:: Ninomania ::

:: Wednesday, May 14, 2008 ::

The California Supreme Court will announce its ruling tomorrow, at 1 pm eastern time, on whether the California Constitution implies a right to same-sex marriage.

The recent trend in state courts has been toward recognizing that such a seismic change should be made, if at all, by the people's representatives in the legislatures. A writer at HuffingtonPost, however, thinks the California court is ready to transform society like a Dworkinian "Hercules," and is "readying itself for a backlash" -- "backlash" being the appropriate term when the people don't fall into line (when they do, their "voice" must prevail, and contrary judicial opinions constitute and "end run" around them).

:: David Wagner 6:49 PM [+] ::
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This is, ida know, a crapton of months overdue, but I'm finally linking to the blog of the learned dean of our university's School of Government, Charles W. Dunn: the Chuck Dunn Report.

:: David Wagner 12:09 PM [+] ::
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:: Tuesday, May 13, 2008 ::

Why you can't support Kant. (Hat-tip: MDSS)

:: David Wagner 11:21 AM [+] ::
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:: Monday, May 12, 2008 ::

BLT, the Blog of Legal Times, is snarking that Scalia and Garner, by giving a CLE course based on their book, are turning it into "performance art"; BLT's post links to Garner's web site, Law Prose.

To which I say: I didn't know Bryan Garner had a web site! Well, now I link to it!

:: David Wagner 3:06 PM [+] ::
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:: Wednesday, May 07, 2008 ::

Scalia's C-SPAN interview with Brian Lamb

On smart young people choosing the legal profession rather than science or the humanities:

[I]t is the fact that we devote, in my view, too many of our best and brightest minds to the law. I wouldn’t like to do anything else. I mean, it’s really what I’m sort of cut out for, but I do think that overall the talent that comes into the law in this country is really an excessive proportion of the talent out there, which says something about the legal system, I suppose, that it’s gotten very complex, it’s gotten – it’s worth paying a lot of money to get the best and the brightest minds.

I’m not sure the system ought to be that way. It ought to be simpler, and we ought to be able to devote a lot of our best minds to like – to teaching, to engineering, to something useful.

Well, you know, lawyers are facilitators. We enable the work of the world to proceed smoothly, and in an atmosphere of freedom, and that’s all very important, but at the end of the day, we don’t have a product. We facilitate actions and activities by other people.

...

I am often wrongly praised as, you know, being son of an immigrant as though I’ve lifted myself up by my own bootstraps. My father was indeed an immigrant, but he was an intellectual, much more intellectual man than I am, actually.

He was a professor of romance languages at Brooklyn College. Always had a book in front of his face, in French or Spanish or Italian. He taught all three of those languages.

...

I didn’t decide to be a lawyer until I, you know, was in my last year of college and had to decide what I was going to do next year, and I ended up really not being able to make up my mind. I had an uncle, uncle Vince, who was a lawyer and seemed to have a good life and to enjoy what he did, so I said, ”I’ll go to law school.” But I can’t say I set my cap on being even a lawyer, much less a judge.

How not to bomb in an oral argument:

[T]he worst thing is a lawyer that does not have clearly in mind the theory of the lawyer’s case, and therefore when the lawyer gets questions, it’s as though, you know, wow, I never thought of that. If you don’t have your theory clearly in mind, every question is, you know, comes out of nowhere, and you’re scrambling for some answer.

On Bush v. Gore and "get over it":

[I]t would have come out the same way had the court not intervened because the press did an extensive study of each of the counties in Florida and had the votes, didn’t count the dimpled chads and the hanging chads and all of that. Had they been counted the way Mr. Gore wanted, he would still have lost.

And lastly, we – no, not lastly, penultimately, we didn’t go looking for trouble. The court didn’t uninvited leap into this electoral dispute. It was before the courts because Mr. Gore had brought it before the courts. He wanted the courts to decide the election, and when the matter came to us, it was simply a question whether the last word was going to be the Florida Supreme Court or the United States Supreme Court as to who would win the Presidential election.

When one of the parties to the cases said the Florida Supreme Court violated the federal Constitution, what were we supposed to do, turn the case down as being not important enough? Hardly.

And the ultimate point is that to refer to just so-called conservative majority, I don’t think conservative-liberal makes any sense in the context of the Supreme Court, but the vote as to whether the federal government would intervene in this dispute was not even close. It was seven to two. People forget that. By a vote of seven to two, the Supreme Court held that the Florida Supreme Court had violated the Constitution.

So, you know. Get over it, Brian.

On the subjunctive:

We used to have a formulary conclusion of all of our opinions on the D.C. Circuit. It would go for the foregoing reasons, the judgment of the – it is ordered that, solid caps, ordered that the judgment of the District Court is affirmed.

That used to drive my father up the wall. I mean, he would say, ”Son, you can’t say it is ordered that it is affirmed. You have to use a subjunctive. It is ordered that it be affirmed.”

So I ended up being the only judge on the D.C. circuit who would have his opinions ordered that it be affirmed. Made my father happy.

On what good law professors do:

[T]he professors teach themselves rather than the law. The law is just like chewing gum. It’s what they use to develop your mental jaws, and you spit it out because the law will probably change by the time you’re in practice for 20 years. It’s important to have good teachers.

Now some law schools are better teaching law schools than others, and the best thing to get is a school that both has very intelligent professors and professors who place a premium on teaching.

You know, I’ve been in academia, so I know the game, and unfortunately the incentives are all long. You get to be a prominent academic by publishing, not by teaching. You become attractive to other law schools if you want to move up the ladder by your publications, not by your teaching. That’s sort of unfortunate.

On his recently ramped-up availability to the media:

I’ve sort of come to the conclusion that the old common law tradition of judges not making public spectacles of themselves and hiding in the grass has just broken down. It’s no use, I’m going to be a public spectacle whether I come out of the closet or not, beyond T-shirts and bobblehead dolls and what-not.

So if, you know, if I am going to be a public figure, I guess the public may as well get their notion of me firsthand rather than filtered through people such as Brian Lamb, you know....

Scalia T-shirts, get your Scalia T-shirts....

:: David Wagner 5:38 PM [+] ::
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Mildred Loving, RIP. I adopt as "for the editors" the statement of the Family Research Council:

America lost a true pioneer for civil rights yesterday as Mildred Loving, a black woman famous for her successful challenge of a state interracial marriage ban, died at the age of 68. Together with her husband Richard, the Loving case, which reached the Supreme Court in 1967, was an important landmark in the battle for racial equality. Never one to take credit for her courage, Mildred said last June, "I never wanted to be a hero--just a bride." Although homosexual activists are fond of portraying the Lovings' victory as a precedent for their cause, the Loving case didn't alter the definition of marriage but affirmed it by allowing any man to marry any woman. The nation is indebted to Mildred for a legacy that so aptly lives up to the couple's shared name.

EDITED TO ADD: PBS interviews Bernard Cohen, the Lovings' Supreme Court counsel. Hat-tip: colleague Prof. Gloria Whittico.

:: David Wagner 12:22 PM [+] ::
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:: Tuesday, April 29, 2008 ::

The Scalia-Garner book on app. ad. is out!

:: David Wagner 7:13 PM [+] ::
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In southeastern Virginia today, we're not in Kansas anymore -- yet. One more tornado and we might be. Here at Regent, our prayers go out to the injured, the displaced, the families of the dead -- and, um, yeah, to the dead, though I guess that's more controversial. (Doesn't anyone read First Maccabees? -- Oh, right....)

:: David Wagner 6:57 PM [+] ::
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:: Friday, April 18, 2008 ::

Prescribing what shall be orthodox

The judge in the Texas polygamist "sect" case has found in favor of continued state custody for the children, at least so far.

One remarkable fact is that the finding is based on no proven abuse, but only on the asserted strangeness of the sect's beliefs. With a hat-tip to Eugene Volokh, I would draw attention the following lines from this story:

Under cross-examination, state child-welfare investigator Angie Voss conceded there have been no allegations of abuse against babies, prepubescent girls or any boys.

But her agency, Child Protective Services, contends that the teachings of the FLDS — to marry shortly after puberty, have as many children as possible and obey their fathers or their prophet, imprisoned leader Warren Jeffs — amount to abuse.

There you have it. No abuse -- not even "allegations of abuse" -- but a big problem with "the teachings of" the sect.

In West Va. Bd. of Ed. v. Barnette, Justice Jackson said for the Court:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.

However celebrated, this dictum was always blather, and its blatherdom has been demonstrated again today.

:: David Wagner 9:51 PM [+] ::
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:: Wednesday, April 16, 2008 ::

:: David Wagner 2:52 PM [+] ::
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:: Saturday, April 12, 2008 ::

Historical portions of Everson and Engel = American History in 30 Seconds with Bunnies

:: David Wagner 3:32 PM [+] ::
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:: Monday, April 07, 2008 ::

From Slate: Scalia on brief-writing

:: David Wagner 11:34 AM [+] ::
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:: Wednesday, April 02, 2008 ::

A post by Jason Wojciechowski about Erie that I might want to come back to later, so I'm posting it here

:: David Wagner 1:48 PM [+] ::
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:: Friday, March 28, 2008 ::

Here's the passage from the U.S. v. Ressam oral argument that I was referring to:

JUSTICE SCALIA: General, could Congress pass a law that said if you wear a wristwatch during the commission of any crime, you get another 10 years?

GENERAL MUKASEY: A statute like that would be entirely unreasonable. It was not entirely unreasonable for Congress to have said if you carry an explosive during the commission of a felony, you've added something enormously volatile.

JUSTICE SCALIA: Surely it depends on what the felony is. If the felony is the filing of a dishonest tax return and you have a can of gasoline with you when you mail the letter, it seems to me quite as absurd as saying wearing a wristwatch in the course of a felony. That's what troubles me about this. I'm tempted to -- I think everybody is tempted to distort the "during" to mean something else, simply because the consequences of performing a completely lawful act wearing a wristwatch, carrying explosives -- given the broad definition of explosives, I guess it would include having -- having some cartridges, explosive cartridges?

GENERAL MUKASEY: It would. But the temptation --

JUSTICE SCALIA: That's perfectly lawful, and you get another 10 years for it just because you're mailing a letter to the IRS at the same time.

GENERAL MUKASEY: It is perfectly lawful. Congress was aware that Title 18, not to mention all the other titles, are chockablock with felonies. There are thousands of them out there. But nonetheless, it wanted to make sure that the mainstream that it was concerned with, which is nicely illustrated by the facts of this case, were taken care of; and so it passed a very broad statute. We concede that it was a very broad statute. "Any felony" couldn't be broader. But that was Congress's choice. And if
Congress chooses to amend the statute, respectfully, it ought to be Congress that amends it.

So, the AG has made two points:

(1) If you mail a false income tax return while you have can of gasoline in your car (or maybe just enough gas in your tank to get to the mailbox?), you can get an extra ten years tacked onto your sentence for that.

(2) Congress has made pretty much everyone a federal felon, and it did so in order for U.S. Attorneys to have the "tools" they "need" to go after the ones that in the "mainstream" we're "concerned with."

:: David Wagner 12:13 PM [+] ::
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:: Thursday, March 27, 2008 ::

Scalia Criticizes News Media, the news media are reporting (guess who's going to win this round).

At a conference of attorneys in Washington, Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices.

He singled out for criticism a New York Times editorial on the case headlined "No Recourse for the Injured."

Well yeah, and it's an old, old problem. Even at the supposedly highest levels of journalism, no one cares about the law in reporting legal cases: the human drama, which of course is part of the story, becomes the entire story. As if there were no written or unwritten law to go on, and an injured plaintiff were simply kneeling before the Court and asking "Do Your Honors think it would be a good thing or a bad thing if I were compensated for my injuries?"

And if the ruling is that Congress didn't intend to protect plaintiffs in this category (leaving them, perhaps, to state remedies), or that the Due Process Clause doesn't oblige state government to come to their aid, or that a particular plaintiff is not among those who have an excuse for missing a well-known filing deadline, or whatever other grounds might exist under a rule-of-law system for denying relief in a particular case, all that the New York Times-reading caste -- the people who rule us -- ever learn about the matter, over their coffee or in their taxicab, is that the "conservative" Court just tossed another widow into the snow.

Meanwhile, apparently beneath the NYT's radar screen, Justice Scalia has lambasted Attorney General Mukasey for trying to add ten years to a "lying to a federal official" offense because it was committed while possessing a firearm:

The case involved the so-called "Millennium Bomber," Ahmed Ressam, who tried to smuggle explosives into the United States from Canada. A jury convicted Ressam on nine counts, including carrying explosives during a felony (lying to an immigration agent). Ressam's lawyers argued that the lie was not related to the explosives, so count nine should be thrown out for sentencing purposes.

Justice Ruth Bader Ginsberg asked Mukasey, who was a federal judge for almost 20 years, why prosecutors tied the explosives charge to the false statements in the first place, "instead of some charges with which it would have been more logically linked," like conspiracy to commit an act of terrorism.

Mukasey said the evidence supporting the false statements charge "was, to use a colloquialism, a lead pipe cinch. He had clearly made a false statement. He had clearly carried an explosive while doing it." Prosecutors wanted a charge on which jurors were sure to convict him.

Justice Antonin Scalia asked, "If the felony is the filing of a dishonest tax return, and you have a can of gasoline with you when you mail the letter," can you get another 10 years added to your sentence just because technically you were carrying explosives?

Chief Justice John Roberts asked whether there's a Justice Department policy not to bring those kinds of absurd prosecutions.

"Not that I'm aware of," Mukasey responded.

:: David Wagner 6:43 PM [+] ::
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:: Tuesday, March 25, 2008 ::

From the Chief's opinion for the Court in Medellin:

A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the President—acting on his own—to achieve precisely the same result. We therefore conclude, given the absence of congressional legislation, that the non-self-executing treaties at issue here did not “express[ly] or implied[ly]” vest the President with the unilateral authority to make them self-executing. See [Youngstown] at 635 (Jackson, J., concurring). Accordingly, the President’s Memorandum does not fall within the first category of the Youngstown framework.

And, distinguishing Dames & Moore v. Regan:

The claims-settlement cases involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. They are based on the view that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” can “raise a presumption that the [action] had been [taken] in pursuance of its consent.” Dames & Moore, supra, at 686 (some internal quotation marks omitted)....

Even still, the limitations on this source of executive power are clearly set forth and the Court has been careful to note that “[p]ast practice does not, by itself, create power.” Dames & Moore, supra, at 686.

...Indeed, the Government has not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to state courts, much less one that reaches deep into the heart of the State’s police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws....

I'll only have time to eyeball the dissent briefly today. Far more law-review articles are cited there than in the opinion of the Court. What do you expect? If you want support for the proposition that public international law reduces everything else -- including the traditional police powers of the states, including the U.S. Constitution itself -- to mere and interchangeable "municipal law," you have to go to "the commentators," because actual sources of American law won't help you very much.

:: David Wagner 1:23 PM [+] ::
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Reading over Medellin right now. Looks like the right outcome: even for us Curtiss-Wrightists, the presidential claims here went far indeed. But because the domestic application of international public law was also at stake, the role-reversal within the Court is pretty much complete, with the liberal wing supporting presidentialism as long as it's twinned with womping Texas with a treaty. At least that's my first take.

Also -- way to hand down a controversial decision before the last week in June, Roberts Court!

:: David Wagner 1:01 PM [+] ::
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:: Friday, March 21, 2008 ::

Not the D.C. v. Heller Oral Argument. (Hat-tip: TKB)

:: David Wagner 12:31 AM [+] ::
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