Jan 22, 2014

Kmiec Interviewed on his run for Congress in 2014 and VP for Hillary in 2016

This just keeps gets more real:

 In an interview conducted on Thursday, Kmiec said he is running because the Holy Father — Pope Francis — is a source of inspiration.

A devout catholic, Kmiec said he is running as an independent because it’s an honest label for someone who has supported democrats and republicans in the past. Kmiec served as a constitutional lawyer under the Reagan administration and supported President Obama in the 2008 U.S. presidential election.

Kmiec said that if he were to win the election, one of the first things he would “roll his sleeves up for” would be a push for a sensible immigration law and a vastly improved education initiative that would address “the needs of modern job responsibilities” and the imbalance in wealth distribution.

Kmiec said that if he wins the election, he would hope to be considered as an option to become the vice-president in Hillary Clinton’s 2016 presidential campaign.

“I see it as an outside possibility … The idea of running for Congress is to put myself in a position where I’m able to both lead in the interim while she’s running for president and be ready for greater responsibility should that be God’s blessing and his wisdom,” he said.

Apparently the full transcript will be released on Jan. 23.

See my previous post here.

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Jan 22, 2014

Incentives for Umpires To Correct Call With Video Replay

The Times had an interesting piece discussing baseball’s expanded use of instant replays. Now, managers will be able to ask for one video replay per game. If the manager wins the challenge, then he gets a second challenge, but no more than two can be used per game by a manager.

I wonder what the ability of manager-requested challenges will have on an umpire’s willingness to reverse his own calls before it goes to the video. In the olden days, a manager would run out to the umpire and plead his case. Nine times out of ten, the umpire wouldn’t change anything, and may even throw out the manager. But, once in a blue moon, perhaps after conferring with the other umpires, the call would be reversed.

But now that the manager can affirmatively request a challenge, it would seem to create an incentive for the manager to not reverse his own calls. In other words, let someone else fix the mess. Tony La Russa’s comments reflect this.

Classic manager/umpire confrontations, feared to have been legislated out of the game in the August announcement, will remain. But with the ability to use technology, La Russa said, they should be more civilized.

“If the manager comes out to argue and he has a challenge left, the umpire could say, ‘O.K., I’m listening to you and I’m not going to change my call — are you going to challenge?’ ” La Russa said. “That’s how the process would start.”

Or, is a manager more willing to reverse a call on his own if he knows that the manager can throw the challenge flag, and someone else will reverse him? Are umpires (like judges) more likely to second-guess themselves if there is a higher chance of their being reversed?

I hope someone can run numbers on this, comparing manager-umpire confrontations before and after the expansion of replay.

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Jan 22, 2014

Justices Scalia, Ginsburg, and Breyer’s High School Yearbook are on Ebay. And pics of other Justices too

Someone on ebay has listed the high school yearbooks for Justices Scalia, Ginsburg, and Breyer! Here is the Scalia listing. (Don’t bother bidding because I already bought it).


Of course, young Nino was in the Thomas More Society.

scalia2   And he makes a “good point”!


The Ginsburg listing is here. Bidding starts at $150!


A young Ruth Bader was a member of Arista (honor society in New York), Treasurer of the Go-Getters, in the School Orchestra, a Twirler (I would like to see that!), Secretary to English Department Chairman, Feature Editor of the Term Newspaper, and the stupid watermark blocks the last thing. And in case you were wondering, here is 1584 East 9th Street in Brooklyn, RBG’s home. View Larger Map I do not see a plaque there! The Breyer listing is here.

1960’s school annual featuring photographs and text about students and teachers, activities, sports, humor and shots of the school and surrounding, and local advertisement, and including then graduating senior and future Supreme Court Justice Stephen Breyer who appears in as President of the Scholarship Federation, Debate Award Winner, School Newspaper, Big Brothers, Dance Committee, Ticket Sellers, Carnival, and Math Club.

Here are some of the photos in the listing. Look at that punum! breyer1   It’s hard to make out what it says next to the photo. I think it says :

 President of the Scholarship Federation, Debate Award Winner, School Newspaper, Big Brothers, Dance Committee, Ticket Sellers, Carnival, and Math Club.

breyer2   And look at this pic! Breyer was a champion debater. This must be where he earned the art of the never-ending hypothetical question   breyer3   Here is the cover: breyer6 These pics are included, but I can’t quite make out where SGB is. I think he is in the upper, left-hand corner playing tennis, bt I’m not positive. breyer5 breyer4 I also found Justice Kennedy’s Harvard Law School yearbook. Not quite as cool though. AMK Also for a flashback, I previously collected old school photos of several of the other Justices.


Chief Justice Roberts



Justice Scalia


Justice Kennedy


Justice Thomas



Justice Ginsburg



Justice Alito



Justice Sotomayor



Justice Kagan



Justice Souter

H/T Dan Rice

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Jan 22, 2014

India Supreme Court: Delay In Execution Requires Commutation

This is an interesting approach to the law–becuase it took too long to execute prisoners, the Supreme Court in Indian decided to commute the sentences to life in prison!

India’s Supreme Court commuted the sentences of 15 death row convicts on Tuesday, ruling that “inordinate and inexplicable” delays in their execution were grounds to change their sentences to life imprisonment.

Human rights lawyers hailed a decision which puts strict new conditions on carrying out the death penalty, and could dramatically reduce its use.

“Unexplained delay is a grounds for commuting death penalty to life sentence,” read a ruling from a three-judge panel headed by Chief Justice Palanisamy Sathasivam.

The court clarified that delays needed to be “inordinate” and “inexplicable”, but it also said that mental illness such as schizophrenia and the use of solitary confinement could make a convict eligible for a reduced sentence.

“No death row convict can be kept in solitary confinement and it is unconstitutional,” it said.

I know absolutely nothing about Indian jurisprudence, but this could have a perverse consequence–the government moves to execute the prisoners quicker so as not to wait too long so the sentences would be commuted.

Did Justice Brennan not think of this?

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Jan 22, 2014

Unprecedented Talks in Tempe and Tucson on Thursday

On Thursday at 12:15, I will be giving a book talk at the Arizona State University College of Law in room 118.

Later that day, at 6:00, I will be giving a book talk at the University of Arizona College of Law in room 160.

If you are in the area, please come and visit.

In case you were wondering, Thursday it will be a 73 degrees in the valley of the sun. (Though next week I’m going to Minnesota where it is teetering at 3 degrees right now).

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Jan 22, 2014

Prop1 Class 3: Law and Judges

Today will be a slightly different class. We will cover Pierson v. Post, and the Case of the Spelunceuan Explorers. The focus of our class will be law and judges. Though the less will begin around the rule of capture, I hope the discussion eludes that narrow focus, and that we have a foxy talk.

The lecture notes are here, and the live chat is here.

Pierson v. Post

A few historical notes notes.

First, about the judges. Daniel Tompkins wrote the majority. He went on to serve as Governor of New York and Vice President for James Monroe. And where did Tompkins die? In a neighborhood of Staten Island, now known as Tompkinsville.


The author of the dissent was Brokholst Livingston, who later received a recess appointment to the Supreme Court from President Jefferson. He would be confirmed in 1807, and serve until his death in 1823. Livingston served a a secretary to future Chief Justice of the United States John Jay in Spain from 1779-1782.


Here is a map showing Post’s home in 1800 (courtesy of Professor Angela Fernandez of the University of Toronto).


Here are some drawings of fox hunts:



Here is a video about the controversy of the fox hunt in the UK:

The Case of the Speluncean Explorers

After you read “The case of the Speluncean Explorers,” please vote which Justice you agree with most. 

This is a picture of Lon Fuller, the author of the Case of the Speluncean Explorers.


A lot of authors have tried to write additional version of this article, but they are nowhere near as good as the original.  speluncean   trapped.amazon


By the way, for you musical fans, the case of Commonwealth v. Valjean is based, of course, on Victor Hugo’s Les Miserables (Les Miz as you may know it). Jean Valjean steals a loaf of bread to feed himself and his starving sister and neice. He is arrested, and spends 19 years as a “slave to the law.” The movie version of this musical was atrocious. The singing made me cringe. If you can ever see it on Broadway, you should. It is a fantastic parable of law, morality, and ethics.

Valjean and Javert sing about the crime in “Look Down” (starts at 2:29)

JAVERT: Now bring me prisoner 24601, Your time is up, And your parole’s begun, You know what that means.

VALJEAN: Yes, it means I’m free.

JAVERT: No! It means you get, Your yellow ticket-of-leave, You are a thief

VALJEAN: I stole a loaf of bread.

JAVERT: You robbed a house.

VALJEAN: I broke a window pane. My sister’s child was close to death, And we were starving.

JAVERT: You will starve again, Unless you learn the meaning of the law.

VALJEAN: I know the meaning of those 19 years, A slave . . .  of the law

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Jan 22, 2014

ConLaw Class 2- Why is the Constitution Supreme?

The lecture notes are here. The live chat is here.

Why is the Constitution Supreme?

  • Constitutional Supremacy and Interpretation (123-124).
  • Federalist No. 51 (128-129).
  • Federalist No. 78 (133-138).
  • Background of Marbury v. Madison and Judicial Review (140-143).
  • Marbury v. Madison (143-155).
  • Stuart v. Laird (155-156).
  • Judicial Supremacy and letters from Jefferson and Madison (159-161)

Today’s class will focus on these clauses of the Constitution:

Article II, Section 2: He shall have Power, by and with the Advice and Consent of the Senate . . . [to] nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United State, whose Appointments are not herein otherwise provided for, and which shall be established by Law.

Article II, Section 3: He  . . . shall Commission all the Officers of the United States

Article III, Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Article VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article VI, Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution . .

In addition, here is the Section 13 of the Judiciary Act of 1789 (one of the first acts the First Congress voted on) at issue in Marbury:

And be it further enacted, That the Supreme court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public minister, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues of fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

The Federalist Papers were a series of 85 articles written jointly by James Madison, Alexander Hamilton, and John Jay, under the pseudonym Publius, following the submission of the Constitution to the state conventions. The purpose of these papers were to raise support for ratification.


Here is a photograph of the Forrest-Marbury House in Washington, D.C.,  which was acquired by William Mabury in 1800. The house would remain in the Marbury family for the next century. It currently serves as the Embassy of Ukraine, located at 3350 M Street NW in Georgetown (not far from the Key Bridge).


There is a plaque in the front commemorating the location:


And here is the original copy of the opinion.


Thanks to Max K. for the photographs of the house.


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Jan 22, 2014

Rotunda Has Justice Blackmun’s Off-The-Record Comments About Roe v. Wade

In the Chicago Tribune (my former   prof) Ron Rotunda has a piece, titled “On deep background 41 years later.” It begins:

Type “41st anniversary of Roe v. Wade” into Google and you will get more than 54,000 hits.  Wednesday marks the date. It caused me to review the notes of a conversation a small group of us had with U.S. Supreme Court Justice Harry Blackmun and his wife about Roe. It was the summer of 1994, the 21st anniversary of Roe.

He would take no questions; he spoke from notes. His wife Dottie sat next to him, wearing a T-shirt that said, “The Supreme Question: Row vs. Wade.” Underneath it was a cartoon of a man rowing while another was wading in the water. I was surprised that she treated the topic as a joke.

Blackmun began by saying, “One usually doesn’t speak about the conference of the U.S. Supreme Court.”  However, it was important to speak to “promote understanding of the Supreme Court.”  “I decided it,” he said.

First, Ron talks about the decision to schedule Roe for arguments in 1971 when there were only 7 justices:

At the end of 1971, there were only seven justices on the court, so Chief Justice Warren E. Burger appointed a committee to select cases for argument, to avoid a 4-to-3 split.  “The screening process was poorly conducted by the screening committee, of which I was a member,” he said.  It placed Roe for argument.  “Our screening committee made serious mistakes. We had a bull by the horns.”

Second, Ron talks about Blackmun’s perceptions of the oral arguments:

He said, “The first (oral) argument was poor.  Three of the four oralists were women. Sarah Weddington (one of the lawyers arguing the case) puts on her stationery, ‘Winner of Roe v. Wade.‘  I find that peculiar.”  Blackmun’s gratuitous comments about the gender of the oral advocates and their competence came with no transition, either before or after, and no explanation why.

During the first argument, Blackmun was “disturbed” that the parties did not discuss the Hippocratic oath. “One of the woman oralists, in reaction to my question, said that it was irrelevant.”  However, some versions of the oath say doctors cannot prescribe abortion and Blackmun considered that significant.

Third, Ron recalls the votes at conference:

At the conference a few days later, the votes were tentative, according to Blackmun. He recalled that Justice Burger suggested “Someone should prepare a helpful memorandum, not a first opinion.  (Justice William) Douglas wanted the assignment, but Burger gave it to me. I don’t know why.  Maybe because of my 10-year association with Mayo (Clinic).”

Blackmun’s memorandum urged that the Supreme Court strike the law.  He also “wanted (a) new oral argument, to get some help on the Hippocratic oath.  Also, (Justices William) Rehnquist and (Lewis) Powell were now added to the court.”  Blackmun said Chief Justice Burger also wanted reargument. “I think that he thought that he might get a 5-to-4 majority to uphold the law.” Then Blackmun said, with emphasis, “It was ugly.”

Fourth, Blackmun suggested that Justice White’s dissent was due to his “wife’s influence.”

Blackmun said Justice Byron White wrote a bitter dissent, referring to “raw judicial power.”  With a strong emphasis in his voice, Blackmun quipped: “I made Byron eat those words later in other cases.”  When White announced his dissent, “White was emotional.”  Blackmun asked rhetorically: “Why was White so strong against my view?  His upbringing in modest circumstances?  Or his wife’s influence?”

Fifth, Blackmun was surprised that his opinion resulted in such controversy:

Another Blackmun disclosure: “To date, I’ve gotten almost 70,000 letters on Roe. I have read almost all of them.” He said many letters are “abusive”  and he was amazed that many people objected to his decision. “Shortly after I spoke in Cedar Rapids, Iowa, I was picketed. I was surprised.”

He objected that “academic opinion was generally adverse” to Roe as not grounded in law and said that he thought it was unconstitutional for the government to fail to fund abortions for poor people.

The Constitution gives federal judges lifetime appointments, so that they don’t feel compelled to follow public opinion in deciding cases. Blackmun, however, apparently did follow it. He was pleased that a “New York Times editorial was in favor,” but noted that letters to the editor “were divided.”

Sixth, Blackmun viewed this as a “doctor’s rights case, not a woman’s right case.”

Roe “protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice.  He spoke of the case as a doctor’s rights case, not a woman’s right case.  In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.” Note that the right was the right of the physician, whom Blackmun assumed was male.

Seventh, Blackmun closes by saying he is not that bad of a guy.

He closed by saying, “it has been exciting to be in the center of the issue so politicized by the political branches.”  He added, “I make no apologies for the scholarship or result in the opinion.”  His last words on Roe, “I’m really not too bad a guy after all.”

Update: Ron writes in with additional details of the Institute:

I got to be friendly with Harry Blackmun (he said to call him Harry) and his wife, Dottie. He wanted to give his side of the story. It was a small group. We were in Aspen.  I may have been the only one who took notes.  He knew I was taking notes. He just wanted to say some things on his mind about the case, but he wanted to questions.  He spoke and that was it.

I filed my notes away on my computer and then forgot about them for a long while.  Something made me think of the upcoming anniversary and so I tried to find out where I put the notes. (I took my notes long hand and transferred them to Word Perfect, which is what we used in the old days.)

So, I searched for the digital file on my computer. It took a bit of effort.  After moving from one computer to another and from one school to another (from the U. of Illinois to George Mason to Chapman), it took a bit of time but I found the old notes and then I wrote this piece.

Update: As Greg points out in the comments below, it was common for Justice Blackmun to identify counsel based on their race. As Tony Mauro noted in this 2005 article about Blackmun’s papers:

The other somewhat unnerving aspect of Justice Blackmun’s papers can be found in the notes he took on oral argument. In many instances he graded the advocates before him – he once gave an ACLU lawyer by the name of Ruth Bader Ginsburg a grade of C+. 54 There is nothing particularly wrong with that, but these grades were also accompanied by unusual annotations about the lawyer’s characteristics, physical and otherwise. One lawyer in a 1971 case got a D, and was described this way: “sad face, short, stupid.” 5 Another lawyer in the same case got a D+, with this annotation: “short, older, balding, licks fingers.” 56 Hispanic lawyers were labeled “H,” and lawyers who appeared to him to be Jewish got a “J.” Future Justice Ginsburg, in the 1973 argument that got her a C+, is described this way: “NYC J ACLU very precise, reads. Rutgers.” 57 She was teaching at Rutgers Law School at the time.

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Jan 22, 2014

I am Profiled in Houston Chronicle

Last week Brian Rogers, legal affairs reporter from the Chronicle interviewed me in my office about FantasySCOTUS, Unprecedented, and a whole host of issues.


Here is the intro for the profile:

It started as a lark. What odds would Las Vegas give on the next Supreme Court decision? What if you could compete with others on what the nine judges were going to decide – like players in a fantasy football league?

FantasySCOTUS, now in its fourth season and with 20,000 players online, is the brainchild of Josh Blackman, a 29-year-old professor at Houston’s South Texas College of Law.

“It’s free to sign up, it’s free to play and the prize is bragging rights,” Blackman said from his office, a showcase of technology and whimsy. Shelves of judicial bobbleheads overlook a desk with three giant computer monitors and a laptop all running different programs.

In September 2009, Blackman said he and a friend joked about what oddsmakers might say about an upcoming decision from the U.S. Supreme Court.

A few weeks later, he had his FantasySCOTUS site up and running online.

“I’ve been doing Web design since I was 13, so I could do a lot of the work myself,” Blackman said.

Overnight, he said, 1,000 people signed up.

“I didn’t think anybody but a few nerds would sign up, maybe a couple dozen,” he said.

And here is the conclusion:

To do well, he said, players must put bias aside and predict what the court will do – not what they want the court to do.

“There’s no magic formula,” said Blackman, also in the news as the author of “Unprecedented,” a book about the Affordable Care Act’s legal implications. “You have to read everything imaginable to see what a justice might be thinking and then you might get a sense of where they are, but often you’ll have no idea.”

It was amazing to see how FantasySCOTUS went viral, he said.

That popularity has allowed Blackman to create the Harlan Institute, a nonprofit dedicated to teaching high school students about the U.S. Constitution. Online tools and lesson plans are offered free to teachers, underwritten by Westlaw, a legal research service.

“It started off as a joke and it’s remarkable how far it’s come,” said Blackman, who was named this month to Forbes magazine’s 30 Under 30 for law and public policy. “This fascination with the Supreme Court has just spawned so many avenues.”

Unfortunately, the picture cut off my third monitor (and they insisted on having the same application in each screen).

Update: The profile made Page A1 below the fold, and a follow-up on page A7.





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