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Sapere aude - dare to be wise
Saturday, November 29, 2003
Posted 7:23 PM by Lawren
Here's yet another illustration of how NOT to get out of jury duty.

Aside from being one's civic duty, a stunt like that can land you 3 days in jail.
Tuesday, November 25, 2003
Posted 9:06 AM by Joshua Claybourn
Chris Geidner posts "on the importance of student-edited law reviews." It's a long post in defense of the American tradition.
Wednesday, November 19, 2003
Posted 8:18 AM by Kelly
General Assembly Addresses Property Tax Issues

Our own Professor Orentlicher is one of those participating in the 'mini-session.'

I can't help but feel the lawmakers know that no meaningful relief will result from their examination of this issue; they are simply putting on a show for their voters.

And Indianapolis residents, take note of the language being used. Consensus seems to be there may be a "shift" in taxes, not a cut. For taxes to shift "from" someone they will have to shift "to" someone else.
Tuesday, November 18, 2003
Posted 11:18 PM by Kelly
Michael Jackson in trouble again.

I just hate to hear this. I am not one of the "hard-core Michael Jackson defenders" referred to in the article. But after growing up listening to his music, I find it just awful and pathetic that things have come to this.

If the allegations are true, he should receive the stiffest punishment.

I just wish it weren't true.

Update: Arrest took place today.
Posted 1:19 PM by Joshua Claybourn
Landmark Decision on Marriage
The Supreme Court of Massachusetts has ruled that gay marriage is constitutionally protected. The Lawrence decsion was cited at least eight times. Prof. Reynolds offers up the Unofficial Synopsis Prepared by the Reporter of Decisions:
The Supreme Judicial Court held today that "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." The court stayed the entry of judgment for 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this opinion."

"Marriage is a vital social institution," wrote Chief Justice Margaret H. Marshall for the majority of the Justices. "The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In turn it imposes weighty legal, financial, and social obligations." The question before the court was "whether, consistent with the Massachusetts Constitution," the Commonwealth could deny those protections, benefits, and obligations to two individuals of the same sex who wish to marry.

In ruling that the Commonwealth could not do so, the court observed that the Massachusetts Constitution "affirms the dignity and equality of all individuals," and "forbids the creation of second-class citizens." It reaches its conclusion, the court said, giving "full deference to the arguments made by the Commonwealth." The Commonwealth, the court ruled, "has failed to identify any constitutionality adequate reason for denying civil marriage to same-sex couples."

The court affirmed that it owes "great deference to the Legislature to decide social and policy issues." Where, as here, the constitutionality of a law is challenged, it is the "traditional and settled role" of courts to decide the constitutional question. The "marriage ban" the court held, "works a deep and scarring hardship" on same-sex families "for no rational reason." It prevents children of same-sex couples "from enjoying the immeasurable advantages that flow from the assurance of 'a stable family structure in which children will be reared, educated, and socialized."' "It cannot be rational under our laws," the court held, "to penalize children by depriving them of State benefits" because of their parents' sexual oreintation.

The court rejected the Commonwealth's claim that the primary purpose of marriage was procreation. Rather, the history of the marriage laws in the Commonwealth demonstrates that "it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of marriage."

The court remarked that its decision "does not disturb the fundamental value of marriage in our society." "That same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit," the court stated.

The opinion reformulates the common-law definition of civil marriage to mean "the voluntary union of two persons as spouses, to the exclusion of all others. Nothing that "civil marriage has long been termed a 'civil right,"' the court concluded that "the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropirate government restrictions in the interests of public health, safety, and welfare."

Justices John M. Greaney, Roderick L. Ireland, and Judity A. Cowin joined in the court's opinion. Justice Greaney also filed a separate concurring opinion.

Justices Francis X. Spina, Martha B. Sosman, and Robert J. Cordy each filed separate dissenting opinions.

Justice Greaney concurred "with the result reached by the court, the remedy ordered, and much of the reasoning in the court's opinion," but expressed the view that "the case is more directly resolved using traditional equal protection analysis." He stated that to withhold "relief from the plaintiffs, who wish to marry, and are otherwise eligible to marry, on the ground that the couples are of the same gender, constitutes a categorical restriction of a fundamental right." Moreover, Justice Greaney concluded that such a restriction is impermissible under art. 1 of the Massachusetts Declaration of Rights. In so doing, Justice Greaney did not rely on art. 1, as amended in 1976, because the voters' intent in passing the amendment was clearly not to approve gay marriage, but he relied on well-established principles of equal protection that antedated the amendment.

Justice Cordy, with whom Justice Spina and Justice Sosman joined, dissented on the ground that the marriage statute, as historically interpreted to mean the union of one man and one woman, does not violate the Massachusetts Constitution because "the Legislature could rationally conclude that it furthers the legitimate State purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children." Justice Cordy stated that the court's conclusions to the contrary are unsupportable in light of "the presumption of constitutional validity and significiant deference afforded to legislative enactments, and the 'undesirability of the judiciary substituting its notion of correct policy for that of a popularly elected legislature' responsible for making it.' Further, Justice Cordy stated that "[w]hile 'the Massachusetts Constitution protects matters of personal liberty against government intrusion at least as zealously and often more so than does the Federal Constitution,' this case is not about government intrusions into matters of personal liberty," but "about whether the State must endorse and support [the choices of same-sex couples] by changing the institution of civil marriage to make its benefits, obligations, and responsibilities applicable to them." Justice Cordy concluded that, although the plaintiffs had made a powerful case for the extension of the benefits and burdens of civil marriage to same-sex couples, the issue "is one deeply rooted in social policy" and 'that decision must be made by the Legislature, not the court."

Justice Spina, in a separately filed dissenting opinion, stated that "[W]hat is at stake in this case is not the unequal treat..nt of individuals or whether individuals rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts, pursuant to art. 30 of the Massachusetts Declaration of Rights." He emphasized that the "power to regulate marriage lies with the Legislature, not with the judiciary."

Justice Sosman, in a separately filed dissenting opinion, stated that "the issue is not whether the Legislature's rationale behind [the statutory scheme being challenged] is persuasive to [the court]," but whether it is "rational" for the Legislature to "reserve judgment" on whether changing the definition of marriage "can be made at this time wihtout damaging the institution of marriage or adversely affecting the critical role it has played in our society." She concluded that, "[a]bsent consensus on the issue (which obviously does not exist), or unanimity amongst scientists studying the issue (which also does not exist), or a more prolonged period of observation of this new family structure (which has not yet been possible), it is rational for the Legislature to postpone any redefinition of marriage that would include same-sex couples until such time as it is certain that redefinition will not have unintended and undesirable social consequences."
Monday, November 17, 2003
Posted 11:21 PM by Lawren
Appropriate Interview Questions

Interviewing can be nerve-racking enough, without having to worry about employers/interviewers asking illegal questions. This article highlights some illegal and acceptable questions you might face in an interview. The article focuses on the ILLEGAL question posed to many women today: "Do you plan to have children?"

And, I have to admit, I've been asked that question twice in legal interviews.
Posted 6:19 PM by Kelly
No expectation of privacy for school e-mail.

Associate counsel for Indiana University recently issued a memo advising IU employees, administrators and board of trustee members that their University e-mail messages could be a matter of public record.

That's food for thought.
Sunday, November 16, 2003
Posted 6:29 PM by Joshua Claybourn
Based on the property case law I've read thus far, I don't think this case would fly under American jurisdiction.
Posted 5:41 PM by Joshua Claybourn
Food for Thought
I've heard a number of Democratic presidential candidates say they want to make health care a "civil right." Title VII of the Civil Rights Act of 1964 allows for fee shifting. I wonder if a similar fee shifting statute would be written into the so-called "civil right" of health care.
Friday, November 14, 2003
Posted 5:07 PM by Kelly
Fighting Crime

I drove my daughter to school this morning and then parked on the street - in front of my house. The garage and back patio are being remodeled, so parking in the driveway was out.

I emerged from my home a few hours later to find a parking ticket on my car. Seems I'm not allowed to park facing the 'wrong' direction.

The street is a quiet residential street. There is parking along one side only. There is little traffic. We have occasionally parked facing north (on the west side of the street) throughout our almost 25 years living here.

I know ignorance of the law is no excuse. But seriously, is the fact that I parked facing north in front of my own house on a quiet street so much of a threat to the health, welfare, safety and morals of this city that it warranted a parking ticket?

Your crime-fighting tax dollars at work.
Posted 9:32 AM by Joshua Claybourn
In a decision that seems to contradict the "Roy's Rock" holding, the 5th U.S. Circuit Court of Appeals ruled that a six-foot-tall, red, granite monument of the Ten Commandments may stay on the Austin capitol grounds. It seems certain that the Supreme Court will have to address this issue sooner or later.
Thursday, November 13, 2003
Posted 11:39 PM by Kelly
New Meaning to the Phrase, "How 'bout them New Hampshire Primaries?"
Posted 11:32 PM by Kelly
More things that make you go Hmm....

I found this story interesting.

Particularly of interest is one student's statement that her actions were inspired, in part, by an English class assignment to perform a nonconformist act.

The suspension, not to mention the likely denial of access to the National Honor Society, is a harsh consequence.

I wonder if the students would have received the same discipline for public harassment of their homosexual or bisexual peers?
Posted 1:10 PM by Joshua Claybourn
"Alabama Chief Justice Roy Moore was removed from office Thursday for refusing to obey a federal court order to move his Ten Commandments monument from the rotunda of the state courthouse."

Update: I missed this quote by Moore: "I will announce something in a few weeks that will alter the course of the country." Hmm....
Posted 1:03 PM by Joshua Claybourn
The National Jurist
If you happen to pick up a copy of the National Jurist, turn to page seven. Sadly the article and picture aren't online. You'll see a good story on law blogs, including Sapere aude.
Wednesday, November 12, 2003
Posted 11:01 AM by Lawren
This is one way to speed up the backlog of cases in today's divorce courts.
Tuesday, November 11, 2003
Posted 8:37 AM by Joshua Claybourn
The Supreme Court has agreed to hear a Guantanamo detention jurisdiction case. The Court granted certiorari in Rafiq v. Bush and Al Odah v. United States. The issue is:
Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba.
Prof. Volokh, one of my favorite legal academics, predicts the Court will answer "yes" -- courts do lack such jurisdiction. He cites Johnson v. Eisentrager (1950).
Monday, November 10, 2003
Posted 3:05 PM by Kevin
Busy, busy, busy we all are, just as Vonnegut's Bokononists might say. As we plunge into the twilight time of the semester, the pregnant pause, there is alternately oodles of time and no time at all. I'm sure that other first years share my growing frustration and paroxysms of studying at this point in the journey. I study, and create notecards, and edit outlines, and have no idea whether it's doing any good.

Have I noted this feeling before? Yes. Is it worth noting again? Also, yes.

In the moments I've allowed myself to skim the news, I offer two items of terrifically different importance. The first, is a BBC report about the current horror in Uganda, which is the sort of thing I believe the U.N. was custom-made to tackle. The second is a brief analysis by blogger Glenn Reynolds regarding the infamous Statford High School "crackdown" in Goose Creek, South Carolina. Read, weep, and ball up your fists in anger.
Saturday, November 08, 2003
Thursday, November 06, 2003
Posted 12:30 PM by Kevin
The "good doctor" responds

Democratic presidential candidate Howard Dean has caught a lot of flack for his recent comment regarding southerners, and rightly so... but I think the enthusiastic attacks he weathered at the CNN "Rock The Vote" (lamest debate title, ever) debate might actually help him. If possible, it's gotten him even more notoriety via name and face exposure than he ever had previously.

Additionally, I don't get the impression that those who support him really care much about the remarks. Meanwhile, those who either tacitly don't support him or don't know about him are being given the opportunity to learn more about him than they might have otherwise. I'm not sure that this is a "all press is good press" thing, but I don't see his opponents reaping much from it for all of their venom.
Wednesday, November 05, 2003
Posted 4:07 PM by Kevin
Oh, and I can't resist... The Onion has an article that would warm the hearts of some Libertarian friends of mine.
Posted 4:03 PM by Kevin
Outline, outline, outline. That is my current mantra and "passion," as I whittle away hour after hour trying to decipher my notes and slap together something that makes sense. There really isn't much else going on, school-wise. I had yet another day where I was caught with my pants down in class. I've become so exam-oriented, lately, that I've begun to really slack in my daily assignments. Then again, considering two other people had the same trouble in property this morning, I at least have some company. =}

I voted yesterday. Since our apartment building is a voting location for the town in which we live, I didn't have much of an excuse, but I'm proud of my vote, nonetheless. I wanted to note, however, that a good friend of mine, who shall remain nameless, ran for office this election. He got exactly 86 votes and emailed me with a not-so-understated tone of despair. I told him that he got 86 more votes than 99.9% of us ever will, and far more than many who do run for office. In this age of massive, cynical, corporate-style campaigns, it's refreshing to see someone truly make an attempt at a homegrown candidacy. Good for you, buddy. You're what democracy should be all about.
Posted 9:50 AM by Kelly
Congratulations, Daddy!

David Letterman is a father.
Best wishes to Mom, Dad, and baby!

Sigh. That man is proof positive that an intelligent mind and a superb sense of humor are enough to make women swoon.
Tuesday, November 04, 2003
Posted 8:06 AM by Lawren
With behavior like this, people are never going to see lawyers in a favorable light.
Monday, November 03, 2003
Posted 3:55 PM by Kevin
And if there weren't enough types of "rage" out there, this Samhain brought on one more: "Trick or Treat Rage."

A close reading of the story reveals a funny bit of amphiboly in this line: "The father and son, who is believed to be about 5-years-old..."

Indeed. =}
Posted 2:57 PM by Kevin
Will the Pentagon reinstate the draft?
Some people think the answer is "yes." Salon reports that some signs point to the reinvigoration of the infamous draft boards (free day pass required). Representative Charles Rangle (D-NY) has so far been the most vociferous promoter of a new draft (for political gain or not), but there is reason to wonder if it could become a reality sooner than most of us would like to think.
Posted 8:47 AM by Kelly
My favorite thing about politics
The funnies!
Even Condi would have to laugh.

And, enough to make a liberal proud.
Saturday, November 01, 2003
Posted 2:26 PM by Kevin
Apparently the nation is deeply divided over virtually every issue one can name. What a shocker, eh? I'm not sure if I can take another presidental election like the last one.

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