No one can predict everything that 2013 has on tap for the law, but to mark a new semester and a new year Penn Law recently asked several professors to anticipate what’s in store. Whether the issue is the legality of drone strikes, impending Supreme Court decisions about affirmative action and same-sex marriage, the anniversary of the landmark decision in Gideon v. Wainright, the impact of documentary filmmaking on the pursuit of justice, or key regulatory decisions by administrative agencies, the law does not rest. Here are some key legal developments to watch for in the year ahead.
The Law of Drones
President Obama’s first term was marked by a significant increase in the use of drones to target and, often, kill terrorist suspects. These actions have proven extremely effective at eliminating the leadership of Al Qaeda and other terrorist networks. They have also, however, prompted a growing political response both in the countries in which such drones are used – Afghanistan and Pakistan, in particular – and here in the United States. It seems likely that in 2013 questions regarding the legality of the use of drones and the appropriate legal rules governing their use will come to the forefront of political debate.
While popular media accounts may suggest that the use of drones to combat terrorism occurs outside of the law, it does not. The use of drones is regulated by both the jus ad bellum (when a state can resort to the use of force against another state) and the jus in bello (the rules governing the use of force itself, including targeting). The use of drones puts pressure on both of those sets of rules. First, when can a state such as the U.S., send a drone into the airspace of a foreign state? Second, what targets are legitimate in which circumstances? International law offers answers to these questions but the realities of the use of drones mean that those answers may be difficult in application or inadequate politically.
In 2013 we are likely to see renewed debate both in international law circles and more publicly about the legality of the use of drones. The answers that will evolve matter a great deal – not just to the current use of drones by the United States but also to the growing use of drones by other states that are quickly catching up technologically.
Deputy Dean and Professor of Law
Questions of Equality
In the months ahead, the Supreme Court will decide cases touching on two very important issues of equality—affirmative action, and the status of same-sex marriages. I expect that the Court will indicate its disapproval of both kinds of unequal treatment. It will likely not go so far as to announce a nationwide right to same-sex marriage, but I anticipate decisions that are encouraging to same-sex marriage advocates. With respect to affirmative action, I think the odds of a broad decision are better; the Court may well take this opportunity to bar any differential treatment based on race.
In each context, the Court will be vindicating the value of equality—or at least one understanding of it. It will be acting in the name of formal equality: sexual orientation and race, it will say, do not give the government a permissible basis to treat people differently. But in a substantive sense, the two contexts are very different. By edging towards recognition of same-sex marriage, the Court will push back against government attempts to mark some people and relationships as second-class. But invalidating affirmative action will not have the same effect. Instead, it will hamper government attempts to avoid a racially stratified society and to foster cross-racial understanding and sympathy.
The Court’s formal approach to equality is leading it to the right result in same-sex marriage cases, but a wrong and deeply perverse one with respect to affirmative action. This understanding of equality is not the one embodied in our Constitution. The Civil War and Reconstruction were about ending oppression, not all differential treatment based on race. It is almost unbelievably ironic that the amendment designed to end oppressive discrimination against freed slaves is now being used to thwart government attempts to promote racial equality.
Professor of Law
In 2013, the nation will celebrate the 50th anniversary of the Supreme Court’s landmark decision in Gideon v. Wainwright which held that the Sixth Amendment’s guarantee of counsel applied to the states. Speaking for a unanimous court, Justice Black wrote that a person accused of a crime could not be assured a fair trial unless counsel was provided to him.
Fifty years of providing counsel to the indigent has changed our criminal courtrooms for the better and has reaffirmed the vital role that lawyers play in fulfilling the nation’s promise of equal justice under law.
Gideon’s anniversary will focus national attention on the achievements made possible by providing counsel, while also highlighting significant challenges to our criminal justice system that are in dire need of remedy. Many inmates wrongfully convicted of crimes they did not commit have their freedom today because of zealous lawyering utilizing the latest scientific knowledge. At the same time, indigent defense funding is in deplorable shape and threatens to undermine the progress made over the past fifty years unless serious remedial action is undertaken soon.
On the civil side, Gideon’s fiftieth anniversary reminds us that the poor still do not have a right to counsel even when their most basic needs involving shelter, health, or family are at risk. The growing Justice Gap between the poor’s need for legal help and their access to representation undermines fairness in our civil courtrooms. With the strong support of the organized bar, the movement to provide a right to counsel in appropriate civil proceedings will continue to gain force in the coming year.
Practice Professor of Law and
Director of Clinical Programs
Legal Documentaries in Focus
I suspect that the coming year will bring greater clarity to the role documentary filmmakers can play in criminal cases and social justice litigation in general. There are many examples of the positive contribution documentary film can have in generating public awareness of a cause, motivating similarly situated victims and survivors to speak out, and stimulating material private support to keep the cause going. Consider HBO’s “Paradise Lost Trilogy” that led to the release of the West Memphis 3, young men wrongfully accused of the murder of three little boys.
Because of the potential benefits, filmmakers have been given broad access to social justice clients, their families, and their supporters as well as to the strategic thinking of their lawyers and advocates. At the same time, though, a backlash has begun with the opposition seeking to subpoena outtakes and notes that the litigators and litigants assumed would be confidential. For example, the City of New York is seeking the unpublished interviews and unreleased footage from Ken Burns’ documentary on the Central Park jogger rape case, “The Central Park Five,” because the exonerated defendants featured in the movie are suing the City for their wrongful convictions.
When challenged, the filmmakers have attempted to protect their sources by claiming the privileges of journalists. In the coming year, courts will likely have more opportunities to determine the status of documentarians and their ability to assert claims of confidentiality. More importantly, perhaps, the involvement of independent documentary filmmakers in criminal cases and civil social justice litigation has the potential to negatively impact the jealous advocacy the litigants are entitled to from their lawyers. It seems clear that in the near future the legal and documentary communities will have to come together to produce a statement of best practices regarding relations between filmmakers, social justice claimants, and their lawyers. Given the significant positive impact that documentaries and nonfiction film can have on the course of such claimants’ pursuit of justice and the possible points of contention between the roles of neutral or objective storyteller (which many documentaries claim to be) and zealous advocate (which lawyers are required to be), it may almost be a professional imperative that more lawyers be trained to produce visual legal advocacy themselves.
William A. Schnader Professor of Law and
Director, Penn Program on Documentaries & the Law
Last week’s tax deal may have avoided another fiscal spiral, but in punting the issue of federal spending the President and Congress have only assured that budgetary wrangling will dominate the legislative agenda for at least the next few months. And yet, the first few months of President Obama’s second term will be critical ones for his domestic policy agenda, as second-term presidents have only a small window before their political status as a lame duck firmly sets in. As a result, we can expect to see President Obama in the coming year – and beyond – pursuing his domestic policy goals much more aggressively by seeking to influence the actions of federal administrative agencies headed by his political appointees. With Republicans retaining important control in both houses of Congress, it will simply be easier for the president to pursue his domestic policy goals through administrative action rather than through legislation. You can therefore expect to see the major developments this year on a wide range of domestic policies – energy, environmental protection, health care, and banking – emanating not from Capitol Hill but from agencies headed with President Obama’s political appointees. The legislative process may be in a state of gridlock, but key regulatory decisions will still be made on the Keystone pipeline project, the Volcker Rule, auto safety standards, hydraulic fracking, and much more.
Edward B. Shils Professor of Law and Professor of Political Science;
Director, Penn Program on Regulation