October 29, 2005

Pre-Emptively Dismissing "A Lawsuit Waiting to Happen"

As much as I believe (pun unintended) in the separation of church and state, Americans United for Separation of Church and State must be living in an alternate precedential and current-court reality if the group honestly thinks, as executive director and attorney the Rev. Barry W. Lynn says, that prayer in collegiate football programs "is a lawsuit waiting to happen." A NYT article on the matter takes a disturbingly credulous look at the plausibility of such litigation having any success.

In 2000, the United States Supreme Court reaffirmed its decisions against officially sponsored prayer in public schools in a case involving a district in Santa Fe, Tex., where prayers preceded high school football games over the public-address system.
The 6-to-3 majority opinion by Justice John Paul Stevens said that even when attendance is voluntary and when the decision to pray is made by students, "the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship," which violates the establishment clause of the First Amendment.
That may be the law, but God has long played a prominent role in the game's mythology, from the postcards of the former Alabama Coach Bear Bryant walking on water, to the mosaic of Christ with raised arms on a Notre Dame library that looms above the football stadium and is known as Touchdown Jesus.
Sante Fe Independent School District v. Doe is good law, but what Lynn apparently failed to mention is that the Supreme Court consistently has distinguished between religious activity by public elementary and secondary schools, which are attended by minors under state mandate, and religious activity by public universities, attended voluntarily by adults. While Lynn frets about the pressure to go along with Christian observance that is felt by a football player who wants to please his coach, he seems to ignore that wanting to please a superior does not rise to the level of quasi-compulsion that the Court recognized as the problem in a line of cases: McCollum v. Board of Education, Engel v. Vitale, Abington School District v. Schempp, Stone v. Graham, Wallace v. Jaffree (though possibly narrowed by the Court's refusal to hear Brown v. Gilmore) and Lee v. Weisman.

Nor is there a will on this Court to overturn the distinction between minors forced to attend school and vulnerable to coercion because of their age, and adults who can leave the football program, and the college, whenever they want. To remove religious observance from occasions where only adults are voluntarily present -- the opening of the Supreme Court and Congress, for example -- likely would create an even greater outcry than that which greeted the Ninth Circuit's decision in Newdow.

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Today / 10.30.05

Happy 270th birthday to John Adams.

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Why Law Students Make Piss Poor Party Hosts

I think there's something wrong when three law students are worried more about possible lawsuits from using dry ice at a party than about the amount of booze. Just a thought.

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October 28, 2005


Oh I get it. Hmm looking back you'd think it would have been smart for Dems to fight for Miers, setting up the battle that conservatives had been hoping for, except this time they'd be the ones against the President. Oh well, live and learn.

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October 27, 2005

Next Victim, Please

If you haven't already heard...

Bush's Embattled Nominee to Supreme Court Withdraws
President Bush said he reluctantly accepted her decision to withdraw, after weeks of insisting that he did not want her to step down.
Bush's Statement | Mier's Withdrawal Letter (pdf)

The letter supports the Gabe Mendel/ Anthony Lewis theory of why Bush nominated Miers, the one that I've thought most plausible -- that she would be a judge who would give the Executive the widest latitude possible, not only (though most importantly) in its powers for the war on terror, but also in matters like Vice President Cheney's energy committee.

I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interests of the country.

As you know, members of the Senate have indicated their intention to seek documents about my service in the White House in order to judge whether to support me. I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy. While I believer that my lengthy career provides sufficient evidence for consideration of my nomination, I am convinced the efforts to obtain Executive Branch materials and information will continue.

As I stated in my acceptance remarks in the Oval Office, the strength and independence of our three branches of government are critical to the continued success of this great Nation. Repeatedly in the course of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process. I feel compelled to adhere to this position, especially related to my own nomination. Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield.

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October 25, 2005


A. Rickey bemoans the busyness that prevents him from joining in National Novel Writing Month. I once meant to do NaNoWriMo to get a novella finished, but never quite got going -- lack of external pressures.

That won't be a problem with the writing project I have planned for November, though. Yes, it's that time of year for 2Ls across the nation, as we find something worth writing about that hasn't already been written about. As we pick a subject that interests us and also fits neatly into one of our seminar paper requirements. As we look for a professor who has the time to advise us despite her own massive pile of research. As... well, anyway, I have a topic that has never been litigated and thus that no one would want to write about, that doesn't fit into my seminar nor workshop, and just started digging for faculty assistance.

On the plus side, the round of callbacks turned up nice folks who honestly sounded interested in the subject, so maybe I can tap them for tips up until I turn down their firms' offers. Writers, we are evil users even when we're not using making material of our families and friends. Incidentally, the Publishable Notes Manual recommends blogs as sources of ideas for Notes:

SCOTUSblog, at http://www.scotusblog.com: �SCOTUS� is a wacky-sounding acronym for �Supreme Court Of The United States.� (Well, it�s better than �SCUS.�) This blog is pretty darn good. In addition to gossip and updates about the Supreme Court and its cases, you�ll find information about big cases working their way up the appellate ladder; discussions of the ways in which new Supreme Court cases might impact the legal landscape; and links to commentary in the media, the academy, and the blogosphere.

The �How Appealing� Blog: http://legalaffairs.org/howappealing/. This site rounds up links to the latest appellate opinions---not all the opinions, just the newsworthy or controversial ones. The site also provides links to media discussions of appellate opinions. It�s a good place to find controversial cases, which in turn lead to areas of the law that are unsettled and therefore good places to find Note topics. The site isn�t organized particularly well, but if you wade through it you can find interesting ideas.

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We Believe in Yoo

[Note: Cross posted at Nuts & Boalts]

I'll definitely have more to say about this later, but this morning's disruption of Con Law by those who can't live without a cause to fight for really pissed me off (as many noticed). If you weren't around this morning, about half a dozen protesters stormed into Booth, where Prof. Yoo was in the middle of asking me a question, to protest his torture memos. Yeah I know, some people still live in the past. I'm glad my classmates were for the most part in agreement that the means was not appropriate. I'm also glad that others have contacted Prof. Yoo to offer to come early tomorrow to make up for the lost time.

And that is what really irked me. Disrupting a class is disrupting a class is disrupting a class. I can agree with your message ad infinitum, but you are in the wrong for disrupting a class. This was something the protestors could not fathom. Neither could some of my classmates, with one saying "well, it's civil disobedience." The premise of civil disobedience is breaking a law you disagree with as a way to demonstrate its wrongfulness. If the protestors disagree with the university regulations and state laws prohibiting disruption of class, then they're welcome to break those rules and face the consequences. But they broke those rules and laws for other reasons that have nothing to do with disrupting class. They acted selfishly to promote their own cause. As important as they perceive their cause to be, they cannot steal our time from us... that is, without paying for it. I'd really like to know where they live. Let's just say the strobe lights and bull horms will be out in force. I am a champion of classroom time and feel that no hour of the night is too sacred to get my message across.

More seriously, the crux of the protesters' argument was that John Yoo should not be teaching here. I couldn't disagree more. He WAS a tenured professor here when he took leave to work at the DOJ and returned to that position. Tenure is such a sacred position for a reason. But of course those whose knee-jerk reaction is to disagree with a person without much thought tend not to respect such concepts as tenure or academic freedom. Frankly, these people are worse than the Bill O'Reillys of the world who went after Ward Churchill. At least Bill O used his bully pulpit and didn't disrupt Churchill's classes.

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Feminism Ruined Me for Other Men

Or rather, the Journal of Gender & Law seems to have ruined me for other journals. Nor is it just me -- friends on the Law Review and other publications have told me that they miss JGL. The trouble with a journal run on feminist principles of avoiding hierarchy as much as possible, giving everyone a voice and making decisions on a collective basis is that you get addicted to the damn thing. This is particularly dangerous to 1Ls, who don't know what non-feminist journals, i.e., all the others, are like.

After a year spent reading articles and voting on their acceptance, spending all of one's journal work time on source-gathering, cite-checking and blue-booking is less inspiring. I'm honestly surprised that most journals seem to manage to motivate their staff members without giving them the direct investment of taking part in major choices, which investment makes the gruntwork feel worthwhile because it's a necessary part of the larger process in which one has gotten to play a role. One sometimes has to do that work on an article one dislikes, but that's only part of the job instead of the whole thing.

There are sound arguments for why 1Ls have no business taking part in the decision of whether an article should be accepted by a journal. If, as Richard Posner declares, law students are unfit to be running the journals because of their inexperience and limited knowledge, people who have just begun law school presumably are even more unworthy.

Still, being given more responsibility than I ought to have had was good for me, if not for the quality of the publication. I became familiar with the major and oft-cited texts in feminist legal theory and sharpened my editing skills tremendously. Moreover, this style of running a journal, though perhaps unsuited to the Law Review, doesn't appear to have harmed JGL; I don't recall the 1Ls' ever voting down a majority of the senior members' preference. The weight of greater experience and knowledge comes out in the discussions that occur before a vote is taken, though this doesn't always work out as you might expect.

As a general rule, the 2Ls and 3Ls who have taken constitutional, family, labor or whatever law is implicated in a given article will have more to say about whether it's any good. But sometimes 1Ls have surprisingly useful background information that would go unmentioned in a cabal comprised solely of upperclass students. For example, I attended one submissions meeting where a piece dealing with religious law had left me unsure; though not fantastically written, it made what struck me as an interesting and useful argument. The 1L who raised her hand to discuss it first, however, changed my mind completely as she listed its demerits of overreliance on sources that were now considered out-of-date in the field, and its lack of an original statement as it cribbed the argument from well-known scholars.

The specialty publications have an advantage in recruiting 1Ls because they'll tend to get people who are interested in the specific subject, so that on a journal of gender & law, 1Ls with a prior interest in the topics on which the journal publishes will be overrepresented and thus shine more than a random selection from the class likely would. The law reviews, which publish on everything from trademark to administrative law, may not find this same use for the newbies, and in any case would lose all their credentialing status.

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October 20, 2005

Today / 10.21.05

Today in Women's Political Power (1945) - Women are allowed to vote in France for the first time, and Argentine military officer and politician Juan Per�n married actress Evita.

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Nitpicking November Legal Affairs

Having been so generous as to give a free copy of their latest issue to every student in the law school, Legal Affairs must have been prepared for getting more silly criticisms than usual. In editor/ president Lincoln Caplan's page 1 article, Litmus Tests, he asserts in the final paragraph, "Every Supreme Court justice was a former federal appellate judge when Roberts went before the Senate to become chief justice."

If we assume that Sandra Day O'Connor is still a Supreme Court justice, this is not accurate. According to the Cornell SCOTUS website, O'Connor's judicial career was as follows:

Elected judge of the Maricopa County Superior Court, Phoenix, Arizona. and served from 1975 to 1979. Appointed to the Arizona Court of Appeals by Governor Bruce Babbitt and served from 1979 to 1981. Nominated by President Reagan as Associate Justice of the United States Supreme Court on July 7, 1981; confirmed by the United States Senate on September 22, 1981; and took oath of office on September 25, 1981.
At least Caplan gets his punctuation right, knowing that a singular noun is made possessive with an apostrophe and s, even when that noun already ends with an s. (And there is not an exemption for those who claim to be using British style.) In particular, I'm annoyed to see that massive media conglomerates can't even use their size to their benefit by making punctuation uniform. This Slate piece by Henry Blodget gets it wrong every time, but over in the righthand sidebar, the Washington Post headline "Senators Assail Miers's Replies, Ask for Details" is perfect.

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October 19, 2005


With Will Baude apparently occupied with matters other than Kelo-watching, I step in to pass along a note from my property professor, who lectured on the case (and Columbia's expansion plans for the Manhattanville neighborhood) today:

1. Apparently Congress just (today!) passed, as an appropriations rider, a ban on the use of eminent domain for the purpose of economic development by entities receiving federal funding. I can't find the exact wording or details yet.

2. Apropos of Columbia: It turns out that, under NY law, the use of eminent domain for Manhattanville would require a finding that the area is "blighted" w/in the meaning of Berman v. Parker (even though that is no longer req'd under the 5th Am.). That's the legal ground on which the battle may actually take place. So our "real case" may have been somewhat more hypothetical than I had thought.

A quick look at the Senate website turned up the bill, H.R.3058, which includes "(Sec. 949) Bars the use of funds made available in this Act to enforce the judgment of the U.S. Supreme Court in the case of Kelo v. New London, decided June 23, 2005, regarding the taking of private property by a local government for a public purpose (including commercial development)."

I'm actually not sure how funds would ever be used to "enforce the judgment of the U.S. Supreme Court" in a case like Kelo. I mean, it's not like the Court said that anyone was required to raze economically slumped areas, just that if cities wanted to do so, the Constitution wasn't going to stand in their way. My professor's assumption that Congress would pass something meaningful apparently was incorrect, as I can't discern anything in the language that would do that. In any case, the full text of the legislation that was reported in the Senate (H.R.3058.RS) shows that provision and many others as "struck out," so I can't tell what's going on.

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October 18, 2005

Recording Interrogations

It has been quite a while since I have blogged over here at De Novo and I must apologize. I will attempt to write here at least once a week from now on!

Blonde Justice is reporting that the New Jersey Supreme Court is requiring that all interrogations be recorded. This new system will be phased in over a period of years, beginning with capital cases. She got this information from the The Star Ledger, and I have to say that although I applaud this new system I think that it will make it incredibly hard for public defenders to get the courts to strike a confession whether it is coerced or not.

It seems to me that a jury is much more likely to convict someone who has confessed to a crime no matter how that confession comes about. (That is, absent any threat of force or actual force.) It is hard to see that the "truth" is something different from what the jury can for themselves see on a T.V. screen. The only good I see coming out of this is that the police are going to be less likely to play some of the games with suspects that they have in the past. However, the police will most likely institute new games that a jury will find acceptable and will lead to more acceptance of any confession whether or not it is the �truth.�

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October 16, 2005

Today's Miers Thoughts

1) I'm annoyed that people underestimate Harriet Miers due to her Texas affiliations, but I'm also concerned by potential excesses in Texans' circling the wagons.
2) I'm sorry to see Miers's being mocked, but I think the White House is partly responsible because the dearth of information is leading people to seize upon whatever is available.
3) Statutory interpretation comes up more often in Supreme Court cases than constitutional interpretation does, but one can, and as an admired judge generally does, have a theory for the former as well as the latter, and preferably one that is consistent between both.

For the links and extended discussion, see below.

1) As a person raised in Texas and still half-hoping to live in Austin someday, I'm familiar with the phenomenon of people from areas distant from Texas assuming that if something is in Texas and not football nor barbecue, it must be inferior. I saw it most recently when deciding between Georgetown and UT for law school last year, with well-meaning advisors telling me that I wouldn't get recruited by big non-Texas firms if I went to UT, and wondering how I could even be considering UT over Georgetown, despite Texas's having a better-ranked faculty.

The assumption that Miers couldn't have gone to a higher ranked school than SMU -- in particular, Ann Coulter's imbecilic LSAT comparisons to Harvard -- is a particularly ill-founded one even in an array of ill-founded assumptions. At the time of application, Miers was dealing with a difficult family situation, including illness and economic difficulties, so she may well have opted for the best local law school that gave her a scholarship instead of deserting her family and going into debt to attend another school.

Someone asked me what the opinion of lay liberals was on Miers, and I had to admit that the only person I'd read was Molly Ivins, who is mainly concerned with the abortion issue and thus considers Miers comparable to John Roberts and better than Edith Jones or Priscilla Owens. Ivins, herself a Dallas girl who has dealt with Coastal snobbery, was not likely to jump on the elitist bandwagon, and her view strikes me as sensible for a person with limited education and interest in the process of a candidate's constitutional theory rather than just the results thereof. Like Miers, Ivins also is a successful unmarried woman, and probably will stay off the weird Dowd/ Brown train of second-wave feminism that assumes Miers must have sacrified her personal life for her career.

However, this kind of reluctance to bash someone who shares characteristics with oneself also impedes me in assessing what the people who interacted with Miers before she disappeared into the White House really think of her abilities. With folks like Beldar justifiably asserting that their personal knowledge of players on the local legal scene enables them to speak more authoritatively about Miers, young Texpatriates like myself are left shrugging, "All right, your interpretation of publicly available documents must be more accurate than mine, so what's the point of trying to form any independent opinion if it all relies on how well acquainted I am with Texas judges?"

Texans are pretty conservative -- even the Democrats -- as demonstrated by former Texas chief justice John Hill, who was sent to the Democratic convention in 2000 as a Bush supporter, and now has been recruited for the selling of Miers. Layered atop their friendly feeling for Miers as a fellow Texan is some attachment to Bush and a defensiveness about non-Texans' superior attitude to Locke Liddell, SMU, the Texas Bar Association and every other institution with which Miers associated until 2001. How one digs under all this to get a genuine evaluation of Miers as a potential Supreme Court justice is more than I can compass.

2) The Washington Post reports that Miers is being ridiculed for her personal correspondence, and I can corroborate that people are making fun of her telling Bush, "You are the best governor ever." This is petty, and hardly indicative of Miers's legal writing ability; I wouldn't want my average blog post, much less courtesy correspondence, to be taken as an accurate test of how I'd compose a brief, memo or judicial opinion. In contrast to Miers, however, I do have writing samples of mock briefs, memos and even a judicial opinion (albeit one written five years ago for an undergraduate course) available for the perusal of those concerned about my writing ability. Aside from a horrifying moment a couple of weeks ago when I realized I'd been giving possible employers a moot court brief that included the phrase "primo facie," I've felt reasonably secure that these samples reflected well on me.

While someone still might have asked the Texas State Library to release personal correspondence, and some people probably would have taken the same jabs, much of the absurd attention given to this writing is born of frustration that there's nothing else being made public. If I refused to give firms a writing sample and they weren't able to dismiss me as a candidate for that refusal, they'd probably take to Googling me and digging up every blog post and undergraduate op-ed they could find -- which, taken by and large, don't come off nearly as well as formal work. The cases available on Westlaw in which Miers was counsel provide quite limited information on what kind of attorney she was, and the White House shows no signs of releasing any of the work she did for Bush. Free that information, and in the rush to analyze it the thank you cards will be forgotten by all except Leno and Letterman.

3) Juan Non-Volokh says,

Reading some of the commentary on Miers' qualifications (or lack thereof) to be a Supreme Court justice, one could get the impression that a fully formed theory of constitutional interpretation is the most important, if not the exclusive, qualification for a prospective Supreme Court nominee. I think this view is mistaken. Indeed, if anything the current Court, as a whole, lacks significant experience in many other areas of law that are just as important to the Court's work.
He goes on to note that constitutional law not only is required in few cases, but also that it does not necessarily have a greater impact on Americans' lives than the other decisions.

In comments, the main point being made is that constitutional law is particularly important because it cannot be overturned by the legislature. If the Court misinterprets a statute, Congress can pass corrective and clarifying legislation; if the Court misinterprets the Constitution, we must wait for amendment or a change in the Court's own decision. (And when Congress does try to correct the Court's constitutional interpretation, its legislation gets slapped down with another judicial decision.)

This is at least technically true, though in practice Congress doesn't seem to do much correcting. Another problem with Non-Volokh's argument that I saw was not addressed in comments, and that is the degree to which justices have theories of statutory intepretation as well as constitutional interpretation. These perhaps break down less obviously into conservative and liberal camps -- though even constitutional law isn't that simple, as we see with Scalia's seemingly liberal views on U.S. citizens captured as terrorists and criminal defendants' rights -- but I think there is at least as much consistency there as elsewhere. If one considers the intent of the people who wrote a constitutional provision to be relevant, then presumably the intent of people who wrote a statute is as well.

One example Non-Volokh gave of a non-constitutional issue that the Supreme Court must consider is "the proper standard of review in an antitrust case." The last SCOTUS antitrust decision I read was unanimous in its holding, but split in the reasoning. Scalia wrote for a majority that included Ginsburg, Breyer, Kennedy, O'Connor and Rehnquist; Stevens for himself, Souter and Thomas. Scalia asserted that a breach of the Telecommunication Act did not make for a claim under the Sherman Act, and that the Court was not going to extend Aspen Skiing. Stevens said there was no need to make decisions about whether the company's actions provided ground for a Sherman Act claim, because the person attempting to make it lacked standing anyway.

Where would Miers likely fit in this division? for that matter, where would John Roberts? I don't think we need to know whether they lean more toward Scalia's "let's going ahead and get this clear" or Thomas's "it's none of our business" model, or perhaps would have written their own concurrence or even a dissent. However, that our justices have a consistent and hopefully discernable way to decide similar cases seems to me desirable, and whether work as an advocate -- where one makes whatever argument is most likely to forward the client's interests -- helps one to develop such approaches is not clear.

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Almost Worse Than Ohio Nazis

Unlike the Illinois Nazis of Blues Brothers fame, the people who planned to march in Toledo on Saturday weren't "those bums [who] won their courtcase so they're marching today." In the mayor's plea Friday night for residents to ignore the march, he said the city wouldn�t give the Nazi group a permit to march in the streets but couldn�t stop them from walking on the sidewalks. Unfortunately, his words had little effect; an anti-Nazi protest turned into a riot, with vandalism, arson and assaults against police officers. The reportedly gang-driven violence was particularly ironic, as the Nazis claimed to be demonstrating on behalf of white residents beset by black gangs. This is an unsurprisingly racist view; a) would it be better if the gangs were Italian mafia? and b) gangs frequently prey upon targets in close proximity, so African Americans are more likely to be victimized by African American gangs. "Keith White, a black resident, criticized city officials for allowing the march in the first place. 'They let them come here and expect this not to happen?' said White, 29."

This implicit defense of such a reaction to an exercise of First Amendment rights strikes me as a greater threat than the Nazis themselves. A few dozen members of the National Socialist Movement, aka �America�s Nazi Party,� cannot do much harm as long as they remain nonviolent. A response of pitying contempt for them neutralizes their ability to influence others, whereas an exaggerated view of their powers makes them appear fascinating and worthwhile. On the other hand, an attitude that the government should suppress distasteful speech is all-too-common. While Mr. White doubtlessly thinks his own speech should be protected, he doesn't extend that to speech by people that only the ACLU could love. Nor is this a viewpoint restricted to the legally unsophisticated; Justice Scalia, despite his belief that the First Amendment protects flag-burning, voted to retain a cross-burning ban because the latter activity's historical import causes too much fear to be tolerated.

While I'm thinking of people mentioned in the news whose First Amendment understandings annoy me, let me note Robert McLean of Woodbridge, whose letter-to-the-editor comparing a song about the devil's defeat in a fiddling contest to a song about God's grace and redemptive power inspired sufficient fear in a high school band director to cause him to pull The Devil Went Down to Georgia from performance. In order to correct Mr. McLean's confusion about state institutions' mentioning religious figures (constitutional) versus endorsing the same (unconstitutional), perhaps the director can add "Personal Jesus" or "Jesus He Knows Me" instead. The several Volokh commenters who seem to share Mr. McLean's muddle might profit by it as well, although that probably will bring on a chorus of disapproval for music that mocks commercialized Christianity. Even "John Wayne and Jesus" (a favorite of mine) probably would be considered disrespectful for putting a movie star with the Son of God -- which just goes to show that mixing government and religion doesn't always do religion a favor.

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October 14, 2005

Yoo and Me and the Bottle Makes Three

A few weeks ago A3G noted that Boalt con law Prof. John Yoo's new book was released. She also has a profile of John Yoo here. The profile notes that Yoo is a brilliant scholar and quite hilarious. As a student in his structural issues class, I considered writing this post to add to those characteristics, but decided to hold off. But now, at the midway point of the semester, I bring you quotes and miscellany courtesy of Prof. Yoo.

First, I discovered only very recently that Prof. Yoo is in fact married to a poet. Rumor has it that she does not share her poetry with him because he'd make fun of it. I can only imagine the dinner conversations. Second, Yoo has made the following snide remarks in class:

�It�s this area by the James River where settlers would come and die. It�s Virginia�s idea of a tourist attraction.�

�Judge asked �Isn�t that an Erie problem?� And the lawyer answered �Yeah it is kinda spooky.�

�Three hours [on the senate floor] is a long time. You can raise taxes and seize property in a matter of minutes.�

�So you would strike the legislative veto down along the lines of what you just said. Which is not surprising since you just said it.�

�You�d have to have committee hearings�which are quite useful.�

�So in light of the whole Ken Starr affair�well more accurately the Bill Clinton affair.�

�The founders believed war powers included beating up on Indians, fighting Mexico, and expanding to our heart�s content, but not getting into wars with the Europeans without a declaration.�

Classmate: �It�s not like we need armed troops in Berkeley.�
Yoo: �I�d feel bad for our troops.�

�There�s this thing called the Gulf of Tonkin resolution. People on Telegraph Avenue still get upset talking about it.�

�Then there was the Whiskey Rebellion. Those were the good old days when we had real issues�whiskey.�

[Talking about Kyoto Protocol] �Scalia and Breyer have written about this in their concurrences and dissents where Scalia says that unfettered treaty power can lead to Federal government regulation of the wood you burn in your fireplace. To which Breyer responds, �Yes. And I love every minute of it.��

�Let me ask you about France, since you�re from France, although you�ve had a lot of Constitutions so it�s hard to keep track of them.�

�You think the Bush administration has cronies�the Nixon administration was chock full of cronies.�

�You mean Clinton not Cheney? Because Cheney is not formally the President.�

�It only takes a threat of a filibuster for the Senate to say that you have to waive your executive privilege or we�re not going to confirm. It�s perfectly within their right. I mean I�d rather they do that than say we�re not going to confirm you because we don�t like your hair or the videos you watch. Blockbuster. They did that to Bork. *laughter* Oh you guys don�t remember? The media was so obsessed with his nomination that they dug up his video rentals from Blockbuster. It was a weird list of videos, let me tell you.�

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October 12, 2005

Today / 10.13.05

Happy birthday to Britons Margaret Thatcher (Iron Lady, 80); Edwina Currie (Pot Noodle, 59) and Sacha Baron Cohen (Ali G, 34).

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October 10, 2005

Today / 10.11.05

Happy 133rd birthday to Harlan Fiske Stone (Columbia '98), Chief Justice of the United States; and happy 30th anniversary to Saturday Night Live.

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... But Do New Orleans Re-builders?

Jumping off the title of my last post, I wonder what the effects of New Orleans's reconstruction will be on the African American population, who are a majority of the city and the racial group worst-hit by the hurricane. Hence Kanye West's declaration that the federal government's lag in aid was a sign that "Bush doesn't care about black people." Will Baude notes that the Kelo decision, contrary to what a Washington Post reporter may believe, has little impact on post-Katrina rebuilding. The pre-Kelo precedent already permitted takings to clear out urban blight, and if anything qualifies as blight, surely a flooded city in which the buildings still standing are going to be severely damaged and full of noxious mold and other dangers to inhabitants does. Will seems to think that Clarence Thomas (as usual) may have regarded even the blight precedent as non-binding and worthy of overturning.

One of the issues both Justice Thomas and Justice O'Connor raised in their dissents was the impact takings have on African Americans. As a lower-income minority group with a history of being discriminated against in the housing market, they are more likely to live in areas deemed to be blighted, or (in the post-Kelo world) to be creating insufficient tax revenue.

Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect �discrete and insular minorities,� Carolene Products, surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects.

Of course, this assumes that poor communities routinely own the land on which they live, an assumption that may be true in rural parts of the country but is unlikely in places like New York or other areas citified enough to have urban blight. As I snarked in an earlier post, "I had thought those without any property for the government to take to be the most unfortunate, but apparently having property taken against your will, even when you are compensated for it, is more deserving of conservative pity." The Supreme Court seems to have no interest in barring the displacement of poor and minority communities if that displacement is approved by their landlords.

To bring this back to the immediate situation of the low-income renters in New Orleans, if the owners of the land are happy to sell it off to the city, the federal government or whatever developer shows up with a big plan to remake the Big Easy, there's no help for them at all. If we want to protect that group's interests, we have to require in any re-structuring plan that some provision be made for housing at reasonable rents -- yet that kind of regulation is likely to be seen as choking potential uses. The case of post-Katrina New Orleans may show just how little difference Kelo or non-Kelo makes to the most vulnerable, O'Connor's and Thomas's plaints notwithstanding.

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October 8, 2005

Miers May Care About Black People

While the shortage of information about Harriet Miers makes determining her degree of conservatism difficult, possibly she has more liberal views on race and voting than Chief Justice Roberts does, based on one case in which she was neither a party nor an attorney*. It has been reported in several mainstream media outlets but drawn relatively little attention from bloggers. From the Dallas Observer:

Mike Daniel is one of a tiny coterie of tough activist lawyers who in the 1970s and '80s pushed through a series of federal anti-segregation, anti-housing discrimination, anti-disenfranchisement lawsuits that changed the city forever. Of that barrage of litigation, the piece that struck the deepest blow was a suit seeking the overthrow of the old city council system.
Daniel represented plaintiffs Marvin Crenshaw and Roy Williams, who argued that Dallas had used a series of tricky arrangements to prevent black people and Latinos from achieving power on the city council. When their lawsuit was coming to a head in 1991, Harriet Miers was nearing the end of her single two-year term as an at-large city council member.
Daniel and Roy Williams, his former client, remember Miers as a smart and thoughtful council member who eventually came to support a version of the all single-member-district "14-1" council system they were seeking.
"She's really not an ideologue," Daniel says. "She came over to 14-1 way sooner than the mayor."
The mayor at the time was Annette Strauss, nominally a Dallas liberal, sister-in-law to Robert ("Mr. Democrat") Strauss, who was a former chairman of the Democratic National Committee. Both Daniel and Williams remember Miers as far more interested in fair representation issues than Strauss or any of the other big Democrats still in town in those days.

The case, Williams v. City of Dallas (734 F.Supp. 1317, N.D.Tex., 1990), was a suit charging violations of Section 2 of the Voting Rights Act, stemming from the Dallas system in which the city was divided into eight districts that each elected a city councilmember, and then three at-large councilmembers were elected by the whole city. This was problematic for two reasons: African Americans and Latinos had difficult raising the hundreds of thousands of dollars necessary for an effective citywide campagin, which resulted in no African American or Latino person (except in a single rare instance) being elected at-large; and because the district lines had been drawn to pack African Americans into two districts in which they were 75+% of the population, with the remaining African American population split between two districts in which they could not make up a significant voting bloc. In other words, the system was the worst of both majority-minority districts and vote dilution. There also was an "Citizen's Charter Association ("CCA")," which controlled City Council elections as an all-white, "non-partisan slating group."

Judge Buchmeyer's opinion in the case is lengthy but occasionally entertaining; he writes the kind of footnotes to which I fear I would succumb if I were a judge. "Accordingly, the Findings of Fact in this opinion are exhaustive. [FN3] Because of their length, this Memorandum Opinion--for convenience [FN4]-- will begin with a brief discussion of the applicable law..."
"FN3. And exhausting.
"FN4. See footnote 3."

At the time, Miers was an at-large city councilmember, and she testified in the case.

Harriet Miers (Place 9, at-large) testified that the 8-3 system was unfair because the number of single-member districts needed to be increased so there would be additional black and Hispanic representation on the Council [...] Miers, TR. V (4-6). Again, the City's position that -- in these statements by Miers, she did not actually use the words "the 8-3 system was unfair" -- is disingenious, to say the least.
Harriet Miers testified she spent about $ 200,000 in 1989. For example, Harriet Miers testified that she would not be surprised to find that most of her contributions in the 1989 Place 9 race came from either North Dallas or "interests that are located or reside in North Dallas." [...] Harriet Miers testified that "in touring around during the campaign it was my impression that there were circumstances in the southern sector [of Dallas] that didn't appear to exist in the northern sector and it was troublesome to me."
While the problem of ensuring racial minorities' voting power is extremely complicated (and thus this post is titled somewhat facetiously), I contrast this with John Roberts because Sen. Russ Feingold questioned him during his confirmation hearings about Section 2 of the Voting Rights Act and the Reagan Administration memos Roberts wrote that advocated limiting its reach.

* Texas attorney Beldar makes a case for Miers's being a successful litigator, though here again shortage of information is a problem. In the absence of publicly-available detailed documentation of how cases went, he resorts to remarks like:

"Ms. Miers apparently persuaded that court"
"meaning, in all probability, that she filed a persuasive brief"
"although I don't know what ultimately happened after this appellate opinion against Microsoft was issued, my guess is that the case settled"

Also, viewing denials of cert as proof of Miers's ability when they were to her client's advantage (Jones v. Bush, a Twelfth Amendment challenge to Cheney's claim of Wyoming residency for the 2000 election, which was quickly dismissed, though without prejudice, by the lower courts for plaintiff's lack of standing), and as proof of the Supreme Court's short docket when they weren't (pro bono cases Ware v. Schweiker and Popeko v. United States) is superficially inconsistent.

Even when Beldar notes something I'd consider unquestionably positive -- Ms. Miers's pro bono work (which included time as a boardmember of the Legal Services Network of North Texas) -- he undercuts it slightly with his construals of the record: "'Now ably represented by volunteer private counsel, obtained through a community legal aid service...' [...] Judge Rubin still went out of his way to compliment Ms. Miers." [his emphasis]

What is left out of Beldar's ellipsis is "... an applicant for Social Security Disability Benefits and for Social Security Supplemental Income seeks reversal of the Secretary's decision, made after a hearing at which she was not represented, denying her those benefits." [my emphasis] Again, kudos to Ms. Miers for staying in the public interest trenches, which many bigfirm lawyers abandon after doing the necessary for law school graduation, but I don't think I'd consider Judge Rubin's statement to be a great compliment so much as it is an acknowledgment that people are generally better off in the byzantine administrative law world when they have representation of counsel, the majority opinion in Walters v. Nat. Assn. of Radiation Survivors (via 3YoH) notwithstanding. This reading of the phrase is further supported by the judge's statement,

The administrative process is often, and frequently properly, criticized because it moves too slowly. Now that Mrs. Ware has counsel, the objection is made that "at certain junctures" the system moved too quickly for her, that it was too complex for her to understand, and that she was overwhelmed by its difficulty. Counsel also contends that Mrs. Ware was prejudiced by her earlier lack of counsel. [...]
While hearings before the ALJ are not adversary in nature, a lawyer or other counsel may be of great service to claimants in administrative proceedings. See Goldberg v. Kelly. Mrs. Ware was plainly and unequivocally told that she had a right to be represented by "an attorney or any other qualified person." She elected to proceed without representation. Although the Social Security Act gives applicants a right to representation, counsel is not thrust upon claimants. The Secretary is not provided with funds to retain counsel and there is available neither a public prosecutor of claims nor an independent ombudsman to assist claimants. Absence of counsel does not of itself impugn the hearing. If, however, Mrs. Ware can prove unfairness at the hearing or clear prejudice as a result of the absence of counsel, she is entitled to remand.
We find no evidence of either unfairness or prejudice here. Counsel, we are told, might have called Dr. Chambers. Other than Mrs. Ware's written statement, however, there is no support for the thesis that this might have been helpful. Therefore, the absence of counsel at the hearing in August 1978 cannot be considered prejudicial.
Mrs. Ware contends, in the alternative to the arguments previously considered, that the ALJ failed in his duty to develop fully all relevant facts and that this was exacerbated by her lack of counsel.
As we have already pointed out, administrative hearings under the Social Security Act are not adversary proceedings. The hearing examiner has the duty, accentuated in the absence of counsel, to develop the facts fully and fairly and to probe conscientiously for all of the relevant information. It is his obligation to develop a full and fair record. Courts of appeals have found good cause to remand cases in which the ALJ has failed diligently to explore all relevant facts, especially where the claimant was uneducated and appeared without representation, if an adequate showing is made that the absence of counsel prejudiced the claimant.
Here we find no violation of the ALJ's duties. The first charge of dereliction does not relate to incompleteness of the record, but to the ALJ's failure to warn Mrs. Ware that she bore the burden of proof and to instruct her on the value of representation. That such advice would have been appropriate we agree. Absent a showing of prejudice resulting from failure to give it, a remand is not required.
Nor can I agree with Beldar's assessment of Miers's role in Popeko v. United States: "Interesting how these federal judges seem to be turning to her when they have an unusual or exceptional case that needs really creative lawyering, even if it's not going to produce a fee."

I quite likely am misreading it due to undereducation in criminal law, but when the judge's opinion says, "In the instant case Popeko reasserts the identical argument which he made in the Rule 35 proceeding," that doesn't sound particularly creative. Whereas if the judge said, "Popeko now asserts a new theory of procedural due process," I would have been impressed.

Beldar says in the comments to the post that Texas firms generally are not as promiscuous as East Coast firms about putting partners' names on work in which they haven't directly participated. However, Miers is listed as counsel to Microsoft in Shaw v. Broadcast.com, Inc. (2005), despite not having been involved in the case since 2000 at the latest (as she began working for the White House in January 2001).

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October 7, 2005

My Cold Dead Hand

Apologies if all this was recited during the process of confirming John Roberts to the Chief Justice seat, but I just ran across some information on Oyez while composing the Today in History item.

Regarding the second Chief Justice of the United States:

President George Washington appointed [John] Rutledge as one of the original associate justices to the Supreme Court. Rutledge soon resigned without ever deciding a case and became chief justice of South Carolina. Washington sought him again; this time to be chief justice of the United States where he presided briefly over the six-man Court as an interim appointee. He spoke publicly against the Jay Treaty which aroused the ire of his fellow Federalists who controlled the Senate. They refused to confirm his appointment and he left the bench in 1795.
His successor Oliver Ellsworth left on his own steam, enjoying almost seven years of retirement after serving for less than five, but Ellsworth was followed by Marshall, Taney, Chase, Waite, Fuller and White, who all went feet first. Taft technically retired, but died a month after. I wonder whether such a reluctance to leave office peculiar to Chief Justices, or common to their Associates as well.

Recalling that O'Connor was preceded by Powell Stewart, and he by Burton (the only Republican appointed 1933 to 1953), I wonder if that's unintentionally become something of a centrist seat. Both O'Connor and Powell are politely described as fact-specific pragmatists, and impolitely bewailed as hair-splitters who never established a consistent jurisprudence, particularly in the area of affirmative action. While Burton may have ended up being the most liberal of Truman's appointees, he certainly failed liberalism in several major cases.

Colegrove v. Green (no requirement of equal population numbers in congressional districts, overturned by Baker v. Carr); Adamson v. California (14th's due process clause did not extend 5th Amendment to state courts, overturned by Malloy v. Hogan); Bute v. Illinois (defendants have no right to counsel, overturned by Gideon v. Wainwright); Terminiello v. City of Chicago (dissented against holding that "breach of the peace" ordinance unconstitutionally infringed upon the freedom of speech); Wolf v. Colorado* (exclusionary rule did not apply to state courts, overturned by Mapp v. Ohio*) -- and these are just the major cases of his first three years. He also seems to have had some leanings toward federalism even aside from his opposition to incorporation, as indicated by Pennsylvania v. Nelson (dissented against having state laws regarding sedition precluded by federal laws).

Anyway, while some wonder if Miers could be the conservative version of Earl Warren, I think her more likely to follow the buttprints of her predecessors in being a relatively moderate justice.

* Wolf and Mapp are both interesting fact situations: Wolf was prosecuted for aiding an illegal abortion, because he examined the patient before and after the procedure; Mapp is the only woman of whom I know in constitutional law who was prosecuted for the possession of obscene materials.

UPDATED upon realization that Kennedy holds Powell's centrist seat, not O'Connor.

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Today / 10.08.05

Today in History (1888) - Melville W. Fuller is sworn in as Chief Justice of the United States after being commissioned by President Cleveland on July 20; his confirmation was slightly delayed by Senate objections to his sympathies for big corporations. He passed the bar after six months at Harvard Law School, and worked in politics and the private sector. (Incidentally, the University of South Carolina publishes an entire series on Chief Justiceships of the Supreme Court, including Jay/Ellsworth, Marshall, Fuller, White, Stone/Vinson, Warren and Burger.)

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October 6, 2005

The Ever-Expanding Blogiverse

At least two of the PrawfsBlawggers, Daniel Solove and Kaimi Wenger, are moving to a new site called Concurring Opinions. Solove, who has been somewhat absent at Balkinization of late, contributed a post advocating the overthrow of the bar exam by armed struggle to De Novo's symposium.

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October 5, 2005

Today / 10.05.05

Today in Equal Protection History - Supreme Court hears arguments in Heart of Atlanta Motel/ Katzenbach v. McClung (1964); Craig v. Boren (1976); Richmond v. J.A. Croson Co. (1989).

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October 4, 2005

Monetarily Enriched Joshua

The four most pitiable millionaires in New Jersey probably are the adopted children who received a $12.5 million settlement in their lawsuit against the state's child welfare agency for failing to take action. While the two youngest have a greater chance of recovery, the eldest was found two years ago at the age of 19, weighing 45 lbs. and rummaging through trash for food, though he quickly gained 30 lbs. and three inches of height after being removed from his adoptive parents.

However, that they were able to sue the state in federal court at all surprised me somewhat. In fact, the court-appointed lawyer for the younger children, Marcia Robinson Lowry, filed an amicus brief for the American Civil Liberties Union Children's Rights Project in DeShaney v. Winnebago County Department of Social Services. The 1989 decision by six Supreme Court justices held that the failure of the department to remove a severely abused boy from his father's custody did not deprive the child (who ultimately was beaten into a coma and thereby severely retarded) of his liberty in violation of the Due Process Clause. Judge Posner wrote the Seventh Circuit's opinion, which the Supreme Court affirmed in an opinion by Chief Justice Rehnquist. Nor has DeShaney been overturned; on the contrary, a question that it left unanswered, whether state �child protection statutes gave [him] an �entitlement� to receive protective services in accordance with the terms of the statute, an entitlement which would enjoy due process protection," was answered in the negative last term in Castle Rock v. Gonzales. Stevens, who voted with the majority in DeShaney, wrote the dissent that Ginsburg joined in Castle Rock.

The fact that obviously distinguishes the New Jersey case from DeShaney and Castle Rock is that in the latter cases, the children were abused and killed by their biological fathers, whereas the state of New Jersey placed these boys in the hands of parents who starved them. So if the Supreme Court precedents mean that 42 U.S.C. 1983 claims are viable only for state action and not inaction, Tyrone, Keith, Michael and Bruce may have argued that the state took an action in approving their adoption that is comparable to being held in a prison or state mental institution, an action that played a part in the creation of dangers that otherwise would not have existed.

Or maybe they weren't going for 1983 at all; it can be difficult to tell the basis of a lawsuit from standard news articles. I will have to teach the few journalists whom I have the opportunity to influence to do better. Regardless, "Poor Joshua" has come up a bit lately. This famous phrase from the conclusion of Justice Blackmun's dissent in DeShaney is regarded with admiration by liberals as a sign of humanity, and with contempt by conservatives for being emotional.

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Your Left My Right

While the title of this post describes the seat waiting for Miers at One First Street, it also reflects a bit of a dilemma for all who are even remotely interested in the nomination. The right is flustered to say the least, but this is no time for elation on the part of the left. I have a hard time believing that this administration is so naive so as to nominate an insider without knowing thoroughly where she stands. I just hope she's to the right of Thomas only on the seating chart.

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October 3, 2005

Today / 10.04.05

Today in History (1965) - Justice Abe Fortas was sworn in. Fortas provided behind-the-scenes advice to Democratic politicians for years prior to his appointment to the Supreme Court by President Lyndon Johnson, and represented Johnson when Johnson's 84-vote victory in the 1948 Texas Democratic primary was challenged. Fortas's nomination to the Chief Justice seat in 1968 was filibustered, and coupling Fortas' nomination with that of Johnson's old friend from Texas, Homer Thornberry, fueled charges of cronyism. Fortas resigned from the Court in 1969 after accusations of financial impropriety.

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Who's Your Nanny?

Aside from the "We confirmed John Roberts, and you, madam, are no John Roberts" issues with Harriet Miers -- many are way too snobby to give a Southern Money Methodist grad the pass they gave to a Harvard boy -- I'm worried about Miers's help. While a weakness for undocumented workers is not peculiar to the border states (Zoe Baird, Kimba Wood and Bernard Kerik are Yankees), it is difficult to get legal unskilled labor in New Mexico (Linda Chavez) and Texas, Miers's home state. I can't say that lawyers are smarter about such things, as Baird and Wood were both Clinton nominees for attorney general. However, if Miers has made it this far, there probably are no dubious maids in her closet.

And if Bush is looking for a nice white lady to replace O'Connor...
U.S. Court of Appeals, Sixth Circuit, appointed by G.H.W. Bush, 61 years old
An Ohioan, well regarded and respected for her intellect and judgment, Batchelder could be a nominee meant to stifle Democratic criticism. Batchelder is considered a nominee who could appear as thoughtful, charismatic and intelligent in Senate hearings as Judge Roberts was.

New World Man presents: My favorite candidate for the Supreme Court
brought to you by Quizilla

Another option I wouldn't urge Democrats to reject: Michael McConnell. And though she's not on anyone else's list, I'm still rooting for Lillian BeVier, who has ivory tower cred to spare (UVA law prof for thirty years, Stanford Law Review and Order of the Coif), as well as much to reassure thoughtful Republicans (active in the Federalist Society and a deep-set conservative judicial philosophy, though not a party hack). Miers is such an unknown that even on Quizilla, only seven people's answers have given her as a result.

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