I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there’s another vision of the court [sic] that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process.

That’s one of the reasons I opposed Alito, you know, as well as Justice Roberts. When Roberts came up and everybody was saying, “You know, he’s very smart and he’s seems a very decent man and he loves his wife. [Laughter] You know, he’s good to his dog. [laughter] He’s so well qualified.” I said, well look, that’s absolutely true and in most Supreme Court decis--, in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsburg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is — what is in the justice’s heart.

  Mark Robinson was driving through downtown Melissa last week when he was pulled over for failing the use his turn signal.
  But instead of getting a ticket, the officer took the 24-year-old to jail.
  He was booked, strip searched, and sat for 3 hours with criminals. “People talking about using drugs and shooting heroin. They asked me what I was in there for and I said a turn signal violation,” said Robinson.
  There aren't any warrants out for Robinson. In fact he says he's never been in jail. But he does admit to challenging the officer's questions during the stop.

What you're looking for is somebody who is going to apply the law where it's clear. Now there's gonna be those five percent of cases or one percent of cases where the law isn't clear. And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings — and, in those circumstances, what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly. The courts become a refuge for justice. That's been its historic role. That was its role in Brown v. Board of Education.

What's interesting is that Obama's very campaign is upending traditional notions of who has "access" to political power, and yet his approach to judicial nominations is premised on those traditional notions. Using the courts to protect "discrete and insular minorities" may have made much more sense in a time when it realistically wasn't as possible — from a structural point of view — for such groups to have adequate representation in the political process.

But advances in media and technology — as illustrated by Obama's own campaign, which was initiated within and is largely propelled by the netroots community — have largely removed these barriers today. Think of any group that would count as a "discrete and insular minority": blacks, Hispanics, gays, black Hispanic gays — anything. In the 1940s and 1950s, it was much easier for the political process to structurally cut those groups off. Today? Every one of these groups has the ability to come together, raise money, raise awareness, and attract followers and sympathizers in the public and among representatives. There is simply no "discrete and insular minority" that doesn't have the ability to access the political process these days in the same manner as all groups.

Now, does that mean that each of these minorities *gets their way* on every issue? No — they might often get outvoted. But getting outvoted after a thorough airing of issues is much different than not getting an airing at all. And after a couple more years of awareness and making arguments, those minorities may eventually change the public view enough to gain enough votes to put their favored policies in place. And that's democracy.

So I just find it odd that Obama's approach to judges rests on notions of the political process that his own campaign has proven are antiquated.

Hard to believe, but apparently true. [See Cory Doctorow's posting on Boing Boing, and the story from TechDirt, along with accompanying documents.

The copyright claim is (like a lot of copyright claims these days) probably about 98% horse manure. They're not asserting copyright in the text of the laws themselves, but in the "arrangement and subject matter compilation," the numbering of statutory sections, and the various "tables, indices, and annotations" contained in the documents. Lots of that stuff is simply not copyrightable -- and even as to the stuff in which there might be copyright protection, what makes the State of Oregon so sure that it, and not the various individuals who authored particular sections, owns the copyright to those contributions?

But that's not what burns me up, of course. What burns me up is that the State of Oregon would choose to assert its rather fanciful copyright claim for the purpose of making public access to the authoritative version of its laws more, rather than less, difficult. It is completely outrageous that in 2008 we do not have a complete and authoritative compendium of all of the laws of the 50 States, and the federal government, available at no cost on the net. Oh, did I mention that Thomson-West Publishing publishes and sells the Oregon Revised Statutes (and makes it available, for a fee, over its Westlaw service)? My colleague Peter Martin, of the Cornell Legal Information Institute, has been working on this problem for years and years, and has made some, but far too little, headway -- though I hope he keeps fighting the good fight on this front.

[Thanks to George Byrd for the pointer to this story]

On the other hand, it is far from clear that bankruptcy will help Nifong very much in the long run. Section 523(a)(6) of the Code makes nondischargeable debts incurred for "willful and malicious injury" to others. This traditionally has been defined as something like an intentional tort, as in Kawaauhau v. Geiger. I'm not familiar with the details of the players' complaint against him (please flesh this out in the comments if any of you are familiar with it_ but I assume that it includes counts for claims such as defamation and libel and other intentional torts, so I would think 523(a)(6) has a good chance of applying. In the meantime, he does get some benefit from the automatic stay, however.

According to this website, Nifong lists about $5000 per month in "pension and retirement" income (which it appears that he is claiming as exempt from the tort claims of the lacrosse players), "and describes himself, charitably, as retired."

His full bankruptcy schedules are here.

For confirmation that the vandal (Roderick King) was a Student Senator, see here. The vandal's rationale:

In 1973 it was made a Constitutional right for a woman to have an abortion. It's not your responsibility. Since it's a right, you don't have the right to challenge it.... Do not put this [display] in front of all of us ... it is not your right.

I'd like to hear what actions the university or the student senate will take against Senator King for his vandalism.

Note, incidentally, that it appears that the use of the university's property for the exhibit had indeed been authorized by the university. (Even if the parklike area on university property was a traditional public forum in which speech had to be allowed, or a designated public forum that the university opened up for speech, it's likely that the university could bar installations planted in the ground — but it appears that the university did not impose any such content-neutral limitation.) Thanks to my friend Prof. Rick Garnett (PrawsBlawg, Mirror of Justice) for the pointer.

UPDATE: UWSP's response:

The University of Wisconsin-Stevens Point has received several communications regarding the May 1, 2008, display by the student organization, Pointers for Life, and the disruption of that display by opposing students.

The university values free expression and the open exchange of ideas. Pointers for Life is a recognized student organization that followed university procedure in staging its event.

The student who disrupted the display not only exhibited inappropriate behavior, but demonstrated intolerance that is unacceptable on the UWSP campus.

University procedures are being followed. In accordance with the Family Educational Rights and Privacy Act, which protects our students from disclosure of their educational records, results of those procedures will not be made public.

I can't speak to the FERPA question, but generally I think UWSP's statement is exactly correct. Many thanks to Thomas Muth for the pointer.

[S]o long as Nelson's physical whereabouts remain a secret, reaching him and his company by ordinary means remains every bit as difficult as reaching the defendant in Hollow v. Hollow [an earlier New York state case -EV]. For the plaintiffs here, like the plaintiff in Hollow, the internet may very well offer the best hope they have of ever being able to reach the defendants Nelson and Corporate Energy.

The problem with the internet is that it is hard to be absolutely sure that the message is actually received by the person it is intended to reach. Despite the information plaintiffs' counsel has supplied tying defendant Nelson to e-mail address EnergyAEI@aol.com, there is still the chance, however slight, that the address belongs to someone who for some unknown reason is merely pretending to be Nelson. And even if the address is indeed Nelson's, then at any given time some other person say, a friend, family member or co-worker may be the one using the address and thus end up intercepting the message being sent to Nelson.

Concerns about the uncertainty of an e-mailed summons and complaint making its way across the internet to its intended target is reason to proceed with caution when being asked to authorize e-mail service. But such concerns are not reason enough to summarily reject an application for alternate service simply because the method sought involves e-mail. Strange as it may sound, the validity of a particular form of service is not necessarily dependent on the likelihood of receipt. As the court of Appeals wrote in Dobkin, "Our law has long been comfortable with many situations in which it is evident, as a practical matter, that parties to whom notice was ostensibly addressed would never in fact receive it." Dobkin v. Chapman, 21 NY2d at 502.