By Leah Braukman

Gerald Magliocca of Concurring Opinions recently dedicated an entry to his favorite U.S. Supreme Court opinion, the 1970 admiralty law case Moragne v. States Marine Lines. The case was the first to recognize a wrongful death action in maritime law, overturned 84 years of precedent, and explained the history of the relevant law, from the ‘felony-merger’ doctrine in England to the Death on the High Seas Act. “Take a look sometime”, urged Mr. Magliocca. “You’ll be glad you did.”

Inspired by the notion of having an all time favorite Supreme Court opinion, I contacted a few of New York Law School’s professors to find out which Supreme Court opinion was tops in their personal Hall of Fame – and I was fascinated by their answers.

Drumroll, please……

Professor Nadine Strossen chose West Virginia State Board of Education v. Barnette of 1943. When asked why she so favors this particular case, Professor Strossen smiled and shot back, “Where to start?”  

According to this former president of the American Civil Liberties Union, Barnette is “the single most eloquent, enduring, and inspiring explanation of the fundamental importance…of individual freedom in our constitutional system.” At issue in this case was whether the Board of Education could require schoolchildren, specifically Jehovah’s Witnesses, to salute to the flag and recite a pledge of allegiance. The Court held it could not.

But instead of merely addressing the narrow question before it, the Court took a more expansive approach. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” This case wasn’t decided solely on the basis of religious liberty, but rather, Professor Strossen explained, about freedom generally…even freedom of conscience; a phrase that doesn’t appear anywhere in the Constitution

To give the case context, Professor Strossen pointed out that this case was decided at a time when Jehovah’s Witnesses were seen as a cult, and not very well understood. It was also decided during World War II, an era of national patriotic fervor, and refusing to salute to the American flag was seen as suspect. The Barnette Court declared that requiring schoolchildren to salute and pledge to a flag “invades the sphere of intellect and spirit” which should be free from “all official control.”

In explaining the case to me, Professor Strossen said that all of Constitutional Law could be taught with this one decision.

Adjunct Professor Ruth Hochberger, who specializes in media law and teaches “Legal Landmines for Reporters”, chose a case from 1966 that she described as “one of the starkest examples of cases that must resolve a conflict between two equal amendments to the constitution,”

In Sheppard v. Maxwell, the First Amendment right to freedom of the press and the Sixth Amendment right to an impartial jury came head to head as the Court held that a man, convicted of murdering his pregnant wife, had been denied a fair trial because of the extreme pretrial publicity and “carnival-like atmosphere” during his trial. At the trial level, reporters had filled not only the benches in the courtroom, but all the vacant rooms on the floor. One television station had set up temporary broadcasting facilities in an area adjacent to the jury deliberation room. And jurors even had access to media reports that included excerpts from sidebar conversations between the judge and attorneys.

But what’s most fascinating about this case, explained the professor with gusto, is that the opinion focuses not on the “egregious conduct of the press”, but on the judge’s inability to control the courtroom. Throughout the trial, the judge continuously denied defense counsel’s requests to question the jury about their outside knowledge of the case, and when jurors were sequestered for deliberations, the court didn’t even prevent them from calling home.

As a journalist and a lawyer, Professor Hochberger appreciated how the Sheppard Court struck a delicate balance between what Justice Clark describes as giving the press “a free hand” in covering trials while maintaining “the integrity of the trial.”

Professor Arthur Leonard, editor of Lesbian/Gay Law Notes and co-author of Sexuality Law, spoke to me for almost an hour (and I could have talked with him for hours more) about his favorite opinion, Lawrence v. Texas, which in 2003 struck down a Texas sodomy law that prohibited persons of the same sex from engaging in certain sexual acts. Lawrence overruled “one of the most harmful Supreme Court decisions in lesbian and gay law,” Bowers v. Hardwick, a case Professor Leonard was present for when argued before the Court in 1986. In Hardwick, the Court upheld a Georgia sodomy law that made it outlawed certain sexual activities for everyone, same-sex or not.

It took nearly two decades, but in a 6-3 decision, the Lawrence Court ruled that “[Hardwick] was not correct when it was decided, and…is not correct today.”

Lawrence laid the groundwork for many advances in gay rights, including the demise of “Don’t Ask, Don’t Tell,” the policy that banned openly gay Americans from serving in the military.  And the day before our meeting, the Ninth Circuit Court of Appeals struck down Proposition 8, an amendment to California’s Constitution that made same-sex marriage illegal in that state. Though the Court relied heavily on another Supreme Court case, it did not forget to cite to Lawrence, the case that started the ball rolling for gay rights.

Professor James Grimmelmann, aka Master of all things Intellectual Property, chose a classic from the Supreme Court collection of copyright cases, Feist v. Rural. To him this 1991 case, about the seemingly narrow issue of whether phonebooks can be copyrighted, orients copyright law away from effort (how much time and energy an author puts into his work) and towards originality and creative expression. And in holding that only the original elements of factual compilations (such as phonebooks) are eligible for copyright protection, Professor Grimmelmann says, Justice O’Connor “laid the groundwork for American copyright law.”

The decision is an important one in the computer age, because a lot of work is mechanical, rote, and requires effort, but is not creative and, thanks to Feist, is off limits for copyright. Is denying copyright protection to certain compilations unfair? As Justice O’Connor put it: “The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts’…This is neither unfair nor unfortunate. It is the means by which copyright advances…science and art.” Professor Grimmelmann admires the opinion for its content and hails it as the “perfect piece of rhetoric!”

Professor Deborah Archer, an expert in civil rights law and racial discrimination law, votes for South Carolina v. Katzenbach. After the Voting Rights Act of 1965, this decision “changed the face of our electoral system.”

Before the 1965 Act, many southern states were inventing new ways to keep African Americans away from the polls. And when African Americans challenged a discriminatory voting procedure, states would craft another way to deny them access to the ballad. That’s when Congress responded with the Act, and “tried to get ahead of the game.”

None too pleased; South Carolina challenged the constitutionality of certain provisions, including those prohibiting states from using literacy tests as a prerequisite to voting. Another major sticking point was Section 5, which singled out certain states like Alabama, Alaska, Georgia, Louisiana, Mississippi, Virginia, as well as South Carolina, and certain counties in North Carolina, Arizona, Hawaii, and Idaho that would not be allowed to adopt new voting procedures unless they are pre-approved by the United States Attorney General or reviewed after the United States District Court for the District of Columbia hears the case. The Katzenbach Court upheld each of the challenged provisions of the Act so that in Chief Justice Warren’s words, “[w]e may finally look forward to the day when truly ‘the right…to vote shall not be denied or abridged…by any State on account of race, color, or previous condition of servitude.’”

Periodically, Section 5 expires, and each time, must be renewed. After the latest renewal in 2006, Shelby County, Alabama sued arguing that the requirements (in effect until 2031) are burdensome and exceedingly broad. In 2010, the District of Columbia district court upheld the statute, but it was appealed a few weeks ago. No matter the decision, it will likely make its way up to the Supreme Court.

Perhaps Professor Archer treasures Katzenbach all the more because of the continuing need to fight for what it stands for.

So there you have it, LASIS readers.

A constitutional law case on steroids. A battle of rights between free press v. fair trial. A groundbreaking gay rights case. A gem of a copyright case. A voting discrimination case that asks us to fight to keep it alive.

All worthy contenders.

Do you have a favorite Supreme Court case? We’d love to hear from you.

By Russell Smith

Joseph Bray recently did something we wager he will never do again:  he forgot his wife Sonja’s birthday. She took umbrage at this flagrant violation of a Marriage Commandment – and a fight ensued. Things turned physical, Mrs. Bray called the police, and when they arrived, she told them that that her husband had pushed her onto the couch, grabbed her near the neck and balled up his fist, though he didn’t strike her. Mr. Bray was arrested and charged with battery.

After a night in jail, the couple appeared before Judge John “Jay” Hurley for a “first appearance hearing.” Mrs. Bray informed Judge Hurley that she loved her husband, she wasn’t hurt and she didn’t fear him.

It was just before Valentine’s Day, and since this seemed like a “minor incident,” Judge Hurley decided to play Cupid. He agreed to release Mr. Bray on his own recognizance – but only if he took his wife out for a birthday celebration, with a card, flowers, a Red Lobster dinner, and bowling.

The story quickly became a media darling, appearing on ABC, CBS, CNN, MSNBC, and NPR. It was even satirized by “Saturday Night Live.” (On Weekend Update, Seth Meyers discussed the story and deadpanned:  “Red Lobster—where people are sentenced to dinner.”) Some pundits felt that Judge’s Hurley’s order was romantic , and some argued that it didn’t take the domestic violence charges against Mr. Bray seriously enough.

And still others wondered: “Can judges really order people to do things like this?”

The Wall Street Journal Law Blog posed the question, but stopped short of answering it. Problematically, the Law Blog’s analysis relied on a case dealing with sentencing a defendant who had already been convicted of a crime – not, as in the Brays’ case, a judge’s power to place conditions on the defendant’s release prior to trial.

So while it is true that a federal appellate court held that it was not a cruel and unusual punishment for a judge to sentence a mail thief to stand outside a post office holding a sign that read: “I stole mail. This is my punishment” – it’s also irrelevant.

In fact, a review of the applicable law reveals that Judge Hurley lacked the authority to order the Brays a birthday dinner.  

The Florida Rules of Criminal Procedure set out in great detail the permissible steps a judge can take at a criminal defendant’s first appearance. Rule 3.131, which governs pretrial release, has a presumption that in all cases, the judge should issue a “no contact order,” requiring the defendant to refrain from contacting the victim in any way, whether in person, by phone, email, text message, Facebook post, tweet, smoke signal – okay, you get the picture. If you watch this video of Mr. Bray’s first appearance hearing, you’ll see Judge Hurley say he is opting not to issue such an order. No problem – Rule 3.131 permits the court to “modify the condition precluding victim contact if good cause is shown and the interests of justice so require.” Judge Hurley apparently felt that because this was a “minor incident” and Mrs. Bray was willing to reconcile with her husband, good cause existed not to mandate the couple separate during the pendency of this case.

From a policy perspective, it is a good thing when judges tailor no contact orders to individual cases. Blindly issuing such orders disproportionately harms indigent defendants who have trouble finding new places to live.  And for cases like the Brays’, it’s overkill.

But Judge Hurley didn’t just refrain from issuing a no contact order.  He went one step further.

He ordered togetherness.

There is nothing in the law which grants him this power.

At this stage in the proceedings, the court has three goals in mind: to protect the community from risk of physical harm, assure the presence of the accused at trial, and assure the integrity of the judicial process. For serious crimes, a judge may determine that no form of release would be consistent with these goals, so he or she can remand the defendant (send him back to jail with no opportunity to post bail). Otherwise, Florida’s Rule 3.131 provides judges with a list of conditions they can place on the release of the defendant. There is no wandering or straying from this list, as the Rule is airtight.  It states that the court “shall impose any combination of the following conditions.” That means what it says.  Judges have absolutely no discretion to invent new conditions, no matter how “tasty and sweet” those conditions may be.

First, a judge may release a defendant on his own “recognizance.” This is actually no condition at all. The defendant is simply released and expected to return on his own to fight the criminal charges against him.

Second, a judge can condition a defendant’s release on posting a specified amount of bail. This incentivizes a defendant’s return to court, because if he doesn’t, he forfeits the bail money.

Third, a judge may place “restrictions on the travel, association, or place of abode of the defendant during the period of release.” This is the section which gives judges the authority to issue no contact orders and other temporary restrictions on the defendant’s rights. Judge Hurley’s order that Mr. Bray affirmatively treat his wife to a dinner and bowling? Doesn’t satisfy this condition.

Fourth, a judge may place a defendant in “the custody of a designated person or organization agreeing to supervise the defendant.” This is how things like pretrial house arrest are organized. Not applicable to the Brays’ case unless the court secretly organized with a Red Lobster hostess to keep an eye on Mr. Bray.

And lastly, a judge may impose “any other condition deemed reasonably necessary to assure [the defendant’s] appearance.” In issuing his order, perhaps Judge Hurley assumed this catchall provision would authorize a Red Lobster dinner, but it almost certainly doesn’t. This provision only enables judges to come up with creative ways to make sure that the defendant returns for his next court appearance. Unless the judge worried that Mrs. Bray would literally kill her husband if she didn’t get an evening of fine dining and bowling, it’s difficult to grasp how a dinner date makes it more likely for Mr. Bray to return to court.

None of the acceptable conditions on pretrial release authorize Judge Hurley’s order, which though clever, has no basis in law.

The order was invalid and from a legal standpoint and Mr. Bray can just forget all about it. Then again, that’s how he got into trouble in the first place, isn’t it?

By Steven Ward

Anyone who watches NFL games each week is witness to organized warfare, with players delivering excruciating and merciless blows to the opposition. To deal with the frequent injuries, players are often given a shot of the painkiller Toradol, known medically as Ketorolac, before games.

A dozen former NFL players have filed a class-action in U.S. District Court in New Jersey against the league, claiming that they weren’t warned of the consequences of taking the drug. The players allege that among other side effects, Toradol masked pain, which masked the symptoms of concussion.  Playing through their head injuries, the suit states, has brought on long term debilitating conditions, such as “anxiety, depression, short-term memory loss, severe headaches, sleeping problems and dizziness.”

If the NFL is taking these allegations seriously, it has a funny way of showing it:  it still permits the painkiller to be administered during play.

In a recent NY Times op-ed, former Denver Broncos player (2003-2008) Nate Jackson, who is not a party to the lawsuit, wrote of his own experiences with the drug, which included routinely lining up with his teammates before games for injections. He was never quite sure why.

As to how much Toradol he was given during his tenure with the Broncos, or the results of any tests given at the time of his playing, the op-ed was silent — not because Mr. Jackson didn’t want to tell us, but because he couldn’t.

He can’t access his medical records: “Even after I filed a workers’ compensation lawsuit against the Broncos a year ago that later included a request for that folder,” he writes, “I still don’t have it. The team hasn’t released it to me.”

How can this be? All of us have an absolute right to our medical records, right?  

Wrong.

In the leading case on the subject, the Second U.S. Circuit Court of Appeals ruled in 1975 that that we patients don’t have a constitutionally protected rights to direct and unrestricted access of our medical records.

Partly to remedy that incongruity, in 1996 the Department of Health and Human Services passed Health Insurance Portability and Accountability Act (HIPAA), a federal regulation granting people a general right to access (not ownership) of their medical records. This regulation requires a “covered entity” to furnish either a copy or access to the records within 30 days of a patient’s request.

OK, now we’re talking.  So Mr. Jackson has a legal right to see his records immediately, right?

The medical care model in professional sports has made for an interesting dynamic among the doctors, teams, and players.  The current trend is for the doctors to be supplied by hospitals who pay the team to use their services in exchange for advertising and other perks. If this is how Mr. Jackson was treated, and he’s made his request to the doctors and hospitals that cared for him, he has a valid claim under HIPPA to view his records.

But if a full-time team physician employed exclusively by the Denver Broncos treated him during his NFL years, it doesn’t seem as though the Denver Broncos would be considered a “covered entity”.

State laws may provide more access rights than the floor set by HIPPA andmost states have medical access statutes that recognize patients’ right to access their records.   In Colorado, for example, where Mr. Jackson’s medical treatment primarily took place, state law recognizes the patient’s right to access his medical records “at reasonable times and upon reasonable notice.”

We’ve found no case law that directly pertains to Mr. Jackson’s situation – and we tried.

Anyone with comments or thoughts, we invite you to weigh in.

By Ryan Morrison

SOPA. PIPA. ACTA. The TPP. Bills that involve governments around the world trying to put a stranglehold on the Internet.

Core issues of freedom are involved. And as comedian John Oliver put it on his podcast, “It’s a shame this stuff is so important because it’s really damn boring.”

Luckily, some people actually find “this stuff” fascinating, and are working from the political sidelines, doing everything in their power to speak up for the rest of us when it comes to the Internet. The Electronic Frontier Foundation (EFF) is that group, and of that group, one man stands apart from the rest. We mean that, of course, because he was willing to sit down and speak with us.

Trevor Timm is a 2011 NYLS alum, and he’s done us proud.  He graduated near the top of his class, passed the bar, and now serves as an advocate-journalist in the San Francisco Office of the EFF. He also wrote for this very blog, and now he’s back to catch up with us.  We spoke over Skype on the evening of February 3, and again on February 18.

Thank you for taking some time to talk to me. I follow you on Twitter and read your articles, but I’m still amazed at how you’ve become such a respected and well known writer. How did you make the leap from new law grad to working for the EFF?

Thanks for inviting me. I got heavily involved with Legal as She is Spoke and the Program in Law & Journalism with New York Law School at the beginning of my second year. Professor Zierler helped me get a job with former New York Times general counsel James Goodale where I worked on free speech issues for more than two years. My last year, I also had a terrific internship with the General Counsel of the New Yorker. And at school, I worked as a research assistant for Professor Nadine Strossen, former President of the ACLU.  I was always pretty good with time management!

On top of all that, I was on Twitter night and day trying to make a name for myself by analyzing free speech issues in the news. I was able to get a strong following on there from my writings on Wikileaks, and this helped seal the deal when I applied a job at the EFF.

Here I am, and I love it. I get to do what I did for LASIS as a career, on subjects I enjoy writing about and even affect the public discourse.   It couldn’t be more satisfying.

Yes, I know from reading your tweets and articles that you care deeply about what you do.  And lately, you’ve been writing a lot about SOPA and PIPA. Thanks to advocates like yourself, the two bills have now been tabled indefinitely. What next?  

Well the MPAA and the RIAA have gotten their way with Congress for a long time. There’s always a chance these bills will be merged under a different name, and added as an amendment to a completely unrelated bill.

But unlike most bills being discussed these days, this isn’t a partisan issue. Representatives from both sides of the aisle lined up for and against the bills. Senator Ron Wyden [D-Oregon] and Congressman Darrell Issa [R-California] deserve particular praise for raising the alarm on these bills when no one was paying attention.

On the other hand, people like Senator Al Franken [D-Minnesota] were disappointing.  When you look at how strongly he had defended online free speech in the past, it’s odd that he favored bills antithetical to it flourishing. But again, a lot of their campaign funds come from Hollywood, and Hollywood wants SOPA.

Then if this just postponed the inevitable, how effective was the blackout?

We had high hopes for the blackout, but even we here at the EFF were surprised at how effective the blackout was. After less than 24 hours, dozens of congressmen who hadn’t weighed in now opposed the bill. Some who had been pro even flipped sides. Another 24 hours went by and both Senator Harry Reid [D-Nevada] and Congressman Lamar Smith [R-Texas] tabled the bills in the House and Senate indefinitely.  Just days before, they had both said that passing these bills was one of their highest priorities for 2012.

The average web user woke Congress up. Congress will think twice about passing a bill that affects the Internet, without actually consulting its users. Even though there is the real possibility they will try to slip SOPA like legislation into another bill, our representatives know we’re all watching.

SOPA and PIPA were grouped together.  Was this fair or did each bill offer its own distinct problems?

When SOPA was introduced to the House, it was much worse than PIPA, which was already really bad. But in the end they wound up looking pretty much the same.

It’s possible the House was strategic in crafting SOPA so badly, so members could then pretend to be reasonable, compromise, and say, “Fine, we’ll agree on PIPA then.” There were provisions in the original version of SOPA that gave corporations the ability to shut down websites without going to court. All they had to do was send notice to a site’s ad payment processor — not even the site itself! — and it would be game over. That site could have had millions of pages or videos, and if just one was infringing, the whole site could have been cut off, just by an allegation by a rights holder.

So if one video on YouTube (which receives 60 hours of video every minute) was accused of infringement, a rights holder could shut down the whole site’s advertising network with only one notice. Congress took that part out after a huge outcry, but the final result was nearly as bad. The Act still offered an ability to cut off payment processors, to delist domains from search engines, and DNS filtering, not to mention immunity for ISPs (any organization that provides access to the Internet), which would allow them to block whoever they wanted with no judicial oversight. All of these things were strongly opposed by the online community and the EFF.

I’m going to play devil’s advocate for a moment. What about the online piracy epidemic?  Do you believe SOPA and PIPA could have helped stopped it?  Or for every Piratebay shutdown will five more pop up?

The tools used in these bills are still crude. They allow for the blocking of a DNS or the delisting from a search engine, but the much more tech savvy pirates will always just switch domain names and get listed some other way. These bills never get at the actual pirating website and the IP address remains untouched. So they “block” one and it appears somewhere else. It’s a game of whack-a-mole.

The only people who will actually feel any pain are the ordinary, innocent Internet users. They’re the ones who will get hurt by it because they’re not as tech savvy. Your blog or your personal photos or videos could easily be taken down in a wave of sites that are accused of copyright infringement.

That’s also why the immunity provisions in these Acts are so terrible. Look at the Mooo.com example. The FBI thought it was seizing a domain engaged in copyright infringement and instead wound up with 84,000 domains that had nothing to do with what they were after. Innocent people lost their sites, and some their livelihood, because of an FBI mistake, and this kind of “over-blocking” would be commonplace under a bill like SOPA or PIPA. The immunity provision means these people who are hurt by it have no recourse to sue anyone for damages. They’re just out of luck.

Understanding Google is still a corporation and corporations obviously (and rightfully so) care about profits, can we expect them to stay the defender of the little guy? Or will our goals not always intersect with these Internet giants?

Well, sometimes their ideals will intersect with what EFF believes to be the right course of action, other times they won’t. Many times with free speech issues, we agree. But other times with privacy issues, we don’t. For example, 49 of the top 50 websites (excluding only Wikipedia) use cookies (a file installed on your computer from a website) to track your movement online and see a lot of what you do, which they can then sell to advertisers. The top culprit of this is probably the last one you’d guess though, Dictionary.com. Another example is if you’re at a page that has a Facebook “like” button, not only will Facebook know if you click it…they’ll also know if you don’t. Merely visiting a site with a “like” button means Facebook knows you were there.

Wow, I actually had no idea about that.

Yeah, it’s surprising stuff sometimes.

But Google is good in other privacy areas, like requiring a warrant from law enforcement for the contents of emails, despite law enforcement’s contention that the law doesn’t require a warrant like it would with letters or phone calls. So it really depends on the individual issue.

Looking at the dramatic and effective shutdown of Megaupload, many are left confused about why the government even needed SOPA and PIPA in the first place. Would you mind explaining for our readers how Megaupload was brought down without these two bills?

There are a lot of laws on the books already, like the Digital Millennium Copyright Act, to take down infringing material. And the Megaupload takedown shows why SOPA and PIPA aren’t needed. The bills’ stated goal was to go after foreign sites, but Megaupload was incorporated in Hong Kong, its founder was a  Finnish and German citizen, and he was arrested in New Zealand. Megaupload shows how much power the government already has in this area.

In addition, Megaupload had millions of users that used the site for non-infringing material. So even if there was infringing material on that website, there were also innocent people with very legitimate purposes who had their rights violated. EFF is working on trying to make sure everyone with non-infringing material on Megaupload gets their files back

Does the huge success of the Internet-wide protest mean we can expect future political debates to be won or lost by the support of the online community? Or do you see the giants such as Wikipedia and Google staying out of most other political questions?

I think we have witnessed a new and great form of activism. The website Reddit has been a huge leader in these political movements and it’s a website that is, for the most part, run by its users. That’s amazing. Reddit users got Godaddy to reverse its support for SOPA; they got Congressman Paul Ryan [R-Wisconsin] to come out against the bill forcefully; they were the first site to say they’d blackout in protest. Their decision triggered the major players like Google and Wikipedia to join in. All of this, by the way, was done in an incredibly short amount of time. This showed Internet users that they could be part of the political process and that their voices were powerful.

The blackout was kind of the “nuclear option” for these sites. It had never been done before and it shouldn’t be abused or threatened to be used for every possible threat to Internet freedom; it would lose its effectiveness. It worked here because Wikipedia was able to say, “This is what we may very well look like if SOPA or PIPA pass.” Our hope is that this alerted people to the dangers new bills like this can pose. SOPA went from something no one had heard of to something everyone knew the name of in less than 24 hours. We’ve never seen anything like that in our history, and hopefully people now realize the power they hold and that they can make a real difference.

It’s definitely exciting. Also, congratulations on being the author of the single article Wikipedia linked to on the day of the blackout.

Thank you, and yes that was surreal. The White House said it was against any bill that would stifle free speech or hurt internet security, so my article was an attempt to try to box the administration in. But it also gave a simple explanation of all the parts of the bills that would affect common websites and ordinary users, so Wikipedia sent its users there if they wanted more information on its dangers. It ended up getting over 600,000 hits in two days.

Well, thank you very much for taking some time to go over all of this and answer my questions. Before you go, I’d be a fool to not ask you for any advice you might give to law students looking to follow in your footsteps.

The best advice I could give is simple: constantly read and constantly write. If you are regularly consuming news about your areas of interest then you will naturally become more knowledgeable than most people on any subject you choose. Once you feel like you’re an expert on an issue, then focus on it and write about it regularly. Being able to be knowledgeable and being able to explain it in a clear way can be tough and the only way to do it well is to practice. From there, people will take notice.

Finally, I know that last week you testified in front of the European Parliament on the sale of mass spy gear by American and European companies to authoritarian regimes. That’s really amazing! How did you get selected for that? And what was it like?

We have been working on ways to get these companies to refrain from selling this tech to dictators for a while now, and when the parliament invited EFF to speak, I got the nod. The technology is horrible: it lets governments read citizens’ emails, turn their phones into tracking devices, and a whole host of other dangerous features. There’s ample evidence that activists and journalists have been tortured because of it. But the hearing was encouraging. Probably 100-150 people attended, including many members of parliament, and many of the people I talked to after the hearings seemed to think there’s a workable way forward. Hopefully they will act soon. It gets worse all the time.

Thank you very much for taking some time to go over all of this and answer my questions. Keep on fighting the good fight!

By Katherine Lazarow

Detective Herlihy, father of three, surprised his wife with a bracelet on Valentine’s Day and went off to work. A few hours later, he was caught in a deadly shootout in a crowded subway station.

Michael McBride, 52, was wanted for the Monday shooting of his girlfriend’s daughter. According to witnesses, he’d concealed his .22-caliber revolver in a folded copy of the NYDaily News. When street detectives recognized him and called out for him to stop, he raced into the station, where the gun battle ensued.

At least 17 shots were fired at West 145th Street and St. Nicholas Avenue in Harlem, scattering commuters and killing Mr. McBride.

Det. Herlihy was wounded but survived. Many other officers are not so lucky.

“Isn’t there a way of getting handguns out of the hands of potential criminals” ? That’s the question the media and the public ask each time an incident like this occurs.  The NYPD believes it may have the answer.

Welcome to the new world of crime prevention envisioned by Terahertz Imaging Detection, a new technology that measures energy coming off of a person’s body, and detects anything that’s blocking that energy, such as a gun. Currently being tested by the NYPD, it consists of a portable scanner placed on police cars that can be aimed at a particular person to reveal any concealed weapons. Terahertz rays (also called T-rays) are similar to x-rays but less powerful; they can penetrate fabrics and plastic, but can’t pass through metal or water.

The T-ray scanner could be a valuable tool in the battle to reduce the crime rate and prevent gun violence. But at what cost? If the police use the scanners to check every person walking down a particular street for concealed weapons, are they violating these citizens’ right to privacy under the Fourth Amendment? What if the T-ray scanners are used only after a person has been stopped by the police due to suspicious behavior?

The media didn’t carefully examine these questions.  We will.  

The Fourth Amendment protects people against “unreasonable searches and seizures” conducted by the government, and so the first question is whether law enforcement’s use of T-ray scanners amounts to a “search.” If there is no search, the Fourth Amendment doesn’t apply, and the police are free to use the scanners indiscriminately. But if the government’s action is considered a search, then the Fourth Amendment requires that the search be “reasonable.”

In the 1967 case of Katz v. United States, the U.S. Supreme Court stated that, to determine whether certain government conduct rises to the level of a “search” within the meaning of the Fourth Amendment, courts should consider first whether a person has demonstrated a subjective expectation of privacy, and second, whether this expectation is “one that society is prepared to recognize as reasonable.”

Some critics argue that the Katz test hinges on society’s expectations of privacy, and as technology advances and lowers the degree of privacy people expect in their daily lives, the Fourth Amendment will provide less and less protection.

Think of Facebook and Twitter, and the increased use of full body scanners in airports; in the near future might we acquiesce to police using scanners to check for hidden weapons as we walk down the street?

Maybe. But for now, at least, the use of T-ray scanners is probably a “search”: in choosing to put on clothes every day, we expect to keep what’s underneath them private. And this expectation of privacy is almost certainly something that society recognizes as reasonable.

The use of T-ray scanners is also similar to the use of other technology that the Supreme Court has decided is a search. In Kyllo v. United States, 2001, a DEA agent, sitting in his car outside a suspect’s apartment building, used a thermal imaging gadget to measure the level of heat coming from the building, apparently to determine if the suspect was hiding a large marijuana-growing operation. The Supreme Court concluded that the agent’s use of this “sense-enhancing technology” to obtain information that can’t be seen by the naked eye amounts to a search. The Court also stressed that these thermal imaging devices are not in general public use—presumably, if every Tom, Dick, and Harry owned an infrared radar, the suspect would have no reasonable expectation of privacy.

So it appears that if a police officer scans a pedestrian using terahertz technology to determine if he’s carrying a weapon, this act would be considered a search.

Just to play devil’s advocate for a moment:  the use of T-ray scanners is also comparable to police conduct that the Court has determined is not a search:

In 1983, the Supreme Court held in United States v. Place that using trained dogs to sniff a person’s closed bags for illegal drugs is not a “search” within the meaning of the Fourth Amendment. The Court’s rationale behind this “contraband exception” was that, because the dogs reveal only illegal activity and nothing else, people’s privacy is still protected.

Would the use of T-ray scanners fall under the contraband exception? Possibly, if the scanners can expose only illegally concealed handguns. But that’s probably not the case with T-rays. If the scanners can detect handguns, it’s likely they can also detect other objects, such as cell phones and cameras, or something embarrassing but perfectly legal. (Let your imagination wander.) And what about states that allow people to carry guns under their clothes with a concealed carry permit?  If the scanners would reveal any of these items, this exception would not apply.

So we’ve got ourselves a search.  Now we must examine whether this search is considered “reasonable” under the Fourth Amendment. The general rule is that all searches conducted without a warrant are unreasonable. But there are, of course, exceptions—limited circumstances when warrants are not required.

For example, have you ever wondered why the police can pick you out of the crowd and search your bag as you walk through Penn Station? Thank the “special needs doctrine,” which allows for suspicionless, warrantless searches in situations when the government has an increased interest in safety (think airports, international borders, and crowded train stations). The Second U.S. Circuit Court of Appeals explained in 2006 that under this doctrine, random, warrantless searches in New York City subway stations that were intended to detect explosives did not violate the Fourth Amendment. Protecting the subway system from a terrorist attack is a “special need” separate from general law enforcement, and people have the option to refuse the search if they leave the subway.

The use of T-ray scanners in subway stations or airports may fall under the special needs doctrine, as long as people are given the option to be searched or leave the area. But since the government must have a reason for searches apart from general crime control, using the scanners on sidewalk pedestrians is probably not justified. The officers would be using the scanner to detect concealed guns, not threats to national security — and unlike random searches in subways, pedestrians subjected to T-ray scanners do not have the option to walk away before being searched.

“Stop and frisks” present another situation when limited, warrantless searches are still considered reasonable. The Supreme Court first recognized this narrow exception to the warrant requirement in Terry v. Ohio in 1968. The Court held that when an officer reasonably believes that a person is armed and dangerous, the officer may perform a pat down to determine whether the person is carrying any concealed weapons.

The limited use of T-ray scanners to discover guns or other hidden weapons may be justified under Terry. For example, if someone has been stopped by police officers upon their reasonable belief that he is armed and dangerous,  use of the scanner in place of a pat down may be a “reasonable search” consistent with the Fourth Amendment. But if the police scan everyone passing by, even people they have no reason to suspect are armed and dangerous,  these searches would be unreasonable under Terry.

Terahertz Imaging Detection is not the first technology to scan groups of people to identify potential criminal activity. Face-recognizing cameras that can search crowds and use algorithms to identify faces of known criminals were used at the 2001 Super Bowl in Tampa Bay, and are currently scanning faces in Las Vegas casinos and the New York DMV. License plate recognition cameras, which attach to police cruisers and scan all passing license plates to identify stolen vehicles, are regularly employed by law enforcement without much resistance from the public, too.

And soon, sniffing technology may be installed in airports to detect biological and chemical security threats. The technology samples the air around travelers and identifies whether they have recently been in contact with specific substances, such as explosives.

All this technology has the potential to prevent crimes and save many lives. If the T-ray scanners were available to Det. Herlihy and his fellow officers, it’s possible they would have detected Mr. McBride’s hidden gun and taken precautionary measures to avoid the fatal shootout. On the other hand, unrestricted use of the scanners could also result in the invasion of many innocent citizens’ privacy.

Is this a price we’re willing to pay?

I suspect the widows of police officers killed in the line of duty would say, “yes.”  What about the rest of us?

By Halina Schiffman-Shilo

Every once in a while, I get so worked up about my hometown that I decide to finally, finally write an open letter to the members of Congress telling them how I feel. It would go something like this:

“Dear Congressperson,

Please keep your personal politics and religious beliefs out of my city.

All the best,

Halina”

I never do, though, because unfortunately, it’s not that simple.

A few weeks ago, the Huffington Post reported that Arizona Representative Trent Franks (R) wants to pass a law in Washington, DC, which would prohibit women 20 weeks pregnant or more from obtaining abortions. There is no exception for cases of rape or incest. More recently, Utah Senator Mike Lee (R) introduced a similar bill for Washington, DC in the Senate. Now, abortion politics aside, you may be wondering how a representative from another state could pass a law for the citizens of DC—citizens, I might add, who did not vote for either Representative Franks or Senator Lee.

If you’re not from DC yourself, you’re probably wondering how this can be.  HuffPo didn’t explain so LASIS will.  A quick civics lesson: The District of Columbia is a federal district, and not a state. This means that it is administered at the federal-level, through Congress, rather than at a state-level.

Here’s how it works.

After elected city councilmembers pass a bill, they send it to the elected mayor—pretty standard stuff. If the mayor approves, the council chairperson then sends the bill along to Congress for approval. Once Congress approves, the law is good to go. In addition, City Council must send the annual DC budget to Congress for approval. Congress can then pass the budget or amend it.

At first glance, this doesn’t seem unreasonable—until you consider that the citizens of Washington, DC do not elect any members to Congress. Because we are not a state, we have no state senators and no voting representatives. DC has one non-voting representative, the tireless Congresswoman Eleanor Holmes Norton. Though passionate and outspoken, Congresswoman Norton cannot vote on any legislation brought to Congress.

This means that when congresspersons try to pass laws regulating DC, we are powerless to stop them. In the representative democracy that is the foundation of the United State of America, the citizens of Washington, DC are without representation. Over the years, local organizations, such as DC Statehood and DC Vote, and even the DC Government, have pushed for DC statehood or at least some voting representation, but to little avail. In their way is an insurmountable problem: the US Constitution.

Two clauses in the U.S. Constitution have sentenced DC to its fate: Article 1, section 2 and Article 1, section 8. Section 2 says “The House of Representatives shall be composed of members chosen every second year by the people of several states.” Section 8 declares “Congress shall have power to …exercise exclusive legislation in all cases whatsoever, over such Dis­trict (not exceeding ten Miles square) as may…become the Seat of the Gov­ernment of the United States.”  Though DC exceeds ten square miles, its fate is sealed.

Well, almost. Enter the District of Columbia Home Rule Act.

The Home Rule Act was passed in 1973 to “grant the inhabitants of the District of Columbia powers of local self-government,” and to “relieve Congress of the burden of legislating upon essentially local District matters.” I didn’t know legislating DC was so burdensome, but I am glad that DC citizens of Washington, DC can help out. And I know we are more than willing to entrust local governance matters to our elected councilmembers.

In fact, as a Washingtonian, I resent the members of Congress, who I did not elect and cannot vote out of office, who continue to use my city as an incubator for their experimental social policies through Congressional riders, by attaching unsavory provisions to federal budgets, or by engaging in tit-for-tat negotiations on DC Congressional representation.

From abortion, to gun control, to HIV-prevention strategies, Congress has tackled issues on behalf of DC citizens without taking into account what these citizens want or need. It’s patronizing at best, and undemocratic at worst.

But for the time-being, though a perversion of representative democracy, it’s completely legal. Until DC gains either statehood or a voting representative in Congress, the Home Rule Act provides little protection against Constitutional abuse, and Congress continues to run interception with DC, our nation’s political football.

By Meghan Lalonde

West Memphis, 1993: Three 8-year-old boys brutally murdered in small-town Arkansas. Three satanic teenage “punks” to blame it on. When looking for suspects, these teenagers fit the bill – long hair, heavy metal fans, all dressed in black. There was even a confession. The story caught the attention of two HBO filmmakers, who decided to make a documentary about the horrible crime that traumatized the community.

The film that introduced the world to defendants Damien Echols, Jason Baldwin, and Jessie Misskelley – the West Memphis Three (WM3) – wasn’t supposed to be about wrongful convictions. It wasn’t supposed to be a project that led to two additional films over the next 18 years. It just turned out that way.

Last month, HBO premiered the third and final chapter of the documentary, “Paradise Lost 3: Purgatory.” I’d heard about it and thought it seemed interesting so on a rainy Friday afternoon I turned on the TV to give the first one a shot. Six hours, two sandwiches, and a full liter of Diet Coke later, I was reeling.

Searching for order in all the disorder, I’ve boiled it down to an A to Z list of some of the haunting and perplexing aspects about this terrible miscarriage of justice. There will be no “Spoiler Alert” here. Google the film and you’ll see that the three convicted murderers are free, released in August 2011 after entering into Alford Pleas (see “P” below). As with so many epic stories, knowing the ending doesn’t minimize the gripping nature of the journey.

Alternative suspects. One of the many critical shortcomings of the West Memphis Police Department was failing to search for leads on additional suspects. First, police never investigated Terry Hobbs, the stepfather of one victim with a history of violence. Mr. Hobbs claimed he hadn’t seen the children the day they went missing, but his neighbors are certain they saw him with the kids after school, around the time they were last seen. In 1993, these neighbors were never questioned. Police also botched the investigation of an unidentified black man who was seen at a local restaurant covered in mud and blood on the evening of the murders. They collected blood samples from inside the restaurant, then lost the evidence.

Blood. When the bodies of the three boys were discovered in a stream they were found naked, hogtied, stabbed, and mutilated. The prosecution argued that the murders occurred near where the bodies were found, but if that were true, wouldn’t there have been blood found at the scene? There wasn’t. Not even a drop. The use of a knife and ritual bloodletting thought to be part of satanic rituals were integral to the prosecution’s theory against the WM3 and yet there wasn’t any blood to be found. Recent forensic analysis has explained that the scratches and skin flaying of the victims were actually due to animal predation.

Celebrity support. Celebrities figured among thousands of supporters who learned about the WM3 from the first film. In 2010, Johnny Depp and Eddie Vedder hosted a benefit concert in their support. When the WM3 were released in August, Damien Echols, the defendant who had spent 18 years on death row, said he wanted to go to Disneyland. Mr. Depp made it happen.  

Death row. “Welcome to where time stands still/No one leaves and no one will” are the lyrics to one of Damien Echols’s favorite Metallica songs, “Sanitarium.” It’s a fitting description for solitary confinement at Varner Super Maximum Security Unit in the Arkansas Department of Correction. “You have to create your own world in there or else you’ll go insane from that stuff,” he said in an interview with Piers Morgan after his release. See “S” for more on sentencing.

Eleven. Perhaps the most chilling quote from the entire case came from Chief Investigator Gary Gitchell. At a press conference in the early stages of prosecution, Mr. Gitchell was asked how strong he thought the case was on a scale of 1-10. His answer:  “Eleven.” Mr. Gitchell has not spoken publicly about the release of the WM3.

Freaks. In a town filled with bible thumpin’ Christians, you might be able to guess how well three longhaired heavy metal-loving teenagers fit in. They didn’t. “Just look at the freaks,” said Pamela Hobbs, the mother of one victim. “They look like punks.” Damien Echols had even dabbled in Wicca, a religion historically tied to witchcraft, easily making him the strangest and most targeted member of the bunch. As he explained, “What people don’t understand they try to destroy or ridicule, try to make it look bad or wrong. West Memphis is a second Salem right now.”  He was only 19 at the time but he was right.

Guilty. The WM3 were all found guilty of murder. Given the lack of evidence to tie them to the crimes, these guilty verdicts are both astonishing and frightening.

HBO. Every now and then a documentary can have a direct impact on its subjects (see “The Thin Blue Line”).  The WM3 will tell you that if not for the first “Paradise Lost” film they would not be free today.

IQ. One of the WM3, Jessie Misskelley, had an IQ score between 72-73 and functioned at the level of a third grader. When questioned by the police about his friends, he stated he committed the crimes along with them. According to experts on coerced confessions, Jessie is the type of person who is likely to give a false confession — easily confused and wanting to please his interrogators. See “Q” for more.

Justice. As of now, there is no justice for the WM3 because they remain convicted murderers in the eyes of the law, “They sent us to prison for the rest of our lives,” said Jason Baldwin after he was released, “Then we had to come here and the state says ‘we’ll let you go only if you admit guilt.’ That’s not justice no matter how you look at it.” (See “P” to learn more).

Knives. A knife was (conveniently) found in a lake behind Jason Baldwin’s house (months after the WM3 were arrested), and played a critical role for the prosecution, which suggested the knife was used to mutilate the young victims. A second knife was given to HBO filmmakers by John Mark Byers, the stepfather of one victim, just days before his home was searched. This knife was turned over to police after a producer at HBO noticed there was blood on it. Much of the first two films dealt with the suppositions on both sides that one or the other of these knives was the murder weapon.  As noted earlier (see “B”) today it seems knives were not involved in the murders.

Love. It’s probably the last thing you’d associate with death row, but here we are. Three years into his prison stay, Damien Echols started receiving letters from a woman in Brooklyn who’d seen “Paradise Lost.” They began exchanging letters and just over a year later, Lorri Davis, the architect turned activist, visited him in prison and moved to Little Rock. In 1999 they were married in the prison visiting room. Ms. Davis has worked tirelessly for his release.

Media coverage. From the moment news broke of the murders the story made national headlines. But back in 1993, the media’s coverage of the arrests painted the WM3 as satanic killers. They were fighting an uphill battle, one that in hindsight, they had no chance of winning.

Natalie Maines. The lead singer of the Dixie Chicks was an active supporter of the WM3 during their time in prison. In fact, she was so vocal that one victim’s stepfather, Terry Hobbs, sued her for defamation after she made remarks suggesting he was involved with the murders. It was in defending her for defamation that her attorneys interviewed Mr. Hobbs and gleaned facts that further incriminated him. Today, he is seen as the most likely murderer, but he has not been arrested. In any case, his suit against Ms. Maines was dismissed.

Occult expert. Prosecutors for the state used the “expert” testimony of Dr. Dale Griffis to show the WM3 were conducting a satanic ritual. The retired police officer who started a second career as an occult expert stumbled on cross-examination when he admitted that he hadn’t taken a single class to receive his PhD from Columbia Pacific University. The university was sued by the state of California and shut down in 1999 for failure to meet minimum academic standards.

Plea, Alford. This plea allows a criminal defendant to plead guilty without admitting guilt and maintaining innocence while still acknowledging that prosecutors have enough “evidence” for a conviction. The plea gets its name from 1970’s North Carolina v. Alford and was proposed by defense attorneys for the WM3 as a way to finally get their clients out of prison. The State of Arkansas agreed to the deal to avoid being sued to the tune of several million dollars for its mishandling of the case and the years of their lives the WM3 lost because of it.

Questioning of Jessie Misskelley. When police picked him up for questioning, Jessie Misskelley told them he had been at a wrestling match in another town. After 12 hours of questioning, for which the police mysteriously only have 45 minutes of audiotape, Jessie offered police a confession that implicated the WM3. “I don’t like people keep on asking me questions when I done told them once,” Jessie said in a recent GQ article. “That’s what they did, they just egged it on. And finally, I just told the cops, look, you know, I did it. I killed them and everything.” This was the all the police had linking Damien Echols and Jason Baldwin to the crime. Jessie Misskelley was convicted for the crimes at his separate trial, but then refused to repeat this confession during the Echols-Baldwin trial — despite being offered considerable time off his own sentence if he agreed.

Robin Hood Hills. This small patch of woods where the neighborhood children conjures innocence and play but sadly, this is where the victim’s bodies were found: naked, hogtied, and submerged in water.

Sentencing. All three defendants were found guilty for the murders of Christopher Byers, Stevie Branch, and Michael Moore. Jessie Misskelley was sentenced to life in prison plus forty years, Jason Baldwin to three consecutive life sentences, and Damien Echols was sentenced to death by lethal injection.

Trailer parks. At one time or another, each of the WM3, lived in or near the Lakeshore and Highland Trailer Parks in northeastern Arkansas. “We were nothing but poor trailer trash,” Damien Echols said of his upbringing while incarcerated. The community was poor and uneducated, and had it not been for the film that shocked its viewers and roused a grassroots protest, it is doubtful that Damien Echols would be alive today.

Unusual supporter. In the first two films, John Mark Byers seemed to be the likely murderer. He figures largely in all three installments, castigating the devilish nature of the WM3, despite mounting evidence of their innocence of the crime. He has since apologized and worked actively on their behalf.

Villains or victims? It’s still a split decision in West Memphis.

West of Memphis. The title of Peter Jackson’s spin on the case made its debut at the Sundance Film Festival last month and it isn’t shy about suggesting Terry Hobbs committed the murders.

Xmas 1993. In the first “Paradise Lost,” the parents of victim Christopher Byers visit his grave and put a small Christmas tree on his tombstone. As strange as Mr. Byers appears to be (you have to see the film to understand what I mean by this) I couldn’t help but grieve with the Byers, celebrating the first Christmas without their son.

Youth. A lot changes in 18 years, just ask the WM3. Damien Echols, reflecting on all his years in prison, said, “It’s odd now when they tell me things like, ‘you’ve got arthritis,’ or when I see my hairline’s receding and my hair’s thinning.” Three teenaged boys were tried as adults, and lost their youth inside maximum-security prisons… for crimes they did not commit.

Zero. Nothing in evidence points to the WM3 being involved with the 1993 murders. Nothing ever has.

By LASIS Staff

In October, 2010, LASIS wrote a story about the Vandals being sued by Reed Elsevier for use of a logo similar to the one used byVariety, the entertainment business publication.

A few days later, The Vandals’ lawyer (and bassist), wrote back to us at length and we published the group’s reply as a standalone post.

The lovefest wasn’t over.

We wrote back to the Vandals, explaining that while we didn’t completely agree with the group’s version of the facts (there was a settlement agreement that the group had violated), we offered our continued support.

And now we’re happy to report that the lawsuit against the Vandals is, at long last, over.

By LASIS Staff

Above the Law ran a piece today about some no-no’s if you really want your legal career take off.  If you’re an on-duty law clerk for example, you’d best try NOT to watch porn during a rape trial.  If you’re a judge, says ATL, sleeping on the bench during a trial might not be a great idea; a Texas judge had to resign last week for sleeping during a key portion of testimony.

But as LASIS explained last September, if you’re a lawyer you can potentially get a nice snooze in at a hearing for your client, not a problem.

Probably not a good idea to watch porn, though.

By Drew Carroll

It’s a cold winter evening in New York City. Walking up Manhattan’s tony Park Avenue, I approach 63rd Street and find it completely barricaded. A polite NYPD officer tells me I’m not going anywhere until the President passes. To an older gentleman standing beside me this wasn’t an acceptable answer. He pulls out a five-dollar bill and offers it to the officer in exchange for letting him cross the street. The officer coolly responds, “that’s what Obama’s here for — money.”

The president was in town for a fundraising blitz, one of a series on his schedule as the White House ramps up for the 2012 campaign. First stop, a thousand dollar a plate dinner at Daniel (don’t make the faux pas I did; it’s pronounced “Danielle”), a four-star restaurant offering haute French cuisine. Later, a more intimate gathering at Spike Lee’s joint fetched a whopping $35,800 per guest, which included the likes of Mariah Carey and her beau Nick Cannon. After riffing on Al Green’s “Let’s Stay Together” at the Apollo Theatre in Harlem, Mr. Obama headed back to the White House with a cool $3 million added to his coffers.

And members of Congress are no different, though because they don’t have the majestic office of the presidency behind them, they spend as much as half their time scurrying after funds. This frenzied search for donations and the ramifications it has on our system of government are the focus of a revealing and insightful new book by the Director of Harvard Law School’s Edmond J. Safra Center for Ethics, Professor Lawrence Lessig. “Republic, Lost” lays out two critical flaws in the way our government currently operates: elected officials’ depend on campaign cash in order to win elections, and the public assumes that this money corrupts the system and the politicians that operate in it.

The U.S. Supreme Court stated in its 2010 Citizens United v. Federal Election Commission decision that political donations “including those made by corporations, do not give rise to corruption or the appearance of corruption.” It’s a shame the Supremes did not have the benefit of reading ”Republic, Lost,” which explains the subtle influence of money in politics, and the affect it has on policymaking. Professor Lessig takes you behind the closed doors of Congress and K Street, which he believes consist mostly of good and honest souls who are acting rationally within a corrupt system.

History serves as a guide for how it all developed. Beginning in the post-New Deal era of the 1940’s, Democrats maintained a stranglehold over Congress for nearly 50 years. Ronald Reagan’s win in 1980 gave new hope to a generation of Republican politicians like Newt Gingrich, who would eventually lead his party back to power in both houses of Congress. Mr. Gingrich also ushered in an era when money became paramount in politics. Through a political action committee, Gopac, Mr. Gingrich raised millions of dollars from mostly anonymous donors, whose mission is “educating and training a new generation of Republican leaders.”  Elections became more competitive, and outlandishly expensive. The rising influence of paid media, along with larger, more expert, campaign staffs, fueled costs even more, leading to even greater dependency on fundraising.  The cycle continues.  

Professor Lessig portrays this desperate need for cash as a motivating factor behind a significant shift in democratic politics. Following the dismantling of the Democrat’s control of Congress, President Bill Clinton took up the Republican mantra of deregulation, aligning the Democrats more closely with Wall Street, which turns out to be a savvy move in terms of fundraising. This political calculation consolidated our two-party system into a pro-business party (the Democrats), and a really pro-business party (the Republicans).

The financial services industry spends more money than any other sector on influencing elected officials. Much more. More than the entertainment, insurance, and health care industries combined.

Consider the approach Washington has taken over the last two decades to policing Wall Street. In his last full month in office, President Clinton signed legislation exempting derivatives from regulation. Proposed banking regulations on risky loans during the George W. Bush administration were initially ignored, and were finally enacted as pale shadows of the original robust bills proposed. Professor Lessig writes that the question is not whether the campaign money explains fiscal policy, but whether the public can believe our policies resulted from anything other than a quid pro quo relationship between interested donors and the elected officials they bankroll.  He doesn’t think it can.

Professor Lessig proposes several solutions. First, limit the amount of money a single individual can donate to a campaign to $100. Former Louisiana Governor Buddy Roemer, who is seeking the Republican presidential nomination, self-imposed the $100 donation limit on his campaign, which he has built around the issue of campaign finance reform (perhaps that’s why you may have never heard of him). Contrast that with Newt Gingrich’s presidential campaign, which has been propped up by Las Vegas casino magnate Sheldon Adelson, who pumped $10 million into a pro-Gingrich super-PAC during the month of January alone.

To help engage the broader public in the electoral process a system of “democracy vouchers” would be created where any taxpayer who produces at least $50 in tax revenue would receive a voucher of equivalent value. The taxpayer could then distribute the voucher to any candidate who opts into this system of campaign finance. Any politician opting into the system would only be allowed to receive democracy vouchers and individual contributions of no more than $100. That’s it. No fancy fundraisers, and no super-PAC’s. By leveling the playing field, politicians would now have to amass large numbers of small donations. Professor Lessig says this system would take power away from wealthy donors like Sheldon Adelson, and give it back to “the People.”

How do we expect elected officials to reform a system they have become dependent on to stay in office?  Professor Lessig writes that we need presidential candidates like Buddy Roemer who have run on one policy and one policy alone: passing campaign finance reform. Even better, they should promise to resign once their mission is accomplished to avoid even the appearance of impropriety or political motive. Similar types of kamikaze candidates could be used to challenge members of Congress on the issue, which would help push the debate onto pro-campaign finance reform grounds.

If the system can’t be changed from the inside then Professor Lessig finds a last resort in Article V of the Constitution: calling a Constitutional Convention. The last such convention was in 1787 when the likes of Ben Franklin, George Washington, and James Madison gathered in Philadelphia to craft the Constitution itself. A rare even to be sure, partly because of how difficult those founding fathers made it to amend the document they created. Two-thirds of the state legislatures must request that a convention be held, not an easy feat especially in these polarized times.  If by some chance the call for a convention passes that test, any amendments proposed by the convention would need the approval of three-fourths of the states, either by a vote in state legislature or a separate state convention, in order to become part of the Constitution. The upside to a convention is that ordinary citizens could be chosen as representatives. The downside of the convention is, well, the possibility of it happening at all.

Still, it’s not impossible, and a convention to amend the Constitution could make permanent changes to the way business is done in Washington while avoiding the pitfalls of a fractured Congress, and the possibility of being overruled by the Supreme Court. This reform would truly be by the people, and for the people.

If this all seems a bit fantastical, well, that’s because it is. The author acknowledges as much. But Professor Lessig has done something in “Republic Lost” that our elected leaders in Washington have failed to, which is attempt to strike at the root of the problem.

There could be a silver lining to this explosion of campaign cash in the 2012 election cycle. Fred Wertheimer, President of Democracy 21, a pro-campaign finance reform organization says that the massive amounts of money likely to be spent during the upcoming election will result in a “historic national scandal…and we’ll have new opportunities for major reforms.” Mr. Wertheimer and others hope that the coming electoral spectacle will evoke such disgust amongst the American people that politicians will no longer be able to ignore calls for reform.

In the meantime, President Obama in his State of the Union address decried the “corrosive influence of money in politics.” The president should be commended for including the line in such a prominent address. But after observing the deluge of super-PAC funded negative advertising in the Republican primaries (the airwaves were literally filled to capacity with campaign advertising leading up to the South Carolina primary), the President’s re-election campaign announced that it would be supporting Priorities USA, a super-PAC founded by former Obama administration officials to aid the President’s re-election effort.

And so it goes, until the system is changed from within.