The Supreme Court faced the specific question in Riley v. California as a matter of first impression—can police search a cell phone’s contents under the “incident to arrest” exception to the warrant requirement? But several courts have recently established a privacy-protective trend when they addressed the broader question—when does new technology render pre-digital precedents inapposite? The Supreme Court’s decision fits the trend in two key ways. First, the Court refused to credit the government’s explanation of the technological challenges it faced, and, instead, relied on its own sophisticated understanding. Second, the Court recognized the need to evaluate how new technology presents new answers to the inquiries behind the precedents. Like recent federal appellate cases, and unlike the Court’s decision in United States v. Jones, however, the Riley decision announced a bright line warrant requirement for searches of cell phones that recognized that more nuanced rules would grant law enforcement agents excessive discretion.
In Utility Air Regulatory Group v. EPA, seven members of the Supreme Court upheld the most important feature of the EPA’s Prevention of Significant Deterioration (PSD) program: the ability to require the vast majority of new and modified sources to install the “Best Available Control Technology” for reducing greenhouse gases (GHGs). As a consequence, eighty-three percent of significant new and modified sources will continue to be subject to the BACT requirement for their GHG emissions. Although the Court reversed, by a five-to-four vote, EPA’s contention that greenhouse gas emissions alone could trigger the PSD program, that reversal will have little impact because it will eliminate PSD requirements for only about three percent of significant stationary GHG sources. Justice Scalia’s majority opinion had some choice words for EPA, but it remains to be seen whether those words spell trouble for newly emerging climate regulations.
Power plants are not only one of the nation’s largest sources of greenhouse gases, they are also a significant source of sulfur dioxide, nitrogen oxides, particulates, and mercury, all of which have direct public health and welfare consequences. EPA’s recently proposed Clean Power Plan, which applies Clean Air Act § 111(d) to reduce greenhouse gases (GHGs) from the nation’s fleet of fossil-fuel power plants, will have important implications for these ubiquitous co-pollutants. Although the primary goal of the Clean Power Plan is to reduce GHGs, ancillary co-pollutant benefits are an important consideration in evaluating alternative mechanisms for controlling GHGs.
Since 1986, I have been briefing the international and treaty standards that apply to U.S. cases through amicus curiae briefs filed on behalf of Human Rights Advocates. Despite the fact that the U.S. Constitution provides that treaties are the supreme law of the land, courts’ receptivity to the use of the international standards and treaties has ebbed and flowed. However, even during the ebbs, it is important that the courts be made aware of that body of law. Indeed, sometimes it can be a catalyst for bringing the U.S. in line with more humane practices, as has been shown by two extreme sentences that the U.S. has used for juvenile offenders despite the fact that the vast majority of countries do not use them: the death penalty and life without parole (JLWOP). The almost worldwide prohibition of these two sentences played a role in the U.S. Supreme Court holding the death penalty unconstitutional for juvenile offenders in Roper v. Simmons, 543 U.S. 551 (2005) and in beginning the limiting of life without parole sentences in Graham v. Florida, 560 U.S. 48 (2010). A recent report discusses various types of advocacy where the international standards have proven to be useful: Challenging Juvenile Life Without Parole: How Has Human Rights Made A Difference?
While the Court did not refer to the international standards in the more recent case of Miller v. Alabama, 576 U.S. __ (2012), most likely the result of the backlash from some groups against using international law, it is still important that courts be aware of those standards in addressing U.S. law so they can place U.S. and state law in context. Recent cases where these standards have been raised in amicus curiae briefs include:
For over a dozen years, since the attacks on 9/11, a new and pernicious term has permeated the war lexicon and the mainstream: enemy combatant. Although originally intended as the United States' designation for al Qaeda and Taliban captives, it is now often indiscriminately applied to alleged terrorists throughout the world. In 2009, President Obama abandoned the term, substituting language more consistent with the Geneva Conventions. However, the term enemy combatant is still on Americans' radar screens.
Many scholars of international law believe that the U.S. deliberately invented the term in order to circumvent the protections of the Geneva Conventions (GC). Under the GC, the universe of combatants are two: lawful (also called prisoners of war) and unlawful.
You don’t have to look far to encounter “fracking,” shorthand for hydraulic fracturing, a method of extracting oil and gas from the earth by injecting a mixture of chemicals, sand, and water into shale rock formations deep underground at high pressures. Fracking itself is not a novel technology, but the advent of horizontal drilling, which allows drillers to drill across broader swaths of rock, has improved the return on investment for pioneering oil and gas companies. The result is a proliferation of wells in places like Colorado, Texas, Pennsylvania, North Dakota, and West Virginia; and controversy in places like New York, Vermont, and California, among others. Proponents see fracking as a panacea that will make the United States a top global producer of natural gas, and move the country away from coal and toward cleaner energy. Opponents point to the myriad questions that surround fracking, its risks, and the ultimate effects it may have on the communities in which it takes place.
As we begin 2014 together, I hope you all have had a happy holiday season.
Before closing the door on 2013, our first year of working together, I want to share with you what it meant to me when I recently—in the past month—witnessed women on two separate occasions who were driven to tears by their experiences with our law school. One was a grandmother who traveled from Southern California to see her grandson be sworn in to the California bar at our ceremony at St. Ignatius Church. He is the first lawyer in the family and the path over generations was not easy. The other was a small businesswoman who contacted one of our clinics for help to fight off a large company whose legal actions threatened to shut down her dream before it got off the ground. We provided both the legal expertise and the personal understanding that enabled her to persevere and prevail.
On September 20, 2013, the EPA proposed new source performance standards for greenhouse gas emissions for new power plants. Although the agency repackaged and fine-tuned an earlier proposal, issued in April 2012, it continues to hold the coal industry’s feet to the fire. The proposal makes clear that new coal-fired power capacity cannot be built without major reductions in carbon emissions. The agency’s new proposed rule continues to convey a critical message to utilities contemplating new energy-generation investments: utilities can no longer develop uncontrolled high-emission energy sources; future energy investments must either be lower-carbon or control carbon. The agency’s proposal provides clear parameters for future investments that set the nation on a more sustainable energy path.
President Obama's recent suggestion that law schools consider eliminating the third year of study puts welcome national attention on crises in the legal profession and legal education which have serious implications for all our communities. While jobs for lawyers and applications for law schools have dropped precipitously, injustice and the average American's need for quality, affordable legal representation have not. The question for law schools is less about how quickly we can send students to a struggling profession than it is how well we prepare them to be successful, ethical lawyers promoting justice and worthy of the trust that clients place in them.
To be worthy of accepting tuition dollars from students and their parents, all law schools must more effectively prepare the next generation of lawyers whose careers will take them into the second half of the 21st century. Law schools must not only adapt to the changes in the profession brought about by the economy and technology, we must get ahead of them. At the University of San Francisco School of Law, we are evaluating and strengthening our courses to best prepare students to pass the bar examination and be practice-ready problem solvers upon graduation. Our faculty are training today's law students to meet the legal needs of families and businesses in an array of areas, from tax to intellectual property to immigration, something that could be lost without a third year of study. As a school that has been majority women since 1989 and whose first year class this fall has a majority of students of color, we, today, look like the nation will look in the next 30 years. We are delivering legal education that effectively assists a diverse student population to address the concerns that matter most to them and to their communities, and that enables them to thrive. The third year is a critical component of that goal.
Recently, a local high school girl I will call Lisa interviewed me for a report she was doing on torture. I am the founder and director of the Witness to Guantanamo project, where we film in-depth interviews of former detainees, their family members and people who have lived or worked in the detention center in Guantanamo Bay, Cuba. Currently, there are 164 people still held in the prison.
During the interview, I explained that although physical torture was present in Guantanamo, the detainees often referred to the detention center as a psychological prison. Extended periods of isolation and other psychological mistreatment were commonly practiced. I mentioned that one of the most egregious situations, where a detainee was both physically and psychologically tortured, concerned the man the government believes would have been the 20th hijacker. In fact, I added, the military had even acknowledged his torture.