Eminent Domain

Ah, Oktoberfest... my favorite time of the year. I love the crisp Fall weather and the multitude of new beers on the shelves of the stores and in the taps at the bars. Last night, I had a Samuel Adams Octoberfest with my dinner. Poured from the tap, there was not much head. The small amount of head dissipated rather quickly. The beer had a nice amber, reddish color. It's a little darker than most domestic Oc(k)toberfest brews, but that made it distinctive off the bat. The aroma was light, but that may also be on account of my cold. It was slightly malty and pleasant though (the aroma, not my cold).

The first taste is probably the best. It's got a nice, crisp bite to it. The flavor is a blend of roasted barley that gives the beer a caramel, almost sweet, flavor. Think "sweet" is the bready, grain sense. The finish is sort of malty, but fairly smooth overall. It's a decent beer that is somewhere between a lighter Summer brew and a heavier Winter beer. It's a transition beer. I would try it again, but I doubt I would want a six pack of it. It's good, but it's not something that I would want to drink the entire night. Although, it would be interesting in beer bread. Yes, you can make bread with beer and yes, I have done it. Maybe there will be a beer bread tutorial on here in the near future. We'll see.

I found this strangely disturbing. "Supreme Court Justices Ruth Bader Ginsburg, and Antonin Scalia, respectively fourth and fifth from left, pose with members of the cast of 'Ariadne auf Naxos' following a performance at the Washington opera in this Jan. 8, 1994, file photo. The justices, both opera lovers, appeared as extras during the performance."

People get involved with blogging for many different reasons. Part of my inspiration was a blog called Law & Alcoholism, which is written by a UW law student (now a graduate). The posts were both funny and well written. They took on law, law school, college culture, and everything in between. Imagine my sadness when I read this post, titled The End is Near (A Rare Serious Post). Give it a read. Basically, the author is shutting his blog down. There are a few reasons given, all of them understandable. I'll be sad to see that blog go though.

Before the author purges all of the "questionable" content, I would like to direct you to a few posts. This one about contracts, this one about torts, these two about tax, and this one about the rules of evidence. You know that law school has gotten ahold of you when you find stuff like this funny. Thanks for the laughs.

Two days ago, Justice Antonin Scalia celebrated 20 years of being on the Supreme Court (he was officially sworn in on 9/26/86). To commemorate this glorious occasion, Simon Dodd has posted a list Scalia's Greatest Hits. He limited himself to five, which had to be tough. Scalia has a very deep bench of quotable and memorable opinions. How does one pick a favorite, or even a few top choices? Well, I'll give it a shot too.

Looking at Scalia the humorist, my favorite opinion is his dissent in PGA Tour, Inc. v Martin. This was the case that dealt with handicapped golfer Casey Martin and his desire to use a golf cart. This was against the rules of the PGA, which required that golfers walked the course. This case made it all the way to the Supreme Court. Here's what Scalia had to say...

[W]e Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government's power "[t]o regulate Commerce with foreign Nations, and among the several States," U. S. Const., Art. I, §8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?

Quite a groundbreaking case, huh?

How about Scalia the creative writer? I have to go with his concurrence in Lamb's Chapel v Center Moriches Union Free School District. Here, Scalia takes on the Lemon test and the damage it has done to the Court's Establishment Clause jurisprudence...

As to the Court's invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

Just beautiful imagery.

My all time favorite Scalia opinion is on Simon's list: the solo dissent in Morrison v Olson. Here's how Simon introduces it...

Described - without the slightest risk of overstatement - as "the best opinion of the modern era" by Ted Olson, Justice Scalia's solo dissent in Morrison is both a magisterial display of the art of dissent and a masterful exposition of conservative legal thought.

I was at the event where Ted Olson said that. I have to agree. Scalia brilliantly railed against the independent counsel law as being unconstitutional. He laid the groundwork for the Unitary Executive Theory. You might remember that from the Alito confirmation hearings as the term that everyone used but didn't understand. Read it and bask in its glory.

I'm looking forward to ten more years of Justice Scalia on the Court. Hopefully, we can get more Scalia majority opinions than Scalia dissents.

George Will, a strong opponent of campaign finance reform, has an excellent opinion piece about an unintended consequence of that reform: the death of publicly funded elections. What is this funding? Well, if you look closely at your tax return, you would know...

Taxpayer funding, enacted in 1974, empowered taxpayers to direct, by a checkoff on their income tax forms, that $1 of their tax bill be used to fund presidential campaigns. Even though the checkoff did not increase anyone's tax bill, participation peaked in 1981 at 28.7 percent -- a landslide "vote" of 71.3 percent against it. In 1993, Congress increased the checkoff's value to $3, thereby enabling fewer people to divert more money from the government's pool of revenues collected from everyone, including the 90 percent of taxpayers who now decline to participate.

I have never and will never check that box.

How does campaign finance reform affect all of this? It's all about contribution limits...

It is delicious that McCain-Feingold, the reformers' most recent handiwork, is helping kill taxpayer financing of presidential campaigns. Before McCain-Feingold, limits on contributions of private money -- set in 1974 and not indexed for inflation -- became steadily more restrictive, so candidates accepted public funding. But McCain-Feingold, by doubling the permissible size of campaign contributions, made it easier for candidates to raise sums far larger than taxpayer funding provides.

Both Bush and Kerry declined public funding (and the limits that it imposes), which freed them to raise huge amounts of money. Even with the McCain-Feingold limits, Bush and Kerry managed to raise $269.6 million and $234.6 million respectively before their conventions. Taking public funding would have put either candidate at a distinct disadvantage.

People in favor of public funding seem to think that it will elevate the campaigns beyond the "special interest" funded extravaganza that they supposedly are now. There seems to be a desire to get all of that dirty private money out of elections...

Reformers desperate to resuscitate taxpayer funding cite the supposedly scandalous fact that each party's 2008 presidential campaign may spend $500 million. If so, Americans volunteering to fund the dissemination of speech about candidates for the nation's most consequential office will contribute $1 billion, which is about half the sum they spend annually on Easter candy. Some scandal.

Sounds a little funny when you put it that way, doesn't it?

Will hits the nail on the head when he explains why the public has rejected taxpayer funded elections...

Could it be that Americans recoil from funding political advocacy with which they disagree -- Republicans funding Democrats, Democrats funding Republicans, everyone funding fringe candidates such as the felon Lyndon LaRouche, who got infusions of taxpayers' money for a campaign he ran while in jail for fraud and conspiracy?

As entertaining as Lyndon LaRouche can be, I don't want a dime of my money going to that goof. I also didn't want a dime of my money going to Kerry. I think those views (possibly with different candidates named) are shared by an overwhelming number of taxpayers. We just don't want to give money to candidates that do not hold our views.

Always on the ball, Howard Bashman at How Appealing has a heads up about an interesting case in my beloved Seventh Circuit Court of Appeals. Attorneys representing the descendents of slaves filed suit against 17 banks and insurance companies in order to get them to publicize their roles (or their predecessors' roles) in the slave trade...

The case, which names Wall Street behemoths JP Morgan Chase & Co., Aetna Inc., Bank of America, Lehman Brothers and others, says the companies' predecessors issued loans to slave owners and, in some cases, owned, insured and transported slaves - all at a financial profit that helped ensure their success today.

The case made its way up on appeal after being thrown out by the district court judge earlier this year. The judge determined that the reparations issue was best left to the other branches of the government. I heartily agree.

What are the plaintiffs looking for here? Money...

If the reparations advocates succeed, the companies will have to account for the income they earned from slavery, produce historical records and give up the profits earned from slavery. The damage awards would be used to create a court-supervised fund to help fix problems in the black community.

I guess there is nothing that money can't solve, huh?

This part of the AP article struck me as a little odd...

"We were left in poverty. My family's hardship and free labor was not in vain," said Antoinette Harrell, a genealogist from Kentwood, La. who clutched raw cotton as she spoke inside federal court Wednesday.

Emphasis added.

The Seventh Circuit is nice enough to make their oral arguments available online in MP3 format. You can click here to listen to Judges Posner, Easterbrook, and Manion in action. I'm in the middle of listening to the arguments, but I don't think that the panel is buying the plaintiffs' case. The damages are just too speculative. I expect another loss for the plaintiffs.

EDIT: Oh man. Please listen to this oral argument. It's just a mess. My favorite part is halfway through when people in the courtroom start clapping after the plaintiffs' lawyers are finished. Posner is like "what the hell?" Folks, we don't clap in courtrooms. This isn't a ball game or a Journey concert. Behave. The Seventh Circuit is big on rules and procedure. They aren't going to put up with that kind of crap.

The questioning itself is excellent. Posner does most of the questioning during the argument. Easterbrook chimes in a few times, but Posner seems to be in the driver's seat. His line of questioning supports my view that the plaintiffs are going to lose this one.

SCOTUSblog has an excellent summary of the nine new cases that the Supreme Court decided to hear. Of the new grants, this case, United Haulers Association v Oneida-Herkimer Solid Waste Management Authority, strikes my interest the most...

In an environmental dispute, the Court said it would return to the question of local governments' authority to control the disposal of solid wastes. The case tests whether it violates the Commerce Clause for a local "flow-control" ordinance to require delivery of all solid wastes to a publicly owned local facility.

Commerce Clause cases are especially interesting, considering the Rehnquist Court's revival of federalism. I have a sinking feeling, based on a few recent cases, that the federalism revolution is dead. This case is a little different, since it seems like a Dormant Commerce Clause issue. It still may give us some insights into Chief Justice Roberts' and Justice Alito's views on the Commerce Clause.

If you are really interested in the new grants, SCOTUSblog also has a more detailed look at the actual issues in this questions presented document. As the new term of the Court begins, keep watching the posts on SCOTUS. It's one of the best blogs for following the Court.

Let normal sleep schedules be damned. US News and World Report has a great article about the upcoming term of the Supreme Court. We are days away from the beginning of the 2006 term. The article makes the point that there are a lot of familiar battles on the horizon. Up first is the always contentious abortion issue...

When the U.S. Supreme Court reconvenes next week after its summer break, justices will be asked to decide whether health risks alone should guarantee women access to controversial late-term abortions, typically-though rarely-performed when pregnancies have progressed beyond 20 weeks.

That, in and of itself, is significant-"one of the key cases of the term," says Leonard Leo of the conservative Federalist Society. But when the court considers the constitutionality of Congress's Partial-Birth Abortion Ban Act of 2003-which has no exception for a mother's health-it will also shine a light on the emerging dynamics of the newly formulated and deeply divided panel. And the most closely watched jurist won't be Chief Justice John G. Roberts or his fellow sophomore, Justice Samuel Alito, but Justice Anthony Kennedy, on whose vote these decisions will most likely turn.

I disagree with the authors on this point. I will be closely watching all three men. Justice Kennedy should be watched because he made his views on partial birth abortion known in his vigorous dissent in Stenberg v Carhart. Will Kennedy stick to his guns (and his dissent) or will he honor the precedent of the 5-4 majority opinion? I think he's going to stick with his dissent. Justice Kennedy, like all of the Justices, has strong views on the Constitution and law. Stenberg was a recent case and a 5-4 decision. He will not bow to a precedent that young and divided, especially when he feels this strongly.

Chief Justice Roberts and Justice Alito should be watched for similar reasons. While they do not have recorded views on partial birth abortion, they do have the same precedent issue that Justice Kennedy has. Will they follow Stenberg? My best guess is no. I think that there are five votes here to uphold the PBA bans. Of course, this case and its subsequent decision will be big news items.

Another important reason to watch Roberts is how he assigns the opinion (assuming that he is in the majority). Will he take the opinion himself, giving us a more in depth view on the new Chief's abortion jurisprudence? Will he give the opinion to Scalia or Thomas to get a "flamethrower" opinion? Will he give it to Kennedy, if he thinks it's necessary to hold Kennedy's vote? Will he give it to Alito, Justice O'Connor's replacement? The language of the opinion may give us special insight into Alito's or Roberts' views on the abortion issue.

Up next is another divisive topic, affirmative action and race issues in schools...

The court will very likely be deeply divided over challenges to the use of race in assigning students to secondary schools in Seattle and Jefferson County, Ky., which includes Louisville. Parents in both cases, joined by lawyers for the Bush administration, claim that their children's constitutional right to equal protection was violated-in Seattle, when their children were denied enrollment in schools of their choice because race was used as a tiebreaker in an open-enrollment system, and in Jefferson County, when their children were bused long distances for a race-conscious school assignment plan.

Three years ago, in the last affirmative action challenge, involving the University of Michigan and its law school, justices approved the use of race in college admissions-but only as part of a "holistic" evaluation of applicants and with no quotas or points system attached to the policy. The Seattle plan, which takes into consideration a student's race if any individual school is oversubscribed or does not reflect the district's student racial breakdown of 60 percent minority and 4o percent white, was upheld by the reliably liberal Ninth Circuit. The Sixth Circuit endorsed the Kentucky plan, which mandates that each school have a black enrollment of between 15 and 50 percent.

It hasn't been long since the Court tackled this issue in higher education in Grutter v Bollinger and Gratz v Bollinger. With Justice O'Connor gone, the new Roberts Court gets a chance to put Grutter to the test. Remember, this is another area where Justice Kennedy joined Rehnquist, Scalia, and Thomas in dissent. This is also another area where Roberts' and Alito's views on stare decisis are material. They have the ability to form a five vote majority here. This could severely limit Grutter or even overturn it.

Rounding out the controversy trifecta is global warming...

With the U.S. rejection of the global Kyoto Protocol to reduce greenhouse gases and the failure of Congress to pass similar legislation, Massachusetts is leading a team of a dozen states, along with environmental groups, in arguing that the Environmental Protection Agency must regulate greenhouse gas emissions, specifically those from motor vehicles, according to principles defined in the Clean Air Act.

The Bush administration has opted to tackle global warming with a policy that promotes technology development and voluntary measures to reduce greenhouse gases. But the plaintiffs argue that the policy fails to enforce Section 202 of the act, which says the agency must regulate automobile emissions that "cause, or contribute, to air pollution which may reasonably be anticipated to endanger public health or welfare."

The EPA has refused to issue a formal judgment on whether carbon dioxide and other warming gases are pollutants. It argues that the act was never intended to regulate greenhouse gases, nor would it provide such regulation even if it could because federal policy is already in place. A ruling for the plaintiffs would very likely include sweeping new regulatory standards for all industries.

The article makes reference to the very splintered DC Circuit opinion. It's possible that all of the excitement over this case will be for nothing. The Court may decide this on a standing issue. Under Lujan v Defenders of Wildlife, the plaintiffs have to establish injury and redressability requirements. It is unsure if they can. The DC Circuit judges tackled this issue, divided as ever. Judge Sentelle said that the plaintiffs failed to establish standing. Judge Randolph assumed that they had standing. Judge Tatel found that Massachusetts itself had standing. All of the discussion about Sections 202 and 302(g) of the Clean Air Act might be premature. This case could end in a whimper.

So far, these are the cases to watch. The Phillip Morris punitive damages case will be interesting too. This is an issue that isn't conservative/liberal. Roberts and Alito have the power to make a huge impact here. We'll just have to wait and see what happens.

I have been slacking, yet again. I apologize. Since I am lame and way behind on legal news, here is a link to a speech. Judge Richard Posner was at Marquette Law School about a year and a half ago to give a speech about intellectual property rights. The video of it is archived for us to enjoy.

How Appealing linked this story about Justice Sam Alito being honored by the National Italian American Foundation. The presenter is someone familiar too...

Alito will be presented with the NIAF Special Achievement Award for Public Service by fellow Italian American Supreme Court Justice Antonin Scalia.

"We're looking forward to have them at our dinner," NIAF Vice-Chairman Joe Cerrell said. "We're very proud to have two Italian-Americans on the Supreme Court."

Our two Italian jurists are not strangers to the NIAF.

As a graduate level student myself, I found this fairly interesting...

Graduate business students in the United States and Canada are more likely to cheat on their work than their counterparts in other academic fields, the author of a research paper said on Wednesday.

The study of 5,300 graduate students in the United States and Canada found that 56 percent of graduate business students admitted to cheating in the past year, with many saying they cheated because they believed it was an accepted practice in business.

Following business students, 54 percent of graduate engineering students admitted to cheating, as did 50 percent of physical science students, 49 percent of medical and health-care students, 45 percent of law students, 43 percent of liberal arts students and 39 percent of social science and humanities students.

45% isn't good, but at least we aren't the worst. I would make a crack about why social sciences/humanities is so low (they just make everything up anyway), but I won't. Oh wait. I just did.

I'm not dead. I'm just insanely busy with an assignment. I will be posting soon, probably tonight or Friday.

Tucker Max, my favorite foul mouthed Duke Law School grad, was involved in a lawsuit concerning the Communications Decency Act. The case ended in May with a Max win. I wrote about it earlier in this post. I have recently learned from UW law school grad Legally Intoxicated that the plaintiff (now the petitioner) has filed an appeal. There's going to be a great Third Circuit Court of Appeals opinion in our futures.

There is good news for those of us who don't live in the Washington DC area and have an interest in Constitutional law. The Cato Institute has posted video and audio from yesterday's Constitution Day 2006 event. The program looks incredibly interesting. Ilya Somin, Larry E. Ribstein, and Robert Pushaw were on a panel discussing federalism issues. Martin Flaherty and John Yoo went head to head on executive power. Allison Hayward, Dale Carpenter, and Robert Corn-Revere talked about the First Amendment and campaign finance laws. Erik Jaffe, Walter Dellinger, and Randy Barnett looked ahead to the Court's next term. Judge Danny Boggs gave the closing lecture of the day.

If my iPod wasn't dead, I would just download the podcasts and listen to them over the next day or two. Instead, I will probably watch the archived video. It will take a little long to find the time, but I'm sure it will be worth it.

I also hope to have some posts in the near future about Cato's Supreme Court Review. Peter Rutledge has an excellent analysis of the Court's next term. It's available on SSRN if you can't wait for me to post about it.

From Professor John McAdams' blog...Prof. McAdams adds...

Look for this to end up as a debate between McAdams and Wolfe on the one side, and Sachse and Hylton on the other. The issue: whether judges have a right to blow off the expectations of the Founders and interpret the Constitution to mean what they want it to mean.

I'm going to try to attend. It looks like a very interesting event.

Cross posted on MULS Federalist Society.

SCOTUS has just posted some great news for those of us who watch the Supreme Court closely...

The Supreme Court will begin making available, without charge, the transcripts of oral arguments, on the same day that an argument has been held, the Court announced Thursday. This is one of the most important innovations, in terms of public access, by the new Chief Justice, John G. Roberts, Jr. For years, the idea of same-day release of transcripts of every argument has been rejected despite repeated requests from the media and other public entities.

This is great news. Usually, we have to read news accounts written by people who attend the oral arguments. They are often overly simplified and have only one or two quotes from the Justices. Recently, there have been blogs that cover the arguments in more detail. They do a better job, but they can't record everything said. This new service will let all of us closely examine the statements and questions made at argument almost immediately. Hats off to Chief Justice Roberts for making this policy change.

There has been a slight tousle in the pages of The Examiner recently. An editorial blasted the McCain-Feingold campaign finance reform law. Feingold wrote this response. That sparked this response to the response, written by Professor Bradley A. Smith.

While the original editorial went too far with some broad claims about the law, Feingold did not help his cause with his response. Prof. Smith takes him to task for it...

Sen. Russ Feingold, D-Wis., takes issue with The Examiner's editorial criticism of the McCain-Feingold bill and its "ban" on certain broadcast ads. The indignant senator responds that the law "doesn't ban or censor any speech."

Feingold's position is disingenuous. For just a few sentences after telling us the law "doesn't ban or censor any speech," he tells us that McCain-Feingold was necessary to prevent some voices from being "drowned out" by others. As McCain-Feingold does nothing to affirmatively create or encourage speech - it offers no subsidies or platform for political speech - the only way it can prevent anyone's voice from being "drowned out" is through the suppression of other speech - and that is indeed what McCain-Feingold does, as the senator must know.

Feingold claimed that PACs could be used as speech conduits for the restricted interest groups. Smith says that's not good enough...

It is true, as the senator notes, that an organization can still use a political action committee to run ads critical of members of Congress. Of course, most citizens groups - including many large ones, such as the American Civil Liberties Union and the American Bar Association - do not have PACs.

Even when organizations have PACs, they are a poor substitute for direct political speech. PACs are subject to a great deal of regulation, including limitations on who may be solicited for contributions. As a result, most PACs lack the funds to run serious broadcast campaigns.

There are specific contribution limits on PACs. The limits restrict the amount of money that the PAC can raise, especially if the PAC does not have many supporters (even if they are rich). In effect, PAC contributors can only buy so much speech even if they want to buy more. Prof. Smith has more on the PAC issue...

Obviously, Sen. Feingold knows this - if running ads through a PAC were no different than paying for them directly, then why put the restriction in place at all? But in fact, the purpose of the law, as the senator admits, was to "prevent corporations, unions and organizations"” from running ads that they had formerly run, by choking off the source of funding - "soft money" - they had used to pay for those ads.

In this respect, we can give some credit to Sen. Feingold: The limitation on running ads within 60 days of the election is not really a "blackout," but a "brownout." One can speak, but not at full power. And it will be the government that decides who is being "drowned out" and who is doing the "drowning." Of course a major purpose of the First Amendment was to prevent the government from deciding who was speaking too much, and whose voice needed to be muzzled.

I bolded that last line because it is such an important point. I don't want the government restricting political speech like this. It's not their role to tinker with the First Amendment rights of citizens who join together in groups in order to speak. Elected officials hate these "sham issue ads" or "attack ads" for one reason; they work. Voters respond to negative ads. The incumbents have used the political system to reduce the amount of critical ads. They want to get re-elected.

Prof. Smith is not done yet. Now, he goes after Feingold for his opposition to the proposed grassroots lobbying exception...

Sen. Feingold's opposition to a proposal to have the Federal Election Commission create a grassroots lobbying exemption - an exemption specifically authorized under the McCain-Feingold law - is indicative of the "bait and switch" tactics used by the so-called "reform" community.

The FEC proposal was ridiculously narrow - it would still have prohibited any broadcast ad that "promotes, supports, attacks, or opposes" any candidate for office; that mentioned any political party; that mentioned any personal characteristic of a candidate; or that characterized an incumbent's position in other than the incumbent's own words.

Yet even this was too much unregulated speech for Sen. Feingold - not that he wants to "ban or censor any speech," of course. When McCain-Feingold was passed, we were assured by its sponsors that "genuine" issue ads would still be allowed.

No one should be shocked by this. Now that McCain and Feingold have their restrictions in place, they are going to fight exceptions, even reasonable ones.

Prof. Smith also looks at the timing issue...

Meanwhile, though citizens' groups are limited in their ability to even mention an officeholder in an ad from now through election day, let alone criticize the incumbent, Congress continues to consider important issues, such as budget bills, a proposal to authorize military tribunals to try suspected terrorists, efforts to reduce taxes and make other tax cuts permanent, lobbying and earmark reform, and much more.

If Sen. Feingold thinks it's inappropriate to allow an exemption for citizens to speak out on these issues, perhaps he will at least offer a motion to adjourn until such time - after the election - as citizens can again participate fully in the debate.

Congress is still hard at work, trying to get legislation passed before the election. These bills deal with important issues. It would be nice if everyone could comment on them in a public forum without dollar restrictions.

Prof. Smith closes with a series of questions and an answer...

Sen. Feingold can say what he wants, but he cannot deny that the explicit purpose of McCain-Feingold was to reduce the political speech of American citizens. After four years, what have we gained for surrendering this freedom? Is Congress less corrupt? Less controlled by special interests? Is public policy better? Are campaigns more focused on issues? What tangible benefit has been gained? I submit that the answer is none.

Campaign finance reform laws are made to sound like they fight a great evil: government corruption. Unfortunately, they don't get the job done... at all.

How Appealing links to this story in the New York Observer about Viet Dinh. Dinh is a former Assistant Attorney General and currently a law professor at Georgetown Law. Everyone loves this guy...

Only the night before, Mr. Dinh had participated in Ted Koppel's live town-hall meeting on "The Price of Security," and when the show ended and the cameras were still rolling, Mr. Dinh appeared to embrace Lanny Davis, President Clinton's special counsel.

Mr. Dinh, lawyerly sensation of the nation's capital, has also earned the affection of Clinton family enemies-as when he served on Alphonse D'Amato's Whitewater Committee, or later on Senator Pete Domenici's impeachment-trial squad.

"I may have hugged Lanny Davis," Mr. Dinh said. "I always hug [conservative lawyer] Ted Olson and [ACLU executive director] Anthony Romero."

In a town like Washington, it scarcely needs saying, everyone's in the game together, no matter what side of the aisle. But few have made themselves so prodigiously amiable as Mr. Dinh, even while engaging in hazardous work like helping to impeach popular Presidents and author government wiretap policies.

Dinh seems to have a way about him that puts people at ease. It's hard to ignore his incredible life story. He came to the U.S. from Vietnam on a boat with his family. From there...

After some months in a refugee camp, the Dinhs were sent to Portland, Ore. The family picked strawberries for menial wages, but when Mount St. Helens erupted, the crop damage was so severe that the family relocated to Fullerton in Southern California. There, Mr. Dinh worked alongside his mother in a sewing shop and flipped burgers after school. He earned a scholarship to Harvard and then attended Harvard Law School.
...
After law school, he clerked for Judge Laurence Silberman, a Reagan appointee, whose alumni network of mostly conservative lawyers form a tight clique. The next year, he clerked for Sandra Day O'Connor.

Dinh then worked for News Corp., as well as in Washington during the Clinton impeachment, and at Georgetown. It's unlikely that Dinh's career will end there...

While some view Mr. Dinh's knack for coming off well as a sign of his political acuity-he is frequently fingered as a possible Supreme Court nominee in some future Republican administration-others see evidence of his entrepreneurialism.

I have been a strong supporter of nominating Dinh to an appeals court, possibly the DC Circuit Court of Appeals. I'm interested to see what kind of judge that he would be. If he does well, then I think that he would be an excellent Supreme Court nominee for three reasons.



First is the racial issue. Let's not kid ourselves. Racial politics are extremely important in Supreme Court nominations. If Dinh was the first Asian American nominated to the Court, he would be hard to oppose. Second is his personality. It will go a long way and help him a lot. Look at John Roberts' confirmation hearing. Roberts has a similar likable, nice guy personality. He came across incredibly well on television, which is important for public opinion. I think that Dinh would come across in a similar manner. Third is his age. Dinh is only 38 now. He could get a decade of experience on a court and still be fairly young, in Supreme Court Justice terms. Dinh is a rising legal star and should be watched.

God I love that picture. I hope The Weekly Standard doesn't mind me using it. I'll give them a link to appease them.

Yeah, it's election day. If you are in Wisconsin, go vote in the primary of your choosing. I love open primaries. I will be getting up early to do my civic duty, provided that the octogenarians running the tables can find my name on the voting roll. I kid, but they do good work for not getting paid. Anyway, go vote.

I talk about Judge Richard Posner a lot on here. He's a prolific writer (and blogger), a great legal thinker, and a respected federal judge. I recently stumbled onto this profile of Judge Posner that was in Slate during the Microsoft mediation in the late 90's. It's a pretty good introduction to the quirks of one of the most interesting judges in America...

Posner is the high prophet of "law and economics," a school of thought that derives legal principles from economic analysis, typically pointing at some established legal doctrine and declaring it nonsense.

Posner wrote the book on Law and Economics, literally. Law and Economics is now a course taught at most law schools, including Marquette. I've had older professors talk about how differently we view the law now, in light of the law and economics movement.

More from the article...

Some of Posner's greatest intellectual disdain is reserved for the "internationalists, multiculturalists, environmentalists, [and] sometimes vegetarians" on the academic left. He has little time for those who "pity murderers (and penguins, and sea otters, and harp seals) more than fetuses." But Posner's early resume reads more like that of a vegetarian than a libertarian. He clerked for liberal William Brennan on the U.S. Supreme Court in 1962 at the height of Warren court activism and later worked at the Justice Department under Solicitor General Thurgood Marshall.

Posner's explanation for his change in perspective is disappointingly coventional: He says he was put off by the picketing, sit-ins, and violence he witnessed at Stanford while teaching there in the late '60s.

It's interesting that events like those can have such an effect on a person. I seem to recall Justice Alito mentioning that same campus behavior with disdain during his confirmation hearings.

Posner is famous for his writing...

Ronald Reagan appointed Posner to the Seventh Circuit in 1981, and he started producing opinions like one in 1986 declaring that an injunction should be granted "if P x H[p] > (1-P) x H[d]." Not surprisingly, critics find Posner's jurisprudence bloodless and ultimately cruel, chasing the logic of free-market capitalism right off the edge of a cliff. A notorious 1978 article suggested making it legal for parents to auction off their unwanted babies to the highest bidders. An essay on rape reads almost like a parody of the substitution of economic for moral reasoning. ("[A]llowing rape would lead to heavy expenditures on protecting women, as well as expenditures on overcoming those protections. The expenditures would be offsetting, and to that extent socially wasted.")

Bloodless and cruel? Maybe. Trailblazing and responsible for a paradigm shift in the law? Definitely.

How much influence does Judge Posner have? Well...

His appellate opinions contain long expository "asides" when he disagrees with the law as handed down by the Supreme Court. A 1996 opinion in which he felt forced to apply an antitrust doctrine he disliked includes the snide observation: "[i]f this is what the [Supreme] Court believes--and it does appear to be the Court's current position, though not one that is easy to defend in terms of economic theory or antitrust policy ..." His expository aside was adopted as the law of the land by the Supreme Court in 1997.

It's gotta be a great feeling to nudge the Supreme Court in your direction.

Keeping an eye on eminent domain abuse has been en vogue since the 2005 Kelo v New London Supreme Court decision. I don't have to look very far to find an example of land use being twisted by shady local politics. From Saturday's Milwaukee Journal Sentinel...

The city is using its power of eminent domain to help accomplish a $300 million makeover of Bayshore shopping center, but a lawsuit filed by one property owner is questioning whether the takeover fits the law's strict criteria.

Those involved on both sides of the case say a decision on the matter, which is expected soon, could shape the legal debate over setting limits on the state's eminent domain law, which weighs the protection of private property rights against economic development that could result in benefits for an entire community.

At issue is whether Bayshore had lost so much of its luster by late 2001, when city officials formed a public-private partnership with developers for the makeover, that it could have been labeled a blighted area.

If it were deemed blighted, Glendale could use its power of eminent domain, a tool created by state statute that allows a municipality to buy private property for a fair price and relocation fees.

While several owners quarreled with the city over the city's condemnations, none of the business owners attacked the core of the eminent domain law - allowing a municipality to forcibly purchase private property as part of a plan for a blighted area.

The Seemann Family LLC, the living trust created by Harold and Edna Seemann, owns the property in question, which is just north of the shopping center at 5960 N. Port Washington Road, where the Goodyear Auto Service Center is located. The trust is seeking an injunction to prevent Glendale from taking the land.

It has been pointed out by Volokh Conspirator Prof. Ilya Somin that these post-Kelo reform laws have a huge problem with them: they don't actually do much. One of the common oversights is the blight issue. Other laws are just lip service to property rights with no actual teeth. Even with Wisconsin's new restrictions, the municipality is still in a favorable position. Here is my Real Estate Finance and Development professor quoted in the article...

In June 2005, the U.S. Supreme Court ruled in a Connecticut case that private property can be taken by a municipality for economic redevelopment. The decision provoked a storm of protest from coast to coast, said Julian Kossow, a Marquette University law professor and expert in real estate law.

More restrictive laws created by states can trump the Supreme Court decision, he said.

"More than 30 states, either through legislation or court cases, acted to impose higher standards," Kossow said. "They said municipalities should not be able to condemn property unless it was blighted."

Despite the more restrictive nature of Wisconsin's law, Kossow said, the fact that Glendale wants the land for public purposes tips the scales to Glendale's favor.

What is "blighted"? Well, that's the $64,000 question.

SCOTUS links to a few programs of something called the Aaron Harber Show. Harber managed to get Justice Stephen Breyer and former Justice Sandra Day O'Connor, both individually and together, to appear on his show to discuss the judiciary.

On the show with both Justices, Harber asks them about a wide range of topics. They include the importance of judicial independence, the strengths and weaknesses of the American system, and even a little about the Hamdan decision.

Justice Breyer made an interesting and often forgotten point about the American judicial system. He said that the strength of our system is that people follow the decisions, even when they disagree with them. We have decided as a people that it is better to support a decision that you don't like than it is to rebel and try to bring down the government. Maybe it was the lessons of the Civil War, maybe it was something else, but we have decided to resolve our disputes in the courts.

During the solo interview with Justice O'Connor, she gave an interesting and possibly cryptic remark to one of Harber's questions. As a part of a question, Harber noted that O'Connor was the only living retired Supreme Court Justice. See recognized the fact that she was unique, but added this: "Maybe I'll be joined in due course by others." Was this a matter of fact statement about the ages of some of the Justices, or inside knowledge about a pending retirement? I love speculation.

We are just a few days away from the fifth anniversary of the September 11th terrorist attacks. While the attacks were traumatic to the entire country and anyone with a shred of decency in themselves, the relatives of the victims must be taking it especially hard. How does one pick up the pieces after having a loved one violently taken from them? For an example, just look to former Solicitor General Ted Olson.

Olson has a very personal connection to 9/11...

Early that day -- his 61st birthday -- his wife, Barbara, left their McLean, Va., house for Dulles International Airport to board American Airlines flight 77, bound for Los Angeles. Olson, then the solicitor general, headed to his Justice Department office. Not long after, Olson's longtime aide, Helen Voss, burst in to tell him that Barbara was on the phone, sounding panicked. Her plane had been hijacked, Barbara told him. What should she tell the pilot to do? The plane rammed into the Pentagon, and she was gone. Olson's wife, a well-known conservative commentator, was one of the best-known victims of the terrorist attacks.

Olson did what many people do in the aftermath of a loss: he threw himself into his work. As Solicitor General of the Bush Administration, he certainly had no shortage of work either...

After 9/11, Olson took on an expanded portfolio in the Office of the Solicitor General as a leading defender of the administration's anti-terror legal strategy. He coordinated the government's response to the tide of litigation against the USA Patriot Act and the handling of detainees, among other issues. Olson's own loss lent an unspoken gravity to his arguments but, in the end, did not appear to make them any more successful.

Olson's role in actually devising post-9/11 policy appears to have been limited. "I was involved to a small degree," he says. "But I wasn't drafting legislation or making any policy judgments."

He did a pretty good job too...

The rest of his record as solicitor general was strong: He won almost all of the 26 cases he argued, and he won points among career attorneys for attending all of their arguments during his tenure. "At bottom, Ted is an advocate," says [Mark] Perry. "We all win some and we lose some. He's among the best I've ever seen."

Olson also famously (or infamously, depending on your politics) won Bush v Gore. As far as Supreme Court litigators go, he's one of the best.

Olson ends with this message, which I think is definitely insightful...

But he knows he is still one of the most visible symbols of that day and says that his message, his mantra, has been to extol hard work. "I felt that the wonderful job I had as solicitor general would be a catharsis, a way to focus," Olson says. "I thought it would be good for me and good as a symbol for those who were watching me."

He adds: "It's important to understand that while I suffered a great loss, everyone else experiences great loss at some time too. It's important for each of us to accept what happened and move on and do everything possible to go on with leading a productive life."

Olson is also getting remarried, so congratulations to him on that.

I had the privilege of hearing Ted Olson speak once. He's an incredible attorney, a brilliant mind, and a decent guy. I look forward to watching his continued work before the Supreme Court.

Did someone take the National Review's advice? According to Jonathan Adler on Bench Memos, the Judiciary Committee is going to hold a hearing on the nomination of Michael Wallace to the Fifth Circuit Court of Appeals. It's going to be a hell of a fight.

The editors of the National Review are pushing the Senate Republicans to confirm judicial nominees. They believe that the Republicans are in dire need of a boost going into the midterm elections. The judiciary has always been an issue that gets the Republican base fired up. A few confirmations and maybe a few fights would do a lot of good.

Losses in the Senate could make future confirmations difficult...

Should Republicans lose a few Senate seats in November, as is expected by even the most optimistic prognosticators, emboldened Democrats will probably block action on judicial nominees during the lame-duck session. Then, in the next Congress, a smaller Republican majority will be unlikely to have enough votes to block Democratic filibusters.

The Democrats have been successful enough already in blocking judicial nominees. With more votes in the Senate, they will be even more successful.

The editors go through a list of nominees and explain why they should be confirmed and why their confirmations will help the Republicans. The nominee that I'm most interested in is Michael Wallace...

Finally, Republicans should schedule a hearing in September on the nomination of Michael Wallace to the Fifth Circuit Court of Appeals. This will be a chance to hold the ABA accountable for the indefensible "not qualified" rating it gave Wallace despite acknowledging his "highest professional competence." The ABA committee responsible for that rating was headed by an old and bitter adversary of the nominee, and its finding that he lacks the requisite "judicial temperament" was nothing more than a political hatchet job. It is grounds for Republicans to end the ABA's privileged role in judicial nominations, and should not stand in the way of Wallace's prompt approval.

I have written about the horrible treatment that Wallace has received from the ABA. If the Senate Republicans have any spine left, they will push hard for a vote on Wallace and tell the ABA what they can go do with themselves. Anything less than that will result in a much less friendly environment next year. Confirmations will be worse than they are now, if you can imagine that. They may be very bad, like this.

The Harvard Political Review has an excellent article summarizing Chief Justice John Roberts' first year on the Supreme Court. Writer Vivek Viswanathan begins the article by talking a bit about Judge John Roberts, the then-nominee to the Court. While Roberts had a long career as a private and government litigator, his judicial record was rather short. Many speculated about the kind of Supreme Court Justice that John Roberts would be. Even after his first year, it's still difficult to tell. Viswanathan makes this point (with a little help from a quotation)...

What Americans learn about Roberts will likely emerge in bits and pieces over a period of many years. Former Solicitor General Charles Fried testified before the Senate Judiciary Committee that if Roberts "tells of his judicial philosophy, it will only be ten or more years from now."

While Roberts' entire judicial philosophy is still unknown, we can learn a bit about him from his votes, opinions, and behavior during the last term.

Viswanathan quotes Professor Cass Sunstein's assessment of Roberts' DC Circuit record. Sunstein believed that while Roberts was definitely a conservative, his opinions had "none of the bravado and ambition that characterize the fundamentalists. His opinions are meticulous and circumspect. He avoids sweeping pronouncements and bold strokes, and instead plays close attention to the legal material at hand." What does Prof. Sunstein think now? Well, the Harvard Political Review asked him...

Roberts, true to his word, has not articulated any judicial ideology or agenda since joining the Court. And yet, for those who hoped that he would stake out a moderate position on the Court, the signs from the first term have not been encouraging. "I'm surprised that he hasn't shown more moderation," Sunstein told the HPR in an interview. Sunstein explained that while Roberts has only served on the Court for a few months, "All early signs, thus far, are of a predictable ally of [Justice Antonin] Scalia and [Justice Clarence] Thomas." He also noted that Roberts "seems to be a fan of clear, simple rules, as Justice [Sandra Day] O'Connor certainly was not."

Well, no forecast is right 100% of the time.

Viswanathan also focuses on Chief Justice Roberts' desire to build a greater consensus on the Court. It may be working too...

Indeed, there have been a remarkable number of unanimous opinions thus far in his term, and surprisingly few concurring majority opinions, which can have the effect of muddling Supreme Court precedent.

It's difficult to say anything definitive based on this. One term of the Court does not provide much data to analyze. Prof. Sunstein is a bit skeptical of Roberts' consensus building plans...

But given the ideological differences among Court members, and Roberts's own conservative leanings, there is no guarantee that those efforts will continue to achieve results, especially when the Court addresses some of the more contentious constitutional issues in America today. "Roberts is apparently interested in achieving consensus, and he may move the Court some; but it would be surprising if he has a huge effect," Sunstein told the HPR. "There are nine independent minds on the Supreme Court."

It will be very interesting to see how the dynamics of the Roberts Court work after so many years of an unchanging Rehnquist Court.

Cross posted on MULS Federalist Society.

Sorry, I can't resist posting links to people ripping our current campaign finance law regime. The Club for Growth has a "greatest hits" collection from writers around the internet. Here are a few of my favorites...

First up, is David Boaz of the Cato Institute. He writes, "What would McCain, Feingold, and the New York Times say if the U.S.-backed government in Iraq banned any criticism of itself for the next 60 days? Would they say "one giant step toward democracy"? I doubt it."

Matt Johnston of Going to the Mat provides a historical perspective, "Not since the Alien and Sedition Acts of the late 18th Century, a stain on the early American history, have we faced such restrictions on our ability to criticize the government and the representatives who are, after all, beholden to our votes to keep them in office."

Jacob Sullum writes, "It seems Americans now need permission to speak out on political issues and petition the government. I'd suggest a constitutional amendment protecting those rights, but I thought we already had one."

Here is the link to the rest of the piece on Reason by Jacob Sullum. It's full of great stuff...

As of Friday, when the 60-day blackout period for "electioneering communications" by nonprofit interest groups begins, political speech will enjoy less protection than dirty movies. While a sexually explicit film is protected by the First Amendment if it has some socially redeeming value, an "electioneering communication" is forbidden even if it deals with important and timely public policy issues.

Sullum does an excellent job of explaining the current Wisconsin Right to Life/Senator Kohl controversy. Definitely give it a read.

Professor Stephen Bainbridge chimes in as well, referring to Sullum's "sexually explicit film" quote...

This infringement of First Amendment rights brought to you courtesy of Senators McCain and Feingold and a complaisant SCOTUS. Somehow, however, I doubt whether event the worst libertines amongst the Founding Fathers would have approved.

Even the ACLU is on our side on McCain-Feingold.

I may be punching the wall on Friday, September 07, 2007...

All Tied Up: Supremes Still Stuck at 4-4

Washington -– After the Supreme Court announced that it had deadlocked on yet another major case on Monday, Washington insiders were wondering this week just how long it would be before President Bush acceded to Senate demands for a cooperative process to replace retired Justice John Paul Stevens.

"We have made it clear to the President what we expect," Senate Judiciary Committee Chairman Pat Leahy said. "We will not simply sit in the background and vote yes or no on his nominee. We expect to be part of the entire process. In the spirit of bipartisanship, I have forwarded to the White House a half dozen names that would be acceptable to the Democrat majority. But the President stubbornly insists on going his own way."

The then-86-year-old Stevens announced his retirement shortly after the 2006 elections, in which Democrats won both the House and the Senate. He officially left the Court on January 1, 2007. The President's first nominee to replace him never was granted a committee hearing, and withdrew her name from consideration. A month later, his second nominee was given a hearing, and voted down in committee by a unanimous Democrat majority.

...

Ralph Neas, President of People for the American Way, doesn't see the urgency.

"The American people spoke last November, and they said they don't want justices whose radical interpretation of the Constitution doesn't include so many of the new rights that judges have recognized over the years," Neas said. "If we have to leave that seat empty until we elect a Democrat President, that's exactly what we'll do."

Until then, or until the President and the Senate can come to an agreement, the Supreme Court will continue to operate shorthanded.

shudder

Thanks for scaring the crap out of me, Andrew at Confirm Them.

Confirm Them broke the story that Judge Patrick Higginbotham of the Fifth Circuit Court of Appeals has decided to take senior status. The judge decided to surprise everyone and not give any advance notice.

Senior status is an interesting aspect of the federal courts. When judges reach a combination of age and years of federal service (80), they can take senior status. They still get their original, full time salary, but they only work part time. Once a judge takes senior status, their seat becomes vacant. This means that President Bush gets to appoint another judge to the Fifth Circuit, a fairly conservative court.

Who should the President appoint? If I were president (shudder at that thought), I would pick Texas Solicitor General Ted Cruz. He has an impressive resume: Princeton, Harvard Law, clerking with former Chief Justice Rehnquist, Director of the Office of Policy Planning at the Federal Trade Commission, and Associate Deputy Attorney General at the US Department of Justice. Cruz also did an excellent job arguing before the Supreme Court this past term in LULAC v Perry. He's also only 36 years old. He could amass a lot of experience on the Fifth Circuit and still be young enough to be an excellent Supreme Court pick in 10 years.

Law professor and blog guru Glenn Reynolds linked to this article (he's quoted in it too) about blogger anger about campaign finance restrictions under McCain-Feingold. I've made my feelings about McCain-Feingold known, so it's good to see that I am not alone in my disgust with the law.

I guess I think it's a little odd that the article focuses on what bloggers think (especially since the new provision bans mentioning a candidate's name in broadcast advocacy ads, not blogs... though that may not be far away), but I guess it shows that some bloggers have become influential.

Here's Glenn Reynolds on the matter...

"It's wrong, it's unAmerican, and it's the single best argument against either McCain or Feingold running for President in 2008[.]"

Amen to that. Their ideas about the First Amendment are so out of whack that neither one should be considered for the presidency.

Bill Hobbs has some advice...

In addition to forming a '527,' named for the section of the IRS tax code under which they are organized, here's another suggestion for groups wishing to continue running commercials criticizing candidates by name: Make the ads, then upload them to YouTube, and spread them via blogs."

As long as there are laws, there will be ways to get around them.

Why do these campaign finance laws get bipartisan support? Preston Taylor Holmes has an answer...

"Why was this bill supported by both parties? Because they're cut from the same clothe. It's like the NBA All-Star game - they wear different uniforms, but they're really on the same team - the team of the incumbency."

Reduce the amount of criticism that is broadcast, increase your chances of being re-elected. Now that's something that all incumbent politicians can get behind, First Amendment be damned.

As I mentioned before on here, Prof. Eugene Volokh will be coming to Milwaukee to give this year's Boden Lecture. I'm very excited for the event and have been closely following the new information about it. This just came in an e-mail...

Law, Politics, and Slippery Slopes
Presented by Eugene Volokh, Gary T. Schwartz Professor at UCLA Law School


Slippery slope arguments-—we've all made some, and we've all pooh-poohed others. Liberals, conservatives, and libertarians all make them, though in different fields, whether free speech, privacy, euthanasia, gun control, various hot-button social issues, or many others. Do these arguments make sense, and, if so, when? How can we evaluate them better, and make them more effectively? Professor Volokh, who has published on the topic in the Harvard Law Review, will discuss these questions, and more.

Monday, October 16, 2006
4:30 - 5:30 p.m., lecture followed by a reception
Pfister Hotel, Imperial Ballroom
424 East Wisconsin Avenue

I have already RSVP'ed and reserved my spot. I expect Prof. Volokh to be insightful as always.

Congratulations to George Mason Law Professor Kimberly Moore on becoming Judge Kimberly Moore of the United States Court of Appeals for the Federal Circuit. Thanks to a 92-0 vote from the Senate, she will be the youngest appeals court judge in the country. In case you are wondering what the hell that court is, here is a short description...

The Federal Circuit is unique among the thirteen Circuit Courts of Appeals. It has nationwide jurisdiction in a variety of subject areas, including international trade, government contracts, patents, trademarks, certain money claims against the United States government, federal personnel, and veterans' benefits. Appeals to the court come from all federal district courts, the United States Court of Federal Claims, the United States Court of International Trade, and the United States Court of Appeals for Veterans Claims.

The Federal Circuit is fairly young as far as courts go. It's the same age as me.

Thanks to How Appealing for the heads up.

Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson has an interesting opinion piece in the Washington Post about state and federal marriage amendments. Wilkinson, a strong conservative voice on the appeals court for over two decades, comes out strongly against them.

He recognizes the role that judges have played in sparking this trend...

Judges began the rush to constitutionalize. The Massachusetts Supreme Court concocted a state constitutional right to marry persons of the same sex. The court went on to say that opposing views lacked so much as a rational basis. In other words, centuries of common-law tradition, legislative sanction and human experience with marriage as a bond between one man and one woman were deemed by that court unworthy to the point of irrationality.

The Massachusetts Supreme Court decision really shoved this issue to the front of national debate. However, Wilkinson thinks that amendments would be wrong...

The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.

Ordinary legislation -- not constitutional amendments -- should express the community's view that marriage "shall consist only of the union of a man and a woman." To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country's founding charter as their own.

The judge's point is that constitutions should not be used for "ordinary legislation" and says that the definition of marriage is exactly that. Putting a marriage definition would make it extremely difficult for the next generation or two from changing marriage policies. Wilkinson thinks that it is the right of the people to define marriage in their time. Therefore, legislation is the proper way to do that.

What if judges, like the ones in Massachusetts, start defining marriage according to their preferences? Wilkinson responds...

Proponents of the amendment say that states need protection from activist judges in other jurisdictions, but states already have this protection through the Defense of Marriage Act and public policy defenses allowed under the full faith and credit clause.

I'll admit to not being as up on my interstate family law issues as I should be, but isn't the Full Faith and Credit Clause of the US Constitution a way to force states to accept gay marriage? Yes, there have always been public policy exceptions allowed by courts (like polygamy). Yes, there is a history of the courts applying the exception to shield states from recognizing gay marriage. But the Full Faith and Credit Clause has also been used to attack the Defense of Marriage Act (DOMA). Things change.

Wilkinson also thinks that the language in some of the state amendments is problematic...

State constitutional bans on same-sex marriages vary considerably in their wording, particularly with respect to civil unions. But most would repose in judges the authority to interpret such ambiguous terms as "domestic union," "similar to marriage," "rights, obligations, privileges and immunities of marriage," "incidents of marriage" and so forth. Thus the irony: Those who wish to curb activist judges are vesting judges with unprecedented interpretative authority whose constitutional nature makes it all but impervious to legislative change.

Judges get to interpret constitutions. Language like this gives them a lot of room to work with and apply.

Wilkinson's conclusion...

the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics -- some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.

I'm sure that many of you know that there is a constitutional amendment concerning this issue up for vote in Wisconsin. Last year, I made a prediction that the amendment would pass overwhelmingly. Now, I'm not so sure. To be perfectly honest, I don't know how I'm going to vote on the amendment. If I had to make a call now, I wouldn't vote either way. I'm that indecisive on this. The mushy language, as cited by Wilkinson, and my general non-interest in any wedding that doesn't involve me (or have an open bar) have made this an issue that I haven't thought about much.

Back to Wilkinson, David Lat asks two interesting questions...

Interesting. But has he effectively recused himself from any case involving these issues -- and scuttled any remaining SCOTUS hopes he might have had?

I think Wilkinson knows that he's not getting a seat on the Court. His best bet was for the Chief Justice slot when it opened up after Rehnquist's death. Wilkinson has that Chief feel to him. After he got passed over, he talked to the New York Times about his interview with President Bush. That was seen as a major breach of trust and probably torpedoed any chance that Wilkinson had for the other vacancy. He's also 62, which is probably too old. There are too many younger potential nominees as well.

I got the link to this story e-mailed to me by a reader. I appreciate everyone who sends me links. Even if you think "oh, well he's must've seen this," send it anyway. I might have missed it.

This story in the Weekly Standard concerns a battle by one family to save their farm. They have been thrust into the spotlight lately. This is partially because Logan Darrow Clements has taken interest in their plight. Clements was the guy behind the Lost Liberty Hotel, a revenge plan formulated against Justice David Souter for his vote in the Kelo v New London eminent domain case. Since that failed, he has decided to make a movie about eminent domain abuse. That brought him to Piscataway, New Jersey and the farm of the Halper family.

Guess what? The city wants their farm...

The township has made feints at taking the Halper property for decades. In 1975, it actually did force the Halpers to sell 25 acres, which Piscataway added to an adjoining park. But the current festivities got underway in earnest in 1998. Around that time, the city purportedly grew nervous that some of its last privately owned green space might fall into the hands of ghastly developers, the kind that are regularly found in bed with the local politicians, making New Jersey a notorious "pay to play" state.
...
From the look of things, plenty of people are making hefty profits selling Piscataway real estate off to the highest bidder. But to the city's thinking, the Halpers shouldn't be among them. They only worked the farm for nearly a century, why should they make money off it? Never mind that they'd received unsolicited offers for their land for decades and managed not to sell. Piscataway officials were coming after their property anyway, vowing to maintain it as "open space." An incredulous Clements asks what could be "more 'open space' than a farm?"

The lengthy legal battle began, but things just started to get interesting.

Here's a little old fashioned New Jersey corruption...

In this climate, the plot thickened in the Halper case with the involvement of one David D'Amiano, a Democratic fundraiser and friend of then-governor Jim McGreevey. He is currently serving two years in prison after pleading guilty to two counts of mail fraud. The original 11-count indictment against him included bribery and extortion. The victim of his alleged extortion was the Halper family, until Larry's brother Mark wore a wire on behalf of the feds.

When the county initially offered the family a paltry $3 million to join the Farmland Preservation Program (private developers had offered close to $14 million for the land), D'Amiano--a middle man with no official connection or title--got involved, telling Mark that for direct cash payments to him and donations to the Democratic State Committee, he could help the Halpers preserve their farm, or at least get them a better deal.

Then came the not-so-vague death threats and all that other good stuff.

Obviously, Larry Halper is upset about losing his farm and home...

"At the same time that they're stealing my farm for 'open space,' they're developing five other farms or nurseries in town. . . . They're nothing more than whores. Their parents were whores. Their grandparents were whores. Their kids are probably going to be whores." Larry's not taking it well.

It's hard to blame him for feeling that way. He's got an attachment to the land. It's his home. The city thinks that open space is a better use for the land though. Unfortunately for the Halpers, the police power of the states (delegated to municipalities) gives government officials broad powers to decide preferred uses for land. Fighting this in court can be incredibly difficult. The legal battle isn't cheap either...

The city condemned the Halper farm in 2004 and gave the family $4.3 million, of which Halper won't touch his share. "I don't want their money," he says. "I want my farm back." Split twelve ways after taxes, it doesn't go very far; plus, his family, he estimates, has run up close to a million dollars in legal fees over the years. At this moment, Larry and Clara alone have four sets of lawyers handling everything from compensation to environmental issues to conflict-of-interest appeals.

This is an interesting point about eminent domain cases...

While the $4.3 million offer resulted from the city's own assessment of the property, the Halpers say their land is worth exponentially more, and more still considering that they don't want to sell.

You only get "fair market value" for your property. It certainly might be worth more of that. The money doesn't take into account other factors, like sentimental value. The government usually gets the property at a good price... for them. This is nice too...

A jury has found the city's math skills lacking, and said the Halpers were due $18 million. A judge has ordered the local government to pay an additional $8 million, which is in escrow and untouchable by the Halpers, since Piscataway is still appealing. The township's attorney actually had the nerve to argue that recent real estate appreciation shouldn't be a factor since Piscataway's condemnation of the Halper farm has lessened its value.

That's a lawyer argument if I ever heard one.

The story goes on in detail. It's quite long, but author Matt Labash has a great writing style and captures the events compellingly. There is also a final note that Justice Souter ought to take note of...

If David Souter thought his house was safe, he'd better think again. Clements says he has found a loophole in New Hampshire statute XXXIX, chapter 423, that allows a town to seize land outside its borders for an airport, meaning that he can work around Souter's hometown of Weare. Plans for the Lost Liberty Hotel have been transformed into plans for the Lost Liberty Airport (motto: Live Free or Fly). Clements says he has already lined up sympathetic selectmen in another town, which he is keeping under wraps until everybody's ready to move. He allows that he might've acted too impulsively the first time around. "Last time I just said I'm going to do this in Weare without asking anyone in Weare if they wanted to get on board."

Justice Breyer is also in Clements' sights. Realistically, this isn't going anywhere. Clements may be a bit of a goof, but it's good that someone is trying to raise awareness about this issue.

Law.com highlights the latest financial disclosure forms of the Supreme Court Justices. It's always interesting to see what these people are worth. Here's the countdown...

Ruth Bader Ginsburg: $6.4 million - $28 million

David Souter: $5.6 million - $26.3 million

Stephen Breyer: $4,125,080-$15,440,000

John Roberts: $2,235,063-$5,860,000

John Paul Stevens: $1,590,018-$3,480,000

Antonin Scalia: $700,019-$1,595,000

Samuel Alito: $665,025-$1,740,000

Clarence Thomas: $150,006-$410,000

Anthony Kennedy: $65,005-$195,000

The article doesn't give the more detailed amounts for the two top earners, but I will update their numbers when I find the actual report. Justice Kennedy needs some investment advice.

We simply cannot have an election in Milwaukee without things getting totally weird...

But an unexpected chapter was added to the tragedy Saturday when Larraine McNamara-McGraw, a Democratic candidate for Milwaukee County district attorney, asked if police had something to do with the slaying.

"I'm wondering who might have shot this child. The paper (Journal Sentinel) said errant shots or bullets. Is it possible police shot that child?" McNamara-McGraw said during a candidates forum at the Milwaukee chapter of the National Association for the Advancement of Colored People.

Is it possible police shot this child? Is it possible that Yosemite Sam shot this child? Is it possible that Lee Harvey Oswald shot this child? Look, three stupid statements in a row. A response...

John Chisholm, an assistant district attorney and McNamara-McGraw's rival, interrupted and said, "We already arrested a person for shooting that girl."

A 17-year-old was arrested in the case but not charged, and the case is still under investigation, police said.

There's a lead, but really, it must've been those horrible police, right?

Surely there must be an explanation for her statement...

Later, McNamara-McGraw said she was reacting to an article in Friday's Journal Sentinel. The article described the crime in which the teen "was shot in the chest by what police think were errant shots."

"I'm going to take aim at the insensitive article that is dividing our community," she said.

This is the dumbest statement that I have read in a very long time. The article is dividing the community?! The article?! This statement is so head-in-the-sand that it is just sad. McNamara-McGraw does not deserve to be the next DA, not by a long shot.

The holiday weekend is keeping the legal news to a minimum, so I guess another beer review is in order. The Sprecher Abbey Triple is another selection that I picked up after taking the tour recently. It has a dark, cloudy golden color. There is a light amount of head that disappears quickly after pouring. The aroma is light. It's faintly malty but I can't pick up anything else. The flavor is a bit complex and comes at you in stages. When the beer first enters your mouth and hits your tongue, it feels like it's activating your tastebuds. It's sort of a tingling, carbonated feeling. I can really taste the malts as well as a fruity sweetness here. Near the end, the bitterness of the hops enters the picture. It's a nice contrast. The aftertaste is pretty interesting too. After you swallow the beer, it feels like all of the aroma comes back up your throat and coats your mouth. It makes burps extra interesting.

This is a very drinkable beer, so the alcohol can really sneak up on you. The Abbey Triple is 8.4% ABV. And like all Sprecher products, the Abbey Triple comes in a 16 oz. bottle, not a 12 oz. like most beers. I doubt I would drink more than one of these in a night. It has the kind of flavor that you want to enjoy in moderation. However, it is a seasonal, so get it while you can.

University of Chicago Law Professor Cass Sunstein has a short but interesting post on Open University. It mentions something that I remember hearing in passing once about judges...

A few years ago, I was involved in some studies that uncovered a funny fact: When Republican-appointed judges sit on three-judge panels with other Republican appointees, they show unusually conservative voting patterns. So too, Democratic-appointed judges on three-judge panels show especially liberal voting patterns when sitting with fellow Democratic appointees. In short, like-minded judges show a pattern if "ideological amplification."

The presence of even one Republican appointee often makes Democratic appointees much more moderate. Republican appointees often become much more moderate when even a single Democratic appointee is there.

I've been devoting the bulk of my time to reading appeals court opinions since the Supreme Court went into recess. I will have to be much more mindful while reading of which judges are on the panel.

I can't believe that it is already September. That means that the first Monday in October, the start of the new term of the Supreme Court, is almost here. Above the Law has a nice preview of what's coming to the big building on One First Street. I've posted information like this before, but this rundown is a little different. It's got that David Lat edge...

Lopez v. Gonzales, Toledo-Flores v. United States: Question presented: What kind of drug crime can get a guy booted back to Mexico? (If this sounds familiar, it should; every Term the Court has some Latino-surnamed case raising a variant of this issue.)

Ornaski v. Belmontes: Question presented: How early in the Term can Judge Reinhardt get reversed?

MedImmune, Inc. v. Genentech, Inc. Question presented: In order for a patent licensee to litigate the validity of a patent, can they merely flip the patent holder the bird, or do they actually have to go ahead and breach the license agreement?

BP America Production Co. v. Watson: Question presented: Have you ever heard of the federal Mineral Leasing Act -- and if so, do you care? (We didn't think so.)

More case summaries, after the jump.

United States v. Resendiz-Ponce: Question presented: How many times can the Ninth Circuit get reversed in criminal cases in a single Supreme Court Term?

Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc.: Question presented: Can Justice Thomas stay awake for an entire oral argument about FCC regulations governing compensation for coinless pay phone calls?

Norfolk Southern Railway Co. v. Sorrell: This has something to do with causation standards under the Federal Employers Liability Act in the railroad context. Where's Mrs. Palsgraf?

Cunningham v. California: Question presented: Can the Supreme Court make its Blakely/Booker sentencing jurisprudence even more bewildering than it already is? (Here's Professor Doug Berman's take on Cunningham.)

Carey v. Musladin: Another Judge Reinhardt special. Question presented: see Ornaski, above.

Ah, Judge Reinhardt... the Supreme Court's favorite punching bag. I love his Wikipedia entry too. Look at the Judicial Career section...

Judge Reinhardt is known for his carefully crafted opinions.[citation needed]

Notice the lack of citation. I guess even the most die-hard Reinhardt fans can't find a source to back up that claim. How about this instead..."Judge Reinhardt is known for carefully crafting his opinions in a way to expedite their reversal by the Supreme Court." Much better.

Lat thinks this term looks boring and is hoping for some more interesting cert grants. I think the term is already much more interesting than last term. The EPA case and the abortion cases are incredibly interesting. I have faith that the Justices will fill out the rest of the docket with a few more high profile legal nail biters.

I know that I am late on this, but I didn't want to recommend it before I listened to it. The "it" in question is Judge Richard Posner's interview on the Glenn & Helen Show podcast. The hosts do an excellent job questioning Posner. By that, I mean that they ask him questions that just let him talk and talk. Glenn and Helen barely talk during the 45 minutes show.



Posner's argument is that the War on Terror demands a more flexible interpretation of the Constitution. The terrorist threat is real, and civil libertarians need to recognize that. He believes that there is a middle ground available. We can protect civil liberties but still maintain our ability to fight terrorism. Posner also believes that judges simply do not have the background to make educated decisions about terrorism issues. Terrorism is just too foreign to them...

The judges think they know lot about civil liberties, and they don't know anything about terrorism, so when they're confronted with a civil liberties issue involving terrorism, they're much more likely to give weight to the civil liberties concerns, because that's what they know about than the terrorist concerns, which they don't know about.

That's interesting, especially coming from a judge. I think people often forget just how generalist the vast majority of our judges are.

Prof. Althouse also posts about the podcast, quoting an excellent comment made by one of her readers. He summarizes Posner's points well...

1. There are two prevalent metaphors for dealing with the terror threat -- all out war (the WWII metaphor) or police action (the crime metaphor). However, unlike WWII, we can't always tell who the enemy is; and our criminal justice system is designed not to prevent all crime, but to control it to acceptable levels. We need an approach gauged to prevention.

2. The worst thing that could happen to civil liberties is another attack. Many civil libertarians lose sight of this.

3. Many civil libertarians are in denial. They must diminish the severity of the threat in order to be convincing that the government needn't be as active as it is trying to be.

4. People never had the degree of privacy they have now (he gives telegraphs and party telephone lines as examples). Moreover, people today give up their privacy routinely and often in trivial circumstances. Whenever you order from Amazon, you are aware a database is being tweaked about you; all your emails from your employer are totally open to his inspection, etc. A small reduction now is not a big price to pay.

5. His suggestion: (a) liberal government surveillance for national security, (b) no use of anything discovered during the surveillance for any purpose (i.e. prosecution) beyond national security, and (c) careful records kept of the surveillance that would be reviewed by some one, e.g., some Congressional committee, to insure the surveillance was being done for national security purposes. He recognizes that there could be abuses, but believes they would be minor.

This is an interesting quote from Glenn Reynolds responding to Glenn Greenwald's flailing about over Posner's statements...

As I note in the podcast, what's interesting is that Posner's advocating a "more European" approach to national security powers, which produces a left/right role reversal. Posner also makes the point that it's interesting that the Supreme Court's foreign-law enthusiasts don't look to Europe as a model in these areas, as they do in the case of capital punishment.

European nations, like Great Britain, have broad national security powers. They have domestic intelligence agencies, like MI-5. I think it would've been interesting to see Scalia, Thomas, or Alito site foreign law and national security practices in their Hamdan dissents. They wouldn't, but it would just be a nice thumb to the eye of the "let's look to our foreign brethren (when they support our favored view)" crowd.

In case you haven't been paying attention, the Supreme Court is going to hear a very important environmental law case next term. Massachusetts v EPA will determine whether the EPA must regulate carbon dioxide from cars as a pollutant under the Clean Air Act. SCOTUS has a link to all of the amicus briefs and the petitioners' briefs. This will be one of the most closely watched cases of the next term, so do a little background reading if you've got the time.