Check out this awesome high resolution scan of a letter da Vinci wrote to the Duke of Milan, trying to sell himself as an inventor of war machines. H/T Gizmodo
Leo writes:
I can do in painting whatever may be done, as well as any other, be he who he may.
If you write that about your legal skills, your career office may have some comments 🙂
I just finished reading through Petitioner’s Reply Brief in McDonald v. City of Chicago. I think Gura made a compelling argument to support incorporation under either due process or privileges or immunities, though as Gura consistently repeats, privileges or immunities is the better way. I also think he highlighted many of the weaknesses in Chicago’s brief, and highlights that the respondent’s arguments are mostly policy, and not legal bases.
One important thing to note about the NRA’s brief is they fail to adequately brief the due process argument. They don’t focus on Palko, Benton, Duncan, and Glucksberg. Most surprisingly, they do not even cite to Judge O’Scannlain’s opinion in Nordyke v. King, a case that incorporated the 2nd amendment through the due process clause. Very surprising for a group that thinks Gura won’t argue due process.
At Volokh, Orin Kerr focused on one passage, and considered it an unusual argument
NRA’s novel theory, at 40, that Cruikshank did not bar the Second Amendment’s application to the States, contradicts over a century of understanding. See, e.g., Heller, 128 S. Ct. at 2813 (“States, we said, were free to restrict or protect the right under their police powers”). Erroneous precedent should be overruled, not tortured further to achieve politically desirable results.
Kerr remarked:
I understand that there is a lot of bad blood between the Petitioners and the NRA. And I have no opinion of the NRA’s argument, not having read its brief. Still, it’s rather unusual to see a passage in a legal brief asking a court not to accept an argument in its favor.
From the outset, Gura has maintained that incorporation of the 2nd Amendment, while maintaining the Slaughterhouse-Cruickshank-Presser line of precedents, makes the right to arms very week. In other words, even if the right is incorporated, but Cruickshank et al are still good law, in all likelihood, the Chicago gun ban would stand. What good is incorporation if the most draconian ban in the country can remain?
Once you understand this point, contrary to Kerr’s remark, Gura’s strategy doesn’t seem that strange. In fact, in major constitutional law cases, the “Mend it, don’t end it” approach isn’t always the best strategy.
In Jeff Toobin’s book, The Nine (starting at around p. 30), he recounts the litigation strategy of Kathryn Kolbert in Planned Parenthood v. Casey. Many at Planned Parenthood wanted Kolbert to take a cautious litigation strategy, and ask the Court merely to find that the Pennsylvania law fits within the Roe framework, and should be upheld. In other words, mend it, don’t end it. Kolbert refused this tact, and basically forced the Court into a corner where they would either strike down the regulations, or overturn Roe. She did not seek a middle ground.
In PP’s cert petition, the question presented was:
Has the Supreme Court overruled Roe v. Wade, holding that a woman’s right to choose abortion is a fundamental right protected by the United States Constitution.
Here is how Toobin described Kolbert’s Supreme Court strategy:
Her strategy was the same as the one in her brief — go for broke, all or nothing, overturn the Pennsylvania regulations in their entirety or overturn Roe v. Wade.
Here is a segment from Kolbert’s arguments.
The Commonwealth argues that this Court may overrule Akron and Thornburgh and abandon strict scrutiny and nevertheless preserve Roe’s central meaning.
While politically expedient, this view is certainly not based upon this Court’s privacy jurisprudence.
Now, I do not think Gura is taking nearly as aggressive a stance as Kolbert did. Gura concedes that the 2nd amendment could be incorporated through the due process clause. However, the privileges or immunities clause would be a more historically accurate approach. What Gura is aiming to do is to make sure that the right as incorporated is as strong as possible, and provides meaningful protection to gun owners. If Slaughterhouse et al is upheld, gun owners may not be much better off than they are today.
On a personal note, Pandora’s Box was cited on p. 26 of the brief. And in the same citation as a Justice Jackson concurring opinion. I like Justice Jackson. Cool.
Wolf Blitzer conducted an interview with Justice O’Connor, and asked her about Citizens United. The Justice said she is worried about the potential that this opinion will open up the flood gates, and especially with respect to judicial elections. Needless to say, she stands by her opinion in McConnel v. FEC.
From the Buffalo News (H/T Sentencing Blog), Drunk driver gets into more trouble after posting Facebook photo:
Ashley M. Sullivan is in Niagara County Jail, and Facebook may be to blame as much as the car crash that killed a Niagara Falls man.
Sullivan, 17, of Linden Avenue, North Tonawanda, was sentenced Wednesday afternoon to six months in the County Jail and five years’ probation for crashing her car while drunk and killing her boyfriend May 30 on Sweeney Street in North Tonawanda. Â She pleaded guilty Nov. 18 to criminally negligent homicide and misdemeanor driving while intoxicated.
The Buffalo News has learned that Sullivan went to Florida a month after the crash and posted a photo on her Facebook Web page captioned, “Drunk in Florida.”
“I’m troubled by your conduct since the crash,” County Judge Matthew J. Murphy III told Sullivan, “and that’s the reason for the jail sentence.” Murphy also refused to grant Sullivan youthful offender status for the same reason.  “I don’t believe the defendant has earned it,” the judge said.
Professor Berman remarks:
Nevertheless, the impact here of a social-media message on Facebook adds an extra layer to this common sentencing issue. Not only does the sentencing judge here learn that the underage defendant was drinking heavily again not long after having just killed her boyfriend via drinking and driving, but he also discovers that she does not have the good sense not to brag to friends about her persistent misbehavior
As people put more and more embarrassing, and in this case, incriminating, information on the web, the justice system undoubtedly will continue to take notice. Interesting.
Welcome to the eight installment of Predictions of the 10th Justice, brought to you by FantasySCOTUS.net. The league has over 3,600 members, who have made predictions on all cases currently pending before the Supreme Court.
How many SCOTUS watchers does it take to accurately predict the outcome of a case? How large of a crowd do we need before the crowd becomes “wise”? The wisdom of the crowds considers the accuracy of the collective opinion of a group, which in many cases may be more reliable than the opinion of experts. In this column, the 10th Justice tests the theory of the wisdom of the crowds. Based on the accuracy of our predictions in Citizens United v. FEC, the landmark campaign finance reform case, we will develop levels of confidence to determine how reliable our predictions are for four of the most significant cases this term.
There are two major components of interval calculation: sample size and confidence level. Sample size refers to the number of members who predict a certain cases. A confidence interval indicates the certainty that the margin of error is correct. Confidence intervals, commonly known as margins of error, indicate the proportion of members, out of all members, who predicted a specific outcome of a case. One can never be 100% sure that a margin of error is correct. For example, if 56% of our members predicts that the Supreme Court will reverse the lower court, and the margin of error is 3%, the actual proportion of members who vote to reverse will be somewhere between 53% and 59%.
If one is 90% sure that a margin of error is correct, that indicates there is a 10% chance that the margin of error wrong. Similarly, if one is 95% sure that a margin of error is correct, that indicates there is a 5% chance that the margin of error is wrong. Finally, if one is 99% sure that a margin of error is correct, that indicates there is a 1% chance that the margin of error is wrong. In order to establish a higher confidence level, one must increase the margin of error. While this makes the results more reliable, as the confidence level is higher, the increased range yields less accuracy. Analyzing the sample size and confidence level allows the 10th Justice to make predictions, with varying degrees of certainty, about the outcomes of cases.
To determine confidence intervals, we analyzed the results from Citizens United. We considered sample sizes of 908, 286 (our results in mid-November), and random samples of 100, 50, and 25 members.
Given a sample size of 908 members, we are 90% certain that the true value lies within 2.65 percentage points of 62%. When we say 62% will vote for reversal, we are 90% certain that the actual prediction value for reversal lies between 59.35% and 64.65%. When we say 62% will vote for reversal, we are 95% certain that the actual prediction value for reversal lies between 62-3.16 and 62+3.16. When we say 62% will vote for reversal, we are 99% certain that the actual prediction value for reversal lies between 62-4.15% and 62.415%.
Once the range drops below 50%, we cannot definitively state that our members are more for or against reversal. Given a sample size of 50 predictions, when we say 62% will vote for reversal, we are 90% certain that the actual prediction value for reversal lies between 48.55% and 75.45%. The lower boundary drops below 50%, and thus below our critical value, and we can no longer reliably say with any certainty which way our members will vote. The columns highlighted in red indicate values that drop below the critical level.
Based on these confidence intervals, we can state, with accuracy how reliable are predictions are for four major cases this term. We test:
