law
stcynic | September 14, 2006The Alliance Defense Fund now has a blog called Constitutionally Correct. A couple of recent posts on that blog serve to demonstrate how completely meaningless the phrase "judicial activism" is when it's used by social conservatives. In this post, they take the New York Times to task over this op-ed, which cites a study by Lori Ringhand concerning judicial activism. In her study, Ringhand used the only objective definition of judicial activism - how often a judge votes to overturn legislative actions or its own precedents - and concludes that Scalia and Thomas are actually more activist than…
stcynic | September 13, 2006Orin Kerr has an interesting post at Volokh about changes in the law after 9/11. While I think he downplays the significance of some of the legal changes in the Patriot Act (while others vastly overplay them), I think he's right that the key legal question at this point concerns the Bush administration's claims of inherent Article 2 authority to do virtually anything it deems necessary in the name of national security. I'll paste a fairly long quote after the fold:
The key thing that has changed, it seems to me, is primarily the nature of the claims of executive authority that the…
stcynic | September 12, 2006A new North Carolina law requires students to say the pledge of allegiance, something absolutely forbidden by the Supreme Court in West Virginia Board of Education v Barnette. The school can request that students do so, they can have teachers lead the pledge, but they absolutely cannot force a student to say it. One of my fellow ScienceBloggers has a child in school there and had a teacher force him to recite the pledge. He's going to talk with the school principal about it today. This should get interesting.
Update: I just got word that he went to the principal this morning with a copy of…
stcynic | September 12, 2006One of the frequent commenters at STACLU is a guy named Kerwin Brown. While bored, I followed a link to his blog and boy was that fun. He calls himself a "classical liberal" and calls his blog "Expressions of Liberty" while advocating laws against adultery and "fornication". That last post is just bizarre. First, he misunderstands the Lawrence v Texas ruling:
In an article by Professor of Law Joanna Grossman she commented that the Virginia State Supreme Court and other courts struck down the law for the same reason that laws against homosexuality were illegalized. The reason that is because…
stcynic | September 7, 2006One of the government's primary arguments in the various lawsuits against the NSA's warrantless wiretap program is that no one can prove that they have "standing" to sue. The plaintiffs can't show that their specific communications were subject to an NSA wiretap without having the NSA reveal who they are surveilling; and since the NSA won't reveal that information they can't show standing. It's a perfect catch-22 that effectively renders the program immune to all legal challenges. But there's something going on here that deserves to be looked at, and it's the doctrine of standing itself.…
stcynic | September 6, 2006The NY Times reports on another NSA lawsuit, this one from the Center for Constitutional Rights, that went to court in Manhattan yesterday. The judge in this case seems to be taking a more careful approach than Judge Taylor in the previous case, but a lot of what went on yesterday is fascinating. As in the previous case, the questions of standing and the state secrets privilege were prominent in the arguments. More interesting to me are two other elements. The first is that the government seems to be changing its argument with regard to FISA. I'll begin a long quote below the fold:
In a move…
stcynic | September 1, 2006Michael Craig has the details on his blog about the arrest of Richard Lee, who recently placed 6th in the World Series of Poker main event. He was arrested in San Antonio for gambling after the police staked out his home for months. It's all part of the current War on Happiness.
stcynic | September 1, 2006Jay at STACLU has a post that is little more than a rote recitation of all the favorite conservative catchphrases about judicial nominations. It makes a good starting point for discussing the fact that the typical rhetoric we hear from conservatives on constitutional law references things that simply do not exist in any coherent manner. Here's a textbook example from his post of this imaginary rhetoric:
Getting judges that have a originalist interpretation of the Constitution should be of major importance to Conservatives in today's world of judicial activism.
And then, for some odd reason, a…
stcynic | August 31, 2006The court of appeals for the 2nd circuit ruled in favor of a student who wore a t-shirt calling President Bush the "Chicken Hawk in Chief" and including pictures of Bush with lines of cocaine on a mirror and a martini in his hand. After a complaint from another student, the school told the student he had to cover up parts of the shirt. He filed suit and the district court ruled that the school had violated his first amendment rights, but that they could still censor parts of the shirt. The appeals court overturned that decision and ruled in the student's favor.
stcynic | August 30, 2006The Worldnutdaily is reporting that Ken Starr, famous for his prosecution of Clinton in the 90s, has petitioned the Supreme Court on behalf of a school in Alaska in the case of Frederick v Morse. The case involves a student who, on a day when students were released from school to watch the olympic torch go by, held up a banner that said "Bong Hits 4 Jesus" on it. The school principal suspended him for 10 days and he filed suit against them. The district court ruled for the school but the 9th district court overturned that decision and ruled in favor of the student. Starr is now apparently…
stcynic | August 25, 2006Balko finds another ridiculous case of law enforcement seizing property without ever proving it was involved in any crime,t his one from New Hampshire.
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…
stcynic | August 24, 2006Judicial Watch, the group founded by legendary nutjob Larry Klayman whose goal appears to be to sue every human being in the western hemisphere by the year 2050, is making a big deal out of an alleged conflict of interest by Judge Taylor. Naturally, STACLU is jumping on board, as is much of the media. It's all a bunch of nonsense. Here's the accusation:
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…
stcynic | August 22, 2006There's also lots of interesting debate going on around the legal blogosphere concerning Judge Taylor's recent ruling in the NSA lawsuit. Orin Kerr raises some interesting questions in a post at Volokh. He points out something that concerned me as well when I first read the ruling. I was not expecting a ruling in the case when it was issued, only a ruling on the state secrets privilege, meaning a ruling on whether the case would continue or would be dismissed. Instead, the judge ruled that the state secrets privilege did not apply in this case because no additional discovery was required…
stcynic | August 22, 2006Another outbreak of debate about originalism as the proper mode of constitutional interpretation has broken out all around the blogosphere, particularly among some of my favorite legal scholars. It began with Larry Solum lamenting the fact that so many legal scholars continue to use original intent and original public meaning interchangably in conversation and writing. That prompted agreement from Ilya Somin at the Volokh Conspiracy and disagreement from Brian Leiter (who rejects originalism entirely). Randy Barnett, one of the primary advocates of liberal originalism, hasn't had much to say…
stcynic | August 21, 2006I'll gladly join Radley Balko in promoting the group Law Enforcement Against Prohibition (LEAP). LEAP is a group of 5000 former DEA agents, prosecutors, police chiefs, and judges who are speaking out against drug prohibition and the corrosive effects it has on our legal system and our society. The drug war has resulted in massive corruption of our police forces and courts. It's resulted in an astonishing increase in our prison population (the incarceration rate in the US is vastly higher than any other nation, at a cost of tens of thousands of dollars to house each of around 4 million inmates…
stcynic | August 21, 2006Thanks to Mike Horn for sending me a link to this story about a guy convicted of a drug crime for nothing more than carring a lot of cash. Emiliano Gomez Gonzolez was pulled over while driving a rental car. He had a cooler with almost $125,000 in cash in it, which the police claimed was connected to drug trafficking and seized. The 8th circuit court of appeals upheld that seizure last week in an absolutely stunning decision. See the full ruling here.
The government's case here is laughable. When they found the money, they took Gonzolez and the rental car to the police station and had a drug…
stcynic | August 21, 2006Glib Fortuna has written a response to my post on the NSA ruling from Judge Taylor the other day. Predictably, it's full of illogical arguments and inflated rhetoric. He begins with a false dichotomy:
It would be redundant for me to provide my own analysis at this late date, so my focus is on the Left's reaction to the ruling. What I have found perfectly sums up how the different sides of the spectrum view today's world. Both sides believe they are fighting the greatest threat to civilized existence. The difference is, the Bush Administration (like the tactics or not) thinks that "Islamic…
stcynic | August 18, 2006I often agree with Glenn Greenwald on constitutional questions, but I think he's out to lunch in this post, where he criticizes those who criticized Judge Taylor's ruling in the NSA lawsuit. Many legal scholars have criticized many aspects of the ruling, and I think rightfully so. Personally, I found the ruling quite clever in its disposition of the state secrets privilege argument from the government, but that just sets the plate for the constitutional and statutory questions to be answered, and I think she did a fairly poor job of that. The Washington Post had an editorial about some of…
stcynic | August 18, 2006Here's Jack Balkin's analysis of Judge Taylor's ruling in the NSA warrantless wiretapping lawsuit. He likes the outcome, doesn't like the rationale and isn't sure it will survive an appeal. I tend to agree with him.
stcynic | August 17, 2006Anna Diggs Taylor, come on down. You're the next contestant on Name That Activist Judge. Taylor, a Federal judge in Michigan's eastern district, has granted the plaintiffs' request for an injunction against the NSA's warrantless surveillance programs. That, of course, will mean she will immediately be branded a judicial activist, a liberal ideologue, and a terrorist sympathizer by the STACLU crowd (without any actual legal analysis of the opinion, of course; the mere fact that she did something they don't like is all the proof they need, facts and legal reality be damned). Read the full…