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August 28, 2005

Donald Fell’s attorney asks to throw out death sentence ::
legal — No Tags
3:56 pm

Unfortunately, it’s really just an issue of form at this point, but the Rutland Herald reports that Donald Fell’s attorney has asked judge William Sessions to throw out the death sentence handed down by federal jury earlier this month. The article notes that the motion should not be taken seriously right now.

“Before Sessions would issue a ruling throwing out the verdict and ordering a new trial I would expect him to order an evidentiary hearing,” he said. “That would be the first sign that Sessions is taking any of these issues seriously.”

Legal Fiction on Judge Roberts and Race ::
legal — tagged , , , , and
3:36 pm

[This is just one of a few posts I’ll be making as I try to catch up in the online world after taking a break for a week or so.]

Legal Fiction has a great series of posts dealing with is reservations about John Roberts’ race record here, here, here, and here. Although Roberts was arguing many of the more controversial positions while working for the Reagan and Bush Administrations, the language he used suggests he relished advocating the racially insensitive, sometimes borderline racist, positions of those administrations.

I still don’t think that this means that Judge Roberts should be dismissed out of hand. But I think the Senate has a responsibility to ask how Roberts’ views on these topics have evolved over the years.

August 26, 2005

08/26/2005 Vermont Supreme Court opinions ::
legal — tagged , , and
4:13 pm

Well, that was a long week: parents visiting, then a trip down to Westport for a meeting of the families, then back home for a few days rest before heading in for a little dental work. Funny how these last few weeks—or in my case, days—of summer can really get away from you.

In any event, here are the opinions that the Vermont Supreme Court issued this week:

August 19, 2005

08/19/2005 Vermont Supreme Court Opinions ::
legal — tagged , , and
9:12 pm

The following opinions were issued by the Vermont Supreme Court on August 19, 2005:

John Roberts and Brian Burgess — what do they mean for Vermont? ::
legal — tagged , , , , , and
11:15 am

Substituting for Peter Freyne on Seven Days’ Inside Track column, Cheryl Hannah (a VLS professor) soberly discusses the effect that a John Roberts confirmation would have on a Woman’s right to abortion. She also connects the changing makeup of the United States Supreme Court to the new appointment of Brian Burgess to the Vermont Supreme Court. Hannah notes that although Vermont has its own state Supreme Court precedents that appears to guarantee abortion rights, that doesn’t necessarily guarantee that abortion rights would be protected in this state if Roe were overturned. She notes that this reality

is why we ought to be as concerned about who is appointed to the Vermont Supreme Court as we are about who is appointed to the United States Supreme Court. Indeed, when Brian Burgess, Governor Douglas’ latest appointee to the Vermont bench, comes up for confirmation in January, he should be asked about his view of Beecham, just as Roberts should be asked about his view of Roe.

I brought up the new Burgess appointment in two earlier posts, but I didn’t note the implications of his appointment with as much particularity as this article. So I recommend you go to Seven Days and read it.

August 18, 2005

Summer break ::
meta, narrative, personal — No Tags
3:42 pm

Huh. I guess I missed a day of posting there. Just wanted to post to let the record show that I’ll be taking a short break from posting to this site. Should be a few days. Will be back sometime next week.

See, here’s the deal. I only have so much time before the fall semester begins, plus my parents are in town for a few days, and I can only see them so often. Also, the whole lot of us—Jessamyn, my parents, me—are headed down to Westport this weekend for a meeting of the parents. With my parents finally meeting Tom and Cindy, that will be a full turn of the wheel—that is, all of our parents will have finally met each other. Even if you think it sounds stressful, it should be fun. Lots of water, a barbecue, and hopefully cooperative weather.

Anyway, should be back posting regularly sometime next week. In the meantime, I’ll be on email.

August 16, 2005

Constitution as suicide pact ::
legal — tagged , , , and
3:35 pm

The old phrase “the Constitution is not a suicide pact” is one of those nebulous statements that can be used to further two opposite political and legal agendas. On the one side, those who favor a cavalier retraction of civil liberties in the face of growing security concerns cite the statement to further the argument that the Constitution should not be rigidly adhered to if it means that it makes America “insecure.” But those who have reservations about the cite the statement in arguing that the Constitution—and the rights it protects—are not intended to be abandoned, or otherwise sacrificed, in the face of heightened security concerns. Indeed, we should equate placing limits on constitutional protections to the taking of a life.

To further explain this dichotomy, I found this three year old Slate piece about the two lines of interpretation. The first interpretation came from a dissent written by Robert Jackson, in a First Amendment case dealing with a hate-filled, white supremacist speech that ended in violence and and Terminiello, the defendant, being charged with disorderly conduct. The second interpretation originated from a majority opinion writted by the much more liberal Arther Goldberg.

Those who make the former argument—that the Constitution was not intended to place United States citizens in danger, or threaten law and order, the Jackson dissent, in which he argued that

[t]here is danger that, if the court does not temper its doctrinaire [First Amendment] logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

But those who make the latter argument—that we should not run roughshod over the rights protected by the Constitution at the first sign of possible danger—cite Justice Goldberg, who in a later case

raised the suicide-pact point in recognizing that the Constitution indeed granted Congress “broad and far-reaching” powers to require military service. Still, he asserted, those powers were limited and did not allow the government to yank citizenship as a penalty for draft-dodging without due process.

Great reading!

Update: James also reminds me that he talked about the Constitution as suicide pact a few years back.

A belated welcome to False 45th ::
narrative — No Tags
12:34 pm

If you like indie music, are from Vermont, or some combination of those two, then you should check out the chronicles of False 45th, in which the author discusses the charms of Vermont living, the value of independent music, and the joys and frustrations of following the Vermont Mountaineers.

Of particular interest—to me, anyway—is this post about Pavement’s three night stand in New York City in Spring, 1997. Flatlander—the blog’s author—made it to the show at CBGB’s, which I remember was fast approaching mythical status during those few days. I was in New York at the time, and I remember that weekend fairly well. I didn’t make it to the first two nights, but did make it to the third night, after spending way too much money on a ticket after a shady parking lot auction session. The show was a blast. Which was great because it wound up being the last Pavement show before the band broke up.

August 15, 2005

Quick legal links ::
politics, legal — No Tags
8:00 pm

Boy, I’m exhausted. 16 mile bike ride earlier today, then Jessamyn and I went swimming in the afternoon after the skies cleared and the temperature rose. Now I’m surfing various bookseller sites, looking for deals on textbooks for the fast-approaching fall semester.

In any event. Some law stuff worth pointing to.

First, Rick pointed me to this Times Argus piece about a legal challenge to the revote procedure used at town meetings in the state of Vermont. According to the article, the plaintiff’s argument is that a revote—which often results in town meeting decisions coming out the other way—offends some concept of fairness.

Miller’s case has several legal nuances, including a charge that the revote ballots were confusing and that switching from a floor vote to an Australian ballot system requires a charter change which must be approved by the Legislature.

Vaguely reminisicent of Bush v. Gore, no? I assume there the plaintiff is challenging the practice under some provision of the U.S. or Vermont Constitution. Although such challenges are quite difficult to win in the courtroom, you can always get those crazy cases in which the court decides it would be appropriate to deal with a political question. So who knows!

And secondly: not really legally relevant, but what an unfortunate headline: Poker not weapon in Townshend homicide.

And finally, the Times Argus also notes a federal court judge’s reluctance to allow plaintiffs—Attorneys General from a number of affected states—to continue with a suit against power companies for their contributing signficant amount of greenhouse gases to the environment. Although the article doesn’t specify, it sounds like the case was up on appeal in the Second Circuit.

August 14, 2005

Unlikely Heroes ::
books, legal — tagged , , , and
3:44 pm

This weekend, I finally finished Unlikely Heroes, by Jack Bass, which chronicles the story of Four Federal Appeals Court judges in the Fifth Circuit, who took on the daunting task of implementing the Supreme Court’s second Brown v. Board of Education decision (Brown II), which required segregated school systems be dismantled “with all deliberate speed” and authorized lower court judges to implement desegregation orders using “equitable principles.”

Such a task was not easy. On top of receiving vague orders from the U.S. Supreme Court, southern federal judges faced an complex, entrenched political system that institutionalized racism and subverted the civil rights of an entire class of people. Additionally, recalcitrant local officials—not to mention other judges—deliberately dragged their feet in following the orders handed down by the federal courts. But the judges chronicled in Unlikely Heroes overcame that challenge, and operated in a manner that was true to history, true to the Constitution, and true to their own sense of what was right. As the Author, Jack Bass, talks of Judge John Minor Wisdom, one of the committed desegregationist judges on the Fifth Circuit during the Brown II era:

But rare is the judge who possesses the knowledge of history and philosophy, commands the intellect and imagination, feels the sene of justice and moral imperative, and displays the integrity and courage that all combine in a single case to transform law and make a permanent impact on the legal process. Fate smiled when a judge named Wisdom not only transformed the law of school desegration in U.S. v. Jefferson, but provided the historical and philosophical foundation that placed it in the context of a larger issue.

Keeping in mind that the desegregation requirements in Brown would have meant very little if it had been ignored by the southern states and in the southern courts, the fact that Judges Wisdom, Elbert Tuttle, John R. Brown and Richard Rives were all sitting on the Fifth Circuit at the same time was truly providential. And while I do not diminish the ongoing racial intolerance that plagues American society, the fact that we have progressed so much from the segregated world before Brown is in no small part the result of the work done by these judges.

Finally, to bring the importance of this book into modern times: in the next few weeks, the Senate will be gearing for the confirmation hearings for Judge Roberts. Although I do not want to play down the importance of his potential confirmation to issues surrounding civil rights and constitutional law, at the end of the day, the judges and the courts that will have the most immediate effect on those rights are those who must take the high level, many times vague directives of the Supreme Court and apply them to the very specific facts of the situation they face in a particular case. It is in that scenario that the true meaning of a Supreme Court decision is truly born out. And in order for the decision to truly mean something—especially in the realm civil rights for an historically opressed class of citizens—a lower court judge must stare down the inequities and the hatered of an entire society. Doing that takes true heroism.

So, in short: don’t sell short the importance of inferior courts. In many ways they are just as important—if not moreso—than the Supreme Court.

Check out Unlikely Heroes at Powell’s.

August 12, 2005

The Governor’s reaction ::
politics — No Tags
3:00 pm

Governor Jim Douglas seems to be running with the idea that it’s because of Medicaid and other “government-sponsored programs” that health care in Vermont is so expensive. According to the Times Argus, Douglas is now on the offensive:

“I am not a fan, I think everyone knows, of a single-payer government run system and the reason is, I think, quite obvious. We have one: It’s called Medicaid … and it is on a track that is absolutely unsustainable.”“We cannot harm the economy of the state,” he said. “It is easy to go around and say ‘Health Care For All.’ We all want that. Most people want to have a decent job too.”

Sigh… it seems that Douglas is focusing in on a single issue brought out by the recent health insurance study I discussed earlier, and is using it as a plaform to further his preconceived, limited-government agenda, rather than having a thoughtful discussion about the implications of the recent Families USA study.

Covering Vermont’s uninsured ::
politics — No Tags
2:43 pm

One drawback to my not posting much yesterday was that I missed out on a timely discussion of this Times Argus piece on the benefits of covering Vermonters who lack health insurance. According to a study conducted by a Washington, D.C.-based advocacy group that pushes for “universal access to health care.” According to the study, providing universal health insurance to Vermonters would not provide much in the way of savings, because such a large percentage of the state’s population is already insured.

The report also stated that Vermont had an uninsured rate of 11.4 percent, the ninth-lowest rate in the nation. When that is combined with the low “cost shift,” the study found, the impact of covering uninsured Vermonters would be relatively small on insurance premiums.

The article also suggests that the health care costs are on the rise because of the way in which Medicaid and Medicare are administered in this state.

State officials are working to update their figures, but a 2003 analysis concluded that treating the uninsured cost local hospitals $35 million, while shortfalls in Medicare and Medicaid payments were twice as high at $70 million.

Interesting argument. Unfortunately, at this point I don’t have enough information on the health insurance debate to have a defensible opinion on the matter. Also, I don’t want to start making my decisions based on the positions taken by advocacy groups and other parties with a dog in the health insurance fight. But with that, I will be watching to see how this study changes the debate in the state regarding universal health insurance.

August 11, 2005

Screwey news feeds ::
meta — No Tags
1:40 pm

I’ve been working on the back end of this site over the past day, and it seems the stability of the news feeds has suffered as a result. I think I have everything back in working order, but I apologize for any kinks you might experience in the future.

The Evolution of John Roberts ::
legal — tagged , , , and
1:17 pm

Ok, I know I need to stop with the John Roberts-related posting. But there’s just so much interesting stuff out there. The latest is this post on the evolution of John Roberts over at TPMCafe. A choice paragraph:

[The current] image of a judicial incrementalist, comfortable with Democrat-appointed judges, agonizing over each case he must rule on, praising liberal icon William Brennan, is sharply at odds with everything we know about the younger John Roberts. In the 1980s and early 1990s, Roberts evinced disdain for the constitutional right to privacy and signed briefs calling for the reversal of Roe v. Wade and the upholding of school prayer ceremonies. He argued that busing—a court-ordered remedy to equal protection violations—was itself unconstitutional. He criticized the availability of federal habeas corpus rights for state prisoners, supported legislation that would have stripped the Supreme Court of jurisdiction over certain issues, and opposed the 1982 expansion of the Voting Rights Act.

August 10, 2005

Trust the billable hour? ::
legal — No Tags
3:48 pm

If you’re like me—that is, in law school and thinking about the transition from cloistered academia to the real world of legal practice—you probably think about the realities of of legal practice. If you’re looking for a unique, thoughtful critique of the current model under which a vast majority of private practitioners conduct their business (that is, through billable hours), I recommend The Greatest American Lawyer, which talks extensively about the need for coming up with different billing models in the legal profession.

From a recent post, dealing with the inherent problems of “trust me capitalism”:

The unstated premise between the law firm and the client is “trust  me, I wont let my self interest in business model get in the way of making sure we identify and meet your goals.� Of course, one of those goals would be to achieve a solution as quickly and cost effectively as possible. “Trust me, we won’t let our business model and incentives get in the way of our ethical duty to do right by you.�

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