Scott Michelman

Shikes Fellow in Civil Liberties and Civil Rights and Lecturer on Law

Lecturer on Law

Spring 2017

Areeda 135

617-496-8855

Assistant: Margaret Flynn / 617-496-2074

Biography

Scott Michelman is the senior staff attorney at the ACLU of the District of Columbia. His docket as an impact litigator has spanned a broad range of civil rights/civil liberties issues, including access to the courts, discrimination and selective enforcement, freedom of speech and press, habeas corpus, immigrants’ rights, judicial secrecy, political protest, post-September 11 abuse of executive power, privacy rights, religious freedom, the rights of medical marijuana patients, sentencing law, unreasonable search and seizure, and workers’ and consumers’ rights. Mr. Michelman was previously an attorney with Public Citizen Litigation Group and with the ACLU Criminal Law Reform Project.

Mr. Michelman has argued before the United States Supreme Court, six federal courts of appeals, the Supreme Judicial Court of Massachusetts, and numerous other federal and state courts around the country. In connection with his practice, he has been quoted by national radio, television, and print media outlets, including NPR, CNN, Fox News, Al Jazeera America, the New York Times, Washington Post, Los Angeles Times, USA Today, U.S. News and World Report, Associated Press, Reuters, and National Law Journal. His commentary and opinion have appeared in SCOTUSblog, Slate and the Huffington Post.

Mr. Michelman has taught as adjunct faculty at American University Washington College of Law, Santa Clara Law School, and the University of California at Santa Cruz, and he has guest-lectured or appeared on panels at Yale Law School, Georgetown University Law Center, the University of California at Berkeley, and the American Bar Association, among others. His publications include Doing Kimbrough Justice: Implementing Policy Disagreements With the Federal Sentencing Guidelines, 45 Suffolk L. Rev. 1083 (2012) (with Jay Rorty), and Who Can Sue Over Government Surveillance? 57 UCLA L. Rev. 71 (2009), reprinted in 26 Saltzman & Wolvovitz, Civil Rights Litigation & Attorney Fees Annual Handbook 79 (2010).

Mr. Michelman graduated magna cum laude from Harvard Law School, where he was an editor of the Harvard Law Review and a member of the winning team for the 2003 Ames Moot Court Competition. He went on to clerk for the Honorable Betty B. Fletcher of the United States Court of Appeals for the Ninth Circuit. Following his clerkship, Mr. Michelman was the 2005-06 William J. Brennan First Amendment Fellow at the ACLU, and then a clinical teaching fellow at the Seton Hall Law School Civil Rights and Constitutional Litigation Clinic.

Before law school, Mr. Michelman designed and taught courses on American politics and government as the 2000-01 Annenberg Fellow to Eton College in Windsor, England. He received his bachelor’s degree in political science magna cum laude from Duke University in 2000.

Scott Michelman, Taylor v. Barkes: Summary reversal is part of a qualified immunity trend, SCOTUSblog (June 2, 2015, 11:17 AM).
Categories:
Constitutional Law
,
Criminal Law & Procedure
Sub-Categories:
Prison Law & Prisoners' Rights
Type: Other
Abstract
The defense of qualified immunity enables government officials to defend against constitutional claims on the ground that the right they violated was not “clearly established” and therefore a reasonable officer would not have known that his conduct violated the law. It’s an oft-asserted and powerful defense. And at the Supreme Court, it’s the rationale for a steady string of summary reversals, including yesterday’s decision in Taylor v. Barkes. It’s worth asking what function these reversals serve.
Scott Michelman & Jay Rorty, Doing Kimbrough Justice: Implementing Policy Disagreements With the Federal Sentencing Guidelines, 45 Suffolk L. Rev. 1083 (2012).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Congress & Legislation
,
Courts
Type: Article
Abstract
Federal sentencing law is in the midst of a period of profound change. In 1984, responding to concerns about excessive judicial discretion in sentencing, Congress created the United States Sentencing Commission to promulgate the United States Sentencing Guidelines (Guidelines), a complex and mandatory schedule of federal criminal sentences based on a multitude of offense- and offender-specific factors. The Guidelines were introduced in 1987 and governed federal sentencing for nearly twenty years. But in 2005, the Supreme Court held that the Guidelines, by requiring judges instead of juries to find facts that could increase a defendant’s sentence, violated the Sixth Amendment. The Court’s remedy was to render the Guidelines advisory only—a starting point but not necessarily the endpoint for sentencing decisions. Over the past several years, the Supreme Court and the lower federal courts have had to answer a range of questions about how the new advisory Guideline system would work in practice. Among the most consequential were the procedural question of how a district court should apply the now-advisory Guidelines, and the substantive question of whether a court could vary from the Guidelines on the basis of a policy disagreement with the Guidelines themselves rather than the circumstances of an individual defendant. The Supreme Court answered these two crucial questions in the Gall and Kimbrough cases in December 2007, yet these two decisions seemed to talk past each other in terms of sentencing procedure. Kimbrough authorized policy-based variances. Gall instructed courts how to apply the advisory Guidelines in individual cases. But neither case explained how or when in the sentencing process courts should apply the policy-based variances the Court had just authorized. The result has been a lack of procedural uniformity among district courts applying policy-based variances, with most courts mingling policy and individualized considerations without specifying the role of each factor in determining sentences. Most courts have not even acknowledged, much less attempted to bridge, the gap between the substantive sentencing considerations authorized in Kimbrough and the procedural roadmap laid out in Gall. Academic discourse has likewise left this issue unaddressed. This Article urges courts to reconcile Kimbrough and Gall by adding an analytical step to the sentencing process through which courts can explicitly apply policy considerations separately from, and prior to, individualized considerations. The blending of policy- and individual-based factors in sentencing adversely affects both the fairness of individual sentences and the development of the Sentencing Guidelines themselves. When courts blend different types of variances together, it is more difficult for them to exercise fully each type of discretion available under the advisory Guideline regime. Additionally, the Sentencing Commission relies on a continuing dialogue with district courts to fulfill its perpetual responsibility of refining the Guidelines based on empirical data and national experience; a clear articulation of courts’ grounds for variance, therefore, provides vital information about how the Guidelines can be improved. The creation of an independent analytical step will ensure faithfulness to Kimbrough and due consideration of each facet of the sentencing court’s discretion. The result will be a sentencing process that is more precise, more transparent, and ultimately fairer.
Scott Michelman, Who Can Sue Over Government Surveillance? 57 UCLA L. Rev. 71 (2009).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourth Amendment
,
Separation of Powers
,
National Security Law
,
Courts
Type: Article
Abstract
The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive authority, the Fourth Amendment, and the separation of powers. But legal challenges to these new surveillance programs have been stymied — and decisions on the merits of core constitutional questions avoided — by court rulings that the challengers lack standing to sue under the Supreme Court’s 1972 decision in Laird v. Tatum. Last year, Congress amended the law governing foreign intelligence surveillance; the law has been challenged in court, and once again the issue of the challengers’ standing is at the heart of the case. In light of the fundamental civil liberties and separation of powers questions that remain unanswered, it is vital to identify who, if anyone, has standing to challenge government surveillance. Unfortunately, the law of standing in the surveillance context remains murky and in important respects appears out of line with the larger body of standing jurisprudence. In some cases, courts impose on surveillance plaintiffs a stricter test for probabilistic injuries than exists in the rest of standing law; in other cases, courts do not recognize as injuries the significant chilling effects a broad and secretive surveillance program can create. This Article argues that the divergent strands of jurisprudence interpreting Laird can be synthesized with general principles of standing law into a coherent and workable doctrine that will open the courthouse doors just wide enough to permit courts to adjudicate the crucial constitutional questions presented by new and emerging regimes of government surveillance.

Education History

Current Courses

Course Catalog View

Areeda 135

617-496-8855

Assistant: Margaret Flynn / 617-496-2074