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Former FBI Director Mueller drops by first-year SLS criminal law class, puts new twist on Socratic method

Former FBI Director Robert Mueller (Source: FBI)

Stanford, Calif., October 16, 2013 – A group of Stanford Law School students enjoyed a rare surprise recently when former Director of the Federal Bureau of Investigation (FBI) Robert Mueller dropped by their classroom and put his unique spin on the Socratic method. Mueller, the 2002 recipient of SLS’ Jackson H. Ralston Prize, came to SLS to visit Dean M. Elizabeth Magill, but decided to join a criminal law class and spend some time with students.

Edwin E. Huddleson, Jr. Professor of Law Robert Weisberg knew that Mueller might appear in class, but was reluctant to make any premature promises to his students.

“I didn’t expect him to come,” Weisberg said. But after learning more about Mueller’s schedule for the day, Weisberg realized that a visit from Mueller was truly possible and prepared his students.

“‘Look, this is going to sound a little strange,’” Weisberg told the class, adding that a “major figure in law enforcement” might join them, but that he would not identify the figure just yet. When Mueller did indeed arrive in the classroom, the students were taken aback.

“I remember looking up from my notes, seeing someone standing in the doorway … and thinking, ‘That can’t possibly be who I think it is,’” said Scott Toussaint, JD ’16. “Sure enough, it was.”

Mueller has always wanted to teach such a class, according to Weisberg, and both he and the students made maximum use of their time together.

After sitting “patiently and quietly” in the front row, Mueller began asking students about their motivations for attending law school, explained Erin Olivella-Wright, JD ’16. “He seemed genuinely interested in the students.”

Mueller also invited the students to ask questions of him. The students delved into critical subjects immediately, ranging from how Mueller exercised discretion in criminal charging matters to the qualities Mueller valued when hiring attorneys during his years in senior law enforcement positions.

For Austin Lee, JD ’16, some of Mueller’s most memorable remarks concerned his very first days at the FBI. Noting that he assumed leadership of the agency just one week before the 9/11 attacks, Mueller explained that his initial focus was on finding and prosecuting the responsible individuals. But when President George W. Bush asked Mueller how to prevent future attacks, Mueller shifted his focus to prevention.

“I felt that this moment was very powerful in [Director] Mueller’s approach at the FBI over the next decade, and I am extremely fortunate to have heard him comment about this experience,” Lee said.

Weisberg, meanwhile, was thrilled to welcome Mueller to the classroom. Describing Mueller as “an incredibly important and admired figure,” Weisberg cited the U.S. Senate’s unanimous approval of Mueller for the FBI directorship. The Senate vote was “a rare instance where everyone agreed by objective criteria” that the nominee in question was the most qualified person for the job.

Mueller is “above politics, a real pro,” Weisberg praised. Weisberg also appreciated how “informal and gracious” Mueller was when interacting with the students.

The students were equally excited.

“Having Director Mueller attend our criminal law class was an incredible privilege and made me so grateful to be at Stanford Law School, where we are able to interact with some of the most influential lawyers and policymakers in the country,” Olivella-Wright said.

Mueller’s visit “was a reminder of what a special and unique place SLS is,” Toussaint added. “We had just had Justice Ginsburg on campus two days earlier … and then the Director of the FBI drops by to teach criminal law. [I]t reminded me exactly why I wanted to come to Stanford.”

“I am so appreciative that Director Mueller took time from his schedule to engage with our students,” Dean Magill said. “Not many students of criminal law get to hear directly from one of the most distinguished figures in law enforcement history, so I am especially delighted for them.”

About Stanford Law School Stanford Law School (www.law.stanford.edu) is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation’s press as legal and policy experts. Stanford Law School has established a new model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective, and focus on public service, spearheading a movement for change.

Allowing brain scan data into legal proceedings too quickly could be dangerous, prominent scholars warn

Panelists discuss the intersection of law and neuroscience. Photography by Norbert von der Groeben.

Stanford, Calif., October 3, 2013 - Leading researchers in law and neuroscience gathered at Stanford on Wednesday night to review the developing relationship between the two fields and cautioned that prematurely welcoming brain science into the legal system could have perilous consequences. “Brains on Trial” was presented by Stanford Law School’s Center for Law and the Biosciences (CLB) and moderated by renowned actor and science educator Alan Alda. Alda recently hosted the acclaimed PBS series of the same name (click here to visit the series’ website).

The focus of the discussion was how the overlap between law and neuroscience could affect individual rights and the reputations of both disciplines. Panelists included Silvia Bunge, professor of psychology at University of California, Berkeley*; Hank Greely, professor of law at Stanford Law School and director of the CLB; Robert Sapolsky, professor of biology at Stanford; and Anthony Wagner, professor of psychology at Stanford. Click here for a slideshow of the event.

Alda’s initial comments helped frame the evening, as he stated that the purpose of the discussion was to “explore brain science’s growing ability to peer inside our head” and how this science can influence the justice system.

The discussion then turned to what Alda called “one of the most immediately controversial” questions about brain science—the ability to detect a lie. The panel described how functional magnetic resonance imaging (fMRI), which uses changes in blood flow to detect brain activity, is being advertised as a reliable method of lie detection.

But the panelists expressed skepticism about the actual reliability of fMRI technology to detect lies. Wagner acknowledged that many controlled experiments involving fMRI scans and lie detection appear to be highly successful, but called these studies “fundamentally flawed” because any detected brain activity might result from triggers other than deception.

“We need to do better science,” Wagner contended.

Greely explained that judges have generally rejected efforts to introduce fMRI scans as evidence of deception because of concerns about the scientific validity of fMRI technology for the purpose of lie detection.

“My own view,” Greely said, “is [that] it’s not ready to be used in court.”

Alda pursued the topic by asking when fMRI technology would be ready for admission in court as a dependable means of lie detection. Greely cautioned the audience to consider two issues. Calling for robust and long-term scientific trials, Greely emphasized that the accuracy of this technology as a means of lie detection must be demonstrated first.

But assuming that such accuracy can be demonstrated, Greely warned that the next question is how to use the technology. Observing that fMRI scans are currently voluntary, Greely asked the more provocative question: “Could we get a search warrant to search your brain?”

The panelists were equally apprehensive about using neuroscience to confirm the reliability of eyewitness testimony. Explaining that brain scans can indicate whether a person recognizes a particular image, such as a face, Wagner added that such results appear even when the image is novel.

“We’ve known for … about 30 years now that there are multiple forms of memory,” Wagner said, clarifying that some memories are simply “residues, traces in the brain of past experience.”

Alda then broached the constitutionality of applying neuroscience to the justice system, or as he phrased it, “getting a person’s brain to testify against the person.” Greely recognized that the involvement of neuroscience in the legal system raises “very serious questions” about constitutional rights. Greely advised that current legal protections might be insufficient to protect “cognitive liberty” and “keep private what’s inside our skulls.”

As the panel queried how neuroscience can be used to develop appropriate sentences for juvenile defendants, whose brains are still developing, Bunge said that juvenile sentencing is “a critical issue.” Arguing that negative influences and experiences in the prison environment can significantly harm a developing brain, Bunge cited strong evidence that the juvenile brain can still be shaped.

“Rehabilitation has become a bad word in the legal system,” Bunge argued, but this is “an area where neuroscience is helping to lead the way.”

Bunge added that when rehabilitation is attempted, scientists often see changes in the brain before they see changes in behavior. She called this dynamic “the canary in the coal mine.”

Sapolsky lamented that society often creates a false distinction between the mind and the brain. Asserting that people often view “raw smarts” as somehow more intrinsically biological than abilities such as willpower, impulse control and emotional regulation, he declared that “the whole notion of culpability in the legal system is incompatible with neuroscience.”

Sapolsky added that while the legal world is a dichotomy of guilt or innocence, there is “nothing in the nervous system that does not work on a continuum.” He offered that when a car’s brakes no longer function, the car must be removed from the road. “This is not a moral judgment, but an operational one,” Sapolsky argued.

While the panelists expressed serious reservations about the interplay between the legal system and developments in neuroscience, they also sounded a tone of optimism at times.

Scientists “hope that there are many applications of neuroscience that will benefit society,” Wagner noted.

And while Greely conceded that it can be challenging for attorneys and scientists to fully grasp each other’s areas of practice, he praised Stanford’s “wonderful history of interdisciplinary work” and proposed that “the best thing we can do is to get [these] two groups talking to each other and understanding each other.”

The evening event was sponsored by the Stanford Center for Law and the Biosciences and the Stanford Interdisciplinary Group on Neuroscience and Society.

About The Center for Law and the Biosciences The Center for Law and the Biosciences (CLB), directed by Deane F. and Kate Edelman Johnson Professor of Law Hank Greely, examines biotechnology discoveries in the context of the law, weighing their impact on society and the law’s role in shaping that impact. CLB is part of the Stanford Program in Law, Science & Technology. Situated in the locus of the world’s biotechnology industry, within a preeminent research university, CLB convenes a forum of academicians, lawyers, scientists, policy makers, and law students. Through conferences, workshops, lectures, and academic courses, CLB promotes research and public discourse on the ethical, legal, scientific, economic, and social implications of accelerated technological change.

About Stanford Law School Stanford Law School (www.law.stanford.edu) is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation’s press as legal and policy experts. Stanford Law School has established a new model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective, and focus on public service, spearheading a movement for change.

* This story was revised on Oct. 9, 2013, to reflect a change in circumstances. After this story was first published, Silvia Bunge informed the Stanford Graduate School of Education that she would no longer be joining its faculty next year.

Bill Based on Stanford Law School Student’s Research Signed into California Law

Stanford, Calif., September 30, 2013 – California Governor Jerry Brown this weekend signed into law a bill based on student research conducted at Stanford Law School—AB 551.

AB 551 seeks to create a vibrant urban farming ecosystem in California. By authorizing counties to create urban agriculture incentive zones, urban property owners can benefit from reduced property taxes by entering into contracts with farmers eager to create small-scale urban farms in cities.

The bill is based on research by Nicholas Reed, JD ’12 (BA ’02), during his 3L year at SLS. Reed worked with Alumni Mentor in Residence Juan Carlos Cancino, JD ’08 (BA ’02), under the guidance of the George E. Osborne Professor of Law Richard Thompson Ford, who taught them local government law.

Both Stanford undergraduates and San Francisco natives, Reed and Cancino were already working with the “local food movement” via a nonprofit they helped form in 2008, The Greenhouse Project. Their vision is one in which local governments unlock the potential of private actors to transform undeveloped parcels in cities into vibrant, self-sufficient community assets—in this case, small farms.

“What’s so exciting about Urban Agriculture as small business is that it has all of the dimensions of the best urban greening projects—environmental, aesthetic, educational, and cultural, while at the same time generating jobs and revenue to sustain itself. Just look at Little City Gardens in San Francisco—it’s a jewel,” said Cancino.

That this law began life in a law school classroom is no surprise to Reed.  “Although there is no ‘urban ag’ law class at Stanford, as the implications involved the interplay of state and local government law, the research was a natural extension of Professor Ford’s course,” said Reed.

The research was intended to bring awareness to the most important roadblock to urban agriculture:  property tax. Through a small working group, Reed and Cancino partnered with the San Francisco Planning and Urban Research Association (SPUR) and gained the crucial support of the San Francisco Urban Agriculture Alliance (SFUAA). It was through these connections that Reed joined a meeting with Assemblymember Philip Y. Ting, another San Francisco resident, who believes passionately in the local food movement. The Assemblymember went on to use Reed’s ideas in crafting AB 551, which he introduced to the state legislature in February.  Reed and Cancino both testified before legislative committees in support of the bill. AB 551 went on to pass in both the Assembly and Senate arriving on the governor’s desk in late September.

“It is absolutely amazing to think that an independent study project led to a state law. I would encourage all students to pursue ideas of true value to themselves while in law school, because you never know what may come from it,” said Reed.

You can read more on this bill at: http://stanford.io/1eUlY0j

U.S. Supreme Court Justice Ginsburg visits Stanford Law School for Constitution Day

Video of Dean Magill and Justice Ginsburg

Stanford, Calif., September 24, 2013 - U.S. Supreme Court Justice Ruth Bader Ginsburg spent last Tuesday at Stanford Law School to help students, faculty and staff celebrate Constitution Day. Justice Ginsburg, who herself is celebrating two decades on the nation’s highest court, met with students, dined with faculty and filmed a one-on-one conversation with Dean M. Elizabeth Magill. The Justice capped her visit by offering her thoughts on the Court’s most recent term to a packed crowd at Dinkelspiel Auditorium. Click here to view a photo essay of the Justice’s visit to SLS.

Several law students met with Justice Ginsburg for a roundtable discussion about a wide variety of topics ranging from federal Indian law to how the Justice interacts with the Court’s other female justices. Justice Ginsburg indicated that she expects the Court to continue taking on First Amendment cases. She also predicted that the Court will deal with issues of privacy in the digital age and cases involving technology and science.

“All of us … were very excited and nervous and pretty much just in awe to meet her in person and be able to chat with her,” second-year SLS student Susie Choi stated. Choi added that Justice Ginsburg “has a very good sense of humor.”

And if students were captivated by Justice Ginsburg’s presence, the faculty had a similar reaction. Describing the demeanor of those who attended the faculty lunch, Assistant Professor of Law Shirin Sinnar observed that “even that room of people was awestruck by her presence.” Professor Sinnar also expressed how much she appreciated the Justice’s visit, noting that “in the Court and in her life, Justice Ginsburg has always been a champion for justice.”

William Nelson Cromwell Professor of Law Jane Schacter asked Justice Ginsburg how the Court has changed during her tenure and found the Justice’s response to be “very reflective and thoughtful.” Justice Ginsburg indicated that the departure of Justice Sandra Day O’Connor, the Court’s first female justice, was felt acutely, but that the arrivals of Justices Sonia Sotomayor and Elena Kagan were welcome developments.

According to Professor Schacter, Justice Ginsburg was candid about Court decisions with which she disagrees, but her extraordinary regard for the Court was unmistakable. Justice Ginsburg “always made clear her great respect and affection for the Court as an institution,” said Professor Schacter.

Senior Lecturer in Law Allen Weiner asked Justice Ginsburg if she and her colleagues on the Court remain interested in visiting foreign courts and meeting with judges in other nations. Justice Ginsburg confirmed that the justices are still very committed to studying how foreign judicial systems function. In fact, Justice Ginsburg mentioned, she was scheduled to travel to Canada and The Hague after leaving SLS.

For many in the SLS community, though, the highlight of Justice Ginsburg’s visit was her afternoon lecture. Taking to the podium for nearly an hour, Justice Ginsburg again assumed the role of instructor to offer her unique perspective on some of the Court’s most significant recent cases.

Dean Magill, who once served as a law clerk to Justice Ginsburg, introduced the Justice by observing the breadth of her experience as an advocate, professor and judge. Click here to read Dean Magill’s introductory remarks.

“Her life’s work has been to redeem, to make good on, the full promise of the Constitution’s protections,” Dean Magill declared. “Justice Ginsburg’s life’s work has changed the lives of every generation in this room, and in this country.”

Dean Magill also acknowledged that Justice Ginsburg repeatedly encountered longstanding biases against female lawyers early in her career. “She was a woman of formidable talents, and, yet, those talents were not recognized because of the deeply embedded views about the appropriate roles and capacities of women,” Dean Magill said. “In her own generation, Justice Ginsburg was a pioneer, an example of what women were capable of doing in realms previously closed to them. And she was repeatedly victorious.”

Delving further into some of Justice Ginsburg’s victories, Dean Magill cited the Justice’s “brilliant” strategic decisions in challenging laws that discriminated on the basis of gender. “She argued six cases in the Supreme Court, winning every one where the Court reached the merits, and in the process she established the modern law of equal protection as it relates to equality between the sexes.”

Justice Ginsburg addresses full crowd

Stepping to the podium to review highlights of the Court’s “both heady and hefty” recent term, Justice Ginsburg began by mentioning the relatively high number of dissents that the justices chose to explain from the bench, a practice dissenting justices engage in infrequently.  She noted that she herself provided many of those explanations from the bench in the last term of the Court.

Justice Ginsburg then turned to Fisher v. University of Texas at Austin, where the Court examined the Texas school’s affirmative action plan for undergraduate student admissions. As Justice Ginsburg summarized for the audience, Texas had a law that guaranteed University admission to any student graduating in the top ten percent of any Texas high school. In addition to this Top Ten Percent law, however, University admissions officials could also consider race as a “plus factor” for applicants ranking below the top ten percent.

The lower courts upheld the plan, but the Supreme Court sent the case back to the lower courts for another look. Justice Ginsburg dissented and indicated that she would not have sent the case back.

The Justice told the audience in Dinkelspiel Auditorium that “state actors …  need not be blind to the still-lingering everyday evident effects of centuries of law-sanctioned inequality.”

Justice Ginsburg then recounted the two same-sex marriage cases—United States v. Windsor and Hollingsworth v. Perry. In Windsor, the Court scrutinized Section 3 of the federal Defense of Marriage Act, which defined “marriage” for federal purposes as a legal union between one man and one woman. The Court struck down Section 3, a barrier to same-sex couples who wish to marry, as an unconstitutional deprivation of the Fifth Amendment’s guarantee of equal liberty. In discussing the Court’s opinion with the audience, Justice Ginsburg asserted that “congressional animosity to a politically unpopular group does not justify differential treatment.”

In Hollingsworth, meanwhile, the Court took on Proposition 8, the California law that only recognizes as a legal marriage for state law purposes a union between one man and one woman. Because the history of the case was so critical to the Court’s decision, Justice Ginsburg detailed the background of the case at some length.

After the State of California decided not to defend Proposition 8 in court, the original sponsors of the ballot measure decided to defend it themselves, Justice Ginsburg explained. Opponents of Proposition 8 challenged the sponsors’ legal right to do so, but ultimately the California Supreme Court and the U.S. Court of Appeals for the Ninth Circuit determined that the sponsors could defend Proposition 8 in court.

While the Court in Windsor reached the substance, or merits, of the legal issue at hand, the Court in Hollingsworth took the procedural route. According to Justice Ginsburg, the Court determined that the sponsors of Proposition 8 did not have constitutional standing to argue their case in the federal courts. For this reason, Justice Ginsburg told the audience, the Court vacated the Ninth Circuit’s opinion without determining whether Proposition 8 is constitutional.

In presenting these two cases to the audience, Justice Ginsburg deftly clarified how the Court could decide a highly contentious matter on the merits in one case, yet dispose of an equally contentious matter on procedural grounds in another case. But she saved her most robust comments for yet another contentious case.

In Shelby County v. Holder, the Court invalidated Section 4 of the Voting Rights Act. Section 4 contained a formula, better known as the “coverage formula,” by which certain jurisdictions with a history of racial discrimination in voting practices must pre-clear changes to their elections laws with the federal government. The Court determined that the coverage formula was based on old data and must be updated. Justice Ginsburg joined fellow Justices Breyer, Kagan and Sotomayor in dissent.

Justice Ginsburg vigorously defended the Voting Rights Act to the audience as the “foremost and most successful civil rights legislation.” The Justice contended that when Congress renewed the Voting Rights Act in 2006, it did so after thorough deliberation and with considerable information at hand. In Justice Ginsburg’s view, Congress’ decision to re-authorize the Act, including the existing coverage formula, was “a rational means to achieve what was once the subject of a dream—the equal citizenship stature of all in our polity, a voice to every voter in our democracy undiluted by race.”

Furthermore, Justice Ginsburg proposed, the voluminous case record “shows … that the formula continues to identify jurisdictions” that inappropriately restrict voting rights. Justice Ginsburg expressed her concerns about “second-generation barriers” to voting and about the current Congress’ willingness to update the coverage formula.

After her appraisal of the Court’s recent term, Justice Ginsburg took questions from the audience. When asked how the justices remain friendly when their work can trigger serious disagreement, Justice Ginsburg responded that “[w]hat holds us together is that we revere the institution for which we work. We know that we must maintain a high level of collegiality for that to happen.” She added that disappointments and frustrations are only momentary.

The Justice also encouraged students, particularly those considering public interest careers, to find and follow their passions. “You’ve grown old enough to care about something important, but the key thing is that, as lawyers, you will have a skill that enables you to make things better than they might be without your assistance,” she advised. “Find something outside yourself to pursue, and then you will be a true professional.”

Justice Ginsburg also signaled her reservations about televising oral arguments held at the Court. “The problem … is that you’re only seeing a relatively small part of the appellate process,” the Justice said. Viewers would miss the “reams of information that [the justices] absorb” before coming to oral argument. Justice Ginsburg emphasized that the attorneys’ written work is actually more important than oral argument and worried that suggesting otherwise would convey a “false picture” to the public.

Finally, Justice Ginsburg addressed the increasingly hostile nature of the judicial confirmation process in the U.S. Senate. The Justice reminded the audience that she was confirmed by a vote of 96-3 and, despite being nominated by a Democratic president, two of her strongest supporters in the Senate were Republican stalwarts Orrin Hatch and Strom Thurmond. Justice Ginsburg concluded by calling for a return to “the civility and bipartisan spirit” of the early 1990s.

About Stanford Law School Stanford Law School (www.law.stanford.edu) is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation’s press as legal and policy experts. Stanford Law School has established a new model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective and focus on public service, spearheading a movement for change.

Stanford Law School’s Three Strikes Project Co-Publishes Report Detailing Impact of Proposition 36

Stanford, Calif., September 9, 2013 – The Stanford Law School Three Strikes Project has co-published a new study released today with the NAACP Legal Defense Fund that analyzes the impact of the Three Strikes Reform Act passed by California voters last November.

Proposition 36, which passed with 69.3 percent of the vote in November 2012, revised the California Three Strikes Law to impose life sentences only when new felony convictions are serious or violent.  It also allowed for a reduction in the sentences of “three strikes” prisoners currently still serving time.

The report provides data that shows more than 1,000 “three strikes” prisoners have been released from custody under Prop 36, while more than 2,000 additional cases are still pending.

The report’s findings also indicate that the recidivism rate for inmates released post-Prop 36 is, to date, well below the state average with fewer than 2 percent of inmates having been charged with new crimes. The average recidivism rate for non-Prop 36 inmates leaving California prison currently stands at 16 percent.

The report offers three key recommendations:

• California should commit more resources to expedite review of their sentences and end unnecessary delay of cases currently pending.

• Courts should ensure consistent application of Prop 36 throughout the state with uniform standards of review and rules of evidence.

• More public and private resources should be committed to provide services to inmates released under Proposition 36 to assist their reentry to the community and maintain their low recidivism rate.

“The historic passage of Prop 36 overturned long-held conventional wisdom and proved that it is possible to fix our most extreme and unjust crime laws,” said Stanford Professor David Mills, professor of the practice of law at Stanford who co-founded its Three Strikes Project, and is on the Board of Directors of the NAACP Legal Defense Fund.  “Thousands of lives have been changed, millions of dollars have been saved, and California is safer, fairer, and more just – but there’s much more to be done.”

You can view the report in its entirety at: http://stanford.io/17RWl9Y. You can also learn more about the Three Strikes Project at http://stanford.io/1eaGJFz.

About Stanford Law School
Stanford Law School (www.law.stanford.edu) is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation’s press as legal and policy experts. Stanford Law School has established a new model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective and focus on public service, spearheading a movement for change.