Does you have privacy rights in what's stored in your cellphone? Supreme Court cases raise the issue.

Do you have privacy rights in what’s stored in your cellphone? Supreme Court cases raise the issue.

A quick question for you on Monday morning: How private is your cellphone?

That simple question underlies some cases facing the U.S. Supreme Court this Term. There, the justices must wrestle with issues of search and seizure when it comes to the ubiquitous cellphone.

When you are asked to empty your pockets (following, we suppose, establishment of probable cause or at least a Terry stop), is your phone entitled to no more privacy than, say, the wad of tissues, or the spare change?

Here is how one news story about the cases opens:

“Two Supreme Court cases about police searches of cellphones without warrants present vastly different views of the ubiquitous device.”

“Is it a critical tool for a criminal or is it an American’s virtual home?”

“How the justices answer that question could determine the outcome of the cases being argued Tuesday. A drug dealer and a gang member want the court to rule that the searches of their cellphones after their arrest violated their right to privacy in the digital age.”

“The Obama administration and California, defending the searches, say cellphones are no different from anything else a person may be carrying when arrested. Police may search those items without a warrant under a line of high court cases reaching back 40 years.”

“What’s more, said Donald Verrilli Jr., the administration’s top Supreme Court lawyer, ‘Cellphones are now critical tools in the commission of crimes.’”

Read the whole story here.

And let me know where you stand on the privacy rights attendant on that phone in your pocket.

Twitter on wall

Legal news arrives pretty fast via the little blue bird.

Conversation with many lawyers about law practice inevitably leads to dialogue about the value of social media. In that regard, things are shifting. We used to never hesitate to call the profession a very very very “late adopter.” But more attorneys have dipped their toe in to test the waters.

However, even those lawyers who may have established a LinkedIn page for themselves (daring much?) shiver in fear at the suggestion of engaging via Twitter.

Perhaps it’s the less-than-serious name and surrounding nomenclature that turns them off, or the fact that many cannot say their complete name in fewer than 140 characters, but attorneys too rarely share the Twitter love.

Here’s hoping the summer and the United States Supreme Court can change that.

Unlike other breaking news, Supreme Court opinions are issued on a relatively predictable schedule. As such, I can count on my Twitter feed to light up like Broadway as news of an opinion emerges. Via Hootsuite or directly via Twitter, I can quickly scan the posts of journalists and lawyers I’ve come to trust about these things.

Constitutional law communicated via digital means may not be something the Founding Fathers anticipated, but I’m confident they’d be down with it. I mean, if published today, Common Sense would have a digital edition, and The Federalist Papers would have a paper-free app.

The stream of SCOTUS news got me wondering: How are you tracking breaking updates from the Court?

Reading the daily newspaper? Reading websites of partisan groups? Watching TV news?

Please tell me you’re not watching TV news.

Don’t get me wrong: Many of those media are perfectly fine. But if you like how they cover news, check to see if they have a Twitter handle. If they do, follow it. (And if they don’t, seriously reassess your choices.)

Remember, you can use Twitter solely as a one-way news stream. Though I recommend you be an active participant with those you follow (and who may follow you), it is not required. Silent reading and consuming of news is perfectly OK. That way, at least you’ll be benefiting from some of Twitter’s functionality.

(And yes, you may even follow my own Twitter feed here.)

follow us on twitter-bird

… at @azatty

If you have not clicked through Twitter links before, you may be pleased to discover this: That what begins as a pithy 140-character tweet may blossom into some wonderful long-form coverage. Don’t buy into the stereotype that complex ideas cannot be synthesized, and that Twitter is analysis-lite.

Don’t be that guy. Get on Twitter.

Once there, search around for media sources you trust, or lawyers whose insight you appreciate. Click Follow. You might even organize them into Lists to encapsulate all your interests (“Supreme Court coverage,” “Mad Men,” “Law Practice Management,” “Recipes”).

The Supreme Court and I will be there waiting for you. And we may even retweet your own insight out to the world. Because we’re all share-y that way.

Justice Sandra Day O'Connor

Justice Sandra Day O’Connor

By now, you’ve heard about a new book being launched, written by Justice Sandra Day O’Connor. It’s titled Out of Order: Stories from the History of the Supreme Court.

Happy Change of Venue Friday. For those of you (OK, me) hoping for the excavation of a few skeletons from the Court’s many closets, we’re likely to be disappointed. Here’s how an ABA Journal news story opens:

“Readers hoping for juicy revelations about controversial Supreme Court cases or ‘tell all’ insights won’t find them in Sandra Day O’Connor’s latest book.”

“But those looking for a ‘succinct, snappy account’ of the Supreme Court’s history should pick up the latest book by the retired justice, the New York Times reports. The Christian Science Monitor also has a review of the book, Out of Order: Stories from the History of the Supreme Court.”

(The whole story is here.)

Out of Order Sandra Day OConnor bookSuccinct and snappy are grand, just grand. But throw us a bone. I’m not expecting garish displays or jaw-dropping pronouncements. But something. Anything.

  • Does Justice Scalia slurp his soup?
  • Does Justice Kennedy irritate other Justices by earmarking the pages of books? (And is that really why Justice Souter retired?)
  • Does Justice Ginsberg sneak extra Jell-O in the Court’s dining room?
  • Does Chief Justice Roberts park badly, causing his next-door parker to put nasty notes on his windshield, and maybe, just maybe, to dissent more often as retribution?

You see where I’m going here. We want a little insight. But I suppose I’ll have to wait for a less courteous member of the Court to retire for that enticing volume to appear.

That said, I too will likely read the book. (Or, as the Justices stoutly declare, “I join.”) And if I know anything about Justice O’Connor, I’ll learn quite a bit in the process.

And if you want to buy what looks like a great book, it is available here.

Have a great weekend.

Today I’m pleased to share this space with a guest writer as she highlights a pending decision that may profoundly affect law school admissions around the country. The case is Fisher v. University of Texas, and Rachel Higgins walks through the main points. Ms. Higgins writes a lot about education; go here to find institutions offering online teaching degrees on her primary website.

When Abigail Fisher filed a lawsuit against the University of Texas on the grounds that she was denied admission because she is white, she triggered the first affirmative action case handled by the U.S. Supreme Court in nearly a decade. Now, the future of racial quotas imposed by American higher learning institutions rests on the Court’s final decision.

Fisher was denied entrance to UT in 2008. In her brief, Fisher accused the school of sacrificing a productive learning environment for the attainment of “purely representational” demographic quotas. Her attorneys also stated that schools that strive for on-campus diversity by way of affirmative action have produced “negligible” results for U.S. colleges and universities.

Enrollment at the University of Texas is still predominantly white, as just over 51 percent of students, a narrow majority, self-identified as white only. The next-largest racial group, Hispanics, made up just 17 percent of total enrollment, and Asian American students followed closely behind at 15 percent of the student body. Just over 4 percent of the student body self-identifies as black, and more than 8 percent of the student body is foreign. This racial breakdown is not representative of the population at large, leading many to believe that there is much more work to be done in diversifying the student body.

However, the university defended its decision as entirely in keeping with Grutter v. Bollinger, a 2003 case in which the Supreme Court upheld the University of Michigan Law School’s equal opportunity policy after Barbara Grutter, a white applicant with high GPA and LSAT scores, was denied admission to the program. Justice Sandra Day O’Connor authored the Court’s narrow 5–4 decision, adding that all American colleges and universities should strive to develop a more “race-neutral admissions formula” over the coming 25-year period. The Court ruled that race could be used to admit applicants as long as this criteria was “narrowly tailored” to meet the “critical mass” of minority students necessary to boost on-campus diversity to optimal levels.

Since Grutter v. Bollinger, Justice O’Connor has retired and been replaced by the more conservative Justice Samuel Alito. This shake-up, some experts predict, could lead to a reversal of the 2003 decision, despite the remaining 16 years recommended by Justice O’Connor. However, the recusal of Justice Elena Kagan from Fisher v. University of Texas on the grounds that she worked on the case as Solicitor General has also opened up the possibility of a 4–4 split; if that occurred, the case would be deferred to an earlier ruling by the lower court that sided with UT.

In recent months, other colleges and universities have come to UT’s defense. In August, 14 higher learning institutions (led by MIT and including several Ivy League schools) filed an amicus curiae brief in support of college-level affirmative action policies. “Although all Amici have highly selective admissions criteria designed to ensure that all of their students (including minority students) will be prepared for demanding coursework and will graduate successfully,” the brief stated, “they all recognized long ago that admissions by purely numerical factors such as grade-point averages and standardized test scores would not effectively accomplish their broader educational missions.” In all, 90 amicus curiae briefs have been filed in the case—17 defending Fisher, and 73 defending UT.

The Supreme Court heard the case’s first oral arguments in mid-October—and, as expected, the justices appeared strongly divided. Though a decision date has yet to be determined, Fisher v. University of Texas could greatly affect the use of race as college admissions criteria.

Were you seeking one last SB1070 event before the Supreme Court hears argument this Wednesday on Arizona’s controversial immigration law? If so, this evening is for you.

Head over to the ASU Cronkite School at 6:00 tonight for a MALDEF panel on the law and its repercussions. Here is all the detail from the group.

Speakers will Discuss Upcoming Supreme Court Oral Arguments and Other Pending Lawsuits

PHOENIX, AZ – MALDEF President and General Counsel Thomas A. Saenz will speak alongside a distinguished panel of legal scholars and advocates at a major forum discussing upcoming oral arguments before the Supreme Court in State of Arizona v. U.S., the federal government’s case against Arizona’s anti-immigrant law SB 1070. Oral arguments before the Supreme Court are scheduled for Wednesday, April 25, 2012.

MALDEF and a coalition of civil rights organizations have been at the forefront of the battle to challenge all of the discriminatory and unconstitutional provisions in SB 1070.

WHAT: Major Forum on upcoming Supreme Court oral arguments in State of Arizona v. U.S., the federal government’s case against anti-immigrant law SB 1070. Presentation and discussion will include: the major arguments from either side; impact on other pending lawsuits against SB 1070; amicus briefs; the make-up of the court; and other FAQs.

WHO: Thomas A. Saenz, MALDEF President and Counsel, will be in attendance.

Also speaking will be: Dan Pochoda, ACLU of Arizona; Evelyn Cruz, Arizona State University Law Professor; Crystal Lopez, DLA Piper; and Daniel Ortega, Ortega Law Firm.

WHEN: Monday, April 23, 2012, 6–8 p.m.

WHERE: Cronkite School of Journalism, ASU Downtown Campus, Cronkite Theater, 555 N. Central Ave., Phoenix, AZ 85004

MALDEF: Founded in 1968, MALDEF is the nation’s leading Latino legal civil rights organization. Often described as the “law firm of the Latino community,” MALDEF promotes social change through advocacy, communications, community education, and litigation in the areas of education, employment, immigrant rights, and political access. 

For more information on MALDEF, please visit here.

Dean Erwin Chemerinsky

In major Supreme Court cases, it’s useful to have a scorecard. And that’s just what Erwin Chemerinsky provides in regard to SB1070.

Arizona’s own criminal–immigration law hybrid is examined by the UC-Irvine law dean in the ABA Journal. And his insights get right to the heart of the case being watched carefully by legal scholars, lawyers, politicians and even police departments. What do you think SCOTUS will do with the case? Let me know your thoughts at arizona.attorney@azbar.org.

You may recall that we published a Q&A with Dean Chemerinsky in our February Arizona Attorney Magazine. As he told us then, “So often discussions of federalism have focused on the scope of Congress’s power. But federalism also is about the extent to which federal law preempts state law. Arizona’s immigration laws, include SB 1070, focus attention on this.” (Our Q&A preceded his delivery of the annual ASU John Frank Lecture.)

In the ABA Journal, Chemerinsky examines some of the disagreements between the parties, which includes the State of Arizona:

“It is striking that the briefs of Arizona and the United States disagree about everything that is before the court. First, the two sides disagree as to the context in which the court should approach the case. Arizona begins its brief with a long section on “illegal immigration’s disproportionate impact on Arizona.” It spends the first seven pages of its brief describing the effect of illegal immigration on Arizona in terms of crime, government benefits and employment.

“By contrast, the brief for the United States begins with a long section describing “the comprehensive federal immigration framework.” The United States brief begins with almost eight pages describing the detailed system of federal immigration regulation.

“This difference is not coincidental. Arizona wants the justices to see this case from the perspective of a state dealing with a serious problem and acting to protect itself and its citizens. The United States wants the justices to view this matter as involving an area which is traditionally and inherently under the control of the federal government.

“Second—and surprisingly—the two sides disagree about the standard the court should use when deciding whether federal law pre-empts state law. Arizona repeatedly states that in the absence of an express preemption provision in a federal law, a state law is preempted only if there is a conflict between federal and state law. Its brief states: “The bottom line is that there is no preemption unless state law conflicts with some identifiable federal statute.” Arizona argues that there is no conflict between SB 1070 and federal law; its primary argument is that SB 1070 is using the resources of state and local law police to supplement and enhance federal efforts.

“The United States, though, says that a conflict between federal law and state law is not required for preemption; there is preemption if a state or local government interferes with achieving a federal objective. It sees Arizona’s law as doing this. The United States contends that inevitably decisions about immigration enforcement implicate issues of foreign policy and that is in the sole domain of the national government. The United States relies heavily on the Supreme Court’s 1942 decision, Hines v. Davidowitz, which said that immigration enforcement necessarily implicates “important and delicate” considerations of foreign policy and that therefore states cannot “contradict” or “complement” federal immigration efforts.”

Keep reading here.

Introduction to our Q&A, Arizona Attorney Magazine, February 2012

It’s always terrific when a great plan comes together.

That’s the first thing that occurred to me when I saw an upcoming CLE announced. It is on next Thursday, October 13 (from 9 am-4 pm), and it’s co-sponsored by the State Bar of Arizona and the Peoria Municipal Court.

The title of the program is “We the People: A Symposium on the U.S. Constitution and the U.S. Supreme Court.” Read more and register here. I plan to be there most of the day.

Rio Vista Recreation Center, Peoria, Ariz.

What appears most appealing is the opportunity to learn a little about both of those institutions that are central to our nation (and who couldn’t use a little of that). But just as important is the chance to hear from some scholars on modern-day cases and controversies. For example, the day’s roster includes immigration debates as enacted through SB1070, federalism and states’-rights questions, and federal review.

These are issues that are as timely as today’s newspaper.

Here is a description of the seminar and the faculty:

An exploration of the U.S. Constitution and the U.S. Supreme Court by legal experts from across the country.

Seminar Chair: Judge G. T. Anagnost, Peoria Municipal Court

Faculty:

Professor Paul Bender, Sandra Day O’Connor College of Law at Arizona State University

Paul Bender

Dean David Meyer, Tulane University Law School

David Meyer

Professor R. Kent Newmyer, University of Connecticut Law School

R. Kent Newmyer

Professor Jennifer Chacón, University of California Irvine School of Law

Jennifer Chacón

Professor Justin Marceau, University of Denver Sturm College of Law

Justin Marceau

Again, for more on this seminar, the day’s complete agenda and to register, click here.

To add to the day’s pleasures, you may want to bring your running shoes and workout clothes, because the CLE will occur in the Rio Vista Recreation Center in Peoria. I have heard amazing things about this place, and you can read more about it here. If you happen to be a Peoria resident, working out at the Center is free; if you’re not, there’s a small daily fee.

Rio Vista Recreation Center

Whether or not you exercise more than your brain that day, the Center is worth seeing. Here are some more photos.

Finally, the architect was Architekton of Tempe, Ariz. Click here for more about the building, including photos, drawings and concept.

See you in Peoria.

(Here are directions to the Rio Vista Recreation Center, located at 8866 W. Thunderbird, Peoria, AZ: 1/4 mile west of the 101 freeway off of W. Thunderbird Rd. Turn North on Rio Vista Blvd. and end at the Center.)

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