Wednesday, August 29, 2007

Judge Rules Ban on Metal Bats Constitutional

The recent ruling of a MA judge has gotten opponents of the ban literally batty. The NY Times article that covered the decision reported:

"While the judge observed that there was disputed evidence over whether metal bats were more harmful than wooden bats, he said that the Council had acted rationally in assessing “that the risk is too great.”

“The judgment that high school baseball players’ safety is more important than higher batting averages and more offense is a classic legislative judgment that the City Council could constitutionally make,” he wrote."

However, opponents punt the legal argument and say in response:

"Critics say the law leaves a host of unanswered questions, including who will pay for the extra wooden bats a team is likely to go through in a season and how the ban will be enforced."

Friday, August 17, 2007

War on Terror Case Settled, Finally

Jose Padilla, whom the government designated as an enemy combatant, was convicted of all charges brought against him, signaling a major victory for the U.S. government in the war on terror. The sentence was brought about after a long and length court battle over Padilla's constitutional rights and charges brought against him which took the case all the way to the USSC in 2004 in Rumsfeld v. Padilla.

Check out more on the story here.

Tuesday, August 14, 2007

Use of Sacred Land Case May Reach California Court Soon

Two interests--one over oil and the other over the preservation of sacred land to a Native American tribe--are about to come into conflict in the courts. Check out the NY Times article here.

Obtaining Rights: Not an All or Nothing Game

At the foot of the lamps located in the courtyards of the US Supreme Court are little metal replicas of turtles. Why? These turtles are supposed to represent the "slow but steady pace of justice." The rationale for these turtles is quite reminiscent of the saying that the arc of history is long, but it always bends toward justice. Indeed, it seems that it always does. While history may take some backwards steps every now and then, our countries history has seemed to move in a direction which gives those disadvantaged more rights.

"We the people," when the US Constitution was penned in 1789 constituted a much more different demographic than "We the people" today. Women and African Americans were not part of that demographic. Perhaps only white property owning men were the only ones that constituted the "people" back then.

Equal justice under law is something that is an ideal. Never is it ever a reality. It's an ideal that we as a country strive for and that takes time to accomplish and attain. Perhaps this is why those groups fighting for certain rights nowadays realize that the choice isn't really all or nothing. Baby steps are required. Incrementalism. And sometimes when change in favor of more rights takes place, this change can actually be counterproductive.

Recently The Washington Post ran an article commenting on this very phenomenon about the gay rights movement in Russia. There is a divide between those that believe that the gay rights movement is actually engendering more homophobia and creating an argument against giving gay men and lesbians more rights. While it seems that the backlash against the gay rights movement in Russia would have happened anyway, the degree to which the backlash is occurring may be different had the rights movement taken a more back seat approach and therefore encountered less opposition.

And while the opposition that the gay rights movement is facing in Russia may not necessarily apply to the gay rights movement here in the US, it is certainly interesting to consider that not too long ago, opposition to the same-sex marriage ruling in MA sparked a similar "backlash" against the gay rights movement.

Monday, August 13, 2007

US Supreme Court Law Clerks: Part II

How much power do law clerks really have? The question is quite interesting given the fact that the justices who sit on the Court do have the power to "say what the law is." How much say do law clerks having in creating the law of the land?

FindLaw's Edward Lazarus (who used to clerk for Justice Blackmun--shown above with his family) thinks that there is some evidence that law clerks do participate too much in the writing of opinions that are issued by the Court. In his article he writes that this level of involvement may also not be good. He says, "After all, clerks - typically in their twenties or at the latest, early thirties - do not have the experience of the Justices, or the judgment that comes with it. Nor, of course, were they nominated, vetted, and confirmed."

His whole article can be found at the link above or below in full:

Is Too Much of the Justices' Work Delegated to Their Law Clerks?

On a parallel track, a growing number of Court watchers have started to criticize the justices for the way they go about their work - and, in particular, the degree to which they have delegated the Court's work to a bureaucracy of young law clerks.

The debate on this subject heated up last year when Pulitzer-Prize-winning historian David Garrow accused Justice Harry Blackmun of being the most irresponsible justice ever because, according to Garrow's analysis of Blackmun's papers, Blackmun delegated a very substantial part of his opinion-writing to his clerks. (Full disclosure: I myself was once one of Blackmun's clerks.)

Meanwhile, two new political science books have thrown gas on the fire by arguing that Blackmun was by no means aberrational in his approach. Instead, they conclude -- based on extensive empirical study -- that almost all the justices relegate opinion drafting to their clerks. Moreover, these books claim, a fair number of the justices are fairly light editors of the drafts the clerks produce.

Critics ought to be remember, though, that even if this is true to some extent, the clerks are usually drafting according to the Justices' specific instructions, and subsequent to their deliberations with colleagues - and thus, they are still carrying out the Justices' visions. By and large, clerks are like apprentice architects filling in the boss's blueprint.

Still, it was not always thus. Decades ago, Justice Louis Brandeis famously remarked that the justices earned their high reputation in significant part because they were the only officials in Washington who genuinely did basically all of their own work. Then, it seems, Justices were both architects and apprentices.

A number of prominent commentators have started pining for the days when Brandeis's observation was still accurate. Reviewing the two books on law clerks, Judge Richard Posner, perhaps the smartest judge in the country, argues that the growth of the clerk bureaucracy has done nothing to advance the quality of Supreme Court opinions or decision-making; in fact, he suggests, it's just the opposite, and quality has diminished as clerk involvement has grown. After all, clerks - typically in their twenties or at the latest, early thirties - do not have the experience of the Justices, or the judgment that comes with it. Nor, of course, were they nominated, vetted, and confirmed.

It's not as shocking as it might sound, then, that two other well-respected Court followers, Stuart Taylor and Ben Wittes, have gone so far as to propose that the whole institution of Supreme Court law clerks - the hotshot recent law grades for whom clerking is a ticket to the legal elite - be abolished. In their view, the justices of the current era have unforgivably abdicated their most important responsibility - namely, crafting the specifics of the arguments that support and justify the nation's most important legal decisions.

In reality, the whole system of law clerking is far too entrenched for Taylor's and Wittes's suggestion to gain much traction. And I doubt that such a wholesale approach would be a good idea anyway. Law clerks, when deployed as they ought to be, perform all kinds of salutary functions, including bringing energy and new ideas into an otherwise exceedingly insular institution.

But as is true of all Swiftian "modest proposals," the Taylor/Wittes idea of doing away with law clerks entirely does raise important questions about the Court's functioning. How engaged are the individual justices in the crafting of the particular language used in their opinions? And if they're not very engaged at all, how much sense does it make for the lower courts to closely parse their every word choice? Does the clerk bureaucracy allow justices to stay on the Court long after their prime has passed? Has the proliferation of law clerks improved the Court's work and, if not, why not? Are there ways the use of law clerks could be reformed, but not abolished?

Thursday, August 9, 2007

Too Much Time on Their Baby Soft Hands

Johnson & Johnson owners have sued the Red Cross over the use of a similar symbol. This is outrageous. Perhaps Judge Pearson (who sued a dry cleaning business for nearly 60 million dollars for loss of a pair of pants) and Johnson & Johnson have something in common? They would share much more in common than those two logos pictured up above.

Check out the article

US Supreme Court Law Clerks: Part I

Is there declining diversity in the law clerk hires since the appointment of John Roberts and Samuel Alito?

Perhaps there is as Linda Greenhouse writes in a not-so-recent memo regarding the declining numbers of female law clerk hires by USSC justices.

Take a look at the article below:

Everyone knows that with the retirement of Justice Sandra Day O'Connor, the number of female Supreme Court justices fell by half. The talk of the court this summer, with the arrival of the new crop of law clerks, is that the number of female clerks has fallen even more sharply.

Just under 50 percent of new law school graduates in 2005 were women. Yet women account for only 7 of the 37 law clerkships for the new term, the first time the number has been in the single digits since 1994, when there were 4,000 fewer women among the country's new law school graduates than there are today.

Last year at this time, there were 14 female clerks, including one, Ann E. O'Connell, who was hired by William H. Rehnquist, the chief justice who died before the term began. His successor, Chief Justice John G. Roberts Jr., then hired Ms. O'Connell.

Justice Samuel A. Alito Jr., who joined the court in January, hired Hannah Smith, who had clerked for him on the appeals court where he had previously served. So by the end of the term, and counting Ms. O'Connell twice, there were 16 women among the 43 law clerks hired by last term's justices.

After years in which more than a third of the clerks were women, the sudden drop was a hot topic this summer on various law-related blogs. Word of the justices' individual hiring decisions spread quickly among those for whom the comings and goings of law clerks are more riveting than any offering on reality television.

Who are these young lawyers who are the subject of such interest? They do not, contrary to myth -- propagated in part by law clerks themselves -- run the court. They do play a significant role in screening new cases, though, and they help their justices in preparing for argument and in drafting opinions.

While their pay is a modest $63,335 for their year of service, a Supreme Court clerkship is money in the bank: the clerks are considered such a catch that law firms are currently paying each one they hire a signing bonus of $200,000.

In interviews, two of the justices, David H. Souter and Stephen G. Breyer, suggested that the sharp drop in women among the clerkship ranks reflected a random variation in the applicant pool.

But outside the court, those who care about what goes on inside are thirsting for more than statistical randomness as an explanation.

A post on one popular legal Web site, the Volokh Conspiracy, asked, ''Why so few women Supreme Court clerks?'' and drew 135 comments during a single week in July. The answers included the relative scarcity of female students among the top editors of the leading law schools' law reviews -- an important preclerkship credential -- and the absence of women among the ''feeder judges,'' the dozen or so federal appeals court judges who, year in and year out, offer a reliable pipeline to the Supreme Court for their own favored law clerks.

Some speculated that Justice Antonin Scalia, who hired only two women among 28 law clerks during the last seven years and who will have none this year, could not find enough conservative women to meet his test of ideological purity. (Justice Clarence Thomas will also have no female clerks this year, but over the preceding six years hired 11.)

In a brief telephone interview, Justice O'Connor said she was ''surprised'' by the development, but declined to speculate on the cause.

Justice Ruth Bader Ginsburg expressed no such surprise. In a conversation the other day, she knew the numbers off the top of her head, and in fact had noted them in a speech this month in Montreal to the annual meeting of the American Sociological Association, during which she also observed with obvious regret that ''I have been all alone in my corner on the bench'' since Justice O'Connor's retirement in January.

Justice Ginsburg, who will have two women among her four clerks, declined during the conversation to comment further on the clerkship numbers. Why not ask a justice who has not hired any women for the coming term, she suggested.

One who is in that position, Justice Souter, said he was disappointed to find himself without any female clerks. He explained that he had hired the top four applicants, who turned out to be men.

In recent years, more than a third of Justice Souter's law clerks have been women; since women rarely make up as much as a third of the applicant pool, he said, they have been somewhat overrepresented among his hires.

''I've found that a mix is a wonderful thing,'' he said, speaking from his home in New Hampshire.

Unaware of the overall drop in numbers, Justice Souter said he assumed it reflected no more than a random variation among this year's applicants.

That was also the assessment offered by Justice Breyer, who nonetheless has hired his usual total of two women for his four law clerk positions.

In the last seven years, Justice Breyer has hired more women than any other member of the court; more than half his law clerks, 15 of 28, have been women, a result, he said in an interview from his chambers in Boston, not of any conscious effort but of choosing the best available candidates.

With the number of women in clerkships high by historical standards until now, attention has been focused on a lack of ethnic and racial diversity among the clerks. There are no reliable figures, but the clerkship cadre remains overwhelmingly white.

It was not until the 1940's that any justice hired either a female or black law clerk.

Justice William O. Douglas hired the first female clerk, Lucille Lomen, in 1944, and it was 22 years before Justice Hugo L. Black hired the second, Margaret Corcoran. The first black clerk, William T. Coleman Jr., who is still practicing law here, was hired by Justice Felix Frankfurter in 1948.

Justice Frankfurter was not, however, ready to hire a woman when the dean of Harvard Law School strongly recommended a former star student in 1960. He turned down Ruth Bader Ginsburg.

Tuesday, August 7, 2007

Going to the Source of the Flood

A recent ruling by a federal appeals court has left Katrina victims essentially homeless nearly two years after a hurricane ravaged the Gulf Coast.

The ruling overturns a decision by a district court judge which said that insurance companies were responsible for covering damages that ensued from the flooding that occurred after the levees gave way in 2005. The insurance policy language, the district court judge ruled, was ambiguous in that it did not distinguish between naturally occuring floods and those resulting from faulty levees or human error.

However, the federal appeals court declared that although ambiguous the policy is very clear about excluding homeowners from protection against any sort of flooding. Obviously there is disagreement among the judges about how to interpret this insurance policy.

But apparently the policy and the text of the policy is quite clear. The text of the appeals court decision by Judge King reads:

"Each plaintiff in this case is a policyholder with homeowners, renters, or commercial-property insurance whose property was damaged during the New Orleans flooding. Despite exclusions in their policies providing that damage caused by “flood” is not covered, the plaintiffs seek recovery of their losses from their insurers. Their primary contention is that the massive inundation of water into the city was the result of the negligent design, construction, and maintenance of the levees and that the policies’ flood exclusions in this context are ambiguous because they do not clearly exclude coverage for an inundation of water induced by negligence. The plaintiffs maintain that because their policies are ambiguous, we must construe them in their favor to effect coverage for their losses."

Therefore the jurisprudence is sound. But justice does not seem to have been served. The people at fault should be the ones paying for the damage to these houses--not those victims of the hurricane who are now left with more worries than fears allayed nearly two years after they lost their homes and way of life.

For more, read the NY Times article here.

Communication Between the Branches Sometimes Lacking

The recent ruling of a VA judge striking down driving fees as unconstitutional since they only apply to VA residents and not all who use the VA roads is illustrative of the sometimes lack of communication between the legislative and judicial branches of government--even at the state level.

The law which was created in order to finance a transportation bill that the VA legislature had passed violated the equal protection clause of the US Constitution since it only applied to state residents and not all who used VA roads. The ruling is a clear indication of what the judge believes to be constitutional: a law which applies to everyone using VA roads--not only VA residents. It is a simple change in language which could have been quickly remedied while drawing up the bill instead of dragging the bill through a hefty legal process, wasting time and resources of government that could better be spent elsewhere.

Monday, August 6, 2007

Going Beyond Unreasonable Searches & Seizures

The new law that Bush signed has violations of the 4th Amendment written all over it. According to an article by the NY Times, the new law both expands the definition of "electronic surveillance" and clarified the FISA act of 1978 to allow for warrantless searches.

The article reads:

“This more or less legalizes the N.S.A. program,” said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation.

Previously, the government needed search warrants approved by a special intelligence court to eavesdrop on telephone conversations, e-mail messages and other electronic communications between individuals inside the United States and people overseas, if the government conducted the surveillance inside the United States.

By changing the legal definition of what is considered “electronic surveillance,” the new law allows the government to eavesdrop on those conversations without warrants — latching on to those giant switches — as long as the target of the government’s surveillance is “reasonably believed” to be overseas."

Bush's decision goes against the general prevailing jurisprudence on this issue in the lower courts which have reviewed this matter. Recall that nearly a year ago on August 16, 2006 a Detroit district judge, Anna Diggs Taylor, ruled that the NSA terrorist surveillance program violated the 4th Amendment. The 6th Circuit Court of Appeals failed to rule on the issue throwing it out on the justiciability doctrine of standing and thus refused to rule on the actual merits of the case.

Will Immigration Become a National Issue in the Courts?

The National Journal is calling attention to a District Court ruling in PA regarding an ordinance against illegal immigrants which may make its way up to the USSC. The PA District Court ruled that the ordinance which deals with housing and employment of illegal immigrants falls outside the jurisdiction of the municipal government of the states. A 1986 act called the Immigration Reform and Control Act stipulates that only the federal government--not the states--are allowed to regulate these matters.

Wednesday, August 1, 2007

Media Inflating Roberts' Medical Episode

Yesterday, CJ Roberts was treated at a hospital in Maine for his second seizure in 14 years. The first seizure apparently occurred while he was going through his confirmation hearings for the DC Circuit Court of Appeals. Some have pointed to stress as a triggering factor for Roberts' first seizure. This time, Roberts was on vacation when the second seizure occurred.

Because of Roberts' two seizures, medical doctors now consider Roberts to have epilepsy. Among some of the options for treatment are medication (which apparently can have some unpleasant side effects) or doing nothing and waiting. Some states prohibit sufferers of epilepsy from driving until they can prove that their condition is under control.

Admittedly the Justice is not in the best of health. However, it appears that the media and in specific, Linda Greenhouse of the NY Times in an article, takes a rather extreme view of what has happened. A man in his early 50s has visited the hospital for a condition which medicine can treat. There's nothing more and nothing less. Greehouse seems to imply that the legal world will now face great changes using almost hyperbolic language. She says:

"In October, when he returns to his seat at the center of the Supreme Court bench, will colleagues and courtroom spectators see the same golden youth whose trajectory was unmarked by setback or sorrow? Or will they see someone suddenly vulnerable, with a medical condition that, while treatable and shared by millions, can still inspire fear?

Or to dig deeper, might this encounter with illness even change the way John Roberts sees himself, his job or the world?"

She continues:

"Nearly two years ago, after Chief Justice Roberts took the oath of office, he was accompanied down the steps of the court by Justice John Paul Stevens, 35 years his senior. Justice Stevens stumbled slightly, and the waiting crowd held its breath as the new young justice helped him regain his balance. Justice Stevens is still playing golf and tennis. It is John Roberts for whom the country now holds its breath."

Greenhouse draws a contrast between Stevens who is the oldest justice sitting on the bench and Roberts, the youngest justice currently presiding over the Court. It is highly unlikely the majority of the country is even giving a second thought to Roberts and his more than likely 30 year stint to come on the Court.

Greenhouse and the rest of the media need to calm down, relax, and instead of holding their breath for an obviously in-good-health justice, take a deep breath. Perhaps even take a chill pill.