Date based archive
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.
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.
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?).
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.
Happy 57th birthday to Supreme Court Justice Clarence Thomas.
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!
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.
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.
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?
[Jed Sorokin-Altmann] There's an interesting post over at Crime & Federalism about Louisiana's licenses for florists. Apparently there is an hour-long written test and a 3 hour performance test. The constitutionality of the licensing was challenged, but a court upheld it under the rational basis test. Which brings me to why I posted this--there was a great quote from this that I enjoyed:
As Clint Bolick is fond of saying, you only need to know two things about the rational basis test: it doesn’t need to be rational, and it doesn’t need to be the basis.
A little bit younger and a little bit worse... off than the family about whom I posted several months ago, who at least were not forced to leave the country.
The 16-year-old Queens girl who was deported back to Bangladesh after having lived in the U.S. since kindergarten defends herself against the FBI's determination that she is a potential suicide bomber.
Check out Anthony Clark Arend's new blog: Exploring International Law.
[Jed Sorokin-Altmann] Nope--I didn't die or drop off the face of the blogosphere--I graduated college, instead! Now that I'm done with packing up all my belongings into boxes, and then unpacking all of my belongings, etc., I'm back. :)
Immediately moving on: there was an interesting post over at the Freedom to Tinker blog about whether or not, as well as how, photographs of graffiti should be licensed.
The Freedom to Tinker post was linked to this page over at OurMedia, which lists several points to consider about how such photos should be licensed, if licensed at all:
-Under U.S. law, you can't profit from illegal activities. This means that a graffiti artist cannot assert loss of sales from an act of infringement.
-Copyright is automatically applied. The artist does not have to assert copyright to own it.
-When the work is anonymous: Not clear on this point
-When the work is pseudonymous: Copyright expires at death when published under a pseudonym.
-Plagiarism. Can't claim credit for someone else's work
-Public work. It is on display for all to see, and at the mercy of the next graffiti artist--or the property's manager. And isn't graffiti often a combination of a counter-culture statement combined with a desire for recognition? Could we even assume the artist would want the graffiti copied around?
-Agglomerative works. When the piece in question is not a work by a single person, but a layering and meshing of multiple tags and sigs, does copyright apply?
-Derivative works. Layering of art reminds me of the Creative Commons Share-Alike license: Is the final work by one person, or a group?
-Attribution. Graffiti styles are distinctive enough that work itself constitutes attribution and credit.
One argument that I think the original poster missed is whether or not the copyright has been turned over to the property owner. It was sort of hit on in the public work section, but what if the graffiti was painted on private property? If I had purchased a painting from the artist, I could do what I wish with it, correct? Regardless of the involuntary nature of the transaction, the graffiti artists makes the property owner the owner of the graffiti.
They are the "worst states" judged by the number of racial and ethnic classifications in their statutes, according to the Center for Equal Opportunity's survey of racial and ethnic classifications in state statutes last year. The FedSoc white paper and full report provide some interesting reading.
For example, I hadn't realized that "[t]he subject of preferential treatment in board and commission appointments has never been litigated at the federal level." Presumably we can count on CEO to correct that oversight as soon as they find a plaintiff with standing, in light of the pointed remarks about how "constitutionally suspect" or "vulnerable to a constitutional challenge" these practices are.
Thankfully CEO doesn't appear to have any plans to sue over states' attempting to improve the health care access of underserved populations, including minorities. The inclusion of such programs in the survey undercuts the general purpose of CEO's pointing out inappropriate racial classification, as putting health care centers in poor communities hardly discriminates against people of well-served populations; I've never been refused care at the clinic in Harlem, despite being neither African American nor Latino.
Today in Religion Clauses History (1963) - The Supreme Court ruled 8 to 1 in Abington School District v. Schempp against allowing the reciting of Bible verses and the Lord's Prayer in public schools due to the establishment of religion; and 7-2 in Sherbert v. Verner that denying a Seventh-Day Adventist who had been fired for refusing to work on her sabbath violated free exercise of religion.
Amber Taylor raises Judge Wilkinson's decision in Simpson v. Chesterfield Co. as one that she finds problematic. In comments to the post, Will Baude says that in applying Marsh, wherein a single chaplain was found constitutional, there's no reason to find having a group of chaplains who can be selected only from monotheistic religions unconstitutional.
I'm inclined to Amber's position that there's a difference between having the result be exclusion and having the intent be exclusion. As long as the single Nebraska chaplain isn't required to be of any particular faith, all religions presumably are equally eligible for the position whenever it opens up. In Chesterfield, by contrast, some religions never ever are eligible.
But I also have to admit to some sense of personal offense at their writing the policy such that one must be monotheistic to qualify. If they wanted to keep out the cranks and not have things get too absurd, it would be much more appropriate to have said that one must lead a religious community of a certain size, so that when Hindus take over Chesterfield, a priest would be eligible to lead the prayer. Or when the Wiccans constitute a majority, their duly selected representative could show up. That would be a policy based on practicality rather than a bias toward particular religions.
To say that only monotheistic religions possibly can be acceptable for leading prayer is an "indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief" -- which Marsh doesn't permit. It explicitly disparages polytheistic religions as unfit for participation in what, according to Wilkinson's opinion, "is designed to foster widespread participation throughout the County."
I thought I'd continue the jurisprudence thread I began with my last post, where I quoted Scalia's book, A Matter of Interpretation. Scalia's jurisprudence falls within the originalist category (originalism). He is more precisely a textualist (textualism). Stuart Buck (The Buck Stops Here) recently shared this, three thoughts on originalism.
Originalism and textualism aren't to be confused with strict constructionism or original (or legislative) intent.
Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).
Lawrence Solum, Originalism as Transformative Politics, 63 Tulane Law Review 1599 (1989).
I have a question on behalf of my summer research, and also some of the sillier fruits of said research, to share with y'all.
First the question: does anyone know of a well-written and argued defense of campaign finance reform's limitations on First Amendment freedom? This preferably would be penned by a judge, professor or government official and published in a law journal of some sort.
Second, apparently I've become an extremely minor authority on the lives of significant First Amendment thinkers who were born in 1872 -- Learned Hand having come out a week before Alexander Meiklejohn -- and certainly I now know more than I expected to know about Judge Hand, including his friendship with J.D. Salinger and he and his wife's birth control. A couple of stories below the fold:
The New York court had many citizenship cases, and the statutory requirement that a person prove a nebulously-defined good moral character before being naturalized troubled Judge Hand. A government attorney once argued that a thirty-nine-year-old bachelor who had admitted having sexual relations with unmarried women was disqualified for citizenship due to this breach in morality. When the attorney said to the judge that he surely would not want his daughter to marry such a man, Hand retorted, "I wouldn't want her to marry a man of thirty-nine who hadn't had the impulse!"
The distinction between "regular active service" and Hand’s retirement was not much visible in the decrease of work he did, but it did have some consequence for his clerks. Ronald Dworkin recounts how at the end of his clerkship with Hand, the judge told him that he didn't approve of the practice of a month's paid vacation for clerks, because of the cost imposed on the public, and thought it particularly inappropriate for the clerk of a judge who technically had retired. (Hand was thrifty on the public's behalf in many respects; when he left the office at night, he turned off not only his but everyone else's lights.)
A few days after the end of the clerkship, Dworkin married a young woman he'd met during it. When he'd just met her, he asked her to come along with him while he was dropping off a memorandum at Hand's house, thinking it would be a short detour on the way to dinner. But Hand invited them inside, made them martinis and talked to the young lady about everything from art history to the Supreme Court. When they left after almost two hours, she asked Dworkin, "If I see more of you, do I get to see more of him?" For their wedding present, Hand wrote a personal check for a month's salary.
A conversation I had with a classmate called for me to quote this passage from Justice Scalia's book, A Matter of Interpretation: Federal Courts and the Law. I didn't want to waste what I copied on just our IM conversation, so I decided to post it here. I welcome comments.
But while the good textualist is not a literalist, neither is he a nihist. Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible. My favorite example of a departure from text...pertains to the Due Process Clause...which says that no person shall 'be deprived of life, liberty, or property without due process of law.' It has been interpreted to prevent the government from taking away certain liberties beyond those, such as freedom of speech and of religion, that are specifically named in the Constitution. . . Well, it may or may not be a good thing to guarantee additional liberties, but the Due Process Clause quite obviously does not bear that interpretation. By its inescapable terms, it guarantees only process. Property can be taken by the state; liberty can be taken; even life can be taken; but not without the process that our traditions require---notably, a validly enacted law and a fair trial. To say otherwise is to abandon textualism and to render democratically adopted texts mere springboards for judicial lawmaking.
In keeping with those who've already posted about their internships with federal judges, I thought I'd add. Before I do, I have a question for you all, especially those interning with federal judges. What is the proper nomenclature for a law school student who works for a federal judge--as we are doing? I have alternated between "intern" and "summer clerk."
I recently attended a Federalist Society cocktail party where an associate (at some white shoe firm) correct my use of "summer clerk." He was adamant that what I was doing was simply "interning." My first reaction was to cite him for the fashion violation that was his timeworn fanny pack. In charity, however, I submitted. Assuming a law school student were talking to someone, or among those in the legal community, if he were to mention that he just finished with his first year and for the summer he will be clerking for a federal judge, could his use of "clerking" be misinterpreted. I don't believe so. Of course just because it wouldn't be misinterpreted does not mean that it's the necessarily preferred nomenclature for what it's describing, I admit. Thoughts?
My first two days went well. The facilities are beautiful, and the judge for whom I am working couldn't be more engaging. His law clerks too are helpful. Tomorrow I will be testing one of the clerk's patience patenting with my litany of questions regarding as assignment she gave me this morning. I was assigned something to do with admiralty law. Needless to say, as a first year I was not exposed to admiralty/maritime law. I found out that, like bankruptcy, its an area of the law that isn't overpopulated with attorneys. Of course I am sure this depends on geography, but I Iive and work in an area where I figured to be 'enough' attorneys who specialize in maritime law. One of the law clerks informed me that there aren't many maritime practitioners in these parts. Anyhow, the assignment has proven interesting and has sparked my interest.
My mornings have gone by quickly with lunch coming fast--but not fast enough, my stomach growled in the couple conferences I attended today. I am still getting used to not being able to eat throughout the day, as is normal for me. Since Monday, I have also seen several plea hearings and a couple sentencings--each equally depressing.
Having grown weary of pondering various aspects of the criminal law, specifically a formal adoption of the cultural defense, I've moved on to the less theoretically provocative though more practically useful world of ADR. As always, your thoughts, comments, and reactions are welcome at email@example.com. -PV
As I mentioned in an earlier posting, I am spending the summer clerking for a federal judge in Cincinnati, Ohio. To date, I have intimately participated in five settlement conferences and have assisted my judge in preparation for and analysis of each conference. With this background, I have come to a few conclusions about the process.
First and foremost, it is absolutely apparent that cases only get solved when parties make a substantial concession before they come to the table, are ready to make a further concession at the table, and end the matter on terms mutually undesirable. That at the outset a plaintiff has unrealistically high demands and a defendant has a seemingly naive understanding of its potential exposure is without question. However, what is also evident is that both sides are rational enough to understand that a compromise lies somewhere in the middle. What both sides do not want to hear, though, is that the only way to reach that middle ground is to (1) ignore the merits and (2) check emotion at the door.
To be sure, this is never easy. It certainly isn't easy for the plaintiff who wants a pound of flesh for having been wronged. And it isn't any easier for the defendant who wants to set an example. In the end, however, it is reasonableness that must win out - finding a point somewhere on the continuum of demands and counter-offers that isn't wholly agreeable to either party, but is a reasonable solution nevertheless.
The concept of reasonableness, and its decided victory over the merits and emotion, should not be a foreign concept to most litigants, simply given that reasonableness-seeking Centrists are probably the majority in America. But emotion and the desire to be righted when one has been wronged is often times an indomitable feeling. It is a feeling, however, that the judge must subdue if reasonableness is to win the day.
Last fall, I posted about the horrors of the Bluebook as though it would be the one thing that might keep me from graduating. Just now I received an e-mail from a member of my journal's board, which said in part
Second, we are changing our style to match the Bluebook, smallcaps and all. As you probably realize, this is great news and will make everyone's lives much easier. There is a brand new edition of the Bluebook available. We will be ordering a few copies for the office, although I'm sure you are all rushing out to buy your own copies the instant you read this.Tragically, I am. I suppose it's not so much the passage of time as the sinking-in of the realization that I cannot defeat the Bluebook and so I had better embrace the Eighteenth Edition -- now with coherent internet citation! If we are going to have to start editing articles for next February's conference this summer, I had better have the bludgeon in hand. Though this is the first pang I have over choosing a specialty journal and ignoring whatever chance I may have had at law review: presumably as CLR helped to edit the damn thing, they get free copies. But who at Harvard Law Rreview actually has to do the work of sending them out? Surely not the august staffers themselves, though that might account for "Please be aware that it may be several days before your order is shipped, regardless of Next Day Air, Next Day Air Saver, or Second Day Air."
Happy 2nd Annual International Webloggers' Day.
I have a much more offensive post at my regular blog, but I thought this FEC business deserved a spot here. The chairman, Brad Smith, certainly doesn't sound like he even wants to do this, but he's hinting nonetheless that substantial restrictions are on our way.
For what seems like the 100th time, this represents yet another opportunity for Justice Scalia to claim "I told you so."
I think that both Establishment Clause cases are much more complicated than has been discussed here. Here in Boise we had a similar case in which a statue of the Ten Commandments, put up to advertise the Charles Heston movie, was in one of our state parks and recently was removed by order of the city council. Judge Lodge upheld the city council's decision, but there is more to the story.
The issue came up when that nut job, Fred Phelps from Kansas, wanted to put up a statue commemorating the death of Mathew Shepherd and his eternal damnation to hell. His potential ability to do this came from a ruling in the 10th Circuit:
“Any city that displays a Ten Commandments monument on public property must also allow monuments espousing the views of other religions or political groups on that same property.”
This is the type of crap you have to put up with if you allow religious monuments on public property. Is it illegal to have the Ten Commandments in a public place? -No. It most probably is illegal to have only the Ten Commandments if other religious groups wish to put up monuments also.
This is where we get the beautiful slippery slope argument against religious monuments. If you allow the Ten Commandments, you have to allow monuments from the Church of Satan, the Wicca’s, and any other groups you might find reprehensible, (i.e. crazy bigots).
As a policy decision I'm for having no religious monuments in public places, but as a legal decision it could go either way and be correct. I guess you could say it is an all or nothing decision. Either you can place a monument regardless of content or you can’t place any religious monuments at all.
The Constitution may guarantee it. But religious freedom in America is, in fact, impossible. So argues this timely and iconoclastic work by law and religion scholar Winnifred Sullivan. Sullivan uses as the backdrop for the book the trial of Warner v. Boca Raton, a recent case concerning the laws that protect the free exercise of religion in America. The trial, for which the author served as an expert witness, concerned regulations banning certain memorials from a multiconfessional nondenominational cemetery in Boca Raton, Florida. The book portrays the unsuccessful struggle of Catholic, Protestant, and Jewish families in Boca Raton to preserve the practice of placing such religious artifacts as crosses and stars of David on the graves of the city-owned burial ground.
Sullivan demonstrates how, during the course of the proceeding, citizens from all walks of life and religious backgrounds were harassed to define just what their religion is. She argues that their plight points up a shocking truth: religion cannot be coherently defined for the purposes of American law, because everyone has different definitions of what religion is. Indeed, while religious freedom as a political idea was arguably once a force for tolerance, it has now become a force for intolerance, she maintains.
A clear-eyed look at the laws created to protect religious freedom, this vigorously argued book offers a new take on a right deemed by many to be necessary for a free democratic society. It will have broad appeal not only for religion scholars, but also for anyone interested in law and the Constitution.
If you're anything like me, you were probably a little nervous - and really curious - before you got to law school. If, like me, you're currently waiting for your 1L orientation, you surely know the feeling I'm talking about.
Allow me to allay your fears. Enroll in Law Preview (if you can afford it). The program wrapped up yesterday, and after six straight days of instruction and study I'm overwhelmingly excited, instead of worried, about law school.
I'm also happy to be moving. Traffic in Los Angeles is atrocious. So atrocious, in fact, that I was able to read Palsgraf on the 110. In my car. In park. But I digress.
Little I can imagine would be more comforting than studying the law with students enrolled in Columbia, Chicago, Georgetown, UCLA, Loyola of Los Angeles, Denver, Pepperdine, USC, and Hastings. Learning law is about effort, not brilliance. The idiom is true. But it has to be learned through experience, and for a reasonable price of admission, Law Preview allows you to do exactly that.
I should also mention, I suppose, that the ladies taking the BarBri course on campus were totally hot.
I'm just saying.
I'd like to comment on the two Establishment Clause cases for which the Supreme Court has yet to release its opinion(s). Of course I could've written a comment to the previous post that mentioned these cases, except I wouldn't mind sparking an extended discussion on the matter, which might have been missed had I placed my post as a comment.
To recap, the two Establishment Clause cases under discussion are:
The excerpted "questions presented" come from briefs on the cases published online by the Medill School of Journalism's Open Docket project. To save space and time, I will assume that our readers are familiar with the facts of the respective cases, which are nicely provided by the briefs I've just mentioned.
I've been thinking of the many ways we can approach discussing these cases specifically, and Establishment Clause cases generally. Since there are an infinite number of ways to address these things, I'd like to refrain from spending too much time and energy now and save my criticisms for when the Court releases their opinions.
I've reviewed the comments to E.C.'s original post, but found nothing in the way of frameworks of analysis the SC has, and probably will, employ in these two cases.
We should start with the Constitution, then proceed to how the Constitution's Establishment Clause has been interpreted by courts, including especially the US Supreme Court.
The First Amendment of the United States Constitution states, in part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" US Const. Am 1. The Establishment Clause refers to the first clause of this amendment. "[T]he three main evils against which the Establishment Clause was intended to afford protection: sponsorship, financial support, and active involvement of the sovereign in religious activity." Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). The Supreme Court understands this clause to mean that government cannot promote or affiliate itself with any religion or religious doctrine. County of Allegheny, 492 U.S. at 590.
One method the Supreme Court has used when interpreting the Establishment Clause has been the Lemon test, first articulated in Lemon v. Kurtzman, where the Court held unconstitutional two state statutes that provided financial support to nonpublic elementary and secondary schools because the statutes fostered excessive entanglement between government and religion. Lemon, 403 U.S. 602. For a government practice to be permissible, it "must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion." County of Allegheny, 492 U.S. at 592.
The goal is not a total separation between church and state; courts realize that some relationship is inevitable. Lemon, 403 U.S. at 614. The Supreme Court has even suggested the impossibility of impartiality while also suggesting that religious character or the origin of the text is not alone dispositive because the court went as far as to recognize a legitimate interests for the government to encourage study of religious texts, worthy for their literary and historic qualities. Sch. Dist. v. Schempp, 374 U.S. 203, 225 (1963).
The Lemon test is but one of the various tests the SC has used in these matters. I'm confident in saying that it's the most severe of the tests, primarily because of its tripartite nature, which each need to be satisfied for the government's conduct or law not to be considered a violation of the Establishment Clause.
In her concurring opinion in Lynch, Justice O'Connor states that "[t]he purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether . . . the practice under review in fact conveys a message of endorsement or disapproval." Lynch, 465 U.S. at 690. Here, Justice O'Connor combined from the Lemon analysis analysis the purpose prong with the effect prong to determine whether the government is endorsing religion. Justice O'Connor states that "[w]hat is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion [to the reasonable observer]." Id. at 692.
Justice Kennedy, in in Lee v. Weisman, suggested that so long as the law or conduct in question does not coerce the reasonable observer from doing something they would not otherwise do, it should not stand as a violation of the Establishment Clause. This test is referred to as the Coercion test.
What will prove interesting is which test, if any, the majority employ in these cases since the Court has been known to completely ignore tests in this area too. An issue in McCreary [its third and fourth question presented] is, in fact, the Court's use of such tests in deciding Establishment Clause matters.
I will close with these considerations.
The Constitution does not forbid government advancing religion, generally. There is nothing in the text of the Constitution that suggests government cannot also suggest respect for religion. While I can foresee disagreement on these last statements, we must all acknowledge, however, that the SC hasn't given us a definition of religion, or what it takes to be religious. Of course, we can discern to some degree what it takes to be religious by the cases that it chooses to hear, but these aren't, in my opinion, adequate measures. The little I can predict for McCreary and Van Orden is that nearly everyone will be disappointed in how the court deals with the matters. Once we have those hostile to any presence of religion in the public square and those equally hostile to keeping their belief "private," we will all be dissatisfied with a court that believes in compromise through balance and tests.
[Cross posted at Unlearned Hand.]
Jason, Sean and I have all posted on issues of church and state recently, and Jed was nice enough to provide a fairly lengthy response in my comments section - which I appreciated. The point of blogging, after all, is the feedback.
I'm curious, in light of the widespread interest, what you all think of the two Ten Commandments cases Jason briefly mentioned. I think my read of current Establishment Clause jurisprudence is that they can stay up, although this area of law is so amorphous that it's pretty hard to tell. I'm also alright with that as a policy matter, but I'm sure there's a pretty broad variety of opinion here. (It's also a particularly easy area to disagree on, because the law is so vague).
Where do you all stand?
The following things do not qualify as good judgment calls:
I mourn for the wide-spread loss of common sense. Mourn for it.
Prof. Eugene Volokh considers some tactics reportedly used at Guantanamo Bay and says,
Giving porn as a reward hardly seems like a Geneva Convention violation; taking off one's own clothes doesn't seem particularly problematic, either, though it may well be embarrassing to the prisoners; rubbing up against to people may be more problematic; I don't quite know what to think about the fake blood. I also realize that they may have been taking advantage of the prisoners' sense of modesty, and of their religious taboos. One can debate to what extent this is proper, effective, or good policy given how it might look to outsiders.Aside from being potentially improper, ineffective and bad policy, I'm fairly sure that rubbing up against people while stripped down to one's underwear would be illegal if done in the U.S., either to a regular person or to a prisoner in our state and federal system. Certainly if a sane man walked up to me on the subway, stripped down to his underwear and started rubbing himself against me, I would call the police and have him prosecuted. If guards in prisons covered by the 8th Amendment started stripping down and rubbing themselves against inmates, that seems likely to be covered by "unusual punishment." Frottage is a form of sexual assault.
But surely "sexual torture" is a pretty substantial exaggeration of what the article describes, even as to the most potentially troubling items.
Also, why all the peculiar* sexuality in the treatment of prisoners? Can any of this possibly be legitimate means of getting information, or is this just more Abu Ghraib, soldiers need to "blow some steam off," type of behavior that we can expect to see condemned and punished?
* Not a work-safe link.
I've been asked by many law students, a few professors, and even a few judges why I blawg. I thought this would be a great opportunity to explore a few of the reasons why I believe a law student should blawg.
1. The more time you spend in the blogosphere, the more you find yourself knowing the "hidden" facts behind cases. This leads to the thought process in which everything looks gray rather than black and white. When you find yourself arguing against yourself, you're on the right path.
2. You can say all those things that you really want to say in class, but you know are off the point. Sometimes you even get a response from people who think like you. Sometimes it just feels good to get that stuff off your chest, and occasionally you actually learn something you would not have learned in class.
3. You get to discuss important legal events with people who actually have an effect on them. Where else can you contact experts like blawg-father Volokh and get a response? Learning different perspectives from different professors allows you to stay ahead of those learning from just the one professor in class.
4. The discussion of events leads to a deeper understanding of the law. Memorization is not enough for law, being able to use the tools you learn in class on multiple cases makes for a stronger understanding of the fundamental thought process you will be using when you are finished with school.
5. Better to make a mistake while writing on a blawg than find yourself doing so in a courtroom. I love it when I get a nasty e-mail telling me how outlandishly stupid my thought process is. Sometimes I make stupid mistakes, but mostly I'm still inexperienced and ignorant of some case law. I quickly am informed of what my ignorance is however, and can act on it. Sometimes being wrong is the best thing that can happen to you.
These are just the first few reasons that I can think of, if you have anything to add feel free to post a comment.
Today in Theocratic History (1692) - Bridget Bishop is hanged at Gallows Hill near Salem, Massachusetts for "certaine Detestable Arts called Witchcraft & Sorceries."
If I'm 99.9% sure that I want to keep my board position on the journal for which I've worked for the past year, instead of giving it up to join law review -- as we're required to do -- should I go ahead and e-mail the Law Review people to that effect so the six poor souls who were given my application each have one fewer 10 page paper to read?
I have an uncomfortable feeling that I applied just out of curiosity to see how I'd do, without thinking of the cost imposed on others, and not because I actually wanted to join the Review. As I'm fairly certain that I didn't do terribly well, perhaps I ought to assume that as true instead of sucking up hours of life people never will be able to get back in order to feed (or more likely, starve) my vanity.
To some degree, this heretical preference for a specialty journal over law review can be attributed to the De Novo symposium. Readers beware.
[Jed Sorokin-Altmann] Salon.com has an article by Ryan Grim titled: "A Guide to Gonzales vs. Raich" that examines Monday's ruling. One area it examines is whether or not there is any limit to what the federal government can regulate. The dictionary answer, Congress can regulate anything related to interstate commerce, doesn't provide a practical, working definition of what this might actually be. What is and is not economic? What can and cannot be regulated by Congress?
Grim quotes GWU Professor Orin Kerr as saying, "Maybe marriage [can't be regulated by the federal government]. It's hard to tell what's non-economic." I disagree with Professor Kerr--marriage is very much wrapped up in economics and commerce. There are many various tax benefits involved with marriage, health care, and other financial implications that have a direct, open, and obvious impact on interstate commerce.
Many may not blink at the idea of Congress regulating marriage, indeed, the religious right would be thrilled to see Congress overruling, say, Massachusetts on the issue. I suspect, however, they would be less happy to see Congress regulating marital sex and how often it must occur. Huh, you ask? Grim looks back at last November's oral arguments in Raich:
Last November, during oral arguments in Raich, Barnett, the plaintiffs' lead counsel, momentarily silenced the stodgy courtroom. Think about prostitution and marital sex, Barnett said, not having to ask twice. In that case, he went on, the same act is regulated under some circumstances but not under others, even though the two influence each other. The less marital sex someone has, Barnett argued, the more times someone will seek out a prostitute. So by regulating that married couples have more sex, the state could reasonably expect to reduce the occurrence of prostitution. But surely the federal government can't regulate the number of times a couple must have sex in a week, Barnett concluded.
Monday, I asked him if Congress could now regulate marital sex. "Yes," he said, "under the reasoning of the majority opinion." Kerr wasn't sure: "It's my hope that Congress never tries."
Given Raich, there does not appear to be anything stopping Congress from regulating marital sex, including the number of times a week it must occur. The facts make for an even easier finding than Raich: prostitutes are far more likely to cross state boundaries for their trade then the marijuana which was grown in California for use in California (or even marijuana grown in a house for use in that house).
Suzanne Nossel observes that the ICC's investigation of war crimes in Darfur began today. The ICC has its flaws, but the victims of what the Administration has forthrightly called a genocide deserve for us to hope the prosecutions are successful.
Like Nossel, I'm skeptical that the investigation will slow the killing on its own. Slowing the killing, I'm afraid, is more a question for military strategists than legal ones. But bloggers can join this group and make a small difference. Those of you that haven't should.
[Jed Sorokin-Altmann] This one is a few days old, but it's rather interesting... According to signonsandiego.com, photofinishing labs are refusing to print "professional-looking" photographs taken by amateurs, based on a fear of violating professional photographers' copyrights.
As an example, the article discusses the problem faced by amateur photographer Zee Helmick, who was unable to print photos at a Wal-Mart near her home:
She had taken the photos of her son that morning to use as head shots for an audition for a TV commercial. She had used her photo-editing software to add his name, information about him and even her own copyright to make the image look more polished, Helmick said.
She uploaded the 8-by-10-inch photos to Walmart.com, which prints photos sent to the site at a nearby store for customers to pick up.
At the store, Helmick said a clerk told her, "We can't release the pictures to you."
"What's wrong?" Helmick asked.
"We can't release the pictures to you without a copyright release form signed by the photographer," the clerk replied, according to Helmick.
The clerk said the photos looked like a professional had taken them, Helmick said. And no matter how much Helmick protested that she, an amateur, had snapped the shots of her son, she said the clerk wouldn't budge.
According to the article, in 2000, Kmart settled a case involving allegations that they violated federal copyright laws by copying images without the copyright holder's permission. Other photofinishing labs took note of the $100,000 settlement and enacted similar policies against printing "professional-looking" images out of a fear that similar suits could be brought against them.
Wal-Mart has the strictest policy. Their spokesperson said, "We will not copy a photograph if it appears to be taken by a professional photographer or studio."
Given that more and more consumers are purchasing high quality digital cameras and related equipment, it is likely that this issue will only take on heightened importance in time... Surely there must be room for both consumer and professional rights.
While my co-Guest Contributors and those already Sitting in Review are busy posting about stuff that really matters, I don't do the whole "sounding intelligent" thing very well. My posts here will probably always have a certain level of silliness. If I
forget myself decide to be thoughtful, I'll give fair warning so that you all can scroll to the next entry.
So today my co-workers and I toured a federal correction institution. More details will be found later over at my blawg, but for now I would just like to share one tidbit.
Upon entering the FCI, we noted that in a glass case next to the visitor sign-in place, there were glass mugs, a cd holder, a visor, and other prison souvenirs, complete with the prison's name on it. Imagine buying a mug that said "Virginia is for Lovers," only instead of the aforementioned text in the pretty gold writing, it says "[Federal Correction Institution's Name]" in pretty gold writing.
We were a bit confused as to why the prison would have these? Were they for the employees? Visitors? The prisoners themselves as a way to commemorate their stay? I mean, really, who would actually want keepsakes with the name of a federal prison on them?
It got us thinking: did the prison make t-shirts too? Something like (my co-worker said), "My nephew got 6 months in federal prison and all I got was this lousy t-shirt."
Or: "I've Paid My Debt to Society. Federal Bureau of Prisons 2005 Tour."
What about a Federal BoP pipe? Or zippo lighter? Or shot glass?
If you need a break from the more thoughtful posts found in and around this blog, feel free to suggest your own ideas for new prison souvenirs.
Ah, this is why one attends an overpriced law school: because they send out e-mail notices about the best time to consolidate one's loans, even though the subject line looks like spam:
URGENT NOTICE TO 2006 AND 2007 CLASSES: CONSOLIDATE YOUR FEDERAL LOANS BEFORE JUNE 30, 2005 TO SAVE MONEY!!!
I am writing to suggest that you very seriously consider consolidating your federal Stafford loans before June 30, 2005, so that you can lock into a historically low long-term fixed interest rate. This may be your last opportunity to lock into a fixed interest rate on a consolidation loan. Proposed changes to the federal loan programs are expected to mandate a variable interest rate on future consolidation loans. Please read further for additional information regarding interest rates and the timing of consolidation.
Some of you may be aware that federal consolidation through a bank or financial institution previously was allowed only if you were out-of-school (graduated, withdrew, etc.). Until now, this was interpreted to mean that students who were continuing in in-school status were unable to consolidate their federal loans in order to lock into the very low fixed interest rates that are available currently.
The Higher Education Act does not allow federal consolidation loans to be made while a borrower is in school; borrowers must be in a grace, repayment, or default status. However, a separate section of the Higher Education Act states that borrowers can request early entry into repayment status. This means that you may request your federal loans to be placed in a repayment status even though you will be continuing your education. Once in repayment, you can consolidate the loans and receive a fixed rate of interest. If you consolidate before the end of this month (June), you will be able to lock into the lowest ever fixed interest rate for federal loans.
Because you will continue to be enrolled, a lender has the ability to immediately place your new consolidation loan in an in-school deferment status. While your consolidation loan is in deferment, your interest rate will be the fixed consolidated interest rate, even though interest rates on regular federal Stafford loans may be adjusted annually each July 1. The federal government continues to pay the interest on the portion of your new consolidation loan that previously was a federal subsidized Stafford loan; the portion that was a federal unsubsidized Stafford loan will accrue interest during deferment periods, but the interest will not capitalize again until you begin repayment. No payment is due during a deferment.
While you can consolidate all of your federally guaranteed loans, you should not consolidate loans with regulated low fixed rates (such as the Perkins loan) since the 5% fixed interest rate of Perkins loans is higher than the extremely low current federal consolidation loan rates and may drive up the weighted average rate of the federal Stafford loans you will be consolidating. Additionally, please be aware that if your future career plans include certain services (law enforcement, elementary/secondary school teaching, military service, peace corps, etc.), you may be eligible for partial cancellation benefits for federal Perkins loans.
SAVE ALMOST 2% ON YOUR LOAN INTEREST RATE! Interest rates on federal Stafford loans will be reset on July 1, 2005 as follows: for Stafford loans disbursed on or after July 1, 1998, the interest rates for the period July 1, 2005 through June 30, 2006 will be 4.7% during in-school and grace periods, and 5.3% during repayment. For your reference, the current interest rates for the period ending June 30, 2005 are 2.77% and 3.37%, respectively. While different rates apply for loans disbursed before July 1, 1998, they now are very low as well. If you consolidate before the end of June 2005, the current in-school/grace period rate (2.77%) will be used to calculate the rate of your consolidation loan (unless you also are consolidating loans for which you already used up your grace period). Check with your lender for the exact rate.
Keep in mind that the formula used to determine the interest rate on a consolidation loan is the weighted-average rate of the loans being consolidated rounded up to the nearest 1/8th of a percent.
By consolidating your federal loan(s), you will have a new federal loan, and you will forfeit the grace period you had for the original federal loans you consolidated. Thus, you will enter repayment immediately following graduation (or when your enrollment drops to less than half-time status), and you must plan accordingly. You will continue to receive a grace period on any future federal loans you borrow, as well as on any earlier loans you had but which you chose not to consolidate (unless you already used up your grace period).
FOR ACCESS GROUP BORROWERS: To consolidate your loans with Access Group, just visit www.federalconsolidation.org/preapply and complete the online form. By filling in your expected graduation date on the form, when your request is processed Access Group will send you two documents:
(1) a copy of your application for loan consolidation for your review
and signature, and (2) an Early Repayment Request Form. This will allow your loans to be consolidated and to receive an in-school deferment.
You MUST complete both forms and return them to Access Group in order to consolidate your loans while you are in school. Once the consolidation loan is processed by Access Group, please note that you will receive TWO notices; the first stating that the loans are now in repayment, and then a second stating the loans are in an in-school deferment status (Access Group must send both notices by regulation).
FOR BORROWERS FROM OTHER LENDERS: Please contact your federal Stafford loan lenders/servicers directly to inquire about consolidation or about the status of your loans in general. Most lender websites contain detailed information on federal loan consolidation. For your convenience we list some of these contacts on the chart at the end of this message. If after communicating with your lenders/servicers you need assistance from our Office, please call 212-854-6522 and we shall try to help you as best we can.
If you plan on participating in the Loan Repayment Assistance Program (LRAP) and are concerned about how your LRAP benefits may be impacted by federal loan consolidation, please contact our office at 212-854-6522. We can assure you, though, that federal loan consolidation does not mean that your eligibility for LRAP will be affected adversely.
I strongly encourage you to explore this wonderful opportunity to decrease
the cost of your federally guaranteed loans. If you have questions about
this process, please contact your lender directly.
SEE CONTACT CHART BELOW
|Access Group |www.accessgroup.org |800-282-1550 |
| |www.kheslc.com |888-250-6401 for |
| | |consolidation loans |
|Citibank |www.studentloan.com |800-745-5473 |
| | | |
|Sallie Mae |www.salliemae.com |888-272-5543 |
|also LawLoans, Nellie | |800-448-3533 for |
|Mae, and USA Group Loans| |consolidation loans |
|Total Higher Education |www.northstar.org |888-843-3095 |
|(T.H.E.) | |866-562-6672 for |
| | |consolidation loans |
|Key Education Resources |www.Key.com/educate |800-539-5363 |
| | | |
|Federal Direct |www.ed.gov/DirectLoan |800-557-7392 |
|Consolidation Loan | | |
As some of you have noticed I'm a bit fixated on the portion of the opinion written by Justice Stevens in which he refers to "medical necessity." He mentions that the question of medical necessity wasn't brought in front of the Supreme Court in this case, and it seems that he may have joined the dissenters had it been.
As I mentioned earlier in my original post, UNITED STATES v. OAKLAND CANNABIS BUYERS’ COOPERATIVE et al. held that medical necessity wasn't a defense against manufacturing and distributing marijuana.
A quick reading of Justice Stevens' concurring opinion in Oakland Cannabis Buyers' Cooperative (with whom Justice Souter and Justice Ginsburg join) reveals:
The overbroad language of the Court’s opinion is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union. That respect imposes a duty on federal courts, whenever possible, to avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a State have chosen to “serve as a laboratory” in the trial of “novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). In my view, this is such a case.3 By passing Proposition 215, California voters have decided that seriously ill patients and their primary caregivers should be exempt from prosecution under state laws for cultivating and possessing marijuana if the patient’s physician recommends using the drug for treatment.4 This case does not call upon the Court to deprive all such patients of the benefit of the necessity defense to federal prosecution, when the case itself does not involve any such patients.
Unfortunately, Justice Stevens was unable to address this point in Raich because the question of medical necessity wasn't present.
[Update: PG beat me to the punch on this analysis in his comments to my original post.]
Should anyone be wondering why Stevens calls upon medical marijuana users and their supporters to seek change through political means when he did not make a similar recommendation for sodomites, keep in mind that the Lawrence plaintiffs argued for a right of privacy, which is anti-majoritarian. Raich does not argue for a right to consume pot, only for California's ability to permit it against a Congressional ban.But of course Volokh Conspirator David Bernstein already had said,
I was both amused and angered by Justice Stevens's paean to the democratic process as the appropriate avenue of relief for advocates of medical marijuana at the end of his opinion. Every Justice who joined Stevens's opinion voted to prohibit states from regulating homosexual sex in Lawrence and [if they were on the Court at the time] voted to limit the government's power to regulate abortion in Casey. Why was the democratic process not the appropriate avenue of relief for the victims of overzealous government regulation in those cases? It seems we do to some extent live under a system where the personal preferences of the Justices, having nothing to do with the history, text, or logic of the Constitution, dictate when the Supreme Court will or will not intervene to overturn particular regulations.
I feel very wary about arguing with a professor, but: Raich was a federalism argument. Lawrence and Casey were individual rights arguments. NOT THE SAME THING. If Raich decides to argue that she has a Constitutional right to be free of government interference in her consumption of medical marijuana, she's welcome to do so, but it will be a different argument than was made in this case.
Also, if I see one more person characterize the majority opinion in Lawrence as being about "homosexual sex," I'm going to declare myself a homosexual, because my right to privacy was at stake there. O'Connor's concurrence was the opinion that said that Texas's statute was invalid due to gender discrimination, because it criminalized only homosexual sodomy. Kennedy went the step further to invalidate Virginia's -- from whence I'm currently posting, and where I lived at the time of the decision -- and ten other states' No Sodomy for Anyone laws. And Virginia prosecuted heteros, too. For straight people to pretend that the Lawrence decision was a victory only for the privacy rights of homosexuals is foolish.
Obviously we breeders take even more of an interest in the right to be free of excessive government regulation when it comes to getting an abortion. The Democratic process wasn't invoked as an appropriate avenue of relief because Constitutional rights were at stake, and when you have a Constitutional right to wave around, it's very tempting to bypass the democratic process. If the Supreme Court smacks down your Constitutional right, then you start grubbing around in politics, which is exactly what's happened with medical marijuana -- the Court already declared Americans had no Constitutional right to it, so the cancer patients who need pot in order to have enough appetite not to starve to death lobbied their state legislatures and fellow voters. Now the Court is saying that lobbying at the state level isn't sufficient because Congress's commerce clause power permits it to invalidate states' permission for medical marijuana, so medical marijuana advocates will have to turn those positive nationwide poll results into Congressional action.
As I think Justice Stevens may be, I'm unhappy about the result in this case that will allow the feds to prosecute people for a victimless "crime" that is necessary to health and continued life. I'd even question whether the U.S. v. Oakland Cannabis Buyers' Cooperative Court decided correctly in accepting the highly-dubious Congressional finding that there is no medical use of marijuana. But as long as the Court refuses to see a Constitutional right involved in medical marijuana, the democratic process is the route its advocates must continue to take.
[Jed Sorokin-Altmann] There are two interesting posts in the blogosphere that discuss Justice Kennedy not writing an opinion in Raich.
The first posting comes from Lyle Denniston over at SCOTUSblog, in which he muses that Justice Kennedy might just be strongly against drugs, period. I was particular interested in his reference to the oral argument in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, because I went to college with Lindsay Earls. She's not a druggie now, nor was she one then, and she deserved far better treatment and far more respect from the Court than Kennedy afforded her. I don't know is Denniston is on to something or not about Kennedy's person views towards, but it's interesting to muse about.
The second posting comes from Ann Althouse over at her blog, Althouse. She wonders why Kennedy ruled the way hid did, given his concurrence in Lopez:
While it is doubtful that any State, or indeed any reasonable person, would argue that it is wise policy to allow students to carry guns on school premises, considerable disagreement exists about how best to accomplish that goal. In this circumstance, the theory and utility of our federalism are revealed, for the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.…
The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term.
Althouse is right, it is is indeed curious that today, silently, Justice Kennedy has agreed with the justices who dissented in Lopez and Morrison.
(Explanatory Update: Ben Edwards is a rising 2L at Columbia Law School who claimed that he was going to start posting last December. Serves him right that he decided to post for the first time on a day when everyone wants to talk about something else.)
Moral hazards emerge when individual behavior changes because of perverse alignment of incentives. For example, without fire insurance, homeowners have every incentive in the world to protect their home against fire; however, with insurance, normal citizens become arsonists and torch their own homes. These same concerns emerge in the context of legal malpractice litigation when attorneys later sue co-counsel for malpractice in relation to their lapse in exercising the fiduciary duties owed to a common client.
The recent notable case of EarthLink v. Powell Goldstein provides a scenario where moral hazards have emerged. In February of 2000, EarthLink merged with MindSpring, another Internet service provider. Prior to the merger, Powell advised MindSpring on its 401(k) plan. After the merger, the new company decided to allow all of its employees to purchase company stock.
Unfortunately, EarthLink never filed a registration statement with the SEC on time and incurred $1 million dollars in costs as a result. During the hectic merger and reorganization period, EarthLink retained counsel from not only Powell but also Hogan & Hartson, Hunton & Williams, and other consultants and advisors. In the fallout, EarthLink retained Hunton as counsel and sued Powell for malpractice, blaming them for the $1 million in costs.
The first moral hazard emerges from the dereliction of duty in filing the form on time with the SEC. Hunton also represented EarthLink during the reorganization period and likely knew that it was the preferred counsel of EarthLink. In the event of an omission or error by one of the other firms, Hunton was poised to gain from the litigation. Perversely, Hunton, if discovering an oversight by another firm, would stand to gain most by not rectifying the mistake. Even if Hunton never actively overlooked a mistake on the part of co-counsel, they still had incentive to reduce their vigilance in the area. The moral hazard here is that a party with a professional duty prevent or limit the effects of malpractice is positioned to benefit most from its being committed. Because Hunton stands to gain from malpractice litigation against a competitor, there is a perverse incentive to allow errors to occur.
Another moral hazard also emerges from the facts of EarthLink v. Powell Goldstein. Because Hunton served as counsel concurrently with Powell, Hunton may be liable for mistakes transpiring on its watch. Unsurprisingly, a court judgment against Powell forces Powell to prove collusion by Hunton to recover rather than just proving negligence. Another perverse incentive emerges because Hunton now has cause to forgo settlement or push for terms limiting its liability while negotiating on EarthLink’s behalf. Even small shifts in calculations evaluating a settlement offer based on the impact on firm liability is completely impermissible.
The moral hazards that pervade the malpractice litigation field only magnify when compounded with conflict of interest concerns. Judges ought require only the introduction of facts allowing the inference that counsel could be unduly influenced by personal interest in a malpractice claim before disqualifying counsel. While no evidence exists to indicate that either firm used as an example here will or has succumbed to the temptations of moral hazards, courts should not create precedent by allowing representation to continue here. Ethical and responsible attorneys, zealously representing their clients, may unwittingly open the door for charlatans all too willing to exploit moral hazards.
The Powerline guys are deeply critical of this Kansas decision, where the state's high court unanimously ordered the legislature to increase its education spending by $285 million based on an estimate by consultants that twice that increase was necessary and a constitutional provision ordering the legislature to provide 'sufficient funds'.
A couple of things they leave out:
(1) The legislature didn't even provide an alternate cost estimate.
(2) The "unelected consultants" were actually retained by the legislature.
This looks like a case of criminally bad lawyering on the legislative counsel's part, nothing else. (Or, alternatively, a case the legislature punted so as to pass the buck for tax hikes and/or spending cuts they didn't want to try to sell otherwise).
[Jason Samuel] While I am still digesting the Raich decision, many of you have already begun opining. You all are way quicker than me. I hope this doesn't set a precedent. (That wasn't meant to be a lawyer joke.) I am finding Professor Lawrence Solum's post at Legal Theory Blog particularly helpful.
I have a post up over at Objective Justice that briefly describes the reasoning of the Court in the majority opinion. I don't want to repeat that here, but I do want to ask the same questions here as I did there:
I'd like to note that one things strike me as surprisingly absent in the discussion of the Raich opinion:
In Raich, the Constitutional right of medical necessity was not considered because it wasn't addressed by the 9th Circuit. I'm not advocating that the Justices should have ruled on this technically unadressable factor, but it does leave some room for rumination. If the 9th Circuit had found a Constitutional right to marijuana for medicinal purposes, would strict scrutiny have been applied? If strict scrutiny was applied, would the federal government lose this case?
Even if you can think of no way in which a Constitutional right could have been developed in the Raich case, there is no reason to believe that it won't come up in the future. So, when you hear or see someone say that this is the end of the medicinal marijuana argument, guess again.
Anyone who has any pointers as to why strict scrutiny could not be applied, or why the federal government would still win the case if it was applied, please leave some comments.
Also, my post the other day relating to dispute over the economic effect of medicinal marijuana becomes completely moot under a rational basis test. The fact that the economy would be changed in one-way or another, (which everyone seems to agree on), puts medicinal marijuana squarely under the authority of the Commerce Clause.
[Update: Medical necessity is not a defense as shown by the opinion in UNITED STATES v. OAKLAND CANNABIS BUYERS’ COOPERATIVE et al. That doesn't mean, however, that there isn't a defense that could require strict scrutiny.]
Like Ann Althouse, I disagree with J and Balko - I don't think there's anything wrong with Justice Scalia's concurrence from a logical federalist perspective. As she writes, Commerce Clause jurisprudence is probably best conceptualized as dependent upon "whether the regulated intrastate activity is part of a connected web of interstate activity." It's pretty clear that legalizing any marijuana risks having a significant impact on the interstate market, or at least clear enough to provide a rational basis. Lines like David Bernstein's just ain't fair.
As far as Radley's rant goes, he's about half right. A balancing test in a gun rights case would pretty obviously be a little different, since the individual's claim to the right to own a gun is much stronger than his claim to the right to own pot. But that's not even relevant to the Lopez issue, since what Congress was trying to deal with was violence in schools rather than the gun trade. As Ann points out, that's not a problem that needs a holistic solution. Violence in schools is a pattern, not a web - a string of facially similar events, not a connected market. Tough school area gun laws in Harlem don't undermine laws that let Vermonters carry guns to school to fight off the bears they'll meet on their way. Marijuana simply doesn't work the same way, so the analogy doesn't hold.
I think the best stuff comes out of the Raich decision is from Justice Thomas. One great aspect of anonymous posting is little fear of any sort of persecution based upon my beliefs. So, I choose not to follow my co-blogger's example and ascend my soapbox.
Thomas nailed it when he points out that the Websterian definition of commerce of "production, distribution, and consumption of commodities" subjects quite a bit to Congressional control. Combined with Wickard, I'm not sure what isn't within Congressional control.
Randy Barnett's example during oral arguments was sex within a marraige. Is this not the production/consumption of a commodity, just as prostitution? From my point of view, the majority never answered the question.
Radley Balko has some thoughts on Scalia's concurrence. I think he's dead-on, especially when he ties the opinion to Lopez. Lost in all this will be the fact that in a case very dear to a substantial contingent of conservatives, two signficant things happened - (1) Scalia sided with the liberal wing of the court, and (2) Thomas wrote vigorously against him.
I love the hint of the different personal opinions on whether medical marijuana should be permitted -- as opposed to the jurisprudential opinions regarding whether states ought to be able to have a policy on it that conflicts with the feds' -- in the Raich decision. Justice Stevens seems to be at pains to express sympathy for the suffering of medical pot users and the possibility that pot has been mis-classified by Congress. In contrast, O'Connor flatly declares "If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act."
Should anyone be wondering why Stevens calls upon medical marijuana users and their supporters to seek change through political means --
We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress-- when he did not make a similar recommendation for sodomites, keep in mind that the Lawrence plaintiffs argued for a right of privacy, which is anti-majoritarian. Raich does not argue for a right to consume pot, only for California's ability to permit it against a Congressional ban.
(I ran a Google search on Raich just now, and "Supreme Court sides with states in medical pot case - San Francisco Chronicle" popped up, even though the story linked is correct, with the headline "Supreme Court: Feds can prosecute medical pot users." Wishful thinking by someone at the SF Chronicle's online staff, I suspect.)
Today in History (1934) - President Franklin D. Roosevelt signs the Securities Act of 1933 into law, establishing the Securities and Exchange Commission.
[Jed Sorokin-Altmann] A decision was issued this morning in Gonzales v. Raich. The Supreme Court has ruled that California's Compassionate Use Act, which authorized limited use of marijuana for medical purposes, can be trumped by the federal Controlled Substances Act. It was essentially a federalist/states' right decision, with Stevens, Kennedy, Souter, Ginsburg, and Breyer in the majority, Scalia concurring, and O'Connor, Rehnquist, and Thomas dissenting.
Leaving my own position on medical marijuana undiscussed, I must admit that I was surprised by this ruling. Although the majority opinion, written by Justice Stevens, attempts to distinguish this case from United States v. Lopez and United States v. Morrison (which involved the Gun Free School Zones Act of 1990 and providing a civil remedy under Section 13981 of the Violence Against Women Act of 1994, respectively), Stevens' opinion does not really give a solid explanation of what precisely is the criteria for when Congress does and does not have authority under the Commerce Clause to regulate an activity.
According to Justice Stevens (and the four justices who joined his opinion), in Lopez and Morrison, there was no commerce involved in those two cases, and there is commerce involved here. But as Justice O'Connor accurately points out in her dissent, there is no evidence that allowing person growing, use, and possession of medical marijuana has any effect on interstate commerce. These three cases stand in opposition to each other, despite what Stevens may claim, and now there is no bright line protecting "historic spheres of state sovereignty from excessive federal encroachment," as O'Connor put it.
My thoughts are that the government probably shouldn't be in the business of telling you what's good or not, even when it comes to the other kids. Mom wouldn't get arrested had instead she rented a rated R movie for the kids to watch. Why arrest her here? Because we've passed some arbitrary morality line where now the government can intervene? Bah.
[Jed Sorokin-Altmann] MSNBC reports: A mother was arrested on charges of contributing to the delinquency of a minor and involving a minor in obscene acts. The boy's father, the stripper, and two others face charges as well.
Although I'll admit that at first glance, the thought that went through my head was "what was that mother thinking!", upon further reflection, it seems that she does have a point. There's nothing inherently wrong with nudity, afterall--if the family went to a nudist colony to celebrate the kid's 16th birthday party, it seems clear that it would be under the parents' discretion. Why shouldn't a parent be able to make a choice over whether or not to hire a stripper for their kid?
On the other hand, while I might, might, be able to see the mother's point when she says "[w]ho are they to tell me what I can and can't show to my own children?", I think any such argument falls apart when one takes into account the presence of the minors at the party who were not related to the family (unless the minors' parents knew about the stripper and approved of their kid going, at least).
Anyone have any thoughts on this one?
No this isn't some hysterical rant against the de facto exclusion of the indigent from the legal system, but it's pretty damn close. I noticed the dilemma earlier today during when a former clerk for my judge commented that she feels uncomfortable in private practice because she can't research issues as much as she would like to, in part because her clients are non-profits who don't want to see too many billable hours (and by too many I assume 3).
But I doubt the problem lies with the client's desire to keep costs down. Why does it cost so much to look up the law (however defined by lexis and westlaw reps)? This is such a fundamental part of the practice of law. I probably spent 2400 hours researching for my brief last semester. Even then I don't think I found all the relevant cases. I just know I looked at a lot more cases for a simpler problem than any practicing attorney faces.
Similarly, the costs of attorneys for the time they spent researching is probably even more responsible for the law on the cheap practice that's prevalent in the private sector. Fundamentally there is a great disconnect between law school and actual practice (among many such disconnects) where constant research for that perfect case that's on point is an automatic must in one, but a dream worthy of camelot in the other.
There's always the stopping time option.
*Disclaimer the First: This is based on actual events. Only the names, dates, places, and actual events have been changed.
**Disclaimer the Second: This work may greatly resemble that of Helen Fielding, and that's probably not a coincedence.
~Thursday, July 7
142 lbs. (ugh!), alcohol units: 2 (v. g.), calories: countless, minutes spent getting ready for work: 87 (not bad at all).
6:00 a.m. Waking up is overrated. Exactly why snooze buttons were invented.
6:07 a.m. Beauty of snooze buttons is that they can be utilized more than once per morning.
6:14 a.m. Will just hit it once more.
6:21 a.m. Maybe just one more time.
6:28 a.m. Gah! I'm going to be late for work!
7:52 a.m. Arrived at work with few crises, my hair notwithstanding. Will just pull it back into ponytail in the bathroom at work and use some water on the fly-aways.
7:55 a.m. Hmmm... fly-aways don't seem to want to cooperate. Will just use a bit more water.
8:02 a.m. Was startled by Dorian, the senior law clerk as he banged on the door to kindly reminded me that I was going to be late for the morning meeting.
"What were you doing in there," he asked as I opened the bathroom door, "dunking your head in the sink?"
Looked in mirror only to find to my horror that my white blouse was soaked and my pink polka dot bra was clearly visible through it. No matter; that's what blazers are for.
8:15 a.m. Morning Meeting with Judge Simmons. Hair is dripping. Blazer is quite wet. Have decided that from now on will keep hairspray in office bathroom, just in case. Tap water obviously not answer to typical hair crisis. Wonder briefly if this has something to do with too many minerals and things in the water or maybe even acid rain. Am about to have profound moment of clarity, possibly leading to the answer to world's pollution problem when Judge Simmon's interrupts my line of thinking.
"And you, Ruth?"
"I beg your pardon, Judge?" I reply nervously.
"Do you have anything ready for me to sign?"
"Oh. No, Judge, not this morning."
"Very well," he said, getting up from the conference table. "Dorian, can you grab me the file on Mr. Frank? There's something I wanted to take another look at. Oh, and Ruth?"
9:00 a.m. Am finally dry and crazy hair is under control. Judge Simmons was kind enough to let me sit out the morning settings so that I could dry off in my office and not have to endure the ridicule of the U.S. Marshals. Ever since that mishap with my skirt a few weeks ago, they've never missed an opportunity to tease me. Imagine they would've had a hay day with my pink polka dot bra given the chance.
Have new work assignment as well. Memorandum opinion for defendant's motion for summary judgment. Sounds... involved. Most of my writing assignments thus far have been jury charges, which aren't difficult for anyone who knows how to read a template and change the pertinent parts. Am sure, however, that Dorian would not have assigned it to me if he didn't think I could handle it. Will get started on it right away.
9:35 a.m. Have just retreived several volumes from the library that look like they could be useful. Oh, look! Email from Ryan (possible soon-to-be boyfriend) wanting to know if I'm free for dinner. Am not actually free for dinner as have plans to go out with the girls tonight. Seems rude not to at least email him and let him know and suggest tomorrow night instead. Should only take a moment, and then can jump right into the Land of Summary Judgment.
9:45 a.m. Hmmm, completely forgot that he's going out of town on business tomorrow. Probably why he wanted to have dinner tonight--so that he could spend some time with me before flying off to Miami. Quite thoughtful of him, really. Now, however, will seem heartless or (ever worse) disinterested if cannot make it tonight. And since disinterest is certainly not the case here, suppose that perhaps I should call the girls and see if they mind terribly if I skip out on them tonight. Only then they'll hate me for choosing a man over them, which of course breaks Friendship Rule Number 12(b)(6): A woman shall not break a Girls' Night Out date except under extraordinary circumstances, ennumerated below. While not necessary to list possible exceptions, let it suffice to say that going to dinner to possible soon-to-be boyfriend is not one of them. Hmmmm... am faced with quite a dilemma now.
9:57 a.m. I've got it! Will tell the girls that am feeling under the weather and then suggest dinner at my place to Ryan so that the girls don't see me out and about after telling them I was sick. Am social genius!
10:00 a.m. Only, what if the girls decide to check up on me and bring me chicken soup and find me at home not sick, but
making out having dinner with Ryan instead? Then have violated Friendship Rule Number 4(k)(1)(A): A woman shall never lie to her friends to get out of something. Will obviously have to think up something else.
10:10 a.m. Of course! I tell the girls I'm not feeling well and then suggest dinner at Ryan's. If the girls come by my place to check on me, will just tell them that Ryan picked me up in order to take care of me at his place because he had plenty of chicken soup there. Yes. That will work. Will just call the girls, email Ryan, then get to work on summary judgment.
10:30 a.m. Hmph. Just got this email from Ryan:
Hey, beautiful [Editor's note: He called me beautiful!], I really wanted to have dinner with you tonight, but my boss just handed me another account that he wants taken care of before I leave for Miami tomorrow. Looks like it'll be a late night at the office tonight. How about lunch Monday when I get back?
Normally this would be good thing, as could now have fun night with the girls after all. Problem is that I already called the girls, faking a cough and telling them to go out without me and insisting that they have a good time and not worry about checking up on me. Now I've no date and no girls' night out.
Maybe there are some good movies out on video.
Back to this summary judgment problem.
11:00 a.m. Meh. Chipped a nail. Actually left a fairly sharp edge as well. Should probably file it before accidentally slice open major artery with sharp broken nail.
11:10 a.m. Nice and filed down. Only now rest of nails look too long in comparison. Should just go ahead and file them all down now. After all, must always look my best in the courthouse as representing judge and all.
11:45 a.m. Much better. Feel presentable once more. Can finally jump into this summary judgment problem. Was pretty good at civ pro in my day. My day meaning this past semester. Expect to be able to knock out assignment in record time. Will be Queen of Summary Judgment and resident expert in subject.
11:55 a.m. Hmmm, this is not much like the hypotheticals on recent civil procedure exam. May not be as easy as originally thought. Never fear, however. Am Ruth Ginsey, brilliant law student and competent judicial intern!
Noon. Ooooh, lunch. Finally. I could certainly use a break.
1:00 p.m. Right. Must really buckle down and work on summary judgment thingie. Turns out Dorian would like a draft by tomorrow, but I haven't even finished reading the case file. Gah!
2:00 p.m. Must. Stay. Calm. Read case file and pulled a couple volumes of the USCA. Certainly there's something in there to tell me what to do.
3:15 p.m. Have decided appellate judges are some of the worst writers ever. I mean, really. Didn't anyone ever tell them to read Legal Writing in Plain English? None of this stuff makes sense.
3:45 p.m. Just had horrible thought. What if all of this does make sense and I'm the only one not getting it? Is this a sign from above that I'm just not cut out to be a lawyer? Or a judicial intern even? Have just never seen a case this complicated, but at same time know that Dorian would not assign it if he didn't think I could handle it. Convinced now that am of below average intelligence and is fluke that I got into law school at all. Should probably just resign myself now to being cab driver or exotic dancer (once rid of cellulite and flab on tummy, of course).
4:15 p.m. Dorian walks in. "Hey, Ruth, do you have the Winston file? I can't find it anywhere."
Sometimes am really annoyed by Dorian's poor attempts at humor. As if he doesn't remember assigning it to me just a few hours ago. But will play along as do not want to be a bother. "I've got it right here, but I don't think..."
"You have it? Oh, good. I thought I'd lost it. But, why do you have it?"
Please, Dorian. This is getting rather old. "You assigned it to me this morning, remember?"
Dorian laughed. I, however, fail to see the humor.
"Ruth, I assigned you the Wilson case. The Winston case is really complicated. I would never give that to an intern in their second month on the job."
4:55 p.m. Hurrah! Have just finished reading Wilson file and am quite confident that I'll be able to give a draft to Dorian by tomorrow evening. Am true legal genius! Will get started on it right away and even work late if I'm on a roll.
5:02 p.m. Oh, goody. Time to go. Hope traffic isn't too bad on drive home.
I've been aware for some time but forgot to mention here that Tim Sandefur no longer will be posting at Freespace, though he continues to blog at Liberty and possibly Panda's Thumb. He's leaving Freespace up, as did the Curmudgeonly Clerk with his blog, so I will be adding a link to a list of blogs that have been on De Novo's roll and are not currently updating, but that have archives worthy of the perusal of those who are new to them.
I'd like to follow Jason's example and introduce myself. My name is Jed Sorokin-Altmann, and I am a 0L. I'm currently scheduled to start at Northeastern Law School this Fall, but also on several waiting lists (so you know its going to be a long summer!). I intend to post throughout the summer and beyond, if PG likes my writings, that is. My interests are primarily constitutional law, criminal law, and appellate law, although I am a generally curious person and like learning about everything.
To start things off, one item of interest comes from Massachusetts Lawyers Weekly. On Friday, a jury in Boston's Housing Court issued a verdict that held that "cigarette smoking in a rented condominium unit is a legal nuisance - a case that appears to be the first of its kind in the country." The unusual aspect here is that smoking is allowed in the building.
Given that the lease allows smoking and that the landlord knew the tenants were smoking, I find it hard to agree with the reasoning that the smokers somehow breached their lease. The complaining tenants chose to live in a building that allowed smoking. While I don't understand why anyone would smoke, and I don't believe people should smoke in public spaces, people should be able to smoke in their own apartments when the lease allows smoking!
Prof. Eugene Volokh wonders at Ninth Circuit citation to Lawrence in the context of a Fourth Amendment arrest warrant case:
Still, I was puzzled by this argument:
Quaempts, however, was in his bed, the sanctuary of the right to privacy. See Lawrence v. Texas, 539 U.S. 558 (2003).
Really? I know people use "bed" as a reference to "sex," and I know lots of sex goes on in bed. But surely Lawrence isn't so limited -- presumably sex on the rug, the counter, the kitchen table, or even up against the door (granted, from the inside, with the door closed) is just as covered by Lawrence as sex in the bed. Is this just a little bit of absurdist legal humor, or did someone get carried away with analogies here?
Or perhaps this might add another answer to the old Why do Baptists not have sex standing up? joke -- because it's constitutionally unprotected.
I agree that Lawrence was meant to cover the right to sexual intimacy in all private places (though I would have picked a couch rather than the various less-comfortable locales Prof. Volokh mentions), but I think the reference to beds and Lawrence may have been drawing on a longer line of symbols. Kennedy's opinion references the bedroom twice:
In Griswold the Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. [...]Whether Lawrence and Garner were in the former's bedroom or some other place within his apartment is not stated in the opinions. Still, the implication is that if a man's home is his castle, his bedroom is his sanctuary. As I incline to the romantic interpretation of Kennedy's opinion, perhaps the bedroom also symbolizes a greater degree of intimacy and privacy; it generally is not considered one of the "public" spaces of a dwelling. Someone who lives in a trailer that essentially is just one room thus discloses his whole private space as soon as he opens the door.
A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male.
For a truly odd citation to Lawrence, I'd submit the plaintiff's argument in Westhab, Inc. v. City of New Rochelle that Lawrence "has set forth a new Due Process standard for zoning ordinances."
[Jason Samuel] Two cases yet to be decided by the Supreme Court that might be of interest to our readers are the McCreary and Van Orden cases. Since both are about religious displays, they're both Establishment clause issues.
McCreary County v. ACLU
Argued: March 2, 2005
Facts of the Case
The American Civil Liberties Union (ACLU) sued three Kentucky counties in federal district court for displaying framed copies of the Ten Commandments in courthouses and public schools. The ACLU argued the displays violated the First Amendment's establishment clause, which barred the government from passing laws "respecting an establishment of religion." The district court and the Sixth Circuit Court of Appeals ruled the displays violated the establishment clause.
Do Ten Commandments displays in public schools and in courthouses violate the First Amendment's establishment clause, which barred government from passing laws "respecting an establishment of religion?"
Van Orden v. Perry
Argued: March 2, 2005
Facts of the Case
Thomas Van Orden sued Texas in federal district court, arguing a Ten Commandments monument on the grounds of the state capitol building building represented an unconstitutional government endorsement of religion. Orden argued this violated the First Amendment's establishment clause, which prohibited the government from passing laws "respecting an establishment of religion." The district court and the Fifth Circuit Court of Appeals ruled against Orden and said the monument served a valid secular purpose and would not appear to a reasonable observer to represent a government endorsement of religion.
Does a Ten Commandments monument on the grounds of a state capitol building violate the First Amendment's establishment clause, which barred the government from passing laws "respecting an establishment of religion?"
I'd like to introduce myself to you as a new, contributing blawger. My name is Jason Samuel, and I have just finished my first year of law school. As you can well imagine, or know from experience, my first year did not leave me with much time to blog. I've turned to the blawgosphere only now as a cathartic exsercise in the shadow of finals, but before I head to work for the summer.
It's my intention to post consistently throughout the summer among three sites: Objective Justice [for which Sean, a recent contributor here as well, has provided], my own blawg, Unlearned Hand [though I am well aware that someone else has this domain registered, he has refrained from using it as a handle], and this one, De Novo. Though some newsworthy points about which I'd like to post overlap, I will do my best to not repeat and to stick to the missions of the respective blawgs--if any.
My interests, in as afar as this site's readers may be interested, are in philosophy of law, natural law, and Catholic legal theory. Of course I am interested the various competing jurisprudential "schools," but really besides just generally, only insofar as they intersect or conflict with natural legal theory.
Hi. I'm a 3L at a major East Coast law school. Like Mike, I've got a poker addiction. (Hi, Mike!)
Orin Kerr offered some thoughts over at Volokh Conspiracy today about the mechanics of group blogs and expectations of style and viewpoint consistency. In that sense, perhaps this trial period is an interesting experiment - a group blawg where few of the blawgers know each other, few have communicated, and the blog is sort of fumbling around for a unifying theme (or themes).
I'll try to contribute to general unity by referencing the same case Sean did yesterday (and Eugene Volokh did the day before), in which Wiccan parents were enjoined against exposing their child to "non-mainstream religious beliefs and rituals." I don't want to focus on the instant case, because my moral intuitions about it are similar to theirs, but to discuss vouchers and recognition of holidays and other areas where government involvement with religion has been found permissible.
I suspect most of us agree that the government shouldn't choose between religions. But (to take perhaps a slightly more extreme example), most of us would also be appalled by our tax dollars financing displays for Satan Day on government property and aiding St. Satan's Parochial School instead of St. Stephen's. But we tend not to be appalled by menorahs, creches, or the Nebraska House Chaplain.
I've got some thoughts on trying to flesh out such a distinction, but I'd be curious to hear what Sean (and any commenters) think. And despite my nom de guerre, I promise not to focus too heavily on church/state issues - you should expect to see a great deal more about international law and criminal law than the Establishment Clause from me. Regardless, I'm looking forwards to blawging here, and hope to get lots of feedback from all of you. Thanks, PG, for the opportunity.
Today is the last day you can comment on the FEC's proposal to apply campaign finance rules to online speech. Do what you can.
I am convinced that if I had done better in class, this case would make more sense to me. There are identical twin brothers who both participated in a crime, the kidnapping of a 9-year-old girl for the purpose of rape. The DNA of the semen left in the child could belong to either one. The prosecutors already got Hugo to plead guilty to aggravated sexual assault and aggravated kidnapping in return for 15 years and a promise to testify at Aldo's trial. Aldo, for his part, must overcome a videotaped confession in which he demonstrates how he raped the girl.
What confuses me is that if the child reported and the evidence demonstrated her being raped by only one person (the news story is unclear on this point), how can the prosecution plausibly go after both brothers for the sexual assault itself? If Texas if is like Louisiana, the prosecution could seek the death penalty for raping a little girl, but the jury is likely to be disturbed by the idea of convicting Aldo if Hugo has admitted to the crime.
While introducing herself, Ruth said, "PG said I can post on whatever law/school topics I want, and as often as I want. I think that must have been an automatic reply email, as I would like to believe that most people of sound mind wouldn't give me anything that even resembled free rein over a blog."
The soundness of my mind is debatable (just ask my family), but I was indeed giving Ruth and our other guest bloggers the same latitude that the De Novo contributors "Sitting in Review" enjoy. And to prove it, I will write something very stupid inspired by Ruth's remarks about her physical and psychological discomfort in lawyerly clothing, and encourage our guest bloggers (along with all readers, of course) to offer amendments.
Damn, I Feel Like a Lawyer
to the tune of Shania Twain's "Man! I Feel Like a Woman!"
I'm going in today, it's gonna be OK,
Gonna look just like the rest.
Wanna wear flip-flops, or pair of high-tops
But nice heels always are best.
All inhibitions, courthouse conditions,
Guard says, "Back into line,"
If I don't act politically correct
They'll note it at hiring time.
One more thing about being a lawyer
Is the requirement to look all grown up and...
No, no, no, do nothing crazy -- and don't be lazy,
Silk shirts -- wool skirts,
No, no, no, I can't go wild -- I'll get the partners riled
Go, go, go, get in the action -- make the transaction
Pull back my hair, call the au pair
Oh, oh, oh, I wanna be free -- but right now the way I feel
Damn, I feel like a lawyer.
Summers are on break -- tonight we're gonna take
The whole class out on the town
No need here to think -- go ahead and drink
But we're watching if you're a clown.
That's the way it goes
Can you feel it
Scratchy feel of hose
I feel like a lawyer.
... turn to class selection. And this article, which I seem to be the only blogger to have missed when it first came out, is beginning to seem less a tale of absurd extremity by those silly NYU folks, and more like something that could happen at any law school. One point that wasn't covered in the piece, perhaps because it was not applicable to the particular courses for which Jay Wilson bid, is the stampede for courses deemed necessary to particular career routes. For example, I've heard Federal Courts is a quasi-requirement for a federal clerkship, which in turn can lead to hefty bonuses at some firms. So a student bidding for courses that eventually will reap him financial rewards is investing not only in his ivory tower education, but also in his future earnings.
This reminds me of something I read when I was taking a lot of interest in the Match (medical students into residency programs): certain specialties pay so well once one enters practice, that students would be willing to pay for slots in those residency programs. One may make a similar observation of law school admissions; graduating from certain schools, even if one didn't do very well, guarantees a job and so students are willing to pay very high fees for that diploma.
Of course, the residency programs select on the basis of grades and scores, not on students' bribery, and ditto for law schools, but the less noble level at which education is an "investment in yourself" does evidence itself. People who consciously choose to attend their state schools instead of higher-ranked but more-expensive private ones often cite the desire to avoid incurring so much debt and thereby being pressured into highly paid but unfulfilling work.
Today in History (1960) - In Gideon v. Wainwright, SCOTUS rules that all accused persons must be given the right to an attorney.
From the best international blogger I know comes a list of "ten most influential courts in the modern world." He caveats,
As always with these lists, the things that make a court "influential" are partly in the eye of the beholder. My rankings were based on a non-exhaustive list of characteristics including influence on their own countries' law, influence on law elsewhere in the world, development of legal concepts, courage in maintaining the rule of law or applying it under difficult situations, and presence of important legal thinkers: take them for what they're worth.In order, they are: International Court of Justice, European Court of Human Rights, SCOTUS, Judicial Committee of the Privy Council (of which, to be honest, I'd never heard before now), South African Constitutional Court, Supreme Court of Israel, Hungarian Constitutional Court, Egyptian Court of Cassation, High Court of Australia and Supreme Court of Canada.
Mark A. R. Kleiman has a post entitled The Supreme Court meets illicit-market economics from June 1 that was very interesting. As much as I disagree with the opinion in Wickard v. Fillburn, and as much as many of the Justices disagree with this ruling, Kleiman hits on a point in his post that makes the Federal position much stronger:
-[Note: Mark Kleiman does not seem to think this is likely to happen although he addresses it as follows.]
(Of course, that's only a partial analysis. If having an exemption for medical pot made cases against people growing pot for the non-medical market harder to investigate and prosecute, the result might be to reduce the effective level of enforcement pressure. And if the existence of a large, open medical-cannabis market somehow increased demand for cannabis for non-medical use -- for example, by making the drug seem safer to potential users -- that might easily swamp any direct effect of removing patients' demand from the illicit market.)
Potentially, allowing a market in marijuana even for medicinal use may make it harder to prosecute recreational users. This would in turn drive prices down for illicit marijuana across the country. Thus, this state policy becomes a matter of interstate commerce, and the Justices can eliminate Wickard from their opinion and still find for the Feds.
Why will it drive down prices? Mark Kleiman seems to think that even if the preceding scenario were to happen, the proportion of illicit marijuana in California would have no substantial impact on prices nation-wide. He argues that:
In the case of marijuana and other illicit drugs, the dominant cost facing any producer is the cost imposed by law enforcement (employees and principals alike need to be compensated for their risks of arrest and imprisonment) and the cost of evading law enforcement.
Roughly speaking, the enforcement risk faced by the average drug transaction depends on the ratio of the volume in that market to the enforcement effort devoted to suppressing it. If there's one dealer on a street corner and one cop patrolling it, the dealer is much more likely to get busted than if the same cop confronts 100 dealers. That "safety in numbers" principle is why prey animals herd.
So if we take some of the demand out of the illicit marijuana market in a way producers in that market can predict, they will likely reduce the amount they produce. If we leave the enforcement effort constant, each remaining kilogram of pot faces more law enforcement. Thus we would expect the price of illicit pot to rise (trivially, as Barnett noted, because the proportion of total cannabis demand that is "medical," even under California's loose standards, is a small fraction of the total) as a result of removing medical demand from the market.
If it is harder to prosecute those in the illicit market in California, we can safely assume that the operating costs will decrease, but Kleiman posits that the dealers will reduce the supply available in California. Even so, because the cost of operating in California has decreased more illicit sales will take place in California.
This is the same operating principle that gives businesses that don't have to pay sales tax in another state the ability to offer the product for a lower price. In states where the operating costs of dealing marijuana are high, those dealers will have to compete against the California dealers. This in turn will keep prices down nationwide.
It may be true that the California dealers will decrease the supply they offer in California in order to keep the prices there artificially high, however the outcome will be to decrease the prices that would have been paid in other states.
For more information about this case check out Drug War Rant's stellar information.
Introductions out of the way - my name's J, I go to a law school, and I have a blog here. It irritates people. You've been warned.
So I'm starting my final year of law school in the fall, but before then, I have another diabetic summer to progress through. I'm not even sure the final year of law school can be considered significant. I haven't gone to class consistently since my 1L year, and my grades haven't moved. It seems that my colleagues don't give a crap either.
The only real challenge left then is making it through a summer of free dinners & lunches without sexually harrassing anyone. That, and completing GTA: San Andreas over the summer (I'm anticipating the Xbox release due in 6 days much more than I'm anticipating the Raich decision. I suppose that should tell me something about my chosen career).
Some say that law school's too long. I see their point now. The job hunt is virtually over for all, and I don't think lopping a year off would substantially alter any of that, other than making things happen a bit earlier. The classes one could possibly be interested have to be exhausted by now (I'm debating taking a class titled "Nigerian Regulatory Policy During the Cold War"). And plus, there's that whole tuition thing no one likes paying.
But I kind of like 3 years. Even though school sucks, work really sucks. I can't wait for my 3L year, all those hours camped in front of my Xbox, all those beers I'll drink when I should be in class, and all those afternoons I'll waste watching Charles in Charge reruns. I'll be living the Peter Gibbons dream.
Hello, my name is Sean Sirrine and I also am a blawger over at Objective Justice. I am currently a 0L, as I begin my structured legal education in the fall. I will be attending Lewis & Clark Law School in Portland where I plan on working for Doug Beloof in the Crime Victim Litigation Clinic. Now, to the meat and potatoes:
I recently read a story about an opinion from a state court judge that greatly offended me. Here's the crux:
An Indianapolis father is appealing a Marion County judge's unusual order that prohibits him and his ex-wife from exposing their child to "non-mainstream religious beliefs and rituals."
The parents practice Wicca, a contemporary pagan religion that emphasizes a balance in nature and reverence for the earth.
What is the definition of "mainstream"? I can't imagine that Buddhism, or even Hinduism, is mainstream in the U.S. Can the courts deny parents the right to teach these beliefs to their children? Our laws provide that our religious beliefs our outside of the realm of state control and yet certain judges still believe that they can enforce some form of Judeo-Christian requirements on the masses. The law doesn't say that you have the protection of the laws if you are a Judeo-Christian practitioner, but recently that is what the courts are saying.
In another story that you may have missed, the 4th District Court of Appeals declared that a Wiccan practitioner couldn't give an opening prayer for a legislative body:
Chesterfield has likewise made plain that it was not affiliated with any one specific faith by opening its doors to a very wide pool of clergy. The Judeo-Christian tradition is, after all, not a single faith but an umbrella covering many faiths. We need not resolve the parties’ dispute as to its precise extent, as Chesterfield County has spread it wide enough in this case to include Islam. For these efforts, the County should not be made the object of constitutional condemnation.
Perversely the court also made this comment against the Wiccan's argument:
In seeking to invalidate the Chesterfield system, Simpson effectively denies the ecumenical potential of legislative invocations, and ignores Marsh’s insight that ministers of any given faith can appeal beyond their own adherents.
So much for respect of all religions, I wonder what the American people would do if in some tiny hamlet Wiccans prevented any Christian prayers in their legislature or their judges refused to allow the parents to teach Christianity because it might confuse their children.
We have abundant reason to rejoice that in this Land the light of truth and reason has triumphed over the power of bigotry and superstition ... In this enlightened Age and in this Land of equal liberty it is our boast, that a man's religious tenets will not forfeit the protection of the Laws, nor deprive him of the right of attaining and holding the highest Offices that are known in the United States.-- George Washington, letter to the members of the New Church in Baltimore, January 27, 1793
Because law school and my blog - and my girlfriend, poker addiction, and drinking - promise to leave me with far too much free time in the coming year, I've decided to contribute over here as well.
By way of introduction, I'm Mike, and I'll be a 1L at Georgetown this year. So, I'm De Novo's resident rookie. Which makes you, in all likelihood, my internet mentors!
While the others Sitting in Review discuss substantive legal theory, the job market, and important examples of jurisprudence, I'll be here to serve as little more than comic relief.
And I have some killer drink recipes.
So from now on, when you miss Law Review or receive a C on your grade report, it was probably my fault. But take heart, for I will surely do the same when the chance arises.
I look forward to your comments.
The Intro Thing: Hello, my name is Ruth, and I'm a blawger. (Hi, Ruth!) I'm a rising 2L at the University of Texas. Though I'm only a baby blawger, I've been blogging about things other than law school for just over two years. I find it pretty addicting. PG said I can post on whatever law/school topics I want, and as often as I want. I think that must have been an automatic reply email, as I would like to believe that most people of sound mind wouldn't give me anything that even resembled free rein over a blog.
Today was Day One of my internship with a Federal District Court Judge for the Western District of Texas. Instead of the long, drawn out orientation stuff that I expected, however, we got to spend all day watching a criminal trial. Indeed the only real "work" I did all day was placing a jury charge packet on the seat of each juror. I'm pretty certain the real work will start tomorrow, but the trial was fun while it lasted.
I did learn something important today, though: I'm not sure law is the right field for me. I mean, I really find the criminal stuff fascinating, and I imagine that being in court would be quite thrilling. But I don't know if can handle wearing heels and pantyhose for the rest of my career. Hell, I don't know if I can handle wearing heels and pantyhose for the rest of the summer.
And the suits! Whose bright idea was it to make professionals wear long sleeves and dark colors during hot months? Is that to make us pay for the fact that we don't normally have to worry about manual labor? Did the goddess of business wear come down from on high and command the professionals to lift something heavy and then curse them to an eternity of wool suits when they refused?
Furthermore, at what point does business wear start to make you actually look like a professional? Because when I looked in the mirror this morning, I did not see a confident judicial intern staring back at me. Instead I saw a little girl playing dress-up in her mom's clothes. And when I got home this evening I still saw a little girl playing dress-up, only now the little girl's feet are sore because she was wearing heels all day.