Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
Title: Message I have been asked to speak about this case on the local media (as I am sure many of you also have been), and I am curious what you experts expect the outcome of the case to be, especially given that Scalia has recused himself. Rebecca E. ZietlowProfessor of Law University of Toledo College of Law (419) 530-2872 [EMAIL PROTECTED] -Original Message-From: Eastman, John [mailto:[EMAIL PROTECTED]Sent: Tuesday, October 14, 2003 5:56 PMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference My point exactly. The Denial of the U.S. petition means the focus is on the state (or school district), not on the Act of Congress. So it is Establishment Clause as incorporated, not as originally written. I made the point in response to Bill Funk's post, which claimed in part: "First, while this case arises in a state context, the addition of the words "under God" were made by a statute passed by Congress, the core concern of the First Amendment. Second, while adding such words may not directly "establish" religion, the law is "respecting an establishment of religion." The law declares that the official pledge of allegiance to the United States requires a recognition that the nation is "under God," which logically requires an affirmance that God exists and that the nation is subject to God's will and law." John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message-From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Tuesday, October 14, 2003 2:49 PMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference I don't quite see the significance of the denial of the SG's peititon -- a petition that was, in truth,not much more than a press release. The United States was not injured by the Ninth Circuit's decision. The court of appeals expressly declined to enjoin any federal official, 328 F.3d at 484, and expressly declined Newdow's plea to declare the federal law unconstitutional, id. at 490. Indeed, it is difficult to see how any court could enjoin, or decare unconstitutional, the federal statute, because that law (4 USC 4) is merely hortatory; it neither requires nor authorizes anyone to do anything: "The Pledge of Allegiance to the Flag: 'I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.', should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove any non-religious headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute." In other words, the U.S. prevailed in the court below. The real locus of dispute, as reflected intoday's denials and singlegrant,is the school board's policy, not the federal statute. - Original Message - From: "Eastman, John" [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Tuesday, October 14, 2003 5:35 PM Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference Also significant, I think, is that the Supreme Court DENIED the cert petition from the United States (and also the petition that had been filed by Newdow himself), although it did invite the Solicitor General to submit a brief in the case in which it granted cert. John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message- From: Steve Wermiel [mailto:[EMAIL PROTECTED] Sent: Tuesday, October 14, 2003 2:26 PM To: [EMAIL PROTECTED] Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference The Court specified the questions to be briefed. The second question seems to me to at least raise the possibility that the emphasis in a decision could be on the fact that the policy has teachers leading the pledge, rather than simply on the addition of the words "under God" to the statute. And there is also the standing question. Here is the cert. grant: The petition for a writ of certiorari is granted limited to the following Questions: 1. Whether respondent has standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance. 2. Whether a public school district policy that requires teachers to lead willing students in
Scalia, Textualism, and Printz
Why would a self-described textualist, like Scalia, examine the constitutionality of a law while admitting that no text is involved authorizing or prohibiting the law (Printz)?Is it because if a textualist insists that that when the Constitution is silent, Congress may act, one is then turning the federal government into a government with unenumerated and perhaps unlimited powers? Bobby Lipkin Widener University School of Law Delaware
Re: Scalia, Textualism, and Printz
Bobby: You're assuming that Justice Scalia is being consistent. Prof. Tribe wrote a wonderful comment in the Harvard Law Review about the Saenz case that convinced me (if I needed more convincing) that almost none of the justices (conservative or liberal) are methodologically consistent. I highly recommend it. Best, Scott Why would a self-described textualist, like Scalia, examine the constitutionality of a law while admitting that no text is involved authorizing or prohibiting the law (Printz)? Is it because if a textualist insists that that when the Constitution is silent, Congress may act, one is then turning the federal government into a government with unenumerated and perhaps unlimited powers? Bobby Lipkin Widener University School of Law Delaware ** Scott Gerber Law College Ohio Northern University Ada, OH 45810 419-772-2219 http://www.law.onu.edu/faculty/gerber/
Re: Scalia, Textualism, and Printz
Scott: Do you think Scalia was being inconsistent in this case? In addition to Larry Tribe's comment, I would recommend Sandy Levinson's piece, The Operational Irrelevance of Originalism. The question of the authority of precedent is obviously a significant challenge for originalists, but Scalia does address this issue in a number of places (including in his dissent in Union Gas, if I remember correctly). Richard Dougherty University of Dallas Scott Gerber wrote: Bobby: You're assuming that Justice Scalia is being consistent. Prof. Tribe wrote a wonderful comment in the Harvard Law Review about the Saenz case that convinced me (if I needed more convincing) that almost none of the justices (conservative or liberal) are methodologically consistent. I highly recommend it. Best, Scott Why would a self-described textualist, like Scalia, examine the constitutionality of a law while admitting that no text is involved authorizing or prohibiting the law (Printz)? Is it because if a textualist insists that that when the Constitution is silent, Congress may act, one is then turning the federal government into a government with unenumerated and perhaps unlimited powers? Bobby Lipkin Widener University School of Law Delaware ** Scott Gerber Law College Ohio Northern University Ada, OH 45810 419-772-2219 http://www.law.onu.edu/faculty/gerber/
Re: Scalia, Textualism, and Printz
If I may be permitted to raise a minor quibble with Scott's point: (1) A demonstration of methodological inconsistency is always difficult. Because judges do not articulate their full theory of the law, the methodology of a particular judge must always be inferred. When trying to prove a charge of methodological inconsistency, one must show that no methodolgy that the judge could have held is consistent with all of the judge's decisions--giving reasonable allowance for the possibility that the judge erred in a nonmethodological way--e.g. misunderstood the facts or the law. This is almost always a hopeless task, because there are too many possible methodologies for the method of elimination to applied effectively. (2) Tribe's Saenz piece does not, in fact, make a charge that individual judges inconsistent. Consider the following passage: Start of quote: Nor do I mean at this point to explore the question whether there is indeed some principled reason to regard the process of making inferences from the Constitution's structure and design as being more appropriate when one derives the details of the separation of powers or of federalism (and then infers the rights of individuals within the system of separated and divided powers from the details thus derived) than when one fills in the details of personal rights that have no particular connection with the institutional and territorial organization of the system of separated and divided powers (but might instead flow no less forcefully from the basic premises and design of an anti- totalitarian legal regime). [FN151] What seems beyond dispute and what is crucial for present purposes is simply this descriptive observation: in the current era, claims of individual rights are most likely to have power and ultimately to prevail if they can be convincingly expressed through the language, and clearly understood through the logic, of such concretely architectural features of the Constitution as the separation of powers or, more to the point here, the federal system of separate, equal, and semi- autonomous states. :End of quote. It is, of course, possible that Scalia is being inconsistent, but there are many other possibilities. Larry Lawrence Solum University of San Diego http://lsolum.blogspot.com Quoting Scott Gerber [EMAIL PROTECTED]: Bobby: You're assuming that Justice Scalia is being consistent. Prof. Tribe wrote a wonderful comment in the Harvard Law Review about the Saenz case that convinced me (if I needed more convincing) that almost none of the justices (conservative or liberal) are methodologically consistent. I highly recommend it. Best, Scott Why would a self-described textualist, like Scalia, examine the constitutionality of a law while admitting that no text is involved authorizing or prohibiting the law (Printz)? Is it because if a textualist insists that that when the Constitution is silent, Congress may act, one is then turning the federal government into a government with unenumerated and perhaps unlimited powers? Bobby Lipkin Widener University School of Law Delaware ** Scott Gerber Law College Ohio Northern University Ada, OH 45810 419-772-2219 http://www.law.onu.edu/faculty/gerber/
Re: Scalia, Textualism, and Printz
A larger problem for Justice Scalia in Printz is that after he says text doesn't help (which by the way it does, see Steven's dissent), is that Scalia then purports to look at history, structure, and precedent, though history and structure clearly cut against the result. New York does support the decision but is also inconsistent with text, structure, and history. In other words, Printz is indefensible without reliance on "policy," an interpretative device that Scalia, of course, fails to mention. Eric Segall GSU College of Law [EMAIL PROTECTED] 10/15/03 01:23PM Scott: Do you think Scalia was being inconsistent in this case? In addition to Larry Tribe's comment, I would recommend Sandy Levinson's piece, "The Operational Irrelevance of Originalism." The question of the authority of precedent is obviously a significant challenge for originalists, but Scalia does address this issue in a number of places (including in his dissent in Union Gas, if I remember correctly). Richard Dougherty University of Dallas Scott Gerber wrote: Bobby: You're assuming that Justice Scalia is being consistent. Prof. Tribe wrote a wonderful comment in the Harvard Law Review about the Saenz case that convinced me (if I needed more convincing) that almost none of the justices (conservative or liberal) are methodologically consistent. I highly recommend it. Best, Scott Why would a self-described textualist, like Scalia, examine the constitutionality of a law while admitting that no text is involved authorizing or prohibiting the law (Printz)? Is it because if a textualist insists that that when the Constitution is silent, Congress may act, one is then turning the federal government into a government with unenumerated and perhaps unlimited powers? Bobby Lipkin Widener University School of Law Delaware ** Scott Gerber Law College Ohio Northern University Ada, OH 45810 419-772-2219 http://www.law.onu.edu/faculty/gerber/
Re: Attorney's fees in pledge of allegiance case
Under Kay v. Ehrler, 499 U.S. 432 (1991), a pro se litigant who is also a lawyer cannot be awarded fees under 42 U.S.C. sec. 1988, which is, I assume, the fee-shifting statute most likely to apply to this case. Pam Karlan At 01:09 PM 10/15/2003 -0400, you wrote: Since Mark Newdow is apparently representing himself, would he be entitled to attorneys' fees if he prevails in the pledge of allegiance case? If so, approximately how much would they be (four figures, five figures, or six figures)? Pamela S. Karlan Kenneth and Harle Montgomery Professor of Public Interest Law Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305-8610 [EMAIL PROTECTED] 650.725.4851
Re: Scalia, Textualism, and Printz
I must be getting slow in my old age, but I don't see how precedent poses a greater problem for originalists than for those who take other views. A judicial decision is a superceding text adopted through a legitimate process (even if the mode of reasoning is not what I would choose). It is thus analogous to (although different from) a legitimately-adopted constitutional amendment. At 12:23 PM 10/15/2003 -0500, Richard wrote: The question of the authority of precedent is obviously a significant challenge for originalists, but Scalia does address this issue in a number of places (including in his dissent in Union Gas, if I remember correctly). Richard Dougherty University of Dallas
Precedent Originalism: Was Scalia, Textualism, and Printz
It seems to me that the question for originalists is WHETHER a judicial decision is a superceding text adopted through a legitimate process. This question has at least two dimensions, one functional and the other normative. The functional question is whether precedents are to be treated as superceding, and if so, how, when they are out of line with the plain meaning of the constitutional text or its original meaning. Originalists may divide on precisely this point. On the one hand, some originalists may argue that adherence to precedent serves the same rule of law values as does originalism and textualism. On the other hand, other originalists may argue that precedents which depart from the text or original meaning should not be afforded precedential effect. A fully specified theory of originalism must have an answer to the functional question. The normative question concerns the political morality of treating precedents as authoritative even when they depart from text or original meaning. Different versions of originalism will take different positions on the normative question as well. Thus, popular-sovereignty originalists might take the position that judicial decisions that are not authorized by We the People, are illegitimate, and hence not binding. Other originalists/textualists emphasize rule-of-law values as the normative foundation of originalism, and these originalists may find it easier to swallow Professor Earl Maltz's position: A judicial decision is a superceding text adopted through a legitimate process (even if the mode of reasoning is not what I would choose). It goes without saying that the normative and functional questions are closely connected, but they are not the same question. Originalist/texutalists with similar normative positions might endorse different answers at the functional level, and vice versa. Larry Lawrence Solum University of San Diego http://lsolum.blogspot.com Quoting earl maltz [EMAIL PROTECTED]: I must be getting slow in my old age, but I don't see how precedent poses a greater problem for originalists than for those who take other views. A judicial decision is a superceding text adopted through a legitimate process (even if the mode of reasoning is not what I would choose). It is thus analogous to (although different from) a legitimately-adopted constitutional amendment. At 12:23 PM 10/15/2003 -0500, Richard wrote: The question of the authority of precedent is obviously a significant challenge for originalists, but Scalia does address this issue in a number of places (including in his dissent in Union Gas, if I remember correctly). Richard Dougherty University of Dallas
Re: Precedent Originalism: Was Scalia, Textualism, and Printz
Might not a judge--originalist or otherwise--simply conclude that stare decisis has independent value, in terms of legal stability, reliance, etc.? In this respect, is the originalist judge necessarily different from, say, a judge who believes that the Constitution should be interpreted in accordance with liberal philosophy, e.g., as understood by John Rawls? Might not either judge conclude that a mistaken decision should nonetheless be honored for reasons apart from the interpretative theory that the judge would apply if precedent were not a factor? Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ** -Original Message- From: Larry Solum [mailto:[EMAIL PROTECTED] Sent: Wednesday, October 15, 2003 1:39 PM To: [EMAIL PROTECTED] Subject: Precedent Originalism: Was Scalia, Textualism, and Printz It seems to me that the question for originalists is WHETHER a judicial decision is a superceding text adopted through a legitimate process. This question has at least two dimensions, one functional and the other normative. The functional question is whether precedents are to be treated as superceding, and if so, how, when they are out of line with the plain meaning of the constitutional text or its original meaning. Originalists may divide on precisely this point. On the one hand, some originalists may argue that adherence to precedent serves the same rule of law values as does originalism and textualism. On the other hand, other originalists may argue that precedents which depart from the text or original meaning should not be afforded precedential effect. A fully specified theory of originalism must have an answer to the functional question. The normative question concerns the political morality of treating precedents as authoritative even when they depart from text or original meaning. Different versions of originalism will take different positions on the normative question as well. Thus, popular-sovereignty originalists might take the position that judicial decisions that are not authorized by We the People, are illegitimate, and hence not binding. Other originalists/textualists emphasize rule-of-law values as the normative foundation of originalism, and these originalists may find it easier to swallow Professor Earl Maltz's position: A judicial decision is a superceding text adopted through a legitimate process (even if the mode of reasoning is not what I would choose). It goes without saying that the normative and functional questions are closely connected, but they are not the same question. Originalist/texutalists with similar normative positions might endorse different answers at the functional level, and vice versa. Larry Lawrence Solum University of San Diego http://lsolum.blogspot.com Quoting earl maltz [EMAIL PROTECTED]: I must be getting slow in my old age, but I don't see how precedent poses a greater problem for originalists than for those who take other views. A judicial decision is a superceding text adopted through a legitimate process (even if the mode of reasoning is not what I would choose). It is thus analogous to (although different from) a legitimately-adopted constitutional amendment. At 12:23 PM 10/15/2003 -0500, Richard wrote: The question of the authority of precedent is obviously a significant challenge for originalists, but Scalia does address this issue in a number of places (including in his dissent in Union Gas, if I remember correctly). Richard Dougherty University of Dallas
Re: Precedent Originalism: Was Scalia, Textualism, and Printz
If we define an originalist as someone who agrees with Robert Bork that the only legitimate modality is original understanding, then there is an obvious problem with adhering to precedents that violate the original understanding. Indeed, as I have argued elsewhere, the only way of making sense of Bork's promised fidelity to New Deal precedents (or to Bolling v. Sharpe) is that he in fact believes in non-Article V constitutional amendment, because he clearly does not believe that these decisions were legitimate at the time they were issued. So they must have become part of the Constitution through a process of what Hart Sachs might have deemed institutional settlement, a fine theory but one that obviously plays havoc with strict originalism that is willing to override 100 years of error. sandy
Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
Title: Message All right, I'll take a whack. Rehnquist, O'Connor, and Thomas for reversal. Kennedy joins them, because he's a political animal and may want to "make it up" with the right after Lawrence, sort of the way he did in Stenberg and Colorado v. Hill after Casey (though I'm sure he's sincere in Hill, b/c his dissent there fits his 1st Am views generally). Stevens and Souter are certain for affirmance. Ginsburg and Breyer probably are too, but one or both may switch (probably via a separate concurrence) to avoid an even split. Of the two, Breyer is the more likely to do so: son of a public school teacher (if I remember correctly), and solicitous for public schools, he may reluctant to hold that they have been violating the Const for fifty years in a way that eluded the vigilance of the Warren Ct. Still, most likely result: affirmance by 4-4. Also, Cubs win, Red Soxlose, Yanks win the Series. Can't say I'm happy about any of this. David M. Wagner Regent University School of Law -Original Message-From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Zietlow, Rebecca E.Sent: Wednesday, October 15, 2003 10:03 AMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference I have been asked to speak about this case on the local media (as I am sure many of you also have been), and I am curious what you experts expect the outcome of the case to be, especially given that Scalia has recused himself. Rebecca E. ZietlowProfessor of Law University of Toledo College of Law (419) 530-2872 [EMAIL PROTECTED] -Original Message-From: Eastman, John [mailto:[EMAIL PROTECTED]Sent: Tuesday, October 14, 2003 5:56 PMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference My point exactly. The Denial of the U.S. petition means the focus is on the state (or school district), not on the Act of Congress. So it is Establishment Clause as incorporated, not as originally written. I made the point in response to Bill Funk's post, which claimed in part: "First, while this case arises in a state context, the addition of the words "under God" were made by a statute passed by Congress, the core concern of the First Amendment. Second, while adding such words may not directly "establish" religion, the law is "respecting an establishment of religion." The law declares that the official pledge of allegiance to the United States requires a recognition that the nation is "under God," which logically requires an affirmance that God exists and that the nation is subject to God's will and law." John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message-From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Tuesday, October 14, 2003 2:49 PMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference I don't quite see the significance of the denial of the SG's peititon -- a petition that was, in truth,not much more than a press release. The United States was not injured by the Ninth Circuit's decision. The court of appeals expressly declined to enjoin any federal official, 328 F.3d at 484, and expressly declined Newdow's plea to declare the federal law unconstitutional, id. at 490 Indeed, it is difficult to see how any court could enjoin, or decare unconstitutional, the federal statute, because that law (4 USC 4) is merely hortatory; it neither requires nor authorizes anyone to do anything: "The Pledge of Allegiance to the Flag: 'I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.', should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove any non-religious headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute." In other words, the U.S. prevailed in the court below. The real locus of dispute, as reflected intoday's denials and singlegrant,is the school board's policy, not the federal statute. - Original Message - From: "Eastman, John" [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Tuesday, October 14, 2003 5:35 PM Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
The only thing I'd say about this is that I wouldn't count any of the Fab Four as sure votes for the plaintiff on the standing question. At 03:33 PM 10/15/2003 -0400, you wrote: All right, I'll take a whack. Rehnquist, O'Connor, and Thomas for reversal. Kennedy joins them, because he's a political animal and may want to make it up with the right after Lawrence, sort of the way he did in Stenberg and Colorado v. Hill after Casey (though I'm sure he's sincere in Hill, b/c his dissent there fits his 1st Am views generally). Stevens and Souter are certain for affirmance. Ginsburg and Breyer probably are too, but one or both may switch (probably via a separate concurrence) to avoid an even split. Of the two, Breyer is the more likely to do so: son of a public school teacher (if I remember correctly), and solicitous for public schools, he may reluctant to hold that they have been violating the Const for fifty years in a way that eluded the vigilance of the Warren Ct. Still, most likely result: affirmance by 4-4. Also, Cubs win, Red Sox lose, Yanks win the Series. Can't say I'm happy about any of this. David M. Wagner Regent University School of Law -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED]] On Behalf Of Zietlow, Rebecca E. Sent: Wednesday, October 15, 2003 10:03 AM To: [EMAIL PROTECTED] Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference I have been asked to speak about this case on the local media (as I am sure many of you also have been), and I am curious what you experts expect the outcome of the case to be, especially given that Scalia has recused himself. Rebecca E. Zietlow Professor of Law University of Toledo College of Law (419) 530-2872 [EMAIL PROTECTED] -Original Message- From: Eastman, John [mailto:[EMAIL PROTECTED]] Sent: Tuesday, October 14, 2003 5:56 PM To: [EMAIL PROTECTED] Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference My point exactly. The Denial of the U.S. petition means the focus is on the state (or school district), not on the Act of Congress. So it is Establishment Clause as incorporated, not as originally written. I made the point in response to Bill Funk's post, which claimed in part: First, while this case arises in a state context, the addition of the words under God were made by a statute passed by Congress, the core concern of the First Amendment. Second, while adding such words may not directly establish religion, the law is respecting an establishment of religion. The law declares that the official pledge of allegiance to the United States requires a recognition that the nation is under God, which logically requires an affirmance that God exists and that the nation is subject to God's will and law. John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message- From: Marty Lederman [mailto:[EMAIL PROTECTED]] Sent: Tuesday, October 14, 2003 2:49 PM To: [EMAIL PROTECTED] Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference I don't quite see the significance of the denial of the SG's peititon -- a petition that was, in truth, not much more than a press release. The United States was not injured by the Ninth Circuit's decision. The court of appeals expressly declined to enjoin any federal official, 328 F.3d at 484, and expressly declined Newdow's plea to declare the federal law unconstitutional, id. at 490 Indeed, it is difficult to see how any court could enjoin, or decare unconstitutional, the federal statute, because that law (4 USC 4) is merely hortatory; it neither requires nor authorizes anyone to do anything: The Pledge of Allegiance to the Flag: 'I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.', should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove any non-religious headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute. In other words, the U.S. prevailed in the court below. The real locus of dispute, as reflected in today's denials and single grant, is the school board's policy, not the federal statute. - Original Message - From: Eastman, John [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Tuesday, October 14, 2003 5:35 PM Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference Also significant, I think, is that the Supreme Court DENIED the cert petition from the United States (and also the petition that had been filed by Newdow himself), although it did invite the Solicitor General to submit a brief in the case in which it granted cert. John C.
Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
Title: Message Thanks, I agree. Except I wish I were more confident about the Cubs making it to the series. RZ -Original Message-From: David M Wagner [mailto:[EMAIL PROTECTED]Sent: Wednesday, October 15, 2003 3:33 PMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference All right, I'll take a whack. Rehnquist, O'Connor, and Thomas for reversal. Kennedy joins them, because he's a political animal and may want to "make it up" with the right after Lawrence, sort of the way he did in Stenberg and Colorado v. Hill after Casey (though I'm sure he's sincere in Hill, b/c his dissent there fits his 1st Am views generally). Stevens and Souter are certain for affirmance. Ginsburg and Breyer probably are too, but one or both may switch (probably via a separate concurrence) to avoid an even split. Of the two, Breyer is the more likely to do so: son of a public school teacher (if I remember correctly), and solicitous for public schools, he may reluctant to hold that they have been violating the Const for fifty years in a way that eluded the vigilance of the Warren Ct. Still, most likely result: affirmance by 4-4. Also, Cubs win, Red Soxlose, Yanks win the Series. Can't say I'm happy about any of this. David M. Wagner Regent University School of Law -Original Message-From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Zietlow, Rebecca E.Sent: Wednesday, October 15, 2003 10:03 AMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference I have been asked to speak about this case on the local media (as I am sure many of you also have been), and I am curious what you experts expect the outcome of the case to be, especially given that Scalia has recused himself. Rebecca E. ZietlowProfessor of Law University of Toledo College of Law (419) 530-2872 [EMAIL PROTECTED] -Original Message-From: Eastman, John [mailto:[EMAIL PROTECTED]Sent: Tuesday, October 14, 2003 5:56 PMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference My point exactly. The Denial of the U.S. petition means the focus is on the state (or school district), not on the Act of Congress. So it is Establishment Clause as incorporated, not as originally written. I made the point in response to Bill Funk's post, which claimed in part: "First, while this case arises in a state context, the addition of the words "under God" were made by a statute passed by Congress, the core concern of the First Amendment. Second, while adding such words may not directly "establish" religion, the law is "respecting an establishment of religion." The law declares that the official pledge of allegiance to the United States requires a recognition that the nation is "under God," which logically requires an affirmance that God exists and that the nation is subject to God's will and law." John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message-From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Tuesday, October 14, 2003 2:49 PMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference I don't quite see the significance of the denial of the SG's peititon -- a petition that was, in truth,not much more than a press release. The United States was not injured by the Ninth Circuit's decision. The court of appeals expressly declined to enjoin any federal official, 328 F.3d at 484, and expressly declined Newdow's plea to declare the federal law unconstitutional, id. at 490 Indeed, it is difficult to see how any court could enjoin, or decare unconstitutional, the federal statute, because that law (4 USC 4) is merely hortatory; it neither requires nor authorizes anyone to do anything: "The Pledge of Allegiance to the Flag: 'I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.', should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove any non-religious headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute."
Re: Precedent Originalism: Was Scalia, Textualism, and Printz
One can reconcile an originalist viewpoint with an evolving meaning of the Constitution -- although it would be an originalism that Bork and other originalists probably would not like. The Framers understood the Constitution to be a treaty that must be construed in conformity with customary international law that, in turn, was recognized by them to be evolving. 100 years of error (i.e., precedents) would not be error because federal courts (in both the original sense as courts established by treaty and the sense of U.S. courts) are always to construe their constitutive instrument in light of contemporary customary international law -- not outdated customary international law. Francisco Forrest Martin [Original Message] From: Sanford Levinson [EMAIL PROTECTED] To: [EMAIL PROTECTED] Date: 10/15/2003 3:32:02 PM Subject: Re: Precedent Originalism: Was Scalia, Textualism, and Printz If we define an originalist as someone who agrees with Robert Bork that the only legitimate modality is original understanding, then there is an obvious problem with adhering to precedents that violate the original understanding. Indeed, as I have argued elsewhere, the only way of making sense of Bork's promised fidelity to New Deal precedents (or to Bolling v. Sharpe) is that he in fact believes in non-Article V constitutional amendment, because he clearly does not believe that these decisions were legitimate at the time they were issued. So they must have become part of the Constitution through a process of what Hart Sachs might have deemed institutional settlement, a fine theory but one that obviously plays havoc with strict originalism that is willing to override 100 years of error. sandy
Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
I seem to recall that the Court, or some court, head a case challenging the "In God we Trust" motto on US money, and of course upholding it. Is my recollection correct? And, am I correct that in favor of"God" in the pledge of allegiance as not establishment of religion is that it's not really considered to be a religious endorsement, just as using US money is not a religious endorsement? -Original Message-From: Sam Bagenstos [mailto:[EMAIL PROTECTED]Sent: Wednesday, October 15, 2003 4:29 PMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' ReferenceThe only thing I'd say about this is that I wouldn't count any of the "Fab Four" as sure votes for the plaintiff on the standing question. At 03:33 PM 10/15/2003 -0400, you wrote: All right, I'll take a whack. Rehnquist, O'Connor, and Thomas for reversal. Kennedy joins them, because he's a political animal and may want to "make it up" with the right after Lawrence, sort of the way he did in Stenberg and Colorado v. Hill after Casey (though I'm sure he's sincere in Hill, b/c his dissent there fits his 1st Am views generally). Stevens and Souter are certain for affirmance. Ginsburg and Breyer probably are too, but one or both may switch (probably via a separate concurrence) to avoid an even split. Of the two, Breyer is the more likely to do so: son of a public school teacher (if I remember correctly), and solicitous for public schools, he may reluctant to hold that they have been violating the Const for fifty years in a way that eluded the vigilance of the Warren Ct.Still, most likely result: affirmance by 4-4. Also, Cubs win, Red Sox lose, Yanks win the Series. Can't say I'm happy about any of this.David M. WagnerRegent University School of Law -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED]] On Behalf Of Zietlow, Rebecca E. Sent: Wednesday, October 15, 2003 10:03 AM To: [EMAIL PROTECTED] Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference I have been asked to speak about this case on the local media (as I am sure many of you also have been), and I am curious what you experts expect the outcome of the case to be, especially given that Scalia has recused himself. Rebecca E. Zietlow Professor of Law University of Toledo College of Law (419) 530-2872 [EMAIL PROTECTED] -Original Message- From: Eastman, John [mailto:[EMAIL PROTECTED]] Sent: Tuesday, October 14, 2003 5:56 PM To: [EMAIL PROTECTED] Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference My point exactly. The Denial of the U.S. petition means the focus is on the state (or school district), not on the Act of Congress. So it is Establishment Clause as incorporated, not as originally written. I made the point in response to Bill Funk's post, which claimed in part: "First, while this case arises in a state context, the addition of the words "under God" were made by a statute passed by Congress, the core concern of the First Amendment. Second, while adding such words may not directly "establish" religion, the law is "respecting an establishment of religion." The law declares that the official pledge of allegiance to the United States requires a recognition that the nation is "under God," which logically requires an affirmance that God exists and that the nation is subject to God's will and law." John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message- From: Marty Lederman [mailto:[EMAIL PROTECTED]] Sent: Tuesday, October 14, 2003 2:49 PM To: [EMAIL PROTECTED] Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference I don't quite see the significance of the denial of the SG's peititon -- a petition that was, in truth, not much more than a press release. The United States was not injured by the Ninth Circuit's decision. The court of appeals expressly declined to enjoin any federal official, 328 F.3d at 484, and expressly declined Newdow's plea to declare the federal law unconstitutional, id. at 490 Indeed, it is difficult to see how any court could enjoin, or decare unconstitutional, the federal statute, because that law (4 USC 4) is merely hortatory; it neither requires nor authorizes anyone to do anything: "The Pledge of Allegiance to the Flag: 'I pledge allegiance to the Flag of the United States of America, and to
Re: FW from Eric Muller: RE: Puzzling cert grant
Dear all, Regarding the Sabri grant, and Eric Muller's question (disclosure: I helped write an amicus brief for the NACDL supporting cert): There is a clear and (I think) cert-worthy circuit split over the question whether the statute (Section 666) requires the government to establish a nexus between the alleged bribe and the federal-program funds used to meet the $10,000 limit. Some courts have said neither the statute nor the Constitution requires such a connection; others have said that the statute should be read to require one, to avoid possible federalism problems (recall Jones, the arson case from a few years ago). A few judges (Judge Bye, dissenting in Sabri), though, have insisted that Section 666 lacks a constitutional basis, because neither the Court's conditional-spending cases, nor its necessary-and-proper doctrines, authorize federal prosecutions simply because the corrupt conduct involves someone affiliated with an organization that receives federal funds. (As Eric points out, Congress could, under current law, federalize a great deal of local bribery using a different hook -- e.g., the Commerce Clause -- but it pretty clearly did not do so here, either under Lopez or even Perez). In fact, Judge Hansen below specifically rejected the argument (which some courts had accepted) that Section 666 prosecutions were like a Dole-type spending condition. He went on to conclude that the Sweeping Clause provided an appropriate textual basis for the law and its application. For what it's worth, I argue for a position much like Judge Bye's in an article forthcoming in the Cornell Law Review. The paper and abstract are available on the SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=428903 In my view, David Engdahl put it well, about ten years ago: The Constitution does not contemplate that federal regulatory power should tag along after federal money like a hungry dog. Still, as many on this list have observed, the Court has not shown much enthusiasm for importing its New Federalism themes into the Spending Power context. best, Rick G. At 04:24 PM 10/15/03 -0400, you wrote: Eric Muller posed this question on his blog (http://www.isthatlegal.org); I wonder what people think about it. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] Sent: Wednesday, October 15, 2003 3:32 PM To: [EMAIL PROTECTED]; [EMAIL PROTECTED] Subject: Puzzling cert grant I am at a loss to understand the Sabri case, on which the Court yesterday granted cert. --Eric http://www.isthatlegal.org/archives/2003_10_12_isthatlegal_archive.html#1066 24604536734652 The Supreme Court yesterday granted certiorari in a case out of the Eighth Circuit involving a federal bribery statute. The law in question makes it illegal for a state employee of an agency that gets more than $10,000 in federal funding to accept a bribe in an amount greater than $5,000. The case is apparently getting litigated as a Spending Clause issue, so the issue before the Court is whether the law exceeds the Congress's Spending Clause powers in that it doesn't require that the $5,000 bribe relate in any way to the $10,000 in federal funding. I am at a loss. Congress would unquestionably have the power, under the Commerce Clause, to make it illegal to pay a money bribe in an amount greater than $5,000 to anyone. That would just be a prohibition of a money transaction--something that would be OK even under the new rules of the federalism game that the Court has been giving us. (Think of it this way: wouldn't Congress have the power to pass a law that made it illegal to sell more than $5,000 worth of cocaine? More than $5,000 worth of tobacco? I'm not asking whether it would be wise for Congress to pass such a law--just whether it would have the power to do so.) So if it has that power, then why should we care that it has chosen to restrict the scope of the statute to situations where the victim agency receives more than $10,000 in federal funding? The buzz is (scroll down to Greenhouse's description of this case) that this might be the case where the federalism revolution reaches the Spending Clause. But I don't see how, or why. Richard W. Garnett Notre Dame Law School Notre Dame, IN 46556 (574) 631-6981 [EMAIL PROTECTED] http://www.nd.edu/~ndlaw/faculty/facultypages/garnettr.html
Re: FW from Eric Muller: RE: Puzzling cert grant
I would highly recommend reading the 8th Circuit's opinion. In brief, the court holds that (i) the statute is an exercise of the spending power; (2) but that it is not a conditions statute [i.e. placing a condition on spending federal funds, where a nexus argument night well be made]; yet (3) it is nevertheless constitutional as an exercise of Congress' power to enact direct laws under the authority of the spending power and to use any means necessary to the proper end (necessary and proper power a'la McCulloch), including laws governing the conduct of those who receive federal funds, but not requiring any nexus to the federal funds themselves (but, alternatively, to the practices and honesty of the recipients, one presumes). This is a pretty interesting way of framing the question. As to Congress being able to enact the same statute under the Commerce Clause, the answer is likely: perhaps so, but it doesn't matter, for Congress picked the Spending Power quite specifically, and having done so Congress is stuck with the enumerated power it selected. It's not hard to think of good reasons why this should be so. Randy Bezanson University of Iowa At 03:24 PM 10/15/2003, you wrote: Eric Muller posed this question on his blog (http://www.isthatlegal.org); I wonder what people think about it. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] Sent: Wednesday, October 15, 2003 3:32 PM To: [EMAIL PROTECTED]; [EMAIL PROTECTED] Subject: Puzzling cert grant I am at a loss to understand the Sabri case, on which the Court yesterday granted cert. --Eric http://www.isthatlegal.org/archives/2003_10_12_isthatlegal_archive.html#1066 24604536734652 The Supreme Court yesterday granted certiorari in a case out of the Eighth Circuit involving a federal bribery statute. The law in question makes it illegal for a state employee of an agency that gets more than $10,000 in federal funding to accept a bribe in an amount greater than $5,000. The case is apparently getting litigated as a Spending Clause issue, so the issue before the Court is whether the law exceeds the Congress's Spending Clause powers in that it doesn't require that the $5,000 bribe relate in any way to the $10,000 in federal funding. I am at a loss. Congress would unquestionably have the power, under the Commerce Clause, to make it illegal to pay a money bribe in an amount greater than $5,000 to anyone. That would just be a prohibition of a money transaction--something that would be OK even under the new rules of the federalism game that the Court has been giving us. (Think of it this way: wouldn't Congress have the power to pass a law that made it illegal to sell more than $5,000 worth of cocaine? More than $5,000 worth of tobacco? I'm not asking whether it would be wise for Congress to pass such a law--just whether it would have the power to do so.) So if it has that power, then why should we care that it has chosen to restrict the scope of the statute to situations where the victim agency receives more than $10,000 in federal funding? The buzz is (scroll down to Greenhouse's description of this case) that this might be the case where the federalism revolution reaches the Spending Clause. But I don't see how, or why.
Re: Precedent Originalism: Was Scalia, Textualism, and Printz
This might very well be the position Scalia takes. In his dissent in Union Gas, he argues: "Even if I were wrong, however, about the original meaning of the Constitution, or the assumption adopted by the Eleventh Amendment, or the structural necessity for federal-question suits against the States, it cannot possibly be denied that the question is at least close. In that situation, the mere venerability of an answer consistently adhered to for almost a century, and the difficulty of changing, or even clearly identifying, the intervening law that has been based on that answer, strongly argue against a change. As noted by the Welch plurality, "Hans has been reaffirmed in case after case, often unanimously and by exceptionally [491 U.S. 1, 35] strong Courts"; its reversal "would overrule at least 17 cases, in addition to Hans itself" and cast doubt on "a variety of other cases that were concerned with this Court's traditional treatment of sovereign immunity." 483 U.S., at 494, n. 27. Moreover, unlike the vast majority of judicial decisions, Hans has had a pervasive effect upon statutory law, automatically assuring that private damages actions created by federal law do not extend against the States. Forty-nine Congresses since Hans have legislated under that assurance. It is impossible to say how many extant statutes would have included an explicit preclusion of suits against States if it had not been thought that such suits were automatically barred. Indeed, it is not even possible to say that, without Hans, all constitutional amendments would have taken the form they did. The Seventeenth Amendment, eliminating the election of Senators by state legislatures, was ratified in 1913, 23 years after Hans. If it had been known at that time that the Federal Government could confer upon private individuals federal causes of action reaching state treasuries; and if the state legislatures had had the experience of urging the Senators they chose to protect them against the proposed creation of such liability; it is not inconceivable, especially at a time when voluntary state waiver of sovereign immunity was rare, that the Amendment (which had to be ratified by three-quarters of the same state legislatures) would have contained a proviso protecting against such incursions upon state sovereignty." Thomas' apparent willingness to reconsider the post-New Deal commerce clause cases might suggest a disagreement with Scalia on this point. Richard Doughery "Conkle, Daniel O." wrote: Might not a judge--originalist or otherwise--simply conclude that stare decisis has independent value, in terms of legal stability, reliance, etc.? In this respect, is the originalist judge necessarily different from, say, a judge who believes that the Constitution should be interpreted in accordance with liberal philosophy, e.g., as understood by John Rawls? Might not either judge conclude that a mistaken decision should nonetheless be honored for reasons apart from the interpretative theory that the judge would apply if precedent were not a factor? Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ** -Original Message- From: Larry Solum [mailto:[EMAIL PROTECTED]] Sent: Wednesday, October 15, 2003 1:39 PM To: [EMAIL PROTECTED] Subject: Precedent Originalism: Was Scalia, Textualism, and Printz It seems to me that the question for originalists is WHETHER a "judicial decision is a superceding text adopted through a legitimate process." This question has at least two dimensions, one functional and the other normative. The functional question is whether precedents are to be treated as superceding, and if so, how, when they are out of line with the plain meaning of the constitutional text or its original meaning. Originalists may divide on precisely this point. On the one hand, some originalists may argue that adherence to precedent serves the same rule of law values as does originalism and textualism. On the other hand, other originalists may argue that precedents which depart from the text or original meaning should not be afforded precedential effect. A fully specified theory of originalism must have an answer to the functional question. The normative question concerns the political morality of treating precedents as authoritative even when they depart from text or original meaning. Different versions of originalism will take different positions on the normative question as well. Thus, popular-sovereignty originalists might take the position that judicial decisions that are not authorized by "We the People," are illegitimate, and hence not binding. Other originalists/textualists emphasize rule-of-law values as the normative foundation of originalism, and these originalists may find it easier to swallow Professor Earl Maltz's position: "A judicial
Re: FW from Eric Muller: RE: Puzzling cert grant
When I first read the court of appeals decision in Sabri (while looking for an exam question last semester), I was struck by the potential expansiveness of its reasoning. The court emphatically rejects treating section 666 as a conditional spending statute -- and doesn't make Eric Muller's move of treating the case as a commerce clause case -- but instead broadly concludes that the statute is a legitimate exercise of Congress's undisputed power to make a law that is necessary and proper for the carrying out of its enumerated power to provide for the general welfare of the United States. That is, since Congress has the power to spend money for the general welfare, it can police the integrity of those who receive the money and punish those who attempt to corrupt them by offering them bribes -- even if the action that the briber sought has nothing to do with the federal funds. The court notes that money is fungible and that maladministration of funds in one part of an agency can affect the allocation of funds, whether federal or local in origin, throughout an entire agency. Under that reasoning, it would seem that Congress would have the power to criminalize not simply the offering of a bribe to a recipient of federal funds, but (say) theft from the recipient of federal funds. Doesn't theft of funds affect the allocation of funds, whether federal or local in origin? And if Congress can criminalize theft from the recipient of federal funds, it would seem to open up precisely the limitless police power that judicially-enforced federalism seeks to avoid. How about theft from students receiving student loans, theft from parents receiving food stamps for their children, theft from the recipients of a tax rebate? theft from the recipients of federal reserve notes?? And how about federal statutes to police the integrity of students receiving student loans, parents receiving food stamps, tax payers receiving rebates, or even anyone receiving federal reserve notes? Ed Hartnett Seton Hall Eugene Volokh [EMAIL PROTECTED]To: [EMAIL PROTECTED] LA.EDUcc: Sent by: DiscussionSubject: FW from Eric Muller: RE: Puzzling cert grant list for con law professors [EMAIL PROTECTED] v.ucla.edu 10/15/03 04:24 PM Please respond to Discussion list for con law professors Eric Muller posed this question on his blog (http://www.isthatlegal.org); I wonder what people think about it. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Wednesday, October 15, 2003 3:32 PM To: [EMAIL PROTECTED]; [EMAIL PROTECTED] Subject: Puzzling cert grant I am at a loss to understand the Sabri case, on which the Court yesterday granted cert. --Eric http://www.isthatlegal.org/archives/2003_10_12_isthatlegal_archive.html#1066 24604536734652 The Supreme Court yesterday granted certiorari in a case out of the Eighth Circuit involving a federal bribery statute. The law in question makes it illegal for a state employee of an agency that gets more than $10,000 in federal funding to accept a bribe in an amount greater than $5,000. The case is apparently getting litigated as a Spending Clause issue, so the issue before the Court is whether the law exceeds the Congress's Spending Clause powers in that it doesn't require that the $5,000 bribe relate in any way to the $10,000 in federal funding. I am at a loss. Congress would unquestionably have the power, under the Commerce Clause, to make it illegal to pay a money bribe in an amount greater than $5,000 to anyone. That would just be a prohibition of a money transaction--something that would be OK even under the new rules of the federalism game that the Court has been giving us. (Think of it this way: wouldn't Congress have the power to pass a law that made it illegal to sell more than $5,000 worth of cocaine? More than $5,000 worth of tobacco? I'm not asking whether it would be wise for Congress to pass such a law--just whether it would have the power to do so.) So if it has that power, then why should we care that it has chosen to restrict the scope of the statute to situations where the victim agency receives more than $10,000 in federal funding? The buzz is (scroll down to Greenhouse's description of this case) that this might be the case where the federalism revolution reaches the Spending Clause. But I don't see how, or why.
Re: Attorney's fees in pledge of allegiance case
Dear All, I've been told that he is a lawyer, although only quite recently admitted in California -- apparently so recently admitted that he will have to proceed pro hac vice in the Supreme Court because he doesn't have the requisite three years to be eligible for admission to the Supreme Court Bar. Pam Karlan At 05:57 PM 10/15/2003 -0500, you wrote: I had heard he was a lawyer; does anyone know for sure? Paul Finkelman Quoting Howard M. Wasserman [EMAIL PROTECTED]: I do not believe that Newdow is a lawyer -- part of why the ACLU and other organizations tried so hard to get him not to argue himself in the 9th Circuit. The result would not be different if he were not a lawyer--in fact it becomes easier. The idea of s. 1988 is to enable plaintiffs to attract competent counsel--the private attorney general model--by providing incentives to lawyers to take on cases such as this, that have no $ value. If the plaintiff is going to represent himself, he does not need that incentive to attract competen counsel. Howard Wasserman FIU College of Law - Original Message - From: James Maule [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Wednesday, October 15, 2003 2:00 PM Subject: Re: Attorney's fees in pledge of allegiance case Is it that the litigant is a lawyer or simply that there are no out-of-pocket attorney fees to be reimbursed? In other words, the statute doesn't cover the value of the litigant's time, just the value of actual expended dollars? (Same thing with the tax case attorney fee recovery statute (26 USC sec 7430) (see Sorrentino v US 199 F Supp 1068, and cases cited therein), and my guess is that all such statutes, state and federal, end up being limited to reimbursement of actual outlays barring specific legislation saying otherwise). I assume Newdow is a lawyer? If he weren't, would the result be different? Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist Genealogist (www.maulefamily.com) [EMAIL PROTECTED] 10/15/2003 1:41:09 PM Under Kay v. Ehrler, 499 U.S. 432 (1991), a pro se litigant who is also a lawyer cannot be awarded fees under 42 U.S.C. sec. 1988, which is, I assume, the fee-shifting statute most likely to apply to this case. Pam Karlan At 01:09 PM 10/15/2003 -0400, you wrote: Since Mark Newdow is apparently representing himself, would he be entitled to attorneys' fees if he prevails in the pledge of allegiance case? If so, approximately how much would they be (four figures, five figures, or six figures)? Pamela S. Karlan Kenneth and Harle Montgomery Professor of Public Interest Law Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305-8610 [EMAIL PROTECTED] 650.725.4851 Pamela S. Karlan Kenneth and Harle Montgomery Professor of Public Interest Law Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305-8610 [EMAIL PROTECTED] 650.725.4851
Re: recusal
Given my own views, I'm delighted that Scalia will not be participating, but I'm not clear why he has to recuse himself because of his candid remarks to the Knights of Columbus and not, say, if he had written one of his patented dissents in a school prayer case that made reference to the Pledge and castigated the majority for adopting an illegitimate doctrine that, if applied conscientiously, would exclude God from the public forums and from political life. Recall Rehnquist's and O'Connor's statements in Garcia that they basically couldn't wait until they had the votes to overrule that decision and return to Ussery. Why didn't that compel recusal? Or Brennan's and Marshall's repeatedly saying that the death penalty was unconstitutional in all circumstances presumably can be interpreted as meaning that they had pre-judged each particular capital punishment case. Should they have recused themselves? None of these are rhetorical questions. I really don't understand the theory (or practice) of recusal. sandy At 06:08 PM 10/15/2003, you wrote: According to a Linda Greenhouse story in today's NY Times, Newdow is a lawyer and a medical doctor who has represented himself in the litigation. (page A14). Newdow apparently moved for recusal of Justice Scalia because of remarks that Justice Scalia made regarding the specific case at a meeting co-sponsored by the Knights of Columbus, which, according to the NY Times, played a leading role in persuading Congress to add 'under God' to the pledge. NY Times: Justice Scalia's speech at an event for Religious Freedom Day pointed to the Ninth Circuit's decision in this case as an example of how courts were misinterpreting the Constitution to 'exclude God from the public forums and from political life.'
Re: Attorney's fees in pledge of allegiance case
Today's LA Times story on the case says he is a lawyer and plans to argue the case. But of course, a lot of people question the LA Times's reporting these days... -Original Message-From: Discussion list for con law professors [mailto:[EMAIL PROTECTED]On Behalf Of Pam KarlanSent: Wednesday, October 15, 2003 4:14 PMTo: [EMAIL PROTECTED]Subject: Re: Attorney's fees in pledge of allegiance caseDear All,I've been told that he is a lawyer, although only quite recently admitted in California -- apparently so recently admitted that he will have to proceed pro hac vice in the Supreme Court because he doesn't have the requisite three years to be eligible for admission to the Supreme Court Bar.Pam KarlanAt 05:57 PM 10/15/2003 -0500, you wrote: I had heard he was a lawyer; does anyone know for sure? Paul FinkelmanQuoting "Howard M. Wasserman" [EMAIL PROTECTED]: I do not believe that Newdow is a lawyer -- part of why the ACLU and other organizations tried so hard to get him not to argue himself in the 9th Circuit. The result would not be different if he were not a lawyer--in fact it becomes easier. The idea of s. 1988 is to enable plaintiffs to attract competent counsel--the private attorney general model--by providing incentives to lawyers to take on cases such as this, that have no $ value. If the plaintiff is going to represent himself, he does not need that incentive to attract competen counsel. Howard Wasserman FIU College of Law - Original Message - From: "James Maule" [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Wednesday, October 15, 2003 2:00 PM Subject: Re: Attorney's fees in pledge of allegiance case Is it that the litigant is a lawyer or simply that there are no out-of-pocket attorney fees to be reimbursed? In other words, the statute doesn't cover the value of the litigant's time, just the value of actual expended dollars? (Same thing with the tax case attorney fee recovery statute (26 USC sec 7430) (see Sorrentino v US 199 F Supp 1068, and cases cited therein), and my guess is that all such statutes, state and federal, end up being limited to reimbursement of actual outlays barring specific legislation saying otherwise). I assume Newdow is a lawyer? If he weren't, would the result be different? Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist Genealogist (www.maulefamily.com) [EMAIL PROTECTED] 10/15/2003 1:41:09 PM Under Kay v. Ehrler, 499 U.S. 432 (1991), a pro se litigant who is also a lawyer cannot be awarded fees under 42 U.S.C. sec. 1988, which is, I assume, the fee-shifting statute most likely to apply to this case. Pam Karlan At 01:09 PM 10/15/2003 -0400, you wrote: Since Mark Newdow is apparently representing himself, would he be entitled to attorneys' fees if he prevails in the pledge of allegiance case? If so, approximately how much would they be (four figures, five figures, or six figures)? Pamela S. Karlan Kenneth and Harle Montgomery Professor of Public Interest Law Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305-8610 [EMAIL PROTECTED] 650.725.4851 Pamela S. KarlanKenneth and Harle Montgomery Professor of Public Interest LawStanford Law School559 Nathan Abbott WayStanford, CA 94305-8610[EMAIL PROTECTED]650.725.4851
Re: Attorney's fees in pledge of allegiance case
From the AP [http://www.nytimes.com/aponline/national/AP-Scotus-Pledge-of- Allegiance.html?hp]: Newdow, a doctor and lawyer representing himself in the case, hopes to argue the case but he must get special permission from the court. If the AP can be trusted. . . Will Baude http://www.crescatsententia.org Quoting Paul Finkelman [EMAIL PROTECTED]: I had heard he was a lawyer; does anyone know for sure? Paul Finkelman Quoting Howard M. Wasserman [EMAIL PROTECTED]: I do not believe that Newdow is a lawyer -- part of why the ACLU and other organizations tried so hard to get him not to argue himself in the 9th Circuit. The result would not be different if he were not a lawyer--in fact it becomes easier. The idea of s. 1988 is to enable plaintiffs to attract competent counsel--the private attorney general model--by providing incentives to lawyers to take on cases such as this, that have no $ value. If the plaintiff is going to represent himself, he does not need that incentive to attract competen counsel. Howard Wasserman FIU College of Law - Original Message - From: James Maule [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Wednesday, October 15, 2003 2:00 PM Subject: Re: Attorney's fees in pledge of allegiance case Is it that the litigant is a lawyer or simply that there are no out-of-pocket attorney fees to be reimbursed? In other words, the statute doesn't cover the value of the litigant's time, just the value of actual expended dollars? (Same thing with the tax case attorney fee recovery statute (26 USC sec 7430) (see Sorrentino v US 199 F Supp 1068, and cases cited therein), and my guess is that all such statutes, state and federal, end up being limited to reimbursement of actual outlays barring specific legislation saying otherwise). I assume Newdow is a lawyer? If he weren't, would the result be different? Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist Genealogist (www.maulefamily.com) [EMAIL PROTECTED] 10/15/2003 1:41:09 PM Under Kay v. Ehrler, 499 U.S. 432 (1991), a pro se litigant who is also a lawyer cannot be awarded fees under 42 U.S.C. sec. 1988, which is, I assume, the fee-shifting statute most likely to apply to this case. Pam Karlan At 01:09 PM 10/15/2003 -0400, you wrote: Since Mark Newdow is apparently representing himself, would he be entitled to attorneys' fees if he prevails in the pledge of allegiance case? If so, approximately how much would they be (four figures, five figures, or six figures)? Pamela S. Karlan Kenneth and Harle Montgomery Professor of Public Interest Law Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305-8610 [EMAIL PROTECTED] 650.725.4851
Michael A. Newdow is admitted to practice law in California
One of the readers of my Web log brought this link to my attention yesterday: http://members.calbar.ca.gov/search/member_detail.aspx?x=220444 It confirms Mr. Newdow's admission to the State Bar of California last year. Best regards, HJBashman
Re: Attorney's fees in pledge of allegiance case
That's correct. If Newdow wishes to argue the case,he'llneed leave of the Court to do so pursuant to Rule 6.3. The Courtdoesnot invariably grant such a motion. See, e.g., Buckley v. ACLF, 524 U.S. 975(1998) (mem.). - Original Message - From: Pam Karlan To: [EMAIL PROTECTED] Sent: Wednesday, October 15, 2003 7:14 PM Subject: Re: Attorney's fees in pledge of allegiance case Dear All,I've been told that he is a lawyer, although only quite recently admitted in California -- apparently so recently admitted that he will have to proceed pro hac vice in the Supreme Court because he doesn't have the requisite three years to be eligible for admission to the Supreme Court Bar.Pam KarlanAt 05:57 PM 10/15/2003 -0500, you wrote: I had heard he was a lawyer; does anyone know for sure? Paul FinkelmanQuoting "Howard M. Wasserman" [EMAIL PROTECTED]: I do not believe that Newdow is a lawyer -- part of why the ACLU and other organizations tried so hard to get him not to argue himself in the 9th Circuit. The result would not be different if he were not a lawyer--in fact it becomes easier. The idea of s. 1988 is to enable plaintiffs to attract competent counsel--the private attorney general model--by providing incentives to lawyers to take on cases such as this, that have no $ value. If the plaintiff is going to represent himself, he does not need that incentive to attract competen counsel. Howard Wasserman FIU College of Law - Original Message - From: "James Maule" [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Wednesday, October 15, 2003 2:00 PM Subject: Re: Attorney's fees in pledge of allegiance case Is it that the litigant is a lawyer or simply that there are no out-of-pocket attorney fees to be reimbursed? In other words, the statute doesn't cover the value of the litigant's time, just the value of actual expended dollars? (Same thing with the tax case attorney fee recovery statute (26 USC sec 7430) (see Sorrentino v US 199 F Supp 1068, and cases cited therein), and my guess is that all such statutes, state and federal, end up being limited to reimbursement of actual outlays barring specific legislation saying otherwise). I assume Newdow is a lawyer? If he weren't, would the result be different? Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist Genealogist (www.maulefamily.com) [EMAIL PROTECTED] 10/15/2003 1:41:09 PM Under Kay v. Ehrler, 499 U.S. 432 (1991), a pro se litigant who is also a lawyer cannot be awarded fees under 42 U.S.C. sec. 1988, which is, I assume, the fee-shifting statute most likely to apply to this case. Pam Karlan At 01:09 PM 10/15/2003 -0400, you wrote: Since Mark Newdow is apparently representing himself, would he be entitled to attorneys' fees if he prevails in the pledge of allegiance case? If so, approximately how much would they be (four figures, five figures, or six figures)? Pamela S. Karlan Kenneth and Harle Montgomery Professor of Public Interest Law Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305-8610 [EMAIL PROTECTED] 650.725.4851 Pamela S. KarlanKenneth and Harle Montgomery Professor of Public Interest LawStanford Law School559 Nathan Abbott WayStanford, CA 94305-8610[EMAIL PROTECTED]650.725.4851
Re: FW from Eric Muller: RE: Puzzling cert grant
At 09:29 PM 10/15/2003 -0500, you wrote: If I were going to argue that they should (which I haven't thought much about), I'd start by pointing out that we haven't done a very good job of coming up with other, substantive limits on the spending power, so imposing a procedural hurdle in the form of a clear invocation requirement would cut back on the extent to which that power can undercut limits on the other powers, like commerce. Ernie Young Don't we already have all the clear invocation requirement we need in the Spending Clause context in the Pennhurst clear statement rule, in all of its permutations? And anyway, what seems to be interesting here is that there's no concern that Congress is using its spending power to get around limitations on other powers -- here the commerce power justification might well be stronger than the spending power justification. So even one who agrees that there should be a clear-invocation requirement for open-ended powers that allow Congress to circumvent limitations on other powers (like the spending power and maybe Section 5) would need some other argument to justify a clear-invocation requirement for a less powerful power like the commerce power.
Re: FW from Eric Muller: RE: Puzzling cert grant (fwd)
[Apologies if this is a repeat, but I sent it this afternoon and it doesn't seem to have made it to the list] It's axiomatic under administrative law that an agency must state the statutory basis for its claim of regulatory power. But Congress isn't an agency. Where in the constitution (other than arguably the 14th Amendment) does it say or imply that Congress is in any way obliged to rely on a particular power to do something? Of course, Congress is free to say that some particular restriction should run only as far as a particular power does (just as states can say that their long-arm goes as far as due process permits). And perhaps 14th amendment cases are a special case. And, perhaps, if Congress mentions a particular power we should read that as an implicit decision to disclaim other sources (although I'm slightly at a loss as to why one would apply such a rule of construction as a general matter). But as a matter of first principles, if Congress simply enacts a rule without stating any constitutional authority, is it not the court's job to examine all possibilities (or, maybe, jusst all those argued by the parties?) in order to save the statute? -- http://www.icannwatch.org Personal Blog: http://www.discourse.net A. Michael Froomkin |Professor of Law| [EMAIL PROTECTED] U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA +1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm --It's hot here.--
