:: Ninomania ::

:: Saturday, May 08, 2004 ::

Is there a life -- and especially a life of the mind -- in the practice of law?

Let's solve that question the way lawyers do: by arguing about it!

There's a very interesting debate going on here about such questions, and related ones: Did I make the right choice in going to law school? What are the trade-offs? What is practice like, and is it for me? The initial post is by a badly disillusioned lawyer. There are lots of those out there. But if you click on the link, be sure to read the comments as well: they show the variety of legal careers out there, with praise for both the humblest and the highest-flying career tracks.

A recurring theme is: Does the "life of the mind" that you experiences as humanities undergrads cease as soon as you enter law school, or if not, then as soon as you start working as a lawyer? The poster and commenters express widely differing views.
:: David Wagner 11:13 PM [+] ::
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:: Thursday, May 06, 2004 ::

Judge Rules Schiavo Law Unconstitutional

Yes, on two grounds, one of which you were probably expecting, the other probably not.

1. The law, which allowed Gov. Jeb Bush to order that Terri Schiavo not be killed by starvation/dehydration, violates Terri's "right to privacy" -- a right that somehow always ends up meaning either killing or being killed.

2. The law was also an unconstitutional delegation of power to the Governor. Well, well -- not used (by the U.S. Supreme Court anyway) to strike down any law since 1936, this doctrine suddenly comes back to life when handy to advance the culture of death.
:: David Wagner 5:42 PM [+] ::
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:: Thursday, April 29, 2004 ::

A currently circulating abstract reads as follows:

"Unity of the Graveyard and the Attack on Constitutional Secularism"
Brigham Young University Law Review, 2004

BY: STEVEN G. GEY
Florida State University
College of Law

Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=509463

Paper ID: FSU College of Law, Public Law Research Paper No. 105
5487

ABSTRACT:
"Once it is conceded that a political structure defined by religious principles will exclude those who do not choose to adopt those principles, then there is little left in the search for religious unity. If cultural and political unity is a desirable goal, therefore, we must search for a secular alternative to the religious unity model. I sketch the outlines of two such secular options in this essay. One, which I will term the affirmative case for constitutional secularism, takes as its starting point the essential functions of a democracy, and uses those essential functions as the lodestar for political unity. The second, darker model, which I will term the negative case for constitutional secularism, is based on the indisputable recognition that the very factors that make religion exclusive and disunifying are also the factors that can lead diverse groups of religious adherents to give up their quest for unity through dominance in exchange for a guarantee of survival. After exploring in a bit more detail the nature of religious exclusivity, I turn to the a fuller explanation of the two options for achieving real - i.e., secular - national unity."

Well, I don't concede that "a political structure defined by religious principles will exclude those who do not choose to adopt those principles", at least not without further definition of "exclude".

But let me concede it for now, and then ask: why would unity based on cultural or political principles have a less oppressive "excluding" effect than unity based on religion? I will read Prof. Gey's article with interest, to find out what these "cultural and polititical principles" are that can supposedly be enforced -- excuse me, can be made the basis of national unity -- without stepping on the necks of those "who do not choose to adopt those principles".

On a related note, should this be of concern to us if we want to protect those "who do not choose to adopt" the "unifying" princples of the state?

:: David Wagner 12:15 PM [+] ::
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:: Thursday, April 22, 2004 ::

TO MY CON LAW STUDENTS:

Conerning this paragraph in Question Two of your exam:

Second, regardless of how you come down on the standing issue, discuss how Rick's case will fare if the court decides he does have standing and hears his case on the merits; i.e., discuss his argument that Congress lacks power, under either the Commerce Clause or the 14th Amendment, to pass the partial-birth abortion ban.

The "either/or" construction is NOT -- am I clear? NOT -- an invitation to you to pick one or the other.

Read it again. Rick's argument = "Congress lacks power, under either the Commerce Clause or the 14th Amendment, to pass the partial-birth abortion ban". You are asked to discuss "Rick's argument". Since Rick's argument includes both of the sources of power that Congress is relying on, obviously you have to discuss both.

The reason I included the words "under either the Commerce Clause or the 14th Amendment" was to remind you to discuss both, not to give you the option of choosing one and ignoring the other.

Sheesh.


:: David Wagner 11:09 AM [+] ::
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:: Wednesday, April 21, 2004 ::

"It seems rather contrary to an idea of a constitution with three branches that the executive would be free to do whatever they want without a check."

-- Justice Stephen Breyer, in today's oral argument in the Guantanomo detainees' habeas corpus case

Oh it does, does it? Some of us feel rather the same way about the judiciary....

:: David Wagner 12:06 AM [+] ::
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:: Thursday, April 15, 2004 ::

Law 681 -- CONSTITUTIONAL LAW:

One of you wrote in to ask:

I am pretty confused about the anti-subordination and anti-classification arguments. I understand that these are two ways to read and try to understand the equal protection clause, but that's about it. Also, you mentioned congruence and proportionality and I wasn't sure how that fit in.

You're right: these are two ways of understanding the Equal Protection Clause. They are not themselves arguments, but arguments can be made for and against each view.

They are what you might call academic terms: I've never known the Court to use them. But when, say, O'Connor or Scalia says that all racial classifications by government are suspect, even when plausibly linked to a benign motive, they are reading the E.P. Clause as a strict rule against racial classifications.

Likewise, when Marshall or Stevens or Souter says the Clause permits benign or remedial racial classifications, they are reading the clause as primarily a means of counteracting past racial subordination.

"Congruence and proportionality" are the two restraints that the Court has put on Congress's use of its powers under Sec. 5 of the 14th Amendment, whenever Congress construes the content of Sec. 1 (citizenship, privileges or immunities, due process, equal protection) more broadly than the Court has done.

So, two contrasting situations:

1. Congress is using its Sec. 5 powers to enforce Sec. 1 within existing Supreme Court definitions of the Sec. 1 rights. In this case, no need for Congress to show "congruence and proportionality".

2. Congress is using its Sec. 5 powers to ban something that has not been held by the Supreme Court to violating Sec. 1; or, even better, Congress is using its Sec. 5 powers to ban something that the Court has specifically said does not violate Sec. 1. (Example: Katzenbach v. Morgan, where the Court had previousely held that literacy tests as a prerequisite for voting do not violate Sec. 1, but Congress banned them anyway, invoking its Sec. 5 powers).

To defend this statute, the government must be able to show that Congress's action was "congruent with" and "proportional to" an actually existing threat to some Sec. 1 right. Morgan was a case where Congress was able to make that showing; City of Boerne v. Flores was a case of the opposite, where the statute was far out of proportion to any threatened violation that Congress had been able to point to.

Congruence and proportionality apply only when Congress is legislating under the powers it has under Sec. 5 of the 14th Amendment (or under one of the similar "congressional empowerment clauses" found in other amendments). It does not apply to Congress using its original powers (see esp. Art. I Sec. 8).

Also, c & p do not apply to the states. The c & p limitation is ultimately a consequence of the principle that Congress's powers are enumerated rather than plenary. Since states have plenary powers, they need only worry about the substantive limitations placed on them by the 14th and other amendments. (But note: the 14th is now read as including the Bill of Rights and applying it as a limit against state governments as well as against the federal government.)
:: David Wagner 11:40 AM [+] ::
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Law 681 -- CONSTITUTIONAL LAW:

The exam will be available (and posted on Blackboard) on the morning of April 21, and due back by the end of the day on Tuesday April 27.

All requests for variances from this timetable are hereby denied.

Watch for announcements about review session(s) and an opportunity -- probably on the 21st -- to take the exam in a timed setting.
:: David Wagner 11:24 AM [+] ::
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:: Wednesday, April 07, 2004 ::

Amanda Strassner, blogger at World Magazine, has opted to attend Regent University School of Law, and tells you why here.
:: David Wagner 8:32 AM [+] ::
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:: Tuesday, April 06, 2004 ::

Fetuses feel pain, doctor testifies
:: David Wagner 10:26 PM [+] ::
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:: Monday, April 05, 2004 ::

MEDIEVAL ACADEMY OF AMERICA annual conference

Well, you know, I am a member. I mean, I wasn't born a lawyer -- it just sort of happened. Anyway, here are some notes:


Model Infernal Code

I gave a paper (this was the proximate cause of my being there) on criminal mens rea as it relates to the categorization of sins in Dante's Inferno. My point was that while Dante considers intent to defraud more blameworthier than intent to kill, the worst of all is the combination of the two, such that the Ninth (and lowest) Circle of Hell actually punishes something closely akin to "first degree murder," with its overtones of calculating deliberation.

Prof. Steven White, who specializes in medieval French romance (I mean medieval French poems about knights -- sheesh, I have to explain everything to you lawyers!), remarked that "treason" in the French romances seems to have the same homicidal aspect that I had identified as common to all the Ninth Circle sinners.


Sentimental reunion

The light was green on memory lane as I met again, for the first time in 20 years, folks who had been at one time somewhere within the orbit of historian John Boswell. Now, Prof. Boswell is best known for this book, and this one, and regular readers of this blog will assume -- and they'll be right -- that I agree with few, if any, of his conclusions. And it's not only a matter of conclusions: there's also a matter of -- if not culture wars, then at least -- a cultural tiff.

Prof. Boswell is no longer among us.

...e quant' io l'abbia in grado, mentr' io vivo
convien che ne la mia lingua si scerna.

Informal talks were had about somehow organizing, or maintaining communications among, those who were influenced by Prof. Boswell in some way. That I certainly was: through his courses that I took, he introduced me to serious research in medieval history, and to medieval law. He also introduced me to Professors Robert Stacey, Robin Chapman Stacey, and Ralph J. Hexter, that last of whom had the thankless task of improving my Latin. Fortunately for Ralph, Hugh Thomas was also in that course.

If part of the Boswellian legacy is learning to look past assumptions and engage with the unexpected, then something good may come of this project.


Taking care of Byzness

I attended several panels. I was very impressed by one about Byzantine iconography. It featured a paper by Krista Kotsis, grad student at the University of Washington), entitled "Beautiful Empresses," about how the the spinmeisters of old Constantinople used feminine pulchritude to promote veneration of the imperial couple as God's delegates. Harvard grad student Alicia Walker demonstrated Byzantine craftsmen's use of "pseudo-Kufic script" -- that's polite for "mock-Arabic" -- as a decorative motif when a note of "otherness" seems called for.

I don't have time to write up all the panels I attended and folks I met; just two, real quickly:

* Thomas Madden, Crusade scholar and chairman of the history department at St. Louis University -- read your articles in Crisis, NRO, etc., and very honored to meet you!

* Students at Baylor: This fall, drop whatever you're signed up for and take any course you can with that new medieval literature professor, K. Sarah-Jane Murray. Besides being a freshly-minted PhD from Princeton, and having a lot of interesting things to say about St. James, St. Patrick, and the medieval narrative theme of the "holy foreigner," she also has an uncanny ability to keep a room spellbound, and a smile that could wake the dead and set them swing-dancing.

:: David Wagner 4:03 PM [+] ::
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:: Monday, March 29, 2004 ::

Wabbit season

Prof. Ronald Rotunda has an op-ed here on the recusal issue, showing pretty clearly that Justice Scalia's position rests on precedent, while the opposite position -- some of whose proponents are becoming altogether unhinged and calling for Scalia's impeachment -- rests on politics.

Question: Should Justice Jackson have recused himself in the Steel Seizure case, given that (as he pretty obviously hints in his concurrence) the government's case relied in part on memos that Jackson himself had written as Attorney General? Isn't the perceived need to agere with oneself at least as strong as the perceived need to agree with one's duck-hunting partner? (I don't think either is very strong, but maybe you do.)

:: David Wagner 11:25 AM [+] ::
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:: Thursday, March 25, 2004 ::

Newdow, Souter, and a weird doctrine on standing

I doubt the Court will hold that Newdow lacks standing to bring the "Under God" case, but along the way, Justice Souter made an interesting gambit at oral argument: he played the "parents' rights" card to deflect the standing issue. Newdow, he suggested, has standing to vindicate his own rights as a parent trying to bring up his daughter with his values, even though he is not the custodial parent.

What if the Court were ever to adopt this view? Wouldn't it would lead to a flood of non-custodial parents (whether divorced or, like Newdow, never married) flocking into court to challenge the custodial parent's decisions, not as being adverse to the "best interest of the child," but as being violations of the non-custodial parent's personal rights? Does Souter have any idea what he might be pushing the Court, and us, into?

Here's the actual exchange on this point, courtesy of the Pasadena Star News. Note how Cassidy, counsel for the school district, eventually nudges the discussion around to the "best interest of the child" doctrine, the vague but familiar child-custody standard into which Souter's standing doctrine would throw a monkey-wrench:

JUSTICE DAVID SOUTER: As I understand it, and you correct me if I'm wrong, as I under stand it, he's saying, look, simply as the father of this child, I have an interest which is in fact being infringed here.

Even though under state law the mother of the child has the right to cast the final decision on matters of morals, education, religion, I nonetheless have an interest as a father, and that in terest is in seeing that my child is not subjected to what I be lieve is an unconstitutional religious interest or religious influ ence. What is your answer to his claim that that is enough to give him personal standing?

CASSIDY: I have to answer that question, Justice Souter, based upon how the school district perceives respondent's rights, and in this case, the school district must look to only a single decision-maker.

It's the only way a school district can function. It's the same way this court should approach, we would suggest, the standing issue.''

SOUTER: Well, the mother isn't a decision-maker for the school district, neither is the father a decision-maker. If there's going to be a decision-maker, it's ultimately going to be a judicial decision-maker on the constitutional question. He is simply saying, I have a right to raise that question by virtue of my interest as a father, even though at the present time under state law I cannot control her presence or absence at the school.

CASSIDY: We would submit, Justice Souter, that the question is truly what is in the best interest of the child. That's ultimately the determination made when we look to parents' rights in custody disputes under state law.


:: David Wagner 7:02 PM [+] ::
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"Under God" oral argument...

...took place in the Supreme Court yesterday. There are dozens of news accounts out there; start with this one, which I choose because Lyle Denniston is an old-fashioned just-the-facts reporter, the dean of Supreme Court journalists, and one of the very, very few in his profession who doesn't make me ecstatic that I left it for this profession. (I didn't know he had moved to the Boston Glob, though. When I would occasionally meet him in my DOJ days, he was with the Baltimore Sun.)

Now, as to the argument: With the obvious caveat that oral argument doesn't necessarily tell you jack about how the case will come out, I was surprised that so many members of the Court leaned on the many dicta in earlier cases about how "Under God" in the Pledge is just one of those things (along with "In God We Trust" on the currency) that is self-evidently not an establishment of religion.

Justice Stevens, however, did manage to remind everybody that these were only dicta, and Justice Ginsburg, more incisively, noted that they were made without benefit of briefing and argument.

I was also surprised at how many Justices, including Ginsburg, were willing to question whether "Under God" in the pledge is a "prayer". This is weird, because the existing Establishment cases have never turned on a judicial determination of what is or is not prayer. No, Jaffree is not an example of just that: the legislature had added the words "or prayer" to the statute, so the Court there had no occasion to rule on whether a moment of silence is a prayer or not.

Ginsburg also said that the phrase "under God" is "two words sandwiched in the middle of something, and the child doesn't have to say those words." This remark implicates two Establishment precedents.

One is Lynch v. Donnelly, in which the fact that a manger scene was accompanied by ("sandwiched in the middle of", if you like) certain "secular" symbols like Santa Claus and reindeer enabled the display, as a whole, to pass muster. (Hey, don't ask me how a character whose title is "Santa" can be a "secular" symbol!)

The other is of course Barnette, which held that students cannot be obliged to say the Pledge. Some of us would say that Barnette, by removing the coercion problem, also removed any Establishment Clause problem; yet the Court has held many times since then that most religious activities in public schools are unconstitutional, even when no student was coerced to participate. Justice Ginsburg obviously knows this, and one hardly thinks she's raring to overrule Engel, Schempp, Lemon, and Weisman -- so why did she make Newdow answer the no-coercion question?


:: David Wagner 6:50 PM [+] ::
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:: Friday, March 19, 2004 ::

From the non-recusal memo:

I daresay that, at a hypothetical charity auction, much more would be bid for dinner for two at the White House than for a one-way flight to Louisiana on the vice president's jet. Justices accept the former with regularity. While this matter was pending, justices and their spouses were invited (all of them, I believe) to a Dec. 11, 2003, Christmas reception at the residence of the vice president - which included an opportunity for a photograph with the vice president and Mrs. Cheney. Several of the justices attended, and in doing so they were fully in accord with the proprieties.

Full text here.
:: David Wagner 5:31 PM [+] ::
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:: Thursday, March 18, 2004 ::

Justice Scalia lays it on the line in William & Mary speech

From a report by David Levia of the Associated Press:

WILLIAMSBURG — The U.S. Supreme Court has become a political institution where nine lawyers using the "enormously seductive living Constitution" have only helped to curb the liberties and freedoms guaranteed under it, Justice Antonin Scalia said Tuesday....

"I cannot do the horrible, conservative things I would like to do to society," Scalia said, adding that he believes he must follow the script laid down by the Founding Fathers....

"I don't like bearded sandal-wearing weirdos burning the flag," he said, but he voted in favor of the ruling that gives people the right to do so under the First Amendment.

[In appointment and confirmation of judges, Scalia said,] political views are paramount, with abortion the litmus test. This subjects the Constitution to control by the party in power, Scalia said, giving control to the legislative branch that it's meant to protect against.

Asked whether the issue of gay marriage would come before the Supreme Court, the justice said it would likely be brought up in the context of whether laws in one state must be recognized in another.

"That's probably how it will come up," he said. "I don't know how it will come out."

Full text of AP's report here.

:: David Wagner 4:20 PM [+] ::
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:: Wednesday, March 10, 2004 ::

Boy Scouts again

On March 8 the Supreme Court denied cert in an appeal by the Boy Scouts from a Second Circuit decision allowing Connecticut to kick the Scouts of the list of approved charities for workplace giving by state workers.

I haven't read all the opinions below in this one, but according to an editorial in today's WSJ, one judge at an earlier stage of this case said that the Scouts "pay a price" for exercising their First Amendment rights.

Well, there are situations in which that happens without violating the First Amendment. Nothing in that amendment or its historically demonstrable original meaning says that government must make all exercise of speech, press, religion, etc. utterly costless.

OTOH -- there is a line of cases that seems to hold that any burden on political association, not just criminal penalization for it, violates the First Amendment: I refer to the Elrod-Branti-Rutan line of cases holding that political hiring and firing violate the First Amendment.

I don't know what arguments the Scouts made in the Connecticut case, but I'd like to argue some day either that Elrod, Branti etc. mean government cannot treat the Scouts less favorably than other organizations because of the Scouts' exercise of their First Amendment rights -- or (drum-roll, please) that Elrod etc. were wrong and should be overruled.
:: David Wagner 5:48 PM [+] ::
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Recusal

From a Wall St. Journal editorial yesterday:

There's something to be said for having Sandra Day O'Connor recuse herself from any case involving anyone who attends those Beltway dinner parties she is so fond of. Justice Anthony Kennedy is also known to be highly sensitive to the press reviews of his decisions. Perhaps both of them should have to disclose the names of every public official--and every journalist--they socialize with. We are talking "appearances," after all.

On the other hand, what a crock.


:: David Wagner 1:28 PM [+] ::
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