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Daremyth posted:Imagine you're the Muslim citizen of the town of Greece and you come to a town meeting to talk about some zoning issue for your pool or something. Are you not going to feel a little bit disenfranchised following that opening? hobbesmaster posted:Basically they grabbed the list from the local chamber of congress which only contained christian churches, emailed them all and whoever replied was put on a list to be invited back later if they like. They didn't put any effort into reaching out to new people until they were sued. It seems more like they half assed it. I don't have the time to read the opinion, so I read SCOTUSBlog instead: SCOTUSBlog posted:Treating the Kennedy opinion as controlling, because it spoke to a middle-ground approach between blocs of Justices who wanted to go further in one direction or the opposite, this is the constitutional prescription it provided for legislative prayers: SCOTUSBlog also talks about the death of the "endorsement" paradigm and how this opinion heralds an embrace of the "coercion" test. I have less of an opinion on that, mainly because they're probably not exactly mutually exclusive (e.g., a sufficient amount of government "endorsement" begins to look like "coercion").
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May 5, 2014 21:08
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Daremyth posted:I'll let Justice Kagan respond for me: Skimming Kagan's dissent, most (I think the licensing is an executive function, but I may be mistaken) of the activities going on strike me as legislative actions. So, no, nothing like a jury trial. Much more like a legislative session. Making a different set of standards for a professionalized class of legislators (Marsh) from a set of standards for citizens who engage in legislative functions (here) doesn't seem all desirable. quote:The town was repeatedly and consistently and emphatically invoking a very specific religion before a town meeting where petitioners and town members were present. If I was a member of a different faith and a meeting where I had business opened this way, I would for sure feel uncomfortable. This is the distinction that's drawn between legislative prayer and town meetings. Ordinary citizens are almost never participating in congressional proceedings, but are frequently party to town meetings. I see your distinction, and I raise you: it's one without a difference. Normal citizens and elected representatives should play by the same rules in legislative settings. Jastiger posted:Its just clear that this ruling is just another way to force religion into the public sphere and side step the Constitution.
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May 5, 2014 23:45
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Daremyth posted:There is a distinction and its an important one. If I'm a petitioner going to a town meeting to ask the council to address a grievance and there is a religious ceremony at the beginning, I'm going to feel complicity compelled to participate just so I can think my position will be heard fairly. quote:In the case in question, there were instances where the clergymember asked the entire town meeting to stand during be prayer. If I'm a nonreligious person a a meeting when that happens I'm hosed. I can either remain seated and be singled out as a heathen to the people I'm petitioning or I can participate in a religious ceremony against my personal beliefs to avoid that singling out. That's the town meeting compelling me to participate and it's unconstitutional. 2) Assumption: being "singled out" will occur 3) Assumption: being "singled out" will result in negative consequences relating to the business at hand Absent a showing that refusing to participate actually results in adverse consequences from the government, your scenario sounds like the only compulsion going on is the individual's own desire not to be identified as separate from the group.
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May 6, 2014 00:22
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Jastiger posted:Or, we can just not do any of it at all and that side steps the entire issue. It is an unnecessary ceremony that is designed only to assist or support those that wish to participate that has nothing to do with the business of the state. For much the same reasons that churches aren't charities (they only benefit their members), a religious ceremony on state time is the same way, and as such should not be condoned. Its like only allowing one certain brand of advertising allowed at each session because everyone happens to like the local Walmart. I think that everyone can agree that just not doing any of it would be easier, yes. But "what's easiest" is not the standard. VitalSigns posted:Oh sweet, I guess we can just have a Muslim prayer then, since you can face east and prostrate yourself, and as long as you think about titties instead of Allah while you're doing it, then it's not participation. Daremyth posted:Standing is participating. My point is that not everyone thinks the same way about what constitutes participation, including the fact that people do actually think merely standing is not indicative of participation. So, no, not everyone thinks like you. Daremyth posted:Being singled out as a member of a minority group automatically exposes you to in-group bias, which is a very real thing. Just because someone on the town council never comes out and says "no zoning permits for the impurator" doesn't mean there are no negative consequences. We (as a human race) don't have a stellar record when it comes to impartial treatment of people with whom we disagree. Let's just avoid creating an unnecessary distinction at all during government events! A lot of this appears to be concern about general social interactions. But anything that doesn't pertain to negative government action is not addressed by the Constitution, nor relevant to this conversation. To the extent someone believes that they have been treated with bias based on their religious beliefs, they can (and do) bring suit. Slaan posted:A town meeting, much of the time, basically is a trial. Town ordinances can massively effect the population of the town, and often do functions such as zoning in areas too small/poor to have a dedicated staff. So, imagine if a Muslim goes to the town and asks that his ice cream business be allowed to be built in a residential area, an exemption, so that he can be closer to his Mosque; if the town opens up with "Jesus is our Lord and Saviour," do you think he will think he is being given a fair shake? Do you think the more religious Christians on the board will think differently if their religious differences are pointed out before such a case? The first question is preposterous. It assumes that the Town would not be discriminatory unless if a speaker talks about Faith A. The invocation of a specific religious belief by a non-government speaker before the beginning of the session, in and of itself, will not cause government officials to flick on their "Discriminate Against Religious Beliefs" button. As for the second question, I don't know (and neither do you), because "the more religious Christians" are not a unified block of discriminatory or non-discriminatory assholes who wield their governmental power in the same way. quote:Town meetings are incredibly important for the individuals and businesses who bring up items for discussion. And they tend to be very personal cases with a lot of detail thrown in. Having prayers before hand just muddles the water; at best, it is a neutral hand wave to local religious groups. At worst, it ruins livelihoods. <citation needed>
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May 6, 2014 13:16
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You appear to not be reading what I'm typing. The "tough poo poo" doctrine is different from "not everyone thinks like you" because, amazingly, not everyone thinks like you -- and not everyone thinks simply standing up constitutes "participating" in a prayer. The "tough poo poo" doctrine comes into play when someone does think that standing equals participation, they chose not to participate, and then they simply feel bad about having to not participate even though no negative government action comes of it. In that instance: tough poo poo. If negative government action occurs, they can file suit and claim religious discrimination. VitalSigns posted:Seriously, what's your hard-on for pushing Christianity into the public sphere? Don't you get enough praying in church? Are there not enough hours in the day to get in some praying at home? Are ostentatious public prayers even compatible with your Savior's explicit commands? I'm atheist, so maybe recalibrate the tenor of your personal attacks? The First Amendment only prohibits passing a law respecting the establishment of religion, so I'm arguing that Town of Greece is aligned with that limitation. It is a limitation which recognizes that religion and religious beliefs (and not just Christianity) are allowed to have a public face, be it a non-governmental speaker before a legislative session or a series of different religious icons private citizens want displayed in a public area (including a Festivus beer pole) or other similar instances of religion being out in the public realm. It's basically an extension of freedom of speech principles, and until such non-government speech becomes "a law respecting an establishment of religion," I don't really see how this isn't simply private citizens being able to exercise their freedom of speech. (I don't know what the case law is on this point, though.)
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May 6, 2014 13:48
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KernelSlanders posted:No, these are inextricably linked as your next paragraph points out quite clearly. You don't think like everyone else and are a member of a minority faith? Tough titties, the government is going to treat majority faith as the official (that is, established) faith of the town. When you come to have your zoning appeal heard the town will have public affirmations of the established faith. You don't have to participate, but there is no way in which your failure to participate will go unnoticed. You can either think like everyone else (in this case think it's fine to publicly participate in affirming Jesus Christ as your Lord and Savior) then tough titties. When brought to the Town's attention, speakers of other faiths were invited. The opinions make it unclear to what degree this differentiation in speakers continued. Presumably, someone speaking up once again can put speakers of other faith on rotation if the practice has dropped off. Presumably, someone speaking up can put speakers of a non-faith on rotation. The end result is a multitude of viewpoints being expressed over time, rather than in a single speech -- which achieves what the primary dissent was arguing for, but just not in a condensed fashion (in a single speech). Comparable to, say, a whole bunch of religious and non-religious icons being set up in a public area in Winter. quote:More than pushing Christianity you seem to have bought into Roberts explicitness line of thinking. If you can't prove that the money given to a politician by a donor who then got his bill passed, was in their minds in exchange for the bill then no corruption has occurred. If you can't prove the town council would have approved your driveway but for your refusal to participate in jesus worship, then the city hasn't established a religion. Statistics won't be enough either. Unless you can prove that inside the minds of of the legislators they're passing laws that reduce voting turn out of black people because they don't like black people, there's nothing wrong. - I've already stated ITT why I think McCutcheon was wrongly decided: donating directly to candidates, which is a difference in kind to independent expenditures, gives rise to the appearance of corruption that Congress should be able to regulate under the rational basis standard. - I'm guessing you're referring to Shelby County, but I also disagree with Roberts on that because his opinion ignored the Reconstruction Amendments' fundamental and permanent alteration of the States' sovereign authority in relation to federal power, which in turn undermines that opinion's reverence of the states' "equal sovereignty," and that leads to a much greater deference to legislative decision making (e.g., maintaining the same coverage formula). - Which leads to the need of proof of religious discrimination. I'm confused about your derision of proof -- are you suggesting discrimination should be assumed simply because a speaker of Faith A started the session off with a talk? Should we now always assume <bad thing> happened rather than requiring proof of it, or is religion just a special case because reasons? Jastiger posted:My point isn't what is "easiest" or "makes the least waves", its what is "easiest to follow the Constitution and not discriminate". All the presence of prayer serves at a town hall meeting is to reaffirm a majority position on a specific (sectarian!) deity that purportedly has no bearing on government work. This puts the town, and really government in general, in a tough position when we analyze the use for such prayer. This point is undermined by the fact that speakers from other than the majority faith have been previously invited to speak, and are presumably welcomed to return. quote:The problem with the argument isn't just that "boo hoo I have to stand" its "boo hoo, they all think their governmental power and decision making ability comes from a being that I do not believe exists" which places the non believer at a big disadvantage not only in social circles but even in their ability to participate in government. Its wrong for the same reason its wrong for our military folks having to stand in formation while a prayer is broadcast. Its a government establishment of religion that directly contradicts the idea of religious freedom and secular government and holds not only religion over irreligin, but Christianity over others. The fact that a speaker does or does not give a talk at the beginning of a session does not alter whether a government official "think<s> their governmental power and decision making ability comes from a being that I do not believe exists."
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May 6, 2014 15:20
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VitalSigns posted:Yes, speakers of all different sects of Christianity were invited. Such diversity. Town of Greece v. Galloway posted:The town followed an informal method for selecting prayer givers, all of whom were unpaid volunteers. A town employee would call the congregations listed in a local directory until she found a minister available for that month’s meeting. The town eventually compiled a list of willing “board chaplains” who had accepted invitations and agreed to return in the future. The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were too. KernelSlanders posted:Opening a public forum to icons placed by private individuals creates a free speech and free-exercise clause claim that the religious icons can't be discriminated against. It is a completely different scenario than an establishment clause claim that government officials are conducting government business only after everyone agrees Jesus is great. One has nothing to do with the other. The point is that speakers from different faiths were invited (it just happened to be set off, in this case, by the fact that someone complained), and gave a pregame speech. I guess our irreconcilable difference is that I don't see a difference between when non-government speakers from a variety of different faiths (and non-faiths) are invited to give a pre-legislative session talk and when non-government speakers place icons from a variety of different faiths (and non-faiths) on government property. In each case, the government is inviting non-government individuals to engage in actions that are considered speech in the public forum. I see free speech, free exercise, and establishment issues in both of those scenarios, and don't agree that there's a distinguishing factor between the two (especially if the distinguishing factor is that this case doesn't present a "typical" legislative session in that non-professional representatives are present, or the fact that the legislative session includes some non-legislative activities).
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May 6, 2014 16:14
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This link contains a series of SCOTUSBlog posts about reactions and takeaways from Town of Greece. Authors are mostly law professors, but there are some real life lawyers in there as well.
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May 6, 2014 21:58
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And the link I provided is a compilation of posts that are relevant to the conversation.
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May 6, 2014 22:11
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Is the question why "long ago" history is important in some cases, and "more recent" history important in others? If so, the answer is because different legal issues implicate different segments of history. Constitutional issues are frequently grounded, or at least sourced in, the viewpoints of those who enacted the relevant portion of the Constitution. It is true that the relative import of this history depends upon a Justice's jurisprudential philosophy (e.g., Originalists thinking original, historical meaning is the be-all, end-all). But most Justices (and jurists throughout the U.S., since we are a common law nation, and therefore "tradition and history" is basically the backbone of how courts make law) believe historical practice to be important to some degree, especially in cases implicating Constitutional issues -- which is to say, in cases implicating very fuzzy areas of law where no real boundaries are established. That's why, for example, both the majority opinion and Justice Stevens' dissent in McDonald v. Chicago used great swaths of history to talk about the 2nd Amendment. Conversely, statutory issues are frequently grounded in the text itself and, when going beyond the text, the relevant history of the time of the drafting of the legislation (often referred to as "legislative history"). That's why, for example, both the majority opinion and Justice Ginsburg's dissent in Shelby County v. Holder discussed the state of affairs when Congress reauthorized the VRA in 2006. Green Crayons fucked around with this message at 04:30 on May 7, 2014 |
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May 7, 2014 04:26
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evilweasel posted:Thomas essentially doesn't believe in stare decisis. What are the feared insane results of reviving the P&I Clause?
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May 7, 2014 21:18
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evilweasel posted:If you suddenly abolish substantive due process and declare the P&I clause has teeth again, you suddenly need to re-litigate every settled issue to see to what extent the P&I clause differs from the substantive due process incorporation doctrine. You get a storm of lawsuits until the contours are settled. I didn't realize reviving the P&I Clause required abolishing substantive due process. If the Court created SDP after it neutered the P&I Clause, why would reviving the P&I Clause require then overruling the substantive right jurisprudence based in the Due Process Clause?
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May 8, 2014 13:24
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Wow. Nobody had any thoughts about the huge news that came out of the Court today? Scalia joined an opinion in full, even when that opinion used legislative history! Petrella v. Metro-Goldwyn-Mayer, Inc. posted:The federal limitations prescription governing copyright suits serves two purposes: (1) to render uniform and certain the time within which copyright claims could be pursued; and (2) to prevent the forum shopping invited by disparate state limitations periods, which ranged from one to eight years. Senate Report 2; see H. R. Rep. No. 2419, 84th Cong., 2d Sess., 2 (1956). To comprehend how the Copyright Act’s limitations period works, one must understand when a copyright infringement claim accrues.
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May 19, 2014 20:01
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The only important part of that quote are the citations to the House and Senate Reports. These documents are referred to as part of the "legislative history" of a statute, which includes all sorts of materials about the hows and why a statute is passed. Scalia is a huge fan of textualism when it comes to issues of statutory interpretation. Textualism resolves statutory interpretation issues by simply looking to the text of the statute (while also using various canons of construction for when the statutory text is less than clear). What textualism does not do, however, is resort to looking to the legislative history of a statute -- a few of the reasons being that the legislative history can be manipulated by individual legislators, and the legislative history wasn't what was voted on by both chambers and signed into law. This is why Scalia, vowed textualist that he is, frequently will join opinions except for certain portions that refer to the legislative history relating to a particular statute. Here, he did not do so -- that is to say, he joined the opinion in full, including the portion of the opinion that embraced the use of legislative history (albeit for a minor point). (Not really huge news. I was making a joke.) Green Crayons fucked around with this message at 20:12 on May 19, 2014 |
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May 19, 2014 20:10
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Shelby County v. Holder was not a statutory interpretation case, but a constitutional law case, and therefore any Justice's adherence (or lack thereof) to textualism was irrelevant. edit: VitalSigns posted:VVVVV Green Crayons fucked around with this message at 21:52 on May 20, 2014 |
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May 20, 2014 21:42
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Statutory interpretation cases are about what a statute means, and how the statute applies (or does not apply) to a given set of facts. In statutory interpretation cases, there are various theories of jurisprudence that different jurists champion. Textualism is one (Scalia being the most well known proponent). Purposivism/Intentionalism is another (and generally seen as the main competitor of textualism). In contrast, constitutional law cases are about whether a certain "thing" (be it a government act, or a statute) passes constitutional muster. That is, whether the U.S. Constitution allows or prohibits that thing. In constitutional law cases, the theories of jurisprudence that apply to statutory interpretation are not applicable.* The point being, there isn't a "gotcha" moment if Scalia looks beyond the text of a statute when assessing its constitutionality -- that is, when Scalia looks beyond the text of a statute in a constitutional law case. He isn't betraying his textualism principles in those cases, because textualism is inapplicable. That responds to your initial assertion that you thought Scalia was a strong believer in legislative history. If your new point is something about Scalia going for results instead of applying consistent legal principles, that's fine. It's an oft repeated statement, but frequently supported by only his horrible Commerce Clause switcheroo. Notably, that statement is not supported by the fact that Scalia is a textualist, but considered what the legislators may have thought when passing a statute in a constitutional law case. *There are, of course, some theories in constitutional law cases that closely resemble theories utilized in statutory interpretation cases. For example, originalism and textualism are closely aligned. But the focus of each is different, in light of the type of case at hand: originalism is concerned with the text of the Constitution (and what those who originally passed the relevant portion thought, which can require looking to secondary sources), whereas textualism is concerned with the text of the relevant statute (and believing that the intent of those who passed the law is embodied in the text itself). Green Crayons fucked around with this message at 01:18 on May 21, 2014 |
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May 21, 2014 01:15
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In re: the author of Bond, whoever was running the SCOTUSBLog live blog a week or two ago was asked that question and (s)he guessed Roberts. I read elsewhere that Roberts is probably the likely author in light of Kennedy authoring Greece.
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May 21, 2014 01:30
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It's strange that you're making a big hubbub about the language utilized in a district court opinion which, by the very nature of it being a district court opinion, is on the low end of the scale in terms of precedential value.
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May 21, 2014 21:15
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You pointed out the "ash heap of history" quote, but that rhetorical flourish was at the end of the opinion. What particular rhetorical flourishes are you taking issue with that actually muddle the legal analysis in these cases? (My word search of Judge Jones' .pdf opinion shows that it contains only one use of the word "clearly," but in a quote, and no uses of the word "obviously.") I've generally only skimmed these opinions, but nothing as striking as "ash heap of history" ever jumped out at me in, say, Section IV.B.1.a entitled "Indicia of Suspectness." That is, I don't recall ever thinking that the legal analysis was muddled because of some sort of "creative writing" lingo being substituted in for a cold and distanced tone. Instead, such flourishes have always been at the beginning or end of the opinion, when the court is clearly not engaging in a legal analysis. I don't see why humanizing a legal holding after going through the analysis -- which itself was without ambiguous and confusing rhetoric derived from "creative writing skills" -- constitutes grounds for judicial discipline.
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May 22, 2014 22:04
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Discendo Vox posted:There is quite a bit of it in the reasoning, though it's not as infuriatingly blantant- it mostly consists of suggestive word choice that invokes, but does not state, standards, That's fine. I just want to see the "creative writing skills" in the legal reasoning bits that has you so upset. Please provide examples. quote:as well as formular rhetorical maneuvers such as litanization that Jones is probably using without even noticing. I don't know what this means. quote:The more general problem, though, is that the end and the beginning of the decision aren't somehow exempt from the norms of legal writing; there's no distinction between dicta and decision. Well, yes, there is a distinction between dicta and decision. And I know you have an argument about jurists disagree over what is actually dicta in any given case. But that's really beside the point. An introductory or conclusion rhetorical flourish that is completely separate from the legal analysis sections is, at best, a thesis statement that has no direct bearing upon the actual legal analysis. Your fear of people citing "ash heap of history" as part of their legal analysis of whether, say, homosexuals are an insular and discrete minority, is perplexing because it does not relate to the any legal analysis. That is, it's irrelevant to the legal analysis in the case in which the rhetorical statement itself was made. So it instead looks like you're upset that the opinion contains some humanizing language in the non-legal analysis sections. quote:Other courts are free to cite and use any part of the decision, which is what Roberts does in Parents Involved. I don't know what specifically you're referring to when you invoke Parents Involved. Roberts cited, in his legal analysis, an introductory or conclusion statement that was not part of a legal analysis in a prior case? quote:This is why you see a lot of jurists accusing each other of "citing dicta". Jones is using "ash heap of history" because he's hoping that part gets cited- although that's going to be trouble if anyone points out that it implies a historicist framing of the issue. This is projecting quite a bit. I have no idea what Judge Jones was thinking when he used the phrase "ash heap of history," but my guess is that it was for laypersons who he knew would be reading the opinion and not with a hope that an appellate court would go, "by golly, I'm going to quote that particular phrase!" I don't know why you're assuming its the latter rather than the former. I'm also not sure what you mean by "a historicist framing of the issue."
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May 23, 2014 03:05
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So this doesn't become a quote wall back-and-forth, I'm going to group your responses together to respond to your main points. Also, I'm not questioning your agreement with the outcome of the case, so please put those fears aside. I'm much more interested in the question of the propriety of judicial opinions containing certain language.Discendo Vox posted:OK, here's a couple from sections I suspect you believe are part of the legal reasoning. I see your point insofar as you're stating that these sentences could have been phrased differently. I just don't see how these sentences, as written, are going to create ambiguity or confusion that your preferred style would avoid. Also, I'm not entirely sure that legal opinions should be completely devoid of passion. Law affects people in real ways, and judges -- especially trial court judges, as Judge Jones is -- must strike a balance between cold detachment and recognizing the fact that their job fundamentally changes people's lives. So, in opinions, although clear and concise language is paramount, I think it's appropriate to acknowledge the fact that judges aren't robots. To that end I disagree that, if these sentences are examples of a "creative writing style" infecting a legal analysis (perhaps better phrased as the judge going for style over substance in his legal analysis), that this type of opinion should be grounds for discipline. There's also a difference between making a judicial opinion persuasive, and making it a stump speech. Although I'm far from a legal realist, the law is not just some absolute truth existing in the ether. The judiciary as a whole must persuade the public (and the other branches of government) that their opinions are justified and binding. Sometimes this requires cold and detached application (of, say, the Bankruptcy Code). Sometimes it requires the use of more relatable vocabulary. quote:If jurists can choose which part of a decision is dicta and which part is analysis, then yes, the inclusion of rhetoric that can be treated by later jurists as analysis is a problem- and that's what happens. Dicta isn't defined by being in the introduction or the conclusion of the decision, and analysis isn't excluded from those portions either. If subsequent jurists can manipulate this, (and they do), then the distinction is itself, in function, a rhetorical one. Obviously there's not a firm rule that legal analysis will not be in the introduction or conclusion of any given opinion, but as a matter of course that's what happens just by the nature of how opinions are written. Of course, nothing exists to stop a future court from citing any portion of an opinion except for the need for such a citation to be relevant and persuasive. And those are two enormous barriers to citing a purely rhetorical flourish that is detached from the legal analysis (e.g., "ash heap"). quote:That's the problem- Roberts cites and distinguishes Grutter as being exclusive to higher education, particularly at page 13. He does this by manipulating language in the Grutter opinion that was intended to sell the purposes of the program being upheld. Roberts takes rhetorical language not strictly necessary to the standard in Grutter and uses it to reduce its scope. Wait. Grutter was about higher education. The Grutter Court was discussing whether race could be used in the higher education admissions process. It was therefore appropriate for the Grutter Court to discuss whether the use of race (to promote diversity) in the context of higher education was a compelling government interest for the purposes of strict scrutiny. I don't see how that holding from the Grutter Court was dicta (I don't think it was), much less a rhetorical flourish that Roberts' manipulated to his advantage only because it was an unnecessary addition to the Grutter opinion. Also, I find it strange that you compared Judge Jones' opinion to Justices Roberts and Scalia. If anyone on the Court utilizes vague and overbroad statements that muddy the water of just what the hell future courts are supposed to do, it's Kennedy. Seriously, Kennedy is a bad writer.
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May 23, 2014 14:45
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The big problem is obviously transparency. That said, apart from typos, which happen no matter how many eyes you have look at a page, I find it pretty crazy that other types of revisions have to actually occur. Like, doesn't each Justice have at least four other Justices, plus their respective cadres of law clerks, look at this stuff (obviously not applicable to non-majority opinions)? I wonder if someone from the Reporter of Decisions (or similar office) gives the opinions a once over to provide an independent verification of claims asserted? I am aware of two state supreme courts that employ such a third party editor to ensure decisions say what they mean and can stand by those factual/legal assertions. edit: It's hard to believe that nobody pipes up with a "are you sure about this?" I wonder how much is editorializing changes -- as opposed to corrections -- that wouldn't be able to be "caught" before initial publication.
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May 27, 2014 01:23
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ShadowHawk posted:This may sound a little naive but is it really so hard to have a system where court opinions are digital documents, post-publication changes are stored in version control systems, and citations are actual links? Westlaw and Lexis are two private companies who, for a fee, provide electronic versions of court opinions with citations being hyperlinked to other electronic versions of whatever is being cited (cases, statutes, secondary legal sources). The only thing not included are pre-physical print publication alterations, but as the NYTimes article made clear, these companies are provided a head's up about such alterations and therefore at least the changes will be made. Which leads me to believe that Westlaw/Lexis could actually create a before/after feature if it wanted for those opinions which are altered.
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May 27, 2014 12:56
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I'm going to go ahead and thrown down the gauntlet and state that I think that all the decisions issued yesterday were rightly decided. (I assume the lack of posts is because most folks similarly agree with the results, or don't really care about the particular case.) 1. Hall v. Florida: Under the 8th Amendment, determining whether someone is mentally incompetent to be punished with death cannot be determined only by a single, determinative factor (a hard IQ cut-off). 2. Plumhoff v. Rickard: Police can use deadly force, insofar as necessary to contain an ongoing threat to public safety, to stop a high-speed pursuit that has put people's lives in danger, without violating the 4th Amendment. 3. Wood v. Moss: Secret Service can move groups of protestors in a manner that protects the safety of the President so long as such strategic decisions are not motivated by viewpoint based discrimination, without violating the 1st Amendment. 4. Michigan v. Bay Mills Indian Community: Tribal sovereign immunity is, in a lot of ways, a mirror image of State sovereign immunity -- that is, up until Congress acts to limit Tribal sovereign immunity. (As a side note, Congress has much more power to limit Tribal sovereign immunity than State sovereign immunity.) Thus, just as Tribes cannot sue States as a matter of course, States cannot sue Tribes as a matter of course.
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May 28, 2014 12:56
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With respect to individual liberties: - States can always set more limits on government action than what the Constitution allows. The Constitution acts as a floor of acceptable government conduct. - States can never set more limits on private action than what the Constitution allows. The Constitution acts as a ceiling of acceptable government restriction of private conduct. So a state legislature could pass a law that prohibits law enforcement officers from using deadly force against a fleeing vehicle if there was the political will to do so, and there would be no challenge to that law under the federal Constitution. edit: qualified immunity comes from the imagination of the judicial branch, and protects individual government officials from personal liability unless if (1) there was a constitutional violation (2) of a right that was clearly established when the violation occurred. Barf. Qualified immunity doesn't really intersect with a State's ability to set a higher standard of government conduct, it's just a doctrine that establishes the analytical framework to determine whether a government official can be held liable to an individual for the violation of that individual's constitutional rights. As it's a creation of the federal judicial branch, state legislatures could not alter the doctrine under the Supremacy Clause principles. I think Congress could actually do so, since it's essentially federal common law, and common law is always subject to change by the corresponding (in this case, federal) legislature. Green Crayons fucked around with this message at 21:24 on May 28, 2014 |
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May 28, 2014 21:18
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Although I see the similarities between sovereign and qualified immunity, and perhaps a shared English origin, I've never understood qualified immunity as being waivable by the State itself merely because it extends from the State's sovereign immunity. A State's sovereign immunity is a constitutional principle. An individual's qualified immunity is a common law principle because the federal judiciary thinks it's good policy. What have I missed?
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May 28, 2014 21:54
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Well, let's look it at it this way: what provision of the federal Constitution would you propose a "sanctions on an officer who violates the above deadly force prohibition" violates?
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May 29, 2014 04:23
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I didn't mean it as a trick question. A law can be challenged under multiple portions of the Constitution, and can be challenged by government officials in their capacity as a private individual. So while a state statute penalizing a LEO from firing into a car may be constitutional insofar as the Fourth Amendment is concerned (the 4A setting a floor of acceptable government conduct), that statute might simultaneously be unconstitutional because it restricts some constitutional right of the LEO as a private individual. For example, a LEO might claim that such a statute violates his Fourteenth Amendment right to due process or equal protection or something like that. In this manner, he's claiming that the law goes beyond the ceiling set forth by the Constitution to the extent it has negative consequences for him as a private individual. The problem in this hypothetical, though, is that I don't really see a cognizable claim for a LEO to state that such a law violates one of his constitutional rights.
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May 29, 2014 14:21
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KernelSlanders posted:Skimming the complaint the officers' claims seem to be a self defense right under 2A, a right to use lethal force under an "objectively reasonable" standard from the 4th (this one makes no sense to me), and an independent right to use all force allowed under the 4th amendment that they claim is independent from the government's interest. I haven't read the complaint. Just pulling from your descriptions: - The right to self defense under the 2A is interesting, and theoretically feasible. As in, it makes conceptual sense that they're saying they have a personal 2A right to self defense, and the government cannot take that away from them. - The "right" to use lethal force under the 4A is not a personal right for each LEO. The 4A simply allows government officials the ability to take such action. So, yes, a LEO has the ability to use lethal force in certain circumstances without violating the 4A. No, that does not translate into the 4A protecting the LEO's ability to use such lethal force from government regulation. - Argument 2 spills over into this Argument 3: basically, they're claiming that 4A gives them a personal right to act in a certain manner as a government official that the government cannot infringe upon. This makes no sense as a conceptual matter, and is a novel legal theory that is not supported by any case law that I'm aware of.
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May 30, 2014 19:53
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GlyphGryph posted:Maybe I'm missing something, but if this was upheld... or if things are, from what I'm understanding you're saying, already the case, that the government can manage its employees in ways that violate their contractual rights, doesn't that mean the government couldn't fire employees for saying stupid poo poo on the job since it would be a violation of the first? I don't quite follow what you're saying/asking, so let me know if I'm missing the mark. It's best to look at constitutional challenges as compartmentalized issues. Just as a single statute might be subject to multiple constitutional challenges, and each constitutional challenge would be resolved separately and independently of one another, a government entity's ability to restrict the constitutional rights of its employees must be resolved with respect to each constitutional right separately and independently of one another. I'm not well versed on public employee First Amendment law. I do know that public employees have some degree of diminished First Amendment rights under the theory that a government, as an employer, has greater interests in controlling the speech of its employees than with respect to the general population. So, for the sake of argument, let's assume (as I believe is the case based on my very limited involvement with the issue) that a government employer can prohibit a government official from saying something on the job without violating the employee's First Amendment rights. That's a matter to be determined by First Amendment law, and has absolutely no bearing on the alternate issue of whether the government employer's other policy affecting the government official's Second Amendment rights will pass constitutional muster. So, bringing it back to the complaint filed by the LEOs. If a court were to hold that the agreement did violate the LEO's 2A rights, that ruling has no effect on what other policies and actions the government employer can take that might appear to infringe upon the LEO's other, non-2A rights (say, for example, whether the employer could fire a LEO for saying something stupid while on the job).
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May 30, 2014 20:53
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If the LEOs in this case were to win on their 2A claim, then what you're asking -- how much precedential value does this case have on future cases that implicate a government employer's restrictions of a government employee's 2A rights? -- depends on a variety of factors, including: (1) the legal reasoning upholding the 2A claim, (2) the factual similarities between the LEO's circumstances and whatever circumstances give rise to the subsequent case, and (3) whether the final legal opinion in this case is binding (either hitting SCOTUS or being resolved by a Court of Appeals whose geographic scope covers the place where the subsequent case arises) or merely persuasive (being resolved by a Court of Appeals whose geographic scope does not cover the place in which the subsequent case arises, or is issued in an unpublished Court of Appeals opinion, or is not appealed and results in only the district court opinion). At this point in time, there's just too much not known to speculate as to if/how this case could more generally affect government employer's policies that limit their employee's 2A rights.
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May 30, 2014 21:18
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Federal circuit reversed x2 today. Also, Bond v. United States came out today. Came to the Court as a Treaty Powers case, left the Court as a statutory interpretation case. Came to this bit: quote:Any parent would be guilty of a serious federal offense—possession of a chemical weapon—when, exasperated by the children’s repeated failure to clean the goldfish tank, he considers poisoning the fish with a few drops of vinegar. Realized Roberts is a monster.
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Jun 2, 2014 15:33
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OddObserver posted:I just have to laugh at the idea that "and patents are “not addressed to ShadowHawk posted:And perhaps more relevantly, claims are deliberately obfuscated so as to make the patent vaguer and thus able to threaten more things. Terms are wholly manufactured and deliberately changed from what normal practitioners use so as to create more nebulous claims that could then be argued as applying to completely unrelated concepts in front of a jury in a favorable forum. I've never seen an acknowledgement of that fact in a court ruling though. Shouldn't this just make a patent ambiguous, in that a person skilled in the relevant art wouldn't know what the hell is going on? (I know nothing about patents or the patent process, and the Federal Circuit is a strange beast that I've only heard tale of.)
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Jun 3, 2014 15:16
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For some reason I've been reading a lot about my least favorite Supreme Court Justice: Alito. I thought I'd share a sampling of what I've been perusing, which I think paints an insightful portrait of who he is as a person and Justice. Because why not. (1) "Justice Alito's vote will be key in 3 cases challenging Obama's power", LA Times article that is a middle-of-the-road piece discussing Alito's jurisprudential views and his bit of theater in the national spotlight. Key quote: quote:"The quality of his work is excellent. He is not a wiseguy. He's doesn't demean those who disagree with him. And you don't get pompous sloganeering from him," Fried said. "But I'm sorry that on the agenda items, he's been quite predictable. There's a real sense of an agenda with this court, and he's been part of that." (2) Sam Alito: A Civil Man, The American Spectator article that is super pro-Alito, that gets into a lot about his personal life/views, and even has nice things to say about his jurisprudence. Key quote: quote:Here, I cannot help but think, are hints of what sounds suspiciously like common sense. Is the law really incapable of distinguishing between videos of illegal animal cruelty and of, say, a father and son deer hunting? Is yelling anti-gay epithets at the grief-stricken families of non-homosexual veterans really protected by the First Amendment? These are questions that ordinary Americans understand, and many people’s answers would, one suspects, tend to line up with Alito’s. Common sense is not the touchstone with which constitutional metal is assayed. But it helps. (3) "Splenetic Justice: Justice Samuel Alito's Role on the Roberts Court", The Nation article that is super anti-Alito, that talks about why Alito is indeed the worst Justice on the Court from a progressive/liberal point of view. Key quote: quote:This Roberts Court has pretty clearly plotted the direction it wants to take the country—backwards, by viciously undoing almost all of the progressive policy gains of the 20th century. Alito, who, at 63 years old, will likely still be on the bench long after Scalia and Thomas are gone, figures to be key in that effort. That’s why it’s imperative his radical ideological agenda gets a full airing in the press now. So that when the next Republican president points to him as a model for a future nomination to the Court, the public really understands what they’d be getting—something much, much worse than just an rear end in a top hat. I will say that I've come across some Alito opinions recently, and was pleased to find them examples of good writing. I know Roberts is The Great Writer Of Our Age, but his Bond opinion was a bit more unrestrained than normal. As if Kagan's writing style is rubbing off on him. Alito's stuff was not nearly as showy and "flourishy." So Alito does have that going for him.
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Jun 9, 2014 00:05
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Town of Greece (legislative prayer) was a hotly contested opinion ITT. This is a New Republic article about the Court's most recent denial of cert of an appeal from the 7th Circuit, which had held unconstitutional a public high school graduation that was conducted in a church. The Court's denial is unique in that Scalia and Thomas wrote a dissent, and a fairly fleshed out one at that. The article does a good job at extrapolating from the divide between Greece and this cert denial as to what is likely to pass constitutional muster under the Court's new establishment perspective: adults can permissibly experience some religious "discomfort," but that same discomfort becomes unconstitutional coercion when the audience is minors.
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Jun 18, 2014 12:30
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ayn rand hand job posted:Yay 4th Amendment.
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Jun 26, 2014 03:38
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FlamingLiberal posted:Is there a consensus yet on the likelihood of the NLRB ruling being one way or another?
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Jun 26, 2014 03:57
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Hieronymous Alloy posted:If Obama adjourned congress by fiat it would turn the crazy conspiracy dial all the way to like eleventy-one.
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Jun 26, 2014 21:04
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Silver Nitrate posted:Is there a certain date by which they have to rule on Hobby Lobby? And so that's just the schedule. The Justices like their summer off. Thus, all opinions for cases heard in each term are out by June. In accordance with that schedule, CJ Roberts announced on Thursday that the final opinions for this term will be issued on Monday (June 30). That means Hobby Lobby.
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Jun 28, 2014 02:05
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Allaniis posted:Alito for both... Did anybody guess that? I don't recall Alito being considered a Hobby Lobby author by anyone.
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Jun 30, 2014 15:02
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