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Bang, Bang, The Supreme Court Rules that the 2nd Amendment is Sound June 29, 2010

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So, this week the  U.S. Supreme Court  held that the 2nd Amendment right to bear arms is an individual right that cannot be impinged upon by  state and local governments.  It did not overturn Chicago’s gun control laws, but rather told the lower courts to reconsider the validity of those laws which appear to be invalid under the Court’s ruling.

 One really has to pause and wonder whether the Founding Fathers ever would have imagined that their need to be able to organize a state militia would translate into the wide spread misuse of hand guns  and a community’s inability to restrict gun ownership in the interest of safety.

‘“The reasons that motivated the framers to protect the ability of militiamen to keep muskets available for military use when our nation was in its infancy, or that motivated the Reconstruction Congress to extend full citizenship to freedmen in the wake of the Civil War, have only a limited bearing on the question that confronts the homeowner in a crime-infested metropolis today,” Justice Stevens wrote in his final dissent before retiring.

He said the court should have proceeded more cautiously in light of “the malleability and elusiveness of history” and because “firearms have a fundamentally ambivalent relationship to liberty.”’ (Entire quote is from the NYTimes article linked above.)

Stay tuned because there will be much more litigation concerning the “ambivalent relationship” between  gun control laws and liberty.   The Supreme Court has decided  that the Constitutional right to bear arms is an individual right that must be respected by the states, but has not provided specific guidance on which gun control laws may be able to pass Constitutional muster.  Predictions are that gun control opponents are loading their legal arsenal and ready to take a shot at the constitutionality of existing gun control laws in communities throughout the country.


A Judicial Canon? Judge Feldman’s Decision To Halt the Moratorium June 26, 2010

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The publicity has been nonstop since Judge Feldman’s order that granted a preliminary injunction to prevent the Interior Department from imposing a six month moratorium on deep water drilling.  The media and bloggers have been incessantly discussing the fact that Judge Feldman has owned  stock in oil companies, but have failed to adequately explain the legal basis upon which he issued the order.

Apparently, Judge Feldman has received  death threats  as his order has resulted in a media explosion.  So, let’s “unwrap” the issues….The easier, first issue (and probably the more “sexy” one for media purposes) is whether Judge Feldman should have recused himself from the case so that it could be assigned to another  judge who did not own any related industry stock.  The second, and arguably more important, issue is  whether Judge Feldman applied the correct legal standards to issue a valid and legally defensible opinion in the case.

So, issue one pertains to the  Code of Conduct for United States Judges.  This code prohibits a judge from engaging in behavior that creates an appearance of impropriety and from hearing a case in which the judge has a financial interest. (See Canons 2 & 3 of the Code) Generally, the appearance of impropriety is a somewhat vague standard that is designed to promote the public confidence in the fair administration of justice. 

 The financial conflict of interest standard is more specific and requires the judge to disqualify himself if he has any specific financial interest in the outcome of the case.  This requirement contemplates that a judge will defer the case to another judge even if the interest is as  a result of a sole share of stock, owned by the judge’s spouse,  in a company that is a party to the action.  On the other hand, an investment in a mutual fund that owns securities does not constitute a financial interest in those securities unless the judge participates in the management of the fund.

It is a bit difficult to ascertain exactly what Judge Feldman has owned since he has become a judge, but the relevant question is whether he owned any stock in a company implicated in his ruling.  All reports seem to indicate that he did not own stock in any of the companies that  are parties to the case, but did realize before he ruled that he owned a small amount of Exxon Mobile stock.  He instructed his broker to sell the stock before ruling on the case because Exxon does operate a rig in the Gulf of Mexico and is affected by the moratorium even though not a party to the case.

Thus, while legal ethics scholars may debate whether Judge Feldman should have disqualified himself or sold his stock earlier, it seems clear that Judge Feldman engaged in a thoughtful approach and does not appear to have decided the case based upon personal gain.   But, what about his decision?  Now, that we have gotten beyond his stock holdings, why did Judge Feldman issue an injunction to prevent the start of the moratorium?

The answer lies in an analysis of the application of administrative law and the standards for judical review of an agency action. Administrative law professors should be all over this case as soon as school starts this fall.   Huh? What?  Okay, so that’s why you are not reading much about the actual decision.   It is a tedious subject with lots of moving parts. As a veteran student and novice instructor, let me try to simplify….

Essentially, the Administrative Procedure Act, along with other statutes, governs various federal agencies’ conduct and when and how that conduct is reviewable by a federal court.  Judge Feldman acknowledges in his order that he must uphold the Interior Department Secretary’s decision unless there is a showing that it is  “arbitrary, capricious,an abuse of discretion,or not otherwise in accordance with the law.”  An agency decision may fall into this category when it is not supported by the agency’s own record, is implausible, and/or lacks a “rational connection between the facts found and the choice made.” (The legal cites that support these quotes are available in the order linked above.)

Judge Feldman applied this standard in his opinion and was dismayed by the lack of specific evidence presented to support the need to halt 31% of our domestic oil production and impact over 150,000 jobs by a widespread moratorium.  If you read the opinion, it becomes clear that even some of the experts that the Interior Department relied upon did not see the final draft of the report relied upon by the Secretary of Interior and do not support a wide spread moratorium.   There are other discrepancies noted such as the fact that the report and the experts talk about the complications of deep water drilling and define deep water as 1000 feet, while the Secretary’s moratorium order defines deep water as 500 feet.

While the media is reporting that Judge Feldman ruled against President  Obama ,and that is perhaps technically correct because the agency is part of the executive branch, Judge Feldman actually ruled against the Interior Department by telling it to get some more specific support for its desire to institute such a drastic action. In other words,  Judge Feldman concluded that there isn’t a rational connection between the facts presented and the choice made by the Interior Department.

Come to think of it… Judge Feldman is not the only one that has recently questioned the competence of the Interior Department and its bureau, the Mineral Management Service.  Actually, the Interior Department called for its own internal investigation before the BP accident and released a report recently detailing activities that its own Secretary Salazar called “deeply disturbing.”  An inspector negotiating for employment from the company that he was inspecting, illegal drug use, and inappropriate gifts and use of government equipment just to name a few of the activities noted.

It is not clear yet whether any of these activities directly contributed to the BP disaster, or whether Judge Feldman’s order will be upheld on appeal,  but what is clear is that Judge Feldman’s concerns and order are entitled to consideration beyond the context of his stock holdings.  So, please, before contributing to the media rant about Judge Feldman, read his order, read the administrative record and then let’s continue the conversation.

Harvard 1, Miami Dade College 0? The Arbitrary Immigration Score June 23, 2010

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Eric Balderas is 19-year-old undocumented immigrant who arrived in the U.S.with his mother when Eric was 4 years old.  He graduated at the top of his high school class and is studying molecular biology at Harvard on a scholarship.   However, all that he has accomplished was threatened a couple of weeks ago when he attempted to board a plane  to Boston from his home in Texas  having lost his Mexican passport.  Eric was detained by Immigration officials for five hours and released with a court date for a deportation hearing. However, after tremendous support from friends, advocacy groups and Harvard, the U. S. Immigration and Customs Enforcement decided not to pursue deportation.

Leslie Cocche, an 18-year-old, undocumented student at  Miami Dade College who is studying criminal justice , has not been so fortunate.  She was stopped and questioned at a Tri-Rail Station on her way to school in March. The Immigration official cuffed and arrested Leslie who was placed in a detention center for 11 days–subsequently her sister and parents have received deportation papers.  Leslie was brought to the U.S. from Peru when she was 10 years old and has been an honor student throughout school and performed over 400 hours of community service during high school.

So, why the discrepant treatment and what should be done about the hundreds of thousands of undocumented students that have come to this country with their parents?     The DREAM Act is a legislative proposal designed to pave a way to citizenship for students who were brought here as minors by their parents and  meet certain other requirements which include attending college or enlisting in the military.  The Act has stalled in Congress and frustrated proponents who see it as a way to solve the undocumented student dilemma, benefit the country and support motivated youth who will contribute to our country.  Opponents assert that these students should not be rewarded for the violations of the law committed by their parents and that the rule of law requires that we apply the law equally to everyone.

The issue is  further complicated by the inconsistent application of immigration law depending upon an individual’s location.  This inconsistency was recently documented in a study done at Stanford that reviewed immigration asylum cases.

So, regardless of which side of the issue that you may support, you still have to wonder why Eric was detained for 5 hours and Leslie was detained for 11 days….And why has Eric’s deportation been indefinitely deferred, while Leslie and her family are scheduled for a hearing  to determine whether they will all be deported to Peru?

U.S. v Arizona: A National Identity Crisis? June 20, 2010

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Arizona’s new immigration law, SB1070, was in the news again this week when Secretary of State, Hillary Clinton, while touring South America, responded to concerns about the law by indicating that the Justice Department is going to file suit against Arizona.   The Arizona law empowers police officers to require individuals to produce their immigration papers when those individuals are lawfully stopped by the police for other reasons.   The law has ignited a firestorm of controversy as it  implicitly requires anyone in Arizona who may “appear” to be there illegally to carry  proof of residency or citizenship at all times.

The proponents of the law believe that it will be another way to stem the tide of illegal immigration which disproportionately impacts their state.  The opponents are concerned about the application of law which they believe invites ethnic profiling and places an unequal  burden on a select group of legal residents and citizens.  (In Florida, there is much concern that attempts to bring the law here will create chaos in cities like Miami in which there is a huge, diverse legal population who would have to carry passports or be arrested.)

Secretary of State Clinton’s comments reflect another issue: the Constitution of the United States provides that Congress is responsible for enacting and enforcing immigration laws. (See Article I Section 8) Additionally, the Constitution provides that when there is conflict between state and Federal laws, Federal laws prevail.  (See Article VI) So, therein lies the foundation for the Federal government to object to Arizona’s law.

These are some of the basic legal issues underlying the emotional overlay of the Arizona law.  The Arizona law has served to focus attention on a complicated and controversial set of issues revolving around immigration in our country.  Depending upon which source is consulted, there is an estimated 12 – 20 million illegal immigrants in our country.  We have not devoted the resources to secure our borders or enforce our immigration laws to the fullest extent possible.  Many people enter our country legally and then over stay their visas with little repercussions.  So, there is ongoing debate as to what to do about the illegal people who reside here and how to prevent a growing problem.  The states most impacted are frustrated with the Federal government.  The Federal government has attempted and failed to pass comprehensive immigration reform in recent years, but remains the Constitutional overseer and needs to maintain uniformity in the application of the law throughout our country.

So, what is the solution?  National identity cards for all citizens?  Amnesty for those already here?  Militarization of our borders?  The questions are fairly easy to identify……What do you think are the answers?

Lawyers in Cyberspace: Florida Supreme Court Grants Another 90 Day Extension on Enforcement of Website Regulations June 18, 2010

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The Supreme Court of Florida  decided in November, 2009, that lawyers’ websites are subject to the Florida Bar’s advertising rules.  Enforcement of the new regulations has been delayed by a six month moratorium scheduled  to expire July 1st which has  now been extended by another 90 days from whenever the Court rules on the petition filed by the Florida Bar that contains the draft of the new rule.   Why is this worth mentioning?  Well, the problem is that probably every lawyer who has a website in Florida is in violation of the new regulations.  And why are the professionals who are licensed to practice law, not in compliance with the law?

 Essentially, the issue revolves around the phrase “information upon request.”  If you are surfing the internet and looking for a lawyer, the rules used to say that the lawyer’s website was information that you were requesting rather than advertising.  Under the new regulations, the website is an advertisement regardless of how long it might have taken you to find it.  So, the lawyer is not allowed, on the home page, to have testimonials from clients or otherwise have information about past achievements–the reasoning is that this type of information is inherently misleading.  If the lawyer places a disclaimer box with certain language explaining that your case may be different, etc and then you are required to click various boxes acknowledging the information and indicating that you want to see the remainder of the website, then you will be able to peruse the entire website.

Lawyers advertising their services has caused controversy for years.  The debate usually involves a discussion of whether law is a profession or a business and the negative perception created by lawyers marketing their “wares” and appearing to be “ambulance chasers” or otherwise preying on unsuspecting members of the public.  The U.S. Supreme Court  has recognized that the legal profession is entitled to the use of commercial speech, but  has also recognized that states may regulate the speech when there is a compelling state interest.  Generally, it is a balancing test that considers the public’s right to the “free flow of information” versus the state’s interest in protecting the public from misleading information, coercion, invasion of privacy, etc.

Interestingly, many of the students in the  class  that I taught with Scott Rogers this spring, Professional Responsibility and Mindfulness: Ethics for Lawyers in the Digital Age, thought that all of the advertising rules for lawyers are extreme.  These students have grown up with the internet, deem law to be a business and believe consumers are more savvy these days.  The “older generation” in Tallahassee disagrees and so it goes…If you are a Florida lawyer, there is a website consultant awaiting your “click”  right now.

A Wedding of Law & Morality: Same – Sex Marriage on Trial in San Francisco June 16, 2010

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Closing arguments are scheduled today in the case in San Francisco in which the legality of  same-sex marriage is on trial.  The Supreme Court of California had deemed same-sex marriage to be legal and the voters of California passed Proposition 8 to negate the Court’s ruling. Proposition 8 amended the California Constitution to define marriage as a union solely between a man and a woman.  The issue before the Federal District Court is whether marriage is a fundamental U.S. Constitutional right.  Regardless of what this court decides, the case is likely to be appealed to the U.S. Court of Appeals for the 9th Circuit  and ultimately to the U.S. Supreme Court.

If law is said to be a snap shot of a society’s cultural values at any point in time, this trial is a prime example of that phenomenon.  The judge in this case has heard the testimony of psychologists and social scientists and has told the parties to be prepared to answer questions such as whether sexual orientation is a choice and whether same-sex marriage threatens the institution of marriage.

This is not the first time that our society has defined the right to marriage by resort to the legal system.  The U.S. Supreme Court decided Loving v Virginia in 1967 and declared that a  law that prohibits inter-racial marriages is unconstitutional.

The Supreme Court’s ruling in that case overturned a decision in Virginia in which the judge had opined: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

Forty-three years later, the courts are once again being asked to define social norms within a Constitutional context. The people of California spoke as a majority when they voted for Proposition 8 and one might argue that in a democracy, the majority rules—-but if a fundamental Constitutional right is at stake, a majority of voters in one state does not qualify as a the final word.  The U.S. Supreme Court is the final arbiter of the Constitution.

While waiting for the courts to determine the legal fate of same-sex marriage, one wonders the context in which this debate will be viewed when we consider the issue forty-three years from now.  It is worth considering the words of Mildred Loving which she prepared for a press conference  in 2007 commemorating the forty-year anniversary of the Supreme Court decision in her case.  What follows is an excerpt from her statement.

God’s Plan?

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people civil rights.

Freedom to Marry for All

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Society’s Empathic Formula: Law + Human Error = Judicial Discretion June 15, 2010

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 The U.S. Supreme Court rendered two decisions yesterday being categorized by the New York Times as “A Good Day For Judicial Discretion.”  In a 7-2 decision, the Court provides Albert Holland with another chance to argue that the statute of limitations for filing his federal habeas corpus petition should have been tolled due to his lawyer’s extraordinary negligence in  failing to appropriately communicate with his client and failing to timely file the paperwork necessary to maintain  Mr Holland’s right to appeal.  Mr Holland was convicted of first degree murder in Florida’s state court and remains on Florida’s death row.  The dissent in the case submits that the law, as stated, does not provide this type of flexible result and that the injection of equity dilutes established law. (See pdf link to full case  within the link to the editorial)

Beyond the  technical, legal analysis of the standards for tolling the particular statute’s time limits in this case, is the compelling question of when empathy and equity should be infused into the established code of law.  If as a society, our laws should reflect our morals and ethics, then when the laws are applied in a manner that the “majority” views as a miscarriage of justice, should  there be some reconsideration or distinction acknowledged between the letter of the law and the spirit of the law?

Justice Breyer writes the majority opinion and suggests that an absolute adherence to the letter of the law could result in “the evils of archaic rigidity.”  Conversely, Judge Scalia contends, in the dissent, that Judges do not have the authority to “tinker” with the Constitution or the laws of Congress regardless of how compelling the facts of a case may appear.

So, in an enlightened democracy, do we apply the law strictly as written and urge legislators to reevaluate and revise the law if it’s application appears unjust? Or do we cloak our judges with discretion and rely on their insight and wisdom to reach a just result?

Free Market, Free Speech Or Back to the Future?—The FTC’s “Reinvention of Journalism” Study June 14, 2010

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Interesting electronic times in which we live….Our country prides itself on our Constitutional rights of free speech and  free press and rightfully so.   Of course, the Founding Fathers who established these rights did not have laptops or iPhones.  (It’s a shame because some of them probably would have had great blogs—Ben Franklin comes to mind.)  So, its hard to imagine exactly what they might have thought about the government considering whether  to “save” the newspapers from financial ruin.   Clearly, bailouts have been seen by various contingents of the public  as  necessary on the one hand and as unseemly on the other hand. 

 The Federal Trade Commission is studying the “problem” of the newspapers’ financial woes and brainstorming for potential government assisted solutions.  Query:  Should the government be involved in financial assistance for the newspapers or should a free press exist in whatever format that the  current communication technology and market forces dictate?

Helen Thomas: The Consequences of the First Amendment June 13, 2010

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Free speech is a sacred tenet of democracy and humanity.  However, free speech does not absolve an individual of the consequences of her speech.  Legally, as a society, we have decided that there are limits to free speech.  The fact that the  proverbial example of  yelling “fire” in a crowded movie theater ( when there is no fire) and  thereby causing pandemonium and physical danger is impermissible is established law.  And of course, lawyers are generally not allowed to disclose their clients’ confidences or defame judges.

However, even when you are well within you broad legal rights to say whatever is on your mind in our country, there still are and should be consequences for your speech.  Leonard Pitts, who received the Helen Thomas Spirit of Diversity Award in April, has a terrific column explaining that even someone of Helen’s age and accomplishments doesn’t get a pass on bigotry.  And Sara K. Eisen, the Word-Well blogger, did a wonderful piece explaining why the anti-Semitism “thing” continues to inflame, but in the context of history is really nothing new. 

The historical and seemingly innate predisposition of human beings to judge other human beings based upon a limited view of the distinctions among us, will only change, I submit, when we begin to view ourselves with an emphasis on our similarities and the collective consciousness to which we all ultimately belong.

Abortion Ultrasound Bill: A Picture Worth Any Number of Words? June 12, 2010

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So, the U.S. Supreme Court has said that a woman has a choice as to whether to have an abortion and now legislators in Florida would like to require a woman to see ,via ultrasound, what it is she is aborting and hear a detailed description from her doctor. Oh, and by the way, this medically unnecessary ultrasound will not be covered by insurance so this woman would have to have the funds to pay for this required tortuous experience.   Of course, there are some exceptions and opt out clauses, but really where is government going with this intrusive premise? 

Charlie Crist vetoed the ultrasound abortion bill.   He is being labeled untrustworthy  by Republicans who are also upset that he left their party.  In fact, one representative, has been quoted as saying that Crist has not only lost his party affiliation, but his moral compass as well.  Query: where is the morality in a law that taunts a woman who has made a legal choice and then further financially penalizes her?

The issue seems to be at what point does  the incorporation of one’s personal morality into legislation cross the privacy line and become punitive rather than protective? Law should reflect a society’s values, but not everyone’s values prevail in a democracy ruled by the majority and a system of checks and balances.  There is certainly much valid debate over the ethics and morality of  abortion; however, regardless an individual’s personal view, abortion is legal in our country.   Crist’s veto serves to limit government’s intrusion into a highly personal matter and thereby prevents government from passing  judgment, in a callous manner,  on a woman’s private moral choice.

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