Constitutional Law

We touched upon this issue in Morning Docket, both today and yesterday: Is Steven Slater — the JetBlue flight attendant who reportedly unleashed a profanity-laced tirade over the airplane’s public-address system, before fleeing the plane via the emergency-evacuation chute, beer in hand — a criminal?

Slater was hit with felony charges of criminal mischief and reckless endangerment, on the reasoning that the deployed evacuation chute could have hit someone below. But his lawyer argues that there was no endangerment, since Slater — a flight attendant with about 20 years of experience, since he entered the business at age 19 — checked to make sure nobody was below before deploying the slide.

Let’s explore the legal issues a bit more — with the help of one of our favorite commentators, memoirist turned litigatrix Elizabeth Wurtzel….

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The biggest legal news story of the past week — even bigger than the confirmation of Elena Kagan, which was widely expected — was the ruling of Chief Judge Vaughn Walker (N.D. Cal.) in Perry v. Schwarzenegger. Judge Walker struck down California’s Proposition 8, a voter-passed ban on gay marriage, citing due process and equal protection grounds.

The decision was popular with Above the Law readers. In our poll, about 80 percent of you expressed support. But how many of you have actually read the entire 136-page ruling? If you’re looking for some fun this weekend, curl up with our special ATL edition of the opinion.

We’ve uploaded a version of the decision in fully hyperlinked form, i.e., with links to the authorities cited by Judge Walker. It’s available below….

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While in journalism school, one of my “assignments” was to hang out at New York’s night court (open until 1 a.m. every night), observe the proceedings, and then write about them. It was less exciting than Judge Harry had led me to believe, but was an interesting night replete with drug addicts, prostitutes, and a cheap-date-loving couple who had stopped in to observe as free post-Chinatown-dinner entertainment.

It also introduced me to a 2006 New York law that requires felons to submit a genetic sample to the state DNA database. When informed of the law, one defendant arraigned on burglary charges resisted giving up his double helixes. “Are you willing to issue a court order to make me do it, sir?” he asked the judge.

“Is my saying it to you not enough?” the judge replied. The defendant said: “If you sign a court order, I’ll do it.” The judge asked for a piece of paper, and the defendant objected, “No, I want an official court order.”

The assistant district attorney then explained, in an annoyed tone, that any paper written and signed by the judge qualifies as a “court order.” The judge issued the order, but the man returned 15 minutes later, still refusing to give the DNA sample. The judge set bail and again reminded the dude that the DNA sample was required by law.

Many states have criminal genetic databases these days. As noted by the Genomics Law Report, the LAPD’s using theirs to catch the “Grim Sleeper” serial killer has resulted in a lot of media attention for these databases, despite the fact that they’ve been around for awhile. That’s because, according to GLR, “the case marks the first time in the United States that a DNA search technique known as familial searching has led to an arrest in a homicide case.” The LAPD nabbed the Grim Sleeper after DNA samples from the murders were found to be genetically similar to those of the Sleeper’s son, who had given up his DNA after a felony weapons charge. (Apparently, criminal genes run in that family.)

The attention being paid to the databases is not all positive, though. The ACLU, which has a problem with the way that California compiles its database, filed a lawsuit against Attorney General Jerry Brown last year. It’s now before the Ninth Circuit. What’s the ACLU’s problem with California’s compiling genetic information for felons and suspected felons?

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A federal judge in Boston — Judge Joseph L. Tauro (D. Mass.), appointed to the bench by President Nixon back in 1972 — just struck down down Section 3 of the Defense of Marriage Act (DOMA). As you may recall, DOMA is the 1996 law that effectively bans recognition of same-sex marriages for purposes of federal law.

The last substantive paragraph of Judge Tauro’s opinion summarizes the reasoning nicely….

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Today was the last day of the Supreme Court term (and also the last day on the Court for Justice John Paul Stevens). The SCOTUS handed down four blockbuster opinions — on the same day that the confirmation hearings of Elena Kagan are starting. Coincidence?

In alphabetical order, the four cases are (click on each case name to access the ScotusWiki page):

  • Bilski v. Kappos (patent law): “Whether a ‘process’ must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (‘machine-or-transformation’ test), to be eligible for patenting….”

  • Christian Legal Society v. Martinez (First Amendment right of association): “Whether a public university law school may deny school funding and other benefits to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.”
  • Free Enterprise Fund v. Public Company Accounting Oversight Board (separation of powers): “Whether the Sarbanes-Oxley Act is consistent with separation-of-powers principles — as the Public Company Accounting Oversight Board is overseen by the Securities and Exchange Commission, which is in turn overseen by the President — or contrary to the Appointments Clause of the Constitution, as the PCAOB members are appointed by the SEC.”
  • McDonald v. City of Chicago (guns / Second Amendment incorporation): the applicability of the Second Amendment to state and local governments.

How were these cases resolved? Find out, after the jump.

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This is the kind of story that sounds unbelievable — until you realize that it’s dealing with the people who run Utah. The WSJ Law Blog reports:

Utah Governor Gary Herbert on Saturday authorized the use of eminent domain to take some of the U.S. government’s most valuable parcels.

A state is invoking the Takings Clause against the federal government? This reminds me of the time I came home and my dog told me to get off the couch. Sure, I was surprised that my dog was (a) talking and (b) ordering me off my own property. And so I resolved, right then and there, to never drop acid again.

Unfortunately, I don’t know what the hell Utah lawmakers are smoking …

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Do I Have A Right challenge.jpgIn December we announced a contest for ATL readers. We called upon you to play Do I Have A Right?, one of the educational video games launched by Our Courts. Today we’re pleased to announce the winners.
In case you’re not familiar with it, Our Courts is “a web-based education project designed to teach students civics and inspire them to be active participants in our democracy.” It was the brainchild of Justice Sandra Day O’Connor (who spoke with us about Our Courts for this Washington Post piece).
Above the Law’s “Do I Have A Right?” tournament was a huge success, with 8,650 plays from nearly 7,500 unique players. People logged games in 49 states — c’mon, North Dakota, where’s the love? — and the average play time was 7:55 minutes.
sandra day o'connor 2 justice o'connor.jpgJustice O’Connor was very pleased:

I want to congratulate the winners of the Our Courts – Above the Law Tournament. I was thrilled by the participation and interest in our game. It just goes to show that even trained lawyers can always use a refresher course in middle school civics.

And who were the winners? There were two, tied with a high score of 13,653. The first was David Cohen, a sports lawyer in Southern California. The second was “Anonymous,” who chose to remain nameless “so that people he knows don’t think he spends all his time [in the office] playing DIHAR.”
These winners will be featured as characters in a future Our Courts game. Speaking of Our Courts, they have a new game out, Argument Wars, which allows players to argue landmark Supreme Court cases. The preview case allows readers to argue Brown v. Board of Education; two more cases will launch next Monday, and two more by mid-February.
The full list of high scorers in the DIHAR challenge — perhaps you know some of them? — appears after the jump.

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Congratulations from Justice O’Connor”

Do I Have A Right challenge.jpgBack in October, we wrote a piece for the Washington Post about retired Supreme Court Justice Sandra Day O’Connor’s new educational video games. She’s spearheading a project called Our Courts, which seeks to improve civic education in middle schools. One game, Supreme Decision, lets the kiddies weigh in on a First Amendment case in the Supreme Court. The other, Do I Have A Right? (DIHAR), lets players start a law firm and serve clients with constitutional issues.
The subject of law firm management is a subject near and dear to many ATL readers’ hearts. We have noticed that commenters often have many suggestions for how it can be done better. So we have decided to put you to the test with a DIHAR tournament.
The winner of the tournament will get more than just bragging rights. The award for the ATL reader with the highest score is a starring role in an upcoming Our Courts game.
More information, plus complete contest rules, after the jump.

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ACS.gifWe’re quite talented at bringing you last week’s news. See, e.g., our ridiculously extensive coverage of the Battle of the Law Firm Bands.
The main reason for our D.C. visit was not the Battle of the Bands, but the national convention of the American Constitution Society (ACS) — the left’s answer to the Federalist Society. With the Democrats in control of both Congress and the White House, this year’s conference was well-attended and celebratory. There was even an upgrade in venue, from the Hyatt Regency to the Mayflower Renaissance.
(Was Eliot Spitzer on the program committee? Or did ACS go with the Mayflower because it’s the traditional venue for the annual conference of the Federalist Society?)
The first plenary panel of this year’s ACS conference featured a star-studded cast:

  • Judge Rosemary Barkett, U.S. Court of Appeals for the Eleventh Circuit
  • Judge Jeffrey S. Sutton, U.S. Court of Appeals for the Sixth Circuit
  • Thomas C. Goldstein (moderator), Akin Gump Strauss Hauer & Feld LLP
  • Pamela Harris, O’Melveny & Myers LLP
  • Pamela S. Karlan, Professor of Law, Stanford Law School
  • Goodwin A. Liu, Associate Dean and Professor of Law, University of California Berkeley School of Law
  • John Payton, President and Director-Counsel, NAACP Legal Defense and Educational Fund
    Read our write-up, after the jump.

    double red triangle arrows Continue reading “At the ACS National Convention: Keeping Faith With the Constitution”

  • SCOTUS DNA convicts.JPGToday, the Supreme Court ruled that convicted criminals do not have a constitutional right to possibly exculpatory DNA evidence. The Court decided District Attorney’s Office v. Osborne by a 5 – 4 margin. SCOTUSblog reports Chief Justice John Roberts’s majority opinion:

    The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote. Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence. “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.

    Anthony Zuiker is going to be pissed off. CSI: Rikers Island is going to have to go back to the drawing board.
    The dissent after the jump.

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