Fight The Hypo » News You Can Use

What Do You Ask Stevens’ Successor?

Casebook Sherpa — Fri, 09 Apr 2010 15:45:42 +0000

Justice John Paul Stevens is retiring “effective the next day after the Court rises for the summer recess this year.”

Fight The Hypo contributor Magnus Wellborn were discussing how we wished that these confirmation battles could focus more competence, substance, and intelligence rather than this carefully, choreographed dance designed to obscure backroom discussions and avoid saying anything of note. It’s really just political theater, the players in which are so careful to avoid saying anything that media and opponents might demagogue that it borders on comedy.

I’m sensitive though to how the issues at play – abortion, gun rights, privacy, security – are important, though. However, the focus on what a judge believes about the policy questions behind these matters can sometimes keep us from understanding how a good and brilliant lawyer approaches the legal questions and implications behind them.

Of course, this is in no small measure the result of asking the Court to decide matters of policy and define the scope of certain rights of individuals (see, e.g., privacy) and the scope of power of the federal government (see, e.g., commerce power). I get that.

So, you’re a member of the Senate Judiciary Committee. What do you ask Justice Stevens’ replacement?

I am becoming quite interested in this question we touched on regarding the pending constitutional challenge to the health insurance reform bill, namely are there are any meaningful legal constraints on Congress’ ability to regulate or mandate certain kinds of individual behavior and choice? Okay, so it’s not an exciting line of inquiry, but to me it can get to a nominee’s views of the nature of federal power (legislative and judicial) and which questions should be decided by which body and how they should be decided. So… IF (and this is a big IF) you could engage the nominee in any sort of discussion of this issue, my initial line of questioning might go something like this:

Let’s talk about the Commerce Clause. How would you describe the nature of the limits, if any, that Lopez and Morrison place on Congress’ Commerce Power?

So, is that limitation a broad limit on Congress’ ability to regulate traditionally intrastate non-commercial activity? Or is it a narrow exception?

If it is a narrow exception, what is the court’s role in assessing whether Congress has overstepped its commerce power and how do you see that role changing?

Are there areas of current or older Supreme Court jurisprudence that might be revisited in order to limit Congress’ commerce power?

Do you generally view it as a positive development that Congress is able to exert its will over matters it deems of national importance with fewer legal or formal constraints other than the Bill of Rights?

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This IS a big F-ING deal – the constitutional challenge, that is

Casebook Sherpa — Wed, 24 Mar 2010 14:43:58 +0000

Joe Biden is worth his weight in gold for his gaffes and ill-timed quips. When he whispered to the President in range of a live microphone before the signing of the health care bill: “This is a big f—ing deal!”, you could see the President purse his lips. At least one of them realized there was a live mic right there, though it would have been classic if he’d said, “That’s f—in’ A right.”

The health bill is a big deal. No doubt about it. Sure, I think it’s misguided and unfunded. But it sets up a huge new government program that, it’s easy to say fairly, is one giant leap towards a single-payer health care system in the United States. That’s a big deal.¹

Anyway, to this law student trying to write a blog, the bigger f—ing deal is the pending constitutional challenge to the law. Most of the media coverage is worthless, but I AM really f—ing grateful for some pretty f—ing serious dialogue about what a constitutional challenge looks like and what the f—ing issues are. This one in particular is well worth the lengthy read.

I’ll poorly paraphrase the main arguments, which really focus on a discreet issue: does the Constitution anywhere authorize an individual mandate to purchase health insurance through either the commerce, taxation, or spending powers?

Challengers argue that Congress lacks the authority under the Constitution to tax people for not engaging in a commercial transaction (purchasing insurance). In other words, you can’t regulate person’s “inactivity.” The Commerce Clause does not warrant such intrusion because of not buying something is not commerce and a person’s decision to not buy health insurance is not vital to the overarching regulation. The taxing power does not support such an action because it’s an excise tax on existing, rather than a tax on income or consumption. This makes the tax (although revenue raising) a purely regulatory or punitive measure, which courts may view as unconstitutional. And the spending power does not support it because the tax itself isn’t really spending.

The supporter of the bill (and opponent of the constitutional challenge), says, in essence, “I call bullocks on all that.” At its heart the mandate is simply an exercise of Congress’ authority to tax and spend for the general welfare. This authority is broad and, basically, unlimited. The tax in question here raises revenue and is part of a broader regulatory scheme, much like most, if not all, tax provisions. Plus, the health care bill is well within Congress’ power to set economic policy, which the courts have avoided invalidating since Lochner. Congress has broad, discretionary authority to enact economic regulations that is based on decades of both Supreme Court jurisprudence and lawmaking that covers areas as diverse as education, gun policy, crime, estate taxes, and environmental protections. Where there are overarching areas of public concern that transcend state boundaries, the federal government is the only body qualified or authorized to regulate. Plus to suggest that not participating in a national health plan is not an economic decision is as irrelevant as it is dumb.

Perhaps it shouldn’t be though. Some believe this challenge may place us on constitutional ground unexplored since Lochner.

If defenders of the bill in this constitutional dialogue are correct, the Constitution really places no structural constraints on Congress to enact any regulation or mandate. The only constraints which exist are those which protect fundamental rights and those are protected only if Congressional action fails to withstand the strict scrutiny of the courts. A citizen’s only recourse is through redressing the government with her concerns or the electoral process.

Opponents of the bill argue that the Constitution is meaningless without the structural constraints placed on the federal government. Logically, you might add to this argument that federalism is dead as any sort of mechanism for defining spheres of power within our system.

The Constitution is as much a structural document as one that defines “fundamental rights.” The concepts are inextricably interrelated. To the extent structural constraints are eroded, our fundamental rights are imperiled as the federal legislature enacts economic legislation that courts refuse to second-guess. Yet, absent any meaningful constraints on legislative power, the courts are the sole arbiter of rights. I like judges and courts and lawyers, but not to tell me what to do. Asked in the form of a question: Can you have a “scheme of ordered liberty” without any real constraints, or order, imposed on government authorities other than periodic elections?

The concentration of power and authority in Washington (and, incidentally, in large corporations) is a direct threat to individual liberty. While such authority is often exercised for the good of people, it is far more difficult to hold accountable those who wield it when there are no discernible bounds to it.

I suspect the challenge will come to naught, colliding as it does with a host of precedents that grant Congress nearly unlimited authority to regulate even non-commercial, local activity through the Commerce Clause, ala Wickard. Since overturning Lochner, courts grant substantial deference to Congress when it comes to economic regulation.

But perhaps they shouldn’t.

Let’s return to Lochner. A court could defend a position that while there are no structural, constitutional constraints to enacting the health reform bill, the court does reserve the right to ensure that such regulations do not imperil individual liberties. Even if Congress has authority under the Constitution to enact an individual mandate to purchase health insurance with a fine for non-compliance, if such law places too heavy a burden on the individual right to contract or the right “to be let alone” by the government (to use the “right to privacy” reasoning), then courts can overturn that regulation. That would be the ONLY way to check congressional power, whichever party wielded it.

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¹ On a related note rant, we have a bunch of chicken-s*** leaders who refuse to level with us about our real choices are about taxes and spending. The CBO estimates for this bill are a joke; the CBO itself estimates their accuracy at “50/50.” Makes you wonder why the President can sound so certain about the bill’s budget impact. Perhaps that’s because, as a people (to the extent one can define that term), we refuse to believe trade offs will one day be necessary. Hands off my Medicare and unemployment, you socialist bastard! So long as we get ours and those taxes come after we’re dead, right? I guess the election will tell what the “people” think about this.

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Furor Over the Cheney Ad

Casebook Sherpa — Mon, 08 Mar 2010 21:13:21 +0000

The furor generated by the Liz Cheney ad – or rather the organization that Cheney run, Keep America Safe – is interesting to me. (Ad and story here)

Isn’t it all just a question of whether a current client should consent to a potential conflict with the interests of a former client? Or is it really something more?

By now, you’ve probably heard about this discussion (or rather shouting match). The organization produced an ad, demanding to know the identities of those current Justice Department lawyers who were hired by the Attorney General, are now engaged in formulating detainee policy (or prosecuting detainees), and who formerly represented alleged terrorists in custody. The furor has centered on the risk this ad has of demonizing (McCarthy-style) those who defend bad people:

The ad—in one frame, a headline refers to the DOJ as the “Department of Jihad”—has been denounced as McCarthyism by liberal critics. It’s also being condemned by a growing number of former George W. Bush administration lawyers. Ted Olson, who served as Bush’s solicitor general, says he has the “greatest respect” for lawyers who represented Gitmo clients; they were acting “consistent with the finest traditions of the legal profession,” he says. He calls the attacks on one of the targets, Deputy Solicitor General Neal Katyal, “outrageous.” Four years ago, Katyal represented Salim Ahmed Hamdan, Osama bin Laden’s former driver, in a landmark Supreme Court case that overturned the military tribunals that Bush created. (Katyal did a “marvelous job” on the case, says Olson.)

(links omitted)

I get that point. But I also get the importance of asking the question: does their prior representation of detainees impact the ability of these lawyers to carry out their duty in the Justice Department?

Setting aside the question of whether the ad itself is the most constructive way to raise this question, people have a right to ask the queston, right?

These lawyers are representing us today. Because their prior representation of the detainees could present a conflict isn’t the question merely one of an actual or potential conflict with a former client? If it is, shouldn’t it be disclosed and consented to by the lawyers’ clients? Or is the fact that they’re working for the government change the calculus?

It doesn’t work like that, I know. But raising the question is a way for a democratically-governed people to shed light on the potential conflict and, in a manner of speaking, consent to it. Is it not?

Setting aside whether there can really be a constructive dialogue over this or whether there is really a way to determine whether people consent to something like this, raising the question is not unreasonable it seems to me. Just as it’s not unreasonable to push back with concern asking the question at all (let alone in such a provocative fashion) would result in the demonization of those who have represented the accused.

Is it even possible to raise the point without unleashing the fury?

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snoWTF and the labor theory of property

Casebook Sherpa — Tue, 09 Feb 2010 13:31:49 +0000

On Sunday morning, I measured 25 inches of snow on my car. We’re allegedly supposed to get 10 more inches today and tomorrow. We’ll see.

While I remember some big snows early in life when my family lived in the Poconos, I don’t think I’ve seen a bigger snowfall where I live. I will say the 21 inches we got in Pennsylvania in 1994(?) yielded the most epic series of snow football games the Keystone State has ever, or will ever, see. We’re talking the 11-on-11, 5-hour, triple-overtime, smashmouth variety.

So anyway, Sunday morning. I spent a few hours shoveling out our cars. At our complex we get one reserved space and a permit to park in an unreserved guest spot. Upon shoveling out the guest space where I’d parked on Friday, I got this overwhelming fear that I never wanted to leave that space. Looking around, there were a bunch of empty guest spaces that yet to be shoveled at all. What if I left to pick some stuff up, and came back and my space was taken? Two-and-a-half hours of work wasted.

Of course, you can do this…

That’s obnoxious to me. But my sense of entitlement to the space I had cleared only grew. And placing a chair there only seemed more reasonable, the more I thought about it.

I realized that I was experiencing a mind meld with John Locke. His labor theory of property holds, poorly paraphrased, that a natural right to property flows to those who invest labor in improving it. That right includes the right to exclude others, those who did not participate in improving the property. This right creates a positive encouragement to engage in improving property which, in turn, has benefits (albeit somewhat minimal) to the community at large. The idea is that because man owns himself, he owns the product of his labor and it should not be taken from him by force or by sneaky, parking space stealing, good-for-nothing neighbors who should shovel out their own space and reserve it with their own lawn chair. (It seems I’m not the only one to point this out in the wake of the weekend’s snowstorm.)

By the authority of John Locke, therefore, I exert my natural rights over guest space #10 at our condominium complex.

Take that, you parking spot stealing bitches.

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Random Rumination on Citizens United

Casebook Sherpa — Tue, 26 Jan 2010 15:44:10 +0000

Dr. Bombay and I talked about the Citizens United decision recently. If your head has been so far in a casebook that you missed it, the bottom line is that the Supreme Court ruled that First Amendment protections apply to corporations as much as to individuals. Corporations as associations of individuals, therefore, may make independent expenditures to engage in “express advocacy,” calling for the election or defeat of specific candidates.

As with many things political right now, my response was rather ambivalent.

Frankly, I’m open to seeing how it works. I’m certainly sympathetic to the idea that the First Amendment provides a blanket protection for political speech, regardless of corporate identity. My gut also tells me that (a) corporations like Apple, Google, Microsoft, and Exxon-Mobil will tread lightly in this arena and (b) allowing such direct expenditures and requiring disclosure of donor identities to groups like Citizens United will increase transparency, a principle that should be central to political spending.

Because of this my negative reaction to the decision was more tempered than Dr. Bombay’s. However, I’m sympathetic to the notion that the use by corporations of economic power can distort the political marketplace. That’s really the heart of the competing strain of decisions. Frankly, I could care less whether corporations have the fundamental “right” to air advertisements in support of one candidate or another and I doubt the Framers felt they were granting such a right. Call me a raging liberal, but the idea of yet more money flooding the process does not sit right with me and the people should be able to control the flood gates.

Overall, I hate how such decisions are made. Call me naive, I guess.

I’m still open to seeing how this all shakes out. However, I know plenty (just about all) of my friends on the right will disagree with me when I say that I tend to agree with then-Justice Rehnquist’s dissent in Bellotti, discussing a Massachusetts law which limited the ability of corporations to air political ads except on issues which materially affected their business (this did not include tax legislation and policy):

The question presented today, whether business corporations have a constitutionally protected liberty to engage in political activities, has never been squarely addressed by any previous decision of this Court. However, the General Court of the Commonwealth of Massachusetts, the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible. The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considerable deference from this Court. I think it quite probable that their judgment may properly be reconciled with our controlling precedents, but I am certain that under my views of the limited application of the First Amendment to the States, which I share with the two immediately preceding occupants of my seat on the Court, but not with my present colleagues, the judgment of the Supreme Judicial Court of Massachusetts should be affirmed. (footnotes omitted)

Of course, the idea that states ought to have a fairly broad leeway in answering this question won’t sit well with friends on the left. The point is that this is a question for the political branches, at least insofar as the scope of First Amendment protections afforded to entities created by law and not to natural persons.

This is the problem with defining so much as a “fundamental right.” Sure, I love my rights as much as the next guy. But when such rights, and so many of them, are “fundamental” they become, by definition, beyond the reach of the political process. And when that fundamental right is incorporated on the states, you preclude just about any regulation of that right. The most famous (infamous?) example of this is abortion and the right to privacy.

Citizens United is a great example of how a fundamental right stands… until it doesn’t. Until another unelected group of justices has a new conception of that fundamental right that they discover and define quite apart from the political discourse. But when you are faced not only with court precedent but also with the measured decisions of dozens of legislatures, it seems the height of judicial arrogance to think you can contravene that authority.

I admit that there are certain principles that exist beyond this back-and-forth of political whimsy. Freedom of speech is certainly one. To me, an unborn baby’s right to life is another. In each case, I think there are areas of grey that you can make a plausible case for both sides. And I can certainly see how a not-for-profit corporation might reasonably fit within the meaning of the First Amendment guarantee of free speech. They were arguably organized for the express purpose of political participation, receiving voluntary donations from citizens to advance a political idea.

A for-profit corporation, on the other hand, is organized to make money. It only incidentally participates in politics as a means of protecting its interests. A corporation that engages in political speech as only incidental to its core purpose, exists only because of state law, and may have access to a quantity of resources ample enough to determine election outcomes seem like reasonable candidates to have their express advocacy restricted by the representatives the people elected to speak for them.

All I’m saying is that on certain questions, the people should decide and courts should stay out of it. What those questions are is a discussion for another post.

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Of Tiger and Florida’s Sunshine Laws

Casebook Sherpa — Tue, 01 Dec 2009 14:49:49 +0000

Notwithstanding our concerns about exams, we thought we’d drop a quick line about the Tiger situation.

By now you’ve all seen or heard something about the Tiger Woods saga. Early last Friday morning he ran his SUV into a tree in his neighborhood. At first it was reported he was in serious condition. Then he had been treated and released for minor facial lacerations. Originally it looked like his wife, Elin, ran to the SUV smashed the back window with a golf club and pulled the world’s greatest (and semi-conscious) golfer to safety. TMZ subsequently reported that the injuries were caused by Elin in a domestic dispute from which Tiger was fleeing… and, well, you get the idea. Read more here and here (the latter links from TMZ is particularly interesting)

Where we start to care about this story from a legal perspective is the fact that Tiger repeatedly refuses to speak with the police to provide a statement clarifying the events of that evening. He is perfectly within his rights to do that. From all I can tell there is no formal criminal investigation, Tiger has not been detained, no charges have been filed. If he doesn’t want to speak with the police, he doesn’t have to. And even if he does speak to them, he is not under any obligation to answer questions he doesn’t want to answer and would be free to leave (or kick them out) at any time.

The police’s interest is several-fold, I’d imagine. First, Tiger shouldn’t receive special treatment (and is likely being more aggressively pursued given this concern). Second, if this is actually a case of domestic battery (by one or both of them), there could be a threat of death or serious bodily injury to one spouse, to their children, or all of the above. And, third, if we’re looking at a potential divorce, evidence of domestic battery is significant in determining custody and other such issues.

But why wouldn’t he do it just to clear the air? Assuming for a moment that Tiger is not the intensely private, control freak we all know him to be, one big reason could be Florida’s aptly-named sunshine laws.

§ 119.01(1), Fla. Stat. says:

It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.

So any statement that Tiger provides and, more importantly, any medical records the police are able to obtain from that night could be available to the public, unless these records are considered “active criminal investigative information.” Section 119.071 of the Sunshine law exempts release of such information. Per the Attorney General’s website:

Arrest and crime reports are generally considered to be open to public inspection. AGOs 91-74 and 80-96. And see AGO 08-23 (officer trip sheets revealing identity of officer, location and hours of work and locations to which officers have responded for emergency and non-emergency purposes are public records). However, s. 119.071(2)(c)1., F.S., exempts active criminal intelligence information and active criminal investigative information from public inspection. To be exempt, the information must be both “active” and constitute either “criminal investigative” or “criminal intelligence” information. See Woolling v. Lamar, 764 So. 2d 765, 768 (Fla. 5th DCA 2000), review denied, 786 So. 2d 1186 (Fla. 2001) (in order for a record to constitute exempt active criminal investigative information, “the claimant must show that the record is both ‘active’ and that it constitutes ‘criminal investigative information’”).

Thus, if a crime report contains active criminal investigative information, the criminal investigative information may be excised from the report. AGO 91-74. See also Palm Beach Daily News v. Terlizzese, No. CL-91-3954-AF (Fla. 15th Cir. Ct. April 5, 1991), holding that a newspaper was not entitled under Ch. 119, F.S., to inspect the complete and uncensored incident report (prepared following a reported sexual battery but prior to the arrest of a suspect), including the investigating officer’s narrative report of the interview with the victim, since such information was exempt from inspection as active criminal investigative information and as information identifying sexual battery victims. See s. 119.071(2)(c) and (h), F.S.

Unless there is a criminal investigation here, Tiger’s decision not to talk to the police is more PR than legal. In fact, it’s not at all legal since he’s not under investigation or facing charges.

So, putting my PR hat on and based on what we know publicly (which could be very little and quite inaccurate based as it is on speculation), I’d make very clear to Tiger that silence isn’t making this go away. For whatever reason, the police are pursuing this thing despite the fact that this is really just a traffic accident. Because it isn’t going away, the first task is to remove the police form the story. Each time they knock on his mansion door, it’s a fresh news story. At this point, I see very little reason why he wouldn’t go to the police and say something to the effect of: “Elin and I got into an argument and I stormed out. We’ve worked out our differences and neither of us intends to press any charges. I’m happy to answer questions about the accident itself, but as far as we’re concerned questions about our marriage and our family are irrelevant to your investigation.”

I’d advise this even though I generally agree with Tiger’s silence about his personal life and general disdain for the scandal-hunting of many in the media. Even if there were some sort of domestic dispute that involved Elin hitting Tiger in the mouth with an 8-iron, if he doesn’t want to press charges, I think that brings the matter to an end. The hope would be that this statement would give the police sufficient information on which to base a report and wrap up their inquiry.

The next issue to address would be this deal with the woman in New York with whom Tiger was allegedly having an affair. If said affair did indeed lead to the accident (and any dispute that may have caused it), there may be some PR fallout there. But thus far the woman is adamantly denying it, and I suspect her retaining Gloria Allred as counsel is as much for publicity as it is for legal protection. If nothing happened with this woman, Tiger need only say publicly what he tells the police. Let people think what they may beyond that. If something did happen, it wouldn’t hurt to come clean in a one-on-one interview with someone he trusts and make clear that it’s over, he understands how badly he hurt Elin and disappointed his fans, but that he’s human and he’s trying to make things right. He’s popular enough that this would set aside any anger over his actions. (unless of course something far more Kobe-like is afoot here, in which case this is a whole new ballgame)

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Don’t Mess with My Laptop

Casebook Sherpa — Mon, 23 Nov 2009 18:46:27 +0000

Look. How many times do I have to tell you, criminals? Don’t mess with a law student’s laptop on the eve of the exam period…

(H/T: Above the Law)

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Of Laches, Redskins and the Limits of Law

Casebook Sherpa — Sun, 22 Nov 2009 17:35:24 +0000

Laches. This equitable doctrine allows a judge to dismiss a case because a party has slept on its rights, having waited too long before bringing an action in court.

You’ve heard of it. Have you ever seen it applied? I rarely have. So I love it when it happens.

The Supreme Court recently refused to hear an appeal of a lower court’s dismissal of a lawsuit against the NFL’s Washington Redskins, upholding a lower court’s dismissal of the case based on the doctrine of laches. Whether or not they have a colorable claim under the law is a separate question since they waited too long to bring their claim.

The lawsuit was filed in 1992, when seven activists challenged a Redskins trademark issued in 1967. They won seven years later in a decision by the Trademark Trial and Appeal Board, which said the name could be interpreted as offensive to Native Americans.

The team appealed to federal court. Judges at the district and circuit levels said the activists’ trademark cancellation claim was barred by the doctrine of laches, which serves as a defense against claims that should have been made long ago.

The activists argued that disparaging trademarks can be challenged at any time, citing a decision from the U.S. Court of Appeals for the 3rd Circuit. The decision was written by then-judge Samuel A. Alito Jr., who now sits on the Supreme Court.

But the U.S. Court of Appeals for the D.C. Circuit said that was merely a “suggestion” of how to interpret the law.

Now I’m not big on changing team names in most cases, and certainly not using the courts to do so. I wonder whether we get into these disputes and end up making much ado about nothing. However, I must admit that my growing animus toward team owner Daniel Snyder may contribute to my interest in this story.

But assuming that the term Redskins has little or no racial prejudice embedded seems delusional, despite some disagreement over the origin of the term.

Whatever said disagreement is though, the only substantive legal ruling holds that the term “Redskins” is disparaging and a trademark in that name violates the Lanham Act, which prohibits issuance of trademarks “…which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” applies. Lanham Act § 2, codified at 15 U.S.C. § 1052(a).

Whatever the original meaning of the word, many today view the term as frought with prejudicial and racist overtones. So how does one define disparaging? The Trademark and Appeal Board offered this test in ruling that the term “Redskins” is disparaging in the Harjo case:

First, the Court or Board determines the likely meaning of the matter in question [taking into account, not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods and/or services, and the manner in which the mark is used in the marketplace in connection with the goods and/or services;] and, second, whether in view of the likely meaning, the matter is scandalous to a substantial composite of the general public.

So the law is, what the law is. Right? Substantive principles are limited by reasonable procedural rules in order to promote stability and reliance on settled matters of law. Here, the law prohibits both disparaging trademarks (like “Redskins”) and dismissal of cases under equitable principles (like laches).

That’s one way to view it, and is beneficial in the sense that it recognizes the limits of law in dealing with situations like this. There are, after all, myriad other ways to challenge the name – boycotts, PR campaigns, congressional hearings, etc.

But on the other hand, because Native Americans aren’t a large market and the Supreme Court has ruled, it doesn’t really matter much does it? At least that’s how the argument goes.

I do wonder sometimes, though, how symbols like this keep our prejudices alive for another generation, particularly against those who lack the political clout of other groups who have had great success in turning the tables against such mentalities. (On a side note, how on earth do you measure that? And where do you draw the line? Can you even develop a justiciable standard? What if data show opinion is at-best mixed, like it is here, among the community in question?)

In writing this, I don’t pretend to understand the plight or mentality of Native Americans just because “I have friends who are Native American,” but I did receive this interesting e-mail from one of those friends last week:

Some who share my background have deep offense at any reference to brave, warrior, chiefs, etc. I understand their position however I don’t share the same offendedness, (if that’s a word) with exception for the redskins. I feel as long as there are cowboys, and patriots, and other “human” mascots out there, then braves and warriors are not only debatable, but usually picked from a place of affection, or at least respect indicating power, or fierceness. Furthermore some young natives use this as a positive, beading these mascot images and wearing them a kind of a subconscious national endorsement on their identity. “yeah we are still warriors” etc…

With that said, still many non Natives don’t know the origins of the term redskin. Redskin was a derogatory term used in its era equaled only by the modern day “N” word. I believe those in DC changed it from braves to redskins for prejudicial reasons… (they were Boston Braves first before they moved to DC). DC had problems with the “Indian Agenda” during that time, creating policy that kept flipping between isolation, assimilation & termination. The term redskin was the term of choice for the terminationalists. I think this is why offense at “redskin” is shared by most natives… We are split on many of the others, but “redskin” is really a slap in the face to a people group, by a team representing the Nation’s Capital.

If my friend is accurate in describing how Native Americans generally view such things (and I have no reason to question that), there’s some wiggle room with the use of Native American mascots, but this suggests at least some Native Americans think the Washington NFL mascot goes too far in disconnecting the mascot from positive qualities of Native American peoples.

But if we accept the law as-is, we have reached the ends of the remedy it can provide against enforcement of this particular disparaging trademark. So the law needs to change, the team name needs to change in response to other types of pressure, or we simply need to accept that vestiges of prior prejudice remain that, nonetheless, might still serve to teach us valuable lessons of our mistakes.

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Google Scholar Adds Case Law

Casebook Sherpa — Tue, 17 Nov 2009 15:19:08 +0000

If you haven’t already, head over to Google Scholar to search for case law. It’s a really good start, I think, and is a nice addition to the growing stable of open source legal research tools that is out there. Here’s what a search looks like:

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“Not Sure Where I Got This From…”

Casebook Sherpa — Thu, 29 Oct 2009 22:52:06 +0000

As a general rule, when your law school class is in open discussion about a current political issue that people barely understand (here: derivatives) it’s time to move on already when someone begins a statement with: “I’m not sure where I got this from, but…”

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