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StandardVC10 posted:Will she have to recuse herself less often as the distance between her SCOTUS cases and her time in the DoJ increases? Yes, though because of the time it takes to get a case up to SCOTUS it's hard to say when exactly it'll finally peter out. The administration did a good job insulating her from what it considered highly contested, high priority cases (probably because Kagan was on a SCOTUS shortlist at the same time she was up for SG, which still baffles me because just have someone else be SG).
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May 6, 2014 17:32
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UberJew posted::robertssay: A finger wagging in a human face -- forever.
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May 9, 2014 18:09
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I have a lot less of a problem with judges writing like that than I do with briefs being written like that, but only because I think it's more powerful to lay out the facts when they're that stark and just let them speak for themselves and therefore it becomes an issue of pragmatism. On the contrary, I think that intensely personal opinions can be instrumental in sticking an opinion in the jurisprudential firmament, like "Blackmun's" dissent in Bowers and likely Sotomayor's in Schuette in the future.
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May 21, 2014 07:47
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Discendo Vox posted:It refers to the broad invocation of rights language. It's not that there isn't an appropriate place for rights language in the case, there obviously is, it's that Jones messes with it by also tossing in a bunch of overbroad or inaccurate language about rights at the same time. This encourages sloppy application, practice and thought involving rights law. Well if you want opinions of the Court that fit the bill, look at O'Connor in Grutter or Roberts in Parents Involved, though that last one may depend on whether your classify smug as an emotion.
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May 21, 2014 19:10
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The assertion that the progress of race relations is a) linear and b) such that race-conscious programs can terminate within twenty-five years is rhetoric without an ounce of substantiation let alone substantiation in the law.
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May 21, 2014 21:06
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Discendo Vox posted:The really horrible part of that decision for me isn't that it's rhetorical- it's that I think those parts are meant to be genuinely explanatory and a part of the legal standard expressed. I think Roberts actually believes that poo poo. I kinda want him to get stranded on the east side of DC for a couple days, just to see what it would do to him mentally. Ultimately, though, that's the only threat that the use of rhetoric could actually pose though, since the conclusion in the alternative is "it's dicta who gives a poo poo" as far as later consideration of the case goes.
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May 21, 2014 21:19
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Discendo Vox posted: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. Well he does and he doesn't - he does distinguish Grutter, but only after he assimilates (or conflates) school desegregation law into affirmative action law, which is the greatest trick ever pulled since Roberts convinced his eighth grade English class he didn't exist.
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May 23, 2014 15:45
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Bubbacub posted:Is there a simple explanation of what's different between the Wisconsin and Texas voter ID decisions? I've been parsing the decisions this morning and honestly, Wisconsin is less restrictive than Texas and there's no facially obvious reason that I can discern on the mechanics of the laws themselves why you would allow Texas's but strike down Wisconsin's from a restrictiveness standpoint. (Parsing the decisions, of course, means looking at the statutes since the Supreme Court issued an order at 5 in the loving morning and it had no reasoning.) ActusRhesus posted:Ten years ago I would have been completely in favor of the tribunals in theory. However, having seen the way in which they've been carried out, I say scrap the whole mess and turn the cases over to the US Attorney's Office. Expand MEJA, or other applicable law, as needed (and since that would be a procedural, not a substantive change, you could probably get away with it retroactively) to keep the location in Cuba if there are legit security concerns, but the Commissions are a joke. Use regular federal rules of trial or use nothing at all. You may have already seen them, but if you haven't you should also check out the suits relating to NSA surveillance that implicate attorney-client communications, the facts in the briefs illustrate that Gitmo is less an edge case and more of a testing ground. The Warszawa fucked around with this message at 15:12 on Oct 18, 2014 |
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Oct 18, 2014 15:07
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Zivotofsky v. Kerry was argued yesterday - it's a pretty interesting case about State Department passport policy re: people born in Jerusalem.
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Nov 4, 2014 18:28
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Discendo Vox posted:Just watch SCOTUS refuse to take it until we get another conservative justice. I think Ginsburg is a sure vote for cert, and I think Breyer, Sotomayor and Kagan are confident enough in Kennedy's vote to vote for cert as well.
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Nov 7, 2014 04:29
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ErIog posted:Am I insane for thinking they could get Scalia and Thomas on board for gay marriage if the majority from Windsor agreed to revisit the question of scrutiny? It seemed like most of Scalia's dissent in Windsor was rightfully calling the majority out on being cowards, and getting in a slap fight with them over scrutiny. So if you take away that issue it seems to me like you could get them on board, but I have no idea how much of a dishonest fundie Scalia is. Maybe Thomas, but it's a long shot. There's a better shot of Roberts voting for gay marriage than Scalia.
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Nov 7, 2014 08:12
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ActusRhesus posted:Which is keeping with the concept of stare decisis and other Supreme Court decisions on "Aggregate effect" of personal consumption. See e.g. Wickard v. Filburn. (Not saying I agree with Wickard. I think it was a bullshit decision in the first place. but precedent is precedent.) That works if Raich is taken in a vacuum, but where was Scalia's concern for stare decisis and aggregate effect in Morrison and Lopez? It's a clear divergence in his Commerce Clause jurisprudence without apparent rationale aside from the policy implications. I mean, maybe he was trying to narrow Wickard v. Filburn into solely applying to agricultural products like some sort of perverse Chaplinsky progression, but I doubt it.
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Nov 7, 2014 15:14
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The argument in Lopez was never contingent on the guns themselves having traveled interstate, but rather that the instruments of violent crime can be regulated under the Commerce Clause as violent crime substantially affects interstate commerce. I actually think that crime has a sufficient effect on interstate commerce (particularly the influx of labor and capital, see any urban redevelopment scheme in the last 25 years or so) to justify both the GFSZ and VAWA, but I read the Commerce Clause very broadly (about as broadly as the Supreme Court did until Lopez and Morrison, actually). I still think the winning argument in Morrison was Section 5 of the Fourteenth Amendment, but that was probably a non-starter post-Adarand. I agree that all the Justices probably drift a bit, but the Lopez/Morrison/Raich turnabout is pretty egregious. Also ahem lawful and chaotic are opposing alignment values, you mean lawful evil I think ...
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Nov 7, 2014 16:07
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ActusRhesus posted:you are correct. Though I'd say lawful neutral. I tend to think most people, even people with whom I disagree, are not evil. I would actually say lawful good, it's just that "chaotic" and "evil" occupy the same sides of their respective alignment spectra. Thomas is like my third favorite Justice though.
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Nov 7, 2014 16:25
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ActusRhesus posted:I guess I operate on the assumption that, the alignment grid notwithstanding, to be "truly" lawful, one can never be truly good or evil, as law itself is, ideally, neutral, and say one thing for Thomas, his opinions are based on a largely consistent strict text approach, even when he openly says the law he's supporting is stupid. I still don't see how anyone can claim he doesn't like gays because he dissented in Lawrence...unless of course you didn't actually read his dissent. ("I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.") I'd say he leans to the good side of neutral, though. I actually got to meet Thomas once. We spent the entire time talking about college football and no law talk at all. It was awesome. Yeah, I've had that moment with Thomas - he's really gregarious. But yeah I'm a crit so I don't really think the law is neutral at all. I don't think Thomas harbors any personal animosity towards the LGBT crowd, but I can't say the same about Scalia.
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Nov 7, 2014 16:38
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ActusRhesus posted:forgive my ignorance but "crit" means what? Critical Legal Studies/Critical Race Theory as a school of legal analysis. More of an academic perspective on jurisprudence than a jurisprudential perspective - I think that judges can and should strive for neutrality, but that it's something you approach without ever achieving and that neutrality in practice requires an awareness of systemic and personal biases. Tablet had an interesting article on motions for Jewish judges to recuse themselves in cases involving Palestinian terrorism (specifically, moving for Judge Borman to recuse in the deportation case of a Palestinian woman who had been imprisoned for bombings in Israel).
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Nov 7, 2014 16:53
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ActusRhesus posted:Ah. Thank you. I admit it's an idealistic dream...but wouldn't it be a wonderful world if the law were, indeed, neutral? But that was my point initially, that to be "truly" lawful, you'd have to be neutral. But most people are not. And judges are no different in this regard. Eh, in a world immune to the systemic biases that compromise the neutrality of the law, there would be little need for much law.
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Nov 7, 2014 17:14
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fosborb posted:Lucky. At my Thomas meet and greet all I got was a crummy can of coke. Yeah you did. Radish posted:Do any of the SCOTUS Justices really care about party politics? I would guess when you get to the lifer position you just do whatever you want and go by your own personal biases. It's not like sucking up to the right wing is going to influence his career and I would think that how you are remembered in legal history would be more important than making sure politicians are happy. I'm not sure how that influences this decision though. Yes and no - Ginsburg, for example, definitely looks at the composition of the Democratic caucus when making decisions like "watch or box." In terms of personal advancement, no, they're at the pinnacle.
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Nov 7, 2014 21:13
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SFFA is launching its effort to dismantle affirmative action. Smart move to use organizational standing instead of betting on a test plaintiff. The pleadings (linked in the blog post) are interesting in their attempt to tie modern post-Bakke race-conscious admissions to the anti-Jewish quotas, plus Harvard is a good target to hit because of popular conceptions about the kind of people who get admitted, regardless of color.
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Nov 17, 2014 20:19
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ActusRhesus posted:Take THAT trust fund babies! The best part of this is that eliminating legacy and "developmental" admits is proposed as a "potential race-neutral alternative." Leaving aside my idiosyncratic position on legacy admissions as well as the numerous resource-related correlations with those groups most likely resulting in wink-wink totally on merit admissions, I don't think I've ever seen a reform proposed with less intent of effecting change. Still this is so much smarter than Fisher, it has all the little bits of political cover you need.
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Nov 17, 2014 20:34
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Rygar201 posted:From a Layman's perspective Fisher looked for all the world like a salty mediocre white girl who was angry that her first choice school said no. Trust me, it wasn't just from a layman's perspective! Fisher was a case for only the truest of true believers, which is why it was an 8-1 punt.
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Nov 18, 2014 04:02
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Ogmius815 posted:Who was the dissenter and how did that justice want to handle things? RBG, giving zero fucks and chastizing the votes to strike down affirmative action.
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Nov 18, 2014 05:43
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Rygar201 posted:Does anyone have a good breakdown of the DC Circuit's ruling on Priests for Life though? I think the Thinkprogress breakdown is sensible but I probably wouldn't know the difference Seems relatively clean - opting out isn't a burden so it's okay for the default to include birth control. I don't think it's likely to go up.
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Nov 18, 2014 19:30
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FlamingLiberal posted:SCOTUS is back at work today, and an argument was heard in the free speech case involving a man who was charged with making death threats on social media to people and whether or not that can be classified as 'free speech'. Yep, Elonis. It's some interesting stuff - the idea is that speech loses its protection when it's a true threat.
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Dec 1, 2014 18:34
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WhiskeyJuvenile posted:I'd write some long critique about the supreme court wasting what limited space they've created on their docket for this bullshit except that's all that needs to be said Circuit split, though it's literally only the 9th using the subjective standard.
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Dec 1, 2014 19:28
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Everyone should read the 3d Circuit decision in Elonis - the facts are ... well, extensive. I'm not sure it's the best set of facts to test this principle because of the egregiousness/extensiveness, to be honest.
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Dec 2, 2014 01:58
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FAUXTON posted:See, if the decision had the effect of making threats like this (though the egregiousness of it isn't something I'd say is a bar to be crossed, that poo poo's pretty heinous) illegal while still establishing a barrier between online and in-person interactions as to keep it wholly out of the hands of the self defense brigade, I'd feel a lot less uneasy about it. Well, the thing is that for true threats to be true threats, there has to be a certain degree of direction and specificity. The jurisprudence has grappled with this since Vietnam, but basically if a jury acquits on the basis that a Facebook gang sign was a true threat to the person who killed the kid specifically, that jury was not going to convict unless Jesus Christ himself returned to Earth to say "that poo poo is murder."
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Dec 2, 2014 02:16
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evilweasel posted:What constitutes a criminal threat for harassment purposes and what constitutes a threat for self-defense purposes are two different things. Something can be a criminal threat without it being an actionable self-defense threat. This, too - though I read FAUXTON as more concerned with the theory of "speech can create reasonable fear" than the application of the statute.
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Dec 2, 2014 02:28
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Green Crayons posted:Uh, it's the exact opposite of what you're saying: That's products liability and I'm not sure it'd really apply here, but if they did apply 407 they could probably get it in to show feasibility of the measures.
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Dec 7, 2014 23:38
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Green Crayons posted:Yeah; I didn't realize that FRE 407 was products liability specific. My bad. I thought 407 simply codified the common law rule generally applied in civil actions. Well it basically does (just in a specific context), so you're not off-base, and I am pretty sure UPS's lawyers think it can be excluded under the common law rule because they didn't say gently caress no don't do it.
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Dec 7, 2014 23:48
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ActusRhesus posted:somewhat relevant to earlier snark on the "trigger warning" generation. It sounds like an excuse to let kids who spent the last week protesting instead of studying postpone without the school making an overt political statement. I mean if they can get it to work good for them, I saw people extend deadlines, postpone exams and get extended time for a lot shittier reasons. The Warszawa fucked around with this message at 15:39 on Dec 8, 2014 |
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Dec 8, 2014 15:36
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ActusRhesus posted:most likely. Yeah because when I think of an institution dedicated to preparing its charges for reality, I think of law school. Columbia has (or had) a pretty strong protest/political engagement culture so it's unsurprising that this worked.
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Dec 8, 2014 15:46
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ActusRhesus posted:Yeah, I wish there was a better news source for it as well, as I generally don't like posting blogs at all. "Trauma" appears to be the school's cover. Think of it as the students getting extensions to spend more time with their family. As far as I can see, BLSA just asked for "sufficiently impaired" to be the standard, where impairment need not result from trauma but overextension.
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Dec 8, 2014 15:55
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ActusRhesus posted:the fact the school feels it needs a cover, in and of itself, is telling. Yeah it's telling that Columbia is developing the poo poo out of property it bought up for cheap once the city declared it blighted in Manhattanville and I'll bet not all the permits have cleared and the university doesn't want to be seen as "anti-city", plus the school's relationship with the NYPD has been tense. joeburz posted:Just some more reverse racism as the pure whites who didn't practice civil disobedience are at a disadvantage in liberal collegia. This is dumb because I'll bet you money most of the CLS students protesting were white.
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Dec 8, 2014 16:01
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An Angry Bug posted:Look, ActualRhesus, I know it's hard for replicants like you to understand, but humans have these things called duress and right to protest. These combined with violent police and another thing called empathy lead teachers to allow extenuating circumstances for people that were mistreated while protesting. I think that this is unfair though because I'm sure a good number of students weighed the cost of protesting (diminished studying) against the benefits of protesting (expression of political alienation) and came down on the other side because they didn't believe they could get this concession. I can't fault anyone who stayed home to outline civ pro instead of carrying a sign in Midtown. Not in the least because civ pro is goddamn important. Personally, I'm thrilled that these students were able to game the system a bit (assuming they can successfully petition).
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Dec 8, 2014 16:07
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WhiskeyJuvenile posted:gently caress law students Track the maleficar! ActusRhesus posted:and dragon age invades yet another thread. Beaten, drat it.
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Dec 8, 2014 16:30
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That's how they hire clerks. Scalia is a mage and Ginsburg is a Templar why do you think they're always going to the opera together?ActusRhesus posted:your next generation of prosecutors aren't the ones out protesting generally. Counterpoint: Sonia from the Block.
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Dec 8, 2014 16:34
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ActusRhesus posted:See, I totally see Ginsburg as a mage. Like Wynne. Kagan's the Templar. As long as Sotomayor is a City Elf rogue ... "Like dogs, Shianni."
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Dec 8, 2014 16:37
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Maarek posted:Exactly why if I were in charge of Columbia, I would prefer people to think we were ridiculous hippies letting people postpone their exams for hurt feelings than have to have this argument down the road later on. I'm not saying that's what they're doing, but it makes a lot of sense. The reason the law doesn't and shouldn't rank protests on validity is that for a long, long time, the eyes of the people saw the Klan march as more valid.
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Dec 8, 2014 17:10
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Stultus Maximus posted:However as a private institution, Columbia can prioritize and endorse certain activities over others in order to project the image and biases that they wish to project. As an institution that relies on federal funds, it does need to exercise caution. That said, that an institution can says nothing about whether they should or if their prioritization is correct.
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Dec 8, 2014 17:30
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