Eminent Domain

I recently posted that UCLA law professor Eugene Volokh will be visiting Milwaukee and MULS to give the Boden Lecture this October. There has been some new information posted about the event here.

Prof. Volokh's speech in entitled "Law, Politics, and Slippery Slopes." I'm assuming that it will be based on the material in his 2006 Dukeminier Award winning article Same-Sex Marriage and Slippery Slopes. I look forward to the speech and hope that Prof. Volokh can take some time out of his day for a less formal event at the law school. Occasionally, we've been able to get these visiting legal celebrities to attend informal, noon hour events with the students. I'd love to be able to ask Prof. Volokh a question or two.

David Lat, AKA Article III Groupie of Underneath Their Robes, has a new blog project called Above the Law. It's billed as a legal tabloid, but this welcome post offers a more detailed explanation of what the site will be about. Lat is a great writer with an interesting take on the legal profession. This site will definitely be worth reading.

Anyone who reads this blog knows that I'm very interested in election law and campaign finance law. You probably also know how I feel about them. Here is campaign finance reform in action...

WRTL Files Request with Federal Court of Allow Radio Ads Barred By McCain-Feingold Law

"Today, Wisconsin Right to Life is filing a motion for a temporary restraining order and preliminary injunction in the District Court for the District of Columbia to allow WRTL to air a radio ad within the next few weeks asking Wisconsin citizens to contact Senators Kohl and Feingold and to urge them to vote to move the Child Custody Protection Act to conference committee," stated Barbara Lyons, Executive Director of Wisconsin Right to Life.

"Wisconsin is currently in the blackout period mandated by the McCain/Feingold campaign finance law. Because Senator Kohl appears on the primary election ballot, permission is needed from the federal court to air grassroots lobbying ads mentioning his name, even though the radio ad has nothing to do with elections. Wisconsin Right to Life officials risk jail terms if the radio ad is aired without permission by the federal court," said James Bopp, Jr. counsel to WRTL.

Freedom of speech in the Bill of Rights? What a quaint idea. Enlightened reformers like John McCain and Russ Feingold would prefer that you ask the federal government to engage in speech concerning politicians. We wouldn't want people getting informed around election time.

The odd part about this is that WRTL is actually praising Senator Kohl since he voted in favor of the Child Custody Protection Act. WRTL is just trying to lobby to get the bill into conference committee so it can be signed into law. It's currently stalled by a procedural move by Senate Democrats. However, Kohl's name is going to be mentioned, so that's a no-no during our pre-election blackout period. Lord knows we wouldn't want anyone engaging in speech about politicians before an election. That would be crazy.

If you think my sarcasm meter is off the charts, check out this editorial from the New York Sun about the case...

A grassroots group, Wisconsin Right to Life, will be in court arguing for its right to air radio ads in respect of current legislation even, gasp, in the midst of an election season. It's a sign of just how out-of-control campaign speech regulation has gotten that Americans need to ask a federal court for a temporary restraining order to mention a senator's name on the airwaves.

Something about campaign finance laws brings out the sarcasm traits in those of us who have them. Even more sarcasm...

Now the plot thickens. Since Senator Kohl is on a primary ballot on September 12, the ads allegedly run afoul of the what might as well be called the McCain-Feingold (yes, that Feingold) Incumbent Insulation Act, better known as the Bipartisan Campaign Reform Act of 2002. Thus, the good citizens of Wisconsin Right to Life must seek a court's permission to talk about their elected officials in public. Henry VIII or George III couldn't have rigged the system better themselves.

The editors then make their legal and policy point...

The high court justices declined to hurry up consideration of a Maine case resembling the Wisconsin case, in which a group opposed to gay marriage tried to call unflattering attention to Senator Snowe's position on marriage ahead of Senate action that coincided with primary season.

The difference between Maine and Wisconsin is instructive. In Maine, the ad cast the primary-contending incumbent in a negative light. Wisconsin Right to Life, however, wants to praise the incumbent in the primary. Above all, this case demonstrates that the purpose of campaign speech regulation isn't to cut down on "unfair" negative campaigning, if such a thing even exists. Rather, McCain-Feingold exists to take politics out of the hands of citizens and put it in the hands of the politicians. And to protect incumbents.

The McCain-Feingold law, like its namesakes, is incredibly self-serving. I am waiting for the day that there is a majority on the Supreme Court to strike the law down and end this absurdity.

It's been a long time since I've done a beer review. I been busy with school, work, and about a hundred other things lately. Hopefully, I will be able to get back in the swing of things and produce these on a regular basis again. Tonight's selection is Sprecher Pub Ale. After taking their brewery tour, I've decided to give Sprecher a look. My experience with them in the past hasn't been great (but there really hasn't been much experience at all), so I'm eager to see what else they've got to offer.

The Pub Ale is an English style brown ale. Hold it up to the light and you can barely see through it. The head leaves quickly after pouring, leaving only traces at the surface. It smells lightly malty. I expected it to have a stronger aroma but am glad that it isn't overpowering. It's incredibly smooth. I was preparing myself for something thick and full of bite, but the Pub Ale is very easy to drink. The caramel and nut flavors are there, but they don't kick you in the face. They do leave a toasty flavor that coats your mouth, though. It's certainly not an amazing beer, but it's definitely one that I would have again. It's a decent representative for the style.

Speaking of the Seventh Circuit, we are getting a new chief judge, Frank Easterbrook. Lynne Marek has the story on Law.com. For those of you who aren't familiar with Judge Easterbrook, this is a nice snapshot of his personality...

Judge Frank H. Easterbrook has long told his law students, only half in jest he says, that he wishes he had a button on his courtroom bench that he could push to open a trapdoor beneath the feet of attorneys not properly prepared for court, sending them sliding down a chute to the street outside.

Aside from giving the Monty Burns treatment to bad lawyers, Judge Easterbrook is also a leading antitrust law scholar and has been on the court for over 21 years. He's a tough questioner at oral argument and a protege of Robert Bork. All pluses in my book.

The Chief Judge job is not exactly glamorous though...

Easterbrook is not particularly excited about the new job, which is mainly an administrative one, because he'd rather spend time on judicial work. Still, he said he's duty-bound to take his turn.

As chief, he'll have general oversight of staff, facilities and budget matters for the 15 courts in the three states of Illinois, Indiana and Wisconsin. He will also handle any concerns about the competence of about 100 judges on those courts.

Chiefs spend a lot of their time running the courts. You get a cool title, but you definitely earn it with the hours that you put in at the office. For an excellent description of what the Chief Justice of the Supreme Court does, you can read about Chief Justice Warren Burger's early years as Chief in The Brethren by Bob Woorward and Scott Armstrong.

More on Easterbrook the judge...

While attorneys, professors and colleagues mainly praise Easterbrook's intellect and knowledge of law, their opinions about his tough courtroom style vary widely. Some say he's too harsh with attorneys, but are reluctant to talk about it publicly, given the possibility they may face him in court. He elicits a combination of reactions: Attorneys find him intimidating, but also intellectually challenging.

Stephen Moore, an attorney with Chicago-based Rowland & Moore, said that his time before Easterbrook "was probably the most enjoyable oral argument I ever had," describing it as "dueling with a brilliant mind."

But he also noted, "[y]ou'll see him, I don't want to say attacking an attorney, but putting them on the defensive. All parties are subject to his wrath."

Easterbrook earned the second-highest ranking in a 2003 study that sought to quantify the quality of federal judges' work by, among other things, counting citations to their work and measuring how fast they produced opinions. Easterbrook's fellow 7th Circuit judge, Richard Posner, ranked No. 1.

He's tough and brilliant. It's a great combination. The article goes on to mention Easterbrook's worthiness to be on the Supreme Court. I would be behind an Easterbrook nomination 100%. His opinions are well written, clear, and forceful when they need to be. He would lend another strong voice at oral argument for questioning. He would also bring over two decades of judicial experience and insight to the bench. To continue the John Roberts law-baseball analogies of the past year, an Easterbrook nomination would be a grand slam. Until then, I'll just have to settle with him on the Seventh Circuit. I'll deal with it.

I am proud to be a resident of the Seventh Circuit. I think that we have some of the best appeals court judges in the nation. I also love the fact that the judges take their jobs very seriously. They demand that lawyers are well-prepared and that their briefs strictly follow court rules. The judges suffer no fools.

Enter Wisconsin Attorney General Peg Lautenschlager. Our esteemed AG is in a tough spot right now. She faces a tough challenger in the Democratic primary, and (if she wins) may be facing another tough challenger in the general election. I won't mention the car incident, but that doesn't do much to help the situation. Things aren't great right now. Could it get worse?

Yes, it can. The Wisconsin Department of Corrections is involved in a case that has made its way to the Seventh Circuit Court of Appeals. This case, which involves the Family Medical Leave Act, concerns a fairly boring legal issue, at least in my opinion. However, footnote 1 is very interesting. The judges have taken issue with the quality and demeanor of the brief submitted by AG Lauthenschlager. Here is Judge Diane Wood writing for the three-judge panel...

These cases, taken as a whole, demonstrate that the Court has taken care to draw important, and sometimes subtle, constitutional lines in this area. Both for that reason, and for reasons requiring basic courtesy to the courts, we find much of the rhetoric in WDOC's brief to be entirely out of line. It is not up to Attorney General Peggy A. Lautenschlager or Assistant Attorney General Richard B. Moriarty to accuse Justices of the Supreme Court of making "remarkably intransigent statements," or to use a disrespectful tone in criticizing dissenting Justices merely for the fact that they wrote a dissent, or to opine about "polarizing declarations." The tradition of writing dissenting opinions has existed in the United States Supreme Court since the beginning of the Republic, and every Justice on the Court avails himself or herself of that privilege when he or she deems it appropriate. Counsel's brief is also less than helpful where it draws bizarre analogies to opinions about the current presence of American troops in Iraq, which has absolutely nothing to do with this case. We trust that the State of Wisconsin will adopt a more appropriate tone in future briefs filed with this court.

Many thanks to the attorney general's office for embarrassing the entire state with their unhinged brief.


Judge Wood is a Clinton appointee (as is Judge Evans, also on the panel), so this isn't just some partisan sniping. It makes me proud when judges are above the my-team political mentality and just act like judges. Hopefully, our attorney general will stop using briefs to take cheap political shots and actually argue the law.

Radley Balko of Cato-at-Liberty highlights an interesting case decided by the New Hampshire Supreme Court. The Union Leader has this editorial describing and slamming the case...

The state Supreme Court ruled on Tuesday that the government can keep and destroy more than 500 CDs taken from Michael Cohen, owner of Pitchfork Records in Concord, in 2003 even though the state failed to prove that a single disk was illegal.

Cohen was arrested for attempting to sell bootleg recordings. But the police case collapsed when it turned out that most of the recordings were made legally. Police dropped six of the seven charges, and Cohen went to trial on one charge. He beat it after the judge concluded that the recording was legal.

However, the police refused to return Cohen's CDs. In the state Supreme Court's Tuesday ruling, Chief Justice John Broderick, writing for the majority, reasoned so poorly that it appeared as if he'd made up his mind ahead of time.

The editors have no praise for Chief Justice Broderick's reasoning...

The majority concedes that no crime or illegal act was proven, but allows the confiscation anyway by concluding that a crime might have been committed. The majority used words such as "apparently," "likely" and "would have" to describe the alleged illegal activity.

I really wish I had the time to read this opinion, but I'm not sure if I can do it. Between school, work, my research project, organizations, and trying like hell to have a social life, I don't have as much time as I would like to do deep background reading for Eminent Domain. I'll try to squeeze it in this week and update the post, though.

Radley Balko has this to say about the case specifically and the state of the law in general...

It isn't surprising that these violations of property rights spill over into violations of personal and economic freedom. Property rights are the very foundation of our civil liberties. A government that's quick to restrict what its citizens can do with their private property won't hesitate to restrict, for example, free speech (see campaign finance "reform"). A government that refuses to recognize a man's property in his own body (re: drug prohibition) won't hesitate to those laws by confiscating actual, physical property without due process.

It hasn't been an easy time for property rights advocates lately. Some of us are hoping to ride the Kelo backlash into some meaningful reforms, but I don't think that wave will go very far.

I'd like to continue my obsession with lists and numbers. The Empirical Legal Studies blog has this post about a recent Zogby pop culture survey. William Ford gives us the rundown...

In this survey, people were asked to name only two justices, not all nine. Sixty-one percent of people could not name any justices, whereas 15% named one and 24% named two.

So who were the Justices who came to mind? Here are the numbers...

Thomas 20%
Scalia 11%
Roberts 9%
Ginsburg 9%
Alito 5%
Kennedy 4%
Souter 3%
Stevens 2%
Breyer 1%

I think that these numbers make a lot of sense. The two most named Justices were Thomas and Scalia. They are often talked about together, like "I'm going to appoint Justices in the mold of Scalia and Thomas," or "I hate Justices Scalia and Thomas," depending on your politics. Thomas' high percentage probably has a lot to do with the controversy around his confirmation and his race.

The other Justices have aspects that account for their position on the list. Roberts is the new Chief Justice. He was also the first new member of the Court in over a decade. Those are memorable qualities. Ginsburg is the only woman on the Court. That, like Thomas' race, serves to set her apart from the crowd of old white guys. The old white guys hang out on the bottom of the list.

Anyone think that Breyer is mad that even after writing a book about law (something of note for a sitting Justice), nobody knows who he is?

In the past, I have written about judges who act as feeders. By that, I mean that the judges' clerks end up going on to clerk for Supreme Court Justices. Over at the TaxProf Blog, there is a list of law schools that act as feeders. The list is full of the usual suspects...

* 1. Harvard (95 clerks)
* 2. Yale (70)
* 3. Chicago (45)
* 4. Columbia (27)
* 5. Stanford (26)
* 6. NYU (16)
* 6. Virginia (16)
* 8. Michigan (14)
* 9. Berkeley (10)
* 10. Texas (9)

There is also a list of schools that have gotten a few clerks to the Court in spite of not being one of the "big" schools...

* BYU (3)
* Georgia (2)
* Illinois (2)
* Kansas (2)
* North Carolina (2)
* Arizona (1)
* Boston College (1)
* Missouri-Columbia (1)
* Ohio State (1)
* Rutgers-Newark (1)

I don't know why I find this interesting.

Asset forfeiture is one of those weird areas of law that many people don't know about. The people who do know about it invariably have strong opinions about it. Here we have a case involving a man, his rental car, and a hell of a lot of cash. The article is fairly slanted but here is the basic story...

On May 28, 2003, a Nebraska state trooper signaled Gonzolez to pull over his rented Ford Taurus on Interstate 80. The trooper intended to issue a speeding ticket, but noticed the Gonzolez's name was not on the rental contract. The trooper then proceeded to question Gonzolez -- who did not speak English well -- and search the car. The trooper found a cooler containing $124,700 in cash, which he confiscated. A trained drug sniffing dog barked at the rental car and the cash. For the police, this was all the evidence needed to establish a drug crime that allows the force to keep the seized money.

Associates of Gonzolez testified in court that they had pooled their life savings to purchase a refrigerated truck to start a produce business. Gonzolez flew on a one-way ticket to Chicago to buy a truck, but it had sold by the time he had arrived. Without a credit card of his own, he had a third-party rent one for him. Gonzolez hid the money in a cooler to keep it from being noticed and stolen. He was scared when the troopers began questioning him about it. There was no evidence disputing Gonzolez's story.

The lower court sided with Gonzolez, saying that there was no evidence of drug activity. The Eighth Circuit Court of Appeals reversed. Their opinion is link at the bottom of the page. I love the case title: US v $124,700. I wonder if the money used some of itself to hire an attorney.

But seriously, let's talk about what is going on here. There was no crime alleged here, so how did the government get the money? They filed a civil asset forfeiture lawsuit against the money itself. If the government can establish probable cause that the property is subject to forfeiture (ex. it was drug money), then the owner has to prove by a preponderance of the evidence that it isn't subject to forfeiture. These are very low standards of proof because it is a civil case, not a criminal case. The government has the option of bringing a criminal forfeiture case, but that usually happens after a criminal conviction. The money and property then goes to the US Marshals. The property ends up sold at auctions with the proceeds going to law enforcement agencies.

Where did this come from? Well, asset forfeiture has very old roots in admiralty law, not criminal law. It was a way to push ships for offenses. Take the cargo. We didn't want to send our citizens across the ocean to strange, foreign courts and hope to heaven that they get justice from foreign shipowners. Of course, we are a long way from the high seas now. The practice and case law has grown and changed greatly. Look at the factors that the appeals court found crucial in the forfeiture. Gonzolez possessed a large sum of cash, which is viewed as strong evidence of a connection to drug activity. The money was concealed in aluminum foil inside a cooler, and the courts have developed a view that bundling and concealing large amounts of money, when combined with other suspicious circumstances, supports a connection between money and drug trafficking. The drug dog also supports the connection. The route and circumstance of Gonzolez's travel was viewed as highly suspicious (the one-way ticket).

All of these factors are supported with existing case law: United States v US Currency in the Amount of $150,666.00, $84,615 in US Currency, and $117,120 in US Currency. As a matter of law and procedure, the appeals court probably didn't do anything wrong. The problem is that existing case law, when applied, can lead to absurd results. The absurd results come from the old law not fitting the new situations well. We went from naval incidents covered under admiralty law to modern applications under Prohibition. Those Prohibition decisions stayed on the books and are now a part of the War on Drugs. In the eyes of the law, the War on Drugs is viewed as basically a big customs/smuggling matter, so we are stuck with that old case law applying here. That's where the law is, like it or not.

Ian at 3L Epiphany has a great post about advice for law students. Instead of advice for 1Ls like every other blog has been posting, Ian is interested in advice for 2Ls. In many ways, 2L is much different than 1L. You are choosing your own classes, choosing your own schedule as far as class time, choosing your own professors, etc. It's a lot of freedom and a lot of responsibility.

My biggest piece of advice for 2Ls is to be mindful of the exam schedule. My school attaches it to the registration materials for the next semester's courses. Choose the classes that you want and then compare them to the exam schedule. Are the exams spread out enough? If not, can you handle that kind of crunch at the end of the semester? Are there any classes that you want to take (like Tax, Trusts and Estates, Ethics) that will be offered next semester also? That might make your life a lot easier.

I had a Monday, Tuesday, Wednesday exam marathon in my Fall 2L semester. I was not a happy person by Wednesday afternoon. The previous week was no walk in the park either. I have a classmate who had a Monday AM exam, Monday PM exam, and a Tuesday AM exam. He had a rough time too. Watch those exam schedules. They may end up hurting your grade and your emotional well being.

Glenn Reynolds at Instapundit is the go to guy on the subject of books. He's always got something "in the mail" from Amazon. Either he spends every waking hour reading or he's got a fetish for the printed page. Recently, he linked two books that look incredibly interesting.

Confirmation Wars: Preserving Independent Courts in Angry Times by Benjamin Wittes.
Book Description
In Confirmation Wars, Washington Post editorial writer Benjamin Wittes examines the degradation of the judicial nominations process over the past fifty years. Drawing on years of reporting on judicial nominations, including numerous interviews with nominees and sitting judges, he explains how the process has changed and how these changes threaten the independence of the courts. Getting beyond the partisan blame game that dominates most discussion of nominations, he argues that the process has changed as an institutional response by Congress to modern judicial power and urges basic reforms to better insulate the judiciary from the nastiness of contemporary politics.

Not a Suicide Pact: The Constitution in a Time of National Emergency by Richard A. Posner.
Book Description
Eavesdropping on the phone calls of U.S. citizens; demands by the FBI for records of library borrowings; establishment of military tribunals to try suspected terrorists, including U.S. citizens--many of the measures taken by the Bush administration since 9/11 have sparked heated protests. In Not a Suicide Pact, Judge Richard A. Posner offers a cogent and elegant response to these protests, arguing that personal liberty must be balanced with public safety in the face of grave national danger. Critical of civil libertarians who balk at any curtailment of their rights, even in the face of an unprecedented terrorist threat in an era of proliferation of weapons of mass destruction, Posner takes a fresh look at the most important constitutional issues that have arisen since 9/11. These issues include the constitutional rights of terrorist suspects (whether American citizens or not) to habeas corpus and due process, and their rights against brutal interrogation (including torture) and searches based on less than probable cause. Posner argues that terrorist activity is sui generis - it is neither "war" nor "crime" - and it demands a tailored response, one that gives terror suspects fewer constitutional rights than persons suspected of ordinary criminal activity. Constitutional law must remain fluid, protean, and responsive to the pressure of contemporary events. Posner stresses the limits of law in regulating national security measures and underscores the paradoxical need to recognize a category of government conduct that is at once illegal and morally obligatory.
One of America's top legal thinkers, Posner does not pull punches. He offers readers a short, sharp book with a strong point of view that is certain to generate much debate.

Now that school has started, my leisurely reading will be at a minimum. I'm interested in both of these books, but it will probably take me some time to get through both of them. My research project is going to be stealing most of my reading free time. Check them out, though. They look good.

Frequent Confirm Them contributor Quin Hillyer has this piece discussing a Summer decision from the Seventh Circuit Court of Appeals. The case concerned a campus chapter of the Christian Legal Society at the Southern Illinois University School of Law. They were stripped of their official student organization recognition after a complaint that they violated the school anti-discrimination policy. The group tried to get an injunction to restore their status while the lawsuits proceeded. The district court denied the injunction.

Hillyer examines the majority opinion written by Judge Diane Sykes. She and Judge Kanne said that the lower court was wrong to deny the injunction. As Hillyer writes and quotes...

But a three-judge panel of the Seventh Circuit voted 2-1 July 10 to grant the injunction, reasoning quite cogently that "the loss of First Amendment freedoms is presumed to constitute an irreparable injury for which money damages are not adequate, and injunctions protecting First Amendment freedoms are always in the public interest."

When the case came down, I wrote my own post about it, looking at both the majority and the dissent. You can find it here.


Hillyer makes a point that I also made. Judge Sykes is reportedly high on the short list of potential Supreme Court nominees. This should not surprise anyone. Here is what I wrote in my previous post...

I think that this decision only makes her stock rise for a potential Supreme Court nomination. Religious liberty has become a big issue with many folks on the Right in the last decade or so. If the White House gets another vacancy in the next two and a half years and they want to appoint a woman, Judge Sykes will be high on the short list.

I feel strange quoting myself. I still do think that Hillyer and I are right. If a vacancy comes before the presidential election, Judge Sykes is a good bet.

The editors of Science have decided to weigh in on the recent Clean Water Act decision by the Supreme Court, Rapanos v United States. The case involved whether the US Army Corps of Engineers could regulate a piece of property in Michigan that they said was hydrologically connected to ditches and drains. The Court ended with a 4-4-1 split, with Scalia writing for Roberts, Thomas, and Alito, Stevens writing for Souter, Ginsburg, and Breyer, and Kennedy joining Scalia and co. only to send the case back to the lower court. Kennedy had a different view (which is widely viewed as the controlling view, and therefore the law) on the matter.

Science sums up the views nicely...

The Court's fundamental split will surprise few. Justice Scalia, representing the views of Roberts, Alito, Thomas, and himself, offered a very restrictive definition of wetlands: They must have surface connections to navigable waters. That view would have stripped regulatory protection from lands historically treated as wetlands by the Corps of Engineers. On the other side, Justice Stevens, for Souter, Ginsberg, and Breyer, favored a definition that includes groundwater with a significant nexus of connection to more distant navigable waters. Justice Kennedy wrote the decisive opinion, in effect bouncing the matter back to the appellate court. His position favored the "significant nexus" view, adding that the determination would essentially be a scientific matter, within the proper scope of the regulatory agency's authority.

The significant nexus view is pretty much where the law was before the decision. The Court had been placing limits on what the Corps could regulate, though. In Solid Waste Agency of Northern Cook County v US Army Corps of Engineers, the Court struck down the Corps' Migratory Bird Rule. That rule placed intrastate waters that provide habitats for migratory birds under the jurisdiction of the Corps. The Court stated that allowing federal jurisdiction here would be wrong. A bird flying between states and resting in isolated pond after isolated pond is not enough of a connection for the Corps to claim federal jurisdiction. These waters should be left to the states in light of traditional federalism issues and Constitutional Commerce Clause issues.

The editors of Science take aim at Justice Scalia's opinion...

His search for commonplace labels as proxies for scientific definitions must have left his copy of Webster's Dictionary dog-eared from overuse; the text cites it over and over again. His opinion shows no awareness of what hydrologic investigations have demonstrated about the interconnectedness of ground and surface waters. Neither is there any suggestion that groundwater moves (it does) or that it regularly feeds surface streams or lakes, often keeping these waters flowing between rainstorms. The essential message is: "If you can't see it, it doesn't matter."

There is the split on the Court. One bloc will look at the hydrological connections between aquifers; the other bloc will not. My usual mantra here is that Congress could settle this entire mess by making the statute clear. However, that might not (and probably would not) work. This isn't just a statutory issue (although it is right now); it's a Constitutional issue. Congress regulates environmental matters under the Commerce Clause. If the conservative bloc is still using Chief Justice Rehnquist's Commerce Clause standards, Congress can only regulate the channels of commerce, the instrumentalities of commerce, and action that substantially affects interstate commerce. I have my doubts that Scalia and co. think that hydrological connections pass that test.

The editors make one more point worth mentioning...

Second, despite the meager opportunity for direct scientific input to the Court, concerned scientists could help federal agencies work out realistic scientific standards for defining a "significant nexus" and get those into the Code of Federal Regulations. They might also be useful in the next big case, when the Court will decide whether carbon dioxide is a pollutant under the Clean Air Act. Perhaps they could give the justices something more scientifically helpful than Webster.

I think that they have a good point... sort of. Scientific input is great and welcome at the legislative stage and at the agency level. The courts in general and the Court in particular are often hesitant to make those kinds of highly technical inquiries on matters.

Remember, Congress has immense powers to investigate issues. They have committees and hearings, listening to testimony of experts. They commission studies and reports. They can do that kind of fact heavy inquiry. Agencies are similar. The phrase "agency expertise" pops up in administrative law and environmental law opinions all of the time. They are expected to be experts in their fields with highly specialized knowledge.

The courts don't have those powers. They're just a handful of judges with another handful of clerks. They are often very wary of delving too deeply into highly technical questions. Many judges see that kind of analysis and second guessing as beyond their role in the separation of powers scheme. I expect to see language of that type in the eventual opinion(s) in the Clean Air Act case.

Want to be a lawyer but hate the idea of going to law school? Well, Virginia has a way around it: the law reader program. This article highlights Carolyn Seklii, a recent participant and graduate of the law reader program. The program is an alternative for people who cannot or choose not to attend law school. Instead of class, you are taught the law by a practicing attorney over the course of three years. Here are all of the requirements...

An undergraduate degree.

Acceptance by the Virginia Board of Bar Examiners.

Access to a practicing attorney willing to teach the same subjects offered in law school.

Submit course curricula and take exams on each subject.

Access to a law library.

Complete program in three years.

Pass state bar exam.

This is hardly taking the easy way to a law license. I think that there is something about the law school experience that makes the process much easier. The pass rate for law readers mentioned in the article illustrates that. Not only do you have professors who are experts in their fields instructing you, you have many other students to use as resources. A lot of law school is students helping students. We all have our strengths and weaknesses, and we often rely on each other to tutor each other.

As tempting as it would be to avoid paying for law school, I think that I am better off here than in a law reader program.

If you go to Baltimore, don't "steal" your own car...

Spence, 28, said city police pulled him over in his 1993 red Cadillac Elderado coupe for a cracked rear window in February. Four officers dragged Spence and his two passengers from the car and said they were under arrest for stealing it, he said.

"I was listening to the radio from the back seat of the police car. It said a gray Cadillac sedan was stolen; mine is a red coupe. I guess the officer must have been color blind," he said.

Don't worry. It gets better...

Even though Spence had the title proving he owned the car, he said he was cleared of the charges because of the testimony of the owner of the stolen car.

"The whole courtroom fell out - even the judge laughed," Spence told The Examiner.

That had to be priceless. Unfortunately, it's not all comedy...

Still, police sold Spence's car at auction two months before his day in court.

Now Spence is without the car it took him a year to buy, and his lawyer, Roland Brown, said he is preparing to sue the city.

"Not only did the police violate my client's constitutional rights by selling his car before the trial, but the case demonstrates that young black males in this city are blindly targeted by the Baltimore City police," he said.

Brown said the case also points out problems with the city's management of stolen vehicles. "You have to question why a stolen car would be sold at all," he said.

That really sucks for Spence. He's got a long civil suit ahead of him. Suing a city is never fun. But Baltimore messed up here, big time. I have a feeling that Spence will be getting a very nice car at the end of this.

UW law Professor Ann Althouse has an op-ed in the New York Times about the recent American Civil Liberties Union v National Security Agency case. She certainly doesn't hold back anything about Judge Taylor's opinion. The op-ed has generated a lot of comments on Prof. Althouse's blog and on the Volokh Conspiracy. There is no way that the Sixth Circuit Court of Appeals won't hear this case. Then things will get very interesting.

There was a welcome back letter from the Dean in my mailbox at school. One of the items in the letter caught my attention immediately. We usually have two major lectures on campus during the course of a school year. These are occasions where the school brings in someone notable to talk about a current issue in law. One of the lectures last year was Judge Diane Sykes' critique of the Wisconsin State Supreme Court's recent decisions. The lectures are great to attend and one of the most interesting parts of the year.

One of the lectures for this school year has been announced. UCLA Professor Eugene Volokh of the appropriately named Volokh Conspiracy blog will be in town on October 16th to deliver a talk. There is no word what the lecture will be about, but Prof. Volokh is a leading First Amendment scholar so I'd assume something along those lines. I'm going to have to shuffle around my schedule a bit to attend, but I will be there.

I decided to skip posting about the substance of the recent ACLU et. al v National Security Agency decision. Everyone and their mother has beaten me to it because of my vacation. There is a new, very interesting development in the case though. The judge who ruled on the case, Judge Anna Diggs Taylor, may have a serious conflict of interest problem.

By way of How Appealing, here is the report from Judicial Watch...

Judicial Watch, the public interest group that investigates and prosecutes government corruption and judicial abuse, announced today that Judge Anna Diggs Taylor, who last week ruled the government's warrantless wiretapping program unconstitutional, serves as a Secretary and Trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case (ACLU et. al v. National Security Agency). Judicial Watch discovered the potential conflict of interest after reviewing Judge Diggs Taylor's financial disclosure statements.

According to her 2003 and 2004 financial disclosure statements, Judge Diggs Taylor served as Secretary and Trustee for the Community Foundation for Southeastern Michigan (CFSEM). She was reelected to this position in June 2005. The official CFSEM website states that the foundation made a "recent grant" of $45,000 over two years to the American Civil Liberties Union (ACLU) of Michigan, a plaintiff in the wiretapping case. Judge Diggs Taylor sided with the ACLU of Michigan in her recent decision.

According to the CFSEM website, "The Foundation's trustees make all funding decisions at meetings held on a quarterly basis."

Judicial Watch is calling for an investigation about this possible conflict of interest. An already controversial ruling could get even more controversial.

Advice for first year law students is nothing new to this site. I don't know if any 1Ls actually read the site, but I hope I have a few. For those of you timid creatures who started your legal career this week, this post is for you. The TaxProf Blog has collected many of the advice posts that have been popping up on blogs and sites over the past few weeks and put them in one easy to use post.

Seeing the new 1Ls makes me smile and shake my head. They are so innocent. They sit in the lounge, talking about briefing cases, The Paper Chase, and getting called on in class. It reminds me of that quote from Fight Club...

A guy who came to fight club for the first time, his ass was a wad of cookie dough. After a few weeks, he was carved out of wood.

This wood-carved 3L has some reading to go do.

I'm a little late on this, but I spotted it in my bookmarks (also known as my "To Blog About" file). The PropertyProf Blog has a post by Prof. Ben Barros concerning his new paper. He takes a look at modern eminent domain cases before the Supreme Court. The most interesting part is that Prof. Barros has memos that Justice Powell wrote to Justice O'Connor about the Hawaii Housing Authority v Midkiff case. Justice Powell was concerned about the broad language that Justice O'Connor had in her opinion. He offered some ideas to her to narrow the opinion a little (very little, actually). Here's Prof. Barros...

Justice Powell's proposed language was included in Justice O'Connor's opinion of the Court (467 U.S. at 243-44) but is completely overwhelmed by the broad language in the rest of the opinion. The memo is striking in part because Justice Powell seemed cognizant of the risk presented by the broad language of the opinion, but proposed changes that were remarkably ineffective in mitigating this risk.

O'Connor dissented in Kelo rather forcefully. It seemed odd, considering that she wrote such a broad majority opinion in Midkiff that went the other way.

I think that this was an incident of O'Connor shifting her opinion based on the circumstances. Broad use of the police power was fine with her in the situation of Midkiff (where property on the Hawaiian islands was in the hands of a small number of owners, inflating land prices and other bad stuff), but it was not fine with her in the Kelo facts. It is also possible that she just changed her mind over the course of 22 years. Stranger things have happened.

Well, I'm finally back to full time Eminent Domain duty. I had to take a few days off because classes just started Monday. This is the first time that I've had a chance to sit down, check out the legal news, and do some commenting.

The Attorney General candidates are on the front page of the Milwaukee Journal Sentinel today. The topic is first offense drunk driving. Here in Wisconsin, first offense OWI is an ordinance violation. We are the last state in the country to have that light of a penalty. Some of the candidates want to change that...

Attorney general candidates Paul Bucher and Kathleen Falk favor criminalizing first-time drunken-driving offenses in Wisconsin, the last state where such an offense is only an ordinance violation.

The Republican Bucher and the Democrat Falk also favor giving law enforcement the power to conduct roadside sobriety checkpoints. Wisconsin is one of 11 states prohibiting the checkpoints.

JB Van Hollen opposes both measures. Attorney General Peg Lautenschlager says she has no position and will defer to the legislature on the issue. Gee, I wonder why she would avoid commenting on this...

Interestingly, Marquette Law Professor Michael O'Hear has a post about this issue on PrawfsBlawg, where he is a guest poster. He's skeptical about the criminalization move...

My skepticism stems from the standard reasons that I think should always give us pause before we create new crimes, especially when criminalization is not accompanied by any new commitment of law enforcement resources. More crimes means greater police and prosecutor discretion, which I do not trust to be exercised in an evenhanded manner. Prosecution of new crimes drains resources from the prosecution of old crimes. And when the new crime is a strict liability crime, like DUI, there ought to be particular concerns about directing limited law enforcement resources towards those cases where punishment has the least moral legitimacy.

He also thinks that there is another reason behind this proposed change in policy appearing right now...

Interestingly, if Wisconsin is now on the path to criminalization, the politics don't seem driven by the institutional pathologies that play such an important role in Stuntz's account. Prosecutors are divided in their views of the proposal. My suspicion is that the real reason the issue has emerged in the AG race this year is that the incumbent AG, who is running for reelection, was convicted of DUI two years ago, and her opponents are looking for ways to make the DUI issue more salient.

The primary is approaching fast, and the candidates are looking for ways to set themselves apart. We'll have to see if it actually resonates with the voters.

I'm home... safe, sound, and with a much lighter bank account. But I had a blast and that's all that matters. I have days and days of news to catch up on. I'll be doing that hopefully this weekend sometime (I'm going to bed in a few minutes... I'm exhausted). A quick browsing of the big legal sites has informed me that some Carter-appointed judge has struck down the NSA program. Thanks... big news while I'm out of town. I'll try to get up to speed ASAP.

By the way, I spotted a few interesting people in Las Vegas: Lurch, Dr. J, Mike Tyson, and Bill Clinton. I love Vegas.

This is why I never talk about anything Eminent Domain-related in public...

Snow White's dwarfs more famous than US judges: poll

NEW YORK (Reuters) - Three quarters of Americans can correctly identify two of Snow White's seven dwarfs while only a quarter can name two Supreme Court Justices, according to a poll on pop culture released on Monday.

According to the poll by Zogby International, commissioned by the makers of a new online game on pop culture called "Gold Rush," 57 percent of Americans could identify J.K. Rowling's fictional boy wizard as Harry Potter, while only 50 percent could name the British prime minister, Tony Blair.

The pollsters spoke to 1,213 people across the United States. The results had a margin of error of 2.9 percentage points.

Just over 60 percent of respondents were able to name Bart as Homer's son on the television show "The Simpsons," while only 20.5 percent were able to name one of the ancient Greek poet Homer's epic poems, "The Iliad" and "The Odyssey."

Asked what planet Superman was from, 60 percent named the fictional planet Krypton, while only 37 percent knew that Mercury is the planet closest to the sun.

Respondents were far more familiar with the Three Stooges -- Larry, Curly and Moe -- than the three branches of the U.S. government -- judicial, executive and legislative. Seventy-four percent identified the former, 42 percent the latter.

Twice as many people (23 percent) were able to identify the most recent winner of the television talent show "American Idol," Taylor Hicks, as were able to name the Supreme Court Justice confirmed in January 2006, Samuel Alito (11 percent).

Maybe Supreme Court oral arguments should be on TV. That's the only way that some people would be able to identify the Justices. Either that or put them on American Idol. I eagerly await Justice Souter's and Justice Ginsburg's rendition of "Promiscuous." It will be almost as good as this. Ginsburg isn't that attractive (not by a longshot), but Souter is about as lively as that Muppet.

This is bat country.

I will be leaving for Las Vegas tomorrow. That means no updates until I return (if I return). I kicked around the idea of having a guest blogger take over, but I'm too much of a control freak to allow that to happen. Also, who the hell would want to do this anyway?

Until my glorious return, check out the sites I have linked on the right, especially Volokh, How Appealing, and Instapundit. They should keep you up on most of the garbage I usually write about on here. I promise you that I will spend absolutely no time following the news or thinking about this blog while I'm on my trip. I intend to have as much fun as humanly possible while on this trip, because school starts Monday.

How Appealing linked to a paper by Lori A. Ringhand of the University of Kentucky - College of Law that discusses "judicial activism" and the Rehnquist Court. Here is the abstract...

This paper is an empirical analysis of the voting behavior of the individual Justices sitting on Rehnquist Natural Court. The paper, which focuses on the 11-year period between 1994 and 2005 when there were no personnel changes on the Court, examines individual judicial votes to invalidate federal and state laws, and to overturn existing precedent. I conclude that the Court's judicial conservatives were no less likely than their more liberal counterparts to invalidate legislation and overturn precedent, and to do so in ideological predicable ways.

I put judicial activism in quotes because Prof. Ringhand defines it as using the power of judicial review to invalidate a statute or law and voting to overturn established judicial precedent. She recognizes that many would disagree with that definition and says the following...

To those who believe any particular method of constitutional interpretation is constitutionally required and capable of yielding ascertainable and determinate constitutional answers, this way of measuring judicial activism will be at best unconvincing and at worst completely irrelevant. For such individuals, the appropriate definition of judicial activism is likely to be one in which the judge simply got it wrong - i.e., failed to adhere to the proper interpretive methodology, or failed to apply that methodology properly. For the rest of us, however - those who believe that Supreme Court justices are not historians, economists or moral philosophers, but judges, who as such must exercise judgment in uncertain and ambiguous cases - a quantifiable understanding of when and how judges use their power of judicial review will be a useful tool in the ongoing public debate about the appropriate role of the judiciary in our constitutional scheme.

I think this highlights the problem with the term "judicial activism", which I really don't care for at all. It has too many definitions to have any true meaning. The term can be twisted so much to fit any situation for the benefit of the speaker or writer.

Even if you disagree with the professor's definition, the paper is still full of interesting empirical data about the voting patterns of the Rehnquist era Justices.

SCOTUS has the calendar for the upcoming November oral arguments for the Supreme Court's next term. The November arguments (which technically start at the end of October) have quite a few interesting cases...

Monday, Oct. 30:
Osborn v. Haley (05-593) -- immunity of federal employees to private lawsuits
Jones v. Bock and Williams v. Overton (05-593 and 05-7058/05-7142) -- scope of exhaustion of remedies duty under Prison Litigation Reform Act (Consolidated, l hour hearing)

Tuesday, Oct. 31:
Philip Morris USA v. Williams (05-1256) -- standards for punitive damage awards for corporate wrongdoing
Lawrence v. Florida (05-8820) -- -- suspension of habeas filing deadline while petition for certiorari is pendng

Wednesday, Nov. 1:
Environmental Defense v. Duke Energy Corp. (05-848) -- permit standards under Clean Air Act; also, proper court venue for Clean Air Act appeals
Whorton v. Bocking (05-595) -- retroactivity of Crawford v. Washington on admission of out-of-court statements

Monday, Nov. 6:
Marrama v. Citizens Bank (05-996) -- right to convert Chapter 7 bankruptcy to Chapter 13
Wallace v. Kato (05-1240) -- time for filing damages lawsuit based on false arrest claim

Tuesday, Nov. 7:
James v. U.S. (05-9264) -- attempted burglary as a "violent felony" under Armed Career Criminal Act
Burton v. Waddington (05-9222) -- retroactivity of Blakely v.Wahington on state criminal sentencing guidelines

Wednesday, Nov. 8:
Gonzales v. Carhart (05-380) -- constitutionality of federal ban on "partial-birth" abortion (Eighth Circuit case)
Gonzales v. Planned Parenthood (05-1382) -- same issue, along with separate questions on remedy and on vagueness (Ninth Circuit case)

Obviously, November 8th will be a high profile day. The partial birth abortion cases are arguably the biggest cases of the new term so far. Philip Morris USA v Williams and Environmental Defense v Duke Energy Corp. also seem incredibly interesting. I'm eager to see the other cert grants from this, the first full term of the new Roberts Court.

I've had Eminent Domain for over a year and never created an e-mail address for it. It seemed like a lot of work, taking the 2 minutes to register for a free e-mail account. I finally did it though. There is a hyperlink on the right, in the About Me box. In case my code writing abilities are anything like my prose writing abilities, it should give you eminentdomainblog@yahoo.com. Feel free to send me suggestions, links, comments that you are too much of a wuss to post for all to read, hate mail, marriage proposals, job offers, and anything else that you want me to check out.

Rick Hasen's Election Law blog has a link to an excellent article by Allison Hayward of George Mason's law school. The article looks at two of this term's major election law cases, Randall v Sorrell and Wisconsin Right to Life v FEC. Hayward looks at how the Court applied the precedent of Buckley v Valeo in these two cases. Is Buckley going to be "superprecedent" in campaign finance cases?

Speaking of "superprecedent", Hayward cites the origin of that term...

The expression "superprecedent" is not new, but its meaning has changed over the years. The initial use of the term appears to be in a 1976 article in which William Landes and Richard Posner speculate about the existence of such precedents. A superprecedent, as they saw it, was "so effective in defining the requirements of the law that it prevents legal disputes from arising in the first place or, if they do arise, induces them to be settled without litigation." They do not provide examples, but one might think of Marbury v. Madison, the Legal Tender Cases or Humphrey's Executor in this light.

I had no idea that the term was that old. Hayward looks at cases that are referred to as being superprecedent, like Roe and Buckley. She thinks that they do not fit the definition exactly, so they probably should not be categorized as such.

Why isn't Buckley superprecedent? Hayward explains...

Buckley lives on because it provided a new rule in a contentious area, and nobody yet seems to be able to come up with something more agreeable. It also lives on by being sufficiently vague and general to support a range of results. If Buckley is to be considered a superprecedent, then perhaps the true test of whether a decision is superprecedent is not whether there has been substantial reliance upon it, or whether it is recent, or whether it settles a question for all time, but whether it can be cited in support of conflicting conclusions.

It was interesting that Chief Justice Roberts signed on to Justice Breyer's plurality opinion in Randall that supported Buckley totally. The other Court conservatives have a mixture of issues with Buckley, including Justice Alito writing separately to say that any petitioner asking for Buckley to be overturned had better devote a chunk of their brief explaining exactly why it has to go. To me, that is a sign that Alito would be willing to overturn Buckley, but he wants someone to make a strong argument for throwing it out. I agree with the idea. Petitioners should explain why they want a case overturned. It's not enough to say "Hey, Justices. Buckley sucks. Let's ditch it, okay?" Make the case for it.

I don't think that Buckley is superprecedent. I also don't think that it will be overturned any time soon. There needs to be a few changes in the make up of the Court before the votes are there to strike it down. If the Chief is not in favor of getting rid of Buckley, we will probably be stuck with it for a while.

Amanda Frost at Concurring Opinions thinks that it's time for the Supreme Court to have same-day audio of their oral arguments available...

Same-day release of oral argument audio tapes was unheard of until December 2000, when the Court permitted it in Bush v. Gore. Since then, the Court has several times allowed the immediate release of oral argument audio tapes in high profile cases, such as those concerning the rights of Guantanamo Bay detainees and challenges to affirmative action programs in higher education. But the vast majority of oral arguments are inaccessible to anyone who cannot wangle a seat at a Supreme Court argument. An official at the Court's Public Information Office said only that it was the Court's "tradition" to withhold tapes of oral arguments for release until the start of the next term, months after the cases have been decided. The Court should rethink that practice.

I was one of the people who was on C-SPAN's website listening to the audio from the Hamdan case. It was great to hear (well, not great, since the Solicitor General was getting kicked around by Stevens and Breyer pretty well).

I think that there is a definite interest in these recordings. I took advantage of the oral argument podcasts available from Oyez. They are still on my iTunes, and I don't think they are going anywhere soon. I have a few choice selections from the Seventh Circuit Court of Appeals as well. You can get their oral arguments from their website in MP3 format.

Many of the cases before the Court are high profile enough that there is broad interest in these recordings. Even if the cases aren't high profile, there are lawyers, professors, and others who have particular areas of interest (election law, tax law, estate law, etc.) that want to hear about a case that is significant in their field. It is true that the transcripts are available, and Frost touches on that...

Although transcripts of oral arguments are published on the Supreme Court's website, they are not available until approximately ten days after the argument, and in any case a cold transcript is no substitute for an audio recording because the tone of voice, pace of response, and emphasis on certain words and phrasings is lost.

The ten day lag is a pain. There usually is some media coverage of the argument for the major cases, but reporters usually give us an incredibly superficial analysis of what was said. Some blogs, like SCOTUS, provide decent coverage, but one generally has to read many accounts of the argument to get a clear picture of what was said.

I'd love to be able to go to the Court's website, download the day's arguments into my iPod, and listen to them over the course of the afternoon and evening. It would make blogging about the case a hell of a lot easier, and I love to hear the soothing tones of Justice Ginsburg's voice. Or not.

I think that this is a "tradition" that can be broken without much, if any, harm being done to the Court. It isn't the invasion that cameras in the Court would be, and it's a practice that the Court engages in already. We would just be asking them to speed things up a bit.

Law professors Craig Lerner and Nelson Lund offer an interesting take on the current presidential signing statements issue. They join the chorus of voices in the legal community that are correctly criticizing the strange views of the American Bar Association House of Delegates on this issue. Lerner and Lund quote...

[T]he ABA's task force explained, the president should know his place: He must enforce all the provisions of a statute "unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal." The theory seems to be that only judges are qualified to interpret the Constitution.

I think that the ABA is way off on this view. All three branches have a duty to the Constitution. The legislature has a duty to not pass unconstitutional laws, the executive has a duty to not enforce them, and the judiciary has a duty to strike them down under their assumed role of judicial review. All three branches have a duty to uphold and defend the Constitution.

The interesting take that Lerner and Lund have on the issue deals with the remainder of their article...

Here's our proposal: Let's apply the same standard of interpretative plausibility to the president's signing statements and to those found in the opinions of the Supreme Court. Who fares better?

Interesting idea. Let's take a look...

President Bush, again just like President Clinton, has issued statements in connection with bills requiring the production of documents to Congress. Again referring to his commander-in-chief authority, the president has indicated that he might refrain from producing documents that would jeopardize national security.

Compare that with the Supreme Court's interpretation of the 1964 Civil Rights Act, which says: "No person in the United States shall, on the ground of race, color, or national origin, be . . . subjected to discrimination under any program or activity receiving Federal financial assistance." The Supreme Court has interpreted this to permit universities that receive federal funds to discriminate against whites and Asians (and Hispanics of Cuban descent). And President Bush is the one who is accused of preposterous interpretations of the law?

I suppose one could claim that the Court has a much larger data set to look at, since they have tons of case law where they have interpreted the Constitution and federal statutes. But I don't think that excuses some of their more bizarre interpretations. After all, this is what they do; they should be pretty good at it.

Lerner and Lund also look at a Court case involving the ABA itself. The ABA once had a close relationship with the White House in the judicial nomination process. Thankfully, President Bush ended that relationship. However, there was a time when a public interest group demanded access to the ABA's internal deliberations on the matters. The article states, "A statute guaranteed such access to any group 'utilized by the President,' and everyone acknowledged that the President used the ABA to vet prospective judicial nominees." When the ABA's own interests were on the line, it asked the Court to defer to broad executive power...

The Court, at the urging of the ABA, noted that the Constitution provides that the President "shall nominate and . . . shall appoint" Supreme Court justices. Affording public access to the ABA's internal deliberations about judicial nominees might run afoul of this executive power (the Court wasn'’t sure on this point), and the Court therefore "construed" the statute in a way that avoided any possible unconstitutionality. The Court concluded that "utilize" could mean something other than "use," though the Court never bothered to explain what other meaning the word could have.

Executive power for me, not for thee.

Everyone is talking about presidential signing statements. Arlen Specter has his panties in a bunch about them, the ABA issued a disgusting hatchet job about them (which has been ripped by Walter Dellinger and Larry Tribe of all people), and we spent two days on them in my Legislation class last semester. Where can you turn for a reasonable examination of the issue without all of the eye-rolling partisan political hackery that craps all over the glorious study of law? Ed Whelan linked to this incredibly informative paper by law professors Eric Posner and Curtis Bradley about the topic in question. Here is the abstract...

A recent debate about the Bush administration's use of presidential signing statements has raised questions about their function, legality, and value. We argue that presidential signing statements are legal and that they provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. Although President Bush has challenged more statutory provisions in signing statements than prior administrations have, his signing statements are similar in many respects to the signing statements issued by prior presidents, such as President Clinton. In addition, basic tenets of positive political theory suggest that signing statements do not undermine the separation of powers or the legislative process and that, under certain circumstances, they can provide relevant evidence of statutory meaning.

Yes, I know that it's 43 pages long, but it's worth your time if you are interested in this issue. It's the best discussion of presidential signing statements that I have seen anywhere.

I guess there was a pretty interesting debate between the two Republican candidates for attorney general today...

AG candidates have heated exchange

West Allis - A Republican candidate for state attorney general pointedly told his opponent "you suck" during a heated exchange today about the threat of terrorism in Wisconsin.

J.B. Van Hollen, a former federal prosecutor, directed the remark at fellow Republican Paul Bucher during a break in a debate broadcast during Charlie Sykes' show on radio station WTMJ-AM (620) from the Wisconsin State Fair.

Bucher, Waukesha County district attorney, had demanded that Van Hollen apologize for saying earlier in the campaign that terrorists were training and raising funds in Wisconsin.

When Van Hollen tried to explain his position and Bucher interrupted, Van Hollen responded: "Will you ever listen? That's why you suck, Paul, because you only listen to people who agree with you."

The exchange occurred off the air during a commercial break, but Bucher informed listeners as soon as the live on-air debate resumed.

"I don't suck. I resent that," he told Van Hollen. "If we're going to denigrate into that, you go first."

The two Republicans will meet in a Sept. 12 primary, with the winner facing the winner of a Democratic primary between incumbent Attorney General Peg Lautenschlager and Dane County Executive Kathleen Falk in November.

Van Hollen later apologized for the remark. I didn't get to hear this live because I was at work. From what I've read, it was a pretty heated exchange and a tough debate generally.

Who am I voting for in the AG's race? Right now, no one.

Law.com occasionally provides us with an absurd story like this one...

A state panel has disciplined a judge who ordered cheers in court for the Super Bowl-bound Seattle Seahawks before issuing a manslaughter sentence.

Pierce County Superior Court Judge Beverly Grant asked about 100 people in court to say "Go Seahawks" before taking their seats on Feb. 3. Dissatisfied with the low volume of the response, she repeated the request.

That same day, Grant sentenced Steve Keo Teang to 13 1/2 years for manslaughter in the 2005 shooting death of Tino Patricelli, 28.

The Seahawks played in the Super Bowl that weekend. Patricelli's stepmother said she was offended in part because the game fell on the anniversary of her stepson's death.

Grant, who was appointed to the bench in 2003, apologized the following Monday. She eventually filed the formal conduct complaint against herself.

"Although my intentions were to defuse the courtroom situation, I realize now the inappropriateness of my opening comments," Grant told the commission.

The state Commission on Judicial Conduct gave the judge an admonishment, the panel's lowest-ranking punishment. An admonishment is a written reprimand.

Do you hear that? That's the sound of me sighing forcefully and massaging my temples.

Imagine my shock to find something worth reading in the New York Times. Election lawyers Jan Witold Baran and Robert F. Bauer take a look at many aspects of election law, including its past, present, and future.

After Nixon's re-election and Watergate, campaign finance reform was on the minds of many people. The country saw the creation of the FEC, the FECA law, and eventually the maddening Supreme Court decision, Buckley v Valeo. Baran and Bauer note that the regulation has grown and grown, with the passing of BCRA and the talk of abolishing the FEC. Unfortunately, the FEC would be replaced by the FEA...

In legislation designed by the irrepressible architects of McCain-Feingold, the proposed Federal Election Administration would be equipped to mete out swift justice, including hefty fines and "cease and desist" orders to wayward campaigns.

The new agency would shrink the F.E.C.'s six seats to a more nimble three, including a vastly more powerful chairman appointed by the president for a 10-year term. For good measure, nominees for the three seats would have to be unsullied by timely, real-world political experience; no recent candidates, party officials or - ouch! - election lawyers need apply.

That's exactly what we need, a more powerful federal regulatory agency. That'll fix everything, right?

Why has campaign finance regulation grown so much? Why have legislators been so quick to embrace this practice? Baran and Bauer recognize the self-serving interests that I have in the past (today even)...

Some reformers genuinely believe that it is possible to drive money out of politics and still observe the command of the First Amendment. Others see practical advantages. Many politicians favored McCain-Feingold because it prohibited certain advertising that mentioned opponents' names, or because it authorized them to raise more money if they were challenged by wealthy, free-spending opponents. The bill also attempted to strike at "negative" political speech - known to ordinary Americans by its other name, "criticism" - by requiring candidates to publicly approve their ad content.

I love that last line. It shows the twisted nature of these laws.

This may surprise many people, but there are some places that do not have strict campaign finance regulation. What kind of backwards, Third World region would be so lawless? Virginia...

Meanwhile, there are states where campaign finance remains largely unregulated. Virginia, for example, has no contribution limits, no public financing, no prohibitions on corporate or union giving; it simply requires prompt disclosure of campaign income and spending. It does not appear that relatively laissez-faire campaign finance has left Virginia with a dysfunctional and corrupt government, certainly not of the kind alleged to be rampant in Washington.

But surely we must have complex election reforms in place or else the entire nation will degenerate into some kind of neo-Tammany Hall era of corrupt politics. We're corrupt enough as it is with the laws restricting election-related speech.

What does the future hold...

Partisans will continue to demand restrictions calculated to hurt their opponents or help themselves; the press will inveigh against the nefarious role of money in politics (without explaining how candidates are supposed to communicate, cost-free, with millions of voters); and "good government" groups will explain that we are just one or two reforms away from cleaner, brighter, more wholesome politics.

In other words, business as usual. I think it will take some extreme campaign finance laws to turn the general public against the whole practice. Unfortunately, it's going to take a long, long time for us to get there.

I haven't really been following national politics for a while. I just think it's become insanely dull, and the people involved are usually a bunch of brainless reptiles. Law is a much more interesting field. I'd much rather hear Chief Justice Roberts speak on a topic than hear Nancy Pelosi talk about anything. However, I did find this post on Cato-at-Liberty interesting. The intersection of law and politics is usually enough to bring me back into the political arena, at least for a while.

In the post, Ed Crane takes a look at the Democratic primary in Connecticut featuring Senator Joe Lieberman and Ned Lamont. Ignoring the party politics and blog-related implications of the election, Crane talks about one of my favorite topics, campaign finance reform. Crane first takes a well deserved shot at the abomination known as McCain-Feingold (or BCRA to us election law nerds). He then looks at the true focus of his post...

But the worst part of these laws came with the 1974 Amendments to the Federal Election Campaign Act, which instituted a $1000 contribution limit to candidates running for federal office (now slightly more than $2000, but less in real terms than the '74 limits). Incumbents have earmarks to pass around and large mailing lists. Challengers do not. Advantage, incumbents.

Contribution limits make it very hard for a challenger to amass enough money to mount an effective campaign to unseat a well-known incumbent. Incumbents, like Senators for example, enjoy a hell of a lot of free publicity. They are on the news quite often. They bring home pork projects that make them popular and widely-known in their state. They also get to send out mailings from their offices, designed to look like "here's what I've been working on" newsletters but are in effect "here's why you should re-elect me" campaign materials. If a challenger wants to get known, he or she will have to spend a lot of money on print, radio, and TV ads. That takes big money. Contribution limits make it hard to build that kind of bank account.

Crane says that campaign finance laws in general, contribution limits specifically, are designed to protect incumbents, the very people who vote these laws into existence...

Ned Lamont's remarkable victory over three-term incumbent Sen. Joe Lieberman yesterday exposes the true nature of contribution limits. They aren't about the "appearance of corruption." They're about preventing a challenger from having a snowball's chance in hell of winning.

These laws are incredibly self-serving and serve to entrench politicians in office for years. They want to save their jobs and will do anything, including changing the law, to make it harder for them to lose.

Fear not, there is hope! Well, hope for some of us...

The one "loophole" the Supremes created with their incoherent 1976 decision in Buckley v. Valeo was that candidates have rights the rest of us don't have. Apparently, they can't be corrupted by their own money, so there are no limits on what they can spend on their own campaigns.

That's right. There is hope for rich candidates...

More than 60 percent of Ned's campaign expenditures came from Ned. Without Ned, Ned loses. In fact, no political observer thought any candidate dependent on a $2000 contribution limit had any kind of chance of ousting Lieberman.

It takes a special kind of person to beat an incumbent, usually one with old money.

Crane then makes the point that Connecticut is lucky that Lamont is rich...

But by spending his own money he enfranchised the Democrats of Connecticut who otherwise, given the contribution limits, were disenfranchised. The Democrats in Connecticut hate the war in Iraq, Lieberman has rather energetically endorsed it. Yet the federal election laws would have assured Lieberman reelection were it not for the "loophole."

Isn't that interesting? The people who have fought so hard for campaign finance laws are the ones who were almost screwed by them.

Crane's final point is this...

Give everyone the "loophole" of being able to spend as much of their own money to promote their political beliefs and we'll throw a remarkable number of incumbents out of office. And with good candidates instead of bumbling millionaires.

I'd rather not be stuck living in a country run by a bunch of John Corzines.

Thinking back to the late 1800's when I was in high school, I recall a dress code being in the student handbook. As an angsty teen with a tenuous grasp on the First Amendment, I thought that this was tyranny of the highest order. Little did I know at the time, but the Supreme Court had taken up this issue and carved out a few rules. In Tinker v Des Moines, the Court said that schools can limit student speech (including t-shirt speech) when the speech or expression will create a substantial disruption or invade others' rights.

Then came Harper v Poway Unified School District. Over at the First Amendment Center, David L. Hudson Jr. has some analysis about this interesting Ninth Circuit case. I have been meaning to write about this case. I meant to when the decision first came down. I meant to when the Ninth denied an en banc rehearing. I have the time now, and Hudson's article is excellent, so here we go.

Using one of the rhetorical questions asked by Hudson, I'll paraphrase what happened in the case...

[T]he 9th U.S. Circuit Court of Appeals stated that school officials could prohibit student Tyler Chase Harper from wearing shirts bearing messages such as "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" and "HOMOSEXUALITY IS SHAMEFUL." Harper wore the shirts to protest his school's support of a National Day of Silence, which promotes tolerance of sexual orientation.

Harper sued, claiming that the school's silencing of his expression amounted to viewpoint discrimination because the school allowed expression of what Harper considered the pro-gay viewpoints associated with the Day of Silence

Writing for the majority, Judge Stephen Reinhardt claimed that Harper's shirt invaded the rights of the other students. I'm still not exactly sure what constitutes an invasion of rights. Reinhardt seems to think that offending someone greatly is enough. In dissent, Judge Alex Kozinski stated "I have considerable difficulty with giving school authorities the power to decide that only one side of a controversial topic may be discussed in the school environment because the opposing point of view is too extreme or demeaning."

There is the interesting issue here. The school decided to endorse the National Day of Silence, taking a side in a social issue. They then decided to restrict the speech of Harper, who ended up spending the rest of the day in the office because of his shirt.

Hudson quotes the most head-shaking part of this case, the en banc denial concurrence written by Reinhardt...

In his concurrence to the denial of en banc review, Reinhardt wrote that "the dissenters still don't get the message -— or Tinker!" He wrote: "Whatever the reason for the dissenters' blindness, it is surely not beyond the authority of local school boards to attempt to protect young minority students against verbal persecution, and the exercise of that authority by school boards is surely consistent with Tinker's protection of the right of individual students 'to be secure and to be let alone.'"

Judge Reinhardt once again shows his two most prominent qualities: arrogance and being wrong. He excells in both fields. His little "I'm right, you're wrong!" temper tantrum is very cute.

Ninth Circuit conservative stalwart Judge Diarmuid O'Scannlain fired back at Reinhardt...

Several judges voted to rehear the case, including Judge Diarmuid O'Scannlain, who wrote that "the panel majority's decision amounts to approval of blatant viewpoint discrimination." He reasoned that "under the panel majority's decision, school administrators are now free to give one side of debatable public questions a free pass while muzzling voices raised in opposition."

O'Scannlain sees this decision as being dangerous precedent. If it stands, schools can take sides in social issues like this, then restrict or punish students that choose to voice opinions that conflict with the school's stance. How far will this power of the schools go?

Harper's attorney will decide in the next week whether or not to appeal the case to the Supreme Court. I have no idea why he wouldn't do it. I think that Reinhardt's view of Tinker is incredibly wrong, and the Court is not going to let this stand. If other circuits bought into the reasoning in this case, it could cause major restrictions of free speech in schools everywhere. Hudson seems to agree...

[I]t involves an unusual application of the Tinker standards. The vast majority of cases applying Tinker have focused on the "substantial disruption" standard, whereas the Harper v. Poway panel opinion seized on the oft-ignored Tinker language of "invasion of the rights of others." Lower courts need guidance on the application of this part of Tinker.

The "invasion of the rights of others" language is insanely broad and squishy. The Court needs to create some guidelines about this language or judges like Reinhardt are going to have a field day with it.

Jonathan Adler of Volokh links to this article written by Professor Stephen Bainbridge. Bainbridge takes on a timely question: who killed the electric car? Recently, filmmaker Chris Paine has produced a movie with that title. It looks at the short life of the EV1, the electric car produced by GM in order to comply with the California Air Resources Board's demand that car companies doing business in California produce a zero-emissions vehicle. Why did it fail? Well...

In Paine's version of the story, the EV1 was a potential environmental savior murdered by evil car and oil companies and corrupt politicians.

In fact, except for a few Hollywood tree-huggers such as Ed Begley Jr. and Alexandra Paul, there really wasn't much of a market demand for the EV1. And the reason is obvious: The original version with lead-acid batteries had a claimed range of 55 to 95 miles; the nickel-metal-hydride battery version had a claimed range of 75 to 130 miles. Both required an eight-hour charge.

As Bainbridge points out, the EV1's actually range was much shorter...

Most Americans want a car that can handle occasional weekend jaunts. In my case, from my base in Los Angeles, I'd like to be able to reach places like Las Vegas (about 275 miles) or San Francisco (383 miles) in a single day's driving. The EV1 simply couldn't do it.

That paired with almost no luggage space made the EV1 an unattractive car to most people. However, all is not grim for people who want to ditch the traditional gasoline engine...

Meanwhile, the market continues to work its magic. Toyota recently announced plans to introduce a new version of its very popular line of hybrids in which the electric motor can be charged from a household outlet. Most estimates suggest a plug-in hybrid should achieve 100-plus mpg fuel efficiency.

Bainbridge thinks that we are better off letting the market work in this situation. People seem to be very supportive of hybrids for both environmental reasons and personal preferences. If they can make the drive from Los Angeles to Las Vegas, maybe Bainbridge will buy one too.

This is just horrid. Forget about the singing for a moment. The costumes are just awful. Breyer's hair is not that dark. Is that supposed to be Stevens with the long, kind of messy hair? Watch it and mourn the two minutes of your life that you will never get back.

Chief Justice John Roberts is the star of last Saturday's episode of C-SPAN's America and the Courts. I managed to catch the last half of this episode. Luckily, C-SPAN archives these on their website. There is an interesting exclusive interview with the Chief Justice concerning the Constitution in general. It was filmed by C-SPAN for use in a program to get middle and high school students interested in the Constitution. It's not a long document. I'd suggest that you give it a read again. Even if you have read it a million times, it never hurts to give it another look.

The bulk of the program is devoted to the Chief's appearance at the Ninth Circuit's conference. He gives a speech, which is entertaining as always, and there is a question and answer session.

It's true. You do learn something new everyday. I consider myself a student of the Supreme Court and its recent history, so I was surprised by what I learned from Alec Baldwin posting on Huffington Post...

[Al] Gore, who limped off of the American political stage after the 2000 election after being gang raped by Dick Cheney, Justice Sandra Day O'Connor and James Baker...

Justice O'Connor, I am shocked. How could you do such a thing to Mr. Gore?! Imagine that, a then-70 year old woman raping the Vice President of the United States. I am shocked and dismayed. I expected more from the nation's first female Supreme Court Justice...

Alec Baldwin, a true class act.

In today's Wall Street Journal, Christopher Cooper writes about the state reaction to the Supreme Court's Kelo decision. The reaction to the case has been clear...

When a divided court ruled in Kelo v. New London that private landowners had no constitutional grounds to resist eminent-domain property seizures, it effectively kicked regulation of government condemnation suits back to the states. The reaction has been swift: Several states are considering laws that would limit a local government's ability to exercise eminent domain, or the taking of private property for public purpose. Other measures that voters are likely to consider deal with "takings," or government restrictions on private property, such as zoning and building regulations.

The Supreme Court does an excellent job of bringing attention to an issue and getting people furious about it. They've done it before, and I'm sure that they will do it again. In fact, Grover Norquist talks about that in the article...

Some conservatives say it is ironic that the rush to property rights arose from the Kelo case's Supreme Court ruling, which they didn't feel went their way. Grover Norquist, who heads Americans for Tax Reform, a conservative group in Washington, has pushed similar proposals for years but got little traction from national advocates until the Kelo decision. "Two years ago if you walked down the street yelling that the government was taking our property, people would walk around you, they'd think you were a lunatic," he said. "Since Kelo, property rights has become the center of attention."

You have to love those unintended consequences.

The legislative restrictions are not stopping at the eminent domain front. Property rights advocates are using public outrage to push for major changes in land use law...

Call it Kelo with a twist: Tapping antieminent-domain sentiment that conservatives say runs high among voters, some groups are pushing to limit how governments regulate private property. Measures heading for ballots in a half-dozen states this fall would require governments to compensate landowners if they apply more restrictive zoning retroactively, impose more stringent environmental rules on undeveloped property or apply aesthetic-development regulations on private land as a way to counter urban sprawl.

Some of these measures, called "takings" proposals, began as pure eminent- domain initiatives but have been modified by small-government advocates to make it more difficult to put antisprawl and stricter building-density burdens on current owners. In some cases, the ballot measures would allow a government to waive the requirements for existing landowners; others are tougher, seeking to discourage additional land-use regulations by requiring governments to make cash payments to landowners whenever new rules are imposed.

As a bit of a property rights nut myself, I'm happy to see changes being made. I'm interested to see if the public actually agrees with these specific policies and is not just riding high on the anti-Kelo wave. They may know what they are voting for and they may not. It remains to be seen.