It's probably clichéd to make a blog of all the things you're thankful for on Thanksgiving, so I won't do that. I think most of that stuff speaks for itself. I do want to wish everyone a happy Thanksgiving, and give best of luck to all of my law school comrades who have only a couple weeks left until finals.
As for me, I've been spending my time working in the IUSA Congress. It has been my passion, and as a result I've been in several hours of meeting for the past few weeks. Will this make it harder to study for finals? Yes, but I'm okay with that. In the coming weeks (okay, probably not until next semester starts) I'll be making a big announcement regarding my future in which folks at IU will have at least a modicum of interest. That will have to wait until after finals and Christmas Break.
Until then, have a happy Thanksgiving break.
11.26.2008
11.04.2008
Thoughts on Election Day 2008
Well, I just got back from voting. No, I didn't vote because of the hundred and twelve pieces of junk left on my door by certain campaigns. I voted because I always have, and always will. I pride myself on doing the research on everything on the ballot. I pride myself on never voting for only one party. I pride myself on thinking about the public questions, and analyzing decisions by the judges up for retention. Yes, I love voting, because it's the reason my ancestors came to this wonderful country.
That said, I disagree fundamentally with the "duty to vote" that we keep hearing about. Voting is a right. Not a fundamental right, since it can be taken away. But nowhere is there a duty to vote. It is a disgusting campaign tactic to get people to mindlessly support the candidate of the day. They say, "If you don't vote, your voice won't be heard." That's right, but my mom always said you should think before you speak, and a lot of voters don't.
Today at my polling place, a woman came into the booth beside me and immediately asked for assistance. She asked the assistant if she could vote for just one party. Of course the assistant pointed out the straight ticket buttons, and reminded the woman that there were several other things on the ballot that weren't ticket items: judicial retention, public questions, and races that are non-partisan here in Monroe County. "No," the woman said, "I just want to vote for the democrats today."
This is what is wrong with American voting mentally today. It doesn't matter if she blindlessly supports Democrats, Republicans, Libertarians, or anyone else. The problem is that she isn't taking the time to think anything out. She's ignoring public questions. She's ignoring the judiciary. All she cares about is putting her party into office. That is stupid voting.
I propose that we eliminate the straight ticket buttons. If you want to vote for all one party, you can take the minute and a half to push their individual names. But at least then you'd have to go through the seven pages and answer the damn questions. See what it is you're voting for. Think for five seconds about whether assessments should be run through the township or the county.
My biggest problem with this woman and voters like her is that she ignored the public questions. She obviously supports "democracy," and yet she chose to ignore the one area where we are democratic. No, we vote in a republic in almost all ways. Our representatives makes the laws, not us. The closest thing to actual democracy we have in this country is public questions. We the people make the law. Incredible. But she doesn't care. No one does.
And that is the problem.
That said, I disagree fundamentally with the "duty to vote" that we keep hearing about. Voting is a right. Not a fundamental right, since it can be taken away. But nowhere is there a duty to vote. It is a disgusting campaign tactic to get people to mindlessly support the candidate of the day. They say, "If you don't vote, your voice won't be heard." That's right, but my mom always said you should think before you speak, and a lot of voters don't.
Today at my polling place, a woman came into the booth beside me and immediately asked for assistance. She asked the assistant if she could vote for just one party. Of course the assistant pointed out the straight ticket buttons, and reminded the woman that there were several other things on the ballot that weren't ticket items: judicial retention, public questions, and races that are non-partisan here in Monroe County. "No," the woman said, "I just want to vote for the democrats today."
This is what is wrong with American voting mentally today. It doesn't matter if she blindlessly supports Democrats, Republicans, Libertarians, or anyone else. The problem is that she isn't taking the time to think anything out. She's ignoring public questions. She's ignoring the judiciary. All she cares about is putting her party into office. That is stupid voting.
I propose that we eliminate the straight ticket buttons. If you want to vote for all one party, you can take the minute and a half to push their individual names. But at least then you'd have to go through the seven pages and answer the damn questions. See what it is you're voting for. Think for five seconds about whether assessments should be run through the township or the county.
My biggest problem with this woman and voters like her is that she ignored the public questions. She obviously supports "democracy," and yet she chose to ignore the one area where we are democratic. No, we vote in a republic in almost all ways. Our representatives makes the laws, not us. The closest thing to actual democracy we have in this country is public questions. We the people make the law. Incredible. But she doesn't care. No one does.
And that is the problem.
9.22.2008
Election 2008: Texas Turns... Yellow?
As some will know, I am a pretty big supporter of third-party rights in this country, believing that both of the two major parties are in need of some serious revision. So I was delighted to hear about a suit filed in Texas by Libertarian Party candidate Bob Barr, contesting the presence of John McCain and Barack Obama on the ballots in November.
According to the campaign's press release:
It's true that too often, the two major parties break election rules and allowed to get away with it because both parties violated them. Essentially, why would McCain complain about Obama breaking a law, when he knows that Obama will do the same thing right back to him? This is an example of why multiple parties keep the election process [more] honest. Smaller parties are forced to know the election laws forwards and backwards, because they have to follow every letter to survive the attacks the major parties put on them (see, for example, the removal of Barr from the West Virginia and Connecticut ballots).
Other states have kicked Barr and others off the ballot because they did not meet filing deadlines. If it's fair to remove candidates for failing to meet deadlines when they represent minor parties, then turnabout should be fair play. If I were a resident of Texas (or any other state that placed their deadline earlier than August 27, the day the Democrats officially declared Obama their candidate), I would be tremendously offended that the major parties thought they were more important than my state's laws.
Of course the point of deadlines so early is to make certification for minor parties extremely difficult. But if the major parties are too cocky to read the rules of every state, then the Secretaries of State for the various states should boot the punks off their ballot and let parties that know how to read appear on the ballot.
Of course I'm not hopeful for the success of this lawsuit. The judges in Texas are elected on a partisan basis, so they owe a debt to their parties. And when it gets appealed up, the judges were all appointed by partisan elected officials, so they still owe a debt. Not quite fair, I know, but it would be nice if judges would simply read the law and apply it equally in all cases. Either they filed by August 26 or they didn't. Risk getting kicked off the bench to do the right thing.
But as we all know, "...some are more equal than others."
According to the campaign's press release:
"The seriousness of this issue is self-evident," the lawsuit states. "The hubris of the major parties has risen to such a level that they do not believe that the election laws of the State of Texas apply to them."
Texas election code §192.031 requires that the “written certification” of the “party’s nominees” be delivered “before 5 p.m. of the 70th day before election day.” Because neither candidate had been nominated by the official filing deadline, the Barr campaign argues it was impossible for the candidates to file under state law.
"Supreme Court justices should recognize that their responsibility is to apply the law as passed by the Legislature, and the law is clear that the candidates cannot be certified on the ballot if their filings are late," says Drew Shirley, a local attorney for the Barr campaign, who is also a Libertarian candidate for the Texas Supreme Court.
A 2006 Texas Supreme Court decision ruled that state law "does not allow political parties or candidates to ignore statutory deadlines."
It's true that too often, the two major parties break election rules and allowed to get away with it because both parties violated them. Essentially, why would McCain complain about Obama breaking a law, when he knows that Obama will do the same thing right back to him? This is an example of why multiple parties keep the election process [more] honest. Smaller parties are forced to know the election laws forwards and backwards, because they have to follow every letter to survive the attacks the major parties put on them (see, for example, the removal of Barr from the West Virginia and Connecticut ballots).
Other states have kicked Barr and others off the ballot because they did not meet filing deadlines. If it's fair to remove candidates for failing to meet deadlines when they represent minor parties, then turnabout should be fair play. If I were a resident of Texas (or any other state that placed their deadline earlier than August 27, the day the Democrats officially declared Obama their candidate), I would be tremendously offended that the major parties thought they were more important than my state's laws.
Of course the point of deadlines so early is to make certification for minor parties extremely difficult. But if the major parties are too cocky to read the rules of every state, then the Secretaries of State for the various states should boot the punks off their ballot and let parties that know how to read appear on the ballot.
Of course I'm not hopeful for the success of this lawsuit. The judges in Texas are elected on a partisan basis, so they owe a debt to their parties. And when it gets appealed up, the judges were all appointed by partisan elected officials, so they still owe a debt. Not quite fair, I know, but it would be nice if judges would simply read the law and apply it equally in all cases. Either they filed by August 26 or they didn't. Risk getting kicked off the bench to do the right thing.
But as we all know, "...some are more equal than others."
Public Understanding of Bankruptcy Law
I'm deep into this semester, and my schedule is quite heavy. In addition to coursework in Constitutional Law, Criminal Procedure, Secured Transactions, Federal Criminal Law, and Evidence, I am in the depths of Moot Court (and that is all I'm allowed to say about Moot Court, apparently) as well as representing the student body as a member of the Indiana University Student Association. That would explain why I haven't blogged since I got back from the ABA Annual Meeting in New York (which, incidentally, was one of the most enjoyable law-related activities I have yet to participate in).
There is no doubt that the press sometimes picks up stories about the law and frames them in the context of "Judge is evil for enforcing law X". Sometimes I agree; the law in question is sometimes abhorrent and should be overturned on Constitutional grounds. Even better, here in Indiana, let a jury find that the law is something other than it seems to be. But other times, the press is making something sound horrible without considering anything in the world of the law.
Today the AP picked up a story about a bankruptcy court ordering a victim to pay back a thief. The story begins:
Apparently, the builder stole a lot of money from Mr. Poveromo. Then, two months before being convicted, the thief declared bankruptcy because, well, he was bankrupt. The thief paid off a large portion of the stolen property. Then the bankruptcy judge took it back because, as we all know, Article 9 of the U.C.C. says unsecured creditors are on the bottom of the totem pole (nevermind that the reporter never mentions the law behind this judge's reasoning... just make the judge out to be a jerk).
Now, a few months ago I may have thought to myself that this is completely unfair; a miscarriage of justice! But I've taken a few weeks of Secured Transactions now, and, unlike the general populace, I won't fall for this reporter's trickery.
The story advocates altering the bankruptcy code to allow victims of crimes to essentially become secured creditors after their judgment. As the law exists now, as Mr. Poveromo puts it, "Crime does pay." Obviously, this would be a hard law to write. Why limit the law to protect only victims of crime? If your legislative intent is to protect victims, shouldn't every victorious plaintiff in a tort claim be granted this secured status? And what makes a victim more important than a commercial lender? After all, if a new class of secured parties suddenly appears, lenders will be less likely to grant loans (because they will be in a worse position), or at least will demand higher interest rates to compensate them for the additional risk.
Do I feel bad for victims who, unfortunately, don't get the protections of Article 9? Sure. They've been wronged, and they deserve restitution. But why should we put them above commercial lenders, or anyone that was wise enough to get a security agreement? Mr. Poveromo's lawyer should have done enough research to know that the thief had filed for bankruptcy.
Of course, my biggest complaint here is the reporter who covered this story. He should have at least put the judge's reasoning in the article instead of making judges out to be evil dictators taking money from victims to compensate thieves (or, as one law professor was quoted, making "outrageous decision[s]" and executing a "miscarriage of justice"). If the populace feels judges are acting improperly, the press is certainly responsible for leading them in that direction.
There is no doubt that the press sometimes picks up stories about the law and frames them in the context of "Judge is evil for enforcing law X". Sometimes I agree; the law in question is sometimes abhorrent and should be overturned on Constitutional grounds. Even better, here in Indiana, let a jury find that the law is something other than it seems to be. But other times, the press is making something sound horrible without considering anything in the world of the law.
Today the AP picked up a story about a bankruptcy court ordering a victim to pay back a thief. The story begins:
Mark Poveromo feels ripped off twice over. A judge ordered him to repay money he collected from a builder convicted of stealing from him — and told him to kick in the thief's attorney fees and court costs, too.
Some legal experts say the case, in which a criminal case in Connecticut intersects a bankruptcy judgment filed in St. Louis, shows a need for Congress to revise the nation's bankruptcy laws to better treat people who are awarded money as part of ruling in a criminal case.
Apparently, the builder stole a lot of money from Mr. Poveromo. Then, two months before being convicted, the thief declared bankruptcy because, well, he was bankrupt. The thief paid off a large portion of the stolen property. Then the bankruptcy judge took it back because, as we all know, Article 9 of the U.C.C. says unsecured creditors are on the bottom of the totem pole (nevermind that the reporter never mentions the law behind this judge's reasoning... just make the judge out to be a jerk).
Now, a few months ago I may have thought to myself that this is completely unfair; a miscarriage of justice! But I've taken a few weeks of Secured Transactions now, and, unlike the general populace, I won't fall for this reporter's trickery.
The story advocates altering the bankruptcy code to allow victims of crimes to essentially become secured creditors after their judgment. As the law exists now, as Mr. Poveromo puts it, "Crime does pay." Obviously, this would be a hard law to write. Why limit the law to protect only victims of crime? If your legislative intent is to protect victims, shouldn't every victorious plaintiff in a tort claim be granted this secured status? And what makes a victim more important than a commercial lender? After all, if a new class of secured parties suddenly appears, lenders will be less likely to grant loans (because they will be in a worse position), or at least will demand higher interest rates to compensate them for the additional risk.
Do I feel bad for victims who, unfortunately, don't get the protections of Article 9? Sure. They've been wronged, and they deserve restitution. But why should we put them above commercial lenders, or anyone that was wise enough to get a security agreement? Mr. Poveromo's lawyer should have done enough research to know that the thief had filed for bankruptcy.
Of course, my biggest complaint here is the reporter who covered this story. He should have at least put the judge's reasoning in the article instead of making judges out to be evil dictators taking money from victims to compensate thieves (or, as one law professor was quoted, making "outrageous decision[s]" and executing a "miscarriage of justice"). If the populace feels judges are acting improperly, the press is certainly responsible for leading them in that direction.
7.19.2008
Come on, Allen County!
What is going on in Allen County's courts?
This week we got news that a state panel cited Judge Kenneth R. Scheibenberger for official misconduct. Apparently, back in November, he put on his robe and walked into another judge's courtroom (misstep number one). Then he listened to an alleged drug dealer get sentenced by the other judge. He then threw a bit of a fit and started swearing the the family of the defendant (misstep number two). He claims that the drug dealer sold his son drugs that resulted in his son's death.
Well, today's News-Sentinel reports that the Circuit Court judge in Fort Wayne, Judge Thomas J. Felts, was operating his vehicle while drunk, and let it "coast backward" into a police cruiser in Indianapolis. He was pulled over near Monument Circle, and instead of putting the vehicle into park, he put it in reverse. This is his re-election year, but is running unopposed.
I have to wonder what the voters in Allen County think about all this. Fort Wayne is one of the busiest court systems in Indiana, and they really can't afford to lose their Circuit judge and one of their Superior judges.
Further, what were these judges thinking? Scheibenberger couldn't have thought anything good would come of going to this sentencing in his robe. In doing so he tarnished the reputation of judges everywhere. To swear up a storm while in your robe just looks bad all around.
I'm glad I work for a Judge this summer. I'm also glad it's not in Allen County, which has to be in chaos right now.
This week we got news that a state panel cited Judge Kenneth R. Scheibenberger for official misconduct. Apparently, back in November, he put on his robe and walked into another judge's courtroom (misstep number one). Then he listened to an alleged drug dealer get sentenced by the other judge. He then threw a bit of a fit and started swearing the the family of the defendant (misstep number two). He claims that the drug dealer sold his son drugs that resulted in his son's death.
Well, today's News-Sentinel reports that the Circuit Court judge in Fort Wayne, Judge Thomas J. Felts, was operating his vehicle while drunk, and let it "coast backward" into a police cruiser in Indianapolis. He was pulled over near Monument Circle, and instead of putting the vehicle into park, he put it in reverse. This is his re-election year, but is running unopposed.
I have to wonder what the voters in Allen County think about all this. Fort Wayne is one of the busiest court systems in Indiana, and they really can't afford to lose their Circuit judge and one of their Superior judges.
Further, what were these judges thinking? Scheibenberger couldn't have thought anything good would come of going to this sentencing in his robe. In doing so he tarnished the reputation of judges everywhere. To swear up a storm while in your robe just looks bad all around.
I'm glad I work for a Judge this summer. I'm also glad it's not in Allen County, which has to be in chaos right now.
7.11.2008
More on: The Real Reason for Number Two
Kyle Michael at KMitB was kind enough to post a response to my previous post praising the Heller decision. Always in the mood for a good discussion, I want to respond to his response.
Michael writes:
You may have noticed that you don’t see many good militias these days; I suspect they’re hard to get together. Blair sticks to his guns (so to speak) here, maintaining that this is still a relevant purpose. That’s fine, if silly, but it fails to account for the use of guns for other purposes. Where does hunting fit in? Or, for that matter, why should you be allowed to use a gun to defend yourself against any threat other than an “oppressive government” or an invasion? The 2nd Amendment doesn’t mention anything about any of this; you’d think Scalia would have a problem with that.
I should first point out that I don't believe that the Second Amendment exists solely for the purpose of protection from an oppressive government. While that may be its most important purpose, there are certainly others - anything from self-defense to sport hunting. The language of the Amendment doesn't even mention invasion or self-defense.
Presumably, Michael is making the ill-fated grammar-based interpretation of the Second Amendment, that suggests that the preamble of the Amendment (i.e. "A well regulated militia, being necessary to the security of a Free state,") means that it applies only to organized militias and the security of the state. George Mason law professor Nelson Lund destroyed this position in his amicus brief in Heller. One need only examine other documents from the same time period to know that writing preambles was the fad, and that those preambles are not all-inclusive.
For example, one can look at Article 3 of the Northwest Ordinance ("Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged"). I doubt many people will argue that the only reason we encourage schools in this nation is because education makes for good government and happiness, or that religion, morality, and knowledge are their only purpose. Sure, those are pretty good reasons, but they are not the only reasons.
Michael continues:
Like Blair, Scalia combines the 2nd Amendment with a common law right to self defense. In doing so, and in endorsing the dipshit view that keeping handguns in the home for self-defense is a good idea, Scalia writes (and I swear I am not making this up): "[a handgun] can be pointed at a burglar with one hand while the other hand dials the police."
The Cato Institute's amicus brief in Heller discusses the English roots of the right to bear arms, which does cover the fact that the common law right to bear arms is derived from, and must be understood with, the common law right to self-defense. The English Bill of Rights of 1689 supports it, as does Blackstone and a variety of other English sources. Whether it is a "good idea" is a separate matter. Michael falls back on tired rhetoric to argue that kids will find the gun and do harm with it. Even if you take that position and do intelligent things, like putting the gun away and teaching kids about gun responsibilities from a young age, the point is irrelevant. The Second Amendment doesn't cover stupid parents; it covers a right that cannot be taken away from an individual.
I do, however, agree with Michael about one point. Justice Scalia's reliance on the notion that I will call the police while holding a gun is a poor choice in his opinion. I will shoot first with both hands (as you're taught to do in firing ranges), then call the police with both hands.
Michael writes:
You may have noticed that you don’t see many good militias these days; I suspect they’re hard to get together. Blair sticks to his guns (so to speak) here, maintaining that this is still a relevant purpose. That’s fine, if silly, but it fails to account for the use of guns for other purposes. Where does hunting fit in? Or, for that matter, why should you be allowed to use a gun to defend yourself against any threat other than an “oppressive government” or an invasion? The 2nd Amendment doesn’t mention anything about any of this; you’d think Scalia would have a problem with that.
I should first point out that I don't believe that the Second Amendment exists solely for the purpose of protection from an oppressive government. While that may be its most important purpose, there are certainly others - anything from self-defense to sport hunting. The language of the Amendment doesn't even mention invasion or self-defense.
Presumably, Michael is making the ill-fated grammar-based interpretation of the Second Amendment, that suggests that the preamble of the Amendment (i.e. "A well regulated militia, being necessary to the security of a Free state,") means that it applies only to organized militias and the security of the state. George Mason law professor Nelson Lund destroyed this position in his amicus brief in Heller. One need only examine other documents from the same time period to know that writing preambles was the fad, and that those preambles are not all-inclusive.
For example, one can look at Article 3 of the Northwest Ordinance ("Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged"). I doubt many people will argue that the only reason we encourage schools in this nation is because education makes for good government and happiness, or that religion, morality, and knowledge are their only purpose. Sure, those are pretty good reasons, but they are not the only reasons.
Michael continues:
Like Blair, Scalia combines the 2nd Amendment with a common law right to self defense. In doing so, and in endorsing the dipshit view that keeping handguns in the home for self-defense is a good idea, Scalia writes (and I swear I am not making this up): "[a handgun] can be pointed at a burglar with one hand while the other hand dials the police."
The Cato Institute's amicus brief in Heller discusses the English roots of the right to bear arms, which does cover the fact that the common law right to bear arms is derived from, and must be understood with, the common law right to self-defense. The English Bill of Rights of 1689 supports it, as does Blackstone and a variety of other English sources. Whether it is a "good idea" is a separate matter. Michael falls back on tired rhetoric to argue that kids will find the gun and do harm with it. Even if you take that position and do intelligent things, like putting the gun away and teaching kids about gun responsibilities from a young age, the point is irrelevant. The Second Amendment doesn't cover stupid parents; it covers a right that cannot be taken away from an individual.
I do, however, agree with Michael about one point. Justice Scalia's reliance on the notion that I will call the police while holding a gun is a poor choice in his opinion. I will shoot first with both hands (as you're taught to do in firing ranges), then call the police with both hands.
6.27.2008
The Real Reason for Number Two
The past few days have given the blogosphere much to talk about in regards to the Supreme Court, and in due time I plan to get to the ones I care about. The one that I care the most about, Heller, is the main focus of this post.
For the past 28 hours or so, I have seen plenty of status updates from friends who are upset by the ruling, wishing that it could have been decided after some of Obama's appointments were on the Court. Completely disregarding the chickens-hatching time quandry presented there, I can't help but ask my friends where they put their copy of the Bill of Rights. In case you lost it, the words "shall not be infringed" are still there.
One columnist in northern Indiana posed this question: "If our forefathers lived in 21st century America - with its ungodly crime and murder rates, its wealth of deadly weaponry, and its attempt to interpret a document written more than two centuries ago - would they be celebrating or castigating Thursday's landmark ruling?"
I'm fairly certain the answer to that question is an obvious "celebrate, but with hesitation". Yes, they would have been quite pleased with the outcome of the case. They would have been less pleased that an originalist believed that there are some acceptable firearm regulations.
Certainly the Second Amendment refers to a militia, like the National Guard in New York, or the entire population in Indiana. Taking weapons away from a militia would be counter-productive and wonderfully ironic. The concept of a universal (all free white men) militia can be traced back to at least 12th century England. But the more vital American interpretation of the right to bear arms became abundantly clear during the years preceding the American Revolution.
The British government couldn't help but notice those pesky colonists arming their militias while talking about how much they disliked the Crown. Parliament sought to disarm their militias, despite the Declaration of Rights and the common law right to self-defense. Conveniently, they had no problem with the right to self-defense (in fact, John Adams used the defense in the Boston Massacre trials), just with colonists possessing firearms.
It was those very firearms that allowed Americans to throw off the chains of British rule. The newly formed United States owed their freedom to their firearms. So they enshrined their right to firearms in their most important document, the Constitution.
This leads me to my main point, that the real reason for the Second Amendment was not solely to arm and regulate a militia. Yes, we wanted our citizens armed in case Britain, or Canada, or Mexico, or anyone else, tried to invade (indeed, this may have been the primary reason Congress passed the Second Amendment). But the reason the States ratified the Second Amendment was because they remembered the oppression of the last all-powerful government. Their firearms were the only thing that saved them.
Yes, the main reason to support the Second Amendment is because, if and when our government becomes too oppressive, our firearms will be the only thing stopping them from crushing us. When the firearms go, so too does the rest of the Bill of Rights. The Second Amendment is the one the ensures the rest.
For the past 28 hours or so, I have seen plenty of status updates from friends who are upset by the ruling, wishing that it could have been decided after some of Obama's appointments were on the Court. Completely disregarding the chickens-hatching time quandry presented there, I can't help but ask my friends where they put their copy of the Bill of Rights. In case you lost it, the words "shall not be infringed" are still there.
One columnist in northern Indiana posed this question: "If our forefathers lived in 21st century America - with its ungodly crime and murder rates, its wealth of deadly weaponry, and its attempt to interpret a document written more than two centuries ago - would they be celebrating or castigating Thursday's landmark ruling?"
I'm fairly certain the answer to that question is an obvious "celebrate, but with hesitation". Yes, they would have been quite pleased with the outcome of the case. They would have been less pleased that an originalist believed that there are some acceptable firearm regulations.
Certainly the Second Amendment refers to a militia, like the National Guard in New York, or the entire population in Indiana. Taking weapons away from a militia would be counter-productive and wonderfully ironic. The concept of a universal (all free white men) militia can be traced back to at least 12th century England. But the more vital American interpretation of the right to bear arms became abundantly clear during the years preceding the American Revolution.
The British government couldn't help but notice those pesky colonists arming their militias while talking about how much they disliked the Crown. Parliament sought to disarm their militias, despite the Declaration of Rights and the common law right to self-defense. Conveniently, they had no problem with the right to self-defense (in fact, John Adams used the defense in the Boston Massacre trials), just with colonists possessing firearms.
It was those very firearms that allowed Americans to throw off the chains of British rule. The newly formed United States owed their freedom to their firearms. So they enshrined their right to firearms in their most important document, the Constitution.
This leads me to my main point, that the real reason for the Second Amendment was not solely to arm and regulate a militia. Yes, we wanted our citizens armed in case Britain, or Canada, or Mexico, or anyone else, tried to invade (indeed, this may have been the primary reason Congress passed the Second Amendment). But the reason the States ratified the Second Amendment was because they remembered the oppression of the last all-powerful government. Their firearms were the only thing that saved them.
Yes, the main reason to support the Second Amendment is because, if and when our government becomes too oppressive, our firearms will be the only thing stopping them from crushing us. When the firearms go, so too does the rest of the Bill of Rights. The Second Amendment is the one the ensures the rest.
6.12.2008
Freedom to Spank your Brats
On Tuesday, the Indiana Supreme Court ruled in Willis v. State that parents have the legal right to discipline their children physically, even if it leaves marks or bruises. In the case, the defendant was a mother of a son who had a history of lying and stealing. The boy stole some of his mother's clothes and gave them away at school. As a punishment, the mother struck him five to seven times with a belt. The school nurse saw the bruises, the son told the nurse from where they came, and the nurse called the police, who charged the mother with battery, a D felony.
Corporal punishment is sometimes acceptable. The Model Penal Code says so. The Second Restatement of Torts says so. Blackstone says so. Heck, the last four thousand years of human history says so.
It is a sad state of affairs that any time a parent tries to punish a child, the state thinks it should come to the child's aid. How long has this been going on? When did we become a nation of wimps? The sad truth is that American kids feel entitled to do whatever they want, and they have been too eager to complain to authorities when they get a spanking. Is it any wonder that, as the Fort Wayne Journal Gazette reports, Indiana is 6th in the nation for juveniles locked up? When parents don't punish appropriately, the law will eventually have to.
I don't mean to suggest that child abuse is acceptable. I have seen many CHINS cases this summer, and there are some parents that really are doing it wrong. And punishment that leads to permanent or severe injuries should be, and is still, illegal. But I am glad to see that Indiana is taking a step back in the proper direction of letting parents punish their children as they see fit.
Corporal punishment is sometimes acceptable. The Model Penal Code says so. The Second Restatement of Torts says so. Blackstone says so. Heck, the last four thousand years of human history says so.
It is a sad state of affairs that any time a parent tries to punish a child, the state thinks it should come to the child's aid. How long has this been going on? When did we become a nation of wimps? The sad truth is that American kids feel entitled to do whatever they want, and they have been too eager to complain to authorities when they get a spanking. Is it any wonder that, as the Fort Wayne Journal Gazette reports, Indiana is 6th in the nation for juveniles locked up? When parents don't punish appropriately, the law will eventually have to.
I don't mean to suggest that child abuse is acceptable. I have seen many CHINS cases this summer, and there are some parents that really are doing it wrong. And punishment that leads to permanent or severe injuries should be, and is still, illegal. But I am glad to see that Indiana is taking a step back in the proper direction of letting parents punish their children as they see fit.
5.18.2008
In re Marriage Cases
A friend asked me today what I thought about the result in the recent California Supreme Court decision overturning the same-sex marriage ban in that state.
I must admit that I'm somewhat torn. On one hand, I don't like courts stepping in to overturn the will of the electorate. Prop 22 passed, and that seems to suggest that at least half of Californians didn't want same-sex marriage recognized by the state. However, the legislature twice passed bills legalizing same-sex marriage that were vetoed by the governor (who, incidentally, said that if they wanted gay marriage, then they would have to take it to the state Supreme Court). So "the will of the people" here seems a bit cloudy.
On the other hand, as any long-time reader of this blog could tell you, I am a pretty big supporter of gay rights, and I do personally believe that if government recognizes marriage at all, it should do so for any type of couple (not that I believe that government should be in the business of recognizing marriages). To me, it seems like most arguments against same-sex marriage are based on religion, which makes me squeamish in government. In fact, very few counterarguments that I have heard when debating this topic end up relying on anything other than morality.
I don't feel like beating this to death right now, mostly because I have made my position very clear in the past, and because the rest of the blogosphere seems to be discussing it just fine without me. For a particularly interesting set of discussions, try looking at the Volokh Conspiracy's stream of posts. So, to answer my friend's question, I agree with the general outcome of the case (giving the right to marry to gays) but disagree with the method (in court, rather than democratically).
I must admit that I'm somewhat torn. On one hand, I don't like courts stepping in to overturn the will of the electorate. Prop 22 passed, and that seems to suggest that at least half of Californians didn't want same-sex marriage recognized by the state. However, the legislature twice passed bills legalizing same-sex marriage that were vetoed by the governor (who, incidentally, said that if they wanted gay marriage, then they would have to take it to the state Supreme Court). So "the will of the people" here seems a bit cloudy.
On the other hand, as any long-time reader of this blog could tell you, I am a pretty big supporter of gay rights, and I do personally believe that if government recognizes marriage at all, it should do so for any type of couple (not that I believe that government should be in the business of recognizing marriages). To me, it seems like most arguments against same-sex marriage are based on religion, which makes me squeamish in government. In fact, very few counterarguments that I have heard when debating this topic end up relying on anything other than morality.
I don't feel like beating this to death right now, mostly because I have made my position very clear in the past, and because the rest of the blogosphere seems to be discussing it just fine without me. For a particularly interesting set of discussions, try looking at the Volokh Conspiracy's stream of posts. So, to answer my friend's question, I agree with the general outcome of the case (giving the right to marry to gays) but disagree with the method (in court, rather than democratically).
A Quick Catch-Up
I recently realized that it has been a month since I last posted, and that makes me seem at the very least forgetful, and possibly even negligent in my duties as a blogger. However, I had to make it through a final LRW assignment, several difficult finals, a job search, planning next semester's courses, and a basic maintenance of sanity. In the end, blogging seemed like the least of my worries. I'll try to catch you all up to date with where I am with regard to these various tasks.
My final exams were certainly more difficult than those in the Fall, despite that I have done this process twice before. I think it was the subject matter rather than the procedure that made them more difficult. This semester I has coursework in Property and Constitutional Law rather than Torts and Ethics, in addition to substantially different material in LRW, Contracts, and Civil Procedure. I really enjoy the topics of Property and ConLaw, and I feel like I'm fairly knowledgeable in those arenas, but I tend to do what some consider foolish: I try to learn and understand the law rather than learn for the exam. This may harm my scores in the end, but at least I can feel like I know something, and can discuss it in ordinary conversation (when non-lawyers are willing to listen or make the mistake of asking me my opinion on something). In the end, I think the finals went well. Probably no A*s, but good nonetheless.
I did find and accept a job for this summer, though it is unpaying, which meant more loans. I will be working for a Circuit Court judge in southern Indiana. I think for the purposes of this blog my exact court and position will be confidential, but I expect to have interesting work to post about when I can find the time (the School requires these touchy-feely essays about what I'm doing, which will probably consume my spare time). The downside is that there is a considerable commute, and gas prices are hovering at $4. The upside is that I get to work inside one of the beautiful old courthouses of Indiana.
I have a full plate in the Fall. In addition to participating in Moot Court, I will be taking six courses for fifteen credit hours. Included in that reading-laden schedule are Federal Criminal Law, Criminal Procedure I, Constitutional Law II, Evidence, Secured Transactions, and Appellate Advocacy. I am used to taking exorbitant numbers of credit per semester, but not in law school. If I disappear completely in the Fall, you'll know why.
I spent this weekend in Louisville, Kentucky, for the 11th Annual National Firearms Law Seminar, hosted by the NRA Foundation. It was a worthwhile experience to learn about law from various professors and practitioners. Some of the topics included discussions about Heller, federal firearms laws, civil rights and guns, and an enjoyable keynote speech by Lt. Col. Oliver North about the Rules of Engagement. Afterwards, we spent some time at the Expo Center and I experienced my first NRA exhibition. We also drove over the Sherman Minton Bridge, mostly to get good luck in the Moot Court named after him at IU, as well as to celebrate the only Hoosier to ever sit on the Supreme Court.
This August I will be attending the ABA Annual Meeting in New York. Any of my readers that will also be in New York can feel free to drop me a line if they'd like to chat or go out. After this weekend, I think I can find interesting things to do just about anywhere.
My final exams were certainly more difficult than those in the Fall, despite that I have done this process twice before. I think it was the subject matter rather than the procedure that made them more difficult. This semester I has coursework in Property and Constitutional Law rather than Torts and Ethics, in addition to substantially different material in LRW, Contracts, and Civil Procedure. I really enjoy the topics of Property and ConLaw, and I feel like I'm fairly knowledgeable in those arenas, but I tend to do what some consider foolish: I try to learn and understand the law rather than learn for the exam. This may harm my scores in the end, but at least I can feel like I know something, and can discuss it in ordinary conversation (when non-lawyers are willing to listen or make the mistake of asking me my opinion on something). In the end, I think the finals went well. Probably no A*s, but good nonetheless.
I did find and accept a job for this summer, though it is unpaying, which meant more loans. I will be working for a Circuit Court judge in southern Indiana. I think for the purposes of this blog my exact court and position will be confidential, but I expect to have interesting work to post about when I can find the time (the School requires these touchy-feely essays about what I'm doing, which will probably consume my spare time). The downside is that there is a considerable commute, and gas prices are hovering at $4. The upside is that I get to work inside one of the beautiful old courthouses of Indiana.
I have a full plate in the Fall. In addition to participating in Moot Court, I will be taking six courses for fifteen credit hours. Included in that reading-laden schedule are Federal Criminal Law, Criminal Procedure I, Constitutional Law II, Evidence, Secured Transactions, and Appellate Advocacy. I am used to taking exorbitant numbers of credit per semester, but not in law school. If I disappear completely in the Fall, you'll know why.
I spent this weekend in Louisville, Kentucky, for the 11th Annual National Firearms Law Seminar, hosted by the NRA Foundation. It was a worthwhile experience to learn about law from various professors and practitioners. Some of the topics included discussions about Heller, federal firearms laws, civil rights and guns, and an enjoyable keynote speech by Lt. Col. Oliver North about the Rules of Engagement. Afterwards, we spent some time at the Expo Center and I experienced my first NRA exhibition. We also drove over the Sherman Minton Bridge, mostly to get good luck in the Moot Court named after him at IU, as well as to celebrate the only Hoosier to ever sit on the Supreme Court.
This August I will be attending the ABA Annual Meeting in New York. Any of my readers that will also be in New York can feel free to drop me a line if they'd like to chat or go out. After this weekend, I think I can find interesting things to do just about anywhere.
3.29.2008
IU Law Tuition... this better be worth it
Well, it was bound to happen. We got an e-mail from the dean alerting us that tuition would be going up a bit this year, despite the $25 million gift that we recieved from Lilly. More money for professors, in turn leaving us with more money for scholarships. But scholarships for next year's class, not for me. So I don't care.
I hear that last year the tuition for out-of-staters (60% of our population) went up dramatically, and many were angry. Well, now it's my turn. My in-state tuition is going up 12%, while the out-of-staters get a mere 8.5%. Granted, my tuition is still only half as much as their tuition, but still. 12%! I want to work in government, and these student loans are soon going to make doing so rather difficult.
On the plus side, our dean basically guaranteed us that the tuition increase will be used to improve our rankings drastically in the next two years. I suppose that's good, since IU-Indy moved up twenty spots this year. And Notre Dame went up 6. If we don't move up soon then it'll start getting much harder to compete to get native Hoosier law students.
And yes, I'm aware that rankings are a thing to be shunned. Too bad lawyers don't think so.
I hear that last year the tuition for out-of-staters (60% of our population) went up dramatically, and many were angry. Well, now it's my turn. My in-state tuition is going up 12%, while the out-of-staters get a mere 8.5%. Granted, my tuition is still only half as much as their tuition, but still. 12%! I want to work in government, and these student loans are soon going to make doing so rather difficult.
On the plus side, our dean basically guaranteed us that the tuition increase will be used to improve our rankings drastically in the next two years. I suppose that's good, since IU-Indy moved up twenty spots this year. And Notre Dame went up 6. If we don't move up soon then it'll start getting much harder to compete to get native Hoosier law students.
And yes, I'm aware that rankings are a thing to be shunned. Too bad lawyers don't think so.
Oral Argument: Great Fun, or the Greatest Fun?
It's that time of the year in 1L land, where we get to do enjoyable things in LRW. Not that I didn't enjoy bluebooking and learning research methodology (insert sarcastic eye-roll), but I much prefer doing, you know, lawyerly things. Unlike some of my comrades, I quite enjoyed my experience with oral arguments. It was the first time we actually got to go head-to-head against our classmates and test our legal acumen, even if it was just for 10 minutes in a summary judgment hearing.
Apparently I wasn't the only one who thought I did a reasonable job at the podium. On my official notecard, I had six phrases, each beginning with the word "good" and none with any bad words. Which is good, because I didn't think I did well at all. Among my earned accolades was "good presence at the lectern" and "good analogy." The analogy in question was one that I thought up in the shower the night before. I think the RedBull I drank before the argument made it stick.
I do have this to say about the whole process: it sounds like it was better before. Last year, they brought in outside judges and we would have had to argue in front of a panel of learned scholars. We also would have had to write an appellate brief at some point. I don't know if we exhausted our judge rolodex, but arguing in front of our professor and opposing counsel doesn't have the same fear factor. I'm sure the LRW staff had something in mind. It just seems like the way things were was better than the way things are.
Apparently I wasn't the only one who thought I did a reasonable job at the podium. On my official notecard, I had six phrases, each beginning with the word "good" and none with any bad words. Which is good, because I didn't think I did well at all. Among my earned accolades was "good presence at the lectern" and "good analogy." The analogy in question was one that I thought up in the shower the night before. I think the RedBull I drank before the argument made it stick.
I do have this to say about the whole process: it sounds like it was better before. Last year, they brought in outside judges and we would have had to argue in front of a panel of learned scholars. We also would have had to write an appellate brief at some point. I don't know if we exhausted our judge rolodex, but arguing in front of our professor and opposing counsel doesn't have the same fear factor. I'm sure the LRW staff had something in mind. It just seems like the way things were was better than the way things are.
3.13.2008
Two Tidbits from the News
I know it's been a while since I posted, mostly because of Spring Break and a variety of other scheduling conflicts. But two tidbits from the news really caught my eye and I think that they are worth mentioning here.
Today's Indianapolis Star reports that Governor Daniels has used his first veto of this session, something he has done only seven times in office. I must say, he saved it for a good one. The bill: HEA 1210. The premise of the bill: allow a loophole for individuals who do not pass the teacher's licensing exam to still become teachers in Indiana. Easily one of the dumbest bills passed by the General Assembly this session.
Now, as anyone who has been reading this blog for a long time can tell you, I am no fan of public education. But if you're going to have public education, then it would best for your teachers to have some sort of standard. This bill would have allowed persons who fail the test to become teachers by showing that they had a good GPA in their education coursework and have good references from those under whom they student taught. If that's not lowering the standards, I don't know what is.
The bill was authored by Rep. Vernon Smith (D-Gary), who complained after the veto that the governor hadn't met with him to discuss the bill. I don't blame the governor. He has better things to do than argue about pointless bills. I can understand why Rep. Smith wants the bill: Gary schools are a dismal failure, and they can't get teachers to teach there. He probably thinks that lowering the standards of licensing will mean more teachers in Gary. Well, Mr. Smith, even if your plan worked, it wouldn't improve the education quality in Gary. You need qualified, talented, devoted teachers to come to Gary, not the people who couldn't pass the test. A better plan would be to pay teachers better.
In other news, a student at UVa-Wisa was expelled because of prose he composed in a creative writing class. His story involved a student who dreams of killing his professor and commits suicide. Okay, maybe I could see some threat here, but you need to consider the context. Nevermind that this is a creative writing class, and creativity doesn't always fit nicely into a pre-approved box. The student is an Iraqi war veteran with no history of mental illness and medals for good conduct. In fact, the school couldn't put together a case, except for the fact that the student had a few guns in his car. Okay, again, maybe I could see some threat here, but consider that he had a right to carry them, as he had permits for each of them. And he's a war veteran.
To make matters worse, the school involuntarily committed him for psychiatric testing, something that automatically revokes his ability to hold the gun permits. Well, that's one way to get around the law.
Eugene Volokh points out that "expulsion would still strike [him] an excessive remedy; nor would protecting the university from the possibility that he would turn into a Virginia-Tech-style mass killer justify this: If he really does plan to commit mass murder, he could do that as an expelled student pretty much as easily as an enrolled student (since the school doubtless doesn't have guards at each possible entrance to keep him off campus)."
I would love to use a case like this to get the issue of gun bans in schools brought before the Supreme Court. To me, it is ridiculous that a Constitutional right stops being a right when you cross an invisible barrier onto a campus. Only problem is that this case is not the one I'd bring up. Justice Scalia's son was the professor of that creative writing class. Scalia would have to take a breather on this case, which would leave us 4-4, which is unacceptable. On the plus side, such a lawsuit would encourage the legislators in Indianapolis to pass a bill allowing certain persons to carry firearms on campus.
Today's Indianapolis Star reports that Governor Daniels has used his first veto of this session, something he has done only seven times in office. I must say, he saved it for a good one. The bill: HEA 1210. The premise of the bill: allow a loophole for individuals who do not pass the teacher's licensing exam to still become teachers in Indiana. Easily one of the dumbest bills passed by the General Assembly this session.
Now, as anyone who has been reading this blog for a long time can tell you, I am no fan of public education. But if you're going to have public education, then it would best for your teachers to have some sort of standard. This bill would have allowed persons who fail the test to become teachers by showing that they had a good GPA in their education coursework and have good references from those under whom they student taught. If that's not lowering the standards, I don't know what is.
The bill was authored by Rep. Vernon Smith (D-Gary), who complained after the veto that the governor hadn't met with him to discuss the bill. I don't blame the governor. He has better things to do than argue about pointless bills. I can understand why Rep. Smith wants the bill: Gary schools are a dismal failure, and they can't get teachers to teach there. He probably thinks that lowering the standards of licensing will mean more teachers in Gary. Well, Mr. Smith, even if your plan worked, it wouldn't improve the education quality in Gary. You need qualified, talented, devoted teachers to come to Gary, not the people who couldn't pass the test. A better plan would be to pay teachers better.
In other news, a student at UVa-Wisa was expelled because of prose he composed in a creative writing class. His story involved a student who dreams of killing his professor and commits suicide. Okay, maybe I could see some threat here, but you need to consider the context. Nevermind that this is a creative writing class, and creativity doesn't always fit nicely into a pre-approved box. The student is an Iraqi war veteran with no history of mental illness and medals for good conduct. In fact, the school couldn't put together a case, except for the fact that the student had a few guns in his car. Okay, again, maybe I could see some threat here, but consider that he had a right to carry them, as he had permits for each of them. And he's a war veteran.
To make matters worse, the school involuntarily committed him for psychiatric testing, something that automatically revokes his ability to hold the gun permits. Well, that's one way to get around the law.
Eugene Volokh points out that "expulsion would still strike [him] an excessive remedy; nor would protecting the university from the possibility that he would turn into a Virginia-Tech-style mass killer justify this: If he really does plan to commit mass murder, he could do that as an expelled student pretty much as easily as an enrolled student (since the school doubtless doesn't have guards at each possible entrance to keep him off campus)."
I would love to use a case like this to get the issue of gun bans in schools brought before the Supreme Court. To me, it is ridiculous that a Constitutional right stops being a right when you cross an invisible barrier onto a campus. Only problem is that this case is not the one I'd bring up. Justice Scalia's son was the professor of that creative writing class. Scalia would have to take a breather on this case, which would leave us 4-4, which is unacceptable. On the plus side, such a lawsuit would encourage the legislators in Indianapolis to pass a bill allowing certain persons to carry firearms on campus.
2.27.2008
The Petri Dish
The Law School has become a petri dish. Dozens of students have been out sick (including this one). Classes have shrunk to half their size. Some professors have been calling in sick. I had forgotten how volatile biological systems can be when you pack 700 of us into one building during flu season.
To make matters worse, briefs are due for LRW tomorrow. From what I can tell, many people are struggling to keep working while the viruses keep working. As for me, I'm nearly done. But only with the help of a lot of tea.
To make matters worse, briefs are due for LRW tomorrow. From what I can tell, many people are struggling to keep working while the viruses keep working. As for me, I'm nearly done. But only with the help of a lot of tea.
2.22.2008
"Oeniphile Rejoice" Part III
Some of my luckier colleagues at IU Law today did not have their usual Constitutional Law class. That is because their professor, Mr. Patrick Baude, had oral aruments in Chicago before the Seventh Circuit regarding the Indiana wine shipping case, Baude v. Heath. I wrote about the decision before Judge Tinder back in November.
The 16 filed briefs are available here, while an MP3 of the oral argument itself can be heard here. From what I can tell, arguments went well... for the state. Judges Posner and Easterbrook did not seem to like what Professor Tanford included in his brief (chastising him like they were LRW professors). Nor did they like the way he argued, nor the way he listened. Hopefully the court finds for the oeniphiles so that we Hoosiers can be one step closer to having the freedom to buy what we want through the internet and the mail, but I'm not holding my breath for that holding.
I would think it would be beneficial for his class to read some of this stuff. Always good to hear someone you know arguing before a circuit court, even if it is a bit brutal.
The 16 filed briefs are available here, while an MP3 of the oral argument itself can be heard here. From what I can tell, arguments went well... for the state. Judges Posner and Easterbrook did not seem to like what Professor Tanford included in his brief (chastising him like they were LRW professors). Nor did they like the way he argued, nor the way he listened. Hopefully the court finds for the oeniphiles so that we Hoosiers can be one step closer to having the freedom to buy what we want through the internet and the mail, but I'm not holding my breath for that holding.
I would think it would be beneficial for his class to read some of this stuff. Always good to hear someone you know arguing before a circuit court, even if it is a bit brutal.
2.15.2008
TOS Reporting Live - IU Pres. McRobbie
In an exciting first for the Oratorical Snob, I am reporting live from the IU Law Moot Court Room, where IU president Michael McRobbie will be holding a press conference regarding the Hoosier Hoops Scandal. Why they chose the law school's moot court room (which can hold a mere 200 or so) rather than anywhere else on campus is unclear. Rumor has it that the idea is to show the university as fair and interested in finding truth rather than supporting the scandalous aspects of the story.
The crowd is mostly reporters, whose trucks and satellite feeds block the street in front. I heard at least one unhappy local screaming from his car that he couldn't get through the street. That, or he was yelling at the school for firing Bob Knight. Inside, many of us may have agreed with that particular angry fellow.
Listening to the various reporters chattering, I have heard that some suppose that this is actually going to be the firing of Coach Sampson. I suspect that it is a bit premature to predict that. The NCAA has been known to get facts wrong in the past, and certainly there is the issue of intent. Either way, IU wrote a very good contract for Coach Sampson that permits them to fire him for just cause. Perhaps they learned their lesson from the litigation following the Bob Knight removal.
The president's posse has just entered the room and sat down in front, alerting us that we have five minutes until the press conference begins. I think that I qualify as press, since this is a live blog feed, right? Additionally, there is a live video stream that I will link to as soon as it is available.
The press conference begins:
President McRobbie won't take questions that involve speculation or hypothetical situations. Obviously he has never been in the law school before.
Athletic Director Greenspan will have seven days to investigate the allegations and determine their truth. Fairness and due process have been mentioned, outside of my ConLaw class. Perhaps he has been in the law school. The Indianapolis firm of Ice Miller and a Business Economics and Public Policy professor will assist him.
McRobbie has not spoken to Sampson since the allegations came out. There have been conversations about resignation, but not with McRobbie. An intern found the original data that lead to the allegations. Sampson's contract does not allow suspension with pay. The only mention of suspension in the document is "without pay". McRobbie does not have the entirety of the contract memorized, but he can quote parts of it fairly well.
After the press conference, I gave some interviews to the press (as one of only a few students in attendance - perhaps they chose the law school because it is so far away from everyone else on campus). If video of those interviews becomes available on the internet, I might link to it. Otherwise, this live report is finished.
The crowd is mostly reporters, whose trucks and satellite feeds block the street in front. I heard at least one unhappy local screaming from his car that he couldn't get through the street. That, or he was yelling at the school for firing Bob Knight. Inside, many of us may have agreed with that particular angry fellow.
Listening to the various reporters chattering, I have heard that some suppose that this is actually going to be the firing of Coach Sampson. I suspect that it is a bit premature to predict that. The NCAA has been known to get facts wrong in the past, and certainly there is the issue of intent. Either way, IU wrote a very good contract for Coach Sampson that permits them to fire him for just cause. Perhaps they learned their lesson from the litigation following the Bob Knight removal.
The president's posse has just entered the room and sat down in front, alerting us that we have five minutes until the press conference begins. I think that I qualify as press, since this is a live blog feed, right? Additionally, there is a live video stream that I will link to as soon as it is available.
The press conference begins:
President McRobbie won't take questions that involve speculation or hypothetical situations. Obviously he has never been in the law school before.
Athletic Director Greenspan will have seven days to investigate the allegations and determine their truth. Fairness and due process have been mentioned, outside of my ConLaw class. Perhaps he has been in the law school. The Indianapolis firm of Ice Miller and a Business Economics and Public Policy professor will assist him.
McRobbie has not spoken to Sampson since the allegations came out. There have been conversations about resignation, but not with McRobbie. An intern found the original data that lead to the allegations. Sampson's contract does not allow suspension with pay. The only mention of suspension in the document is "without pay". McRobbie does not have the entirety of the contract memorized, but he can quote parts of it fairly well.
After the press conference, I gave some interviews to the press (as one of only a few students in attendance - perhaps they chose the law school because it is so far away from everyone else on campus). If video of those interviews becomes available on the internet, I might link to it. Otherwise, this live report is finished.
2008 General Assembly Series: SB65 and Needless Tragedy
Tragedy has befallen the nation yet again. Less than a year after the shootings at Virginia Tech, we have seen four school shootings in less than week. February 8, two students gunned down at Louisiana Tech. February 11, a high schooler shot another during gym class in Tennessee, and a junior high schooler in California is brain dead. Now, tonight, we get word that five people were killed at Northern Illinois University. This one hits particularly close to home, since I'm from northern Illinois, and at one time my brother had considered attending NIU.
I have no idea what is causing the increase in school shootings. Blame it on whomever you wish: parents, the media, the schools, rap music, or any other scapegoat. The fact is that more students are finding recourse through violence in schools. The fact that these shooting sprees tend to end in suicide does not mean that they are intended as suicide missions; I would tend to believe that at least some of these shooters realized what they had done and concluded that the only way out was through suicide.
How fortunate that the Indiana General Assembly happens to have bills before it to help prevent such shootings in Indiana. While nothing can make us 100% safe (even in the law school), I think that the laws the GA might pass would help disincentivize such shootings.
Senate Bill 0065, the so-called Handguns In Public bill is essential, and must be passed quickly, especially with this last week in the forefront of our minds. SB65 would add language to Title 35 that would read, in part:
"A person who possesses a valid license to carry a handgun issued under IC 35-47-2 may not be prohibited from possessing a handgun on land or in buildings and other structures owned or leased by:
(1) the state or a political subdivision of the state; or
(2) a nonpublic elementary school, nonpublic secondary school, or nonpublic postsecondary educational institution."
With the obvious exceptions of airports, prisons, and courthouses, under SB65 no card-carrying Hoosier could be prohibited from having a concealed weapon in a public place. This makes tremendous sense, but let me start by discussing the opposing side.
Opponents are concerned that the bill would mean more violence in schools. After all, if schools have more weapons, only more violence can occur, right? Wrong. First of all, to get a CCW, one must be over 18. That means high school kids (those who would be most likely to go off because of a hormonal imbalance or because a girl turned him down for a dance) would not have access to them, but the teachers (i.e. the people whose responsibility it is to guard the young people) would.
Further, since no person who has been convicted of a felony can get a CCW, the riskiest college-age students would also be prevented. On the other hand, responsible students who took the time to fill out the paper work and get registered would be able to keep weapons, in case, say, a student starts shooting in the middle of a geology lecture. Additionally, professors and administrators could keep a weapon for such times.
In other words, the good guys get armed while the bad guys either don't, or they resort to the same means they do now - that is, they carry them illegally.
On the other hand, a potential gunman would have second thoughts if he knew that any person he pulled a gun on was also armed. Certainly a gunman appearing in front of a class of 165 students to start shooting would fear, knowing that 150 guns were aimed back.
But even if we assume the possibility of deterrence was insufficient to prevent the shooting, the duration of the shooting would be dramatically shorter. The shooting at Virginia Tech went on for 9 minutes, and more than thirty people lose their lives. Imagine after minute 1, or even minute 2, how many lives could have been saved if even one person had possessed a firearm to stop the shooter.
Sadly, a similar bill (SB356) did not pass its third reading, due to a lack of a constitutional majority.
Any reasonable person knows that there is little we can do to deter a potential school-shooter. If he has his mind made up, then he's going to do it, and saying "No Guns on Campus" will mean nothing. But while we can't prevent such shootings easily, we can at least provide some protection for the potential victims of these tragedies. The Senate needs to vote Yes on SB65, and they need to do it now, before any Hoosier blood is tragically spilled.
I have no idea what is causing the increase in school shootings. Blame it on whomever you wish: parents, the media, the schools, rap music, or any other scapegoat. The fact is that more students are finding recourse through violence in schools. The fact that these shooting sprees tend to end in suicide does not mean that they are intended as suicide missions; I would tend to believe that at least some of these shooters realized what they had done and concluded that the only way out was through suicide.
How fortunate that the Indiana General Assembly happens to have bills before it to help prevent such shootings in Indiana. While nothing can make us 100% safe (even in the law school), I think that the laws the GA might pass would help disincentivize such shootings.
Senate Bill 0065, the so-called Handguns In Public bill is essential, and must be passed quickly, especially with this last week in the forefront of our minds. SB65 would add language to Title 35 that would read, in part:
"A person who possesses a valid license to carry a handgun issued under IC 35-47-2 may not be prohibited from possessing a handgun on land or in buildings and other structures owned or leased by:
(1) the state or a political subdivision of the state; or
(2) a nonpublic elementary school, nonpublic secondary school, or nonpublic postsecondary educational institution."
With the obvious exceptions of airports, prisons, and courthouses, under SB65 no card-carrying Hoosier could be prohibited from having a concealed weapon in a public place. This makes tremendous sense, but let me start by discussing the opposing side.
Opponents are concerned that the bill would mean more violence in schools. After all, if schools have more weapons, only more violence can occur, right? Wrong. First of all, to get a CCW, one must be over 18. That means high school kids (those who would be most likely to go off because of a hormonal imbalance or because a girl turned him down for a dance) would not have access to them, but the teachers (i.e. the people whose responsibility it is to guard the young people) would.
Further, since no person who has been convicted of a felony can get a CCW, the riskiest college-age students would also be prevented. On the other hand, responsible students who took the time to fill out the paper work and get registered would be able to keep weapons, in case, say, a student starts shooting in the middle of a geology lecture. Additionally, professors and administrators could keep a weapon for such times.
In other words, the good guys get armed while the bad guys either don't, or they resort to the same means they do now - that is, they carry them illegally.
On the other hand, a potential gunman would have second thoughts if he knew that any person he pulled a gun on was also armed. Certainly a gunman appearing in front of a class of 165 students to start shooting would fear, knowing that 150 guns were aimed back.
But even if we assume the possibility of deterrence was insufficient to prevent the shooting, the duration of the shooting would be dramatically shorter. The shooting at Virginia Tech went on for 9 minutes, and more than thirty people lose their lives. Imagine after minute 1, or even minute 2, how many lives could have been saved if even one person had possessed a firearm to stop the shooter.
Sadly, a similar bill (SB356) did not pass its third reading, due to a lack of a constitutional majority.
Any reasonable person knows that there is little we can do to deter a potential school-shooter. If he has his mind made up, then he's going to do it, and saying "No Guns on Campus" will mean nothing. But while we can't prevent such shootings easily, we can at least provide some protection for the potential victims of these tragedies. The Senate needs to vote Yes on SB65, and they need to do it now, before any Hoosier blood is tragically spilled.
2.01.2008
My Hero and His Fleet
In Constitutional Law, we happen to be discussing the separation of powers. Our discussions in class me reminded me of a story about my favorite President, and as a "TGIF"-type posting, I thought I'd share.
Theodore Roosevelt has got to be my favorite U.S. President. Sure, there are some other good ones, but I really like him. He was, of course, our youngest president, and probably the one with the most exciting life. He seems to be the type of politician that we today lack: a true statesman, but one who gets what he wants, and was quite handy with a gun.
In December 1907, President Roosevelt made the ultimate display of not only American power, but presidential power. It was a rough time. Japan was flaunting its victory over the Russians in the Russo-Japanese War, and the U.S. fleet in the Pacific was still quite small. President Roosevelt assembled a fleet of 16 battleships and their supporting vessels, painted brilliant white, and proposed to send them around the world a la Magellan.
Congress disagreed. They saw it as wasteful, and potentially dangerous. The fleet couldn't pass through Panama, so they would have to travel around South America, then to victorious Japan.
But President Roosevelt was a stubborn man, and, as a trained lawyer, knew that the President had the power to move the military, not Congress. Congress refused to pay for the trip, a correct use of their powers. Roosevelt told Congress that he didn't need their money, and at Congress's dismay, he sent the fleet on their journey on December 16, 1907.
When the fleet reached Japan, Roosevelt went to Congress. He told them that the navy was out of money. Congress was left with the option to fund the return journey or strand the fleet at sea. If they ever wanted the fleet back, they would have to pay for it to circumnavigate the globe. President Roosevelt had used the beauty of the Constitution to smack Congress in the face.
That is why he is my hero.
Theodore Roosevelt has got to be my favorite U.S. President. Sure, there are some other good ones, but I really like him. He was, of course, our youngest president, and probably the one with the most exciting life. He seems to be the type of politician that we today lack: a true statesman, but one who gets what he wants, and was quite handy with a gun.
In December 1907, President Roosevelt made the ultimate display of not only American power, but presidential power. It was a rough time. Japan was flaunting its victory over the Russians in the Russo-Japanese War, and the U.S. fleet in the Pacific was still quite small. President Roosevelt assembled a fleet of 16 battleships and their supporting vessels, painted brilliant white, and proposed to send them around the world a la Magellan.
Congress disagreed. They saw it as wasteful, and potentially dangerous. The fleet couldn't pass through Panama, so they would have to travel around South America, then to victorious Japan.
But President Roosevelt was a stubborn man, and, as a trained lawyer, knew that the President had the power to move the military, not Congress. Congress refused to pay for the trip, a correct use of their powers. Roosevelt told Congress that he didn't need their money, and at Congress's dismay, he sent the fleet on their journey on December 16, 1907.
When the fleet reached Japan, Roosevelt went to Congress. He told them that the navy was out of money. Congress was left with the option to fund the return journey or strand the fleet at sea. If they ever wanted the fleet back, they would have to pay for it to circumnavigate the globe. President Roosevelt had used the beauty of the Constitution to smack Congress in the face.
That is why he is my hero.
1.31.2008
2008 General Assembly Series: SJR7 and the Waste of Tax Dollars
Anyone that has read my post from last February regarding SJR7, the so-called "Indiana Gay Marriage Ban", knows how I feel about the bill. I think it is a broad overreaching of the state government into the private lives of individuals and an attempt to codify bigotry in our most important document. Those opposed to the thought of same-sex marriage can be comfortable that Indiana law still prevents the marriage or civil union of two persons of the same gender. A constitutional amendment is just one more way to ensure that future generations can't become less bigoted than the current one.
I applauded last year when the bill died in the House. But the bill has again passed the Senate, with a vote of 39-9 (practically the same as last year). The bill is stalled in the House, and it looks ready to die at the hands of House Democrats again. That is, unless Rep. Eric Turner (R-Marion) has his way, and manages to have it attached to the same bill capping property taxes. That just shows the shady dealings that go on in politics: attaching a frivolous and hateful bill to one for which the people are desperately crying out.
The arguments for this ban are same arguments we heard for decades regarding interracial marriage. Anti-miscegenation laws were in place since the beginnings of this nation, often appearing in state Constitutions. Loving v. Virginia, 388 U.S. 1 (1967), was the final nail in the coffin of those racist laws. There, the Supreme Court reversed a trial judge's decision that a black woman and white man could not enter the state without being subject to arrest. The trial judge showed his true colors when he stated, "Almighty God created the races white, black, yellow, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Id. at 3. In other words, interracial marriage was "unnatural." This argument sounds familiar.
It took 103 years, but South Carolina finally removed the prohibition on "marriage of a white person with a Negro or mulatto or a person who shall have one-eighth or more of Negro blood" from its Constitution in 1998. How sad that such bigotry was written into a Constitution for so long. It casts a shadow of shame on the people of the state. Now Indiana wants to do the same.
If the state wants to ban gay marriage in statutes, and that is the will of the people, so be it. Not all of us may agree, but such is the way of politics and legislation. As I stated in my previous post, amending the Constitution really is not something we should do lightly. And besides, haven't we got more important bill to pass right now?
I applauded last year when the bill died in the House. But the bill has again passed the Senate, with a vote of 39-9 (practically the same as last year). The bill is stalled in the House, and it looks ready to die at the hands of House Democrats again. That is, unless Rep. Eric Turner (R-Marion) has his way, and manages to have it attached to the same bill capping property taxes. That just shows the shady dealings that go on in politics: attaching a frivolous and hateful bill to one for which the people are desperately crying out.
The arguments for this ban are same arguments we heard for decades regarding interracial marriage. Anti-miscegenation laws were in place since the beginnings of this nation, often appearing in state Constitutions. Loving v. Virginia, 388 U.S. 1 (1967), was the final nail in the coffin of those racist laws. There, the Supreme Court reversed a trial judge's decision that a black woman and white man could not enter the state without being subject to arrest. The trial judge showed his true colors when he stated, "Almighty God created the races white, black, yellow, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Id. at 3. In other words, interracial marriage was "unnatural." This argument sounds familiar.
It took 103 years, but South Carolina finally removed the prohibition on "marriage of a white person with a Negro or mulatto or a person who shall have one-eighth or more of Negro blood" from its Constitution in 1998. How sad that such bigotry was written into a Constitution for so long. It casts a shadow of shame on the people of the state. Now Indiana wants to do the same.
If the state wants to ban gay marriage in statutes, and that is the will of the people, so be it. Not all of us may agree, but such is the way of politics and legislation. As I stated in my previous post, amending the Constitution really is not something we should do lightly. And besides, haven't we got more important bill to pass right now?
1.28.2008
Ought the law feel?
In property, we began discussing property rights in the human body, and had a bit of a debate about whether a person should be able to sell their own body parts. I was one of the few on the side of the right to do so. I should note that I believe there are two restrictions on that right: 1) that no person under 18 should have parts sold (either by their own choice or by that of their parents); and 2) that no person should be able to sell an essential body part while still alive. The first restriction prevents the possibility (horrible though it may be) that impoverished persons would have children solely to "part them out". The second restriction prevents one person giving their life for another. All well-and-good to sell blood, or bone marrow, or a kidney. Not okay to sell your heart or stomach.*
While some of the opponents relied on reasonable (though in my opinion, wrong) arguments as to why we should not be allowed to sell body parts, others did not. The concept that such a system would unfairly punish the poor is reasonable. The concept that it could bring about a black market in human organs is reasonable (though, as I pointed out, there is already a $1 billion-a-year black market in organs harvested illegally). The concept that it would make the recipients feel guilt is not reasonable.
That concept was brought up by a good friend of mine. A family member received a heart transplant some time ago, and as a result, she has deep feelings about the right to sell body parts. She feels that the law should prevent selling organs because the recipients would feel guilt about having the life of one individual sacrificed for another (i.e. the recipient of a heart would know that a person died to give him that heart). Let's forget my second qualifier on the right for the moment (that is, that no living person could donate a heart while still alive).
Should the law deal with emotions, sympathy, or empathy? Does such thinking prevent real legal analysis? I tend to believe that emotions have no place in the law. No matter what case you look at, there is an emotional appeal. Every murderer has a mother. Every house has a history. Even suing a cigarette company could become emotional because you are lower the stock price of retired persons who have savings in safe companies like Altria. But these are irrelevant. They only cloud the true legal questions.
The virtue of the law is that it is neutral, that it relies on logic and reason. It does not waver in the winds of poll data. While the emotions may help to ferret out good reasons in an argument, I am of the opinion that they should not, in and of themselves, be arguments.
I would like to hear other opinions on the matter. Should emotions have a place in the law? If you believe so, how can you get around the problems that such emotions place in the debate?
*I will save the greater debate on property rights in the body for another time. Trust me, I'll be back with data points and everything else you could want in such a discussion. But that is beside the point of this post.
While some of the opponents relied on reasonable (though in my opinion, wrong) arguments as to why we should not be allowed to sell body parts, others did not. The concept that such a system would unfairly punish the poor is reasonable. The concept that it could bring about a black market in human organs is reasonable (though, as I pointed out, there is already a $1 billion-a-year black market in organs harvested illegally). The concept that it would make the recipients feel guilt is not reasonable.
That concept was brought up by a good friend of mine. A family member received a heart transplant some time ago, and as a result, she has deep feelings about the right to sell body parts. She feels that the law should prevent selling organs because the recipients would feel guilt about having the life of one individual sacrificed for another (i.e. the recipient of a heart would know that a person died to give him that heart). Let's forget my second qualifier on the right for the moment (that is, that no living person could donate a heart while still alive).
Should the law deal with emotions, sympathy, or empathy? Does such thinking prevent real legal analysis? I tend to believe that emotions have no place in the law. No matter what case you look at, there is an emotional appeal. Every murderer has a mother. Every house has a history. Even suing a cigarette company could become emotional because you are lower the stock price of retired persons who have savings in safe companies like Altria. But these are irrelevant. They only cloud the true legal questions.
The virtue of the law is that it is neutral, that it relies on logic and reason. It does not waver in the winds of poll data. While the emotions may help to ferret out good reasons in an argument, I am of the opinion that they should not, in and of themselves, be arguments.
I would like to hear other opinions on the matter. Should emotions have a place in the law? If you believe so, how can you get around the problems that such emotions place in the debate?
*I will save the greater debate on property rights in the body for another time. Trust me, I'll be back with data points and everything else you could want in such a discussion. But that is beside the point of this post.
1.16.2008
Is Amending the Constitution a Good Idea?
Last night I sat down to watch the State of the State address by Governor Daniels here in Indiana. I found myself pleased with the speech overall. He gave relatively few specific plans and instead acted as the cheerleader-in-chief (promoting Indiana's 8.5 minute transaction time at the BMV, or our declining unemployment rate surrounded by Midwest states who find theirs rising). However, he had to cover the property tax mess, and the way he did it got me thinking.
In his four step plan for solving the "property tax crisis" here in Indiana, he included an instruction that the general assembly should offer "permanent protection against the return of unaffordable taxes, though a permanent, constitutional cap of one percent of a home's value[.]" While I won't pass judgment on whether such a plan is good or not, it brings up the notion of amending the constitution. Ought the constitution be amended in such a way?
Black's calls a constitution "the fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties." Should a constitution then state the design of the General Assembly? Yes. Should a constitution state that the government can tax? Presumably. Should a constitution guarantee the right of citizens to bear arms? Yes. But should a constitution put a specific percentage cap on taxes, or force the Congress and the President to agree on a balanced budget (unless 3/5 of Congress vote to overspend), or to limit pardons between October 1 and January 21 of any presidential election year? Perhaps not.
Such things may be wonderful laws. I have no problem with a law saying that we ought to balance the budget. I have nothing against a law limiting taxes. But such things make for better laws than they do constitutional amendments. I understand that the idea of putting it into a constitution is to make it "permanent". I understand that putting things in a constitution automatically makes them "constitutional" and thus impossible to overturn in the courts. But does such technical verbiage about the operation of government belong in a document ensuring us fundamental rights and powers?
Chief Justice John Marshall didn't seem to think so. In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), Marshall discusses whether all the powers of the government ought to be found in the Constitution. "A constitution," he writes, "to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. [W]e must never forget that it is a constitution we are expounding."
I couldn't agree more with Marshall. Our goal ought to be to have a constitution that the average citizen can read and understand. To weigh it down with tax brackets, definitions of marriage, requirements of "moments of silence", or any other frivolous notion that could pass in a generation is to dilute the meaning of a constitution as a general document putting forth general principles upon which we can build interpretations and legal reasoning.
So, with all due respect to our great Governor and the various representatives, both in Indianapolis and in Washington, D.C.: keep your hands off my Constitution.
In his four step plan for solving the "property tax crisis" here in Indiana, he included an instruction that the general assembly should offer "permanent protection against the return of unaffordable taxes, though a permanent, constitutional cap of one percent of a home's value[.]" While I won't pass judgment on whether such a plan is good or not, it brings up the notion of amending the constitution. Ought the constitution be amended in such a way?
Black's calls a constitution "the fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties." Should a constitution then state the design of the General Assembly? Yes. Should a constitution state that the government can tax? Presumably. Should a constitution guarantee the right of citizens to bear arms? Yes. But should a constitution put a specific percentage cap on taxes, or force the Congress and the President to agree on a balanced budget (unless 3/5 of Congress vote to overspend), or to limit pardons between October 1 and January 21 of any presidential election year? Perhaps not.
Such things may be wonderful laws. I have no problem with a law saying that we ought to balance the budget. I have nothing against a law limiting taxes. But such things make for better laws than they do constitutional amendments. I understand that the idea of putting it into a constitution is to make it "permanent". I understand that putting things in a constitution automatically makes them "constitutional" and thus impossible to overturn in the courts. But does such technical verbiage about the operation of government belong in a document ensuring us fundamental rights and powers?
Chief Justice John Marshall didn't seem to think so. In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), Marshall discusses whether all the powers of the government ought to be found in the Constitution. "A constitution," he writes, "to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. [W]e must never forget that it is a constitution we are expounding."
I couldn't agree more with Marshall. Our goal ought to be to have a constitution that the average citizen can read and understand. To weigh it down with tax brackets, definitions of marriage, requirements of "moments of silence", or any other frivolous notion that could pass in a generation is to dilute the meaning of a constitution as a general document putting forth general principles upon which we can build interpretations and legal reasoning.
So, with all due respect to our great Governor and the various representatives, both in Indianapolis and in Washington, D.C.: keep your hands off my Constitution.
1.15.2008
2008 General Assembly Series: SB47 and the Request for Death
It is my favorite time of the year. Not because I like snow or the cold, or because I enjoy the post-Christmas atmosphere. No, this is my favorite time of year because our fine legislators here in Indiana have the opportunity to meet for their short annual session. I'm not entirely sure why I enjoy the General Assembly so much, but I think it has everything to do with my interest in politics and law, my inspired admiration of federalism, and the sheer history in those two chambers in Indianapolis.
As part of this year's General Assembly Series, I wanted to take a closer look at some of the proposed bills that our elected representatives have put forth as being the will of the people. This series will run over the next week or two, and will give me a chance to inform the public about some of the laws being debated.
One of the more interesting proposed bills this session is Senate Bill 0047, authored by Senator Waterman (R, Dist. 39) and now before the Committee on the Judiciary for its first reading. The bill would allow certain incarcerated persons who have been sentenced to: (1) at least 200 years imprisonment; (2) an executed sentence of life imprisonment; or (3) life imprisonment without parole; to request the imposition of a death sentence. Individuals requesting the sentence would be interviewed by a psychologist or psychiatrist to determine whether the person understands the proceedings, is mentally ill or has mental retardation (as defined in IC 35-36-9-2), and whether the person has attempted suicide, among other things. Should they have a change of heart, the incarcerated person has the authority suspend execution and reinstate the original sentence.
While evaluating this bill, we ought to consider three major points: the cost comparison for the taxpayers of the two options, the Constitutionality of the bill, and whether this is a fair punishment in the eyes of the victims.
Many studies suggest that the actual cost of imposing the death penalty is higher than putting a person in prison for life. The Indiana Criminal Justice Institute notes that the major reason that is true is that "[in] Indiana[,] capital cases are more extensively litigated than other murder cases… When the ultimate penalty is at stake, litigation moves into a 'super due process' mode that goes above and beyond the due process invoked by a potential term of years." Goodpaster, Cost Comparison between a Death Penalty Case and a Case Where the Charge and Conviction is Life without Parole, The Application of Indiana's Capital Sentencing Law: Findings of the Indiana Criminal Law Study Commission, 2002, at 122A. The report states that the death penalty costs exceed "life without parole" costs by 34% to 37%. Id. But for cases covered under the new law, the cost of the original trial would be the same as any other non-capital offense.
Admittedly, the cost of the court hearing and psychological testing would drive up the cost of the death penalty. However, the individual would not use prison (and thus taxpayer) resources for the remainder of their life. The report puts the estimated time on death row at 10.5 years, and the average stay for LWOP at 30-40 years. Id at 122E. Further, the report puts the cost of health care for aging prisoners at over $6000 per year. Id at 122D. Assuming that the person elected to have the death penalty shortly after their sentencing, and that the psychological screening took only a short while, the incarcerated person could potentially have received death within one to two years. Compared to thirty years, the taxpayers are saving quite a bit of money. Even if the individual waits five years (and all possible appeals), the turnaround under this bill would be so quick that there would not be a 10.5 year wait for death. Purely economically, incarcerated persons electing the death penalty could save Hoosier taxpayers thousands, while freeing needed space in our already overcrowded prisons.
Of course the major concern ought to be the constitutionality of the bill, both in the Indiana and U.S. Constitutions. After all, a jury of his or her peers found only that the incarcerated ought to be in prison for life, not that he or she ought to be executed. To punish a person more than a jury saw fit might be considered cruel or unusual. I sought comparable laws in other states, but it seems that Indiana is the first to propose one. As such, no such law has been tested by any court for its constitutionality. Some states do allow death row inmates to choose their method of execution, and this has been found to be constitutional. Looking purely at the language of the Constitution, it would seem that the voluntary election of the death penalty can hardly be considered cruel, since the incarcerated is putting the punishment onto himself. Can one be cruel to oneself? Yes, but people with such tendencies would likely be ruled out through the psychological exam. I would tend to believe that such a law is constitutional, but without precedent to guide me, it is frankly a shot in the dark.
Perhaps the concern that some taxpayers and believers in punishment will have is the concern that choosing the death penalty is a cop out. I tend to agree with this view. It is much easier for a person to elect death than to sit in a cell thinking about their crimes, their solitude. Just as we tend to call suicide "the coward's way out," allowing a needle into your arm (should our honorable Supreme Court hold needles still uncruel and usual) could be called cowardly. Passing such a law could be seen as weak on crime.
On the other hand, one of the primary concerns with the death penalty is that it kills innocent people. Yes, without a doubt innocent people have been sentenced to death. However, I cannot believe that an innocent person would elect to choose death, and thus the law would have 100% accuracy. An innocent person clings to hope, believing that they will one day be vindicated and set free. Even those who lose hope couldn't pass the psychological exam, because "I've lost hope" hardly qualifies as a reason to elect death.
I certainly am not suggesting that I like or dislike the law. I think it is inventive, and certainly worth looking at. I simply hope that the Judicial Committee, and eventually the General Assembly, will consider these points as they debate the purpose, wording, and efficacy of this bill.
As part of this year's General Assembly Series, I wanted to take a closer look at some of the proposed bills that our elected representatives have put forth as being the will of the people. This series will run over the next week or two, and will give me a chance to inform the public about some of the laws being debated.
One of the more interesting proposed bills this session is Senate Bill 0047, authored by Senator Waterman (R, Dist. 39) and now before the Committee on the Judiciary for its first reading. The bill would allow certain incarcerated persons who have been sentenced to: (1) at least 200 years imprisonment; (2) an executed sentence of life imprisonment; or (3) life imprisonment without parole; to request the imposition of a death sentence. Individuals requesting the sentence would be interviewed by a psychologist or psychiatrist to determine whether the person understands the proceedings, is mentally ill or has mental retardation (as defined in IC 35-36-9-2), and whether the person has attempted suicide, among other things. Should they have a change of heart, the incarcerated person has the authority suspend execution and reinstate the original sentence.
While evaluating this bill, we ought to consider three major points: the cost comparison for the taxpayers of the two options, the Constitutionality of the bill, and whether this is a fair punishment in the eyes of the victims.
Many studies suggest that the actual cost of imposing the death penalty is higher than putting a person in prison for life. The Indiana Criminal Justice Institute notes that the major reason that is true is that "[in] Indiana[,] capital cases are more extensively litigated than other murder cases… When the ultimate penalty is at stake, litigation moves into a 'super due process' mode that goes above and beyond the due process invoked by a potential term of years." Goodpaster, Cost Comparison between a Death Penalty Case and a Case Where the Charge and Conviction is Life without Parole, The Application of Indiana's Capital Sentencing Law: Findings of the Indiana Criminal Law Study Commission, 2002, at 122A. The report states that the death penalty costs exceed "life without parole" costs by 34% to 37%. Id. But for cases covered under the new law, the cost of the original trial would be the same as any other non-capital offense.
Admittedly, the cost of the court hearing and psychological testing would drive up the cost of the death penalty. However, the individual would not use prison (and thus taxpayer) resources for the remainder of their life. The report puts the estimated time on death row at 10.5 years, and the average stay for LWOP at 30-40 years. Id at 122E. Further, the report puts the cost of health care for aging prisoners at over $6000 per year. Id at 122D. Assuming that the person elected to have the death penalty shortly after their sentencing, and that the psychological screening took only a short while, the incarcerated person could potentially have received death within one to two years. Compared to thirty years, the taxpayers are saving quite a bit of money. Even if the individual waits five years (and all possible appeals), the turnaround under this bill would be so quick that there would not be a 10.5 year wait for death. Purely economically, incarcerated persons electing the death penalty could save Hoosier taxpayers thousands, while freeing needed space in our already overcrowded prisons.
Of course the major concern ought to be the constitutionality of the bill, both in the Indiana and U.S. Constitutions. After all, a jury of his or her peers found only that the incarcerated ought to be in prison for life, not that he or she ought to be executed. To punish a person more than a jury saw fit might be considered cruel or unusual. I sought comparable laws in other states, but it seems that Indiana is the first to propose one. As such, no such law has been tested by any court for its constitutionality. Some states do allow death row inmates to choose their method of execution, and this has been found to be constitutional. Looking purely at the language of the Constitution, it would seem that the voluntary election of the death penalty can hardly be considered cruel, since the incarcerated is putting the punishment onto himself. Can one be cruel to oneself? Yes, but people with such tendencies would likely be ruled out through the psychological exam. I would tend to believe that such a law is constitutional, but without precedent to guide me, it is frankly a shot in the dark.
Perhaps the concern that some taxpayers and believers in punishment will have is the concern that choosing the death penalty is a cop out. I tend to agree with this view. It is much easier for a person to elect death than to sit in a cell thinking about their crimes, their solitude. Just as we tend to call suicide "the coward's way out," allowing a needle into your arm (should our honorable Supreme Court hold needles still uncruel and usual) could be called cowardly. Passing such a law could be seen as weak on crime.
On the other hand, one of the primary concerns with the death penalty is that it kills innocent people. Yes, without a doubt innocent people have been sentenced to death. However, I cannot believe that an innocent person would elect to choose death, and thus the law would have 100% accuracy. An innocent person clings to hope, believing that they will one day be vindicated and set free. Even those who lose hope couldn't pass the psychological exam, because "I've lost hope" hardly qualifies as a reason to elect death.
I certainly am not suggesting that I like or dislike the law. I think it is inventive, and certainly worth looking at. I simply hope that the Judicial Committee, and eventually the General Assembly, will consider these points as they debate the purpose, wording, and efficacy of this bill.
1.10.2008
Back at It
After a long delay for Christmas break, and a warm vacation in Arizona, I am back to post. I would have posted over break, but, to be honest, I was enjoying relaxation and working on getting out résumés for this summer. I spread my net wide, and hopefully my undergraduate record will help me get a few interviews. Several federal agencies received my information, as did a few firms in Indianapolis. I am hoping that I can find a paying job, but I won't be holding my breath.
I am particularly excited by my schedule this semester. Not that there was anything wrong with my schedule last semester, but rather than Ethics and Torts, I get libertarian lovables Property and Constitutional Law. Further, we get into advocacy in Legal Research and Writing, which I think is my strength. I found it difficult to write completely neutrally last semester, and the opportunity to practice oral advocacy will lend itself well to whatever is in my future.
I am keeping up with the election coverage, but I won't get political here other than to say that the candidate I support is gathering far more votes than the "mainstream media" believed he would. Hopefully he will make a splash in Michigan, where he was running ads in Arabic to the Muslim communities there. I was disappointed to see Bill Richardson drop out of the race, since I believed he was the Democrat most qualified to be President, and a man who developed far more innovative solutions to problems (boycotting the Beijing Olympics to put pressure on China to get involved in Africa, for example). He should have gotten more votes, but apparently he wasn't liberal enough to win in the primaries. He also didn't say the words "change" or "hope" enough on stage. C'est la vie.
I am particularly excited by my schedule this semester. Not that there was anything wrong with my schedule last semester, but rather than Ethics and Torts, I get libertarian lovables Property and Constitutional Law. Further, we get into advocacy in Legal Research and Writing, which I think is my strength. I found it difficult to write completely neutrally last semester, and the opportunity to practice oral advocacy will lend itself well to whatever is in my future.
I am keeping up with the election coverage, but I won't get political here other than to say that the candidate I support is gathering far more votes than the "mainstream media" believed he would. Hopefully he will make a splash in Michigan, where he was running ads in Arabic to the Muslim communities there. I was disappointed to see Bill Richardson drop out of the race, since I believed he was the Democrat most qualified to be President, and a man who developed far more innovative solutions to problems (boycotting the Beijing Olympics to put pressure on China to get involved in Africa, for example). He should have gotten more votes, but apparently he wasn't liberal enough to win in the primaries. He also didn't say the words "change" or "hope" enough on stage. C'est la vie.
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