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September|October 2003
Mock Trial's Big Dance By Brian Montopoli
pete rose’s mock trial By Joshua David Mann
Sue Yourself By Dashka Slater
To Be Continued By Sam Goodstein
No Boundaries By Tyler Maroney
The Prudent Jurist By Susan Koniak
Cases & Controversies

Cases & Controversies

The Scarlet "S"

Rebecca Gordon and Janet Adams, peace activists who publish a left-wing newspaper called War Times, recently found themselves more than a bit inconvenienced when they tried to fly from San Francisco to Boston. Told they were on a "no-fly" list by the airline agent, they were forced to submit to police interviews and searches before being allowed on the plane. Their boarding passes were marked with a scarlet "S." Gordon and Adams returned home and filed Freedom of Information Act requests for the no-fly list, asking to see any and all government records relating to who goes onto the list and which agencies get to see it. The FBI responded by denying that there is such a list, despite the Transportation Security Administration's comments about its use and plenty of press coverage about passengers getting detained because they happened to have names—including generic-seeming ones like David Nelson—that set off alarms.

Undeterred, the pair sued the FBI, the TSA, and the Justice Department for refusing to hand over the list. Even if they can show that the document exists, however, their suit isn't likely to get far. The Freedom of Information Act was high-mindedly conceived as a tool for democracy, but it has proved more useful for commercial litigants than for journalists or public interest groups in search of juicy information. (Richard Nixon managed to delay the public release of Watergate transcripts for decades, and the CIA almost always shrugs off FOIA requests by saying that secrecy is in the national interest.) As Amy Rees wrote in the Duke Law Journal in 1995, "FOIA has rarely if ever been used as a powerful external check on governmental affairs."

The courts, Rees notes, are reluctant to step in when the government asserts that a document is being kept secret for reasons of national security—one of nine exemptions to FOIA—because judges do not feel well-qualified to decide what constitutes sensitive information. President Bush was continuing a long tradition of confident tight-lippedness when he said, after 9/11, "My administration will not talk about how we gather intelligence, if we gather intelligence, and what the intelligence says."

Ads and Addiction

In California, a 25-cent tax on cigarette packs pays for an aggressive state campaign against smoking. Adopted by ballot initiative in 1988, the tax has funded TV ads that slam the tobacco industry, including a series that features cackling tobacco execs plotting to get children hooked on nicotine.

Less than thrilled by that portrayal, two of the companies decided to bring a lawsuit. R. J. Reynolds and Lorillard want California to stop running the ads, in part because they say the ads rob the companies of their right to a fair trial by prejudicing potential jurors in tobacco lawsuits. (Reynolds currently faces 40 such suits in California.)

Unsurprisingly, in-house research done by Reynolds and Lorillard indicates that people who've seen the ads have lower opinions of tobacco companies. New studies in the social sciences, however, suggest that television's effect on the casual attitudes of viewers isn't necessarily carried over to situations involving weighty deliberation—like that of the jury box. "When people think more carefully about their judgments, the effect of television viewing is eliminated," says R. J. Shrum, a marketing professor at the University of Texas. Tobacco companies are unlikely to be swayed: After years of enduring criticism directed at the insidious effects of their own ads, why shouldn't they borrow the argument?

The Treaty of the Swan

A handful of mute swans were imported from Europe by wealthy Americans in the 19th century as a decorative species. The birds, which live for decades and reproduce annually, quickly made their home in places like the Chesapeake Bay, where their population has swollen to more than 4,000. An aggressive species with no natural predators, the swans are notorious for crowding out endangered nesting birds, like the least tern, and decimating the aquatic grasses eaten by crabs, ducks, and other bay life. So state environmental agencies started treating them like pests. The State of Maryland began a program of "addling" mute swan eggs—that is, making the cygnets inside incapable of hatching—while Virginia classified the bird as a nuisance species, allowing it to be shot year-round.

But the swans have devoted fans, who figured out that the law protects the birds, although probably by accident. A pro-swan environmental group sued the federal secretary of the interior under the 1918 Migratory Bird Treaty Act. The act gave teeth to a series of treaties designed to protect migratory birds, including the swan family, from extinction. The Department of the Interior took the mute swan off the list of swans covered under the act in 1984—the destructive birds are neither native to the United States nor migratory—but a lawsuit filed in 2000 led a federal appeals court to restore the mute swan's protected status. The court acknowledged that the birds caused ecological damage, but held that a mute swan is still a swan.

The federal government interpreted this ruling to mean that the birds could still be killed with a depredation permit, which the U.S. Fish and Wildlife Service was happy to provide. So the swan forces have sued again—twice—arguing that the 1918 act requires extensive review before permits can be granted. The State of Maryland has already folded, agreeing to "surrender" its swan-control permits. Another suit is underway to determine the fate of the permits in other states. It's a cause that is, clearly, for the birds.

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