Topic: Law and Civil Liberties

Chavez: Do We Need Any More Evidence?

In his three-hour inaugural address — yet another characteristic he shares with his hero, Fidel Castro — Venezuelan strongman Hugo Chavez eliminated any remaining doubt about his plans to rule as a socialist dictator. Yet some journalists still can’t bring themselves to speak truth about power.

Take the Washington Post, for instance. Reporter Juan Forero’s story is headlined “Chavez Would Abolish Presidential Term Limit.” He notes Chavez’s stirring mantra, borrowed from Castro: “Socialism or death!” He reports:

All week in Caracas, Chavez has shaken markets and angered the Bush administration by promising to nationalize utilities, seek broader constitutional powers and increase the state’s control of the economy. He has also frequently referred to the new, more radical phase in what he calls his revolution — drawing comparisons with Castro’s famous declaration on Dec. 2, 1961: “I am a Marxist-Leninist and will be one until the day I die.”

But then in the next paragraph Forero cautions:

If the theatrics are similar, however, the apparent goal is not. Chavez stresses that Venezuela will remain a democracy, and analysts do not believe his government will embark on a wholesale expropriation of companies, as Castro’s government set out to do soon after taking power in 1959.

Remain a democracy, eh? Well, that’s good news.

At the end of his article, Forero does note:

He has installed military officers in all levels of government and packed the Supreme Court, and now says he will end the autonomy of the Central Bank.

Good thing Venezuela is going to remain a democracy, or those actions could be worrisome.

In his 1,000-word story, Forero failed to note a key point that other journalists pointed out: Chavez said he would  ask the National Assembly, all 167 of whose members are his supporters, for special powers allowing him to enact a series of “revolutionary laws” by decree.

What more would it take for a journalist to conclude that Chavez’s “apparent goal” is the same as Castro’s and that, of course, he does not intend for Venezuela to “remain a democracy”?

Even people usually thought of as on the left have viewed Chavez’s consolidation of power with alarm. Human Rights Watch yesterday issued a report saying that Chavez and his supporters “have sought to consolidate power by undermining the independence of the judiciary and the press, institutions that are essential for promoting the protection of human rights.”

In a recent study for the Cato Institute, Gustavo Coronel, former Venezuelan representative to Transparency International, shows that “corruption has exploded to unprecedented levels…and Chávez has created new state-run financial institutions, whose operations are also opaque, that spend funds at the discretion of the executive.”

We know from theory and history that socialism — state ownership of the means of production and the attempt to eliminate for-profit economic activity — leads inevitably to tyranny. We saw it in Russia, China, and Cuba. We know that Cuba is one of the poorest countries in the world after almost 50 years of Castro and that its people daily risk their lives in rickety boats to escape.

Chavez has promised to bring socialism to Venezuela. If he succeeds, we know that the result will be tyranny. But meanwhile, he’s not waiting for the advent of socialism. He has packed Congress and the Supreme Court with his supporters. He has installed his military officers in all levels of government. He is trying to end the autonomy of the Central Bank, nationalize major industries, abolish constitutional limits on presidential tenure, and perhaps most clearly, get his followers in Congress to give him the power to rule by decree.

“Remain a democracy” indeed.

It’s Not Just About Nifong, Part I

Last month, District Attorney Michael Nifong announced that he will not be bringing rape charges against the Duke University lacrosse players. (Other criminal charges are still pending). Nifong himself is under fire for his handling of the case. Conservative scholar Thomas Sowell says Nifong should be removed from office and disbarred. Fox’s Bill O’Reilly goes further and says Nifong should be jailed. (For details on this case, start here).

Nifong’s actions should be scrutinized and he should be held accountable for any wrongs he has committed. However, since this criminal case is receiving national attention, it is important that this matter be placed in its proper context. It would be a mistake for any observer to sigh and say, “It’s so unfortunate that these young men were unlucky enough to be (a) falsely accused and (b) find themselves in the jurisdiction of a ‘rogue’ prosecutor.” That’s only part of the picture. The case is not just about Nifong. The laws and policies that are in place too often allow miscarriages of justice to take place.

Today, I will examine the law concerning speedy trials in North Carolina.

The criminal charges against the Duke students are based upon allegations arising from a party on the night of March 13-14, 2006. It will be a year before the criminal trial gets underway–so laypeople may be curious to know how the speedy trial protection comes into play. Unfortunately, this constitutional “guarantee” has lost its vitality.

Four years ago, the Supreme Court of North Carolina decided a case called State of North Carolina v. Henry Bernard Spivey. It is quite a story, which I will summarize below. (For those interested in reading the full legal opinion, go here. The legal citation is: 579 S.E.2d 251 (2003).)

The case began in October of 1994 when police officers arrested Henry Bernard Spivey, locked him up, and charged him with a crime. After that, no action was taken.

Weeks and weeks go by–no action.

Then months and months pass–no action.

After a full year goes by, Spivey, who has no formal education, writes out his own rudimentary legal motion to the court which he titles “Requesting a Prompt and Speedy Trial.” In this motion, Spivey explains that nothing is happening on his case. Prosecutors are not doing anything. His own court-appointed lawyers are not doing anything. Spivey basically says the Constitution says that he is supposed to “enjoy” a right to a speedy trial … I have been locked up for a year and I would like my trial.

Spivey’s motion is totally ignored.

Two more years pass! Then, Spivey’s court-appointed attorneys wake up and make a formal legal motion to dismiss the case because his right to a speedy trial has been violated.

No one is in any hurry to respond to this legal motion. Eight more months roll by until the court schedules a hearing on the speedy trial motion.

At this hearing, the judge listens to the arguments from the defense and the prosecution. The judge concludes that he needs further briefing on the legal issues and documentation from the court records to verify Spivey’s claims.

At this juncture, one would think that the court would reconvene in a week, check the documentation, and resolve the issue before the court. It did not happen. Another entire year goes by until the case is reheard by a different judge. At this hearing, prosecutors admit that the prisoner, Spivey, has now been in jail for four and a half years without a trial. They admit that, but they do not concede that the prisoner has been denied a speedy trial.

The attorneys representing the State of North Carolina say Spivey has not proven any “wilful misconduct” by the government. And besides, the courthouse is clogged with cases and there are staffing shortages. Under these circumstances, delays are inevitable. Thus, there is no speedy trial violation.

The trial judge agrees with the state’s argument. Spivey’s constitutional argument is rejected.

Spivey’s attorneys appeal, but the trial court is affirmed. Spivey’s attorneys then take the case to the Supreme Court of North Carolina, but that court also affirms the ruling of the trial court.

Two justices dissent from the ruling. The dissenters point out that the idea behind the speedy trial guarantee goes all the way back to Magna Carta. They said the prosecutors in this case either did not recognize the problem that they were creating for themselves–or they ignored it. Either way, a crowded court docket cannot justify a delay of four years. The justices said they doubted whether a single citizen in the state would find the delay acceptable if it concerned a spouse–or a son or daughter who was waiting for their day in court. The dissenters also wondered about the ramifications of the ruling. What if the backlog of cases continues–or gets even worse? In the year 2020, will seven year delays become an accepted norm? The majority of the North Carolina Supreme Court did not respond to those questions.

State of North Carolina v. Spivey established a legal precedent in North Carolina for resolving speedy trial disputes.

That was 2003. Now speed up to the Duke University case. One of the accused students, confident of his innocence, requested a speedy trial. Prosecutor Nifong responds by saying that he does not want to have a quick trial. He would rather wait a year and try all of the students together. The judge must decide this dispute. The judge checks the precedents and denies the motion for a speedy trial. And his decision is legal and constitutional because of the Spivey precedent.

Practical result: Prosecutors in North Carolina have the power to drag a person’s name through the mud for a long time before they have to prove their allegations in court.

Attorney General Gonzales and Mail Openings

The New York Daily News is reporting that the Bush administration has asserted the legal authority to search and inspect the mail without having to get search warrants. 

There is an “emergency” exception to the warrant requirement.  For example, if some bank robbers decide to take hostages and start making demands, a SWAT team can move in without a warrant.  When the emergency exception is ordinarily relied upon, the search is done out in the open - so the government’s actions are transparent.  The homeowner or business owner knows fairly quickly that agents conducted a search and can bring any abuse to the attention of the news media, the courts, or the legislature.  Those “checks” on police power are not in place with respect to mail openings.  We just don’t know what may be going on at the post office before we get our mail.

Rep. Jeff Flake (R-AZ) specifically asked Attorney General Alberto Gonzales about mail openings at a 2005 hearing.  Here’s the exchange:

REP. JEFF FLAKE (R-AZ): Thank you, Mr. Chairman. Thank you, General Gonzales.

Let me just try to bring this to the real world for a minute here, the real-world scenario, and see if we’re on the same page here. You may be familiar with one of the Fox News analysts, Andrew Napolitano, who wrote an op-ed a while ago. And let me just read a portion of it and get your response to it.

Quote: “The government can now, for the first time in American history, without obtaining the approval of a court, read a person’s mail and prosecute a person on the basis of what is in the mail.” Is that an accurate reflection of the law?

ATTY GEN. GONZALES: I’m not – I don’t believe it is an accurate reflection of the law. Again, if we’re talking about the exercise of authorities under the Patriot Act, in most cases it does involve the department going to a federal judge and getting permission to use a proposed authority.

REP. FLAKE: I understand in most cases. But is that possible now, for the first time in history, without obtaining the approval of a court, to read a person’s mail and then prosecute the person on the basis of what is in that mail?

ATTY GEN. GONZALES: That sounds to me like it would be a search. And I think that you would need probable cause to do that. You would need a warrant to do that, and you’d have to go to a federal judge in those cases, except, I think, in very rare circumstances, if in the event of an emergency. But even then you’d have to go to a judge after the fact and explain what you’ve done. So I don’t think that what he has said is accurate.

REP. FLAKE: But it would be accurate if you say in certain cases you would have to go to the judge after the fact.

ATTY GEN. GONZALES: But those are very rare and extraordinary circumstances. And so –

REP. FLAKE: How many of those circumstances have we had?

ATTY GEN. GONZALES: I’m not aware of any.

REP. FLAKE: None?

ATTY GEN. GONZALES: I’m not aware of any.

REP. FLAKE: If there are some, could you get back to my office with that information?

ATTY GEN. GONZALES: I can certainly look into it.

Source: Hearing before the House Judiciary Committee, April 6, 2005.

I will be blogging about this some more later, but I expect the Senate and House Judiciary Committees will immediately begin to investigate this matter and call Mr. Gonzales in for questioning.

For background on the constitutional record of the Bush administration, read this.

Drug War Update

Last week, the feds released their annual “Monitoring the Future” survey on teenage drug use, and – lo and behold – teenage drug use is down. John Walters, the director of the Office of National Drug Control Policy, hailed the findings as proof that Bush’s drug war was going swell (unlike, ahem, that other war of his). Well, in an excellent op-ed in today’s New York Times, Mike Males of the Center on Juevenile and Criminal Justice demonstrates that the “Drug War” isn’t going any better than the “Iraq War.” Drug arrests are skyrocketing, as is the body count from drug overdoses. Even more striking is the fact that middle age drug use is soaring and that it’s soaring primarily among middle class whites. Ongoing tales about lights at the end of tunnels are no more reliable than similar tales about Iraq.

While it should be obvious to any fair-minded observer that our increasingly brutal war on drugs is a losing proposition on all counts, few of us seem to be fair minded observers. So allow me to pose a question to those of you still clinging to this benighted enterprise: Exactly what would it take to convince you that the drug war was causing more harm than good? Is there any bit of data, any hypothetical fact, or anything at all that would cause you to give up the policy ghost? Because if there is not, then we are in the realm of religious belief – and that’s about all that I can find to support this cruel, costly, and counterproductive jihad.

The Final Version of My Latest Paper is Now on SSRN

The 99.6% final version of my latest law review article, Class Action Lawmaking: An Administrative Law Model, is now posted on SSRN (here). The article is forthcoming in the next edition of the Texas Review of Law and Politics. An early draft was posted some months ago, but it has been significantly revised in response to helpful comments at two faculty workshops. Here is the abstract:

This Article considers how courts should interpret federal statutes when the interpretive question affects the scope or availability of class certification. When faced with such a question, many courts are tempted to interpret the statute in a way that enables class certification, enhancing the chance that the parties will settle.

I argue that the debate over this practice can be conceptualized as a debate about delegation. Those who argue that courts act illegitimately when they “adapt” statutes to “fit” the class device assume Congress has delegated courts a narrow range of discretion to promote certification and settlement under federal statutes. By contrast, those who argue courts have great leeway to certify statutory claims, even at the price of “distorting” the statute, assume courts have been delegated a great degree of such discretion.

The Chevron doctrine of administrative law provides an unexpected solution to this debate, if we treat Chevron as a “starting-point” measure of Congress’s intent to delegate authority to “adapt” federal statutes to new circumstances. This proposal is roughly similar to Nicholas Quinn Rosenkranz’s suggestion that Chevron might be treated as a “constitutional starting-point rule” for defining permissible delegations of “dynamic interpretive power.”

My argument, however, is pragmatic rather than constitutional: in the absence of clear information about Congress’s desires in the class context, and in light of the complex trade-offs implicated by class actions, an off-the-rack approximation of Congress’s intent to delegate dynamic interpretive power to courts in the class context is needed. I suggest that Chevron is the best available “starting point” measure, in this pragmatic sense. In other words, pending further instruction from Congress, we might ask courts in the class context to start by “thinking about statutory interpretation and statutory discretion as they would want an agency to think.”

In the process, I show that the obvious objection to using Chevron in this fashion—that federal courts, unlike agencies, are not democratically accountable—doesn’t withstand close scrutiny. Put bluntly, courts interpreting statutes that affect the scope of their power to certify claims exempt themselves from the restraint they demand of agencies. Asking courts to consciously parallel the restraint they expect of agencies therefore reins in courts’ interpretive discretion—promoting, in the process, more democratic control over class action lawmaking.

Incidentally, I found Nicholas Quinn Rosenkranz’s article, Federal Rules of Statutory Interpretation, very helpful. You can access his paper, which I rely on in this latest draft and reference in the abstract, here.

Attention, Legal and Political Thinkers: A New Scholarly Resource

Rediscovering Bruno Leoni

There’s a new resource from Italy’s Instituto Bruno Leoni: a scholarly web resource on the ideas and work of the great legal scholar for whom the Institute is named, “Rediscovering Bruno Leoni.” It has both Italian and English versions and includes mp3 files of some of Leoni’s lectures.

Leoni showed a deep understanding of law and its relationship to voluntary social order. His work on the evolution of law greatly influenced F. A. Hayek and other writers who outlived him. In contrast to prevailing views, he argued that law is not simply an assertion of power, as the legal positivists insist, i.e., a set of “commands of a sovereign,” but traces back to the claims made by individuals and adjudicated through a complex process of interaction. As Leoni argued in “Law as Claim of the Individual,”

The legal process always traces back in the end to individual claim. Individuals make the law, insofar as they make successful claims. They not only make previsions and predictions, but try to have these predictions succeed by their own intervention in the process. Judges, juris-consults, and, above all, legislators are just individuals who find themselves in a particular position to influence the whole process through their own intervention.

The cases we bring to court and the cases we don’t all are part of the law-making process. The role played by elected legislators is important in the creation of a legal order, but it is almost always overrated. Most of the law that governs our everyday lives resulted from relatively decentralized common law (or Roman law) processes, and not from the “commands” of sovereigns.
Additional resources on Bruno Leoni (and on many hundreds of other deep thinkers) can be found at the extensive and brilliantly organized “Online Library of Liberty.”

Other writers with a similar appreciation of law as an evolved body of rules of just conduct include Lon Fuller of Harvard Law School (especially in his classic work The Morality of Law), F. A. Hayek (notably in Law, Legislation, and Liberty, Vol. I: Rules and Order; his classic 1945 American Economic Review essay on “The Use of Knowledge in Society” is must reading for understanding complex social processes, including the evolution of law), and Randy Barnett of Georgetown University, a Cato Institute senior fellow and author of Restoring the Lost Constitution: The Presumption of Liberty and The Structure of Liberty: Justice and the Rule of Law.
So, budding law students and political scientists. Have at it!

Freedom of the Press and Venezuela

There’s a general relationship between freedom of the press and economic freedom. My research assistant prepared the graph below showing that correlation. Countries that are more economically free tend to have a freer press.

Economic Freedom and Freedom of the Press

[Click picture for larger version]

Venezuelans have been finding that out in recent years as their level of economic freedom, which has been in steady decline during the past few decades, has fallen rapidly under the government of Hugo Chávez. Venezuela now ranks 126 out of 130 countries in the Fraser Institute’s economic freedom index (in 1985 it ranked 25th out of 111 countries). When you concentrate economic power in political hands, the institutions of civil society lose their independence.

The latest casualty in Chávez’s campaign to control the media is Radio Caracas Television (RCTV), whose license the government recently announced will not be renewed. RCTV, founded in 1930, was one of only a few remaining TV stations critical of the government in a country where media outlets are practicing various degrees of self censorship. But, according to the Venezuelan communication minister, RCTV’s “irresponsible attitude hasn’t changed.” Symbolizing the government’s intolerance of dissent is a law passed last year that can land individuals for months or years in jail for expressing disrespectful words about government officials.

The model looks suspiciously similar to that of Vladimir Putin’s Russia, where television stations refrain from criticizing the Kremlin, but a few leading newspapers still do not. In both Venezuela and Russia, relatively few people read newspapers; it is the electronic media that informs the general public.

Journalist and Venezuelan-born Cato adjunct scholar Carlos Ball tells a personal anecdote about the long-term decline of freedom in Venezuela (see his op-ed in Spanish here http://www.elcato.org/node/2143 ). In May 1987, Carlos was the editor of the Diario de Caracas, a leading newspaper. The paper belonged to the business group that owned RCTV. Then-president Jaime Lusinchi conditioned the renewal of RCTV’s license on Carlos Ball’s dismissal. Carlos was fired and the station got a 20-year license. It is that license that is expiring in May. According to Carlos, the road to political and economic centralization was set decades before Chávez declared his so-called socialism of the 21st century. The treatment of RCTV is only the most recent reminder that it is no longer accurate to refer to Venezuela as a democracy.