CDAAIIAFEBAMN v. Nobody

UPDATE 2: Well, that didn't take long. The 9th Circuit affirmed the district court's dismissal of the case in a relatively short decision. Most of the discussion is focused on Yudof's 11th Amendment claim, not the merits. Here's the takeaway: "The bottom line is that Wilson II remains the law of the circuit, and the district court faithfully applied it."

UPDATE: Asking a circuit panel to overturn a prior panel risks an opinion like this.

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A few days ago, the Ninth Circuit heard argument in Coalition to Defend Affirmative Action v. Brown. (The appellant is known as BAMN, although a more correct acronym would be CDAAIIAFEBAMN, even if you drop all the articles.) Like other important cases, the Court recorded the hearing and uploaded it online.

Now, my general legal ignorance is particularly acute in this area, so I can't comment on the strength of either argument. But the video gives some clues, and here are my observations:

1. There is no quicker way to lose an appeal than asking a circuit panel to overturn a prior circuit panel. They can't. So unless you are putting all your eggs in the basket of en banc reconsideration*, you have to put 110% of your energy into distinguishing the precedent. It should be your No. 1 objective. And here, the appellants don't really seem all that into doing this.
   
   * This would be a pretty dumb strategy, by the way.
   
   
2. If you stop getting questions, and the judges are just looking bored while you drone on, then you've already won or lost the panel. In either case, take the hint and sit down.

What I find most interesting is that, like the Prop. 8 case, the California government has refused to defend the constitutionality of the voter proposition. In fact, they argued against it, leaving the proposition's proponents to defend it in court. Now, I personally think the voter initiative system is terrible, and I vote against nearly every voter initiative as a matter of principle. But still, voter initiatives are the product of direct democracy, and they are constitutional amendments to boot. The California DOJ has at least as much of an obligation to defend the legality of the California Constitution as it does the laws passed by the California legislature.

I respect that Governor Brown doesn't agree with Proposition 209 as a matter of policy. But that can't be a good enough reason on its own to refuse to defend it. The Ninth Circuit has already held that Prop. 209 is facially constitutional, so the present litigation appears to be an uphill battle (and one that panel--comprised of two Clinton appointees--doesn't appear to support). Unless the governor has a strong argument for an initiative's constitutionality, I think he has an obligation to do his best to defend it in court.

And what if an initiative's proponents do not have enough resources to adequately defend the initiative (that is, the California Constitution)? Does the Court then enter a default judgment and invalidate the state constitution? So many aspects of this trend seem problematic to me.

11th Circuit Declares Individual Mandate Unconstitutional

Here we go again. A divided panel of the 11th Circuit has concluded that the health care reform's individual mandate is unconstitutional. This creates a circuit split with the Sixth Circuit, which also ruled via a split panel.

The Eleventh's Circuit's servers are clogged up now, but I'm looking forward to reading this opinion. I just hope it's better than the Sixth Circuit's dissent, which I thought demonstrated poor legal reasoning. (You know you're in trouble when most of your citations are to SCOTUS dissents.) I'm just sick of reading substantive due process arguments masquerading as commerce power challenges.

Two additional notes. 1. The existence of a circuit split will make it more likely that SCOTUS will decide this case before the 2012 election. 2. I'm glad that, as with the other circuit decision, there's no partisan divide among the panel votes; I think the perception that judges were voting based on whether they were appointed by Republicans or Democrats was very bad for the judiciary.

UPDATE: Oops, I spoke too soon about hoping to avoid disguised due process arguments.

Properly formulated, we perceive the question before us to be whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives. . . . In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from privatecompanies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authorityaffords sufficient and meaningful limiting principles; and (3) the far-reachingimplications for our federalist structure.

This is Not a Miley Cyrus Concert, This is Civil Procedure

Dear 1Ls,

I understand this is an exciting time in all of your lives. You're here! At Law School! Fantastic!

But, if I have to dodge a bum rush while coming out of Evidence because, as one of you exclaimed at me as you pushed past, "The seating chart was erased!" I am probably going to have an aneurysm. I understand that this is my fault. I simply don't get how sitting in the perfect seat is akin to getting the best deals on Black Friday at Wal Mart or shaking Barack Obama's hand, but please, for my health, wait for those of us exiting class to get out of your way before you run in to play "musical chairs" or "go to the head of the class" or whatever the hell you people call it.

10am is just too early to be subjected to a 1L stampede.

Love,
James

P.S - To whoever thinks it's a good idea to sign up on a seating chart before you physically occupy the seat in question, we should also have a discussion.

The Arizona Ruling

NYT coverage here and Judge Bolton's opinion is here.  What really caught my eye was a line in the NYT report that legal experts think this ruling is headed for the Supreme Court.  Maybe I misread it, and they meant the case is headed to the SCOTUS, but I think they meant appeal of this ruling will end up in the SCOTUS.  With all due respect to these legal experts, I beg to differ. 

I managed to glance through Judge Bolton's opinion and she applied the correct four-step analysis for a preliminary injunction mandated by the Supreme Court.  For the uninitiated, in the past five years or so (give or take), the Supreme Court has been taking care to rigidly define the factors that courts must consider when granting equitable relief, in particular when granting injunctions.  These cases are often at the expense of the Ninth Circuit, the most recent example being the United States Navy Sonar case. 

With that in mind, and with my assumption that the Judge correctly applied the standard articulated by the Supreme Court, the Ninth Circuit will not reverse (and invite yet another Supreme Court review of its preliminary injunction jurisprudence).  Similarly, when the issue at this juncture is the application of the relevant equitable factors, there is no way the SCOTUS grants cert. 

Obviously this is a hot-button issue with lots of opinions that go beyond the relatively boring area of preliminary injunctions.  So consider this an open forum.

Berkeley Law Students Applaud DOJ Report Findings, Torture Memo Lawyers Engaged in Misconduct: Urge Congress, State Bar and University to Investigate

[Update]: The Yoo situation seems all but settled as Congress is looking in to whether or not to hold hearings. The analysis below strikes me as a step in the right direction.

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From the Boalt Alliance to Abolish Torture:

The final report of the Justice Department’s Office of Professional Responsibility (OPR) released Friday found that former Office of Legal Counsel lawyer John Yoo engaged in “intentional professional misconduct” and that Yoo's colleague, former Office of Legal Counsel lawyer John Bybee, engaged in “reckless disregard of his professional obligations” in their rendering of legal justifications for the Bush Administration’s torture policy. OPR Report, p. 252, 256. The OPR report concludes that “Yoo put his desire to accommodate the client above his obligation to provide thorough, objective, and candid legal advice, and that he therefore committed intentional professional misconduct.” OPR Report, p. 254.

Although Associate Deputy Attorney General David Margolis decided to downgrade the OPR findings to “poor judgment” and to refrain from referring the OPR findings to the relevant state bars, House Judiciary Committee chair, John Conyers, has disputed Margolis's decision and has scheduled Congressional hearings on the matter. Though the DOJ’s recommendation does not include sanctions, the contents of the OPR report also provide a sound basis for action by other entities with jurisdiction over the lawyers’ conduct, including the University of California and the Pennsylvania and DC Bar Associations.

“The Pennsylvania and DC bar associations and the University of California have refused to investigate the conduct of Professor Yoo until the release of the OPR report,” stated first-year Berkeley Law student [RH]. “Now they no longer have an excuse – they must fulfill their duty to investigate the professional misconduct and ethics violations spelled out in the OPR report.”

Student members of the Boalt Alliance to Abolish Torture (BAAT) at Berkeley Law School, where John Yoo is a tenured professor, applauded the findings in the report and expressed dismay over the new facts revealed, including that Yoo “knowingly provided incomplete and one-sided advice.” OPR Report, p. 252. As a tenured professor of law, the OPR report concludes “by a preponderance of the evidence” that Yoo “knowingly failed to present a sufficiently thorough, objective, and candid analysis” through “his failure to carefully read the cases, and his exclusive reliance on the work of a junior attorney.” OPR Report, p. 253.

“It was apparent that Yoo engaged in professional misconduct, but I’m still shocked by the report – that as a lawyer advising the President on a matter so important as torture, Yoo failed to carefully read the cases he was citing and relied on a junior attorney for critical legal analysis,” said first-year Berkeley Law student [TF]. “If I did the same thing on a law school assignment, I’d fail. Yet, Yoo is a tenured professor here at Berkeley.”

BAAT was formed by law students and student organizations to restore respect for the international prohibition against torture. The organization has been active in educating law students and recently sent petitions to the Justice Department, the Pennsylvania Bar Association, and the University of California Faculty Senate urging investigations of the OLC lawyers. “Thorough investigations are essential if we want to ensure that human rights violations and civil rights abuses have stopped and that they never happen again,” says BAAT member and first-year Berkeley Law student [NGN].

Boalt Alliance to Abolish Torture: http://sites.google.com/site/abolishtorture/

Excerpts from the OPR Report:

“Yoo committed intentional professional misconduct” and “knowingly provided incomplete and one-sided advice.” p. 252.

“Yoo put his desire to accommodate the client above his obligation to provide thorough, objective, and candid legal advice, and that he therefore committed intentional professional misconduct.” p. 254.

“Given Yoo’s background as a former Supreme Court law clerk and tenured professor of law, we concluded that his awareness of the complex and confusing nature of the law, his failure to carefully read the cases and his exclusive reliance on the work of a junior attorney, established by a preponderance of the evidence that he knowingly failed to present a sufficiently thorough, objective, and candid analysis of the specific intent element of the torture statute.” p. 253.

“Yoo knowingly provided incomplete advice to the client.” p. 253.

“[Yoo] knowingly misstated the strength of the Bybee Memo’s argument ‘that interrogation of [prisoners] using methods that might violate [the torture statute] would be justified under the doctrine of self-defense....’” p. 253.

“Yoo’s legal analyses justified acts of outright torture.” p. 252.

You can also check out Slate's take on the issue.

7th Circuit Upholds Prison Ban of D&D

The nerds can't catch a break:

In an opinion issued on Monday, a three-judge panel of the Chicago-based Seventh Circuit Court of Appeals hexed a lawsuit challenging a ban on the game of Dungeons & Dragons by the Waupun Correctional Institution in Wisconsin.

The suit was brought by a prisoner, Kevin T. Singer, who argued that his First Amendment and 14th Amendment rights were violated by the prison’s decision to ban the game and confiscate his books and other materials — including a 96-page handwritten manuscript he had created for the game.

The Court determined that playing D&D could lead to enhanced gang behavior and violent escape attempts. This might be true for any actual gang members who were exposed to D&D nerds, but I doubt D&D would meaningfully contribute to this sort of behavior.

Is UC Berkeley Violating Student Rights in Handing Out Suspensions Over Protests?

A statement made by anonymous Boalt students takes a look at a number of disciplinary measures handed down by UCB to Andrea Miller - one of the protesters who was present when the Chancellor's house was attacked.

If Miller was engaged in non-violent protest then it's unacceptable for UCB to go after her (and from what I've read, it seems like they're systematically targeting the students who were at the Chancellor's house when it was attacked, regardless of whether or not the students can be shown to have participated in the attack). It's also worth noting that none of the students present are being criminally prosecuted for their alleged misconduct.

In the statement there's a focus on how Miller's rights have been violated by the UCB disciplinary process, which from my rudimentary understanding of the subject seems to be true, but the piece also uses a lot of empty phrases including "Stalinist procedure" and "Gestapo-like." The attack on the Chancellor's house was also downplayed heavily. I understand that the statement is intended to be read from a radical viewpoint, but there has to be some benefit in appealing to those of us who agree that the UCB acted poorly in response to the protests, but no better than to be taken in by needlessly inflammatory language.

A few more thoughts:

1. The action against the student seems improper if the facts of this statement or true, but it'd be a stronger statement without the hyperbole and with some good cites backing up the legal positions.
2. Who wrote it? Why are there no names attached?
3. There's also another post on the site advocating violence as a means to an end when protesting, which is a position that some consider theoretically and ideologically sound, but often comes with consequences attached (like getting suspended from UCB).

Separate but Equal?

Two Boalties are doing all of us a favor by blogging the initial challenge to Proposition 8. As you probably know the proposition, which was passed last November, made gay marriage illegal in California.

One of the things I find interesting is that the gay marriages before the proposition was passed are currently still legal in CA, while additional marriages have been barred.

Check out the blog here: http://prop8.berkeleylawblogs.org/

Also, check out a very interesting article in the New Yorker about the challenge: http://www.newyorker.com/reporting/2010/01/18/100118fa_fact_talbot

It's Complicated

I don't want to bump L'Alex's great post, but the fine folks at the Samuelson Clinic are putting on a conference on "Social Networks: Friends or Foes? Confronting Online Legal and Ethical Issues in the Age of Social Networking." Looks like David Lat will be a panelist. And you can find more info at the website.

Just for my $0.02, I think there are ups and downs. For the time being, I think we're simply experiencing the downs, e.g., yapping about clients, providing way, way too much information for public consumption*, ruining relationships, ruining the English language**, etc. But as technology evolves (see, e.g., Google Wave), I think we'll see some notable changes in the profession, namely long-distance collaboration. Though the speed with which this takes hold will probably depend on breaking the Microsoft Word stranglehold on e-filing and redlining.

*I really don't understand how people post SO MUCH about themselves on facebook. It's nuts. I can find someone's birthday, phone numbers, address, how many of their friends are single, how drunk they got during spring break, and which [Insert TV Show Character] they are according to a horribly designed quiz. Just weird.

** For a contrary view, see this story about research by a Stanford lit professor concluding that Stanford undergrads do not use "LoLz" and "u r a h8er" in online communication.

Paging IP Nerds

I know it's not one of the bar exam topics, but I have an IP question that someone might be able to answer. In short, Friend T asked me about this situation and it struck me as an interesting legal question worth exploring, so here it is.

Friend T recently held an engagement party at some Armenian banquet hall (if you're Armenian, you know the routine: lots of food and envelopes stuffed with cash as gifts...yes, it's a bit like the wedding scene from Goodfellas, but we're not all named Paulie). She hired a certain videographer to forever memorialize the event. Said videographer also freelances as an ad producer. Much to her shock, videos of her celebration are now being used for ads for a different banquet hall. She has no K or other agreement with the videographer. Who owns the copyright in the video? Is there fair use defense?

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For those studying for the Bar, late-June and July are the best times to seek out distractions. Please nominate how you are taking your mind off "Gooooooood ideaaaaaaaaaaaaa????"

UPDATE: First off, big thanks for the quick responses. Now, this story in today's LAT cracks me up. Smoking's such an addiction, that the very banquet halls I mentioned in the original post are almost always filled with cigarette smoke and riddled with ash trays for the convenience of the smokers. On the one hand, no proprietor wants to confront drunks who are addicted to cigarettes or lose their property when someone puts the cigarette down on table cloth. On the other hand, you're violating the law. Personally, if I were the Glendale F.D. or the LAFD, I'd make it a "habit" of crashing Armenian weddings to enforce the smoking ban. In 3 weeks, you'll have a budget surplus from all the fines.