister after Ikim Blackett allegedly threatened and then tried to bribe her in an attempt to convince her to find one of several defendants “not guilty” of various drug crimes. At Blackett’s ensuing trial for jury bribery, the juror testified that, while she was on her front porch, Blackett approached her and mentioned the word “nitroglycerin.” The juror then “asked Blackett what ‘nitroglycerin’ meant and he responded ‘not guilty.’” When this threat fell on deaf ears, Blackett offered the juror $1,500 in exchange for her vote.  After again declining, the juror went to her bedroom and sent the above text messages.

Should the text messages have been admissible because the juror took the witness stand and testified at trial? If the juror were “unavailable” at trial, should the text messages have been admissible? According to Professor Jeffrey Bellin’s article, eHearsay, the answer to both questions is “yes” as he crafts hearsay rules that cover both situations. This Response Piece agrees with Professor Bellin on the first question but disagrees with him on the second. Full essay here.


Sonia Sotomayor: Role Model of Empathy and Purposeful Ambition

In writing her memoir, My Beloved World, U.S. Supreme Court Justice Sonia Sotomayor expressly acknowledges that she is a public role model and embraces this responsibility by making herself accessible to a broad audience. As a public figure, she sees an opportunity to connect with others through an account of her life journey, with details of initial challenges and lessons learned along the way, to show that one’s beginnings need not constrain one’s aspirations. Although her memoir ends at the point she begins her judicial career, twenty years ago, her experiences and reflections provide a sense of how she may approach her work on the Supreme Court, including the importance she attaches to perspective-taking—or empathy—in relating to others and viewing the larger world. Her empathic skill, as well as her understanding of public purpose as a Justice and role model, all serve to strengthen the judicial function and present a hopeful picture of further important contributions to come as she continues her work on the bench. Full essay here.


Government Endorsement: A Reply to Nelson Tebbe’s Government Nonendorsement

In this response to Nelson Tebbe’s Government Nonendorsement, Abner Greene continues to develop his “thick perfectionist” view of government speech, arguing that the state may use its speech powers to advance various views of the good, from left, center, and right, even on controversial issues. Greene supports Tebbe’s view that there are some limits on government speech, but such limits come almost entirely from outside the Free Speech Clause. The Establishment Clause, the Equal Protection Clause, and the Due Process Clause (to name probably the three most important sources) all limit state speech, to some extent. But otherwise, Greene contends, Tebbe is wrong to claim that “the Constitution properly imposes a broad principle of government nonendorsement.” There is no such principle; in fact, says Greene, the general principle is the opposite—government endorsement is both proper and constitutional. Full essay here.


Regulating Pollen

The most common allergen is pollen, and pollen causes the most common allergy, known as “hay fever.” While pollen allergies might appear to be the unavoidable cost of living with flowering plants, the suffering engendered by pollen allergies is largely our own creation. Plants will always flower, but people have built a world that increases the harm we suffer from pollen.

Reducing much of the human suffering caused by pollen allergies simply requires removing certain allergenic plants from cities and replacing them with less allergenic species near where we live and work. Instead, governments and nurseries have encouraged planting some of the most allergenic species in large numbers, even near our homes and schools. Several cities already regulate allergenic plants, but government can do more to reduce pollen allergies. Full essay here.


A Global Collection: Reviewing The Global Limits of Competition Law

The Global Limits of Competition Law is the first installment in Daniel Sokol’s and Ioannis Lianos’s ambitious new series from Stanford University Press, Global Competition Law and Economics. The project is ambitious because it takes on a potentially unbounded topic, and one that is constantly changing. It is also ambitious because Sokol and Lianos enter a saturated market. This first volume is sufficiently captivating, and represents such an extraordinary breadth of national and regional perspectives, that the authors appear to have fulfilled their ambitions. Full essay here.


When Too Little Is Too Much: Why the Supreme Court Should Either Explain Its Opinions or Keep Them to Itself

In 1972, the Supreme Court released what appears on its face to be one of the simplest opinions in its history. That decision, Baker v. Nelson, read, in its entirety: “The appeal is dismissed for want of a substantial federal question.” That’s it. Eleven straightforward words. But, as is often the case in the law, great complexity lurks under the surface, for this terse order has been cited by no fewer than sixty-two judicial opinions and 314 secondary sources. This essay explores the surprising influence of Baker v. Nelson and ultimately concludes that, in future, the Supreme Court should refrain from issuing such summary opinions. Full essay here.