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Ricci v. DeStefano - the New Haven Firefighter case - Which Is Fairer, Multiple Choice or Oral Examinations?

By Wilson Huhn Published: June 30, 2009

     In a previous post I described the New Haven firefighter case and Judge Sonia Sotomayor's participation in it as a member of the Second Circuit Court of Appeals.  In this posting I will analyze yesterday's 5-4 decision of the Supreme Court reversing the Court of Appeals' decision in that case.  One aspect of this case particularly intrigued me.  As an educator I was very interested in the fact that the type of test that was administered - multiple choice versus oral exams - resulted in different people and different groups doing well, and I look forward to hearing your opinions about the best way to test for leadership positions in the firefighting profession.

     The decision of the Supreme Court in Ricci v. DeStefano, including the concurring and dissenting opinions, is 93 pages long.  I will try to condense the reasoning of the judges from the different opinions but I am sure to leave out many important points. 

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The Pending Federal Hate Crimes Legislation: Part 2

By Wilson Huhn Published: June 30, 2009

     In yesterday's post I stated that there are three objections commonly raised against the enactment of the Hate Crimes Act currently pending in Congress.  Those objections are that (1) Congress lacks authority to enact the law; (2) the law infringes upon freedom of speech; and (3) the law confers "special treatment" on certain favored groups.  I addressed the first objection in yesterday's post.  Today I tackle the second and third arguments against the law.

2.  Freedom of Expression

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The Pending Federal Hate Crimes Legislation - Part 1

By Wilson Huhn Published: June 29, 2009

     On April 29 the House of Representatives adopted a bill (H.R. 1913) entitled the "Local Law Enforcement Hate Crimes Prevention Act of 2009."  This legislation has been referred to the Senate Judiciary Committee for consideration.  The law would make it a federal offense to commit violence against someone because of the person's "race, color, religion, national origin, gender, sexual orientation, gender identity, or disability."  Is this law constitutional?  I will publish my opinion addressing that question in two parts, today and tomorrow.

     For over a century Congress has enacted a number of criminal laws protecting citizens against violations of their civil rights.  For example, immediately after the Civil War when the Ku Klux Klan began its reign of terror Congress enacted laws (now codified at 18 U.S.C. 241) making it a crime to

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Free Legal Help with Civil Cases

By Lynn Published: June 26, 2009

A non-profit law firm which:

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Response to Reader Comments on Abortion

By Wilson Huhn Published: June 26, 2009

     Your responses to the abortion question are amazing.  The question was, "What would happen if Roe v. Wade were overturned?"  There were several neat ideas presented in your comments.  I'll respond to these comments below the fold.

     Dave is absolutely correct that the consequences that would flow from overruling Roe depend on how the opinion would be worded.  Would the Court simply find that the state's interest in protecting fetal life overrides the interest of a woman in choosing whether to terminate a pregnancy (thus giving each state the power to prohibit abortions) or would it declare that the fetus is a person within the meaning of the 14th Amendment (thus making it unconstitutional for any state to permit abortions)?   I agree with Dave that it is not likely that a constitutional amendment would be adopted to reinstate Roe anymore than it is now possible for the pro-life movement to secure the adoption of a constitutional amendment overturning Roe - the country is too evenly divided, and there are at least 13 states in each camp.

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Gender Implications of the Financial Crisis

By Stefan Published: June 25, 2009

Professor Bainbridge notes: "Eight of the top 10 Amazon bestsellers in the fantasy category are vampire romance novels by female authors. Whatever happened to elves, orcs, swords, and sorcery?"

Never one to miss an opportunity to jump to spurious conclusions, this made me wonder whether women have lost such faith in the men who continue to dominate our society that their last bastion of hope is stories telling them that happy endings can be found even when you know [your] man is a monster (if it's not obvious, please note that my tongue is firmly planted in my cheek).  Here, in no particular order (it is the summer--I'm not going to spend all day doing this), are some related talking points:

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Morality, Politics, and Law

By Wilson Huhn Published: June 25, 2009

     With yesterday's admission of an affair, Governor Mark Sanford joins a long list of politicians who, it turns out, have not been faithful to their marriage vows.  Coupled with his disappearance over Fathers Day weekend, these events must be deeply hurtful to his family.  The public disclosure and widespread coverage of his behavior only compounds the misery.  What should be the proper relation between morality, politics, and law?  I will offer some opinions which I anticipate my readers will improve upon!

    First of all, I don't look to politicians in general as role models for me or my family any more than I would look to business executives, rock stars, or sports figures.  Many of those people travel extensively or have jobs that keep them away from their families for long stretches, and it is only natural (if unfortunate) that they find other objects of their affection.  They are already devoted to becoming rich or famous or powerful - they don't have time to fix dinner or coach softball or take the kids to the dentist.

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Northwest Austin Municipal Utility District Number One v. Holder - The Voting Rights Act case

By Wilson Huhn Published: June 23, 2009

     Yesterday the Supreme Court handed down its decision in Northwest Austin Municipal Utility District Number One v. Holder, a case that had been closely watched because the Utility District was challenging the constitutionality of the preclearance requirement of the 1965 Voting Rights Act. The Court ruled in favor of the District, but it did not reach the constitutional issue. Instead the Court interpreted the statute in such a way as to allow the District's lawsuit to go forward, delaying for another day the question as to whether the law is unconstitutional.     

     The Voting Rights Act requires certain states and political subdivisions to obtain "preclearance" of any changes in their election laws or procedures from the United States Department of Justice. The Municipal Utility District of Austin, Texas, wanted to make some changes in the laws governing its elections but it did not want to have to obtain permission from the federal government. The Voting Rights Act contains a provision allowing "political subdivisions" to "bailout" of the preclearance requirement, but another section of the Act defines "political subdivision" as excluding entities like the Utility District that are not responsible for registering voters. One of the claims that the Utility District made in this case was that despite this statutory language it should be allowed to "bailout" of the preclearance procedure. The Utility District also raised a vitally important constitutional claim - it contended that the Voting Rights Act is unconstitutional. The lower courts ruled against the Utility District on both counts, but the Supreme Court found in favor of the Utility District on its statutory claim and did not rule on the constitutional question. The decision of the Court interpreting the statute so as to allow the Utility District to opt out of the preclearance procedures isn't very persuasive, and the Court admits that it construed the statute as it did in order to avoid ruling on the constitutional issue.

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Is Marriage a Constitutional Right or Merely a Governmental Benefit?

By Wilson Huhn Published: June 23, 2009

     Under the Constitution the government is not obligated to grant us benefits.  However, the Constitution prohibits the government from interfering with our fundamental rights.  Is marriage a right or a benefit?  The question obviously has legal significance, but it also has important political consequences.  Nate Silver of FiveThirtyEight points out that public attitudes towards same-sex marriage seem to be determined by whether people think that the government is refusing to extend a benefit to gays and lesbians or whether they think that the government is taking something away from them.

     In this recent post Nate Silver remarked that the results on public polling on gay marriage varied depending upon how the question was asked (duh!).  Nate's observation is astute, though - he noticed that there is considerably more support for same-sex marriage when respondents are asked:

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What Would Happen If Roe v. Wade Were Overturned?

By Wilson Huhn Published: June 22, 2009

     Assume for a moment that Justice Anthony Kennedy were to change his mind and vote to overturn Roe v. Wade - or that Judge Sotomayor, if confirmed, were to surprise the President and confound his supporters and vote with the four conservative justices on this subject - what would be the legal, social, and political consequences that would flow from that decision?

     I have stated many times in this blog that I think that there are legitimate legal arguments both in support of and in opposition to the Court's decision in Roe.  In support of Roe is that for centuries under the common law women had the right to terminate pregnancies before "quickening" because, it was thought, the fetus was not alive until it moved in the womb.  Furthermore, the right to terminate a pregnancy is closely related to two other privacy rights which almost everybody would consider to be fundamental - the right to decide whether to have children (including the right to use contraception) and the right of bodily integrity (to do with our own bodies as we wish).  The consequences of not according women the right to terminate a pregnancy, at least in its early stages, would be severe - it would mean forcing women to gestate and give birth to a child, which is one of the major events in a person's life and which, at least historically, entailed a substantial risk of death or disability.  Finally, because only women would be directly affected by laws prohibiting abortions, there is an Equal Protection component to this problem - men voting for laws that primarily affect women.  In opposition to Roe is the fact that neither the right to privacy in general nor the right to terminate a pregnancy in particular are expressly mentioned in the Constitution.  There is no evidence that the framers of the original Constitution (1787), the Bill of Rights (1789), or the Fourteenth Amendment (1866) had this right in mind when they drafted these documents, nor that the people who ratified our fundamental law and the changes to it intended to grant women this right.  To the contrary, the women's rights movement hardly existed when the Constitution was adopted and was only in its infancy at the time of the Fourteenth Amendment.  In the early 19th century scientists learned that life is continuous from sperm and egg to fertilized egg to pre-embryo to embryo to fetus to birth, and in the 1850s the American medical profession came out against the practice of abortion.  In response to these scientific developments the overwhelming majority of states enacted laws restricting or prohibiting abortions.  The right to choose to terminate a pregnancy was not recognized by the Supreme Court until 1973, and a significant portion of the American population and membership of the Supreme Court has never agreed that Roe was properly decided.  Finally, even in light of the substantial consequences that laws prohibiting abortion would have on women, many people believe that these consequences are subordinated by the moral obligation of the government to protect fetal life. 

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Is there federal recovery money for individuals?

By Lynn Published: June 19, 2009

QUESTION: Is there recovery money available for individuals?

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The Taliban and the Law

By Wilson Huhn Published: June 19, 2009

    The Taliban in Pakistan are not fighting for national independence or ethnic identity or economic principles.  Instead their principal goal is to replace the normal lawmaking process (legislation enforced in civil courts) with Sharia - Islamic law - to be enforced in religious courts. 

     Sufi Mohammad is the founder of Tehreek-e-Nafaz-e-Shariat-e-Mohammadi (TNSM), a militant Taliban organization that seeks to impose Sharia on the population.  He is also the father-in-law of Maulanna Fazlulla, the current leader of TNSM.  In February of this year Sufi Mohammad negotiated a cease-fire with the Pakistani government under which the Taliban agreed to lay down their arms in return for the authority to establish religious courts in the Swat Valley.  The government agreed to this in part because the people of Pakistan in particular and much of the Islamic world in general bears a romanticized understanding of Sharia.  In theory Sharia represents a return to basic moral and religious principles.  In practice, however, the Taliban's brand of Sharia is oppressive and brutal, particularly in its treatment of women.  In January Reuters reported how the Taliban in northern Pakistan would not allow women to vote or run for office and how it closed girls' schools, and in April a video of the Taliban's flogging of a teenage Pakistani girl shocked the world.  As a result Pakistan turned against the Taliban.  After the government invaded the Swat Valley the Taliban responded with a string of bombings and assassinations (see today's headlines in Pakistan's Daily Times) and Pakistan finally seems to have turned against this fundamentalist organization.

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The President's Financial Regulatory Reform Proposals: Too Much, Too Little, or Too Soon to Tell?

By Stefan Published: June 18, 2009

Yesterday, the Obama administration unveiled its most recent proposals for financial regulatory reform, calling for "A New Foundation."  The proposals break down into five key objectives: (1) "Promote robust supervision and regulation of financial firms," including creation of a new "Financial Services Oversight Council of financial regulators to identify emerging systemic risks and improve interagency cooperation" and increased regulation of hedge funds; (2) "Establish comprehensive supervision of financial markets," including "[c]omprehensive regulation of all over-the-counter derivatives"; (3) "Protect consumers and investors from financial abuse," including creation of a new Consumer Financial Protection Agency and requiring public companies to "implement 'say on pay' rules, which require [non-binding] shareholder votes on executive compensation packages"; (4) "Provide the government with the tools it needs to manage financial crises," including increased governmental power to take over failing firms posing significant systemic risk; and (5) "Raise international regulatory standards and improve international cooperation."  As should be expected, early reactions span a wide spectrum.

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The President, Don't Ask - Don't Tell, the Defense of Marriage Act, and the Rule of Law

By Wilson Huhn Published: June 18, 2009

     The federal Defense of Marriage Act prohibits the federal government from recognizing same-sex marriages or from granting benefits to the partners of gay and lesbian employees as if they were spouses.  The federal law commonly called "Don't Ask - Don't Tell" prohibits gays and lesbians who serve in the armed forces from publicly disclosing their sexual orientation.  President Obama's administration has not only enforced these discriminatory policies but it has defended these laws in court, and because of these actions President Obama has come under increasing criticism from gay rights groups.  Yesterday evening President Obama signed a memorandum ordering federal agencies to extend employment benefits to the domestic partners of gay and lesbian employees to the limited extent permitted by the Defense of Marriage Act, and again expressed his support for the repeal of this law.  News reports such as this one from the AP focus on the dissatisfaction among gay rights supporters who claim that the President has not only failed to follow through on his campaign promises, but that "he stabbed us in the back."  Is this a fair criticism?

     Until the Defense of Marriage Act (DOMA) (codified here and here) is repealed or modified by legislation such as the Domestic Partnership Benefits and Obligations Act now pending before Congress, there is little that the President can do on behalf of gay and lesbian employees and their partners and spouses.  Alyssa Rosenberg of Government posted this article entitled "Nibbling at the Edges" containing a thorough yet concise analysis of how far the administration may go in extending equal benefits to gay and lesbian spouses and domestic partners under DOMA, and what the impact of the Domestic Partnership law would be.  Similarly, the Don't Ask - Don't Tell statute (DADT) unambigously requires the separation of gays and lesbians from the armed forces if they marry or if they disclose their sexual orientation.

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Sotomayor's Dissent in Pappas v. Giuliani in Support of White Racist Speech

By Wilson Huhn Published: June 17, 2009

     One of the principal judicial decisions by Judge Sotomayor that will be discussed in her confirmation hearing will be her dissenting opinion in Pappas v. Giuliani, in which she stood up for the right of a New York City policeman to engage in hate speech.  Below the fold are a discussion of the case and links to the opinions written by Judge Sotomayor and the justices in the majority.

     Thomas Pappas was a New York City police officer who lived in Mineola, New York, in Nassau County.  In 1996 the Mineola Auxiliary Police Department mailed out a request for charitiable contributions and enclosed a return envelope for the convenience of contributors.  Pappas stuffed the return envelope with racist and anti-semitic materials in which he accused the "Negro wolf" with "destroying American civilization with rape, robbery, and murder," and "how the Jews control the TV networks and why they should be in the hands of the American public and not the Jews."  The Nassau County police department undertook an investigation to discover who was sending this material by sending out similar requests with coded return envelopes.  They discovered that it was Pappas, and upon learning that he was a New York City police officer, they notified his department.  The New York City Internal Affairs Bureau repeated the experiment and confirmed that it was Pappas who was distributing the racist and anti-semitic tracts.   Pappas was fired for violating a departmental regulation prohibiting the dissemination of "defamatory" materials through the mails.

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The Iranian Election

By Wilson Huhn Published: June 16, 2009

     Our thoughts today are with the Iranian people as they struggle towards democracy.  So many constitutional principles are at stake.

     The New York Times has declared in an editorial that in light of the "thuggish behavior" of Iranian authorities, the election "certainly looks like fraud."  National news outlets (AP and ABC, CNN, CBS) have issued extensive reports on the mass, peaceful protests of the Iranian people and the Iranian government's violent response, and Talking Points Memo has posted these videos and pictures of the protests and government violence.  Yesterday evening President Obama stated that while it is up to the Iranian people to choose their own leadership, 

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Health Care Reform- Will it Happen?

By Lynn Published: June 12, 2009

The quote above is from the introduction to the latest report just released this week by the U.S. Dept. of Health and Human Services (HHS) called Health Disparities: A Case for Closing the Gap .    

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The Hate Speech of Jay Severin and Hal Turner and the First Amendment

By Wilson Huhn Published: June 12, 2009

     Jay Severin and Hal Turner are radio talk show hosts who frequently engage in hate speech, and as a result each of them is now suffering some consequences.  According to an article by David Abel of the Boston Globe, Severin has been indefinitely suspended by his employer, and Daniela Altimari of the Hartford Courant reports that Turner is facing criminal charges.  Do the actions against these radio personalities violate their rights under the First Amendment?

     Let's start by describing what Severin and Turner actually said and wrote.  Severin's specialty seems to be insulting people (according to him Al Gore is "Al Whore," Hillary Clinton is "a lying bitch," and Ted Kennedy is "a fat piece of lying garbage.").  Recently Severin has targeted Mexicans, sharing his views about their appearance, hygiene, work ethic, health, tendency to obey the law, and general level of cultural advancement.  According to Abel, Severin made the following statements:

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The Curious Prevalence of Part-Time, Inexperienced Corporate Directors

By Stefan Published: June 12, 2009

Section 141(a) of the the Delaware General Corporation Law provides that: "The business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors . . . ."  (The reason we corporate law scholars generally cite to Delaware law is that the vast majority of Fortune 500 companies are incorporated there.)  Given this statutorily directed (pun intended) "director primacy," one could be forgiven for expressing some surprise at finding out that directors are often part-timers (though well compensated and with some nice perquisites), with no necessary experience in the particular business they are directing or particular financial expertise.  For example, "Bank of America Corp on Friday appointed four outside directors to bolster its board's banking and financial expertise, after U.S. regulators pushed the nation's largest bank to improve governance after a federal bailout."  Again, one might be forgiven for having expected Bank of America's board to be bursting at the seams with banking and financial experts.

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Hate Speech, Private Violence, and the Constitution

By Wilson Huhn Published: June 11, 2009

     Over the last few days domestic terrorists have committed three murders - three political assassinations - in the United States.  Scott Roeder, an anti-abortion fanatic, killed Dr. George Tiller in Witchita, Kansas; Carlos Bledsoe (Abdulhakim Mujahid Muhammad), a radical muslim, killed army recruiter William Long in Little Rock, Arkansas, and James von Brunn, a white supremacist, birther, and holocaust denier, killed security guard Stephen Jones at the Holocaust Museum in Washington, D.C.  These events confirm the report of the Department of Homeland Security "Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment" predicting an upswing in acts of domestic terrorism and the Southern Poverty Law Center's studies (Intelligence Report, map of hate groups, reports of incidents of hate crimes) finding that there has been more than a 50% increase in the number of active hate groups in the United States since the year 2000.  What does the Constitution have to say about this, and what can we do about it?

     Terrorist actions are fueled by hate speech.  The individuals who murdered Dr. Tiller, Private Long, and Mr. Jones were all encouraged and motivated to act by extremist speech.  In an article for Salon Gabriel Winant describes how Fox News host Bill O'Reilly carried on a long campaign of hate against Dr. Tiller, repeatedly calling him a "baby killer" who had "blood on his hands."  Scott Roeder apparently did not understand that Mr. O'Reilly was speaking metaphorically, nor apparently did the other anti-abortion activists who according to the National Abortion Federation have committed 8 murders and forty-one clinic bombings over the past three decades.  According to the F.B.I., the Little Rock shooter Carlos Bledsoe traveled to Yemen to learn hate.  Muslim extremists chant "Death to America" and teach converts like Bledsoe and militants like Mohammed Atta that all Americans are complicit in crimes against the muslim world.  Like Roeder, Bledsoe apparently took these claims quite literally.  Yesterday's domestic terrorist not only listened to hate speech, he contributed to it.  Von Brunn authored a post at Free Republic expressing his view that Barack Obama is not an American citizen, a view enthusiatically received by most of the persons who added comments.  According to a post by Heidi Beirich of the Southern Poverty Law Center von Brunn authored an anti-semitic book, ran a racist and anti-semitic website, and had been associated with many members of the far right including William Pierce, the author of the Turner Diaries, the book that inspired militia member Timothy McVeigh to blow up the federal building in Oklahoma City, killing 168 Americans and wounding more than 800.

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Responding to Reader Comments on Bork

By Wilson Huhn Published: June 10, 2009

     The thoughtful comments to my postings on why Robert Bork's nomination to the Supreme Court was not confirmed deserve what is hopefully an equally thoughtful response. 

     Dave disagrees with my posting on two counts.  First, in his opinion

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You Know It When You See It

By Martin Published: June 9, 2009

On Monday, June 8th, the United States Supreme Court, in a 5 to 4 decision, decided that a judge must recuse [remove] himself or herself in the unusual case where a litigant spent a large amount of money to get that judge elected.  In Caperton v. A.T. Massey Coal Co., Justice Kennedy wrote that under the facts of that case, the due process clause of the Constitution required recusal by a West Virginia State Supreme Court Justice because of there was a "serious, objective risk of actual bias."  Here, in 2002, a West Virginia jury returned a verdict against A.T. Massey for $50 million and the company appealed.  The chair of the Company gave a personal gift towards the election campaign of Brent Benjamin to the West Virginia Supreme Court and then gave more than $3 million to fund an outside effort to elect Benjamin.  The money was used for direct mailings and ads.  Benjamin won the election and the Massey Coal case came before the Court.  Caperton moved to recuse the new Justice and the Justice refused.  In November 2007, in a 3 to 2 decision, the West Virginia Supreme Court reversed the lower court.  Benjamin was the deciding vote.  Caperton then appealed to the United States Supreme Court.

Justice Kennedy,  writing for the majority, did not want to find that there was actual bias, or that Justice Benjamin was, in fact, biased because of the campaign support.  But here was an "exceptional case" involving sanctions by a party that had a "significant and disproportionate influence in placing the judge on the case."  The West Virginia Supreme Court had to be reversed.

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The "Don't Ask - Don't Tell" Non-Decision of the Supreme Court

By Wilson Huhn Published: June 9, 2009

     Yesterday the Supreme Court denied certiorari to the case of James Pietrangelo who was appealing from a decision of the First Circuit Court of Appeals.  Here are reports of that decision from the Akron Beacon Journal, Time Magazine, and Yahoo News.  The Beacon Journal account comes closest to capturing the real meaning of this decision.

     There have been a number of challenges to the U.S. Military's "Don't Ask - Don't Tell" policy of barring gays and lesbians from active service if they make their sexual orientation public, but the Supreme Court has never ruled on the question of whether or not the federal law that mandates their separation from service is constitutional.  Yesterday, in the Pietrangelo case, the Supreme Court again refused to rule on the question.  The Court did not rule against Pietrangelo - it did not affirm the lower court decision against him - it just refused to take his case. 

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Caperton v. A. T. Massey Coal Co. Decided Today

By Wilson Huhn Published: June 8, 2009

     The Supreme Court issued its decision in Caperton v. A. T. Massey Coal Co. today.  Here is the Court's opinion and here is a news report of the decision from the New York Times.  In a 5-4 decision along ideological lines, the Court ruled that it was a violation of the Due Process Clause for a judge to fail to remove himself from a case involving a person who had made enormous campaign contributions to him.

     Hugh Caperton, the President of Harmon Mining Company, sued the Massey Coal Company and its affiliates on the ground that Massey had unlawfully driven the Harmon Mining Company out of business through a campaign of fraud and misrepresentation.   A jury awarded Caperton $50 million in compensatory and punitive damages.  After the verdict was rendered Don Blankenship, the President of Massey Coal, spent over $3 million to elect Brett Benjamin to the West Virginia Supreme Court.  Blankenship made the maximum campaign contribution of $1,000 directly to Benjamin's campaign, and the balance of the $3 million was spent on advertising promoting Benjamin's candidacy.  This was more than three times the amount that Benjamin's campaign committee itself spent during the election.  Benjamin was elected to the West Virginia Supreme Court.  Massey Coal appealed the decision in Caperton's case to the West Virginia Supreme Court.  Caperton asked Justice Benjamin to recuse himself from the case, but Benjamin refused the request.  In West Virginia, as in many states, there is no other procedure from removing a supreme court justice from a case.  The West Virginia Supreme Court, by a vote of 3-2, then reversed the verdict against Massey Coal Company.  Justice Benjamin voted with the majority in favor of Massey Coal.  Caperton appealed this decision to the United States Supreme Court on the ground that it was a violation of the Due Process Clause for Benjamin to have remained on the bench and to have voted on the case.

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Conducting research using the Domestic Relations Court website

By Lynn Published: June 5, 2009

2. We cannot seem to work out a mutually agreed on visitation schedule for our child. What is a typical visitation schedule the courts recommend?

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A Justice With Empathy Sees All Sides

By Diana Published: June 5, 2009

Check out this Op-Ed piece in The Akron Beacon Journal written by guest blogger Bill Jordan. Bill is the associate dean of Akron Law and is also a C. Blake McDowell, Jr. Professor of Law.

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Robert Bork: (Part 3) A Critique of His Theory of Constitutional Interpretation

By Wilson Huhn Published: June 5, 2009

     Robert Bork was not wrong in emphasizing the importance of the interpretive principle of "original intent."  He was wrong, in my opinion, in failing to acknowledge the legitimacy of other methods of constitutional analysis, and in failing to carefully consider alternative methods of identifying the intent of the framers.

     Bork correctly reasoned that since all power of government is derived from the people, that the will of the people must be consulted and indeed must govern the interpretation of the foundation document which created the government and which placed limitations upon the power of that government.  But Bork uncritically accepted that this meant that the Constitution must be interpreted in a manner consistent with the common practices of the society from which the Constitution emerged.  In other words, Robert Bork assumed that the Framers intended for us to interpret the Constitution to mean that the customs and behavior patterns at the time of the framing establish the blueprint for our society as well, and that if we wish to reject any of those customs or behaviors as inconsistent with our fundamental law then we are obligated to amend the Constitution.

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Remembering the Tiananmen Square Massacre

By Stefan Published: June 4, 2009

The story of the 20th anniversary of the Tiananmen Square Massacre ran in the Wall Street Journal yesterday and today.  If it qualifies for the Wall Street Journal, it qualifies for this blog.  Furthermore, if you can't excessively self-disclose on your blog, then where?  So, without further ado, and in memory of this tragedy, I reproduce here the lyrics to a song I wrote about the event 20 years ago, along with a link to the recording.

For those of you who need some more background information, here's a short video.

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Robert Bork: (Part 2) His Approach to Constitutional Interpretation

By Wilson Huhn Published: June 4, 2009

     It is difficult today to focus upon the topic I promised to discuss yesterday because so much news of constitutional importance is occuring ... reports about Judge Sotomayor's decision protecting white racist speech - Hal Turner's arrest for threatening speech on his website - and, above all, President Obama's speech at Cairo University in which he addresses principles of fundamental human rights, principles that the American Constitution stands for.  But on to the topic for the day - Robert Bork's approach to constitutional interpretation.

     Bork's 1971 law review article Neutral Principles and Some First Amendment Problems outlined how he thought we should interpret the meaning of the Constitution.  Bork's starting point was Herbert Wechsler's theory of neutral principles.  Wechsler's principal point was that law should be objective - its meaning should be plain - that the law should be so clear that reasonable people, whatever their political or social views, should agree as to what the law means.  Wechsler himself nobly advanced this goal by drafting the Model Penal Code which clarified and modernized the criminal law.  Before the adoption of the Code many aspects of the criminal law were vague and confusing.  For example, before the Model Penal Code was adopted the courts would ask whether the defendant had sufficient "mens rea" (guilty mind) to be held criminally liable.  The Model Penal Code introduced standard definitions of differing mental states (negligence, recklessness, knowledge, and intent) to more precisely measure degrees of criminal culpability.  Wechsler hoped to extend this idea of neutral principles to all of law, including constitutional law.  Wechsler found the Supreme Court's decision in Brown v. Board of Education to be deeply troubling because it was not grounded in "neutral principles."  In that case the Court declared state-sponsored racial segregation in the public schools to be unconstitutional.  In the key passage of that opinion, Chief Justice Earl Warren wrote:

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Robert Bork: Should He Have Been Confirmed? (Part 1)

By Wilson Huhn Published: June 3, 2009

     In 1987 Ronald Reagan nominated Robert Bork to be a justice of the United States Supreme Court.  Bork was a brilliant and experienced jurist, and yet despite his obvious qualifications for the position he was not confirmed.  Was the Senate justified in refusing to approve his appointment?

     Robert Bork is a gifted legal scholar who has made valuable contributions to our understanding of constitutional law and antitrust law.  He served as Acting Attorney General under President Nixon, Soliciter General under President Ford, and at the time of his nomination to the Supreme Court he had served as a judge on the D.C. Circuit Court of Appeals for five years.  He was also a talented teacher; my oldest brother learned constitutional law from Bork at Yale Law School, and in his opinion Bork was an outstanding professor.  No-one can seriously contend that Bork did not have the intellectual capacity or the judicial experience necessary for service on the Supreme Court.  So why wasn't he confirmed?

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James Wilson and Democracy

By Wilson Huhn Published: June 2, 2009

     Yesterday as part of the Heritage Foundation's First Principles series Mark David Hall published an article on Founder and Framer James Wilson.  Wilson's political philosophy was based upon the principles of democracy and individual right.  He and the other founders laid the foundation of those principles in the Constitution, and the American people have continued to build and improve upon that foundation.

     James Wilson was one of six persons to have signed by the Declaration of Independence and the Constitution of the United States. contains a glowing and effusive biographical sketch of Wilson, while the website Signers of the Declaration carries a more critical summary of his life and work.  Hall focuses on Wilson's political thought and his influence upon the drafting of the Constitution.  Like many Americans of the revolutionary generation, Wilson believed that the people (not Parliament, not the King) are sovereign and that every individual is endowed with inalienable rights.  And like many other Americans who lived through the uncertainty and chaos of the Articles of Confederation, Wilson thought it imperative that the United States should adopt a strong central government; for example, even under the Confederation Wilson thought that Congress had the power to create a Bank of the United States.  What distinguished Wilson at the Constitutional Convention, however, was his faith in democracy.

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Are You Ready for the New Federal Litigation Time Computation Rules?

By Bernadette Published: June 2, 2009

     Get ready for new methods of computing time periods in federal court litigation.  On March 26, 2009, the U.S. Supreme Court  approved proposed amendments to the Federal Rules of Appellate Procedure, Bankruptcy Procedure, Civil Procedure, and Criminal Procedure that will change many time periods set out in these rules and will also change the methods of computing time under these rules.  The rules will take effect on December 1, 2009, absent congressional action to reject, modify, or defer the amendments.   

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Resources about Supreme Court Nominee Sonia Sotomayor

By Lynn Published: June 1, 2009

The Law Library of Congress has a web page that links to materials on Supreme Court Nominee Sonia Sotomayor. There are links to cases, Congressional Documents, and other web resources about Sotomayor.  Citation information to articles and books written by her are included. 

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Sotomayor's Decision in Center for Reproductive Law and Policy v. Bush

By Wilson Huhn Published: June 1, 2009

     Seventeen years ago Judge Sonia Sotomayor authored the decision of the Second Circuit Court of Appeals in Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2002).  What does this case tell us about her qualities as a judge and her views on abortion?

     In 1984 President Reagan announced the "Mexico City Policy" which prohibited foreign organizations which receive federal funds from promoting or even discussing abortion.  The Mexico City Policy was continued by President George H.W. Bush, reversed by President Clinton, reinstated by President George W. Bush, and was rescinded again by President Obama three days after he took office.  Nearly 20 years ago the pro-choice organization Center for Reproductive Law and Policy (CRLP) challenged the Mexico City Policy in federal court primarily on the ground that this policy violates the First Amendment because by prohibiting foreign organizations from discussing abortion, the government was interfering with the right of CRLP to carry out its mission of promoting abortion rights - in effect, by threatening to cut off funds to any foreign entity that discusses abortion, the United States government was prohibiting CRLP from speaking with those entities.  The District Court dismissed CRLP's case on procedural grounds for lack of standing.  On appeal, the Second Circuit affirmed the dismissal of the case, but on different grounds.  The Court of Appeals reached the merits of CRLP's case and ruled that the Mexico City Policy does not violate the First Amendment rights of organizations that favor abortion rights.  The appellate decision was written by Judge Sonia Sotomayor, and it reveals a great deal about her jurisprudential style, but relatively little about her views on abortion.

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