Three Professors Presented at ABA’s Fall Institute
This was the first time Cunningham, the W. Lee Burge Chair of Law and Ethics, attended this conference. His presentation is based on his essay appearing online in the Yale Law Journal Forum, which concerned the Apple/FBI standoff in the wake of the San Bernardino tragedy in December 2015.
Cunningham’s upcoming presentation includes additional discussion about the Microsoft v. Department of Justice case that is pending in the Western District of Washington, which concerns various law enforcement agencies getting warrants for electronic information (often emails) that allow them to search a person’s entire email history without that person ever knowing.
Cunningham’s work-in-progress article proposes requirements for the handling of such electronic information, including how the information is stored and how particular the warrants must be. He postulates that such requirements will address the “long-festering due process problems” caused by the current scheme.
Sekhon will be discussing bench warrants and how their use carries constitutional concerns of subverting the Fourth Amendment. According to Sekhon, when one thinks of “search and seizure” under the Fourth Amendment, the type of warrant that is needed in this case is what is called an “investigatory warrant.”
However, the majority of outstanding warrants are “bench warrants,” which are for those who fail to perform some legal obligation, such as showing up for court. Sehkon argues that the overuse of these bench warrants, especially with minority groups, incentivizes police to conduct questionably unconstitutional actions while policing.
Bench warrants used in this manner “amplify police discretion rather than circumscribing it in the manner contemplated by the Fourth Amendment’s warrant preference,” Sekhon writes. Because of the likely presence of constitutional violations under the current scheme, Sehkon’s work-in-progress article proposes that the issuance of these bench warrants should be more stringently regulated.
Morrison’s work-in-progress deals with what has seemed to become more and more common: violent clashes between civilians and police. Even though police body cameras are on the rise, she argues that such video, when presented as evidence, still tends to support the police’s narrative, one which often emphasizes “violence and masculinity as heroic ideals that coexist easily within the legal standard of the reasonable officer.”
However, video taken by other eyewitnesses, often civilians, tends to counter the “official” narrative, and show a more abusive state. Both of these sources are used as evidence in court proceedings, and they both carry with them a “cultural currency”, reflecting back the fact-finders’ feelings on violence, race, and other influences. Morrison’s work-in-progress article proposes how to develop a more nuanced approach in using these videos as evidence in the context of those cases.
Of the 23 legal scholars presenting works-in-progress, Georgia State College of Law boasted the most represented. Keynote speakers for the Fall Institute were Robert Litt, general counsel for the Office of the Director of National Intelligence, and W. Neil Eggleston, assistant to the president and counsel to the president.