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January 18, 2005

Look to the Past ::
legal — tagged , , and
9:39 am

So with yesterday being Martin Luther King Day, and his impact being on the minds of most people during this week, I thought I would add my voice to the discussion, and point to a couple of entries on this site that deal with race and social movements.

The first entry I want to call your attention to deals with Trent Lott, the Southern culture of racism, how the rest of us cannot extricate ourselves from the racist elements of our society. Here’s what I said specifcially:

So if we see Lott as coming from a culture that has a longstanding history of racism and social injustice, we begin to see his comments in a much different light. They sprang from a deep-seeded racist mentality that he didn’t even know was there. And while he should be held responsible for what he said, I think that our society needs to be held responsible for its hand in perpetuating that racism. That means that, in some sense, we’re all responsible.

And the second entry is this one in which I quote MLK’s letter from a Birmingham Jail. I thin that quote is particularly important to me since I’ve entered law school. Like many of my fellow law students, I get so wrapped up in the complexities of law and government that I stop asking questions about the fundamental fairness of the system. The benefit of the direct action that Dr. King advocated is that it forces those fundamental questions that I forget about.

January 17, 2005

Lovermont ::
weird, politics — No Tags
9:21 pm

It’s at times like this that I love living in Vermont. Our governor, Jim Douglas, says that a certain teddy bear is in “poor taste” and makes light of the serious issue of mental health.

I have to say that if an issue such as this is gaining the scorn of our state’s top executive, then we’re in pretty good shape. Here’s a picture of the offending animal, in case you’re interested.

January 16, 2005

Personal Note ::
narrative, personal — No Tags
5:30 pm

I had some oral surgury performed on my lower jaw this morning, and am currently in full recovery mode. I have lots of soft/liquid foods around the house, a lot of movies to watch, a whole mess of prescription pain killers, and — most importantly — a girlfriend willing to take care of me for the rest of the day. Given those facts, I think my prospects for a full recovery are pretty good.

Oh, and on the way home from the dental appointment, I found this written on the wall of a public rest room, just above the urinal:

Please do not drink from the urinals or

eat the urinal cakes.
Thanks,
The mgt.

It made me snicker, and I was a little worried that I was going to pull out my stitches.

Healthy Skepticism Regarding Sentencing Guidelines ::
legal — tagged , , , , and
12:36 pm

For the past few days I’ve followed the reactions to the Supreme Court’s Booker decision. Since the Court handed down its previous decision on sentencing guidelines in Blakely in June, 2004, I’ve had a slow change of heart on the matter. Although I unquestioningly accepted the majority’s opinion in Blakely, I now view the matter with much more skepticism. It sounds weird to say it, but even though the sentencing guidelines violate the Sixth Amendment, I still think they’re a good idea.

For some background, I think it’s good to quote the black letter law US Supreme Court News:

The United States Supreme Court held…that sentencing ranges applied under the Federal Sentencing Guidelines (Guidelines) violates the Sixth Amendment when judges consider facts found outside the trial by a preponderance of evidence.

Sounds simple enough, right? And superficially it sounds like a pretty liberal, soft-on-crime type of a decision. But further review reveals that the decision is not so clear. I have a lot of ideas about this decision, which I’ll try to talk about more in the coming months. But this post will be somewhat limited in scope.

As I continue to follow this matter, two issues will be somewhat interesting. First off, you may have noticed that the decision was a plurality; Justice Stevens delivered the opinion of the Court on one issue, and Justice Breyer delivered his opinion on the other. For each opinion, the vote was 5-4. Justice Ginsburg was the deciding vote on each of these. I would be curious learn how she could reconcile believing in both opinions.

The second issue deals with the constitutional implications of the guidelines. See, the fundamental problem with the guideliens is that violate the Sixth Amendment which, among other things, guarantee the right to a jury trial in criminal proceedings. Under the sentencing guidelines, the jury decides a verdict of innocence or guilt. Then the judge turns to the guidelines to determine the defendant’s sentence. In addition to the basic factors that determine the length of a sentence, the judge also looks to any aggravating factors that would cause an “upward departure” — i.e., that would allow for an increased sentence. Even though the jury would not be able to decide any of these factors, they could have a significant effect on the defendant’s sentence. This situation violates both the spirit and letter of the Sixth Amendment, So even if the sentencing guidelines were more fair — no matter how draconian a sentence was, it would not go above a predetermined number of years — it took . So the question then becomes: what power does Congress (or a state legislature, for that matter) have to ensure that prison sentences are consistent and fair for all criminal defendants?

Through all of this, I have tried to keep in mind that the sentencing guidelines were initially developed to meet progressive values in the criminal justice system.

January 10, 2005

Dumb Post ::
meta — No Tags
8:48 pm

Last night I worked on an update for this site that I finally decided to throw out. It was a bit too labored, and the point I was trying to make was not all that profound, so I ditched it entirely. Over the years, I’ve learned that I’m much happier if I know when exactly to decide that a post isn’t going anywhere.

In other news, classes start the day after tomorrow. Last year, this waiting period would have made me quite nervous, and I would have spent most of my time pacing, not sleeping, and complaining to Jessamyn about my anxiety. But this year, I’m much more relaxed about it. I guess that’s one of the benefits of being a second year law student.

January 7, 2005

Gonzales Implications ::
rant, politics — No Tags
6:48 pm

So, I watched some episodic and disjointed coverage of the Albert Gonzales confirmation yesterday. (I’m still recovering from oral surgury, which serves as a great justification for watching C-SPAN all day.) After what I saw, I’m left with a profound feeling of ambivelence about the whole thing. Although I generally feel OK about the prospects of Gonzales being appointed — if for no other reason than his power will be restrained through our constitutional system — I have come to believe that he simply has not shown enough ethical or legal competence to take on the post of Attorney General.

The Department of Justice and the White House has received a lot of heat for the so-called Torture Memo, which was a central issue in the confirmation hearings. That heat has come from legal circles, human rights organizations, and even from military leaders who fear what might happen if the United States chooses to walk away from — or selectively apply — anti-torture laws. As Lindsey Graham — yes, the conservative Republican from South Carolina — stated in his opening statement yesterday,

every Air Force wing commander lives in fear of an air crew being shot down and falling into enemy hands. And we instill in our people as much as possible that, “You’re to follow the law of armed conflict, because that’s what your nation stands for, that’s what you’re fighting for, and you’re to follow it because it’s there to protect you.”

Note that Graham is a judge advocate in the Air Force. So he’s aware of the realities of fighting a war, and more importantly, he is aware of how anti-torture rules benefit American troops.

The biggest dissapointment regarding yesterday’s hearing is that Gonzales’ confirmation is all but a foregone conclusion. Despite all the concern about his involvement in the 2002 torture memo and his questionable choices when he was Bush’s head legal counsel (as noted above), all the senators qualified their statements with a phrase similar to “I have no doubt that you will be confirmed,” or “I plan to vote to confirm, but…” As a result, the hearings functioned as little more than an open forum for the general, almost abstract concerns that the senators had about the concept of torture and the possibility of it being used by the United States. I feel like if there was some question of how the Senators would vote, the discussion would make the real existence of (and intolerance for) torture a much more tangible issue.

January 6, 2005

A Different Type of Stephen Breyer ::
weird, supreme court, legal — No Tags
10:23 am

Accoding to Law.com, Justice Stephen Breyer showed up for jury duty in Marlborough, Massachusetts. Although Breyer should be commended for fulfilling his democratic duty, I have to wonder what it would be like for the attorneys who had to argue the case before him. I think it would be hard to think of him as anyhing other than one of the most intelligent, accomplished jurists in this country.

But then again, I don’t think Breyer has had much trial experience (he was a judge on the First Circuit Court of Appeals before being appointed to the Supreme Court). So maybe there wasn’t really all that much difference betweeen him and the other jurors.

Judicial Hellholes ::
legal — tagged , and
10:16 am

It seems that President Bush has had some trouble garnering serious support for his tort reform initiatives. Nevertheless, every few months he gets out on the stump and argues that a combination of incompetent or dangerous (activist!) judges, unscrupulous plaintiff’s attorneys, and runaway juries are driving up the cost of malpractice insurance. As the media widely reported, Bush made one of those now-famous stump speeches again yesterday.

In response to Bush’s assertion, I will put a very fine economic point on this argument about “out of control lawsuits” and tort reform. To begin with this argument, let’s look at one of the so-called “judicial hellholes,” Bush was referring to. According to the article,

[e]xhibit A in Bush’s case is Madison County, across the Mississippi River from St. Louis, named the country’s top “judicial hellhole” by the American Tort Reform Association last year because of its reputation for big awards.

Similarly, Stephanie Mencimer pointed out in her Washington Monthly article over a year ago that the type of “bad” litigation that Bush decries, goes hand-in-hand with economic destitude:

Wheeling[, West Virginia] and the surrounding Ohio County rank among the poorest places in the country. Thanks to the closing of the steel mills, Ohio County has lost 30 percent of its population since 1968, leaving it with one of the oldest populations of any county in the country. Today’s residents are thus heavily dependent on the local hospitals, which also happen to be the area’s largest employers. Wheeling Hospital, where most of the doctors went on strike, employs some 3,000 local residents.

Sounds very similar to the widely-known situtation in East St. Louis, doesn’t it? In areas of high poverty and high unemployment, people are more likely to seek out economic opportunity in the court system when the mainstream. A solution to these out-of-control tort decisions is simple, then: develop an economic plan that provides real economic opportunities to poor people. Such a plan would definitely result in a decrease in this type of “bad” litigation that President spends so much time (and money) castigating.

But remember, the issue of tort reform is not so simple that it can be summed up with a basic economic argument. There are many other issues involved, such as an unfair malpractice insurance industry and — yes, it’s true — some legitimate cases of frivolous lawsuits actually going through the court system. I’ll try to bring some of the other important issues to light in the near future.

More on the Prospective Thomas Appointment ::
legal — tagged , , and
10:15 am

Legal Affairs Debate Club has an interesting discussion on the implications of a Clarence Thomas appointment as Chief Justice of the Supreme Court.

Samuel Marcosson, who is skeptical of a Thomas appointment, makes a compelling assertion on Originalism generally, and Thomas specifically:

Originalism would emerge much less well-regarded from a thorough airing of all its implications. Since Thomas is an originalist-of-convenience, rather than one of principle, his nomination would instead prove simply that there are no true originalists on the Court, including Clarence Thomas.

In my recreational readings over the past couple of weeks, I’ve thought extensively about “originalism” and the other strains of legal thought that would require courts to go all the way back to the original intent of the framers. As I mentioned before, a true supporter of original intent should question the rightness of a national commitment to racial equality. Such a supporter would also hold as unconstitutional just about any federal regulatory power established since the new deal.

January 5, 2005

Clarence Thomas As Chief Justice ::
legal — tagged , , and
5:47 pm

The 109th Congress convenes for the first time today. It’s most likely not a coincidence that yesterday I noticed a lot of speculation of who the next Supreme Court Chief Justice will be. Here’s a rundown of the more interesting legal blog posts on the subject:

Also see a good response to now-Senate Minority Leader Harry Reid’s description of Clarence Thomas as an “embarrassment” to the Court. The post also provides a good profile of Thomas’ legal theory. The central idea is that Thomas is not a dimwit or even an intellectual lightweight — he is instead a radical legal thinker, whose stances not only threaten the Constitution, but — because of their radicalism — are inconsistent with conservative principles as well.

More broadly than the Clarence Thomas issue, the oddest part of the Democratic obstinance to a prospective Supreme Court appointment is the party’s lack of purpose to their obstinance. What do I mean? Let’s say that the Chief Justice retires, and Bush appoints Clarence Thomas to be the next Chief Justice. Thomas loses his confirmation in the Senate, either because there is not a majority of votes (unlikely) or because of a Senate filibuster. Then President Bush appoints Justice Scalia to be the next Chief Justice, but he either does not accept the appointment, or he loses in the Senate as well. Under the professed goals of the Senate Democrats (to prevent the appointment of judges “out of the legal mainstream”), it seems that they have one won. But then what?

Well, obviously, President Bush will appoint another jurist to the Supreme Court. Do the Democrats filibuster that one as well, or do they let him slide? What if the appointee is more conservative than Scalia or Thomas? Then the Democrats and all liberally-minded people — are possibly in worse shape than they were before. Not only do the Democrats look bad, but the Supreme Court moved further to the right than it may have otherwise if the Democrats had approached the confirmation process with a bit more foresight. (Note also that one of the benefits of their being appointed is that we know their legal philosophies and, with that, their capacities for bad — and good — legal decisions.)

Additionally, Senate Democrats up for reelection in 2006 will go into their campaigns with a strike against them. Their Republican opponents will easily be able to brand them as being obstinate, anti-democratic, and unwilling to take a leadership role. (Basically, they would be able to reprint their campaign playbook from 2004 or, for that matter, 2002). In short, on this issue of judicial appointments, the Democrats should really be thinking more about a long-term strategy.

Finally, of all the suggestions for the next Chief Justice of the Supreme Court, I find SCOTUS Blog’s the most compelling. Specifically, they recently did an in-depth profile of Judge John Roberts, who, though I don’t agree with a lot of his jurisprudence, would make an excellent CJ appointment.

Judge Rakoff and the Death Penalty ::
legal — tagged , and
5:30 pm

Both Talk Left and the ACS blog have pointed to this New York Times profile of Judge Jed S. Rakoff, who has gained noteriety for declaring the death penalty fundamentally unconstitutional. His reasoning is the most simple and straightforward I have seen of any judge — he argues quite simply that capital punishment violates due process because a defendant cannot effectively pursue a subsequent claim of innocence if he (or she) is dead.

Judge Rakoff’s reasoning depends on the the possibility of innocent people being executed. Death Penalty proponents may argue that the phenomenon of “innoncence on death row” is a mere theory, and the constitutionality of capital punishment should be determined the actual fallibility of capital punishment. But Judge Rakoff’s research revealed “32 cases of exonerated prisoners who, he concluded, were ‘factually innocent’ — 12 were cleared through DNA testing and 20 through other means.” So the problem of an innocent person being sentenced to death is actually quite real, not just a hypothetical scenario. Even though his opinion was ultimately reversed by the second circuit, I will be interested to see what effect Judge Rakoff’s stance will have on the death penalty debate.

January 3, 2005

Hey Athiest, Establish This! ::
legal — tagged , and
8:52 pm

From the Seventh Circuit, which includes my home state of Wisconsin, comes this (pdf) decision on the constitutionality of a town selling a small tract of public land to a private organization. What’s the big deal? The tract just happens to include a monument of the Ten Commandments. According to the plaintiffs (and the trial court), this sale violates the Establishment Clause of the First Amendment (that’s the one that says that there can be no state-sponsored religion).

In upholding the sale, the majority reasoned that because “[the city of La Crosse] wanted to eliminate its ownership in the Monument to preempt litigation accusing it of using the Monument to endorse a religious message by displaying it on public property,” the sale was constitutionally permissible. This is oddly self-referential reasoning, and seems to misapply constitutional doctrine. Basically any action that a government entity takes to subvert foreseeable establishment clause challenges is sufficiently secular to meet the requirements of the Constitution. It makes my head spin. And the real pain is that at the end of it all, the offending monument gets to stay right where it’s always been, much to the consternation of the local Buddhists, Muslims, and atheists.

Just about any first year law student will learn about the different tests under which courts may analyze establishment clause claims. Over time, these tests have given litigants a variety of legal tools to help them work for their desired outcome. So for example, some plaintiffs may want to promote religious tolerance and diversity in their town, while others may want to prevent school prayer. However, the multiple tests also allow some judges the opportunity to fit a square peg into a round hole. If you accept the reasoning of the dissenting opinion — and I am inclined to — this may seem to be an instance of the latter case. It’s a fascinating case, though.

As a final note, the dissent was — thankfully — not so easy on the defendants. First noting that any disclaimer as to who owns the monument is a “sham” similar to the man behind the curtain in the Wizard of Oz, the dissent goes on to say that a government may not under any circumstances

spend public money endorsing or seeming to endorse on behalf of the government agency they represent, an endorsement of any religion. The monument belongs on what is obviously private property or a church setting. It does not belong where it is.

January 1, 2005

That old song of international responsibility ::
rant, politics — No Tags
10:49 pm

Jared Diamond has a good editorial in the New York Times today, in which he compares our current state of affairs with those of fallen nations just before their collapse. His conclusion? That there are many similarities between what he sees in our nation, and what was going on in those now non-existent nations.

After some pretty compelling comparisons between our culture and those of the Norse and Mayan societies, he gets to the two “deeper lessons” that history teaches us. First, he argues that “[a] society contains a built-in blueprint for failure if the elite insulates itself from the consequences of its actions.” In those situations, the elite (who make the policy decisions) are not threatened by the state of affairs until they have destroyed their environment. This can be seen both in Mayan societies and, for example, in gated Los Angeles communities, which are “guarded by private security patrols, and filled with people who drink bottled water, depend on private pensions, and send their children to private schools. By doing these things, they lose the motivation to support the police force, the municipal water supply, Social Security and public schools.”

The second lesson is — thankfully — more optimistic. Socieities can save themselves if the have a “willingness to re-examine long-held core values, when conditions change and those values no longer make sense.” The argument he makes (in a broad sense) is that societies can still save themselves, if they choose to do so. Applying that idea to our current state of affairs, he finds that the most dire problems we face are of our own making, thus we have the power to unmake them. We just need to start making the right decisions.

Overall it was an interesting article — at the same time scary and energizing. I’m not sure how much staying power the book has, but it was a good read for New Years Day nonetheless.

Diamond’s previous book, Guns, Germs, and Steel dealt with many of the same themes that he addressed in the Op-Ed. (Here’s a review of it, which I wrote a couple of years ago; note that I would rewrite it if I had the time.) So I found his arguments somewhat familiar. My sense from this latest article is that he’s he’s trying now to translate his ideas into sound policy. The effect, I hope, is a thoughtful, and wise discussion about the risks that we have created, not only with our current policies, but with our collective lifestyle choices as well. But on the other hand, his discussion also runs the possibility of being somewhat unhelpful. I mean, asserting that the times are as perilous as he suggests does little to start a thoughtful discussion about the direction our Nation is taking.