law
stcynic | January 27, 2006So I'm having a conversation with my buddy Dan this morning about constitutional law and while talking about how a strict formalist would argue that the only part of a court ruling that is truly binding is the court's holding alone, not the explanation for that holding (or "dicta"), I get this epiphany about the Gonzales v. Oregon assisted suicide case, particularly about Scalia's dissent. The crux of the case was whether the court must give deference to the Attorney General's interpretation of a statute or not. Following the passage of Oregon's assisted suicide law, AG John Ashcroft made a…
stcynic | January 26, 2006Via Radley Balko comes this frightening story of a legal system out of control:
Fairfax County's police chief said yesterday that one of his officers accidentally shot and killed an optometrist outside the unarmed man's townhouse Tuesday night as an undercover detective was about to arrest him on suspicion of gambling on sports.
Police had been secretly making bets with Salvatore J. Culosi Jr., 37, since October as part of a gambling investigation, according to court records. They planned to search his home in the Fair Oaks area, just off Lee Highway, shortly after 9:30 p.m.
Culosi came out…
stcynic | January 25, 2006Timothy Sandefur has the first in what will be a series of posts by all of us at Positive Liberty about Akhil Amar's new book, America's Constitution: A Biography. Sandefur was kind enough to buy copies of this book and send them to me, Jon and Jason so we could all read it and comment on it. I'm still only about 1/4 of the way through the book so it may be a while before I add much of substance to the discussion, but I agree with Sandefur's overall endorsement of Amar's work. There are areas where I strongly disagree with him, but there is no question that he is among our finest…
stcynic | January 24, 2006I mentioned a few weeks ago the situation at the University of Wisconsin where the university told dorm RAs that they could no longer host bible studies in their dorm rooms because they were afraid that would make them less "approachable" to other students. This was a ludicrous argument then and it still is, especially since the university had no problem with RAs engaging in all sorts of controversial political and cultural activities that might similarly put off other students. UW temporarily suspended the policy pending review and appointed a committee to make recommendations.
That…
stcynic | January 23, 2006Todd Zywicki has an interesting post reacting to this article by Alan Dershowitz, in which Dershowitz suggests some changes in the Senate confirmation process for Supreme Court nominees. Dershowitz argues that the Senate judiciary committee lacks the expertise to ask good questions to judicial nominees (he is certainly correct there) and that they ought to do what many other committees do and hire attorneys with constitutional expertise to do the questioning. He also argues that this would cut down on Senate posturing and preening for the cameras.
The only way to remedy these problems is to…
stcynic | January 20, 2006It's always nice to see folks come around to what you've been saying for years (not that I had anything to do with it). Here's Stephen Bainbridge on Scalia:
There is much to be admired about Scalia. It no longer seems possible, however, to believe that he is developing a coherent conservative jurisprudence.
stcynic | January 19, 2006I find this highly amusing. The folks at StopTheACLU think that they're actually going to be able to intervene in the ACLU's lawsuit against the NSA. Intervention is a term of art in the law. It means that you actually get added as a party to the proceedings. An attorney named Debbie Schlussel, who appears to be more of a spokesmodel than a scholar (her bio notes proudly that her online fan club is the second largest, behind only Ann Coulter), is apparently going to file motions to intervene on behalf of citizens who disagree with the ACLU and our pals at StopTheACLU jumped at the chance to…
stcynic | January 19, 2006One of the great things about a group blog is that you get to hear different perspectives on the same topic. That's especially interesting when your co-bloggers are as engaging as mine are at Positive Liberty. In response to my essay on Blackstone and the common law, I've gotten replies from both Rowe and Sandefur. I'm happy to find out I didn't screw up anything too badly. It was a new subject for me and, though I did my research, I was still afraid I'd missed something crucial. Both of them agreed with my basic argument and each added some detail and nuance that helped me understand the…
stcynic | January 18, 2006Eugene Volokh has a post on the subject of amicus briefs that was prompted by the exchange between he, Clayton Cramer and myself over the ACLU. Cramer criticized the ACLU for not filing a brief in a particular case (without ever bothering to answer if he actualy knew they hadn't filed one or just assumed so because they aren't mentioned in the ruling). Volokh and I both pointed out that this is a very weak basis for criticizing the ACLU, or any public interest legal group, because there are lots of reasons why they may not have filed a brief in a particular case.
They may not have known of…
stcynic | January 17, 2006Very important Supreme Court ruling today, which upheld Oregon's assisted suicide law, passed twice by popular referendum. The ruling was 6-3 and fell along fairly predictable lines. Justice Kennedy wrote the majority opinion, which was joined by Justices O'Connor, Souter, Ginsburg, Stevens and Breyer. Justice Scalia filed a dissenting opinion, joined by Chief Justice Roberts and Justice Thomas, who also wrote his own dissent. I haven't had time to read over the ruling yet, but I will certainly do so. From the abstract, it looks like it was a highly technical decision involved how much weight…
stcynic | January 17, 2006Social conservatives, advocates of "morals legislation" and Christian Nation apologists have a habit of quoting William Blackstone on the essentially moral nature of the law. For a good example, see this article by Brannon Howse. Ignore the fact that he amusingly calls Blackstone "America's foremost legal scholar at the time of the Founders" (Blackstone was British, not American; Howse might have been tipped off to that when he quoted from Blackstone's Commentaries on the Laws of England). They love to cite Blackstone because he famously argued that there are two laws, the laws of man and the…
stcynic | January 16, 2006Matt Welch at Reason points out an important connection between Martin Luther King and recent controversies involving government surveillance: MLK himself was bugged illegally by J. Edgar Hoover as part of a longstanding and broad campaign of undermining peaceful dissident organizations. They bugged civil rights leaders and organizations and if they found out anything that might be embarrassing they used it to blackmail them into stopping their civil rights advocacy. This is the obvious answer to those who say we shouldn't worry about unchecked presidential authority for NSA wiretaps, that…
stcynic | January 12, 2006One of the ridiculous little rituals that has come to surround every Supreme Court nomination these days is the stare decisis dance. Everyone knows what it's really about; it's about abortion and Roe v Wade. No nominee is going to come right out and say that they think Roe should be overturned. Roe has become a sacred cow in American politics, despite the fact that legal scholars pretty much agree that it's a very badly written and badly reasoned decision. I'm pro-choice but I can certainly recognize how weak this decision was.
Still, no nominee can afford to say that without cranking up the…
stcynic | January 12, 2006Jacob Sollum has an interesting article at Reason about the different concerns of the Republicans and Democrats when it comes to Judge Alito's track record. First, he points out how the phrase "judicial activism" has now been borrowed by the Democrats, who use it just as absurdly as the Republicans have been doing for decades:
Once you realize activist has become a bipartisan epithet for judges who reach conclusions different from one's own, the label makes sense, although it's not very informative. Since one man's judicial activism is another's sound interpretation, poopyhead would do just…
stcynic | January 10, 2006Yesterday I highlighted the absurdities of Sen. Cornyn's opening remarks about Judge Alito's nomination. Today I think I'll point the spotlight at Sen. Kennedy on the other side of the aisle. His opening statement (scroll down) was no less ridiculous. Kennedy referred to a study by Cass Sunstein, a distinguished liberal legal scholar from the University of Chicago, of Judge Alito's opinions:
In an era when too many Americans are losing their jobs or working for less, trying to make ends meet, in close cases Judge Alito has ruled the vast majority of the time against the claims of the…
stcynic | January 9, 2006A friend sent me this item in the news this morning, which is appropriate given the recent discussions of using noms de plume on the internet. Under a new law signed by the President last week, sending any email or posting any messages that are "annoying" to others without revealing your identity is a crime.
This ridiculous prohibition, which would likely imperil much of Usenet, is buried in the so-called Violence Against Women and Department of Justice Reauthorization Act. Criminal penalties include stiff fines and two years in prison.
"The use of the word 'annoy' is particularly…
stcynic | January 4, 2006My buddy Dan just emailed me about this, having read about it on Brian Leiter's law school blog. The University of Michigan Law School has scored a major coup by hiring Doug Laycock away from the University of Texas. Prof. Laycock is one of the leading constitutional scholars in the nation, particularly on church/state issues. The last decade has seen U of M lose many prominent legal scholars to other schools, so it's a very big deal for them to reverse that trend and attract a scholar of this importance from another school.
As is common these days, luring him away was a package deal. His…
stcynic | January 4, 2006I don't know what the deal is with Alabama judges, but Tom Parker of the Alabama Supreme Court seems to want to follow in Roy Moore's footsteps. After a recent case that he had recused himself from went against what he'd hoped, he wrote an op-ed piece blasting his fellow justices for "surrender[ing] to judicial activism." It was a death penalty case where the man convicted was a minor at the time of the crime, and Parker was the state prosecutor in the case so he had to recuse himself. On appeal, the Court changed his sentence to life in prison because the US Supreme Court had ruled in the…
stcynic | January 3, 2006Radley Balko uncovered this and posted the text on his blog. It's from the Dallas Morning News, October 20, 1999, while he was campaigning for President:
Gov. George Bush said he backs a state's right to decide whether to allow medical use of marijuana, a position that puts him sharply at odds with Republicans on Capitol Hill. "I believe each state can choose that decision as they so choose," the governor said recently in Seattle in response to a reporter's question.
We'll put that one right next to his campaign position that the McCain-Feingold campaign finance reform act was…
stcynic | January 1, 2006Jay Wexler, a colleague of Randy Barnett at Boston University law school, has compiled the first study of how funny each Supreme Court justice is. He did so by counting up the number of times each one of them said something that provoked laughter during oral arguments in the 2004-2005 term. And to no one's surprise, Justice Scalia led the way:
Justice Antonin Scalia's wit is widely admired, and now it has been quantified. He is, a new study concludes, 19 times as funny as Justice Ruth Bader Ginsburg...
Justice Scalia was the funniest justice, at 77 "laughing episodes." On average, he was good…