Professor Spooner's Blog

Usually I think that the Supreme Court Justices, or the "Supremes" as I call them, have a really good gig. They get to pick what they work on, have life time tenure, and have a pretty nice building to work in every day. This week I don't envy them, because I get the feeling that the Justices are really busy. You know it is a historic week when an important case about the right of a state to define its own immigration laws is not the biggest news coming out of the Court. So while everyone waits for the Court's decision on the constitutionality of the health care law, let's see what is being overshadowed.

Today the Supremes issued several important decisions, one of which wasn't even argued. First, the Court struck down most of Arizona's controversial immigration law, emphasizing the supremacy of federal law in this area. Growing up and living in the Northeast, it is difficult to comprehend the policy issues surrounding immigration that are faced in states like Arizona. Yet immigration law just feels like an issue of federal law, one that we should decide as a nation, because it determines who and how people join us in America. I know almost nothing about immigration law, but really Arizona's legislation was a criminal statute in that it allowed police new powers over those who they suspected were not in Arizona (and the U.S.) legally. Indeed, the one aspect of the Arizona law upheld by the Supremes was the provision allowing police to check the immigration status of anyone that the office has a reasonable suspicion is not in the U.S. legally. As a former criminal defense attorney, this provision seems like it is subject to lots of abuse and racial stereotyping. What do you think? Should the police have that power? Should our entire nation get to decide?

Another interesting decision today held that sentencing a juvenile (someone under 18) to life without possibility of parole is a violation of the Eighth Amendment. I have studied the precursor to this decision, a case called Roper v. Simmons, which held that the death penalty was cruel and unusual punishment for juveniles. Other cases have held that life without parole is a sentence very similar to the death penalty, thus connecting the two lines of cases, the Court made a predictable conclusion. That said, there is much debate whether a 17 year old that commits a horrendous crime should get a lesser sentence than someone one year older. Ultimately, we don't want to lock up our young children for life without parole, most would agree. So we have to draw a line somewhere. Because so many other legal rights and obligations attach at age 18, it makes the most sense. Others argue that we shouldn't draw lines, but allow the jury to decide in each case whether children should be given long sentences or even the death penalty. What do you think?

This weekend we had a historical moment. A moment we will all remember. One that will impact our future.

Justin Bieber got into his first fistfight.

I wish I was kidding. Don't pretend you didn't already hear about this event. In case you are living under a rock (or have more intellectual pursuits), here is the story: Justin and his famous girlfriend attend movie. Justin and Selena leave the movie. Paparazzi gets in his way. Justin beats up paparazzi. Important foreshadowing: Justin has been sparring with Mike Tyson recently. I truly am speechless at the thought of the two of them together.

Lucky for us, this ridiculously important event presents lots of legal issues. First, we have the potential for some tort claims. Depending on whether Justin threatened the paparazzi with imminent harm before his hit him, the paparazzi can sue Justin for the torts of assault and battery. I would put the odds of this lawsuit, or a threat of this lawsuit, at 100%. Justin has a lot of money, so he is a dream tort defendant.

Second, it sounds like the prosecutors are thinking about bringing a criminal charge against Justin. This would probably be a battery charge. It is a helpful case for pointing out the distinction between criminal and civil assault. The prosecutors can charge the Biebs with a crime. Only the paparazzi can sue for the tort. I find the odds of Justin going to jail for this about 1%. But it makes for great TMZ headlines.

Last, a journalist for CNN actually managed to turn this into a thoughtful opinion piece on copyright and publicity laws. Although I can barely stand a serious approach to this fist fight, the author raises some interesting questions about copyright law and celebrities. As the law stands, the photographer owns the copyright to any photos he or she takes. The person in the photo does not. This means that paparazzi have a financial incentive to do things like follow Justin and Selena to a movie. The author proposes that the law be changed to give copyrights to the celebrity in the photo. This would make for different copyright laws for public figures. Although it sounds complicated, we already do this for defamation law, having a different standard for celebrities suing for defamation.

Do you agree with the author's proposed changes to the law?

The Rutgers student convicted of several privacy crimes as a result of video recording his gay roommate having sex with another man,  posting the video online, and tweeting about it, has been sentenced. From my perspective, he received an extremely light sentence of only 30 days in prison, plus probation, community service, and other programming.  As I always discuss with my classes, there are several purposes that may be served by punishing criminals (and let's be clear, Dharun Ravi is a criminal, not just a stupid kid, as his defense would like you to think). Here, the purposes that seem most applicable are retribution, the desire to see a wrongdoer punished, and deterrence, an attempt to prevent future crime. I am not sure either goal is served by such a light sentence. Thirty days in prison is not going to make any future bullies think before they act. In fact, it might just comfort them. And for those who wanted Ravi to be punished, because his victim ended up taking his own life after suffering great humiliation and pain, those people seeking retribution will not be satisfied by thirty days. By the way, a lot of people are uncomfortable acknowledging that our sentences should make the criminal suffer. I think it is naive to think otherwise.

I know I sound angry, but this case makes me angry. We debated in class whether hate crimes make sense, especially in light of the First Amendment, and I still believe there is some gray area there. Invading someone's privacy like this, mocking someone for all the world to read, is unethical and should be illegal. I am not sure it needs to be more illegal just because the victim is in a protected class; I would be just as angry if the victim here was a white heterosexual male. The fact that Ravi has never apologized to the victim's parents is disgusting to me. What may be more disgusting is that dozens, if not hundreds, of other kids saw the video and read the tweets, and not one spoke up to stop it. Given the recent hazing incidents at our own university, it is time for all of us to think about the role of bystanders in immoral and illegal behavior. Why doesn't anyone speak up?