Federalist Society National Lawyer’s Convention Schedule Updated, Justice O’Connor no longer speaking

To Conservative and Libertarian Lawyers, attendance at the Federalist Society National Lawyers Convention is the equivalent of the Hajj. I have attended every year since 2006, and this is, without a doubt, my favorite event of the year. And there is a very good chance I will be liveblogging the conference this year. Stay tuned.

The Federalist Society just posted an updated schedule.

But the biggest change, is that Justice O’Connor is no longer speaking. In previous announcements, the Federalist Society advertised that Justice O’Connor would be speaking on Thursday at 11:15-12:00 noon in the Grand Ballroom. But in her place,  is now a conspicuous block labeled TBA.

Compare the updated page with the Google Cached version. Federalist Society replaced Justice O’Connor’s picture with a picture of Marc Levin.

This is curious, because last year Justice Scalia was slated to debate Judge Posner. That would have been a lively discussion, in light of Judge Posner ripping Scalia regarding Heller. Scalia dropped out shortly before the debate, and the mavens at the Federalist Society deftly slotted in then Judge McConnell. I heard from a source in the know that there was a reason Scalia dropped out, but I could not get the reason out of him. Some things the world may never know.

So what happened to SOC? Or is it SDO?

The Federalist Society added Mark Levin, talk radio host and author of Liberty and Tyranny. I have been listening to Levin for close to 7 years since he was on Sunday mornings on WABC in New York City. He is a friend of liberty.

This should be an awesome conference, and I highly encourage everyone to attend.

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Textualist/Originalist Old Testament Scholar Reveals Bible Mistranslated, God did not create the Earth

This article may cause a bit of a stir (H/T Greg B. on fb):

Professor Ellen van Wolde, a respected Old Testament scholar and author, claims the first sentence of Genesis “in the beginning God created the Heaven and the Earth” is not a true translation of the Hebrew.

The first sentence should now read “in the beginning God separated the Heaven and the Earth”

She said: “It meant to say that God did create humans and animals, but not the Earth itself.”

A spokesman for the Radboud University said: “The new interpretation is a complete shake up of the story of the Creation as we know it.”

Prof Van Wolde added: “The traditional view of God the Creator is untenable now.”

But what is most interesting to me, is the textualist/originalist type analysis she employs.

Prof Van Wolde, 54, who will present a thesis on the subject at Radboud University in The Netherlands where she studies, said she had re-analysed the original Hebrew text and placed it in the context of the Bible as a whole, and in the context of other creation stories from ancient Mesopotamia.

She said she eventually concluded the Hebrew verb “bara”, which is used in the first sentence of the book of Genesis, does not mean “to create” but to “spatially separate”.

She writes in her thesis that the new translation fits in with ancient texts.

This methodology could come right out of a Scalia opinion. She considers the words used in the context in which they were  written, she looks to dictionaries for meaning, and explores other contemporary texts. Fascinating. Original public meaning theology anyone?

Analogizing Legislative History to Oral Arguments. Why can’t we use Oral statements from the Justices to Interpret Case Law?

Courts frequently rely on legislative history, including statements made by particular legislators on the floor to help explain legislation. What if lower courts considered statements made during oral arguments and statements read from the bench during the “hand-down” of opinions as persuasive value to explicate an ambiguous opinion.

The arguments counsel makes during oral arguments are essentially meaningless, and they do not persuade Justices.  What actually matters more, and what Court watchers closely scrutinize, are the questions and comments the Justices ask. This sheds light on where the Court may be going. Why not look to these questions to help elucidate an ambiguous opinion?

In light of the fact that legislative history is considered by the courts in spite of Article I section 7, the nebulous nature of Article III and the “judicial” power should welcome any additional insight oral comments might add to interpreting opinions.

While Article 1, Section 7 requires Bicameralism and Presentment to make a law, there is no requirement in Article III that the Court announce its judgment in a written opinion. There is no requirement that the Justices even join in an opinion. This was a tradition started by CJ Marshall. Why can’t stare decisis consider comments made orally. Shouldn’t these comments be woven into the tapestry to help reveal the meaning?

In fact, I contend that there is a stronger argument for courts to rely on oral arguments than to rely on legislative history. When relying on statements made by legislatures, there are significant attribution problems when attributing meaning to 100 Senators or 435 Representatives. I have written about Professor Eskridge’s theories on attribution here in a forthcoming article in the George Mason Civil Rights Law Journal. With the Supreme Court, there are only 9 justices. It is much easier to tie the questions or comments a Justice makes with his or her subsequent opinion.

Further, while many legislative statements are made in committee, when only a fraction of the Congress or Senate is present, on the Court, all Nine Justices are present at all times whenever comments are made.

Now oral comments would only be entitled to a modicum of persuasive value, as they were not voted on by the whole of the Court. However, the same limitation should hold true for legislative history, which is similarly not voted on by a majority of the legislature.

I’ve argued that legislators who know their legislative history will be looked at have an incentive to grandstand. Now, if the justices knew their oral comments which do not require majority vote to become law, would the Justices be more loquacious on the bench?  Perhaps opposition to cameras would diminish.

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Paternalistic Professors and Banning Laptops in Class. That really grinds my gears.

You know what really grinded my gears? Professors who banned laptop usage in class. That is, using a laptop for something other than taking notes.

The Volokh Conspirators have discussed this topic at length, but a recent post by Mason Prof J.W. Verret as a guest-blogger on Volokh brought incited this post:

“As a longtime fan of The Volokh Conspiracy, it’s a particular honor to join you today.  I admit spending much class time in law school surfing Volokh rather than taking notes, and it was often a wiser investment (not true for my students of course).”

Anyone who ever sat in a class with me would recognize the familiar site. I take no formal lecture notes, and occasionally scribble notes in the margin of my textbook. Most of the class, I am ferociously blackberrying, texting, surfing, and whatever else strikes my fancy. Frequently I am researching case law dealing with a tangential topic to the lecture, but usually I’m just futzing around. Yet, I usually participate more than anyone else in the class. I am not saying this to brag. I mean it sincerely. In every class I ever sat it, I was always one of the top participators. I have the freaksih ability to multitask very efficiently. I can follow what a professor is saying, relate it to the assigned reading assignment, think of and recite thoughtful answers to a socratic dialogue, all while surfing, blackberrying, and facebooking.

In my mind, banning laptops in class is overly paternalistic. If a student has a particular learning style, and does not need to convey undivided attention to the professor and fellow students, why should the student be penalized? Further, any sort of attendance requirement, especially those imposed by the ABA, are paternalistic. Students pay an absurd amount of money for school. Contrary to what the ABA may think, students have lives outside of law school. It is not always possible to attend 85% of classes (or whatever the required percentage is). At Mason, if a student did not attend a certain number of classes, he would not be alllowed to sit for the final exam, despite his ability to acquire the information. Why? Why should a student be punished without having an opportunity to take an exam, merely because he did not go to classes he paid for.

Some people have told me that when a student surfs the Internet in class, it is distracting to sit behind them. Umm… How bout you don’t look?

Now, if a student’s Internet use results in poor class participation, I have no problem with a professor penalizing that student. An effective socratic dialogue is an essential aspect of any class. But if a student can keep up with the pace of the class while indulging in his personal Internet exploits, a flat-out ban on laptop usage seems incongruent, disproportional, and in my case, potentially cruel and unusual.

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1st Circuit Upholds Ban on Minors Possessing Guns

From BNA, the First Circuit held on August 31, 2009:

The U.S. Court of Appeals for the First Circuit held Aug. 31 that nothing in the U.S. Supreme Court’s most recent interpretations of the Constitution’s Second Amendment and Commerce Clause has undermined prior rulings upholding the law that makes it a federal crime for a minor to possess a handgun, 18 U.S.C. §922(x)(2)(A). With respect to the Second Amendment challenge, the court decided that Section §922(x)(2)(A) is unlike the handgun ban struck down in District of Columbia v. Heller, 83 CrL 5148 (U.S. 2008), because it contains a number of exceptions, including one for self-defense and defense of others. (United States v. Rene E., 1st Cir., No. 08-1974, 8/31/09)

In an opinion by Judge Kermit V. Lipez, the First Circuit held that “Heller does not render section 922(x)(2)(A) unconstitutional as applied” to the defendant in this case, who was 17 when he was caught with a handgun. “We rest our conclusion on the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns,” the court said.

“Nothing in Morrison or Raich undermines our analysis of section 922(x)(2) in Cardoza,” the First Circuit decided. “Both decisions reaffirmed Congress’s power to regulate intrastate economic activity that substantially affects interstate commerce,” the court stressed. It also agreed with decisions from other circuits that have characterized other firearms prohibition statutes as suppressing demand and being, therefore, an essential part of regulating the national market in firearms.

This opinion seems about right in light of the limiting dicta from Heller. Although I appreciate the test Justice Scalia proposed regarding “longstanding traditions” to determine if a regulation is consonant with the 2nd Amendment, this test has its limitations. Largely because the original meaning of the 2nd amendment was largely ignored for the last century. Any traditions and regulations enacted in light of that misunderstanding are constitutionally flawed and suspect. Relying on such traditions, premised on a collective right to keep and bear arms, seems illogical and likely unconstitutional.

One related issue are bans on non-violent felons possessing firearms . See this article, “Why can’t Martha Stewart Own a Gun,” by C. Kevin Marshall which provides a lengthy discussion of the history of regulations restricting access to weapons by those convicted of crimes, before and after the Bill of Rights was adopted. It always struck me as odd that non-violent felons, because of one bad act, are forbidding forever from keeping arms at home for purposes of self defense.  From Professor Lunds’s summary of Marshall’s article

While acknowledging that this history cannot solve all line-drawing problems, Mr. Marshall makes a powerful case that the traditional understanding of the right to arms did not authorize much more than laws forbidding those convicted of crimes of violence to carry firearms outside their homes, and possibly also forbidding them to possess easily concealable weapons, at least for as long as the offender continued to present a credible threat of recidivism.

If in fact the 2nd amendment is an individual right, on equal footing with other rights in the Bill of Rights, why is it still treated as an ugly red-headed stepchild. If Congress passed a law forbidding a person who violated election law from advocating for a political cause at any point in the future, would we not pause to argue this violates the First Amendment. But if a person commits a non-violent offense (tax evasion for example), that person’s individual right to keep and bear arms is forever eliminated. Professor Lund’s article addresses this point (pp. 14-15):

“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . .”32 This certainly sounds unobjectionable, at least at first. But how “longstanding” are these prohibitions? Justice Scalia either doesn’t know, or decided not to tell us. Apparently, however, the first general ban on the possession of firearms by felons was enacted in 1968.33
Longstanding? This was 177 years after the adoption of the Second Amendment, and less than a decade before the D.C. handgun ban was enacted.

Aside from the absence of historical support for the claim that such prohibitions are consistent with the preexisting right to arms, they are inconsistent with what Justice Scalia himself calls its “core,” namely self defense.34 On what understanding of that core does it make any sense to leave American citizens defenseless in their own homes for the rest of their lives on the basis of nothing more than a nonviolent felony like tax evasion
or insider trading? It would make more sense to say that the government may silence these felons for the rest of their lives regulatory crimes, after all, usually involve an abuse of speech, such as making false statements to the government or negotiating contracts that the government forbids. Such regulatory crimes have nothing at all to do with violence or the use of firearms.

It is also relevant to keep in mind the over-criminalization of our country. I have absolutely no idea how many felonies there are, but I’m pretty sure I violate at least one a day. Whereas at common law, where there were a relatively few number of felonies, today the number of infinitely larger, thus increasing the likelihood that a person will do something to foreclose his right to possess arms to defend himself at home.

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Blogger Shrugged. Going Galt and Not putting Ads on my Blog. For now.

Today a friend commented on my facebook wall that I should monetize my Blog. That got me thinking about placing advertisements on my blogs to generate some sheckels.

And I remembered this story (H/t Instapundit)

The state of New York has cut off unemployment benefits for a 2008 law grad after she reported collecting $1.30 a day in advertising income from her blog.

Karin has earned about $238 from the advertising generated from Google AdSense, according to the story. She has since taken the ads off her website.

Though I am a capitalist, I don’t want the government purloining my hard earned ad revenues. The administrative costs to file a more complicated tax return, and paying additional taxes, would likely negate any benefit of the negligible ad revenues I would expect to receive.

So for the time being, I shrug, and go Galt. The IRS can’t take money I don’t earn.

If in the future advertising becomes lucrative and would substantially exceed the transaction costs accompanying the governments yoke on my shoulders, I’d be willing to reconsider my intransigent Galtiness

Well, I already said “shrugged” and “galt” in this post, so I might as well throw out the rest of my favorite expressions: liberty or death, live free or die, and from my cold dead hands.