Monday, January 28, 2013

Arkansas Fetal Heartbeat Law

Arkansas is considering passing a law that would ban abortions at any time after a fetal heartbeat is detected. Unquestionably, this would be unconstitutional under Planned Parenthood v Casey which says that anything that has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability," is unconstitutional.

Viability is defined as the age at which the fetus is capable of life outside the womb with or without artificial support.

A few states have tried to pass similar bills. The strategy seems to be to pass a bill, have it challenged in court, and then launch an all out assault on Roe v Wade.

Supporters of this bill must justify the expenditure of considerable state funds defending it when a favorable outcome is uncertain at best. Only the United States Supreme Court can undo Roe so that, unless the case gets to the Supreme Court AND it turns out in the state's favor, passing the bill would be quixotic.

I don't think that the current make up of the Supreme Court would uphold this kind of law if it meant undoing Roe. There are four solid liberal, pro-roe votes (Kagan, Ginsburg, Sotomayor, Breyer), three solid conservative, anti-roe votes (Scalia, Alito, Thomas) and two moderate votes (Kennedy, Roberts.) Even if we assume that Roberts would vote with the anti-Roe side, Kennedy is unlikely to do so. He co-authored the Casey opinion that upheld the "central tenets" of Roe: that the constitution protected a women's right to choose and that the government could not place a substantial obstacle in her path.So that leaves a 5-4 majority against these kinds of laws.

Wednesday, August 12, 2009

Brainwashed and Dry Cleaned.

The think tank posts this link to an MSNBC interview with the shouter who disrupted Arlen Specter's Lebanon town hall yesterday.

What's sad is to see a real live example of brainwashing. Poor Mr. Miller was simply repeating what he heard hundreds of times from the right wing media. I feel sorry for him because he is the kind of person for whom government needs to work but he is being played by the faux populists who have created the mishmash he and others repeat. As a character said in the original version of the Manchurian Candidate: "His brain has not only been washed...it has been dry cleaned."

Tuesday, August 11, 2009

US Attorney Purge Documents

The Arkansas Times blog notes that there's some more smoke on the 2007 US Attorneys purge that involved Arkansas US Atty Bud Cummins. It sure seems like there was a fire about this in Karl Rove's office in the White House.

Monday, August 10, 2009

The "Death" of Health Care Reform

I have been thinking a lot about the mobs who are shouting down any discussion of health care.

But first, here's a source of facts for the reality based community, that dwindling band of folks who like to make decisions based on quaint things like facts and evidence and, you know, reality.

James Fallows thinks that journalists should report the truth and not simply relay lies, half-truths and misinformation. What a concept!

Blake Rutherford links to Mark Halperin's Time posting: Why Everything About the Health Care Mobs is a National Disgrace.

Listen to David Brooks - David Brooks! - say that Rush Limbaugh's health care rhetoric is "insane."

Here is the unpleasant truth that the health care shouters will not accept: refusing to reform health care is a death sentence for thousands of Americans. As Southern Beale says to Sarah Palin:
"You have no idea what it’s like to be called into a sterile conference room with a hospital administrator you’ve never met before and be told that your mother’s insurance policy will only pay for 30 days in ICU. You can't imagine what it's like to be advised that you need to “make some decisions,” like whether your mother should be released “HTD” which is hospital parlance for “home to die,” or if you want to pay out of pocket to keep her in the ICU another week. And when you ask how much that would cost you are given a number so impossibly large that you realize there really are no decisions to make. The decision has been made for you. "Living will" or no, it doesn't matter. The bank account and the insurance policy have trumped any legal document.

If this isn’t a “death panel” I don’t know what is."

The truth is that the unthinking anger, the refusal to listen to the facts, and the willingness to be misled by corporate-managed campaigns of disinformation are far greater dangers to our future than anything that health care reform will bring. Death of democracy, anyone?

Monday, August 3, 2009

A Change -in Legal Education - is Gonna Come (with apologies to Sam Cook)

I attended the ABA Workshop for Law School Dean on being a law school dean in tough times. It had the expected advice about how to weather the current economic storms. But there was also a not so veiled undercurrent: the old strategies may not work this time because legal education is undergoing a sea change.

I am in that camp. Economic and educational forces are combining in ways that will create a different world in which law schools will operate and lawyers will practice.

What are the economic forces?
What are the educational forces?
In my view, schools that are mission driven and can measure their effectiveness will thrive. This means that life as law schools have known it for the last 20 years is over: if rankings survive, they will have take into account the new value that students will seek. And law schools will not be able to pump up tuition without regard to student debt load. And the faculty salad days may be over.

Perhaps it will create a caste system for law school but, as UMKC Dean Ellen Suni said, "So what? We've got that already." Perhaps, mission driven schools will be able to pursue their vision and prospective students will recognize our value. (BTW, the Sam Cook original may be one of the greatest R & B songs ever. IMHO).

Thursday, July 30, 2009

Changing what Law Schools Practice and Law Firms Teach

Temple Law School Dean Joanne Epps has an interesting piece in the National Law Journal entitled A Tipping Point for Law Schools? Dean Epps argues that the economic crisis gives law schools and law firms an opportunity to re-think the way we educate law students. The old bargain between the profession where law schools taught "the law" and law firms taught skills has broken down.

Of course, that was only true for the largest firms. Law schools that sent their graduates into small firms, state agencies, and solo practice have always embraced a mission to teach legal theory AND to prepare their graduates to practice law. That's why my law school - UALR William H. Bowen School of Law - has required an upper level skills course since 1974. The ABA only mandated a skills requirement in 2006. The recession and the reform movement in legal education have exposed the divide between the law school "haves" and the rest of us. In truth, the "haves" are now experiencing what the rest of us have always known and are now embracing what the rest of us have always done.

In fairness, Dean Epps' school - Temple - has been at the forefront of clinical legal education. I'm not picking on her. In fact, she gets it about right: that there is no single template for legal education in the 21st Century and that the future will be marked by flexibility and collaboration. As she says:

"I [don't] expect that change will come from one law school or even a handful of law firms. Rather, I think it is imperative that a dialogue get under way that harnesses our collective experiences from across the spectrum of the industry to think strategically about the role legal education should play during the next 20 to 50 years."

Indeed.

Tuesday, July 28, 2009

John Yoo: Anti-Terrorism and The Dangers of Balancing

The recent NY Times article indicating that VP Cheney considered using the military to arrest terrorism suspects in NY caught my attention. Cheney used a 2001 legal memo written by John Yoo. I spent the day with and interviewed John Yoo when he spoke at the Clinton School in 2006.

I liked him. He was warm, funny, and engaging. I don't think my interview was particularly hard hitting but it does give a pretty good idea of how John Yoo thinks. For Yoo, the President has almost complete power to protect the country. Thus, once military action is authorized, a president has almost carte blanche to carry it out. Congress can only cut off funds if it does not like what the president is doing.

But I am now recalling something more pedestrian: when pressed, Professor Yoo would resort to a sophisticated version of the answer, "It all depends." Several times, he responded by saying that we must balance the benefits more from aggressive Presidential actions against the possible harm to our civil liberties. And, inevitably, the harm from the terrorists was far worse than the impact on our liberties.

Yoo exposes the limits and dangers of utiliarian reasoning. It sounds great to say that we should balance the good and the bad effects of our actions but the real power is with who sets the scale. If the President can ignore the 4th Amendment and Federal Law to deploy troops inside the country on his say-so, then we don't really have a rule of law.

None of us can know what it was like to be where John Yoo was in the aftermath of 9/11. The pressures must have been enormous and the uncertainties severe. But that is why we have the rule of law: it acts as a mechanism to force our thinking along certain paths when we might be led astray by our innate cognitive and emotional tendencies. The problem is not that Yoo wanted to create a dictator - he did not. The problem is that his expectation that the President would self-limit his power or that Congress would pull the plug with troops in the field is unrealistic.

Tuesday, July 21, 2009

Bob Dylan, Leonard Cohen and Sonia Sotomayor (and Neil Diamond)

Ok, bear with me. It will take a little time to get to the point and bring the title characters together.

The Sotomayor hearings got me thinking about originalism which got me thinking about hermeneutics which got me thinking about Leonard Cohen and Bob Dylan and Neil Diamond. (It didn't hurt that I bought the Essential Leonard Cohen and 10 New Songs last week.)

Leonard Cohen today sounds a lot like Leonard Cohen of 40 years ago. He still has a tight lyrical structure, he still writes about love and sex and loss and his vocal range is still about 3 notes wide. Some might say that if you have heard one Cohen song, you have heard them all. But Pico Iyer captured my sense of Cohen (and Dylan) on the liner notes to The Essential Leonard Cohen

"Yet what strikes me most, listening to these songs all at once, is how little in some sense he's changed; the changeless is what he's been about since the beginning. If you think of some of the other great pilgrims of song (Bob Dylan, say, or Van Morrison or Joni Mitchell), you see them pass through philosophies and selves as if through stations of the cross; with Cohen, one feels that he knew who he was and where he was going from the beginning, and only digs deeper, deeper. Listen to the "Master Song" here, and recall that it was written six years before he fell in with a Zen master, Joshu Sasaki-roshi; lose your heart, 35 years later, to "Alexandra Leaving," and remember that he was writing of "Alexandra's double bed" 23 years before, at the beginning of "Death of a Lady's Man." The moon passes through different phases--shows us a different face every night--but it's always the same moon."

Contrast that with Dylan. Dylan changes structure, subject, musical style at the drop of his (sometimes literal) hat. Dylan puts on these styles like disguises. He mixes together all of influences, current and past, to come up with the "new and improved" Dylan grows organically, changing the words and music to fit his mood or the country's mood or just because he's tired of being this year's Bob Dylan. And he doesn't mind making things up as he goes along. He is notorious for speaking jibberish during interviews. Same moon, different solar systems.

Neil Diamond. This will be quick. Same song, same words, same inflection, same meaning (or not) now and forever. Same moon, same aspects (preserved forever in crystal clear audio and yours for the low price of ...)

Here's the legal connection. Cohen is like the second John Harlan: the Constitution's principles never change but their meaning cannot be plumbed once and for all. Each new situation will show a different aspect of the fundamental principles. (e.g. ,We can only say what Liberty means in the context of each case as we explore its deeper and deeper meanings. And meaning takes into account our national experience.) Dylan is more like William Brennan: the Constitution is an organic document that changes in each era. (we have to adapt the Constitution to the modern world) Diamond is like the originalists (more Hugo Black than Scalia): the Constitution never changes, period. (Unless the framers envisioned electronic eavesdropping, the fourth amendment does not protect it.)

Republicans potrayed Sotomayor as Bob Dylan but she sounded more like Neil Diamond: Roe was "settled law," foreign law should never be considered and a judge only applies the law to the facts.

Personally, I would have appreciated her to be a bit more like Leonard Cohen. It may have been easier to repeat the usual magic words and to gut the wisdom that her experience and our nation's experience brings to bear on the legal issues confronting the Court. But, as Leonard Cohen said in Alexandra Leaving,

"Do not stoop to strategies like this...
Do not choose a coward's explanation that hides behind the cause and the effect.
"


We don't need Neil Diamond on the Supreme Court singing "Sweet Caroline" for the next 30 years and we don't need Bob Dylan making up the lyrics to "Maggie's Farm" on the fly. We could use a Leonard Cohen, who looks unflinchingly and repeatedly at the same subject, exploring its different aspects but never sparing himself (and us) from the sometimes harsh but necessary truth. Let's hope that in 20 years Sonia Sotomayor's greatest hits will be more Cohen than Diamond.

Tuesday, July 14, 2009

The Importance of Being White

Listening again to Senator Sessions attack on Judge Sotomayor. His witlessness leaves me sputtering but this post by Marie Coco on Alternet captures what is going on:

"It presumes that the white male experience is the only authentically American experience, and therefore the only one that could possibly be unbiased. Whatever predispositions or inclinations these men bring to the law are the valid ones. After all, they are not hampered by some silly notions they may have picked up along the way had they lived their lives as women or as members of minority groups."

Sadly, Judge Sotomayor has to engage in this disingenuous ritual where she must deny what everyone knows: that our experiences influence the way we think. Does anyone seriously believe that the Equal Protection Clause would have provided legal protection to segregation until 1954 if African-american judges had been on the Supreme Court? Or that a mixed gender Supreme Court would not strike down gender discrimination until the 1970's?

Sessions nomination to the federal bench was rejected in 1986 because of racially insensitive remarks. What did he say? Well, he thought the KKK was OK until he found out some members smoked pot, called his african american subordinate "boy" and cautioned him to be careful with what he said to "white folks," wished he could decline all civil rights cases, called the NAACP and ACLU "unamerican" and said they forced civil rights "down the throats of people," and called a white lawyer who prosecuted voting rights cases a "disgrace to his race." And a person with this record presumes to lecture Judge Sotomayor and the rest of us about prejudice?

Wisconsin Diploma Privilege and The Dormant Commerce Clause

7th Circuit reinstates the case challenging Wisconsin's diploma privilege.