FedSoc Blog

MSNBC has the story:

North Carolina voters approved a constitutional amendment Tuesday night banning gay marriage, but the measure also goes one step further by not allowing civil unions.

The state becomes the last in the South to approve an anti-gay marriage amendment and joins 30 others with similar measures. Incomplete returns Tuesday night showed the amendment passing by 60 percent of the vote.

The amendment, also known as Amendment One, would make marriage the only legal domestic union valid in the state. Opponents said the measure was unnecessary because a state statute has banned gay marriage in North Carolina since 1996. They also argued that domestic partners – both straight and gay – and their children could lose health benefits under the amendment, but advocates for the new measure claim that will not happen.

Making this a constitutional amendment was important, said Rachel Lee, a spokeswoman for Vote For Marriage NC, because “those statutes are vulnerable to the will of an activist judge or future legislature who could overturn the law with a single court ruling or by a single vote of the legislature.”

Naomi Schaefer Riley, a former Wall Street Journal editor, was recently fired by the Chronicle of Higher Education for publishing an attack on the field of black studies.  At Minding the Campus, John S. Rosenberg comments on the controversy:

Over at the Chronicle of Higher Education, which used to be the pre-eminent publication covering higher education, the inmates are now running the institution.

Editor Liz McMillen's disgraceful capitulation to the mob demanding the head of Chronicle blogger Naomi Schaefer Riley for having the temerity to criticize the field of black studies ironically demonstrates the accuracy of Riley's underlying argument--that political correctness has run amok on campuses, especially where race is concerned.

Just as Elizabeth Warren's claimed Cherokee-ness highlights the endemic corruption of rewarding people based on their race, the Chronicle's heavy-handed firing of one of its writers because of "distress" she caused some readers has changed the nature of the controversy. It is no longer about whether Riley's reading of the dissertations and the field is correct, or even whether she is a vicious "downright racist" (I'll have more to say about that in a moment); it is whether the field of black studies and those working in it are now sacrosanct, making criticism (at least criticism that causes "distress") off limits. . . .

About 6,500 people signed a petition demanding that Riley be fired. Equally striking as the comments--180 as of this writing--on Editor McMillen's abject apology for not having subjected Riley's posts to pre-publication censorship. Very revealingly, I think, these comments--many of them quite vituperative--about even divided: half praise McMillen for firing the ignorant racist and half demand McMillen's resignation, or her head, for having allowed the ignorant racist to publish in the first place.

Finally, as I've mentioned, Riley has been typically denounced as a racist. That of course is not surprising. Anyone who criticizes affirmative action or anything related to it (and black studies is certainly related to it) is invariably called a racist, often in lieu of any other argument in response.

The Des Moines Register reports:

Three Iowa justices ousted from their jobs in the wake of their decision to legalize same-sex marriage were rewarded Monday with the John F. Kennedy Profile in Courage award — something their chief critic immediately labeled as “a slap in the face to the people of Iowa.”

The awards were presented at the Kennedy presidential library in Boston to former Iowa Supreme Court Chief Justice Marsha Ternus and former justices David Baker and Michael Streit, all of whom were booted in a 2010 retention vote. Their removal marked the first time an Iowa Supreme Court justice had not been retained since 1962, when the merit selection and retention system for judges was adopted.

Ternus, Baker and Streit are the first Iowans to receive the award.

The audience at the presentation in Boston included three sitting Iowa Supreme Court justices — Chief Justice Mark Cady and Justices David Wiggins and Daryl Hecht — and enough friends and relatives of the honorees that Carolyn Kennedy, president of the library foundation’s board of directors, thanked “half the state of Iowa” for attending.

The former justices, making some of their most candid post-ouster comments since 2010, all struck warning notes in describing being fired for an unpopular decision that they continue to regard as correct.

According to the AP:

A federal appeals court reversed its demand that the Veterans Affairs Department dramatically overhaul its mental health care system.

A special 11-judge panel of the 9th U.S. Circuit Court of Appeals said Monday that any such overhaul needs to be ordered by Congress or the president.

The 10-1 ruling reversed an earlier decision by a three-judge panel of the same court.

The May 2011 ruling had ordered the VA to ensure that suicidal vets are seen immediately, among other changes. It found the VA's "unchecked incompetence" in handling the flood of post-traumatic stress disorder and other mental health claims was unconstitutional.

The new decision said courts are powerless to implement the fixes sought by two veterans groups that filed the lawsuit against the VA in 2007.

In the strongly worded ruling in May, the 9th Circuit said it takes the department an average of four years to fully provide the mental health benefits owed veterans. The court also said it often takes weeks for a suicidal vet to get a first appointment.

Chief Judge Alex Kozinski dissented from that ruling, writing that the ruling trampled congressional limits on judicial review of VA decisions.

The New York Times editorializes on the "cautionary tale of Dewey & LeBoeuf":

The law firm of Dewey & LeBoeuf was created in 2007 in the largest merger of law firms in history. Last week it encouraged all of its partners “to seek out alternative opportunities.” The firm is falling apart because of financial problems after overpaying star partners, gross mismanagement and other factors. But its troubles are only an extreme version of those facing many other firms.

The economic downturn and collapse of financial markets took a huge toll on the earnings of corporate firms. That happened while they faced more competition from firms abroad and newcomers to legal work. Even before the downturn, a growing number of companies chose to rely on their own lawyers.

When corporations turn to law firms for counsel, they are increasingly aggressive about keeping fees down and asking firms to share risks, by agreeing to be paid partly for successful completion of a case. And many companies feel free to ignore legal advice they don’t like.

With rising financial pressures, far too many firms feel compelled to give clients the advice they want to hear, unless that is illegal or clearly wrong. For the sake of holding on to clients, too many lawyers have put aside their independence of judgment. The legal historian Robert Gordon explained that “professionalism and the professional ideals” that lawyers follow are increasingly “camouflage for narrow economic self-interest.”

In the Wall Street Journal, Peter Berkowitz bemoans that few leading universities require students to read the Federalist Papers:

It would be difficult to overstate the significance of The Federalist for understanding the principles of American government and the challenges that liberal democracies confront early in the second decade of the 21st century. Yet despite the lip service they pay to liberal education, our leading universities can't be bothered to require students to study The Federalist—or, worse, they oppose such requirements on moral, political or pedagogical grounds. Small wonder it took so long for progressives to realize that arguments about the constitutionality of ObamaCare are indeed serious. . . .

Most astonishing and most revealing is the neglect of The Federalist by graduate schools and law schools. The political science departments at Harvard, Yale, Princeton, Stanford and Berkeley—which set the tone for higher education throughout the nation and train many of the next generation's professors—do not require candidates for the Ph.D. to study The Federalist. And these universities' law schools (Princeton has no law school), which produce many of the nation's leading members of the bar and bench, do not require their students to read, let alone master, The Federalist's major ideas and main lines of thought.

According to the Washington Times:

The Social Security Administration last month told its disability-claims judges they are no longer to seek out information from websites when deciding cases — taking away a tool some of those judges say would help in uncovering fraud.

Agency officials said reviewers can’t trust information posted online, and also said the mere act of typing in queries could compromise protected private information, so they shouldn’t try to access anything.

Social Security’s ban covers all Internet sites, including social media such as Facebook.

But Sen. Tom Coburn, Oklahoma Republican and a top taxpayer watchdog, said avoiding the Internet means giving up a valuable anti-fraud weapon — one that he said even federal courts have relied upon in some disability cases.

“If an individual claims to be disabled, and then publicly posts a picture participating in a sport or physical activity on a social media website, such information should be used by [adjudicators] to determine if the claimant was truly disabled,” Mr. Coburn wrote in a letter last week to Social Security Commissioner Michael J. Astrue.

The dispute raises Internet-age questions about the information people make available about themselves online, and how proactive government agencies should be in seeking out that information when it comes to granting taxpayer-funded benefits.

Social Security officials said they don’t object to using information gleaned from the Internet, but they don’t want the front-line deciders going out looking for it. They said that’s a job for fraud investigators to follow up on later in the process.

Yesterday the Third Circuit issued its opinion on remand in U.S. v. Bond, a chemical weapons treaty case that led Justice Kennedy to describe federalism as a protection for individual liberty.  At the Volokh Conspiracy, Jonathan H. Adler provides a good summary:

According to the New York Times:

Starting next year, New York will become the first state to require lawyers to perform unpaid work before being licensed to practice, the state’s chief judge announced on Tuesday, describing the rule as a way to help the growing number of people who cannot afford legal services.

The approximately 10,000 lawyers who apply to the New York State Bar each year will have to demonstrate that they have performed 50 hours of pro bono work to be admitted, Chief Judge Jonathan Lippman said. He said the move was intended to provide about a half-million hours of badly needed legal services to those with urgent problems, like foreclosure and domestic violence.

The need has exploded in recent years as the economic crisis delivered what advocates for the poor call a triple whammy: more people are struggling financially; more people need legal services to cope with foreclosures, evictions and credit and employment problems that could push them into long-term poverty; and state and federal financing for legal services has plunged.

Time magazine reports:

In August 2011, when Diana Wang began her seventh unpaid internship, this time at Harper’s Bazaar, the legendary high-end fashion magazine, she figured that her previous six internships – at a modeling agency, a PR firm, a jewelry designer, a magazine, an art gallery and a state governor’s office – had prepared her for the demands of New York’s fashion world.

“I was so determined to make this one really worth my while,” says the 28-year-old Wang, who moved from Columbus, Ohio, to New York, where she was living with her boyfriend (also working as an unpaid intern at one point) and living off of her savings. “I knew I couldn’t do anymore internships after this.”

As it turned out, Wang’s internship was just like many of the thousands of others: unrewarding in terms of both pay and marketable experience — not to mention the lack of a job offer. In fact, the only difference between her internship and most others was what happened about a month after it ended. Wang sued.

On Feb. 1, the law firm Outten & Golden filed a class-action lawsuit against the Hearst Corporation, which owns Harper’s Bazaar, on behalf of Wang and any other unpaid and underpaid intern who worked at the company over the past six years. The lawsuit alleges that, among other things, Hearst violated federal and state labor laws by having Wang work as many as 55 hours a week without compensation.

At Concurring Opinions, Sarah Waldeck comments on a law faculty's recent decision to weigh in on a matter facing Minnesota voters:

This fall Minnesota voters will decide whether to amend their state constitution by adding a ban on same-sex marriage.  The William Mitchell faculty recently adopted a resolution against the amendment and then released the resolution along with details of the faculty vote (24 – 7) to the press.  The resolution first notes that the proposed amendment conflicts with William Mitchell’s anti-discrimination policy and “could substantially impair William Mitchell’s ability to recruit and retain the best qualified students, staff and faculty.”  The resolution then goes on to list legal and moral objections to the amendment and states, “As a Faculty of Law, we believe that limitations on civil rights should not be enshrined in our state constitution.”  Finally, the resolution encourages Minnesota’s three other law schools to adopt similar resolutions of their own.

William Mitchell’s action has left me thinking about several broad questions.  First, when—if ever—do law faculties have a responsibility to take public positions on matters facing the electorate?  Of course individual faculty members routinely comment on such issues, either in their own writings or when responding to press inquiries. But when an issue involves fundamental rights or constitutional amendments, are law professors obligated to weigh in “as a faculty?”

Commenting on the blog post, Will Baude quotes a 1967 report by Harry Kalven of the University of Chicago law school on the same topic:

[A] good university, like Socrates, will be upsetting. The instrument of dissent and criticism is the individual faculty member of the individual student. The university is the home and sponsor of critics; is not itself the critic. ….

[The university] cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is a community which cannot resort to majority vote to reach positions on public issues.

CBS News reports:

Republicans on the House Oversight Committee were to take the first formal step Thursday toward contempt proceedings against Attorney General Eric Holder over the Fast and Furious "gunwalking" operation, CBS News has learned.

The case for a citation declaring Holder in contempt will be laid out in a briefing paper and 48-page draft citation distributed to Democrats and Republicans on the committee. CBS News has obtained copies of both documents. In them, Republican members use strong language to accuse Holder of obstructing the committee's investigation, which is now in its second year.

The documents allege that the Justice Department has issued, "false denials, given answers intended to misdirect investigators, sought to intimidate witnesses, unlawfully withheld subpoenaed documents, and waited to be confronted with indisputable evidence before acknowledging uncomfortable facts."

"The Justice Department's demonstrable contempt for the congressional investigation has inflicted harm on the people of two nations seeking the truth - and very pointedly on the family of fallen Border Patrol Agent Brian Terry and ATF whistleblowers who now face retaliation in the wake of their own heroic efforts to expose wrongdoing," says the brief to be distributed Thursday.

For its part, the Justice Department says it has complied with the congressional investigations, led by Rep. Darrell Issa (R-CA) and Sen. Charles Grassley (R-Iowa).

The AP reports on the Ninth Circuit's decision:

An appeals court on Wednesday tossed out a convicted terrorist's lawsuit accusing a high-ranking Bush administration lawyer who wrote the so-called "torture memos" of authorizing illegally harsh treatment.

Former Deputy Assistant Attorney General John Yoo is protected from such lawsuits because the law defining torture and the treatment of enemy combatants was unsettled in the two years after the Sept. 11 terror attacks, when the memos were written, the 9th U.S. Circuit Court of Appeals said.

The memos have been embroiled in national security politics for years after laying out a broad interpretation of executive power.

The unanimous ruling of the three-judge panel reversed a lower court decision allowing Jose Padilla's lawsuit to go forward. Padilla is serving a 17-year sentence on terror charges.

Padilla was arrested in May 2002 at Chicago's O'Hare International Airport and charged with conspiring with al-Qaida to detonate a radioactive "dirty bomb" within the United States. President Bush deemed him an enemy combatant and he was held in military custody for nearly four years before being charged in federal court.

Padilla claims that during his military custody he was subjected to a wide-range of harsh interrogation techniques that amounted to illegal torture. Padilla said he underwent prolonged isolation, light deprivation, extreme variations in temperature, loud noises, administration of psychotropic drugs and other techniques that he alleged were authorized by Yoo.

"There was at that time considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques," Judge Raymond Fisher wrote for the unanimous three-judge appeals panel. "In light of that debate...we cannot say that any reasonable official in 2001-03 would have known that the specific interrogation techniques allegedly employed against Padilla, however appalling, necessarily amounted to torture."

The appeals panel also said the trial court erred when it concluded that Padilla and other suspected terrorists held by the military enjoyed the same rights as ordinary prison inmates. Fisher was joined by Judges N. Randy Smith and Rebecca R. Pallmeyer. Fisher and Pallmeyer were appointed by President Bill Clinton. President George W. Bush appointed Smith.

The Miami Herald profiles Colonel James L. Pohl, the judge who will preside over the prosecution of five men accused to taking part in the September 11 attacks:

When President George W. Bush proposed razing Iraq’s Abu Ghraib prison in 2004, this American Army judge declared it a crime scene and forbade its demolition. When five years later President Barack Obama asked the Guantánamo war court to freeze all proceedings, the same judge refused the brand-new commander-in-chief’s request.

He’s Col. James L. Pohl, who has appointed himself to preside at the war crimes trial of the five men accused of orchestrating the Sept. 11 attacks.

It’s not that Pohl is unaware of rank after three decades in the Army. It’s simply not relevant in this colonel’s court.

Here’s how he scolded a prosecutor when the prison commander, an admiral, was late for court to testify after lunch recess in January: “Witnesses should be waiting either in the trailer at the back or outside,” the judge bristled, “and I really don’t care what their rank is.”

A soldier since the ’80s and a judge since 2000, Pohl has had judicial oversight of some of the most notorious Army cases of the post-Sept. 11 era.

•  He presided at the trials of nine soldiers found guilty of abusing detainees at the Abu Ghraib prison in Iraq.

•  He decided that U.S. Army psychiatrist Maj. Nidal Hassan should get a death-penalty trial for the 2009 shooting spree that killed 13 soldiers and wounded dozens more at Fort Hood, Texas.

•  In September, however, he found the opposite at a show-cause hearing for Army Sgt. John Russell. Unlike Hassan, Pohl ruled, Russell had “an undisputed mental disease or defect” that made it “inappropriate” to pursue a capital case for allegedly killing five troops at the combat stress center at Iraq’s Camp Liberty in May 2009.

•  Pohl also presided at the so-called “mercy killing” trial of an Army captain, a tank commander, who killed a critically wounded insurgent in May 2004, and was captured on an aerial drone’s videocam doing it.

Now, at a moment when most 60-year-old colonels are retiring from service, Pohl is chief military commissions judge, and has chosen to take on two of the most high-profile trials of his career: the 9/11 trial, and the trial of a man who allegedly engineered al Qaida’s 2000 USS Cole bombing.

Each case seeks the death penalty. Each is to be heard by a military commission, the tribunals that Bush had created after Sept. 11 and Obama ordered reformed upon taking office.

Saturday, Pohl will face off for the first time with Khalid Sheik Mohammed, who bragged that he masterminded 9/11 for al Qaida — wading into the case that’s been a lightning rod for criticism that the court was created to cover up torture.

According to Reuters:

The U.S. Supreme Court agreed on Monday to decide how broadly to apply its two-year old ruling that immigrants have a constitutional right to effective assistance of counsel and must be told about possible deportation stemming from a guilty plea.

The justices said they would consider whether its March 31, 2010, ruling would apply retroactively to previous convictions or would only to convictions after that date. Defense lawyers said in their Supreme Court appeal that the issue has profound practical significance.

In its original ruling, the Supreme Court decided by a 7-2 vote that an immigrant's constitutional right to effective counsel was violated when his attorney mistakenly told him he could plead guilty to drug charges without being deported.

Immigrant rights advocates said at the time the decision could potentially affect thousands of immigrants every year.

Since the decision, U.S. courts of appeals have issued conflicting rulings on whether the high court's ruling applied retroactively. The U.S. Justice Department told the Supreme Court the issue involved a recurring question of substantial importance that warranted review.