[A]mong the world’s democracies … constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. constitution, only to reverse course in the 1980s and 1990s. The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II.
– Professors David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia, in a forthcoming article that will be published in the New York University Law Review. They conducted a study that was discussed in a very interesting article by Adam Liptak, ‘We the People’ Loses Appeal With People Around the World.
And perhaps with Justice Ruth Bader Ginsburg? Which constitutions does she prefer over our own founding document?
Continue reading “Quote of the Day: Why Do You Hate America, Justice Ginsburg?”
Professors Richard Epstein (left) and John Yoo
* Are you still trying to make sense of the conflicting opinions in United States v. Jones, the GPS tracking case recently decided by the Supreme Court? Professor Barry Friedman has this helpful round-up. [New York Times]
* Elsewhere in law professors opining on SCOTUS, what do Professors Richard Epstein and John Yoo predict the Court will do regarding Obamacare? [National Review Online]
* A Spanish CFO, a Finnish tax lawyer, and a moody Hungarian CEO walk into an Amsterdam coffee shop…. [What About Clients?]
* Musical chairs: prosecutor Greg Andres is leaving DOJ for DPW. [DealBook]
* In case you missed this fun Friday story, it got picked up by MSNBC today. [Digital Life / MSNBC]
* Did your law firm give you an iPad? Are you wondering what to do with the darn thing? Here’s an idea, after the jump….
Continue reading “Non-Sequiturs: 01.30.12″
In 2009, Professor Martin H. Redish of Northwestern Law School published a book arguing that class actions are in large part unconstitutional: Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit (Stanford Univ. Press 2009). Where is the practicing bar?
I understand that nobody reads law review articles or books published by an academic press. And I wouldn’t condemn any practicing lawyer to reading any issue of a law review from cover to cover. But I don’t think it’s asking too much to insist that lawyers remain gently abreast of the academic literature in their field and deploy new ideas aggressively when scholars propose them. Redish’s book shows why in-house counsel should demand more of their outside lawyers.
This post is a two-fer: I’m going both substantive — by summarizing Redish’s argument about why many class actions are unconstitutional — and pragmatic — by criticizing law firms that ignore ideas springing up in the academy that should be used in litigation. (For me, drafting that two-fer is an unusual trick. As regular readers know, it’s typically hard to find even a single thought tucked into one of my columns.)
What does Redish say about class actions, and how have most law firms been derelict?
Continue reading “Inside Straight: Torpedoing Class Actions”
Well, this is a fun day. Rick Santorum is taking his turn as the non-Romney Republican choice. Rick Santorum. Yeah, that Rick Santorum — the self-same Rick Santorum who thinks Griswold was wrongly decided and wants to ban birth control — is now the “real conservative” alternate to Mitt Romney.
Ladies and gentlemen, I present your 2012 Republican Party.
This morning, the Wall Street Journal took a closer look at Rick Santorum’s thoughts on the Constitution and the judiciary. For those who haven’t been following the stellar career of Santorum (last seen getting absolutely waxed out of his Pennsylvanian Senate seat), let’s give him a look-see…
Continue reading “Rick Santorum: Google Him, Please”
* We suspected as much: it appears that the “poop tattoo” story is, er, “full of crap.” [The Smoking Gun]
* What’s the first Michael Jackson lyric that Conrad Murray will hear in jail from his fellow prisoners? My vote: “I want to love you, pretty young thing.” [Hollywood Reporter]
* Herman Cain wants the media to get off his d*ck about his alleged extramarital affairs. He’s got plenty of other women who he’s “never acted inappropriately with” for that. [Volokh Conspiracy]
* Anyone can be a law student stripper if they try hard enough, but it takes a special kind of gal to pose as a paralegal and strip for prisoners. [Riptide 2.0 / Miami New Times]
* Corporate socialism and you: a business primer for New York, courtesy of David Cay Johnston. [Reuters]
* The “first ever” original jurisdiction standings? An interesting read if you’re a con law nerd. [Odd Clauses Watch]
* After bopping her on the head with a hatchet, you can be damn sure that your neighbor is never going to let you borrow a cup of sugar again. [Legal Juice]
* One of the reasons that members of Congress are so filthy rich is because they’re only technically breaking the law, but Scott Brown wants to try to curb Congressional “insider trading.” [CBS News]
* In other Congressional news, pizza is now considered a vegetable. And fat people the world over rejoiced by stuffing their faces and continuing to clog their arteries. But not me, because goddamn do I hate pizza. [MSNBC]
* MMA fighters sue, saying the ban on fighting in the state of New York is unconstitutional. If beating someone’s face in is an art form, then Anderson Silva is this generation’s Picasso. [New York Daily News]
Find out whose face the Spider should beat next, after the jump….
Continue reading “Morning Docket: 11.16.11″
The president looks good in a doctor's coat, no?
In a development that should surprise no one, the U.S. Supreme Court this morning agreed to review the constitutionality of President Barack Obama’s signature policy achievement, the Patient Protection and Affordable Care Act — aka Obamacare. This means that, before the end of the current SCOTUS Term in summer 2012, Anthony Kennedy the justices will rule on the validity of this sweeping legislation (unless they avoid the question on jurisdictional grounds, as Judge Brett Kavanaugh of the D.C. Circuit recently did — a path that might appeal to Justice Kennedy, as suggested by Professor Noah Feldman, and a path that the Court itself highlighted by mentioning the jurisdictional issue in its certiorari grant.)
In the meantime, there will be a lot of cocktail party chatter about the health care reform law and its constitutionality. If you’d like some quick talking points, for use when you get the inevitable “What do you think about this as a lawyer?” questions from friends and family at Thanksgiving, keep reading….
Continue reading “Supreme Court To Decide Constitutionality of Obamacare”
* Yet another appeals court has has ruled that Obamacare is constitutional. Aww, can’t we wait for the other side to catch up a little before it goes to the Supreme Court? [Wall Street Journal]
* How did it go for this controversial ballot initiative? As it turns out, the personhood amendment was so stupid that it couldn’t even pass in Mississippi. Color me surprised. [New York Times]
* Raj Rajaratnam has to pay $92.8M in penalties in his SEC case, but come on, he’s a billionaire. Much like the honey badger, Raj don’t care, and he certainly don’t give a sh*t. [Bloomberg]
* We thought this might be a swing and a miss, but the Dodgers won approval to pay Dewey & LeBoeuf and Young Conaway after hitting the Trustee’s curveball out of the park. [Businessweek]
* Best use of footnotes ever? Pitbull’s lawyers are trying to get LiLo’s case against him removed to federal court, and gossip rags are cited in the footnotes more than law. [Hollywood Reporter]
I’ve said from the beginning that while the goals of the Occupy Wall Street crowd were not wrong, their tactics have been lacking. The denizens of “Wall Street” (at least not in its geographic form) didn’t cause the collapse of the American economy; they’re just trying to figure out how to profit from it. There’s been an entire legal structure erected to protect the banking industry; wagging your fingers at them isn’t going to do a whole hell of a lot.
And it’s not like “the banks” or whoever can’t fight back. Occupiers might be angry at Wall Street or corporate America or whoever, but it’s “the law” that will be in charge of actually crushing their little movement. The people in Oakland already saw what the police can do. And the police are just the storm troopers of the military-industrial complex. City ordinances, curfews, and unsympathetic judges: these are the people and things that can turn Occupy Wall Street into Alderaan.
But maybe the protesters are starting to understand the true power of the dark side. And maybe they’ll have some new hope if they get some fully trained lawyers on their side (as opposed to non-lawyer volunteers)….
Continue reading “Are Occupiers Finally Learning The Value Of Competent Lawyering?”
Whenever a judge turns to rational-basis analysis, he’s basically saying, ‘You think two plus two equals five, and I don’t know how to add.’
– Professor Richard Epstein, at an interesting debate sponsored earlier this evening by the Columbia Law School Federalist Society. Professor Epstein and Chief Judge Alex Kozinski (9th Cir.) debated the merits of Kelo v. City of New London (2005). Professor Epstein attacked Kelo and Chief Judge Kozinski defended the decision.
(The event was standing room only, even though tonight was Halloween. Clearly this was more fun to CLS students than donning cheap costumes from Ricky’s and marching around the Village in a state of inebriation.)
A beautiful creature that would gladly eat the animals PETA tries to save.
Animals are not people.
If a PETA person had been sitting next to me when I wrote that, he’d smugly say: “You know, some people said the same thing about black people 200 years ago.” At that point, I would grab the PETA person by the neck with my left hand, pimp slap him across his face with my right hand, throw him down on the ground, and then bellow: “How dare you, sir!”
That’s because I’m a person. And while I acknowledge the historical reality that many people didn’t think black people were “people” at various times in history, that thinking never changed the underlying truth that the color of one’s skin had nothing to do with personhood. You dig? It’s like how the New World was here long before anybody “discovered” it.
Non-human animals are not non-human animals because thinking makes it so. They’re animals because they’re animals. Now I think animals should be way, way more respected then most humans treat them. But applying a human right — such as freedom from involuntary servitude — to animals both denigrates people and disrespects the animals that they anthropomorphise.
What I’m saying is that once again, PETA has gotten it all wrong….
Continue reading “PETA’s Animal Slavery Constitutional Test Case Is Just Stupid”
Clarence Thomas set the table for the tea party by making originalism fashionable again.
– Berkeley Law professor John Yoo, in an interesting Wall Street Journal piece discussing how his former boss, Justice Clarence Thomas, has defended the Constitution and embraced originalism during his twenty years on the high court.
Robert Bork
Some lawyers can be so circumspect in speech and so careful in action that they’re just plain boring. Such caution might help you make it to the Supreme Court someday, but it’s not a recipe for a very fun life.
Thankfully, not all brilliant lawyers are afraid of speaking their minds. Take Robert Bork, the former U.S. Solicitor General and D.C. Circuit judge whose Supreme Court nomination famously went down in flames in 1987 — due in part to his loquaciousness during his confirmation hearings.
Judge Bork, now 84, is currently a fellow at the Hudson Institute think tank. He’s not as involved in public life as he once was, but he’s not completely out of the picture. For example, he’s serving as a legal adviser to Republican presidential contender Mitt Romney (a development that some on the left have criticized).
And Judge Bork continues to make controversial pronouncements, most recently in an interview with Newsweek….
Continue reading “Borking Up a Storm: Romney’s High-Profile Legal Adviser Speaks His Mind”
My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence. But it has made very few mistakes of political judgment, of estimating how far … it could stretch beyond the text of the constitution without provoking overwhelming public criticism and resistance.
Dred Scott was one mistake of that sort. Roe v. Wade was another … And Kelo, I think, was a third.
– Justice Antonin Scalia of the United States Supreme Court, commenting on several cases in which he believed SCOTUS had made mistakes of political judgment. His speech was given at the Chicago-Kent College of Law (which, as you may recall, is facing a potential class action suit over its post-graduate employment data).
I’m hoping the living Constitution will die.
– Justice Antonin Scalia, in remarks made yesterday before the Senate Judiciary Committee. Justice Scalia and Justice Stephen G. Breyer were invited by the Committee to discuss their views on constitutional interpretation and the proper role of judges in our democracy.
Before we get to the meat of this story, let’s quickly state the obvious: if you plan to commit a violent crime, you probably should not post details about it on Facebook or Craigslist. If you simply must tell the Interwebs of your devious agenda, it’s probably best to close the incriminating window ASAP, so visitors to your home do not see it on your the PC in your living room.
Glad we got that out of the way. Today, we have another fun dumb criminal story for you. It even comes complete with a thought-provoking judicial ruling. Did you know that if a police officer simply moves a computer mouse or presses a key to wake a computer up from sleep mode, that it constitutes a Fourth Amendment search? Well, neither did a Wisconsin police officer who was investigating a man who allegedly threatened to shoot up a shopping mall (gavel bang: Legal Blog Watch).
More on the case, US v. Michael Musgrove, plus Musgrove’s, original thug life Craigslist posting after the jump….
Continue reading “You Want to Click That Mouse? Bite Me, Get a Warrant!”
We’re now in late September, so you know what that means. The first Monday in October, which starts the new Term of the Supreme Court of the United States, is just around the corner.
With that in mind, the Heritage Foundation wrangled a high-powered pair of panelists to offer their thoughts on October Term 2011:
What did Messrs. Clement and Shanmugam have to say about the upcoming SCOTUS Term?
Continue reading “A Preview of the Upcoming Supreme Court Term”
Kyle Bristow
Last year, we wrote about Kyle Bristow, a student at the University of Toledo College of Law. Bristow had been the chairman of the Young Americans for Freedom student chapter at Michigan State University when he was in college. The MSU-YAF was designated a “hate group” by the Southern Poverty Law Center.
Hey, we’re living in a world where convicted murders get to go to law school. We can’t be surprised when the chairman of a so-called “hate group” gets in too.
But admitting a student with Bristow’s… colorful past, and holding him out as a representative of the law school, are two very different things. Toledo now seems strangely comfortable promoting Bristow and his views.
It’s an interesting choice. One that Toledo is certainly free to make. One that students who want to go to law school in an environment welcoming to minorities might want to notice….
Continue reading “Former ‘Hate Group’ Leader Chosen To Represent University of Toledo Students On Constitutional Panel”
My objections to the TSA and the invasive search techniques they employ have been well documented in these pages. I believe their tactics are violative of our rights and would be deemed unconstitutional in any America where courts placed justice ahead of fear. I believe a government that authorizes these searches has lost its legitimacy to rule. I believe citizens who support these procedures do not deserve the liberty they so eagerly toss aside.
And I believed all of that before I was actually molested by the TSA just yesterday.
Having now been through that awful experience, and so close to the ten-year anniversary of 9/11, I can only conclude that not only did the terrorists win, but they keep winning. Right now, the terrorists are winning so hard that they’ve gotten us to do their work for them. In my opinion, the TSA is nothing more than a domestic terror organization that operates above the law.
Just two minutes alone with these people has made me realize that their power now far exceeds the normal constraints of law and order. It might well take active civil disobedience to stop them.
Of course, this is all just my opinion. That’s a disclaimer I feel I need to make very clearly, since the TSA apparently believes that I should be wary of even criticizing it, for fear of being slapped with a lawsuit….
Continue reading “Two Minutes of Terrorist Triumph: Alone With the TSA”
* You don’t have the right to get half naked in an airport to protest the TSA’s policies. Aaron Tobey’s lawsuit has been stripped of its Fourth Amendment claims following a dismissal. [Washington Post]
* Paul Ceglia has to give Facebook every email he’s exchanged since 2003. If Ceglia’s like most men, lawyers at Gibson Dunn will get an interesting peek at his private life. [Wall Street Journal]
* An HIV/AIDS group has been charged with improperly spending federal funds. They were supposed to open a job training center. They allegedly opened a strip club. Problem? [Washington Examiner]
* Pit bulls are cute until they bite your face off (but they do get a bad rap because of bad owners). This ADA lawsuit may help overturn residential dog breed restrictions in Colorado. [ABA Journal]
* In a case of a playboy getting hustled, a man is suing over a $28,109.60 bar tab charged on his credit card at the Hustler Club. Talk about going tit for tat. [New York Post]
[A]mong the world’s democracies … constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. constitution, only to reverse course in the 1980s and 1990s. The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II.
