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Today in History (1971) - The 26th Amendment to the U.S. Constitution, lowering the voting age to 18, is ratified by Ohio's approval. In the 2004 election, 18-29 year olds were the only age bloc to vote for Kerry over Bush, though as usual they also had the lowest rate of turnout. |
Today in History (1971) - The 26th Amendment to the U.S. Constitution, lowering the voting age to 18, is ratified by Ohio's approval. In the 2004 election, 18-29 year olds were the only age bloc to vote for Kerry over Bush, though as usual they also had the lowest rate of turnout.
Co-blogger Sean derides both the notion that Kelo enables an animus-motivated taking of Souter's property to be legal, and the idea that the Clements proposal to do so is illegal. Sean concludes,
Dave Hoffman puts it this way:(By the way, didn't Souter get mugged not long ago?)It is, I think, the same as if a mugger went to Justice Scalia on the street and asked for his wallet, on the ground that the Justice has, through his jurisprudence, eroded the protection against seizure on the thoroughfare.
Come on Hoffman, that isn't at all how it is at all. It is more like if a mugger asked permission for Justice Scalia's wallet, on the grounds that through jurisprudence the Justice had deemed "asking" to make the act legal.
Clements act is inherently legal; he is attempting to use the political mechanism to further economic development in his town. (Albeit for his own reasons.) He got the idea from a case that Souter supported, and he thinks that he can show Souter why he was wrong in supporting this decision. (Even though we know Clements doesn't have a leg to stand on.) Like I said at the beginning, what Clements is doing is reprehensible and stupid, but not illegal.
Actually, I think it's much more like, say, trying to build a case against Scalia regarding his sexual practices on the grounds that Scalia has supported the constitutionality of such questions' being asked by police and prosecutors. I hope that those who think Clements is correct in his misreading of Kelo -- to think that merely because a justice believes a government practice to be constitutional, also means that the justice thinks the practice desirable and therefore one that should apply to himself also -- are only those who think Berndt was correct in his misreading of the Lawrence dissent.
There has been lots of discussion of Logan Darrow Clements' attempt to use eminent domain to take Justice Souter's home. I actually posted about it over at Dagny's Law Blog and found the idea amusing, but non-sensible. What Clements is doing is reprehensible and stupid, but not illegal.
Professors Randy Barnett and Glenn Reynolds seem to agree it is funny, but professors Eric Mueller and Dave Hoffman have another idea; it's illegal.
Well, I have to jump in here and say that the action that Clements is taking is in no way illegal, and Mueller and Hoffman's posts, though correct in asking for more respect for Justice Souter, are a bit misplaced.
First of all, any of you out there that believe that somehow Clements is in the right need to read the opinions in Kelo again. In no way would this taking of Justice Souter's house stand up in a court of law. Why? Because it is directed at a particular person and a particular property, rather than an "overall plan" to help the area economically. So, even though it is legal for Clements to petition for building a hotel on Souter's land, it is a ridiculous and frankly ignorant attempt. He obviously hasn't run this by his lawyer, or if he has, his lawyer hasn't read Kelo.
However, claiming that it is illegal is almost as ridiculous. The only thing that Clements did that may have crossed the line is to publish Justice Souter's address. I find this reprehensible, but am unaware of any law that would make this illegal. If he were urging some attack on Souter and then published his address we'd be having a different conversation, but that isn't the case.
Dave Hoffman puts it this way:
It is, I think, the same as if a mugger went to Justice Scalia on the street and asked for his wallet, on the ground that the Justice has, through his jurisprudence, eroded the protection against seizure on the thoroughfare.
Come on Hoffman, that isn't at all how it is at all. It is more like if a mugger asked permission for Justice Scalia's wallet, on the grounds that through jurisprudence the Justice had deemed "asking" to make the act legal.
Clements act is inherently legal; he is attempting to use the political mechanism to further economic development in his town. (Albeit for his own reasons.) He got the idea from a case that Souter supported, and he thinks that he can show Souter why he was wrong in supporting this decision. (Even though we know Clements doesn't have a leg to stand on.) Like I said at the beginning, what Clements is doing is reprehensible and stupid, but not illegal.
[Update: For those of you who think this is an original idea, take a look here at Captain's Quarters. There is a quote from Mark Twain which reads:
"It does look as if Massachusetts were in a fair way to embarrass me with kindnesses this year. In the first place, a Massachusetts judge has just decided in open court that a Boston publisher may sell, not only his own property in a free and unfettered way, but also may as freely sell property which does not belong to him but to me; property which he has not bought and which I have not sold. Under this ruling I am now advertising that judge's homestead for sale, and, if I make a good a sum out of it as I expect, I shall go on and sell out the rest of his property."]
Milbarge also pointed me to this latest manifestation of outrage over Kelo: CafePress goods printed with Justice Thomas's "Something has gone seriously awry with this Court's interpretation of the Constitution" and with O'Connor's longer remark on where the burden of Kelo is likely to fall. Two questions:
1) Barnett's update says "All profits go to Lisa," but the CafePress pages both say "A portion of all profits will be contributed to the Institute for Justice in support of private property rights." Which is it? and can we guarantee that the monies only go to that particular IJ project and not for, say, fighting to put taxpayer money into private schools, or against affirmative action?
2) How many people in the less politically-powerful communities for which the justices fear will purchase these items?
Blogger and Slate contributor Phil Carter says,
On Thursday, I received orders from the Army mobilizing me for Operation Iraqi Freedom. These orders followed an earlier set, cut on Tuesday, which transferred me from the Army's individual ready reserve into the 101st Airborne Division. It's an honor and privilege to deploy with such a storied unit -- a band of warriors who have nearly all deployed at least once since 9/11. I'm scheduled to report for active duty in a little under 3 weeks to Fort Campbell, Kentucky. After some period of pre-deployment training and preparation, I will deploy with my unit to Iraq.Best wishes to him with both our country's mission in Iraq and his personal well-being there.
Dear Associated Press,
O'Connor is not the "swing vote" in every case in which she's in the 5-4 majority. In today's rulings regarding the Ten Commandments, Justice Breyer is much more accurately characterized as the "swing," as he voted with the majority both to permit the Texas monument but to disallow the Kentucky display. O'Connor, in contrast, consistently opposed both exhibitions of the Commandments, and wrote a dissent in the Texas case to boot.
Sincerely,
An Annoyed Law Student
Sean notes that "it shows the bias of the media to promote or tear-down particular judges. This in turn keeps the laymen from having any 'true' grasp on legal theory." O'Connor as swing-vote is the prepared script for 5-4 cases -- Kennedy also, of late -- so perhaps liberals now can start bitching about being betrayed by Breyer. I hate getting left out of the things conservatives get to do!
Prior De Novo posts on the Ten Commandments:
Making the Ten Commandments Hindu-friendly
Establishment Claus: Religion in the Public Square
Jason Samuel: On McCreary & Van Orden
Sean Sirrine: Establishment Clause Issues
And it turns out that the SCOTUS blog miscalled it, aside from O'Connor's writing separately -- the aforementioned dissent plus a concurrence in McCreary.
UPDATE: Will Baude makes the same point.
E-mailing the professor for whom I'm working this summer, I asked if we could meet tomorrow after the lunch workshop that is scheduled to discuss the Grokster case. I haven't yet had time to review the decision, though it was wholly to be expected -- this is not a tech-savvy court nor one that thinks of intellectual property much differently than physical property. The unanimous Court of Eldred strikes again. (OK, that sounded vaguely like the title of a Star Wars book. -- UPDATE: Apologies to Justices Stevens and Breyer, who filed dissents in Eldred, and thanks to Will Baude for the correction.)
Indeed, after Kelo, I wonder if intellectual property may become a sort of safer investment than physical property. With all the allegations that the government fails to pay a genuinely fair market value for takings, perhaps you're better off putting your money into a research consortium than into real estate. I don't know much about takings, actually; does anyone know if the government ever has used that power to seize intellectual property?
Certainly the public use component of taking over pharmaceutical patents appears quite obvious: Medicare spends over $8 billion a year on prescription drugs, and being able to pay only for the cost of actual production and a little profit margin, or even only compensating the cost of R&D for the specific drug, would constitute a huge cost-saving for the government.
However, the concern with intellectual property that is much less likely to exist with physical property is that the fear of government taking would disincentivize people to create things worth patenting. While the government presumably wants people to make "improvements" on physical property -- think of historical incentives such as the Homestead Act, in which "improvements" substituted for payment to the government -- they usually aren't what the government is taking. As nice as the community built up in New London may be, it's only the land itself that the government wants to take and give to private development.
In remarking that former Justice Frank Murphy is thought by many to have been gay, Milbarge pointed me to Courting Justice: Gay Men and Lesbians v. the Supreme Court. Usually I find Amazon.com reviews to be somewhat superficial, but this one actually made me want to check the book out. The concluding sentence is particularly good:
I kept thinking of Dorothy and her friends petitioning the Wizard: Their firm belief that he would do right by them, their fear and awe before his mysterious majesty, their rage and grief when he welshed on his promise, and, finally, their astonishment to learn that the great and mighty Oz, who had the last say in the highest tribunal in the land, was really just a man, with the same capacity for both ignorance and enlightenment as the rest of us.I think this is true not only for gays and lesbians before the Court, but for most petitioners who see this as their last resort. Of course, when they lose many pick themselves back up and start looking for another way to get what they want (have you signed the Eldred petition?).
Happy 42nd birthday to Mikhail B. Khodorkovsky, convicted former CEO of YUKOS Oil Company. Good luck on the appeal -- our Supreme Court would have had your back!
One of the other things I should mention about myself is that, in addition to my summer clerk job, I'm also working as a swimming teacher. This is my 14th summer being a swimming teacher, and it's quite nice, after all the law stuff where I'm constantly having to do things I've never done before, to get to do something where I have 14 years of experience to draw from. A little experience-driven competency goes a long way to buttressing one's self-esteem.
And it’s not as if teaching swimming lessons doesn't develop skills I can later use as a lawyer. Strategic planning, empathy, tailoring one's communication appropriately for one's audience – these are all things that any swimming teacher and litigator must be able to do. Think convincing a jury is tough? Try getting a stubborn four year old to put his face in the water…
It also now seems that my alternate career has prepared me for significant constitutional inquiry as well. Note the question recently posed by Judge Kozinski in the en banc hearing of Jespersen v. Harrah's:
"What if you employed swim [instructors] and you required they wear bathing suits? … I think it's probably true that women's bathing suits are more expensive."Well as it happens I can tell him a thing or two about that, having been a swimming teacher every summer (save three) since 1989.
Yes, yes we do wear bathing suits, which, as women, are different than those that men wear. Our anatomy happens to be a bit different, so the garments need to be structured a bit differently as well. It may be true in some instances that because more fabric is involved with women's suits they may cost more than the equivalent men's versions. However, this isn't necessarily true. Why just the other day I just saw a women's Speedo at Marshall's for $15, likely cheaper than your typical men's Speedo at the local sports mart. Prices vary based on where you shop and what you buy more than they necessarily vary by the sex of the intended customer.
Furthermore, even some men – particularly on swim teams – are now wearing torso-covering swimsuits. And with the risk of sunburns and skin cancer, there's a greater impetus for both sexes to cover up more skin. Thus the anatomical differences between men and women have increasingly little bearing on the swimming teacher's uniform.
But indeed, even where there is a disparity between equivalent men's and women's suit prices, the facilities where we work often can absorb it by providing the suits as part of the issued uniform. In fact, I've worked at pools where the women got the better end of the deal, getting not only their torso-covering bathing suit but also a set of men's trunks to use as shorts. (Presumably the men could have gotten a woman's suit with his uniform grant as well, although unlike women and the swim trunks there is likely little constructive use the men could have put a woman's suit towards.)
However, those instances, where there was a specific uniform requirement, applied only to employees who were also lifeguards. For people who were just swim instructors and not on-duty lifeguards, they simply needed to wear their own generic bathing suit (in one instance the pool required it to be navy, but there was no other requirement beyond that, save a prohibition on string bikinis). So even if instructors purchase a bathing suit in preparation of the teaching job, they will still have a perfectly usable bathing suit that they can use on any other occasion calling for one. If a female instructor happens to spend more on the suit than a male one, she may also have greater occasion to use it, thus amortizing her cost more favorably than the male colleague might.
In sum, with all due respect to Judge Kozinski, it is a bad analogy to compare the uniform requirements of Harrah's with the uniform requirements of swim instructors. Not only is the garment-cost issue a red herring, but in Harrah's the issue was about decorating one's skin, not covering it up. And in the case of the swimming teacher, both sexes have the same needs in that area – to make sure they are slathered with enough sun cream so as not to burn. Sun cream is exactly the same for both sexes.
Now, perhaps a swim facility could also demand that women also wear make-up while they teach. But that would be just as pointless as Harrah's requiring it for its workers. There's nothing intrinsic about the activities of teaching stroke mechanics or delivering drinks that requires such an accentuated highlighting of one's sex. And that's what make-up's about – highlighting one's femininity. (Yes, as Kozinski pointed out there are men who choose to wear make-up as well. But notice in the implicit tone of derision that make-up is still generally viewed as a femininity-enhancing endeavor.)
It is inequitable to require women to highlight their femininity, when men are obviously not under the same obligation. Not only does it amount to an additional financial burden not equivalently born by their male colleagues, but the very requirement by design undermines their equality. It tells women that they are not valued for the things they can do but rather for how they look. And they need to look exactly how society's hegemonic biases tell them to look – as pretty objects of sexual allure.
No, the swim instruction is a bad analogy to draw. Because even as we instructors all teach in our thin, spandex garments that leave little to the imagination, we stand there as individuals, valued for our talents as teachers and not as sexualized creatures for whom our sex is an operative factor in our employment. For it to be otherwise would be unconstitutional.
I apologize for the delay in sharing my brilliance with all you De Novo readers. It was a long year and my brain needed a vacation. It didn't get one, but at least I didn't heap on too many new things to do right away. I also thought it would be best not to blog somewhere new until I stood at least a minimal chance of being able to construct prose somewhat competently. But time's running out in the trial period, so here I am nonetheless.
Anyway, now that I am here, I should introduce myself. I'm Cathy, a rising 3L at Boston University. I normally blog at the ineptly-anonymous site www.cathygellis.com, "The Great Change: Turning Cathy into a Lawyer." My favorite legal topics include intellectual property policy and generally any area of law where technology and civil liberties collide. I also love to travel and consequently have become very interested in international law as well. Before law school I was a UC Berkeley undergrad and a webmaster for seven years, I grew up in New Jersey, and I have a weakness for Huey Lewis and the News concerts. I also like candle-lit dinners and long walks on the beach.
Oh wait. Wrong website. Sorry.
(It's also not true about liking candle-lit dinners – I prefer to see what I'm eating, and, normally, with whom I'm eating it. I do like beaches though. Walking's nice too. And Huey Lewis and the News are a *great* band. But I digress...)
So I thought I'd make my opening volley something light: what do you call your professors?
At BU we usually call our professors "Professor [LASTNAME]." In return, particularly in 1L classes, they call us "Mr. or Ms. [SOME MISPRONUNCIATION OF OUR LAST NAME BECAUSE THE ACOUSTICS ARE BAD AND THEY CAN'T HEAR US CALL IT OUT NOR GUESS INTUITIVELY FROM THE CLASS ROSTER]." In the second and third year classes professors sometimes call us by our first names. This happens mostly in seminars, and in conversations outside of class, although I had one professor who calls us by our first names in a lecture class. Although he's new, a young, hip, happening prof and possibly a harbinger of BU professors to come.
But last semester I had two visiting professors from other schools where the norm is that everyone is called by their first names. Students and faculty. They came to class and said we could call them by their first names. But none of us did. We couldn't. It felt sort of wrong somehow. Law school (at least for us) is a formal place, and breaking down that formality while within the context of the formal teacher-student relationship just didn't compute.
On the other hand, I wonder if I will forever call any of my professors "Professor [LASTNAME]." One of my BU profs had once introduced herself by her first name to me the first time I met her, well before I was in one of her classes. "I'm [FIRSTNAME]," she said. "But in class, I'm Professor [LASTNAME]." I decided I was too nervous about making the inevitable faux pas when I used the wrong name, so by policy I've decided not to use firstnames until I have my JD in hand. Then we'll see, because I'm sure there's some profs who will always remain "Professor [LASTNAME]" to me.
With all the commentary on the recent Kelo opinion, its hard to enter the fray with something yet unsaid, but at the same time novel enough about which to comment. While Kelo has been recently occupying the majority of space at many blawgs--it's recently become the only topic of discussion at SCOTUS's discussion blog -- the issue of originalism has made a reappearance in the blawgosphere too. Through some posts here [authored by me, and me], the Legal Theory blog, RightCoast blog, Balkinization, and even Leiter Reports, the debate over originalism has gained recent steam. Now, with the Supreme Court's release of the Kelo opinion, I predict that Justice Thomas's separate dissent will reinvigorate the debate on originalism, and specifically textualism. Justice Thomas points out that the majority's extending "public use" to mean/include "public purpose" is easily avoided with an originalist/textualist approach.
In the majority's opening paragraph, we read: "The question presented is whether the city’s proposed disposition of this property qualifies as a 'public use' within the meaning of the Takings Clause of the Fifth Amendment to the Constitution." Language such as "Qualifies as...within the meaning of..." indicates that some persuasion of textual analysis is forthcoming. Such watchwords foreshadow the specific issue, which is "whether a city’s decision to take property for the purpose of economic development satisfies the 'public use' requirement of the Fifth Amendment." As co-blogger Sean Sirrine said, "this...case revolves around the definition of public use."
The majority chronicles how "public use" has been interpreted throughout American jurisprudential history. Before that even, in its stating of the case's procedural history, the Court states, referring to the Connecticut Supreme Court,
[t]hat court held, over a dissent, that all of the City’s proposed takings were valid. It began by upholding the lower court’s determination that the takings were authorized by chapter 132, the State’s municipal development statute. See Conn. Gen. Stat. §8—186 et seq. (2005). That statute expresses a legislative determination that the taking of land, even developed land, as part of an economic development project is a “public use” and in the “public interest.” 268 Conn., at 18—28, 843 A. 2d, at 515—521. Next, relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), and Berman v. Parker, 348 U.S. 26 (1954), the court held that such economic development qualified as a valid public use under both the Federal and State Constitutions. 268 Conn., at 40, 843 A. 2d, at 527.
In Midkiff, this
'Court long ago rejected any literal requirement that condemned property be put into use for the general public.' Id., at 244. Indeed, while many state courts in the mid-19th century endorsed 'use by the public' as the proper definition of public use, that narrow view steadily eroded over time. Not only was the 'use by the public' test difficult to administer...it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as 'public purpose.' See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158—164 (1896).More simply, in Midkiff, the Court held a literal standard of the Takings Clause, which was then rendered obsolete because it was "difficult to administer" because society evolved/changed. The Court's reasoning for obsoleting a literal read rested on a presumption that it shouldn't be read literally, instead it should be read organically. We have here an admission--which comes as no real surprise--that the Court rather pursue one end over another end because it's practical and amendable to society. In other words, the Court has us accept as proper heuristic methods both pragmatism and construing the Constitution as a living document. The Court does not give us, however, a foundation nor a justification for these methods over others. Moreover, any normative explanations are also noticeably absent.
In predicable form for an originalist/textualist, Justice Thomas uses the resources of the time in which the Constitution was written to place into context the possible, then probable, meaning of the "public use" requirement of the Takings Clause. Of course Justice Thomas's entire dissent is a template for Originalist interpretation, but one paragraph stands out to me as singularly indicative of what textualists mean when whey say we're not to read the Constitution strictly (i.e. strict constructionism) nor are we to read it liberally (i.e. "living" Constitution "theory"), but reasonably.
Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides "just compensation" for the taking, the Takings Clause also prohibits the government from taking property except "for public use." Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power–for public or private uses–then it would be surplusage. See ante, at 3—4 (O’Connor, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It cannot be presumed that any clause in the constitution is intended to be without effect”); Myers v. United States, 272 U.S. 52, 151 (1926). Alternatively, the Clause could distinguish those takings that require compensation from those that do not. That interpretation, however, “would permit private property to be taken or appropriated for private use without any compensation whatever.” Cole v. La Grange, 113 U.S. 1, 8 (1885) (interpreting same language in the Missouri Public Use Clause). In other words, the Clause would require the government to compensate for takings done “for public use,” leaving it free to take property for purely private uses without the payment of compensation. This would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation. 1 Blackstone 135; 2 J. Kent, Commentaries on American Law 275 (1827) (hereinafter Kent); J. Madison, for the National Property Gazette, (Mar. 27, 1792), in 14 Papers of James Madison 266, 267 (R. Rutland et al. eds. 1983) (arguing that no property “shall be taken directly even for public use without indemnification to the owner”).1 The Public Use Clause, like the Just Compensation Clause, is therefore an express limit on the government’s power of eminent domain.
While I could continue celebrating how I believe textualism has been to some degree vindicated as at least a worthwhile method of Consitutional interpretation, perhaps through comments and posts from my co-bloggers, we can flesh out Kelo some more.
Wow, there have been so many stories on this topic that I’ve been spending all my time reading rather than posting my own views on this subject. (Check out PG’s view at De Novo for the possible public reaction.) Now that I have a chance, I’m not sure where to go with it. I guess I’ll just break down my analysis based on the four opinions written. Before we get into that however, I’d like to point to what I believe is the crux of this case. This whole case revolves around the definition of public use. (For more on public use check out AnnAlthouse.) This case has now defined public use to mean public purpose. This isn’t anything new; this first was seen in Fallbrook Irrigation Dist. v. Bradley (1896), but now the Supreme Court has defined public purpose as anything that benefits government. (Check Glenn Reynold’s article out to see if I’m on the right track.) Why did the court expand this power? Because apparently it is too hard to make legal distinctions based on public use, and we don’t want the Supreme Court to make any difficult decisions now do we?
Let’s start at the beginning. Something that I found (sadly) funny about the majority opinion was that Justice Stevens wrote it. Why is this funny? Because this case revolves around economic concepts, and Justice Stevens has shown he has a bad handle on economic theory. (Check out Eugene Volokh’s discussion of economic factors here.) What am I talking about? Just take a look at this excerpt from the oral arguments in Ashcroft v. Raich:
JUSTICE STEVENS: Well, that would reduce demand and increase price, it seems to me. It's the other way around.
MR. BARNETT: Well, it would reduce demand and reduce prices, I think. But –
JUSTICE STEVENS: If you reduce demand, you reduce prices? Are you sure?
MR. BARNETT: Yes. [Laughter.]
JUSTICE STEVENS: Oh, you're right. You're right. Okay. Yeah. Yeah.
So as you can see, Justice Stevens is a smart guy, but is a bit rusty on econ 101. (For more links between Kelo and Raich read Orrin Kerr’s post here.)
Justice Stevens fails to adequately impart his reasoning for why a heightened level of scrutiny shouldn’t be used. As far as he’s concerned your Constitutional Right not to have your property seized is only worthy of the rational basis test.
Justice Stevens also relies on Berman v. Parker (1954) to show that an individual has absolutely no right to fight the government’s eminent domain power. This is the point where Justice Stevens loses any sense of justice. You have no Constitutional Right to your land because it is the collective, not the individual, that has the decision-making power:
Writing for a unanimous Court, Justice Douglas refused to evaluate this claim in isolation, deferring instead to the legislative and agency judgment that the area “must be planned as a whole” for the plan to be successful. The Court explained that “community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis—lot by lot, building by building.
Who would have guessed it? The Constitution doesn’t protect individual rights, just those of collective groups. Is this starting to sound like utilitarian dogma? Of course it is! It makes me think of the great line from Star Trek:
The needs of the many outweigh the needs of the one.
Except in this case, the needs of the many outweigh the Constitutional Rights of the one. (For good commentary as to why utilitarianism won’t work check out this post from the Conglomerate.)
(As Timothy Sandefur points out over at Crime & Federalism.) Justice Stevens then goes on to proclaim that:
Promoting economic development is a traditional and long accepted function of government.
He does this without in any way validating this long held function. As Sandefur points out, segregation was also a long accepted function of government. That surely doesn’t make it just. This is where Justice Stevens opinion pretty much ends. “We’ve done it this way for a long time, so we’re not going to evaluate it.”
On to Justice Kennedy’s concurrence, here we see a confused and utterly illogical argument:
The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.
Now, I really like Justice Kennedy, but what the hell is this? The rational basis review will favor the government if it can show a rational reason for making a decision. So, when Justice Kennedy says incidental benefits would be forbidden he is in clear error. Incidental benefits are rationally related and therefore will be acceptable under this new ruling.
He then goes on to make even more categorically silly remarks:
There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause. Cf. Eastern Enterprises v. Apfel, 524 U. S. 498, 549–550 (1998) (KENNEDY, J., concurring in judgment and dissenting in part) (heightened scrutiny for retroactive legislation under the Due Process Clause). This demanding level of scrutiny, however, is not required simply because the purpose of the taking is economic development.
Again, what the hell is that? This case didn’t get before the Supreme Court “simply because the purpose of the taking is economic development”. There was a claim that there was a transfer from A to B. If the claim is “the risk of undetected impermissible favoritism of private parties” why can’t we have that higher standard? The key term is undetected, just because you didn’t detect it doesn’t mean it isn’t there Justice Kennedy.
Okay, enough of the bad parts, let us move on to the dissent. Justice O’Connor makes herself perfectly clear from the beginning:
Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public—in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property—and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.
Yep, that is what I would have said too, probably not as well, but it would have had the same sense. The majority opinion essentially has incorporated a new socialistic capitalism. As long as we’re bring more benefit to the majority we can screw the minority all we want.
I believe that one of the most important parts of all the opinions came out of Justice O’Connor’s dissent:
In February 1998, Pfizer Inc., the pharmaceuticals manufacturer, announced that it would build a global research facility near the Fort Trumbull neighborhood. Two months later, New London’s city council gave initial approval for the New London Development Corporation (NLDC) to prepare the development plan at issue here. The NLDC is a private, nonprofit corporation whose mission is to assist the city council in economic development planning. It is not elected by popular vote, and its directors and employees are privately appointed. Consistent with its mandate, the NLDC generated an ambitious plan for redeveloping 90 acres of Fort Trumbull in order to “complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city’s waterfront, and eventually ‘build momentum’ for the revitalization of the rest of the city.”
Explain to me how, as Justice Stevens put it, “the area was sufficiently distressed to justify a program of economic rejuvenation”. It was sufficiently distressed? It was so distressed that Pfizer had decided to locate there without a development plan. Aha! I know some of you econ people are thinking, “it could have been distressed and because it was cheap Pfizer was moving in”. Well done, now we’re talking economics. However, wait, if the community is rejuvenated they may well price Pfizer out of the area. But that’s not a legal distinction, that’s politics you’d reply. Okay, I agree with you on that, but wait a second. Who put this plan together? A private corporation that acted “consistent with its mandate” to “complement the facility that Pfizer was planning to build”. If that doesn’t rise to “the risk of (potential) undetected impermissible favoritism of private parties” what the hell does?
Justice O’Connor then goes on to rebut the ridiculous reading of the majority of both the Berman and Midkiff cases:
The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society—in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28–29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government’s power to condemn.
The public purpose that this court so loosely interprets was previously used only to describe the act of removing harmful land use. Now, Justice Stevens has given the government a definition that includes “less than optimal” land use. (Take a look at this post at Mirror of Justice to see why this sucks.) (Or here at Dagny’s Law Blog for the possible reaction of companies.) It seems obvious to me that the majority is failing to follow the basic tenants of jurisprudence.
Justice O’Connor then gives us a quote to chew on which makes me sick to my stomach:
In the prescient words of a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.” 410 Mich., at 644–645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.).
(By the way, Poletown was overruled last year.)
Wow, this is a long post, I’m sorry, but this case really irks me. Finally we’re on to Justice Thomas’ dissent. Justice Thomas (Southern Appeal really likes his opinion) makes an argument to the actually writing in the Constitution:
If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power—for public or private uses—then it would be surplusage. See ante, at 3– 4 (O’CONNOR, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It cannot be presumedthat any clause in the constitution is intended to be without effect”); Myers v. United States, 272 U. S. 52, 151 (1926)
Granted, another sense of the word “use” was broader in meaning, extending to “[c]onvenience” or “help,” or “[q]ualities that make a thing proper for any purpose.” 2 Johnson 2194. Nevertheless, read in context, the term “public use” possesses the narrower meaning. Elsewhere, the Constitution twice employs the word “use,” both times in its narrower sense. Claeys, Public-Use Limitations and Natural Property Rights, 2004 Mich. St. L. Rev. 877, 897 —(hereinafter Public Use Limitations). Article 1, §10 provides that “the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States,” meaning the Treasury itself will control the taxes, not use it to any beneficial end. And Article I, §8 grants Congress power “[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Here again, “use” means “employed to raise and support Armies,” not anything directed to achieving any military end. The same word in the Public Use Clause should be interpreted to have the same meaning.
Now, some people, (here’s KipEsquire’s view) have commented that they don’t like this line of reasoning, but damn if it doesn’t make sense. Why should the use in public use be read differently than the use found elsewhere in the Constitution? Oh yeah, that’s right, its just too hard!
Justice Thomas then has the ultimate quote from this case:
The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton, supra, at 601, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,” ante, at 18, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes.
See, isn’t that great! We give deference to the government’s judgment about tearing down a home, but not to searching the home. That sure makes sense, not! (Here’s some more good commentary on this issue at the Knolwledge Problem) (And from one of my favorite writers Todd Zywicki here.)
Justice Thomas then goes on to make a weird argument about how minorities are going to be disproportionally affected. This is true, but seems rather irrelevant to this case.
So there you have it, the longest post imaginable. Any questions?
(For more great commentary go to SCOTUSblog.)
(Or if you want to read something that will make you cringe and laugh at the same time take a peek at Norm Pattis’ look into the future here.)
(Here’s a song you can sing in the shower while you thinking about this case.)
With the plaintiffs in the case having been told by a majority of the Supreme Court to fight their battles at home, looking at how normal people (i.e. not lawyers, professor nor law students) are viewing the decision may be instructive as to the law will play out in reality.
Currently, the two most-discussed news stories according to Technorati are "High court OKs personal property seizures" and "Supreme Court Expands Government's Right to Seize Property." Perhaps the most damning is the headline at msn.com, which reads simply "Homes may be seized," with the first image of a little pink house that is slated for demolition. There's a weirdly Third Amendment violation-ish tone to the stories --
Suppose your house is in the way of proposed school or road construction, the law says the government can force you to sell. It's called eminent domain.-- a sense of a government intrusion that would be appropriate only in extreme circumstances not currently present. This may be the story with the most widespread sense of impact of all the cases this term. The majority of Americans have little concern that they will be executed for crimes committed as minors, nor even that they will need marijuana for medication. But the Kelo case seems to have a more direct connection to the aforementioned normal people's anxieties about the power of government.
But what if the city takes your land for private development, such as a strip mall or office building?
Now, the Supreme Court says that's OK, too.
If the media's portrayal is reflective of, or highly influential on, the popular perception of the issues involved, I wonder if we will see a grassroots movement to expand the number of states that bar using eminent domain to take property for private development from eight to forty-three, and perhaps to change the law in the seven states that now permit it. Or maybe Justices O'Connor and Thomas are correct, and the fact that the burden will fall on the least-powerful Americans ensures that there will be no democratic political counterweight.
UPDATE: Volokh points to IJ's efforts to take it to the streets.
I read an interesting article in the Law.Com newswire that I recieve. I was going to post over at Objective Justice, but I decided that I should keep my streak of writing about Judge Alex Kozinski alive over here.
The case revolves around whether an employee of Harrah's can be fired for not wearing makeup. During oral argument Kozinski does what he does best:
"What if you employed swim [instructors] and you required they wear bathing suits?" Kozinski asked Lambda Legal's Jennifer Pizer, who represents plaintiff Darlene Jespersen.
Highlighting a possible "burden," Kozinski said women have to wear different garments than men in order to cover their breasts. Plus, he said, "I think it's probably true that women's bathing suits are more expensive."
Pizer said that was an excellent example of what constituted a "reasonable business necessity," which she argues Harrah's does not have.
As is often the case, Kozinski fired hard-hitting questions at both sides. To demonstrate that the burden on male and female employees might not be "unequal," as Pizer argued, Kozinski pointed out there were standards for men, too.
Men have to keep their hair short and refrain from wearing makeup. The judge revealed that one of his male secretaries used to wear makeup because it made him feel more comfortable.
"I wouldn't be comfortable wearing makeup," Kozinski assured the packed courtroom.
William Kristol wrote a piece for the Weekly Standard, which appeared on their website today. (HT: How Appealing).
I often find myself agreeing with Bill Kristol, and here is no exception. In this remarkably short piece Kristol suggests that we will indeed see a resignation from the Supreme Court, but that it will be Justice O'Connor, and not Chief Justice Rehnquist, as most have speculated. While no one can say for sure whether we will see a resignation at all, Justice O'Connor has hired clerks for the 2005 term, which begins in October. Then again, so did the Chief Justice. Judge Alex Kozinski, of De Novo fame, explained [see #4] what happened to him when he was hired by Justice Douglas on the same day the Justice retired. Notwithstanding a forced retirement, due to health reasons for instance, it seems indecorous of a justice to hire for a term when they plan to retire.
Kristol speculates anyhow that "President Bush will appoint Attorney General Alberto Gonzales to replace O'Connor. Bush certainly wants to put Gonzales on the Supreme Court. Presidents usually find a way to do what they want to do." I share his hope that this will not be the case should there be a resignation.
President Bush is expending his capital at a rate that might leave him wanting in the last couple years of his term, the time when presidents normally attempt to build a legacy. Whether you're a supporter of the President or not, we can all agree that nominating Attorney General Gonzales would be a grave mistake. Kristol, I believe, has it right when he says that Bush would have a difficult time defending Gonzales to his base, who believe Gonzales isn't to be trusted on social issues (e.g. abortion, partial-birth abortion, affirmative action, etc.).
Additionally, Bush would have an equally difficult time defending Gonzales to the left. Even though Gonzales may well pass through committee to a vote merely because he is no more conservative than Justice O'Connor (if she does, in fact, retire), it's easily foreseeable that Bush would still have to expend a disproportionate amount of political capital to brave the left. Gonzales is, after all, for many, the face to the many problems this administration faces in its prosecution of the war on terror, including not in the least the treatment of enemy combatants. Selecting Gonzales would then place the President in the predicament of having to defend his choice to his base and to his political adversaries. Fighting a two front political war might well rob him of his remaining political capital. His legacy, be it what it may, will be shortchanged.
From a leading neoconservative mind, "A Gonzales nomination would...virtually forfeit any chance in the near term for a fundamental reversal in the downward drift of American constitutional jurisprudence." President Bush is daring, but I hope not that daring.
To think, for all this speculation, we may not see a resignation this term!
UPDATE: After re-reading my post, I realize that my title advertises more than I offer in my post. I stop short of saying why AG Gonzales is a bad choice except to say that nominating him would give the president the burden of having to defend himself to both his base and his political adversaries. If you could care less about the president expending his political capital, or if you would even encourage such a thing, then the fact that the president would have to fight a two front political war wouldn't be of consequence to you. What I might've added in order to provide what I advertised is to say just that since neither side of the political spectrum is at ease with the idea of the AG serving as a justice, politically, he makes a bad choice for a nomination.
I started along the yellow brick road to clerkdom back in March - and starting early was the best decision I made the entire spring semester. For those that are off to a late start, or even those that started as early as I did, here are a few helpful pointers that I've been picking up along side this winding road.
1) You cannot completely rely on the Federal Law Clerk Information System for judges' information. To be sure, the vast majority of judges do post openings for clerks on this site. However, as a current clerk in Lexington, Kentucky told me recently, the best method of finding out if a judge is hiring clerks (if not posted, of course) is to call the judge's chambers and speak to the judge's secretary. I've obtained to date hiring information from nearly 20 judges that do not post on the Information System.
A word to the wise: when in doubt, call the judge's chambers. It can only help.
2) OSCAR is every bit as efficient, economical, and helpful as the LSDAS. OSCAR essentially is a database on which you can upload cover letter(s), resume, writing sample(s), letter(s) of recommendation, transcript(s), and anything else that judges are requesting as part of the application materials. The best part: it's free. And registration takes little more than 30 seconds.
3) To travel down this road, you need a personal assistant. And a supply closet. Let me give you several for instances. Some judges use OSCAR. Some judges don't. And for those that do, "thank you." You have instantly saved me over $100.00 in postage costs. Problem: I now have to explain to my professors how to use OSCAR and what "upload" means.
Some judges want 2 letters of recommendation. Some want three. Some only want 1. Some don't want any at all. Some judges want your undergrad transcript and others do not.
Some judges want all your application materials in one package. Others don't mind if faculty and/or employers send their recommendations separately, but be sure to label the envelope "RECOMMENDATION."
Most judges want a writing sample. But others don't. Some only want a sample that pertains to constitutional or federal substantive issues. Some judges don't want a sample longer than 10 pages. Others want an unedited law review note. So be prepared to have up to three samples handy.
Some judges are accepting applications prior to the Labor Day time table. Others adhere to the informal plan quite strictly.
I'm sure I've missed a few headache-causing issues in my diatribe. You can consider the candid, sporadic nature of my thoughts a reflection of my mental state while on this clerkdom route. If you have anything to add, please do so. I'm sure it will help make the process a lot easier for all of us who are currently going, or will be going, through this royal mess.
If only it weren't so freakin' worth it.
I'm not much of a long time De Novo reader. Indeed, what originally drew me to the blog was the relatively recent symposium about joining a law journal. And because it's about the time of year when invitations may be soon in coming, I thought I'd revisit the topic a bit, because I'm interested in finding out what fellow rising 2Ls did in the end.
For those of you who could care less about what I did re: write-on, I'll skip straight to the end-of-post questions. Fellow rising 2Ls, I'd love to know whether you did the write-on, what you thought of it, and what the waiting is like now. And whether you decided to write-on or not, what influenced your decision? Just feel free to talk about the write-on experience in general for you. For my story, it's just after the jump.
I, at what was nearly the last moment, decided not to do the Write-On. I had joined a specialty journal earlier in the semester and liked it a lot. I suspected I would enjoy it more than Texas Law Review (no offense to W&V). Yet, I still went into my first two weeks of summer vacation convinced that I ought to at least try, and that I owed it to myself.
This was despite the fact that I had followed the Law Review Symposium closely, reading every post, every comment. I think that deep down inside, I knew I wouldn't do it in the end. I liked where I was, and I wasn't going to make it onto TLR anyway. Why I sat there with the packet for as long as I did is beyond me.
What changed my mind in the end? Besides the fact that the sun was shining and I had a few novels that were begging to be read?
In the end, I found out that a number of the clerks at the federal courthouse here had not been on Law Review. Some of them had specialty journal experience, some had no journal experience at all. I think that the reason I hadn't trashed the packet a week before I did was because I was still holding onto the idea that if I wanted to clerk (which I do), I'd need Law Review. Once I found out that this was not the case, I finally relaxed and ceremoniously tossed the packet and all of my notes into the recycle bin.
I like the specialty journal I'm on. It's in the field in which I'm most interested, and I think that will motivate me to get more involved with it, strive for an editor position, etc. I thought I'd be disappointed in myself for deciding not to do the Write-On in the end, but so far I haven't regretted it. And I certainly don't mind missing out on the waiting now that grades are out.
So, rising 2Ls, did you do the write-on? Are you content with your decision? Would you have done the opposite if you could do it over again? Anything else you'd like to add? Inquiring minds want to know.
Well, again today I found myself startled by great writing from that wild and crazy Judge Alex Kozonski. The post I wrote yesterday doesn't do justice to the wild-west nature of this infamous Judge. This time Juan Non-Volokh from the Volokh Conspiracy linked to an old opinion United States v. Syufy Enterprises. (Don't click this link until you've read the next paragraph.)
The link, rather than going to the actual case, takes you to the 1992 BYU Law Review 457 article dubbed "The Syufy Rosetta Stone". You should check out the link, or if you think you're a real legal expert, check out this original case opinion and see how many movie names you can find. If you can identify over 150, send your resume to Kozinski immediately.
Judge Kozinski managed to get more than 200 movie titles into his opinion on this monopolistic case and still write an excellent opinion. Here is some background:
When the Syufy case was first published rumor had it that hundreds of movie titles were hidden in Judge Kozinski's opinion. This is in fact true. The eminent judge has confirmed that there are 215 hidden titles, in part thanks to his law clerk, who was also an avid movie buff and went on to become an entertainment lawyer.
This was no casual effort; there were rules of the game. Only feature films were permitted, no made-for-tv movies. Titles had to be exact, no letters added or deleted. Punctuation was important; "seven days" did not count because the movie was "Se7en Days"; there is, however, a "Seven". Judge Kozinski arm-wrestled and beat West Publishing for a middle initial M with no period after it. Although the trial took place over two weeks, technically, courtroom time was 8 1/2 days. There is only one lawyerly wriggle: many people do not pronounce "Ran" in Japanese. Yes, there really is a "Humongous"; I would suggest readers have the Internet Movie Database running to check titles they aren't familiar with, or to find out just popular "Easy Money" is.
That opinion, and to be thorough, the concurring opinion, is reprinted here with the titles highlighted in living color. In the few instances in which two titles immediately follow each other, there is a double space between them. One title is a footnote number; it is bracketed in color. Star paging corresponds to that in the Federal Reporter. It has also been published in 1992 BYU Law Review 457 as The Syufy Rosetta Stone with the titles underlined.
For the truly anal, wannabe law review types, you might try going through the text in the reporter to test yourself. If you find fewer than 50 titles, you need to get a life; 50-100, you're a law geek, but there's hope; between 100 and 150, you're a modern centaur - half lawyer/half movie buff; 150-200, send your resume to Judge Kozinski; and 200 plus, forget law, you're a natural for The Industry.
Wow, talk about eye popping, Kozinski actually makes reading these things fun!
There's some speculation about the coming Ten Commandment decisions over at SCOTUS blog.
I think the odds favor one side having won both of the Ten Commandments cases. Odds are, that's the government. If a single Justice has both opinions, it is probably Justice Thomas (cf. Mitchell v. Helms), with the obvious possibility that Justice O'Connor is writing separately.
The Usual Disclaimer: Yes, I work for a federal judge. No, these things did not actually happen to me. Also, the style of this comes from Bridget Jones's Diary by Helen Fielding. I highly recommend it if you haven't read it already.
Note: I was asked to do another "diary entry," so here it is.
Weight 135 lbs (not bad), caffeine units 3, calories 2100, alcohol units 2.
7:45 a.m. Made it to work on time for once. One might even call it being early. V. impressed with self. Reason for early arrival is that am doing The Cry today. V. scary thought as have to announce that court is in session in front of lots of people. Am reminded of time in fourth grade when I was lead in class play and proceeded to forget all my lines in front of all the parents. Assume this will be much like that. Only instead of making fool of self in front of parents, it will be in front of attorneys, marshals, and men who are about to go to prison and their families.
Not sure which is more intimidating, actually.
8:25 a.m. Aha! Have thought up brilliant plan to make The Cry less scary. Dawned on me part way through morning meeting that no one will be paying attention to me anyway. Think about it: the defense attorneys are scrambling to go over the presentence report with their clients, the defendant's are going to prison, their familes are sad about it, the marshals are joking around, and the A.U.S.A.s are doing whatever they do... in short, no one will care about me. Brilliance, thy name is Ruth.
9:30 a.m. Am so mortified.
Had words down pat until end, when I accidentally said, "God save the Queen," instead of "God save the court." Didn't even realize slip up at first. Sat right down and then heard muffled snickers from A.U.S.A. table. Judge Simmons's face had gone all pinkish too. He sort of choked out a laugh and told the deputy to call the case. Was okay until after morning setting, when Judge passed by me, mumbling, "Rule Britannia."
Am certain that will never be able to live this one down. Ever.
10:00 a.m. Ha. Ha. Ha. Whoever left the British flag on my desk is not amusing. At all.
10:30 a.m. Have concluded that jury charges are easiest thing in legal world to write. All one has to do is look up old charges in similar type of case and then change the parties' names, etc. Is almost joke.
10:35 a.m. But what if that's why they assign them to me? Because I, like the jury charges, am a big joke. Probably explains why people laugh at me all the time. Just because I get a little worked up over speaking in public or do silly things when people are watching doesn't mean that I don't have feelings too! Have half a mind to march into clerks' office and demand to be given more challenging assignments so that can reach full potential and become next Cardozo, only would like own future opinions to make sense and not baffle law students of tomorrow.
11:00 a.m. Hmph. Certain that Junior Clerk Juan thinks that photoshopping my face with a British barrister wig and emailing it to everyone in chambers is clever. Shall be first to inform him that he's not clever.
1:00 p.m. Hurrah! Have new, non-jury charge assignment. Finally have opportunity to show off legal genius! Am supposed to write memorandum opinion on some sort of motion having to do with evidence. Or something. Am a bit concerned as have not actually taken Evidence yet. Suppose that Federal Rules of Evidence are fairly straight forward and self-explanitory. Should be just fine.
2:00 p.m. Why have a rule against hearsay if you're going to have a gazillion exceptions to it? Seems easier to simply list the circumstances in which one can't use hearsay instead of the ways in which they can. Would probably take up less room.
2:30 p.m. Stupid Federal Rules. Don't get how anyone can make sense of them. Would probably have been better off writing memos and billing hours at some posh law firm that would buy me lots of fancy meals and things and get me drunk on the weekends, but instead thought it would be better to volunteer time for Judge because it would look better on my resume. Now realize that am not smart enough for court work, and by working for law firm would have been able to buy those really cute Louie Vatan shoes that were on eBay.
3:45 p.m. Suppose it's just as well. Cute Louie Vatan shoes were already won by someone else. She probably works at a high paying law firm. Not that I'd ever get on eBay from a government computer or even use it for anything not related to work.
4:15 p.m. Why is it that when broke, one can always think of like 33 things they'd buy if they had money. But then when one has money, they can't think of anything to spend it on. Or maybe it's just that by the time they have money, those 33 things they'd had their eye on are already gone. That sounds more like what happens. Is evidence that life is indeed unfair. Whether it's direct or circumstantial evidence is beyond my understanding at this point, however, because stupid Federal Rules are in serious need of editing.
4:30 p.m. Oh, yay. Judge has already gone home for day, which means I can as well. Can leave stupid evidentary motion for tomorrow, then will ask Juan for help.
4:45 p.m. Juan says it would be helpful if I'd actually read the case file first. Hmph. As if I wasn't going to do that at some point. Sheesh.
4:50 p.m. Okay, who pinned the British flag on my office door?
[Jed Sorokin-Altmann] I was under the impression that CD is not just a generic term for the shiny silver discs with music on them, but rather referred to a specific format, currently owned by Philips although developed by both Sony and Philips.
Ah -- as I was writing this, I looked up an article on the Red Book Standard (audio CD standard) over at Wikipedia, and I was right.
Red Book is the standard for audio CDs (Compact Disc Digital Audio system, or CDDA). It is named after one of a set of colour-bound books that contain the technical specifications for all CD and CD-ROM formats.
Recently, some major recording publishers have begun to sell discs that violate the Red Book standard for the purposes of copy prevention. Philips has warned them that including the Compact Disc Digital Audio logo on such non-conforming discs may constitute trademark infringement; either in anticipation or in response, the long-familiar logo is no longer to be seen on many recent CDs.
Given this, I don't understand this article by Jeff Leeds titled, "New Software May Sink Music Pirates: Sony BMG rolls out CDs that restrict copying." Sony is putting copy protection software on a wide assortment of its CDs, limiting the potential number of copies to three. Furthermore, Sony is trying to pressure Apple to amend its software to work with the DRM in limiting such copying.
Has the copyright infringement claim that Wikipedia referenced already been resolved? If not, isn't it tremendously irresponsible for Sony to implement such software on its CDs? I would think that not only might Philips gain more damages should they sue Sony over infringing on their format, but also, consumers might be able to successfully sue Sony for false advertisement or some other tort claim. After all, if an audio CD is defined by the Red Book Standard, and Sony is selling audio CDs that do not meet that standard, I would argue that it's a bait and switch. Consumers think they are buying an audio CD, it's advertised, packaged, and sold as an audio CD, but in fact, they are buying something else. Heck -- I'd be surprised if a class action suit didn't arise out of this.
[Jed Sorokin-Altmann] ...is his post on the Seventh Circuit's ruling in Hosty v.Carter, in which they used the Supreme Court's ruling of Hazelwood v. Kuhlmeier to conclude that a public college's censorship of their student newspaper is not necessary prohibited.
Until now, to the best of my knowledge anyway, Hazelwood was limited to the high school and lower levels. I am completely and utterly appalled that the Seventh Circuit has applied it to college journalists.
Here are the links to the Student Press Law Center webpages that Howard Bashman has linked to in his post:
Press Release
News Item
Man, you might just be sitting around trying to read the six cases the Supreme Court doles out in one day, and then blamo, Howard Bashman posts something at How Appealing that is so titillating you can hardly believe your eyes:
Two criminal law rulings of note today from the U.S. Courts of Appeals: Click here to learn who is more forgiving of police tampering with a search warrant -- Ninth Circuit Judge Alex Kozinski or Ninth Circuit Judge William A. Fletcher.
You can hardly believe your eyes. "What case is this?", you think.
You don't even read what the next case is, but now you have to click on one of Bashman's four links for this case. You know Kozinski, Fletcher and the Ninth Circuit well enough, you get a warm feeling in your stomach because you know the other link is the actual case, not some hyped up interpretation by some law geek, you think, "yes, I'm going to actually get to read this thing right now!"
You click "click here" and find yourself reading an interesting case on 4th Amendment Rights and the exclusionary rule, and guess what, it is de novo!
“Holy crap”, is all you can think, “this opinion is seriously interesting!” You are reading along thinking” well this is pretty pertinent law info”, (I'm a 9th Circuit Guy), -- then whamo -- you get to Kozinski's dissent and stop thinking about anything else:
He starts with:
Everything seized under this sham warrant must be suppressed.
Then moves on into why what the police officer did in this case is amazingly stupid and contrary to anything that could be maintained as common sense. Then he launches into what has to be raising eyebrows somewhere:
The danger that the wrong file will be selected, or that the right file will be altered, is not trivial. This is especially true where, as here, the officer deliberately prints a file he knows is not the one he used to print the original document. Exacerbating the problem is the fact that there is no good way for a reviewing court to distinguish between inadvertent and intentional alterations.
Damn! Did he just call that officer a lier?!? Your eyes are swimming, you can't believe you are getting to read this. Kozinski ends this section with:
There was simply no need for Officer Kasper to play mix-and-match with the pages of the search warrant after it had been considered and authorized by Judge Louie.
Is there more, this is pretty juicy, oh yes, there is more:
Without the approved list of seizable items, the warrant was a legal nullity; it was as if Officer Kasper had attached his grocery list as Exhibit A.(Exhibit A was the warrant the police officer manufactured.)
Man, this police officer is really having a bad day, and it just goes on and on:
What we have here, by contrast, is an officer who doctored a judicially-approved warrant and told no one what he had done. This conduct was completely unauthorized, quite dangerous and could easily have remained undetected. Now that it’s come to light, it just won’t do to say “close enough for government work.” We must make sure that no police officer even thinks of pulling a stunt like this again.
"Pulling a stunt like this again", wow, pictures of the Wild West and a judge laying down the law in black and white silent picture movies start cascading through your mind. You find yourself saying, "yeah, yeah, yeah", in your head over and over. Then the case ends, it is a sad ending, (aren't all dissents?), but it is patriotic in it's very nature:
Fourth Amendment rights are individual, not collective; I am aware of no doctrine that provides a different remedy for their violation depending on whether the rights of others are similarly violated. If Officer Kasper’s conduct was impermissible and resulted in a violation of defendant’s rights, as the majority eventually recognizes, see id., then defendant is entitled to the same relief whether he is the lone victim or one of many. Antiseptic suppression of the seized evidence—and a stern warning that this conduct will never be tolerated—is the only appropriate remedy.
Wow, only 19 pages and a wealth of information and amazing writing that you were in no way prepared to read or interpret. There was no build up, you didn't know it was coming and were just as surprised as the other 90% of Bashman's readers, but when it came, it made your eyes water.
Who said blogging isn't the same as news? I got more law info from this one sentence post than I do from all the other "real" news sources. One stop shopping for the real deal. While everyone else is telling you what they think things are, Bashman gives you a chance to read it for yourself.
You actually get to think and make your own decision, you gotta love that.
Thanks Howard Bashman, you made my day!
I don't know if any of you out there are planning on becoming high paid PDs in the future, but you should take a look at these statistics from the Chicago Sun-Times. Thanks to Skelly Wright over at Arbitrary and Capricious for the story.
If you aren't going to read it, at least look at this number:
50 minutes÷113 people = 26.55 seconds per case
Do you think you could be a good advocate if you were given 26.55 seconds per case?
Today in History (1988) - In a 7-2 decision by Justice Kennedy, SCOTUS holds that Virginia's residency requirement for bar admission without passing the state exam violates the Privileges and Immunities Clause (Supreme Court of Virginia v. Friedman). In a dissent joined by Scalia, Rehnquist reiterates his Piper belief "that the practice of law is - almost by definition - fundamentally different from those other occupations that are practiced across state lines without significant deviation from State to State."
[Jed Sorokin-Altmann] Law.com posted John Caher's article, "In Loss For Court TV, N.Y. Judges Continue Ban on Cameras in Courts," from the 6-17-05 New York Law Journal. On June 16th, the New York Court of Appeals upheld New York's ban on cameras in the courtroom, rejecting Court TV's claim that the state constitution gave grounds for "electronic access to trial proceedings."
The court's ruling found that New York's 1952 law banning cameras from courts survives challenge, even if a strict scrutiny standard were to be applied. "Additionally, the court made clear that the press has no greater right of access to the courtroom than the general public, that the state Legislature and not the courts should decide if televising trials is in the public interest and that in some applications New York's historically expansive free speech provision covers no more ground than the First Amendment to the U.S. Constitution. It also stressed that the right to a fair trial outweighs any right of access afforded either the public or the press."
I'm throwing the question out to you: where do you stand on whether or not cameras should be allowed in the courtroom?
I have mixed feelings on the matter. As a pre-law student, I've often regretted that more courts do not televise their proceedings. When I can, I often make the trip downtown to watch trials in Boston's Suffolk Superior Court or the Boston Municipal Court, and I've always found it interesting and educational. On the other hand, the Speech courses I've taken at Dartmouth College have convinced me that cameras can change the nature of the speech. Or the trial. I very much fear how cameras might affect witnesses, and even the lawyers and judges. What audience will the trial participants be playing to? What will be running through their minds? There is a real danger here, on the trial level.
On the other hand, when it comes to a state Supreme Court, or the US Supreme Court, I think that cameras should most definitely be allowed and encouraged. The educational value outweighs any negatives here, and so long as the camera is run and operated the same way that C-SPAN and C-SPAN 2 are, I don't see it being problematic.
Kip Esquire from A Stitch in Haste has a post about a case of modern crucifixion reported by BBC News:
Members of the convent in north-west Romania claim Maricica Irina Cornici was possessed and that the crucifixion had been part of an exorcism ritual.
Cornici was found dead on the cross on Wednesday after fellow nuns called an ambulance, according to police
"God has performed a miracle for her, finally Irina is delivered from evil," AFP quoted the priest as saying.
"I don't understand why journalists are making such a fuss about this. Exorcism is a common practice in the heart of the Romanian Orthodox church and my methods are not at all unknown to other priests," Father Daniel added.
Well, sick but true. My question for all those legal minds out there is whether the priest could be charged with murder if this had happened in the U.S. A lesser charge may have to be filed because of separation of church and state, no? She decided to allow them to do this for her religious beliefs, so I'm thinking negligent homicide. Any thoughts?