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Premiering at the 76th Cannes Film Festival, this fourth feature, directed and co-written by Justine Triet, won the Palme d'Or, making Triet only the third female director to do so after Julia Ducournau (Titane) and Jane Campion (The Piano). Triet's narrative was under consideration to be France's submission to the 96th Academy Awards for Best International Feature, but France went with another choice. Its distributor, Neon, is pushing it for other categories, such as Best Actress and even Best Picture. According to Gold Derby, the odds are in its favor.

If one enjoys courtroom dramas, one might be primed to enjoy Triet's film. If one is not familiar with the criminal justice system in France, one might be curious to see how French courts differ from United States' courts. In terms of procedure, the U.S. has what's known as the Fifth Amendment, which means that a defendant in a criminal case can't be compelled to testify during a trial, or at any point during a legal proceeding. This is apparently not the case in France. Not only that, but apparently a defendant can be questioned by the prosecutor at any time and the defendant doesn't even have to be at the witness stand. It makes the whole thing feel unstructured and possibly chaotic.

Sandra Hller (I'm Your Man and Toni Erdmann) stars as Sandra Voyter, a German author who married a French teacher who's also an aspiring author. She has a son with him and it looks like they live in a chalet in the French alps. Sandra is in between books. She instead works as a translator, while her husband is a stay-at-home dad who is trying to come up with writing but isn't as successful. He instead spends time renovating the chalet. Sandra feels estranged from her husband and has so for some years. When he's found dead, she becomes the prime suspect.

Swann Arlaud (By the Grace of God) co-stars as Vincent Renzi, the lawyer representing Sandra. He's a no-nonsense guy who pushes Sandra to go along with his theory that her husband's death was due to suicide, even though Sandra doesn't believe it. This film doesn't show much of his process, but he prepares himself very well and we come to see that he and his co-counsel are very knowledgeable about Sandra. There's a bit of drama, which catches them off guard, but otherwise Vincent seems more than competent. His knowledge of things though possibly comes from a prior and even current friendship he has with Sandra.

Milo Machado-Graner also co-stars as Daniel Maleski, the 11-year-old son to Sandra. He's visually impaired due to an accident when he was 4. He has a seeing-eye dog named Snoop. Unfortunately, he's called to testify at the trial. There's an interesting aspect about that, which hasn't been explored, certainly not in American courtroom dramas. Here, the court assigns a social worker to keep watch over Daniel, so that his mother doesn't do or say anything to influence his testimony.

There's a scene where we see this social worker named Marge, played by Jehnny Beth, a real-life musician, following Sandra and Daniel. It's implied that she's akin to a live-in nanny because otherwise how could she keep watch over Sandra and Daniel? The trial doesn't start for a year, so the implication is that she lives with them for a year. The film rather skips over this aspect and how intrusive that would be or what kind of relationship develops from that.

After the first hour, the film takes place mostly in court. I'm not sure what the intention of Triet was. I assume she wanted it to be a mystery or a question of Sandra's guilt or innocence. However, it got to a point where I fully believed that Sandra was innocent. Triet's question or mystery was neither a question nor a mystery because the so-called evidence was never convincing, mainly because a lot of it is speculation. Also, the behavior of Sandra never suggests she's the psychotic murderer that the prosecution is trying to paint.

Having seen so many legal dramas, particularly on television, most recently, the second season of Netflix's The Lincoln Lawyer (2022), I thought Triet crafted the narrative to put us on the side of Sandra in order to undermine the expectations. There is a scene where we see Sandra arguing with her husband, which is supposed to set up her possible motive for killing him. Triet seemed to want to use the scene to put doubt in the audience's mind about Sandra's guilt, but it only put me more firmly on Sandra's side. The so-called motive never felt solid by the end.

As such, the courtroom scenes weren't as thrilling as I had hoped. The best courtroom dramas always present both the defense and prosecution as equally strong. Here, I never felt the prosecution was as strong. I always felt like the prosecution was grasping for straws.

Rated R for language, sexual references and violent images.

Running Time: 2 hrs. and 31 mins.

In select theaters.

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Movie Review - Anatomy of a Fall | The-m-report | wboc.com - WBOC TV 16

Before the jury came back, I told you thatTrump would losethe E. Jean Carroll rape case.

I also told you that the result of that first E. Jean Carroll trial woulddictate the result of the next one. The next trial isnt scheduled to begin until January, but I told you months ago that Trump will lose; the only open question is the amount of damages that will be awarded. (I stand by that prediction. Its correct.)

So, if Im that clever or at least sufficiently clever to be able to read and think what will happen in the case thats currently in trial between New York Attorney General Letitia James and the Trumps?

First, the Trumps will lose. You dont have to be too smart to predict that because I didthe judge hasalready ruled, on summary judgment, that the Trumps committed fraud. All the judge is considering now is the amount of restitution the Trumps must pay (and perhaps other remedies). So dont be confused by all the news coverage: Trump has already lost. The press is (appropriately) covering the testimony that witnesses are giving, but the final result is not in doubt.

Second, the Trumps are doing almost nothing at trial that helps their cause. Its pretty unusual for a lawyer to be sanctioned for making frivolous arguments in court. (I dont know if there are empirical studies about this, but Id bet the average lawyer goes a lifetime without ever being sanctioned by a court.)

Trumps lawyers are different: Judge Engoron has sanctioned Trumps lawyers for making frivolous arguments. That reflects pretty poorly on the lawyers. Engoron also sanctioned Trump himself twice for attacking the judges clerk after the judge issued a gag order forbidding Trump from doing so.

But thats not enough for Trump. Trump routinely publicly attacks the judge.

None of this helps Trumps cause.

Third, the routine that Don Jr. and Eric used when testifying last week is as old as the hills, and it wont work.

We all know that success has many fathers; failure is an orphan. Anyone whos defended commercial cases for a few years has seen this proverb play out repeatedly. Everyone in a company is delighted to take responsibility for a good decision.

But defense counsel asks each of the four players who were in the room when the bad decision was made whether they personally made the bad decision: The decision that got your company sued doesnt look like a very good one. Who made that decision?

Person No. 1: I know the decision affected my line of business, but I was only making a recommendation. I wasnt responsible for the decision.

Person No. 2: I was on the committee that reviewed that decision, but it wasnt my area of expertise. I was relying on others.

Person No. 3: The committee wasnt really approving anything. We were just hearing about how the business operated.

Person No. 4: None of the accountants or lawyers said there was any problem, so things just floated by. I didnt pay much attention.

Failure is an orphan.

Every time any institution makes a bad decision, youre writing in the passive voice: A decision was made. You can never identify who made the decision; no ones willing to take the blame.

Things can get heated sometimes: As your lawyer, I cant go into court and say that no one made the damned decision. Someone made the decision, and that person will have to defend the decision under oath in court. Which of you made the decision?

Crickets.

So Don Jr. and Eric Trump think theyre being clever when they testify under oath that they didnt approve financial statements. They were just running the company. They got numbers from the accountants who were really the decision-makers. (The accountants, of course, say that they relied on the Trump Organization to provide honest numbers. Its a tale as old as time: No one made the bad decision!)

Hence my prediction: The judge will reject this testimony (because hes undoubtedly heard it many times before) and find Don Jr. and Eric not to be credible.

Im writing this column over the weekend, before the former president takes the witness stand, but my final prediction is that Engoron will also reject certain testimony that he hears from Donald Trump.

Heres my thinking: First, Engoron has already found that many of the financial statements prepared by the Trump Organization contain false statements. That reflects poorly on the folks running the Trump business; they lied for years, in multiple documents. The judge is not going to change his mind about that fact, and the fact reflects poorly on Trump.

Second, the judge has already heard from Donald Trump during a brief sanctions hearing and found Trumpnot to be credible (which means that Trump lied under oath). The judge thus knows in advance that a liar is about to take the witness stand.

Third, the testimony that Donald Trump will give on Monday is going to hurt Trump, likely in two ways. When he denies that he had knowledge of certain issues, hell be confronted with documents showing that he did have knowledge. That happened with Don Jr. It happened with Eric. It will also happen with Dad, and it wont reflect well on Dad.

Moreover, Trump may invoke the Fifth Amendment and refuse to testify about certain issues when hes asked about them on Monday. The lawyers from the Attorney Generals Office know full well that Trump will look terrible if he refuses to answer questions because the answers would incriminate him. If that happens, the judge will be permitted to presume that Trumps testimony on those subjects, if it had been given, would hurt Trumps cause. If Trump takes the Fifth, Engoron will use that presumption against Trump in his ultimate decision.

It should be relatively easy for the the AGs lawyers to force Trump to invoke the Fifth Amendment at trial. As just one example, Trump reinstated himself as trustee of his business trust on January 15, 2021, before he handed over the White House to Joe Biden on January 20. That decision will cause Trump heartache in his criminal trials: Why did Trump put himself back in charge of his business which suggests Trump was returning to the private sector on January 15 if Trump truly believed that he was still president for another four-year term? And if Trump knew he had lost the election, why was he conspiring with others to keep power?

If Trump has any sense or if he simply has competent lawyers he will decline to answer questions on this subject for fear of self-incrimination. Engoron will then presume from that invocation of the Fifth Amendment that Trumps testimony would have hurt his cause at trial.

Thus, the Trumps will lose the civil case pending in New York, and the judges opinion will castigate the whole family.

How about timing? When will the Trumps lose?

I cant help with that one. Engorons the judge; Im not. He will issue the opinion whenever he cares to. I suspect that hell issue the opinion reasonably promptly perhaps within the next several months but the timing is up to him.

On the other hand, I can intelligently predict the length of his opinion: Engorons decision on summary judgment was 35 pages long; hes taking this case seriously. Engoron knows that the whole world is watching the current trial. Engoron knows that the Trumps are certain to take an appeal from his decision. Engorons decision after trial will thus be long, detailed, and written to persuade the public and to avoid reversal on appeal.

How much will the Trumps lose?

Sorry: This would once again be pure guesswork. To have an informed opinion on this subject, I would have to study the opinions of the expert witnesses in the case. Even then, the judge could have a surprise. I have no idea none how much the judge will order the Trumps to pay in restitution.

There you have it.

Sensible journalists report things only after they happen. Thats the intelligent course, so it doesnt restrain me.

I report things before they occur.

By early next year, I suspect, well know how I did.

MarkHerrmannspent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeons Guide to Practicing LawandDrug and Device Product Liability Litigation Strategy(affiliate links). You can reach him by email atinhouse@abovethelaw.com.

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Another Result Before It Happens: The Trump Civil Case In New York - Above the Law

Being arrested can be a daunting and stressful experience, but it is essential to remember that every person has certain rights protected by the Constitution of the United States. In this country, every person is considered innocent until proven guilty. Going through the arrest process with your rights in mind, while respectfully interacting with law enforcement and other agencies involved, can go a long way in determining the outcome of your case.

One of the most important rights a person has after they are arrested is the opportunity to hire an attorney. If you cannot afford one, a public defender will be appointed, as defined in the Miranda warning and in the Sixth Amendment. Seeking some form of legal counsel after an arrest is crucial because lawyers know what to expect from law enforcement and the judicial system, how to react to different circumstances, and how to proceed in their client's best interests.

During the arrest, your lawyer won't be present. After the arrest, you may face several situations in which you don't immediately have your lawyer by your side. It is during these times when knowing your rights is absolutely imperative because it could make or break your future.

Here are some of potential scenarios when a person needs to know how to respond with their rights in mind.

During the arrest

The Fourth Amendment protects people against unreasonable searches and seizures by law enforcement. It states that no person shall be subjected to searches or seizures without a warrant, except in certain circumstances where probable cause exists. You have the right to refuse any searches of your person, property, or vehicle if police don't have a valid search warrant. The only thing that can happen is a "pat-down" search if police suspect you have a weapon, but that doesn't extend to a full search of your personal belongings.

Immediately after the arrest

Being arrested is jarring to say the least. This can muddle your recollection of events and prevent you from fighting for your rights. Try to take note of as many details about the arrest as you can, including the time, location, and officers involved. If you believe your rights were violated during the arrest, it is essential to share this information with your attorney. They can assess whether your Fourth Amendment rights were violated.

Staying silent and calm has a significant impact on your case too. In fact, you don't need to say anything other than your name and address, thanks to the Fifth Amendment, which protects people against self-incrimination and gives them the right of due process of law. Anything you say can and will be used against you, so it's best to request a lawyer before questioning begins or continues. You can request a delay in questioning even if you don't know which lawyer you will use because the court can appoint one for you if you can't afford one.

If you are taken to the police station to be booked into jail, you may be checked and questioned for identity confirmation, which includes photographs and fingerprinting, but you don't need to say anything else regarding the case. After you have been processed, you are allowed to make a local phone call, which can be to a lawyer or anyone else of your choosing.

After the arrest and charges have been filed

In addition to declaring the right to assistance of counsel during and outside of your court appearances, the Sixth Amendment guarantees the right to a speedy trial and the right to confront and cross-examine witnesses presented against you in court. While the speedy trial part expedites the legal proceedings, having a reliable lawyer in your corner will help you avoid unnecessary stress and mistakes during those proceedings.

Being aware of your rights when arrested is vital to protecting yourself and ensuring a fair legal process. A defense lawyer will know and remind you of your fundamental rights, and they will also fight for your best interests when navigating the complications of the legal system. By hiring an attorney, you are not admitting guilt but rather adding an extra layer of protection to which you are entitled by the U.S. Constitution.

If you are investigated for, arrested for, or charged with a felony or misdemeanor, the lawyers at LaHood Norton Law Group can help you navigate the complicated legal process.

"If you have found yourself on the wrong side of the law, up against the intimidating criminal justice system, you are probably feeling anxious and overwhelmed," LaHood Norton Law Group says. "Whether this is your first run-in with the law or not, you have a lot at stake. Don't jeopardize your future and your freedom."

LaHood Norton Law Group is highly experienced in criminal defense law and employs former prosecutors who are familiar with both sides of the courtroom. If you believe you have a case requiring legal representation, visit LaHood Norton Law Group online or call (210) 797-7700 to schedule a free and private consultation.

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The inherent American rights involved during and after an arrest - FOX 29

RICHMOND, Va. -- A jury trial for two of five men charged with murdering 15-year-old Tynashia Humphrey began Wednesday in Richmond.

Humphrey was caught in the crossfire and killed in a September 2022 shootout in the Gilpin Court section of Richmond.

The Richmond teenager was walking from a store at the time and was not the intended target.

WTVR

Tyree Coley, 21, and Savonne Henderson, 24, are being tried together for the shooting.

Both men face charges of first-degree murder, attempted first-degree murder, two counts of use of a firearm in the commission of a felony, shooting in a public place, and shooting from a vehicle.

Both men pled not guilty to all the charges.

Prior to jury selection, prosecutors told the court they believed they would finish presenting their case by mid-Friday. The trial is scheduled for three days.

The defense attorneys told the court they believed the case would be in the jurys hands by Thursday as they did not intend to call any witnesses.

The trial for the three other suspects was supposed to occur in March but was delayed.

Opening Arguments

The case is being tried by Assistant Commonwealths Attorneys Andy Johnson and Katherine Groover. The prosecutions opening argument to the jury was made by Johnson.

First placing a photo of Humphrey on a stand in front of the jurors, Johnson told them that she did nothing to deserve what had happened to her the night in question and that if it were not for a cowardly and senseless act of violence committed by the defendants, she would be alive today.

Johnson said Coley had an ongoing beef with a person who was at Gilpin Court that night and he and the other suspects, who Johnson said Coley is in a gang with, committed the shooting because of that.

Johnson added Humphreys 12-year-old niece would testify they were walking home from the store and recalled seeing two cars at the intersection of N. First St. and E. Charity St. and saw men in one of the cars holding guns.

Johnson said when the people in the two cars started shooting, the niece ran and hid behind a tree while Humphrey ran down the street towards the person they were shooting at. He said she was short once in the back.

Johnson said at least 20 shots were fired from the two cars they allege the suspects were in, adding the person they were shooting at eventually returned fire and shot between seven to nine times.

He said a total of 37 shell casings were recovered from the scene and police said four firearms were used.

Johnson said police used cameras around the scene to determine the cars involved and found one car the next day with Rarmil as the sole occupant and found the other car three days later, with Henderson as one of the occupants.

He said all five suspects met up at an apartment before the shooting, before traveling to Gilpin in the two cars. He said that police obtained cellphone data for all five men, but added three of them turned their phones off briefly around the time the alleged murder happened.

Johnson finished by saying while no one would testify to seeing the two suspects on trial (or any of the other three defendants) fire the shots, the other information the prosecution would present would make it clear that both men are guilty.

Defense Opening Arguments

Because Coley and Henderson are being tried jointly, both men have their own defense attorneys who are each given a chance to speak and cross-examine any prosecution witnesses.

Henderson's attorney, Stephen Mutnick, gave his opening remarks first and said while Humphrey's death was a "senseless tragedy", police and prosecutors rushed their case and rush to judgement in an effort to find someone to blame. He said prosecutors will only present part of the story.

Mutnick added that no one will testify that the suspects were the ones firing the guns or even testify that they were at Gilpin Court that day.

He said that prosecutors will focus on surveillance camera video from the scene, but the video would not show muzzle flashes coming from the car they allege the suspects were in -- only from the car belonging to the other person.

Mutnick added part of the police's rush to judgement included failing to save one surveillance video from a gas station alleging to show the suspects together and another one from Gilpin was not saved before it was deleted and investigators only have a cellphone recording of that video to work with.

Mutnick said prosecutors will talk about bullet fragments, but no mention will be made of which gun fired the fatal shot (additionally, he said no guns were recovered to connect them to). He said the person who fired back at the alleged suspects said he fired seven-to-nine times and does not know if one of his bullets hit Humphrey; adding prosecutors would not be able to rule it out.

He added that while prosecutors will say Henderson's phone was pinging off a tower in the area, the FBI agent that will testify about the data will talk about limitations with the technology.

Mutnick told the jurors that while prosecutors will say it was the suspects, it will be up to them to decide and that there is reasonable doubt as to who was in the two cars police claim contained the suspects.

Coley's attorney, Gregory Sheldon, made similar comments about the video evidence, plus questions about who is actually in the two cars and what evidence actually placed Coley at the scene.

Sheldon added there will also be talk of DNA swabs taken from the cars and added that Coley's DNA will be excluded from those samples.

Witness Testimony

Witness 1 - RPD Officer

The first witness called to the stand by the prosecution was one of the first Richmond Police Department (RPD) officers who responded to the call and he described how he found Humphrey and his attempts to render first aid.

On cross examination, the officer confirmed he did not see anyone believed to be involved in the shooting. He also admitted he did not know if someone had moved Humphrey before he arrived on scene.

Witness #2 - Humphrey's Niece

The next witness was Humphrey's 12-year-old niece who she was walking home from the store with.

The girl said she remembered seeing two cars as they walked through the intersection of N. First St. and E. Charity St. and that people on the passenger side of one of the cars were holding guns.

She said one of the men had twist dreads and others were wearing masks.

The niece said no one else was shooting when the gunfire started from those two cars and it was not until Humphrey had fallen to the ground that the person who was being shot at began to return fire. She said she remembered hearing around six shots total.

On cross examination, the niece said she did not recognize either Coley or Henderson. She added the person who had the twist dreads was fat.

Witness #3 - Another Niece of Humphrey

The third witness was another niece of Humphrey's, a 14-year-old who went to the store with Humphrey, but was walking back a different way than Humphrey and the first niece.

This niece said she did not notice anything until Humphrey was almost hit by the two cars in the intersection and shortly after heard the gunshots. She recalled somewhere between ten to 20 shots. She said the two cars in the intersection were shooting in the direction of where Humphrey was walking.

Witness #4 - RPD Detective Sergeant

The last witness to testify before jurors on day one was Det. Sgt. Jon Bridges, the supervisor of the homicide unit that investigated Humphrey's death.

Bridges said he got on scene shortly before 8 p.m. and early on in the investigation, police learned of a Black Jeep being involved in the case somehow, but they developed more leads in the ensuring hours.

Bridges said they utilized the surveillance video system set up around Gilpin Court, but said to access and save the video they record requires them to go to an office and use a certain laptop. He said only some officers in the department know how to do this.

Bridges said one officer who knew how went with him and a few other investigators to look at the video and they saw the Black Jeep mentioned near where Humphrey was found and saw in other surveillance video afterwards. He said the officer who was helping investigators access the video knew who the driver was (eventually identified as the person being shot at by the suspects).

He said investigators also identified two other cars of interest on the security cameras, a black sedan and a light blue-gray sedan that were seen traveling in tandem.

Bridges also mentioned that all the video they viewed also has a certain process to download that can be "time-consuming and tedious" and officers may download immediately or defer to later if it is a longer clip. He said they downloaded a few clips that night and asked another officer the next day to go back and download a few more clips, which he said were sent to him a day or two later.

Bridges admitted that a request for a certain camera view was either missed or the request was misinterpreted and was not downloaded in time before the file was deleted, but said one officer on the night of Sept. 12 used his iPhone to record the clip as it was being played at the office.

This video of a video was of the intersection where the alleged shooting occurred, where Bridges said the two cars entered the intersection, paused, and then continued on. He added that in the video you could only see the driver sides of those two cars.

Bridges said they also used a license plate reader caught two cars in the area that he said matched the cars in the surveillance video.

Bridges then walked the jurors through a timeline on a map of when and where the two cars were spotted on the surveillance videos.

On cross examination, Mutnick raised questions about the poor quality of the video played in court, which Bridges said was because of the program being used to play it. He also took the blame the original video not being saved as it should have.

He also admitted that there is a hiccup in the video during the time that he alleged the two cars paused in the intersection.

Mutnick also asked how police confirmed the cars in the license plate reader photo were the same as in the surveillance video images since you could not make out the license plates in the surveillance video and Bridges said the compared it using other characteristics like make and model.

Meanwhile, Sheldon asked and Bridges confirmed that despite looking at a significant amount of video in the investigation they could never identify the occupants of the car.

On redirect (final questioning from the prosecution), Bridges said there was no difference in the context from the video he saw the night in question and the second-hand video that was played in the courtroom -- that the two cars traveled in tandem, paused in the intersection, and then left.

He added on the point of matching the cars in the license plate reader photos and surveillance video, that no other cars that came through the license plate reader camera matched those in the surveillance videos.

Issues with Next Witness

Before breaking for the day, the court tried to determine what to do with one witness prosecutors planned to call, but were concerned would not answer their questions and instead invoke his Fifth Amendment right against self-incrimination. The witness is the person who the suspects allegedly shot at and who allegedly returned fire.

Prosecutors told the judge nothing the witness could say in court could be used against him because he had already said them in interviews with police.

The witness was then brought into court for questioning, but without the jurors present.

When asked if he recalled being at Gilpin Court on Sept. 12, 2022, the witness said he was not sure. When asked if he was being honest, the witness then said he was there a lot and exact dates do not stand out.

When Groover asked if he remembered the night he watched a girl fall next to his vehicle, the witness remained silent for about twenty seconds. When Groover asked again, he invoked the Fifth Amendment.

Groover asked several more questions to which the witness either remained silent, answered in the affirmative, or invoked the Fifth Amendment.

The witness is currently in custody for an unrelated matter and is being represented by Gianna Fienberg, who then spoke up in court and said their client was being asked questions that were leading to ones that could implicate him in more specific crimes either from the state or federal level.

Groover said it is not her belief that he was being charged by her office (and would draw up a letter stating he will be protected from anything he would say) and added she had spoken to federal prosecutors who said they had no intentions of charging the witness in relation to this case.

Judge Hairston said he was hesitant to compel the witness to testify without knowing what he would say. The defense counsel then gave the judge a copy of the police interview transcript for him to review.

CBS 6 Legal Analyst Todd Stone offered the following analysis of this issue:

"The Fifth Amendment to the United States Constitution provides a witness with the right against self-incrimination, meaning they cannot be compelled to testify against themselves in a criminal case. Its important to note however that the right can hinge on an offer of immunity from prosecution. If a witness is being offered immunity from prosecution, it means that they are being granted protection against any criminal charges that may arise from their testimony. In such cases, the witness could be compelled by the Court to testify (since their Fifth Amendment right against self-incrimination would no longer apply.) By providing immunity, the prosecution is essentially removing the threat of prosecution, which encourages the witness to provide truthful and potentially incriminating information," said Stone. "A state prosecutor however does not have the authority to offer immunity from federal criminal prosecution so the offer of state immunity can often be an insufficient basis for a Court to compel that witness to testify."

The judge told prosecutors they would come back Thursday and put the witness on the stand with jurors present and if they still remained at a impasse, to have their arguments ready for why the judge should compel him to testify.

Court is set to resume at 9 a.m.

This is a developing story, so anyone with more information can email newstips@wtvr.com to send a tip.

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She was killed walking home. Two men are now on trial for her ... - CBS 6 News Richmond WTVR

In this Nov. 30, 2005 file photo, an anti-abortion supporter stands next to a pro-choice demonstrator outside the U.S. Supreme Court in Washington. (AP Photo/Manuel Balce Ceneta).

Are laws restricting abortion takings of "private property" that require the government to pay "just compensation" under the Fifth Amendment? In a recent law review article on abortion rights (pp. 504-508) and in her important new book After Misogyny, Fordham law professor Julie Suk argues that the answer is "yes." Her argument is a fascinating example of a famous left-liberal law professor arguing for a major expansion of Takings Clause protection for property rights.

The position she advances has a strong basis in natural rights theories of property, including those advanced by James Madison, the principal framer of the Takings Clause. But it also cuts against centuries of legal precedent and practice. If accepted by the courts, it would have fairly radical libertarian implications that would make me happy, but might be less welcome to many left-of-center advocates of abortion rights. Suk's theory faces an uphill fight under US Supreme Court precedent. But it could perhaps fare better under some state constitutions. Her argument is also notable as one of several examples of left-liberals potentially rethinking their traditionally negative view of constitutional property rights.

The basic argument here is admirably clear and simple. People have property rights in their bodies. Laws banning abortion restrict those rights. Moreover, the imposition is a pretty severe one. To put it in more legalistic terms, the Supreme Court has ruled in Cedar Point Nurseries v. Hassid (2021) that even a temporary physical occupation of property qualifies as a "per se" taking, automatically requiring compensation. By similar logic, abortion bans can be seen as compelling unwanted physical occupation of a woman's body by the fetus.

The idea that people have property rights in their bodies is far from a new one. John Locke famously defended such rights in the 17th century. So too did James Madison, the Founder principally responsible for drafting the Takings Clause and getting it included in the Bill of Rights. In his famous 1792 essay on "Property," Madison wrote that property includes not only "a man's land, or merchandize, or money," but alsoamong other things"the safety and liberty of his person." He goes on to say "[t]hat is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest."

As an example of such "arbitrary seizures," Madison gives the case of "a magistrate issuing his warrants to a press gang" (referring to the then-common practice of governments seizing men for forced labor or military service). But it's not hard to see how coerced pregnancy can also be considered a seizure of "one class of citizens for the service of the rest." Locke's and Madison's arguments have been extended by modern libertarians (myself included), who have long argued for a broad notion of self-ownership. The idea of self-ownership was also central to the anti-slavery movement that inspired the Reconstruction-era amendments. And, of course, one of the major achievements of the feminist movement was the extension to women of bodily autonomy rights previously fully available only to men.

But despite this impressive historical pedigree, the idea of self-ownership property rights in the body has never played a meaningful role in takings doctrine. Takings jurisprudence has historically been confined to property in land and objects ("real property" and "personal property," in legal terminology), a limitation embodied in William Blackstone's famous definition of property as "that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual." To my knowledge, federal and state courts have never ruled that a restriction on bodily autonomy violates the Takings Clause.

There is a long history of state and federal laws that impose severe restrictions of that type, and would be vulnerable to attack on takings grounds, if state and federal constitutional takings clauses had applied to them. Most obviously, military conscription literally seized men's bodies and forced them to be used for purposes against their will. The same goes (to a lesser extent) for mandatory jury service. Draftees and jurors usually get paid, but generally far less than the "fair market value" Supreme Court precedent requires as "just compensation" for takings.

In the 1916 case of Butler v. Perry, the Supreme Court upheld a Florida law forcing men between the ages of 21 and 45 to do road repair work, six days per year. The Court cited a long history of similar statutes. I think the justices were wrong to reject the Thirteenth Amendment argument against the constitutionality of these horrible forced-labor laws. But it's notable that no one seems to have tried to challenge them on Takings Clause grounds.

There is one major historical example of takings arguments being deployed to attack the seizure of property rights in human bodies. But it's not one likely to appeal to modern sensibilities. Before the enactment of the Thirteenth Amendment, defenders of slavery often argued that abolition should be considered a taking, thereby requiring compensation. On top of that, they also contended that it would be a taking not for a "public use," (as required by the Fifth Amendment), because the new owners of the "property" in question would not be the government, but private individuals (the freed slaves themselves). Abolitionists responded (correctly, in my view) that emancipation was not a taking because the ownership of slaves was not a "natural" property right, and therefore not one protected by the Takings Clause at all. I go over this debate and its implications for modern takings issues in Chapter 2 of my book The Grasping Hand.

For present purposes, the key takeaway is that takings arguments were used here because this was the one major situation in American history where mainstream legal thinkers (at least those supportive of slavery) thought that property in a person was essentially similar to property in objects or animals. For defenders of slavery, owning a slave was just another example of Blackstonian "dominion. over the external things of the world."

I do not mean to suggest that Suk's argument is somehow on the same moral plane as that of the slaveowners. There is an obvious moral chasm between claiming ownership of one's own body, and claiming a right to control the bodies of other people by force. But the paucity of other historical takings arguments of this type underscores the reality that takings doctrine has never been understood to protect bodily autonomy, as opposed to the ownership of "external things."

Suk cites a number of cases recognizing property rights in body parts, such as a spleen removed during an operation. But these weren't takings cases. Moreover, they mostly involved property rights in body parts that have already been removed from the body, thereby becoming external objects (standard "personal" property). The exception is cases involving surrogate parenthood, in which the surrogate carries and gives birth to a fetus on behalf of a couple unable to do so on their own. But, legally speaking, this is best understood as a contract for labor, similar to other situations where people commit using their bodies to do work for pay (sometimes risking various dangers in the process). Government regulations restricting such labor contracts, have never been held to be takings and the same applies to laws banning or restricting surrogacy.

A second doctrinal challenge for Suk's argument is the so-called "police power" exception to takingsthe longstanding rule that restrictions on property rights that would otherwise be takings are exempt from the requirement of just compensation if they were adopted for the purpose of protection public health and safety. For example, during the Covid pandemic, a number of court decisions rejected takings challenges to public health orders shutting down various businesses on the grounds that they fit within the police power exception. The scope of this exception has never been all that clear, and there is a long history of debates over how far it should go. But if you believe that abortion is akin to murder or manslaughter, you are also likely to conclude that abortion restrictions fall within the police power exception. You might even reach that conclusion if you think that the government just has a reasonably plausible claim that restricting abortion is needed to protect innocent life.

I don't myself hold that view (I am pro-choice with respect to the overwhelming majority of abortions), and I think the police power exception should be given a fairly narrow interpretation, more generally. But the issue is not an easy one. As with many other arguments about abortion, much depends on the extent to which you believe fetuses have a right to life comparable to that enjoyed by infants. The plausibility of the pro-life position on this point is one of the key factors that makes abortion a tougher issue than many other bodily autonomy issues.

More can be said about the police power question. For now, I just note this is a difficult question that Suk doesn't address, but should consider taking up in the future.

Let's assume these doctrinal problems can be overcome, and courts must declare abortion restrictions to be takings. Such a conclusion would have major implications that go far beyond abortion. At the very least, the draft, mandatory jury service, and any other significant government-imposed forced labor would have to be considered takings as well. That includes various proposals for mandatory national service periodically propounded by advocates on both the right and the left.

All such policies involve the appropriation of a person's body to perform various types of work against his or her will. And, in many cases, especially the draft, the severity of the imposition is at least as great as that of an unwanted pregnancy. Draftees are generally required to serve longer than nine months, andat least in wartimethey may face much greater risks to life and health than most pregnant women.

Other state-imposed constraints on bodily autonomy do not involve physical appropriation of the body, but "merely" restrictions on what you can do with it. If you believeas many takings experts dothat the Takings Clause protects against "regulatory takings" as we well as "physical" ones, then these should also go on the chopping block. Examples include the War on Drugs, bans on the sale of organs, laws banning prostitution, FDA restriction on what types of medicine people are allowed to take, and much more. As with the draft, some of these regulations impose very severe burdens, at least as great as those of abortion restrictions. Laws banning organ markets literally kill many thousands of people every year. FDA restrictions have created a vast "invisible graveyard" of people who died because regulatory barriers prevented from using medicines that might have saved their lives.

Some of these can potentially be distinguished on the grounds that they "merely" involve bans on the payment of money, rather than on the activity itself. For example, current law allows you to donate an organ for transplant, but not to be paid for it. Ditto for the legal distinction between prostitution and sexual encounters. But the vast majority of abortions are also performed by people who are paid for the service. I suspect Suk would not accept the idea that her takings argument doesn't apply to laws that "only" ban abortions performed for pay.

Current Supreme Court precedent does offer some protection against regulatory takings, but much less than against physical invasions and appropriations. The more you believeas I dothat these two types of takings should be treated more equally, the broader the potential impact of expanding the Takings Clause to protect bodily autonomy.

Such protection would not be absolute. The Takings Clause is not a total bar on regulation, but merely a requirement that the state must pay just compensation (and that the seizure of property rights be for a "public use"). But the need to pay compensation might end up deterring many types of regulation, if maintaining them required payment of vast sums to large numbers of people. The War on Drugs probably wouldn't survive for long if government had to pay fair market value compensation to everyone who wants to sell, distribute, or use currently illegal narcotics. Many states might prefer to abolish mandatory jury service if they had to pay market wages to jurors (I would be happy to see such a shift). And the same goes for many other policies.

While I'm notso farconvinced that our present Constitution requires it, I would be absolutely thrilled to have a constitutional system in which restrictions on bodily autonomy are generally considered takings, subjectperhapsto a narrow police power exception. Even if that rule were limited to "physical" takings, it would still be a huge improvement over the status quo.

Obviously, people less libertarian than me might not be so happy to embrace these implications of the argument that abortion restrictions are takings. Some might even be horrified at the mere thought of them.

I urge Prof. Suk and other advocates of the argument that abortion restrictions are takings to carefully consider the implications of their reasoning for other issues. If they want to embrace the implications sketched out above, that's great! If not, they should spell out which ones they reject and why. A rationale narrowly confined to the abortion context risks being rejected as arbitrary special pleading; or at least that may happen unless it is accompanied by a compelling theory explaining why the same reasoning doesn't apply to other significant restrictions on bodily autonomy.

While Suk's argument faces tough sledding under US Supreme Court precedent, it could potentially fare better under at least some state constitutions. Virtually every one of the latter has a takings clause of its own. And many of them have different histories (and sometimes even different wording) from the federal one. State courts can and sometimes do interpret their takings clauses as providing more protection for property rights than the federal Supreme Court's interpretation of the Fifth Amendment. Moreover, many state constitutions are much easier to amend than the federal one. Perhaps a state could enact a Self-Ownership Amendment under which significant constraints on bodily autonomy are presumptively considered takings, or even just presumptively banned altogether. State constitutional law matters greatly here, because many constraints on bodily autonomy (including most abortion restrictions) are products of state law, not federal.

Finally, Suk's argument is notable as an example of the broader trend of left-liberals rethinking traditional left-wing hostility to expansive constitutional property rights. Since the Progressive and New Deal eras, the dominant left-wing view has been that property rights deserve little, if any, judicial protection, because they were seen as tools by which the rich exploit the poor and impediments to rational, scientific social planning.

But the Supreme Court's recent unanimous decision in Tyler v. Hennepin County (using the Takings Clause to ban home equity theft) is an example of how property rights protections often actually benefit the disadvantaged, minorities, and those lacking in political influence. And this issue just the tip of a much larger iceberg, that includes such issues as exclusionary zoning, "blight" and "economic development" takings, asset forfeitures, and more.

These types of issues have gradually begun to shift left-liberal attitudes on property rights issues, albeit liberal constitutional law scholars have been more wary than economists and land-use specialists. I hope the trend will continue andhopefullypick up steam.

See the article here:
Are Abortion Bans Takings? - Reason