Justice John Paul Stevens has long been regarded as a stalwart of the Supreme Court’s liberal wing, but he turns 89 next year. If he cares about having an ideologically similar successor on the Court, he may want to retire on a timetable that will permit a successor to be confirmed in time for the start of the next October term. Not only would this permit a smooth transition for his colleagues, but it would also allow soon-to-be-President Obama to take advantage of his party’s large majority in the Senate. Mid-term elections are notoriously tough on sitting presidents, so it might be risky for Stevens to wait much longer — from the standpoint of maximizing the odds of an easy confirmation for a liberal successor.
But I hope that Stevens will not act in so transparently political a manner. The Court’s legitimacy rests to no small extent on perceptions that its members are above politics. Sure, anyone who is paying attention knows that there are “liberals” and “conservatives” on the Court, and no once can reasonably expect the Justices entirely to suppress their fundamental political values when they decide cases. But that sort of partisanship is different than trying to control the composition of the Court, which seems to me something considerably crasser. I hope that Stevens remains on the Court for as long as he feels that he can function effectively — even if that means President Palin selects his successor.
Yesterday, Professor Anita Krishnakumar gave an intriguing presentation on her latest paper entitled “The Hidden Legacy of Holy Trinity Church: The National Narrative Canon.” A copy of her paper can be found here. In her paper, Professor Krishnakumar explores the controversial, but not often discussed, portion of the famous Holy Trinity Church decision. The well-known, and still somewhat controversial, portion of the decision finds the Court relying on the “spirit” of the statute instead of its plain language — with support from legislative history. The more controversial section of the opinion argues that even setting aside traditional methods of statutory interpretation, the statute — which was essentially an anti-immigrant labor statute — could not be enforced against the employer church because the United States of America “is a Christian nation.” Professor Krishnakumar argues that this methodology constitutes an interpretive canon for statutory interpretation: the national narrative canon. She also points to other Supreme Court opinions that use a similar methodology where the Court not only uses traditional interpretive canons, but also this national narrative canon — relying on history and public norms — in deciding the cases.
Professor Krishnakumar warns that this newly-identified, but long extant, national narrative canon poses a threat to the perceived legitimacy of courts’ statutory interpretation because it often runs contrary to the text of the statute, produces bad policy, and can create an unfair exception for a particular entity. While the national narrative canon has been used selectively, it will be interesting to see if the Supreme Court — and indeed other courts — moves more towards this public norms approach to statutory interpretation. In this age of New Textualism, it strikes me as likely that — as seen with the cases Professor Krishnakumar analyzes — to the degree its used, the Court will couple the national narrative canon with another more traditional approach to statutory interpretation in reaching its decision. In this regard, the Court will continue to make the national narrative canon less effective in terms of precedential value, seemingly serving more as dicta. However, its potential effect should not be understated, as these portions of the Court’s opinion can still have powerful effects in the political realm in ways which may run contrary to our society’s commitment to pluralism and diversity.
The Supreme Court hears argument today in the case of Jimenez v. Quarterman (No. 07-6994). The case requires the Court to determine what triggers the one-year statute of limitations for federal habeas corpus claims. Congress imposed the one-year limitation in 1996, hoping to diminish the number and success of challenges in federal court to state convictions. The statute, in pertinent part, provides that the one-year clock for filing a federal claim begins to run on “the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” This may seem straightforward enough, but Jimenez’s case highlights an ambiguity. Continue reading “When Does the Habeas Statute of Limitations Begin to Run?”
Perhaps the most amazing development in U.S. history occurred when George Washington refused to become king, and peacefully handed over power to John Adams. The concept that power will be voluntarily (or at least peacefully) handed over to someone who believes in completely different values and ideals than the current political leader is still so revolutionary that numerous countries face violence and repression at the mere thought. Let’s not take our democracy for granted. And, while there are plenty of sophisticated methods out there to resolve disputes, voting is a great one. So . . . get out there and vote!
Cross posted at Indisputably.
Our former colleague Scott Moss posted this handy election guide at Concurring Opinions.
There is nothing like traveling to an international law conference in New York City to be reminded of the fact that Milwaukee is in flyover country. As in the place where most East Coasters might stop on their way out west or perhaps have been once or twice to visit friends. It particularly struck me this time — perhaps it was the number of times I needed to explain to the international law professors from other countries where Milwaukee was located or, more likely, the piercing question from no doubt a well-meaning colleague — you still live in Milwaukee, are you happy there? — that stuck in my craw. After all, I visit New York all the time. I live there for the month of August in my grandmother’s beach house. I married a New Yorker. If I was going to be offended, one would have imagined it would have happened long ago. But no, it was really this visit, this time. Continue reading “Living in Flyover Country”
I’ve posted extensively recently on Hasbro v. RJ Softwares, the Scrabulous lawsuit, including a four-part series on PrawfsBlawg and two posts here on the similar litigation in India. See my last post for links to all of those materials, and see this article for background if you’re just tuning in.
In the PrawfsBlawg series, I noted a number of interesting legal issues that might be raised during any litigation or, even better, appeal of the dispute between Hasbro, the owners of the North American rights to Scrabble, and RJ Softwares et al., the makers of Scrabulous. In particular, I noted some surprising weaknesses with Hasbro’s copyright claims, including the blackletter rule that games are not copyrightable, lack of ownership over the Scrabble dictionary, and the apparent lack of registration of the Scrabble letter tiles. Even more troubling, I noted a possible formalities problem with all of the Scrabble copyrights dating back to the original 1948 registrations. On the plus side for Hasbro, I questioned the purpose of the under-theorized blackletter rule, although I ultimately concluded it played an important role in copyright law.
Much as I would like to see these issues play out in court, however, I may not get that chance. On Thursday, Hasbro filed proof of service with the court, showing that the defendants were served on August 13. My guess would be that a motion for a default judgement will be hot on its heels. For civ pro junkies, I’ll go into a few more details after the jump.
Continue reading “The Scrabulous Lawsuit: Heading Toward Default?”
The Court of Appeals has stayed the TRO, saying “we are aware of no caselaw which permits prior restraint of speech before an adjudication on the merits of the defamatory nature of the statement at issue.” It will, however, permit Radcliffe’s lawyers to submit a brief. I don’t think that’ll change anything.
Update: Having read the entire transcript of yesterday’s hearing, it appears that the court based its order on defamation, not because of constitutional concerns over 12.05 (he declined to entertain them), but because he thought that 12.05 did not provide for a civil action.
This is astonishing.
On Friday, in Jackson County, a circuit court judge named Thomas Lister issued an ex parte temporary restraining order against an ad run by a group called the Coalition For America’s Families. The court found that the plaintiff, Radcliffe For Assembly, had demonstrated a reasonable likelihood of success on its claim that the ad violated Wis. Stat. § 12.05 in that it “may knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election. ”
The ad apparently stated that Mark Radcliffe, a Democratic candidate for the 92nd Assembly District, supports a health care plan that would double Wisconsin’s taxes, impose 15 billion dollars in new taxes, and represent a $ 510/month increase in taxes for every Wisconsin worker. (While news reports have said that the ad also claimed that the plan would provide benefits to out-of-state residents and illegal aliens, neither the complaint nor the restraining order mention any such statements.)
The order is extraordinary for a number of reasons. Continue reading “Prior Restraint in Black River Falls”
The Supreme Court today granted certiorari in District Attorney’s Office v. Osborne (No. 08-6, opinion below: 521 F.3d 1118 (9th Cir. 2008)). At issue is whether a prisoner convicted of rape can sue a prosecutor’s office to obtain DNA evidence for more sophisticated testing than was available at the time of the prisoner’s trial. Lurking in the background is the difficult constitutional question of whether the prisoner would be entitled to obtain his release through a federal habeas corpus petition if DNA testing proved his innocence. The Supreme Court has repeatedly dodged this issue in the past, refusing squarely to hold whether or not innocent prisoners have a constitutional right to be relieved from their punishment under the Due Process Clause. See, e.g., House v. Bell, 547 U.S. 518 (2006).
The formalists on the Court have a hard time swallowing any constitutional rights that are not spelled out in explicit detail in the text of the Constitution, but I’ve always thought that “due process,” if it is to mean anything at all, must surely include a right not to be punished if one is not guilty. I think most Americans would be shocked to learn that the state may simply ignore persuasive evidence of innocence and continue to hold a prisoner for years (or potentially even execute the prisoner) despite grave doubts as to the prisoner’s guilt. New forensics technology (especially DNA testing) will eventually force the courts to tell us once and for all whether that is indeed the state of the law.
Continue reading “Cert. Grant: Do Prisoners Have a Right to Use New Technology To Prove Their Innocence?”
We were just discussing this issue on on the Marquette Faculty Law Blog last week and I gave my two cents in the comments section to that post.
Now, another example from the real world of how Facebook and work are interacting more and more (via Sky News):
Virgin Atlantic has fired 13 cabin crew after they posted comments on Facebook, calling passengers “chavs” and suggesting the planes were full of cockroaches.The airline said the employees’ behaviour was “totally inappropriate” and “brought the company into disrepute”.
It launched disciplinary action last week amid a row over a group created on Facebook, which has now been removed, about planes flying from Gatwick.
Claims that the airline’s jet engines were replaced four times in one year were made on the group’s discussion board.
Continue reading “Facebook and Work Do Not Mix, Part Deux”
I was extremely lucky to represent Marquette Law School this past Saturday night at the Wisconsin Equal Justice Fund’s Howard B. Eisenberg Lifetime Achievement Award Dinner, and the highlight of the event for me was not only my opportunity to meet and take a picture with Justice Louis Butler, but also to hear him present the Lifetime Achievement Award to Judge James A. Gramling, Jr. However, there were two things about Justice Butler’s speech that caught my attention. First, he began his speech by saying, “I’m Justice Louis Butler, and I’m not under investigation for anything.” Now, granted, this was an audience that had given him a thunderous standing ovation on his way to the podium, so he was certainly in the right crowd to make that joke. Nevertheless, it surprised me how eagerly everyone in the room applauded him; it certainly didn’t feel as though it was merely humoring him. Second, and perhaps more importantly, his tribute to Judge Gramling touched repeatedly on the Judge’s insistence in doing the right thing regardless of its popularity or public perception, both in his personal life and in the law. Continue reading “Spin Doctoring and the Judiciary”