Pennoyer says that U of Rhode Island's "so-called 'double jeopardy' problem is more vexing" than the dorm search and questions whether jeopardy has even attached, as the actions are administrative in nature. A valid point, and I had initially raised concerns, but I wonder if we aren't missing the issue: its an "administrative" action because its a state actor, but really all they're enforcing is a private (contractual) remedy, essentially outside of a traditional legal context (court or administrative), save the fact that they happen to also be a state agency. A public school would likely provide for the same proceeding, and I'm not sure it's different for the state actor — i.e., I'm not sure that asking about jeopardy is the right thing to ask in the first place.

Thinking about a private school scenario, the proceedings would be to decide if the student would be allowed to stay on the campus, determined by school administrators (and maybe student panelists), based on the consented-to rules of the campus. Although we're talking about underlying actions that may be illegal, there's certainly no real jeopardy - at least in the criminal sense - attached because there's (at least at this stage) no crime charged. And there's not even a civil penalty on the line (yet), because we're not in court yet.

Now, the real question is does this intragroup procedure change in some way when the state is the head of the group and, if so, how. I'm not sure that it does, as a matter of law, and even less sure that it should. Yes, we're talking about an administrative body of government, but its not really involved in an administrative procedure in the usual sense. The proceedings aren't occurring because the state agency has a coercive power to compel it, but because it has the "private" right to do this to members of the group because they consented to the rules of the campus. It's certainly comparable to the private school scenario, and probably rightly comparable to something like a homeowners' association proceeding to enforce rules, too. The mere fact that it occurs in the state need not necessarily transubstantiate a private, non-legal remedy — an enforcement of internal and agreed-upon rules (although it could eventually be brought in court, on contractual terms).

I agree with Mr. Green's comments regarding the propriety of staging a protest in response to the University of Rhode Island's new rules. Because we're not talking about the criminal justice system but rather an administrative arm of the state, procedural due process is really the only concern here with regard to the search rules and 're-indictment after acquittal' unless the police are using University officials as a conduit to avoid the requirements of the Fourth Amendment.

Whether the University has provided due process is governed by the law school classic Mathews v. Eldridge, 424 U.S. 319 (1976). In Mathews, the Supremes stated that the factors to be considered are (1) the private interest in a pre-deprivation hearing (how much would the party be harmed by the government action, even if he had a strong case against the deprivation?); (2) the risk of error/value of additional procedures (is this an easy decision to make in isolation or on paper, or would additional procedures like the right to counsel or the right to cross-examine witnesses help avoid the risk of error?); and (3) the value to the government in a post-deprivation hearing (usually very high where there is a great chance the government will not be able to recover property erroneously given).

The University could probably make a strong argument in favor of its rules under this test under the same line of reasoning that justifies warrantless police searches due to exigency. The private interests are the broadly stated and vague interests in being secure in one's belongings, but this interest is probably almost entirely overcome by the fact that the dormitory rooms are owned and operated by the state and provided to the students as a service.

The so-called 'double jeopardy' problem is more vexing. In the criminal context, jeopardy attaches as soon as the jury is empaneled, but the procedures here are administrative in nature. The unusual procedure here would present an interesting hypothetical in an administrative law class, as it seems that the school could have an infinite number of chances to charge a student with an offense, provided some new evidence is found within a week of each acquittal. Double jeopardy comes into play in a civil context when an agency punishes a person or entity for the same conduct for which that person or entity has already been punished in a criminal setting. Likewise, a civil penalty that is meant to prevent or deter wrongdoing is 'punishment' for double jeopardy purposes. Multiple punishments for the same conduct is permissible if imposed in the same proceeding, but not if there are two proceedings in which punishment is imposed. The interesting question in the administrative context is whether jeopardy has ever attached when a person is acquitted during the first proceeding and not punished. I am not sure whether this question has been answered.

The Chronicle of Higher Education reports (subscription req'd) a student protest of a new campus housing policy:

Students at the University of Rhode Island gathered on Monday outside the office of the university's president to protest new disciplinary policies that, they say, violate their civil liberties.

The new policies, which were approved last week by the president, Robert L. Carothers, give university officials more power to investigate and punish students for both on- and off-campus offenses. In particular, they permit administrators to search dormitory rooms without students' consent and, in campus disciplinary proceedings, to charge a student with the same offense more than once if new evidence is reported within a week of an acquittal.

The policy changes were adopted to curb student disciplinary problems, particularly those associated with alcohol and drugs.

But protesters on Monday called the new policies "draconian and egregious."

The dorm room search doesn't strike me as so egregious. My apartment lease expressly allows for the building owner and management to enter "at any reasonable hour." Most do. Sure, searching would be a little different, but universities are more often being held liable for suicides and drug and alcohol related deaths, so I think it's a reasonable response to their growing liability. Ideally, if I were a student Rhode Island, I would want to see that there were at least minimal procedural safeguards (e.g., that there has to be some cause), but the search itself isn't overly concerning to me, even considering the (public) school's status as a "state actor."

The latter part, however, does smack of double jeopardy. And we are talking about a state school. A better solution might be to adjust procedures so that disciplinary proceedings lasted a little longer, to cover (partially or entirely) this one week window which the university apparently feels may be important, at least in some cases, to obtain all evidence.

Still, even with some concerns, I can't help but think a protest is an overreaction. Students are fabulous at overreacting, and especially when it involves protesting. They might, after all, find much better success trying a respectful letter and student government action. I suspect all they've achieved by protesting is making Dr. Carothers all the more dogged.

The first comment to this Juan Non-Volokh post (inviting comments on the usefulness of the third year of law school) sums up the problem:

However, as a practicing attorney, I'm embarrassed to admit that I like the fact that there are so many barriers to entry into the legal services market, like expensive tuition and a difficult first year. If an extra year at $15K or $20K keeps a lot of poor but smart people out of the profession, so much the better.

Back in January, I posted on the lack of respect (particularly titular) afforded the JD, and (only half-jokingly) insisted that JDs should be commonly addressed as "Doctor" (at least as much as PhDs). I think that the JD serves a distinct academic purpose, yet one not fully realized by most students, who fetishize lucrative jobs that (statistically) most will loathe within a few months actual employment. The effects BIGLAW fetish manifests, curricularly, in students as an obsession with taking the "right" and "practical" courses. While these can prove useful, their actual value is sorely limited.

There's an extremely high utility to each class in the first year, where one truly learns to "think like a lawyer". But, once assimilated into the lawyering culture, additional coursework in "substantive" areas is necessarily artificial and, as far too many 3Ls can attest to, extremely banal. One is probably better served by taking non-doctrinal courses, such as seminars, that can actually shape and develop the way one thinks about the law, instead of spoon-feeding tiny slivers of the vast amount of "black letter" law a practicing attorney should know in their field. Practice admission ought to have the most minimal, if any, formal education requirements. (I hesitate to say insist on none because there's also ample reason to doubt that current bar exams are a proper barrier to entry as well, and I think that some minimum competency should be demonstrated through a formal institution, be it educational or by examination.)

Again, I think the JD serves a useful purpose, but not as an appropriate minimal qualification to enter into the practice of law. A modified business school approach to law degree-granting would be a vast improvement (the MBA as a graduate professional degree, the longer and curricularly different PhD as the academic degree; two different law degrees doesn't seem unreasonable). A several-tiered hierarchy of law school degrees seems especially promising to me, perhaps to award the LLB after the first year (and allow admission to the bar; people often seem to forget the, in the U.S., the LLB was generally a second degree, even though baccalaureate), the LLM after the second (in specific concentrations), the JD after the third, perhaps even with the addition of a dissertation requirement. Of course, this plan would lead to the elimination of SJDs/JSDs, but they're quite uncommon among U.S.-trained lawyers as it is. And my plan would also eliminate the exceedingly silly master's degree beyond the doctorate.

Maybe so. Christine Hurt makes the case for decriminalizing prostitution. (N.B. - Conglomerate's header says "Business, law, economics, and society ... from Wall Street to Main Street"; the post in question would seem to fit rather squarely on the latter side.)

The heart of the matter: "pornography is legal although Person A is paying Person B and Person C to have sex, but prostitution is still illegal because it is a bilateral contract with only two parties".

And let's not the safety of legalized prostitution - it's substantially safer for all parties involved, as is true of any open market compared to it's black market shadow. Ostensibly, prostitution criminalization can be defended on public health grounds, but a regulated service industry would protect the public's health much better. After all, prostitution could certainly be characterized as "affec[tion] with a public interest" (and, yes, you're a huge dork if you get that joke).

Two clarifications: (1) I don't think it would take any substantial additional regulation aimed specifically at prostitution, just application of existing regs AND (2) it's a policy argument, not a legal one, as the means need not be closely tailored to the objective of this law.