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Why I Love the Law, Reason #362:
Because judges can write 85 pages of very serious analysis on the constitutionality of moving a zipper on a jacket. See today's en banc Fourth Amendment decision by the DC Circuit in United States v. Askew. The en banc court ended up taking a different view than the original divided panel: My coverage of the panel opinion from April 2007 is here. There are some interesting conceptual issues in play here that I'll probably blog about next week, but for now I wanted to just flag the decision so everyone is up to date on the latest in zipper jurisprudence. Thanks to How Appealing for the link.
Viceroy:
You highlighted a key difference b/w academia/judging and the practice. If you were a lawyer who was hired to write 85 pages on zipper jurisprudence chances are you are likely to be unhappy about it. In fact, you may even be thinking - wtf am I spending hours upon hours, not seeing my kids and family, for a stupid case involving a zipper (and the Fourth Amendment)?
6.20.2008 5:47pm
Houston Lawyer:
You could easily put this opinion down as Why I Hate the Law. The law should be understandable to laymen or it shouldn't apply to them at all.
6.20.2008 6:02pm
OrinKerr:
Viceroy,

I suppose I am less worried about the "hours upon hours" that an attorney might spend "not seeing his kids and family" than I am about Mr. Paul Askew, who was sentenced to spend 36 months of his life in prison and now will be set free because of this decision.

I am guessing he does not see this case as "stupid."
6.20.2008 6:03pm
Stephen Aslett (mail):
Good thing that the judge carefully considered this zipper case instead of deciding it on the fly.
6.20.2008 6:04pm
Dave N (mail):
Viceroy,

Why don't you just zip it?

Couldn't resist. Sorry.
6.20.2008 6:05pm
Dave N (mail):
Two substantive comments, after my attempt at cuteness.

First, the opinion itself is only 43 pages. Judge Griffith's concurrence is 10 pages. Judge Kavanaugh's dissent is 32 pages long. Thus, the note of 85 pages refers to the entire decision, not just the majority opinion.

Second, on Orin's follow-up post about the defendant being "set free," I would note that Mr. Askew is likely already out of custody (he was sentenced to 36 months in prison well over 3 years ago) but I acknowledge that his supervised release period will undoubtedly be vacated.
6.20.2008 6:11pm
wm13:
That federal judges use my tax dollars to write long opinions about why felons can walk the streets armed, in violation of the law, while at the same time they permit big city mayors to harass honest gun dealers, is really disgusting.
6.20.2008 6:20pm
OrinKerr:
wm13,

I'm curious: Do you think the DC Circuit's decision is wrong, and if so, why?
6.20.2008 6:22pm
George Weiss (mail) (www):
Houston Lawyer:

it does really makes a mockery of a legal presumption that all know the law.

we cant have a system without such a presumption-so why not instead make the law simpler?

only problem is-with constitutional law there is no wya to make it simple by passing a statuete-its case law-and thats by definition complicated
6.20.2008 6:26pm
Viceroy:
Orin,

You are right, the example works a little better with a civil case, and better yet, with a commercial case.

But I'm still willing to bet that some lawyers on that case felt that way. It's an inevitable part of lawyering, and there are a small number of lawyers who avoid this.
6.20.2008 6:42pm
wooga:
At least this means the law clerks are working hard for their money.
6.20.2008 6:58pm
George Weiss (mail) (www):
viceroy:

if it makes you feel any better even Orin in this particular case recommended the court not go en banc-becuase it would only establish the law for the small 'circuit' of DC..and only in federal cases.

i think i disagree because i considered the panel wrong and on a slippery slope. but i see the point.
6.20.2008 7:22pm
krs:
If you were a lawyer who was hired to write 85 pages on zipper jurisprudence chances are you are likely to be unhappy about it

Unless one is an associate whose work otherwise consists of document review and drafting discovery objections and nasty letters to opposing counsel, in which case one might jump at the chance.
6.20.2008 7:50pm
George Weiss (mail) (www):

If you were a lawyer who was hired to write 85 pages on zipper jurisprudence chances are you are likely to be unhappy about it

Unless one is an associate whose work otherwise consists of document review and drafting discovery objections and nasty letters to opposing counsel, in which case one might jump at the chance.


or if you just like criminal procedure. is that even possible-somebody likeing the subject matter of their work?
6.20.2008 7:56pm
BruceM (mail) (www):
Without even looking at the opinion or reading any of the comments, I'll take a guess as to what the ultimate holding is:

We The People have no reasonable expectation of privacy behind a closed zipper.

I hope i'm wrong.
6.20.2008 8:00pm
Dave N (mail):
BruceM,

Read the opinion. You are wrong.
6.20.2008 8:22pm
drewsil (mail):
Dave N,

Actually it seems to be a bit more complicated. The controlling opinion doesn't actually reach that issue, as noted in the dissent. Despite all the ink spilled in the 85 pages the case was really decided on narrow factual grounds.
6.20.2008 8:47pm
Sean M:
What I find amusing factually about the case is this: The officers conducted a pat down to search, presumably, for a gun. The pat down did not reveal a gun. The officers unzip the jacket and find a gun.

Good to know that the frisk really helped officer safety, hmm?
6.20.2008 8:55pm
Viceroy:
Even if you are doing the type of work you love, as a practitioner, once you are outside the 2% who are literally just picking and choosing and controlling their schedules and cases, you will still confront the question from time to time.

Let's face it, lawyers who are working for $ are rarely working on anything earthshattering. Or, if you are, you can look up the chain and feel bad by comparison. I don't think you feel this in academia or as a judge - that was my only point. An obvious point but I think one that is well illustrated by the post.
6.20.2008 10:17pm
Ex parte McCardle:
To paraphrase Judge Henry Friendly, "The question is, what is a zipper?"
6.20.2008 10:24pm
OrinKerr:
Even if you are doing the type of work you love, as a practitioner, once you are outside the 2% who are literally just picking and choosing and controlling their schedules and cases, you will still confront the question from time to time.

Let's face it, lawyers who are working for $ are rarely working on anything earthshattering. Or, if you are, you can look up the chain and feel bad by comparison. I don't think you feel this in academia or as a judge - that was my only point. An obvious point but I think one that is well illustrated by the post.


I think there is something to this, but there is much more interesting work in academia than in the judiciary. I'm reminded of the recent interview with Justice Scalia in which (if I recall correctly) he complained about how much uninteresting work he had to do in his job. I don't remember the exact quote, but maybe some readers will remember it. I don't think most professors feel that way, although I believe most judges do.
6.20.2008 10:50pm
Dave N (mail):
there is much more interesting work in academia than in the judiciary
I don't want to go off topic, but perhaps Professor/Judge Cassell could comment on this, since he has recent experience with both.
6.20.2008 11:54pm
Horatio (mail):
WHY I LOVE THE LAW, REASON #362:
Because judges can write 85 pages of very serious analysis on the constitutionality of moving a zipper on a jacket.

Shakespeare was right
6.21.2008 9:34am
Bob from Ohio (mail):
43 pages! It is just judicial hubris. My prose is so good that I must share it with the world! See how smart I am!
6.21.2008 2:13pm
Sk (mail):
This case, apparently, makes it easier for felons to illegally hide handguns under their zipped jackets.

Support for the court's findings, then, means one of three things:
1) one is a felon who routinely hides illegal handguns under his jacket,
2) one likes the fact that felons can more easily illegally hide handguns under their jackets, or
3) one is wealthy enough to live in neighborhoods where felons don't often illegally hide handguns under their jackets, and therefore support for such a ridiculous position doesn't really affect you in a true sense.

So much of abstract legal reasoning depends upon the distance, emotional and physical, between legal reasoners and the consequences of their views. In effect, if you are rich and insulated, discussing felons hiding handguns behind zipped jackets is about as 'real' as discussing felons hiding handguns behind zipped jackets in Croatia. Its irrelevant (to you) whether you are 'right' in a practical, pragmatic sense. Logical puzzles are fun in such circumstances.


Sk
6.21.2008 4:35pm
Sean M:
The problem, Sk, is we can do this logic with any Constitutional right.

The Fourth Amendment, apparently, makes it easier for people to conduct illegal activity inside their home.

Support for the Fourth Amendment, then, means one of three things:
1) One is a person who conducts illegal activity inside his home.
2) One likes the idea of people conducting illegal activity inside their homes.
3) One is wealthy enough to live in neighborhoods where people don't often conduct illegal activity inside their homes, and therefore support for such a ridiculous position doesn't really affect you in a true sense.

Besides, isn't doctrine based on results "judicial activism," the cardinal sin of the judiciary?
6.21.2008 11:02pm
krs:
43 pages! It is just judicial hubris. My prose is so good that I must share it with the world! See how smart I am!

Either that or "I (and a handful of my colleagues) just dealt with a complicated legal question and ended up setting a criminal free and wiping another judge's opinion off of the books. I should explain how I reached my conclusions."

One of those two things.
6.22.2008 6:15pm
Jacob Berlove:
Sean M,

What I find more notable is that, as far as I can tell, Mr. Askew never attempted to harm the officers with the gun in any way. Instead of stopping to reconsider the efficacy of officer frisks, perhaps we should reconsider the necessity and hence constitutionality of them, at least in a case as this one, where the citizen isn't formally placed under arrest. Someone suspected of a crime without probable clause has everything to gain by not making any movements that could endanger officer safety. Here, Mr. Askew ended with no criminal conviction instead of a serious (attempted) assualt or murder conviction.
6.22.2008 11:09pm