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."

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.

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.

The LSAT, Logic Games, & Brendlin

One component on the standardized test used for admission to law schools around the country, is called logic games. Logic games comprise a range of different situations in which a student taking the test must know how to arrange and coordinate multiple sets of elements at a time.

For example, say that a college counselor needs to meet with five students: Betty, Carol, Dan, Ellen, and Fin over the five day week. The test taker must coordinate the schedule for the college counselor. Simple right? However, there may be several restrictions to the counselor's meeting schedule such as the fact that she cannot see any girls on Monday or Wednesday, Carol must see the counselor before Dan, and Carol must see the counselor anytime in between Betty and Ellen. The Law School Admissions Test (LSAT) thus requires students to be able to separate important issues and determine what really matters in resolving a problem.

Similarly in the recent case involving passenger's rights to bring a constitutional challenge against a traffic stop search (Brendlin v. California), a similar element of being able to separate issues and deal with multiple elements at a time is at hand. The case is interesting in that the methamphetamines seized on Brendlin's person implicate him in illegal drug use. Why should a person who most probably committed a crime be allowed to bring a challenge to his detention and suppress this evidence? It is most likely for this reason why the California Supreme Court ruled against Brendlin since letting a person who violated the law go free is not "equal justice under law." Yet, the question which the justices should have addressed separates this issue of guilt and innocence, requiring them to ascertain whether or not Brendlin or a person similarly situated has the right to bring a constitutional challenge to the seizure. Whether or not the person is guilty or innocent based on this evidence seized during the traffic stop is an entirely separate issue.

The question posed to the justices was: "Whether a passenger in a vehicle subject to a traffic stop is thereby “detained” for purposes of the Fourth Amendment, thus allowing the passenger to contest the legality of the traffic stop." How else could a person sitting in the vehicle not be detained? It would be ludicrous to say otherwise. Come on, justices use those good skills that the LSAT reinforced.

It appears that perhaps the California Supreme Court justices need a little logic games review for the next term.

Increasing Tension in Lower Court Nominations

It is well known among scholars of the law that most of the power to decide cases lies with lower court judges rather than courts of appeal or courts of review. The rationale is that higher courts, while they have the power of reviewing lower court decisions, do not have the time to review all of the lower court decisions and therefore they usually stand as the law.

However, it appears that there is always a frenzy over appointing judges at higher levels in the court system. Alito and Roberts are examples on the USSC. On lower courts, we saw in the summer of 2005 the contentious battles over the nomination of Priscilla Owens and Janice Rogers Brown for federal courts. Owens was finally confirmed for her seat on a federal appellate court and Brown now serves on the United States Court of Appeals for the District of Columbia Circuit.

Recently, a similar, but less contentious battle over the Governor John Corzine's nominee for chief justice of the New Jersey Supreme Court has brought to light this battle over lower court nominees. Corzine nominated Stuart Rabner, former attorney general for the state, but some minorities in the New Jersey Senate criticized Corzine for Rabner's nomination citing the fact that not as much consideration was given to minority candidates.

Rabner was confirmed by a vote of 36-1 indicating that although there was concern over his nomination, this did not pose much of a threat to his nomination. It appears, therefore that either credentials were more important in state legislators decision to confirm Rabner or that his political ideology was in line with that of state legislators despite concerns over his race.

Pearson as a Symbol of Increasing Litigiousness in American Society

D.C. administrative law judge, Roy Pearson, is giving lawyers and jurists alike a bad name. If lawyers--who may eventually become judges--didn't already have enough of a bad name already, Pearson is taking the reputation of jurists down to a new historically low level.

According to a June 21st ABC report on the pants lawsuit saga that is currently clogging our overloaded judicial system (with which Pearson should himself be familiar and therefore should be ashamed of clogging it even more with useless lawsuits), Pearson broke down in tears during his testimony detailing the traumatic events of losing his pants. ABC reports:

A Washington, D.C. law judge broke down in tears and had to take a break from his testimony because he became too emotional while questioning himself about his experience with a missing pair of pants....

But as he explained the details of the missing pants, Pearson struggled to get through his hour and a half of testimony, most of which concerned his credentials and his background.

He became visibly emotional when he reached the point in the story where he confronted Soo Chung from the dry cleaning store.

"These are not my pants,'' he testified yesterday, telling her "I have in my adult life, with one exception, never worn pants with cuffs."

But Chung insisted, Pearson testified.

"These are your pants."

Pearson rushed from the courtroom, tears streaming down his face.

Poor Pearson.

Pearson's case really represents only the tip of the iceberg in an increasingly litigious American society. According to Professor Robert Kagan in his piece entitled American Adversarialism, the number of cases being appealed today is about fifteen times that of the number in 1960--an increase of nearly 1500% in appeals.

No New Jurisprudence in Enemy Combatant Decision

While much has been made of the decision of the 4th Circuit Court of Appeals to curtail powers of the president to declare civilians "enemy combatants" and hold them indefinitely without trial, the Court of Appeals appears to only affirm what the USSC decided in Hamdi v. Rumsfeld (2004). Justice O'Connor wrote:

While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here. Cf. Korematsu v. United States, 323 U. S. 214, 233–234 (1944) (Murphy, J., dissenting) ("[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled"); Sterling v. Constantin, 287 U. S. 378, 401 (1932) ("What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions").

In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.

Indeed, the 4th Circuit's decision (oddly enough one which was overturned in the Hamdi case) falls in line with the Court's reasoning approximately 3 years ago. Indefinite detention of so-called "enemy combatants" is unconstitutional and unsound use of governmental power.

Indecency Ruling not about First Amendment Rights

Today, broadcasters won a victory over the right to "fleeting" use of profanity. The U.S. Court of Appeals for the 2nd Circuit in New York ruled against fines filed by the Federal Communications Commission against Fox television network. Movie stars, Cher and Nicole Richie, apparently used both the f-word and s-word during the 2002 Billboard Music Awards.

According to an article by The Washington Post, the Court of Appeals said that the fines imposed by the FCC are uncharacteristic of their usual statutory and administrative policies. Moreover, the FCC, according to the court, failed to articulate a reasoned basis for the policy.

Yet, the Post article quotes the FCC Chairman giving a reasoned basis for the policy. He says, "I think the commission had done the right thing in trying to protect families from that kind of language, and I think it's unfortunate that the court in New York has said that this kind of language is appropriate on TV."

Perhaps what the Court of Appeals is trying to articulate in its opinion is a refutation to the FCC Chairman's logic of protecting families and children from "that kind of language." "Fleeting" use of expletives on national television is usually not something planned, but rather an on-the-spot kind of occurrence. Fining networks for something that they could not have foreseen or could not have predicted is not legally enforceable, nor fair.

Indeed, today's decision against the FCC is not one which looks to First Amendment rights of free speech, but rather the practicality of the law itself. In theory goal of the law is good. We want to protect families and children from profanity. Profanity is not essential for communication of important ideas. But in this case, operationalizing that principle into sound legal principle is most likely where the FCC fell short.