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F-84 has kindly invited me, RS, to guest-blog while he hits the books, so I thought I'd recount a crim-law tale from real life.  I practice criminal law and teach.

As a member of the conflicts panel, I was appointed to represent the woman in the orange jump suit seated over there near the male bailiff.  She now approached the podium at which I stood.

"Will you accept the appointment, Mr. S.?" asked her honor. 

"Yes, Y'r'onah."

"Will you waive formal instruction and arraignment on this MTR?" the judge asked.

"Yes, Y'ronah," I said as the public defender handed me the papers showing that the DA had filed a motion to revoke probation based on the woman's new arrest for buying drugs from a street dealer, under the eyes of the cops.  The PD conflicted out, probably because the PD's Office represented the seller.

"What would Ms. H like to do," asked the judge, using my new client's name.  To do, as in put the matter over for a conference, set the matter for a hearing, etc.

Ms. H asked me to ask the judge not to use her real name.  It was unclear to me why, as the judge was speaking again, giving the new date, which I had to get down or lose it.  I didn't catch why the client didn't want the judge to use her name.  I told her I'd come to see her in the jail and we'd talk.

I visited the women's pod, was assigned a conference room, and set up my yellow-pad when Ms. H came, in a pleasant spoken woman, late thirties, with a few drug arrests, the drug probation, a prior pross dismissed, nothing serious.  Get her into a program, modify and extend, CTS, no muss, no fuss.

"Hi, Ms. H.  What was that you were trying to tell me in court at the podium when the judge interrupted?"

"Not to use my name."

"Oh, yes.  Why was that?"

"Because they told me not to use my real name in court."

"Who told you that?"

"The sheriff's deputies."

"The sheriff's deputies told you not to use your real name in court?"


"Why was that?"

"Because I work for them."

"What do you mean you work for them?  You work for the Sheriff?"


"Then what are you doing in court?  Who do you work for, exactly, doing what?"

"I can't say."

"What do you mean you can't say?"

"They told me not to tell anyone."

"But I'm you're lawyer, you can tell me."

"I can only tell the judge."

"Tell the judge what?"

"That I work for the sheriff.  My husband's a sheriff.  Judge So-and-so knows me, and Judge Other-so-and-so."

"Who's your husband?"

"I can't give you his name."

"Why can't you give me your husband's name?  I could call him and find out what's going on."

"I don't want my family involved."

I'm starting to become frustratred and angry.

"Who do you work for?  What's your commander's name?  What unit? "

"I don't want to say."

"Look, why don't we do this.  How about you just tell me who you are.  Where were you born.  She mentions a city.  How far did you go in school.  Grade school here, high school there, move to another city, a year or two of college, but dropped out.  Married?  Yes.  Children?  A daughter.  How old?  Three.  Name?  I can't give you that.   Do you live here, in this city now?  Yes.  For how long?  Years.  Where?  I can't tell you that.  I don't want to involve my family.

I'm really getting upset.

And then it dawns on me.

Why am I getting upset?

Because this woman is telling me nothing.

There's absolutely no way I can check out anything she says.

Any time I ask her a question that she realizes I can use to check out her story, she goes blank by denying, evading, or otherwise not answering.

This pleasant-spoken, articulate, lucid person I'm speaking to is stark, raving mad in the most literal sense.

I re-collect myself, settle myself down, and resolve to ask a few more questions along a more pertinent track.

"Have you ever been looked at for emotional reasons, you know, by a psychiatrist?"

"Yes, over at General Hospital."

"What did they say."

"They said I had a few problems."

"Are you getting any treatment?"


"Is there some treatment that you would like?"


"What were you doing that got you arrested this time?"

"I'll tell the judge, in private, otherwise I don't want to discuss it."

Okay; I've gotta get going.  I'll see you next time.

Okay, bye.


I write up an affidavit, submit it under seal, and request the appointment of a psychiatrist because I have a doubt, which I now declare, that my client can cooperate  meaningfully with counsel.  Dr. L is appointed.  He's been around for four decades that I know of.  He can check other commitments and hospitalizations throughout the system of jail, hospital, mental wards, etc.  I submit my affidavit to him and ask him to check Ms. H out. 

Dr. L's report comes back:  Ms. H is suffering from a deep-seated, well-constructed, almost entirely coherent psychotic delusion that controls her entire life. 

The judge ships Ms. H. off to the State Hospital until she's restored to competency, which in this case turns out to be four months.

Last week, on Thursday, just before Christmas, the court clerk calls, saying that Ms. H has been returned from State Hospital, and will appear on calendar on Monday.

"Do you have the report?" I ask.

"Of course."

"What does it say, bottom line?"

"Restored to competency."

"Great, thanks."

Hang up.

I'll go to see her. 

I wonder what she's like, now that she's okay. 

I wonder how they restored her to competency.

I visit the women's pod.

"Hi, Ms. H, how are you feeling?  Any better?"

"I was feeling okay before."


"I mean, after being at the State Hospital, did they do something to make you feel better?"

No.  I took some medication just to show them I was cooperating, but that was just for two weeks.  Tranquilizers, I think.

Well, did they do something to help fix you up?


Ms. H was personable, articulate, pleasant, smiled appropriately in greeting, and looked and sounded perfectly fine, just as before.

"Have you got in touch with your family since you've been back?"


Has anyone come to visit you in jail since you've returned?


Do you have anyone here?

My husband and daughter.

Do you want me to contact them?


What's your husband's name?

I don't want to involve him.

What's your daughter's name?

I don't want to involve her.

Okay, let me ask you about your arrest because I think we're probably going to have to deal with that now that you're back and all okay again.

I was okay before.


What were you doing when you got arrested?

I was working for the police.

Oh.  You were a snitch?

No.  I was an employee of the police.

Oh.  You were acting as a police office, buying drugs to detect crime, which would make possessing drugs legal?




Where did you work for the police.

In this building, for fifteen years.

Great!  Why don't you just tell me what floor you worked on and I'll...

All of them.


Who was your commander?

I can't say.

Are you a police officer right now?

Yes.  But I'm off on disability.

Oh.  Who was the police surgeon who certified that you were disabled?

Police surgeon?  I just told my commander I didn't feel good and wasn't coming in.

But you need to see the police surgeon, some doctor the police department wants you to see to make sure you're sick before they let you go off duty like that.  What did you go off duty for?

Medical reasons, not psychological.


Do you receive any pay check?

I go to Washington to pick up those.

Who do you work for?

FBI, DEA, police, sheriff.

You work for the sheriff?

I work for the sheriff now.

We could go right over to the desk there and ask the deputy to run your name, and then we could clear this matter up right away...

She'll just lie...

Okay, Ms. H, I'll see you in court on Monday.

Will you ask the judge to let me out on bail?

And ask the judge to let me speak to her in private?

Do you have someone to post a bond?  Any collateral?  You said you owned a building, where is it?  You could use that.

I can't tell you.

Bondsmen want collateral, like a building.

I married into several families that were bondsmen. They don't need a building.


Was H your maiden name or your married name?


Ms. H tells me that a police officer entered her home once and chopped off the back of her head with a rifle used as a club.  She put her hand in and could feel her brain.  She refuses to show me the back of her head.

Okay, later, Ms. H., Monday, I'll ask the judge if you can talk to her, but that's not usually done. Bye...

On Monday we appear in court and I get to see the report from State Hospital, which states that Ms. H operates under a chronic fantasy symptomatic of  deep seated, bi-polar, schizophrenic conditions, has refused medication, has participated in group and individual counseling, has been made aware of court proceedings, and is now able to cooperate with counsel in her defense, and is thus restored to competency.

I write up another affidavit.

On Monday, the case is called.

"Y'r'onah, Ms. H is back before the court from the State Hospital," I say.  "The report says she is restored to competency.  Since that's what your clerk told me, on Thursday, I went to see Ms. H on Friday.  This morning I read the report from the hospital.  Its findings are inconsistent with the conclusion of the report.  Ms. H has requested that I ask the court to consider the question of bail.  She wants to speak to the court in private, which I've advised is not usually done.  May the matter go over to Wednesday for further proceedings.  I've prepared an affidavit I'd like the court to consider. The matter goes over two days for bail and to set.

I clue in the DA.

I call Dr. L., and tell him Ms. H is back, but here's the situation and would he please see her again and write a supplemental.  I fax him the report from the State Hospital and my affidavit, which I haven't submitted to the court because I've remembered that since this judge rotated into this department, you cannot just submit a confidential matter under seal any more, i.e. in a sealed envelope marked 'Confidential, under seal.' 

Now you have to submit an affidavit, listing reasons, requesting permission to submit an affidavit under seal.  We have rules.  The rules have rules.  The rules that have rules have rules.  If you miss one of the rules, with this very smart judge, you have to start all over again.
It's better not to get involved with this judge.  She has the personality of a jack-hammer and blows up over trivialities.  Things that lawyers think are trivialities, anyway.  To her, they're important, like rules.  Why be a judge if you don't believe in rules?

Dr. L tells me he's out with diarrhea.  We have this flu-like thing going around.  We don't want Dr. L to be feeling ill.  He's been around a very long time.  He's very good.  A friend tells me of a case in which the defendant appeared to be faking mental illness in order to avoid his responsibility for some act he'd committed.  The friend called Dr. L.  Dr. L's response was, "So he wants to be crazy, does he?  Okay. He can be crazy if he wants."  The defendant was not very happy being locked up with crazy people and asked to come back.

On Wednesday we appeared again before "Mother, May I," and I advised that I'd submitted my affidavit regarding Ms. H to Dr. L instead of to the court.  As long as I was going to make myself a witness in a case I was handling, it was better to submit the declaration to an expert who could incorporate the data into his findings when it came to testifying.

I told the court I'd called Dr. L for a supplemental.

"Mr. S, you cannot just call Dr. L and bring him into the case.  We have a rotation system for  court-appointed experts here."

Of course. How stupid of me.  I might have have been playing games with court-appointments of experts.  They trust me to represent people but not to hire experts.

"Yes, Y'ronah, I'm aware of that, but Dr. L is familiar with Ms. H's case, having done the initial workup that sent her to the State Hospital in the first place, so I just thought that having him do the supplemental would ...blah, blah, blah..., so I've sent him copies of the hospital report and my declaration, and spoken to him, etc.

"Would counsel approach the bench."

DA and I approach.

DA says, "Why don't you tell her what you told me."

I explain that Ms. H wants the court to know that she works for the FBI, the DEA, the police and the sheriff, for the past fifteen years.

Judge says, Let me see that report from State Hospital.

While she's reading the three pages, the DA says, "How're you going to prove Ms. H wasn't working for the FBI?"

Funny, I was wondering about that myself.

"H'mmm...I was thinking of making a supplemental request for funds to have my investigator contact the FBI, the DEA, the police, and the Sheriff,.." I began to say, when the DA said, "I'm only kidding."

I was relieved.

The judge looked up from the report:  "It's the end of the year.  State Hospital is clearing its books.  It's an outrage, sending her back like this."

Thank you.

"What I had in mind, judge, was to have Dr. L prepare a brief supplemental report, submit the matter on the reports in a court trial, and spare us all a jury trial on whether Ms. H has been restored to competency.

Okay, back to your places, says the judge.

"Here's what I'm going to do.  Dr. L is appointed to do an evaluation and report, in confidence, to submit to Mr. S. How much time do you need?  Usually we do a month, but we can do it in less if you'd like."

How about two weeks, Y'r'onah, doctor isn't feeling well...

Two weeks is fine.

On the question of my client speaking to the court privately, Y'ronah...

"You can speak to the court through counsel, Ms. H."

"Okay, judge," says Ms. H.

And bail?

Over two weeks.


Next case.

Will Terrorists Attack Rural Virginia?

While I have to admit that prospects are probably higher the closer one is to D.C. the obivous answer is: Not likely but that doesn't stop the feds from pooring all sorts of money into different areas.  Some have used it to buy things to improve police and fire prostections.  Others have bought gas masks.  The question is whether the masks are readily available because - if the training I got in the Army was accurate - there will only be seconds for those in an effected area to react.  If the masks are stored in a wharehouse or they are locked in the trunk of the police car (I've not seen officers with them strapped to their waists) they aren't going to help with anything. CrimLaw

Less Freedom = More Safety?

Judge Posner's latest post at Prof. Leit'ers blog reminded me of an old post:

      The Fallacy of Freedom vs. Safety

Whenever I discuss civil liberties with almost anyone, the following exchange is bound to occur:
Me:  I dislike X-law because it takes away my right to-Y.
Them:  Well, you have to balance freedom and safety. 
I have always been bothered by the freedom-safety dichotomy. Benjamin Franklin's retort that the person who would surrender freedom for perceived safety deserves neither did not lessen my anguish. My mind rebelled against the dichotomy, though I could not explain why - until now.

When we say that one must balance freedom and safety, we presuppose that surrendering civil rights makes us safer. In other words, giving more power - power in the form of not having rights restrain governmental action - to the government will lead to safety. Now, I have seen state action that turned my stomach. I have worked on cases where mentally ill people were entrapped into taking actions the criminality of which they did not appreciate. I worked on a Section 1983 action where a social worker threatened to take custody away from a mother if she refused to cooperate with an unjust prosecution against her husband. But no matter how many examples of government misconduct I cite, people continually rely on the freedom-safety dichotomy.

Ultimately, though, the freedom vs. safety debate arises only in the criminal context. We all believe that when persons suspected of crimes have less rights, we are safer. But almost all of us are enraged when Congress or the states regulate speech or deny us the right to vote. Almost none would argue that you have to balance the freedom of speech or right to vote with safety, even though bad ideas can corrupt a nation. Bad political leaders can ruin our economy and start wars. We will stack more dead bodies under a wicked President than we would by putting a gun in the hand of any mugger. But no one argues that we need to restrain freedom of speech or the right to vote in the name of safety.

Indeed, about half of us would balk at a Congress seeking to take away gun rights or deny a woman access to abortion clinics. To an opponent of gun control (which includes many people antagonistic to basic criminal rights), it is an unsatisfactory answer to tell them we must balance the freedom to own guns with the need to remain safe from unlawful uses of guns. Gun owners say, "But the Constitution protects our right to keep and bear arms!"

If I told a woman we must balance her freedom to have an abortion with the need for safety - since abortion teaches us to devalue personal responsibility - she would say, "I have the right to control my body!" And so, people who support gun control or oppose abortion do not use the freedom-safety dichotomy. Why is that?

I believe that underlying this bias against the Fourth, Fifth, and Sixth Amendments (Criminal Defense Clauses) is the belief that none of us will ever be charged with a crime. That is why most of us do not care about the rights of persons charged with crimes. Because, frankly, it will never happen to me. But when a criminal prosecution happens, the defendant changes his tune.

I have worked on many criminal cases for the defense. No one - not even the staunchest law and order person - was willing to give up her rights. Indeed, I would blissfully listen while these people - who never in their lives cared about the rights of our other clients - lectured me on the Constitution. [My boss would with joy collect the large fees paid for the protection and vindication of these rights.] Suddenly, they cared. Even George W. Bush, whose would so willingly deny the right to counsel to others, retained a first-class lawyer when his toes were in warm water.

I conclude that the freedom vs. safety dichotomy is fallacious since it presupposes the premise that more power in the hands of government leads to more safety. However, even if we falsify this smuggled premise, the balancing test applied is still accpetable for most people since even a complete repealing of the Criminal Defense Clauses would not harm them. Unjust prosecutions happen, but most people will never be mugged by the state.

Disavowing the rights of criminal defendants on the ground that these rights so important to them will never be relevant to you, is immoral. Those who would allow the government to unconstitutionally abrogate the rights the rights of others but jealously guard their own deserve neither freedom nor safety.

Abduction in Virginia

Anyone who has practiced criminal law in Virginia knows about charge stacking There are two types: "same charge stacking" and "interlocking charge stacking".

To go forward from this point let's assume a robbery of a grocery store. The masked, pistol carrying robber orders the three cashiers to go to their cash registers and give him the money. Then he leaves; all of it takes less than five minutes.

Same Charge Stacking: This is when the same charge is charged multiple times. An example of this in the scenario above would be three robbery charges, one for each cashier. The only limit to this seems to be the "single larceny doctrine" which keeps the prosecution from charging a larceny for every key on a stolen key chain or every item in a snatched purse. The appellate courts of Virginia have zealously guarded against even the tiniest further infringement upon the prosecutors' ability to do same charge stacking.

Interlocking Charge Stacking: This is when multiple violations are charged for a set of interlaced actions. An example of this in the scenario above would be charges of wearing a mask, abduction, robbery and use a firearm in a felony.1

As far as stacking goes interlocking stacked charges tend to bother me a lot less than same charge stacking. However, there is one glaring problem that is seen over and over in interlocking charges: the redundant charging of abduction.

Abduction is either asportation or detention by force, threat or deception; by statute it includes all that was under common law kidnapping and abduction. If you think about it a little bit many, if not all, of the truly serious felonies include one of those two activities. Therefore, it is a charge stacked in with a lot of serious felonies.

The Virginia Supreme Court has clearly stated that this is not viable. See Johnson v. Commonwealth, 221 Va. 872 (1981) and Brown v. Commonwealth, 230 Va. 310 (1986). However, in practice these rulings are given a very, very narrow interpretation. The problem is that in affirming abduction conviction after abduction conviction the appellate courts have never actually laid out what the standard is in this area.

Comes now the Virginia Court of Appeals and makes a valiant effort to set out a test in Hoyt v. Commonwealth, Record No: 3042-03-1 (07 Dec 04). Actually, the Court reviews a few of the more prominent cases in this area and then seems to adopt a test from the 3d Federal Circuit.

The factors to consider are:

(1) the duration of the detention or asportation;
(2) whether the detention or asportation occurred during the commission of a separate offense;
(3) whether the detention or asportation which occurred is inherent in the separate offense; and
(4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.

The Court then goes through a series of Virginia appellate cases which it claims support its adoption of this test. The first few fit well but as the list gets toward the end they start to get pretty iffy. The last just doesn't work: Coram v. Commonwealth, 3 Va. App. 623 (1987)(moving someone 20 feet to seclusion as part of a rape). However, the Court salvages the opinion by listing one final test not from the 3d Federal Circuit:

{5} Does the evidence support an inference that the detention or asportation occurred in order to avoid detection of the crime?

[comment] When I first glanced over this I was really impressed. I thought the Court of Appeals had put an end to charging abduction for things such as ordering parties to go into a different room. It hasn't. This is inferred, though not actually stated, toward the end of the opinion when the court rejects the government's attempt to make the charge cover a second person who was made to lay down on the floor. It does so not on the grounds that it was not an abduction but that it was not in the indictment charged.

Therefore, this decision applies to only a very limited class of cases - those in which there is absolutely no movement (or restraint) more than the bare minimum necessary to carry out a crime. Basically, this decision only applies to a very short walk to the cash register or a similar exceedingly minor exercise of control.

Rules (3) and {5} are the exceptions which swallow the rule. The vast majority of the stacked abduction charges can be "squeezed" into these massive exceptions. For instance a charge can be pressed for every single person in the store when they are ordered to lie on the ground or freeze in place (not an absolute necessity in a robbery). It can also be charged when people are told to turn around, or stay here, or go into that room so that the robber can run away (done in order to avoid detection for some period of time).

I’m not very impressed by this part of the law. What it basically does is allow the prosecutor at least one charge for every person in the building (customers, stockboys, janitors, &cetera) other than the cashier and probably the cashier as well when she is told to lay on the floor or turn around after the robbery. The threat recognized in this decision and others it cites that "abduction statutes would overrun other crimes, such as robbery, rape, and assault" is not alleviated in any major way by this decision.

Announcing a good technical rule but allowing broad exceptions which come close to invalidating it is not atypical in criminal law. However, the allowing of abduction charges to stand for very minor asportations or detentions combined with the minimalist application of this rule is disturbing. Whether there should be greater punishment based upon the number of people present during a robbery is a decision for the Legislature, not the courts or the executive. By interpreting the law as it has the Court allows the prosecutor to punish in accord with the number of people present; it unbalances the system by placing a mighty power in the hands of the prosecutor without the Legislature’s approval.

---------- ---------- ----------

1In reality most of the time the two types are mixed. The scenario given might lead to 3 X wearing a mask in a felony, 3 X abductions, 3 X robberies, and 6 X use of a firearm while committing a felony (9 if you can make a case for charging it with the mask charges). Prosecutors love the firearm charges because the first carries a 3 year mandatory sentence, every subsequent conviction carries a mandatory 5 year sentence, and the Virginia appellate courts have ruled that even if they are closely temporally tied and tried at the same time the second firearm count is a subsequent conviction when it is announced ten seconds after the first.


Searching a Business

Yesterday the White Collar Crime Prof Blog gave a valuable (but free!) practice tip (but not legal advice, as no blog ever gives legal advice).  Namely, what should a businessperson do when police officers execute a warrant at his or her business?  Answer: "Many defense lawyers advise their business clients to send all non-essential employees home and to notify counsel, who will be the only person to speak with the agents conducting the search."  Although the tip might seem obvious to most defense lawyers, it's brilliance might not readily be apparent.

Usually government agents will interview employees while conducting a search of a business.  When the defense moves to suppress the statements, the government will argue that the person being interviewed was not in custody.  Thus, the agent was not required to read the employee his Miranda rights before interviewing him.  The government almost always wins these motions, since the Court refuses to recognize that, other than, say, Steven Yagman, most people never feel free to say no to a police officer.  According to the Court, you and I always feel free to leave, even when the officer steps in front of the person and says, "Maybe you should stick around to answer some questions before you get into real trouble."  Again, no custody means no Miranda.

Anyhow, let's say that defense lawyer says to business owner, "Send your employees home."  Businessperson tells employess, "Go home."  Government agent says, "They can't leave."  Well, now we have established custody.  Thus, the government agents may not ask anyone questions without Mirandizing them.  After all, if the person being interviewed is literally not free to leave (since, after all, he tried to leave but was told to stay), then there won't be future litigation over the malleable issue of "custody."  Granted, most people waive their Miranda rights, but at least the person being interrogated might recognize that the dicussion with law enforcement is not a fireside chat.  And maybe he'll keep his mouth shut before talking to a lawyer.

Go here to see why BALCO Labs should have promptly called a white collar criminal attorney.

Gangs as Terrorists Organizations

Street gang violence is horrible.  Gangs destroy communities, and indeed, terrorize people.  But should post 9-11 anti-terrorism statutes be applied to them?  Must someone who argues against looking to legislative intent when interpreting statutes merely shrugged his shoulders, or should he be outraged that a law passed for a specific reason is applied beyond the intent of its enactors?

This comprehensive article discusses the recent application of New York's anti-terrorism statutes to gang activity.

Every time Lourdes Morales watches the TV news and sees a story on terrorism, she weeps.

Family members have stopped trying to console her, but they, too, cannot understand why Edgar Morales, the family's youngest son, will see the new year arrive in prison where he is waiting to be tried as a terrorist.

"They are comparing my son to (Osama) bin Laden ... and all those people who used bombs and killed thousands of people at random," said Morales. "They are making him look as if he was this cold-hearted person, and he is not like that."

Morales, 22, was indicted on murder and other charges as acts of terror in May, along with 18 other members of the St. James Boys Gang, a Mexican and Mexican-American street gang. Morales faces the most serious charge of second-degree murder as a terrorist act.

A New York grand jury returned the charges against him in connection with the shooting death of 10-year-old Melanie Mendez, who died from gunshot wounds two years earlier.


If the charges did not include the terrorism stipulation, he would face a sentence of 25 years to life if found guilty. With the stipulation, he faces a mandatory sentence of life in prison without the possibility of parole.


"Gangs are a forum to promote terrorism," said Balboni spokeswoman Lisa Angerame. "Therefore, the anti-terrorism statue would be applicable against them, even if the original intent for this law was not exactly to prosecute them."

How Federalism Saved Antitrust

This post, my first Guest appearance at C&F (thanks, Mike!), is an inspiring holiday story of faith (partially) renewed. 

Frankly, I'm a fedSkeptic.  When fedfanatics extoll the virtues of federalism, I try and fail to name even one modern or historic politician who applies its principles consistently, rather than using it as a trump card in legislative or judicial battles.  When they rhapsodize over the States as incubators and laboratories for legislative innovation and progress, I picture intensive care units sustaining old mistakes and museums enshrining ancient prejudices.
That was until I heard Lloyd Constantine's acceptance remarks last June, when he received the American Antitrust Institute's 2004 Antitrust Achievement Award.  Constantine's remarks, The Importance of State Antitrust Enforcement, were posted Dec. 28, 2004, at the AAI website, and they present a fascinating tale of state antitrust enforcers launching a valiant and successful effort in response to the Reagan Administration's plan to dismantle and destroy the federal antitrust laws.
Here are a few excerpts from Constantine's 10-page speech, to whet your appetite:

[In 1980] antitrust was almost exclusively the province of the federal agencies and the private bar. State A.G. antitrust, at least in New York, was nowhere and not particularly needed.

In 1981 a new federal administration came to power with many new ideas. Some of these were good and successful.  One terrible idea was to destroy the regime of American Antitrust Law.

It was while confronting that specific assault on the antitrust laws from the federal agencies, that we resolved to cobble together a de facto national antitrust agency from the little state offices and to use them to save antitrust. This grand strategy was adopted by a small group of state trustbusters.

First and foremost the antitrust law was saved. To be sure the law is less powerful and beneficial than it was prior to the federal assault, but the core survived. That would not have happened without the States.

Many of the assaults on the core of antitrust law are back, merely repackaged in different forms and terms.

The Antitrust Laws are worth preserving and fighting for. It is important for State and Federal antitrust agencies to try to coordinate their efforts when possible - but it is also essential that each sovereign guard the law and maintain its prerogative to act, and if necessary to act boldly and alone. At an antitrust conference in Lawrence, Kansas in May of 1989 - we celebrated the passage of the Kansas Act of March 1889 and the true centennial of the American Antitrust Laws. On that occasion I ended my remarks with a statement which seems appropriate now: “Federalism is a system in which state and federal governments each strive to achieve the desires of their joint constituents and the goals of the American Nation. But when either side of the partnership fails to act, despite good cause, the other side must act. Federalism is not a suicide pact.”

The many details presented by Constantine are interesting and inspiring - almost enough to turn a fedSkeptic into a cautiously optimistic federale. [Learn more about antitrust enforcement by state attorneys general in the AAI Antitrust Research Guide.  Got crime on your mind?  Click here for AAI's comprehensive Criminal Antitrust Primer.]

CrimLaw Arrives

In response to underwhelming public demand I have been asked to help guest host C&F during the evils of bar-study time.  I'm afraid I shan't be posting a whole lot about federalism as my general field of expertise is indicated by the highly imaginative name of my blawg "CrimLaw."

My first post - to come later today - should be about Hoyt v. Virginia and the law of abduction as applied in conjunction with other felonies.  However, I gotta go now, I'm posting this from the law library and the guy behind me is making noises like he wants to use the computer for real legal work . . .