Law

Damn Lies and Double Jeopardy

(Flickr/Diacritical)
The Supreme Court comes back into session Tuesday. On that day, the Justices will earn their salaries (and then some) by considering the following questions: Whether Section 8(b) of Real Estate Settlement Procedures Act prohibits a real estate settlement services provider from charging an unearned fee only if the fee is divided between two or more parties. Whether , under 28 U.S.C. § 1920(6), costs incurred in translating written documents are “compensation of interpreters,” which under the statute are awarded to the prevailing party in a federal lawsuit. Reader, these questions are important, but forgive me if I draw the veil of modesty over those Tuesday cases in favor of Wednesday’s, which are important too—and pose more broadly interesting puzzles. The first, Blueford v. Arkansas , is a double-jeopardy case. The Fifth Amendment provides that no person “shall ... be subject for the same offense to be twice put in jeopardy of life or limb.”...

What Is Sex For?

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What is the purpose of sex? Who should be able to have it, and at what cost? Apparently, that was on many minds on Valentine's Day. That's when the Prospect 's indefatigable Abby Rapoport told us that the Virginia House just voted to go full-steam ahead on a personhood bill, which will define life as beginning from the very second that a sperm bashes its head into an ovum. Yesterday, too, in the state of Washington, opponents of same-sex marriage launched their effort to repeal the state's newly signed marriage-equality law. Washington's gender-neutral marriages won't begin, at the earliest, until June 7, after a "standard enactment period" that puts new laws on hold for a bit. According to the Chicago Tribune , Opponents were led by Roman Catholic bishops and other religious conservatives. "Marriage is society's way of bringing men and women together so that children can be raised by, and cared for by, their mother and father," said Joseph Backholm, head of the Family Policy...

Colbert Explains Contraception And the War On Religion

Stephen Colbert can't say that, can he?! Stephen Colbert Explains the Catholic Church and Contraceptives The comedian describes what Obama's birth control plan looks like to conservative Catholics. It involves a banana and a guillotine. The Colbert Report Get More: Colbert Report Full Episodes , Political Humor & Satire Blog , Video Archive Log in or register to post comments

Government Has to Give Reasons

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The Ninth Circuit’s opinion in Perry v. Brown drew a letter to the Court suggesting the decision stemmed from “mold infestation” in court buildings. The correspondent is not the only person who hates the decision but has trouble explaining, in legal terms, why. The case illustrates the concept of “governmental interest” in constitutional law. My Con Law prof, Walter Dellinger, once said the course could be summed up in two sentences: “When government wants to do something to you, it has to give a reason. When it wants to do something really bad, it has to give a good reason.” Judges weigh “stuff government wants to do to you” against government’s reasons, or “interests.” Government wants to do a lot of things—keep order in the streets, prevent outbreaks of the Black Death, make the downtown mall nice, etc. In constitutional law, most of those interests are “legitimate”; there’s no reason government can’t pursue them. Only a few are “compelling,” which means things would descend into...

Birth Control Chess

(Flickr/brains the head)
Last week, I argued that it was unlikely that many critics of President Obama's contraceptive coverage requirement would be mollified by a compromise that would allow a religious exemption but still mandate that employees be provided with contraceptive coverage at no extra cost. Apparently, we're about to find out if that’s the case. I was very concerned when I first read that Obama was planning to announce a "compromise," and part of me still wishes he had just stood firm given the that the arguments against the new regulation were so bad. But, as described, I believe that the “ accommodation ” that was announced by the administration is acceptable. The bottom line is that employees will still be able to receive contraceptive coverage at no extra cost, and as NARAL's statement explains "[i]t guarantees that women will encounter no barriers from their bosses or insurance plans in getting birth control without a copay." As long as the substantive rights and benefits of employees are...

Sonia Sotomayor's Radical Judicial Activism

(Sesame Street)
This week, the Senate Judiciary Committee approved a bill requiring TV access to Supreme Court arguments. Justice Sonia Sotomayor isn’t waiting: She made her debut on Sesame Street this week. Though she and Maria were just trying to enjoy “un cafecito,” they were interrupted by Baby Bear, who demanded a judgment in his case against Goldie Locks, who had (as the record has long reflected) broken his tiny chair during a most flagrant trespass quare clausum fregit . Sotomayor listened to the twin arguments and suggested that Goldilocks take her personal glue, fix the chair, and “then the two of you can live happily ever after.” Now this is all very well, but what sort of example does it set for the young? Isn’t it the worst sort of unprincipled activism? Why did she not turn to the wisdom of the Founders? Not long ago I was sternly lectured by Professor Michael Ramsey of the University of San Diego for an irreverent post about Justice Antonin Scalia’s opinion in United States v. Jones...

Hidden Gems in the Mortgage Deal

AP Photo/Paul Sakuma
In the end, as at the start, Thursday’s deal between five big banks, the Department of Justice, and the attorneys general of 49 states came down to New York, the center of mortgage securitization and securities misrepresentation, and California, the center of mortgage mis-origination. Those states’ attorneys general—New York’s Eric Schneiderman and California’s Kamala Harris, both progressive Democrats elected in 2010—weren’t about the give the banks a pass. Which is why it wasn’t until two a.m. Thursday that the deal was finalized. Schneiderman’s chief concern was to preserve and enhance his and other law enforcement agencies’ ability to investigate the banks. Harris’s foremost interest was to secure the best deal for the hundreds of thousands of California homeowners who were struggling to make the payments on their devalued homes. Together, they compelled the banks and the Obama administration to come up with a better deal than the one that the banks and the Justice Department had...

Synecdoche, California

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Many progressive legal commentators, including Dahlia Lithwick and Garrett Epps , have praised Judge Stephen Reinhardt’s opinion holding that California’s Proposition 8—a referendum passed in 2008 making same-sex marriage illegal—is unconstitutional. The praise, however, has not been unanimous. At Balkinization, Jason Mazzone is harshly critical of Reinhardt’s opinion, arguing that “it is dishonest and foolish” and that the Ninth Circuit should “have written a powerful opinion setting out why a ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment” rather than resting on narrow grounds. In an ideal world, it would be better if the Supreme Court were to declare a right to same-sex marriage that applied immediately to all 50 states. However, I largely disagree with Mazzone’s critique. Most important, it misstates Reinhardt’s analysis and is far too optimistic about the odds that five Supreme Court justices would be willing to strike down bans on same-...

Hurrah for Small Victories: The Perry Decision Is Just Right

I loved the Ninth Circuit decision yesterday, in part for all the reasons Garrett Epps outlines so brilliantly here . It was perfect. It didn't overreach. It was confined to California's very peculiar circumstances. As I wrote in The Nation last year, this is precisely what the LGBT advocates have been privately hoping for: a decision that did not make the broad claim that same-sex couples have a right to marry in every state across the country. The LGBT legal groups won't tell you this openly, but what they really want is for the carefully planned Gill , Pedersen , and Windsor challenges to the Defense of Marriage Act (DOMA) to hit SCOTUS first. Those cases don't ask for a federal ruling on our right to marry. Rather, they say: States have already declared these couples married. That's what states do. The federal government doesn't get to pick and choose which marriages it wants to recognize. So I've been hearing from nongay supporters of LGBT rights who ask: Why not? Why didn't you...

What's So "Super" about Super PACs?

Super PACs are the breakout stars of the 2012 election cycle. Like one of Newt Gingrich's mistresses, they're technically independent of the candidates they support but can still besmirch a reputation. In recent weeks, Gingrich has called on Mitt Romney to disown statements made by the “ millionaire friends ” who've donated to his super PAC, while Newt himself took heat for an ad produced by a pro-Gingrich PAC slamming Romney’s record at Bain Capital. Super PACs made their debut during the 2010 midterm elections, following court rulings that loosened restrictions on key areas of campaign finance. If you spent your weekend discussing farm subsidies with policy wonks, then you will probably want to turn to this helpful piece for a full-monty version of the legal evolution of the super PAC. But if you have a normal social life, here’s what you need to know to get by at the next Washington dinner party: What are they? Super PACs are described as “non-connected political action committees...

In Prop. 8 Ruling, a Liberal Lion Coos

(AP Photo/Eric Risberg, Pool) Senior Circuit Judge Michael Daly Hawkins, left, Circuit Judge Stephen R. Reinhardt, center, and Circuit Judge N. Randy Smith hear arguments during a hearing in the Ninth Circuit Court of Appeals in San Francisco. Today, the federal appeals court in San Francisco upheld a lower-court decision finding California's ban on same-sex marriage unconstitutional. S tephen Reinhardt, a judge on the Ninth Circuit Court of Appeals,* has been called almost everything in the book. Conservatives slaver at the mention of his name; even liberals sometimes criticize his audacity. The Onion once ran a deadpan story reporting that he had “ruled the private celebration of Christmas unconstitutional ... ‘[i]n accordance with my activist agenda to secularize the nation.’” The last great liberal lion of a once-numerous pride, Reinhardt has written dozens of decisions that embody old-style judicial liberalism (including one holding that terminally ill individuals have a right to...

Balancing Faith and Contraceptives

Criticisms of President Obama's new birth control policy skip over the benefits for women's health.

Washington Post columnist E.J. Dionne argues against the Obama administration's laudable decision to require employer-provided health-insurance packages to cover contraception. The new rule, according to Dionne, is a "breach of faith" that the "administration should have done more to balance the competing liberty interests here." Dionne's argument is, however, extremely unconvincing. As an alternative to the Obama administration’s decision, Dionne touts what he calls a compromise. Under Dionne’s proposal, to get coverage for contraceptives, employees would have to pay more for a separate plan to obtain it, but "religious employers that decline to cover contraceptives must provide written notification to enrollees disclosing that fact." The requirement that employers provide written notice before denying people their federally guaranteed statutory rights is, to put it mildly, not an acceptable compromise if you place significant weight on the rights of women at all. Dionne mentions a...

Surveillance in a Wireless Age

T he Supreme Court unanimously held Monday that the installation of a GPS device in a person's car constitutes a "search" under the Fourth Amendment (which prohibits "unreasonable searches and seizures”). This unanimity is somewhat misleading, however, as the Court split with respect to what theory of the Fourth Amendment should be applied going forward and left a crucial question unanswered. The Court has often struggled to adapt the Fourth Amendment to technologies that expand the reach of the state. As is reflected in the amendment’s language ("The right of the people to be secure in their persons, houses, papers, and effects") government searches at the time of the amendment's adoption generally involved the physical invasion of property. But various technological innovations have allowed the state to increase its surveillance authority without conducting physical searches, and the Supreme Court has sometimes been behind the curve. In the 1928 case Olmstead v. United States , most...

The Difference Between Viagra and The Pill

Starting in August, women will no longer have to pay more than men for the prescriptions (the Pill, Viagra, Cialis) that enable them to have active sex lives. That was the big news this past Friday, when Department of Health and Human Services Secretary Kathleen Sebelius declared that almost* all employers must now pay for contraception in their health plans under the Affordable Health Care Act's requirement that insurers cover all preventive services. No co-pays. No deductibles. Whether or not women should pay for having sex—whether financially or through pregnancy—has been, shall we say, a hot topic for centuries. In the late 19th and early 20th centuries, the U.S. birth rate dropped dramatically because of new technologies (rubber condoms, that invention of Goodyear). Teddy Roosevelt decried contraception as "race suicide." Margaret Sanger went to jail for keeping women from withering and dying from gestating and delivering one after another bundle of joy. Late-19th- and early-20th...

Vermonters United

Sarah Harris Vermonters protest Citizen United outside the statehouse in Montpelier. “Hi. I’m Jerry. I’m a person,” said Jerry Greenfield, co-founder of Ben and Jerry’s Homemade Ice Cream, as he introduced himself to the crowd with an ingratiating smile. “Ben and Jerry’s Homemade Ice cream: not a person.” Everybody chuckled. A crowd at the Montpelier statehouse in Vermont rang in the second anniversary of Citizens United , a 2010 Supreme Court decision recognizing that corporations have free-speech rights under the First Amendment, with a rally on Friday. Retirees and college students, elected representatives, advocacy and business leaders, and ice-cream titan Greenfield gathered to call for a constitutional amendment repealing Citizens United and abolishing corporate personhood. The gathering was part of a series of events around the nation put on by groups like Public Citizen , Move to Amend , USPIRG , and others that are opposed to Citizens United . But the Montpelier rally had its...

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