NINOMANIA

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:: Saturday, December 28, 2002 ::

Re post immediately below:

Lest there be any misunderstanding -- I have absolutely nothing against turkey or goose!

A continuing Merry Christmastide and a Happy New Year. See you next semester.

:: David M. Wagner 7:20 PM [+] ::
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:: Tuesday, December 24, 2002 ::

Christmas greetings

Stuffing a turkey? Maybe a goose, if you're into hyper-Christmas? Here are few other things to stuff:

"Happy Holidays"
"Sparkle Season"
"Season's Greetings"
"Winter Holiday"
Frosty the Snowman
Rudolf the Red-Nosed Reindeer
Every Who down in Whoville
And, yes, even Santa Claus (for the reasons why, click here, here, here, and here)

Have a very, very merry CHRISTMAS!

:: David M. Wagner 5:59 PM [+] ::
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:: Friday, December 20, 2002 ::

Lott's out...

...of the Leader post, but not out of the Senate. Good job. It's an honorable decision, and he should be honored for it.

I don't think he's a "racist" if by that you mean someone who truly dislikes members of the disfavored race and programmatically tries to do them down. But I do think he's a son of a world in which counting by race was common. Notice how effortlessly (so far as appeared) he embraced affirmative action "across the board." Perhaps it's easier to reverse the direction in which you "count by race" than to stop counting by race, or to start doing so if you've been brought up not to.

What do I mean by that last line? Just this: I was brought up (in New York in the '60s) with a doctrine on race that I would describe as "liberal-integrationist." If you think that's not an adequate term, I'm open to others, but what I mean by it is the teaching that race "shouldn't matter," and that those who think it does are (at best) kind of mean, or (at worst) dangerously tribalist.

What I call "liberal-integrationism" is sometimes called "color-blindness," but I've always thought that's a silly name for it, since black and white are the only colors that color-blind people can see, aren't they?

Of course, back in 1960s New York, when we referred to "those who think race does matter," we had in mind primarily Bull Connor and George Wallace. But logically it applies to Jesse Jackson and Al Sharpton too. Too many people, then and now, focus on which race is getting favored by the law. Me, though I've changed my views in many other ways, I've kept my "liberal-integrationist" faith, which means I prefer to focus on whether any race is getting favored by the law, and if any is, I tend to suspect something unconstitutional is going on.

There are alternatives to color-blindness, on both left and right. Jesse Jackson would have us believe that the alternatives on the left are benign, and should be embraced in preference both to color-blindness and its alternatives on the right. So far, I'm not buying that. Tribalism comes all too naturally to fallen man, and most of its consequences are far from benign.

:: David M. Wagner 3:47 PM [+] ::
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:: Wednesday, December 18, 2002 ::

The Lott thing

Funny how Strom Thurmond, at age 100 and on the verge of retirement, can still roil national politics, albeit somewhat passively. (Insert your own off-color analogy to his various child-brides.)



Anyway, Lott should step down as leader, not solely because of the Strom remark, but because of that coming on top of his not being a very effective Senate leader.

His situation seems to be doing a classic Washington tailspin. See this Fox story, in which Bill Bennett, commenting on Lott's BET appearance, says: "Last night he was taking about being in support of every affirmative action program known to man. I mean next week he'll be in support of reparations and the candidacy of Al Sharpton."

As a further sign of his loyalty to his party, Lott is taking hostages: he is letting it be known that if ousted as leader, he will resign from the Senate, allowing Mississippi's Democratic governor to appoint a replacement. Then, the scenario goes, Chaffee will switch, and presto: a Deomocratic Senate again.

My question is, since he's already promised as part of his penance that if retained as Republican Leader he will lead as if he were a Democratic Leader, why shouldn't he threaten instead that if ousted as Leader, he will remain in the Senate but switch parties himself?

I speculate on this because I can't imagine someone like Lott relinquishing a Senate seat. OTOH, he may be thinking about how he could ka-ching on K Street, so maybe the resignation scenario isn't so far-fetched.

Anyway, in case he turns Dem, you read it here first.

:: David M. Wagner 1:47 PM [+] ::
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:: Monday, December 16, 2002 ::

For Tradition -- and defendants' rights!

Who says the Right is the side that advocates a return to drumhead trials in the criminal justice system? In Britain, Home Secretary David Blunkett is doing just that on behalf of Tony Blair's "Cool Britannia" Labor government.

That's not my personal opinion: it's that of Matthias Kelly, QC, new head of Britain's Bar Council, in an interview published in the famously conservative Daily Telegraph.

Traditionalists and due-process advocates, unite: you're on the same side! (And while you're at it, go re-read -- oh, say -- Kyllo, and the Maryland v. Craig dissent.)

:: David M. Wagner 11:49 AM [+] ::
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:: Friday, December 13, 2002 ::

NOW v. Scheidler II

Back on Dec. 4, the Court heard arguments in the latest round of the 15-year-old NOW v. Scheidler litigation, an attempt to use the RICO statute against abortion clinic protestors. Not surprisingly, Joe Scheidler's side is supported by a number of amici who are not opposed to abortion but who do use street-theater and occasionally trespassing to get their political message across.

See Juila Duin's excellent coverage for The Washington Times here.

I'll leave the injunction issue to one side for now. The main issue is whether Scheidler violated the Hobbs Act, such acts being the predicate for the RICO suit. The Hobbs Act makes extortion a federal crime, and one of the elements of Hobbs-Act extortion is "the obtaining of property." (N.B. Trespassing is a crime, but it is not extortion.)

In oral argument, counsel for NOW had to fight against the fact the Scheidler didn't obtain, or seek to obtain, any property. There are two ways to do this: broaden the notion of "obtain," so that to put a clinic out of business without making any financial gain thereby is to "obtain" property.

The other is to broaden the concept of "property." This the Court has famously done, with decisions in the 1960s and 70s that held that government employment and government benefits were a form of "property," building on Charles Reich's influential Yale Law Journal article on "the new property."

But here, NOW has to take "property" further than Prof. Reich ever did or than the Court has ever done. Hence this exchange, involving both Justices Scalia and Breyer, taken from Ms. Duin's account:

"So, a woman's right to seek services is property?" Justice Stephen G. Breyer asked.
"She's not just going shopping," Miss Clayton said. "She has made an appointment. If I am going to have a biopsy, I have a property right to that."
"Then," said Justice Scalia, "everything becomes property. If I say to you, 'Don't use that pen or I will do something unlawful,' does that mean I've obtained your pen?"
Miss Clayton said his action would have to involve force or violence to constitute extortion.

The Bush administration, for reasons Mr. Ashcroft may or may not care to explain at some point, is siding with NOW on the issue of the interpretation of the Hobbs Act. SG Ted Olson argued that upholding NOW's view on this issue would not threaten formerly-lawful labor protests, but Justice Scalia didn't buy it:

U.S. Solicitor General Theodore Olson assured justices yesterday that labor picketing would not be construed as extortion, but Justice Antonin Scalia questioned that argument.
"Why would you separate collective-bargaining demands from other demands?" he asked. "You're getting this language out of nowhere."

Nonetheless, ScotusBlog predicts a NOW victory....

:: David M. Wagner 5:53 PM [+] ::
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More on the Con Law exam

A student writes in:

I have two questions.
1. Do we have to cite case names on our exam?
2. In Question #1, since the Court has agreed to hear the case, are we to assume that Lawrence and Wayne's case has standing and there are no independent and adequate state law grounds where the Court can review the case? (This one may be a little to substantive, but it never hurts to ask...right?)

1. No -- and I think, forgive me, but I think I said this to the class about 800 times. :) You never have to cite cases on this exam. If you find it helpful to do so as a shorthand, fine, but not on first reference: on first reference, spell out the rule. On second and later references, you may (if you want) use the name of the case to stand for the rule.

2. a. If you think there's an argument against standing on these facts, make it. If you think standing is a slam-dunk, it nonetheless never hurts to put in a sentence stating briefly why they have standing.
b. The doctrine of "independent and adequate state grounds" is not one that we covered; you'll cover it in Fed Courts.

:: David M. Wagner 5:25 PM [+] ::
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"Greedy Clerks Board"

I've added this site to my margin, under "Other Important Sites." The site's self-description: "Clerkships 101 -- getting them, keeping them, and cashing in on them." Students -- feel free to click!

:: David M. Wagner 5:12 PM [+] ::
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:: Wednesday, December 11, 2002 ::

The latest proposals for a European superstate are getting pretty radical. (Note this misuse -- at any rate from an American point of view -- of the term "federalist.")

:: David M. Wagner 4:27 PM [+] ::
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:: Tuesday, December 10, 2002 ::

To my Constitutional Law students

Two questions from students (and BTW, I've taken the liberty of correcting spelling errors):

1. I have a question that I hope you can answer. On Question Two, the call of the question is to "Discuss the City's claim [that the Act is unconstitutional]." Does this mean not to addess certain matters that may be important to the Church (e.g., whether the Church received the appropriate procedural due process before their permit application was denied)?

Maybe this is semantics, but the call of the question may limit the discussion. Was this your intent?

Yes it was. My usual call is "Discuss." If the call directs your attention to a certain range of issues or to one side of a problem, go there and not elsewhere.


2. In Question 4 the call of the question references "East Dakota's 24-hour waiting period" - Was this supposed to reference West Dakota's 24-hour waiting period?

Yes.

:: David M. Wagner 5:20 PM [+] ::
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:: Thursday, December 05, 2002 ::

To my Criminal Law students:

A student asks:
Do you want us to delve into all of the culpability doctrines and all that?

That's a little too substantive for me to answer now that the exam has been given out, but I'll say this:

1. Questions 1 to 3 are the places for issue-spotting; Question 4 is the place for jurisprudence.
2. When you have a space limit, you have to prioritize.

I hope that helps.

Also, please note that starting NOW, I will be unavailable until Tuesday Dec. 10. Yes, I know that's the day the exam is due. But by now you've had a day and a half to spot ambiguities and raise questions by e-mail. The above question is the only one that has come in, so I assume the exam is clear enough.

Be seein' ya!

:: David M. Wagner 10:47 AM [+] ::
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:: Tuesday, December 03, 2002 ::

On second thought, maybe it is implicit in the concept of ordered liberty....

The Court has granted cert in a challenge to Texas's sodomy statute, thereby putting Bowers v. Hardwick into question. Here's the ACLU's take.

:: David M. Wagner 5:07 PM [+] ::
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To my Criminal Law students: The "call" of Question Two is "discuss," exactly like Questions One and Three. Sorry for the omission.

:: David M. Wagner 11:34 AM [+] ::
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:: Monday, December 02, 2002 ::

Since I haven't yet installed visit-counting software on this blog, I have no idea how many people I'm reaching. But one reader I know I have is Mitchell Freedman, who, despite the sophistication of his protests to some of my posts, insists he is not a professor! Today, Mr. Freedman writes in:

You quote some fellow saying, "....In today's pluralistic political atmosphere, where groups must compete in a Hobbesian political marketplace for government provision of greater security against real or imagined threats, an absolute right to be let alone easily becomes an absolute right to organize and recruit for the purpose of marketing a given lifestyle as widely as possible. In a Hobbesian world, real security against a violent end is the absolute power to bring such an end first."

Ewww...if I can tell you my emotional reaction to this fella's rant. He really hates homos, doesn't he? Note those buzz phrases "organize and recruit" and "a given lifestyle." Heck, you'd think he was talking about the Mob when he spoke in the sentence about "real security against a violent end is the absolute power to bring such an end first." But no, he's talking homos. Homos with guns maybe? Homo mobsters?

The sad thing is that stripped of its homo bashing, the point is not indefensible. If a group of people in a society want rights secured for them by the government for whatever reason, those who feel most strongly about it tend to organize and persuade (recruit?) others to their cause. They don't necessarily want to you be like them exactly, just to be sympathetic to their need for protection. Could that be nefarious? Like so much in life, it depends.

Seeing how a person actually applies his or her philosophy, meaning with examples, often allows us to see such person's real values, at least in my life experience. We can certainly see where this fellow's values lie, can't we? He thinks homos are reaching for the gun with their clamoring for equal rights, and he sounds like he's ready to beat them to the punch.

Well, I did write "Romer" in the margin of my copy the first time I read that paragraph. I figured if I was right, and if I blogged the passage in question, someone would confirm or disprove my inference, and Mr. Freedman has certainly stepped up to the plate!

As for the larger value system of Prof. Robert Lowry Clinton, Associate Professor of Political Science at Southern Illinois University, I can say only this. His first book, Marbury v. Madison and Judicial Review, grabbed my attention because it is a full-bore attempt to overthrow the prevalent "political" interpretation of Marbury -- what a smart cookie that John Marshall was, claiming a broad power of judicial review yet doing it in such a way that President Jefferson couldn't do anything about it, etc., etc. -- and to show that Marbury, as written, is well grounded in a Blackstonian conception of the role of a judge.

When Prof. Clinton came out with a second book called God and Man in the Law: The Foundations of Anglo-American Constitutionalism, I jumped so fast, the Amazon truck was here before I had pressed the Enter key.

So far, his argument seems to be that neither clause-bound textualism nor free-wheeling moral philosophizing are legitimate as means of interpreting the Constitution. Rather, one must reconstruct, through patient historical work, the thought-world of the Framers (including, of course, the Framers of all the amendments). But this does not mean making the judiciary a vehicle of conservative activism. On the contrary, Prof. Clinton believes that modern "broad-gauge judicial review," meaning the combination of judicial finality and "judicial freedom" (i.e. freedom to choose among interpretive modes) is not only undemocratic (as many mainstream scholars have already recognized), and also anti-constitutional.

In a footnote about a third of the way through the book, Prof. Clinton writes:

Put bluntly, one of my main theses is that judges, when dealing with cases and controversies, have no authority to decide whether they are going to be "textualists," "extratextualists,"
"interpretivists," "noninterpretivists," "indeterminists," or any such thing. Rather, they are obligated to decide every case in accordance with the traditional legal practices and professional standards applicable in their respective jurisdictions, and they are absolutely unqualified and unauthorized to do anything else.

Though defining these traditional practices will require my efforts for the remainder of this book (and probably a great deal more), it is worth saying now that, in my view, their authority has nothing to do with the ruminations, recommendations, or categorizations set up by legal academicians. It is also worth noting that the field of constitutional theory, from which these ideas spring, came into being only when influential academicians and judges began to believe that constitutional law failed to operate as a constraint on constitutional decisionmaking (see [Leslie] Goldstein, In Defense of Text, pp. 161-162).....

In other words, the combination of judicial finality and judicial freedom -- a novelty in American history, as Prof. Clinton argued in his first book -- has bred a generation of courtier-academics anxious to sell their political agenda (I'd say "agendas," but "agenda" is already plural) to the courts in the guise of constitutional theory. As Mr. Freedman acknowledges, the resulting constitutionalization of open-ended rights-claims produces culture clashes, or greatly exacerbates existing ones.

Mr. Freedman continues:

On another subject: I liked your cite today of Reynolds v Sims that voting is "a fundamental right." Nino didn't seem to believe that during the Bush v Gore arguments, though, did he?

If you compare the Court's opinions in Reynolds and Harper with the various dissents in those cases by those raving rightists Justices Harlan II and Black, it will be clear where Justice Scalia would have stood. But those decisions, whether rightly decided or not, are precedent, are they not? And it is at least arguable that, unlike some precedents, they are not incapable of principled application in later cases. So what were Rehnquist et al. supposed to do -- ignore them? What -- and be "lawless"??

There is indeed a "role reversal" in Bush v. Gore, but it's not the one the Left tears its hair out about. It's that precedents set in place by a liberal Court and venerated by liberal academics led to the election of a Republican President, by requiring the termination of a standardless (and hence unequal) recount procedure. What -- conservative Justices aren't supposed to decide cases on the basis of liberal precedents? What's up with that?

(Personally I think the Article II argument in Bush v. Gore was stronger than the Equal Protection argument, but that's another post.)

:: David M. Wagner 5:51 PM [+] ::
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To my students:

Welcome to Ninomania, the happ'nin' place for my review sessions. Here's the schedule:

Criminal Law: Mon. Dec. 2, 3 to 6 p.m., Rm. 114, and Tues. Dec. 3, 9 - 12, same room
Constitutional Law: Wed. Dec. 4, 3 - 6 p.m., Rm. 107

A student writes in:
Does the strict scrutiny standard of review get applied to equal
protection cases involving issues of voting?

Yes. Voting is a "fundamental right." See Reynolds v. Sims, Harper v. Va.Bd.of Elections. As Nowak and Rotunda put it, "any classification defining the ability to exercise that right must meet, under a strict scrutiny review, the dicates of the equal protection guarantee before the Court can sustain the measure as constitutional." Their cite on that point is to Harper.

:: David M. Wagner 11:35 AM [+] ::
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:: Sunday, December 01, 2002 ::

....In today's pluralistic political atmosphere, where groups must compete in a Hobbesian political marketplace for government provision of greater security against real or imagined threats, an absolute right to be let alone easily becomes an absolute right to organize and recruit for the purpose of marketing a given lifestyle as widely as possible. In a Hobbesian world, real security against a violent end is the absolute power to bring such an end first.

When the call for absolute individual freedom to choose one's own plan of life -- essentially, a right of privacy -- is conceived as a moral obligation by all others to refrain from interfering with the absolute right to propogate a given lifestyle as a viable alternative social state in Arrow's sense [cf. Kenneth J. Arrow, Social Choice and Individual Values, Yale U. Press, 1951], then the natural boundary that distinguishes private right from public power is eroded, for the range of allowable social orderings is preeminently public business.

-- Robert Lowry Clinton, God and Man in the Law: The Foundations of Anglo-American Constitutionalism, Univ. of Kansas Press, 1997, pp. 75-76

:: David M. Wagner 8:26 PM [+] ::
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