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Colorado Amendment 44

From Wikipedia, the free encyclopedia

Amendment 44
An Amendment to Section 18-18-406 (1) of the Colorado Revised Statutes Making Legal the Possession of One Ounce or Less of Marijuana For Any Person Twenty-one Years of Age or Older
Results
Votes %
Yes 636,938 41.08%
No 913,411 58.92%
Amendment failed[1]

Amendment 44 was a proposed amendment to the state statutes submitted for referendum in the 2006 general elections in the U.S. state of Colorado. The amendment proposed the legalization of the possession of one ounce or less of marijuana for any person twenty-one years of age and over, as long as marijuana use does not occur in public. The measure was eventually defeated at the polls by 60-40 percent.[2]

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  • ✪ Supreme Court: The Term in Review (2017–2018) Part 1 of 2

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ANNOUNCER: "SUPREME COURT: THE TERM IN REVIEW." A FEDERAL JUDICIAL CENTER PROGRAM FOR JUDGES, STAFF ATTORNEYS, AND LAW CLERKS. NOW FROM OUR STUDIO IN WASHINGTON, D.C., HERE'S JOHN COOKE. HELLO. I'M JOHN COOKE, DEPUTY DIRECTOR OF THE FEDERAL JUDICIAL CENTER. WELCOME TO THIS YEAR'S EDITION OF "SUPREME COURT: THE TERM IN REVIEW," OUR ANNUAL LOOK AT THE COURT'S DECISIONS MOST LIKELY TO AFFECT THE DAY-TO-DAY WORK OF FEDERAL JUDGES. ON THE TERM'S LAST DAY, ASSOCIATE JUSTICE ANTHONY KENNEDY ANNOUNCED HIS RETIREMENT FROM THE COURT. ON JULY 9th, PRESIDENT TRUMP ANNOUNCED HIS NOMINATION TO FILL THE VACANCY-- JUDGE BRETT KAVANAUGH OF THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. THIS PAST TERM, THE COURT ISSUED DECISIONS, 71 DECISIONS, AFTER ORAL ARGUMENT-- 59 OF THEM SIGNED AND 12 PER CURIUM. THE COURT DEALT WITH IMPORTANT ISSUES REGARDING THE FIRST AMENDMENT, PRESIDENTIAL POWER UNDER FEDERAL IMMIGRATION LAW, VOTERS' RIGHTS, FEDERALISM, AND SENTENCING. WE'LL DISCUSS THOSE AND MANY OTHER DECISIONS WITH OUR FACULTY. WE'RE AGAIN FORTUNATE TO BE JOINED BY DEAN ERWIN CHEMERINSKY OF THE UNIVERSITY OF CALIFORNIA BERKELEY SCHOOL OF LAW, LAURIE LEVENSON OF LOYOLA LAW SCHOOL IN LOS ANGELES, AND SUZANNA SHERRY OF VANDERBILT UNIVERSITY LAW SCHOOL. WE'LL ALSO BRING YOU A DISCUSSION WITH PROFESSOR ANNE FLEMING OF THE GEORGETOWN UNIVERSITY LAW CENTER ABOUT THIS TERM'S BANKRUPTCY DECISIONS. BETH WIGGINS OF OUR RESEARCH DIVISION AND JIM CHANCE OF OUR EDUCATION DIVISION WILL BE OUR MODERATORS. IN THE FIRST PART OF OUR PROGRAM, WE'LL EXAMINE CASES INVOLVING THE FIRST, FOURTH, FIFTH, AND SIXTH AMENDMENTS, AS WELL AS IMMIGRATION AND BANKRUPTCY LAW. AFTER A SHORT BREAK, WE'LL LOOK AT DECISIONS ADDRESSING REDISTRICTING AND VOTERS' RIGHTS, FEDERAL STATUTES, THE FEDERAL COURTS, FEDERALISM AND SEPARATION OF POWERS, AND CRIMINAL TRIALS, PLEAS, AND SENTENCING. THE WRITTEN MATERIALS THAT ACCOMPANY THIS PROGRAM AT FJC.DCN INCLUDE AN OUTLINE WITH A SUMMARY OF EACH OF THE DECISIONS THAT WE'LL DISCUSS, ALONG WITH AN APPENDIX WITH SUMMARIES OF THE REMAINING CASES DECIDED BY THE COURT THIS TERM. THE ONLINE OUTLINE ALSO CONTAINS LINKS TO THE FULL OPINIONS. IF YOU'RE A VIEWER WHO'S SEEKING CLE CREDIT IN A JURISDICTION THAT REQUIRES A VERIFICATION CODE, PLEASE NOTE THAT THE CODE WILL APPEAR AT THE BOTTOM OF THE SCREEN 3 TIMES DURING THIS PROGRAM. WE'LL BEGIN WITH A LOOK AT SOME IMPORTANT FIRST AMENDMENT OPINIONS. IN A TERM CROWDED WITH BIG DECISIONS AND IMPORTANT NEWS, PERHAPS NO AREA OF THE LAW WAS MORE AFFECTED THAN THE COURT'S FIRST AMENDMENT JURISPRUDENCE. IN OUR FIRST DECISION, "JANUS V. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES-- OR AFSCME" THE COURT OVERTURNED A 41-YEAR-OLD PRECEDENT, "ABOOD V. DETROIT BOARD OF EDUCATION." ERWIN, WHAT'S THE SIGNIFICANCE OF THAT? CHEMERINSKY: IN "ABOOD" IN 1977, THE SUPREME COURT REAFFIRMED THAT NO ONE CAN BE FORCED TO JOIN A PUBLIC EMPLOYEES' UNION, BUT THE COURT SAID THAT NON-UNION MEMBERS CAN BE REQUIRED TO PAY THE SHARE OF THE UNION DUES THAT GO TO SUPPORT THE COLLECTIVE BARGAINING ACTIVITIES UNION. THE COURT EXPLAINED THAT NON-UNION MEMBERS BENEFIT FROM COLLECTIVE BARGAINING-- IN THEIR WAGES, THEIR HOURS, THEIR WORKING CONDITIONS. THEY SHOULDN'T BE ABLE TO BE FREE RIDERS. BUT THE COURT SAID THAT NON-UNION MEMBERS CAN'T BE REQUIRED TO PAY THE SHARE OF THE DUES THAT GO TO SUPPORT THE POLITICAL ACTIVITIES UNION. THE COURT SAID THAT WOULD BE IMPERMISSIBLE COMPELLED SPEECH. OVERRULING "ABOOD" IS GONNA BE A SERIOUS BLOW TO UNIONS IN 22 STATES. IT'S GONNA BE A DECREASE IN REVENUE, A DECREASE IN MEMBERSHIP. WELL, THE COURT DOESN'T OVERTURN PRECEDENT LATELY, ERWIN, AND PARTICULARLY ONE OF THIS LONG STANDING. SO WHAT WAS THEIR REASONING HERE? SHERRY: WELL, JUSTICE ALITO, WHO WROTE THE MAJORITY OPINION, DID ADDRESS STARE DECISIS, BUT HE SAID THERE WERE GOOD REASONS TO OVERTURN "ABOOD." HE SAID THE CASE INVOLVES FUNDAMENTAL SPEECH RIGHTS AND THAT "ABOOD" ITSELF WAS POORLY REASONED. HE SAID IT LED TO PRACTICAL PROBLEMS AND EVEN ABUSE, AS UNIONS WERE CHARGING FOR THINGS THAT WERE UNRELATED TO COLLECTIVE BARGAINING. HE SAID LATER DECISIONS HAD UNDERMINED "ABOOD" AND TURNED IT INTO AN ANOMALY. AND, FINALLY, HE SAID THERE WERE NO RELIANCE INTERESTS BECAUSE PUBLIC UNIONS HAD BEEN ON NOTICE FOR A NUMBER OF YEARS THAT THE COURT WAS CONCERNED ABOUT THE VALIDITY OF "ABOOD." LEVENSON: BUT, YOU KNOW, THE MAJORITY NEVER SAYS CLEARLY WHAT THE STANDARD SHOULD BE IN THESE CASES. IT SAYS THAT FRANKLY, THE UNIONS WOULD LOSE UNDER EITHER THE STRICT SCRUTINY OR THE MORE PERMISSIVE STANDARD THAT HAD BEEN SET FORTH IN "KNOX V. SERVICE EMPLOYEES." UNDER THAT STANDARD, A COMPELLED SUBSIDY MUST SERVE A COMPELLING STATE INTEREST THAT CANNOT BE ACHIEVED THROUGH MEANS SIGNIFICANTLY LESS RESTRICTIVE OF ASSOCIATIONAL FREEDOMS. THE MAJORITY HERE IN "JANUS" SAYS THAT THE STATE INTEREST AND LABOR PIECE MIGHT BE COMPELLING, BUT IT COULD BE ACCOMPLISHED WITHOUT THIS COMPELLED SUBSIDY. AND THE COURT ALSO REJECTED THE FREE RIDER JUSTIFICATION AS INSUFFICIENT TO OVERRIDE THE FIRST AMENDMENT SPEECH RIGHTS OF THE WORKERS WHO WERE COMPELLED TO PAY THE FAIR SHARE PAYMENT. WIGGINS: BUT JUSTICE KAGAN WROTE A VERY STRONG DISSENT, REJECTING VIRTUALLY ALL OF THE MAJORITY'S REASONING, RIGHT? LEVENSON: SHE ABSOLUTELY DID. SHE WROTE THAT "ABOOD" HAD WORKED WELL FOR 40 YEARS AND THAT IT HAD THE PROPER BALANCE BETWEEN THE WORKERS' FIRST AMENDMENT RIGHTS AND THE GOVERNMENT'S INTERESTS AND WORKFORCE THAT WAS PROPERLY MANNERED AND KEEPING LABOR APPEASED. SHE SAID, FRANKLY, THAT THE FREE SPEECH--FREE RIDER SITUATION, I SHOULD SAY, IS ABSOLUTELY REAL AND COMPELLING REASON TO KEEP THE "ABOOD" FRAMEWORK AND THAT THE "ABOOD" FRAMEWORK WORKED WELL IN THE OVERALL GOVERNMENT SPEECH AREA. CHEMERINSKY: JUSTICE ALITO POINTED OUT THAT THERE'S 22 STATES THAT REQUIRE THAT NON-UNION MEMBERS PAY THE SO-CALLED FAIR SHARE. SO THOUSANDS OF LABOR MANAGEMENT CONTRACTS WENT INTO, BASED ON THE ASSUMPTION OF "ABOOD," SAID THIS AFFECTS MILLIONS OF PUBLIC EMPLOYEES. SHE SAID RELIANCE INTERESTS DON'T GET ANY STRONGER THAN THEY ARE HERE. ESSENTIALLY, THE DISSENTERS ACCUSE THE MAJORITY OF TAKING SIDES IN A POLITICAL DEBATE AND OF HAVING NO REGARD FOR THE PRINCIPLES OF STARE DECISIS. I THINK WHETHER YOU AGREE WITH THE OPINION OR NOT, THE DISSENT IS RIGHT ABOUT ONE THING: THIS IS NOT A COURT THAT'S HESITANT ABOUT OVERRULING PRECEDENT, AND I THINK THIS CASE MAY BE A HARBINGER OF THINGS TO COME. THIS IS ALSO A DECISION THAT'S GONNA LEAD TO A GREAT DEAL OF LITIGATION. FOR EXAMPLE, WEEK BEFORE LAST, 10 LAWSUITS WERE FILED BY NON-UNION MEMBERS WHO HAD PAID THE FAIR SHARE NOW SEEKING A REFUND. ALSO, THERE'S THE QUESTION, PENDING RIGHT NOW IN THE LOWER COURTS, IS WHETHER THIS DECISION WILL BE EXTENDED TO PRIVATE EMPLOYEE UNIONS. ADDITIONALLY, JUSTICE ALITO TWICE IN HIS MAJORITY OPINIONS, SAID THAT EXCLUSIVE REPRESENTATION AND BARGAINING, WHICH IS CREATED BY THE NATIONAL LABOR RELATIONS ACT, IS ALSO INTENTIONED WITH THE FIRST AMENDMENT. THEN THERE'S THE WHOLE QUESTION WHERE PEOPLE ARE REQUIRED TO PAY FEES IN OTHER CONTEXTS; SAY, BAR DUES OR STUDENT FEES. I THINK WE'RE GONNA SEE CHALLENGES TO THESE AGAIN AS WELL. IN "MASTERPIECE CAKE SHOP V. COLORADO CIVIL RIGHTS COMMISSION," A COLORADO BAKER, JACK PHILLIPS, REFUSED TO DESIGN A WEDDING CAKE FOR A SAME-SEX COUPLE BECAUSE OF HIS RELIGIOUS OPPOSITION TO GAY MARRIAGE. THE COUPLE BROUGHT A COMPLAINT AGAINST THE BAKER AND PURSUED IT THROUGH ALL THE LEVELS OF THE STATE'S CIVIL RIGHTS PROCESS. IT WENT THROUGH THE CIVIL RIGHTS DIVISION, THE CIVIL RIGHTS COMMISSION, AN ADMINISTRATIVE LAW JUDGE, THE COLORADO COURT OF APPEALS, AND FINALLY THE COLORADO SUPREME COURT. THROUGHOUT THIS PROCESS AND BEFORE THE U.S. SUPREME COURT, PHILLIPS CLAIMED THAT FORCING HIM TO MAKE CAKES FOR SAME-SEX WEDDINGS WOULD VIOLATE HIS RIGHTS UNDER BOTH THE FREE SPEECH AND FREE EXERCISE CLAUSES OF THE FIRST AMENDMENT. SUZANNA, DID THE SUPREME COURT AGREE WITH HIM? WELL, IT DIDN'T DECIDE THE CASE ON EITHER OF THOSE GROUNDS. INSTEAD, IT RULED SO NARROWLY THAT IT SUCCEEDED IN GETTING 7 VOTES FOR THE MAJORITY OPINION, EVEN ON THIS VERY CONTROVERSIAL ISSUE. SO JUSTICE KENNEDY WROTE THE MAJORITY OPINION, JUSTICE THOMAS CONCURRED IN THE JUDGMENT ONLY, AND ONLY JUSTICES SOTOMAYOR AND GINSBERG DISSENTED. THE MAJORITY OPINION FIRST REITERATED THAT RELIGIOUS OBJECTIONS DO NOT ALLOW ACTORS IN THE ECONOMY TO DENY PERSONS SERVICE, EQUAL ACCESS TO GOODS OR SERVICES THAT WOULD BE IN VIOLATION OF A NEUTRAL AND GENERALLY APPLICABLE ACCOMMODATIONS LAW OR ANTI-DISCRIMINATIONS LAW, BUT IT ALSO FOUND THAT THE COLORADO CIVIL RIGHTS COMMISSION HAD DENIED PHILLIPS A NEUTRAL AND RESPECTFUL CONSIDERATION OF HIS CLAIMS, AND THAT IN DOING SO, IT HAD EXHIBITED UNCONSTITUTIONAL HOSTILITY TO RELIGION. INDEED. THE DECISION ACTUALLY QUOTED SOME LANGUAGE BY MEMBERS OF THE CIVIL RIGHTS COMMISSION SUGGESTING THAT RELIGION HAD BEEN USED TO JUSTIFY SLAVERY AND THE HOLOCAUST AND OTHER DISCRIMINATION, AND THAT IN ITSELF SHOWED HOSTILITY TO RELIGION. IT ALSO CITED SOME OTHER CASES, WHERE THE COMMISSION HAD ALLOWED OTHER BAKERS TO REFUSE TO MAKE THESE CAKES WHO OBJECTED ON GROUNDS OF CONSCIENCE, BUT HERE, THEY DID NOT ALLOW THE SAME FOR PHILLIPS ON RELIGIOUS OBJECTIONS. CHEMERINSKY: I THINK IT'S IMPORTANT TO EMPHASIZE THAT THE SUPREME COURT LEFT UNRESOLVED THE MAJOR QUESTIONS OF DOES IT VIOLATE FREE EXERCISE OF RELIGION, OR IS IT IMPERMISSIBLE COMPELLED SPEECH TO REQUIRE THAT A BUSINESS SERVE CUSTOMERS WHEN IT VIOLATES THE OWNERS OF THE BUSINESS' RELIGIOUS BELIEFS. I THINK THE BOTTOM LINE IS THAT THE COURT ESSENTIALLY SAID THAT PHILLIPS WASN'T ENTITLED TO DISCRIMINATE, BUT THAT ONLY A RESPECTFUL COMMISSION WAS ALLOWED TO TELL HIM SO. WIGGINS: OK, SO, IT WAS A 7-2 DECISION ON THE HOLDING, BUT THERE WERE SOME CONCURRENCES AND A DISSENT. TELL US ABOUT THOSE. LEVENSON: WELL, THE DISSENT BY JUSTICE GINSBERG AND SOTOMAYOR SAID THEY DIDN'T FEEL THAT THE COMMISSION ACTUALLY HAD SHOWN INSTITUTIONAL HOSTILITY TO RELIGION. COMMENTS BY 1 OR 2 COMMISSIONERS DO NOT SHOW RELIGIOUS DISCRIMINATION BY THE WHOLE COMMISSION. THEY ALSO NOTED THAT, FRANKLY, THE PROCESS HAD GONE THROUGH SEVERAL LAYERS OF INDEPENDENT DECISION-MAKING AND THAT THE COMMISSION WAS ONLY ONE PARTICIPANT IN THAT PROCESS. SHERRY: AND THE CONCURRENCE, WHICH WAS WRITTEN BY JUSTICE KAGAN AND JOINED BY JUSTICE BREYER TALKED ABOUT THE CASE OF THE OTHER--OR THE CASES OF THE OTHER BAKERS. AND THOSE OTHER BAKERS HAD REFUSED TO MAKE CAKES FOR CUSTOMERS WHO WANTED CAKES THAT WERE OFFENSIVE TO GAY COUPLES. THEY WANTED CAKES THAT WOULD DENIGRATE SAME-SEX MARRIAGE. AND WHAT THE DIFFERENCE WAS, ACCORDING TO THE CONCURRENCE WAS THAT THOSE BAKERS WERE REFUSING TO MAKE THAT CAKE FOR ANYONE WHEREAS, PHILLIPS WAS ONLY REFUSING TO MAKE A CAKE FOR A GAY COUPLE. AND THE FORMER DOES NOT VIOLATE THE COLORADO CIVIL RIGHTS LAW, BUT THE LATTER DOES. JUSTICE THOMAS ALSO WROTE A CONCURRING OPINION. HE SAID THAT IT WOULD BE IMPERMISSIBLE COMPELLED SPEECH TO REQUIRE THE BAKER TO DESIGN AND BAKE A CAKE. JUSTICE THOMAS REJECTED ANY DISTINCTION BETWEEN COMMERCIAL AND NON-COMMERCIAL SPEECH. IF JUSTICE THOMAS' POSITION EVER GETS SUPPORT FROM A MAJORITY OF THE COURT, IT WILL HAVE DRAMATIC IMPLICATIONS. AFTER ALL, IF BAKING A CAKE IS SPEECH, THEN ISN'T COOKING FOOD SPEECH? CAN'T IT BE SAID THAT ALMOST ANY WORK ACTIVITY HAS AN EXPRESSIVE COMPONENT? INTERESTINGLY, JUSTICE GORSUCH IS LISTED AS CONCURRING IN PART TO JUSTICE THOMAS' OPINION, BUT WE DON'T KNOW WHAT PART. I THINK WE SHOULD NOTE THAT ONE STATE APPELLATE COURT HAS ALREADY CITED MASTERPIECE CAKE SHOP, AND IN THAT CASE, THE STATE COURT REJECTED A STATIONERY STORE'S CLAIM THAT IT SHOULD BE EXEMPT FROM AN ANTI-DISCRIMINATION LAW BECAUSE THE STATIONERY STORE DID NOT WANT TO DESIGN ARTWORK FOR A SAME-SEX WEDDING. ON THE OTHER HAND, THE SUPREME COURT VACATED AND REMANDED A CASE IN WHICH A FLORIST DIDN'T WANT TO PROVIDE FLOWERS FOR A SAME-SEX WEDDING, AND IT DID SO EVEN THOUGH THERE DIDN'T SEEM TO BE ANY EVIDENCE OF RELIGIOUS HOSTILITY IN THE PROCEEDINGS BELOW. WIGGINS: MM-HMM. THANK YOU. BEFORE WE LOOK AT OUR NEXT DECISION, I WANT TO MENTION THAT IF YOU HAVE ANY QUESTIONS ABOUT THE OPINIONS WE'RE DISCUSSING, YOU CAN E-MAIL THEM TO US AT THE ADDRESS AT THE BOTTOM OF YOUR SCREEN. WE'RE GOING TO TAKE A COUPLE OF MINUTES AT THE END OF EACH PANEL TO ANSWER ANY QUESTIONS WE GET FROM YOU. AND IF WE DON'T HAVE TIME TO ANSWER YOUR QUESTIONS DURING THE PROGRAM, ONE OF OUR FACULTY WILL SEND YOU AN ANSWER BY E-MAIL AFTERWARDS. SO PLEASE LET US KNOW IF YOU HAVE ANY QUESTIONS. OK, LET'S MOVE ON NOW. THE DECISION IN "NATIONAL INSTITUTE "OF FAMILY LIFE ADVOCATES V. BECEERA" WAS ANOTHER ONE DECIDED ON NARROW GROUNDS, BUT THE POTENTIAL IMPACT AND IMPLICATIONS ARE FAR BROADER. CALIFORNIA LAW REQUIRES LICENSED MEDICAL FACILITIES THAT ASSIST WOMEN WITH PREGNANCY OR FAMILY PLANNING TO PROVIDE A GOVERNMENT-DRAFTED NOTICE TELLING WOMEN ABOUT THE AVAILABILITY OF PUBLIC PROGRAMS THAT PROVIDE FREE OR LOW-COST ACCESS TO COMPREHENSIVE FAMILY PLANNING SERVICES, PRE-NATAL CARE, AND ABORTION. THE LAW EXCLUDES FROM THE REQUIREMENT SEVERAL CATEGORIES OF CLINICS THAT WOULD OTHERWISE QUALIFY AS LICENSED FACILITIES. THE LAW ALSO REQUIRES UNLICENSED FACILITIES, THAT IS THOSE WITHOUT LICENSED MEDICAL STAFF, TO MAKE CLEAR, ALSO, THROUGH A GOVERNMENT-DRAFTED NOTICE, THAT THEY'RE UNLICENSED. THE CALIFORNIA LEGISLATURE FOUND THAT SO-CALLED CRISIS PREGNANCY CENTERS WHICH INCLUDE BOTH LICENSED AND UNLICENSED CLINICS EMPLOY WHAT IT CALLED INTENTIONALLY DECEPTIVE ADVERTISING AND COUNSELING PRACTICES THAT "OFTEN CONFUSE, MISINFORM, "AND EVEN INTIMIDATE WOMEN FROM MAKING FULLY INFORMED, TIME-SENSITIVE DECISIONS ABOUT CRITICAL HEALTH CARE." BOTH LICENSED AND UNLICENSED CLINICS CHALLENGE THE LAW AS VIOLATIONS OF THE FIRST AMENDMENT, BUT LOST BEFORE BOTH THE DISTRICT COURT AND THE NINTH CIRCUIT. SO, SUZANNA, HOW DID THE SUPREME COURT DECIDE? IT CAME DOWN 5-4 ON THE SIDE OF THE CLINICS, WITH JUSTICE THOMAS WRITING THE OPINION, BUT IT DIDN'T ACTUALLY DECIDE THE QUESTION OF WHETHER THE LAW WAS AN UNCONSTITUTIONAL VIEWPOINT DISCRIMINATION. INSTEAD, IT ISSUED A FAIRLY NARROW DECISION SAYING THAT THE DISTRICT COURT SHOULD HAVE GRANTED A PRELIMINARY INJUNCTION THAT THE CLINICS HAD ASKED FOR BECAUSE THEY SHOWED A LIKELIHOOD OF SUCCESS ON THE MERITS OF SHOWING CONTENT DISCRIMINATION, ALTHOUGH NOT NECESSARILY VIEWPOINT DISCRIMINATION. THE COURT SAID THAT THE CALIFORNIA LAW WAS CONTENT-BASED BECAUSE IT PRESCRIBED THE CONTENT OF THE REQUIRED DISCLOSURES. IT'S WELL-ESTABLISHED IN FIRST AMENDMENT LAW THAT CONTENT-BASED RESTRICTIONS HAVE TO MEET STRICT SCRUTINY. THEY HAVE TO BE NECESSARY TO ACHIEVE A COMPELLING GOVERNMENT INTEREST. THE NINTH CIRCUIT HERE SAID A LOWER LEVEL OF SCRUTINY IS APPROPRIATE BECAUSE THE GOVERNMENT WAS REGULATING PROFESSIONAL SPEECH. THE COURT EXPLICITLY REJECTED THAT ARGUMENT AND SAID THERE'S NO REASON TO USE A LOWER LEVEL OF SCRUTINY THAN STRICT SCRUTINY, JUST BECAUSE IT'S PROFESSIONAL SPEECH. LEVENSON: YES, THE COURT NOTED IN ITS MAJORITY DECISION THAT IN THE "ZAUDERER" DECISION BACK IN 1984--'85, THE COURT ALLOWED A LOWER LEVEL OF SCRUTINY IN ONLY TWO SITUATIONS. THE FIRST WAS WHEN LICENSE NOTICE WAS LIMITED TO PURELY FACTUAL AND NON-CONTROVERSIAL INFORMATION ABOUT THE TERMS UNDER WHICH SERVICES WILL BE AVAILABLE. AND THE SECOND IS WHEN THE NOTICES ARE TIED TO RISKS AND BENEFITS OF THE MEDICAL PROCEDURES. THE MAJORITY FOUND THAT NEITHER OF THOSE APPLY IN THIS SITUATION BUT, FRANKLY, IT SAYS THAT EVEN IF THOSE STANDARDS WERE APPLIED, THE MAJORITY WROTE THE NOTICE REQUIREMENT FOR THE LICENSED FACILITIES WOULD NOT SURVIVE UNDER AN INTERMEDIATE SCRUTINY BECAUSE IT WAS UNDER-INCLUSIVE, AND THE INFORMATION--THERE WAS OTHER WAYS TO GET THAT TO WOMEN. AND AS FOR THE UNLICENSED CLINICS, THE COURT HELD THAT THE GOVERNMENT-SCRIPTED DISCLOSURE REQUIREMENTS ENDED UP DROWNING OUT THE FACILITIES' MESSAGE, SO THAT WAS NOT PROPER EITHER. CHANCE: WELL, THERE WAS A CONCURRENCE BY JUSTICE KENNEDY AND 3 OTHER MEMBERS OF THE MAJORITY THAT SUGGESTED THESE LAWS MAY ALSO BE VIEWPOINT AS WELL AS CONTENT DISCRIMINATION UNDER THE FIRST AMENDMENT. AND THERE WAS A DISSENT BY JUSTICE BREYER FOR HIMSELF AND JUSTICES GINSBERG, SOTOMAYOR, AND KAGAN. LAURIE, WHAT DID THEY WRITE? THEY SAID THAT THE RULE THAT THE MAJORITY HAS SET UP WILL, FRANKLY, INVITE CONSTANT LITIGATION AS TO EVERY DISCLAIMER THE GOVERNMENT IMPOSES. THEY SAID THAT THE MAJORITY USED THE WRONG STANDARDS. IN FACT, THEY SHOULD HAVE USED THE UNDUE BURDEN STANDARD UNDER THE "CASEY--PLANNED PARENTHOOD V. CASEY" DECISION. THEY BELIEVED THAT THE DISCLOSURES REQUIRED UNDER THE CALIFORNIA LAW DO RELATE TO MEDICAL PROCEDURE AND HEALTH RISK. AND THEY'RE BOTH INVOLVED IN THE CARRYING OF A PREGNANCY AND THE DELIVERY OF THE BABY. AND THE STATE'S INTEREST IN THIS CASE IS NOT HYPOTHETICAL, AND THE NOTICE REQUIREMENTS ARE NOT UNDULY BURDENSOME. CHEMERINSKY: I THINK THIS IS ANOTHER CASE THAT'S GONNA LEAD TO A GREAT DEAL OF LITIGATION. AS I MENTIONED, THE COURT SAYS A LAW THAT REQUIRES DISCLOSURE OF SPECIFIC INFORMATION IS A CONTENT-BASED RESTRICTION ON SPEECH THAT HAS TO MEET STRICT SCRUTINY. WELL, ANY LAW THAT REQUIRES DISCLOSURE IS PRESCRIBING WHAT HAS TO BE DISCLOSED. SO THINK OF ORDINANCES THAT SAY THAT RESTAURANTS HAVE TO DISCLOSE CALORIE COUNTS OR THAT BARS HAVE TO DISCLOSE THE EFFECTS OF ALCOHOL ON PREGNANT WOMEN OR THAT WORKPLACES HAVE TO DISCLOSE THE PRESENCE OF TOXIC SUBSTANCES. ALL OF THOSE CAN BE CHALLENGED. ALL OF THOSE WILL NOW NEED TO MEET STRICT SCRUTINY. I AGREE. THIS IS A VERY SIGNIFICANT DECISION FOR SEVERAL OTHER REASONS AS WELL. SEVERAL CIRCUITS HAD ADOPTED THE PRINCIPLE THAT PROFESSIONAL REGULATION OF PROFESSIONAL SPEECH WAS SUBJECT TO A LOWER LEVEL OF SCRUTINY, AND NOW THOSE CASES HAVE ALL BEEN OVERRULED. ALSO, THERE'S A NUMBER OF STATES THAT CURRENTLY REQUIRE DOCTORS TO PROVIDE CERTAIN INFORMATION TO WOMEN BEFORE-- WHO ARE SEEKING ABORTIONS, AND THE TRUTH OF THE INFORMATION IS SOMETIMES QUESTIONABLE. I THINK THOSE LAWS ARE NOW SUBJECT TO CHALLENGE. WIGGINS: OK, THANK YOU. WE'LL BE BACK WITH SOME FOURTH AMENDMENT DECISIONS IN A MOMENT. THE FOURTH AMENDMENT WAS ADDED TO THE CONSTITUTION TO PROTECT THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS FROM UNREASONABLE SEARCHES AND SEIZURES. FOR CENTURIES, THAT MEANT KEEPING THE AUTHORITIES FROM ENTERING PEOPLE'S HOMES AND SEARCHING THROUGH THEIR POSSESSIONS FOR SOME PROOF OF ILLEGAL ACTIVITY WITHOUT PROBABLE CAUSE. BUT THE DEVELOPMENT OF NEWER TECHNOLOGIES, ESPECIALLY THE RECENT DIGITAL REVOLUTION, THE SCOPE OF THE FOURTH AMENDMENT PROTECTIONS NOW HAS BEEN HARDER TO DEFINE; FOR EXAMPLE, IN OUR NEXT DECISION, "CARPENTER V. UNITED STATES." THE ISSUE WAS WHETHER PROSECUTORS COULD OBTAIN CELL PHONE TOWER RECORDS WITHOUT GETTING A WARRANT FROM A JUDGE. EVERY TIME A PERSON'S CELL PHONE CONNECTS TO A CELLULAR SITE, A DATE-STAMPED RECORD OF THE LOCATION OF THE PHONE IS CREATED BY THE PHONE COMPANY. GET ENOUGH OF THESE RECORDS OVER A LONG ENOUGH PERIOD OF TIME, AND THE POLICE CAN TRACK A PERSON'S LOCATION AND MOVEMENTS. SO, ERWIN, TELL US THE FACTS OF THIS CASE AND WHAT THE COURT SAID ABOUT USING CELL SITE DATA IN CRIMINAL PROSECUTIONS. CHEMERINSKY: TIMOTHY CARPENTER WAS A SUSPECT IN A SERIES OF ARMED ROBBERIES. MAYBE IT'S IRONIC. THEY WERE PRIMARILY ARMED ROBBERIES OF RADIO SHACKS. [PANEL CHUCKLING] LAW ENFORCEMENT WENT TO A FEDERAL MAGISTRATE JUDGE AND GOT INFORMATION FOR A PERIOD OF 127 DAYS WITH REGARD TO HIS CELLULAR LOCATION INFORMATION. THEY DID SO UNDER THE FEDERAL STORED COMMUNICATION ACT, WHICH IS A STANDARD THAT'S EASIER TO MEET THAN PROBABLE CAUSE. CARPENTER MADE A SUPPRESSION MOTION, BUT BOTH THE DISTRICT COURT AND THE SIXTH CIRCUIT RULED AGAINST HIM, RELYING ON WHAT'S CALLED THE "THIRD PARTY DOCTRINE." THE "THIRD PARTY DOCTRINE" SAYS, "WE DON'T HAVE A REASONABLE "EXPECTATION OF PRIVACY IF WE'VE VOLUNTARILY TURNED INFORMATION OVER TO A THIRD PARTY." WIGGINS: SO DID THE THIRD-PARTY DOCTRINE CARRY THE DAY AT THE COURT, LAURIE? LEVENSON: WELL, NOT IN THIS CASE, BUT IT DOES SURVIVE IN MOST SITUATIONS. THE 5-4 MAJORITY OPINION WRITTEN BY THE CHIEF JUSTICE REASONED THAT CELL SERVICE LOCATION INFORMATION, OTHERWISE KNOWN AS CSLI, IS NOT LIKE OTHER TYPES OF RECORDS BECAUSE IT SHOWS SO MANY DETAILS ABOUT A PERSON'S LIFE. IT CAN SHOW FAMILIAL, POLITICAL, PROFESSIONAL, RELIGIOUS, AND EVEN SEXUAL ASSOCIATIONS. SO, GIVEN THAT, THE COURT CREATED A VERY NARROW EXCEPTION FROM THIRD-PARTY DOCTRINE AND SAID IN THOSE SITUATIONS INVOLVING CSLI RECORDS, THE LAW ENFORCEMENT NEEDS TO GO GET A WARRANT. IT SAID, HOWEVER, IT'S VERY NARROW BECAUSE IT ALSO INCLUDES A TIME REGULATION. AND IT DIDN'T SET OUT HOW LONG THAT SURVEILLANCE HAS TO BE THOSE RECORDS FOR, BUT IT DID NOTE IN A FOOTNOTE THAT 7 DAYS OF CSLI RECORDS CONSTITUTES A FOURTH AMENDMENT SEARCH AND THEREFORE, THE GOVERNMENT CAN'T DO IT WITHOUT A WARRANT. THEY CAN'T USE OTHER TYPES OF COMPULSORY PROCESS SUCH AS SUBPOENAS. THEY MIGHT BE ABLE TO, IN THE RIGHT SITUATIONS, USE THE EXIGENT CIRCUMSTANCE EXCEPTION. CHEMERINSKY: AS LAURIE POINTS OUT, CHIEF JUSTICE ROBERTS' MAJORITY OPINION STRESSES THAT THE HOLDING IS NARROW. SAYS, FOR EXAMPLE, THE COURT'S NOT DEALING WITH ACCESS TO REAL-TIME CELLULAR LOCATION INFORMATION. HE SAID THE COURT'S NOT RECONSIDERING THE THIRD-PARTY DOCTRINE. HE SAID THE COURT'S NOT DEALING WITH A SITUATION WHERE FOREIGN POLICY OR NATIONAL SECURITY IS INVOLVED. CHANCE: WELL, EVEN WRITTEN NARROWLY, THOUGH, THIS SEEMS LIKE SOMETHING THAT COULD HAVE A SIGNIFICANT PRACTICAL IMPACT ON THE COURTS. CHEMERINSKY: I TOTALLY AGREE WITH THAT. IN 2016, VERIZON AND AT&T, JUST 2 CELLULAR COMPANIES, WERE REQUIRED TO PROVIDE CELLULAR LOCATION INFORMATION 125,000 TIMES TO FEDERAL, STATE, AND LOCAL LAW ENFORCEMENT PERSONNEL. THIS IS GOING TO HAVE A SIGNIFICANT EFFECT IN TERMS OF BURDENING THE COURTS. ALSO, THERE'S THE ISSUE OF WHAT ABOUT CASES THAT ARE PENDING OR ON APPEAL WHERE CELLULAR LOCATION INFORMATION WAS OBTAINED. I DON'T THINK THIS CASE RULES, IN EFFECT, IN THOSE PENDING MATTERS, AND THAT'S BECAUSE THE EXCLUSIONARY RULE WOULDN'T APPLY. THE MAGISTRATE JUDGE, LAW ENFORCEMENT--THOSE CASES-- HAD ACTED IN GOOD FAITH BASED ON THE LAW THAT WAS IN PLACE AT THE TIME. THE SUPREME COURT HAS MADE IT CLEAR THAT THE EXCLUSIONARY APPLIES ONLY IF THERE'S AN INTENTIONAL OR RECKLESS VIOLATION OF THE FOURTH AMENDMENT. LEVENSON: AND I THINK THAT THE CHALLENGE FOR THE LOWER COURTS IS GONNA BE ONE OF LINE-DRAWING. WHEN WILL THESE THIRD-PARTY RECORDS BE CONSIDERED UNDER THE THIRD-PARTY DOCTRINE, AND WHEN WILL THEY BE PARTICULARLY INVASIVE, AS SET FORTH IN "CARPENTER"? AND WILL THERE BE MORE CHALLENGES TO SUBPOENAS AS WELL, AND HOW WILL THOSE CHALLENGES BE RECEIVED? WIGGINS: THANK YOU. OUR NEXT TWO DECISIONS INVOLVE TWO MORE TRADITIONAL DOCTRINES IN FOURTH AMENDMENT JURISPRUDENCE: THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT AND THE SANCTITY OF THE HOME, INCLUDING ITS CURTILAGE. IN "BYRD V. UNITED STATES," TERRENCE BYRD BORROWED A RENTED CAR FROM HIS EX-GIRLFRIEND, LATASHA REED, TO DRIVE FROM NEW JERSEY TO PITTSBURGH. UNDER THE RENTAL AGREEMENT, BYRD WAS NOT AN AUTHORIZED DRIVER ON THE CAR. HALFWAY TO PITTSBURGH, BYRD WAS STOPPED BY A PENNSYLVANIA STATE TROOPER FOR DRIVING TOO LONG IN THE LEFT LANE. SEEING THAT BYRD WAS NOT ON THE RENTAL AGREEMENT, AND FIGURING HE DIDN'T NEED CONSENT, THE TROOPER SEARCHED THE CAR AND FOUND 49 BRICKS OF HEROIN IN A FLAK JACKET. BYRD MOVED TO SUPPRESS THE EVIDENCE, SAYING THE SEARCH WAS A VIOLATION OF HIS FOURTH AMENDMENT RIGHTS. HE LOST IN BOTH THE DISTRICT AND APPELLATE COURTS. BOTH RULED THAT BYRD HAD NO REASONABLE EXPECTATION OF PRIVACY BECAUSE HE WAS NOT A REGISTERED DRIVER ON THE RENTAL AGREEMENT. SO, ERWIN, DID THE JUSTICE AGREE? CHEMERINSKY: THE JUSTICE AGREED WITH BYRD HERE AND REVERSED THE LOWER COURTS. JUSTICE KENNEDY WROTE, "IT WAS A UNANIMOUS DECISION." JUSTICE KENNEDY SAID THAT EVEN THOUGH BYRD WASN'T AUTHORIZED UNDER THE RENTAL AGREEMENT, HE STILL HAD A REASONABLE EXPECTATION OF PRIVACY. JUSTICE KENNEDY SAID "A REASONABLE EXPECTATION OF PRIVACY" BECAUSE HE WAS LAWFULLY DRIVING THE CAR, AND, ALSO, HE WAS IN CONTROL OF THE VEHICLE. LEVENSON: BUT, AGAIN, THIS IS A VERY NARROW DECISION. THE COURT SIMPLY HOLDS THAT IT'S NOT ENOUGH TO GET PAST THE WARRANT REQUIREMENT THAT THE DRIVER WAS NOT ON THE CONTRACT, THE RENTAL CONTRACT, THAT THERE ARE SO MANY TECHNICAL PROVISIONS IN THOSE CONTRACTS THAT WOULD NOT BE ENOUGH. AND, OF COURSE, THAT'S A DIFFERENT QUESTION FROM WHETHER ANOTHER EXCEPTION MIGHT APPLY, LIKE THE AUTOMOBILE EXCEPTION. THE FOCUS IN THIS CASE IS WHETHER BYRD HAD A FOURTH AMENDMENT RIGHT TO RAISE THE ISSUE, WHETHER HIS RIGHTS WERE VIOLATED. AND STILL, ALL WE KNOW IS THAT UNDER THE COURT'S PREVIOUS DECISION IN "RAKAS V. ILLINOIS," A LEGITIMATE PRESENCE ON THE PROPERTY IS INSUFFICIENT IN ITSELF TO ESTABLISH A REASONABLE EXPECTATION OF PRIVACY, BUT IT IS A FACTOR. CHEMERINSKY: AND THE KEY HERE IS THAT BYRD WAS IN LAWFUL POSSESSION OF THE VEHICLE. THE CIRCUMSTANCES OF POSSESSION MATTER. SO IF THIS WAS A STOLEN CAR, IT WOULD BE DIFFERENT. OR IF THERE'D BEEN DECEPTION OF THE RENTAL CAR COMPANY OBTAINING THE VEHICLE, THAT, TOO, WOULD MAKE IT DIFFERENT. CHANCE: IS THIS GONNA AFFECT FOURTH AMENDMENT JURISPRUDENCE ALL THAT MUCH, LAURIE? LEVENSON: I ACTUALLY DON'T THINK SO. IT MIGHT SUGGEST THAT THE COURT DOESN'T WANT TO RELY EXCLUSIVELY ON PROPERTY RULES TO DECIDE WHEN THERE'S A REASONABLE EXPECTATION OF PRIVACY, BUT IT IS A FACTOR. AND ON REMAND, THE GOVERNMENT MIGHT ACTUALLY BE ABLE TO SHOW THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT THE VEHICLE CONTAINED CONTRABAND, SINCE BYRD TOLD THE TROOPER THAT HE HAD A MARIJUANA CIGARETTE IN THE CAR. THAT MIGHT JUSTIFY THE SEARCH ON DIFFERENT GROUNDS, BUT THAT ISSUE HASN'T BEEN DECIDED YET BY THE LOWER COURT. CHANCE: THANKS. OUR LAST DECISION IN THIS GROUP, "COLLINS V. VIRGINIA," ALSO INVOLVES THE AUTOMOBILE EXCEPTION, BUT IN A DIFFERENT WAY. TWO POLICE OFFICERS HAD INDEPENDENTLY BEEN CHASING AFTER A BLACK-AND-ORANGE MOTORCYCLE WITH AN EXTENDED FRAME FOR TRAFFIC VIOLATIONS, BUT THE DRIVER OF THE BIKE HAD ELUDED THEM. LATER, ONE OF THE OFFICERS FOUND PICTURES OF A SIMILAR-LOOKING MOTORCYCLE ON RYAN COLLINS' FACEBOOK PAGE. SO, HE TRACKED DOWN THE ADDRESS, DROVE THERE, AND PARKED ON THE STREET. FROM THAT VANTAGE POINT, HE SAW WHAT APPEARED TO BE A MOTORCYCLE WITH AN EXTENDED FRAME COVERED WITH A TARP AT THE TOP OF THE DRIVEWAY. THE OFFICER WALKED UP TO THE BIKE, PULLED OFF THE TARP, AND FOUND A BLACK-AND-ORANGE MOTORCYCLE WITH AN EXTENDED FRAME THAT MATCHED THE ONE BEING PURSUED FOR TRAFFIC VIOLATIONS. SO HE RAN A SEARCH OF THE LICENSE PLATES AND THE VEHICLE IDENTIFICATION NUMBER AND CONFIRMED THE BIKE WAS STOLEN. IN HIS TRIAL FOR RECEIVING STOLEN PROPERTY, COLLINS MOVED TO HAVE THE EVIDENCE SUPPRESSED UNDER THE FOURTH AMENDMENT. NOW, VIRGINIA STATE COURTS RULED AGAINST COLLINS' MOTIONS ON THE GROUNDS OF THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT. DID THE SUPREME COURT AGREE WITH THE VIRGINIA SUPREME COURT? LEVENSON: NO, IT DID NOT. JUSTICE SOTOMAYOR WROTE FOR 8 PEOPLE IN THE MAJORITY, 8 JUSTICES, AND HELD THAT THE AUTOMOBILE EXCEPTION DOES NOT ALLOW WARRANTLESS SEARCHES OF AUTOMOBILES ON THE CURTILAGE OF THE HOME, AS OPPOSED TO OUT ON THE PUBLIC STREET, ABSENT EXIGENT CIRCUMSTANCES. THE JUSTICE WROTE THAT THE AUTOMOBILE EXCEPTION APPLIES TO VEHICLES OUT ON THE ROAD BECAUSE THERE THERE'S A LESSER EXPECTATION OF PRIVACY, THAT, INDEED, THE POLICE HAVE A RIGHT TO BE OUT THERE, BUT THAT THE AUTOMOBILE EXCEPTION WAS NOT MEANT TO BE USED IN THIS SITUATION, WHERE THE VEHICLE IS PARKED. IT'S PARKED ON THE CURTILAGE. AND IN THIS PARTICULAR SITUATION, IT WAS UP ON A DRIVEWAY THAT ABUTTED THE HOME, AND IT WAS, IN FACT, COVERED, SO AUTOMOBILE EXCEPTION DOESN'T WORK. CHEMERINSKY: JUSTICE SOTOMAYOR LOOKED AT THE UNDERLYING RATIONALE FOR THE AUTOMOBILE EXCEPTION. SHE SAID IT'S ABOUT THE FACT THAT A MOTOR VEHICLE CAN BE EASILY MOVED. BUT HERE, THE MOTOR VEHICLE WAS PARKED. THERE'S NO REASON THE POLICE COULDN'T GET A SEARCH WARRANT. SHE SAID TO APPLY THE AUTOMOBILE EXCEPTION HERE, BRINGS SUBSTANTIAL EXPANSION OF THAT EXCEPTION, AND I THINK EVEN MORE IMPORTANTLY SAID IT WOULD DIMINISH THE PROTECTIONS UNDER THE FOURTH AMENDMENT. FOR THE HOME AND THE CURTILAGE SURROUNDING IT. AND THAT'S WHAT THE FOURTH AMENDMENT IS--AS THE COURT-- MOST ABOUT. WIGGINS: SO THERE'S A CONCURRENCE WRITTEN BY JUSTICE THOMAS, THOUGH, THAT GOES FURTHER IN TERMS OF FOURTH AMENDMENT JURISPRUDENCE. LEVENSON: THERE IS, BUT IT'S UNCLEAR WHETHER IT WOULD FIND SUPPORT AMONG THE MAJORITY OF JUSTICES. JUSTICE THOMAS ACTUALLY SUGGESTS THAT THE COURT SHOULD RE-EXAMINE THE EXCLUSIONARY RULE AS APPLIED TO THE STATES AND THE POSSIBILITY THAT HE WOULD VOTE TO OVERRULE "MAPP V. OHIO." THANKS. WE'LL BE RIGHT BACK WITH TWO FIFTH AND SIXTH AMENDMENT DECISIONS. DOUBLE JEOPARDY IS ONE OF THE MOST IMPORTANT PROTECTIONS PROVIDED BY THE FIFTH AMENDMENT TO THE CONSTITUTION. IT PREVENTS A GOVERNMENT FROM PROSECUTING THE ACCUSED MORE THAN ONCE FOR THE SAME ALLEGED CRIME, BUT WHEN THAT PROTECTION IS AVAILABLE IS NOT ALWAYS CLEAR. THIS TERM, IN "CURRIER V. VIRGINIA," THIS QUESTION AROSE AGAIN. MICHAEL CURRIER WAS INDICTED FOR BURGLARY, LARCENY, AND POSSESSION OF A FIREARM BY A CONVICTED FELON. TO KEEP THE JURY IN HIS BURGLARY AND LARCENY TRIAL FROM HEARING ABOUT PREVIOUS CONVICTIONS FOR BURGLARY AND LARCENY, CURRIER ASKED TO HAVE HIS POSSESSION OF FIREARM TRIAL SEVERED FROM HIS BURGLARY AND LARCENY TRIAL. THE TRIALS WERE SEVERED, AND CURRIER WAS TRIED FIRST ON THE BURGLARY AND LARCENY TRIALS, FOR WHICH HE WAS ACQUITTED. SO, HE THEN MOVED TO DISMISS THE SECOND TRIAL, CLAIMING A VIOLATION OF HIS DOUBLE JEOPARDY RIGHTS. SO, LAURIE, DID THE COURT SEE DOUBLE HERE? LEVENSON: NO, THE COURT DID NOT. IN A 5-4 OPINION WRITTEN BY JUSTICE GORSUCH, THE COURT FOUND THAT CURRIER'S DOUBLE JEOPARDY RIGHTS WERE NOT VIOLATED FOR TWO REASONS: 1--FRANKLY, HE HAD CONSENTED TO THE TWO TRIALS. AND SECOND--THIS IS NOT A SITUATION THAT INVOLVED PROSECUTORIAL OVERREACHING, WHICH IS WHAT THE DOUBLE JEOPARDY CLAUSE IS ALL ABOUT. CHEMERINSKY: THERE WAS A SECOND ISSUE PRESENTED, AND THAT'S WHETHER COLLATERAL ESTOPPEL WOULD PRECLUDE THE PROSECUTORS FROM BEING ABLE TO USE THE CHARGES, BURGLARY AND LARCENY, THAT CURRIER HAD BEEN ACQUITTED FOR. WHAT CURRIER SAID IS SINCE HE HAD BEEN ACQUITTED IN THE PRIOR TRIAL, COLLATERAL ESTOPPEL SHOULD KEEP THE PROSECUTORS FROM BEING ABLE TO USE THAT TO SHOW THAT HE'S A FELON IN POSSESSION. JUSTICE GORSUCH, WRITING FOR PLURALITY, REJECTED THAT ARGUMENT. HE SAID COLLATERAL ESTOPPEL IS A CONCEPT OF CIVIL LITIGATION. HE SAID IT SHOULDN'T BE IMPORTED INTO THE CRIMINAL CONTEXT OF DOUBLE JEOPARDY. HE SAID THAT COLLATERAL ESTOPPEL AND DOUBLE JEOPARDY HAVE DIFFERENT HISTORICAL ANTECEDENTS AND, THUS, THEY SHOULD BE KEPT ENTIRELY DISTINCT. BUT IT'S WORTH NOTING THAT JUSTICE KENNEDY, THOUGH CONCURRING IN THE JUDGMENT, DID NOT CONCUR IN THAT PART, PART III, OF JUSTICE GORSUCH'S OPINION. LEVENSON: SO THERE REMAINS A 4-4 SPLIT AS TO THAT ISSUE, AND IT'S UNRESOLVED. IN "McCOY V. LOUISIANA," THE QUESTION WAS WHETHER A DEFENSE ATTORNEY IN A CAPITAL TRIAL COULD CONCEDE HIS CLIENT'S GUILT IN THE SENTENCING PHASE OF HIS TRIAL AGAINST HIS CLIENT'S WISHES IF THE ATTORNEY THOUGHT IT WAS THE BEST STRATEGY FOR AVOIDING THE DEATH PENALTY. ROBERT McCOY ADAMANTLY DENIED HE HAD COMMITTED THE TRIPLE HOMICIDE HE WAS CHARGED WITH AND WANTED HIS ATTORNEY TO ARGUE A DUBIOUS ALIBI. NEVERTHELESS, HIS ATTORNEY CONCEDED McCOY'S GUILT TO THE JURY CONSIDERING HIS SENTENCE, HOPING TO SPARE HIM THE DEATH PENALTY. SO, COULD THE LAWYER DO THAT AS A MATTER OF STRATEGY, OR WAS IT THE DEFENDANT'S RIGHT TO DENY HIS GUILT? ERWIN? CHEMERINSKY: THE SUPREME COURT SAID IT WAS THE DEFENDANT'S RIGHT. IT WAS A 6-3 DECISION, WITH JUSTICE GINSBERG WRITING FOR THE MAJORITY. JUSTICE GINSBERG STRESSED THAT McCOY WAS ADAMANT THAT HE DID NOT WANT TO CONCEDE THAT HE HAD DONE THESE KILLINGS. JUSTICE GINSBERG ALSO EMPHASIZED THAT MOST DECISIONS AT TRIAL ARE STILL LEFT TO COUNSEL-- WHAT ARGUMENTS TO MAKE, WHAT EVIDENCE TO INTRODUCE-- BUT THERE ARE CERTAIN CHOICES THAT ARE LEFT TO THE CRIMINAL DEFENDANT AND, ABOVE ALL, WHETHER TO ADMIT SOMETHING ESSENTIAL AS WHETHER THE KILLINGS OCCURRED, AND SAID NOTHING WAS MORE IMPORTANT TO McCOY HERE THAN DENYING THAT HE HAD DONE THE KILLINGS. LEVENSON: YES, THE COURT SAID THE ISSUE HERE WAS FOCUSING ON THE CLIENT'S AUTONOMY AND NOT THE PERFORMANCE OF COUNSEL AND, THEREFORE, THE COURT DID NOT USE THE STRICKLAND INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD THAT WOULD HAVE REQUIRED A SHOWING OF PREJUDICE. THIS WAS A STRUCTURAL ERROR AND THEREFORE REQUIRED AUTOMATIC REVERSAL. WE'LL BE RIGHT BACK. THE RIGHTS OF IMMIGRANTS AND THOSE TRYING TO ENTER THIS COUNTRY WERE BEFORE THE COURT THIS YEAR, WITH ONE OF THE MOST ANTICIPATED DECISIONS COMING DOWN ON THE LAST DAY OF THE TERM. "TRUMP V. HAWAII" WAS THE CASE THAT TESTED WHETHER A PRESIDENTIAL PROCLAMATION BANNING RESIDENTS OF 8 NATIONS FROM ENTERING THE U.S. WAS A LEGITIMATE EXECUTIVE ORDER UNDER FEDERAL LAW OR AN ANTI-MUSLIM BAN IN VIOLATION OF THE FIRST AMENDMENT'S ESTABLISHMENT CLAUSE. THE PROCLAMATION WAS THE THIRD EXECUTIVE ORDER ON THIS TOPIC ISSUED BY PRESIDENT TRUMP, AFTER HIS FIRST TWO WERE CHALLENGED IN FEDERAL COURT AND THEN WITHDRAWN. THIS THIRD ORDER WAS ALSO CHALLENGED IN FEDERAL COURT, AND THE DISTRICT COURT IN HAWAII ISSUED AN INJUNCTION HALTING ITS APPLICATION WHILE THE LITIGATION WENT FORWARD. THE SUPREME COURT STAYED THE INJUNCTION BEFORE GRANTING CERT. ALTHOUGH BANNING ENTRY INTO THE U.S. TO MOST RESIDENTS FROM 6 MUSLIM-MAJORITY COUNTRIES AS WELL AS SOME INDIVIDUALS FROM VENEZUELA AND NORTH KOREA, THE ORDER INCLUDED A SYSTEM OF EXEMPTIONS AND WAIVERS THAT WOULD ALLOW SOME PEOPLE FROM THOSE NATIONS TO ENTER THIS COUNTRY FOR SPECIFIC REASONS. I THINK THAT EVERYONE WATCHING KNOWS HOW THE COURT DECIDED THIS CASE, BUT TELL US SOMETHING ABOUT THE RATIONALE, THE REASONING OF THE COURT, SUZANNA. WELL, THE COURT SUPPORTED THE PRESIDENT ON SEVERAL GROUNDS, SO, LET'S START WITH THE STATUTORY GROUNDS. WHAT THE 5-JUSTICE MAJORITY SAID IS THAT THE IMMIGRATION AND NATIONALITY ACT, OR INA, GIVES THE PRESIDENT VERY BROAD AUTHORITY IN THIS AREA. SO THEY RELIED ON A PARTICULAR SECTION OF THE INA THAT I THINK WE HAVE UP ON THE SCREEN, WHICH SAYS... ACCORDING TO THE COURT, THE LAW EXUDES DEFERENCE TO THE PRESIDENT IN EVERY CLAUSE, AND, THEREFORE, TRUMP DID NOT EXCEED HIS AUTHORITY UNDER THE INA WHEN HE PROMULGATED THE ORDER. LEVENSON: AND THE ADMINISTRATION'S EXPLANATION FOR WHY THEY NEEDED THIS EXECUTIVE ORDER AND WHICH COUNTRIES THEY WERE SELECTING IS THAT THEY TOOK A LOOK AT THE THREATS FROM VARIOUS COUNTRIES IN TERMS OF THEIR VETTING OF INFORMATION AND HOW RELIABLE THEIR INFORMATION WOULD BE IN PROVIDING THE VISAS. AND BASED UPON THAT PROCESS AS THE COURT REVIEWED IT, THEY BELIEVED THAT THE ADMINISTRATION DID GO THROUGH A MULTI-AGENCY GLOBAL REVIEW TO DETERMINE WHERE THEY WOULD BE ABLE TO GET THE MOST RELIABLE INFORMATION. SHERRY: AND THE COURT RELIED, ALSO, ON TWO EARLIER PRECEDENTS THAT IT SAID SUPPORTED ITS HOLDING. THE CASES WERE "KLEINDIENST V. MANDEL" AND "KERRY V. DIN." IN THOSE CASES, THE RULE WAS THAT THE REVIEW OF EXECUTIVE IMMIGRATION DECISIONS IS LIMITED TO JUST DETERMINING WHETHER THE EXECUTIVE HAS GIVEN A FACIALLY LEGITIMATE AND BONA FIDE REASON FOR THE ACTIONS. IF THE PRESIDENT DOES THAT, THEN THE COURT'S NOT ALLOWED TO LOOK BEHIND THAT TO CHECK THE MOTIVATION. AND THE MAJORITY SAID THAT TRUMP HAD GIVEN LEGITIMATE AND BONA FIDE REASONS. INTERESTINGLY, NEITHER OF THE DISSENTS-- AND THEY WERE VERY STRONG DISSENTS-- BUT NEITHER OF THEM TOOK ISSUE WITH THIS STATUTORY RULING. WIGGINS: SO, NOW TELL US ABOUT THE FIRST AMENDMENT RULING. SHERRY: I THINK THAT RULING WAS MORE INTERESTING AND POTENTIALLY MORE INFLUENTIAL. THE PLAINTIFFS CLAIMED THAT PRESIDENT TRUMP'S STATEMENTS BEFORE AND--DURING HIS CAMPAIGN AND THEN AFTERWARDS AS PRESIDENT REGARDING MUSLIMS AND ISLAM IN GENERAL WERE EVIDENCE THAT THE REAL MOTIVATION FOR THE PROCLAMATION WAS NOT NATIONAL SECURITY, BUT INSTEAD WAS RELIGIOUS ANIMUS AGAINST MUSLIMS, IN VIOLATION OF THE FIRST AMENDMENT. NOW, THE CHIEF JUSTICE'S MAJORITY OPINION ACKNOWLEDGES THOSE STATEMENTS AND EVEN QUOTES A FEW OF THEM, BUT HE SAYS THAT IT'S NOT THE JOB OF THE COURT TO DENOUNCE STATEMENTS LIKE THAT, BUT IS INSTEAD TO REVIEW "THE SIGNIFICANCE OF THOSE STATEMENTS "IN REVIEWING A PRESIDENTIAL DIRECTIVE, NEUTRAL ON ITS FACE..." AND HERE THE MAJORITY SAID IT HAS TO TAKE INTO ACCOUNT SEVERAL FACTORS: FIRST--THE AUTHORITY OF THE PRESIDENT, WHICH THEY SAID WAS CLEAR FROM THE TEXT OF THE LAW; SECOND--THE FACT THAT THE PLAINTIFFS WERE ASKING TO INVALIDATE A NATIONAL SECURITY DIRECTIVE; AND THIRD--THAT THE PROCLAMATION WAS FACIALLY NEUTRAL TOWARD RELIGION. SO, WHILE THE MAJORITY SAID IT CONSIDERED THE PLAINTIFF'S EXTRINSIC EVIDENCE, THEY SAID THAT, IN FACT, THE GROUNDS GIVEN BY THE ADMINISTRATION WITH REGARD TO NATIONAL SECURITY WAS PERSUASIVE, APART FROM ANY RELIGIOUS HOSTILITY AND THAT THEY HAVE TO ACCEPT THAT AS A JUSTIFICATION. CHANCE: WELL, BOTH OF THESE DECI-- THERE WERE TWO DISSENTS IN THIS DECISION, AND ONE, IN PARTICULAR, WAS VERY STRONG. TELL US ABOUT THAT. LEVENSON: WELL, THE SHORTER OF THE TWO DISSENTS WAS BY JUSTICE BREYER AND JUSTICE KAGAN. AND JUSTICE BREYER FOCUSED ON THE SYSTEM OF WAIVER EXCEPTIONS THAT WAS MENTIONED EARLIER AND SAID THAT THERE WAS EVIDENCE THAT, FRANKLY, THE GOVERNMENT WASN'T REALLY USING THAT AND GRANTING THOSE WAIVERS, FOR MOST PART. AND BREYER FELT THAT IT WAS AN IMPORTANT ENOUGH ISSUE HERE ABOUT THE PROCLAMATION AND MAKING SURE IT WAS NOT A MUSLIM BAN THAT HE WOULD SEND IT BACK TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS AND ACTUALLY KEEP THE INJUNCTION IN PLACE. SHERRY: THERE WAS A SECOND, MUCH LONGER DISSENT BY JUSTICE SOTOMAYOR, JOINED BY JUSTICE GINSBERG. SHE CATALOGUED ALL OF THE STATEMENTS THAT PRESIDENT TRUMP HAS MADE OVER THE YEARS ABOUT MUSLIMS AND ISLAM. AND SHE WROTE THAT ANY REASONABLE OBSERVER COULD CONCLUDE FROM THESE THAT THE PRIMARY PURPOSE OF THE PROCLAMATION IS, SHE SAID, TO DISFAVOR ISLAM AND ITS ADHERENCE BY EXCLUDING THEM FROM THE COUNTRY. SHE ALSO MENTIONS THE "MASTERPIECE CAKE SHOP" CASE THAT WE TALKED ABOUT A FEW MINUTES AGO AND SAYS THAT IN THAT CASE, THE MAJORITY LOOKED BEHIND THE HOLDING OF THE COMMISSION TO THE COMMISSION--A FEW COMMISSIONERS' STATEMENTS. AND SHE SAYS THOSE STATEMENTS WERE MUCH MORE BENIGN THAN-- THAN PRESIDENT TRUMP'S STATEMENTS, AND SHE THINKS THAT THE MAJORITY HERE SHOULD HAVE APPLIED THE ANALYSIS THAT THEY APPLIED IN "MASTERPIECE CAKE SHOP." WIGGINS: IN "JENNINGS V. RODRIGUEZ," THE COURT DEALT WITH THE RIGHTS OF ALIENS BEING DETAINED BY THE GOVERNMENT. RODRIGUEZ WAS A MEXICAN CITIZEN WITH PERMANENT RESIDENT STATUS IN THE U.S. HE WAS CONVICTED OF A DRUG OFFENSE AND STEALING A VEHICLE AND ORDERED REMOVED FROM THE COUNTRY. HE APPEALED FOR RELIEF FROM REMOVAL, BUT AFTER ALMOST 3 YEARS IN DETENTION, HE FILED A HABEAS ACTION SEEKING A BOND HEARING TO DETERMINE IF HIS CONTINUED INCARCERATION WAS JUSTIFIED. HIS CASE WAS CONSOLIDATED WITH ANOTHER SIMILAR CASE, AND TOGETHER, THEY MOVED FOR CLASS CERTIFICATION. THE DISTRICT COURT DENIED THEIR MOTION, BUT THE NINTH CIRCUIT REVERSED. AFTER THAT, THE DISTRICT COURT ENTERED A PERMANENT INJUNCTION IN LINE WITH THE WREATH RODRIGUEZ SOUGHT AND THE COURT OF APPEALS AFFIRMED. THE APPEALS COURT HELD THAT THE STATUTE UNDER WHICH RODRIGUEZ WAS INCARCERATED SHOULD BE CONSTRUED AS REQUIRING PERIODIC BOND HEARINGS EVERY 6 MONTHS. CONTINUED DETENTION, THE CIRCUIT SAID, SHOULD ONLY BE PERMITTED IF THE GOVERNMENT PROVES BY CLEAR AND CONVINCING EVIDENCE THAT FURTHER DETENTION IS JUSTIFIED. SO, SUZANNA, DID THE SUPREME COURT AGREE WITH THE NINTH CIRCUIT? SHERRY: NO, IT DID NOT. SO HERE'S A LITTLE BACKGROUND. THERE ARE 3 DIFFERENT STATUTES UNDER WHICH ALIENS CAN BE DETAINED PENDING IMMIGRATION DECISIONS, AND NONE OF THEM EXPLICITLY PROVIDE IT FOR BAIL OR FOR ANY KIND OF BOND HEARINGS. THE NINTH CIRCUIT USED THE CANON OF CONSTITUTIONAL AVOIDANCE TO READ INTO THE STATUTES A REQUIREMENT OF BOND HEARINGS EVERY 6 MONTHS DURING THE PENDENCY OF THE PROCEEDINGS AND RELIED ON A 2001 SUPREME COURT CASE, "ZADVYDAS V. DAVIS," WHERE THE COURT HAD INTERPRETED THE STATUTE AS REQUIRING AN EVERY-6-MONTHS' REVIEW OF A REMOVAL ORDER SO THAT A DEFENDANT IS NOT SITTING INDEFINITELY UNTIL REMOVAL. LEVENSON: BUT THE JUSTICES DID WRITE THAT THIS CASE IS DIFFERENT FROM "ZADVYDAS" AND THAT THE NINTH CIRCUIT MISTAKENLY USED THE CONSTITUTIONAL AVOIDANCE DOCTRINE. THE MAJORITY SAID THAT THE STATUTE MAKES IT CLEAR THAT THE ATTORNEY GENERAL CAN KEEP A DEPORTEE IN CUSTODY, AND NOTHING IN THE STATUTE SUPPORTED THE IMPOSITION OF THESE PERIODIC BOND HEARINGS. THE COURT WROTE "SPOTTING A CONSTITUTIONAL ISSUE DOES NOT "GIVE A COURT THE AUTHORITY "TO REWRITE A STATUTE AS IT PLEASES, BUT ONLY TO CHOOSE BETWEEN COMPETING PLAUSIBLE INTERPRETATIONS." AND HERE THE COURT WROTE THAT THE NINTH CIRCUIT'S INTERPRETATION OF THE STATUTE WAS IMPLAUSIBLE. SHERRY: WE SHOULD ALSO NOTE THAT THE COURT DIDN'T REACH THE CONSTITUTIONAL ISSUE-- THAT IS, WHETHER BOND HEARINGS, PERIODIC BOND HEARINGS, WERE REQUIRED UNDER DUE PROCESS. INSTEAD, IT REMANDED THAT QUESTION BACK TO THE NINTH CIRCUIT, NOW THAT IT WAS CLEAR THAT THE STATUTE ITSELF DID NOT REQUIRE THOSE HEARINGS. LEVENSON: BUT THERE WAS A DISSENT HERE WRITTEN BY JUSTICE BREYER, AND HE WOULD CONSTRUE THE STATUTE AS REQUIRING THE 6-MONTH BOND HEARINGS UNDER DUE PROCESS. HE BELIEVES "ZADVYDAS" WAS CLEAR PRECEDENT, THAT "IN CUSTODY," HE WROTE, "DOES NOT ALWAYS MEAN ACTUALLY DETAINED." FINALLY, WE WANT TO TELL YOU ABOUT THE COURT'S RULING IN "SESSIONS V. DIMAYA." UNDER A SECTION OF THE IMMIGRATION AND NATIONALITY ACT, OR INA, AN ALIEN CAN BE RENDERED DEPORTABLE IF HE OR SHE IS CONVICTED OF AN AGGRAVATED FELONY. NOW, THAT TERM "AGGRAVATED FELONY" IS DEFINED BY CROSS-REFERENCING OTHER CRIMINAL STATUTES, INCLUDING THE SO-CALLED "RESIDUAL CLAUSE" OF THE ARMED CAREER CRIMINAL ACT, OR ACCA. THAT CLAUSE INCLUDED CONVICTIONS FOR ANY ACT THAT "OTHERWISE INVOLVES..." BUT 3 YEARS AGO, IN "JOHNSON V. U.S.," THE COURT STRUCK DOWN THE RESIDUAL CLAUSE OF THE ACCA AS UNCONSTITUTIONALLY VAGUE. NOW, IN "SESSIONS V. DIMAYA," THE COURT FINDS THE RESIDUAL CLAUSE IN THE ACCA IS VIRTUALLY IDENTICAL TO THE ONE IN THE INA AND STRIKES THAT DOWN, TOO, AS UNCONSTITUTIONALLY VAGUE. IT WAS A 5-4 DECISION WRITTEN BY JUSTICE KAGAN. THE CHIEF JUSTICE WROTE A DISSENT DISTINGUISHING THIS CASE FROM "JOHNSON" ON THE GROUND THAT THE VAGUENESS DOCTRINE SHOULD BE MORE LENIENT IN CIVIL THAN IN CRIMINAL CASES. THANKS, JIM. I'LL BE BACK IN A MOMENT WITH A CONVERSATION I RECENTLY HAD WITH PROFESSOR ANN FLEMING OF THE GEORGETOWN UNIVERSITY LAW CENTER ABOUT THIS YEAR'S BANKRUPTCY LAW DECISIONS. PROFESSOR ANN FLEMING OF THE GEORGETOWN LAW CENTER IS HERE TODAY TO TALK ABOUT THE 3 BANKRUPTCY CASES DECIDED BY THE COURT THIS TERM. WELCOME, ANN. THANKS FOR BEING HERE. THANK YOU FOR HAVING ME. WHY DON'T WE START WITH THE FIRST CASE HANDED DOWN BY THE COURT-- "MERIT MANAGEMENT GROUP V. FTI CONSULTING"? IT WAS A UNANIMOUS DECISION AND RESOLVED A CIRCUIT SPLIT ABOUT AN EXCEPTION TO THE TRUSTEE'S AVOIDANCE POWERS. SO, TO START, WHAT ARE THE TRUSTEE'S AVOIDANCE POWERS AND ARE THERE LIMITS TO THEM? FLEMING: SO, THE BANKRUPTCY CODE GIVES THE TRUSTEE THE POWER TO INVALIDATE CERTAIN TRANSFERS BY THE DEBTOR OR OF THE DEBTOR'S PROPERTY, AND THE PURPOSE IS TO MAXIMIZE THE FUNDS AVAILABLE FOR DISTRIBUTION TO CREDITORS AND TO ENSURE AN EQUITABLE DISTRIBUTION OF THE DEBTOR'S PROPERTY. BUT THESE AVOIDING POWERS ALSO COME WITH SOME LIMITATIONS, AND THOSE INCLUDE THE LIMITATION ON TRANSFERS INVOLVING FINANCIAL INSTITUTIONS, WHICH IS AT SECTION 546(e) OF THE CODE. SO, CAN YOU BRIEFLY EXPLAIN THE SAFE HARBOR PROVISION AND THE SPECIFIC ISSUE THAT WAS BEFORE THE COURT IN THIS CASE? SO, THE SAFE HARBOR PROVISION PREVENTS THE TRUSTEE FROM AVOIDING TRANSFERS THAT ARE BY, TO, OR FOR THE BENEFIT OF FINANCIAL INSTITUTIONS. SO, IN THIS CASE, BEDFORD DOWNS, WHICH IS A RACETRACK, MADE A TRANSFER TO THE SHAREHOLDERS OF ANOTHER RACETRACK, AND THE SHAREHOLDERS INCLUDED MERIT MANAGEMENT GROUP, BUT THE TRANSFER DIDN'T GO DIRECTLY FROM THE RACETRACK TO THE SHAREHOLDERS. IT WENT THROUGH TWO FINANCIAL INSTITUTIONS. SO THE TRANSFER WENT FROM PARTY "A" TO PARTY "B," FROM PARTY "B" TO PARTY "C," AND FROM PARTY "C" TO PARTY "D." AND BOTH PARTIES "B" AND "C" WERE FINANCIAL INSTITUTIONS. SO, WHEN THE TRUSTEE ATTEMPTED TO VOID THE TRANSFER, MERIT CLAIMED THAT IT WAS PROTECTED FROM AVOIDANCE BY 546(e), AND THE COURT HAD TO DECIDE THAT QUESTION. SO WHAT DID THE COURT DECIDE? SO THE COURT DECIDED THAT THE RELEVANT TRANSFER IS THE TRANSFER THAT THE TRUSTEE IS SEEKING TO AVOID, WHICH IS THE TRANSFER FROM "A" TO "D." IF FINANCIAL INSTITUTIONS ARE MERELY CONDUITS OR PERFORM COMPONENT PARTS OF THE TRANSFER, THEN IT'S NOT PROTECTED BY THE 546(e) SAFE HARBOR. WIGGINS: OK, SO WHAT GUIDANCE DOES THIS CASE PROVIDE FOR DETERMINING WHETHER A TRANSACTION INVOLVING A FINANCIAL INSTITUTION ACTUALLY FALLS WITHIN THE SAFE HARBOR, WHICH WOULD PREVENT AVOIDANCE? SO THIS IS THE ONLY SUPREME COURT CASE ON 546(e). AND THE SUPREME COURT READ THE SAFE HARBOR NARROWLY, WHICH WAS IN LINE WITH THE VIEWS TAKEN BY THE SEVENTH AND ELEVENTH CIRCUITS AND ESSENTIALLY OVERRULED OPINIONS BY THE SECOND, THIRD CIRCUITS AND SOME OTHER COURTS OF APPEALS THAT HAD TAKEN A MORE EXPANSIVE VIEW OF THE SCOPE OF THE SAFE HARBOR. WIGGINS: OK. THANK YOU. WHY DON'T WE MOVE ON TO THE SECOND CASE-- "U.S. BANK V. VILLAGE OF LAKERIDGE"? THE CASE IS ABOUT THE MEANING OF INSIDER IN BANKRUPTCY AND SPECIFICALLY THE STANDARD OF REVIEW FOR A COURT'S DETERMINATION WHETHER SOMEONE IS OR ISN'T AN INSIDER. UM... WHAT DOES IT MATTER IF SOMEONE IS AN INSIDER? WHY DOES IT MATTER? SO, THE CODE PLACES CERTAIN RESTRICTIONS ON THOSE WHO ARE DEEMED TO BE INSIDERS, AND THE CODE HAS A STATUTORY DEFINITION OF "INSIDER," BUT THERE ARE ALSO NON-STATUTORY INSIDERS, AND COURTS HAVE DEVELOPED TESTS FOR DETERMINING IF SOMEONE IS A NON-STATUTORY INSIDER. AND THOSE TESTS TEND TO FOCUS ON WHETHER THE TRANSACTION WAS DONE AT ARM'S LENGTH BETWEEN THE DEBTOR AND THE OTHER PERSON. SO, HOW DID THE BANKRUPTCY COURT IN THIS CASE DECIDE WHETHER SOMEONE WAS AN INSIDER? SO, IN THIS CASE, THE DEBTOR PROPOSED A PLAN OF REORGANIZATION, AND THE PLAN CLASSIFIED THE CREDITORS INTO TWO CLASSES, AND BOTH CLASSES WERE IMPAIRED. ONE OF THE TWO CREDITORS OBJECTED TO THE PLAN, WHICH MEANT THAT THE DEBTOR HAD TO ATTEMPT CONFIRMATION THROUGH CRAM DOWN, AND FOR CRAM DOWN, AT LEAST ONE IMPAIRED CLASS OF CREDITORS HAS TO CONSENT TO THE PLAN, AND INSIDERS DON'T COUNT. SO THE CONSENTING CREDITOR TRANSFERRED ITS CLAIM TO ANOTHER PERSON, AND SO THE QUESTION THEN BECAME "WAS THE PURCHASER OF THAT CLAIM ALSO AN INSIDER?" AND THERE WERE SOME FACTS THAT INDICATED THAT HE MIGHT BE BECAUSE THE CLAIM WAS PURCHASED FOR A SIGNIFICANT DISCOUNT AND BECAUSE HE HAD BEEN INVOLVED IN A ROMANTIC RELATIONSHIP WITH SOMEONE WHO WAS AN OFFICER OF THE DEBTOR AND ON THE BOARD OF DIRECTORS OF THE SELLER/CREDITOR. SO, IN THIS CASE, THE BANKRUPTCY COURT APPLIED A 2-PART TEST TO DETERMINE IF THIS PERSON WAS A NON-STATUTORY INSIDER. THE FIRST PART OF THE TEST LOOKED AT WHETHER THE PERSON WAS IN A RELATIONSHIP WITH THE DEBTOR THAT WAS SIMILAR TO SOME OF THE ENUMERATED RELATIONSHIPS FOR INSIDERS IN THE CODE. THE SECOND PRONG OF THE TEST LOOKED AT WHETHER THE TRANSFER THAT WAS AT ISSUE IN THE CASE WAS DONE AT ARM'S LENGTH. SO THE BANKRUPTCY COURT REALLY FOCUSED ON THAT SECOND PRONG OF THE TEST AND DETERMINED THAT IN THIS CASE, THE TRANSFER WAS DONE AS THOUGH THE TWO WERE STRANGERS TO ONE ANOTHER, BASED ON THE FACT THAT THE FINANCES OF THE PURCHASER OF THE CLAIM AND THE PERSON THAT HE WAS ROMANTICALLY INVOLVED WITH ON THE SELLER'S SIDE WERE SEPARATE AND BECAUSE HE HAD DONE DUE DILIGENCE BEFORE PURCHASING THE CLAIM. AND THE NINTH CIRCUIT AFFIRMED THE BANKRUPTCY'S COURT'S FINDINGS BASED ON CLEAR ERROR REVIEW. SO DID THE COURT THINK THAT THE NINTH CIRCUIT APPLIED THE CORRECT STANDARD IN REVIEWING THE COURT'S...UM... DECISION, WHICH WAS CLEARLY A QUESTION OF FACT IN LAW? YEAH. SO THE COURT SAID THAT THE STANDARD OF REVIEW REALLY DEPENDS ON WHETHER THE QUESTION THAT THE COURT DECIDED WAS PRIMARILY A QUESTION OF FACT OR PRIMARILY A QUESTION OF LAW. AND IT DETERMINED THAT GIVEN THE NATURE OF THE QUESTION HERE-- WAS THIS PURCHASE DONE AS THOUGH THE TWO PARTIES WERE STRANGERS-- WAS REALLY A QUESTION OF FACT AND INVOLVED VERY LITTLE LEGAL ANALYSIS, SO THE COURT SAID THAT WAS APPROPRIATE FOR CLEAR ERROR REVIEW. WIGGINS: OK, SO I GUESS WHAT I'M INTERESTED IN IS DOES THIS DECISION MEAN THE NINTH CIRCUIT'S LEGAL TEST IS THE CORRECT ONE, AND IS THE ISSUE SETTLED? NO. SO THE COURT GRANTED CERT ON THE QUESTION OF WHETHER THE NINTH CIRCUIT USED THE CORRECT STANDARD OF REVIEW. IT DID NOT GRANT CERT TO DETERMINE WHETHER THE TEST THAT WAS APPLIED IS THE CORRECT TEST. AND, IN FACT, THERE WERE TWO CONCURRING OPINIONS, AND BOTH OF THEM SUGGESTED THAT THE COURT HAD SOME CONCERNS ABOUT THE TEST THAT WAS APPLIED HERE. SO, IN JUSTICE KENNEDY'S CONCURRENCE, HE EXPLICITLY NOTED THAT THE HOLDING IN THE CASE SHOULD NOT BE READ TO INDICATE THAT THE COURT THOUGHT THIS WAS THE RIGHT TEST. AND THEN IN JUSTICE SOTOMAYOR'S CONCURRENCE, WHICH WAS JOINED BY 3 OTHER JUSTICES, SHE NOTED THAT THERE WERE CONCERNS ABOUT THE TEST, AND THAT IF IT TURNS OUT THIS IS NOT THE RIGHT TEST TO APPLY, THEN THE CORRECT TEST MAY ACTUALLY INVOLVE A DIFFERENT MIX OF LEGAL AND FACTUAL QUESTIONS, WHICH WOULD THEN, PERHAPS, REQUIRE A DIFFERENT STANDARD OF REVIEW. OK, WELL, WHY DON'T WE MOVE ON TO THE THIRD CASE-- "LAMARR, ARCHER, AND COFRIN V. APPLING," WHICH CONCERNED THE NONDISCHARGABILITY OF DEBTS UNDER 523(a)(2). SO WHAT KINDS OF DEBTS ARE NONDISCHARGEABLE UNDER THAT PROVISION? SO THAT PROVISION PREVENTS THE DEBTOR FROM DISCHARGING TWO TYPES OF DEBTS: ONE IS WHERE THE DEBTOR OBTAINED THE MONEY, PROPERTY, OR SERVICES BASED ON FALSE PRETENSES, MISREPRESENTATION, OR ACTUAL FRAUD. THE SECOND CATEGORY OF DEBTS THAT CAN'T BE DISCHARGED ARE WHERE THE DEBTOR OBTAINED THE MONEY OR PROPERTY BASED ON A MATERIALLY FALSE STATEMENT THAT IS MADE IN WRITING RESPECTING THE DEBTOR'S FINANCIAL CONDITION. OK, SO THE DEBTOR HERE, APPLING, TOLD HIS LAWYERS THAT HE WOULD PAY HIS PAST LEGAL FEES AND SOME FUTURE LEGAL FEES WITH A TAX RETURN HE EXPECTED, BUT HE DIDN'T DO THAT. AND SO, ACCORDING TO THE COURT, DID THIS FALSE STATEMENT PREVENT APPLING FROM DISCHARGING THE DEBT HE OWED TO HIS ATTORNEYS? SO THE COURT SAID NO, AND THAT WAS BECAUSE IT DETERMINED THAT THE STATEMENT HE MADE, WHICH REALLY INVOLVED ONLY A SINGLE ASSET OF THE DEBTOR'S-- SO A STATEMENT ABOUT HIS TAX RETURN REFUND-- THAT THAT WAS A STATEMENT RESPECTING THE DEBTOR'S FINANCIAL CONDITION, AND IT TURNED ON THE QUESTION OF "WHAT DOES RESPECTING MEAN?" AND THE COURT SAID "RESPECTING" HAS ITS ORDINARY MEANING, WHICH INDICATES THAT IF A SINGLE ASSET IMPACTS OR HAS SOME BEARING ON THE DEBTOR'S FINANCIAL STATUS, THEN A STATEMENT ABOUT THAT ASSET IS A STATEMENT RESPECTING THE DEBTOR'S FINANCIAL CONDITION, AND THE COURT NOTED THAT ITS HOLDING WAS GROUNDED, ALSO, IN THE LEGISLATIVE HISTORY OF THAT PROVISION OF THE CODE. - THANK YOU, ANNE. - THANK YOU.

Contents

Background

Amendment 44 was placed on the ballot in August, after the group Safer Alternative For Enjoyable Recreation (SAFER) obtained over 129,000 petition signatures through a largely grassroots organization. Only 68,000 were required by the Secretary of State.

Existing Colorado law classifies possession of one ounce or less of marijuana as a Class 2 petty offense punishable by a fine of $100. If passed, Amendment 44 would decriminalize possession of one ounce or less by adults 21 years of age and over by removing any fine or penalty; although, it would have no effect on the cultivation, transfer, or sale of marijuana.

Controversy over Colorado Blue Book

One issue under contention is how the amendment might be interpreted with regard to transferral of marijuana to minors over 15 years of age. The "Blue Book" voter information pamphlet, a comprehensive guide to ballot measures distributed to voters, states "transferring up to one ounce of marijuana to another individual 15 years of age or older as long as there is no compensation" would be decriminalized under Amendment 44.[3] Others, including the amendment's supporters, claim this interpretation is false, and such transferral to minors would continue to be illegal, as it falls under the category of contributing to the delinquency of a minor, a felony offense under existing law.[4][5]

Opinions

Support

Groups in favor of Amendment 44 include Sensible Colorado, a group favoring the legalization, regulation, and taxation of marijuana much in the same manner as alcohol.,[6] the state Libertarian Party,[7] and the US Marijuana Party, among others.

Supporters argue that the War on Drugs has failed, resulting in the empowerment of organized crime, and that a new more effective policy is needed. It is argued that legalizing small amounts of marijuana would free law enforcement resources to deal with more serious offenses. Some supporters also consider marijuana to be less harmful then other types of illegal narcotics, alcoholic beverages or tobacco use.[8]

Opposition

Groups opposing Amendment 44 include Guarding Our Children Against Marijuana (GOCAM), Drug Watch Colorado, and Students Against Marijuana, among others.[8]

Opponents argue that marijuana serves as a gateway drug to other types of illegal narcotics, and that legalization of marijuana would increase other types of drug use and make the state a magnet for addicts; however, there is no evidence marijuana is a gateway drug.[9][10][11][12] It is argued that as with alcohol, sobriety is the only safe alternative, and existing drug laws should be enforced. Opponents also state that the costs of enforcement are minimal compared to the costs of drug addiction and treatment, as well as the fact that legalization at the state level would not affect federal laws and international treaties concerning marijuana.[8]

Some employees of the Drug Enforcement Administration were reported to have been financing opposition to Amendment 44, a move which generated significant controversy.[13]

See also

References

  1. ^ Colorado 2006 > Ballot Measures > Amendment 44: Legalize Marijuana from followthemoney.org
  2. ^ "Ballot Measures: Colorado Amendment 44". CNN. Retrieved 2007-03-20.
  3. ^ "Analysis of the 2006 Ballot proposals" (PDF). Colorado Legislative Council. Archived from the original (PDF) on 2007-02-06. Retrieved 2007-03-23. External link in |publisher= (help)
  4. ^ "Ambushing the pot initiative". Rocky Mountain News.
  5. ^ "Up in Smoke?". Fort Collins Weekly.
  6. ^ "Colorado Marijuana Initiative". Sensible Colorado. Archived from the original on 2005-02-05. Retrieved 2006-09-07.
  7. ^ "Ending the game of Marijuana prohibition in Colorado" (PDF). Sensible Colorado. Libertarian Party of Colorado. Archived from the original (PDF) on 2006-09-06. Retrieved 2006-09-07.
  8. ^ a b c "Amendment 44 Marijuana Possession" (PDF). Colorado Ballot Analysis, Final Draft. Colorado General Assembly. Retrieved 2006-09-07.
  9. ^ "Evaluating alternative cannabis regimes" (PDF). British Journal of Psychiatry. 2001. Retrieved 2007-03-31. External link in |journal= (help)
  10. ^ Jennifer McNulty (2004-05-03). "Dutch drug policies do not increase marijuana use, first rigorous comparative study finds". UC Santa Cruz Currants. Archived from the original on 2007-03-11. Retrieved 2007-03-20. External link in |publisher= (help)
  11. ^ "The Limited Relevance of Drug Policy: Cannabis in Amsterdam and in San Francisco" (PDF). American Journal of Public Health. 2004. doi:10.2105/ajph.94.5.836. PMC 1448346. Retrieved 2007-03-20.
  12. ^ "Marijuana and Medicine: Assessing the Science Base". National Academies Press. 1999. Retrieved 2007-03-30.
  13. ^ "DEA should keep out of state politics". Rocky Mountain News. 2006-08-30. Archived from the original on 2006-09-01. Retrieved 2006-09-07.
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