In light of the recent news that the CIA has killed al-Awlaki, I thought I’d flag my essay at CATO entitled “The Federal Protective Power and Targeted Killing of U.S. Citizens“
Here is an excerpt:
My reading of the Constitution leads me to believe that there are circumstances when the president may order U.S. citizens to be killed. It may be akin to the facts in al-Awlaki, where one is actively making war against the United States, or it may be in lesser circumstances that threaten the instruments of federal power. Let’s start with a settled example where a killing was authorized to protect the federal government. In Cunningham v. Neagle, 135 U.S. 1 (1890), the Court addressed the killing of a U.S. citizen by Neagle, a federal marshal who was dispatched to protect Justice Field from an anticipated assault. While on a railroad dining car, the assault occurred (as expected) and Neagle reacted by killing the assailant with two pistol shots; Neagle was subsequently arrested on homicide charges and held for trial. The question the Court addressed was whether Neagle, acting upon orders but not a statute, had authority to kill a man in defense of Justice Field. The Court found that Neagle was acting pursuant to lawful authority, because the President was entitled to authorize protection for a sitting Supreme Court Justice. Justice Miller wrote:
That there is a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the State of California; are questions too clear to need argument to prove them.
While the Court characterized the questions as “too clear to need argument to prove them” this was in fact the first time the Court ever articulated what was long thought to exist—a federal protective power. The Court went on to explain that the structure of the Constitution itself suggested there was an inherent executive power to protect federal officers in the discharge of their duties.
Neagle was reinforced five years later in In re Debs, 158 U.S. 564 (1895), a case involving the attorney general’s attempts to prohibit interference with interstate commerce. In Debs the Court noted that the president was acting on inherent powers embedded in the Constitution and existing statutes, both of which allowed him to act as the primary agent of the national government to “prevent any unlawful and forcible interference” with interstate commerce. The Court went on to state that the president could use “the entire strength of the nation” including “the army of the Nation, and all its militia” to protect interstate commerce. Moreover, the Court cited numerous English and state authorities for the proposition that “when the choice is between redress or prevention of injury by force and by peaceful process, the law is well pleased if the [Executive] will consent to waive his right to the use of force and await [the law’s] action,” (emphasis mine) but such waiver is not constitutionally required. The import of Neagle and Debs is perhaps best summarized by the dissent in the Steel Seizure case, “[t]he Executive is authorized to exert the power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government.”
Read the whole thing here, and contributions from others here.
Maryland DUI attorney Gary S. Bernstein’s website and license plate have provided the opening for our discussion of plea bargains in my Ethical Criminal Practice class. Why? Well, Bernstein’s web address is http://www.noplea.com and on his webpage he features this picture of his license plate:
If you can’t read what that says, it reads “No Plea.” Now of course, I doubt Mr. Bernstein’s url and license plate reflect his actual approach to cases. I think it’s more likely that this is clever advertising intended to reassure clients that he will fight for them, not take their money and plead out their case. Nevertheless, his advertising provides a fun opening for discussion. Should a defense attorney explore the possibility of a plea? Must they?
The ABA provides us a helpful guide in ABA Criminal Justice Standard 4-6.1, The Defense Function. Specifically that standard reads:
Standard 4- 6.1 Duty to Explore Disposition Without Trial
(a) Whenever the law, nature, and circumstances of the case permit, defense counsel should explore the possibility of an early diversion of the case from the criminal process through the use of other community agencies.
(b) Defense counsel may engage in plea discussions with the prosecutor. Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial.
Would an attorney be sanctioned for failing to explore the possibility of a plea agreement? The ABA Criminal Justice Standards alone probably aren’t enough, given their intended purpose:
Standard 4- 1.1 The Function of the Standards
These standards are intended to be used as a guide to professional conduct and performance. They are not intended to be used as criteria for the judicial evaluation of alleged misconduct of defense counsel to determine the validity of a conviction. They may or may not be relevant in such judicial evaluation, depending upon all the circumstances.
Nevertheless, an interesting question is whether a policy of not accepting a plea can supersede one’s obligation to explore a plea. I think it can’t because one cannot adequately advise their client about the consequences of going to trial without also informing their client about the alternatives. That failure might mean a successful claim for ineffective assistance of counsel. Cf. Christopher F. Pittman v. South Carolina, Case No. 07-CP-12-00444 Related News Story here.
On September 14, 2011 Pepperdine University will be hosting its Inaugural Technology & Learning Faculty Conference. I will be presenting on Increasing Student Engagement and Measuring Learning with Clickers.
Here is an excerpt from the program:
Professor of Law Gregory McNeal is no novice to teaching with technology. Professor McNeal, who teaches in a traditional lecture style, talks about using clickers to gain feedback from students and engage with them in the classroom. In this session you will experience what his students experience as he takes you through a lesson focused on the-beyond-a-reasonable-doubt standard in a homicide case. This interactive presentation will demonstrate how clicker technology facilitates learning and critical thinking, and allows for immediate assessment. If you are interested in using clickers in your classroom, you should consider attending this session.
My presentation will demonstrate the use of Turning Technologies clickers (pictured at right).
The full agenda appears below:
Today at Chapman University School of Law I will be presenting at an event entitled “9/11 Ten Year Anniversary: Terrorism & Counter-Terrorism Since the Attack.” The event will begin at 11:45am in Room 142 and is sponsored by the Federalist Society.
From the promotional materials:
Gregory S. McNeal, legal scholar and specialist in terrorism and homeland security, will be discussing the decade since 9/11, reviewing U.S. policies as they have developed in response to and in anticipation of a dynamic and interconnected world rife with terrorist threats. We will also explore possible reasons why there have been no successful, major, sophisticated terror attacks on U.S. soil since 9/11
On Thursday, September 15th I will be presenting a paper entitled “Drones, Targeting, and Civilian Casualties” at Loyola University New Orleans- College of Law and at the Louisiana State University- Paul M. Hebert Law Center. 
On September 8th I will be presenting “Collateral Damage and Drone Warfare” at the University of Idaho College of Law. The free event begins at 6pm and is open to the public. Refreshments will be served and there will be an opportunity for Q&A.
On September 8th I will be presenting “Collateral Damage and Drone Warfare” at Gonzaga University School of Law. The free event begins at noon and is open to the public. Refreshments will be served and there will be an opportunity for Q&A.
I will be presenting research at Tulane University School of Law on Thursday, September 1st. The talk is entitled “Collateral Damage and Targeted Killing” and is based on my work in progress entitled Collateral Damage and Accountability. Professor Herbert Larson will serve as a commentator. The event is sponsored by the Federalist Society, is open to the public and begins at 6pm with a reception to follow.
At Volokh, Orin Kerr posted the results of an interesting survey at GW Law School “What Elective Courses Lawyers Wish They Had Taken in Law School, and What Courses Were Most Useful.” According to Orin:
“The three most useful elective courses students took, according to the responses received:
1. Evidence — 156 respondents (27%)
2. Administrative Law — 120 respondents (21%)
3. Corporations — 105 respondents (18%)
This post prompted Scott Greenfield at Simple Justice to write:
Evidence? Was it possible that a person graduate law school and not take a course in evidence?
This was definitely a good time to pull out the “shocked and appalled” cliche. What became of the core curriculum of law school that included the foundational subjects, torts, real property, contracts, criminal, constitutional, civil procedure? And yes, evidence?
Nor is this some nightmarish nouveau experiment at GW, as I learned that quite a few law schools no longer require every student to take evidence. How, I wondered, can any lawyer function without a working knowledge of relevance and materiality, hearsay, admissibility?
I weighed in, in the comments and have posted those thoughts below:
GW is not unique in making Evidence an elective. Starting sometime in the mid-90s law schools moved away from requiring very many courses other than those in the 1st year curriculum, and as far back as 1986 Evidence was an elective at 54% of law schools. According to the ABA Curriculum Committee Study 1992-2002 (Set to be updated in 2012) in the upper level curriculum the most commonly required upper courses were (with % of schools indicated parenthetically):
- ConLaw (52.8%)
- Evidence (46.4%)
- BusAssoc (21.5%)
- FedTax (16.9%)
- CrimPro (14.3%)
- Trusts&Estates (13.8%)
- CommercialLaw (11%)
- Trial Practice (7.8%)
In 1986 Evidence was required by 46% of schools the same as in 2002. BA dropped from 28% in 1986 to 21.5% in 2002, T&E dropped from 17% in 1986 to 14% in 2002 and Tax dropped from 31% in 1986 to 16.9%. I expect in the 2012 report we will see even fewer schools requiring courses.
In the report there was little statistical evidence that the curricular changes were driven by the bar exam. According to the report, other factors could have been equally important, specifically mentioned were: “faculty resources, pedagogical beliefs, specialization or niche interests, and faculty politics” as equally influential. I imagine that many will jump all over the faculty politics point, however my sense is that it explains a lot less than one would think. Faculty at most schools are hired with an expectation they will teach certain subjects, thus most don’t really have any skin in the game when it comes to changing the curriculum…save for when you’re changing it to make them do something they don’t want to do.
Separately, at Pepperdine we have a very heavy upper-level required curriculum, and I would guess we are different than 90% of law schools and certainly unique amongst the “Top 100″ in the number of courses we require. For a variety of institution specific reasons, I’m not convinced it is to the benefit of all of our students. The courses we require are:
- Corporations
- Evidence
- Wills and Trusts
- Constitutional Structure
- Constitutional Law–Individual Rights and Liberties
- Federal Income Taxation
- Criminal Procedure
- Remedies
- and a Professional Responsibility course* (*In addition to the general PR course we also offer specialty PR courses. For example, I teach Ethical Criminal Practice, which focuses on issues unique to prosecutors and defenders).
Depending on who you ask, any one of those could be justified as a requirement for preparing future lawyers. But by that measure one should also include Admin Law, and courses in skills development such as Client Counseling, Negotiation, Pre-Trial Practice, and advanced Legal Writing courses (in drafting for example).
