Volume 160, Issue 2 
January 2012

Facebook, Twitter, and the Uncertain Future of Present Sense Impressions

Jeffrey Bellin

The intricate legal framework governing the admission of out-of-court statements in American trials is premised on increasingly outdated communication norms. Nowhere is this more apparent than with the hearsay exception for “present sense impressions.” Changing communication practices typified by interactions on social media websites like Facebook and Twitter herald the arrival of a previously uncontemplated—and uniquely unreliable—breed of present sense impressions. This Article contends that the indiscriminate admission of these electronic present sense impressions (e-PSIs) is both normatively undesirable and inconsistent with the traditional rationale for the present sense impression exception. It proposes a reform to the exception that would exclude unreliable e-PSIs while simultaneously realigning the modern rule with its historical rationale. In so doing, this Article sounds an early warning to courts and legislators regarding similar challenges on the horizon, as modern communication norms continue to evolve beyond the contemplation of the drafters of the hearsay rules.

Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes

Christopher S. Elmendorf

This Article develops a fresh account of the meaning and constitutional function of the Voting Rights Act’s core provision of nationwide application, Section 2, which has long been portrayed as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional. I argue that Section 2 delegates authority to the courts to develop a common law of racially fair elections, anchored by certain substantive and evidentiary norms, as well as norms about legal change. The central substantive norm is that injuries within the meaning of Section 2 arise only when electoral inequalities owe to race-biased decisionmaking by majority-group actors, whether public or private. As an evidentiary matter, however, plaintiffs need only show a “significant likelihood” of race-biased decisionmaking, rather than proving it more likely than not. So cast (and with a few more details worked out), Section 2 emerges as a constitutionally permissible response to, inter alia, the largely unrecognized problem of election outcomes that are unconstitutional because of the racial basis for the electorate’s verdict—a problem that generally cannot be remedied through constitutional litigation. My account of Section 2 has numerous practical implications. Most importantly, it suggests that electoral arrangements that induce or sustain race-biased voting are vulnerable under Section 2, irrespective of their potentially dilutive effect on minority representation. My account also clears the ground for overruling the many Section 2 precedents that rest on the constitutional avoidance canon, and it helps to resolve a number of prominent circuit splits.

Freedom for the Press as an Industry, or For the Press as a Technology? From the Framing to Today

Eugene Volokh

“[T]he freedom . . . of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like—so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more. Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters.

Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.

But other judges and scholars—including the Citizens United majority and Justice Brennan—have argued that the “freedom . . . of the press” does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters.

Under this approach, the First Amendment rights of the institutional press and of other speakers rise and fall together. Sometimes, this approach is used to support protection for non-institutional-press speakers and to resist calls for lowering that protection below the level offered to institutional-press speakers. At other times, it is used to rebut demands for greater protection: Extending such protection to all speakers, the argument goes, would excessively undermine rival government interests—yet allowing such protection only for the institutional press would improperly give the institutional press special rights.


All Alone in Arbitration: AT&T Mobility v. Concepcion and the Substantive Impact of Class Action Waivers

Frank Blechschmidt
On April 27, 2011, the Supreme Court announced its decision in AT&T Mobility LLC v. Concepcion, one of the most closely watched cases of the 2010 Term. In Concepcion, the Court considered whether states may condition the enforceability of arbitration agreements on the availability of class-wide arbitration proceedings. While the subject of class arbitration is rarely viewed as a headline-grabbing legal topic, Concepcion attracted the attention of many consumer advocates, corporate counsel, and procedural scholars because of its far-reaching implications for consumer and employment contracts and class action policy. Ultimately, the Court held that the Federal Arbitration Act (FAA) preempts states from invalidating class action waivers in arbitration agreements because these invalidations stand as an obstacle to the purposes behind the FAA.

Was this result surprising? Not in the least. Indeed, given the increasingly predictable road the Court had taken in previous FAA cases, a contrary ruling exhibiting deference to a state’s views on arbitration would have represented an abrupt tug on the FAA steering wheel. But leaving the Court’s track record aside, was the Court’s decision to limit the role of states in shaping class action policy a legally sound and principled conclusion? In this Comment, I argue that it was not. Because class actions are so intimately linked to the vindication of substantive rights, the Court should not have unilaterally made a policy decision as to when the use of class proceedings is appropriate.

Though class action policy discussions typically focus on the efficacy of class action litigation or the inner workings of Rule 23 of the Federal Rules of Civil Procedure, Concepcion did not directly involve either of these topics. Instead, Concepcion centered on the class action’s close cousin, class arbitration—proceedings involving similarly situated litigants that occur before an arbitrator, rather than before a judge or jury in court. While the development of class arbitration was still in its embryonic stages, several judges and businesses adopted the view that this method of dispute resolution was antithetical to the whole point of arbitrating in the first place, which is to provide a speedy and efficient alternative to litigation. Eventually, with the addition of more claimants and in light of the uncertainty surrounding this new form of aggregate procedure, class arbitration became what was described as “a lose-lose proposition” to which “no rational business [would] agree.”

Navigating a Legal Dilemma: A Student’s Right To Legal Counsel In Disciplinary Hearings for Criminal Misbehavior

Ellen L. Mossman

In recent years, school violence has repeatedly shocked the immediately affected communities and the entire country. While the shootings at Columbine High School and Virginia Tech represent the tragic extreme of school violence, increasing numbers of other criminal acts—including sexual assault, weapons possession, and drug-related activity—are occurring on high school and college campuses. As violence and allegations of crime rise in schools, so too do the number of proceedings in which institutions attempt to discipline the perpetrators.

Such proceedings present a unique legal dilemma. A student faces a number of consequences and challenges when accused of conduct in violation of both criminal law and school policy. Say a student at a publicly funded university sells illegal drugs on campus: of course selling drugs violates criminal law. But many universities have also enacted student codes that impose disciplinary sanctions on students who sell drugs.

If a student wants to remain enrolled and continue attending school, he may participate in a school disciplinary proceeding, which may occur well before the criminal case has concluded. At the proceeding, a disciplinary panel will ask questions of the student and other witnesses to determine whether the alleged conduct actually occurred.

At this proceeding, one of two things could happen. The student could refuse to answer the questions, because he does not know what facts will incriminate him in his later criminal drug case. If he refuses, however, he may face suspension or expulsion on the basis of the testimony of the witnesses against him. Alternatively, the student, wishing to put the events behind him, could testify, admit to selling drugs, and receive a disciplinary sanction. Subsequently, he would stand trial in the criminal case, where his statements from the school disciplinary hearing can be introduced into evidence against him.

With parallel proceedings—one criminal and one administrative—arising from the same set of facts, the student has conflicting interests and faces procedural obstacles in both. The dilemma is further complicated without the assistance or advice of trained legal counsel to warn the student of adverse legal consequences and recommend how best to proceed. Admittedly, a school disciplinary proceeding does not threaten a student’s liberty in the same way a criminal proceeding does. But when a student faces this type of situation, he is forced to make decisions and meet challenges—including confusing legal questions concerning self-incrimination, admissibility of evidence, and confrontation of witnesses—that he is ill-equipped to handle without the advice of legal counsel.

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