Feddie and I have been having a discussion about this exchange from last week’s “60 Minutes” in which Antonin Scalia and Lesley Stahl discuss the constitutionality of torture and we decided to throw it open to the good readers here at SA to weigh in on just what Scalia is saying.

Is he saying, as I contend, that torture is not per se unconstitutional or is he arguing here, as Feddie contends, that Scalia is correct on the narrow question of whether or not constitution is prohibited by the 8th Amendment. Feddie says that while Scalia is correct on this point, torture is unconstitutional under a variety of other constitutional provisions, especially the 5th and 14th Amendments (at least that is my interpretation of Feddie’s argument - he is welcome to weigh in and correct it if I am mistaken), whereas I argue that Scalia is not making a narrow, technical argument at all and seems to believe that while it is perfectly fine for Congress to pass law banning torture, torture itself is not necessarily unconstitutional and that, if this specific question ever came before Scalia on the court, he would not hesitate to say just what he said here: torture is not unconstitutional.

So what do SA’s esteemed readers think Scalia is saying here and what you do think of his argument?

Video here - transcript below the fold
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*  Dan Pero, president of the American Justice Partnership has launched a new blog, American Courthouse.  He aims 

to create a forum where we could expose the trial bar’s tactics and discuss other activities that threaten a fair, independent and impartial judicial system. I also want to point to signs of hope – leaders who are fighting to reform our legal system; jurists who follow the law rather than legislating from the bench; legislators dedicated to promoting common-sense reforms; other bloggers who have taken up this fight; and many others as well.

Best of luck to you, sir!

*  Judging from the posts thus far, one area Pero will follow is the debate over state judicial selection, a debate which has caught the eye of George Soros, among others.  Check out this recent short piece on the subject by Constance Hately, for The American Spectator.   

*  Speaking of law reform:  The Second Circuit has 86′ed the City of New York’s suit against firearms manufacturers. 

*  Amity Shlaes gives “The Dirty Dozen” a thumbs-up in today’s Wall Street Journal.

*  The George Mason University law school is a national treasure, yet it was caught in the maw of the ABA re-accreditation process for six years.  Gail Heriot explains why.

*  Finally, to what extent does China’s recent economic performance undermine the view that a country’s “institutions” — most notably, private property and an independent judiciary — are determinative of economic success?  For one MIT economist’s take, click here.  Here’s the gist of it:

“China then and now does not have well-specified property rights security,” Huang says. “But China in the early 1980s moved very far and fast toward establishing security of the proprietor. One should never underestimate the incentive effect of not getting arrested.”

If you missed the Society’s recent (March) student confab in Ann Arbor (theme: “The People and the Courts”), fear not!  You can now watch (or just listen) to the whole enchilada online, here.   The full agenda is below the fold: (more…)

On Monday, the New Jersey Supreme Court held that New Jersey citizens had a reasonable expectation of privacy in the subscriber information which they provide to their internet providers particularly their IP address which his/her ISP assigns to him/her for use in accessing the internet.  The decision is available here. (h/t to How Appealing).  The Court did so based upon the New Jersey Constitution’s prohibition on unreasonable searches and seizures which has been interpreted to be broader in its scope than the protection afforded by the similar language found in the Fourth Amendment of the U.S. Constitution.  As noted in the New Jersey opinion, federal courts which have considered this issue in the context of the Fourth Amendment have not found an expectation of privacy.  This decision is not likely to have an immediate impact in Alabama since our appellate courts have interpreted Alabama’s prohibition on unreasonable searches and seizures to be no greater than the protection afforded individuals under the Fourth Amendmen. 

on NRO’s “Between the Covers.”

I have not yet read Judge Posner’s latest, but did enjoy Ed Whelan’s lengthy review on NRO yesterday. Is there anyone out there in the vast SA audience who has an opinion about the book? If so, please post a comment.

I’m having a Gollum-like internal struggle over the polygamy raid in Texas.  On the one hand, I’m a firm believer in the rule of law and protecting the innocent, so I can get behind the idea of saving all the children from general religious craziness.  I’m also not overly religious, so I have no sympathy in their “moral” defense.  And yet . . . isn’t there something inherently disturbing about law enforcement and child protective services storming the bigamist beaches, as it were, ripping dozens of children from the breasts of their mothers and fathers on nothing more that the fact that they all live in a town where a couple of people have been accused of rape?

I believe in statutory laws, to some extent (I have problems with the application more than anything else).  I understand that polygamy is, at least, a statutory no-no.  But this one is not passing the smell test for me.  I don’t want 13-year olds forced into marriage with 50-year olds.  I don’t want children brainwashed into some sort of mindless, communal servitude.  But I also think that parents should, within bounds, be able to raise their children as they wish.  And I certainly don’t think that the police should be able to take my kids away solely based on the fact that one of my neighbors raped a girl and we just happen to go to the same church. 

If the authorities had arrested just the specific alleged offenders and taken them to jail, I’d be all for it.  But to sweep through an entire town on the accusations of a few people is a bit much for my conservative anti-authoritarian streak. 

So, what say you, dear reader?  Is this just a visceral response to polygamy?  Do you think the State acted appropriately here, and, if so, do you really think the children, as a group, are better off now?

Please codify your state’s common law for contracts ASAP.

That is all.

The brilliant and lovely Jan Crawford Greenburg has an interesting recap of Attorney General Michael Mukasey’s first argument before the Supreme Court.

Juris-Jitsu: the art of jurisprudential ass-kicking; the ability to inflict paralyzing verbal/linguistic blows to subdue or disable an opponent in litigation or legal debate.* 

E.g.: Justice Scalia in a ninth-degree black belt in juris-jitsu; Justice Kennedy’s juris-jitsu is weak.

Feel free to create your own “juris-jitsu” sentences in the comments.

T-shirts and other merchandise to follow. :)  

*Copyright © 2008, Fedster.

Too funny.

Yep, I’ve been writing about this danger on SA and the South Carolina Appellate Law Blog for some time.  Now, the Washington Times is picking up on the theme. 

Having spent the last week cramming the laws of evidence, mostly focusing on the 400s and the 800s, I came to wonder about the state of hearsay.  To give the two second intro (necessarily somewhat inaccurate) for those who don’t know, hearsay is an out of court statement offered for the truth of the matter it asserts.  It is generally excluded because such statements are presumed unreliable and it is also difficult to confront the witness against you (the statement). However, there are numerous (27 by my count) exceptions, 4 exemptions, and ‘offered for the truth’ and ‘the matter asserted’ are both read rather narrowly.  Further, there is a catch-all exception (807) which covers a statement that doesn’t fall into any specific category, but bears equivalent indicia of reliability (and other factors).  Whether a statement falls in any these categories or is otherwise admissible is largely at the trial judge’s discretion (FRE 104, 106, 403 et al.) and their rulings are rarely reversed (104 – ‘substantial effect’). 

With this being the state of affairs, wouldn’t it be more effectual just to revert to a general rule: hearsay is presumptively inadmissible, but subject to admission if a judge finds certain indicia of reliability and, in certain cases, notice is given to the opposing party.  This would put the hearsay rule on a similar footing as the rules governing privilege, to be decided by the judge in light of ‘reason and experience.’  Is there any reason in this age to consider dying declarations particularly trustworthy?  Studies have shown that the time it takes to formulate a lie can be the same as to repeating a ‘present sense impression’ (803(1)), and certainly is no more than a minute.  The problem of uncertainty for trial preparation in this case could be handled by motions in limine and a judicial practice, similar to under 501, to use the prior rules as evaluative standards for the judge to make their ruling.  The notice requirement, used as needed, would preserve adversary’s ability to prepare effectively.  Now, clearly, I have not practiced.  What think those who have – could this work?

That is the new title of my forthcoming book that will be published in 2007 by Cambridge University Press. It just appeared on Amazon.com here. According to the Leiter Law Rankings, Cambridge is one of the six leading academic presses. It is ranked number one by political scientists and is considered one of the top two publishers in philosophy. Because this book overlaps the fields of law, political science, and philosophy, I am deeply gratified with the forthcoming publication of this book.

Scroll down to the “Home resident air complaints” article. 

Yet another example that we as a nation are slouching toward anarchy. If you are an undercover officer, police informant, or just a citizen who still thinks cooperating with the police is good idea, you’ll love this site. WhosaRat.com is touted as the largest online database of agents and informants. Add this to a growing list of other witness intimidation tactics and, very soon, successful prosecution of many violent criminals may become impossible. I’ve posted on this issue before as it irks me to no end.

Prosecutors in Boston have discussed whether WhosaRat is protected as free speech but have not moved to shut it down. In 2004, an Alabama federal judge ruled that a defendant had the right to run a Web site that included witness information in the form of “wanted” posters.

[Read the complete article here]

A federal judge has ruled that the U.S. “Treasury Department’s failure to design, produce and issue paper currency that is readily distinguishable to blind and visually impaired” people violates federal law, since paper money effectively precludes them from “meaningful access to U.S. currency.

The Order can be found here. 

This is from CNN:

An HIV-positive man accused of knowingly exposing three women to the virus has been sentenced to nearly three years in prison.

Robert Richardson II, 30, apologized at his sentencing Wednesday, but he argued that while his behavior was unethical, it wasn’t criminal.

If you ask me, he got a pretty light sentence. 

Here’s an excellent and thoughtful debate between Professor Kermit Roosevelt III and Professor Richard “Rick” W. Garnett.

Enjoy!

but no, what you did is most certainly not covered by the Second Amendment.

And may God have mercy on your soul, you sick bastard.

Oh, and dear readers, please note that this guy is from Wisconsin, not the South.

See the Reuters story here. I have not read the decision, but I suppose it could be defended on originalist grounds as a matter of constitutional law, depending on the circumstances.  I just do not like the result from a moral perspective.

A fascinating interview with one of my Federalist heroes, Attorney General John Ashcroft.

(LvMike)

The AP has this report.

I’ve just signed on to act as a consultant in a (federal) criminal-defense matter. One of my primary responsibilities will be to assist lead counsel in preserving issues for appeal. Do any of you know of a treatise on this subject that you would recommend?

on having his law review article, “Can Parachurch organizations Hire & Fire on the Basis of Religion Without Violating Title VII?,” published by the University of Florida Journal of Law & Public Policy.

Well done, Tom.

Professor Kerr has the details on Hahvahd’s plans to do just that. Now, I am well aware that the Hahvahd folks could care less what some country lawyer thinks about this idea, but fwiw I am all for it.

I do, however, have a few minor suggestions that I would like to offer up for consideration. Why not break the first year of law school down in the following manner:

First Semester:

The Constitutional Debates: Examining the debates from the federal and state constitutional conventions.

Constitutional text, structure, and history

It’s not in there!: Imagined constitutional rights, penumbras, judicial activism, and the “Prego” Constitution. 

Statutory Interpretation & Textualism

Federalism & States’ Rights

Second Semester:

Originalism and the jurisprudence of Justice Clarence Thomas 

Ignoring legislative history, the common law, and stare decisis

Justice Kennedy: Worst supreme court justice ever?

The Bork nomination and the politicization of the judicial nomination process by the legal left

The Nondelegation doctrine

I would like to thank all of my Hotlanta-Catholic-lawyer buddies for taking time out of their busy schedules to give me the heads up about the new-and-improved Red Mass being held up there in the big city today. I’d like to offer such thanks, but since none of y’all notified me of this event I won’t.

That’s cool. I just need to know how it is.

Well, I lost an appeal yesterday on an equal protection issue.  I wanted to run the issue by SA readers to see if you think justice was done.  At base, the issue was whether a statute prohibiting in-house physical therapists employed by a physician practice from receiving referrals from the pratice denies the PTs equal protection of the laws.  I represented as amicus curiae a group of patients who wanted the statute struck down.   

I argued that because of the statute, South Carolina now has two classes of health care providers. The first class, encompassing all licensed, certified, or registered health care providers who are not physical therapists, may receive in-house referrals.  The second class, encompassing only  physical therapists, may not receive in-house referrals.

In summary, I contended that there is no rational basis for prohibiting physical therapists from receiving in-house referrals from the physicians who employ them. Self-referral concerns about escalating health care costs, conflicts of interest, and excessive profits apply to all South Carolina health care providers and not just to physical therapists. 

I conceded that classifications among health care providers are tenable if the classification at issue relates to the different functions of the various licensed health care providers. For example, if the classification related to the performance of surgery or the dispensation of controlled substances, physical therapist (and many other licensed providers) would not be similarly situated to physicians.  In those cases, the General Assembly would be correct to differentiate between physicians and other health care providers.

The present case, however,  has nothing to do with the type of medical service provided by various health care providers.  The classification is not based on the core functions of health care providers.   Instead, the classification at issue concerns the receipt of in-house referrals, i.e., whether a physician can employ a physical therapist and refer patients to that physical therapist. All licensed health care providers, regardless the specific services provided, are similarly situated when the issue is solely the permissibility of referrals from their employers.

The state Supreme Court, in a 3-2 opinion, did not buy it.  Whatchaa think???

So ruled the US Court of Appeals for the Armed Services. 

Discussions of the ruling are available here:

Volokh

Surburban Guerrilla

SCOTUS Blog

SCAL Blog

The full text of Free Markets Under Siege: Cartels, Politics, and Social Welfare (2005) is available free as a set of PDF files, thanks to the Hoover Institution.  (Thanks also to Peter Robinson for pointing this out yesterday on The Corner.)