NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Thursday, September 28, 2006 ::
Efforts Mount to Cut Costs of Textbooks. Of course, many students don't wait, and just by from Half.com or other online sources.
:: David M. Wagner 11:58 AM [+] ::
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:: Tuesday, September 26, 2006 ::
Jewish-Owned Clinic's Decision to Close Saturdays Interferes With Religious Freedom -- The Law Should Force Them To Open Saturdays: Yes, that's the legal theory of the Spring Valley (N.Y.) NAACP....
So notes Eugene Volokh at the Conspiracy, with appropriate links and comments. In Con Law II this morning we touched on how direct application of the 14th Amendment to individuals, by-passing the state action requirement, could have totalitarian implications. This suit may be an example.
:: David M. Wagner 10:59 AM [+] ::
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The Court's cert grants from this morning
:: David M. Wagner 10:52 AM [+] ::
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:: Sunday, September 24, 2006 ::
Men's rea: Last week in Criminal Law we studied Regina v. Prince, an old British chestnut concerning Sec. 55 of the Offences against the Person Act of 1861 -- the statute that put the Miss in "misdemeanor."
:: David M. Wagner 9:05 PM [+] ::
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A Tale of Hoffmann: So Virginia, over Chief Justice Hassell's dissent, now has it own "mini-Kelo," called Hoffmann Family LLC v. City of Alexandria. (Hat-tip: Virginia Appellate News & Analysis)
The only fact that makes it "mini" is that the seized property remains in government hands, making the "public use" factor a mite bet less of a laugh than it was in Kelo. Alexandria needs a drainage culvert, and it seized the Hoffmanns' land to serve as one. Problem is, this will actually be a smaller and less effective culvert than the one previously used -- and the reason the old one will no longer be used is that a private developer wishes to build on it. If that isn't a taking for a strictly private use, it'll do until one comes along -- as it did in Kelo.
:: David M. Wagner 8:57 PM [+] ::
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:: Wednesday, September 20, 2006 ::
Criminal law question from a student:
Trying to grasp just what we are getting at in class on the topic of mens rea.
I found a passage that seems to explain when mens rea applies and when you can offer mistake of fact/law as a defense. The only problem is I don't understand what it means. Maybe you can help.
P. 220 of the casebook, number 2
"Ignorance of the offense definition is no defense. On this principle, defendant may be acquitted for ignorance that conditions specified in the definition were present; but may not be acquitted merely b/c she did not know that such conditions constituted defining elements of a proscribed offense."
Yes: the accurate meaning of "ignorance of the law is no excuse" is not that all are presumed to know the entire law, but rather that knowledge of illegality is not ordinarily an element of the crime.
And what does "not ordinarily" mean? It means that the legislature can make knowledge of illegality an element, but will not be presumed to have done so if that statute doesn't say so.
And when does a statute say so? Well, mens rea terms such as "knowingly" or "willfully" are enough to raise the issue....
:: David M. Wagner 1:09 PM [+] ::
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:: Monday, September 18, 2006 ::
20th anniversary of Scalia confirmation
:: David M. Wagner 11:09 PM [+] ::
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:: Thursday, September 14, 2006 ::
Welcome to Katherine McDaniel and her Clerkship Notification Blog!
:: David M. Wagner 7:17 PM [+] ::
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:: Wednesday, September 13, 2006 ::
The boy who cried persecution
Maybe it's because I'm prepping the glorious Smith decision again for teaching tomorrow, but my blood is up about people -- and I mean folks who are in some cognizable sense "my" people -- using their faith as a shield against the normal rules that normal people have to live by.
Writing on WorldNetDaily here, Judge Roy Moore claims that Navy chaplain Lt. Gordon J. Klingenschmitt is "is being tried before a special court-martial for his public opposition to the new Navy policy prohibiting chaplains from praying in the name of Jesus during certain command functions." But as WorldNetDaily more accurately reports here, Lt. Klingenschmitt was actually up (and was convicted today) on a charge of disobeying a direct order "not to wear his uniform during media appearances without permission, unless he was conducting a "'bona fide worship service.'"
We don't even have to get into the claim that the press conference/protest meeting that he attended in uniform, contrary to orders, was actually a "worship service." It was obviously no such thing within the ordinary meaning of that term as used by the vast majority of Americans, but we can let that pass for now -- because the only thing Lt. Klingenschmitt was convicted of was disobeying an order concerning how he dressed, which of course is well within the authority of his military superiors. He was subjected to no prohibition on prayer whatsoever, nor on praying in the name of Anybody in particular; only on what he could wear while doing so. And even as to that, he was free to choose anything from white tie to beach jammies -- just not his uniform.
Now, maybe this was the first court-martial in a gazillion years for disobeying an order not to wear the uniform on a particular occasion, in which case maybe we're seeing a discriminatory prosecutorial choice. I don't know, and it would be hard to prove. But if that's what Lt. Klingenschmitt's supporters think is going on, then that's what they should complain about, as distinct from what they are complaining about. He was not on trial for praying, nor for his "public opposition" to the Navy's latest lamebrained policy: he was on trial for disobeying an order concerning his uniform.
Get some perspective, Christian activists. Don't make everything a martyr-story. We'll have enough of those coming soon enough; don't make it worse by crying wolf now.
:: David M. Wagner 9:35 PM [+] ::
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:: Tuesday, September 12, 2006 ::
Welcome to a new school year. This term I'm teaching Con Law II (individual rights), and Criminal Law.
You know, Wisconsin v. Yoder has got to be the worst decision ever to reach the right result. It expanded the educational rights of parents, but only if they're Amish, or Amish-like; and in so doing, it recognized a "state interest" in "combatting ignorance," which had never been recognized before. With victories like this, who needs defeats?
Meanwhile, news on D.C. Circuit nominee Peter Keisler:
* Sen. Kyl says he'll be confirmed this fall.
* Two senators who should be helping and not hindering -- Grassley, and, of all people, Sessions -- may be holding up Keisler over a scruple about the number of judges on the D.C. Circuit. (Keisler would be #11; the court is authorized to have twelve, and Judge Rogers may be about to take senior status.)
* Legal Times tells Keisler's story, keyed to the Judiciary Committee hearing he had back on August 1.
:: David M. Wagner 10:37 PM [+] ::
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:: David M. Wagner 11:58 AM [+] ::
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So notes Eugene Volokh at the Conspiracy, with appropriate links and comments. In Con Law II this morning we touched on how direct application of the 14th Amendment to individuals, by-passing the state action requirement, could have totalitarian implications. This suit may be an example.
:: David M. Wagner 10:59 AM [+] ::
...
:: David M. Wagner 10:52 AM [+] ::
...
:: David M. Wagner 9:05 PM [+] ::
...
The only fact that makes it "mini" is that the seized property remains in government hands, making the "public use" factor a mite bet less of a laugh than it was in Kelo. Alexandria needs a drainage culvert, and it seized the Hoffmanns' land to serve as one. Problem is, this will actually be a smaller and less effective culvert than the one previously used -- and the reason the old one will no longer be used is that a private developer wishes to build on it. If that isn't a taking for a strictly private use, it'll do until one comes along -- as it did in Kelo.
:: David M. Wagner 8:57 PM [+] ::
...
Trying to grasp just what we are getting at in class on the topic of mens rea.Yes: the accurate meaning of "ignorance of the law is no excuse" is not that all are presumed to know the entire law, but rather that knowledge of illegality is not ordinarily an element of the crime.
I found a passage that seems to explain when mens rea applies and when you can offer mistake of fact/law as a defense. The only problem is I don't understand what it means. Maybe you can help.
P. 220 of the casebook, number 2
"Ignorance of the offense definition is no defense. On this principle, defendant may be acquitted for ignorance that conditions specified in the definition were present; but may not be acquitted merely b/c she did not know that such conditions constituted defining elements of a proscribed offense."
And what does "not ordinarily" mean? It means that the legislature can make knowledge of illegality an element, but will not be presumed to have done so if that statute doesn't say so.
And when does a statute say so? Well, mens rea terms such as "knowingly" or "willfully" are enough to raise the issue....
:: David M. Wagner 1:09 PM [+] ::
...
:: David M. Wagner 11:09 PM [+] ::
...
:: David M. Wagner 7:17 PM [+] ::
...
Maybe it's because I'm prepping the glorious Smith decision again for teaching tomorrow, but my blood is up about people -- and I mean folks who are in some cognizable sense "my" people -- using their faith as a shield against the normal rules that normal people have to live by.
Writing on WorldNetDaily here, Judge Roy Moore claims that Navy chaplain Lt. Gordon J. Klingenschmitt is "is being tried before a special court-martial for his public opposition to the new Navy policy prohibiting chaplains from praying in the name of Jesus during certain command functions." But as WorldNetDaily more accurately reports here, Lt. Klingenschmitt was actually up (and was convicted today) on a charge of disobeying a direct order "not to wear his uniform during media appearances without permission, unless he was conducting a "'bona fide worship service.'"
We don't even have to get into the claim that the press conference/protest meeting that he attended in uniform, contrary to orders, was actually a "worship service." It was obviously no such thing within the ordinary meaning of that term as used by the vast majority of Americans, but we can let that pass for now -- because the only thing Lt. Klingenschmitt was convicted of was disobeying an order concerning how he dressed, which of course is well within the authority of his military superiors. He was subjected to no prohibition on prayer whatsoever, nor on praying in the name of Anybody in particular; only on what he could wear while doing so. And even as to that, he was free to choose anything from white tie to beach jammies -- just not his uniform.
Now, maybe this was the first court-martial in a gazillion years for disobeying an order not to wear the uniform on a particular occasion, in which case maybe we're seeing a discriminatory prosecutorial choice. I don't know, and it would be hard to prove. But if that's what Lt. Klingenschmitt's supporters think is going on, then that's what they should complain about, as distinct from what they are complaining about. He was not on trial for praying, nor for his "public opposition" to the Navy's latest lamebrained policy: he was on trial for disobeying an order concerning his uniform.
Get some perspective, Christian activists. Don't make everything a martyr-story. We'll have enough of those coming soon enough; don't make it worse by crying wolf now.
:: David M. Wagner 9:35 PM [+] ::
...
You know, Wisconsin v. Yoder has got to be the worst decision ever to reach the right result. It expanded the educational rights of parents, but only if they're Amish, or Amish-like; and in so doing, it recognized a "state interest" in "combatting ignorance," which had never been recognized before. With victories like this, who needs defeats?
Meanwhile, news on D.C. Circuit nominee Peter Keisler:
* Sen. Kyl says he'll be confirmed this fall.
* Two senators who should be helping and not hindering -- Grassley, and, of all people, Sessions -- may be holding up Keisler over a scruple about the number of judges on the D.C. Circuit. (Keisler would be #11; the court is authorized to have twelve, and Judge Rogers may be about to take senior status.)
* Legal Times tells Keisler's story, keyed to the Judiciary Committee hearing he had back on August 1.
:: David M. Wagner 10:37 PM [+] ::
...
