I personally would like to know whose next article is going to be entitled, "Teeny Tiny Security Risks." That, to me, is a classic exchange that should never be forgotten:)
On Wed, Oct 8, 2014 at 3:37 PM, <mksa...@mindspring.com> wrote: > > Hi- i'm not sure if this is needed, but just a clarifying note that > Jusrice Alito's reference to a comb was serious; his mocking of the state > was his suggestion that a revolver might fall out of a beard, when combed. > But, as Doug said, Arkansas agreed when pressed that use of a small comb > could provide a workable means to deter and detect contraband, though as > the transcript reflects, with different language that i'm not looking at > right now. > > best, > > Mark Sabel > > -----Original Message----- > From: Douglas Laycock > Sent: Oct 8, 2014 8:08 AM > To: 'Law & Religion issues for Law Academics' > Subject: RE: Holt v. Hobbs Oral Argument > > I got relatively few questions, and more time to talk, than I have ever > experienced. Maybe my toughest question was Roberts complaining that we had > made the case too easy and Scalia suggesting that maybe they should dig it. > And of course a fair number of questions about how to reconcile deference > with compelling interest and least restrictive means. That is a genuine > puzzle. > > > > David Curran for Arkansas got roughed up. Alito’s last two questions were > openly making fun of the state’s position. Why don’t you give the guards a > comb – design it however you want – and they can make the prisoner comb out > his beard and see if a SIM card or a tiny revolver falls out? Curran said > that could work! > > > > He all but abandoned their arguments below, and even in the brief, and > tried > to construct a new argument about how a prisoner in one barracks could > shave > his beard in the morning, go out to work in the fields, trade ID and > uniform > with another prisoner who looked a little bit the same, and get into a > different barracks to attack one of his enemies. He tried to claim it was > alluded to in the record, with citations to specific page numbers. If the > references are there, they are the barest allusions; I couldn’t find his > first one, looking quickly at counsel table. Alito made fun of the switched > identity argument too., > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of matt steffey > Sent: Tuesday, October 07, 2014 11:42 PM > To: Law & Religion issues for Law Academics > Subject: Re: Holt v. Hobbs Oral Argument > > > > chris, > > > > i hope you're well. damn technology indeed. i just wanted to say hello and > observe that i can't recall seeing something quite like arkansas "letter > withdrawing false statement" before. given they don't make policy, i almost > felt sorry for the arkansas assistant a.g. who had to argue this dog of a > case. > > > > i hope all is well with you and yours. > > > > > > matt > > On Oct 7, 2014, at 10:21 PM, Christopher Lund > wrote: > > > > > > None of those links work. Stupid email formatting. > > Try these. > > http://www.americanbar.org/content/dam/aba/publications/supreme_court_prev > iew/BriefsV4/13-6827_resp.authcheckdam.pdf > > http://www.americanbar.org/content/dam/aba/publications/supreme_court_prev > iew/BriefsV4/13-6827_pet_reply.authcheckdam.pdf > > http://www.becketfund.org/wp-content/uploads/2014/08/No-13-6827-Response-t > o-Pet-Rule-32.3-Request.pdf > > > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu > > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund > Sent: Tuesday, October 07, 2014 11:16 PM > To: 'Law & Religion issues for Law Academics' > Subject: RE: Holt v. Hobbs Oral Argument > > For those who don't know what Doug means by "caught them red-handed" (or > what Marc means by "playing fast and loose in this case"), the relevant > material can be found in pg. 46 of the respondent's brief > (http://www.americanbar.org/content/dam/aba/publications/supreme_court_pre > view/BriefsV4/13-6827_resp.authcheckdam.pdf) and pg. 14-15 of the > petitioner's reply > (http://www.americanbar.org/content/dam/aba/publications/supreme_court_pre > view/BriefsV4/13-6827_pet_reply.authcheckdam.pdf). > > Arkansas' concession of error can be found here, > http://www.becketfund.org/wp-content/uploads/2014/08/No-13-6827-Response-t > o-Pet-Rule-32.3-Request.pdf. > > Best, > Chris > ___________________________ > Christopher C. Lund > Associate Professor of Law > Wayne State University Law School > 471 West Palmer St. > Detroit, MI 48202 > l...@wayne.edu > (313) 577-4046 (phone) > (313) 577-9016 (fax) > Website—http://law.wayne.edu/profile/christopher.lund/ > Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 > > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu > > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock > Sent: Tuesday, October 07, 2014 10:57 PM > To: Law & Religion issues for Law Academics; Marc Stern > Subject: Re: Holt v. Hobbs Oral Argument > > What Marc says is clearly true. But even in this case, when we caught > them red handed, I didn't feel like I could say to the Court that they lie > routinely. Judges have either figured that out, or they don't believe it. > And even those who have figured it out are unwilling to say it in > opinions. > > On Tue, 7 Oct 2014 22:07:56 -0400 > Marc Stern > wrote: > > > > A simple fact of prison litigation is that prison officials lie-or > simply > > care little for the facts-when asserting concerns about security. When I > was a law clerk, the states routinely filed canned briefs asserting grave > and unavoidable security concerns , no matter what the reality was-and in > one memorable case in defense of a practice( labeling prisoners by race) > that the Supreme Court had even then long since condemned. One state > commissioner of corrections once told a group of us that he was aware that > prison security officials could not be relied on to fairly assess risks > and the deputy commissioner of another flatly told me she know prison > administrators routinely lied. That sort of paying fast and loose occurred > in this case,but was caught by counsel with the skill, time, commitment > and knowledge to discover the fraud on the court- luxuries pro se > litigants often don't have. And even when they do, some judges will still > invoke deference. > > > > > Prisons are not like other places, and things that seem innocent and > > harmless can be deadly weapons. Deference to prison officials therefore > makes much sense- but only if prison officials can be counted on to tell > the truth and deliver fair and honest assessments of risk. Too many > don't and courts should not ratify those malign practices by blindly > deferring to prison officials. How to apply deference without judicial > abdication is the hard question in this case, not the question of how long > > > > Is too long. > Marc Stern > Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE > > network. > > > > From: Friedman, Howard M. > Sent: Tuesday, October 7, 2014 9:03 PM > To: Law & Religion issues for Law Academics Reply To: Law & Religion > issues for Law Academics > Subject: RE: Holt v. Hobbs Oral Argument > > > I think this case on its facts is likely to be easy for the Court > because so many other states have found ways to accommodate beards. > That being the case, I fear that the Court may not be as careful as it > should in formulating the strict scrutiny test under RLUIPA. Broadly > speaking, prisons have put forward two kinds of justifications for > refusals to accomodate religious beliefs-- security concerns (as in > this case) and budgetary issues (e.g. in claims for kosher or Halal > diets). It seems to me that courts are fairly able to assess budgetary > justifications. However I fear that they are less able to assess > security concerns as they exist on the ground. If the court imposes > truly strict scrutiny when security is at issue, I fear that prisons > may be unable to adequately deal with Racist, neo-Nazi, and similar > groups that assert they are religious organizations. Currently a > number of prisons are facing the question of whether Nations of Gods > and Earths should be recognized a > > s a > > > > religion or classified as a security threat group. How much deference > > should be given to prison officials there? > > > > > Howard Friedman > ________________________________ > From: religionlaw-boun...@lists.ucla.edu > > [religionlaw-boun...@lists.ucla.edu] on behalf of Failinger, Marie > [mfailin...@hamline.edu] > Sent: Tuesday, October 07, 2014 6:38 PM > To: Law & Religion issues for Law Academics > Subject: Re: Holt v. Hobbs Oral Argument > > I haven't read all of the background materials, but it seems to me a > > little bizarre to worry about what one could hide in a 1/4, 1/2 or even 3 > inch beard given what one could hide in a typical prison uniform. If > uniforms are searched for contraband, why not beards? Seems like it would > be much easier and safer than a uniform search, unless there is some > religious ban against someone touching one's beard. > > > > > And what about the value encouraging state to expend a little effort > and > > creativity in meeting believers half-way by putting the state to its > burden of proof on its interests? In Hennepin County, the jail created > an inmate hijab for Muslim women that doesn't have any folds or places > where contraband can be hidden. To use the argument example, why > couldn't a Sikh be issued a transparent turban designed to minimize the > ability to hide contraband? > > > > > Could Doug or someone could explain the state's argument in the lower > court that someone could drastically change his appearance by shaving > his beard as a reason for denial? I presume that implies that he could > escape. I am trying to imagine a case in which a guy walking around in > prison with a jumpsuit (or less) would be allowed to leave prison > because he wasn't recognized as prisoner X. In the movies, at least > the prisoners have to steal a guard's uniform to get out:) > > I also wonder what everybody thinks about Scalia's statement that > > religious beliefs are "categorical," "it's [what] God tells you," implying > that there is no such thing as ethical "partial" compliance and that there > has to be a specific oral or written command from God for a RLIUPA claim > to be viable? I guess I would have to be a complete pacifist, observe > glatt kosher (and no elevators on Shabbat) or go to church every Sunday > before I could object to the state's rules. Or does Scalia mistakenly > assume that Islam is more "categorical" than these other religions? > > > > > On Tue, Oct 7, 2014 at 2:59 PM, Berg, Thomas C. > > > > wrote: > > > > The oral argument transcript is up, > http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-6827 > _8758.pdf. I haven't read it yet, but from the SCOTUS Blog report, it > looks like things went poorly for the state. > http://www.scotusblog.com/2014/10/argument-report-trouble-at-the-lecter > n/ > > We've had little discussion of this case on the list. I've presumed > > that's because there is a wide consensus that the case is easy. SCOTUS > Blog likewise concludes that "[t]he case, at least from the tenor of the > oral argument, did not seem to be a difficult one." But assuming that > Holt wins, there remains the important question of the precise language > the Court will use to explicate the compelling interest standard in the > prison context, where officials get some deference. > > > > > ----------------------------------------- > Thomas C. Berg > James L. Oberstar Professor of Law and Public Policy University of St. > Thomas School of Law MSL 400, 1000 LaSalle Avenue > Minneapolis, MN 55403-2015 > Phone: 651 962 4918 > Fax: 651 962 4881 > E-mail: tcb...@stthomas.edu > > > SSRN: http://ssrn.com/author='261564 > Weblog: http://www.mirrorofjustice.blogs.com > ----------------------------------------------------------------------- > ----- > ________________________________ > > _______________________________________________ > To post, send message to > Religionlaw@lists.ucla.edu > > > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > > > > -- > Marie A. Failinger > Professor of Law > Hamline University School of Law > 1536 Hewitt Avenue > Saint Paul, MN 55104 U.S.A. > 651.523.2124 (work phone) > 651.523.2236 (work fax) > mfailin...@hamline.edu > > (email) > > > > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law University of Virginia Law > School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, > unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, > unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > matt steffey > > professor of law > > stef...@mc.edu > > > > > > > > ______________________________________ > CONFIDENTIALITY NOTE: This communication may contain confidential > information. > If you are not the intended recipient or if you are not authorized to > receive it, please > notify and return the message to the sender. Unauthorized reviewing, > forwarding, > copying, distributing or using this information is strictly prohibited. > > > Mark Sabel > Sabel Law Firm, L.L.C. > P.O. Box 231348 > Montgomery, AL 36123 > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Marie A. Failinger Professor of Law Hamline University School of Law 1536 Hewitt Avenue Saint Paul, MN 55104 U.S.A. 651.523.2124 (work phone) 651.523.2236 (work fax) mfailin...@hamline.edu (email)
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
