Monthly Archives: February 2005


Padilla wins—bigtime in the District Court in South Carolina (warning: court site may be overloaded…here is an alternate site).

The government is ordered to release him (or charge him)… but only in 45 days…. I would imagine there will be an appeal…

[updated:] Here's what the court has to say to the government's Yoo-ish argument that the President can order any citizen jailed for whatever reason he wants, even in the face of a Congressional enactment, 18 U.S.C. § 4001(a), that says, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”

Accordingly, and limited to the facts of this case, the Court is of the firm opinion that it must reject the position posited by Respondent. To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition, but it would also be a betrayal of this Nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties.

For the Court to find for Respondent would also be to engage in judicial activism. This Court sits to interpret the law as it is and not as the Court might wish it to be. Pursuant to its interpretation, the Court finds that the President has no power, neither express nor implied, neither constitutional nor statutory, to hold Petitioner as an enemy combatant.

I could do without the suggestion that the Court “might wish” to see the President enjoy the arbitrary power of detention against any citizen, but however you slice it this is a stinging rebuke of the Administration's awful arguments.

Here's the sole fly in the ointment: “Of course, if appropriate, the Government can bring criminal charges against Petitioner or it can hold him as a material witness.” The material witness statute is itself routinely being abused.

Posted in Civil Liberties | 5 Comments

Another Good Conference I’m Going to Miss

This sounds both fun and useful: TaxProf Blog: Indiana To Host April 15 Symposium on The Next Generation of Law School Rankings

One of the many things that bugs me about US News's highly arbitrary law school rankings is the weight they put on graduates' starting salaries. One could well ask whether salaries are even relevant to rankings as the jobs that are hardest to get — public interest jobs — tend to pay the least. But even if one accepts the idea that money is relevant to ranking, it's weird to look only at nominal salary without any adjustment for cost of living. This is an enormous boost to the ranking of New York schools and a real downer for Miami's rankings. A very large fraction of our graduates fall in love with South Florida (or came here because they already love South Florida) and decide to stay. The large supply of entry-level lawyers — many Harvard grads seem to want to work here too — only worsens the historically low entry-level salaries in this town at all but the largest national firms. Yet, overall, with the exception of housing the cost of living isn't dire here, and there's no state income tax. None of that gets reflected in USN&WR's survey.

Posted in Talks & Conferences | 2 Comments

Run Linux Under Windows

I've always thought that I would want to run windows under Linux, thus my interest in things like cygwin has always been sort of low.

But these Cooperative Linux folks seem set on making Linux-under-windows a viable idea. After all, “Cygwin is not a way to run native linux apps on Windows. You have to rebuild your application from source if you want to get it running on Windows.” But with cooperative linux, maybe not?

Dog on its hind legs, or something cool? I can't quite tell, although it seems to me that Linux under Windows would not be nearly as robust as the other way around.

Posted in Software | 1 Comment

Alex Halavais on the Woes of Teaching Porn Studies

Alex Halavais is teaching Com 497, “Cyber Porn and Society,” in the Communications department at the University of Buffalo. He's done a number of energetic and innovative things, such as offering each of the (400?!?) students a chance to have a blog of their own.

Nevertheless, Teaching Porn seems to be proving to be a mixed experience:

  • I have to check the spam folder almost as often as the inbox, since student emails seem to get dropped there easily. Likewise, when I get an email reading “Here as promised the log-in to that amazing adult site,” I have to do due diligence to make sure the author isn’t really one of my students or correspondents.
  • I keep the door to my office closed when writing lectures and when someone knocks, I have to make sure the screen is clear of anything offensive, despite the fact that I will be talking about this in front of a class of 400.
  • It’s not hard to make some ASL translators blush.
  • It’s amazing, in a class of 400, what people can take to be a double entendre.

Aside from the little things, there are ongoing challenges. Some segment of the students apparently signed up because they wanted to see porn. This is a bizarre idea to me. I do show porn in the class: either when there is no other way to illustrate something, or when the presentation is (IMHO) very tame, or when it is just too inconvenient to expurgate from, for example, a video clip. (I’ve been using some clips from documentaries that air on HBO that seem to include gratuitous pornography interspersed with some really interesting interviews.) But taking a course has to be the most difficult possible way to obtain pornography. At this stage, it appears clear that a not insubstantial number of the students are going to fail the course, despite some generous curves on the exams. I don’t know that some brief titillation is worth having to admit to failing your porn course.

And then there's the homophobia…

Posted in The Media | 1 Comment

The Amazing Reappearing Statute

Both Howard Bashman and Orin Kerr ask what happens to a statute that is declared unconstitutional if and when the Supreme Court later reverses itself on the same issue. This is a very relevant question regarding the future of abortion bans given the likelihood of more anti-Roe v. Wade Justices in the near future.

First principles could be invoked for either side.

Ideas of (small-r) republicanism and popular sovereignty suggest that the statute must be re-passed by the legislature before it can take effect. The court's first decision striking down the law short-circuited any political activity that might have been directed towards repeal — why bother repealing a dead letter?

On the other hand, a formalist view — and we don't in our law recognize desuetude, so we have a somewhat formalist tendency — would suggest that every statute on the books is in force except those blocked by court action. Remove the block, the statute springs back into action. In other words, the second decision erases the first as if it never was (and then only due process prevents charges filed for any violations of the rule during the period it was thought invalid?).

Orin asks if there are any cases on this, and indeed there is one, although somewhat aged, leading case, that of Jawish v. Morlet, 86 A.2d 96 (D.C. App. 1952), heard by what was then the Municipal Court of Appeals for the District of Columbia.

I've reproduced the full text below, but the thrust of it is captured in this sentence: “And since the [first supreme court case] never was the law, its only effect, to use the language of Justice Vinson in the Warring case, was 'that just about everybody was fooled.'” As a result, the old law springs back into bindingness.

As a decision by the D.C. local courts is not binding precedent anywhere else, the issue appears open at the federal level. It seems to me that this sort of thing is actually arguable either way but that the length of time between the two decisions is highly relevant. The longer the gap, the stronger the argument for not reinstating the decisions by fiat, for the stronger the argument that but for the first court decision coalitions would have formed to demand repeal.

UPDATE: Stuart Buck weighs in with more formalist arguments as to why Jawish provides the correct answer:

One thing to clear up right off the bat, however, is the common misconception that federal courts have the power to “strike” down a law. We usually imagine that a statute, once declared unconstitutional, “is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as thought it had never been passed.”191 But this is not technically accurate. Despite such language used by courts and commentators, there is no such thing as “striking down.” A federal court has no power to erase a statute from a state's lawbooks.192 As one prominent scholar said, “No matter what language is used in a judicial opinion, a federal court cannot repeal a duly enacted statute of any legislative authority.”

To which I can can only say, “well, maybe.” The argument that a court doesn't void a statute, just puts it into a species of legal hibernation is strengthened by the observation that legislatures sometimes repeal statutes held to be unconstitutional, and if the statute were a total nullity, that would be a useless act. But then again, legislatures do useless acts sometimes, so what exactly does that prove, especially since there's no one with standing to challenge the repeal.

It seems to me that on this one, like many hard constitutional questions, how you come out on this one depends on what you consider relevant inputs to the issue. Is it the nature of democracy? A structural view of separation of powers? The underlying goal(s) of the Constitution (whatever you think that is, e.g. liberty)?

Update 2: See also Marty Lederman's excellent comments (broadly agreeing with Stuart Buck), and the interesting remarks of The Greedy Clerk (arguing that for state statutes the answer depends on state rules of decision).

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Posted in Law: Constitutional Law | 2 Comments

Bigots on the March

Green Cove Springs Florida (population 5,547) is just south of Jacksonville. It's a looong way from here, but it's not in the very northwest part of Florida, the western panhandle, which is culturally Alabama. So I would have expected just a little more enlightenment than it apparently has.

Green Cove enjoys a school administrator who won't allow a woman to appear in a school yearbook in a tuxedo. Because she's gay.

Rule are rules. Especially when made up on the spot (there are no written dress code rules in Green Cove regarding year book pictures).

Other top stories today in the Green Cove news:

  • Police Nab Jacksonville Beach Man in Sex Sting
  • Deputies: Clay County affordable housing official stole $40,000
  • Two Indicted in Slaying of Grandmother
  • One Charged, Brother Wanted For Putnam Attempted Murder #1 bestseller for Green Cove this week

  • A National Party No More by Zell Miller

Well, if Zell Miller, king of the hate-fest, is their kind of guy, it all starts to make sense….

Posted in Florida | 3 Comments