Paul Robeson sings Zog Nit Keinmol (the Partisans Song) in Yiddish.
Archive for the ‘Uncategorized’ Category
Radical Music Interlude
Sunday, December 6th, 2009The class system and legal education, part 1
Saturday, December 5th, 2009I just finished re-reading Debbie Hagan’s book Against the Tide, which I recommend to prospective law students, as well as to others who want to understand how economic class works in the context of the American Bar Association and the law school accreditation process.
On the surface, it is the story of Massachusetts School of Law, founded in the ’80’s in order to make a good legal education accessible to working class people in northeastern Massachusetts. That story is interesting in itself, but the real value of the book is that it explores the various institutional obstacles that were placed in MSL’s path, and in particular the hostility of the ABA’s Section on Legal Education to MSL’s attempts to become accredited.
Herre’s a precis: Michael A. Boland, a sleazy businessman, started Commonwealth School of Law in Lowell, MA in 1986. It was geared toward low-income students, and it was shady. Boland retained control of decision-making, cut corners, and was dishonest with students about the accreditation process. After the Massachusetts Board of Regents investigted the school and found it lacking even the foundation of a good law school, Boland gave in to student pressure and agreed to hire a dean.
The man he hired was Dean Lawrence Velvel, a dedicated advocate of expanding access to the legal profession. As a young law professor, he had sued the executive branch to enjoin the Vietnam War. An all around good guy, except when it comes to Israel. Velvel had a vision of a law school that would be run with low enough costs that it would be able to provide an inexpensive, but high quality, legal education. He tried to bring the law school up to the Board of Regents’ standards, and to run a school that was accountable to the students, but found himself blocked by Boland repeatedly. When he stood up to him, he was fired.
At that point Velvel and student leaders met and decided that the best thing to do would be to start a new law school in the area. The students who were being poorly served by CSL would be able to enroll in the new school, and they expected that it would achieve degree-granting authority before CSL would. They found a building in nearby Andover, and, with a community effort, started MSL in fall 1988. As expected, CSL collapsed and MSL was certified by the Commonwealth of Massachusetts.
But certification by the Commonwealth only meant that graduates were eligible to sit for the bar in Massachusetts. The school could, and did, petition for eligibility to take the bar exam on a state-by-state basis, but to be able for students to be able to sit for bar exams across the country, it would be necessary to secure accreditation from the American Bar Association’s Section on Legal Education. And the ABA was unwilling to permit it. MSL failed to meet its criteria, and though the ABA had the means to make exceptions for the sake of educational diversity, it would not do so for MSL, despite the fact that the school was just about an ideal candidate for exception.
(More to come)
Big ponderable
Saturday, August 8th, 2009In a just society, what would a proper legal system look like?
I don’t know of any attempts to answer this question from the perspective that a just society is a libertarian socialist one. I guess that’s due to the fact that there’s no real agreement on what such a society would look like. Since law is a human, social, political, and economic institution, you probably need to know something about what the social, political and economic relations between people are before you know what kinds of disputes would arise that would find resolution in a legal system. And in my view, until we have a libertarian society we won’t have detailed knowledge of what humans are like.
Nevertheless, I think it makes sense to think about such things. Political figures like Michael Albert and Murray Bookchin have spent a lot of time thinking and writing about possible political and economic structures that are rooted in and consistent with socialist values. I think it makes good sense to think about what dispute resolution and other functions of law would look like in a libertarian socialist society.
the anti-gay people are right: legalizing gay marriage leads to legalizing incestuous marriage
Sunday, July 26th, 2009but not in the expected way. here’s how:
the massachusetts supreme court recognized the right of people to same-sex marriage.
the general rule is that any two people can get married. for a marriage to be improper, it must fall under a specifically enumerated prohibition, such as incest, polygamy, nonage (i.e. someone was under 18), etc.
the prohibitions on incest are listed in M.G.L. c. 207, sections 1 and 2. they state:
***
Chapter 207
Section 1. Marriage of man to certain relatives
No man shall marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandfather’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister or mother’s sister.
Section 2. Marriage of woman to certain relatives
No woman shall marry her father, grandfather, son, grandson, brother, stepfather, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother or mother’s brother.
***
(notice the double standard in these laws? probably not. but there is one, which you might find if you read carefully.)
the legislature, not anticipating gay marriage, only prohibited opposite-sex incestuous relationships. so based on the laws on the books, incestuous *gay* marriage is currently permitted…
if not amended legislatively, this could lead to one of two interesting situations.
situation 1:
an opposite-sex, incestuous couple could challenge the incest provisions on equal protection grounds, arguing that the law discriminates against straight people by prohibiting them the incestuous marriage that gay people are permitted. they would have a strong case, and would meet their burden of proving that the government lacks a rational basis for the discrimination (especially in the wake of goodrich, the case that legalized same-sex marriage).
that would leave the court three options: strike down the prohibitions against straight incestuous marriage; create a new restriction against gay incestuous marriages; or punt and give the legislature 180 days to come up with a solution. the most likely scenario is also the most boring one: they will punt like the saskatchewan roughriders on third and long.
situation 2:
a same-sex incestuous couple is prosecuted under M.G.L. c. 217 s. 17. they argue that their act was not incestuous because it is not within the definition of incest in c. 207. very likely they are acquitted, because they committed a crime which, while obviously within the intent of the statute, is not in the text, and therefore they cannot be found guilty, by the rule of lenity. presumably the court cannot create a new common law “gay incest” crime (i assume the legislature has a monopoly on defining new crimes). so then it’s up to the legislature to ban incestuous gay marriage if it wishes to.
the bottom line: one way or another, sooner or later, incestuous gay marriage will be banned by the legislature. so act now, while the window of opportunity is open!
Activist Judge
Friday, July 24th, 2009Gloating
Tuesday, July 21st, 2009The bar exam is a week away, and what is my mind on? Gloating that I was probably right about legally challenging John McCain’s eligibility for the Presidency.
Around this time last year I was completely obsessed by the idea that John McCain’s eligibility for the Presidency could be legally challenged based on his birth outside of the United States’ limits but within its jurisdiction. As many noted at the time, this raised a serious legal question about whether he is in fact a natural born citizen, a Constitutional prerequisite for being President. I wrote about it on another blog. But legal authorities who were quoted in support of the proposition that McCain’s eligibility was in doubt would always add that it was doubtful that there was any real way to legally challenge his eligibility, because of justiciability issues. The main concern that they cited was standing: what individual would be injured by a wrongful Presidency? Gabriel Chin, who wrote what was probably the best argument for McCain’s ineligibility, suggested that it might be the vice president alone who would have standing. Federal lawsuits filed by various individuals were dismissed just for that reason - lack of standing.
I argued at the time that while the federal courts were right to dismiss the cases, the state courts provided a plausible forum for challenges. The reason is that while a Constitutional plan exists for determining the winner of the Presidential election based on the states’ winners, each state is responsible internally for its election rules and procedures, including for federal elections. And many states, including several red states with significant electoral college representation, permitted challenges to the nomination and/or election of candidates who were not eligible for the office. Some of the states were very strict in terms of who had standing to file such a challenge, while others were more generous.
So my idea was to organize legal challenges to McCain’s nomination or election in various states. It seemed like a pretty reasonable approach, with a plausible chance of success. I reasoned that the state courts would have jurisdiction over the question because it was essentially a state election question. Given that the eligibility issue was an important federal ingredient, the case might be removed (or appealed) to the federal system, but crucially the standing problem would be bypassed. And we might have been treated to the sweet, sweet irony of the same court that appointed George W. Bush in 2000 having to resolve the issue of McCain’s eligibility in 2008. (This scenario would make an excellent exam question for a Federal Courts class, by the way.)
The legal challenge went nowhere. Almost nobody was interested, for different specious reasons, and those who were somewhat sympathetic were not in a position to help. But here’s the gloating part: when I tried to organize people on Facebook, in the main Obama group, I was treated to an extraordinary level of idiotic vitriol. To the extent that there was any substance to what people were saying, it was that the legal scholars who believed that McCain’s eligibility is a real issue were mistaken, and that I was mistaken about the procedural approach that I was promoting.
But then this came along: An article by Dan Tokaji, a leading election law expert, suggesting essentially what I had been suggesting.
And that’s why I gloat. I love being right.
Postscript:
I was reminded of this issue while browsing Stuff White People Do, an excellent blog about race I just discovered, whose title parodies Stuff White People Like, a rather stupid blog about race.
Stephen Colbert on Judicial Neutrality
Saturday, July 18th, 2009Radical Music Interlude: Bragg, Chapman, Rheostatics
Thursday, July 16th, 2009The Calvin, a local performance venue named for President Coolidge, will host a concert by Billy Bragg on July 31 and one by Tracy Chapman the following evening. But I can’t afford to go to concerts.
The Supreme Court and the American Elite
Thursday, July 16th, 2009The Supreme Court and the American Elite is the title of a new book by Supreme Court scholar Lucas A. Powe Jr., who should definitely not be confused with former Supreme Court Justice (and notable elitist) Lewis F. Powell Jr..
The book covers the entire history of the Supreme Court through 2008, arguing that “virtually every major Supreme Court ruling suited the wishes of the most powerful politicians of the time.” That’s just what you might expect if you’re a realist. As Brian Leiter writes: “Maybe we could have a grown-up confirmation hearing if the Senators were to read” the book.
With my reading backlog, I’m not likely to read this anytime soon, though the idea is interesting. If someone does read it, let us know how it turned out.
Prediction: DOMA is done for
Thursday, July 9th, 2009Yesterday, Massachusetts Attorney General Martha Coakley filed a challenge to the Defense of Marriage Act (DOMA) in federal court. This is the statute in which the federal government declared that states need not recognize gay marriages recognized by other states, and that it (the federal government) will not recognize gay marriages as marriages.
[States have the right to sue the federal government, and they even have special standing to do so. In other words, they have special power to get a case into court that private individuals don't have. That principle established in Massachusetts v. EPA, a case from a couple of years ago in which the Commonwealth clobbered the Bush administration.]
I’ve made two bold public predictions this year. Back in March, I predicted that Justive Souter’s resignation was imminent. And before the NHL playoffs started in April, I predicted that the Penguins would win the Stanley Cup. Emboldened by the accuracy of those two predictions, I am now predicting that the Supreme Court will strike down DOMA as unconsitutional in the next few years. In fact, I predict a decisive majority, at least 7-2.
Are the supremes hostile to gay marriage? I think so. I suspect all of them are against it, except maybe Ginsberg and/or Breyer. But those who I imagine are the most hostile on a personal level to gay marriage are also the ones who are most committed to federalism. If someone like Scalia votes to uphold DOMA (I’m picking on Scalia because his dissent in Lawrence v. Texas struck me as incredibly homophobic), he would have difficulty maintaining credibility as a federalist next time there’s a close question of states’ rights.
DOMA represents a pretty sharp federal intrusion into state police powers. Upholding DOMA would have to mean hypothetically upholding a reverse DOMA. That is, it would have to accept federal legislation telling states that they need not recognize other states’ straight marriages, and declaring that the federal government does not recognize straight marriages. I find it inconceivable that such a law could be upheld.
