Monday, August 31, 2009

Pay As You Drive Auto Insurance: Be Afraid, Be Very Afraid

Please welcome the latest invasion of our privacy. It’s called Pay As You Drive (PAYD) auto insurance. The concept is a simple one: a customer’s premium is tailored to his/her driving habits. This includes the number of miles driven, and also often includes the style (i.e. speed and acceleration) and time of driving. Many insurance carriers allow their customers to voluntarily select a PAYD plan. For example, Progressive offers the “My Rate” Program, and the company’s website boasts that “[i]f you’re a safe and/or occasional driver, you could pay less for auto insurance- a lot less!” In return for the discounted auto insurance, however, customers sacrifice their privacy. GPS tracking devices are installed to register customers’ driving habits. Is a better rate on auto insurance really worth sacrificing the constitutionally protected right to privacy?

Although programs like Progressive’s “My Rate” are cause for concern (especially in this harsh economic climate where we’re all trying to save a buck), proposed legislation in California downright scares me. The proposal allows an insurer to offer self-reported estimated mileage plans (“EM”) and/or actual-mileage driven plans (“AMD”). An insurer may exclusively offer AMD plans, and, may, in turn, mandate the installation of GPS tracking devices. Insurance companies understandably wish to attain the most information possible so as to accurately measure a policyholder's risk. But, with increased technology, the question becomes how much is too much? We don’t want insurance companies knowing every detail of our personal life, no matter how helpful it may be for calculating risk.

There are not any direct constitutional issues, as the constitution obviously does not limit private companies and individuals. However, with PAYD, insurers will have access to information such as speed and style of driving (and maybe even location, although supposedly the location of the vehicle will be left out of the data collected), and it is hard to imagine that the government wouldn’t try to get its hands on such information. For example, if the government is prosecuting an individual for vehicular manslaughter, it would likely seek to subpoena the information collected by PAYD insurers--information that would be more readily available than it would generally be.

There are, to be sure, benefits that come along with PAYD auto insurance. At least theoretically, those with PAYD policies will curtail the amount they drive, and, thus, reduce carbon dioxide emissions. However, if the insurance market becomes dominated by AMD plans, our privacy will be seriously jeopardized. Do the potentially lower insurance rates and environmental benefits justify an infringement on our constitutional right to privacy?

Update: New Blogger Position

Due to a high volume of outstanding applications, we have decided to extend offers for two contributing editors to join our team. As noted in the prior posting, please send a resume and writing sample to The writing sample should showcase legal writing abilities and may include, for example journal comments, memoranda, or briefs prepared for a class.

Thanks again for all of the interest.

Friday, August 28, 2009

Wait! I thought having liberals in the Government would result in greater liberality...

My adoring fans: Have no fear, your beloved Frederic is back for another (long, grueling, dispiriting, depressing, etc.) year of law school. Accordingly, let us begin this first weekend of the school year with a "BANG!" Here is the link to an interesting article I read earlier this morning.

Maybe one of the BBL community can enlighten us on the Constitutional issue(s) apparent in the article. I guess I missed the day in ConLaw where the President was allowed to have the powers of Caesar and Cincinnatus in repelling "cyber-attacks."

Thursday, August 27, 2009

Souter Blocks Access to His Records for a Long Time

Retiring Supreme Court Justices traditionally block access to their papers for a while after leaving the bench. Recently-retired Justice David Souter, however, has elected to block everyone--including historians and media personnel--from accessing his personal records for an extraordinary amount of time: 50 years. From
The unusually severe bar on access is surprising in one sense, but very Souter-esque in another. Souter is an avid historian . . . [and] knows well the "call of history," the obligation of historical figures and public officials to help flesh out the how and why of important events. But Souter is also an intensely private person, especially protective of the Supreme Court on which he served for 19 years. He was a lifelong diarist and may have decided that his files were too sensitive to be made public while any of his colleagues or many of his law clerks are still alive.
Some were not too pleased with the news. Linda Greenhouse, former New York Times reporter and writer of the 2005 book, Becoming Justice Blackmun, reasonably noted that "[t]here must have been a targeted way that Justice Souter could have removed memos or other information that he didn't want to make public, while at the same time not locking away for the next two generations the records of a fascinating period in Supreme Court history."

While I suppose his papers could be inadvertently released from their interim resting place at the New Hampshire Historical Society library in Concord, I gather it's more likely that I must wait until age 73 to read the Justice's thoughts on major cases, his colleagues, and the Court during the Rehnquist/Roberts era.

Wednesday, August 26, 2009

New Contributing Blogger Position Available

BBLer's, due to high article demand from our readers, we have decided to institute a search for a new contributing blogger. Prospective bloggers must send a resume and a brief writing sample to The position will entail requirements of both posting a minimum of one article per week and writing at least one short substantive legal analysis piece per month. Citations and format matters on the legal analysis piece are reviewed internally, so that requirement should not be too onerous.

Be sure to read our policy and mission before applying. We look forward to hearing from all of you. Cheers!

Sunday, August 23, 2009

A Troubling Statistic posted an article discussing a very disconcerting--yet perhaps, unsurprising--statistic released by Gallup: roughly 25% of Americans currently have a favorable or "positive" view of the legal profession. This finding is particularly troubling given that, as the article notes, "the banking industry--linked to the current foreclosure crisis and our widespread economic woes--ranked higher than lawyers with . . . 28 percent holding a positive image." Unfortunately, common misconceptions seem to drown out any good that lawyers add to the world.

I guess this begs the question of what good fixating on prestige is if the rest of the country does not fixate with you...

Thursday, August 20, 2009

Is Justice Sotomayor Really Diverse?

I'll be honest--I was happy to see Justice Sotomayor get the nod, and confirmation, to SCOTUS as she obviously brings many levels of diversity to the Court. This, in my opinion, is wonderful. It is essential that the Justices of this nation’s highest court have the experiences necessary to adequately address a wide range of legal issues.

My emphasis on diversity is largely attributed to my belief that all judges, to varying extents, practice judicial activism. Everyone, even the strictest textualist, has his/her legal analysis shaped by his/her policy views in some, however remote, manner. Like it or not, the policy views of the Justices drastically affect their constitutional interpretation. Therefore, due to the pervasiveness of judicial activism, it’s imperative that the Court be comprised of legal scholars with varying backgrounds so as to ensure that one set of policy views does not guide the Court’s legal analysis. A homogeneous Court is not ideal for this country.

In addition to being a brilliant legal mind, Jusice Sotomayor brings a truly unique background to the Court. From her gender and ethnicity to her impoverished childhood, Justice Sotomayor’s appointment has helped ensure that the Court be anything but homogeneous, and this should be applauded.

However, Justice Sotomayor lacks diversity in one key area: her legal education. She graduated from Yale Law School in 1979. Justice Sotomayor’s Yale Law pedigree means that eight of the nine current Justices attended Harvard or Yale Law School (granted, Justice Ginsburg transferred to Columbia after her first year at Harvard). It may seem trivial to dwell on such an issue. After all, Yale and Harvard are the nation’s preeminent law schools and it only makes sense that the Justices possess the most accomplished educational backgrounds. However, when one understands that policy views play a vital role in the Justices’ legal analysis, it has to seem a bit odd that so many Justices received their legal training (or legal indoctrination, if you will) at the same institutions. Seven of the eight current Justices who attended Harvard or Yale Law School graduated in the ‘60s or ‘70s, meaning that they were likely taught by many of the same professors. These professors undoubtedly played a role in molding their legal minds.

I’m not arguing that the appointment of the next Justice come from a tier three law school for the sake of diversity. I merely think that too much emphasis is put on a Harvard or Yale Law pedigree, particularly by the media. Although Justice Sotomayor is extremely deserving of her appointment, it’s important to remember that there were several other equally impressive potential nominees that did not possess the Harvard/Yale Law pedigree. See, e.g., David Tatel (Chicago ’66); Diane Wood (Texas ’75); Leah Ward Sears (Emory ’80); Kim McLane Wardlaw (UCLA ’79); and Margaret McKeown (Georgetown ’75).

Tuesday, August 18, 2009

Supreme Court Habeas Order Highlights Legal Ambiguity?

On Monday, the Supreme Court ordered the United States District Court for the Southern District of Georgia to review death row inmate Troy Davis’ conviction by “mak[ing] findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [his] innocence.” In re Davis, No. 08-1443, slip op. at 1 (U.S. Aug. 17, 2009). The order, as the New York Times reports, “set off a sharp debate between Justices John Paul Stevens and Antonin Scalia about Supreme Court procedure, the reach of a federal law meant to limit death row appeals and the proper treatment of claims of innocence.” The Times’ discussion provides a good summary of the legal squabble, but what I find most interesting is the subtext concerning the import of Teague v. Lane, 489 U.S. 288 (1989) with respect to the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Indeed, while Justice Scalia’s most scathing objection to the Court’s order is that habeas relief would be categorically unavailable under 2254(d)(1), see Davis, slip op. at 2 (Scalia, J., dissenting), there is some--albeit largely academic--support for the exact opposite proposition.

In Teague, the Court crafted two exceptions to the then-exclusive rule against retroactive application of the law for habeas petitioners: a new legal rule should be applied retroactively for the petitioner's benefit only if (1) “it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe’” or (2) “requires the observance of ‘those procedures that . . . are ‘implicit in the concept of ordered liberty.’” Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692, 693 (1971)). In 1996, Congress passed AEDPA which, by its terms, bars habeas relief “with respect to any claim that was adjudicated on the merits unless the adjudication . . . resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

Some, however, including contributing editors of this blog, have opined that the exceptions from Teague would be imputed into AEDPA. See, e.g., Sharad Sushil Khandelwal, Note, The Path to Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(d)(1), 96 Mich. L. Rev. 434, 440 n.45 (1997) (“[W]hen Congress used the phrase ‘clearly established,’ it meant to codify the entire Teague doctrine, including the exceptions.”). And many lower court cases addressing the issue hedge in a manner that implies tacit acceptance of Teague’s possible applicability to 2254(d)(1). See, e.g., Mungo v. Duncan, 393 F.3d 327, 334-35 (2d Cir. 2004) (“In any case, whether § 2254(d)(1) was intended, or out of prudence should be read, to adopt the Teague exceptions is a question we need not answer because we conclude that the . . . rule does not qualify as . . . coming within the exception to Teague.”).

But while relief for Davis could very well be permissible under at least one of the Teague exceptions given that the question is whether an “actually innocent” individual could be punished with death, any such discussion is conspicuously absent from both Justices’ opinions. Justice Scalia treats the issue as a simple application of a bright line statutory rule: “A state court cannot possibly have contravened, or even unreasonably applied ‘clearly established Federal law as determined by the Supreme Court of the United States’ by rejecting a type of claim that the Supreme Court has not once accepted as valid.” Davis, slip op. at 2 (Scalia, J., dissenting). Justice Stevens, on the other hand, takes the perspective that the lower court could find Davis entitled to relief based on clearly established principles that it is unconstitutional to execute an innocent individual or because any contrary interpretation would be unconstitutional. See id. (Stevens, J., concurring).

Notwithstanding the fact the opinions are cursory and only filed alongside an order, the lack of discussion of a plausible statutory basis for being able to grant relief strikes me as curious in light of the issues raised.

Sunday, August 16, 2009

Supreme Court calls on former clerks . . . Oh, and by the way, we're back

After a fairly long--and for us, taxing--hiatus, the team at Blackbook Legal is back in business and ready to dive into the interesting legal issues of the day. We want to really thank all of our avid readers who have stuck it out with us during our brief hibernation. While our site traffic declined slightly in the past few months, many still perused our old threads, and kept the discussions alive. Moreover, we have a substantial number of e-mail requests for articles which we will publish in the due course.

As a cool kick-off article, I thought I would direct readers to a story I saw over at The article discusses the custom practice of Supreme Court Justices requesting that former clerks argue cases that others have simply abandoned. Justice Stevens provides the most recent example of this practice by his offer to Amanda Cohen Leiter, former clerk and current professor at Catholic University's Columbus School of law, to make her first oral argument before the Supreme Court. So this is one cool long-term perk of landing a Supreme Court clerkship that
[m]ost often . . . happens because the government no longer embraces the position it would be expected to espouse at argument. Rather than dismiss the case, the Court will name a lawyer -- almost always a former clerk -- to advance the orphaned argument, guaranteeing a full airing of both sides.
Indeed, esteemed appellate practitioners like John Roberts and Maureen Mahoney got their first case assignments this same way. Check out the article.