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A Blog for and by ACS members nationwide.
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Wednesday, April 28, 2004
ACS in the News
Here's a recent article at Law.com from The National Law Journal on the growth of ACS and the reaction by the Federalist Society (nothing much new here, but nice to see our name in the news). Thanks to Life, Law and Libido for the pointer. Tuesday, April 27, 2004
The Right To Bear Arms In Iraq
Professor Balkin explores some of the hypocrisies of the NRA and George Bush in a delicious essay explaining why: "[T]he Republican theory of the Second Amendment clearly isn't the republican theory of the Second Amendment." Monday, April 26, 2004
Terrorist: Trial vs. Detention?
The ever-interesting Phil Carter has some comments at INTEL DUMP on the Department of Justice's policy of bringing minnow-level supporters of terrorism to trial, but merely locking up real terrorists like Khalid Sheikh Mohammed indefinitely without trial. He quotes a Slate essay on the topic. Apparently, the Zacarias Moussaoui fiasco has convinced policy makers at DOJ that the court system is inadequate to deal with the problem of real terrorists. This is a tough issue, and I'm reluctant to criticize the current policy too harshly. The prosecutors are stuck with a choice between bad alternatives. For what it's worth, my sense is that indefinite detentions without trial have long range costs, costs to both our democracy and also our broader national security interests, and that these costs probably don't outweigh the perceived short range benefits. Saturday, April 24, 2004
Good News and Bad on Victims' Rights Amendment
TalkLeft has good news and bad news: Supporters of the "Victims' Rights Amendment" have conceded that they don't have the votes needed for passage. The bad news? They are still trying to enact a statute that would place similar burdens on overworked federal prosecutors. Let's hope their newest inspiration meets the same fate. Thursday, April 22, 2004
Earth Day Mirth
For a bit of levity, I offer the following... Time Magazine, September 12, 1994 SECTION: PEOPLE; Pg. 93 HEADLINE: Sitting Duck BYLINE: By GINIA BELLAFANTE BODY: It is a rite of Texas politics that on the first day of dove season, candidates go ahunting -- with cameras in tow. GEORGE W. BUSH, a son of the former President, is running for Governor, and he dutifully appeared near dawn one day last week to do some dove shooting. Instead he shot a killdeer, a protected species whose flight and markings are distinctly undovelike. Bush was fined $130 and was mocked by aides to his opponent, Governor Ann Richards (who also was out that morning with a shotgun but didn't hit anything). Wednesday, April 21, 2004
No-Fly (The list not the zone)
FindLaw has this piece on the ACLU's no-fly lawsuit written by Prof. Anita Ramasastry (of UW Law School). Thanks to Begging to Differ for the link and further comment. Both the article and the BTD post presents a much more nuansed analysis than the recent Slate article by Tim Noah (which whines about people whining). As a side note: while I'm not in touch enough with the academic world to know where people fall in the atmosphere of academic prestige, If she's not, Prof. Ramasastry should be among the elite superstars. Not just her knowledge, but her expertise spans more subject areas than most academics could claim a working grasp of. In particular, her unique combination of experience in banking, technology and international law combines amazingly with her never ending passion for social justice. And thats not even mentioning the immense time she dedicates to students, something more professors could learn from. (oops, I guess that became the main post as opposed to a side note!) Tuesday, April 20, 2004
The Alien Tort Statute and the War on Drugs
From Steve Sanders via Email: I'm hoping that you and the blog's readership will find worthwhile a "bench memo" I've written on Sosa v. Alvarez-Machain, No. 03-339, on which the Supreme Court recently heard oral arguments. The case has important implications for the future of litigation over international human rights violations. Among those representing respondent Alvarez-Machain are the ACLU and ACS member and supporter Erwin Chemerinsky. The memo is available at http://www.stevesanders.net/sosabenchmemo.html.
Divisions among the traditional left II
Following up on my last post regarding confrontations within the progressive community, here's an interesting Seattle Times article on the black community and views of gay marriage as a civil rights issue. And while I have long been distressed by the weak support for gay rights in the mostly liberal black community (not as a whole, simply relative to attitude changes in society as a whole), I have always cautioned against comparing different civil rights movements. I think there's no doubt that gay rights is a civil rights movement but to try and get mileage out of unneeded comparisons seems somewhat exploitive and, as the article points out, it can be divisive. While many of the societal ills are similar (restricted marriage, job discrimination, general bigotry, violent hate) the differences are also distinct and each movement should be given the respect of that individuality. Monday, April 19, 2004
Death and Abstraction: Slate on Schriro v. Summerlin
Dahlia Lithwick at Slate has this article on the Schriro v. Summerlin argument at the Supreme Court. It's an interesting look at the inherent gap that lies between the complex legal arguments and the gritty facts of a case. It reminds me of the great job Peter Irons (A People's History of the Supreme Court, The Courage of Their Convictions) does in bringing to light the real life behind important cases. As a side note, her evaluation of how the court handles the human factor in cases ("One of the ways Supreme Court justices sleep at night is by abstracting cases—especially the capital cases—from all the tawdry human mess and drama.") is similiar to my own evaluation of conservative policy making in general. Sunday, April 18, 2004
Policy vs. Constitution
Professor Jack Balkin adds his two cents on a couple of questions making the rounds: (1) What laws do you think are constitutional that you oppose as a matter of policy? (2) What laws do you support as a matter of policy that you think are unconstitutional? Saturday, April 17, 2004
Victims' Rights Amendment?
TalkLeft warns that a proposed "Victims' Rights Amendment (VRA)" to the Constitution is under consideration. Hmmm... There are a lot of problems with legislation like this, some of which are outlined in the National Association of Criminal Defense Lawyers statement quoted by Talk Left. My experience as a federal prosecutor causes me to feel strongly about this: The practical effect of this type of measure is to impede effective law enforcement. Legislators view amendments like this as cost-free fixes, and don't bother to appropriate funds to expand the bureaucracy as needed. The result? Prosecutors, already overworked, are saddled with unfunded mandates, requirements that distract from the difficult, dirty job of putting criminals in jail. Let's hope we have legislators with enough guts to reject "feel good" legislation that has the actual effect of making things worse. Citizens for Fair Treatment of Victims has more. The proposed amendment reminds me of the Iraq invasion: Seems like a good idea on the surface, but as you get into it, you realize it makes things worse, not better. Friday, April 16, 2004
Prosecutor Dodging Responsibility for Dubious Sex Case
Balkinization correctly criticizes a prosecutor for trying to use a "Police Officer Made Me Do It" defense for poor judgment in deciding to prosecute a bogus oral sex case: The D.A. in this case is passing the buck, saying that it was up to the officer to make the call on whether to prosecute and therefore the case must go to trial. This is hogwash. If the D.A. believes that a vice statute is unconstitutional, she can exercise discretion, save the state and the defendant time and money, and simply drop the charges. Thursday, April 15, 2004
When the Left runs up against ... the Left
Our Poverty Law professor pointed out this article at NY Newsday. The article details how the union representing social service employees is upset about the city staffing homeless shelters with people in the Workfare program (welfare recipients, etc.). The conflict arose because those who had the positions previously were laid off a year ago. It's a case that goes to show the difficulty in working towards social justice. Both sides, arguably, have a very good point and are simply trying to protect important societal interests. So lets hope that both sides realize this and work towards a solution that maximizes the social welfare (can you tell I'm taking Law & Econ right now?). At a time when it is especially important for progessives to unite (despite our often splintered interests), a creative fix would be a happy ending.
A Request of Judges
Howard Bashman, author of the How Appealing blog, is looking for judges to volunteer for the 20 Questions interview in the up coming months. If you're an appellate judge (or, I would guess more likely, the clerk of a judge) who would be interested, its a great opportunity to address an array of issues and the day to day workings of being an appellate judge. Wednesday, April 14, 2004
How Appealing is moving on up
The excellent appellate court blog, How Appealing, is moving to the Legal Affairs website. The appellate news at How Appealing is unmatched and a helpful resource for any attorney. Additionally, 20 Questions for the Appellate Judge is a cool, insightful and rare look at the thinking of appellate judges. Congratulations to Howard Bashman and How Appealing. Tuesday, April 13, 2004
DC Area Book Club
An informal group of DC attorneys who are members of the Washington, DC chapter of the American Constitution Society would like to get together to read, discuss, and analyze the Federalist Papers from a progressive point of view--sort of a "Federalist Papers Book Club." If you would like to participate (or would like more information), please contact Gary at statutes@hotmail.com.
More activity around the ADA
At Begging the Question, they have this story on proposed legislation to clarify to the courts the intent of the ADA. Basically, it sounds like it would attempt to extend the ADA to the states and open up judicial jurisdiction where the courts have ruled the ADA doesn't current do so. While I definitely applaud the idea (and hope the legal intern whose job it probably was to draft the bill properly researched it), I share concern with BTQ that some of those decisions were too constitutional in nature to be rectified without court intervention. But without reading the cases themselves, I'll assume the congressional staff did their homework on this one. The other concern I share with BTQ is the likelihood of passage. But perhaps if the bill is delayed, any adverse decision in Tennessee v. Lane (see transcripts and video from a panel on this case at the ACS Website) can be rectified along with the rest of the decisions addressed in the bill. Monday, April 12, 2004
Cross Examination Skills & 9/11 Commission
Leading Republican intellectual Jim Pinkerton has an interesting observation about the power of a skilled cross examiner: "Condoleezza Rice began her testimony with a statement in which she minimized the possibility that anyone could have known what was happening. All intelligence prior to 9/11 was 'not specific as to time, nor place, nor manner of attack,' she said. But then 9/11 Commissioner Richard Ben-Veniste pressed her about that PDB memo, still rated as 'classified' by the government. Ben-Veniste was legally prohibited from mentioning even the title of the document. But he wasn't prohibited from asking Rice the title of the PDB. And she obliged: 'I believe the title was, 'Bin Laden Determined to Attack Inside the United States.'' Ouch. Just moments after she had said intelligence was 'not specific' about the place of attack, here's a presidential-level document warning, specifically, that al-Qaida's target wasn't overseas somewhere, but rather the United States itself. David Colton, Washington lawyer and veteran of the intelligence world, observes of this exchange: 'Ben-Veniste hypnotized her.' Colton adds, 'She fell into the rhythm of a smart lawyer's questions, and so blurted out the single most damning admission of these hearings.'"
When policy doesn't match interpretation: A wish list
Milbarge at Begging the Question posed the following questions in a recent post: (note: the questions below have been paraphrased and simplified. See the originial post and various replies for a discussion of the proper wording for the questions) 1> What laws do you find constitutional but do not support for policy reasons? 2> What laws do you find unconstitutional but would support for policy reasons? Proving the tangled web of blogs, the discussion soon expanded to several sites on my "Blogs I Read" list including Jacob Levy's reply at Volokh Conspiracy, a reply from Will Baude at Crescat Sententia, a reply by Matthew Yglesias at his site (he also frequently blogs at TAPPED), and finally Prof. Balkin posted at Balkinization. I really like the idea of throwing down the guanlet with both questions. I have always felt its important to ask "if you tell me you are making decisions based on judicial philosophy as opposed to political ideology, show me the times when the two are divergent." I've always suspected the Venn diagram of this dicotomy to have a suspiciously large intersection. But it seems to me that both questions should be relatively easy for academics to answer (though the answers are still interesting to read). It's easier to conceed theoretical points when cases and precedent don't hang in the balance. It would be very interesting to take it beyond theoretical and ask judges which of their decisions fit under one of the two questions (sounds like a job for Howard Bashman's excellent 20 Questions for Appealate Judges at How Appealing). I'm not sure it fit the essence of question 2 (original intend, if you will), but Prof. Balkin's answer that the electorial college should be changed has been something I have been promoting since I found it a ridiculous idea in my high school poli sci class. And while I'd have to give the idea more thought, I'm intrigued with his suggestion to make Supreme Court appointments last 18 years and allow each president 2 nominations. Off the top of my head for question 2, the most obvious case for me would be U.S. v. Morrison. Policy-wise, I support the sections of VAWA found unconstitutional, but as a liberal strict constructionist, I don't feel the commerce clause extends that far (same can probably be said for the gun free zones in Lopez). The list of answers to question 1 would be much longer. There are plenty of constitutional laws I don't agree with (Sunny Bono Copyright Act for example, though Prof. Lessig's arguments in Eldred definitely appealed to me). Sunday, April 11, 2004
Prosecuted for Failing To Follow Doctor's Advice?
TalkLeft has an update on the prosecution of a woman for refusing to follow a doctor's recommendation to have her twins delivered by caesarian section.
Balkin on Regulation vs. Legislation
Professor Jack Balkin explains why, though the Bush Administration controls all three branches of government, it prefers to effect policy changes through regulations instead of legislation: The reason is that most administrative regulation escapes public comment unless, as in this New York Times story, it is specifically mentioned and critiqued. Congress might balk at the most radical reforms, and many Republicans will not want to be on record as voting for changes that could get them into trouble with swing voters, especially when reforms can be achieved through new administrative regulations (or effective repeal of older regulations). Hence using the administrative state to change environmental law allows the President to get rid of regulations he does not like and impose his ideological vision on a wide array of areas of regulation while protecting members of the President's own party in Congress from political criticism. Saturday, April 10, 2004
2004 ACS National Convention
The American Constitution Society web site has an online Registration Form for the 2004 ACS National Convention. It will be held June 18-19 in Washington, DC. Last year's event sold out, so those interested in attending this stellar event should move expeditiously. Thursday, April 08, 2004
Prepping for SCOTUS
The AP has a story on Michael Newdow's prep for his Supreme Court arguments in the Pledge of Allegiance case. While ACS isn't mentioned, at least two chapters (mine at the University of Washington, and Boalt Hall) hosted Dr. Newdow for mock arguments. The UW chapter had also hosted Dr. Newdow last year immediately after he won at the 9th Circuit. Thanks to Tom Goldstein's SCOTUS blog for pointing out the article. Tuesday, April 06, 2004
Making Administrative Law Interesting (and scary in this case)
The New York Times Magazine published this article by Bruce Barcott on the environmental regulatory changes (specifically new source review) made by the Bush administration. These regulations, which dictate what level of upgrades trigger a requirement to install new pollution controls, have not only seriously undercut the intent of the Clean Air Act but will likely let those who broke the previous rules off the hook. Barcott also discussed the article on Seattle's NPR affiliate KUOW. I was first made aware of the dangers around "new source review" last summer in my Administrative Law course with Prof. Victor Flatt, an environmental and administrative law expert (not to mention a top rate teacher). He argued there, as he does in this Houston Chronicle article, that the change isn't simply an allowable interpretation by an administrative agency, but that the EPA has in fact overstepped its enabling statute by negating the plain meaning of substantial upgrades. Prof. Flatt, along with others, also published an analysis of the "notice-and-comment" process using their attempt to comment on the (at that time) proposed "new source review" regulations as an example. The paper is an interested study in how a group of legal scholars tried to maneuver the statutorily required notice-and-comment process and the lessons learned from that. Prof. Flatt has also made several of the actual comment letters available online. Thanks to the Balkinization blog for initially pointing me to the article and a great comment on the importance of who is in the White House (are you listening Mr. Nader?) due to the power of administrative agencies (and thereby the under-appreciated importance of admin law). Sunday, April 04, 2004
Tracking Journalist/Source Calls At DoJ
A Columbia Journalism Review article by Doug McCollum raises questions about the willingness of the Department of Justice to improperly monitor phone calls in the pursuit of leakers. The incident involved a former attorney at the Department of Justice named Jesselyn Radack, who had allegedly had leaked e-mails to Newsweek reporter Michael Isikoff, after she left the department. It's too bad that so little enthusiasm is being shown by Bush for tracking down the perpetrators of a much more serious leak, the outing of undercover CIA agent Valerie Plame. Her outing damaged national security by making it less likely that human sources like the ones Plame ran will cooperate with the U.S. in the future. Thursday, April 01, 2004
Air America Goes Live
Liberal talk radio is now a reality. For those in NY, LA, Chicago, Portland, and middle CA, check your airwaves. For the rest of us, listen online at AirAmericaOnline.com. |