South Carolina has come up with a brilliant solution to subversive groups operating in the Palmetto State.  Ladies and Gentlemen, I give you the Subversive Activities Registration Act of 2010, just passed by the SC legislature:

Every member of a subversive organization, or an organization subject to foreign control, every foreign agent and every person who advocates, teaches, advises or practices the duty, necessity or propriety of controlling, conducting, seizing or overthrowing the government of the United States, of this State or of any political subdivision thereof by force or violence or other unlawful means, who resides, transacts any business or attempts to influence political action in this State, shall register with the Secretary of State on the forms and at the times prescribed by him.

The interesting thing about this act is that it doesn’t ban subversive organizations, it only requires them to register with the government.  I can already see the press photos of long lines of bored anarchists texting and smoking.  Maybe they could get up a game of hackeysack with an al Quaeda sleeper cell to pass the time.

Perhaps someone in the SA legal wing can shed some light on this?

Apparently, Rahm Emanuel’s problem with his fellow liberals is self-inflicted. Here’s a job announcement posted on the website of the U. S. Department of Justice Civil Rights Division:

The Civil Rights Division encourages qualified applicants with targeted disabilities to apply. Targeted disabilities are deafness, blindness, missing extremities, partial or complete paralysis, convulsive disorder, mental retardation, mental illness, severe distortion of limbs and/or spine. Applicants who meet the qualification requirements and are able to perform the essential functions of the position with or without reasonable accommodation are encouraged to identify targeted disabilities in response to the questions in the Avue application system seeking that information. For additional information for applicants with targeted disabilities, please contact the Civil Rights Division’s Disability Program Manager, Diane Petrie, at (202) 514-3934; see also http://www.jan.wvu.edu/LEAD/index.htm and http://www.opm.gov/disability/PeopleWithDisabilities.asp. [emphasis added]

(HT: The Volokh Conspiracy, which offers a brief commentary, and good explanation for this)

After the State of the Union, a question hung out there: how would the supreme Court respond to President Obama. Well, they wouldn’t. They couldn’t. They shouldn’t. Though we have checks and balances, our branches are not co-equal. The President’s bully pulpit and executive authority truly is checked only by Congress. To any supreme Court decision the President may (and has in the past said…), “they have their decision, let them enforce it.” Thus the judges show deferential silence. That does not mean, however, a Justice cannot make a rather smart, off-the-cuff comment in rebuttal. Here’s what Clarence Thomas said yesterday to a group of law students concerning Citizens United: (more…)

Mrs. Mule better hope this doesn’t pass here or she’s in for an ankle bracelet.

From the Daily Mail:

France will become the first country in the world to ban ‘psychological violence’ within marriage later this year.

The new law, which would also apply to co-habiting couples, would see people getting criminal records for insulting their loved ones during domestic arguments.

Electronic tagging would be used on repeat offenders, according to the country’s prime minister, Francois Fillon, who announced the law. . . .

Mr Fillon said: ‘It’s an important step forward as the creation of this offence will allow us to deal with the most insidious situations – situations that leave no visible scars, but which leave victims torn up inside.’

He added that his government would also be experimenting with electronic surveillance measures to ‘monitor the effectiveness of restraining orders against a violent spouse’.

Update:  HT to KLo in The Corner

There is nothing more distasteful, I find, than a sobriety checkpoint. The police have zero probable cause for creating a long-line on the road and detaining me for an hour or more just to ask if I have been drinking. The argument is basically this. You are driving. It is late. People like to drink late at night. Those who like to drink late at night sometimes also like to drive after they drink. Ergo, it is possible that you because you are out late at night and are driving,  you may be drinking and driving. The logic is faulty on a number of levels, not the least of which that drinking and driving are of course not legally wrong, but only drinking too much according to the standard set by the law (and even then, one might be legally drunk but perfectly capable of driving a car neither recklessly nor negligently). But say you are just out. What gives the police the right to stop you to ask if you’ve been drinking and driving? Under normal circumstances, the police need some sort of suspicious behavior or infraction (even if your taillight is out, that is enough). But here it is only because you belong to a potential class of people. Thus, based on a theory that everyone out that night is potentially a member of that class, you can be stopped. BUT FOR my driving, I wouldn’t be out that night. Is that really enough?

Well, thanks to Google Scholar, the following case is free and very readily accessible online: Michigan v. Sitz, 1990, US Supreme Court. In it, Rehnquist says it is a reasonable interest of the state to conduct such a search, notwithstanding the 4th Amendment, because drunk driving is a real problem. The dissents aren’t very helpful because the dissenters get into “effectiveness” of the stop rather than the logic that just by-passes the 4th amendments requirements for probable cause.

License and registration please!

Yesterday afternoon, Judge Myron Thompson entered a short three sentence order which denied the Plaintiff’s Motion for Class Certification for a Plaintiff Class and Defendant Class in In re: Employment Discrimination Against the State of Alabama, CV-94cv356-MHT.  This is a huge win for the state.  The Motion for Class Certification had been pending for over 6 years and this litigation or some form of it has been around since 1991.  Essentially, the Plaintiffs had sought certification of a class of all black state employees who were allegedly discriminated against in any fashion by any state agency except the Department of Transportation and the Department of Public Safety.  The lawsuit has been a huge drain on state finances and a class action would have had a much greater negative impact so the District Court’s decision is significant.

The Grinch has come early in the People’s Democratic Republic of Montgomery County, Maryland. Turns out that a little known ordinance prohibits Christmas tree sales in residential areas prior to December 5th. No one on the Board of Supervisors knew about this law prior to last year. A local scrooge cowardly anonymously called in a local church’s violation of this law with their parking lot Christmas tree sale. There is no doubt that this law is, in fact, absurd and has no rational basis. My hunch is local nurseries and commercial sellers got this law enacted to corner the post-Thanksgiving Day Christmas sales. Be that as it may, it doesn’t strike me that the law is unjust or some grave violation of the natural law. It’s just stupid. And as Scalia says, not all that is stupid is unconstitutional.

So what’s the correct course of action for the local church: 1) Do they obey the law because the law is the law? or, 2) Do they ignore the law because it’s stupid and the only real way to get the law to change is to bring attention to the situation through violating the ordinance? If they choose option 1 (which they didn’t), are they reading the scriptures too literally or just right? If they choose option two (which they did) are they giving undo scandal or taking a prudent action and engagement in the public square to restore justice under the law?

In November 2004 the board of the Dover Area School District of Pennsylvania formulated and promulgated a policy that required Dover High School ninth grade biology teachers to read in class a series of brief paragraphs:

The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part.

Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.

The policy never took effect. Soon after the school board’s action, several parents of Dover school children, assisted by attorneys from the American Civil Liberties Union of Pennsylvania, brought suit against the school district. These citizens argued that the policy violated the establishment clause of the Constitution’s First Amendment. Federal Districtt Court Judge E. Jones, III, agreed, and ruled in their favor.

(more…)

It’s always nice when a supreme Court justice, Scalia, says we should have less lawyers:

Well, you know, two chiefs ago, Chief Justice Burger, used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

via Big Government

Rep. Nadler (D-NY) claimed today that the Republican-led initiative to defund ACORN is an unconstitutional bill of attainder. I am no expert on bills of attainder but this does not seem like one. Rather than a punishment for past action without trial (i.e. a bill of attainder), voting to cease funding ACORN is more of a decision that the appalling, systemic flaws present in the organization make it unfit to continue receiving federal funds. I would think there is a key distinction between discontinuing funding and a punishment that requires ACORN to do something.

Any thoughts on this?

(Cross-posted on Underdog Soldier)

A growing number of Republican lawmakers are calling for congressional hearings and IRS audits of ACORN following the release of three videotapes that show the group’s employees offering advice to a “pimp” and a “prostitute” on how to skirt the law.

Story here.

He says he’s going to name names – BIG names. He says it’s bigger than Watergate. We shall see. More here, here, and here.

He is now promising a news story that will send government officials to jail. I’m betting he’ll be right again. How about you? How many readers will go on record here? Place your bets suckers.

Courtesy of Courtoons:

Brig. Gen. Michael Walsh was recently called to testify before the Senate. Under questioning from Sen. Barbara Boxer (D-CA), the following exchange occurred:

Sen. Boxer: “Why has it been delayed?”
Brig. Gen. Walsh: “Ma’am, at the LACPR…”
Sen. Boxer: “You know, do me a favor. Could say ’senator’ instead of ‘ma’am?’”
Brig. Gen. Walsh: “Yes.”
Sen. Boxer: “It’s just a thing, I worked so hard to get that title, so I’d appreciate it. Yes, thank you.”
Brig. Gen. Walsh: “Yes, senator.”

The words “disrespectful” and “petty” immediately come to mind. First of all,  ”sir” and “ma’am” are perfectly appropriate for addressing a U.S. Senator according to military protocol. None of the other senators present had complained, all of whom had been addressed the same way.

Secondly, Ms. Boxer herself failed to address the general as “sir” or “general” in her question, which was arguably disrespectful. Furthermore, she had previously addressed Secretary of State Condoleeza Rice as “ma’am.” You can’t expect to demand specific titles when you neglect to use them yourself.

Thirdly, who is so pretentious that they make these requests to begin with? I’m an attorney. Technically, attorneys can insist on the use of the suffix “esquire” in written correspondence. They can also opt to harangue court personnel if they fail to address them as “counselor.” However, the only attorneys who make a huge fuss over these things are self-absorbed and rude.

Using proper titles is a polite thing to do. However, when a polite title is already being employed — and “sir” and “ma’am” are certainly polite — only somebody with a huge ego or a chip on their shoulder would voice any complaint.

You may recall last April when Texas law enforcement raided the Yearning for Zion ranch – home to a small polygamous sect – after receiving a tip that child abuse was occurring there. It turned out the tip was based on a hoax. Nevertheless, officials at Texas Child Protective Services, citing concerns about potential child abuse in the future, sought to keep the hundreds of children seized in the raid separated from their parents. Ultimately the Texas Courts ruled that their had been insufficient evidence of danger to the children, and ordered the children returned to their parents.

With these events in mind, recent action by the Texas legislature with respect to the authority of CPS perhaps becomes more explicable: (more…)

Although I have had my disagreements with Brian Leiter, his recent lecture at Northwestern University on Dworkin, Posner, and Legal Realism is quite good. You can find it here.  I’m probably going to recommend it to my students when I teach Philosophy of Law in the Fall.

I want to bring to everyone’s attention an important new piece of legislation, the Susan B. Anthony and Fredrick Douglas Prenatal Nondiscrimination Act (HR 1822). The bill would prohibit abortions “sought based on the sex, gender, color or race of the child, or the race of a parent of that child.”

The bill is important for two reasons. (more…)

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”

For anybody who has been reading up on Sonia Sotomayor, this quote has become the elephant in the room.  The line was delivered during the Judge Mario G. Olmos Law and Cultural Diversity Lecture at UC Berkeley School of Law in 2001.

The problem with this line is obvious — it’s one thing to deliver platitudes about diversity, while it’s quite another to suggest that a female, Hispanic jurist has superior life experiences and will thus reach better legal conclusions. The former is P.C. blather, the latter is vile, racist dreck. If a white male had said the opposite, they’d be rightly decried as a bigot, not elevated to the highest court in the land.

Even worse,  Sotomayor’s vote in the New Haven firefighters case tends to suggest that she sets a very high bar, if indeed she sets one at all, for committing racial discrimination against whites. In that case, an exam for promotions was thrown out because too few minorities scored high enough to be promoted.  The decision was based entirely on racial outcomes and caused harm to white firefighters. Sotomayor apparently did not see any equal protection violation.

In other words, Sotomayor is a radical on racial issues and arguably a bigot herself in her attitudes towards white males. Way to pick ‘em, Obama.

According to the AP and other sources, President Obama has chosen Sonia Sotomayor to replace David Souter.

It’s great to see a fellow native New Yorker make the big time.  That, I am sure, will be the last positive thing I say about this nomination.

Mad props to ND Law Grad Anna Franzonello for praying yesterday for the President rather than attending the ceremony that recognized him with an honorary degree. I’m sure our country is in good hands with future lawyers like Ms. Franzonello!

If you’re looking for a good balance between a layman and lawyer’s understanding of the Iowa Same Sex Marriage Case, Varnum v. O’Brien, you can’t get a better summary than Helen Alvare’s take on it.

If you haven’t seen it yet, check out Randy Barnett’s case for an amendment reaffirming Federalism in our constitutional structure. Among the highlights: a repeal of the 16th Amendment and an affirmation of the limitations of power on the Federal government.

Seeing as Maryland is south of the Mason-Dixon line, it seems appropriate to bring up this tidbit that a law has passed in Annapolis making homeless part of the classes protected by hate crimes. Originally, the conservative Republican senator who introduced the bill did so in retaliation to those trying to expand the classification for sexual orientation. In fact, he tried to add do doctors, lawyers, nurses and other professionals first. But then he somehow gained traction: (more…)

As I’ve said before, I’m originally from Samson, Alabama, where the majority of the victims of Michael McLendon were killed last week. While following the story, I saw pictures of troops from nearby Fort Rucker Army base patrolling the streets of the town in the aftermath of the killings. I’m not a lawyer, but I realized that that was not a good thing, constitution-wise. Now, an investigation has been launched into the use of federal troops. (Hat tip: Capstonereport.com.) (more…)

I saw in the Times-Picayune today that a task force appointed by Governor Jindal is recommending a futher strengthening of Louisiana’s DWI laws. Although I’m no bleeding heart on the issue of drunk driving, I’m always wary of the routine tightening of DWI laws in general because enforcement never works in practice like it does in theory.

The theory is this — an officer stops a person for allegedly driving drunk due to some traffic infraction, or because they seem to be swerving, driving slow, etc. As soon as the officer approaches the suspect, he notices that he/she is bleary-eyed, sweaty and has an intense smell of alcohol on his/her breath. The officer orders the suspect out of their vehicle, at which point he notices that their balance is off and that they are slurring their speech. The officer asks the suspect to do a breathalyzer test, and they refuse. The officer then arrests the suspect for DWI, and writes up a report with all of his observations. Later, he is called to testify at trial based upon his independent recollections of the stop.  The accused is then convicted based on this evidence. 

Here’s the reality: (more…)

David Lat at Above the Law just posted an amazing story.

Four and half years ago, Sean Goldman, who was then 4 years old, and his mother left New Jersey to visit his mother’s family in Brazil.  When they arrived, his mother called his father and told him that she and Sean would not be returning to the United States because she no longer wanted to live there.  There were no allegations of abuse or other inappropriate conduct on the father’s part.  A New Jersey court held that Sean had to be returned to his father.  Despite an obligation under the Hague Convention, Brazil refused to return the boy.  The boy’s mother died during child birth and still Brazil refused to return the boy.  Until this week, David, the father, had not seen his son in four and half years.  The boy’s step-father is a well connected lawyer who is fighting the return of the child  The full story is here.  The fact that the U.S. government has allowed this to continue for 4 and half years is inexcusable.  The U.S. Government should have been exerting tremendous pressure on Brazil to honor its treaty obligations but it hasn’t.  Rep. Chris Smith has a resolution (H.Res.  125) which calls for the return of Sean.  Please go to the bringseanhome.org and contact your Congressman and ask him/her to co-sponsor this resolution.

Ew:

A mistrial was declared Monday when a home-invasion robbery suspect smeared human feces on his attorney’s face then threw more at the jury.

Weusi McGowan, 37, was upset because San Diego Superior Court Judge Jeffrey Fraser refused to remove Deputy Alternate Public Defender Jeffrey Martin from the case, prosecutor Christopher Lawson said.

Sounds like it worked. Not only will he get a new attorney, but a psychological evaluation as well.