Practical Truth: The Value of Apparent Honesty in Supreme Court Opinions

Judicial honesty or judicial candor is the subject of significant scholarly attention, but it is not the focus of this Essay. Rather, the author\u27s focus is on the importance that appearing honest has on the persuasive force of an opinion and the dangers associated with failing to achieve that goal. This distinction is not intended to suggest Justices should seek apparent honesty while not being actually honest. Rather, this Essay emphasizes that actually honest opinions must also be apparently honest. Thus, judicial candor is necessary to apparent honesty, but it is not always sufficient on its own. To support the author\u27s assertions, this Essay is divided into three Sections. Section I briefly discusses the elements of an Aristotelian ethos-based appeal and how such appeals are generally derived. Section II applies this approach to Supreme Court opinions and attempts to defend my formulation of apparent honesty. Finally, the author identifies friction points in Supreme Court decisions where there is a heightened danger of appearing less than fully honest. Given the harm failing to appear honest can have on the Court’s credibility, avoiding such an appearance is critical. The author asserts that there are at least three circumstances where the danger of appearing less than fully honest is increased. These three credibility “choke points” involve stare decisis, high-profile politically contentious cases, and changes in a Justice’s position

Brief of Amicus Curiae the Washington and Lee University School of Law Black Lung Clinic in Support of Petitioners: \u3cem\u3eCalifornia v. Texas\u3c/em\u3e

Section 1556 of the Patient Protection and Affordable Care Act (PPACA) makes two major changes to the Black Lung Benefits Act. These changes remove limiting language to make it simpler for disabled miners and their families to establish that they are entitled to federal benefits. First, § 1556(a) reinstates the fifteen-year rebuttable presumption, which presumptively entitles former coal miners to benefits if they have worked over fifteen years underground and have a totally disabling pulmonary disease. The second, § 1556(b), reinstates a continuation of benefits for surviving spouses whose coal-mining spouse was receiving benefits at the time of their death. The clients of the Clinic already have benefitted from these amendments: nearly sixty former clients who are currently receiving black lung benefits could face modification proceedings and the loss of benefits if § 1556 is not severed; clients with pending claims could face a change in their ability to prove their claims mid-process, and the ability of future miners to prove their entitlement to benefits will be injured. The Clinic has a profound interest in the possibility of the invalidation of the amendments. If the amendments are totally struck down it would adversely affect our clients; not only the ones currently enjoying benefits under the amendments, but all coal miners or surviving spouses who will bring cases in the future

When More is Less—SWAT and Procedural Justice

Since the “war on drugs” began in the early 1970s the use of Special Weapons and Tactics units has increased exponentially. These units, originally designed to address unique policing situations like riots or a barricaded gun man, are now deploying approximately 60,000 times a year. Over half of those deployments are for search warrants. Because SWAT units deploy assuming that they are going to a situation with a high likelihood of violence, their tactics reflect that assumption. SWAT means and methods emphasize the decisive use of force to resolve conflicts. These means and methods do not encourage communication between police and citizens, only compliance. At the same time that SWAT units were becoming more common, two professors published the highly influential book Procedural Justice. In that book the authors sought to understand how procedure in the resolution of legal disputes connected to justice. Since then, scholars, most notably Professor Tom Tyler, have empirically examined the connection between procedure and individual perceptions of justice. Much of that research has noted a powerful connection between an individual’s perception of justice and whether they believed they “have had their say” in the resolution of a dispute. This research has also asserted connections between procedural justice and the public’s perceptions of police legitimacy and the further connection between police legitimacy and law abiding behavior. Despite the growing recognition that police legitimacy and procedural justice walk hand in hand, the growth of SWAT has continued. This article examines the rise of SWAT and procedural justice, and discusses how the overuse of SWAT units is harmful to procedural justice and the public’s perception of police legitimacy. Finally, the article suggests that use of SWAT assets during the execution of a search warrant should be at the discretion of judges rather than police. Additionally, the article suggests that command and control over SWAT units should be centralized at the state and federal levels to ensure proper use and training

Practical Truth: The Value of Apparent Honesty in Supreme Court Opinions

Judicial honesty or judicial candor is the subject of significant scholarly attention, but it is not the focus of this Essay. Rather, the author\u27s focus is on the importance that appearing honest has on the persuasive force of an opinion and the dangers associated with failing to achieve that goal. This distinction is not intended to suggest Justices should seek apparent honesty while not being actually honest. Rather, this Essay emphasizes that actually honest opinions must also be apparently honest. Thus, judicial candor is necessary to apparent honesty, but it is not always sufficient on its own. To support the author\u27s assertions, this Essay is divided into three Sections. Section I briefly discusses the elements of an Aristotelian ethos-based appeal and how such appeals are generally derived. Section II applies this approach to Supreme Court opinions and attempts to defend my formulation of apparent honesty. Finally, the author identifies friction points in Supreme Court decisions where there is a heightened danger of appearing less than fully honest. Given the harm failing to appear honest can have on the Court’s credibility, avoiding such an appearance is critical. The author asserts that there are at least three circumstances where the danger of appearing less than fully honest is increased. These three credibility “choke points” involve stare decisis, high-profile politically contentious cases, and changes in a Justice’s position

\u3cem\u3eFlorida v. Jardines\u3c/em\u3e: The Wolf at the Castle Door

The purpose of this article is to examine the controversy regarding the application of the contraband exception to the home and the potential impact of the Florida v. Jardines decision of the U.S. Supreme Court. The article will begin by examining the cases that make up the Supreme Court\u27s contraband exception and some of the Court\u27s precedent regarding the home and warrantless searches. Next, the article will examine the Florida Supreme Court\u27s holding in Jardines and discuss how the Florida court arrived at the conclusion that the canine sniff in that case was a search. This section will compare the Florida court\u27s conclusions with Supreme Court precedent. Finally, the article will examine the three most probable results of the Jardines decision and advocate for the Court\u27s rejection of warrantless canine sniffs of the home

Justice Scalia\u27s Fourth Amendment: Text, Context, Clarity, and Occasional Faint-Hearted Originalism

Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology\u27s encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia\u27s opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from his originalist/textualist commitments, particularly in the areas of the special needs doctrine and qualified immunity. This article asserts that Justice Scalia\u27s non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and could, if not corrected, unbalance the interpretation of the Fourth Amendment in favor of law enforcement interests

Refugee Resettlement in America : Exploring The Attitudes and Perceptions of Resettlement Workers and Adolescents

This dissertation explored perceptions and attitudes toward refugees and refugee resettlement and tested the impact of a prejudice reduction intervention derived from extended contact. This dissertation utilized a three-paper approach. Using qualitative data, the first paper explored resettlement workers’ beliefs about facilitators and barriers to successful refugee resettlement. Resettlement workers highlighted needs within resettlement service provision and highlighted the growing discrimination against refugees and refugee resettlement within the United States. The second paper examined American adolescents’ knowledge and feelings toward refugees. Findings revealed American adolescents’ limited knowledge of refugees and demonstrated the significant relationships between prior contact, media exposure to refugee topics, and knowledge of refugees as predictors of attitudes toward refugees and social emotional learning skills. Finally, the third paper tested the impact of a prejudice reduction intervention derived from extended contact with a sub-sample of American adolescents. Using a pre and posttest survey design, results demonstrated that the intervention significantly and positively predicted knowledge and intergroup attitudes toward refugees compared to a control condition. Program, policy, and future research implications are discussed

Military Commissions and Courts-Martial: A Brief Discussion of the Constitutional and Jurisdictional Distinctions Between the Two Courts

On 13 November 2001, President George W. Bush signed Military Order 222, authorizing the trial of non-U.S. citizens for war crimes by military commission.\u27 Since the signing of that order, a contentious debate has raged over the possible use of military commissions to try suspected terrorists. As part of that debate, the media has used various terms to describe the proposed military commissions. They have called them Secret Military Trials, \u27 Military Tribunals, \u27 and U.S. Military Court[s]. A Cable News Network internet story described military commissions as essentially a courts-martial, or a military trial, during a time of war. This quotation illustrates the underlying misperception that military commissions and courts-martial are the same. They are not. In fact, substantial differences exist between military commissions and courts-martial. Although both courts have existed since the beginning of the United States, they have existed for different purposes, based on different sources of constitutional authority, and with different jurisdictional boundaries. These differences can affect who may order a trial, who may be tried, what types of cases the court can hear, and the pretrial, trial, and appellate procedures applied in a particular case. This article examines two of the major distinctions between military commissions and courts-martial: the constitutional authority to create each court and their respective jurisdictional limitations. Due to the complicated constitutional and jurisdictional issues presented by military commissions, as compared to the relatively straightforward courts-martial, this article is devoted primarily to discussing this generally misunderstood court

Making an Offer That Can\u27t Be Refused: The Need for Reform in the Rules Governing Informed Consent and Doctor-Patient Agreements

On a daily basis, throughout the country, patients are required to sign informed consent forms regarding the care they receive from their doctors. Informed consent forms are an important part of ensuring patients are making an intelligent, autonomous decision regarding their healthcare based on the facts related to their particular situation. However, frequently these consent forms contain what amount to contract-like terms that require patients to permit doctors to substitute other healthcare providers to care for the patient under the doctor’s supervision (substituted caregiver terms). Often these terms are presented to patients on the eve of surgery and on a take-it-or-leave-it basis. This approach to informed consent is wholly wrong and harmful to the trust necessary to the doctor-patient relationship. The doctrine of informed consent is intended to aid and empower patients when making healthcare decisions, not benefit doctors and hospitals. The practice described above, requiring patients to sign consent forms that benefit doctors or hospitals, is contrary to various doctrines associated with contract law, fiduciary duties, and medical ethics. Further, this approach can interfere with the doctor-patient relationship. It can be argued that substituted caregiver terms serve important societal interests. When viewed in the best light, substituted caregiver terms allow doctors, hospitals, and medical schools to train the next generation of doctors. When viewed from a different perspective, the terms benefit doctors and hospitals because the terms allow doctors and hospitals to make more money. Because the current approach to informed consent employed by some doctors and hospitals is inconsistent with concepts of fairness contained in contract law, fiduciary duties, medical ethics, and is destructive to the trust necessary to an effective doctor-patient relationship, this article proposes a different approach. This approach would require a clear delineation of the various documents in the doctor-patient relationship. These documents include: the contract; Health Insurance Portability and Accountability Act (HIPAA) disclosure; conflict or potential conflict of interest; and informed consent. Further, to enhance patient understanding, each document would be explained to the patient in a face-to-face meeting. This Article’s proposal permits doctors and hospitals to include substituted caregiver terms, but these terms must be optional and be included in the doctor-patient contract. Absent an emergency, doctors and patients would sign these contracts at the beginning of the doctor-patient relationship. Finally, informed consent forms would be used strictly to aid patients in understanding the risks and rewards of a particular procedure and the risks and rewards of appropriate alternatives

Making An Offer That Can\u27t Be Refused: The Need for Reform in the Rules Governing Informed Consent and Doctor-Patient Agreements

On a daily basis, throughout the country, patients are required to sign informed consent forms regarding the care they receive from their doctors. Informed consent forms are an important part of ensuring patients are making an intelligent, autonomous decision regarding their healthcare based on the facts related to their particular situation. However, frequently these consent forms contain what amount to contract-like terms that require patients to permit doctors to substitute other healthcare providers to care for the patient under the doctor’s supervision (substituted caregiver terms). Often these terms are presented to patients on the eve of surgery and on a take-it-or-leave-it basis. This approach to informed consent is wholly wrong and harmful to the trust necessary to the doctor-patient relationship. The doctrine of informed consent is intended to aid and empower patients when making healthcare decisions, not benefit doctors and hospitals. The practice described above, requiring patients to sign consent forms that benefit doctors or hospitals, is contrary to various doctrines associated with contract law, fiduciary duties, and medical ethics. Further, this approach can interfere with the doctor-patient relationship. It can be argued that substituted caregiver terms serve important societal interests. When viewed in the best light, substituted caregiver terms allow doctors, hospitals, and medical schools to train the next generation of doctors. When viewed from a different perspective, the terms benefit doctors and hospitals because the terms allow doctors and hospitals to make more money. Because the current approach to informed consent employed by some doctors and hospitals is inconsistent with concepts of fairness contained in contract law, fiduciary duties, medical ethics, and is destructive to the trust necessary to an effective doctor-patient relationship, this article proposes a different approach. This approach would require a clear delineation of the various documents in the doctor-patient relationship. These documents include: the contract; Health Insurance Portability and Accountability Act (HIPAA) disclosure; conflict or potential conflict of interest; and informed consent. Further, to enhance patient understanding, each document would be explained to the patient in a face-to-face meeting. This Article’s proposal permits doctors and hospitals to include substituted caregiver terms, but these terms must be optional and be included in the doctor-patient contract. Absent an emergency, doctors and patients would sign these contracts at the beginning of the doctor-patient relationship. Finally, informed consent forms would be used strictly to aid patients in understanding the risks and rewards of a particular procedure and the risks and rewards of appropriate alternatives