Gura Files Petitioner’s Brief in McDonald, Spends 7 Pages on Due Process, The Rest on Privileges or Immunities

Check out Alan Gura’s petitioner brief to the Supreme Court in McDonald v. Chicago

Lyle Denniston has this summary from SCOTUSBlog:

Reflecting the lawyers’ view that their best chance is to rely upon the privileges clause of the Fourteenth Amendment, only seven pages of their 73-page brief are devoted to another provision of that Amendment: the Due Process Clause.

In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity — and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886.  “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued.

The Slaughterhouse precedent, “and its unavoidable progency, Cruikshank and Presser,” the brief said, “established that the States could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding that [the Fourteenth Amendment] Section One’s clear textual command to the contrary.”

I just skimmed the brief, and I am very, very impressed by Gura’s approach. As Ilya Shapiro and I discuss at great length in our forthcoming article, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, the Privileges or Immunities Clause is a vastly superior means for incorporating the Second Amendment.

I’ll blog about this some more later.

Online Job Applications For Federal Law Clerk Jobs Rise 66 Percent

No surprise here. From USCourts.gov:

A total of 401,576 electronic applications from lawyers seeking jobs as federal court law clerks were received in fiscal year 2009, a 66 percent increase from the 241,529 applications received in 2008 via the Online System for Clerkship Application and Review (OSCAR).

The applications were filed by 10,722 applicants who were competing for the 1,244 clerkship positions that were posted between October 1, 2008 and September 30, 2009.

About two-thirds of all federal judges participate in the OSCAR program, electing to maintain a judge profile, post a clerkship position and accept applications, or advertise that there are not hiring law clerks.

Fifty-two percent of the applicants that used OSCAR during FY 2009 were law school graduates, and 48 percent were third-year law students. But 68 percent of the 401,576 applications were generated by third-year law students.

OSCAR takes what was a paper-heavy – and expensive – process and puts it online. Applicants for law clerk positions can pull together and submit online applications complete with resumes, cover letters, transcripts, and writing samples.

The number of applications filed via OSCAR has increased each year since its introduction in FY 2005, when 94,693 applications were handled. The totals since have been 174,363 in 2006; 180,832 in 2007; 241,529 in 2008; and 401,576 in 2009.

Interesting New Article: Formalism and Realism in Ruins (Mapping the Logic of Collapse)

From SSRN:  Formalism and Realism in Ruins (Mapping the Logic of Collapse) (H/T Legal Theory Blog)

After laying out a conventional account of the formalism vs. realism debates, this Article argues that formalism and realism are at once impossible and entrenched. To say they are impossible is to say that they are not as represented – that they cannot deliver their promised goods. To say that they are entrenched is to say that these forms of thought are sedimented as thought and practice throughout law’s empire. We live thus amidst the ruins of formalism and realism. The disputes between these two great determinations of American law continue today, but usually in more localized or circumscribed forms. We see versions of the disputes, for instance, in the stylized disagreements over the desired form of judicial doctrines (rules vs. standards); or the best rendition of key political values like equality (formal vs. substantive); or the proper mode of judicial interpretation (textual vs. purposive). Here too the arguments that comprise the localized variants of the dispute remain inconclusive. The Article concludes by mapping “the logics of collapse” – specifically, some critical moves that undermine the rhetorical and intellectual force of the formalism vs. realism disputes and their localized variants. The aims here are several. First, the ability to deploy the critical moves helps with analysis. The critical moves help show how the arguments are constructed in the first place and how they are rhetorically and intellectually compromised. Second, and relatedly, the critical moves allow us to avoid being taken in by the formalism vs. realism arguments and their localized variants. Third, the aim is to show how our formalist and realist argumentation has already been surpassed by a legal “logic” that undermines the cogency of that argumentation.

I just received Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging so these two should make for interesting reading.

@SCOTUS Srsly @SReinhardt, not again, get it right! Epic Fail! Reinhardt reversed 3rd time in same case.

I’ve joked that the Supreme Court needs to get a Twitter Account. If so, today would be the ultimate time to tweet:

@SCOTUS Srsly @SReinhardt, not again, get it right! Epic Fail!

According to Orin Kerr at Volokh, Judge Reinhardt has actually been reversed 3 times on the same case:

As I understand the history, Judge Reinhardt first authored an opinion overturning Belmontes’ death sentence in Belmontes v. Woodford, 350 F.3d 861 (9th Cir. 2003).  The Supreme Court granted, vacated, and remanded in light of Brown v. Payton, 544 U.S. 133 (2005).   To be fair, that one wasn’t really a direct reversal of Reinhardt: He wasn’t on the Ninth Circuit decision reversed in Brown, so the first reversal was only to account for the Supreme Court’s clarification of the law in Brown.  On remand, Judge Reinhardt wrote a second opinion overturning Belmontes’ death sentence in Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005).  The Supreme Court took that case and reversed in  Ayers v. Belmontes, 549 U.S. 7 (2006).   Judge Reinhardt then wrote a third opinion overturning Belmontes’ death sentence in Belmontes v. Ayers, 529 .23d 834 (9th Cir. 2008), which the Supreme Court reversed 9–0 in a per curiam decision today in Wong v. Belmontes.

Epic Fail!

Is Law School a Good Investment? Nope.

From Economix, H/T BlackBoogLegal.

The paper tries to measure the return on investment in a law school education, using three prototypical students (the “Also Ran,” the “Solid Performer” and the “Hot Prospect”). . . . The results are somewhat disheartening, especially considering the surging interest in law school during this tough job market.

Of course, there is also the matter of nonmonetary returns from higher education. Neither the new research paper on law school R.O.I. nor most of the other related studies try to quantify the psychic rewards of additional social prestige, expanding one’s mind, being better equipped to make the world a better place, and so on, that come from earning a J.D. But presumably most people enroll in professional school primarily for less warm and fuzzy reasons.

TaxProfBlog has a full breakdown.

 

FantasySCOTUS.net on Underneath Their Robes’s Holiday Wish List

It’s never too early to start looking for Festivus gifts. Underneath Their Robes has a fantastic suggestion:

Given today’s economy and the current reluctance of many to spend their hard-earned/non-existent bonuses on luxury goods, Clerquette suggests this stocking-stuffer for the sports fan-Groupie on your list: a membership in FantasySCOTUS.net, the newly minted Supreme Court Fantasy League. Recent law-school grad and self-described “big Supreme Court nerd” Josh Blackman created the site so that Groupies like you — like us, dear readers — can “play like the Tenth Justice.”  The Rules, Blackman explains, are “simple.”

In true appellate fashion, memberships fees are three-tiered; they range from free (for students and the unemployed) to $10. If you’re a betting man, woman, or Groupie, Clerquette says: Christmas has come early this year! Indulge! If you’re searching for a gift that will keep on giving — at least from October to late June/early July — look no further! FantasySCOTUS.net will keep your favorite groupie busy, away from productive activity, and unable to engage in telephone conversations while formulating bets for months to come. Hey: at least there’s no draft.

With 1,200 members and counting, this is a perfect stocking stuffer!

The Onion: Area Man Passionate Defender Of What He Imagines Constitution To Be

From the Onion:

Spurred by an administration he believes to be guilty of numerous transgressions, self-described American patriot Kyle Mortensen, 47, is a vehement defender of ideas he seems to think are enshrined in the U.S. Constitution and principles that brave men have fought and died for solely in his head.

“Our very way of life is under siege,” said Mortensen, whose understanding of the Constitution derives not from a close reading of the document but from talk-show pundits, books by television personalities, and the limitless expanse of his own colorful imagination. “It’s time for true Americans to stand up and protect the values that make us who we are.”

Unfortunately, too many Federalist Society members get lumped in with Pretenders like this satirical guy. Radio hosts and T.V. Personalities know little about the Constitution, and only invoke it when it enables Conservative policies. Yet, they ignore it whenever the Constitution places limits on Conservative agendas. The ObamaCare is only Constitutional if the War on Drugs is Constitutional. Conservatives reject the former, but like the latter. Consistency?

Accordingly, ahem, Mark Levin was definitely not the right speaker for the Federalist Society Convention, Ahem.

But, the Onion pokes fun at the Left as well:

“Dad’s great, but listening to all that talk radio has put some weird ideas into his head,” said daughter Samantha, a freshman at Reed College in Portland, OR. “He believes the Constitution allows the government to torture people and ban gay marriage, yet he doesn’t even know that it guarantees universal health care.”

Though, I suppose a key difference, is that many progressive Constitutional scholars do in fact view the Constitution as guaranteeing Universal Health Care. See my work on the Constitution in 2020.

 

Rule of Lenity on the Roberts Court similar to Usage on Roberts Court

Professor Krishnakumar has an interesting post at Concurring Opinions analyzing the use of the Rule of Lenity on the Roberts Court:

In their Legislation casebook, William Eskridge, Philip Frickey, and Elizabeth Garrett observe that between 1984 and 2006, the Supreme Court cited the rule of lenity in just over one-fourth of its cases interpreting criminal statutes and agreed with the government’s interpretation in over 60% of those cases. I thought it would be interesting to see how those figures compare to the still-nascent Roberts Court’s cases interpreting criminal statutes.

Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that favored the defendant. In only six of the cases did the Court reference the Rule of Lenity—four times in dissent, one time in both the plurality opinion and the concurring opinion providing the fifth vote, and one time in a concurring opinion alone.

Interestingly, Scalia and Stevens were the Justices most likely to reference the rule of lenity, while Justices Alito and Kennedy have not joined a single case invoking the rule. Krishnakumar concludes that the Roberts Court use of the rule of lenity mirrors the usage during the Rehnquist Court.

FantasySCOTUS.net. The 10th Justice Predicts the Court Will Reverse Citizens United v. FEC 5-4 (Hilary Movie Case). But how will Kennedy vote?

Welcome to the first installment of Predictions of the  10^th Justice, brought to you by FantasySCOTUS.net. FantasySCOTUS.net, the Premier Supreme Court Fantasy League, has over 1,300 members, who have made predictions on all cases currently pending before the Supreme Court. In this feature, we analyze these predictions, and try to explain how the Supreme Court will resolve top cases.

The first case we will look at is Citizens United v. Federal Election Commission, commonly known as the Hillary Movie case.

Out of 286 predictions, 192 members (67%) held that the Supreme Court will likely reverse the lower court’s decision regarding the case, and 94 members  (33%) held that the Court will affirm the lower court’s decisions. Next we will explore how the decision vote distributions and how the Justices will vote.

On this bar graph, the 9-0 and 8-1 Affirm splits each garnered less than 5 votes, along with 7-2, 8-1, and 9-0 Reverse. This graph reinforces the predicted outcome from the first chart.  Most members are predicting a 5-4 Reverse, while those predicting an Affirm were more moderately split,  slightly favored a 5-4 splitover a 6-3 split. Overall, the 10^th Justice predicts a 5-4 decision reversing the lower courts holding.

But how will each Justice vote? Predictions, after the jump.