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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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2009

Facebook Status Update Clears Teen From Criminal Charges

November 12th, 2009

From Gizmodo, Facebook Status Update Clears Teen From Criminal Charges:

Rodney was arrested on October 18 as a suspect in two crimes. He declared himself innocent and Robert Reuland—his defense lawyer—found the key to free him: “Where’s my pancakes?”

That seemingly inconsequential Facebook status update proved crucial when the Californian company confirmed that someone wrote it from his father’s Harlem apartment computer, using Rodney’s user and password at around the time of the alleged crime: Saturday October 17, 11:49am.

So Facebook actually got this guy out of Prison. Very cool.

The most interesting thing in this case, however, is that this seems to be the first time in which social networking has been used to save the ass of someone, rather than nailing a really stupid thief. Some people believe that Facebook and other sites will become part of criminal cases across the country, as they get deeper under society’s skin. Personally, I can’t wait till we are all monitored by automagical retinal scans, and naked bald people in funky swimming pools decide who is a criminal and who is not. Can’t wait, I tell you. [Fort Greene]

People have been cleared because they were filmed on Jumbotrons, but this is pretty interesting. But what presents someone else with the Defendant’s password from forging an alibi?

Hate Crimes Act Based on 13th Am. and not Commerce Clause. Does Administration think Morrison is in Jeopardy?

November 12th, 2009

I previously blogged about the OLC’s memo justifying portions of the Hate Crimes Act on the 13th amendment, and not the 14th amendment and the the commerce clause.

As we explained in 2000, see Senate Report at 16-18, we believe Congress has authority under section 2 of the Thirteenth Amendment to punish racially motivated violence as part of a reasonable legislative effort to extinguish the relics, badges and incidents of slavery. Congress may rationally determine, as it would do in S. 909, that “eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude,” and that “slavery and involuntary servitude were enforced . . . through widespread public and private violence directed at persons because of their race.” S. 909 § 2(7); see also H.R. 1585, 110th Cong., § 1023(b)(7) (2007) (same).

Like the current 18 U.S.C. § 245, proposed section 249(a)(1) of title 18 would not be limited by its terms to violence involving racial discrimination: It would criminalize violence committed “because of the actual or perceived race, color, religion, or national origin of any person.” S. 909 explains (§ 2(8)) that “in order to eliminate, to the extent possible, the badges, incidents, and relics of slavery, it is necessary to prohibit assaults on the basis of real or perceived religions or national origins, at least to the extent such religions or national origins were regarded as races at the time of the adoption of the 13th, 14th, and 15th amendments.”

Given our conclusion that Congress possesses authority to enact this provision under the Thirteenth Amendment, we do not address whether Congress might also possess sufficient authority under the Commerce Clause and/or the Fourteenth Amendment. See United Slates v. Nelson, 277 F.3d 164, 174-75 & n.10 (2d Cir. 2002).

I commented:

“OLC then discussed Lopez and Morrison, but curiously did not discuss Raich. Very odd, especially in light of the fact that SG Kagan did not argue that the Commerce Clause justified SORNA in Comstock. See Ilya Somin’s interesting post here: Are there movements in the Obama White House to limit Congress’s Commerce Power? I hope so.”

Professor Magliocca at Concurring Opinons has an interesting comment, that seems to support my theory.

A few weeks ago the President signed the Matthew Shepard Hate Crimes Prevention Act into law.  The Office of Legal Counsel issued an opinion concluding that the Act is constitutional under Section Two of the Thirteenth Amendment, relying heavily on the Second Circuit’s analysis in United States v. Nelson, 277 F.3d 164 (2d Cir. 2002).

This could be a significant doctrinal development.  The OLC’s analysis, of course, was driven by concern about whether a federal hate crimes bill would be vulnerable under the Supreme Court’s holding in United States v. Morrison. There’s more going on here though. The Thirteenth Amendment, unlike the Fourteenth, does not have a state action requirement.  To the extent that lawyers start using the Thirteenth to sustain congressional action on racial discrimination, that would render Morrison a dead letter.  This line of thought was rejected in the Civil Rights Cases (over Justice Harlan’s dissent), but may be making a comeback.

Does the Obama Administration fear Morrison? Or do they just want to reign in the Commerce Clause Jurisprudence? How does Comstock figure into this? Questions to be resolved.

I Will Be LiveBlogging the 2009 Federalist Society National Lawyers Convention Thursday-Saturday

November 11th, 2009

I will be LiveBlogging the 2009 Federalist Society National Lawyers Convention. During the Convention, please visit http://JoshBlogs.wordpress.com for summaries of the events updated in real time, YouTube videos of convention discussions, interviews with some of the luminaries in attendance, and more. To receive updates during the Convention, please follow JoshBlogs on Twitter at http://twitter.com/joshbtweets or subscribe to the RSS Feed at http://joshblogs.wordpress.com/feed/

Please note that all of the views expressed on this blog are my views, and do not reflect the opinions of the Federalist Society.

Deepest Condolences to Justice O'Connor on the Passing of Her Husband

November 11th, 2009

From AP:

John J. O’Connor III, the husband of retired Supreme Court Justice Sandra Day O’Connor, has died.

The court said the 79-year-old O’Connor died Wednesday in Phoenix, Ariz., of complications arising from Alzheimer’s disease.

John O’Connor, himself a lawyer, was diagnosed with Alzheimer’s nearly two decades ago. His condition deteriorated markedly in mid-decade and when she announced her retirement in 2005, the justice cited the need to care her husband. The O’Connors were married in 1952 and became a leading couple on Washington’s social scene when they moved from Arizona in 1981 following her confirmation as the first woman on the Supreme Court.

Our thoughts are with you Justice O’Connor.

FantasySCOTUS.net is now LIVE. The Premier Supreme Court Fantasy League. Play Like the 10th Justice.

November 11th, 2009

JoshBlogs is proud to present FantasySCOTUS.net, the Premier Supreme Court Fantasy League.

FantasySCOTUS.net

The Rules are simple. For each case the Supreme Court grants cert, predict:

 

  • The Outcome of the Case (Affirm or Reverse the lower Court)
  • The Split (9-0, 8-1, 7-2, 6-3, 5-4, 4-1-4, or fragmented)
  • The Justices in the Majority, and the Justices in the Dissent
Play like the 10th Justice!

Now you can play like the Tenth Justice at FantasySCOTUS.net.