Today in Supreme Court History: May 31, 1860

5/31/1860: Justice Peter Daniel's death.

Justice Peter Daniel

 

Comments

[Dan Schiavetta]

Maul v. United States, 274 U.S. 501 (decided May 31, 1927): vessel without proper registration properly seized by Coast Guard 34 miles offshore because statute restricting jurisdiction to 4 leagues (about 14 miles) applied only to searches, not seizures (does this mean the Coast Guard can seize a ship off the coast of Zanzibar as well as Connecticut?)

United States v. Louisiana, 363 U.S. 1 (decided May 31, 1960): United States sued the Gulf states under the Court’s original jurisdiction claiming ownership of (and oil rights to) offshore submerged lands. This is one hell of a long and complicated treatise dealing with three miles v. three leagues offshore, boundaries of the states as specified when admitted to the Union, and the Submerged Lands Act of 1953. Also long are the dissents by Black and Douglas. The decision: Texas was allowed three leagues, the other states three miles; and the U.S. owned everything past that up to the edge of the continental shelf.

​Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324 (decided May 31, 1977): union’s seniority system in allocating jobs did not violate Title VII in discriminating against blacks and Hispanics even though it had that effect (§703(h) of Title VII protects “bona fide seniority systems”)

​Edwards v. United States, 286 U.S. 482 (decided May 31, 1932): signature of President on private bill was valid to make it law even though Congressional session had ended because it was still within ten days of presentation (art. I, §7); no one disputed this (no case or controversy?) but Court wanted to correct “views strongly held in the past”

​Waters v. Churchill, 511 U.S. 661 (decided May 31, 1994): though Government can control speech of its employees far more than it can of its citizens (Connick v. Myers, 1983), issue of fact as to whether nurse at public hospital really did bad-mouth her boss (even if true, hard to see why this would be a firing offense)

Arthur Andersen LLP v. United States, 544 U.S. 696 (decided May 31, 2005): conviction for obstruction of justice (destroying Enron documents) overturned because jury not instructed (per language of applicable statute) that destruction must have corrupt intent, even though while following normal procedures as to purging old documents they were aware of being investigated

​New Energy Co. v. Limbach, 486 U.S. 269 (decided May 31, 1988): Ohio sales tax on ethanol produced out of state regulated interstate commerce in violation of Dormant Commerce Clause despite exception for states offering reciprocity

​Ashcroft v. al-Kidd, 563 U.S. 731 (decided May 31, 2011): While boarding a plane to Saudi Arabia, al-Kidd was detained per a “material witness” warrant (18 U.S.C. §1344) issued after judge was told his testimony was “crucial” in in connection with a terrorism trial. He was held for 16 days, but never called to testify. Was this a pretext for detaining and investigating him? The Court recognizes this new type of Bivens claim, but affirms dismissal because here there was “objectively reasonable” suspicion. (Suspicion of what? As Ginsburg points out in her limited concurrence, Scalia’s majority opinion refuses to say.)

Moore v. East Cleveland, 431 U.S. 494 (decided May 31, 1977): zoning ordinance limiting occupancy to immediate family (and not allowing, here, grandmother to live with grandchildren) was violation of Due Process as to liberty

McCray v. United States, 195 U.S. 27 (decided May 31, 1904): tax on margarine artificially colored to look like butter was not deprivation of property without due process (and even though Congress was being irrational because butter often was also artificially colored) (one could call this an offbeat application of Plessy)

[John F. Carr]

Not just Arthur Andersen, I see government agencies hiding behind document destruction policies. There's a memo that would show whether a government policy had been legally adopted, but even the electronic copy was destroyed when the two year document retention period expired. Meanwhile, I saw comparable 50 year old paper records still sitting in filing cabinets in another agency that felt less guilty about its past.

How many human accountants lost their careers over Enron? I think one got in legal trouble for sending the coverup memo, and the rest scurried like roaches to the cover of another employer when Arthur Andersen disappeared.

[Dan Schiavetta]

When already well-off professionals try to expand outside their specialty, it's always due to greed, so it's not surprising that skirting of the law results. That's what happened to Arthur Andersen when CPA firms were allowed to go past simple accounting. It's also what happened to banks when they were allowed to get into selling securities. More can be added to this list.

[bernard11]

I don't think the issue with Andersen was incompetence, but rather a major conflict of interest.

If the auditors didn't go along with Enron's desired accounting treatments Andersen's consulting operation would lose a highly lucrative customer.

[Mr. Bumble]

Is there a limit to the amount of data that can be stored electronically? If not than why have such a short retention window especially given how slowly the wheels of government and justice seem to move today?

[Dan Schiavetta]

Most states require business records, medical records, etc. to be retained for a set period of time (usually 7, 10 years). The purpose of those rules was to allow warehouse space to be freed up.

That rationale doesn’t apply in the era of digital. There is no reason now why old records have to be purged. This applies to even the most “capacious” files: video surveillance. With the new R.265 technology, a camera can record 24/7 (not motion activated; continuous filming), and one year’s worth of video will take up only about 5 GB, and shrinking software can reduce it much further.

[David Nieporent]

Electronic storage costs may be low, but e-discovery costs are not. Anything that is kept is potentially discoverable, which means that anything that is kept may end up having to be reviewed. Now, maybe when ChatGPT and its ilk get good enough to do document review without human oversight, that will cease to be an issue. But until it does, that's an expense one can avoid with a document retention policy.

[Dan Schiavetta]

Most firms don’t need e-discovery. The files they deal with aren’t that big.

Even when “needed”, e-discovery can be worse than useless. See Cleveland v. Behemoth, 2021 WL 2184852 (S.D. Cal.), where Logikcull, perhaps the most popular e-discovery software, missed some important messages because of a “flaw in its algorithm”. The messages were found only because a live person (the attorney handling the file) figured out they had to exist. And this is a 2021 case, so it’s a recent version of Logikcull.

Or William A. Gross Construction v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009), where there was a dispute over search terms. Implicit in this dispute was the recognition that, no matter what terms were used, some items would get missed.

[Dilan Esper]

I don't think the Court technically recognizes the Bivens claim in Al-Kidd; they just ignore the special factors counseling hesitation / new Bivens context issue.

[Dan Schiavetta]

It’s implicit. They could have said Bivens doesn’t apply and ended the analysis there. At least that’s how I read it.

[apedad]

Material witness warrant

18 U.S.C. § 3144 commonly referred to as the "material witness statute," provides as follows:

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

How can this be constitutional?

[Dan Schiavetta]

The Fourth Amendment requires searches and seizures to be reasonable -- but does not say that any search or seizure has to be related to possible wrongdoing by the person searched/seized.

[apedad]

So how can that be reasonable?

Sounds like it would give the govt carte blanche to search/seize anyone/anyplace.

"We're arresting you and indefinitely throwning you in jail but don't worry, you haven't done anything wrong."

[Dan Schiavetta]

It still has to be per a warrant “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The real problem with the al-Kidd decision is Scalia's insistence that the word "suspicion" does not need to be defined. "I just know that Arab is up to no good!"

[SRG]

“I jes' know that Ay-rab is up to no good!”

FTFY

Al-Kidd still won settlements from other suits arising: https://www.aclu.org/cases/abdullah-al-kidd-v-united-states-et-al

[Dan Schiavetta]

I grew up around conservative Catholics like Scalia. Truth be told, they don’t quite talk like that. Though the results are the same.

[Syd Henderson]

"Maul v. United States, 274 U.S. 501 (decided May 31, 1927): vessel without proper registration properly seized by Coast Guard 34 miles offshore because statute restricting jurisdiction to 4 leagues (about 14 miles) applied only to searches, not seizures (does this mean the Coast Guard can seize a ship off the coast of Zanzibar as well as Connecticut?)"

I believe you have an actual case in mind?

[Dan Schiavetta]

No -- it just seems like the Court was saying there is no territorial limit to seizures (whereas you would think that the limits as to searches, which are less drastic, would be more expansive).

[ReaderY]

The limit on searches was statutory. The difference was solely Congress’ choice. The implication here is that if Congress wanted extraterritorial searches as well, it could just repeal the statute to get rid of the limit on them.

[The Margrave of Azilia]

Justice Daniel is famous for

-Joining the Dred Scott decision in 1857.

-Becoming a widower in the same year when his wife's clothes were accidentally set on fire by a candle, burning her to death.

[Mr. Bumble]

Is that a good or bad thing?

[SRG]

When they weren't spontaneously combusting...