Paper 4 once again

On 11/30 the Supreme Court heard oral argument in a case involving a New Hampshire law restricting abortion. this case would provide numerous angles of analysis: a new justice line-up (O'Connor will likely not participate if her vote matters); the consideration of precedent (does precedent have to be overturned, to be made ineffective?)

see articles for isntance in the LA Times, the NY Times, and the Washington Post. Above the Post's post, when I looked at 3:35 11/30, is an article about Alito pushing to overturn Roe in 1985. Of course, that was in a political job, seven years before Casey.

Free Culture is Dead?

In considering interpretation, one author likened the constitution to a score, and society and the court to a conductor. I drew on the example of the Grateful Dead -- a jam band that always delivered different intepretations.

The Dead was also famous for allowing recording of its shows, and the internet allowed the easy trading of these files. Until....

The New York Times November 30, 2005
Deadheads Outraged Over Web Crackdown
By JEFF LEEDS

The Grateful Dead, the business, is testing the loyalty of longtime fans of the Grateful Dead, the pioneering jam band, by cracking down on an independently run Web site that made thousands of recordings of its live concerts available for free downloading.

The band recently asked the operators of the popular Live Music Archive (archive.org) to make the concert recordings - a staple of Grateful Dead fandom - available only for listening online, the band's spokesman, Dennis McNally, said yesterday. In the meantime, the files that previously had been freely downloaded were taken down from the site last week.

Dissent has been building rapidly, however, as the band's fans - known as Deadheads - have discovered the recordings are, at least for the time being, not available. Already, fans have started an online petition, at www.petitiononline.com/gdm/petition.html, threatening to boycott the band's recordings and merchandise if the decision is not reversed. In particular, fans have expressed outrage that the shift covers not only the semiofficial "soundboard" recordings made by technicians at the band's performances, but also recordings made by audience members.

To the fans, the move signals a profound philosophical shift for a band that had been famous for encouraging fans to record and trade live-concert tapes. The band even cordoned off a special area at its shows, usually near the sound board, for "tapers" - a practice now followed by many younger jam bands.

Paper #4

The Due Date of this paper is now no later than class, 12/8/05. If you want to receive it back by the last day of class, Friday 12/9, I will need it by class on 12/6.

The topic(s)have been broadened. First, if you go to one court, rather than two, that will be fine. Second, you can write on a topic of your choosing, which then need not be about a visit to a court.

Potential topics:

1. select one of the earlier paper topics. Class member JW asked about the torture memo, for instance. Sure, do it. Keep in mind, as with all papers I want evidence of engagement of our material, and you might find helpful reading 12.1, US v. Nixon, on constitutional interpretation and executive privilege. Or, see the post below, where classmate JR pointed to a debate in Legal Affairs about executive power.

2. Why is sony legally allowed to install a rootkit. Wired also covers this stuff, as does the EFF or Electronic Frontier Foundation -- when I posted this link, several of the main headlines / stories on the page were about Sony.

3. Electronic Freedom / Privacy more generally can be explored. consider for instance, both legislation -- the development of law -- might serve some people? I am thinking about our post-9/11 computer world, as discussed both by Wired and by a visitor to campus this week. From Truman Today:

Bryan Cunningham will present ...seminars entitled “Information Security: From the White House Situation Room to the College Classroom” Nov. 30 as part of a Collegis Leadership Series.

Cunningham will also speak at 6 p.m. in the Student Union Building Alumni Room. Students, faculty, staff and the public are invited.

He will discuss a comprehensive and cost-effective approach to network security for educational and other entities potentially subject to federal law, state information security breach disclosure, and federal and state regulations. He will discuss effective strategies for mitigation of legal risks for executives for breaches of network security.

He also had something to do with Homeland Security.

4. Critically discuss A Civil Action.

5. Write a critical appraisal of this course: what should a course in Law and the Judicial Process address? How should it be addressed (what types of readings, what types of assignments?). Effectively, an extended course evaluation, or else planning of a future course.

6. Do research on some topic of your choosing, perhaps inspired by earlier readings. There is more recent work than Danelski's on Chief Justices and opinion assignment, for instance. Or, do a little research on Burger and Rehnquist and turn my few powerpoint slides into a paper, assessing those two Chiefs on Danlelski's two types of leadership. You would likely want to look at a few books that discuss their leadership abilities and styles, and use that as yoour evidence. And do not forget JSTOR accessible through Pickler home page -- "Find it --> Articles --> JSTOR."

7. What do you want to do? Run it by me. Make sure that you have a question that is enough to sustain a 5-6 page paper. My mantra is "engage the material:" show use of stuff related to our class.

Statutory Interpretation and Gate-Keeping

This article from Findlaw
is a somewhat bizarre example of how statutory interpretation matters: Does a videotaped sexual encounter, later emailed, fall under a statute that governs wiretapping? An appeals court overturned the dismissal of a lawsuit under the statute.

Doe will still have to prove that the recording had a soundtrack and that she had an expectation of privacy in any oral communications that ended up on the tape, but nothing she has pleaded in her complaint will preclude her from meeting these requirements, the panel said.

More on Alito

Two stories report Alito views on rights of the accused. Not terribly surprising, given the position of his party on these issues over the past couple decades.


From the Washington Post

'86 Alito Memo Argues Against Foreigners' Rights
Work for Justice Dept. Points to Views That May Affect Anti-Terrorism Rulings on High Court

By Jo Becker and Amy Goldstein
Washington Post Staff Writers
Tuesday, November 29, 2005; Page A04

As a senior lawyer in the Reagan Justice Department, Samuel A. Alito Jr. argued that immigrants who enter the United States illegally and foreigners living outside their countries are not entitled to the constitutional rights afforded to Americans.

In an opinion that offers insight into the Supreme Court nominee's view of an area of law that has gained new significance with the Bush administration's policies to combat terrorism, Alito gave his approval to an FBI effort in the 1980s to collect from Canadian authorities fingerprint cards of Iranian and Afghan refugees living in that country.

From the New York Times

Alito Memos Supported Expanding Police Powers

by DAVID D. KIRKPATRICK
Published: November 29, 2005

WASHINGTON, Nov. 28 - As a lawyer in the Reagan Justice Department, Samuel A. Alito Jr., the Supreme Court nominee, played an active role in advancing the administration's efforts to expand law enforcement powers and limit restrictions on prosecutors, documents released Monday by the Justice Department show.

The 470 pages of documents, which consist mainly of memorandums Mr. Alito wrote as a deputy assistant attorney general in the office of legal counsel in 1986 and 1987, generally address routine matters or highly technical legal issues. In several of the memorandums, however, Mr. Alito makes a series of arguments espousing a broad view of law enforcement authority and a skeptical view of proposals to protect individuals from legal investigations.

The Times article appropriately cautions us about the Role Alito was playing then, which is not the same as the position for which he has been nominated:

Mr. Alito, who is now a judge on the United States Court of Appeals for the Third Circuit, wrote the memorandums as a lawyer enacting the policies of the administration, not necessarily expressing his personal legal opinions.

Providing Legal Services

Here is a website on legal services outsourcing, called Economical Services:

India is the leading destination for outsourcing. India has gained a competitive edge as an outsourcing hub for a number of reasons, including the widespread use of English and availability of large pool of professionals at internationally competitive rate. Outsourcing to India gives overseas attorneys the clear competitive advantage over other legal service firms in terms of cost, quality and turnaround time.

What Heinz and Laumann hemisphere is that in?

Constitutive DecisionMaking

Here's a post from the National Journal on Torture. It reminded me of the constitutive school: our choices "become us."

Usually this is said in regards to the US, as a nation:

"The reason I believe that torture corrupts the torturers and society," Gerber says, "is that a standard is changed, and that new standard that's acceptable is less than what our nation should stand for. I think the standards in something like this are crucial to the identity of America as a free and just society."

Interestingly, this article also talks about this at the individual level:

"If you talk to people who have been tortured, that gives you a pretty good idea not only as to what it does to them, but what it does to the people who do it," he said. "One of my main objections to torture is what it does to the guys who actually inflict the torture. It does bad things. I have talked to a bunch of people who had been tortured who, when they talked to me, would tell me things they had not told their torturers, and I would ask, 'Why didn't you tell that to the guys who were torturing you?' They said that their torturers got so involved that they didn't even bother to ask questions." Ultimately, he said -- echoing Gerber's comments -- "torture becomes an end unto itself."

Gotta go watch Resevoir Dogs and play some GTA-2!

Lawyer ad vertising

From Yahoo News, 11/17/05

Pit bull ad insults lawyers: court

By Michael Peltier Thu Nov 17, 3:34 PM ET

TALLAHASSEE, Florida (Reuters) - A Florida law firm's television advertisement featuring a pit bull, a dog breed known for its aggression, is misleading and an affront to the legal profession, the Florida Supreme Court ruled on Thursday.
ADVERTISEMENT

Responding to a complaint by the Florida Bar, the state's highest court sanctioned a pair of Fort Lauderdale attorneys whose advertisement showed a spike-collared pit bull in the company logo. The bar also objected to the company's telephone number: 1-800-748-2855 or 1-800-PIT BULL.

The advertisements "demean all lawyers and thereby harm both the legal profession and the public's trust and confidence in our system of justice," Chief Justice Barbara Pariente scolded a unanimous decision.

Free speech goes only so far, apparently.

Modes of Constitutional Interpretation

elevated from the comments:

john redden said...

Name that mode: Debate over presidential power rolls out the modes of constitutional interpretation.

I ran across this Legal Affairs magazine, "Debate Club" debate between John Yoo, recently featured in the Frontline documentary that Ben Holley plugged, and Neil Kinkopf.

I know the suspense is building - Who might support the greatest amount of presidential power?

Paper #4

Paper 4 is to reflect on a visit to a couple courts.

Here are schedules for courts in Kirksville:


Docket Call:

Judge Steele calls his docket on the first and third Monday and first Tuesday, following the first Monday, of each month.

This means that there will be a session on Monday, November 21; morning begins at 10, afternoon begins at 1. arrive a few minutes early, get acclimated. The top floor of the big yellow building in the center of the square, across from Cinema 8 / Java Co.

Judge Swaim calls her criminal docket every Wednesday at 9 a.m. and 1:30 p.m. She hears civil and small claims cases on the second and fourth Monday of each month. Judge Swaim hears domestic cases on the second and fourth Tuesday of each month.

so: Fourth Monday will be the 28th, the monday back from thanksgiving. Expect domestic cases involving minors to be closed to the public, so those are not ideal times to go.

Judge Swaim has a crowded courtroom; small groups advised at best (not uncommonly S-R-O). She's on the ground floor. Courts are public fora, but be respectful if its really crowded.

And from the Western District Courts of Appeals:

DIVISION II: THIS DIVISION WILL SIT ON DECEMBER 2 IN THE CIRCUIT COURTROOM AT THE ADAIR COUNTY COURTHOUSE IN KIRKSVILLE. MO. IT WILL HA VE ONE DOCKET CALL AT 9:30A.

Or see a court in your home county:

St Charles, Boone, Jackson, and Cole are four of the 114 counties you will find on the drop-down menu on the Circuit Courts Homepage.

And the paper assignment is here:

Visit two courts. Compare and contrast them on dimensions that we have studied in this course. You can visit Adair County Circuit Court, or Kirksville Municipal Court, and I expect that the Missouri Court of Appeals will hear several cases in Kirksville in early December. In the past, students have also visited a court in their hometown over thanksgiving break.

If you haved trouble scheduling two courts, let me know.

Recent New Yorker Profiles of Breyer and Kennedy

Jeffrey Toobin covers legal issues for The New Yorker. In addition to its wonderful cartoons, the magazine publishes some excellent profiles, articles, and fiction.

Recently, Toobin published two profiles of Supreme Court justices that give insight to Constitutional Modes of Interpretation, chapter 12:


SWING SHIFT
How Anthony Kennedy’s passion for foreign law could change the Supreme Court.

and

BREYER’S BIG IDEA
The Justice’s vision for a progressive revival on the Supreme Court.

Consider printing them for reading over the Thanksgiving break. For me? No, for you. Students always want to know what they should read in preparation for law school. Anything and everything. Be well rounded, know what's going on in the world, not just in a "headline" sense, but undercurrents of debates and positions.

wikipedia strikes again

from Wikipedia: and for the purposes of accuracy after Tuesday's class.

Foucault enthusiastically participated in the gay culture in San Francisco, particularly in the S&M culture - it is suspected that it was here that he contracted HIV, in the days before the disease was described as such. Foucault died of an AIDS-related illness in Paris in 1984.

Tom Toles Cartoon

More on the 1985 DOJ application

From CNN: Alito told Senator Feinstein (D-CA) the 1985 application was for a poltical job.

What does this answer by him suggest -- attitudinal? constitutive? or is it merely strategic, appealing to constituencies whose support you need?

Free Culture people: DMCA

For those of you still tinkering around with Free Culture, consider the Digital Millenium Copyright Act of 1998 as a major piece of legislation.

The Electronic Frontier Foundation has an archive on it, and a file on Five Years of Unintended Consequences

this is merely a resource, not a command that you look at this. In speaking with some who are thinking about this paper, there was frustration that there might not be a great way to use the MPEK, directly. I suggest thinking about some of the legal issues, and legal reasoning (ch 9; link to Lessig and his reasoning by analogy?). There are also a couple of lawsuits discussed on the archives page, above.

Alito's DOJ application, 1985

From Findlaw

The link takes you to a second page of the application, where he states his own particular views. Again, for our purposes, how might this be biewed by an attitudinalist? a constitutive scholar?

More on Alito

John Redden made a nice contribution in the comments under the previous post.

Monday's papers are reporting about a statement Alito made when seeking a job in the Reagan Administration: According to an article in the Seattle Times,

Supreme Court nominee Samuel Alito boasted about his work arguing that "the Constitution does not protect a right to an abortion" while trying to get a job in the Reagan administration as a deputy assistant attorney general, according to documents released Monday.

Similar articles can be found in the New York Times.

Remember, this does not answer our paper question for us. It provides data to analyze from the various schools. What would be said by a person in the constitutive school?

some links for Alito

What are you thinking of doing for the paper, Alito or Free Culture?

The Washington Post has a decent collection of their own coverage. And here are a couple of selected articles they have published in the past couple days, such as Alito signals reluctance to overturn Roe and Alito Nomination Sets Stage for Ideological Battle.

You can find your own news articles, and you can look to sites of interest groups as well; the blog Confirm Them for instance, has a point of view.

Points of view are fine, so long as we recognize that they are points of view -- that's that critical thinking part by you, in which you take these reports as data to be interpreted through the attitudinal, strategic, and constitutive schools.

Feel free to share with others links to sites you have found interesting or helpful. you can either email them to me and have me post, or you can put them in the comments section.

Two days with you just isn't enough

I am creating this blog as a way to keep in touch with students enrolled in Pol 361, Law and the Judicial Process. The Communication function of BB6 is just not handy enough. Here, I can make a post, send you the link, and also have it posted here for you to refer back to. We can incorporate relevant readings, as well. Thus, this will be something of a digital dropbox. I wil leave the comments section active so you can contribute, too.

In the remaining month, we have two papers and an exam. so we might link to relevant articles for topic.

As class was dissolving on thursday, I announced that the next paper would be due Thursday, November 17, instead of Tuesday the 15th.