Tuesday, February 28, 2006

Great News

Word on the street is that Randy Barnett has accepted GULC's offer.

Monday, February 27, 2006

Thoughts from the Symposium

Several chapter members went to the Federalist Society Student Symposium at Columbia University this weekend. I highly recommend that everyone attend next year. The speakers and discussion were thoughtful and engaging....if only school were like this all the time!

Over the course of the week, it struck me that the panelists who favored extensive application of international law focused exclusively on the most formal aspects of the law: treaties, accords, etc. They argued that the US has an obligation to adhere to these agreements because we believe in the rule of law. You sign a contract, you honor it. That's a great argument to make to Federalists.

But rule of law depends on law being knowable, procedural, and definite. No wonder that the internationalists talk only of treaties and accords. In the case of agreements negotiated by our elected officials, I am very persuaded by their claims that strict adherence is both a legal obligation and good policy. We follow legitimate law partially because it's the right thing to do, regardless of whether anyone will enforce it against us; we also do it because honoring our agreements bolsters our reputation in the long run. The same arguments apply to nations as well as individuals--but only with respect to defined obligations voluntarily undertaken.

Their argument doesn't hold for custom, the court of opinion, the law of nations, or haphazard judicial consideration of foreign law in interpreting our Constitution. The part of international law that stirs controversy isn't usually treaties. I think what we're usually arguing about is the piecemeal importation of ill-defined customary law that we don't get a chance to vote on. It's the customary fluff that lacks institutions to legitimately create or enforce it. By applying that part of international law here, we undermine the procedural safeguards that allow us to protect ourselves. Americans haven't had clear input into it. We don't trust it or respect it, and we have no reason to do so.

So although the rule-of-law argument is alluring, I think the argument only goes so far. It just doesn't extend to the gritty issues.

It was a great conference. I hope you all attend next year.

Friday, February 24, 2006

Law School Clinics - A History

Here's an interesting vignette from an intriguing article (in which Georgetown's clinics make several appearances). I'm sure several of our clinics continue to do a lot of good ... I've got friends in CALS, Juvenile Justice, and others who are finding their time worthwhile. But it's worth thinking about the whole picture.

"Environmental law clinics have sued the army, cities, foresters, petrochemical producers, the EPA, landfills, farmers, and freighters, among many other evildoers. But one famous environmental fight deliciously demonstrated just how specious is the clinics’ “we’re representing the poor” justification. In 1997, Tulane’s environmental law clinic barred a planned plastics plant from a predominantly black township between Baton Rouge and New Orleans. The clinic claimed that it was fighting “environmental racism,” but many town residents, backed by the NAACP, had worked for years to win the Shintech company’s new PVC plant for their parish. After Shintech threw in the towel, Louisiana’s governor, furious at the loss of jobs, persuaded the state supreme court to change the rules governing when law students can represent clients. Under the new guidelines, students could represent community groups only if 51 percent of the group’s members had incomes below 200 percent of federal poverty guidelines."

"You would have thought the court had required law professors and law partners to donate a portion of their income to poor relief. The legal elite rose up in outrage at the requirement that law clinics actually do what they claim they’re doing: represent the indigent. NYU’s Brennan Center, the New York firm of Skadden, Arps, Slate, Meagher & Flom, the Association of American Law Schools, the American Association of University Professors, UC Berkeley’s Center for Clinical Education, and the ACLU sued the Louisiana Supreme Court for violating professors’ and students’ First Amendment rights. With unlawyerlike illogic, David Udell, director of the Brennan Center’s poverty program, railed: “Poor communities in Louisiana still virtually have nowhere to obtain justice.” In the same spirit, the Association of American Law Schools protested that the Louisiana rules “will effectively deny law students the opportunity to provide access to justice for the working poor and for many poor community organizations in Louisiana.”

Wednesday, February 22, 2006

Partial Birth Politics

This from WaPo:

"Oral argument in the case, Gonzales v. Carhart , No. 05-380, is likely to take place during the run-up to the 2006 congressional elections"

On the contrary, I'd be surprised if it wasn't scheduled for later, in November, to avoid the politics. In any case, the decision won't come down till 2007.

Betting seems to be that O'Connor's departure tips the balance on this issue and has triggered the granting of cert.

I speculate that another opening will occur on the Court soon after the elections. Most likely Stevens. Given the obvious willingness of the Court to revisit this law, and if the Republicans retain the Senate (likely), can Roe long stand?

Friday, February 17, 2006

NSA Program Defended

Andrew McCarthy takes George Will to task here.

I wish the Fed Soc would get McCarthy and Cole to debate.

Tuesday, February 14, 2006

Congress's Authority to Limit President's War Power

Professor Cole has written this on Slate. I imagine at least 50% of the Federalist Society members agree with him.

Wednesday, February 08, 2006

"Theistic Metaphysics"?

Justice Scalia has reviewed a new book from the Harvard University Press on Philosophy and the Law.

He is in fine form... check out particularly the last bit. Is law possible without God to furnish right and wrong?

The author of this tome seems to be seriously pondering the bon mot of Voltaire:

Si Dieu n'existait pas, il faudrait l'inventer. (If God did not exist, it would be necessary to invent Him.)

Tuesday, February 07, 2006

Domestic Surveillance

Whether you're concerned about the program which has made headline news or confident that the President is right, don't miss this interesting and detailed discussion between two Federalist Society members (David Rivkin, Baker & Hostetler, and Robert Levy, Cato Institute) who take opposite viewpoints on the legality and constitutionality of the Administration's surveillance program.

Friday, February 03, 2006

Crying Baby Keeps Mrs. Murphy Up All Night

Just a quick though from Civil Rights class the other day. We were discussing the Fair Housing Act and the prof. asked if we thought the Mrs. Murphy exemption and the private club exemption were good ideas or bad ones. A number of people said they thought the exemptions should exist so that there would be a place for racism to "vent"; a place away from the general public. Others said this was a bad idea because if racism is bad, it is bad everywhere. The most interesting comments to me, however, were from the students who were very adamant that the exemptions should go, but were sympathetic to the defendants in Oxford House because the plaintiffs in that case were recovering drug addicts, not members of a racial minority. One student said she could understand why the community might not want the recovering addicts in the neighborhood. Another student implied it would be legitimate for an elderly couple to avoid renting to potential tenants that have children that might cry at night. No one raised the point that such discrimination is as much in violation of the statute as race discrimination, even though these two students were clearly not as sympathetic to statutory protections for the disabled (as the recovering drug addicts were) or based on familial status. And I was thinking that I wouldn't want to be told I couldn't discriminate on the basis of sex in picking an apartment-mate now or in the future. So, perhaps the problem is not solely with the exemptions themselves. Perhaps the breadth of the exemption should be inversely related to the number of protected classes. The counter-argument is, I suppose, that this keeps our determination of what constitutes "impermissible discrimination" static. But I think it could also stand for the proposition that there are some discriminations based on sex, familial status and disability that might be legitimate. At least, a number of students in my class seemed to find them less morally reprehensible than discrimination based on race.

Thursday, February 02, 2006

We Have a New Board!

Check out the right frame/margin where it says "administration"....