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Criminal Law & Procedure

“The Case of the Speluncean Explorers" -- The Classic Law Review Article Revisited - Podcast

Professional Responsibility & Legal Education Practice Group Pocast
James Allan, James A. Haynes, Dan Priel, Frederick Schauer June 24, 2015

It is the year 4300 in an imaginary jurisdiction named Newgarth. Old questions dominate the deliberations of the Supreme Court as Chief Justice Truepenny and his four colleagues present their opinions in the appeal of a notorious murder verdict. Each Justice presents and defends his analysis and disposition of the appeal. The opinions offer considered views of law, justice, judges' work and larger public opinion. No pale pastels for the Truepenny Court, as its members alternately resort to the broad brush and the fine scalpel. The final effect is one of a well written teaching tool and also an essay on our flawed human condition.

Prof. Lon L. Fuller, in his article, “The Case of the Speluncean Explorers,” presented his ideas in the form of a dialogue, without footnotes. The Harvard Law Review published it in February 1949. In a sense it is a work of moral imagination. In another sense it is so dated as to be almost antiquarian. The members of Supreme Court of Newgarth are male and the legal analysis they offer and the language they use are distinctly old-fashioned. In some quarters it would be regarded as a discredited tool of oppression. That said, Prof. Fuller still entertains and teaches the reader, 65 years later. The questions and worries that lawyers and judges share with the Justices of Newgarth still loom in the 21st century.

Our discussion panel was composed of legal scholars from Canada, Australia, and the United States. In a real sense, its diversity shows the continuing relevance and appeal of this legal classic.

  • Prof. James Allan, Garrick Professor of Law, University of Queensland, TC Beirne School of Law
  • James A. Haynes, Attorney and Alternate Judge, U.S. Department of Labor, Employees Compensation Appeals Board
  • Prof. Dan Priel, York University Osgoode School of Law
  • Prof. Frederick Schauer, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law

Immigration Cases in the Supreme Court - Podcast

International & National Security Law Practice Group Podcast
John C. Eastman June 23, 2015

On June 15, 2015, the U.S. Supreme Court issued ruling in two important immigration cases: Mata v. Lynch and Kerry v. Din.

In Mata v. Lynch, the Court overturned the Fifth Circuit’s refusal to hear an appeal of the Board of Immigration Appeals’ decision to dismissal of Noel Reyes Mata’s request to appeal his deportation to Mexico, holding that the Fifth Circuit erred in declining to take jurisdiction over Mr. Mata’s appeal.

In Kerry v. Din, the Court overturned the Ninth Circuit’s ruling that petitioner Fauzia Din was denied constitutional due process protections when her husband, Kanishka Berashk, a resident citizen of Afghanistan and a former civil servant in the Taliban regime, was denied an immigration visa to the United States on the grounds that he was inadmissable under American law that excludes aliens who have engaged in “[t]errorist activities,” and when Mrs. Din and Mr. Berashk were subsequently denied review of their appeal in U.S. District Court. The Court held that the U.S. Government’s long practice of regulating immigration, which has included erecting serious impediments to a person’s ability to bring a spouse into the United States, precludes Mrs. Din’s claim.

Our expert, Chapman University School of Law Prof. John C. Eastman, analyzed these opinions and offered his perspectives of their impact on immigration policy.

  • Prof. John C. Eastman, Director, Center for Constitutional Jurisprudence, Henry Salvatori Professor of Law and Community Service, Chapman University Dale E. Fowler School of Law

Ohio v. Clark - Post-Decision SCOTUScast

SCOTUScast 6-23-15 featuring Michael O'Shea.
Michael O'Shea June 23, 2015

On June 18, 2015, the Supreme Court decided Ohio v. Clark. This case involved two questions regarding the Sixth Amendment’s Confrontation Clause: (1) whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause. The Supreme Court of Ohio rejected Clark’s challenge to his conviction on these grounds.

The United States Supreme Court reversed the judgment of the Supreme Court of Ohio by a vote of 9-0 and remanded the case. In an opinion delivered by Justice Alito and joined by the Chief Justice and Justices Breyer, Kennedy, Sotomayor, and Kagan, the Court held that because neither the child nor his teachers had the primary purpose of assisting in Clark’s prosecution, the child’s statements did not implicate the Confrontation Clause and therefore were admissible at trial. Justice Scalia, joined by Justice Ginsburg, filed an opinion concurring in the judgment.  Justice Thomas also filed an opinion concurring in the judgment. 

To discuss the case, we have Prof. Michael O’Shea, who is a Professor of Law at the Oklahoma City University School of Law. 

Elonis v. United States - Post-Decision SCOTUScast

SCOTUScast 6-11-15 featuring John Elwood and Kent Scheidegger
John Elwood, Kent S. Scheidegger June 11, 2015

On June 1, 2015, the Supreme Court issued its decision in Elonis v. United States. This case involves two questions. First, this case asks whether the First Amendment requires proof of the defendant’s subjective intent to threaten in order to convict someone of threatening another person under 18 U.S. C. § 875(c), or whether it is sufficient to demonstrate that a “reasonable person” would consider the statement to be threatening. The second question in this case is whether, as a matter of statutory interpretation, conviction of another person requires proof of the defendant’s subjective intent to threaten.

In an opinion delivered by the Chief Justice, the Court held that general intent is not sufficient to support a conviction under 18 U.S.C. 875(c) and that the imposition of criminal penalties under the statute requires proof of a “guilty mind.” 

Chief Justice Roberts’ opinion for the Court was joined by Justices Scalia, Kennedy, Kagan, Ginsburg, Breyer, and Sotomayor. Justice Alito filed a separate opinion concurring in part and dissenting in part. Justice Thomas filed a dissent. 

To discuss the case, we have Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation and John Elwood, Partner, Vinson & Elkins LLP.

Supreme Court Rules on Facebook Threats – Elonis v. United States - Podcast

Criminal Law & Procedure Practice Group Podcast
John Elwood, Kent S. Scheidegger June 09, 2015

On Monday, June 1, the U.S. Supreme Court overturned the conviction of Anthony Douglas Elonis, who was prosecuted under a 1939 law prohibiting the communication of threats for allegedly threatening his estranged wife via Facebook. Has the Supreme Court clarified the legal status of violent speech on the internet, or merely added to the confusion? Our experts discussed the opinion and its implications.

  • John Elwood, Partner, Vinson & Elkins LLP
  • Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation