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Without the 14th Amendment, try to imagine how many unemployed law professors there would be!

From LOC:

On July 28, 1868, Secretary of State William Seward issued a proclamation certifying without reservation that the Fourteenth Amendment was a part of the United States Constitution. The required number of states had ratified the Fourteenth Amendment a few weeks earlier on July 9, 1868.

A special birthday shout-out to the Privileges or Immunities Clause, which made an awesome cameo in Justice Thomas’ concurring opinion in McDonald v. Chicago.

H/T Alison Hayward on Facebook.

Very cool. From MSNBC:

Israeli archaeologists say they have found two 3,700-year-old clay tablets that appear to contain legal pronouncements similar to the Code of Hammurabi and the biblical “tooth for a tooth” rule.

The clay fragments, bearing Akkadian cuneiform script, were unearthed this summer during the Hebrew University of Jerusalem’s excavations at Hazor National Park in northern Israel. They date to roughly the same time frame as the BabylonianHammurabi Code, which is considered the world’s oldest surviving written collection of laws. And the fact that the tablets were found in Israel suggests they might have had an influence on Old Testament writers.

Wayne Horowitz, a professor at Hebrew University’s Institute of Archaeology, told theJerusalem Post that a team of experts is preparing the Hazor code for publication as part of a book. He said the discovery could open up interesting new connections between the Hammurabi Code and biblical law.

They even had legalese back then!

Horowitz told the Israeli newspaper Ha’aretz that the first word he deciphered was a legalistic Akkadian term meaning “if and when.” There are references to “master” and “slave,” as well as a word referring to a body part, most likely a tooth.

From the 9th Circuit:

The 45-inch-high wall between the customer line and the food preparation counter at two Chipotle restaurants in San Diego County, which blocked the view of patrons in wheelchairs, violated the 1990 federal law that requires equal treatment of the disabled, the Ninth U.S. Circuit Court of Appeals in San Francisco said Monday.

The court said the accommodation the company offered – bringing spoonfuls of each dish to wheelchair users for inspection before ordering – didn’t measure up.

That would provide only “a substitute experience that lacks the customer’s personal participation in the selection and preparation of the food,” the court said in a 3-0 ruling.

I don’t think Chipotle is quite done with accommodations. I think Chipotle needs to provide bottles of Chipotlaway for all customers in order to clean the blood stains from their underwear. Buying them new underwear is merely a “substitute experience.” For those of you who have no clue what I’m talking about, please see South Park clip below.

H/T Althouse

The City of Cleveland sued a number of Wall Street banks and mortgage lenders under a public nuisance tort for creating risky mortgage securities to be sold by investors that invariably destroyed their–ahem–lovely town. The 6th Circuit affirmed the District Court’s dismissal of the case, and argued, among other things, that the parties did not prove proximate clause.

In its complaint, Cleveland acknowledges that, for the most part, the Defendants

did not originate the subprime mortgages at issue in this appeal. Nevertheless, it alleges

that the Defendants’ financing, purchasing, and pooling of vast amounts of these loans,

to create mortgage-backed securities to sell to their customers, constituted a public

nuisance.

…

The alleged damages that subsequently occurred—eyesores, fires, drug deals, and

looting—were also not directly caused by the Defendants. Homeowners, whether the

initial buyers or mortgagees that later took possession of a home, were responsible for

maintaining their properties. Fires were likely started by negligent or malicious

individuals or occurred because a home was poorly built. Drug dealers and looters made

independent decisions to engage in that criminal conduct. Additionally, other companies

not listed in the complaint financed subprime loans and properties not subject to a

subprime loan nevertheless entered into foreclosure. Similar to Holmes and Anza,

Cleveland has not stated a viable claim when these actions could have occurred for “any

number of reasons unconnected to the asserted pattern of [misconduct].” Id. at 458.

…

Another similar reason that the complaint does not satisfy the directness

requirement, which also touches on the concerns implicated by the first Holmes factor,

is that the remote connection between the alleged misconduct and the alleged injury

makes it impossible “to ascertain the amount of [Cleveland’s] damages attributable to

the violation.” See Holmes, 503 U.S. at 269.

…

In sum, even when viewing the assertions in the complaint in a light most

favorable to Cleveland, the connection between the alleged harm and the alleged

misconduct is too indirect to warrant recovery. Although the facts are different than

those before the Supreme Court in Holmes and Anza, the same directness concerns are

implicated.

Barry Friedman has a Friedman-esque new article about Stealth Overruling on the Roberts Court, titled The Wages of Stealth Overruling (With Particular Attention to Miranda V. Arizona) (H/T Legal Theory Blog).

Here is the abstract:

Over the last few years – and especially following the 2006 Term – commentators have criticized the Supreme Court for engaging in “stealth overruling.” This article examines the phenomenon, trying to ascertain why the justices engage in the practice and how we should feel about it. The article focuses on the gradual overruling of Miranda v. Arizona, because here tangible evidence is available about the benefit to the justices – and costs to the rest of us – of the practice of stealth overruling. The article demonstrates that by engaging in stealth overruling the justices are able to see that their will is done by lower courts and public officials, yet avoid any negative effect from public opinion. While the strategy benefits the justices, it has costs. Doctrine is rendered incoherent, and public officials are encouraged to evade federal law. Of greatest concern, stealth overruling tempers the dialogue between the Court and the public about the proper meaning of the Constitution, leaving the course of constitutional law solely in the justices’ hands.

From the article:

Although there has been some commentary on stealth overruling,
to date no one has really tried to come by any data or hard information
indicating why the justices would choose to overrule by stealth rather than
overtly, or the effects of their choosing to do so. Stealth overruling has
been addressed as a matter of critique or philosophy, but not as a question
of motive and effect.9 That shortfall is addressed here, with particular
attention to the slow undermining of the Miranda rule. Doing so provides
information as to why the justices choose the technique, what the
countervailing considerations are, and how stealth overruling decisions are
treated by government officials and lower courts that the Supreme Court
must govern. This information, in turn, permits normative judgment based
on facts, not speculation.

Polling data on the Miranda decision, and studies of media

reactions to its recent progeny, provide substantial support for the

conclusion that stealth overruling occurs when the justices have reason to

be concerned about a strong negative reaction to their decision, yet are

determined to change the law nonetheless. And while some might claim

that it is appropriate for the justices to engage in stealth overruling in order

to shield decisions about constitutional meaning from majoritarian

passion,10 the argument here is just the opposite: that ultimately the

legitimacy of judicial review turns on public scrutiny of what the justices

are doing, and the ability for dialogic engagement with their constitutional

decisions. For this reason if no other, stealth overruling should be viewed

with skepticism.

Strictly speaking “stealth overruling” is a misnomer. In reality,

what disturbs critics is the disingenuous treatment of prior precedents in a

manner that obscures fundamental change in the law. Existing precedents

are not given their logical scope, or are trimmed to almost nothing,

without sufficient (or any) explanation

From the birth of our Republic, starting with Chief Justice Marshall in Cohens v. Virginia, judges and scholars alike have grappled with the distinction between holding and dictum. However, neither the judiciary nor the academy has been able to come up with a consistent and workable definition of these two concepts. This article attempts to shine some light on this perplexing issue.

This article proceeds as follows. In Part I, I will discuss some of the simpler, yet unsatisfying definitions of dictum, and introduce some of the easy cases, where distinguishing dictum from holding is relatively straightforward. Next, I will chronicle the Supreme Court’s erratic approach to dealing with dictum, and show how this uncertainty has left a gaping void in our jurisprudence. Next, I will discuss prior scholarly attempts to define dictum, and show why their approaches are inadequate, as they only focus on Supreme Court cases, and ignore how the inferior courts treat the distinction.

In Part II, I will confront the task where others have not ventured, and systematically survey and analyze over four hundred court cases that distinguish between dictum and holding. After explaining my methodology and framework, I will attempt to answer three critical questions. First, what is dicta worth? Second, whose dicta must/should/can courts follow? Third, how do courts define dicta? These three questions reveal clues to understanding how courts have treated dictum, and what the distinction means in practice.

In Part III, I will analyze the results from Part II. Based on the arbitrary nature with which courts define dictum, and the varying weight courts assign to dictum, even from superior courts, I conclude that the holding/dictum distinction is a standardless standard. Unlike generally accepted standards of review, labeling an opinion as holding or dictum is an entirely subjective process, which I argue enables judges to easily evade precedent without needing to justify the departure; or in the alternative create precedent where none existed before. Next, I analyze precedent, stare decisis, and dictum through the lenses two jurisprudential schools, legal formalism and realism. I conclude with a legal realist argument, that the distinction between dicta and holding is inextricably linked with a judge’s views on precedent.