Articles / Interesting Case of the Month
A Pardon for Arpaio Would Put Trump in Uncharted Territory:
This article is an op-ed piece appearing in the New York Times the Friday before our president pardoned Arizona Sheriff Joe Apraio. The author, Marty Redish, is a professor of constitutional law at Northwestern University’s Pritzker School of Law and the author of “Judicial Independence and the American Constitution: A Democratic Paradox.” Redish argues that contrary to what many in the media have opined, there are limits to a president’s power to pardon and that the pardon of “Sheriff Joe” (as Donald Trump likes to call him) exceeded the president’s pardon power.
Redish admits: “This is uncharted territory. Yes, on its face the Constitution’s pardon power would seem unlimited.” He also admits that his theory is “novel,” and that he knows of no Supreme Court decision addressing the arguments he makes. Nonetheless, Redish asserts that in fact limits do exist to a president’s pardon powers, and Trump exceeded them.
Redish’s analysis is based upon a fundamental general principal of constitutional law:
[It is] a principle of constitutional law [that] anything in the body of the Constitution inconsistent with the directive of an amendment is necessarily pre-empted or modified by that amendment.
In other words, if a particular right or power set forth in an amendment to the Constitution is in conflict with a right or power set forth in the original body of the Constitution, the rights/powers set forth in the amendment prevail and those in the original body of the document become over-ruled or subservient. If one thinks about this, it makes perfect sense. Otherwise, an amendment would be meaningless.
Applying this concept to the pardon power and the Arpaio pardon, Redish looks to the due process clause of the Fifth Amendment and sees a conflict. Before focusing on the Fifth Amendment and Redish’s perceived conflict, one must understand exactly what Arpaio was convicted of, and why the Arpaio pardon, as Redish says, “is different.”
The sheriff was convicted of violating constitutional rights, in defiance of a court order involving racial profiling. Should the president indicate that he does not think Mr. Arpaio should be punished for that, he would signal that governmental agents who violate judicial injunctions are likely to be pardoned, even though their behavior violated constitutional rights, when their illegal actions are consistent with presidential policies.
Restated, Arpaio was found by a Federal Court to have violated the Constitution by arresting, detaining, or harassing individuals based upon their race. In the context of the Constitution’s Fifth Amendment, Arpaio violated these individuals’ right to liberty without due process of law.
Arpaio was ordered by a Court to cease such conduct. When he refused to do so, Arpaio was found to have knowingly ignored the Court’s order and to have continued to violate individuals’ constitutional rights. For this, he was convicted of contempt of court. This is the conviction that Trump pardoned. Thus, Trump pardoned an individual whose crime was to knowingly violate individuals’ constitutional rights.
Returning to Redish’s theory, Trump used a constitutional right set forth in the body of the Constitution to over-rule the enforcement of a right set forth in an amendment to the Constitution. Because an Amendment’s rights and powers supersede those set forth in the body of the Constitution, Redish argues that Trump did not possess the power to pardon Arpaio.
In American constitutional democracy, democratic choices are limited by restraints imposed by the Constitution. The due process clause of the Fifth Amendment dictates that neither life nor liberty nor property may be deprived absent “due process,” which the Supreme Court construes to require adjudication by a neutral judge.
In short, under the Constitution one cannot be deprived of liberty without a court ruling upon the legality of the detention. The power of courts to restrain government officers from depriving citizens of liberty absent judicial process is the only meaningful way courts have to enforce important constitutional protections. But if the president can employ the pardon power to circumvent constitutional protections of liberty, there is very little left of the constitutional checks on presidential power.
I’m not a constitutional scholar, but Redish’s argument makes a whole lot of sense to me.
Redish, Martin; “A Pardon for Arpaio Would Put Trump in Uncharted Territory;” The New York Times; August 24, 2017
Sound Waves Enhance Deep Sleep and Memory:
A recently concluded study at Northwestern University Feinberg School of Medicine has found that so called “pink noise” such as the sound of a waterfall “significantly enhanced deep sleep in older adults and improved their ability to recall words.”
In the study, 13 participants 60 and older received one night of acoustic stimulation and one night of sham stimulation. The sham stimulation procedure was identical to the acoustic one, but participants did not hear any noise during sleep. For both the sham and acoustic stimulation sessions, the individuals took a memory test at night and again the next morning. Recall ability after the sham stimulation generally improved on the morning test by a few percent. However, the average improvement was three times larger after pink-noise stimulation.
Before heading out and buying one of those machines that plays “soothing” sounds, know that the Northwestern study used a “novel” sound system which synchronized the sounds to specific brain activity.
The study used a new approach, which reads an individual’s brain waves in real time and locks in the gentle sound stimulation during a precise moment of neuron communication during deep sleep, which varies for each person.
During deep sleep, each brain wave or oscillation slows to about one per second compared to 10 oscillations per second during wakefulness.
Giovanni Santostasi, a study coauthor, developed an algorithm that delivers the sound during the rising portion of slow wave oscillations. This stimulation enhances synchronization of the neurons’ activity.
After the sound stimulation, the older participants’ slow waves increased during sleep.
Per the study’s authors:
“Larger studies are needed to confirm the efficacy of this method and then ‘the idea is to be able to offer this for people to use at home.”. . .’We want to move this to long-term, at-home studies.’. . . The goal is to determine whether acoustic stimulation can enhance memory in adults with mild cognitive impairment.
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This is an innovative, simple and safe non-medication approach that may help improve brain health,” said senior author Dr. Phyllis Zee, professor of neurology at Northwestern University Feinberg School of Medicine and a Northwestern Medicine sleep specialist. “This is a potential tool for enhancing memory in older populations and attenuating normal age-related memory decline.”
Paul, Marla; “Sound Waves Enhance Deep Sleep and Memory;” Northwestern Now, August 15, 2017
California’s Answer to Low Bar Pass Rates:
Several articles have appeared in recent years regarding the steadily increasing fail rates for law school graduates taking their state’s licensing exam (called the “bar exam”). The hard truth is that as the legal job market has shrunk and other professional opportunities have developed, many who 25 years ago would have gone to law school are now pursuing careers and advanced degrees in business, public policy and other professions. The result: the number of applicants to law school classes has declined and, except for the elite tier of law schools, law school admissions officers are delving deeper into their applicant pools and admitting less qualified students. Flash forward three years, and it is not surprising to see bar exam fail rates increasing.
The fail rate increase in California is particularly high, and this in turn has rightly caused law school administrators in the State to act. Forgive my editorializing, but the law schools’ response to the issue does not bode well for the legal profession and, candidly, is deeply disappointing. As reported in The Recorder (a legal publication):
A California State Bar committee stocked with law school deans recommended. . . that the Supreme Court [which governs lawyer licensing in California] reduce the bar exam passing score from 144 to as low as 135.
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The question of what the appropriate cut score should be has come into sharp focus, and intense debate, over the last year as the exam’s pass rate has tumbled. The bar posted an online survey on the topic and received more than 34,000 responses from attorneys. A slightly different survey was offered to July 2017 exam-takers and 4,188 of them responded.
The results were starkly different among the groups. About 80 percent of attorney-respondents opposed lowering the cut score. More than 90 percent of test-takers said the score should be reduced—a majority said it should be lower than 141.
So, who did the law school deans listen to?
The Law School Council endorsed setting the state’s passing score between 135 and 139, a lower range than the 141 to 144 that a previous bar-commissioned study had suggested. . . . An Aug. 25 letter signed by 19 of 21 [American Bar Association]-approved law school deans recommended the score be temporarily set between 133 and 139 while the bar completes its analysis.
Were this not sufficiently disheartening, here’s more:
[T]he Association of California Accredited Law Schools, a group whose members are law schools with state accreditation, not [American Bar Association] accreditation, sent a letter to California bar leadership Sept. 1, asking that the cut score be lowered to 139.
I won’t rant, so I’ll just say that lowering the bar exam pass score is wrong and not the way to fix the increasing fail rate problem.
Prior to July of this year, the California Supreme Court had delegated to the California Bar Association the duty of setting the minimum pass score for the State’s bar exam. In July, however, the California Supreme Court reasserted its control over the issue and determined that it, and not the Bar Association, would set the minimum Bar Score. Nonetheless, the State Bar Association’s Board of Trustees made its recommendation to the Court.
So, what did State Bar of California’s Board of Trustees do? In an act of decisive leadership they determined not to recommend a minimum pass score. Instead, they “voted . . . in favor of providing the [Supreme C]ourt with three possibilities–keep the score where it is, lower the score to  or lower it to .”
There is good news here. As noted, in July the California Supreme Court reasserted its control over the issue and determined that it and not the Bar Association would determine the minimum pass score. Now, we have to wait and see what the Court decides.
Oh, and to make matters worse, California isn’t the only state avoiding the real issue – the rising number of law school graduates who are not capable of passing their State’s licensing exam.
[T]he Oregon and Nevada Supreme Courts, both lowered their cut scores this summer. The Oregon Supreme Court changed the score from 284 to 276, . . . and the Nevada Supreme Court changed its bar exam cut score from 140 to 138. . .
Miller, Cheryl; “California Bar Committee Endorses Lowering Exam Pass-Score;” The Recorder; August 31, 2017
Ward, Stephanie Francis; “California Bar Board Of Trustees Sends State Supreme Court 3 Options For Bar Exam Cut Score;” ABA Journal; September 6, 2017