Korematsu – An Old Case Gains New Relevance

Earlier this month, the Alameda County Law Library hosted the annual Witkin Symposium.  The speakers were authors of a recently published young-adult title, Fred Korematsu Speaks UpThe book tells the story of Fred Korematsu, a Japanese American who grew up in Alameda County.  Korematsu was one of the few citizens to challenge the law involving the mass incarceration of West Coast residents during World War II.  An executive order required the resettlement of Japanese Americans out of their homes and into internment camps.   Korematsu’s conviction for violating these rules by remaining in San Leandro was appealed to the United States Supreme Court.  The Court ruled for the government on national security grounds.

The top court’s ruling in the case has never been overturned but Korematsu petitioned to have his conviction overturned which the United States District Court did in 1984.

Korematsu cases

Korematsu v. United States, 323 US 214, 65 S. Ct. 193, 89 L. Ed. 194, 1944 –  “Petitioner, an American citizen of Japanese descent, was convicted in the United States district court for remaining in a designated military area contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area.”

Korematsu v. United States, 584 F. Supp 1406 (1984) – “Petitioner citizen sought a writ of coram nobis to vacate his conviction on the grounds of governmental misconduct.  The citizen was convicted of being in a place from which all persons of Japanese ancestry were excluded pursuant to Civilian Exclusion Order No. 34. “  The court granted the citizen’s petition for a writ of coram nobis.

 Muslim travel ban

The effect of the Korematsu case still echoes through the United States legal system.   Korematsu has been under discussion, this month, in the Ninth Circuit when it was referenced in the arguments in the Trump Administration’s travel ban appeal.  (9th Cir., State of Hawaii, et al. v. Trump, No. 17-15589)  Questions involve the proper extent of federal government authority to insure national security.

You can find discussion at:

Legal scholars have continued to write about the case over the years.  Here is a link to a recent piece published on the American Bar Association site –  Yolanda C. RondonIs Korematsu Really Dead?, 41 Human Rights 23  (2015).

Fred Korematsu Speaks Up

Fred Korematsu Speaks Up is written by Laura Atkins and Stan Yogi with illustrations by Yutaka Houlette.  The title is published by the Berkeley firm of Heyday.  The title is currently found on ACLL’s New Materials Cart, call number ~ KF 228.K59 A87 2017.  Its aim is to educated a younger audience on the continuing need to stand up against discrimination whenever it is found in our society.


Googling Jurors Or Oracle In The Jury Box

Interesting legal thinking on an “emerging and developing concern” is being presented by US District Court Judge William Alsup of the Northern District of California.  In the case, Oracle Judge_William_H._Alsup.coloAmerica, Inc. v. Google Inc., (10-cv-03561-WHA), Alsup addresses the question – should counsel be allowed to conduct detailed Internet and social media research about prospective and empaneled jurors?

What makes this case particularly interesting is that the parties involved are two Internet technology giants, one of whose name is synonymous with Internet searching.  Alsup’s concerns include personal privacy of jurors, as well as, equitable standards for Internet research activity for jurors and attorneys.

Previously in this case, Alsup rejected the companies’ proposed juror questionnaire over privacy intrusion concerns.  He was concerned about to what extent the parties’ lawyers and their “waiting squads of Internet investigators” would use social media and other Internet information as resources to research the members of the jury pool.   The judge had asked the lawyers to submit briefs on how the parties foresaw their review of the cache of Internet data and activity linked to individuals now available to technology experts.  He expressed concern that the lawyers would “analyze their [jurors’] politics, job searches, shopping habits, evening life, and/or personal interests.” Today, many private citizens are concerned as Judge Alsup is with the permanency of one’s Internet footprint and its intrusion into many areas of life.  An opinion expressed in a very different situation – among on-line family or friends – could be used in a claim of bias against a prospective or seated member of a jury.

Judge Alsup also asked the question — if the jurors are admonished not to research the lawyers or the case, why can the parties and lawyers or their consultants research the jurors?

Order of March 25

Judge Alsup issued an order in the case last week, on March 25, 2016, stating his opinion of the use of Internet and social media searches of jurors during this trial.  He has asked that both sides consent to a ban on Internet research.  Alsup has given the parties until March 31 to say whether they consent to his proposed ban.

You can read Judge Alsup’s March 25 order here – OracleGoogle_alsup_order_re_internet_social_media_searches_jurors.

What are Alsup’s concerns?

Case information widely available on the Internet

Judge Alsup writes in his March 25 order –

“Nearly one million hits (including tens of thousands of news results) appear in a Google search for “Oracle v. Google.” These include strong opinions on both sides and at least the usual amount of inaccurate information. In this very case, we earlier learned that both sides hired online commentators who have promoted their respective litigation viewpoints on blogs and other web sites.”

 Pop-up arguments

Judge Alsup also expresses in his March 25 order a concern that, like those irritating pop-up advertisements, the attorneys in the case may try to collect Internet use data to sell to individuals — personalizing legal arguments based on a juror’s prior Internet research or use –

“…  it will facilitate improper personal appeals to particular jurors via jury arguments and witness examinations patterned after preferences of jurors found through such Internet searches. For example, if a search found that a juror’s favorite book is To Kill A Mockingbird, it wouldn’t be hard for counsel to construct a copyright jury argument (or a line of expert questions) based on an analogy to that work and to play upon the recent death of Harper Lee, all in an effort to ingratiate himself or herself into the heartstrings of that juror.”

Venire privacy

Alsup states –

The jury is not a fantasy team composed by consultants, but good citizens commuting from all over our district, willing to serve our country, and willing to bear the burden of deciding a commercial dispute the parties themselves cannot resolve. Their privacy matters.”


Here are some other case filings and articles discussing the legal considerations and case law on balancing privacy rights with technological advances during the jury selection process:

  • The Recorder article on Alsup’s March 25 order [subscription required], paper version available at Alameda County Law Library.  “Alsup-Presses-Lawyers-to-Swear-Off-the-Snooping”


UPDATE:  Google and Oracle agreed on March 31, 2016, to the ban on all Internet research on potential and impaneled jurors until trial is complete. It appears that the parties will rely on traditional voir dire to investigate potential jurors. (The parties did ask for an additional hour of question during jury selection.)


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On The Steps Of The Rene C. Davidson Courthouse – Recordings Of Foreclosure Auctions – US v. Marr

Alameda County courthouse recordings are the target of defense attorneys’ motion to suppress filed recently in a federal criminal matter involving real estate professionals facing antitrust charges for allegedly conspiring to manipulate public auctions of foreclosures.

Recording devices were placed by government personnel outside a number of Bay Area courthouses including the Rene C. Davidson Courthouse.  Foreclosure auctions are held outside that courthouse_rene_c_davidson_image_frontcourthouse on the terraced steps of the original formal entrance to the courthouse.  The area, overlooking Lake Merritt, is not only used for public auctions but as a lunch and meeting area for workers in the area.

The defense argues that the defendants had a reasonable expectation of privacy for their conversations outside the courthouses.

A copy of the motion to suppress (“DEFENDANTS’ MOTION TO SUPPRESS VIDEO AND AUDIO RECORDINGS MADE IN VIOLATION OF THE FOURTH AMENDMENT AND ALL EVIDENCE DERIVED THEREFROM, AND REQUEST FOR EVIDENTIARY HEARING TO DETERMINE TAINT”) filed on March 23, 2016 in US v. Marr, 14-00580, by defense attorneys can be read here – us_v_marr motiontosuppress03232016

The Recorder article by Ross Todd from March 24, 2016 issue entitled “Defense: Feds Bugged Alameda, Contra Costa Courthouses” is available at the Alameda County Law Library in the paper version and on-line by subscription.

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E-book Download for FRCP with 12/01/15 Revisions

“The Federal Rules of Civil Procedure just had a ton of revisions come into effect on December 1. Since the US Courts only publish this in a 170 page PDF, I thought I’d make it a little more user friendly and make an ebook (by which I mean an ePub, compatible with everything but Kindles) out of it. I also added in all of the new frcp_ebook_cover1forms as jpegs, so they look the way that they are supposed to look. It was a massive pain in the tookus to do. You’re welcome.  Anyway, here it is.” — Sarah Glassmeyer

SCOTUS – What Exactly Was Said During Oral Argument for Fisher v. University of Texas – Austin?

scotus_cherryblossoms_imageLots of Internet chatter about what was said as part of the oral argument for the Supreme Court of the United States (SCOTUS) case – Fisher v. University of Texas at Austin (14-981). The case deals with the use of racial preferences in undergraduate admissions decisions.

You can read the official transcript of the arguments.  They are available off the SCOTUS website http://www.supremecourt.gov/

After you bring up this page, move down to the heading “Recent Arguments.” Look for the “transcript” link under Wednesday, December 09 for Fisher.  The link will pull up a pdf copy of the written transcript. The audio may be posted on this same page on Friday, December 11, subject to the Court’s final review.

 Here is what is says about transcripts availability on the Web page —

The transcripts of oral arguments are posted on this Web site on the same day an argument is heard by the Court. Same-day transcripts are considered official but subject to final review. The audio recordings of all oral arguments heard by the Supreme Court of the United States are available to the public at the end of each argument week. The audio recordings are posted on Fridays after Conference.

Want more information about the background and events surrounding this case?  Look to the SCOTUSblog website HERE.


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US Supreme Court Landmark Cases – C-SPAN’s Fall Television Series

C-SPAN’s Fall Television Series

C-SPAN’ s new television series Landmark Cases  – explores the human stories and constitutional dramas behind some of the most significant and frequentlyLogo_cspan_landmarkcases cited decisions in the United States Supreme Court’s history.  This 12-part series delves into cases that represent some of the tipping points in our nation’s story and in our evolving understanding of rights in America.

Produced in cooperation with the National Constitution Center, each 90 minute program will air live on C-SPAN and C-SPAN3 on Monday nights at 9pm ET, the series started on October 5, 2015 and will continue through December 21, 2015.

 FredKorematsu_sTonight’s showing (November 9, 2015) will be on the case, Korematsu v. United States (1944) in which the Supreme Court, in a 6-3 vote, upheld the government’s forceful removal of 120,000 people of Japanese descent, 70,000 of them U.S. citizens, from their homes on the West Coast to internment camps in remote areas of western and midwestern states during World War II.

Quick Links and Sources to US Court Opinions

logo_librarians_washingtondc_fed_courtsLooking for a site that guides you to Internet access to US federal court opinions?  You might want to bookmark –

Quick Links and Sources to U.S. Court Opinions

Compiled by the Federal Law Librarians Special Interest Section of the Law Librarians’ Society of Washington DC, the new website presents quick links to all major sources for US court opinions including sites for recent years, sites for recent and historical years, and subscription sites.  It also presents direct links to court opinion sites of specific US courts such as the US Courts of Appeals, as well as, links to opinion sites to those courts before the 1990’s.

Each specific’s court’s abbreviation and city location can also be found.  There is also an example of how new slip opinions can be cited.

The site is compiled and maintained by Rick McKinney, Assistant Law Librarian, Federal Reserve Board.

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