Policing Facts

The United States Supreme Court’s understanding of police practices plays a significant role in the development of the constitutional rules that regulate officer conduct.  As it approaches the questions of whether to engage in constitutional regulation and what form of regulation to adopt, the Court discusses the environment in which officers act, describes specific police practices, and explains what motivates officers.  Yet the majority of the Court’s factual assertions are made entirely without support or citation, raising concerns about whether the Court is acting based on a complete and accurate perception.  When it comes to policing facts, the Court too often gets it wrong. This Article explores the influence that the Court’s conception of policing has on the creation and modification of constitutional norms.  It demonstrates that misunderstandings about law enforcement have led to constitutional rules that fail to align with the world that they were designed to regulate.  Confusion about the facts upon which a rule is built creates a gap between the conceptual justification of the rule and its practical consequences, between the effect that the rule was intended to have and the effect it actually has.  Thus, misalignment results in the under- or overregulation of officer behavior and, correspondingly, the under- and overprotection of liberty and privacy interests.  This observation offers one explanation for why the Court’s constitutional pronouncements often fail to have the anticipated result.  Having identified the effects that follow from basing a rule on a faulty factual premise, I explore ways to narrow the gap.  When constitutional rules are predicated on empirical information, a more accurate understanding of police practices will better align those rules with reality, leading to both more precise constitutional rule making and more efficacious liberty protections.

United States v. Scruggs: The Fifth Circuit Creates a New Method To Determine What Constitutes a “More Serious” Charge

Richard “Dickie” Scruggs first found notable success as a plaintiffs’ attorney in asbestos litigation.  Not long after, Scruggs found massive success as one of the key plaintiffs’ attorneys in tobacco litigation.  Scruggs became a subject of national media attention, even finding himself as a character in the Academy Award-nominated motion picture The Insider, Hollywood’s take on the epic legal fight against the tobacco industry.  However, behind the scenes, Scruggs continuously found himself embroiled in fee-sharing disputes with cocounsel.  In particular, Roberts Wilson, Scruggs’s cocounsel in asbestos litigation, filed suit against Scruggs for unpaid fees.  Mississippi Circuit Court Judge Robert “Bobby” DeLaughter was assigned to the case.  Scruggs, having recently lost a similar fee-sharing suit, decided to put into motion a scheme to avoid the same fate twice.  Scruggs hired Ed Peters, a close friend of DeLaughter, as a covert go-between to deliver an offer from Scruggs to DeLaughter:  if DeLaughter tipped the scales in Scruggs’s favor, Scruggs would speak with his brother-in-law, Trent Lott, a United States Senator, and recommend DeLaughter for a federal district court judgeship.  DeLaughter, who openly coveted a federal judgeship, began to work on his end of the corrupt bargain to favor Scruggs. After the case with Wilson settled, the Scruggs-DeLaughter scheme was exposed by members of Scruggs’s legal team who were cooperating with the government’s investigation of a separate judicial bribery scheme.  Scruggs was indicted on three counts of aiding and abetting honest-services mail fraud.  Scruggs pled guilty to a superseding bill of information that charged him with one count of aiding and abetting honest-services mail fraud.  In response to Scruggs stating his plea of guilty to the United States District Court for the Northern District of Mississippi, Judge Glen H. Davidson, sitting in the same seat that DeLaughter so ardently craved, stated on the record, “The Romans had a proverb which said that money was like seawater.  The more you drink, the thirstier you become.  In looking back at your situation, I think that’s certainly applicable, and it’s sad.”  In June 2010, the United States Supreme Court handed down Skilling v. United States.  Addressing the constitutionality of 18 U.S.C. § 1346, the Court clipped the wings of the honest-services statute, limiting its applicability to kickback schemes and bribery only.  In response to the Skilling decision, Scruggs filed a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, arguing that he did not admit to bribing Judge DeLaughter and thus could not be guilty of violating § 1346 as it is now defined under Skilling.  The district court found that by pleading guilty, Scruggs had procedurally defaulted on the claim.  The court denied Scruggs’s § 2255 motion after finding that Scruggs could not show actual innocence or cause and prejudice.  Scruggs appealed, challenging the court’s subject matter jurisdiction in light of Skilling, in addition to arguing that he did not procedurally default on his claim.  The United States Court of Appeals for the Fifth Circuit held that the district court had subject matter jurisdiction and that Scruggs was required, and failed, to show actual innocence of all three forgone honest-services counts in the original indictment.  United States v. Scruggs, 714 F.3d 258 (5th Cir.), cert. denied, 134 S. Ct. 336 (2013).

Bailouts and the Potential for Distortion of Federal Criminal Law: Industrial Espionage and Beyond

This Article reveals previously neglected and disconcerting consequences that government participation in corporate ownership can have on American criminal law, and it illustrates these problems by establishing how the recent bailout could influence criminal enforcement. The Article shows how the model of cost allocation developed by Guido Calabresi and based on Ronald Coase's work can apply in the context of the criminal law and specifically economic crimes. The argument in this Article then demonstrates how the government's purchase of corporate shares through the implementation of the Troubled Asset Relief Program (TARP) causes inefficiencies and inequalities in the criminal law, including by shifting prosecutorial and other enforcement resources toward “preferred” companies and allowing for the imposition of higher statutory penalties against economic criminals that offend against those entities. As a consequence, some corporations may underinvest in private precautionary measures while others will be forced to overinvest and pass on the costs to their customers through artificially inflated prices. The potential end result is a misuse of government power to reward unsuccessful companies like General Motors at the expense of successful ones like Ford. Having established a general framework for using a cost allocation analysis to address economic crimes optimally and having shown that TARP leads to inefficient outcomes under that type of analysis, this Article concludes with recommendations to avoid these problems in the future.

When Worlds Collide: The Supreme Court Confronts Federal Agencies with Federalism in Wyeth v. Levine

On March 4, 2009, in Wyeth v. Levine, the United States Supreme Court rejected the viability of a preamble to a 2006 Food and Drug Administration (FDA) prescription drug-labeling regulation that purported to preempt state tort law, concluding that it “does not merit deference.” The Court upheld the verdict of a Vermont jury in favor of plaintiff Diana Levine against the manufacture of the prescription drug, on state tort law failure-to-warn theories, for an injury she had suffered nine years before, in April 2000. The injury resulted in the amputation of her right forearm and ended her career as a professional musician. Had the Supreme Court given deference to the FDA “Preamble,” and held Ms. Levine's claim to be preempted by the FDA's approval of the drug, her $6.77 million jury award would have been vacated, and she would have gone uncompensated for the loss of her arm and her livelihood. Far beyond the consequences to a single plaintiff, the claims of any thousands of prescription drug plaintiffs in cases pending across the country--representing billions of dollars in compensatory damages--would have then been dismissed. Dismissal would leave these plaintiffs without recourse and would immunize prescription drug manufacturers from financial accountability for the health, safety, and economic depredations of dangerous or improperly marketed drugs.. . .

The Defense of Preemption: A View from the Trenches

Most lawyers who have any familiarity with the law of federal preemption, and in particular the United States Supreme Court's cases involving the preemption of state tort requirements, would freely admit that the law is a muddle. Beginning with the Court's fractured 1992 decision in Cipollone v. Liggett Group, Inc., which was argued twice before it was decided, the Court has issued a series of decisions, some of them fractured and confusing, that have alternatively cheered and flummoxed the plaintiffs' bar as well as product manufacturers, transportation companies, and other businesses that regularly rely on the preemption defense. Unfortunately, these cases--which are among the most hotly contested of all cases on the Supreme Court's docket, judging by amicus participation--have produced significant confusion in the law of preemption generally. As someone who has participated in many of these cases over the years since Cipollone, my purpose is to offer a few observations drawn from my own experience about some of the major disputed issues in preemption law today, including the proper role of courts in resolving preemption cases. I also hope to make a few broader points about the preemption doctrine that are often overlooked in the acrimonious debate over tort cases.. . .

Judicial Deference and Regulatory Preemption by Federal Agencies

This Article will attempt to describe the state of the law as it currently exists relating to preemption associated with agency regulations, especially in light of three preemption decisions by the Supreme Court in its October 2008 term—Wyeth v. Levine, Altria Group, Inc. v. Good, and Cuomo v. Clearing House Ass'n. The Article will then suggest how courts should assess claims of preemption of state law associated with federal agency regulations.

Preemption of State Common Law by Federal Agency Action: Striking the Appropriate Balance that Protects Public Safety

After a brief review of the basics of preemption, this Article considers the public policy underlying preemption of common law claims by federal agency regulations. Next, the Article examines the recent development of preemption law, following two major United States Supreme Court decisions on preemption and President Barack Obama's instructions on preemption to heads of federal regulatory agencies. Finally, the Article notes that when the tension between federal regulations and state tort claims does not rise to the level of preemption, state law provides courts with discretion to consider the manufacturer's compliance as satisfying the common law standard of reasonable care and establishing that the product is not defective. The Article concludes by expressing concern that the recent rage against preemption in favor of litigation may lead to less safe products and place the public at risk.

A Separation-of-Powers Defense of the "Presumption Against Preemption"

In Wyeth v. Levine, the United States Supreme Court revitalized the sometimes dormant “presumption against pre-emption” by declaring it one of two cornerstones of preemption jurisprudence. Under the presumption, the analysis of a claim that federal law preempts state law starts with “‘the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”’ Although the Court previously had instructed lower courts that the preemption analysis always begins with a “basic presumption against pre-emption,” the Court itself often has honored that mandate in the breach--when it has bothered to mention the presumption at all.. . .

Quasi-Preemption: Nervous Breakdown in Our Constitutional System

A half century ago, in The Relations Between State and Federal Law, Professor Henry Hart of Harvard defined the public need for harmonizing the legal dictates issuing from the two levels of sovereignty established in the United States Constitution:

The law which governs daily living in the United States is a single system of law: it speaks in relation to any particular question with only one ultimately authoritative voice, however difficult it may be on occasion to discern in advance which of two or more conflicting voices really carries authority. In the long run and in the large, this must be so. People repeatedly subjected, like Pavlov's dogs, to two or more inconsistent sets of directions, without means of resolving the inconsistencies, could not fail in the end to react as the dogs did. The society, collectively, would suffer a nervous breakdown.. . .

Introduction to the Symposium: Federal Preemption of State Tort Law: A Snapshot of the Ongoing Debate

Woodrow Wilson observed in 1908 that “[t]he question of the relation of the States to the federal government is the cardinal question of our constitutional system.” “It cannot . . . be settled,” he said, “by . . . one generation, because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question.” The relation of the states to the federal government has been a dominant constitutional issue throughout our history covering a wide range of issues--such as enumerated and implied powers, scope of the commerce clause, taxing and spending powers, enforcement of the Fourteenth Amendment, and criminal due process. In recent years none has been more important than federal preemption of state law by administrative agencies.. . .