We’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:

Today, 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.

Let’s take a closer look at the torches and pitchforks the U.S. Congress is brandishing. As you have undoubtedly heard, Congress overwhelming passed the 90% tax on “things we don’t like.” 85 Republicans joined the fracas, so this is a bipartisan ex post facto effort.

Our sister site, Dealbreaker, has already weighed in on the legality of this tax. (Aren’t you glad law firms didn’t take any government money?) They neatly summarize some of the key legal questions:

The “bill of attainder” test keys off these two prongs:

Is it targeted at specific individuals?

Is it of punitive intent?

So what’s punitive intent? The Fifth Circuit’s SBC Communications v. FCC ruling is about the most direct on this as the Supreme Court hasn’t touched the issue in decades.

We’ve collected some of the arguments, for and against, for your perusal. After the jump, we invite you to take our reader poll.

The second time was a charm. Constitutional crisis averted.

Okay, it was hardly a “constitutional crisis.” But it was probably wise to take a mulligan on the oath, to avoid crackpot claims of illegitimacy. In the words of law professor Jonathan Turley, who recommended retaking the oath:

He should probably go ahead and take the oath again. If he doesn’t, there are going to be people who for the next four years are going to argue that he didn’t meet the constitutional standard. I don’t think it’s necessary, and it’s not a constitutional crisis. This is the chief justice’s version of a wardrobe malfunction.

Turley seems to place blame for the screw-up on Chief Justice Roberts, as does CNN (see their headline below). Based on the results of yesterday’s reader poll, ATL readers concur.

Obama retakes oath of office after Roberts’ mistake [CNN]
Experts say Obama should retake the oath [San Francisco Chronicle]
Reading of the Presidential Oath, Take Two? [WSJ Law Blog]

Earlier: Whoops. How does that Constitution go?

As we type this, our fingers are still thawing from standing in the cold on the National Mall during today’s inauguration. The number of people willing to brave the cold was impressive. Every time President Barack Obama appeared on a jumbotron screen, the crowd went crazy with shouts of “O-bam-a” and “Yes, we did.”

The crowd quieted down in order to hear Obama take the oath of office. But what followed was a bit confusing. SCOTUS Chief Justice and now-President Barack Obama appeared to be talking over one another. In the crowd, people started asking, “Who screwed it up?”

MSNBC.com reports that Roberts is to blame:

The Constitution prescribes the text: “I do solemnly swear that I will faithfully execute the office of President of the United States and will to best of my ability preserve, protect, and defend the Constitution of the United States.”

But Chief Justice John Roberts, using no notes, flubbed his lines, and Obama knew it.

First, Obama jumped in before the “do solemnly swear” phrase, which seemed to throw the chief justice off his stride. Roberts rendered the next phrase as “that I will execute the office of President to the United States faithfully.”

“That I will execute,” Obama repeated, then paused like a school teacher prompting his student with a slight nod. Roberts took another shot at it: “The off … faithfully the pres … the office of President of the United States.”

Is there a little pro-Obama bias there? We’re not so sure Roberts is totally to blame. As one ATL commenter says:

First Flub: Obama. Roberts proceeds with the swearing in and Obama jumps the gun before Roberts gets done. Second Flub: Roberts.

Watch the video here. What do you think?

Read the transcript from MSNBC.com, and see our take, after the jump.

The 10th Circuit had an ugly case on its hands last week. While all psychotherapy seems mildly sadistic, this case is especially bad.

Per Wikipedia, psychotherapy is supposed to “increase an individual’s sense of well-being and reduce subjective discomforting experience.” A Kansas couple running a home for the mentally ill had a slightly different approach. It involved a stun gun and mutual shaving of private parts.

From Suits and Sentences:

[T]he Kaufmans forced residents to “perform sexually explicit acts and farm labor in the nude while maintaining that these acts constituted legitimate psychotherapy for the residents’ mental illnesses. Moreover, the Kaufmans billed Medicare and the residents’ families for the therapy.”

Investigators seized videotapes showing the schizophrenic residents masturbating and posing nude at Kaufman’s direction. “Eventually,” the 10th Circuit noted,”the Kaufman House developed rules that required some of the residents to be nude when engaging in certain activities—for example participating in group therapy sessions, eating dinner, and watching television.”

It’s like a twisted version of Green Acres. Psychotherapists Arlan and Linda Kaufman were convicted in November 2006 for “forced labor and holding clients in involuntary servitude.”

They appealed because the judge in the trial ordered them to avoid eye contact with the former clients who testified against them. The Kaufmans claimed this violated their constitutional right to confront their accusers.

The 10th Circuit “acknowledged the Kaufmans had ‘considerable support’ for their argument, but ultimately concluded their substantial rights were not violated.” They’ll be heading to prison for 30 years. On the upside, maybe they’ll discover some new psychotherapy techniques to add to their repertoire.

Don’t look now: Judge orders accused to avert gaze [Suits and Sentences/McClatchy]
Abuse convictions upheld;resentencing ordered [Examiner]

The market may have already discounted the $700 billion ($840 B) bailout bill, but the legal profession hasn’t even begun to get its hands around this thing.

But while we wait for serious actions to arise from the market implosion, at least we have this crazy dude from “reenactment of 1776” to help us pass the time. This guy is one of the many — mentally unbalanced — souls who makes the internet so much fun. But he has taken a break from his usual calls for a violent proletariat revolution to attack the bailout bill through more “constructive” means. He proposes a class action lawsuit against … well, I’m not sure who exactly. But the point is that he is against it! And he believes that the 13th Amendment provides all the legal cover he requires:

If this bailout is passed, I Larry Bumgarner, from reenactmentof1776.com will try to file papers in Federal Court to get an injunction against this bailout, to stop it, so that we can protect the lower and middleclass from thirteenth amendment violations. This I would like to turn into a class action suit with members of the lower and middleclass. If you would be interested in joining a class action lawsuit please respond to this site with your e-mail address.

I don’t like,


I don’t like,


I don’t like Mondays.

It gets so much better after the jump.

My new colleague over at Dealbreaker has written a somewhat modest proposal. John Carney proposes creating an auction market for Electoral College votes, so that states which are traditionally overlooked during presidential elections (like New York) can recoup some political relevance in the free market.

Among general concerns about the fundamental nature of democracy, I’m pretty sure Carney’s elegant proposal is illegal, unconstitutional, and could possibly lead to the creation of subatomic black holes that could end life on earth.

But I’m always up for a spirited legal debate. If anyone disagrees with my reading of the 12th Amendment, please feel free.

Still, many people (who do not live in Ohio or Florida) believe that the EC needs some serious tweaking. But few people agree on how to do it.

So … write your own amendment. Is a straight popular vote really the way to go, or does that disproportionally represent populous coastal states? If you like Carney’s suggestion, how can he make it work constitutionally?

You can’t change the nature of the democratic process without talking to the lawyers.

Could We Have A Market For Electoral College Votes? [Dealbreaker]

The legislative and judicial branches are going head to head in Texas, over a “pole tax.” Sounds noble, right?

Not exactly… since the referenced “poles” are those found in strip clubs. Texas State Rep. Ellen Cohen wants to charge strip club patrons a $5 tax, with proceeds funding programs for the betterment of society. Don’t strippers do enough for society already?

Cohen’s law — some dubbed it the “pole tax” — was expected to raise millions of dollars, with the money dedicated to sexual assault programs and health care for the uninsured.

Gov. Perry signed the law last June and it went into effect this year.

Jenkins ruled the law unconstitutional, writing that erotic dancing is a form of expression protected by the First Amendment. Laws regulating expression must pass strict constitutional tests.

Jenkins focused on the dedication of the fee revenues to the uninsured, writing that he saw no evidence linking the activity of nude, erotic dancing to a lack of health insurance among the dancers.

We wonder if Travis County District Judge Scott Jenkins was listening to Madonna’s “Express Yourself” when he made his ruling.

Cohen vows to revive $5-per-patron strip club fee [Houston Chronicle via TaxProf]

No, that’s not some insult hurled at the distinguished constitutional law professor by a right-wing zealot; it’s a fact. From a memorandum that went out to Harvard Law School students this morning:

In order to help you plan your spring schedules, I need to let you know that Professor Laurence Tribe’s class this spring is being cancelled because he has recently been diagnosed with a brain tumor that is benign but will require medical treatment. Professor Tribe has asked me to convey this information and his regrets about this necessary decision.

We wish Professor Tribe the best of luck with his treatment regimen, as well as a speedy recovery.

From one tipster:

It’s just a matter of time before knee-jerk dittohead-wannabes bust out jokes like “Isn’t liberalism a form of a brain disorder?” Then again, this could end up straight out of Woody Allen’s Everyone Says I Love You, if the removal of the brain tumor turns Tribe into a fire-breathing right-winger.

Professor Tribe is a public figure, and he has surely had every epithet in the book leveled at him, multiple times. Nevertheless, even if he’s a big boy (who has better things to do than read blog comments), please keep the discussion civil. Thanks.

* Affirmative action not gone quite yet for Michigan schools. [AP via How Appealing]

* Convicted debutante killers not so happy at sentencing. [CNN]

* Nebraska corporate farming ban violates dormant commerce clause; Nebraska will appeal to the Supreme Court. [Jurist]

* Dracula Jr.’s a lawyer. [WSJ Law Blog]

* 13 States and DC sue EPA to get them to, you know, protect the environment. [MSNBC]

This is a continuation of our prior post about an event we recently attended at Georgetown Law School, “On Liberty: A conversation between Justice Stephen Breyer and Professor Charles Fried.” For more background about the event, click here.

For the conclusion to our write-up, keep on reading. We bring you a “true confession” from Justice Breyer, as well as Professor Fried’s interesting views on gay marriage.

(Before returning to Harvard Law School, Professor Fried was a justice on the Supreme Judicial Court of Massachusetts, the state’s highest court. But he was back in academia when they decided the gay marriage case, Goodridge v. Department of Public Health.)

Our coverage continues, after the jump.

As we mentioned earlier, on Friday we headed downtown to Georgetown Law School for “On Liberty: A conversation between Justice Stephen Breyer and Professor Charles Fried,” of Harvard Law School. We were invited to this event by Georgetown Law Professor Neal Katyal (whom we thank for his hospitality).

Yesterday we shared with you our photos from the event. Now, the first half of our write-up — after the jump.

A quirky and fun story in the Saturday New York Times (which nobody reads except us) describes the legal crusade of one John Lagana. He’d like to ride his WaveRunner around the shores of East Hampton, but can’t, thanks to the wealthy beach town’s ban on water scooters.

So like any good American, Lagana is taking the matter to court. And he has an interesting historical argument:

The case is now pending in state appellate court, where a panel of judges must decide if an obscure 17th century charter known as the Dongan Patent does indeed protect a man’s right to buzz around the waterways on a machine its signers could hardly have imagined.

When King James II deeded the eastern tip of the South Fork — which now includes East Hampton, Amagansett and Montauk — to a group of settlers in 1686, the governor in chief of the province of New York, Thomas Dongan, drew up the patent, granting “freeholders and inhabitants” of the area the right to “enjoy without hindrance” recreational activities like “fishing, hawking, hunting and fowling.”

The legal power of such deeding documents, which exist throughout Long Island and in other early-settled places, has been upheld by courts including the United States Supreme Court.

Lagana buttresses this with constitutional contentions:

Among Mr. Lagana’s arguments is that a passage in the federal Constitution prohibiting the creation of “any law impairing the obligation of contracts,” and a provision in the original New York State Constitution protecting “grants of land made by the authority of the king,” gives Dongan power in perpetuity. “If you’re going to ignore the Dongan Patent, you might as well throw out the Constitution,” he said.

The tony town has several counterarguments. Their main point is that “the patent is too vague and out of date to govern a modern municipality.” But they also have historical contentions of their own:

[Gary] Weintraub, the town’s lawyer, pointed out that if East Hampton were to live by the centuries-old patent, it would have other obligations, including the annual tax to the king of “the Sum of one Lamb Yearly and fourty shillings, curant money.”

Assuming East Hampton was not in arrears at the time of the American Revolution, that would amount to 230 lambs and 9,200 shillings the town owes, payable to Queen Elizabeth.

Merry Christmas, Your Highness? Or baaa, humbug?

At Odds Over Right of Kings, and Jet Skis, on Long Island [New York Times]

We agree with Andrew Sullivan: Dahlia Lithwick did a superb job in her write-up of the Scalia-Breyer debate, which took place Tuesday night at the Capital Hilton. We attended as guests of the ACS, whom we thank for their hospitality.

For our fourth and final post about the evening — prior posts here, here, and here — we’ll quote liberally from Lithwick’s great Slate piece, with commentary of our own appended and interspersed.

It all appears after the jump.

Question: Now that the Supreme Court is hearing hardly any cases these days, how are the justices spending all their free time?

Answer: On constitutional law road shows, in which they debate the proper way to go about interpreting that foundational document. What fun!

On Tuesday, Justice Antonin Scalia and Justice Stephen G. Breyer held forth on the subject before a packed ballroom at the Capital Hilton. The event was co-sponsored by the American Constitution Society and the Federalist Society. It ran for about an hour and a half; Jan Crawford Greenburg, of ABC News, served as moderator.

Our prior coverage of the event appears here and here (photos). Our third installment appears after the jump.

Yesterday the Supreme Court heard oral arguments in two cases concerning the use of race as a factor in assigning students to public schools: Parents Involved in Community Schools v. Seattle School District #1, out of the Ninth Circuit, and Meredith v. Jefferson County Board of Education, out of the Sixth Circuit.

It appears that SCOTUS virgin Teddy Gordon, representing the petitioners in Meredith, did just as badly as many members of the snooty SCOTUS bar expected. For a blow-by-blow account of his ill-fated argument, see this reader comment.

Our commentary on the arguments, plus links to audio-casts and written transcripts, after the jump.