Archive | April, 2010

The Disbarment of Fred Phelps

A commenter asked why Fred Phelps — founder of the Phelpsian funeral picketing cult — was disbarred. The answer is in State v. Phelps, 598 P.2d 180 (Kan. 1979) and In re Phelps, 459 P.2d 172 (Kan. 1969). The facts are long and not worth going into in detail (you can read them for yourselves if you’d like), but I like this summary from the first action:

Phelps has, by his conduct, shown that he does not have the proper concept of the obligations devolving upon an attorney requiring him to deal fairly and honorably with his clients, and enjoining him to demean himself in such manner as not to bring embarrassment to nor discredit upon his profession.

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“Beg the Question”

Prof. Mark Liberman (Language Log) has a long post on this. It starts by explaining how the phrase “beg the question” came to mean “assume the conclusion” (I hadn’t known that story), discusses how it often came to be used to mean “raise the question,” and finishes with wise advice:

Never use the phrase yourself — use “assume the conclusion” or “raise the question”, depending on what you mean — and cultivate an attitude of serene detachment in the face of its use by others.

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Flag Desecration

In Fall 2007, I blogged about a flag desecration prosecution involving the Phelpsians:

[Shirley Phelps-Roper] appeared in Sarpy County Court to answer charges that she mutilated a flag and put her child in danger while protesting at the funeral of a Bellevue soldier….

According to Bellevue police, Phelps-Roper had her 10-year-old son stomp on an American flag….

The pretrial hearing centered on a defense motion requesting that the prosecution describe in detail the facts that support the charges, which include disturbing the peace, contributing to the delinquency of a minor and negligent child abuse.

Now the City of Bellevue has apparently been willing to stipulate in a proposed consent decree that

6. The Bellevue defendants agree, and the Court finds, that the arrest of plaintiff on June 5, 2007, under the flag mutilation statute, and/or the contributing to the delinquency of a minor statute (the two statutes listed on the citation), was not a valid arrest, and was contrary to the First Amendment of the United States Constitution and the Nebraska State Constitution, because plaintiff and her minor son, Jonah Phelps-Roper, were engaged in non-disruptive lawful peaceful picketing and use of the American flag for expressive activities; no breach of the peace occurred; none of plaintiff’s children including Jonah were in any danger or exposed to danger or acting delinquently, and were instead themselves engaged in protected activity; and the application of those two statutes to that activity was unconstitutional.

7. The Bellevue defendants agree, and the Court finds, that the criminal citations issued against the Plaintiff and the preconditions placed upon the Plaintiff prior to engaging in protected expressive activity were an attempt to unconstitutionally restrict Plaintiff’s expressive rights under the First Amendment …. Further, the Bellevue defendants agree that the Nebraska Funeral Picketing statute was unconstitutionally applied

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Bloggers can’t agree on anything about fiscal commission, or political impact of Wall Street bill

This week’s National Journal poll of political bloggers asked about the impact of the Wall Street reform issue on the midterm elections. Ninety-four percent of the Left bloggers thought that it would help Democrats a lot or a little. The Left was evenly divided between expecting the issue to hurt Republicans a little, or to have no impact. My guess was that it would hurt Republicans a little, although the result might depend on the substance of what the Republicans do: “Republicans would be wrong, as a matter of policy and of politics, to oppose reforms which would reduce the ability of Wall Street to make the public pay for losing bets on complex financial instruments. It would be politically self-destructive for anyone to vote for a bill which provides congressional pre-authorization for more bailouts, including bailouts of the creditors of an insolvent Wall Street firm.” And yes, I’m aware the the bailout fund is now gone from the bill; but the bill still has authority for the executive branch to take money from prudent banks and give it to the reckless creditors of imprudent banks. In general, the bankruptcy laws provide a fair and orderly process to terminate the operations of a bankrupt financial services company; the Dodd bill, in contrast, provides nearly limitless executive power, almost no due process protections, and tremendous opportunity for abusing the system to help politically-favored creditors, or to threaten political opponents with federal destruction of their company.

Asked about what areas the President’s deficit reduction commission should focus on, the bloggers split. A hundred percent of the Left, and 50% of the Right (including me) wanted the commission to consider defense budget cuts. Huge majorities of the Right, and 36-46% of the Left wanted consideration of cuts in domestic discretionary spending, social security, [...]

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Blatant Unconstitutionality Started Early

1789: The states ratify the U.S. Constitution, which says, in relevant part, that “No Person shall be a Representative who shall not have attained to the Age of twenty five Years.”

1797: William C.C. Claiborne is seated as a Representative from Tennessee, at age 22.

I’d love to know more about whether any constitutional objections were raised to this; Joseph T. Hatfield, William Claiborne: Jeffersonian Centurion in the American Southwest (1976), doesn’t discuss any controversy about this, and a research assistant whom I asked to look through the Knoxville Gazette for 1796 to 1798 didn’t find any articles mentioning any controversy about this.

Henry Clay was sworn in as U.S. Senator on Dec. 29, 1806, when he was three and a half months short of the constitutionally required age of thirty. I couldn’t find any evidence that there was any controversy about that, either. On the other hand, Albert Gallatin was denied a Senate seat in 1793 on the grounds that he hadn’t satisfied the constitutional requirement of having “been nine Years a Citizen of the United States.”

Some time later, the houses of Congress apparently started to focus more on such issues. (See also this item, which indicates that by 1860 the age requirement was being more carefully attended to.) But it seems surprising that in the early years, no objections were apparently raised. If any of you know more of the reasons why such obviously unconstitutional actions didn’t seem to raise an eyebrow — Was the provision thought to be hortatory? Was popular sovereignty as to Representatives, or state authority as to Senators, thought to be a higher law, at least when it came to age rather than citizenship? — or know whether eyebrows were actually raised, I’d love to hear it. (Note that I don’t think [...]

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Upcoming Talks

Just a quick post to note some upcoming talks.

  • Tomorrow I’ll be speaking at the Ohio State Bar Assocation’s 25th Annual Ohio Environment, Energy and Resources Law Seminar in Newark, Ohio.  I’m on a panel at 11:15 am with Ohio Solicitor General Benjamin Mizer to discuss environmental law in the Supreme Court.  The full program is here.
  • Monday I’ll be giving a noontime talk on “Climate Policy Heats Up: What’s Not Cool about Global Warming Regulations,” before the Las Vegas lawyers’ chapter of the Federalist Society.  Details here.
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Prof. John Eastman for California Attorney General

I just contributed to Prof. John Eastman’s campaign for California Attorney General, and I urge others to do the same. John is extremely smart and accomplished — he has a Ph.D. in government, he clerked for Justice Clarence Thomas, he has written or cowritten over 20 law review articles, and he’s a law professor and law school dean. And he’s a solid and thoughtful conservative, who I think would make an excellent Attorney General. There are things I disagree with him on, of course, but that’s inevitable with any candidate; on balance, I’m sure he would do a first-rate job. [...]

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Death Panels, of a Different Sort

I just came across some cases that I think our readers might find interesting (though tragic). Here’s the common fact pattern (with some minor variations among the cases): A small child is suffering from extreme medical problems, and doctors believe there is no hope for improvement. The parents have lost their parental rights, because they were found to be abusive or neglectful; the state has custody.

A decision needs to be made about whether the child should be removed from life support, or have a “do not resuscitate” order entered. Unlike with adults or even older children, where one might ask what they want, or what they would have wanted before they became unable or incompetent to answer (a judgment that might be made based on the patient’s expressed or inferred preferences and values), the child has never been able to form such preferences and values.

Who decides whether to let the child die, and how is the decision to be made? In particular, should the state, as custodian, decide based on state officials’ judgment about the child’s “best interests” — and what sort of objective governmental judgment of best interests can there be in such a case?

The particular cases I came across are In re K.I., 735 A.2d 448 (D.C. 1999), In re Christopher I., 131 Cal. Rptr. 2d 122 (Cal. App. 2003), In re Truselo, 846 A. 2d 256 (Del. Fam. Ct. 2000), and In re AMB, 640 NW 2d 262 (Mich. Ct. App. 2001). K.I, Christopher I., and Truselo, rule in favor of decisions to end life support or enter do-not-resuscitate orders, if a court finds by clear and convincing evidence that such decisions are in the child’s best interests. In re AMB holds that [...]

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Feds May Sue Arizona Over Immigration

Today’s Washington Post reports that the Justice Department is considering whether to challenge Arizona’s new immigration law.

A key legal ground being considered, officials said, is the doctrine of “preemption” — arguing that the state’s law illegally intrudes on immigration enforcement, which is a federal responsibility.

The White House probably will make the final call, given that the issue is fraught with legal and political implications. Senior administration officials indicated Wednesday that Holder’s remarks about the legislation — he said he is “very concerned” that it could drive a “wedge” between law enforcement and immigrant communities — should be taken very seriously. . . .

Homeland Security Secretary Janet Napolitano indicated in congressional testimony Tuesday that federal reviewers are considering a preemption argument.

“The first thing that needs to be done is for the Justice Department to review whether the law is constitutional under the laws governing the supremacy clause and under the laws governing preemption,” she said, adding: “Is it constitutional or not?”

Meanwhile, there is a cert petition pending in U.S. Chamber of Commerce v. Candelaria, a case involving a preemption challenge to another Arizona immigration law .  This law imposes sanctions on employers who employ illegal aliens or other unauthorized workers, and was signed into law by then-Gov. Janet Napolitano.  The Supreme Court has requested the views of the Solicitor General in this case, so it will be worth watching.  There is also another potentially cert-worthy preemption case out of the 10th Circuit.  While these cases raise different issues, they could shed light on whether the new Arizona law would survive a preemption challenge. [...]

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Kobach on Arizona’s Immigration Law

UMKC law professor Kris Kobach, who helped author Arizona’s controversial immigration law, defends the law in today’s NYT.  According to Professor Kobach, the law “prohibits the harboring of illegal aliens and makes it a state crime for an alien to commit certain federal immigration crimes. It also requires police officers who, in the course of a traffic stop or other law-enforcement action, come to a ‘reasonable suspicion’ that a person is an illegal alien verify the person’s immigration status with the federal government.”

I think Prof. Kobach effectively rebuts several critiques of the law, and suggests why some media and commentator characterizations are inaccurate.  Assuming the law operates as he describes it — and as someone who helped draft it, he should know — it does not appear to me to be quite the civil liberties disaster some claim (and I say that as someone who does not support restrictionist immigration policies).  Yet it does not eliminate all of my concerns.  Police retain substantial discretion to pull over or detain those they seek to question or have legal contact with, so I think concerns about how the law might be used or abused in practice are reasonable.

On preemption, Prof. Kobach has not convinced me that the law will survive legal challenge.  Insofar as stepped up state enforcement of federal immigration laws conflicts with federal enforcement or administration of federal law, or places additional burdens on federal officials (who, for instance, may be required to devote resources to process and expel those arrested by Arizona), I would think it is vulnerable.  This is particularly so because immigration law is not simply concerned with securign the border and keeping out those without a legal right to be in the country.  It is also about providing people with a means [...]

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The Internet, The Fourth Amendment, and Technology Neutrality: A Response to Horowitz

Defense attorney and blogger Rick Horowitz has posted an extended two-part response to my new law review article, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010). His posts are here:

1. Orin Kerr’s Fourth Amendment & The Internet: Foundations

2. What’s Wrong With Orin Kerr’s Technology Neutrality

Horowitz’s major objection to my approach is that he opposes “technology neutrality” as a basic principle of applying the Fourth Amendment to the Internet. As I explain in my article, the basic goal of technology neutrality is to develop Fourth Amendment principles that roughly replicate the function of the Fourth Amendment offline in the online environment. Put simply, the Fourth Amendment should do for cyberspace what it does for realspace.

Horowitz disagrees. In his view, the Supreme Court has gotten the Fourth Amendment horribly wrong in realspace: Its protections are not nearly strong as they should be, reflecting decades’ worth of constitutional mistakes. He argues that the goal of applying the Fourth Amendment should be to be true to the real Fourth Amendment, which (as best I can tell) he sees as imposing a warrant requirement for essentially every step the government takes, a position he sees rooted in the Fourth Amendment’s textual protection of “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Horowitz writes:

Ultimately, the problem with keeping the Constitution — and thus the Fourth Amendment — alive today is not to extend some near-dead version of it to what is believed to be another new and necessary arena of governmental intrusion into the lives of the citizens whose liberties it was formed to protect, but to recognize that the damn thing is barely holding onto

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Major Gaffe in Britain

In the runup to the elections in Britain, Labor Prime Minister Gordon Brown has just made what is being described as “major gaffe” by a host of observers.  He called a woman (a Labor supporter) who raised immigration concerns with him directly a “bigoted woman.”  The remark was caught on a microphone that Brown forgot he was wearing.  Coverage can be found on this link or on the youtube video inserted here. 

[youtube][/youtube] [...]

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The Russian Influence on American Law

From today’s oral arguments in Doe v. Reed:

JUSTICE GINSBURG: You mean if—that was over. It passed the screen of the Secretary of State. It’s disclosed to the public. If someone then said, You’ve got a lot of dead souls on these lists, the State would do nothing about it? …

[Much later:] [ATTORNEY] GENERAL McKENNA: That goes to the heart to the Public Records Act, Justice Scalia, trust but verify….

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