From this article:

Two key Senate Democrats yesterday said that federal Judge John G. Roberts Jr. will have a hard time being confirmed to the Supreme Court if he doesn't publicly state his position on past court cases such as the one that established abortion rights.

Vermont Sen. Patrick J. Leahy, the ranking Democrat on the Judiciary Committee, said he doubts that Judge Roberts can be confirmed unless he agrees that Roe v. Wade -- the 1973 abortion case -- is "settled law."

And in a speech yesterday at the National Press Club, Sen. Charles E. Schumer, New York Democrat and committee member, listed three "troubling" pitfalls that could upend Judge Roberts' nomination. The No. 2 pitfall was Judge Roberts' reluctance to discuss specific Supreme Court cases -- even ones that might resurface before the court.

Update: A group of female Senators, led by Barbara Boxer, has firmly declared they will vote against Roberts unless he says he would uphold Roe v. Wade.

To all those taking the Indiana State Bar exam! I'm sure you'll do great!

I admit the text can use some work, but the core of the idea I'm proposing is there. Numerous hot button issues of our modern society boil down to the core issue of Right To Privacy. Perhaps the largest debate between legal scholars now is whether or not a right to privacy exists in the U.S. Constitution. Strict Constructionists believe the answer is no. The Supreme Court in the 1965 case of Griswold v. Connecticut found a implicit right to privacy existed in the penumbra of rights guaranteed by the Bill of Rights.

Luckily the Founding Fathers were pretty intelligent. They provided a mechanism in our Constitution to allow us the ability to update it as the need arises. The process to amend our Constitution is not an easy one. Either both Houses of Congress must pass a proposal by 2/3 majority with the legislatures of 3/4 the states must ratify any proposal or a national constitutional convention must be called for. Perhaps now is the time to have an explicit Right to Privacy and lay the issue to rest. Would such a proposed amendment pass? I don't know; however, aside from the nosy neighbor or the Hollywood stalkerazzi I can't see anyone disagreeing with the idea of a Right to Privacy.

Click here for a pictoral display.

Perhaps the best way to examine any potential nominee for the Supreme Court is to first look at any possible negatives. How will people attack John Roberts? In general he has received overwhelming praise from Republicans and measured respect from Democrats. But we would be naive to think such calm nerves will carry the day, and we would do well to look behind the curtain and examine how Roberts will be attacked.

There appears to be two chief areas of opposition - his briefs in the Solicitor General's office and the decisions he penned during his brief stint as an appellate judge. As Deputy Solicitor General Roberts wrote a brief that argued Roe v. Wade was wrongly decided and should be reversed. But the Solicitor General has a client: the President and his administration, and as such he argues as the President directs in the same way that an attorney argues as his client directs. I do not doubt that Roberts disagrees with the holding in Roe v. Wade, but opponents should be cautious in attributing too much of his work as deputy Solicitor General to his own beliefs. The briefs reads:

We continue to believe that Roe was wrongly decided and should be overruled . . . [T]he Court's conclusion[] in Roe that there is a fundamental right to an abortion . . . find[s] no support in the text, structure or history of the Constitution.

That "we" is the president and his administration. As Deputy Solicitor General he also opposed a congressional effort - following the 1980 Supreme Court decision Mobile v. Bolden - to make it easier for minorities to successfully argue that their votes had been diluted under the Voting Rights Act. In private practice, he also wrote a friend-of-the-court brief arguing that Congress had failed to justify a Department of Transportation affirmative action program. (Adarand Constructors, Inc. v. Mineta, 2001). Based on these briefs, some groups will complain that Roberts is "anti-minority" or even racist. But such criticisms say much more about the critic than Roberts, and display an extreme ignorance of even basic legal principles.

This is best demonstrated in Roberts' own words in Hedgepeth v. Washington Metro Authority, a case where a twelve-year-old girl was taken into custody, handcuffed, and driven to the police station because she ate a french fry in a Washington metro station. Roberts wrote the opinion for the D.C. Circuit, affirming a district court decision that dismissed the girl's complaint, which was based on the Fourth and Fifth amendments.

Does that mean Roberts thinks fries should be banned in metro stations, or that the law which dictated she be arrested was a good one? No. He began the opinion by noting that "No one is very happy about the events that led to this litigation." Nevertheless, the law was clear and the court is not authorized to second-guess the wisdom of the District's policies: "The question before us is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution."

One way to tell an informed legal pundit from an ignorant one is that informed observers understand there are numerous ideas and laws that may be stupid, but are not unconstitutional. As Roberts wrote: "Rational basis review does not authorize the judiciary to sit as a superlegislature." Roberts' opinion was joined with unanimous support from the panel, which itself was affirming a district court opinion. Roberts isn't exactly a radical jurist.

If history is any indication, those who oppose Roberts' intellectually sound judicial approach will simply settle for personal attacks that have little to do with judicial philosophy. Some conservatives have started down that road, with Michael Meckler complaining that Roberts has worked in Washington for too long and was too close to his law partners, some of whom were - gasp! - Democrats that "helped defend both President Clinton and the Democratic National Committee."

Judges are not politicians and should be judged on their legal approach alone. But even if we do look beyond the law and into Roberts' personality, we see a real winner. Raised as a Hoosier in Northwest, Ind., Roberts has developed a reputation as calm, sensible, down to earth and respectful. Indeed, that Roberts would have such a close and warm relationship with partners who represented Clinton and the DNC only furthers the notion that Roberts is the right choice.

Update: Ann Coulter isn't happy because "Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever..." Yet Chief Justice Rehnquist had no more experience when he was selected. The comparison between Roberts and Rehnquist is a good one, too. Rehnquist once had Roberts as a law clerk and considers him a protege.

One of the nice things about this blog is if you search it you will gain valuable nuggets of advice from those who have been there and done that. In a July 12, 2004 post former contributor Lawren Mills told us why we should take Tax. (I would link to the post directly but for some reason the link brings up all of July 2004). Everything she stated is correct. Tax has weird terminology that you're not going to pick up in other classes. Some concepts you will not understand unless you work on the practice problems multiple times. Tax provides you with a background knowledge that lets you understand any bar essay question dealing with Federal Income Tax, State Tax, Estate & Gift Tax, sales taxes, property taxes and any other tax question that can be raised for a 40 minute essay.

While in bar review an observer could have easily determined the difference between those who took a tax class and those who had not. Some subjects you don't need in school to have a decent understanding of them in bar review. If you took Sales you will understand Secured Transactions. Both are Uniform Commercial Code classes so if you understand one aspect of the UCC you will understand other aspects of the UCC. I didn't take Business Associations I, but between material you learn in other classes and any business classes you've ever had, including my high school business class, you will understand Agency, Sole Proprietorships, and Limited Liability Entities.

Tax is different. Unless you have some background in accounting, finance or business most students will lack any background to understand the concepts and terminology. Whether a primary or secondary issue you can be assured some tax question will be a part of an essay. I know Prof. Jegan is rough and gruff in style. I know many students are afraid of numbers. I know many students aren't used to a class with pure black and white, yes and no concepts after a few years in law school. I know many people fear the class because they know it will hurt their GPA. I DON'T CARE!

I listened to Lawren and a few days before the bar exam I'm glad I did. I'm not a tax expert, but if I see a tax issue on an essay I feel I can give a minimally competent answer. My two pieces of advice to you are these:

1. Before you leave this school, make sure you take a tax class.
2. If at all possible take that class before your final semester.

If you can't perform point #2, still perform point #1.

Judge John Roberts, Jr. will be the next justice in the Supreme Court. His stance on Roe means that Senate Democrats will vehemently oppose him and will filibuster. With compromise out of the picture, Senate Republicans will exercise the constitutional-procedural option and consent to Roberts on a simple majority vote.

Roberts grew up in Indiana and went to Harvard for undergrad and law school. He has firmly stated his opposition to Roe v. Wade and is a fairly consistent judicial conservative.

I was going to write a lengthy post with speculation on Bush's pending Supreme Court nominee, but I decided to let the leaves fall first. And so they have... Sources are reporting that Bush will announce the nominee and all eyes are on 5th Circuit Judge Edith Brown Clement.

Based on the press's success rate at calling Bush's cabinet nominations, I'm not banking any money on Clement, until I hear the name from Dubya's mouth.

Update: It appears that my caution may have been well-founded. ABC News is reporting that informed sources are telling them that Clement is NOT the pick.

Update 2: Bush will announce at 8 PM EST that Judge Roberts of the D.C. Circuit will be his nomination to the U.S. Supreme Court.

Retiring Supreme Court Justice Sandra Day O'Connor has signed on to teach at the University of Arizona - James Rogers College of Law. According to the school's website, Justice O'Connor will co-teach a 1 credit course on the Supreme Court with her former clerk RonNell Andersen Jones. Ms. Jones also clerked for Judge William A. Fletcher, U.S. Court of Appeals for the Ninth Circuit.

The class will only run around 2 weeks, and with only 1 credit hour at stake, the students will likely expect only a glazing over the different areas relevant to SCOTUS. However, while this class may not be monumentally enlightening in its topics, the mere presence of a Justice that writes so many of the opinions we read daily is enough to make this author swoon. It's like a kid getting to meet Mickey Mouse for the first time.

It is opportunities like these that are what help do a few things. 1) For students that are law nerds, a Justice's presence poses the opportunity to ask questions and get insight into a world that we mostly can only imagine what is like. 2) For a school with struggling rankings *ahem* it will really boost interest in the school. This boost would then be bolstered by the visits that surely would follow once a SCOTUS Justice shows up to teach. 3) It increases the credibility of the school, making it a "player" in the legal world.

All in all, this sounds like it will be a great opportunity to Arizona students. What makes me wonder is that fact that the course will only be around 2 weeks. Perhaps, then, Justice O'Connor would be willing to have similar classes at other schools? My instincts say no, as her given reason for retirement was to spend more time with family, but a legal nerd like me can hope.

Lastly, I think if any Justice were to retire and teach I would be giddy and try to attend. Some people do not care for O'Connor, but even if you do not, the opportunity to get a first hand view (although vicarious) into the SCOTUS is invaluable. There are very few SCOTUS clerks, and even fewer Justices. This sounds like a juicy opportunity.

Disney World has implemented finger scanning technology at their gates, supposedly to protect legitmate ticket holders. Discuss.

I'd like to take a quick moment to write about a legal sidestory to the Rove-Plame affair-- namely, legal protection and the lack thereof awarded to reporters and their confidential sources.

Forty-nine states have the so-called "reporter shield" laws that award varying levels of protection for reporters' confidentiality agreements with their sources, however no shield law exists in federal statutes. This is why the federal special prosecutor investigating the Plame-leak case was able to demand that Matthew Cooper and Judith Miller reveal their sources and why Miller remains in jail currently in contempt of court.

Now Congress is considering passing a federal shield law, and I have come to consider whether that would be a good idea. While I agree in principle that certain protections should be given to reporters, I worry that shield laws are not the most effective means of creating such a protection.

First, on the principle of necessity, the first amendment's freedom of the press should make a federal shield statute unnecessary. How free is a press that cannot keep confidential sources? Like freedom of speech, the words "freedom of the press" with no further explanation in the constitution, invites judges to fully and flexibly determine the scope of the right.

Second, shield laws, on the other hand, are inflexible and have the real potential of being both under-inclusive and over-inclusive at the same time. They, in effect, define who qualifies as a journalist and who does not, a matter that some reporters complain is akin to licensing. But when are bloggers or other "citizen journalists" protected? What about reporters who are working outside the scope of their job?

Keeping in mind that I haven't had contracts yet, here is a question that popped up due to an email (and years of general policy) at work. I posted this on my own blog a few days ago.

Let's say that you are a parent (which some of you actually are) and your kid gets a library card. Said kid is under age, so you have to sign for them to get a card. Presumably (and I'll have to verify) you're signing that you acknowledge they have a library card with library privileges and that you accept responsibility for any fines, lost & damaged items, etc. that are checked out on kid's card. Your kid, your problem. Right? Great.

So, then you want to use kid's card because (insert reason here: your card has a fine, your card is lost, you left your card at home, etc.) and they tell you NO you cannot use that card. Library cards are "non-transferable."

If you have signed something accepting responsibility for what is on that card, shouldn't you be able to use that card?

Chief Justice Rehnquist released a statement today effectively saying 'The rumors of my retirement have been greatly exaggerated' and promised to stay on for yet another term.

The Indiana Supreme Court awarded $137,500 in grants to assist 36 counties in providing translator services. Chief Justice Randall Shepard hopes the awards break down language barriers faced by non-English speaking people when they are in the legal system.

Chief Justice Shepard said, “These grants reflect the commitment of the legislature and the judiciary to making sure the people who come to court have the chance to be heard even if English is not their first language. The grants also demonstrate how hard local courts are working to resolve language issues.”

Since 2000, eight court interpreters passed "a rigorous Spanish language examination process" allowing them to be certified. In Spanish the title to this post means, "I want a lawyer please." If you hear that phrase please remember the significance of it.

On Sunday July 3, in a post on ILN I asked Vice Chancellor Plater to elaborate upon two assertions he made in his column in the Indianapolis Star, which I feel are misleading to the Indy law community-- namely, first that Professor Bradford is not eligible for tenure and second that he has not applied for tenure.

I also e-mailed him that day asking for a response. Yet to-date, ILN has received no response from him.

His failure to respond is particularly disheartening considering two facts. First, my reading of the Academic Handbook does not show any time length requirement for a professor to apply for tenure. Again, I ask: why is Professor Bradford ineligible for tenure? We, the students who have had him for class or might consider taking him in the future, have a right to know, or to know if that assertion is simply false.

Second, according to the text of a letter to Assistant Dean Allington which Professor Bradford sent to the law school listserve, he did signal his intent to apply for tenure, thus spurring the negative straw poll vote on Bradford's chances for being granted tenure.

The law school needs to publicly state in very certain terms the requirements for tenure, and the faculty members should publicly explain the reasons for their 'no' votes. Only through such a public reckoning may the tenure process cleanse itself of any political discrimination, if it is indeed present.

The students of IU Law-Indianapolis deserve leadership, and thus far they are not getting it.

For those of you who want to hear about something other than the faculty dispute issue, then this just in.

Due to huge budget cuts throughout IU, Indy Law has had to restrain on the liberal use of air conditioning that it is so well known for. Instead of a crisp 72 degrees, the average temperature in the atrium, the thermostat has been pushed up to 76. And what has felt like a brisk 69 degrees in most classrooms (although this is an exaggeration) has taken a jump to similar temperatures.

I don't know about my fellow ILN readers, but I feel this is a budget cut that has actually produced a positive result in the school. In the words of the Goldie Locks, 76 degrees is "just right."

For those of you seeking refuge from the summer heat, you can still find shelter in the law school. However, now you won't have to come equipped with your parka and snow dogs.

And in similar news, Indy water usage is on the rise. This huge increase in usage could create a safety hazard, as it could reduce water pressure so drastically that it will make fires difficult to be managed by the fire department. While the warning to cut back on watering your lawn was given on 6/27, the effects of the high water usage remain. So on hot days, don't water your lawn as much, and head on down to Indy Law a crisp 76 degree environment and nice leather chairs.

Here's an easy read by yours truly on "Changes in Bankruptcy Law."

The Progressive Faculty and Staff Coalition (PFSC) has issued a "Statement in Support of Florence Roisman and Mary Mitchell" that is now available online. Also, Prof. Mitchell has submitted an open letter, which we have agreed to publish below in its entirety.

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An Open Letter from Professor Mary Harter Mitchell
July 6, 2005

Professor Bill Bradford has been slandering me for some time, and now that the Indianapolis Star has added libel to slander, it is time for me to defend myself. Unlike Professor Bradford and his unnamed informants, I will not disclose or rely on communications or information from confidential meetings of the law school’s Promotions and Tenure Committee. I am obliged to honor the confidentiality of these meetings, as any conscientious academic professional should know.

Prof. Bradford is quoted in the Indianapolis Star as having said that I have consistently voted against him for tenure. That is false, and it is false at several levels.

In the first place, as others have confirmed, Prof. Bradford has never applied for tenure, nor is he yet eligible for tenure in due course.

Furthermore, I have never based my vote or evaluation of any colleague—for purposes of contract renewal, promotion, or tenure—on the candidate’s race, politics, substantive position on law school issues, gender, or veteran status. I am quite careful and conscientious never to do this. As the saying goes, some of my best friends are political conservatives, including many students and colleagues at the law school whom I love, support, learn from, and respect very much; furthermore, on some issues, I am myself quite “conservative.” Twisting Prof. Bradford’s difficulties at the law school into an issue of “political correctness in academia” is pure distortion of the reality, itself political. Those who insist on reading Prof. Bradford’s situation in such a political framework are only showing their own predispositions to distort reality and their own unwillingness to get all the facts before leaping to conclusions that confirm their own prejudices.

In addition, deliberations by the school’s Promotions and Tenure Committee are required by professional ethics to be confidential. Professor Bradford’s statements on this matter must therefore have been either concocted by him or derived from persons who have violated a core professional ethic of confidentiality. Either option should raise suspicion of the accuracy of the information, and, indeed, his information is grossly inaccurate. To be blunt, either Prof. Bradford or his sources are twisting the truth. Furthermore, Prof. Bradford refuses to say where he got his (inaccurate) information concerning confidential discussion in Promotions and Tenure meetings--if he did not make it up. The faculty recently imposed on students an Honor Code, the terms of which require students to report other students’ violations of the code of student conduct of which they have knowledge. This Honor Code was passed unanimously by the law school faculty, and Prof. Bradford served on the special committee that produced this code. Yet Prof. Bradford does not impose on himself the same duty we have imposed on students, as Prof. Bradford refuses to say who on the Promotions and Tenure Committee has violated the duty of confidentiality with (inaccurate) reports about concerns raised or comments made during confidential meetings. The hypocrisy of this is stunning, and this lack of information makes it difficult for those of us slandered by Prof. Bradford’s statements to find the source of his mis-statements. On the law school blog Prof. Bradford states that he is “really tired of ‘confidentiality’ and anonymity becoming shields behind which moral cowards hide.” Does this mean he’s finally going to tell us who has violated Committee confidentiality with misinformation or with information he has twisted? While Committee discussions must be confidential, the names of persons who violate the confidentiality requirement are not.

Prof. Bradford has shown, in his continual slander of me (and Prof. Roisman) to students, to colleagues, and now to the general public, an intention to blame his predicament on particular persons whom he has demonized with a frightening degree of out-of-control fury and distortion. This in itself becomes a public reason to question his fitness for a permanent position on a faculty that values fairness, truthfulness, and ability to behave professionally.

I have not consistently voted against Prof. Bradford for tenure. I have never voted against Prof. Bradford for tenure. I have not consistently voted against Prof. Bradford at all. Prof. Bradford was awarded a promotion this past year and the vote on that was unanimous. Any reasons for concern about Prof. Bradford’s fitness for a tenured position at this law school will be taken up through the school’s legitimate and legitimately confidential processes. One need not question the quantity of his publications or his popularity with a large number of students to hold concerns.

Damage to Professor Bradford’s reputation and career must be attributed to the true sources: Professor Bradford himself, members of the law school’s Promotions and Tenure Committee who have misinformed him, Star columnist Ruth Holladay, and others basing their positions on incomplete and erroneous information.

The Indiana University School of Law at Indianapolis is an already outstanding law school improving continually and served by faculty, staff, and administrators of high integrity and ability. With the appointment of Dean Susanah Mead as interim dean, we are in a good position to put lies behind us and focus on the continued building of excellence in a framework of integrity. For myself, I intend to turn to those tasks.

Should Judge Emilio Garza be nominated, as many insiders predict, his jurisprudence will soon become the focal point of Washington, and we might as well help kick off the inspection. Judge Garza currently sits on the 5th U.S. Circuit Court of Appeals. He was educated in Indiana at Notre Dame and, later, the University of Texas School of Law. Garza was considered for the Supreme Court by the previous President Bush.

Judge Garza's stance on abortion may be his most interesting aspect, and also the stance that will help him survive a brutal nomination process. Judge Garza has voted according the dictates of Roe v. Wade's precedent, which at the outset reflects a respect and deference to precedence (something that has tripped up other nominees). But in two opinions involving Louisiana's abortion laws - Sojourner v. Edwards (1992) and Causeway Medical Suite v. Leyoub (1997) - he still voiced passionate hostility to abortion jurisprudence. He wrote, "Casey [another prominent abortion case] is not about abortion; it is about power." And he argued the Court made an illegitimate "political choice" that moves toward "systematically eliminating checks upon its own power." In Okpalobi v. Foster (2001), he refused to strike down a Louisiana law imposing strict liability on abortion providers for any injury to the mother or the unborn child, but he also held just this year in U.S. v. Bird (2005) that the Freedom of Access to Clinic Entraces Act was a valid exercise of congressional authority under the Commerce Clause.

There is little doubt that Judge Garza would vote to overturn Roe v. Wade, but it should also remain clear that Garza is no radical on the subject and carries a respectable position. Understanding his role on the Circuit Court, he has dutifully followed the precedent he is bound to follow, while making clear his disagreement when permitted.

Nevertheless, it doesn't appear as though Garza would object to individual states permitting abortions to take place. If there's one thing that sums up Judge Garza's jurisprudence, it's respect for states' rights, not just on abortion, but on other issues as well. In Causeway Medical Suite v. Ieyoub he expressed concern that the Supreme Court's broad readings of the word "liberty" in the Constitution "have slowly eroded the scope of public debate." He argued that if the Court had stayed out of various arenas - marriage, child rearing, school curricula, abortion, etc. - state laws might have changed "as public attitudes changed." Instead, "the people's Constitution - at least as to unenumerated constitutional rights - has become the Court's Constitution." I, for one, like Judge Garza and would support his nomination to the high court.

Much like a NASA countdown to launch a rocket various people are counting down to take the bar exam. While NASA can stop a countdown in the event of a technical malfunction or bad weather, nothing short of a wayward NASA missile crashing into the Convention Center can stop the countdown for taking the bar exam in 3 weeks.

The review classes are the major grind you've heard them to be. Imagine all of law school combined into 2 months. That being said, there are usually some interesting, even fun, moments. Who couldn't use fun at this time?

The lecturer discussed a case dealing with the attempted revocation of a will. One way is to physically destroy the will in some manner. The lecturer discussed an old case where the father was so mad at his son that he put the will against a wall and shot a bullet through his son's name. Since the will wasn't destroyed the will was found to be not revoked and still valid. What can we learn from this old case? If you see this on an essay question ask if the gun was a small .22 caliber or a huge 12 gauge shotgun that blows up wills with ease.

Somehow I doubt a question will be that easy.

IUPUI's Executive Vice Chancellor, William Plater, gave his view of the Bradford-tenure affair in today's IndyStar. In that column he writes:

After reading the [Holladay] column, some readers concluded that Professor Bradford has been denied tenure at the Indiana University School of Law-Indianapolis, which is not so. Professor Bradford has not presented his case for tenure. He is not yet eligible. There has been no vote on tenure.

Unfortunately this statement presents an incomplete view of the situation, which is never rectified in the remainder of his column, and thus misleads the Star's readers. While Bradford has not formally applied for tenure, an informal straw poll was taken in which 5 faculty tenure review members voted against tenure for Bradford.

Plater states that Bradford was ineligible for tenure, but he gives no explanation of this statement. If Bradford really was ineligible, then I invite Mr. Plater to explain to the IU Law community why this is the case, citing official written tenure review policy.

In the absence of ineligibility, the question remains open as to the reason for the 'no' votes against Bradford. And if the reason is merely that Bradford had not been at IU Law-Indy long enough, then I suggest a change of IUPUI/IU Law's tenure review policy-- informal or formal. Any system that prioritizes length of professorship over amount of scholarship is confused.

On a final note, I must say that I am disappointed with the Star for running this column, or at least for running it without a counterpoint. Its Sunday readers will have a dramatically incomplete version of the facts, if they have not read other pieces on the story. Also, I suggest that they clearly state a person's institutional position in the by-line and not after the column, so that the readers know clearly that what they are about to read represents a defense of an institution and not a person's own critically valued ideas.

The first justice to retire in 11 years will be Sandra Day O'Connor. Justice O'Connor, age 75, said she will, "retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor. It has been a great privilege indeed to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure."

Pierre M. Atlas, columnist for the IndyStar, adds his even-handed thoughts to the discourse on the Bradford-tenure story.