American Constitution Society of New England School of Law

How a Group of Law Students Shut Down the First Guantanamo Prison Camp

2005-11-08T10:47:00.000-05:00

Room 305 at 4:30 pm
Monday, November 14th at
New England School of Law

Meet Brandt Goldstein, attorney and author of "Storming the Court: How a Group of Yale Law Students Sued the President - And Won" . Golstein will speak about the book as well as what law students can do when they put their minds to it. And there's even free pizza!

Goldstein is entertaining and enthusiastic about his topic and his visit promises to be a lot of fun!

Copies of the book will be available at the event.

A week of Fair v. Rumsfeld - Nov. 7 at NESL, Nov. 11 at BC

2005-10-28T14:24:00.000-04:00

Warm up event:
Monday, Nov. 7, 3:30-4:30, Room 305 at New England School of Law.
Prof. Alan D. Minuskin, Associate Clinical Professor of Law at BC Law School who has been working on the FAIR side of the case will be on hand to discuss the case.

All-day event:
FAIR v. Rumsfeld: Exploring the Solomon Amendment Challenge
At Boston College Law School
Friday, November 11, 2005

The Coalition for Equality, the American Constitution Society, the Federalist Society, and students of Boston College Law School are proud to present this day-long conference on FAIR v. Rumsfeld, the landmark case challenging the Solomon Amendment, a federal law which withholds government funding from universities that treat military recruiters differently than non-discriminatory recruiters.

The U.S. Supreme Court will hear the arguments on Dec. 6, and this conference will preview the case's many dimensions and implications. Panels will explore the expressive association, compelled speech, and unconstitutional conditions arguments of the case. A luncheon address by Joshua Rosenkranz, lead counsel for FAIR, will be followed by a moot court, presided over by Herbert Wilkins, former Chief Justice of the Massachusetts Supreme Judicial Court, in which FAIR President Prof. Kent Greenfield will face nationally-recognized appellate advocate and "How Appealing" author Howard Bashman.

Please join Profs. Mark Tushnet, Paula Johnson, Larry Yackle, Diane Mazur, Charles Baron, Kathleen Clark, Bruce Hay, Joseph Zengerle, Margaret Burnham, Tobias Wolff, Taylor Flynn, Michael Gerhardt, and many more for this exciting day.

Free and open to the public. Lunch provided, with reception to follow the presentations. For more information, please seewww.bc.edu/clubs/cfe.

Volunteers Needed for Legal Protection for Gender-Variant People Discussion at Suffolk Law

2005-10-28T10:26:00.000-04:00

On Nov. 1st, Suffolk Law School will be hosting a high-profile panel discussion entitled “Legal Protection for Gender-Variant People: Challenging Discrimination”.

Participants include two well-known Suffolk professors – Michael Avery and David Yamada – and the Assistant Attorney General and Director of the Employment Discrimination Project in the Civil Rights/Civil Liberties Division of the Attorney General’s office. From what we’ve been told, the Boston Globe and some wire news services will also be covering the event.

The Suffolk University Queer Law Alliance is looking for a few volunteers to help out and make sure the event runs smoothly. If you’re interested in volunteering your time for a few hours, please contact Laura Freedman at lfreedman@suffolklaw.com as soon as possible.

It should be an event that triggers interesting discussion and thought.

ACS Northeast Regional Student Leadership Conference

2005-10-25T16:24:00.000-04:00

Registration for the "first-ever" Northeast Regional Student Leadership Conference is now open (go to www.hlacs.org)! The conference is free for ACS members (go to www.acslaw.org and join for $10) and offers a great opportunity to network, discuss and learn.

The featured event of the one-day conference is a panel discussion on "Equality and Justice Through the Lens of Hurricane Katrina." While some details are still being confirmed, there will be a lunch with a keynote speaker and student discussion panels in the afternoon.

At this writing there are approximately 20 students from NY coming, along with numbers from the Boston area ACS chapters at Harvard (the host), New England School of Law, Boston College, Boston University, Northeastern School of Law and Suffolk University. This is a great opportunity for networking with like-minded individuals with whom you could potentially be seeing for the rest of your professional lives.

For more details on speakers and the conference agenda, check out www.hlacs.org regularly.

The Passing of Legend

2005-10-25T09:49:00.000-04:00

School teachers, when teaching the unit on Civil Rights, usually use the illustration of a petite, unassuming but iron-willed black woman who refused to give up her seat in the front of a bus to a white man. Her challenge of the law sparked a boycott that gave critical fuel to the already smoldering civil rights movement.

Ms. Parks passed away on Monday at the age of 92, but her act will always be a classic illustration of a watershed event which caused a nation to sit up and take notice of the wrongs being perpetrated under the color of (ridiculously stupid) law.

From the Reuters story by Tom Brown this morning:

"Parks was not the first black Montgomery bus rider to be arrested for failing to give up a seat, but she was the first to challenge the law. For years before her arrest, Parks and her husband had been active with local civil rights groups, which were looking for a test case to fight the city's segregation laws.

Four days later, she was convicted of breaking the law and fined $10, along with $4 in court costs. That same day, black residents began a boycott of the bus system, led by a then-unknown Rev. Martin Luther King Jr.

The boycott lasted 381 days, and the legal challenges led to a U.S. Supreme Court decision that forced Montgomery to desegregate its bus system and put an end to 'Jim Crow' laws separating blacks and whites at public facilities throughout the South. "

Employment Law & First Amendment Protections

2005-10-21T10:56:00.000-04:00

Richard Ceballos may be in trouble for one simple reason:
he performed his job exactly as he was supposed to

Supreme Court Case Discussion of Garcetti v. Ceballow
re: Job related speech and First Amendment protections

Tuesday, October 25, 2005 / 5:15-5:50 pm / Room 502

Snacks provided!

**Save the dates**

November 7, 3:30-4:30 pm - Rumsfeld v. FAIR discussion with Prof. Alan Minuskin, Associate Clinical Professor of Law, Boston College Law School and an attorney working on the FAIR side of the case!Re: Solomon Amendment and impact on First Amendment protection.

November 14, 4:30-5:30 pm - Reading and Book signing with Attorney and Author: Brandt Goldstein: Storming the Court: How a Band of Yale Law Students Sued the President--And Won (Scribner, Sept. 2005) – note: Warner Brothers just bought the movie rights to this book!

Miers Senate Questionnaire Responses

2005-10-19T11:46:00.000-04:00

You can read all 57 pages of the Senate questionnaire completed by Supreme Court nominee Harriet Miers if you care to. She's not very clear on a lot of dates - they're either "not available" or are in a range. Some of them aren't incredibly relevant, such as the time during which she was a "Computer Center Helper" at the Southwestern Medical School, but I would have thought that she could have come up with something more narrow than "Sometime between 1963 and 1972."

Anyway, you can link to her Financial Disclosure Report and Financial Statement, along with the Final Questionnaire, from Sen. Patrick Leahy's website.

The Senate hearings on her nomination will commence on November 7.

Saturday's Movie: Deadline

2005-10-12T12:33:00.000-04:00

ACS of NESL will be presenting the documentary Deadline this Saturday (Oct. 15) in room 507, from 2-4 pm. Full details about this film can be found at the official website, but here's the blurb:

In January 2003, Republican Governor George Ryan granted blanket clemency to all 167 people on death row in Illinois, commuting their sentences to life without parole. With astounding access to special clemency hearings, the death row prisoners, exonerated men and Governor Ryan himself, directors Katy Chevigny and Kirsten Johnson bring us directly into the emotional and legal storm surrounding Ryan's extraordinary decision.

From Anita Gates of the New York Times: The film includes comments from a number of experts, including the author and lawyer Scott Turow and representatives of organizations like the NAACP Legal Defense and Educational Fund and the Center on Wrongful Convictions in Chicago. Stephen Bright, director of the Southern Center for Human Rights in Atlanta, laments the opinion of many politicians that "the ultimate way to show you're tough is the death penalty." No wonder Governor Ryan said, on the day he announced his decision, "I didn't believe I would do it myself."

Update / Very Cool Additions to ACS of NESL Event Calendar

2005-10-05T15:27:00.000-04:00

Below is an updated calendar for ACS of NESL Fall Events!

Two items to note:
(1) The November 7 discussion of Rumsfeld v. FAIR will have an outside speaker, notably Alan D. Minuskin, Associate Clinical Professor of Law at BC Law School who has been working on the FAIR side of the case!

(2) Reading and Booksigning with Attorney and Author Brandt Goldstein
Storming the Court: How a Band of Yale Law Students Sued the President--And Won (Scribner, Sept. 2005) - note: Warner Brothers just bought the movie rights to this book!

The true story of a group of Yale law students who took on the U.S. government to free innocent political refugees held at Guantanamo Bay in the early 1990s. Goldstein says, "If I've done my job right, I've written a human rights legal thriller - a tale about passionate idealists determined to hold America to its highest principles . . . and the collision between those principles and the harsh realities of the political world and the courts." For more information, visit http://www.brandgoldstein.com/
Monday, November 14, 2005 / 4:30-5:30 pm / ROOM TBA - Watch for notices!

As always, plan ahead and bring a friend!

OCTOBER
SCT Kickoff Discussion with Prof. Lawrence Friedman: Gonzales v. Oregon –
Re: assisted suicide and the Controlled Substances Act.
Oct. 5, 2005 / Room 504 / 5:00 – 5:50 pm.

ACS Movie Matinee: “Deadline”
Documentary on the Illinois governor and death row.
Oct. 15, 2005 / Room: 507 / 2:00 - 4:00 pm.

SCT Case Discussion: Garcetti v. Ceballow
Re: Job related speech and First Amendment protections
Oct. 25, 2005 / Room 503 / 5:14 – 5:50 pm

NOVEMBER
SCT Case Discussion: Rumsfeld v. Forum for Academic and Institutional RightsSpeaker: Alan D. Minuskin, Associate Clinical Professor of Law, Boston College Law Schooland an attorney working on the FAIR side of the case!
Re: Solomon Amendment and impact on First Amendment protection.
Nov. 7, 2005 / Room 303* / 3:30 – 4:30 pm
*look for possible room change, as ACLU and other groups have expressed interest in co-sponsoring.

Reading and Booksigning with Attorney and Author: Brandt Goldstein
Storming the Court: How a Band of Yale Law Students Sued the President--And Won (Scribner, Sept. 2005) – note: Warner Brothers just bought the movie rights to this book!
This is the true story of a group of Yale law students who took on the U.S. government to free innocent political refugees held at Guantanamo Bay in the early 1990s. Goldstein says, “If I’ve done my job right, I’ve written a human rights legal thriller – a tale about passionate idealists determined to hold America to its highest principles . . . and the collision between those principles and the harsh realities of the political world and the courts.”
Monday, November 14, 2005 / 4:30-5:30 pm / ROOM TBA – Watch for notices!

Movie #3: Ghosts of Rwanda – opening remarks from Prof. Ansah of NESL.
Documentary marking the 10-year anniversary of the Rwanda genocide.
Nov. 15, 2005 / Room 507 / 8:00 – 10:00 pm

Gonzales v. Oregon Discussion - Wed., Oct. 5

2005-10-03T13:15:00.000-04:00

American Constitution Society of NESL
presents
Supreme Court Case Discussion with Prof. Lawrence Friedman

Gonzales v. Oregon, 368 F.3d 1118 (9th Circuit 2004)
Is prescribing a lethal dose of drugs a legitimate medical use?

ACS of NESL kicks off the new Supreme Court term of the Roberts Court with a discussion of States Rights, Federal Preemption, and Assisted Suicide

Wednesday, Oct. 5, 2005
Room 504
5:00 – 5:45 pm.

ACS Boston Lawyer Event: "What's at Stake in the Upcoming Supreme Court Term?"

2005-09-27T09:24:00.000-04:00

The Roberts Nomination and the O'Connor Vacancy: What's at Stake in the Upcoming Supreme Court Term?"

A panel featuring Charles Fried, Beneficial Professor of Law, Harvard Law School and former Solicitor General under President Ronald Reagan; Kent Greenfield, Professor of Law, Boston College Law School and Elliot Mincberg, Vice President, General Counsel, and Education Policy Director, People for the American Way. Moderated by Renee Landers, Associate Professor of Law, Suffolk University Law School.

Thursday, September 29, 6:00 pm-7:30 pm. The Brown Rudnick Center for the Public Interest, One Financial Center, Boston. Refreshments will be served. Due to a generous grant from the Open Society Institute, this event is free.

RSVP to Boston@ACSLaw.org by Wednesday, September 28 at 5pm.

"Deadline" Rescheduled for Constitution Day Forum with Justice Cordy

2005-09-22T11:59:00.000-04:00

The ACS of NESL's screening and discussion of "Deadline," the movie regarding the Illinios governor's pardoning of several and granting of clemancy to the rest of the death row inmates, has been re-scheduled for October 15, 2005 in order to not conflict with the Lawmatters Discussion to be held by the NESL Faculty and the The Center for Law and Responsibility. ACS's screening of "Unconstitutional" will be rescheduled at a later date, probably during the Spring 2006 semester.

Constitutional Law Forum to Feature Justice Cordy

The Center for Law and Social Responsibility, in conjunction with the New England School of Law's celebration of Constitution Day 2005, presents its first LawMatters discussion for the academic year. "Changes on the Supreme Court and the Future of American Constitutionalism" will be held on September 27 at 4 pm in the Cherry Room on the second floor of the library.

Justice Robert J. Cordy of the Massachusetts Supreme Judicial Court will join Constitutional Law professors George Dargo, Sonya Garza, Lawrence Friedman, and Elizabeth Spahn for a discussion with the New England School of Law Community. All students are welcome and urged to participate. Light refreshments will be served.

Massachusetts: No Amendment

2005-09-14T15:08:00.000-04:00

The constitutional convention today featured less than two hours of debate today before the combined legislative bodies rejected the proposed constitutional amendment that would bar marriage equality but establish civil unions, 157-39.

There is the possiblity of a citizen initiated ballot question in November 2008 if the question's backers can collect the 65,825 required signatures and receive 25% of the votes in the legislature in two consecutive sessions. That question would bar same sex marriage, bar civil unions and nullify existing marriages between same sex couples.

US District Court: Pledge Unconstitutional

2005-09-14T14:26:00.000-04:00

US District Judge Lawrence Karlton relied on a 2002 9th Circuit decision today when he ruled that requiring children to recite the Pledge of Allegiance (in its current form) violated their right to be "free from a coercive requirement to affirm God." The decision granted standing to two families.

The 2002 decision was in favor of plaintiff Michael Newdow, who is representing the families in the present case. Newdow's own case went to the Supreme Court last year, but the high court determined that he had no standing, as he was not the custodial parent of the school child involved.

4th Circuit: Detain At Will

2005-09-09T16:22:00.000-04:00

A 3-judge panel of the 4th Circuit Court of Appeals today ruled that the President has the authority to detain indefinitely a US citizen suspected of involvement with al-Quada. No charges, hearing or trial necessary. Judges Michael Luttig, M. Blane Michael and William B. Traxler, Jr. reversed a district court order that Jose Padilla must be charged or released, as his now three-year detention has been in violation of his due process rights.

Attorney General Gonzales sees it this way: As the court noted today, the authority to detain enemy combatants like Jose Padilla plays an important role in protecting American citizens from the very kind of savage attack that took place almost four years ago to the day," Gonzales said.

He did not mention that Padilla is at this point only suspected of criminal activity, as no charges have been brought, let alone convictions entered. Whether he is guilty of the allegations or not, at this point he is no more than an uncharged suspect, and this decision poses a threat to anyone labeled an enemy by the executive branch. No hearing necessary, no complicated charges required, just away you go.

Padilla will likely appeal (once more) to the US Supreme Court. The high court avoided ruling on the substance of the previous habeus appeal by determining that his case had been filed in the wrong jurisdiction (Rumsfeld v. Padilla, 542 U.S. 426).

The case decided today is Padilla v. Hanft.

The Roberts Court?

2005-09-05T11:52:00.000-04:00

With Pres. Bush's nomination of Judge John Roberts to the position of Chief Justice, the Associate Justice slot currently held by retiring Justice O'Connors is back in play. How will this change affect the dynamic of the Roberts confirmation hearings? Will the senators have enough time to prepare properly for hearings of a similar nature but with even greater long term impact? Will the president continue in his efforts to move the court to an even more conservative bent, or will he attempt to heal some wounds by nominating someone more moderate?

Feel the need to discuss these and other questions? Come to the ACS Welcome/Information Reception in the Cherry Room this Thursday, September 8 from 4:30-6:00 and explore the issues with NESL students and professors, members of the Boston Lawyers Chapter and members of other Boston area student chapters. Everyone's got their opinion - let's hear yours.

Chief Justice William Rehnquist, 1924-2005

2005-09-04T08:59:00.000-04:00

Supreme Court Justice William Rehnquist died yesterday at the age of 80. He had been diagnosed with thyroid cancer last fall and missed part of the court's term, but had returned to work and pledged to continue to serve.

The nation is already preparing for the confirmation hearings on the nominee to replace retiring Justice Sandra Day O'Connor. At first Pres. Bush's nomination of Appellate Court Judge John Roberts was seen by many to be a fairly moderate choice in preparation for a more hard-line Chief Justice nominee in the future, but as more information has been brought to light about Judge Roberts, the more controversial he has become.

The president was likely hoping to have more time after the Roberts hearings to repair any goodwill problems that might arise, but he won't have that luxury at this point. The Bush Administration is already facing severe criticism in the last week for what is perceived by many to be federal mishandling of the hurricane that savaged the Gulf Coast.

This could turn into a series of three confirmation hearings, should Pres. Bush decide to elevate a sitting justice to the CJ position. Many have speculated that the president would like to see Justice Antonin Scalia, whom he has described as his model for a nominee, wearing the gold stripes. A Scalia confirmation battle would be extremely divisive, given the Justice's hard line conservative philosophy towards constitutional law, and his originalist, text driven interpretation which does not allow for the application of the Constitution to evolve with society.

ACS of NESL Welcome/Info Reception - Sept. 8

2005-09-02T18:12:00.000-04:00

It's 2005. Do you know where your Constitution is?

attend the

American Constitution Society Welcome/Information Reception

Learn about the purpose and mission of the ACS
Discuss important issues involving our country and our world
Join a network of progressive students, professors, lawyers

Thursday, September 8, 2005
4:30 - 6:00 pm in the Cherry Room

Guest Speaker: Professor Frank I. Michelman
Member, National ACS Board of Advisors and Harvard Law Professor

Also join in a casual discussion of the upcoming Roberts nomination hearings with NESL Con Law Profs!

Refreshments will be served

(Non-NESL students and Boston Lawyers Chapter Members welcome - if this is you, please RSVP to ACS@nesl.edu!)

Judiciary 101

2005-08-26T10:30:00.000-04:00

AP Writer Darlene Superville has provided a public service article for anyone who is interested in the upcoming confirmation hearings of Supreme Court nominee John Roberts, but who isn't up on the lingo. Students just starting their Constitutional Law class might want to take a look, too.

She provides an explanation of terms, plus a description of how the concept might come into play during the upcoming hearings.

These are the terms she chose to explore:

Originalist
Textualist
Strict Constructionist
Stare decisis
Judicial restraint
Judicial activism
Commerce Clause

The selection of terms in and of themselves says something about the nominee and the administration.

Ginsburg Confirmation Analysis

2005-08-23T09:04:00.000-04:00

ACS has posted an interesting analysis by Washington attorney Kristina Silja Bennard, in which she takes a look at the confirmation hearings of then-Supreme Court nominee Ruth Bader Ginsburg. The 20-page article is titled "The Confirmation Hearings of Justice Ruth Bader Ginsburg: Answering Questions While Maintaining Judicial Impartiality." From the ACS announcement regarding the piece:

The report examines the extent to which then-nominee Ginsburg provided substantive answers to Senators' questions exploring her judicial philosophy. While some pundits have claimed that Senators are not authorized to inquire about Judge Roberts's judicial philosophy, the Ginsburg hearings suggest otherwise. Bennard establishes, for example, that Justice Ginsburg answered questions about current and controversial legal issues with candor, including questions about her personal views of contentious social issues, her judicial methodology and her approach to constitutional and statutory interpretation.

The article includes many excerpts from Justice Ginsburg's hearings.

California Supreme Court on Lesbian Parents

2005-08-23T08:26:00.000-04:00

At the recent ACS National Convention, I attended two breakout sessions on GLBT issues involving marriage and parenting. One was a student discussion group, and the other was a panel (video of the panel here). Both were lively and well-attended.

Yesterday the California Supreme Court issued decisions in three cases involving parental rights and responsibilities after the breakup of lesbian couples who jointly decide to conceive and raise children. The court declared that lesbian couples have the same ongoing rights and responsibilities as heterosexual couples who utilize reproductive technology, whether or not they have registered under California's domestic partnership registry.

More details at NESL OUTLaws.

Fall Calendar of ACS of New England School of Law

2005-08-14T13:58:00.000-04:00

Unless otherwise noted, all events are at New England School of Law, 154 Stuart Street, Boston, MA.

SEPTEMBER
ACS Welcome/Intro Reception
Learn more about ACS, at NESL, local attorney level and national.
Sept. 8, 2005 / Cherry Room / 4:30 – 5:30 pm

ACS Movie Night #1: “Deadline”
Documentary on the criminal justice system in Illinois.
Sept. 27, 2005 / Room: 507 / 8:00 – 10:00 pm.

OCTOBER
SCT Kickoff Discussion: Gonzales v. Oregon –
Re: assisted suicide and the Controlled Substances Act.
Oct. 5, 2005 / Room 504 / 5:00 – 5:50 pm.

Matinee: “Unconstitutional”
Investigative report that lets those directly affected by the Patriot Act to tell their own stories.
Oct. 15, 2005 / Room 507 / 2:00 - 4:00 pm

SCT Case Discussion: Garcetti v. Ceballow
Re: Job related speech and First Amendment protections
Oct. 25, 2005 / Room 503 / 5:14 – 5:50 pm

NOVEMBER
SCT Case Discussion: Rumsfeld v. Forum for Academic and Institutional Rights
Re: Solomon Amendment and impact on First Amendment protection.
Nov. 7, 2005 / Room 303 / 3:30 – 4:30 pm

Movie #3: Ghosts of Rwanda
Documentary marking the 10-year anniversary of the Rwanda genocide.
Nov. 15, 2005 / Room 507 / 8:00 – 10:00 pm

ACS 2005 National Convention

2005-07-27T13:38:00.000-04:00

The big annual convention is this weekend in Washington, DC, beginning tomorrow with the Student Leadership Retreat, and lasting through mid-day Sunday. I'll be in attendance, and will post up on the goings on as I'm able.

To take a look at last year's convention, including a highlight film plus transcripts and video of the various speakers and panels, check out the 2004 Convention page. For the 2003 Convention they've got transcripts of the speakers and video of certain speakers.

Boston Attorney: Move Limbo Detainees

2005-07-26T14:32:00.000-04:00

Boston attorney Sabin Willett, one of the panelists at last week's panel discussion on the US prison at Guantanomo Bay, has filed a request in federal court asking that his clients, who have been found not to be enemy combatants, be moved from the prison camp and into the non-prison area of the naval base. His two clients are among a group of 16 prisoners who have been determined not to be enemy combatants and two additional prisoners who have been found no longer to be a threat, but who are still being held inside the prison. The US fears that the individuals will be subject to persecution in their home countries, and no other governments have offered to take them in.

An Army spokesman for the prison doubts that such an arrangement will be made, because, 'They have been detained in here with some very bad people, under some very bad influences," Weir said. ''We can't just release them into a hotel amongst the civilians on the base. . . . We understand the point of what the lawyers are saying, but it's an impossibility."

So the US mistakenly labeled them enemy combatants, shipped them over to the other side of the world and held them in harsh prison conditions for nearly four year, and now don't want to let them out of the prison because they've been in a nasty prison environment for nearly four years. Sounds fair.

Willett has apparently suggested that the US should offer the non-enemy combatant detainees asylum if they are in danger of persecution in their home countries, but has not yet made this a formal request. It sounds like his first priority is getting his clients out of the prison.

Supreme Court Fall Schedule 2005

2005-07-21T15:22:00.000-04:00

Following is the announced Supreme Court argument schedule for the coming fall, by argument date. It's a work in progress, so check for additions and changes. We'll be adding links to additional posts and information about individual cases. The linked docket numbers will take you to the Supreme Court docket information page for each case. Each docket information page also includes a link to the questions presented for that case.

Monday, October 3
IBP, Inc. v. Alvarez (03-1238) combined with Tum v. Barber Foods, Inc. (04-66) - 9th & 1st Cir. - Employment law and compensable time

Wagnon v Prairie Band Potawatomi Nation (04-631) - 10th Cir. - Tribal sovereignty and taxation

Wednesday, October 5
Gonzales v. Oregon (04-623) - 9th Cir. - Assisted suicide and the Controlled Substances Act

Schaffer v. Weast (04-698) - 4th Cir. - Individuals with Disabilities Education Act and disputes over individualed education programs (IEPs)

Tuesday, October 11
Brown v. Sanders (04-980) - 9th Cir. - Death penalty and special circumstances

Lincoln Property Co. v. Roche (04-712) - 4th Cir. - Diversity subject-matter jurisdication, corporate citizenship for diversity

Wednesday, October 12
Garcetti v. Ceballos (04-473) - 9th Cir. - Purely job related speech and First Amendment protections

United States v. Olson (04-759) - 9th Cir. - Federal Tort Claims Act and liability of United States to safety inspections

Monday, October 31
Volvo Trucks North America v. Reeder-Simco GMC, Inc. (04-905) - 8th Cir. - Robinson-Patman Act and what constitutes a "purchaser"

Central VA Community College v. Katz (04-885) - 6th Cir. - States' sovereign immunity and Article I Bankruptcy Clause

Tuesday, November 1
Maryland v. Blake (04-373) - Court of Appeals of MD - Edwards and a suspect's right to counsel

Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal (04-1084) - 10th Cir. - Religious Freedom Restoration Act, controlled substances and international treaty

Wednesday, November 2
Unitherm Food Systems v. Swift-Eckrich (04-597) - Federal Cir. - Standard of review and procedural issues regarding appeals

Lockhart v. United States (04-881) - 9th Cir. - Witholding social security benefits against student loan debt

Monday, November 7
Arbaugh v. Y & H Corp. (04-944) - 5th Cir. - Title VII employment question whether 15-employee minimum limits subject matter jurisdiction or is only an issue on the merits - Overview

Dolan v. United States Postal Service (04-848) - 3rd Cir. - Federal Tort Claims Act and jurisdictional determination

Tuesday, November 8
Martin v. Franklin Capital Corp. (04-1140) - 10th Cir. - Attorney fees and expenses when removed case is remanded to state court

Georgia v. Randolph (04-1067) - Supreme Court of GA - 4th Amendment search of common area, conflict between state and federal courts

Wednesday, November 9
United States v. Georgia (04-1203) combined with Goodman v. Georgia (04-1236) - 11th Cir. - Americans with Disabilities Act and the operation of state prisons - Overview

Evans v. Chavis (04-721) - 9th Cir. - habeas petitions and unreasonable delay in filing

Monday, November 28
Will v. Hallock (04-1332) - 2nd Cir. - Federal Tort Claims Act, jurisdication, and claims against federal employees

Wachovia Bank v. Schmidt (04-1186) - 4th Cir. - Federal diversity jurisdiction and citizenship of a national banking association (Justice Thomas did not participate)

Tuesday, November 29
Rumsfeld v. Forum for Academic and Institutional Rights (04-1152) - 3rd Cir. - Solomon Amendment and impact on First Amendment protection - Overview (on NESL OUTLaws blog)

Buckey Check Cashing v. Cardegna (04-1264) - Supreme Court of Florida - Federal Arbitration Act

Wednesday, November 30
Scheidler v. NOW (04-1244) combined with Operation Rescue v. NOW (04-1352) - 7th Cir. - RICO and Hobbs Act, and applicability to abortion clinic protests

Ayotte v. Planned Parenthood of New England (04-1144) - 1st Cir. - "Undue burden" standard v. "no set of circumstances" burden in abortion statutes - Overview

Monday, December 5
Whitman v. Dept. of Transportation (04-1131) - 9th Cir. - Federal employee collective bargaining v. individual federal employee grievance; Civil Service Reform Act and constitutional claims by federal employees against employer

Rice v. Collins (04-52) - 9th Cir. - Habeas claim and presumption of correctness for state fact finding

Tuesday, December 6
Domino's Pizza v. McDonald (04-593) - 9th Cir. - Standing and personal injury claim without contractual agreement

Illinois Tool Works v. Independent Ink (04-1329) - Federal Cir. - Patent license and market power

Wednesday, December 7
Oregon v. Guzek (04-928) - Supreme Court of OR - Capital case, 8th and 14th Amendment and residual-doubt claims

Kansas v. Marsh (04-1170) - Supreme Court of KS - Capital case, mitigating and aggravating evidence, state judgment independent of federal law

Boston Goes to Guantanamo

2005-07-20T08:36:00.000-04:00

It was a regular NESL reunion last evening at the panel "Boston Goes to Guantanamo: The Battle for Basic Rights," presented at Holland and Knight by the ACS Boston Lawyers Chapter and the ACLU of Massachusetts. By my count there were at least seven of us in the crowd of about 40.

One of the scheduled panelists, Jerry Cohen of Perkins, Smith & Cohen, was unable to attend due to a last minute arbitration, but the others provided an informative evening. All but one have been to Guantanamo to meet with clients on various occasions.

Sabin Willett of Bingham McCutcheon spoke of his clients, a group of Chinese muslim dissidents who were trying to reach Turkey in the hopes of a better life when they were turned in by bounty hunters seeking the $5000 reward being given out for enemy combatants. At this point they are still in Guantanamo despite their having been determined not to be enemy combatants. The DOJ and DOD didn't actually reveal this fact to their attorney - he only discovered it through documents obtained through the Freedom of Information Act.

Gita Gutierrez of the Center for Constitutional Rights related her experiences representing a British citizen who had been trying to set up a school in Afghanistan with his wife. He would be teaching the boys, she the girls. After September 11, 2001 they moved from the countryside into Kabul, and when the US bombing campaign began they moved to Pakistan, and restarted their efforts to establish a school there. He was kidnapped from his home in the middle of the night and put into the trunk of a car. He was able to use his cellphone from the trunk to contact his father in Alabama to alert him to the kidnapping and to request that his wife and child return to the UK and safety. He was driven back into Afghanistan and turned over to the US military, and six months later was sent to Guantanamo as an enemy combatant. Two years later he was among the British citizens returned to their government. He was released in the UK after a 45-minute interview confirmed his noncombatant status. The Center for Constitutional Rights is involved in a number of cases relating to the War on Terror, including Rasul v. Rumsfeld.

Rob Kirsch of Wilmer Cutler Pickering Hald & Dorr spoke in great detail about his clients, a group of Bosnian muslims who were mostly workers at the Red Cross in Sarajevo. One of them was a Red Cross aid recipient. They were arrested in Sarajevo after responding voluntarily to police requests for interviews, and were acquitted of any criminal charges. As they were leaving the courthouse, however, they were arrested once again by the Special Police and turned over to US military, who then transported them to Guantanamo Bay as enemy combatants. Mr. Kirsch has not only visited them in Guantanamo, but has also visited their families in Bosnia. The wife of one of the prisoners (the panelists were adamant that these are not "detainees," but prisoners or internees) has been labeled "The Firebrand of Bosnia" for her tireless efforts at a legal or diplomatic resolution to the imprisonment. The panelists indicated that likely due to the Bosnian government's historic obligation to the US, that government has not been as pressing of its requests as the other European nations, all of whom have had their citizens returned.

Finally, John Reinstein of the ACLU of Massachusetts, spoke at length about information from documents obtained through their efforts with the Freedom of Information Act, followed by further efforts to reveal more of the redacted materials from these documents. These documents reveal the appalling conditions that not only exist at Guantanamo, but are official policy. More information about the ACLU's efforts related to Guantanamo can be found here.

All the panelists spoke of prisoners kept for months and years in total isolation, poor hygiene conditions, poor nutrition (other than the 16 or so prisoners who are "cooperating" with US officials), the manner in which prisoners are forced to turn to their interrogators for any requests, making them totally dependant on those interrogators, and the small improvements that can come about simply by having legal representation. They encourage any and all attorneys who can afford to donate their time and efforts to contact any of them (or the ACS Boston Lawyers Chapter) about how to get involved.

SC Nominee Expected Tonight

2005-07-19T14:41:00.000-04:00

Pres. Bush is expected to announce his nominee to replace Justice Sandra Day O'Connor on the Supreme Court. The televised announcement is scheduled for 9 pm EDT this evening.

At yesterday's White House press briefing, White House Press Secretary Scott McClellan had this to say about any potential nominee:

The President has made it clear that he intends to nominate a fair-minded individual who represents the mainstream of American law and American values. He will appoint someone to the position of high intellect and great legal ability, a person of integrity who will faithfully interpret our Constitution and our laws.

Check your tv screen tonight at 9:00 EDT to see if the reality meets this standard.

Boston Goes to Guantanamo - Panel Discussion July 19th

2005-07-14T16:25:00.000-04:00

The ACS Boston Lawyer Chapter, in conjunction with the American Civil Liberties Union of Massachusetts, presents:

"Boston Goes to Guantanamo:The Battle for Basic Rights"

A panel featuring:
Jerry Cohen, Partner, Perkins, Smith & Cohen
Gita Gutierrez, Center for Constitutional Rights
Rob Kirsch, Partner, Wilmer Cutler Pickering Hale and Dorr LLP
John Reinstein,Legal Director, ACLU of Massachusetts
Sabin Willett, Partner, Bingham McCutcheon
Moderated by: Melissa Hoffer, Junior Partner, Wilmer Cutler Pickering Hale and Dorr LLP

Tuesday, July 19, 2005, 6:00 - 8:00 p.m.

Holland & Knight
10 St. James Ave, 11th Floor

Refreshments will be served.
RSVP to http://us.f332.mail.yahoo.com/ym/Compose?To=Boston@ACSLaw.org by noon on July 18, 2005.

Lest We Forget

2005-06-23T10:43:00.000-04:00

1989 was not that long ago - that's when Justice Brennan delivered the opinion of the court in Texas v. Johnson (joined in the majority by Justices Marshall, Blackmun, Scalia and Kennedy) that Gregory Lee Johnson's act of burning of the American flag outside the 1984 Republican convention was expressive conduct, and as such he could invoke the protection of the First Amendment.

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989).

The original cite for that quote (at the end of a string of 12 other cases) comes from the 1931 case of Stromberg v. People of State of California, 283 U.S. 359 (1931).

What does it mean? It means that yesterday's House vote of 286-130 for a measure Wednesday that would give Congress authority to ban desecration of a U.S. flag is a huge step backward for the First Amendment right of free speech.

"Ask the men and women who stood on top of the Trade Center," said Rep. Randy (Duke) Cunningham, R-Calif. "Ask them and they will tell you: 'Pass this amendment.'"

Ok - let's ask the people at the World Trade Center, and don't forget the men and women at the Pentagon too: "Are you willing to be punished for expressing your disagreement with the government?"

This ridiculous, short-sighted, politically-driven, asinine, (insert several other adjectives here) act is being pushed in the name of patriotism....if we give up our First Amendment rights -- note that the founding fathers didn't bury free expression, it was the FIRST right - then what are our armed forces fighting for all over the world? I guess we can get out of Iraq and Afghanistan, stop bickering with Iran or being concerned with Syria's influence in Lebanon and tell Condi to stop offending Saudi Arabia and Egypt because if we take away our own citizen's right of free expression, then bothering those people with it is a tad hypocritical.

Yes, the flag is symbolic, yes its offensive when someone burns it. Free speech is real, however, and criticism of the government is exactly how we got where we are today - for good or for bad - why would we give that up?

The good news is an AP survey Wednesday found 35 senators on record as opposing the amendment -- but that's only one more than the number needed to defeat it, barring a change in position. The Senate could consider the measure as soon as next month. That's a pretty thin margin. Go to www.senate.gov, and contact your Senator to let him/her know what you think of this.

7th Circuit Says Hazelwood Applies to University Level

2005-06-21T11:22:00.000-04:00

Thanks to Mark Goodman, Executive Director of the Student Press LawCenter, for providing the following information to the CommLaw Alert:

In a 7-4 decision, an en banc panel of the U.S. Court of Appeals for the Seventh Circuit today reversed the lower court's ruling in the college newspaper censorship case Hosty v. Carter, allowing the students' claim of First Amendment violation to be dismissed.

Although the court did not reach the fundamental question of just what level of First Amendment protection college journalists are entitled to, the court did reach some startling conclusions in granting the university's claim for summary judgement.

First, the court said that that the analysis of the Supreme Court's 1988 Hazelwood decision, which dramatically curtailed high school students free expression rights, was applicable at the college and university level as well. In essence, the court said that under Hazelwood, a court confronted with an act of student newspaper censorship by a public college official must first determine if the publication had been opened up as a "designated public forum" where students have been given the authority to make the content decisions. The majority said that the fact a publication might be extracurricular was not determinative of it's public forum status.

Second, the court held that even assuming that The Innovator at Governors State University was a public forum, the dean who censored the publication was entitled to qualified immunity because she could not have reasonably known that the limitations of the Hazelwood decision did not apply to college and university student publications.

For a copy of the decision, go to:http://caselaw.findlaw.com/data2/circs/7th/014155Pv2.pdf

The Symbol of Freedom

2005-06-15T11:12:00.000-04:00

USA Today is reporting that the odds are closer than ever that a constitutional amendment that would ban desecration of the American flag will be sent to the states for ratification. The proposed amendment is expected to pass the House for the seventh time (a 100% record) before moving on to the Senate. In the past, the amendment has failed to pass the Senate, but by narrower margins. The last vote was in 2000, and the amendment was only four votes shy. The predictions are that it may be within one or two votes at the present time. Five new senators are former House members who voted for it in the past and have pledged to continue their support.

At present such actions as protest flag burnings are protected, under the Supreme Court's decision in Texas v. Johnson (491 US 397 - state law) and US v. Eichman (496 US 310) , which held that the Flag Protection Act of 1989 (federal law) violated the First Amendment's protection of free speech. In Eichman the court addressed the request that the Texas decision be revisited in light of a "national concensus" favoring such a ban: Even assuming such a consensus exists, any suggestion that the Government's interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment.

The decision closed with this: We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets, see Terminiello v. Chicago, 337 U.S. 1 (1949), vulgar repudiations of the
draft, see Cohen v. California, 403 U.S. 15 (1971), and scurrilous caricatures, see Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). "If there is a bedrock
principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Johnson, supra. Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.
The dissent in Eichman includes this argument: Contrary to the position taken by counsel for the flag burners in Texas v. Johnson, 491 U.S. 397 (1989), it is now conceded that the Federal Government has a legitimate interest in protecting the symbolic value of the American flag. Obviously that value cannot be measured, or even described, with any precision. It has at least these two components: in times of national crisis, it inspires and motivates the average citizen to make personal sacrifices in order to achieve societal goals of overriding importance; at all times, it serves as a reminder [*320] of the paramount importance of pursuing the ideals that characterize our society.

But isn't one of those ideals the concept that a citizen's statements or actions that express political dissent are protected? The flag certainly is something around which the citizenry can be exhorted to rally, but we are also provided with the freedom to cry out against such rallying when we feel the call to arms is not for a valid or wise cause. It's because of this freedom that the flag can maintain its symbolic value. I often find myself quoting one of my favorite movies, The American President, in which President Andrew Shepard (played by Michael Douglas), has this to say: America isn't easy. America is advanced citizenship. You've gotta want it bad, cause it's gonna put up a fight. It's gonna say, "You want free speech? Let's see you acknowledge a man whose words make your blood boil, who's standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours." You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the land of the free.

Want to stop people from burning or otherwise desecrating the flag? Make sure the government doesn't take actions that themselves violate "the ideals that characterize our society." If a protest is unfounded, then make your argument and convince people not to join it, instead of criminalizing the protester.

Editorial Cartoon Envisions the Future?

2005-06-07T21:33:00.000-04:00

Ben Sargent's editorial cartoons usually manage to hit the nail on the head. As a companion piece to Gov. Rick Perry's mixing of church and state, please see his June 7, 2005 cartoon.

"We play both kinds of music: country and western."

2005-06-06T08:10:00.000-04:00

So many issues, in just one newspaper article. In this morning's NY Times, Kathy Walt, a spokeswoman for Governor Rick Perry of Texas, defended Perry's signing of two Texas bills at an evangelical christian school on Sunday with:

"It's not a separation of church and state issue: it's not limited to people of one faith."

Perry had originally planned to have the signing filmed, just to make it an official political event, but they ditched that idea at some point (you're telling me this won't end up in an election ad one day? right). They moved it into the school gym to try to squash protestors....but the school probably owns the gym (and doesn't pay taxes on that, either..), so that only served to fit more people into the event.

The two bills Perry signed are, predictably, a bit on the conservative side. One is a law passed in this session of the Texas legislature that requires girls under 18 to get their parents' consent before having an abortion. Previously, they only had to notify their parents. Unlike the New Hampshire law currently on the U.S. Supreme Court docket as Ayotte v. Planned Parenthood of Northern New England (see below for a great posting by Beth on the matter), S.B. 1150 does have an exception for when the physician reasonably believes the health of the minor is at risk and there is no time to get parental consent.

Another bill, which didn't really require his signature, (but why blow a good venue when you've got it?) places a proposed constitutional amendment banning same-sex marriages before Texas voters on November 8.

The good news is that not everyone in Texas is a nutsy-type conservative. The Rev. Robin Lovin, a Methodist minister and an SMU professor holding the Maguire chair in ethics said, "There are lots of reasons to go to church on Sunday, but making laws isn't one of them."

They do get imports, however. One pastor from Ohio came down for the event. When speaking about the same-sex marriage bill, he urged Christians to speak out on public issues. "We are not to sacrifice our children on the altar of sexual lust for a few."

When someone figures out what he means by that, please drop a line.

ACS Boston Summer Kickoff Event

2005-05-26T11:47:00.000-04:00

ACS Boston presents

Summer in Boston Kickoff Reception
featuring
Professor Erwin Chemerinsky, Alston & Bird Professor of Law, Duke Law School
speaking on: The Supreme Court and Judicial Nominations

Wednesday, June 8, 2005, 6:00 - 7:30 p.m. at
Bingham McCutchen
150 Federal Street Boston

Meet and network with local attorneys and law students from the ACS Boston Lawyer Chapter!There is no cost to attend this event.

To RSVP, email Boston@ACSLaw.org.

Justice Stevens on International Opinion

2005-05-25T15:51:00.000-04:00

In contrast to statements by Chief Justice Rehnquist and Justices Scalia and Thomas, Justice John Paul Stevens spoke out yesterday in support of the wisdom of considering - not relying upon or ruled by - international opinion in the form of judicial opinions and scholarly writings, when formulating decisions in cases before the Supreme Court.

Justice Stevens stated that there is a world of difference between considering and being controlled by such opinions, and regarding the two, he stated: "We should not be impeached for the former," he said. "And we are not guilty of the latter."

The associate justice was addressing the 54th Annual Judicial Conference of the 7th Circuit this week.

Cert. Granted: Ayotte v. Planned Parenthood

2005-05-23T10:56:00.000-04:00

The Supreme Court granted cert. today in one case, Ayotte, Att'y Gen. of NH v. Planned Parenthood (Docket 04-1144). This case is going to the Supreme Court on appeal from the First Circuit, where the case was Planned Parenthood v. Heed (then AG of NH) (390 F.3d 53).

The First Circuit affirmed the district court holding that New Hampshire's parental notification requirement for minors seeking abortions was unconstitutional because it "lacked necessary exception for preservation of pregnant woman's health, and death exception to permit abortion when necessary to save life of pregnant woman was too narrow."

At question is New Hampshire's 2003 law titled Parental Notification Prior to Abortion Act (2003 N.H. Laws 173, codified N.H.Rev.Stat. Ann. ("RSA") § 132:24-28 (2003). The act requires that the parent of an unemancipated minor must receive written notice 48 hours prior to the minor receiving an abortion. From the First Circuit's decision:

RSA 132:25, I. Paragraph II specifies that "written notice shall be addressed to the parent at the usual place of abode of the parent and delivered personally to the parent by the physician or an agent." RSA 132:25, II. Paragraph III allows for notification by certified mail with return receipt requested and with restricted delivery to the addressee.

There is also an option for the minor to petition a judge to waive the parental notification requirement, with a requirement for ruling within 7 days of the hearing, and also if the attending physician certifies that the abortion is required to prevent the imminent death of the mother. The plaintiffs sought a declaratory judgment that the act was unconstitutional, and a preliminary injunction against enforcement. The district court held that the absence of exception to preserve the health of the mother was unconstitutional. The First Circuit affirmed, on the basis of Supreme Court decisions requiring the health exception, and on a bar against unduly burdening the woman's right to choose an abortion.

Small Acts

2005-05-23T09:16:00.000-04:00

Yesterday Massachusetts SJC Chief Justice Margaret Marshall addressed the 7000 people gathered for commencement at Brandeis University. During her address she spoke out against the recent continuation of attacks on the independence of the judiciary.
''I worry when people of influence use vague, loaded terms like 'judicial activism' to skew public debate or to intimidate judges," Marshall said. ''I worry when judicial independence is seen as a problem to be solved and not a value to be cherished."
CJ Marshall referenced federal Judge Joan H. Lefkow's statements made to the Senate Judicary Committee last week, in which Judge Lefkow urged the senators and other public officials to speak out against extreme and "gratuitous" attacks on the judicial branch. Marshall urged the graduating students also to speak out against these distortions of the role of the courts:
Yesterday, Marshall asked graduates to undertake ''small acts" to promote understanding of the value of judicial independence. ''Each new generation must decide, each of you must decide, whether to embrace, to protect the rule of law, or to repudiate it," she said. ''And make no mistake, inaction and indifference are acts of repudiation."
Supreme Court Justice Anthony Kennedy was the keynote speaker at NESL's Law Day banquet this year, in which he voiced similar opinions. He pointed out that when it comes to individual cases and legal issues, the only voice that judges and justices have is contained in their written opinions. He then called on members of the bar to fill their role as translators. Opinions are written in legalese, and reference earlier cases which in turn referenced their own precedents, and the meanings and nuances contained in these opinions are often out of reach to citizens who are not a part of the legal profession. Justice Kennedy urged us to take seriously our duty to educate the nation as to what is actually contained in the formal decisions, and not to allow one-sided, shallow or distorted analyses and interpretations to dominate the discussion.

Both Kennedy and Marshall underscored the importance of criticism and debate in our free and democratic society, but emphasized that just as central to the continued functioning of this free and democratic society is the ability of the judiciary to function in accordance with the law, not in accordance with polling data.

Read the decisions, understand the issues, and speak out. Not just to other attorneys, professors and law students, but to the people in your community who every day are hit with a barrage of critiques which may not be backed up with fact, but which are only designed to elicit a negative response. In the absence of the truth and facts, the negative response is what will remain.

Commerce Clause Trumps 21st Amendment

2005-05-17T07:47:00.000-04:00

That popping noise you heard yesterday came from small vineyards across from Long Island to California. The Supreme Court declared Michigan and New York's laws banning out-of-state wineries from direct sales to consumers to be in violation of the Commerce Clause and not allowed by the 21st Amendment.

The opinion for the combined cases under Michigan v. Heald was written by Justice Anthony Kennedy who was joined in the 5-4 majority by Justices Scalia, Souter, Ginsburg and Breyer.

The ball is now with the state legislatures, who must decide whether to permit all direct sales to consumers or to prohibit it all. The political issue discussed in the newspapers is the access of wine to minors (minors don't drink home-state wine?), while the issue in the actual court case comes down to competition between vineyards and wholesalers. The fact that many of the small vineyards don't have a large enough customer base or production supply to use wholesalers to begin with begs the question of what exactly are the wholesalers losing out on, anyway? Now some vineyards may start taking direct wine orders and growing their wine mailing lists, but are they really going to start shipping the majority of their product from the vineyard?

Supreme Court Cert. Granted 5/16/05

2005-05-16T13:01:00.000-04:00

The Supreme Court today granted certiorari in three cases, two of which have been consolidated.

Arbaugh v. Y&H Corp. (04-944) comes from the 5th Circuit (380 F.3d 219), which heard the case on appeal from the US District Court for the Eastern District of Louisiana. Jennifer Arbaugh filed a sexual harassment suit under Title VII and state tort law against her employer, the Moonlight Cafe in New Orleans, where she was a bartender and waitress. A jury found in her favor, but the defendant filed a motion to dismiss on the grounds that the cafe did not have the minimum number of employees required to grant the court subject matter jurisdiction. The court converted the motion to a motion for summary judgment and eventually vacated the jury verdict and judgment on the subject matter jurisdiction grounds. Plaintiff argued that the number of employees went to the merits of the case, rather than to subject matter jurisdiction. There was a dispute over whether the cafe's delivery drivers, owners and owners' spouses should be counted toward the total number of employees. The 5th Circuit affirmed the district court's decision that under precedent the issue went to subject matter jurisdiction, and that the individuals at issue were not to be counted as employees.

The question presented in the petition for cert. is:

Section 701(b) of Title VII of the 1964 Civil Rights Act applies the Title VII prohibition against employment discrimination to employers with fifteen or more employees. Does this provision limit the subject matter jurisdiction of the federal courts, or does it only raise an issue going to the merits of a Title VII claim?

United States v. Georgia, et al. (04-1203), combined with Goodman v. Georgia, et al. (04-1236) is an Americans with Disabilities Act. The case was originally brought (Goodman v. Ray) by an inmate in a Georgia state prison. Tony Goodman is in a "high/maximum security section," in part because of his special needs from his paraplegia which confines him to a wheelchair. His cell is 12 feet x 3 feet, so he cannot turn his wheelchair around, or access his bed, the toilet or shower without assistance, and he alleges that this assistance is often denied him. The district court dismissed his claims against the state and the Georgia Dept. of Corrections on Eleventh Amendment grounds, and dismissed the claims against individual officers as moot (he had been transferred to another prison). The US intervened on Goodman's appeal to the Eleventh Circuit. Prior to the appellate decision, the Supreme Court decided Tennessee v. Lane, which upheld the ADA's abrogation of Eleventh Amendment protection, but in that case only as applied to judicial services. The Eleventh Circuit affirmed the dismissal against the state and the DOC, and relied on its own decision in Miller v. King, which held that the ADA abrogation does not apply to penal administration.

The question presented in the petition for cert. is:

Whether Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12131 to 12165, is a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment, as applied to the administration of prison systems.

Federal Court Vacancies and Time to Resolution: The Numbers

2005-05-06T12:01:00.000-04:00

When Massachusetts Senate President Robert Travaglini spoke at NESL last month (sponsored by ACS), he mentioned the governor's framing the stem cell research issue as cloning, as the word "cloning" brings out a negative response in people. I asked how he counters that tactic of eliciting visceral responses from the voters, a tactic at which our current governor is adept and frequently employs. His response was that he educates the people who really matter at that particular point in the debate at hand. On the stem cell issue, it was the legislators he had to convince, so he brought in experts to explain the procedures and the issues to the people who would be voting on the bill. The result? The bill passed both the House and Senate with veto-proof margins, and the governor is left with another loss but some nice sound bytes to present to the national audience he appears to be courting for 2008.

With that goal in mind (educating, educating, educating, facts, facts, facts), I frequently check out FactCheck.org, a nonpartisan site (a project of the Annenberg Public Policy Center of U. Penn.) that analyzes the media and then digs into the issues as presented to find the facts. If there's been a back and forth over some particular issue, they research both sides and point out both the valid points and the discrepencies that have been bandied about. Today I received an e-mail alert to their latest article, on a current ad campaign that blames Senate Democrats both for federal judicial vacancies and for delays in federal cases. Their summary: A multimillion-dollar ad campaign blames Democrats for the fact that "courtrooms sit empty." In fact, there are now half as many judicial vacancies as when Bush took office. And of the 46 federal judgeships that remain vacant, Bush has named only 16 replacements.
The ad also says cases are being delayed in federal courts for "thousands of Americans." Actually, official statistics show cases typically being decided more quickly now than they were in 1999, when it was Republicans opposing Clinton's judicial nominees.

Check out the article for the details. And return to FactCheck.org frequently for the facts on a variety of other issues.

Kenneth B. Clark, 1914-2005

2005-05-02T17:15:00.000-04:00

Psychologist and civil rights activist Kenneth Clark has died at age 90. Clark's work was integral to the 1954 Supreme Court decision in Brown vs. Board of Education, and he spent his entire career working to end segregation in education and society as a whole. He was awarded the Four Freedoms Medal by the Franklin and Eleanor Roosevelt Institute for his work towards freedom of speech. In 1961 he received the NAACP’s Spingarn Award.

Executive Board Elections for 2005-2006

2005-04-27T19:10:00.000-04:00

The American Constitution Society is now taking letters of intent for next year's executive board. The board positions are President, Vice-President, Secretary and Treasurer.

Anyone interested in running for any of these positions should notify Beth Henderson by 5:00 pm Wednesday, May 4.

For more information on the ACS of NESL, please see our TWEN site, or the rest of this blog.

Any Court = Any US Court

2005-04-27T13:39:00.000-04:00

The Supreme Court yesterday announced their decision in Small v. United States, in which petitioner Gary Sherwood Small challenged his conviction under the felon-in-possession statute, which states that it is (from the opinion): "unlawful for any person ... who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year ... to ... possess ... any firearm." 18 U. S. C. §922(g)(1) (emphasis added).
Small had been convicted of gun smuggling in Japan, and was sentenced to five years imprisonment in that country. Upon his return to the United States, he purchased a gun and was later charged with being a felon in possession of a firearm. He argued that the phrase "any court" was meant to be applied to any court in the United States, not foreign courts which have different laws, procedures and punishments. Small's argument was rejected by both the Federal District Court and the Court of Appeals (3rd Cir.), but he fared much better in the Supreme Court, which yesterday reversed and remanded his case.

Justice Breyer authored the majority opinion, joined by Justices Stevens, O'Connor, Souter and Ginsberg. Justice Thomas' dissent was joined by Justices Scalia and Kennedy. Chief Justice Rehnquist did not take part, as the case was argued during his absence last fall.

I find this case interesting, especially in light of the statements made of late concerning the propriety of even referencing foreign law in the decisions or thinking of the Supreme Court. Applying "any court" to convictions in foreign courts would indeed be applying that court's system of law to trigger a domestic statute. But Justices Scalia and Kennedy (who came down on opposite sides of whether it is proper to even look at foreign justice systems when deciding a death penalty case) apparently agreed that if it's a felony in a foreign court, that's good enough for us. However, many crimes that result in imprisonment of more than one year in some foreign courts would not even be an offense in the United States.

I'm looking forward to studying this case, and any discussions that might come up in the near future regarding the propriety of even looking at foreign justice systems during the decision making process in United States courts. After finals.

Homeland Security, Air Marshals and Secrecy

2005-04-26T10:54:00.000-04:00

The NY Times reports that federal air marshal Frank Terreri was put back on active duty yesterday after having been suspended last October. Terreri, the president of the air marshal's division of the Federal Law Enforcement Association of Lewisberry, PA (representing over 1000 federal air marshals), was suspended shortly after two events. First, Terreri had written an e-mail to another air marshal in which he was critical of a third marshal who had taken part in a Dept. of Homeland Security (DHS) approved interview in People Magazine, in which the marshal revealed some information that realistically had the potential to put on the job security at risk. Second, the employees' association had called for the resignation of the director of the Federal Air Marshal Service, Thomas Quinn, on the grounds that some of the requirements imposed on air marshals makes the officers stand out rather than blend in during travel.

Terreri's e-mail violated an air marshal employee policy (from the NY Times article): The rules given to air marshals are quite explicit. A 2002 employee policy statement says they may not "criticize or ridicule" the agency "by speech, writing or other expression," and they may not "address public gatherings, appear on radio or television, prepare any articles for publication" or release any information about the agency unless explicitly authorized to do so by management.

Four days before being reinstated, Terreri and the ACLU filed suit (Terreri v. Chertoff - complaint can be downloaded or viewed here) challenging the restriction as being violative of free speech and actually endangering security by preventing whistleblower activity. The Federal Air Marshals Service denies any connection between the lawsuit and the reinstatement.

"The Case Against the Judges"

2005-04-15T10:49:00.000-04:00

WBUR's (and NPR's) daily talk show The Connection this hour is focusing on the current discussions on what one side of the debate calls "independent judiciary" and what the other side calls "activist judges." The guests are Nancy Gertner, Federal Judge in the US District Court in Massachusetts and Kay Daly, President of the Coalition for a Fair Judiciary.

The show will be rebroadcast this evening at 9:00 pm Eastern time, and they will also have the broadcast available on line. Just go to the episode page and click on the Listen to the Show button.

The Filibuster as Satan's Tool

2005-04-15T10:48:00.000-04:00

Apparently you aren't going to heaven if you support the filibuster and/or oppose President Bush's judicial nominees. In the NY Times this morning, Senator Frist, who redeemed himself somewhat by distancing himself from Rep. DeLay's rantings, has reverted to form:

"As the Senate heads toward a showdown over the rules governing judicial confirmations, Senator Bill Frist, the majority leader, has agreed to join a handful of prominent Christian conservatives in a telecast portraying Democrats as 'against people of faith' for blocking President Bush's nominees." See NY Times Article, Frist Set to Use Religious Stage on Judicial Issue.

Name-calling and fear-mongering just doesn't sound all that "Christian" to me. Are "people of faith" (what does that mean?) really such lemmings that they accept this? Aren't "they" insulted by this?

Discussion Group - Muehler v. Mena

2005-04-15T10:23:00.000-04:00

Yesterday we held our informal discussion group on the Supreme Court decision in Muehler v. Mena. See this earlier post for a brief description of the case, and links to the court documents.

We had a comfortable group of seven for the discussion, with a variety of perspectives, including one student who works in the immigration field. The conversation was lively and could have easily continued beyond the fifty minutes for which we had the room. I think one thing we all agreed on was that the two concurring opinions read much more like dissents. Among the various topics and ideas touched on during the session:

What would qualify as unreasonable in a similar situation?

What is the limit on what additional questioning that can be put to the detainee, unrelated to the focus of the search, so long as that questioning does not prolong the length of the detention?

How similar was this case to Caballes, to which the Court referred in noting that the INS questioning did not prolong the duration of the lawful detention? Mere questioning may not be detention, but can this truly be called "mere questioning" when the subject is in handcuffs and is being held under armed guard? The justification behind "mere questioning" usually is that the subject is free to walk away.

We found the submitted briefs in the case to be excellent examples of framing the case. Each presented the facts, but each was very well written to best present the client's case. If you're interested in this case, I'd recommend reading the submitted party briefs for a more complete picture of what happened the morning of the search.

How can police adequately provide for their safety in a somewhat unknown situation without crossing the line into a constitutional violation? Should there be more clear guidelines on determining the threat status of nonsuspect individuals located on the premises? How could these guidelines be set up without overlimiting necessary discretion of the officers on site? How much discretion should be allowed?

Where is the burden of proof in immigration questioning without specific suspicion? Is it on the subject to prove their legal status, or on the agent to disprove such status? What constitutional protections extend to illegal or suspected illegal aliens?

Where is the line between a concurring and a dissenting opinion? These concurrences seemed to be right on the line.

So that's two successful Supreme Court discussion groups this semester. I'm hoping these will become regular events at NESL in the 2005-2006 academic year.

Muzzle Awards 2005

2005-04-12T10:44:00.000-04:00

Do you value freedom of expression? Then head on over to The Thomas Jefferson Center For the Protection of Free Expression, and check out this year's Muzzle Awards. The 2005 Award announcements came out today, "on or near" the traditional date of April 13 - Thomas Jefferson's birthday. The list of winners (and you can also view the winners from past years) is accompanied by a full analysis of the action that prompted the award, and an analysis of how that action constituted an abridgement of freedom of speech or freedom of press.

"Unconstitutional" Screening at Jackson-Mann Thursday

2005-04-11T13:38:00.000-04:00

Immediately after the discussion group at NESL with Prof. Farber, hustle over to the Jackson-Mann Center to catch a screening of "Unconstitutional."

"Is the FBI checking out your bank account?"

"Is the FBI monitoring the books you read?"

"Has the FBI been in your home ... while you were not there?"

The USA Patriot Act allows these intrusions and more. Congress is planningto renew provisions of the act this year. Find out what you can do to protect constitutional rights this Thursday, April 14th.

The SULS Civil Rights Group, along w/the SULS ACLU chapter, is campaigning in support of local resolutions against the excesses of the USA Patriot Act. This Thursday, the Civil Rights Group will hold its Allston screening of"Unconstitutional," the hard-hitting, 1-hour documentary by RobertGreenwald, with discussion.

The event is open to the public, and refreshments will be served. SULS ACLU is a co-sponsor.

"UNCONSTITUTIONAL: The War on Our Civil Liberties"
WHEN: Thursday, April 14, 2005 @ 5:30 p.m.
WHERE: The Jackson-Mann Community Center, 500 Cambridge Street, Allston
T: Green B line to Allston Street Bus: 57 or 66 or 86
RSVP: civilrightsgroup@hotmail.com

Discussion Session - Muehler v. Mena

2005-04-10T15:35:00.000-04:00

ACS of NESL will be holding an informal discussion session on Thursday, April 14 from 4:30 to 5:20 in Room 503. The subject of this session will be the Supreme Court's decision in Muehler v. Mena (03-1423), which was recently handed down on March 22 of this year. Professor Hillary Farber will be taking part as a discussion participant, adding to the conversation her experience as a public defender and as a professor of Criminal Law, Criminal Procedure, Evidence and Constitutional Criminal Litigation.

At question in the case was whether police officers violated Iris Mena's Fourth Amendment rights when they handcuffed her and three other residents of her home, and held them under guard at gunpoint in the garage for two to three hours while other officers completed executing a search warrant on the home. A second question was whether an INS officer's questioning of the handcuffed Mena regarding her immigration status was also a Fourth Amendment violation.

The Supreme Court held that neither action was a Fourth Amendment violation. Notably, the Court relied in part on it's recent decision in Illinois v. Caballes when it held that because the initial search action was lawful, and because the INS questioning did not increase the length of her handcuffed detention, it was not a violation.

Care to take part in the discussion, to find out more about the case, add your two cents about the decision, or speculate on the possible ramifications of the holding? Come on to Room 503 this Thursday at 4:30 pm. All are welcome! Hard copies of the decision will be available at the discussion, and you can access it online here.

Background information and the 9th Circuit's opinion can be found at On the Docket. Briefs in the case can be found at ABANet. A transcript of the Supreme Court oral arguments, held on December 8, 2004, can be found at the Supreme Court website.

An Open Letter to Rep. DeLay

2005-04-08T08:37:00.000-04:00

Dear Mr. DeLay:

Would you be so kind as to point out where exactly the Constitution gives Congress "constitutional authority over the courts?" You are quoted as saying this power exists in today's NY Times article, page A15 (DeLay Says Congress Lets Courts 'Run Amok') ? I just finished re-reading my copy of the Constitution, which the guy at Barnes & Noble assured me "had all the parts."

While not the strongest Con law student, I did pay attention, and remember the words/phrases "independent judiciary" and "checks and balances" being bandied about quite often through the semester. Possibly my con law teacher just overlooked these powers you discuss. Yet I see nothing in Article I allowing Congress to control the Courts. While Article III, Section I does mention that "Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior..." if you read the opinions on the Schiavo matter (which seems to be what has kicked off your tirade), the good, independent judges who decided - over and over and over - against the parents of Terry Schiavo took great pains to analyze and follow the law. (Have you read the opinions? I'd be glad to forward you a copy.)

So all I can guess from your ranting that the judges were not "in good Behavior" because they had the gall to decide against the current administration in a matter that should never have been before them to begin with.

I guess I'm just asking for the cite, the section, the clause, the iota of proof that you have that Congress has the constitutional authority to tell our independent judiciary how to make decisions.

While I'm asking questions, there were numerous statements in that article that confused me (especially your proof that the judiciary had gotten out of control by "their invention of rights to abortion...") - that conference you just attended listed some pretty interesting goals, also mentioned in the story linked above.

"The organizers of the conference and Congressional staff members who spoke there called for several specific steps: impeaching judges deemed to have ignored the will of Congress or to have followed foreign laws; passing bills to remove court jurisdiction from certain social issues or the place of God in public
life;..."

Last question, because I realize you are a busy man who is probably late for another tirade or needs to go deposit another 6-figure check for your daughter or wife from the PAC: Are you planning on inserting God in my life? I feel no need to confirm or deny (certainly not to you) whether or not S/He is currently in my life, but I'll thank you to not pass a law inserting him/her there.

Thanks so much for your time, I look forward to your response soon.

Coming to Your Home: Drug Sniffing Dogs?

2005-04-05T09:26:00.000-04:00

Close on the heels of the Caballes decision, which allows the use of drug sniffing dogs at routine traffic stops, comes a Supreme Court nonaction on another use of this law enforcement tool: use of drug sniffing dogs outside private homes, without any suspicion of illegal activity. In denying cert. in the case of Smith v. Texas (04-874), the Supreme Court let stand the Texas state court decision which held that the use of the dog outside the defendant's garage was not a Fourth Amendment intrusion. Methamphetamine was found in a distant part of the home after the dog signaled the presence of narcotics near the garage. The incident occurred in 2000.

ACS of NESL held a small discussion group on the potential implications of Caballes, and the idea of using drug sniffing dogs outside private homes was one area of concern, although the general concensus was that the procedure wouldn't be allowed. Time will tell as perhaps more decisions are reached in the lower courts.

Conference: The Constitution in 2020

2005-03-28T09:19:00.000-05:00

From ACS of Yale comes a reminder of the upcoming conference, The Constitution in 2020. Registration deadline is Friday of this week (4/1), and the conference is the following weekend. Official reminder announcement below.

**********************************************************************************
The Constitution in 2020
April 8 - 10, 2005
Yale Law School, New Haven, CT

Registration deadline: Friday, April 1st
the conference website.
What is The Constitution in 2020?The Constitution in 2020 is the beginning of a progressive response to the conservative vision of the Constitution developed so successfully by the right over the past 25 years. The weekend conference will bring together leading academics, policymakers, and practitioners in American law to discuss their views on a positive, progressive constitutional vision of the future. The conference topics are broad and include America in the World, Liberties and Communities, New Politics, and Social and Economic Inequality. To find out more, please visit the conference website.
Registration
The registration fee has been waived for students, but registration is required for attendance. Members of your law school can register at the conference website.

Student Housing
A limited amount of free housing will be provided by YLS host students on a first come first served basis. For the conference blog, with entries by participants, please go to Constitution in 2020.

This conference is sponsored by: The Yale chapter of the American Constitution Society, the Yale Law School, Yale's Arthur Liman Public Interest Program, the American Constitution Society, the Open Society Institute and the Center for American Progress.

Justice Scalia: Rock Star?

2005-03-22T09:30:00.000-05:00

This week's New Yorker magazine features a profile of Supreme Court Antonin Scalia, and the magazine's online site has an interview with the author of that article, Margaret Talbot. She discusses Scalia's philosophy, conservative appeal, and why she sees him as being like a rock star who smashes his guitar on stage.

It's an interesting interview that delves into how Scalia's view on interpretation is or isn't affected by his own background and beliefs, his personal style, and of course some speculation around the possible outcome if he were to be nominate for Chief Justice at some point in the future.

[Link via Notes From the (Legal) Underground]

Cutter v. Wilkinson - Arguments Today

2005-03-21T10:36:00.000-05:00

Cutter v. Wilkinson comes from Ohio and the Court of Appeals for the Sixth Circuit, and addresses whether a federal law requiring state prisons that receive federal funding to accomodate, wherever possible, the religious requirements of inmates violates the Establishment Clause. The District Court held that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) is constitutional in that government action "to alleviate significant governmental interference" with religion is not an endorsement of religion. The Court of Appeals reversed on the grounds that the act "has the effect of impermissibly advancing religion by giving greater protection to religious rights than to other constitutionally protected rights." The petitioners are appealing this decision.

Ohio is arguing that certain groups of inmates have formed gangs and are using "nonmainstream" religious services as a cover for gang meetings, and that these meetings are not being accomodated as a safety measure. Even if the RLUIPA is found constitutional, it specifically allows prisons to take safety considerations into account when determining whether accomodation is feasible. The petitioners argue that the prisons are favoring mainstream religions and are persecuting those holding other beliefs. The statute in question reads as follows:

(a) General rule

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

(b) Scope of application This section applies in any case in which—

(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.

Gonzales v. Castle Rock - Arguments Today

2005-03-21T10:33:00.000-05:00

Castle Rock v. Gonzales comes from Colorado, and addresses procedural due process in a case of police inaction regarding a restraining order. Jessica Gonzales had a partial restraining order against her estranged husband. He was allowed contact with Ms. Gonzales and their three children only during prescheduled times. Mr. Gonzales took the children for a nonscheduled visit, and over the course of many hours Ms. Gonzales was in contact with the Castle Rock Police Dept. seeking help in retrieving her children. She was told several times (at 7:30 pm, 10 pm, and midnight) to call back "in a couple of hours," and at one point when she had phone contact with her husband and he revealed that he was at Six Flags with their daughters, the police told Ms. Gonzales that Six Flags was not in their jurisdiction, and again, to wait a couple of hours to see if he brought the kids home.

Eventually Mr. Gonzales pulled up in front of the police station (at 3:20 am) and began firing at police officers. They returned fire and he was killed. The bodies of the children were in Mr. Gonzales' pick up truck, and it was determined that they had been shot to death an hour prior to the shoot out. Ms. Gonzales filed suit against the Castle Rock police department for failing to enforce the valid restraining order, and for failing to properly train officers in the procedures required by allegations of restraining order violations. The district court had dismissed the case as having no procedural or substantive due process claims, but the Court of Appeals for the 10th Circuit reversed on the procedural due process claims, at the same time affirming that the individual officers (not the department) have qualified immunity from procedural due process claims. Castle Rock is appealing this decision.

Chief Justice Rehnquist Returns to Bench

2005-03-21T10:08:00.000-05:00

Today's session of the Supreme Court will be presided over by the Chief Justice, for the first time since last October.

Today's oral arguments will be in the cases of Castle Rock v. Gonzales (04-278) and Cutter v. Wilkinson (03-9877).

Ten Commandments as Legal Foundation

2005-03-15T14:12:00.000-05:00

Law professor David M. Mayer has an interesting and in-depth analysis of the argument that the Ten Commandments are the foundation of the American legal system. He disagrees with this argument, and provides extensive support for his position.

Context Matters

2005-02-27T22:46:00.000-05:00

I'll second Julia's post of geek delight. It was quite an educational treat to sit in on what was essentially a rehearsal of the arguments that will be delivered before the Supreme Court this coming week.

As Julia mentioned in her notes, it is unlikely that the Court would rule that hundreds of monuments across the country will have to be done away with. In fact, much of the discussion addressed the issue of how it may be possible to post the 10 Commandments anywhere on a public property, and not necessarily on whether to post at all. The participants talked about a 3-part test that could be used to analyze a monument's placement, content, and context in order to determine whether a display was unconstitutional.

To this end, the moot court judges encouraged both Chemerinsky and Friedman to draw a distinction between acknowledgement and endorsement of religion via public display of the 10 Commandments.

An article here in today's New York Times alludes briefly to this distinction as one that Justice O'Connor has long advocated in governmental displays with religious content.

Stay tuned.

Ten Commandments Case Before SCOTUS This Week

2005-02-26T16:20:00.001-05:00

The Supreme Court will hear arguments in the Ten Commandments cases on Wednesday. There is an AP story on Yahoo today (Top Court to Weigh Ten Commandments Cases) that gives little more background on Van Orden, plaintiff in Texas. The other Ten Commandments case concerns displays at two Kentucky courthouses. Both cases will be heard on Wednesday.

Prof. Erwin Chemerinsky of Duke University is representing Thomas Van Orden, the petitioner in Van Orden v. Perry. Prof. Chemerinsky is arguing that the arguing that the presence of the Ten Commandments violates the Establishment Clause. The Fifth Circuit rejected Van Orden's claim.

David Friedman is representing the ACLU in McCreary County v. ACLU of Kentucky. The Sixth Circuit found in favor the ACLU, which challenged three Kentucky counties' displays of framed copies of the Ten Commandments in various public buildings, including courthouses and a school.

Last week three of us from NESL ACS trekked over to Harvard for a Moot Court on the Ten Commandments cases. I was under the impression it was just a discussion sort of thing, since its a hot topic and all. It turned out to be a practice session for Chemerinsky and Friedman - very very cool! (ok, in a very very geeky way, but c'mon, that's what we're here for...) The Harvard ACS chapter had coordinated it, complete with a panel of judges made up of professors and experts. Each attorney had 30 minutes to present their argument, then there was a break, then the panel critiqued their arguments and asked for suggestions from the substantial audience that had turned out.

It was interesting during the critique sessions hearing the ultimate opinions of the moot court judges as to what will be critical for each attorney in their argument. I'm sorry this was a week ago and I've misplaced my notes on the whole thing, but I do remember some bits --- it was agreed that O'Connor was going to be the justice they would have to convince, and that its extremely unlikely she would vote in favor of bulldozing hundreds of Ten Commandment monuments across the country, since the Fraternal Order of Eagles was extremely generous in donating these things. Alternatives to bulldozing would need to be offered, and there was a lengthy discussion on what an alternative could even be, with no real resolution from what I remember. It was also thought by the judges that the SCT had granted cert to both of these cases in order to have 1 win and 1 lose, thereby giving opinions, but no real bright line. That sounds rather sneaky, but you never know.

The session ended with an informal vote as to who will win/lose. Initially I was of the opinion that Chemerinsky would prevail and the ACLU's suit would go bust, but after hearing both of the arguments, reading more background on the cases and then hearing the moot court judge's critiques, I'm not so sure. Chemerinsky's main argument on how the monument violates the Establishment Clause has to do with the fact that its location makes it look like Texas is endorsing Christianity, that the monument is overbearing given its location (on the Texas capitol grounds, where apparently there are lots of other monuments to other things). Friedman's argument about the Kentucky displays is that they tried to camouflage a display of the Ten Commandments by making it "diverse" but in the end it is a sham and Kentucky is just endorsing (only) Christianity. It is my humble opinion that at this point Chemerinsky has the steepist hill to climb, and while Friedman has a big fight ahead too, you can take a picture off the wall a heck of a lot easier then moving a stone monument that's been in place since 1961.

Either way, watching these attorneys present their arguments and hearing the discussion that followed was a fantastic experience and it will be fun (ok, again, geek fun) to see how each attorney tweaked their arguments after the sessions.

Newspaper Sources Protected

2005-02-24T13:38:00.000-05:00

Judge Robert W. Sweet of the US District Court for the Southern District of New York has ruled that the Dept. of Justice cannot force the New York Times to turn over the phone records of two reporters in connection with a government investigation of two Islamic charity foundations. The opinion stated that the government had failed to demonstrate that the information was relevant, highly material and not otherwise available.

I'll post an update when I've found the opinion online (it's 120 pages). It will likely be on this page, so check there, and you may find it posted there before I do.
**************************************
UPDATE (2/25/05, 11:19 am): I've found the decision on Westlaw, but it's not the 120 pages that earlier reports pegged it as, but is instead 49. The case is New York Times v. Gonzales, and the slip copy of the motion denying summary judgment can be found under 2005 WL 427911. It's on Lexis as 2005 U.S. Dist. LEXIS 2642.

Who Got the Appointments?

2005-02-22T18:32:00.000-05:00

The Progressive Government has created this handy-dandy tool for exploring the world of political appointees (link via beSpacific). You can search by appointee or nominee name or job function, explore by organization chart, and they also have feature articles on various issues.

School-Sponsored Bible Classes

2005-02-15T13:21:00.000-05:00

Elementary schools in Staunton, Virginia will be continuing a school tradition while conducting a one-year review of whether that program should be be maintained after the year. The Weekday Religious Education program, which has been a feature of many rural Virginia school districts for 60 or so years, involves sending 1st, 2nd and 3rd graders to area churches during school hours to attend bible classes. Apparently those students who do not go to church during those times hang out at school without alternative class programming, judging from the issues raised by the parents requesting the review:

Some parents had asked the board to eliminate or modify the program, saying children who choose not to go are stigmatized and lose valuable class time

Here's an article from newsleader.com, which serves the Staunton area. Interestingly, School Board member and minister Rev. Edward A. Scott urged his colleagues to terminate the school day program and instead establish an after school program. The school board instead passed the motion to continue the day program, hold the review, and establish an alternative enrichment program for the opt-outs. Of this proposal, Rev. Scott stated:

"This particular motion will not serve us well," Scott told the board. "It seems to be a misassignment of responsibility to say that we are somehow obligated to offer this. It is our constitutional right to say we will ... we have no constitutional obligation to do it."
His concern was for the children who are left behind, he said. "I think WRE is wrong for our school children," he said. "It belongs in the homes and in the churches." "In a community with a fever for religion, where are the churches?" he asked. "Where are they?"

The constitutionality of the classes was established in 1952 by the Supreme Court, due to the classes being held off school premises, in Zorach v. Clauson (343 U.S. 306, 72 S.Ct. 679). An earlier case (1948) which found a similar program unconstitutional due to its being held on school grounds was Illinois ex rel. McCollum v. Board of Education of School District (333 U.S. 203, 68 S.Ct. 461).

I have to say that I just don't see the logic of releasing students from public school in order to receive religious training. Doesn't that aid the sectarian groups, whether or not the classes take place on school grounds? The schools receive funding to provide public school education for a certain number of hours per year, but during some of those hours these students are at church, while the students who remain at school are not receiving the education they are supposed to be receiving. Given the school accomodation, the churches and parish parents have an easier time scheduling what they feel are necessary religious classes. But they are religious classes, which should be scheduled in nonschool time. If the classes are that vital, the parents should be willing to take their children there during after school hours or on weekends. And why is it for 1st-3rd graders specifically? What happens beginning in 4th grade? Is religious education less important at that point, or is it at that point that the churches and parents take over nonschool hour scheduling responsibility?

I'm interested in seeing how the Staunton School District decides to proceed at the end of the study.

Reporters' Civil Contempt Affirmed in Plame Grand Jury Investigation

2005-02-15T10:56:00.000-05:00

The D.C. Circuit today affirmed the findings of civil contempt involving reporters who received subpoenas in connection with the Plame grand jury investigation.

The reporters argued that the information concealed by them, specifically the identity of confidential sources, is protected by a reporter's privilege arising from the First Amendment, or failing that by federal common law privilege. The District Court held that neither the First Amendment nor the federal common law provides protection for journalists' confidential sources in the context of a grand jury investigation.

The copy of the decision is here: In Re: Grand Jury Subpoena, Judith Miller. The decision is 83 pages long, and starts off with a nice background summary of the whole situation, including the Robert Novak kick-off.

Reporter's Shield Bill Introduced in Senate

2005-02-14T13:37:00.000-05:00

Juat a quick note - Sen. Richard Lugar (R-Ind.) introduced the "Free Flow of Information Act" in the Senate yesterday, a bill that would create a reporter's privilege regarding compelled disclosure of sources and other newsgathering information, according to the Reporters Committee for Freedom of the Press (www.rcfp.org).

The bill is identical to a House bill introduced last week by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.). (See the Feb. 3 posting below, with links to the full text of the bill and other details.)

The Reporters Committee for Freedom of the Press has created a Special Report: Reporters and Federal Supoenas page to keep journalists up to date on the federal shield law effort and other legal controversies. Quite handy if you're not familiar with all of the controversies leading up to the introduction of the bills.

Speaker Event: Mass. Senate Pres. Robert E. Travaglini

2005-02-10T08:43:00.000-05:00

Donna Russell, the intrepid Treasurer of ACS of NESL, has secured an hour of Massachusetts Senate President Robert E. Travaglini's time to come speak at NESL on Wednesday, April 20 from 3:30-4:30. The event will be held in the Cherry Room. Let's get the word out and generate a good crowd to welcome the Senate President!

In related news, Boston.com is reporting today that sources in the state senate have stated that Travaglini has decided to delay a state constitutional convention until the fall, to give the legislature time to deal with more pressing issues. The featured topic of the con-con will be voting on the proposed amendment that would ban gay marriage but institute civil unions. This amendment, co-sponsored by Travaglini, passed 105-92 at last year's convention, and the exact amendment would have to pass again during the current session if it is to continue on to a general vote in next year's statewide elections.

Ironically, many legislative opponents of marriage for gay couples are feeling pressure to vote against the amendment, as they and their backers also oppose civil unions. If this amendment fails to pass, the current marriage laws in Massachusetts will remain unchanged, and marriage will continue to be legally available to gay couples.

ACS Meeting & 4th Amendment Discussion

2005-02-08T16:05:00.000-05:00

On Wednesday, 2/9, the American Constitution Society will be holding a short general meeting followed by an informal discussion of the recent Fourth Amendment Supreme Court decision in Caballes v. Illinois (the drug-sniffing dog case). All are welcome to attend, whether to voice an opinion, learn more about the case, or speculate on the impact of the decision on future cases. The meeting will be in Room 501, from 5:00-5:45 pm.

For more information on Caballes, see the earlier post on the case.

NY Court: Marriage Licenses for Gay Couples

2005-02-04T14:45:00.000-05:00

A lower court in New York has held that the state's Domestic Relations Law violates the state constitution by barring gay couples from marrying, and has enjoined the City Clerk of NYC from refusing to issue licenses to otherwise qualified couples. Enforcement of the order has been stayed for 30 days.

Gov. Romney's Judicial Nominations Criticized

2005-02-04T13:04:00.000-05:00

The individuals nominated by Massachusetts Governor Mitt Romney haven't themselves been criticized, but Boston.com reports that the demographic makeup of his 19 nominations in his two years thus far as governor is strikingly uniform.

Seventeen have been men. Only two have been minorities (both men). Many are former prosecutors. Complaints are noted from members of the Women's Bar Association of Massachusetts, some Governor's Councilors (who approve nominations), and the Lawyers' Committee for Civil Rights Under the Law.

Shawn Feddeman, the governor's Press Secretary, stated that the problem is a lack of qualified women and minority applicants, and says that the governor has been frustrated himself by a supposed perception among these applicants that they will not be considered unless they have political connections.

If this is a misperception, wouldn't the governor's office be the perfect voice to lead the effort to dispel the impression, and to increase active recruitment of candidates? The previous governors didn't seem to run into this same kind of problem: about 30% of Gov. Bill Weld's and about 40% of Gov. Paul Celluci's judicial apointments were women.

Reporter's shield bill introduced in House

2005-02-03T13:40:00.000-05:00

A bill to provide reporters with an absolute privilege against compelled disclosure of their sources was introduced in the House today by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.), according to the Reporters Committee for Freedom of the Press website (www.rcfp.org).

The bill, titled the "Free Flow of Information Act," also would keep journalists from being subpoenaed to testify or reveal any other information unless all other sources for the information had been exhausted and the material was essential to the underlying court case or investigation.

Almost a dozen reporters from major news organizations were cited for contempt last summer. Probably the most publicized is Judith Miller, who received information regarding Valerie Plame, but never wrote a story with the information and then was threatened with jail time.

Nearly every major media company in the country is fighting at least one subpoena from a federal prosecutor. Currently, thirty-one states and the District of Columbia have shield laws, with Maryland being the first to enact one, in 1898.

The Reporters Committee for Freedom of the Press has a petition on their website, titled "Standing Up for the First Amendment" they plan to present this statement to federal officials and publish it in newspapers around the country.

This in the same week that a study by the John S. and James L. Knight Foundation revealed that more than one in three high school students, when told of the exact text of the First Amendment, said it goes "too far" in the rights it guarantees. Only half of the students said newspapers should be allowed to publish freely without government approval of stories. (Argh!!) The survey is covered in full on The Knight Foundation website. The teachers of these same students thought the First Amendment was great -- so why aren't they communicating the benefits of free speech to their students? Or, better, communicate the bad things that happen when there is no free speech?

Wade Henderson on the Supreme Court

2005-02-03T09:01:00.000-05:00

Leadership Conference on Civil Rights executive director Wade Henderson last night addressed the Commonwealth Club in San Francisco, with the topic of the day being Supreme Court appointments. Henderson urged caution to those who feel that the possible elevation of either Justice Scalia or Justice Thomas to Chief Justice would not cause a shift in the current makeup of the court. He noted Justice Scalia's position on the right to privacy and what Henderson called the "radical conservatism" of Justice Thomas. In Henderson's opinion, the appointment of either of these justices to Chief Justice would be "a dream come true for ultra-conservatives -- and a judicial fright night for everyone else."

US District Court: Solomon Amendment Unconstitutional

2005-02-02T16:31:00.000-05:00

The US District Court for the District of Connecticut has granted summary judgment to the Yale Law School faculty members who brought suit against enforcement of the Solomon Amendment in Burt v. Rumsfeld. Full details over at NESL OUTLaws, but here's the decision in a nutshell: Accordingly, the Solomon Amendment is hereby declared unconstitutional as applied, and the defendant is enjoined from enforcing it against Yale University based upon Yale Law School’s Non-Discrimination Policy. The Clerk is ordered to close the case.

No doubt the decision will be appealed to the Court of Appeals for the Second Circuit.

Perspectives on Law and Contemporary Culture

2005-02-02T13:28:00.000-05:00

Students at the University of Kansas School of Law have launched a new online venture that: "is an online publication that explores the interaction of law and culture in today’s society. It endeavors to provide timely information and commentary related to some of the most important legal questions facing society while also taking time to highlight some of the less important but more entertaining interactions between law and culture."
The first issue of Perspectives on Law and Contemporary Culture is available now. The articles in this and future issues will focus on four general topic areas: Cultural Law, Demystifying Law, Law Impacting Culture and Trends. The various articles are grouped in the archives by both publication date and topic, and can be viewed as either HTML or PDF.

The current issue (Spring 2005) contains the following articles:

The Ninth Amendment and Fundamental Liberty Interests - Ed Browne (Cultural Law)
Public School Failures: Dear God, What's a State to Do? A Two-sided Analysis of Zelman v. Simmons-Harris - Tyler Heffron (Demystifying Law)
U.S. Protectionism Good or Bad: An Analysis - Luis Gomar (Law Impacting Culture)
Three Pragmatic Approaches to Judging: Explanations and Comparisons - Zachary Stolz (Legal Trends)

Illinois v. Caballes - Fourth Amendment

2005-01-28T10:37:00.000-05:00

This week the Supreme Court issued its opinion in Illinois v. Caballes (No. 03-923), which involved a question of:

"Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop."
The court held that:

"A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment."

Key to their decision was that the dog-sniff activity was conducted by a second officer who had arrived (without being requested) after the first officer had stopped the driver (for driving 71 mph in a 65 mph zone), and that the activity of walking the dog around the vehicle did not by itself extend or alter the activity of the officer who was issuing the speeding warning to the driver. After the dog indicated something amiss in the trunk, the officers then had probable cause which authorized the searching of the trunk, which indeed contained marijuana.

The court includes comments that this holding is consistent with Kyllo v. United States (533 U.S. 27), which found unlawful the use of a thermal-imaging unit that detected what the investigators concluded (correctly) was the use of lighting units for growing marijuana indoors. The court's distinction is founded on their opinion that the thermal-imaging units could be indicating instead the timing of indoor sauna use, while drug sniffing dogs will reveal "no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment."

Justice Stevens wrote the opinion, joined by Justices Scalia, Kennedy, Thomas and Breyer. Justice Souter issued a dissent, and also joined in a dissent written by Justice Ginsburg. Chief Justice Rehnquist did not take part in the decision.

Justice Souter's dissent is based on the court's reliance on their holding in United States v. Place (462 U.S. 696, 1983), which was in turn based on an assumption of the infallibility of drug-sniffing dogs. He points to evidence of the instances of error among these narcotics sensitive canines, and he would hold instead that such use of a dog without other indicators of suspicion would be violative of the Fourth Amendment.

Justice Ginsberg would have affirmed the Illinois Supreme Court decision that the dog-initiated search was unreasonable given the limited nature of the traffic stop and the lack of any other suspicious indicators, such as the scent of marijuana or a visual sighting of drug-related items. She rejects the court's justification that the dog search was not violative because it did not extend the length of the stop, and points out that the search instead extended the scope of the stop. She also points out that even if the court's reasoning that dogs will only detect unlawful activity, allowing the use of drug-sniffing dogs without cause at any and all traffic violations will then subject the innocent and guilty alike to more intimidating police actions, and predicts that the path has now been made more open for random use of narcotics dogs around pedestrians and parked cars. She does distinguish between the use of drug-sniffing dogs aimed to prevent criminal activity and bomb-sniffing dogs aimed to protect general threats to public safety.

Supreme Court Denies Florida Appeal

2005-01-24T11:20:00.000-05:00

Last fall the Florida Supreme Court declared that the Florida legislature had violated the separation of powers in enacting a law specifically to overrule a lower Florida court's decision in favor of allowing a man to remove the feeding tubes from his severlely brain-damaged, hospitalized wife, over the objections of her parents.

Florida Governor Jeb Bush appealed the Florida Supreme Court's decision to the US Supreme Court. Today the US Supreme court denied the appeal, without comment.

Arline Isaacson Speaking at NESL

2005-01-20T17:09:00.000-05:00

Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus, will be speaking at New England School of Law this coming Tuesday, January 25, at 6:00 pm in the Cherry Room.

Come hear one of Boston’s leading lobbyists, who will share insight about her work on Beacon Hill, and will field your questions about Goodridge, the proposed constitutional amendment, life as a lobbyist and her predictions for the coming months.

The topics will include her experiences as a political lobbyist during the 2004 Massachusetts Constitutional Convention and about what is to come at the 2005 Convention.

Jane Roe decides she doesn't need rights after all...

2005-01-19T13:40:00.000-05:00

In an Associated Press article that popped up on Yahoo this afternoon ---

Norma McCorvey, whose protest of Texas' abortion ban led to the 1973 ruling (Roe v. Wade) now regrets her part in the case and petitions the court to re-hear the case in light of evidence that the procedure may harm women. "Now we know so much more, and I plead with the court to listen for witnesses and re-evaluate Roe v. Wade," said McCorvey, the woman once known as "Jane Roe."

The article points out that two lower courts threw out McCorvey's request last year and reminds readers that at least three justices, including Rehnquist, have said Roe v. Wade was wrongly decided and should be overturned. The 5th U.S. Circuit Court of Appeals (news - web sites) judge Edith H. Jones criticized the abortion ruling and said new medical evidence may well show undue harm to a mother and her fetus.

Have anti-abortion groups been hounding this woman for 32 years, so now she's brainwashed into thinking that she didn't need those silly reproductive rights after all?

The Fallacy of Torture

2005-01-14T14:22:00.000-05:00

Mary over at Pacific Views has a post today analyzing the continuing belief that torture can be effective at extracting information. The debate recently has been focused on under what circumstances (if ever) torture is acceptable as being necessary under the dire circumstances.

Focusing on the ineffectiveness of the method itself helps remove the concept out of the realm of "undesirable but sometimes needed," and back into "both undesirable and countereffective," not to mention violative of human rights and international agreements.

Homeland Security Nominee: Judge Michael Chertoff

2005-01-11T10:01:00.000-05:00

Pres. Bush has nominated US Court of Appeals (3rd Cir.) Judge Michael Chertoff to replace Tom Ridge as the Secretary of Homeland Security.

Prior to his judicial appointment, Chertoff was Assistant Attorney General, Criminal Division from 2001-2003, during which time he was a leader in the Justice Department's response to terrorism after 9/11, and in implementation of the USA Patriot Act. You can read here his 2002 prepared statement to the Senate Banking Committee on the anti-money laundering provisions of the USA Patriot Act.

ACS of NESL Seeks Discussion Coordinators

2004-12-29T09:30:00.000-05:00

Here's that post I promised at our last meeting!

We're hoping to recruit an unspecified number of volunteers to coordinate and facilitate one or two Supreme Court discussion groups each during the spring semester. These groups would be small, with a limit of 10-12 people per group, and would meet only once each.

The job of the coordinator would be to pick a case from the current Supreme Court term, reserve a room, arrange for a local legal professional (professor, attorney, judge, legal reporter, etc.) to attend, provide background information for participants (links to case documents, hard copies of some of the important case documents, etc.), do some advertising around school, and be the contact person for people who would like to attend your session. The exec. board will provide assistance with these various tasks.

During the session itself, the coordinator isn't expected to be the "expert" on the case, but is responsible for prompting the discussion, keeping it going and keeping it on a professional level should it begin to stray.

This is perfect for students who feel they have "odd" schedules, because you can schedule your session whenever is convenient for you. Odds are that you're not the only one for whom 9:30 on a Tuesday night or 10:00 on a Sunday morning is the best time!

Here is an earlier post that provides links information on Supreme Court cases. We decided to forgo the selection-by-poll idea, and will just leave it up to the volunteers to choose their case. If more than one person would like to take the same case at different times, that would be fine.

The ABA has some brief previews on their Supreme Court Preview section. Note that the preview of Pasquantino v. United States was provided by NESL's own Professor Davalene Cooper!

The Legal Information Institute at Cornell University has also started a new feature, LII Bulletin, which provides in-depth analysis of current Supreme Court cases. The first page has summaries, but each case has a link to a more detailed page.

SCOTUSblog provides daily updates of interest to Supreme Court watchers, as does How Appealing.

Let us know (my e-mail) if you're willing to take on a case or two!

ACSBlog (National) Seeks Student Editors-at-Large

2004-12-29T09:26:00.000-05:00

ACSBlog is holding a writing competition in the hopes of hiring up to five new law student Editors-at-Large, who will post biweekly analytical columns on their blog. Entries should be 250-750 words, and are due by January 31st. Full details here.

Alabama Judges and Ten Commandments

2004-12-15T10:07:00.000-05:00

Circuit Judge Ashley McKathan didn't let the removal of Alabama Chief Justice Roy Moore dissuade him from exhibiting the latest in judicial displays of the Ten Commandments.

Judge McKathan yesterday presided over his Covington County courtroom sporting a robe embroidered with the Ten Commandments. There is disagreement in reports of the size and impact of the lettering. Some describe it as being large enough for anyone near the judge to read, while Judge McKathan insists he specifically chose the font size so as "not to be in anybody's face," and he doesn't believe the robe will have an impact on jurors. McKathan told The Associated Press that he believes the Ten Commandments represent the truth "and you can't divorce the law from the truth. ... The Ten Commandments can help a judge know the difference between right and wrong."
The attorney whose DUI client was in court at the time objected to the robe and requested a continuance. Both motions were denied. Attorney Riley Powell expects to include the robe issue to be part of an appeal should his client not prevail.

Former Chief Justice Roy Moore supports Judge McKathan in his choice of attire:

"I applaud Judge McKathan. It is time for our judiciary to recognize the moral basis of our law," Moore said.

He probably just wishes he thought of it first. Would have cost a lot less than installing that hefty monument.

Name that Justice

2004-12-11T10:43:00.000-05:00

Who made the following speculation during this week's Supreme Court arguments on possible racial discrimination in the death penalty trial of Thomas Miller-El?

Justice Kennedy, `Here the prima facie case of discrimination is immensely powerful because of the history of discrimination in the DA's office.'

Justice Souter, `These are the same two prosecutors who were found guilty as it were of discriminating in previous cases.'

Justice Ginsburg, returning to the race-coded jury cards compiled by prosecutors, `What neutral reason is there for that?'

When lawyer Bunn floundered, [this Justice] interjected, `They could have wanted to avoid an all-white jury.' At that, defense lawyer Seth Waxman's jaw literally dropped.

-Nina Totenberg, NPR News, Washington.

Radio & TV Transcripts on Westlaw

2004-12-10T09:06:00.000-05:00

I just learned something new and useful through the little sign-off quiz that Westlaw instituted this year. Westlaw has 80+ databases dedicated to transcripts of various radio and television news type shows. I gave it a little test run by searching in the general Transcripts database for:

npr & nina & "supreme court"

I put a time limit of the most recent 30 days, and was handed 15 transcripts of Nina Totenberg's NPR reports on happenings at the Supreme Court. Most excellent!!!
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UPDATE (9:18 a.m.) - In the interest of fair and balanced reporting, I checked out LexisNexis also, and was able to find transcripts of Nina Totenberg's reports there as well. The Transcripts database is located under the News & Business>News database.

Poll Interpretation

2004-12-09T08:28:00.000-05:00

Attorney Matthew Segal has a brief but interesting article on FindLaw's Legal Commentary page, in which he takes a look at the recent AP poll that concluded that Americans favor a set retirement age for Supreme Court Justices, favor upholding Roe v. Wade, and oppose gay marriage.

Segal takes a closer look at some of the less publicized poll information, such as the fact that 41% of the respondents were unable to identify William Rehnquist's job, and the differences in phrasing on the abortion question (asked whether Supreme Court nominees should favor upholding the precedent established in Roe v. Wade) and the gay marriage question (did not mention any cases, but asked about personal opinion only).

He also provides arguments for and against mandatory retirement for Justices. He's firmly against, and I have to agree. Why? Read the article.

Newsweek Analysis of Justice Thomas

2004-12-08T08:39:00.000-05:00

Yesterday Newsweek posted up an article taking a look at how Justice Clarence Thomas, while lauded as a conservative's conservative, is anything but when it comes to his decisions and adhering to stare decisis.

First Amendment Project

2004-12-07T13:16:00.000-05:00

Court TV and The Sundance Channel's joint effort, The First Amendment Project, will begin airing this evening. Each of the four episodes take a look at a different facet of issues involving the First Amendment. More information here.

Two episodes will air tonight, and the other two next week.

Commerce Clause v. 21st Amendment

2004-12-07T11:45:00.000-05:00

Arguing at the Supreme Court today are the attorneys in "the wine cases," in which wine producers are calling to have struck down state laws preventing direct-to-consumer wine sales to in state residents from out of state wineries.

Supreme Court briefs filed by each side can be found at ABANet, and a nice summary article and links to the lower court decisions can be found at On the Docket.

The main arguments in this case involve a potential clash between the Commerce Clause and the 21st Amendment. Plaintiffs will assert that the states' regulations are discriminating against out of state businesses in favor of in state businesses, while the defendants will argue that the 21st Amendment gave states control to regulate the sale of alcohol within their borders, and that the regulations in question are necessary for assuring that all sales in the state are legal and properly taxed.
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UPDATE: The Washington Post's article about this morning's arguments has some excerpts from the hearing.

Holidays, Seasons, Religion and Government

2004-12-03T10:00:00.000-05:00

From How Appealing I found this Sacramento Bee article on a dispute over seasonal displays in the federal courthouse in Sacramento.

The kerfuffle started last Friday, the traditional day for setting up the Christmas decorations in the courthouse rotunda. On schedule, a 9-foot tree appeared, along with evergreen garlands on the guards' stations and Christmas music over the PA system. A Sacramento attorney, Michele Waldinger, was inspired and got the okay from the building manager to donate a 14-inch menorah and some paper dreidels. The new items were displayed on a ledge at the rear of the rotunda. And hijinks ensued.

While many see the evergreen tree and Santa Claus as symbols of Christmas, many Christians see them as vestigial symbols of pagan festivals and do not associate them with their own religion. However, some of these same Christians view the menorrah as a distinctly religious symbol, and felt left out in terms of religious displays.

Management took down the entire display while arguments were made, then replaced everything once it was determined that the US Supreme Court ruled in 1989 that a combined display of a menorah, Christmas tree and a secular holiday symbol is permissible in a federal courthouse.

Where is the line between religious holiday and seasonal festivity? Are they really distinct in the modern displays? Where is the shift from freedom of religion to promotion of religion? What about religions outside the Judeo-Christian framework? While my entire company's office space (common areas and individual offices) has sprouted Christmas decorations galore with seemingly no issues, a coworker was cautioned about wearing a pentacle pendant when customers would be on site. Not that he ever interacts with the customers, who can't help seeing the giant felt fireplace and stockings that have been hung with care over a counter area off the main hallway, and the giant wrapped packages that have been attached to the walls between the regularly appearing artwork.

The annual lighting of the giant Christmas tree on Boston Common was held last evening, after which Santa and his elves were driven around on Boston Fire Department trucks (I waved as they drove past NESL while I was waiting to cross the street to Starbuck's). Mayor Menino hosted the festivities, and he is also promoting his Mayor's Holiday Special, through which theater goers can get discounted tickets to such shows as The Nutcracker, The Messiah and the Rockette's Radio City Christmas Spectacular. Is this all religious promotion or an attempt to spur shopping among residents?

Back Door Re-Draft

2004-11-07T10:46:00.000-05:00

David Miyasoto, a veteran of the Persian Gulf War who was honorably discharged from the Army eight years ago after completing his eight-year service obligation, was notified in September that he is being reactivated. Miyasoto enlisted in 1987, was honorably discharged from active service in 1991, then completed his service by his activity in the Army Reserves into 1996. He did not re-enlist, sign up for bonuses, or transfer (or receive notification of transfer) to the Individual Ready Reserve or any other unit.

The Army has announced that it will be involuntarily activating 5600 members of the Individual Ready Reserve, composed of discharged soldiers who nonetheless have outstanding obligations. Miyasoto formerly served as a truck driver and refueler. A current Army Reserve unit assigned those duties in Iraq recently refused a mission, citing improperly maintained and unsafe equipment. That unit was based in Rock Hill, South Carolina. Miyasoto's orders are to report for duty in South Carolina.

Miyasoto has filed suit in federal district court in Honolulu, seeking a declaratory judgment that he has fulfilled his military obligations.

Supreme Court Speculation

2004-11-04T08:15:00.000-05:00

This morning on NPR's Morning Edition, I heard the first Supreme Court speculation that didn't entirely make me cringe. Senior Correspondent Juan Williams reported that in discussions regarding the possible replacement for Chief Justice Rehnquist, the first name he has been hearing is Justice Sandra Day O'Connor. That of course would leave her position available for another appointment.

With potentially at least four Supreme Court openings in the coming presidential term, Williams stated that he feels that Pres. Bush will be more likely to nominate moderates in an effort to avoid highly controversial confirmation hearings and allow him to get his nominees approved and in place on the bench.

The Seattle Times, in an article speculating that Bush would likely be more aggressive with his federal judicial nominees at the various levels, reported that anticipated Chair of the Senate Judiciary Committee, Republican Arlen Specter, also hopes that Bush will be more centrist in his nominees: Sen. Arlen Specter, the Republican expected to chair the Senate Judiciary Committee next year, bluntly warned Bush yesterday against putting forth Supreme Court nominees who would seek to overturn abortion rights or are otherwise too conservative to win confirmation.
"When you talk about judges who would change the right of a woman to choose, overturn Roe v. Wade, I think that is unlikely," Specter said, referring to the landmark 1973 Supreme Court decision legalizing abortion. "The president is well aware of what happened, when a bunch of his nominees were sent up, with the filibuster. ... And I would expect the president to be mindful of the considerations I am mentioning."
We'll be watching.

ACS Event - Writs, Rights and the Rule of Law

2004-11-01T13:08:00.000-05:00

There's a local event of interest next week, over at Suffolk. The official announcement is below. Note that because of Veteran's Day, next Wednesday is a Thursday class schedule at NESL.
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The Boston Lawyer Chapter and Suffolk University Law School Chapter of the American Constitution Society present: "Writs, Rights, and the Rule of Law:What Guantanamo Means for All of Us" November 10, 2004, 4:00 - 6:00 p.m.Suffolk University Law School.

A panel featuring:

Erwin Chermerinsky,Alston & Bird Professor of Law at Duke School of Law (via teleconference)

Gitanjali Gutierrez,Gibbons Fellow, Gibbons, Del Deo, Dolan, Griffinger, and Vecchione

Barbara Olshansky,Deputy Legal Director of the Center for Constitutional Rights

Richard Shiffrin,Visiting Professor of Law, University of the Pacific McGeorge School of Law ;Former Deputy General Counsel for Intelligence, DoD, 1997- 2003;Deputy Assistant Attorney General 1993-1997 (via teleconference).

November 10, 2004, 4:00 - 6:00 p.m.
Suffolk University Law School, Room 315
120 Tremont Street
Boston, Massachusetts (Across from the Park Street MBTA, Close to Downtown Crossing and Government Center MBTA stations)

This event is free and open to the public. Please RSVP and direct questions to: Boston@ACSLaw.org

Movie Night: Hijacking Catastrophe

2004-10-26T08:46:00.000-04:00

Tonight we'll be holding the second of our ACS movie nights, featuring the documentary Hijacking Catastrophe: 9/11, Fear & the Selling of American Empire. Michael O'Sullivan of the Washington Post described the film this way in his review: More sober, yet no less sobering, than Moore's alternately clownish and gut-wrenching diatribe, "Hijacking Catastrophe: 9/11, Fear and the Selling of American Empire" presents the facts without any funny business. Which is not to say it's dull. This film presents its argument in a way that is both cogent, concise and engaging.
Last week's showing of Fahrenheit 9/11 was well-attended, especially given that it was the same night as an American League playoff game! The post-show discussion was lively, intelligent and enlightening.

Red Sox fans take note: the movie is only 68 minutes, so will be done by 8:25 this evening. Game 3 of the World Series starts at 8:05, so you can do both!

Also note that the Women's Law Caucus is showing Iron-Jawed Angels down the hall in Room 507 at 9:00, so if watching the game isn't your thing, you can do a movie double-header.

We hope to see you in Room 501 at 7:00 for light snacks, with the show starting at 7:15.

Grazie Molto, Inter Alia

2004-10-20T10:46:00.000-04:00

A big thank you to internet legal research weblog (among other things) Inter Alia, for choosing us as today's Blawg of the Day!

Equal Time: Kerry and Bush in NY Times

2004-10-19T08:48:00.000-04:00

The NY Times Magazine, on October 10, 2004 had a feature article on Kerry ("Kerry's Undeclared War" by Matt Bai) that went into detail on his foreign policy concerns, approach and reasoning, among other issues.

This weekend, the Magazine had an equally detailed feature on Bush ("Without a Doubt" by Ron Suskind) that delves into Bush's faith-based, gut/instinctive approach to decisions.

Both articles are worth any voter's time to read, I think.

Boston Lawyer Chapter Event Oct. 20

2004-10-18T09:32:00.000-04:00

From the ACS newsletter comes information on an upcoming event from the ACS Boston Lawyer Chapter. It sounds excellent - wish I didn't have class that night!
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ACS's Boston Lawyer Chapter presents "What's at Stake? The Impact of Judicial Nominations on Law Policy," featuring Eleanor "Eldie" Acheson, former Assistant Attorney General, and Judith Lichtman, Former President, National Partnership for Women and Families, and moderated by Ronald Weich, Zuckerman Spaeder LLP, former Chief Counsel to Senator Edward Kennedy on the Senate Judiciary Committee.

Wednesday, October 20, 6:30 - 8:30 p.m., Sheraton Boston Hotel, 39 Dalton St. Boston. Reception to follow. Free and open to the public. Please RSVP to Boston@ACSLaw.org .

11th Cir. Court of Appeals: War on Terror Does Not Trump Liberties

2004-10-16T13:54:00.000-04:00

AP reports that the 11th Circuit Court of Appeals held yesterday that city officials in Columbus, GA may not use vague fears of terrorist attacks to require protesters to submit to a metal detector search prior to taking part in the annual protest against the Western Hemisphere Institute for Security Cooperation, formerly known as the School of the Americas. The Fort Benning facility is a military training program for Latin American soldiers.

Roughly 15,000 protesters attend the annual event, organized by School of Americas Watch.

According to the opinion, one of the factors the city relied on to support its actions was that:
Second, protestors in previous years had demonstrated a history of “lawlessness” because many of them engaged in frenzied dancing, did not immediately disburse at the end of the scheduled protest, and “formed a ‘global village’ from large debris.”

The city also argued that:
“[p]ost September 11, 2001, this Court can determine [that] the preventive measure of a magnetometer at large gatherings is constitutional as a matter of law.”

The court soundly disagreed:

This argument is troubling. While the threat of terrorism is omnipresent, we cannot use it as the basis for restricting the scope of the Fourth Amendment’s protections in any large gathering of people. In the absence of some reason to believe that international terrorists would target or infiltrate this protest, there is no basis for using September 11 as an excuse for searching the protestors.

Even putting aside the City’s ill-advised and groundless reference to September 11, its demand for the unbridled power to perform “magnetometer searches at [all] large gatherings” is untenable. The text of the Fourth Amendment contains no exception for large gatherings of people. It cannot be argued that the Framers simply failed to foresee the possibility of large protests of this character. The Assembly Clause of the First Amendment, expressly guaranteeing “the right of the people peaceably to assemble,” U.S. Const. amend. I, demonstrates the Framers’ commitment to protect individuals exercising this fundamental right from governmental interference.

The court found that the search requirement was a violation of the protestors' First and Fourth Amendment rights.

Draft of US Commission of Civil Rights Report on the Bush Administration

2004-10-15T14:11:00.000-04:00

The U.S. Commission of Civil Rights has posted the draft version of the the commission's report, "Redefining Rights in America: The Civil Rights Record of the George W. Bush Administration, 2000-2004."

The draft report is listed and linked on the commission's homepage, and has sections on such subjects as judicial nominations, political appointments, federal workforce, voting rights, educational opportunity, affirmative action, housing, environmental issues, profiling, hate crimes, immigration, disability issues, women's and gay rights, and access to federal programs. At 181 pages it's not quick reading, but it's not as long as the 585-page report of the 9/11 Commission.

The Republican commissioners are angered both at the content and the timing of posting. Draft versions of reports are written by staff members and posted immediately under a procedure approved in 2002. It is not final until the commissioners review it and vote on any challenges. This procedure will not occur until after the election, as was done with the report on the Clinton Administration in 2000.

Re: Voter Competency Test

2004-10-15T08:56:00.000-04:00

I was looking online and found several articles about the voter competency test that Beth was talking about in the previous posting. http://news.tbo.com/news/MGBMP66C6ZD.html, http://www.washingtonpost.com/wp-dyn/articles/A18916-2004Sep13.html. Like Beth, I take a hard line with people that are uninformed and competency tests seem like a fanciful and possibly ideal solution to this, however voter testing is just not realistic in our society and in our country. For over a century, America has been working towards universal suffrage and it seems like taking two steps back that America would try to restrict voting rights in the year 2004. The articles listed above state that the issue in these instances is voting fraud and one gives an example of a woman that voted for her elderly mother in addition to her own vote. This is a concern, but competency tests are not the answer.

Voter Competancy Tests

2004-10-14T15:09:00.000-04:00

I just caught the tail end of a discussion on NPR about a proposal to require dementia patients to pass a minimal competancy test prior to being allowed to vote. I apologize that I haven't been able to find the source material for this, but it hasn't been posted. I'll update when I locate something.

The test was something like a two part question, to be applied at the poll, along the lines of "Do you understand that you are voting for governor of the state, and that whoever gets the most votes wins?"

This concept sounds to me, well, simply wrong. If we were to allow nonprofessionals to apply screening tests to one group (and how would the dementia patients be identified to begin with), where would it stop? Would we require a loyalty test? A minimal civics knowledge test, or a current events analysis?

I personally am appalled by the level of disinterest among many citizens when it comes to learning the slightest bit about what's going on in the world, or even in the country, their state or their own town, but personal understanding and awareness of the political system isn't required to cast your vote. A nondementia patient wouldn't even have to prove they know who the candidates for president are before being handed a ballot or instructions and pointed to a booth.