Doing Doors in Kewaskum

Last Tuesday, a consent judgment was entered in the Eastern District of Wisconsin resolving a free speech claim brought by a self-described “traveling evangelist.” The plaintiff Michael Foht was told by the Kewaskum Police that he could distribute religious literature only to people who said that they wanted it. This meant that he could not leave literature at private residences (he must first knock on the door and ask permission) or leaflet automobiles.

This instruction was based on an extraordinarily broad village ordinance which prohibited the distribution of “any printed matter on literature on public or private property” or the placement of such literature on motor vehicles. The ordinance had an exception for the distribution of literature to persons “willing to accept” it.

Foht apparently attempted to clarify the matter with the village attorney, who failed to return his calls. That turned out to be expensive.

Foht filed suit and the village, finally obtaining the proper legal advice, repealed the ordinance. The consent decree declares that the ordinance was facially unconstitutional and should not have been applied to Foht and awards him $11,000 in attorneys fees and costs.

The result is unexceptional, but the fact of the case may be instructive. What the law requires and whether it is complied with are two different matters. I doubt that this type of ordinance was only to be found in Kewaskum, Wisconsin.

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Priorities for the Next President: Accountability for Torture

The U.S. 2008 presidential campaign has been virtually silent on the issue of torture.   Yet, the very same day of the last presidential debate (Wednesday, October 15) Washington Post reporter Joby Warrick unveiled startling revelations in his article CIA Tactics Endorsed in Secret Memos.  Warrick tells us of the existence of two secret (still classified) memos from 2003 and 2004 that indicate the White House’s explicit endorsement of the CIA’s interrogation techniques against al-Qaeda suspects.  Apparently former CIA Director George J. Tenent was not satisfied with the infamous “Torture Memos” of 2003, in which White House lawyers gave the green light for our security forces to use torture.  Their outright dismissal of international treaties like the Torture Convention and the Geneva Convention, however, came under fire as even our top military leaders condemned the euphemism “enhanced interrogation techniques” and the redefinition of methods of torture like water boarding.  This moment signaled our slide into a new level of lawlessness that shook the very foundation of a longstanding international legal framework, stunning most seasoned practitioners, experts, and scholars.   But U.S. public opinion had yet to catch up. 

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The Judicial Process, um, Movement(?)

One of the things that seems critical to establishing oneself as a scholar is becoming a part of a broader community of scholars.  Six-plus years into my academic career, I feel only partially successful in this regard.  Here’s why: When people ask me what I write about, I usually say “the judicial process.”  It’s an accurate answer.  Nearly all of my scholarship has to do with judging, including the processes of appellate review, the functions of judicial opinions, and a concept I’ve called “judicial inactivism.”  I find it all fascinating and important, and expect it will keep me busy for the rest of my career.

But as I scan the schedule for the upcoming American Association of Law Schools annual meeting, I feel as though I lack a home.  It’s not that there isn’t plenty of stuff written dealing with the judicial process. Nearly every day Larry Solum brings my attention to at least one article that falls into the judicial process category. But the authors seem to have primary allegiances elsewhere – they are Civ Pro people, or Con Law people, or Empirical Legal Studies people, or what have you.  Nor is there a recognized Judicial Process component of the curriculum.  (I’m in the early stages of trying to change that.  More on that in a subsequent post.)

This strikes me as odd.  And so I wonder: Should there be a judicial process community in some formal sense?  After all, if I may understate the matter somewhat, courts and judges play a central role in this enterprise of ours.  Given the constant chatter about judicial activism and the various threats to judicial independence and the explosion in the amount of empirical work being done on courts and the kerfuffles over unpublished opinions and on and on, oughtn’t those of us who write about judging and courts at the very least get together from time to time to talk about what we’re up to?  Am I alone in this?  If someone were to throw such a party, would anyone come?

Cross posted at PrawfsBlawg.

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