Introducing Overruled, a great online resource for timely legal commentary -- including the menace of mandatory arbitration

by Ken

As you may have noticed, our friend Jon Dodson has cut back his writing for us on legal matters, in order to devote fuller attention to his bulging legal caseload. One of these days we'll get around to nudging him to see if we can't shake an occasional piece out. Meanwhile there's an excellent new source of current legal comment, now that our distinguished colleague Ian, a frequent commenter on legal affairs on HuffPost and elsewherem has taken the plunge and started his own blog, Overruled.

After eight years in which we progressives relied on our legal brethren to keep track of the constitutional and legal matters the Bush regime was making mincemeat of, legal issues have become if anything higher-profile, as we survey the wreckage and figure out what has to be done to restore the rule of law (and the Constitution, of course), and as we fail to do so. I've come to trust Ian's timely and carefully considered takes on matters of immediate legal import, and I'm sure the blog will give him a chance to focus on longer-term issues as well.

One subject that Ian has jumped on about which I confess I knew very little is the campaign for the proposed Arbitration Fairness Act, designed to deal with a whole area of legal coercion, mandatory arbitration, which hasn't gotten much discussion outside the legal community. As he wrote Friday:

I’ve written a lot lately about binding mandatory arbitration, the biased, privatized justice system which many companies force their customers and employees to participate in. If you are tricked or trapped into signing a mandatory arbitration clause, and many companies will refuse to do business with you unless you do, you lose the right to hold that company accountable in court if it breaks the law—and instead must bring your case to a secret tribunal that overwhelmingly favors corporations. Presently, the corporate lobby is fighting very hard to block a bill which will stop abusive arbitration.

Note: In the event that Prof. Jonathan Turley hasn't covered the legal issue you're interested in with either Keith or Rachel, and isn't taking your calls, Ian welcomes e-questions and tips.

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Lost In the Historic Moment With a Bitter Asterisk (a personal reflection by Jon)

by Jon Dodson

My thoughts have been swimming this week, and several times I've teared up over nothing, or felt at a loss for words. This will not be the most graceful or organized blog post, but it's important to try to express what I'm feeling, so I'll just start writing.

It would seem the stars of posterity have aligned. After a long, dark nightmare where the vision and ideals we had for ourselves and our country were seeming more and more like Mother Goose, we're left stunned, pinching ourselves. This week, we began a new chapter in the romantic story of our country, in a way almost too poetic to be true. I'm not talking about Obama's pretty words, although they were, as usual, perfect for the occasion. I'm talking about the culmination of everything that has occurred in the past 5 months, the past 16 months, the past 4 years, 8 years, 40 years, and 400 years. As if everything that has come before us was purposefully timed for this moment. And despite the tedious length of the primary process, the moment snuck up on me.

A moment that comes at a time when our nation has never, ever faced such a mind-boggling array of vast, interrelated problems -- each capable of completely undermining life as we know it. A moment where our government and society are so dysfunctional that we seem incapable of addressing even the easiest of problems. And at a moment where many people worldwide had lost all faith in America and her ideals, someone was nominated whose words and apparent capacity to deliver are too good to be true. At the same time, we've somehow managed to take a vast, huge, people-powered step for our democracy. We have vindicated every democratic ideal I've ever held. Through Obama, we've proven that we can do politics without the special interests, without the beltway "knowledge" or methodology, without the lobbyist contributions, without going negative, without dishonesty, without fear, and without avoiding the tough questions or tough issues. These are problems that seemed to me insurmountable less than a year ago, notwithstanding my high hopes for Net-based democracy. And today's news from the DNC shows just how quickly the Democratic party establishment are following Obama's example, and just how quickly things can change for the better.

And of course, that's not even the most significant aspect of our moment.

I'm only 26. I barely remember the Reagan years, I certainly wasn't alive during the five-year span when America lost three of her greatest heroes, and I can't imagine what I'd do at the sight of a sign demarcating the "colored" rest room. So maybe I have no excuse, and maybe I'm just a sap, but I'm overwhelmed with emotion.

Never let it be said that people from my generation don't care, or don't understand, or don't pay attention, because many of us do. My parents grew up in the segregated South, and they instilled in me the values of the civil rights movement, which was reflected in our conversations, movies, TV, books, values, our politics, and, ultimately, my career. We were always the only white people to go to the only local church that acknowledged Martin Luther King Day, the black First Baptist Church.

The most formative moment of my childhood was in 1993, when my father brought me to the 30th anniversary of the March on Washington, an extremely hot and humid summer day, where I learned the words to "We Shall Overcome," the Negro National Anthem, and other freedom songs; where me and my dad waded in the reflecting pool, under the shadow of Abraham Lincoln, while we watched Coretta Scott King, Rosa Parks, and so many others reflect on the import of that day. As me and my dad took the Metro back to Virginia, we listened to an older black man tell stories of his participation at the sit-ins in Greensboro, North Carolina. That night when we got to the hotel room, Dad told me to call my mom. I did and began excitedly telling her about everything I'd seen that day. She got choked up and began crying. In my innocence, I told her, "I'm sorry you missed it." She tried to explain that that wasn't why she was crying, but she just couldn't find the words.

It's worth noting that my parents could've never known how important and empowering those experiences would be for me as I grew older and came of age, a gay teenager in the heart of the Bible Belt.

And so, my heroes were always my parents' heroes. Today is the 40th anniversary of the assassination of the last American hero, and the 2nd day since the coronation of the next. And how I've yearned to call my mom and share the moment with her. But I can't. She is basically incapable of appreciating this moment. Because she is one of the many women who feel deeply hurt and betrayed by the loss of Hillary. And there's nothing I can say or do. I can only try to understand the great hope and anticipation she felt at seeing a woman in charge -- another hope she's been waiting her entire life to see realized, a hope which she was told (by an irresponsible press and a recklessly cocky campaign) would be inevitably fulfilled in January, and a hope dashed, in her mind, because of the often sexist coverage of the media.

For all of the poetry and timing of this moment, how bittersweet that it has come at such a high cost, and I'm not talking about the general election. I don't care who my mom votes for, or whether she votes at all. I do care that she is hurting. I care that she apparently thinks I don't understand the depth of her pain and disappointment -- a disappointment so profound that she can't bring herself to celebrate with her son the epic turning of the page that she raised me to care about. What a bitter irony, that when I called her on Tuesday night, she didn't understand why I was crying.

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On tap tonight: Our crack constitutional consultant Jon Dodson ponders--SUPREME COURT FRAUD?

Our intrepid correspondent has been looking from every possible angle at the Supreme Court's peculiar ruling in the Indiana photo-ID voting-rights case--written by, of all people, Justice John Paul Stevens--trying to find an angle from which the ruling makes a lick of sense, constitutional or common.

We hope we're not giving away too much when we report that Jon didn't have a whole lot of luck.

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THE FOURTH AMENDMENT GONE WILD, PART III

DWT's constitutional expert Jon Dodson has been working on a 25 part series about the Fourth Amendment. You might want to check out Part I and Part II. Jon:
 
At long last, another piece on the Fourth Amendment. Eons ago, I wrote the first two installments, the first one on the difference between searches and Fourth Amendment "searches," and the second on the difference between seizures and Fourth Amendment "seizures." This matters because the Fourth Amendment only covers "searches" and "seizures." The next great bulwark of constitutional protection is the rule that any police action that through some oversight by the Supreme Court, actually falls within the operative definitions, must be supported by a "warrant" and "probable cause," occasionally. Today, "probable cause."
 
It's the second-lowest standard of judicial review in the Western legal system, and it only applies sometimes. Aside from prosecutorial discretion, it's the only thing between a person and typically, a night in jail, several thousand dollars in legal fees, court fees, probation fees, fees of the various other organizations that leech off of the criminally accused, and a criminal charge, which would forever stain your record, whether or not you're convicted. More pertinent to the Fourth Amendment, an officer must have probable cause to believe he will find something in order to conduct a "search," and must have probable cause to believe an item (or person) is relevant to a crime in order to "seize" it, sometimes.
 
When a police officer pulls someone over, she may have a hunch that the car contains contraband, or evidence of a crime. Such a hunch could come from many sources-- the stereotypes and prejudices of the officer, the race, religion, gender, or manner of dress of the person detained, political and other bumper stickers, or even concrete "evidence." The police officer need only point to some objective fact that bolsters his "hunch." Such a fact need not be verifiable later in court (such as the whether it smelled of marijuana). So long as the fact seems plausible in light of the officer's allegations, then an officer will usually have probable cause to search or seize a person or thing.
 
There are many other standards of proof a judge might use to measure the reliability and credibility of the State's allegations. In order to convict the person of a crime, the prosecutor must prove the charges "beyond all reasonable doubt." This is the highest standard. The next highest standard is "clear and convincing evidence," which is used in child custody hearings. Next is "preponderance of the evidence," which basically means "more likely than not." Statistically speaking, evidence surpasses the "preponderance of the evidence" standard, when the evidence establishes that something was 51% likely to have happened.  By implication, some allegations that are less than 51% likely to have happened meet the next lowest standard: probable cause. When the allegations are merely "as likely as not" to have happened, there is probable cause. Even when the allegations are improbable, there is usually probable cause.

Despite the ease with which any officer or false informant could manufacture probable cause, the Supreme Court found that the remains of the standard recited in the Fourth Amendment, were still too inconvenient to law enforcement. Over the last forty years, the court has devised ad hoc exceptions to the constitutional mandate. Hence, we have many Fourth-Amendment-free zones in this country. Some of them are more understandable than others. For example no probable cause is needed to search one's bags in airports, airplanes, many government buildings, large gatherings, and all kinds of commercial establishments, big and small. These exceptions are extremely inconvenient, but perhaps understandable. There's a plethora of different "automobile" exceptions to probable cause. Most people spend substantial time in their cars. We transport everything in our cars, including groceries, personal papers and documents, medications, and pretty much anything that fits. We go many different places and jurisdictions in our cars. But anything in our cars can very easily be searched. 
 
Then there's the so-called "Terry stop." This is a vague exception, whereby an officer can perform a pat-down or other limited search based on the lower "reasonable suspicion" standard. Translation: an officer can detain a person and search their pockets and bags whenever he can pull a story out of his ass that is minimally, arguably plausible. 
 
So, the venerated standard, "probable cause," is a virtual free-for-all. A dishonest officer must only articulate something not patently outrageous to meet the standard. In many situations, such as in cars or airports, the officer doesn't even need this. Moreover, as discussed previously, the standard doesn't even apply to the vast array of invasive police activity not considered a constitutional "search," or "seizure." We could take refuge in the Constitution's mandate of judicial oversight of searches and seizures, via the warrant procedure. But, as you might imagine, the warrant procedure doesn't amount to much, particularly when judges apply such deferential standards. So, despite the Fourth Amendment's historical, quintessentially American underpinnings, the grand, revolutionary ideas encapsulated, and its centuries of use, all we're really left with is perhaps all we ever had: the discretion of the powerful. 


UPDATE: THIS IS WHY WE REFER TO JON AS OUR CONSTITUTIONAL EXPERT

Supremes give the man more power for searches. "The Supreme Court offered unanimous support for police Wednesday by allowing drug evidence gathered after an arrest that violated state law to be used at trial, an important search-and-seizure case turning on the constitutional limits of 'probable cause.'"

When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety," Justice Antonin Scalia wrote.

What do you do with a guy you're shit-canning who doesn't have the sense to take the money and go quitely? Meet Gene Nichol, ex-college president

Our crack constitutional consultant Jon Dodson tipped us off to these dark doings at his alma mater, the College of William and Mary in Williamsburg, Virginia. It seems--as reported by poster bpkybe (a William and Mary student) on the Raising Kaine website--that the joint's quaintly named governing body, the Board of Visitors, has shit-canned its president, Gene Nichol (above), after a surprisingly brief tenure.

What's more, as bpkybe (the "my" in "my emphasis") stresses by boldfacing the paragraph in question, President Nichol turned down the board's offer of money to go quietly. Usually in such cases the party of the shit-canned part just takes the money and buttons his lip. But Nichol didn't go quietly. He left with this remarkable letter--

Dear Members of the William and Mary Community:

I was informed by the Rector on Sunday, after our Charter Day celebrations, that my contract will not be renewed in July. Appropriately, serving the College in the wake of such a decision is beyond my imagining. Accordingly, I have advised the Rector, and announce today, effective immediately, my resignation as president of the College of William and Mary. I return to the faculty of the school of law to resume teaching and writing.

I have made four decisions, or sets of decisions, during my tenure that have stirred ample controversy. First, as is widely known, I altered the way a Christian cross was displayed in a public facility, on a public university campus, in a chapel used regularly for secular College events -- both voluntary and mandatory -- in order to help Jewish, Muslim, Hindu, and other religious minorities feel more meaningfully included as members of our broad community. The decision was likely required by any effective notion of separation of church and state. And it was certainly motivated by the desire to extend the College's welcome more generously to all. We are charged, as state actors, to respect and accommodate all religions, and to endorse none. The decision did no more.

Second, I have refused, now on two occasions, to ban from the campus a program funded by our student-fee-based, and student-governed, speaker series. To stop the production because I found it offensive, or unappealing, would have violated both the First Amendment and the traditions of openness and inquiry that sustain great universities. It would have been a knowing, intentional denial of the constitutional rights of our students. It is perhaps worth recalling that my very first act as president of the College was to swear on oath not to do so.

Third, in my early months here, recognizing that we likely had fewer poor, or Pell eligible, students than any public university in America, and that our record was getting worse, I introduced an aggressive Gateway scholarship program for Virginians demonstrating the strongest financial need. Under its terms, resident students from families earning $40,000 a year or less have 100% of their need met, without loans. Gateway has increased our Pell eligible students by 20% in the past two years.

Fourth, from the outset of my presidency, I have made it clear that if the College is to reach its aspirations of leadership, it is essential that it become a more diverse, less homogeneous institution. In the past two and half years we have proceeded, with surprising success, to assure that is so. Our last two entering classes have been, by good measure, the most diverse in the College's history. We have, in the past two and a half years, more than doubled our number of faculty members of color. And we have more effectively integrated the administrative leadership of William and Mary. It is no longer the case, as it was when I arrived, that we could host a leadership retreat inviting the 35 senior administrators of the College and see, around the table, no persons of color.

As the result of these decisions, the last sixteen months have been challenging ones for me and my family. A committed, relentless, frequently untruthful and vicious campaign -- on the internet and in the press -- has been waged against me, my wife and my daughters. It has been joined, occasionally, by members of the Virginia House of Delegates -- including last week's steps by the Privileges and Elections Committee to effectively threaten Board appointees if I were not fired over decisions concerning the Wren Cross and the Sex Workers' Art Show. That campaign has now been rendered successful. And those same voices will no doubt claim victory today.

It is fair to say that, over the course of the past year, I have, more than once, considered either resigning my post or abandoning the positions I have taken on these matters -- which I believe crucial to the College's future. But as I did so, I thought of other persons as well.

I thought of those students, staff, faculty, and alumni, not of the religious majority, who have told me of the power of even small steps, like the decision over display of the Wren Cross, to recognize that they, too, are full members of this inspiring community.

I have thought of those students, faculty, and staff who, in the past three years, have joined us with explicit hopes and assurances that the College could become more effectively opened to those of different races, backgrounds, and economic circumstances -- and I have thought of my own unwillingness to voluntarily abandon their efforts, and their prospects, in mid-stream.

I have thought of faculty and staff members here who have, for decades, believed that the College has, unlike many of its competitors, failed to place the challenge of becoming an effectively diverse institution center stage -- and who, as a result, have been strongly encouraged by the progress of the last two years.

I have thought of the students who define and personify the College's belief in community, in service, in openness, in idealism -- those who make William and Mary a unique repository of the American promise. And I have believed it unworthy, regardless of burden, to break our bonds of partnership.

And I have thought, perhaps most acutely, of my wife and three remarkable daughters. I've believed it vital to understand, with them, that though defeat may at times come, it is crucial not to surrender to the loud and the vitriolic and the angry -- just because they are loud and vitriolic and angry. Recalling the old Methodist hymn that commands us "not to be afraid to defend the weak because of the anger of the strong," nor "afraid to defend the poor because of the anger of the rich." So I have sought not to yield. The Board's decision, of course, changes that.

To my faculty colleagues, who have here created a distinctive culture of engaged, student-centered teaching and research, I will remember your strong and steadfast support until the end of my days.

To those staff members and alumni of this accomplished and heartening community, who have struggled to make the William and Mary of the future worthy of its distinctive past, I regret that I will no longer be part of that uplifting cause. But I have little doubt where the course of history lies.

And, finally, to the life-changing and soul-inspiring students of the College, the largest surprise of my professional life, those who have created in me a surpassing faith not only in an institution, but in a generation, I have not words to touch my affections. My belief in your promise has been the central and defining focus of my presidency. The too-quick ending of our work together is among the most profound and wrenching disappointments in my life. Your support, particularly of the past few weeks and days, will remain the strongest balm I've known. I am confident of the triumphs and contributions the future holds for women and men of such power and commitment.

I add only that, on Sunday, the Board of Visitors offered both my wife and me substantial economic incentives if we would agree "not to characterize [the non-renewal decision] as based on ideological grounds" or make any other statement about my departure without their approval. Some members may have intended this as a gesture of generosity to ease my transition. But the stipulation of censorship made it seem like something else entirely. We, of course, rejected the offer. It would have required that I make statements I believe to be untrue and that I believe most would find non-credible. I've said before that the values of the College are not for sale. Neither are ours.
(My emphasis: The Board of Visitors offered him hush money?! Unacceptable.)

Mine, to be sure, has not been a perfect presidency. I have sometimes moved too swiftly, and perhaps paid insufficient attention to the processes and practices of a strong and complex university. A wiser leader would likely have done otherwise. But I have believed, and attempted to explain, from even before my arrival on the campus, that an emboldened future for the College of William and Mary requires wider horizons, more fully opened doors, a broader membership, and a more engaging clash of perspectives than the sometimes narrowed gauges of the past have allowed. I step down today believing it still.

I have also hoped that this noble College might one day claim not only Thomas Jefferson's pedigree, but his political philosophy as well. It was Jefferson who argued for a "wall of separation between church and state" -- putting all religious sects "on an equal footing." He expressly rejected the claim that speech should be suppressed because "it might influence others to do evil," insisting instead that "we have nothing to fear from the demoralizing reasonings of some if others are left free to demonstrate their errors." And he averred powerfully that "worth and genius" should "be sought from every condition" of society.

The College of William and Mary is a singular place of invention, rigor, commitment, character, and heart. I have been proud that even in a short term we have engaged a marvelous new Chancellor, successfully concluded a hugely-promising capital campaign, secured surprising support for a cutting-edge school of education and other essential physical facilities, seen the most vibrant applicant pools in our history, fostered path-breaking achievements in undergraduate research, more potently internationalized our programs and opportunities, led the nation in an explosion of civic engagement, invigorated the fruitful marriage of athletics and academics, lifted the salaries of our lowest-paid employees, and even hosted a queen. None of this compares, though, to the magic and the inspiration of the people -- young and older -- who Glenn and I have come to know here. You will remain always and forever at the center of our hearts.

Go Tribe. And hark upon the gale.

Gene Nichol

THE HEAD VISITOR, A NOTED IDEOLOGICAL HACK, REPLIES

There is now an official reply from the rector of the William and Mary Board of Visitors, insisting that the nonrenewal of President Nichol's contract was "not in any way based on ideology or any single public controversy." But since the rector of the William and Mary Board of Visitors is none other than former FCC Chairman Michael Powell, it seems safe to assume that what he means is that the decision was entirely ideological.

It is, after all, something of an understatement to describe Rector Powell as "a noted ideological hack." He actually succeeded in overcoming his longtime identity as Colin Powell's son to become known as perhaps the most partisan and most hackish lug ever to chair a federal regulatory commission. (Okay, the bum who took his place at the FCC is giving him a run for his money.) He is, in other words, an elite ideological hack--the creme de la creme of the fraternity.

Oh, what the hell, you probably haven't read nearly enough bullshit today. So here's the official word of Rector Powell:

Dear Alumni and Friends of the College of William and Mary,

President Nichol has announced he will not serve the remainder of his term. We had hoped that he would and regret his decision. The Board of Visitors decision not to renew his contract after his current agreement expires on June 30th was extremely difficult.

President Nichol achieved some outstanding things during his tenure. His energy and passion is legendary. He is a truly inspirational figure who has enjoyed the affection of many. After an exhaustive review, however, the Board believed there were a number of problems that were keeping the College from reaching its full potential and concluded that those issues could not be effectively remedied without a change of leadership.

It is critical to explain that this decision was not in any way based on ideology or any single public controversy. To suggest such a motivation for the Board is flatly wrong. Indeed, the Board has been repulsed by the personal attacks on the President and his family. The uncharitable personal assaults are unworthy of anyone who professes to care about the College and there should be no joy when things do not work out between good people.

Many policies championed by President Nichol are fully embraced by the Board. We agree unflinchingly with the President's efforts to make William and Mary a more diverse educational environment. His achievements in this area will be the most enduring part of his legacy. We will continue the pursuit with vigor and will insist that all future presidents of the College do as well. We strongly support the Gateway program and will work to put it on sound financial footing by building an endowment that will allow it to blossom. Equally, we continue to see the enormous value that attends to the efforts of internationalization and civic engagement. And, so there is no doubt, the Board will not allow any change in the compromise reached on the placement of the Wren Cross.

The Board is cognizant that its decision will be deeply disappointing to many, especially members of our faculty and student body. Our sacred stewardship and full insight into the affairs of the College convinced us change was necessary to advance the best interests of the College. We understand the sense of loss and will work hard to heal all wounds.

But it is important to remember that William and Mary is stronger and more enduring than any one person or any one board. It will continue to rise and thrive through the ages. She is the Alma Matter of a Nation and the vibrancy of our students coupled with the wisdom and dedication of our masterful faculty will keep the College shining more brightly than any star in the constellation of higher education.

The College will begin a search for a new president immediately. In the interim, the Board will appoint Dean W. Taylor Reveley effective immediately to serve as President until a permanent leader is found.

Michael K. Powell `85
Rector, Board of Visitors

[Editorial note: It appears that the College of William & Mary actually does use an ampsersand in its name. Normally that would be enough to overcome my native aversion to the things. But that isn't why I've edited them out here (or tried to). If you had ever tried to grapple with the various dialects of pidgin HTML spoken by our blog software, you would know that only a fool would try to slip an ampersand past it. Sometimes it comes out fine; sometimes it comes out . . . well, now I can't even get it to do it. Life, I think, is too short to invite this kind of tsuris.--Ken]

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