Irish Trojan in Tennessee

Individual right to bear arms vindicated; still no right to arm bears

By Brendan Loy

The Supreme Court is expected to rule very shortly on, essentially, what the Second Amendment means, in the Washington, D.C. handgun ban case, D.C. vs. Heller.

SCOTUSblog is liveblogging.

UPDATE: By a 5-4 vote, with no plurality or concurrences -- i.e., the five justices in the majority all agreed on the same rationale -- the "Second Amendment protects an individual right to possess a firearm." (That quote is from SCOTUSblog, not from the opinion.)

UPDATE 2: Here's the opinion and the dissents (PDF). Scalia wrote the majority opinion, which was joined by the other four conservative justices. There were two separate dissents, one by Stevens and one by Breyer; each dissent was joined by the other three liberal justices. So, like I said, a clear 5-4 split, with no muddying of the waters by multiple plurality opinions and such.

If you don't want to read the whole thing, some relevant quotes from the majority opinion can be found here. And here's an initial analysis from SCOTUSblog's Lyle Denniston -- although, as the Volokh Conspiracy's Orin Kerr says, "the details of the opinion are critical; it will take a bit of time to read the decision to get a sense of what it means."

The judge and his porn

By Brendan Loy

If you haven't been following the Kozinski kerfuffle, here's a helpful roundup of links.

InstaPundit's tongue-in-cheek take: "Since it's generally thought that men are disproportionate consumers of porn because of their gender, and because, hormonally, they're driven to favor visual stimuli, then obviously punishing porn consumption constitutes sex discrimination, and is probably unconstitutional. Plus, research establishes that porn is good for America. You don't hate America, do you?" Heh.

I love the law

By Brendan Loy

Particularly when, in the course of doing legal research, I stumble across a citation like this:

Validity, construction, and effect of restrictive covenants as to trees and shrubbery, 13 A.L.R.4th 1346

Bring me a shrubbery!

(See also.)

Professors giving students bad grades: out. Professors suing students: in.

By Brendan Loy

I've seen not one, but two stories today about professors suing their students. The first one involves a writing instructor at Dartmouth who appears intent on sabotaging her own academic career on the basis of, apparently, personal pique. (More here, here, here, here and here.) Bizarre... absolutely bizarre. The second, perhaps slightly more serious case involves a Little Rock law professor who is suing for defamation arising out of a racially charged controversy at UALR. Fun.

Tennessee Chief Justice retires

By Brendan Loy

William M. Barker, the Chief Justice of the Tennessee Supreme Court*, is retiring.

*or is the proper title "Chief Justice of the State of Tennessee"? I'm not sure.

Fair use, anyone?

By Brendan Loy

The RIAA, apparently determined to make itself into a self-caricature, is now arguing in court that it's illegal to copy CDs you legally bought onto your computer for your own personal use.

P.S. Moe Lane: "I guess that I won't be buying that iPod, then." (Hat tip: InstaPundit.)

Belfast: judge acquits defendant in Omagh massacre

By Joe Loy

Like Brendan's below on the tiny Tunguska asteroid :), this story is a couple of days old but Here it is anyway.

A judge in Belfast Crown Court has ruled Sean Hoey, 38, an electrician from south County Armagh, not guilty in the hideous terrorist bombing in Omagh, County Tyrone, whereby the execrable RIRA ("Real Irish Republican Army") slaughtered 29 innocent children, women and men in August of 1998.

Apparently the Northern Ireland police botched their evidence, and the prosecutors their presentation, so thoroughly that the charges were impossible to prove. The judge was reportedly scathing in his analysis of the authorities' performance in the case.

None of which, quite obviously, provides any Justice to the families of the victims of the mass murder; nor can it ever tell us whether Mr. Hoey, in addition to being now legally Not Guilty, is or is not also factually Innocent of having functioned as the RIRA Bombmaker ~ which we can now only hope (as he of course claims) that he really, actually, truly did Not.

The BBC's Kevin Connolly gives us a good overview, well worth reading in full, of the whole horrid business, including these telling passages:

...But more than anything, for the rest of us, it was the timing of the attack on Omagh which burned it into our memories.

It came just four months after Northern Ireland's fractious political parties made a political deal which included Sinn Fein, the political wing of the IRA.

It tore apart a community in a province which was beginning to learn to hope after decades of despair - and it made people fear that the new dawn which had promised so much, would be quickly and cruelly extinguished.

Like the other bombings in the early part of 1998 in places like Lisburn and Banbridge, Omagh was a conscious attempt by republicans who disagreed with the political strategy of Gerry Adams and Martin McGuinness, to destabilise Northern Ireland in that vulnerable moment of hope.

It failed - but there is a terrible irony to the way in which the campaign was halted only by the wave of revulsion triggered by the carnage at Omagh.

...The Omagh families were dignified in defeat, as they have been dignified at every stage of their fight for justice. Their campaigning will go on, but the prospect is surely receding now that anyone will ever be convicted of murdering their husbands and brothers and sisters and wives and children.

As this case fades from our memories it's worth remembering the victims of all Northern Ireland's atrocities for whom the pain is not fading even as the province heads into a more hopeful future.

Amen.

Need to pass a bar exam?

By Jay Johnson

Well, if you actually failed, and really wanted to pass instead, I'd say your best bet is to be the daughter of a South Carolina Judge, a law clerk for a Judge (makes you wonder about the hiring process for clerks, huh?), or otherwise be related to someone in South Carolina politics.  Then, I'm pretty sure you'd get your failing grade changed to passing by the Supreme Court.

I'm not licensed in South Carolina, so I don't know anything about the Courts or the judicial process there.  This smells really, really bad for the South Carolina Supreme Court to me.  This is the kind of conduct that brings a very bad negative impression of lawyers to foster bad stereotypes.  It's also the kind of thing that really pisses me off in general.

The bar exam is hard as hell for a reason.  It makes sure that the people that pass the thing are at least minimally competent.  For those who busted ass to prepare and passed, it's a big time slap in the face to just change a "fail" to a "pass" because of that person's parentage.

Justice in Georgia, finally

By Brendan Loy

Free at last, free at last, thank God Almighty, he is free at last:

The Georgia Supreme Court on Friday ordered the release of Genarlow Wilson, the Douglas County teenager who has been serving a controversial 10-year sentence for consensual oral sex.

The court's 4-3 decision upholds a Monroe County judge's ruling that the sentence constituted cruel and unusual punishment under both the Georgia and U.S. constitutions.

The majority opinion said the sentence appeared to be "grossly disproportionate" to the teenager's crime and noted that it was out of step with current law.

Wilson was convicted in 2005 of aggravated child molestation for having oral sex with a 15-year-old girl at a New Year's Eve party in a hotel room. He was 17 at the time.

At the time the law the crime carried a mandatory 10-year sentence with no parole. However, the law was changed in 2006 to make Wilson's crime a misdemeanor with a maximum 1-year sentence.

"Although society has a significant interest in protecting children from premature sexual activity, we must acknowledge that Wilson's crime does not rise to the level of culpability of adults who prey on children ..." wrote Supreme Court Justice Leah Ward Sears in the majority opinion.

She said that "for the law to punish Wilson as it would an adult, with the extraordinarily harsh punishment of 10 years in prison without the possibility of probation or parole, appears to be grossly disproportionate to his crime."

Justice George Carley, in the dissent, said the 2006 change in the law was specifically written so it would not be retroactive. The sentence is not cruel and unusual because "the General Assembly made the express decision that he cannot benefit from the subsequent legislative determination to reduce the sentence for commission of that crime from felony to misdemeanor status."

Carley said the majority opinion showed "unprecedented disregard" for the legislative intent of the law change and creates the potential for similar releases of "any and all defendants who were ever convicted of aggravated child molestation and sentenced" under circumstances similar to Wilson's.

I think the dissent has a point. I also don't care. Sometimes an injustice is so grave that it must be reversed even at the risk of setting problematic precedents. Yes, I know: "hard cases make for bad law." But this wasn't a hard case. It was an easy case, on its own merits, in terms of fundamental principles of justice. Only when considering its potential implications for other cases does it become remotely "hard." I say, let the courts and the legislature work out those implications in future cases. In this case, there was only one possible just result, and it was achieved, at long last, today. Finally, someone in the Georgia justice system should be able to sleep at night, and it's the four Supreme Court justices who reversed this abhorrent abuse of prosecutoral discretion. Good for them.

(Hat tip: JT. Previous posts here, here, here and, somewhat related, here.)

CAVEAT: I haven't actually read the opinion yet. Here it is.

Cruel and unusual punishment

By Brendan Loy

Again with Georgia and its ridiculous sex-offender laws:

The state of Georgia regards 28-year-old Wendy Whitaker as such a threat to public safety that it posts her photo and address on the Internet, bans her from living near schools, churches and playgrounds and forbids her from working with children.

What makes Whitaker such a terrible danger?

Eleven years ago, when she had just turned 17, Whitaker engaged in a single act of oral sex with a boy in her sophomore class on school property. That's it.

Though less than two years separated the couple — the boy was about to turn 16 — Whitaker was arrested for sodomy, a charge to which she pleaded guilty and completed five years probation. However, that plea also means that Whitaker will serve a lifetime on the state's sex-offender registry, placing her in the same category as truly dangerous people such as rapists and child molesters. It also imposes severe — some might argue unconscionable — limits on where she can live and work.

To review: she gave a classmate a blowjob in high school. And for that, she is treated as a pariah -- sort of a modern-day, Western version of an Untouchable -- for the rest of her life. What kind of a screwed-up country is this?

By the way, in case you were wondering, Genarlow Wilson is still in prison.

(Hat tip: InstaPundit.)

Old UConn Law prof nabbed in thong wrong, slave rave

By Joe Loy

(Subhead:  Future Jurists Out Elder Egghead for Tart Tort, Servitude Support  :)

In a move rather surprisingly supported by the usually-liberal Hartford Courant, the University of Connecticut School of Law has placed on temporary leave-of-absence a professor of 36 years' (!!) tenure who, in class, (a) screened a case-related film that incidentally included footage of a thong-clad woman dancing, and (b) propounded politically-incorrect questions relating to reparations for slavery.   

Excerpts (emphases added) from the latter article (the one with the Lengthiest Link Language :) , dateline October 5:

The attorney for a University of Connecticut law professor criticized for showing a film clip that included a scene of a thong-clad woman dancing suggestively said Thursday that her client was simply showing an interview relevant to the course and did not intentionally show the dancer scene.

The professor, Robert L. Birmingham, agreed to take a leave of absence for the rest of the semester and apologized to students after he showed a clip from an R-rated version of a film called "Really, Really Pimpin' in Da South."

The clip included an interview of a pimp convicted in a court case called U.S. v. Pipkins. At the end of the interview, the scene switched to the scantily clad woman briefly before Birmingham pressed the button to freeze the film, upsetting some students, law school Dean Jeremy Paul said.

[Reports that the Chagrin of Some of said Upset students was due to their Frustration at being Frozen out of viewing the Remainder of the Thong scene, were Unconfirmed. / ~ the Guestblogger  :]

"We believe it is in the best interest of the university not to escalate the situation and would like only to say that Professor Birmingham showed a relevant interview in class," said Heather Kaufmann, Birmingham's attorney. "He stopped the film at the completion of the interview. Period. The suggestion that the questionable material was shown intentionally is both troubling and dishonest."

...Several students complained about the film clip, and the issue soon became the talk on campus. This prompted the dean to hold a campuswide forum  [well of Course; what Else? / ~ the Guestblogger ;] ,  at which many students spoke in support of Birmingham, a UConn professor since 1971 known as a provocative lecturer and iconoclastic thinker.

The dean, who is investigating the matter further, said he is trying to strike a balance between academic freedom and efforts to foster an inclusive, welcoming campus.

Hey I got a good idea, Dean ol' buddy: how's about further Investigating what's the Matter with Fostering a Campus which veryinclusively Welcomes Everybody's academic Freedom?  / I mean, if Columbia can somehow contrive to survive the jihad of Ahmadinejad , can UConn not stand to String along with a freeze-framed Thong?  :>  And even tolerate a rigorous exploration ~ in "Remedies" class, mind you ~ of the basis for proposed Reparations?

Read the whole Oct. 5 thing; and the preceding day's piece too; and the Oct. 10 spineless editorial.

Bah. / And here we call ourselves The Constitution State. Phooey.

Quote of the day

By Brendan Loy

Justice Clarence Thomas: "About the only way I would get invited to Columbia is if I was a Middle East dictator with nuclear weapons." Heh! (Hat tip: InstaPundit.)

Cue the world's smallest violin

By Brendan Loy

The phrase "it sucks to be a lawyer" isn't going to get much sympathy from non-lawyers, but nevertheless, it seems there are more and more lawyers making less and less money, according to the Wall Street Journal:

A law degree isn't necessarily a license to print money these days.

For graduates of elite law schools, prospects have never been better. Big law firms this year boosted their starting salaries to as high as $160,000. But the majority of law-school graduates are suffering from a supply-and-demand imbalance that's suppressing pay and job growth. The result: Graduates who don't score at the top of their class are struggling to find well-paying jobs to make payments on law-school debts that can exceed $100,000. Some are taking temporary contract work, reviewing documents for as little as $20 an hour, without benefits. And many are blaming their law schools for failing to warn them about the dark side of the job market. ...

A slack in demand appears to be part of the problem. The legal sector, after more than tripling in inflation-adjusted growth between 1970 and 1987, has grown at an average annual inflation-adjusted rate of 1.2% since 1988, or less than half as fast as the broader economy, according to Commerce Department data. ...

On the supply end, more lawyers are entering the work force, thanks in part to the accreditation of new law schools and an influx of applicants after the dot-com implosion earlier this decade. In the 2005-06 academic year, 43,883 Juris Doctor degrees were awarded, up from 37,909 for 2001-02, according to the American Bar Association. ...

Many students "simply cannot earn enough income after graduation to support the debt they incur," wrote Richard Matasar, dean of New York Law School, in 2005, concluding that, "We may be reaching the end of a golden era for law schools."

Some of the things that are making life harder for lawyers -- such as tort reform and malpractice reform legislation -- are good things for society at large, even if they're bad for me and my classmates. Still, it would have been nice to graduate from law school a little bit earlier in the "golden era." :)

Simpson arrested in Boston

By Joe Loy

Star Out on Bail, Faces Disorderly Conduct Rap:  But Was It Art?

:)

From The MIT Tech (emphases added):

Star A. Simpson ’10, wearing a circuit board that lit up and was connected to a battery, was arrested at gunpoint at Logan International Airport this morning and was charged with disorderly conduct and possession of a hoax device. Simpson was released on $750 bail earlier today; her pre-trial hearing is scheduled for Oct. 29, 2007 at 9 a.m. in East Boston District Court.

Simpson (a former Tech photographer) was wearing the device, which included green light-emitting diodes arranged in the shape of a star, during yesterday’s MIT Career Fair. Her defense attorney said she was at the airport to pick up her boyfriend who arrived at Logan this morning.

Simpson approached an information booth in Logan’s Terminal C wearing the light-up device, Assistant Suffolk District Attorney Wayne Margolis said during Simpson’s arraignment today. Margolis also said that Simpson had been wearing the art for at least a few days.

(Well I don't wanna Say anything but I think I'd Detect that something doesn't quite pass the Smell test, right there / ~ the GuestCSI :)

She “said it was a piece of art,” Margolis said, and “refused to answer any more questions.” Jake Wark, spokesperson for the Suffolk County District Attorney’s Office, said that Simpson only described the LED lights after she was “repeatedly questioned by the MassPort employee.” Simpson then “roamed briefly around the terminal,” Wark said. Margolis said this caused several Logan employees to flee the building...

...Simpson had five to six ounces of Play-Doh in her hands, State Police Maj. Scott Pare said in a press conference this morning. The Play-Doh could have been mistaken for plastic explosives.

(More after the blast break :)

No gay marriage in Maryland

By JLR

Maryland's highest court has declared that the Constitution of my adopted home state does not allow room for the marriage of homosexuals within its borders.  The US Supreme Court will not and cannot hear this case, since it is a matter of state law that is in question.  The reason?

the prohibition on same-sex marriage promotes the state's interest in heterosexual marriage as a means of having and protecting children.

So let me ask this question to all of the law experts in the Brendansphere.  If a man or a woman is physically unable to produce children (due to menopause, castration, or for any other reason), should they not be allowed to marry in this State?  Should we ban married couples from buying contraception?

IMHO, there is absolutely no reason for the Court of Appeals to decide this.  The legal ground on which it rests is shaky at best.  Furthermore, the majority of the 4-3 decision agreed that the State General Assembly (the legislature) could (and should!) write a law allowing gay marriage in Maryland.  The last governor, Robert Ehrlich (R), vetoed a civil union bill that had passed the General Assembly in 2005.  The current governor, Martin O'Malley (D), would support a civil union bill.

But my opinions of civil unions (and how they're no better than white-only lunch counters) make up another rant all together.

Re-hire Chemerinsky? Also, go Red Sox!

By Brendan Loy

With regard to Erwin-gate*, NRO's Victor David Hanson says UC Irvine Law School should re-hire Chemerinsky. (Hat tip: InstaPundit.)

Personally, I think they should re-hire him, and then re-fire him, just for kicks. It'll be like George Steinbrenner and Billy Martin for the ivory-tower set. Fun times all around!

Speaking of which, it's now mid-September, which means it's time for this purported baseball fan, i.e. me, to start actually paying attention to my Red Sox. (I know, I know: bandwagon, etc. But dammit, 162 games is too long. My A.D.D. can't handle it. Hence my tendency to "tune in" sometime in September.) Conveniently enough, there's a Red Sox-Yankees series this weekend to get me back into the swing of things. As Mgoblog says, "Your Hate Makes You Strong." (That reminds me: Michigan sucks!!)

The series is at Fenway, and really, Boston mostly just needs to avoid suffering another sweep. The Yankees have been on quite a roll lately, but the Sox are still 5 1/2 games up in the AL East, their biggest lead this late in the season since 1986, so even, say, losing two of three to the Bronx Bastards would leave Boston with a reasonably comfortable 4.5-game cushion with 12 games to go (13 for the Yankees) when the series -- the last Boston vs. New Yawk showdown of the regular season -- is over. On the flip side, winning two of three would mean a 6.5-game lead, and a Red Sox sweep would give the good guys a virtually insurmountable lead of 8 1/2 games -- and would put the Yankees back in danger of not getting the wild card. So that'd be nice.

Anyway, GO SAWX! We broke the Curse in 2004, and in the process we humiliated the Yankees in historic back-from-3-0 fashion, but we still haven't beaten them in the division race -- that is to say, been better than them over the course of the entire regular season -- since, like, forever. So let's wrap that up this weekend, shall we?

P.S. Boston's magic number is 11. Each win this weekend reduces it by 2.

* A.k.a. L'Affaire Chemerinsky. (Hat tip: Glenn, again.)

This just in: apparently Erwin Chemerinsky is a liberal

By Brendan Loy

Duke law professor Erwin Chemerinsky, formerly of USC, almost of U.C. Irvine, has been fired for being too liberal:

Just days after he signed a contract to become the first dean of UC Irvine's new law school, Erwin Chemerinsky was told this week that the deal was off because he was too "politically controversial."

Chemerinsky said in an interview today that UC Irvine Chancellor Michael V. Drake had flown to North Carolina on Tuesday and told him at a hotel near the airport that that he did not realize the extent to which there were "conservatives out to get me." ...

The professor said Drake told him that he thought there would have been a "bloody battle" among the regents over the appointment.

I'm with InstaPundit on this one, on all counts:

Hiring and firing Erwin Chemerinsky in one week? Because it turns out he's too liberal? First of all, who doesn't know about Erwin's politics? Certainly anybody who managed to hire him without knowing his political leanings would have to have been grossly negligent in their evaluation. Second, he's a nice, fair guy regardless of his politics -- which aren't that liberal by law school standards -- and which just shouldn't matter anyway. Perhaps there's more to this story than we're hearing, though I'm not sure what it could be, but it makes absolutely no sense as reported. Anyway, I have to agree with Brian Leiter that this is going to make it very hard for them to recruit anyone of comparable stature for the position now.

Glenn just posted an update.

Coming soon to a law school near you...

By Brendan Loy

The Law of "24"! (Hat tip: Joe Mama.)

I think this brilliantly conceived Georgetown Law class could start a trend at universities nationwide. Study of "24" could become a major, or at least a minor, all unto itself. Imagine the possibilities: The Theology of "24." (Is Jack Bauer a god, or merely a demigod?) The Philosophy of "24." (Who are we? Why are we here? How did Jack Bauer get to be such a freakin' badass?) The Biology of "24." (How does Jack Bauer's body sustain itself despite being constantly tortured and mutilated?) The Physics of "24." (Why don't the laws of physics apply to Jack Bauer?) Etc., etc.

I shot my husband...

By Jay Johnson

and now I get to be on TV with Oprah!

A Connecticut Yankee in Judge Susano's Court

By Brendan Loy

My clerkship starts tomorrow. Wish me luck!

P.S. Of course, this is just about the last you'll be hearing of the clerkship here on the blog. :)

P.P.S. And yes, I've been waiting to post that headline for weeks. What can I say, I'm a man of simple pleasures. Though admittedly, perhaps I shouldn't be paraphrasing Mark Twain, considering what he thought of lawyers. Heh.

You got enchilada in my Kung Pao chicken

By Jay Johnson

The former owner of a now defunct Chinese buffet in Knoxville has been sentenced to one year in federal prison for knowingly employing a staff of illegal Mexican immigrants at his establishment.

I'm torn about what to think about this, upon first glance.

Part of me thinks that it's certainly a reasonable response to a violation of existing law.  Then, I look at the defense strategy, which was likely the only real thing that the attorney could have argued in such a case.

"Everyone else does it, and the government doesn't do anything about it.  What's the big damn deal?"

Certainly, I feel as though our immigration laws aren't being enforced to the degree necessary and our borders aren't adequately protected from the influx of illegal immigrants.  While I don't feel a need to stem the tide of immigration to our country, I do believe that it is important to require/demand that our policies on immigration be followed.

However, a law not enforced is essentially a nullity.  It's similar in theory to real estate law, and the adverse possession of someone else's land.  If you build a fence over someone else's land, and they do nothing to remedy the situation within X number of years, then it's no longer their land, it's yours.

With our immigration laws, it would seem that a similar logic should apply.  When does the government have an affirmative obligation to start enforcing the laws on its books consistently in every such case?  When do (or should) they lose the right to do so if they fail to enforce those same laws?

How do you arbitrarily pick this particular guy to prosecute when there are hundreds or thousands of others out there doing the same thing?

I'm really torn about how to feel about this case, and would like to see what you all think.

Justice for murdered Trojan

By Brendan Loy

The man who killed USC basketball star Ryan Francis has been convicted and faces life in prison without parole.