Eminent Domain

As you probably know, Eminent Domain is primarily a legal news and analysis blog. However, one of the most popular aspects of the blog (the one that people mention to me most often) is the beer review feature. It was mostly inspired by Professor Stephen Bainbridge's wine blog. I thought it was a unique and interesting topic for a blog and wanted to rip it off as best as I could. At the time, I didn't like wine (my opinions have changed since then), so I went with beer. I've assembled a pretty long list since I started my reviews. Recently, I noticed that one of my reviews was linked at this site, Pubcrawlin'. If you like my beer reviews, you'll probably like this site.

I didn't want to break tradition by finishing the draft of my seminar paper early, so I had to pull an all nighter last night. It was quite an experience. It only took me seven cans of Coke and half a bag of those mini candy bars to make it through the night and all the way to morning. The work got frustrating at times. Things peaked at 2:10 AM when I yelled out a sentence laden with more obscenities than I could count. I believe that I took the Lord's name in vain and mentioned a sex act that was illegal before Lawrence v Texas in that crescendo of vulgarity.

Unfortunately, my research duties caused me to miss the big Marriage Amendment Debate on campus. It sounds like it was a great event. Prof. McAdams took notes during the debate and posted them here. Based on the post time stamp, the Professor was burning the midnight oil last night too. The Marquette Tribune has an article about the debate here. Unfortunately, the Trib messed up the caption on the picture and got all the names wrong. It should read: Panelists at Monday's debate were Christopher Wolfe (upper left), Rick Esenberg (lower left), Mike Tate (upper right) and Scott Moss (lower right). The article does have decent coverage though. I may have some additional comments in my Marriage Amendment post coming soon. No promises though.

Drudge linked to this story about talk show host Hal Turner, who has recently gone further off the deep end. As an anti-Semite and white supremacist, one would expect a lot of bizarre crap to come from Turner's mouth. Well, now it's gotten really weird...

"As the November 7 Election approaches, I decided to write a few lines to my fellow Americans about the state of our nation and the ugliness that may have to occur if the people who caused these problems are re-elected: They may have to be assassinated," he writes in his Oct. 27 screed.

Just so there can be no mistaking his intentions, Turner repeats his premise several times and even offers fairly detailed plans involving five-men strike forces to carry out their wet work in wiping out half the U.S. Congress and at least three members of the Supreme Court.

Emphasis added. Turner is obviously cracked, but I can't help but wonder which Supreme Court Justices have gotten his dander up. His list of complaints include campaign finance laws and the Kelo eminent domain ruling. I think that points to the liberal wing of the Court. But he also doesn't like the Patriot Act or the Military Commissions Act. Those would likely be heavily scrutinized by the liberals on the Court if either law came before them in a case. The "at least three members" thing is a little weird, though. Which three? I don't know. Maybe I'm trying too hard to analyze something that is obviously screwy.

One of my fellow MULS students has passed along a link to the inaugural issue of the Seventh Circuit Review. The good people at the Chicago-Kent College of Law have put this together for us...

The Seventh Circuit Review is a semiannual, online journal dedicated to the analysis of recent opinions published by the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit Review seeks to keep the legal community abreast of developments and trends within the Seventh Circuit and their impact on contemporary jurisprudence. The articles appearing within the Seventh Circuit Review are written and edited by Chicago-Kent College of Law students enrolled in the Seventh Circuit Review Honors Seminar.

The entire journal is student written and edited as part of their seminar duties. If I wasn't currently neck deep in my own seminar materials, I would take the time to read some of the articles. Unfortunately, I'm still slaying the dragon that is Sarbanes-Oxley. This draft has to be in by Tuesday, so by hell or high water, I'll be able to read a few of the Review's articles by then.

A friend recently brought to my attention the fact that I have been slacking on the beer reviews. I have to blame this on my recent illness and my recent busy school schedule. It certainly isn't for lack of material. Fall and Winter are some of my favorite beer times. Breweries produce some excellent Octoberfests and other seasonals.

On the chopping block tonight is the Samuel Adams Winter Lager. As you can probably tell from the name, this is a Sam Adams seasonal. It has a nice dark brown color to it. It's brown but not cloudy if you hold it up to the light. The aroma is fairly malty with a bit of cinnamon and some other spice that I can't identify. I was surprised at its body. I was expecting something a little heavier, even though this is a lager not an ale, but it was very drinkable and smooth. The flavor is malty, like the aroma, with those spices playing a role as well. They add a tingling activation of the taste buds. The flavor does also coat your mouth. It definitely hangs around. That's not a bad thing either, especially with a Winter beer. It's got a warming attribute to it. The flavor is fairly rich, even if the body is not, so I could not see myself drinking more than two of these in an evening. It's a decent beer, but it definitely has a distinct role.

Over at the University of Chicago Law Faculty blog, Prof. Cass Sunstein is talking about the effects of the New Jersey gay marriage decision. There is a fairly widespread belief that this decision will energize conservative voters to get to the polls to vote for their states' marriage initiatives and Republican candidates. Sunstein is concerned about the practice of releasing "controversial" decisions before elections...

Suppose finally that the court is aware that the ruling will have at least some degree of relevance to voters. Should the court refuse to issue the opinion until after the election?

Sunstein says that there are two possible ways that a court could go on this issue...

1. The court should issue an opinion whenever it is ready to do so. It does not matter whether an election is imminent. It is no more neutral to hold the opinion than to issue it immediately. If the court's decision is controversial, the voters deserve to know about it before they vote, not after. "Holding" an opinion is too strategic; it smacks of opportunistic behavior on the court's part, an effort to avoid electoral reprisal.

Or...

2. It is appropriate and possibly the better practice for the court not to issue a controversial opinion in the period immediately preceding an election, simply because of the risk that the timing will give the opinion undue salience, in a way that will distort the process. Of course any particular event might have such a distorting effect, if it occurs immediately before an election. But if judges can control the timing of their intervention to avoid the risk of that distorting effect, they should do so.

Sunstein then endorses option 2. He thinks 1 is reasonable, but is concerned that the timing will "distort the whole process by making one development especially salient."

Personally, I think that option 1 is the correct view. And as bizarre as this is, Prof. Geoffrey Stone agrees with me in the comments section...

A court should issue its opinion when it is ready. It should not manipulate the timing of the release for what are essentially political reasons. If courts followed approach #2, they would be tempted to act on the basis of partisan considerations. That, in my view, would be the worst of all possible outcomes.

The courts should operate on their own schedule, not on a national election schedule. Our appeals courts are backed up enough (and understaffed in the judges department) to be screwing around with their calendars even more. I think that it's also unfair to withhold a decision, a decision based on a case brought by real people with real concerns at stake in the case, in order for some amorphous "greater good" of the political landscape. As I understand it, the decision also had to be released before the New Jersey Supreme Court Chief Justice retired this week. I can't believe that Sunstein would want the decision held back and force a reargument of the case with the new court. The opinions should be issued as they are completed.

As I have said before on here, I have no strong personal feelings about the gay marriage issue itself in general or the Marriage Amendment in particular. I have been following the issue though, mostly because it's almost impossible to avoid it in the legal world. I would like to take the time to make a few observations about the legal aspects of the issue in Wisconsin and about the debate itself.

Voting yes on the Amendment is a vote based on a belief. It's a vote based on what the proper definition of the term "marriage" is in our society. I think that taking a position like that is perfectly justifiable. Black's Law Dictionary defines marriage as follows...

The legal union of a man and woman as husband and wife. The essentials of a valid marriage are (1) parties legally capable of contracting to marry, (2) mutual consent of agreement, and (3) an actual contracting in the form prescribed by law.

Of course, one must recognize that definitions can and do change. However, if the definition as quoted from Black's is the one that the people of Wisconsin agree with, what is wrong with that?

There are concerns about putting any one definition of marriage into the state constitution. Putting a fairly concrete definition of marriage in the constitution, especially one that closes off the possibility of civil unions, is a major step. It makes it much harder for future generations (who may have different views on this subject) from legislating those. This was one of Judge J. Harvie Wilkinson's problems with the Virginia amendment...

Ordinary legislation -- not constitutional amendments -- should express the community's view that marriage "shall consist only of the union of a man and a woman." To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own.

The counter to that is that the constitution can be amended again. Depending on the political climate at that time, it may be very difficult or fairly easy. That's all just speculation on unknown future events. But make no mistake about it. Amending the constitution is a big deal and should not be done lightly.

Some of the arguments and claims being put forth by the Vote No crowd have concerned me. One of the big claims is that nothing will change in Wisconsin if the Amendment is defeated. The statutory definition of marriage between a man and a woman will still be on the books. Well, that's technically true, but that's nowhere near the whole story, legally speaking. There is nothing stopping someone from challenging the constitutionality, probably on Equal Protection grounds, of that statutory definition. And now the question is in the courts, something that the Vote Yes crowd has been trying to avoid. What would the Wisconsin State Supreme Court do?

Prof. Althouse recently linked to an incredibly interesting article in the Wisconsin State Journal about this very issue. This article contains some very candid statements by former Wisconsin Supreme Court Justices...

"In my judgment that would be a very, very close vote on the court," said William Bablitch, a former Supreme Court justice who served on the court for two decades and took part in two key decisions relating to gay couples and families. "It could come out either way."

That's not exactly comforting to people who don't want gay marriage or civil unions enacted by judicial fiat. Let's count votes...

For his part, Bablitch guessed that in a hypothetical marriage law challenge, of the court's seven members, Justices Abrahamson and Ann Walsh Bradley would likely vote to throw the current law out and Wilcox, appointed by former Republican Gov. Tommy Thompson, and Justice Pat Roggensack would likely vote to uphold it.

Justice Louis Butler Jr., an appointee of Democratic Gov. Jim Doyle, might vote to throw out the law as well, Bablitch said. That would be 3-2 in favor of ending the ban on gay marriage, leaving Justice N. Patrick Crooks and Justice David Prosser Jr., another Thompson appointee, to decide which side would prevail.

I agree with the analysis by Bablitch, but I think that Justice Butler is a solid vote to throw out the law. Of course, this analysis is based on the current composition of the court. There is no pending case, and any case would probably take a while to get through the circuit court and the appeals court (unless the appeals court punts it right up to the state supreme court, and they certainly can ask for that). As former Chief Justice Geske says in the article, a case could take two to three years to make it through the courts. Justice Wilcox, a solid vote to uphold the law, is retiring in July. His seat is likely to be filled by either Madison attorney Linda Clifford (a liberal) or Judge Annette Ziegler (a conservative). That possible shift in the court's composition would have an effect on any potential decision.

Would the court actually strike down the marriage statute? Some say no...

Mike Tate, campaign manager of anti-amendment group Fair Wisconsin, said he sees harmful consequences to the proposal and no strong chance that a Wisconsin court would approve gay marriage. "It's really highly unlikely that we'd see judges go against the grain of popular opinion."

With all due respect to Mr. Tate, I have to disagree. This is the court that rewrote the rational basis test and struck down the statutory limits on noneconomic damages in medical malpractice cases. This is the court that got rid of the individual causation requirement for tort liability for lead paint manufacturers. This is the court that claimed their supervisory authority over the court system lets them impose a new rule on law enforcement that all juvenile custodial interrogations be electronically recorded. The majority of this court will do whatever they want. They've demonstrated that time and time again. And because any decision that they make will be undoubtedly based on the Wisconsin constitution and not the federal Constitution, it cannot be appealed any further. It's the law.

Another problem that I have with the claim that "nothing will happen" is that some of the people making that claim don't believe it themselves. Frequent Vote Yes speaker Rick Esenberg has made this point...

This has lead to a kind of surreal campaign in which folks who believe in same sex marriage and who think that the current unavailability of marriage to same sex couples is unjust argue against the amendment by assuring us that what they see as an injustice will continue.

If you want gay marriage in this state, then argue for it. It's a perfectly defensible position. Just don't say to one group of people that nothing will happen and then say to another group that Equal Protection demands gay marriage rights. It's underhanded.

Another problem that I have with the Vote No crowd is the claim that the second sentence of the Amendment will have far reaching effects. Proponents of the Amendment say that the second sentence is designed to prevent courts from "pulling a Vermont" (and now, a New Jersey), demanding some equal structure for gay partners, probably civil unions of some type. The Vote No groups say that the second sentence, which does not allow "a legal status identical or substantially similar to that of marriage for unmarried individuals," puts other legal arrangements in jeopardy. These include financial and medical powers of attorney, wills, trusts, and guardianships. The claim is that these instruments, used by both gay and straight unmarried individuals, could be voided by the courts as being a legal status identical or substantially similar to marriage. I know of no case in the country where this has happened with one of those legal instruments. If someone could cite one, I would be eager to read it and see the court's reasoning. These are very old and recognized legal arrangements. I would be very surprised to see a court void one based on the Amendment language.

I also think it's a little suspect to claim that we don't know how the courts will apply the Amendment language to these legal arrangements, but then claim that the state supreme court will not demand gay marriage or civil unions absent the Amendment. As I said, there hasn't been a case where these legal arrangements have been thrown out (and again, if there is one, I just haven't seen it yet). However, there have been cases where state supreme courts have demanded gay marriage and/or civil unions. There's much more evidence that that result is more likely.

This is getting very long and I should wrap things up. I think that people who believe that marriage is between a man and a woman and don't want to see that changed should probably vote for this Amendment. I think that the Wisconsin Supreme Court with its current membership, would very closely strike down the current marriage statute. I also think that it is very likely that a case will be brought in the near future asking the court to do just that.

I think that people who want gay marriage, civil unions, or either of them in the near future should probably vote against the Amendment. While the state constitution can be amended again, it's probably not going to be easy. There is a definite sense of permanency about this definition of marriage. The state will be stuck with it.

Personally, I take the position that I have had since the issue of the Amendment first came up. I'm not voting for it, and I'm not voting against it. I don't know if anything will change my mind between now and election day, but it's possible.

How Appealing linked to this Law.com article about Justice Clarence Thomas and his recent visit to Atlanta, home of the Eleventh Circuit. The article focuses on Thomas' criticisms of overly aggressive appeals court judges who barely let lawyers speak during oral argument. While that is interesting, other parts of the article caught my eye...

On threats to an independent judiciary: Thomas said he believes that an independent judiciary is more at risk today. "Some of it is our own doing," he said. "We're drifting into areas people have strong feelings about ... We're getting into social issues where I don't think we should be making decisions." The abortion issue, Thomas suggested, "has changed the confirmation process and not for the better."

"I don't think we're better off," he said of what have become protracted confirmation hearings. "We don't have a better court. ... We are getting to be political footballs."

This is a very different view about the causes of threats to the judiciary than we have heard lately from people like Justice O'Connor. Justice Thomas places some blame on judges treading into areas that they should leave alone. I agree with him. I think that the courts in general and the Court in particular have done nothing but hurt their credibility by diving into social issues. It makes the Court much, much more political than it should be. It also, as Thomas points out, reeks havoc on the confirmation process.

This last comment is also interesting...

On cameras in the courtroom: "I'm not all that enthralled with that idea. I don't see how it helps us do our job. I think it may distract from us doing our job." And, he added, if 80 percent of the appellate process is wrapped up in the briefs, "How many of the people watching will know what the case is about if they haven't read the briefs?" The level of understanding, he suggested, would be "very shallow."

This is a good point that I don't recall seeing before in the discussion of cameras in the Court. It reminded me of an incident at the beginning of the 2005 term of the Court. I read the transcript from one of the first cases argued before the new Chief Justice. I, like many others, was eager to see how he handled himself in oral arguments. I knew nothing about the case that I picked before starting to read the transcript. I hadn't read any of the briefs or even any blog posts about the case. I was totally lost, and I like to think that I have at least some grasp on legal issues. Without the proper background, it's pretty hard to follow some (maybe most) of the Court's cases. Try to follow an ERISA case. Your eyes will probably melt.

The law school already had a Marriage Amendment Debate earlier this month (and it was a huge success, by the way). Now, Prof. McAdams has provided us with a heads up about the mother of all Marriage Amendment debates on the Marquette campus at large. Here are the details...I might attend this event, depending on the progress of my seminar paper. The whole gay marriage issue doesn't really interest me, except on an intellectual level as far as how courts are approaching it and finding rights to it in constitutions. However, I love a good debate and this one looks like it's going to be a doozy. I don't know Mr. Tate, but I can speak for Moss, Wolfe, and Esenberg. All are very smart individuals, and they know the issue. They will do an excellent job battling it out for our viewing pleasure.

Above the Law recently had a poll asking readers for their favorite Supreme Court Justice. Now, it's time to say who your least favorite Justice is. This was a pretty easy call for me: Anthony MacLeod Kennedy.

I know what the gut reaction is going to be from many people. "You just don't like him because he's the swing vote that's blocking the five-vote majority that you want." Well, partially. There is much more than that though. Kennedy's jurisprudence just drives me nuts. He just doesn't have an aversion to bright line rules. He has an aversion to making up his mind.

For example, let's look at the redistricting cases. The classic Kennedy opinion is his concurrence in Vieth v Jubelirer. This was a 2004 case that upheld a Republican-drawn district map (some would call a gerrymander) in Pennsylvania. It was a 5-4 case with Kennedy providing the fifth vote in judgment only. He signed onto the result of the plurality opinion but not its reasoning. The plurality in Vieth (made up of Chief Justice Rehnquist, Justice Scalia, Justice Thomas, and Justice O'Connor) rejected the test put forth in Bandemer (a previous redistricting case), saying that political gerrymandering was a political question that was not for the Court to decide.

Justice Kennedy did not agree on the political question view. He did not want to shut off the possibility of a workable test to be applied in these cases that could invalidate a political gerrymander. Unfortunately, Kennedy could not come up with one himself. His opinion was basically, "There's no good test yet, I can't think of one, there might be one out there, make one up." Last term's LULAC v Perry didn't add much to clear up this issue. Kennedy still clings to the hope that someone can come up with a workable test, even though no Justice, petitioner, respondent, or amici has come up with one yet. Get off the fence, Tony. It's a political question.

How about another example? When he does come up with a test, it can be incredibly difficult to apply. This is a criticism that could be leveled at Justice O'Connor as well. Both of them are fond of telling lower courts to look at and consider a list of factors, then make a decision. Well, that doesn't offer lower courts, especially district courts, much help. It certainly puts any idea of consistency in question. An example of this is Kennedy's concurrence in Rapanos v US. Rapanos was the recent 5-4 Clean Water Act decision. Again, Kennedy concurred with the plurality in result only. Instead of adopting the bright line rules of either the plurality or the dissent, Kennedy's concurrence demands a "significant nexus" test to determine jurisdiction of certain waters under the CWA.

Sounds very concrete, doesn't it? Well, it's managed to confuse one district judge in the Eastern District of Texas. In US v Chevron Pipe Line, the judge basically said that he knows Kennedy's concurrence should control (as it was the narrowest 5-vote opinion) but he couldn't apply it. The judge said that there was no guidance in how the "vague, subjective centerpiece" that is the significant nexus should be applied. The court then fell back on the existing Fifth Circuit precedent on the issue.

Part of the problem is that everyone is sitting on their hands right now. The Army Corps of Engineers, the agency that handles wetlands under the CWA, hasn't issued new regulations, post-Rapanos. They aren't saying a thing until the courts start applying Rapanos. Courts like the one in the Eastern District of Texas have no Corps regulations to help guide them. Only the Ninth and the Seventh Circuit Court of Appeals have spoken on Kennedy's test so far. The Seventh Circuit booted US v Gerke Excavating back to the district court for more fact finding in order to apply Kennedy's test. Best of luck with that, district court judge.

Those are just two examples of Kennedy's problematic jurisprudence. I could also mention the foreign law issues and the crapping up of judicial opinions with things like "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," but I've spent enough time on this. My vote for Kennedy was an easy one.

I have a lot of material for posts but haven't been near a computer until now. I was in court all day and at the Flogging Molly concert tonight.

Posts on the way...

Blogger has been going crazy all night, so I'm doing one post and getting the hell out of here before it explodes. Andrew Hyman of Confirm Them linked and quoted this piece written by Paul Weyrich. Weyrich is talking about the looming Congressional elections and the prospect of a Democratic controlled Congress. He touches on a subject that is near and dear to my heart, judicial nominees...

Consider also the matter of judicial nominees. This has been the very best part of the Bush Administration. Judicial appointments are the one legacy of an administration that lasts long after it has faded into history. The Supreme Court Justices who were appointed by Bush may stay on the High Court for 30 years. Justice John Paul Stevens was appointed by President Gerald R. Ford in 1975. He shows no sign of retiring and is in excellent health. It is not only the Supreme Court Justices who are important. President Bush's nominees to the Courts of Appeals have been superb. More than 98% of Federal appeals are decided at that level. Well under 100 cases are adjudicated by the Supreme Court. If the Democrats take control of the Senate they have pledged to filibuster Bush's judicial nominees. Even State Auditor Robert Casey, Jr., the Democratic nominee against Senator Rick Santorum in Pennsylvania, who says he is pro-life, also says he would support the filibuster of Bush nominees. James H. Webb, Jr., the Reagan Republican turned Democrat to run against Virginia's Senator George Allen, also has indicated he would oppose Bush nominees. Those are the most conservative Democrats running. The other candidates who could win are in Maryland, Missouri, Montana, Ohio and Rhode Island and are strong liberals. There is no question that they would oppose Bush nominees.

Emphasis added. This is an important point. Appeals court judges decide a huge amount of the important federal cases in the system. The Supreme Court, while incredibly important, hears very few cases. I am firmly behind George W. Bush and the Republicans who put Michael McConnell, Janice Rogers Brown, William Pryor, Neil Gorsuch, etc. on the federal appellate bench. I'm not always firmly behind the legislative agenda, but you take the good with the bad.

This part of the piece was very interesting...

When I was at the swearing-in of Supreme Court Justice Samuel A. Alito, Jr., at the White House, Justice Clarence Thomas pulled me aside and he said, "If the other party had controlled the Senate, Alito would not have even gotten out of the Judiciary Committee."

Thomas himself survived the Judiciary Committee despite Anita F. Hill's accusations, but only because there were some moderate Democrats on the Committee then. There is none now. In fact, there is only one real conservative Democrat left in the Senate, Ben Nelson of Nebraska. There are a couple of liberals who will vote with the President on occasion, such as energy policy, but there is none other. And the Judiciary Committee is the most ideological of all the committees. The Senate Democratic Leadership has made sure that only leftists serve on that Committee.

Emphasis added yet again. I think that Justice Thomas is absolutely correct. Alito would've been sunk if the Democrats had the votes. It was obvious that they didn't and that the whole filibuster thing was just Kerry and other 2008 presidential hopefuls trying to out-Kos each other. Remember what happened to the moderate Senate Democrats that backed Thomas. They were sent packing. On the judges issue, there are fewer and fewer Democrats that can get away with backing conservative nominees, no matter how qualified they are.

This coming election is going to have a major effect on judicial nominations for the rest of the Bush presidency.

Voter ID laws are in the news a lot lately. The recent Seventh Circuit Court of Appeals oral argument and the even more recent Supreme Court order about the Arizona law have had election law nuts buzzing about these laws. Now, the Wall Street Journal has entered the fray with this commentary.

The op-ed talks about the tendency for courts to invalidate these laws...

Public polls consistently show that an overwhelming majority of Americans--regardless of age, race, ethnicity or socioeconomic status--favor voter ID laws. And nearly half of the nation's states have passed them. Yet a string of recent court decisions has blocked their implementation in some places, thus siding with Democrats and liberal special interest groups who would rather turn a blind eye to voter fraud.

The focus then shifts to the Missouri situation...

The state passed its new voting requirements in May in response to problems at the polls in 2000 and 2004, and the IDs were made available at no charge. The law was to be implemented over a two-year period, and people who lacked proper identification would be permitted to cast a provisional vote next month.

Despite these good faith efforts to ensure legitimate ballot access, however, opponents charge that photo ID requirements are overly burdensome and tantamount to a poll tax. The Missouri Democratic Party, which challenged the law, said that while the ID itself is free, the underlying documents--such as a birth certificate--required to obtain the necessary identification cost money. And state judges were sympathetic to the argument.

The State Supreme Court then struck down the law on a 6-1 decision. The lone dissenter, Justice Stephen Limbaugh Jr. said that the majority failed to take into account the existence of voter fraud...

"Although the majority agrees that there is some evidence of voter fraud at the voter registration stage, they discount that evidence as if it had no connection with fraud at the polling place," wrote Judge Limbaugh. "But why else does voter registration fraud occur if not to vote persons fraudulently registered?"

That is the logical result of someone registering fraudulently. They're going to vote with that fraudulent name. And once that name is on the rolls, it's hard to figure out that it's not supposed to be there without sufficient legal protections.

Are these laws "poll taxes" as some claim? The WSJ says no...

Showing ID is an incidental cost of voting, like having to buy a postage stamp for an absentee ballot, or feed the parking meter when you go to the polling booth. Poll taxes, by contrast, required a person to pay a fee every time he voted and were adopted for racially discriminatory purposes.

There are incidental costs to voting, including everything from the gas you burn to get to the polling place or the time you spend in line (45 minutes for me in the 2004 presidential election). Hell, even the pen you use to fill out your absentee ballot costs money.

The op-ed mentions that the Michigan Supreme Court will be tackling this issue in November. I get the feeling that one or more of these cases will end up before the Supreme Court in the near future to be decided on the merits. Based on their recent order in the Arizona case, I think that they will look closely at the dangers of fraud that Justice Limbaugh's dissent mentioned in the Missouri case. The Court will have to balance the interests involved here.

Chief Justice John Roberts recently appeared at Middlebury College in Middlebury, Vermont. Of course whenever anyone even tenuously related to the Bush Administration shows up at a college campus, the protesters come out of the wood work.

Nothing shows the seriousness of your convictions about an issue like a pizza box.

There are benefits to being a Supreme Court Justice, beyond the power and lifetime tenure...



That is neither Mrs. Scalia nor Mrs. Alito.

Pictures courtesy of Reuters.

This post from Balkinization (linked via Hasen's Election Law Blog) discusses an interesting possibility for getting around campaign finance contribution laws. This example focuses on Senator Hillary Clinton's Senate campaign and probable presidential campaign. Ian Ayres quotes the New York Times concerning Clinton's campaign cash situation...

Mrs. Clinton has raised nearly $50 million and spent about $35 million; both the infrastructure she has built and whatever money is left at the end can be transferred into a presidential race if she decides to run.

Ayres then makes this astute observation...

Imagine that a presidential candidate wants to allow people to contribute more to her campaign than is currently allowed under Federal campaign law. She could sign up to run in the off year election for the House and the Senate (and maybe have her relatives run for House and Senate in the same state). Supporters of the presidential campaign make maximum contributions to the House and Senate campaigns. To be extreme, imagine that these are sham candidacies and that she and her relatives spend almost none of the money contributed so as to maximize the amount that can be transfered post defeat to the real presidential campaign. The supporters who maxed out in making contributions to the sham campaigns can also max out in giving to the presidential campaign. And voila you have neat/scary way to end run the contribution limits.

Sure, this seems like an extreme way to avoid contribution limits, but I'm sure that there are more than a few people who would go to extreme measures to get into the White House.

During the unit on election law in my Legislation course last semester, we talked at length about the effectiveness of campaign finance laws. Some people (myself included) believe that these laws have an effect similar to that of pushing your finger into a balloon. Push all you want, but the balloon will have the same amount of air. It will just move and bulge elsewhere. Campaign finance laws are similar. A law can try to correct a "problem" and focus the regulatory might of the FEC on that area. Candidates and their contributors will always find a way around that law though.

In my Legislation course, even the most ardent supporters of contribution limits and McCain-Feingold had to admit that there will always be ways around these laws. America's law schools are churning out intelligent, creative individuals who are happy to come up with clever solutions like the one above. Meanwhile, the rest of us just watch these laws and regulations pile up, making elections and campaigning a complicated process beyond the comprehension of most ordinary people.

Later, Scalia observed, "It so happens that everything that is stupid is not unconstitutional."

I can't not love that man.

Justice Antonin Scalia recently debated ACLU President Nadine Strossen about the state of civil liberties in the US. I missed it on C-SPAN last week when it was originally aired (because I had no idea that it was on). Fortunately, the good people at C-SPAN have the video archived on their website.

If you're looking for a summary of Scalia's points, CNN has a fairly decent story about the debate. For those of us who are familiar with Scalia's judicial philosophy, there are no surprises here. He clearly and forcefully advocates his views as always.

EDIT: C-SPAN is showing this on tonight's episode of America and the Courts.

Andrew Cohen is upset with Chief Justice John Roberts over some recent comments about the confirmation process. After a lengthy paragraph proclaiming his pro-Roberts cred, Cohen chastises the Chief for a recent statement at the University of South Carolina law school...

...that the Senate shouldn't take as long as it does to confirm members of the Supreme Court. "I certainly think they're too long, four or five days," he reportedly told the students who had assembled to watch the Boy Wonder preside over a "moot court" competition at the school... "It does wear on you a little bit," the Chief Justice added.

Now Cohen gets really judgmental. "Shame on the Chief Justice," he says. He's ready to place some blame about the sorry state of judicial confirmation hearings too...

[T]he most direct reason why judicial confirmation hearings often take way longer than they ought to, is because the candidates themselves simple aren't willing to be candid in any way about their political and legal leanings. John Roberts' performance last September was stunning-- mostly because he mastered the art of saying absolutely nothing in 743 different ways. That's nobody's fault but his own. Had he been candid with the Committee, had he answered questions directly and without hiding behind the "I can't talk about this because one day I might have to decide it," Roberts' confirmation could have been only slightly longer than that of Kennedy-appointee Byron "Whizzer" White, who stayed before the Committee just long enough for a cup of coffee in 1962.

Personally, I think this is a crock. Given an ample record based on a judicial and/or legal career, it isn't hard to figure out the legal leanings of a nominee. I don't know how anyone could look at Roberts' career (clerkship for Justice Rehnquist, special assistant to the Attorney General in the Reagan administration, associate counsel to the president again in the Reagan administration, judicial nominations and eventually an appointment under both Bush administrations) and not see that he's a conservative.

I think that the people who bemoan the lack of candid answers by nominees are being disingenuous. They really just care about getting an answer that they can use to kill the nomination. This was one of my problems with Senator Kennedy's criticisms about the process. Senators in the opposing party want a smoking gun statement ("I will overturn Roe," or "I will impose gay marriage.") that can be used against the nominee. It's just a big gotcha game that has little if anything to do with a substantive examination of the nominee's views.

Given a nominee that lacks a strong, substantive record (like Harriet Miers), I would be much more sympathetic to Cohen's complaints. However, I don't that any of the contemporary nominees who made it, Alito, Roberts, Breyer, or Ginsburg, lacked that ample record.

Cohen does make a point about the confirmation process that I have made in the past...

Part of the problem, as I've written before, is the inability of Committee members to pay attention long enough to bore in on a particular topic and actually listen to what the nominee says when answering a question. All too often, the Senators speak to themselves, or to their constuents, as if there is no one else in the room, much less a Supreme Court-nominee who is more or less held captive until the process is over.

Very few Senators engage in anything that comes close to a real examination of legal issues. They ask stand alone questions, usually with no follow up, that have obviously been written by some staffer or law professor. Some Senators (Biden, I'm looking in your direction) give long winded speeches, proclaiming their views on the Constitution and policy issues. Meanwhile, the nominee sits quietly, hands folded, waiting for some question, ANY question.

I have a modest proposal (that may or may not be Swiftian, I'm not sure yet). We're going to give the Senate one more shot. They get to have another confirmation hearing, as they have in the past, for the next Supreme Court nominee. If they can't put together a passable, respectable performance, then that's it. No more nominee testimony at confirmation hearings. The Senators can analyze the nominee's record and career, hear testimony from experts and witnesses, and debate the merits of the nominee.

Cohen made a reference to Justice Byron White's confirmation hearing. It lasted 15 minutes and consisted of 8 questions. Nominees in the past have testified less or not at all. This lack of a marathon question and answer session had very little effect on the quality of the nominees. For instance, Justice White was an exceptional jurist and widely respected by members of both political parties, no circus-like hearing necessary.

Above the Law has a fairly basic and straightforward poll: Who is your favorite Supreme Court Justice? Deciding my vote in this poll took more thought and time than the Concurring Opinions poll about the biggest case this term. How does one pick a favorite? What criteria does one use? I'd say that my personal judicial philosophy is closest to that of Justice Thomas. That's very important, but I don't know if that's enough to make him my "favorite." Justice Scalia is an excellent writer and spokesman for originalism and textualism. He's definitely a contender.

In the end, I cast my vote for Chief Justice Roberts. I was very impressed with his first term as Chief and his performance during his confirmation hearings. His questioning at oral argument is usually very direct and probing. He's not one to degenerate into giving speeches, eating into the lawyers' time. That's probably because of his previous career as a Supreme Court litigator. His opinions are well written, clear, and crisp. He avoids fluff and excess. The Chief also has a great sense of humor that occasionally shows up in opinions, at oral argument, and in speeches. He also instituted the policy of same day oral argument transcripts being posted online. That's a big plus in my book. Currently, he's my favorite Justice. Go vote for yours.

On the heels of my post about the Seventh Circuit's voter ID case, the Supreme Court has invalidated the Ninth Circuit Court of Appeals' decision that blocked Arizona's voter ID law. Rick Hasen at the Election Blog has the heads up. In the Court's unanimous opinion, the Justices describe the law itself...

The election procedures implemented to effect Proposition 200 do not necessarily result in the turning away of qualified, registered voters by election officials for lack of proper identification. A voter who arrives at the polls on election day without identification may cast a conditional provisional ballot. For that ballot to be counted, the voter is allowed five business days to return to a designated site and present proper identification. In addition any voter who knows he or she cannot secure identification within five business days of the election has the option to vote before election day during the early voting period.

The Court then examines the applicable election law precedent, reaffirming that states have a compelling interest in maintaining the integrity of their elections...

Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.

The Court quotes the language from Reynolds v Sims that voting rights can be denied by dilution (in this case, dilution by fraudulent votes). The Court makes it clear that they are not looking at the merits of the case...

As we have noted, the facts in these cases are hotly contested, and "[n]o bright line separates permissible election-related regulation from unconstitutional infringements." [citation omitted]. Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules.

Justice Stevens' short concurring opinion is incredibly interesting. He says that there are important factual issues about the effects of the law that are unknown. The only way to actually know what problems (if any) the law will cause is to see it in effect. Stevens also says that this issue is so important that the Court should be making its judgment based on facts, not speculation. This strikes me as sort of odd. It seems like Stevens is saying that it's okay for the Arizona election to be an experiment. I don't know how the people of Arizona would view that... A commenter on Volokh thinks that this is Stevens telling political activists to keep the election clean. By doing that, they would minimize the amount of fraud (or maybe even the threat of fraud) in relation to the chilling effect of the ID requirement keeping people away from the polls. Intriguing, but I don't know if Stevens is that Machiavellian.

Hasen believes that the opinion is important for two reasons...

1. The court notes important voter interests on both sides of the voter i.d. debate (echoing what Judge Posner said in 7th Circuit oral arguments on the Indiana voter i.d. law earlier this week).
...
2. The Court seems to be signaling an argument against last minute court interventions in the machinery of running elections unless really necessary.

The Court is at the very least recognizing the balancing of interests that Judge Posner discussed a few days ago. There aren't any clues about their views on the merits of the case, though. We can't really extrapolate what they would do if this case was before them based on this short opinion. The second point seems to be a procedural warning shot fired across the bow of the appeals courts. Some courts, the Ninth in particular, don't seem to give the lower District Courts enough deference in factual matters. The judges on the Ninth Circuit seemingly ignored the factual findings of the District Court and offered no justification for their order. The Court is also saying that appeals courts need to be wary that their decisions can result in confusion, causing more voters to stay away from the polls.

And I thought this would be a slow Friday...

Jacob Sullum of Hit and Run spotted this news item about Oregon's attempts to reform asset forfeiture in their state. I previously wrote about asset forfeiture's roots and mechanics here. Here's what Oregon tried to do...

The 2000 law, known as Measure 3, raised the bar, requiring police to get a criminal conviction before they could pursue a forfeiture. It also tightened the rules on what is subject to forfeiture, effectively slashing the amounts police could claim and cutting off a major source of funding for narcotics investigations.

The Lincoln County Interagency Narcotics Team sued to have the law overturned. They won at the appellate court level, but the Oregon Supreme Court upheld the law in a 4-3 decision. Many are celebrating...

David Fidanque of the American Civil Liberties Union of Oregon called Thursday's ruling "great news" and a big step toward protecting people from unjustified seizures of their property.

"This ensures that as we try to take the profit out of crime that we only seize property from criminals," Fidanque said. "Prior to Measure 3, the complete burden was on the property owner to prove their innocence."

Others are not...

But a law enforcement official, Rob Bovett, lawyer for the Lincoln Interagency Narcotics Team, called the ruling a disappointment and said Measure 3 has hurt the fight against Oregon's methamphetamine problem.

Measure 3 "has helped to dismantle or cripple many Oregon drug task forces at the most critical time in our meth epidemic," he said, and it has "let convicted meth dealers keep much of their ill-gotten gains."

Personally, I'm on the side of the ACLU on this one. I'd like to know that the seized assets belonged to actual criminals. Otherwise, the threat for abuse is quite high.

Concurring Opinions has a simple but interesting Supreme Court poll on their site right now. Prof. Dave Hoffman asks us which of this year's Supreme Court cases will be most significant. The options are Gonzales v Carhart, Massachusetts v EPA, Meredith v Jefferson County Board of Education, Phillip Morris v Williams, Burton v Waddington, KSR International v Teleflex, Bell Atlantic v Twombly, Environmental Defense v Duke Energy, Rockwell International v US, or a yet to be granted case. I went with my gut reaction and chose Carhart.

The partial birth abortion issue specifically and abortion in general are such hot topic Supreme Court issues. Everyone will be watching our two newest Justices to see how they tackle their first abortion case. We will also be watching to see if Justice Kennedy changes his mind on the issue, as he has been prone to do on occasion. Meredith is a contender too, considering how touchy race-based school issues are in this country. As a more practical matter, Phillip Morris may be the most important case, because of the effects it may have on punitive damages limits.

At the end of the day, I think my gut reaction was right. Carhart will be the biggest case of the term. The Court hasn't decided to hear many cases yet, but there are quite a few high profile ones. This term should be much more interesting than last term.

Today, the Seventh Circuit Court of Appeals, the appellate court that has stolen my heart, heard oral argument in Crawford v Rokita. In this case, a group of individuals and the Indiana Democratic Party are challenging Indiana's voter ID law. The Democrats are saying that the law is unfair to the poor, the elderly, and minorities who do not have photo ID or have difficulties obtaining it.

Rick Hasen of the Election Law Blog has a link to the oral argument audio and some analysis. The three judge panel was excellent. It consisted of Judge Posner, Judge Evans, and Judge Sykes. Posner captained the oral argument ship as usual, but Evans and Sykes asked some good questions as well. The facts involved made the case pretty interesting. There hasn't been a single instance of voter fraud being prosecuted. The state is relying on the findings of the Carter-Baker commission about the risks of voter fraud to justify the law. On the other hand, none of the plaintiffs are people who lack voter ID, which brings up issues of standing.

Hasen thinks that Posner may have tipped his hand regarding his vote, based on his line of questioning...

Judge Posner said that the test is not whether this is a narrowly tailored law. There are voting rights on both sides of the case. The fraud dilutes the voting rights of those who vote legitimately. Challengers say the fraud problem is small, and state says burden is small. I think he is likely, though not certain, to vote to uphold the law, given what he sees as a lack of evidence on either side of either a great benefit or burden. Doubt goes to the state. It was unclear to me how the other judges were leaning.

I think Hasen is right, and Posner is leaning towards upholding the law. He made a big deal about the fact that the amount of people truly affected by this law is very small. Judge Evans seems more concerned about the time frame involved and the difficulty that people will have in obtaining their materials. This is especially true for people who were born out of state and need their birth certificate. I think he's likely to strike down the law. Judge Sykes is harder to read, mostly because she asked the fewest questions. My gut says that she would side with Posner, but my gut is infamously stupid.

There is a national trend among the courts to strike down these voter ID laws. The Missouri Supreme Court struck down their state's voter ID law, a Georgia court found their law unconstitutional, and the Ninth Circuit Court of Appeals recently blocked Arizona's law. If the Seventh Circuit upholds this law, it would be a significant change in the momentum of this kind of litigation. Hasen thinks that this case or at least this issue could end up before the Supreme Court if the Seventh Circuit upholds. I'll be waiting eagerly for this decision.

After the Kelo decision about eminent domain, many states have responded with ballot initiatives that would limit the broad powers of local governments to take private property. In Reason, Ronald Bailey takes a look at some interesting aspects of these initiatives. I wasn't aware of this, but some of the ballot initiatives would demand compensation for regulatory takings too. A regulatory taking happens when the government restricts what you can do on your land. Some people are unhappy about this, as Bailey points out...

Naturally, people who think they know best how other people should use their property are up in arms over the initiatives. The Washington Post characterizes property rights advocates as "trying to harness anger over the [Kelo] ruling in an effort to pass state initiatives in the West and federal legislation that could unravel a long-standing fabric of state and local land-use regulations. Among other things, the rules control growth, limit sprawl, ensure open space and protect the environment." Unmentioned by the Post is that the rules do all those good things without paying people who own the affected farms, ranches, forests and homes a dime for the lost value of their land.

There has always been a tension between property owners and interest groups about who gets to do what and where. Bailey seems to be saying that the restrictions are fine, but the land owners should be compensated. Interest groups, especially environmental groups, are against this.

Bailey points out a strange conflict here with the environmental groups...

The puzzle at the heart of the environmentalists' reluctance to compensate landowners for zoning restrictions comes into focus when you consider their attitudes toward conservation easements. A conservation easement is a voluntary legal arrangement in which a landowner agrees to protect the conservation values of a piece of land by permanently limiting its present and future uses. Landowners then donate the easement to qualified conservation organizations that make sure the land is managed in line with the restrictions established by the easement. For this land owners get substantial federal and state income tax breaks.

Conservation easements are increasingly popular. There was a presentation about them at this year's State Bar Environmental Law CLE. The philosophical, pro-environment effects coupled with the significant tax breaks make them very attractive to many people. Bailey shows just how attractive that they are...

Without bothering to go through the calculations here, one tax advisor notes that the combination of federal income and estate tax benefits can equal or exceed the cost of the easement itself, up to as much 146 percent of the cost of easement. In other words, voluntary land restrictions are compensated-—sometimes very well compensated-through the tax code.

Very attractive.

So you can chose to put a restriction on your property and get compensation, but property owners who have restrictions imposed upon them get nothing. Funny how that works. Bailey states that if we compensate voluntary land use restrictions, then we should especially pay for imposing involuntary land use restrictions. It's a matter of fairness.

Regulatory takings have been a prickly issue for property rights advocates specifically and conservatives in general for a long time. The Supreme Court said in the Lucas v South Carolina Coastal Council case that a regulation that takes 100% of the value of a property is a per se taking. The government must pay you for your property if some law or regulation takes all of the value from your property. In Lucas, this was an anti-erosion regulation that restricted development a certain distance from the shoreline. Mr. Lucas' property was completely within that restricted zone. The Court said that he had to be paid for his property.

Other than a 100% value destruction, there is no bright line rule for other regulatory takings. (EDIT: Whoops. I forgot the per se rule for any permanent physical occupation from the Loretto case.) The Penn Central v New York City case created one of those unpredictable Justice Brennan balancing tests. Basically, Brennan said that it is possible for a regulation to "go too far" and then it is a taking. Of course, that's not very clear. It's ad hoc. The Court will have to go through a very fact specific examination and then make a judgment about the severity of the regulation. The Court has never had 5 votes to say that any regulation is a taking.

I'm interested to see the language of some of these ballot initiatives. If they are as expansive as they sound, this could spark a major change in property regulation in this country. It's amazing that Kelo has had such far reaching effects. The decision has riled up every property rights advocate in the country. It's also caused us to rethink how we regulate property. Reexamination and revision of policy is a healthy thing. I'm interested to see how this all turns out in the end.

Prof. John McAdams has been closely following the story of a Marquette Philosophy grad student that had a posted quotation removed from his door. It's common to see office doors of grad students and professors decorated with articles, political cartoons, bumper stickers, etc. that make strong political points. Apparently, this one crossed the line...

Marquette Philosophy graduate student Stuart Ditsler posted a quote from Dave Barry on his door. It said:

"As Americans we must always remember that we all have a common enemy, an enemy that is dangerous, powerful, and relentless. I refer, of course, to the federal government."

What kind of response did that get? A e-mail from department chair James South (although the secretary in the Philosophy Department refused to confirm the source) saying the following:

I had several complaints today about a quotation that was on the door of CH 132F. I've taken the quotation down. While I am a strong supporter of academic freedom, I'm afraid that hallways and office doors are not "free-speech zones." If material is patently offensive and has no obvious academic import or university sanction, I have little choice but to take note.

God forbid anyone criticize the behemoth that is the federal government.

Things have picked up lately because the Foundation for Individual Rights in Education (FIRE) has taken up the case. FIRE contacted President Robert Wild about the university's "offensive" materials policy. They contend that the policy is completely discretionary and prone to being abused. According to Prof. McAdams, Wild has yet to respond.

The story has been picked up on other major blogs too. David Boaz of Cato-at-Liberty discussed the story, warning us all to watch our libertarian language. Boaz wonders who is offended by the statement, which was labeled as "patently offensive" by the Philosophy Department Chair...

Offensive to whom? Surely not to any of the usual identity groups, ethnic or religious or sexual-orientation or gender or whatever. Nor does it use the four-letter words that might be inappropriate for a public space. Perhaps it's offensive to employees of the federal government, or to those who have a great deal of respect and admiration for the federal government. But one would think that at a university it falls within the parameters of debate. And while Dave Barry writes more effectively and memorably than most philosophers, his statement still qualifies as humor or political commentary or both.

The statement was not vulgar or profane. It contained no racial or ethnic slurs. It simply stated an opinion in a fairly humorous way. I see nothing wrong with it. Of course, that's probably because I agree with it.

Nick Gillespie of Hit and Run has also picked up on the story. Gillespie is shocked that Dave Barry of all people could be described as patently offensive. He also takes issue with the Department Chair's e-mail...

I dunno about you, but I actually think the most offensive thing in the whole situation is the department chair's quisling claim to being "a strong supporter of academic freedom."

Isn't it funny when someone makes a claim, then takes an action that directly contradicts that claim?

David Boaz closed his post with the following statement...

Marquette is a private university and is thus free under the First Amendment to regulate speech as it chooses. But if libertarian jests are "patently offensive" and subject to censorship at Marquette, it might want to note that in a new paragraph of its academic freedom guidelines and perhaps in the catalog provided to prospective students.

Marquette is certainly within its rights to restrict speech in this manner. However, that doesn't make it a smart policy. Once again, the school looks foolish nationally.

Actor and vampire killer Wesley Snipes has been indicted for tax fraud. This is most disappointing to me, as I watched Rising Sun during my recent week long illness/film festival. The book was better... and that's not saying much.

According to The Smoking Gun, here's what happened...

According to the indictment, Snipes, 44, conspired with Eddie Ray Kahn and former certified public accountant Douglas Rosile in the tax scam. Kahn is the founder of a Florida company (now known as Guiding Light of God Ministries) that, investigators allege, "promoted and sold fraudulent tax schemes" to clients like Snipes. Kahn has claimed that U.S. citizens could only be taxed on income earned from certain foreign-based activities (and not on money made in this country). This claim--known as the "861 argument" for the section of the tax code to which it refers--has been flatly rejected by the Internal Revenue Service. As part of the alleged Snipes scheme, the actor filed amended tax returns seeking $12 million in refunds on taxes he paid in 1996 and 1997.

TSG also has a copy of the indictment, in case you've never seen one and want to read it for yourself.

In Tax (and to a lesser extent Criminal Law), I learned one thing about clever income tax arguments: don't make them. First, the IRS has heard just about everything. They know of your scheme, and they have rejected it. Second, even if the IRS doesn't know about it, they are going to fight you tooth and nail. Don't expect them to sit back while you try to weasel funds to the tune of $12 million out of the federal coffers.

On top of the 861 argument, there is this...

The government also says that Snipes tried to pay some of his income taxes between 2000 and 2002 by sending bogus checks totaling $14 million to the U.S. Treasury.

Wesley, Wesley, Wesley... what are you doing? All of these separate federal charges add up too. Snipes faces more than 16 years in prison. Maybe Snipes and Woody Harrelson can devise a basketball hustling scheme to get Snipes out of this.

The other hitch in the story is that Snipes is AWOL. No one knows where he is. Maybe he'll never resurface...

Thankfully, I had recovered enough from my illness to go to school today. Of course, today was the day that Prof. Eugene Volokh visited the law school. I attended both of the events today. The first was a small lunch and presentation about legal writing. Prof. Volokh has published a book on the topic Academic Legal Writing. He should know a little about it too, considering that he's written over 50 law review articles. Compared to my zero, that's pretty good. Prof. Volokh gave us some good advice on how to test our claims, focus our papers, and write something that will get published. I wish I had heard much of this advice before I began writing my seminar paper (which I sincerely doubt will be publishable).

The big event of the day was the Boden Lecture delivered at the Pfister. I'm a sucker for going to classy places (that's my inner rube talking), so I knew I wasn't going to miss out on this. The title of the lecture was The Mechanisms of Slippery Slopes. Prof. Volokh has written about slippery slope arguments in the past in contexts like gay marriage. The main focus of this talk and its accompanying paper is gun control (there is a shorter version of the paper here that the lecture was based on). After about 30 seconds, I gave up on taking notes. The substance of the lecture was fairly heavy, so I had to focus all seven of my brain cells on paying attention. The professor's main points were that slippery slopes do exist. There are times when a very small concession, whether it is for gun control, abortion rights, or free speech, will lead to greater restrictions later on. This can happen even when the supporters of the small concession oppose the greater restrictions. This often happens because of perceived shifts in political power, changes in political momentum, changes in attitudes by the public following the small concession, and a handful of other factors. Prof. Volokh left us with one rule of thumb about slippery slope situations: If a small concession only gets you a small benefit, you will want to oppose it. If a small concession gets you a great benefit, then you may want to support it. The small benefit may not be worth enough when compared to the greater future restrictions imposed as we slide down the slope.

Overall, I enjoyed the lecture. I wish it had been a bit longer though. It seemed like there was so much for Prof. Volokh to cover in such a short amount of time that we only touched the surface of the subject. I suppose this will force me to sit down and read his full article. Clever guy.

This speech has me wondering about the Hallows Lecture in the Spring. Prof. Volokh was a pretty big name lecturer. Hopefully, that pattern continues with our next guest. I don't envy the next Hallows Lecturer though. Judge Sykes will be a tough act to follow.

Bear with me for a while. I think I caught the bird flu or some other illness that was supposed to wipe out half of humanity but didn't. I haven't been this sick in years. I've missed four classes this week. That's horrible. But when you are hacking up your lungs in small, gooey chunks and feel like you're on the verge of collapse, the law school isn't the best place to hang. I'm getting better (or less worse) gradually, and hopefully I can get some posts up on Friday.

Until then, pray for Mojo.


That's very similar to how I look on the couch right now.

I apologize for not posting all weekend. I was (and still am) stricken with some sort of plague. It's a lovely combination of congestion, a hacking cough, and a swollen shut throat. Envy me.

But I have some good news. Thanks to my position as an officer in a law school organization that shall not be named, I get to attend a luncheon with Prof. Eugene Volokh next Monday. As mentioned previously on here, Prof. Volokh will be delivering this year's Boden Lecture at Marquette Law School. The details of his speech are here.

I'm not mentioning this to brag (okay, maybe a little). I'm throwing the comments section open for questions that I should ask Prof. Volokh. So far, I haven't been able to come up with something intelligent to talk about during lunch. I'd rather not just sit there and watch him eat. Any suggestions would be appreciated.

SCOTUSblog has a podcast interview with Linda Greenhouse, the New York Times Supreme Court reporter. Attorney Tom Goldstein spends about 15 minutes with her, discussing a variety of Court related issues. Much of the focus is on Justice Harry Blackmun. Greenhouse wrote a biography about the former Justice after being given special access to his papers by Blackmun himself.

Goldstein asked Greenhouse about Blackmun as an example of a Justice who changed while on the Court. And he most certainly did, probably most drastically in his views on the death penalty. Why was he susceptible to change? He was from outside the Beltway. Blackmun wasn't a Washington lawyer; he was a Midwestern lawyer. When he was nominated to the Court, the move opened him up to new influences (the DC social circuit, public opinion, Linda Greenhouse). Greenhouse has doubts that Roberts and Alito will succumb to those influences, based on their experience with DC legal culture. I have to agree with her on that. I don't think that either of them care very much whether or not their opinions are praised in the pages of the New York Times. They're not Anthony Kennedy.

Greenhouse recently made a speech at Harvard that got a bit of attention for some political remarks. Howard Kurtz has the story at the bottom of the page...

Tom Kunkel, dean of the University of Maryland's journalism school, calls Greenhouse's remarks "ill-advised," saying that while she can "still report objectively on contentious issues before the Supreme Court, the average person can reasonably ask, how can that not color her stories?" But former Times ombudsman Daniel Okrent says it is impossible "to find any trace of her views in her work."

That's news to me. Greenhouse hasn't been shy about her views in the past. Ramesh Ponnuru provides a memory refresher...

In the spring of 1989, as the Supreme Court considered the Webster case. . . supporters of abortion rights staged a big march in Washington, D.C. Many reporters were there, of course. But not all of them were there to cover it. Several journalists from prominent newspapers were there as marchers. Linda Greenhouse, who has long covered the Supreme Court for the New York Times, was one of them.

The journalists' participation in the rally became controversial. The editors of the Times said that Greenhouse should not have marched. Other reporters tut-tutted her for bringing her objectivity into question. The dispute was somewhat otherworldly. No well-informed observer has ever thought that Greenhouse, or the Times, was unbiased, before or since the march. Conservatives even coined the phrase "the Greenhouse effect" to refer to the possibility that Supreme Court justices move left to get better coverage from her and like-minded scribes.

Greenhouse spent the second half of 1992 praising Casey in the Times as a "tightly reasoned" decision by "centrist" justices. She has described the dissenters-Scalia, Thomas, and Rehnquist-—as "the Court's far right." She has written that Roe has "taken on a life of its own, evolving into something . . . in tune with the ideals of the American mainstream." And she has written an admiring biography of Harry Blackmun.

I want to focus on the last paragraph, since I think the first two speak for themselves. Calling Casey tightly reasoned is a little puzzling to me. Any opinion that talks about "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life"” seems to have its head a bit too far in the clouds for my tastes. Also, I would love to get a copy of this article. I wonder if Greenhouse described the fourth dissenter, Justice Byron White, as part of "the Court's far right." If not, I wonder if she considered White, the Kennedy appointee and lifelong Democrat, to be as outside of the mainstream as Rehnquist, Scalia, and Thomas.

As I have mentioned before on here, I only read Greenhouse's work when there was an oral argument for a case that interested me. That's how I found out what the Justices asked, how the lawyers responded, and all of that other information used to read the tea leaves to project a vote. With the new same-day transcripts, I can bid Linda Greenhouse good bye. Somehow, I will manage without her.

I rarely post about law school socio-cultural stuff. I've noticed that a lot of other law student-run blogs focus heavily on the minutiae of law school life: working on your outlines, cramming for exams, gunners, interning, all that jazz. If you're interested in that stuff, you can get it elsewhere. I just don't care enough about it to write on it with any passion or flair.

This post caught my eye today. Over on PrawfsBlawg, Prof. Michael Dimino talks about an unprepared student in one of his classes...

I called on the student to analyze whether certain arguments for restricting marriage to heterosexual couples was "irrational," as held by the Massachusetts Supreme Judicial Court. The student declined to answer, claiming that he did not hear the question because he was typing on his computer; that he had no opinion on the matter; and that he could not develop any opinion because he had not been listening closely enough to the discussion and did not bring his book to class. This was not the first time he was unprepared.

For those of you who are unfamiliar with the law school classroom environment, this is basically what happens. Students are assigned reading, they do it (hopefully), the professor lectures a little about the day's topic, then the professor calls on students to talk about the cases.

Usually, the student starts by reciting the facts of the case, followed by the previous history in the lower courts. Then you get into the meat of the legal analysis done by the court. That's usually where the professor begins asking questions. These questions are designed to get the student thinking about the legal issues from various angles. We can thank Socrates for this style of teaching. The always useful Wikipedia has a nice description of the use of the Socratic Method in law schools...

In a typical class setting, the professor asks a question and calls on a student who may or may not have volunteered an answer. The professor either then continues to ask the student questions or moves on to another student.

These subsequent questions can take a few forms. Sometimes they seek to challenge the assumptions upon which the student based the previous answer until it breaks. Further questions can also be designed to move a student toward greater specificity, either in understanding a rule of law or a particular case. Finally professors use the Socratic method to allow students to come to legal principles on their own through carefully worded questions that spur a particular train of thought.

It's such a blast. It's also very obvious when a student tries to answer the questions when they are unprepared (not always though, some people are just bad at talking in class).

Prof. Dimino then gets to disciplinary matters and makes an appeal for advice...

I called on someone else and plan to call on the lazy student every day for the rest of the semester (or at least a suitably lengthy period short of the whole semester) plus decrease his grade one step for poor class participation, but I suspect such treatment is not nearly severe enough (plus it wastes the time of other members of the class). Have some of you ejected students from the class for such inexcusable behavior? If so, do you let them return for the next class? What happens if they don't leave? What other means are appropriate and effective?

I was a little taken aback by this. Maybe that's because I have never seen anything this bad happen in one of my classes. Sure, I've seen people unprepared. It happens. Usually, being embarrassed in front of the class is enough to get that person back in line and reading the material.

The comments section of the post are incredibly interesting. One commenter, Angry Law Student, thinks that Prof. Dimino is way off base. "The student, having paid a substantial amount of money for his responsibility, may shirk that responsibility [learning] to whatever extent he chooses. If he suffers for it, it should only be with regards to his understanding of the material and resulting poor grade on the exam." Prof. Ethan Leib retorts, "it is simply impossible for us to do our job well if students don't do the reading and refuse to let the classroom be a forum for engagement. Students are not paying to be lectured at; that's what they pay for when they pay for their bar courses. You are paying for a lot more -- and some of that added value can only be accomplished if you do your part."

The discussion in the comments is great and there are a lot of excellent points being made. One sticks out, though. A commenter named 3L had this to say...

In my 1L year, I always did all of the reading prior to class, and attended every session. And I quickly came to realize one thing - listening to other law students talk is about the worst thing one can do. When the profs were talking, I would be attentive, taking notes where necessary. But when students were talking, I would instantly alt-tab to my web browser, and tune their words out. If I am capable of learning the material on my own, what can I possibly gain from listening to someone recite their (almost certainly incorrect) interpretation of the court's opinion?

This is very true. There are some people who just like to talk in class. They like to talk whether they are right or wrong. They like to talk whether they are adding anything substantive to the discussion or not. They poison the classroom environment with erroneous information and waste valuable class time.

My advice for Prof. Dimino is as follows. Dock the student on his class participation grade. He deserves it. However, calling on him every day for the rest of the semester is foolish. It's only going to ruin the classroom environment for everyone else. Don't call on him again. If you really want to make a point, make it obvious that you aren't calling on him. Call on the students in his row, go straight down the row, and skip him when it would be his turn. If he is not willing to prepare and participate, why waste time on him?

Howard Bashman, lord of all things appellate, posted a link to a great Eleventh Circuit Court of Appeals case today. Here's what happened in US v Eckhardt...

During the 1980's, Robert Eckhardt occasionally worked for the Teamsters Union Local 390 in south Florida. Eckhardt was not a full union member and he worked only when called. Eckhardt's relationship with the union deteriorated and he began making threatening calls to its office. In 1994, he pled guilty to making threatening phone calls to the union in violation of 18 U.S.C. § 875(b).

For those of you playing along at home who aren't familiar with the federal criminal code, 18 USC § 875(b) criminalizes interstate threats of violence (as well as other things). Unfortunately, Eckhardt couldn't quit his phone shenanigans and he kept calling the union...

During that year and a half period, Eckhardt made approximately 200 calls to a voicemail extension belonging to Local 769 office worker Sue Ann Creech. Although Ms. Creech never met Eckhardt, he called her number up to 30 times per week between March 28 and June 8, 1999.

If you're like me, you're wondering what Eckhardt said. If you're like me, you're happy that the judges put the transcripts in the footnotes. Avert your eyes, children. Here's the first one...

Hey Sue! Why don't you take one of them fuckin' school buses or one of them fuckin' passenger buses and use it like a vibrator up your cunt. When your mother and father died, did they put the casket in a bus? Did they? And if they're not dead, when they do die, I hope they stick it in a bus. Say hello to Tony. Capiche? Remember, use them buses and them fuckin' garbage trucks like a fuckin' dildo and stick 'em up your cunt. Good bye.

Pretty salty, huh? There's more...

Hey! You sent that little greasy bitch here uh? And take that little guinea fuckin' cunt with that pimple face fuckin' bitch from fuckin' Fort Lauderdale? Or some of them kids from fuckin' Florida. You listen to this. I said no over the road, I'm stayin' right where I'm at. And you fuck up, here's your threat pal, have me locked up. This way I can fuckin' wet my balls off. Fuck you! How does that sound? Fuck you! No garbage, no over the road, no nothin' Fuck you. There's your threat, have me locked up. Go ahead. Take your conventions and everything else and stick 'em up your mother's cunt. (laughs)

What, no "good bye" this time? That's not very polite. I know what you're asking yourself: how does one "wet" his balls off? Good question. The judges explain in the footnote that Eckhardt actually said "rat" but the record was incorrect and Eckhardt didn't object.

The feds charged Eckhardt with a violation of the Communications Decency Act (47 USC § 223). He claimed that he didn't make the calls, the statute was unconstitutionally vague, the speech was protected, the speech was not obscene, and the speech was not harrassing (For those of you non-law types, you can argue in the alternative like this. It doesn't sound coherent, but you're allowed to throw as many defenses at the court as you can). It was futile though, and Eckhardt was convicted and sentenced to 24 months in prison.

On appeal, the Eleventh Circuit shot down all of Eckhardt's arguments. Here they take on the constitutionality issue...

Eckhardt was tried and convicted of anonymously making "annoying, abusive, harassing, or threatening" telephone calls in violation of 47 U.S.C. § 223(a)(1)(C). Eckhardt asserts that § 223(a)(1)(C) is overbroad because it potentially criminalizes protected speech and vague because it failed to give him notice that his conduct was forbidden. The Sixth Circuit rejected an identical challenge to § 223 in United States v. Bowker (citations omitted).
...
Eckhardt called his victim approximately 200 times during a year and a half period. Although Eckhardt claims for the first time on appeal that the calls addressed matters of public concern (i.e. alleged corruption), his calls rarely addressed anything that could be construed in that manner. The overarching purpose of Eckhardt's sexually laced calls was to harass and frighten Ms. Creech. "This type of speech is not constitutionally protected."

I don't think that the Supreme Court will be sympathetic to Eckhardt, so he better get used to the idea of federal prison.

Yesterday, the Supreme Court refused to hear a case concerning a Texas law that makes it a crime to promote sex toys shaped like sexual organs. Here's what happened...

An adult bookstore employee in El Paso, Texas, sued the state after his arrest for showing two undercover officers a device shaped like a penis and telling the female officer the device would arouse and gratify her.

The employee, Ignacio Sergio Acosta, says a Texas law outlawing the manufacture, marketing or dissemination of an "obscene device" including those shaped like sex organs is unconstitutional because it prevents individuals from using such devices, violating their right to sexual privacy.

I'm upset that the Court didn't hear this case. I'm not upset because I care about the issue itself. I'm upset because of the lost comedic opportunities. Some of the Justices are... lets say, sheltered. I'm reminded of the oral argument in Lawrence v Texas (which dealt with the right to gay sodomy) as described in Mark Tushnet's A Court Divided...

Spectators laughed as well when Justice Breyer asked Rosenthal for a "straight answer" to one of his questions. (Later Breyer expressed puzzlement about why people had laughed).
p. 170

We are missing out on oral argument comedy gold because the Court is not hearing this case.

Terence Jeffrey of the Washington Times has an interesting piece today examining the First Amendment rulings of the Ninth Circuit Court of Appeals. The Ninth, the red-headed stepchild of the federal appeals court system, has had some interesting (some would say maddeningly contradictory) rulings in this area...

In 1999, for example, the court declared "virtual" child pornography a "right." "The First Amendment," it said, "prohibits Congress from enacting a statute that makes criminal the generation of fictitious children engaged in imaginary but explicit sexual conduct."

Last October, however, the court took a far more cramped view of free speech. The murder conviction of Mathew Musladin must be thrown out, it ruled, because the victim's family sat in the front row of the trial, wearing buttons depicting nothing more than the victim's photograph. This mute expression, the judges ruled, may have prejudiced the jury and thus violated Musladin's right to a fair trial. In October, the Supreme Court will hear an appeal.

One wonders how the 9th Circuit might have ruled had the victim's family worn "virtual" child pornography, instead of a photo of their slain loved one.

The piece goes on to explain the facts of the Musladin case, which are quite interesting. Here is where things got really interesting though. Enter Judge Stephen Reinhardt, official whipping boy of Eminent Domain...

The problem for Musladin is that the Supreme Court has never "clearly established" or even hinted that something worn by courtroom spectators could deny a defendant a fair trial. Accordingly, the state appeals court let Musladin's conviction stand. A federal district court declined to overrule the state court, and Musladin's appeal arrived in the 9th Circuit.

Judge Stephen Reinhardt, a Carter appointee, wrote that court's opinion overturning Musladin's conviction. This is the same Judge Reinhardt who has voted over the years for 9th Circuit opinions that claimed doctor-assisted suicide was a constitutional right and -- in another take on the freedom of expression -- that it is unconstitutional for children to recite the Pledge of Allegiance in public schools.

Lacking a Supreme Court precedent to back up his decision that the Studers' buttons made Musladin's conviction unconstitutional, Judge Reinhardt ignored the letter of the law and used a 1990 opinion by the 9th Circuit itself as his justification. That opinion threw out a rape conviction because a few women had attended the trial in question wearing buttons that read, "Women Against Rape."

I have no idea what the Court is going to do here. This will be another case to watch Kennedy, Roberts, and Alito closely. It will tell us a lot about how the Roberts Court views Free Expression issues.