Comments on: New Argument Transcripts Available http://www.scotusblog.com/wp/new-argument-transcripts-available/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: r.friedman http://www.scotusblog.com/wp/new-argument-transcripts-available/comment-page-1/#comment-8334 r.friedman Wed, 23 Nov 2005 21:06:22 +0000 http://www.scotusblog.com/wp/uncategorized/new-argument-transcripts-available/#comment-8334 Well, Tom's argument in the Georgia search case has now been posted, and I regret to say that I don't think it went very well. When you get right down to it, Roberts' hypothetical of the dorm suite with a common room and individual rooms came closest to raising the question -- can the police just keep asking suitemates until they get consent? Is it majority vote? Is one consenter or one refuser enough to decide? The government had a countervailing interest -- the interest in having people rat out their friends and relations. What was Randolph's countervailing interest? I didn't see one argued(although there were so many interruptions, Linda G. is right, the Court is rather frisky these days, it's hard to tell). I think you have to start where Tom ended, with Schneckcloth, that consent is an exception to the warrant requirement, that there is a social value to following rather than evading the Fourth Amendment (much like there is a value to having a trial even for an obviously guilty person rather than making him plead out). I think the wide variety of coerced consent cases should have been paraded before the court -- the bus search cases, the "knock-and-talk", the "will you consent or shall I get the drug dog" -- just read any 8th Circuit criminal case. Just as we don't want the police only to rely on marginally consensual confessions, we don't want them relying on marginally consensual searches -- there is too much ex post justification that flies in the face of the Fourth Amendment. Well, Tom’s argument in the Georgia search case has now been posted, and I regret to say that I don’t think it went very well. When you get right down to it, Roberts’ hypothetical of the dorm suite with a common room and individual rooms came closest to raising the question — can the police just keep asking suitemates until they get consent? Is it majority vote? Is one consenter or one refuser enough to decide?
The government had a countervailing interest — the interest in having people rat out their friends and relations. What was Randolph’s countervailing interest? I didn’t see one argued(although there were so many interruptions, Linda G. is right, the Court is rather frisky these days, it’s hard to tell).
I think you have to start where Tom ended, with Schneckcloth, that consent is an exception to the warrant requirement, that there is a social value to following rather than evading the Fourth Amendment (much like there is a value to having a trial even for an obviously guilty person rather than making him plead out). I think the wide variety of coerced consent cases should have been paraded before the court — the bus search cases, the “knock-and-talk”, the “will you consent or shall I get the drug dog” — just read any 8th Circuit criminal case. Just as we don’t want the police only to rely on marginally consensual confessions, we don’t want them relying on marginally consensual searches — there is too much ex post justification that flies in the face of the Fourth Amendment.

]]> By: M Meyer http://www.scotusblog.com/wp/new-argument-transcripts-available/comment-page-1/#comment-8333 M Meyer Tue, 22 Nov 2005 21:54:08 +0000 http://www.scotusblog.com/wp/uncategorized/new-argument-transcripts-available/#comment-8333 Transcript of Gonzales v O Centro oral argument is now available at: http://www.lindesmith.org/docUploads/UDV_OralArgument_2005.pdf Transcript of Gonzales v O Centro oral argument is now available at:

http://www.lindesmith.org/docUploads/UDV_OralArgument_2005.pdf

]]> By: r.friedman http://www.scotusblog.com/wp/new-argument-transcripts-available/comment-page-1/#comment-8332 r.friedman Fri, 18 Nov 2005 19:09:02 +0000 http://www.scotusblog.com/wp/uncategorized/new-argument-transcripts-available/#comment-8332 Carter Phillips' argument in Volvo Trucks is well worth reading. He makes really good use of his jury verdict to exclude alternative less-favorable requirements for proof of liability, saying only that his theory suffices to prove liability under certain circumstances and that the jury had enough before it to support the finding rationally. He may lose the case anyway, but if he had tried to fight it out on general theories of liability, the decision would have come down last Monday. On the DIG in Maryland v. Blake, my impression was that the respondent refused to argue the narrow issue the Court wanted to address, while the petitioner had an awful lot of facts decided against it. Both of these illustrate something that Breyer talked about the other day on C-SPAN before the state court judges. The Court is taking cases to decide issues, while the lawyers are taking cases to win for their clients. What is the responsibility of the Court to decide the case in front of it, even if that means that it is only "correcting errors?" What is the responsibility of the lawyer to argue the case on the issues granted by the Court when they might not be the most propitious for their clients? Carter Phillips’ argument in Volvo Trucks is well worth reading. He makes really good use of his jury verdict to exclude alternative less-favorable requirements for proof of liability, saying only that his theory suffices to prove liability under certain circumstances and that the jury had enough before it to support the finding rationally. He may lose the case anyway, but if he had tried to fight it out on general theories of liability, the decision would have come down last Monday.
On the DIG in Maryland v. Blake, my impression was that the respondent refused to argue the narrow issue the Court wanted to address, while the petitioner had an awful lot of facts decided against it.
Both of these illustrate something that Breyer talked about the other day on C-SPAN before the state court judges. The Court is taking cases to decide issues, while the lawyers are taking cases to win for their clients. What is the responsibility of the Court to decide the case in front of it, even if that means that it is only “correcting errors?” What is the responsibility of the lawyer to argue the case on the issues granted by the Court when they might not be the most propitious for their clients?

]]> By: MDMeyer http://www.scotusblog.com/wp/new-argument-transcripts-available/comment-page-1/#comment-8331 MDMeyer Fri, 18 Nov 2005 13:36:24 +0000 http://www.scotusblog.com/wp/uncategorized/new-argument-transcripts-available/#comment-8331 Where is Gonzales v. O Centro? Did Scalia's French outburst delay transcription? Where is Gonzales v. O Centro? Did Scalia’s French outburst delay transcription?

]]> By: Steve Jakubowski (Bankruptcy Litigation Blog) http://www.scotusblog.com/wp/new-argument-transcripts-available/comment-page-1/#comment-8330 Steve Jakubowski (Bankruptcy Litigation Blog) Thu, 17 Nov 2005 15:55:45 +0000 http://www.scotusblog.com/wp/uncategorized/new-argument-transcripts-available/#comment-8330 Thanks for the update. Thanks for the update.

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