Policing Facts

The United States Supreme Court’s understanding of police practices plays a significant role in the development of the constitutional rules that regulate officer conduct.  As it approaches the questions of whether to engage in constitutional regulation and what form of regulation to adopt, the Court discusses the environment in which officers act, describes specific police practices, and explains what motivates officers.  Yet the majority of the Court’s factual assertions are made entirely without support or citation, raising concerns about whether the Court is acting based on a complete and accurate perception.  When it comes to policing facts, the Court too often gets it wrong. This Article explores the influence that the Court’s conception of policing has on the creation and modification of constitutional norms.  It demonstrates that misunderstandings about law enforcement have led to constitutional rules that fail to align with the world that they were designed to regulate.  Confusion about the facts upon which a rule is built creates a gap between the conceptual justification of the rule and its practical consequences, between the effect that the rule was intended to have and the effect it actually has.  Thus, misalignment results in the under- or overregulation of officer behavior and, correspondingly, the under- and overprotection of liberty and privacy interests.  This observation offers one explanation for why the Court’s constitutional pronouncements often fail to have the anticipated result.  Having identified the effects that follow from basing a rule on a faulty factual premise, I explore ways to narrow the gap.  When constitutional rules are predicated on empirical information, a more accurate understanding of police practices will better align those rules with reality, leading to both more precise constitutional rule making and more efficacious liberty protections.

United States v. Scruggs: The Fifth Circuit Creates a New Method To Determine What Constitutes a “More Serious” Charge

Richard “Dickie” Scruggs first found notable success as a plaintiffs’ attorney in asbestos litigation.  Not long after, Scruggs found massive success as one of the key plaintiffs’ attorneys in tobacco litigation.  Scruggs became a subject of national media attention, even finding himself as a character in the Academy Award-nominated motion picture The Insider, Hollywood’s take on the epic legal fight against the tobacco industry.  However, behind the scenes, Scruggs continuously found himself embroiled in fee-sharing disputes with cocounsel.  In particular, Roberts Wilson, Scruggs’s cocounsel in asbestos litigation, filed suit against Scruggs for unpaid fees.  Mississippi Circuit Court Judge Robert “Bobby” DeLaughter was assigned to the case.  Scruggs, having recently lost a similar fee-sharing suit, decided to put into motion a scheme to avoid the same fate twice.  Scruggs hired Ed Peters, a close friend of DeLaughter, as a covert go-between to deliver an offer from Scruggs to DeLaughter:  if DeLaughter tipped the scales in Scruggs’s favor, Scruggs would speak with his brother-in-law, Trent Lott, a United States Senator, and recommend DeLaughter for a federal district court judgeship.  DeLaughter, who openly coveted a federal judgeship, began to work on his end of the corrupt bargain to favor Scruggs. After the case with Wilson settled, the Scruggs-DeLaughter scheme was exposed by members of Scruggs’s legal team who were cooperating with the government’s investigation of a separate judicial bribery scheme.  Scruggs was indicted on three counts of aiding and abetting honest-services mail fraud.  Scruggs pled guilty to a superseding bill of information that charged him with one count of aiding and abetting honest-services mail fraud.  In response to Scruggs stating his plea of guilty to the United States District Court for the Northern District of Mississippi, Judge Glen H. Davidson, sitting in the same seat that DeLaughter so ardently craved, stated on the record, “The Romans had a proverb which said that money was like seawater.  The more you drink, the thirstier you become.  In looking back at your situation, I think that’s certainly applicable, and it’s sad.”  In June 2010, the United States Supreme Court handed down Skilling v. United States.  Addressing the constitutionality of 18 U.S.C. § 1346, the Court clipped the wings of the honest-services statute, limiting its applicability to kickback schemes and bribery only.  In response to the Skilling decision, Scruggs filed a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, arguing that he did not admit to bribing Judge DeLaughter and thus could not be guilty of violating § 1346 as it is now defined under Skilling.  The district court found that by pleading guilty, Scruggs had procedurally defaulted on the claim.  The court denied Scruggs’s § 2255 motion after finding that Scruggs could not show actual innocence or cause and prejudice.  Scruggs appealed, challenging the court’s subject matter jurisdiction in light of Skilling, in addition to arguing that he did not procedurally default on his claim.  The United States Court of Appeals for the Fifth Circuit held that the district court had subject matter jurisdiction and that Scruggs was required, and failed, to show actual innocence of all three forgone honest-services counts in the original indictment.  United States v. Scruggs, 714 F.3d 258 (5th Cir.), cert. denied, 134 S. Ct. 336 (2013).

A Compelling Case for Streamlining Venue of Actions To Enjoin Arbitration

As arbitration, rather than litigation in court, grows as a favored forum for dispute resolution, the role of federal courts in guiding parties toward arbitration has increased in importance. Federal courts are regularly asked to intervene to compel arbitration or to enjoin arbitration from proceeding. A circuit split has developed regarding whether federal courts have the power to compel arbitrations in districts outside their own, stemming from § 4 of the Federal Arbitration Act’s conflicting permissive versus mandatory venue provisions. There are likewise conflicting opinions regarding whether a federal court can enjoin an arbitration pending in another district. This Article explores the disparate decisions on these issues, arguing that venue for an action to enjoin arbitration should be limited to the district where arbitration is pending in order to promote judicial efficiency, to prevent forum shopping, to avoid inconsistent rulings, and to funnel parties quickly to arbitration.