December 29, 2005

Heteroexuality Without the Sex

At Law Dork, Chris challenges the description of a Gay-Straight Alliance as "a club that's sexual in nature." As far as I know, GSAs are not sex clubs (otherwise there'd probably be a lot more straight boys in them looking for straight and bi girls than there already are), nor is sex discussed. Rather, they're intended to show straight students' opposition to discrimination against their gay classmates. However, because being gay or straight is defined by with the gender of the people with whom one has sex, or at least for whom one feels sexual attraction, I can see how the parents' knee-jerk error came about, though not how they could be so pig-headed ignorant as to pursue it once apprised of the actual nature of the GSA.

This points up a potential political conflict between those who want to liberalize American atittudes toward sex and those who want to further acceptance of some sexuality-linked identifications (homosexuality, bisexuality, possibly transgenderism*), even though there's a large overlap between the two groups. The more that some people have to think about homosexuality as being about sex, the less likely they are to accept gay people, because of their distaste for "gay sex" and their belief that as an action, it is a choice. This is the perception necessary to protecting discrimination as a First Amendment right; identification as a homosexual must be equated with out-of-wedlock pregnancy and other morally disapproved choices. At the same time, the depictions of gay people that minimize their sex lives (as in Will & Grace) are decried for doing so. Are we truly accepting gay people if we have to pretend that they're de-sexualized? Grace seems to have sex a lot for a neurotic single thirtysomething, whereas Will is nearly neutered -- a weird flipping of the "fag hag" cliche.

Dan Savage's latest column seems to have something of this dilemma underlying it, as he scolds a participant in BDSM for forcing her family to be unwilling participants in her sex life by playing out mistress and slave in front of them.

You brought up gays and lesbians, and our struggle for acceptance. Sorry, MF, but the comparison is not apt. Not once in our struggle for social acceptance have gays and lesbians demanded the right to have sex in front of our relatives. We want to be accepted by our families, tolerated by strangers, and treated equally by our government. But people who don't want to watch us have sex aren't compelled to.

This Mistress/slave stuff is, at bottom, about sex. Yeah, yeah: It can be sooooooooo much more than that, some 24/7 BDSM folks insist. Some people feel dominant or submissive deep down in their kinky souls, and they build their lives around those roles. I get it. And dare I say it? Some of my best friends are 24/7 BDSMers. But BDSM isn't ultimately who you are, it's what you enjoy in bed -- or in the dungeon, the playroom, the fetish club, etc. Here's a rough rule of thumb: If you're talking about something that gay, straight, and bisexual people can all do -- fisting, snowballing, BDSM -- then it's a sex act, not a sexual identity.

This "rough rule of thumb" (anyone willing to guess whether that was an intentional pun?) doesn't entirely work for me, however. As much as it annoys me, Lawrence v. Texas is identified with gay rights, despite Kennedy's majority opinion's having been about privacy rather than gender or sexual orientation as O'Connor's concurrence was. However, Kennedy's opinion tries to stake out the issue in question as being about more than sex: "The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." There is an implicit recognition that sodomy is the only way two people of the same sex can have sex with each other and therefore banning it makes all homosexual sexual relationships illegal without doing the same to hetero relationships. Still, even the Supreme Court seems to want to dodge determining how much sexual identity is about sex.

* I say "possibly" not because acceptance of transgenderism ought to be less than that for homosexuality, but because I'm doubtful as to whether gender identity is properly connected with sexual orientation, notwithstanding the standardization of LGBT. The first seems to be more about the individual sense of self, the second about the individual's connection to others. Yet both are about gender -- and thus classifications based on them rate at least heightened scrutiny -- whereas categorizations based on what one does, rather the gender of oneself and/or the person with whom one does it, are not.

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December 28, 2005

The SCOTUS Side of Anna Nicole Smith

Texas probate law is getting more national attention than usual these days. The New York Times reports on a case in which an elderly woman worth many millions is in a tug-of-war between her daughter and the Texas courts, and her son and New Jersey's judiciary. "Saying that only a federal court can bridge the competing jurisdictions, Mark Glasser filed a civil action this month against his sister in Federal District Court in San Antonio, blocking a scheduled trial before [Texas probate] Judge Spencer." This removal to federal court is likely to be contested, however, and the law on such matters appears to be unclear. While there is a general federal jurisdiction for diversity of state citizenship, it might be overridden by respect for the probate law of the state in which proceedings began.

As several news outlets noted, Solicitor General Paul Clement has filed a brief for Anna Nicole Smith's argument before the Supreme Court that federal courts should be able to have jurisdiction over state probate proceedings. Smith lost to her step-son in a Texas probate court, but got $474 million from a federal bankruptcy judge when she filed for bankruptcy in California and her son-in-law made the mistake of claiming that she owed him money, which allowed Smith to counter-claim and the bankruptcy judge to enrich her. This was then reduced to $88.5 million by a district judge, and then invalidated altogether by a 9th Circuit panel on the ground that this was a matter only for the state courts. I'm inclined to agree with the Volokh commenter who predicted that the Court (especially if O'Connor, the Avenging Goddess of Federalism, remains that long) will want to make a probate exception to the federal courts' general bankruptcy jurisdiction.

However, the Times story about the possibly incompetent elderly woman and her battling children might strike observers as less "frivolous" and thus less of a waste of time than Smith's case, though some of the legal issues are similar.

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Property Law I Didn't Need for the Exam

(I hope.)

The New York Times's catchphrase roundup for 2005 introduced me to one wholly new word: usufruct.

Still, usufruct could turn out to play a role in the city's recovery. It refers to an obscure concept in Louisiana law under which a person has the right to use and profit from property that belongs to someone else. It may be unfamiliar even to many lawyers because Louisiana law has its roots in the Napoleonic code, a throwback to the time of French rule.

By invoking usufruct, the state could temporarily take control of houses in damaged areas like the Lower Ninth Ward, renovate and rent them out. If the original owners wanted to return, they would be able to re-establish ownership.

Usufruct seems likely to be more important than Kelo, certainly, as the city government appears just to want people to come back and be part of the New Orleans. Rather than desiring to take over property and turn it over to more profitable and taxable purposes, the government would like to see it put to any profitable and taxable purpose. Pfizer probably isn't showing up anytime soon, so NOLA needs the small businesses and residential areas. Though the Wikipedia entry for usufruct categorizes it with more common property terms like "easement" and "right of way," it sounds a lot more complicated than those where the use made of property isn't total (one gets an easement to walk over a neighbor's driveway, not to camp out on it). If the states renovates and rents out these houses and the owners return, do the owners have to compensate the state for the renovations? what if they don't like some of the changes made? what about the tenants?

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4th Amendment's a Bitch, Ain't It

You think it's not involved, and then, damn!

On one hand, this op-ed by lawyers who served in the Reagan and Bush I DOJs is pretty persuasive.

The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. The purpose here is not to detect crime, or to build criminal prosecutions - areas where the Fourth Amendment's warrant requirements are applicable - but to identify and prevent armed attacks on American interests at home and abroad. The attempt, by Democrats and Republicans alike, to dismantle the president's core constitutional power in wartime is wrongheaded and should be vigorously resisted by the administration.
One the other hand, that seems to ignore that when we're not throwing folks into Gitmo, we are building criminal prosecutions.
Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda. The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.

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December 26, 2005

Today / 12.27.05

Today in International Law (1945) - The World Bank is created with the signing of an agreement by 28 nations, and Korea is divided.

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December 25, 2005

Terrorist Legal Writing: Perfect for Hanukkah

Co-blogger Armen's bitching about Eugene Volokh's semi-annual (kind of like Victoria's Secret) pimping of his genuinely useful Academic Legal Writing is slightly amusing in itself -- "Am I alone in getting utterly pissed off every time Volokh n off tries to pawn off his Academic Legal Writing on the VC?" -- but inspired an even funnier comment:

Volokh is trying to pawn off his Academic Legal Writing on the Viet Cong?! Well, I guess it's just in time for Tet...
-"Comrades, our glorious leaders have sent us Volokh's Academic Legal Writing! We will use it to... argue with imperialists!"
On the other hand, some people apparently believe that Al Qaeda figures that the Bush Administration is following U.S. law, and thus that our enemies were shocked -- shocked! -- to hear that their communications to the U.S. might be tapped without warrant. Indeed, the Terrorist Legal Curriculum probably has some interesting courses:

Foundation Year -- Contract killing; Property destruction; Tort(ure); Criminal Law and how to avoid getting charged under it; Foundations of the Rogue State; Perspectives on Islamic Law that justifying suicide bombing.

Upper Level -- Advanced Geneva Convention (prerequisite: "The laws of war and how to break them");
Comparative Law Among Nations Most Likely to Host Extraordinary Renditions
International Financial Transactions That Turn Charitable Dollars into Fake Passports
Law of the WTO, World Bank, Racist Cops and the Other Left Wing Causes Your Detainment Has Joined
Prisoner Clinic ("hands on practice for when they get medieval on yo ass")

Just added to the curriculum: Article II powers, authorizations of military force, the PATRIOT Act, FISA courts, the 4th and 5th Amendments, and other stuff you didn't have time to learn because you're, y'know, a terrorist.

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December 23, 2005

Tragedy of the Church Commons

In writing a paper about the First Amendment's religion clauses and federalism, I have gotten James Madison's Memorial and Remonstrance Against Religious Assessments pretty well drummed into my head, but the fact that it was necessary still bemuses me. Carrying over ye olde Church of England practice, initially all Virginians were taxed to support Anglican ministers' salaries, although only half the population was Anglican. In 1776 the legislature voted to suspend the tax, and in 1784, a bill that imposed a tax to support all Christian ministers, allowing each taxpayer to designate the church that would receive his money, got some non-Anglican support.

Madison busted that up by publishing his petition, which argued against having the government coerce money out of people even for the churches they preferred, and the legislature ended up dropping all religious taxation and passing Jefferson's Bill for Establishing Religious Freedom. (As one learns upon entering the Charlottesville city limits, this, the Declaration and the founding of the University are the only accomplishments Jefferson wanted on his tombstone, his presidency apparently having been too embarrassing.)

What I find strange is the assumption of the time that such coercion was necessary to keep the churches going. Was it a tragedy of the commons rationale: that people would free ride and praise the Lord but not pass the collection plate, thus causing the church to shut down and everyone to be worse off? Or did the churchgoers not want to have to bear the full cost of keeping the churches going, and therefore preferred to have everyone obliged to pay up whether they attended or not? The Church of England maintains prettier buildings and probably more dignified services than the meeting halls and megachurches of America, but we appear to have a more vigorously religious population to show for our free market. Which is my perpetual befuddlement regarding those who want to get the state more involved in religion: where does that seem to benefit faith itself? (as perhaps opposed to the bureaucracy thereof)

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December 22, 2005

Activist Factions

A. Rickey wonders why the judge who found intelligent design teaching in Dover, PA to be unconstitutional has a problem with an activist school board:

When someone is concerned about judicial activism, that person is not merely worried about the existence of politics in the world--unless he's an idiot, I suppose--but that representative politics are being subverted by unaccountable judges perverting texts through "interpretation," particularly where such interpretation can only be overruled by supermajorities. A school board, on the other hand, is more like a mini-legislature that passes instructions then carried out by others. If a democratic polity and its elective representatives believe that a constitutional imperative has been misconstrued, this is precisely where activism should be: in a politically accountable branch subject to removal by voters. The political arena allows them to settle large and divisive societal disputes in a way that is more likely to be seen by the losers as legitimate.

Specifically, the judge opines, "[T]his case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy." At least in the opinion's depiction of how the policy came to be adopted, it began with Alan Bonsell's joining the school board and declaring that he wanted restore prayer and the teaching of creationism. He met with the science teachers to discuss how evolution was taught, which no administrator or board member had ever done before. Board member William Buckingham then contacted the Discovery Institute to figure out how Bonsell's preferences could be legally enacted as policy.

None of this appears to have been the result of a widespread grassroots movement by the Dover polity; as the board moved toward changing its curriculum, it sent newsletters to every house, which mailing contained misinformation about both evolutionary theory and ID. Nor do the losers appear to have seen their loss as legitimate, considering that of the nine members of the 2004 school board, five resigned over the controversy. A married couple resigned first, saying,

There has been a slow but steady marginalization of some board members. Our opinions are no longer valued or listened to. Our contributions have been minimized or not acknowledged at all. A measure of that is the fact that I myself have been twice asked within the past year if I was �born again.� No one has, nor should have the right, to ask that of a fellow board member. An individual�s religious beliefs should have no impact on his or her ability to serve as a school board director, nor should a person�s beliefs be used as a yardstick to measure the value of that service. However, it has become increasingly evident that it is the direction the board has now chosen to go, holding a certain religious belief is of paramount importance.
The second, who had initially supported the idea of enlarging what was taught beyond evolution, left with the words
I was referred to as unpatriotic, and my religious beliefs were questioned. I served in the U.S. Army for 11 years and six years on the board. Seventeen years of my life have been devoted to public service, and my religion is personal. It�s between me, God, and my pastor.
According to court testimony, "Angie Yingling was coerced into voting for the curriculum change by Board members accusing her of being an atheist and un-Christian," and Ms. Yingling resigned in protest shortly thereafter. A lifelong Dover citizen also claimed that the controversy has "driven a wedge where there hasn�t been a wedge before. People are afraid to talk to people for fear, and that�s happened to me. They�re afraid to talk to me because I�m on the wrong side of the fence."

While all this may be democratic, it strikes me as typical of the worst aspects of democracy that the Founders feared and tried to counter with Constitutional provisions such as an unelected judiciary. It also puts me in mind of a remark UT Law professor Douglas Laycock -- a staunch defender of religious liberties who litigated for the Religious Freedom Restoration Act -- made at an Emory conference (available at 12 Emory Int'l L. Rev. 951):

Decentralization aggravates the risk that the most serious religious liberty problems will occur somewhere, if only locally. Consider actual hostility to some religious groups. This problem does not arise often here, but when it does arise, this decentralization increases the risk of small scale local regulation on the basis of that hostility. A set of bigots can take over one agency or one local government; they are quite unlikely to take over a state or the Congress.

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Today / 12.23.05

Joyful Festivus, and happy 200th birthday to Joseph Smith, Jr., founder of the Church of Jesus Christ of Latter-day Saints.

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December 21, 2005

In Case You Cared

I tried to amuse myself during final exams with idiotic away messages on AIM that had a vague connection to whatever take-home I was working on. I can't imagine the usefulness of me posting this other than a gerbil in a cage somewhere might find it amusing. But here they are:

Con Law: Structural Issues

"Power to tax tax tax and spend spend spend spend spend..."
"Executive Austin Powers"
"Making like the Dormant Commerce Clause and sleeping"
"Impeaches and cream"
"Limits on Judicial Rearview"
"Trick or Treaty Powers"
"Much like the Lochner Era, I now have nothing to do with Con Law"

Resolution of Private International Disputes

"Resolution of Private International Disputes, solution 1: cross-border make-up sex. That is all"

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Forget the Hoosiers -- to the Toronto Skydome!

Antonin Scalia's nightmare (or is it?*) came true for our northern neighbors today:

Group sex among consenting adults is neither prostitution nor a threat to society, the Supreme Court of Canada ruled on Wednesday as it lifted a ban on so-called �swingers� clubs.
In a ruling that radically changes the way courts determine what poses a threat to the population, the top court threw out the conviction of a Montreal man who ran a club where members could have group sex in a private room behind locked doors.
�Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society,� said the opinion of the seven-to-two majority, written by Chief Justice Beverley McLachlin. [...]
�Criminal indecency or obscenity must rest on actual harm or a significant risk of harm to individuals or society. The Crown failed to establish this essential element of the offense. (Its) case must therefore fail,� McLachlin wrote.
In indecency cases, Canadian courts have traditionally probed whether the acts in question �breached the rules of conduct necessary for the proper functioning of society�. The Supreme Court ruled that from now on, judges should pay more attention to whether society would be actively harmed.

* Justice Scalia, like most cosmopolitan conservatives, probably would say that it is the judicial imposition of this standard and not the standard itself that appalls him.

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December 20, 2005

What Wouldn't Bush Do

Without passing judgment on the legality (under FISA and the PATRIOT Act) or the constitutionality (under Article II) of whatever it is the NSA is doing under the president's direction, I was thinking of opening a betting pool. People could bet on what they think we'll hear about next. It can be something that the president will declare to be wholly legimitate, as in this instance; or an isolated and swiftly-punished anomaly, such as Abu Ghraib; or a still shadowy and indeterminate possibility, like the use of torture by the CIA ("we don't torture, but we'd like to reserve the option").

Prof. John Yoo's book, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, probably provides some good suggestions about bets to place, such as the president's assuming power to invade other nations without explicit Congressional approval, pursuant to the goal of winning the war in Iraq and/ or Afghanistan.

I'll put $10 on there being surveillance of an ACLU office within the next six months. Oh, wait, I may be too late to call that one...

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December 19, 2005

Freedom Of, Freedom From

A conservative friend and I spotted the Onion's headline "Activist Judge Cancels Christmas," and read it differently. He predicted that there would be an instance of "life imitating art," and I found the notion of a judge's interfering with non-governmental celebration of Christmas as ridiculous as the Onion did. (The parody is not about state-sponsored Nativity scenes, which are likely to be found unconstitutional.) I said that I wouldn't want the government to attempt to represent Hinduism, as they'd probably make as much a muck of it as non-Hindu retailers do, and continued to be puzzled as to why Christians and the occasional Jew did. He replied that this was only because I was living in a country where the government was unlikely to do such a thing, and that I'd be less likely to protest it in India.

My understanding was that India's Constitution had requirements similar to those of the U.S. First Amendment, requiring that the government neither establish religion nor constrain the exercise of it. But a closer look shows that in this, as with so many things, the American Founders valued brevity over the locquacious explanation dear to South Asian hearts.

The First Amendment says simply, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," and with that simplicity leaves room for scores of Supreme Court decisions and hundreds of books to try to figure out what those few words mean.

The Indian Constitution is far more explicit, and I pity the poor judges left with so little room to be activists. Article 15 prohibits discrimination on the basis of religion; Article 16 prohibits such discrimination in public employment; Article 25 guarantees freedom of conscience; Article 26, freedom for religious institutions; Article 27, freedom from paying taxes specifically marked for a particular religion. Article 28 is very detailed: it says that an educational institution supported wholly by the State cannot provide religious instruction, except for institutions administered by the State but established by a trust that requires such instruction; it also says that no State-recognized or even -partly funded institution can require attendance at religious instruction or worship. Article 30 applies Article 15's non-discrimination to establishing educational institutions and receiving state aid for them; Article 325 applies it to being on an election roll.

There are plenty of "Nothing in this article shall"s to allow the government all sorts of interference with religion. Article 16 says there can be a "law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination." Article 25 allows the government to interfere with Hindu institutions: "the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus."

In short -- too late! -- I was wrong in thinking that India's situation regarding church and state is much comparable to that of the U.S., notwithstanding this excellent article that attempts to draw parallels. India has a system much more like the one that conservatives prefer, in which government and religion are frequently "entangled," to use the terminology of exactly what is not supposed to happen in the U.S.

However, India also provides an excellent example of what happens when such entanglement is permitted. A single Google of "India government temple" turned up a 1983 Hinduism Today article about the Tamil Nadu State Department of Hindus' Religious and Charitable Endowments Commission's plan to assume the administration of the Chidambaram Nataraja temple. Nor does this appear to have been an isolated instance of interference; a couple of years ago, the government attempted to ban animal sacrifices at the same temple, and Tamil Nadu government continues to interfere with the language and practice of religion at temples under its oversight. Not to trash TN alone, my home state of Andhra Pradesh has engaged in various shady transactions involving temple lands, to the point that the courts now have to become active, if not activist.

I doubt that those who claim to desire more "religion in the public square" would want to have the public square in their religion. While funding can be quite nice, restrictions and takeover rarely is so welcome. Religious groups of all types in the U.S. already balk at having generally applicable laws applied to them (hence the RFRA and RLUIPA), so having the government make rules specifically intended to govern religious practice would be anathema.

(Cross-posted with some changes at Sepia Mutiny. A commenter there pointed to this supposed reaction by Judge Reinhardt to the Onion article.)

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December 15, 2005

The New Interest Group Has Arrived

I've heard a wide variety of people complain about how much they hate hearing about "the children" in political discussions. It happens across the political spectrum: liberals despise rhetoric on how same sex marriage threatens The Children; conservatives are contemptuous of concerns about how stringent economic policies hurt The Children. I have to say that I'm not really that bothered by it, as I kind of like children and think that many of them don't get a good deal.

While I can tolerate propaganda on behalf of The Children, there's a development that I already feel less willing to accept: the lobby for the unborn. I'm not talking about abortion protestors (although they frequently exasperate me) -- now embryos have entered labor discussions. From a New York Times article about the impending transit strike (please, Lord Hoffa, let them hold off until Monday so I can get out of this city):

In addition, the authority wants new workers to pay 2 percent of their wages as premiums for health insurance; current workers pay no premiums for the basic plan.
"The M.T.A.'s long-term financial outlook, like every business and government in this country, is seriously clouded by the extraordinary growth in pensions and health care costs," [Metropolitan Transportation Authority chairman] Kalikow said. "It might be easy to ignore this fact, but that would be a disservice to both our riders and the city, now and still unborn."

[President of Local 100 of the Transport Workers Union] Toussaint portrayed the authority's benefits proposals as repugnant because they would provide reduced benefits for future generations of workers.
"They have to get away from the notion that in this round of bargaining the T.W.U. will give up its young, will give up its unborn," he said.

I guess it's just the riders who are willing to sell out, because I'm prepared to trade my unborn child for a taxi to the airport Saturday morning.

UPDATE: No system-wide strike until Tuesday.

Samuel Cuevas, just completing his first day as a resident of New York, rode an E train under the East River to Queens shortly before midnight and tried to remain sanguine about the prospect of losing a transit system he hardly knew.
"I just moved here from Texas," Mr. Cuevas, 25, said, clutching two pillows. "I'm not sure how to get around," he said, adding, "We don't have unions or strikes in Texas."
We also don't have any subways...

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I Am Thy Honor Code

So after some people posted comments about a final on my other blog, I got word from the admin that it might be a possible Honors Code violation and that I shalt not have any other Honor Codes before them. Skipping the boring details, has this come up at any other school? Why should a blog be treated any differently than a casual conversation in the law school courtyard?

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Help the Homeless

One of my oldest friends is looking for a place to stay in Washington, D.C.:

I need some help to avoid being homeless, I'm moving to DC next month to work for Corporate Executive Board and I need help finding a roommate. Does anyone know anyone who knows anyone who needs one? If you can ask any of your friends or just forward this to them, that would be great.
As any friend of this blog is a friend of mine, I consider this to have been forwarded to my friends, and you are welcome to spread it further. Thanks!

(And now, back to the mysteries -- and boy, are they mysteries to me -- of international commercial arbitration. The only thing I have grasped is that there are situations in which Justice Thomas will deem Congress's interstate commerce power to suffice for legislation's validity. See Citizens Bank v. Alafabco (per curiam decision found that debt-restructuring agreements executed in Alabama by Alabama residents were nonetheless contracts evidencing transactions "involving commerce," whose arbitration clauses were enforceable pursuant to provision of the Federal Arbitration Act).)

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December 10, 2005

Section 1983 Shaq

Milbarge remarks former Laker, current Miami Heat Shaquille O'Neal's swearing in as a reserve police officer with the Miami Beach police department. He concludes, "I really don't envy the defense attorney who has to cross-examine Shaq. And no way would I file a 1983 suit against him!"

I don't know much about Section 1983 suits, which are civil actions against people who violate one's civil rights while acting under color of law and are complicated by various grants of qualified immunity. But I would have thought Shaq to be the only cop in America worth suing. Norm Pattis at Crime & Federalism, who knows much more than I, explains,

When a police officer get tagged with a civil verdict in a case arising under 42 U.S.C. Section 1983, who really pays?
I've won dozens of these cases and I have never seen a case in which the tortfeasor himself or herself pays. But I have seen a lot of game playing.
A dozen years ago I won a case against two Connecticut State Troopers. They gave a man a gratuitous kick to the, er, hm, family jewels. No permanent injuries. But the jury awarded compensatory and punitive damages in the amount of $50,000. I was thrilled; so was the client.
Then came the remittitur motion. The defendants' lawyer claimed that the sum was excessive, given the officers' income and assets. Of course, no such evidence had been presented.
Similarly, in Lee v. Edwards,
The Circuit remitted to $75,000. Why? Two hundred thousand was too much for a cop; they don't make that much. But the officer put on no evidence of net worth. There was nothing in the record about whether he had money in the bank or not. I still believe the decision was lawless.
Probably most cops are judgment-proof, but I can't imagine that any verdict less than the Miami Beach PD's total budget for the year would be considered excessive, given O'Neal's income and assets.

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December 9, 2005

Saw That Coming

While guest-blogging at Crescat a couple months ago, I mentioned that I'd seen a lot of forms that had to be filled out to get an interstate wine shipment to New York State, and wondered at what point putting up extra bureaucracy would become an actionable impediment to interstate commerce. Though I don't know of any lawsuits' having been filed, the New York Times reports,

But as the holiday season nears, wine lovers have bumped up against the bureaucratic ways of New York State, whose agencies - as of Thursday night at least - have yet to carry through on the law and allow shipping companies to actually deliver wine to New York from other states.
Officials with FedEx, U.P.S. and groups representing California wine growers say that one of the holdups has been the state's demand that delivery employees, who work with hand-held computers, fill out cumbersome paper forms when making the deliveries.
At the same time, the letter of the law doesn't seem to require paper documentation, and indeed specifically mentions "an electronic or paper form," so a public-interest-minded wine lover wouldn't be able to attack the law itself, only how the agency has chosen to interpret its requirements.

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Late Night Legal Advice

The other night (although, it was actually morning if we're going to be technical), my younger sister called me to ask me for legal advice. After being assured that she was not calling from jail, I informed her that I was not licensed to practice law in the state of Texas. When I realized she wasn't processing what I meant by that, I explained that I could get into lots of trouble if I gave her legal advice as a student, and that by the way, just because I'm in law school does not mean that I just happen to know everything about the law. Or anything about the law, for that matter.

It turns out that what she really wanted was common sense advice (which I suspected, because I know my sister), but the fact that she called me in the wee hours of the morning to ask about something that was not life and death made me wonder. The holidays are coming, and that means family, and family means questions about "the law." So I want to know your favorite things to tell friends and family members when they inevitably ask you for legal advice. My usual answers are getting kind of boring, and I'd like some witty and sarcastic remarks to answer with instead.

Good luck on finals, everyone!

(And yes, I realize that I haven't posted here since September. I sense a New Year's Resolution in the making.)

EDITED to clarify: What I meant was, what do you tell your friends and family when you explain to them why you can't give them legal advice? Do you just give them the boring, "I can't," or do you say something a little more creative? I just want something new to say when my alcoholic neighbor asks for advice regarding his upcoming DWI trial, because "I'm not allowed to give legal advice, nor would my advice be good anyway" just isn't funny.

Posted by Ruth at 5:30 PM | Comments (3) | TrackBack

December 8, 2005

Today / 12.09.05

Today in Church-State History (1905) - France passes a "law concerning the separation of the Churches and of the State," to translate literally. This ends the Napoleonean legal settlement of 1801, which governed the relationship between the French government and the Catholic Church.

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Don't Recite "Meet the Parents" While Flying Out of Miami

Along with the title, I've had a few thoughts running through my head following the shooting of Alpizar by Federal Air Marshals yesterday. First, Chris Matthews (my favorite Darrell Hammond character on SNL) asked if the Air Marshals were at risk of being sued. The answer of course is yes, but I don't know if the suit will be 12(b)(6)ed based on qualified immunity. So if anyone knows the answer to this, I'd definitely like to know.

Second, I couldn't help but chuckle (and no disrespect to the deceased) during the Gov newsconference yesterday. It sure sounds like this incident is a bureaucratic nightmare. Fed Air Marshals involved in a shooting. But shooting took place in the airport, so Miami-Dade PD has jurisdiction. FBI investigating possible terrorist related crimes or other crimes on the airplane. TSA in charge of passenger security, and so on. It is certainly refreshing to see government streamlined [sarcasm]. More substantively, if a few questions from reporters have to be passed around among the four people in charge of various aspects of the investigation, I would really hate to imagine how the actual investigation is going to be conducted.

Lastly, perhaps it's because I'm outlining for tax, but I'm reminded of Gilliam v. Commissioner, 5 T.C.M. 515 (1986) (holding that a Schizo going nuts on a flight, attacking a passenger, and getting charges against him dismissed for temporary insanity cannot claim a deduction for the legal fees as a business expense). So pre 9/11 you don't get a tax write off if you go nuts on a flight, post 9/11 you get shot. This paragraph is meant to be snide and not serious. The serious side of me has not fully thought about how it would even be feasible to train Air Marshals to distinguish the mentally ill from actual threats.

Posted by Armen at 2:55 PM | Comments (3) | TrackBack

My God Is a Demanding God

In the last round of discussion about (freedom from) religious exercise in schools, one point of contention was whether there is an actual harm to believers in being forced or pressured to disobey the dictates of their faith, that does not exist for non-believers who are forced or pressured to exhibit faith, and thus whether the former's interests are more important in making law and policy than the latter's.

I was reminded of it while reading about a Christian student who protested having to remove her crucifix under a British school's no-jewelry policy. The Christian found this unfair because there was an exemption in the policy for Sikh students to wear a steel bracelet. "Education officials were unrepentant, however, and said that Sikhs are required by religion to wear items of jewellery, whereas Christians are not." The city council was more shy of enraging non-Sikh jewelry wearers:

Derby city council urged any school imposing such regulations to look carefully at individual circumstances before issuing a total ban.
A spokesman said: "It is lawful to ban crucifixes while allowing other religious symbols, but whether it is desirable is another matter.
"For some people wearing a crucifix could be a deeply religious gesture, which is why personal needs should be taken into account."

If jewelry is a problem in this school -- and I can see why it might be -- then a policy that bans wearing it while providing only the most necessary exceptions (i.e. ones without which students would be unable to attend the school) strikes me as the best solution. But as I've mentioned, I dislike the idea of giving one religion more accommodation than another simply because the first is more demanding than the second. Moreover, as the city council points out, what constitutes a requirement of religion can be extremely variable. Episcopalians, for example, don't seem to consider in-your-face proselytizing to be demanded by Christianity, but evangelicals and Mormons do, and I would want to give them as much latitude as possible for that belief, despite the annoyance it might entail for others.

But if the steel bracelet (kara) is deemed so necessary, presumably the other items of one's initiation into Khalsa are as well, and I can see how they would pose problems in other institutions such as prisons. Within the U.S., religious practice in prison is protected by the Religious Land Use and Institutionalized Persons Act, so that a prison that sought to make a Sikh wear the standard issue underwear, or cut his hair and beard to minimize the chance of parasites, would have to prove that it was the least restrictive means of serving their compelling interest (though the 6th Circuit has found that courts should be deferential to prison administrators about the dangers of long hair).

The kirpan, which theoretically is meant to be a sword worn constantly as a reminder of the Sikh's obligation to defend the powerless, has gotten some American Sikhs into trouble; suspended from school and arrested on concealed weapon charges. With the Religious Freedom Restoration Act held unconstitutional and the RLUIPA applicable only to, well, land use and institutionalized persons, whether an American school that banned jewelry would be constitutionally or statutorily required to make a kara-only exception is unclear. I suspect that in the U.S., we would be more likely to have either a blanket prohibition or permit all religious jewelry in order to avoid the accusation of discrimination among religions.

[The title of this post refers not to me but to a favorite Baptist camp song.]

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December 7, 2005

Unnecessary Note to Attorney for the Afsharis

Though put into question by the holding, and downright contradicted by the concurrence, of Bullock v. Mumford (D.C. Appellate Court, 1974), Greene v. McElroy (1959) has been cited as recently as 1991 in the Supreme Court's own Burns v. U.S. decision for the "right to confront adverse witnesses and evidence in security-clearance revocation proceedings." That said, security-clearance revocation probably is more serious than background-check failure; residents may have fewer rights than citizens in civil due process matters; and we may be surpassing Cold War levels of hysteria in our concern about terrorism.

Clarification: I mean the West Virginia Afsharis, not the California Afshari. California Afshari is pretty definitely sketchy. Also, he's been in the news more lately than WV Afsharis, who seem to have dropped out of press sight since January of this year.

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December 4, 2005

Gender Trouble

Though Article III Groupie's fifteen minutes of fame appear to be up, I couldn't resist noting that this review of Transamerica includes a sentence that, with minor alteration, describes my feelings about the persona of the Underneath Their Robes proprietor: "[Felicity Huffman's] work on Desperate Housewives, for which she won an Emmy earlier this year, suggests a knack for gender parody, since that series is in essence a drag show that happens to star real women." A3G always has struck me as a drag show that happened to star a real woman -- until it turned out that it didn't.

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December 3, 2005

Go Bruins, Indeed

While I'm flattered that co-blogger W&V is cheering heartily for my beloved Bruins, I can't help but feel conflicted about the upcoming national title game. Sure, nothing would give me greater joy than UCLA, with the wisdom of Odysseus, sacking Troy, but I definitely will have a big fucking grin when Texas is smacked by that other school. Hopefully Rep. Barton's efforts will send a legitimate title contender from the Big XII within the next decade or so. Nebraska is starting to look good under Callahan.

Posted by Armen at 3:27 PM | Comments (0) | TrackBack

December 2, 2005

Tell-Tale Principale

I'm a bit perplexed as news stories (see Bashman for sampling) are covering Judge Selna's ruling on a 12(b)(6) motion to dismiss in re C.N v. Wolf, et al, the case of an Orange County lesbian high school student suing the district and various officials for violations of her civil rights, state law violations, and invasion of her right to privacy. Specifically, the focus of these news items seems to be Plaintiff's allegation that the principal told her mom that she's lesbian. From Judge Selna's ruling, however, this strikes me as not the most troubling conduct. He writes:

However, as Plaintiffs point out, the Complaint states that C.N. and her girlfriend were dsiciplined for expressing affection towards each other on campus, where no rule existed prohibiting displays of affection, and where similar behavior by heterosexual couples was not subject to discipline. Further, the Complaint alleges that Wolf violated C.N.'s constitutional rights, for instance when he disclosed C.N.'s sexual orientation to her mother without prior discussion with C.N. Moreover, the Complaint alleges that Wolf violated C.N.'s First Amendment rights to free expression when he allegedly threatened to expel her and to have her arrested and her personal computer confiscated for an off-campus blog entry..
(citations omitted, emphasis added). Perhaps the media is focusing on this because Plaintiff's sixth cause of action is specific to the disclosure of her sexual orientation to her mom, but I'm selfishly concerned with the fascist censorship of blogging more than anything else.

Posted by Armen at 7:16 PM | Comments (0) | TrackBack

December 1, 2005

Don't Believe the Transcript

Sam Heldman protests that he never said "nessatavite" to Justice Ginsburg when arguing before the Supreme Court in the matter of Martin v. Franklin Capital Corp. last month (line 19 on page 20 of the pdf).

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