The Volokh Conspiracy
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Today in Supreme Court History: March 3, 2019
3/3/2019: Schenck v. United States decided.
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Seems Josh is only off by 100 years.
And it’s not just fat fingering, since it’s two numbers.
Blackman and Barnett have made that mistake repeatedly, corrected it at least once.
A Noble Prize (then Nobel) was awarded to apedad in this context a few years ago. The committee will consider whether additional prizes for the same identification of error should be awarded if Blackman and Barnett repeatedly publish such shoddy work.
(Hey, Georgetown law administrators . . . do you want to experience even more diminution of your reputation? Hire more conservative faculty members!)
On a more serious note, what ever became of the unrelated 13th Amendment claim? I’m surprised that wasn’t raised during Vietnam.
And I’m not surprised that Dr. Ed is fascinated by a claim that the Supreme Court called so stupid “that the contention to that effect is refuted by its mere statement.” Selective Draft Law Cases, 245 U.S. 366, 390 (1918).
In the understanding of those who drafted and ratified the Constitution and the Thirteenth Amendment, conscription might be “involuntary,” but it did not carry the moral and social status of “servitude”.
(2) Article 1 Section 8 of the Constitution empowered Congress to “raise… armies”. Conscription had routinely been used to fill militias during the Revolutionary War.
(2) Many Congressmen who ratified the Thirteenth Amendment had also voted in favor of Lincoln’s drafts to win the Civil War.
Schenck v. United States, 249 U.S. 47 (decided March 3, 1919): upholding Espionage Act conviction for mailing young men leaflets encouraging them to protest the draft (during World War I)
The Ku-Klux Cases, 110 U.S. 651 (decided March 3, 1884): upholding conviction of men who beat up black man to keep him from voting; 18 U.S.C. §51 (“Enforcement Act”) validly creates liability of private persons for obstructing federal rights
Cohens v. Virginia, 19 U.S. 264 (decided March 3, 1821): Court can review state criminal proceedings (here, conviction for illegally selling D.C. lottery tickets in Virginia; Court then holds that it was a local matter and no jurisdiction!)
Negusie v. Holder, 555 U.S. 511 (decided March 3, 2009): Was Eritrean/Ethiopian applying for asylum (a former prison guard) persecuted in his home country (forced to beat prisoners) or in fact one of the persecutors? If a persecutor, barred by regulations from asylum, but Court finds the rule developed by the Board of Immigration Appeals to be ambiguous and not based on relevant statute (case then bounced back and forth between the BIA and the Attorney General, with the change of administrations playing a part; still undecided, as far as I can tell)
Federal Republic of Germany v. United States, 526 U.S. 111 (decided March 3, 1999): Court says it has no jurisdiction to rule on International Court of Justice’s order, upon motion of Germany, not to execute German citizen convicted in Arizona of murder (Germany, being part of the civilized world, abolished the death penalty long ago) (the next day the German, Walter LeGrand, was executed via gas chamber at the prison in Florence, Arizona)
Kawaauhau v. Geiger, 523 U.S. 57 (decided March 3, 1998): medical malpractice award for “reckless” conduct dischargeable in bankruptcy; injury not intentional and not within exception for “willful and malicious injury”, 11 U.S.C. §523(a)(6) (no one ever taught me this, but in law school I thought of it this way: if you’re approaching an intersection and don’t check to see if the light’s green, you’re negligent; if you see the light’s red and you still proceed, you’re reckless; if you see someone crossing and drive right into him, you’re intentional)
Adams v. Robertson, 520 U.S. 83 (decided March 3, 1997): Court can’t review state court proceedings if federal issue wasn’t presented to state court of last resort (here, claim that class members in action against health insurer for fraud were not given chance to opt out)
Reves v. Ernst & Young, 507 U.S. 170 (decided March 3, 1993): accountants not liable under RICO because did not participate in operation or management of farmers’ cooperative (18 U.S.C. §1962(c)), even though they did not inform Board of Directors of possible insolvency
School Board of Nassau Co., Florida v. Arline, 480 U.S. 273 (decided March 3, 1987): teacher susceptible to tuberculosis (1957 hospitalization, relapses in 1977 and 1978; fired in 1979) was “handicapped individual” under Rehabilitation Act of 1973 and protected from discrimination (the school argued that she was placing her students at risk; the Court says, “It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment,” which seems strange to me, especially when children in close contact are involved)
Arizona v. Hicks, 480 U.S. 321 (decided March 3, 1987): Police entering apartment searching for shooter. Suspecting stolen stereo, they could record serial numbers in plain view (that’s not a “seizure”) but needed warrant to move things around to see the numbers (that would be a “search”) (but what if the police officer had a sneezing fit and “accidentally” butted into things?).
As for Walter LaGrand and his brother Karl, German citizens executed in Arizona:
They committed the murder while trying to rob a bank in 1982. They’d been released the previous year after serving time for some armed robberies.
The two ex-cons tied up a 63-year-old bank employee and demanded the combination to the safe. The employee didn’t have the combination, but the robbers didn’t believe him. So they stabbed the employee to death with a letter opener (I wonder if that killing took 18 minutes, the amount of time it took to gas Walter?).
https://murderdb.com/lagrand-brothers-executed-in-arizona/#LaGrand_Brothers_Case
Karl chose death by lethal injection. Walter chose death by gas. “He said he would prefer the more protracted and painful execution in the gas chamber to protest the death penalty.”
https://www.cbsnews.com/news/arizona-executes-2nd-german/
The International Court of Justice’s decision wasn’t based on humanitarian rules against executions. It was based on the German consul not getting notified by authorities about the brothers’ case. Which certainly ought to have been the basis for Germany getting compensation from the U. S.
There are so many Americans living and travelling abroad, who would stand in need of consular assistance if arrested, that you’d think the U. S. would observe the consular treaty on American soil, to set a good example.
Congress, I imagine, could prescribe criminal penalties for officials who violate their obligations under the consular convention, whether in murder cases or in shoplifting cases.
What the rest of the world doesn’t understand is that we are a true Federal republic.
It would be like expecting the EU to tell the US that an American was arrested in France or Germany — no, the French or German government would do it. And they don’t realize that the State of Arizona doesn’t have its own State Department with embassies throughout the world.
Why didn’t the brothers or their attorneys make the German consul aware of their case?
Wikipedia says they did, but the convention seems to contemplate a more proactive approach by authorities.
Thanks for your comments!
Seems like a case of form over function.
“if you’re approaching an intersection and don’t check to see if the light’s green, you’re negligent; if you see the light’s red and you still proceed, you’re reckless; if you see someone crossing and drive right into him, you’re intentional”
Aren’t you supposed to presume that all lights are red until/unless you know otherwise? Hence when there’s a power failure and no lights, it becomes a 4-way stop and reverts to those rules…
Hence there really is no distinction between the first two as it is a distinction without a difference.
Whether you personally know about the risk—however obvious it is or however unreasonable it is to fail to perceive it—is in fact the difference between negligence and recklessness.
Schenck, of course, is most famous for the awful and oft-misquoted “fire in a crowded theater” concept.
Whenever this is referred to, why is “falsely” hardy ever mentioned?
The exact quote, which no one disagrees with, is: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” (249 U.S. at 52.)
Right; the problem is that all the phrase really says, when boiled down, is “Not all speech is protected,” which is utterly useless as a legal principle, since it provides no guidance as to where the boundary is.
The Court held that a potentially communicable disease could disqualify someone from a job but only after an individualized assessment of their ability to perform and the risks and costs involved. That seems to me consistent with the purpose of the Rehabilitation Act, to require that these kinds of decisions be made rationally and not by operation of prejudice.
On remand the District Court employed the four-part test required by the Supreme Court and found that Gene Arline had posed a minimal risk to her students and that her dismissal was therefore in contravention of the Act.
ok, thanks
That sounds uncomfortably close to “the rubber room”. She probably would have objected to that.
And it also seems odd to me that someone who supposedly cares about children will want to be around them with repeatedly relapsing TB.
“She could have graded papers…”
You’ve never taught — papers can be contagious, you can catch stuff from them. And if she had active TB, she could have spread it that way as well.
What surprises me is that she would have flunked the standard TB (tine?) test for life after the 1957 incident because that is just to see if your body recognizes TB and reacts to it — it’s called Latent TB and if it going to go active again, particularly now with antibiotics, it’s going to do so fairly quickly. Wiki says “10% of these people (5% in the first two years after infection and 0.1% per year thereafter) will go on to develop active tuberculosis.”
So unless she was on chemo for cancer or something, coming back 20 years later is unusual. Unless they fired her for LATENT TB, which would be discrimination because she neither really has it nor is contagious.
” remanded “the case to the District Court to determine whether Arline is otherwise qualified for her position””
That’s what I was going to ask about — and if she isn’t, then she’s eligible for a disability retirement. It would depend on what the FL system’s rules were back then, but I find it interesting that her re-occurrence is exactly 20 years later, and then the next.
My guess is that by the 2nd year, she’d exhausted her accumulated sick days and this was about what her pension would be. Say she was hired in 1959 at age 21 — in 1979 she’d have 20 years in but only 41 so she probably get maybe 15% of the average of her best 3 years, while a disability would likely give her 60%. For life.
And that would be retroactive so you can see why a lawyer jumped on this…
I was surprised to see gas chamber and that explains it.