ACS Speaker in the News

ACS guest-speaker of January 31st and world-class litigator Martin Garbus is slated to represent beleaguered DJ Don Imus. From winning Goldberg v. Kelly, to representing Public Enemy and telling outrageous stories about his brush with court martial, Garbus never fails to entertain. The Columbia ACS blog would like to wish Mr. Garbus the best with his newest client.

The Blog Remains the Same

Hey All,

I wanted to throw up a quick end-of-semester post for a few reasons. First, an immense debt of gratitude is owed to our outgoing ACS Media Chair, the incomparable Andy Bradley. Andy's management of this blog and endless energy and optimism have created a truly remarkable space for discussion and reflection and a world-class student blog.

Next, I wanted to point everyone to an instance of Columbia ACS in the news. Check out the article in the New York Sun and on Above the Law. Our very own ACS member Tim Abbott is quoted in The Sun discussing the offer of a faculty position to Matthew Waxman, a very well-credentialed and highly regarded official in the Bush State Department.

Finally, I invite you all to continue the wonderful dialogue housed on this blog throughout your summer exploits. Please feel free to blog about your experiences or any thoughts you may have in the coming months. Also, if you have any thoughts or suggestions for improving the blog, please don't hesitate to let me know. As next year's Media Chair, it is my sincere hope that this site will continue to be the "intellectual drumbeat" (as Andy likes to say) for the Columbia ACS community. With your help, I think we can do just that.

Good luck to all on finals and have a great summer. See you in the Fall.

Your Friendly Neighborhood ACS Media Chair,

Rob Weinstock

2nd Amendment Basis or Objective Basis for Firearm Ownership?

Although I do not agree with people who find a right to privately own firearms in the 2^nd Amendment to the Constitution, I see their point. This amendment — along with a Congressional Commerce Power limited only by prudence and a 9^th Amendment that either does nothing or everything — represents some of the most ambiguous, sloppy drafting in the entire Constitution. Although I don't think you have the constitutional right to buy one gun per month (a limit Virginia has placed on individual gun ownership), I see how people can seize upon the 2^nd Amendment's sloppy drafting to claim that they do have such a right.

On the other hand, the people whom I do not understand are those people who ignore the historical accident of the 2^nd Amendment and attempt to argue from first principles that a universally armed society is preferable to a less-than-fully-armed one.

When Kathryn Lopez, conservative blogger at The Corner on National Review Online, says:

If you want domestic tranquillity, an armed and responsible citizenry ready and able to protect life and property is not a bad way to start.

...she is calling for a type of Wild West society that has been rejected by the rest of the developed world.

Argue from the Constitution that you have a 2^nd Amendment right to private gun ownership and I'll begrudgingly admit that you have a textual leg to stand on. Argue from first principles that the best society is one where we're all armed and I'll remind you that you stand in sharp disagreement with the rest of the developed world.

Neal Katyal: Lead Counsel for Hamdan

This evening, ACS along with SALSA, welcomed Neal Katyal to discuss the Supreme Courts’ 2006 decision in Hamdan v. Rumsfeld. Prof. Katyal was not only the lead counsel in Hamdan, he was co-counsel in Bush v. Gore, he clerked for Justice Breyer and Judge Calabresi, he served as National Security Adviser in the U.S. Justice Department, and he is currently the John Carroll Professor of Law at the Georgetown University Law Center.

Prof. Katyal first spoke about how he became involved in the case. He noted that as part of his job at the Justice Department and in his academic work, he has argued for a strong “Unitary Executive.” He distinguished this from the view of President Bush’s Administration which believes that when Congress has passed a law, through secret memos, the President can ignore that law when he feels that it unconstitutionally inhibits his power as Commander and Chief. For him, Hamdan is all about rejecting this view. “Congress calls the shots, not the President.” He cannot undo laws and treaties when he disagrees with them. There is some limited authority of the president in time of emergency, but this rarely happens in real life (only to Jack Bauer). There is some “residual emergency power” reserved by the President, but the question is how much and when—and the President’s answer has been as much as he wants and whenever.

In November of 2001, the President issued a military trial order and Katyal’s first impression was that it had to be a joke. The President was saying that he was going to set up a new trial system. He would define the offenses, the procedural rules, the rights (none), and the Federal Courts could not review it. Even as a person who favored a strong presidency, Katyal felt this went too far. The Administration argued that these trials where necessary and needed right away and there was no time to go to Congress. What if Osama bin Laden was caught before Congress acted? (He noted that Congress had passed by this time the Authorization for Use of Military Force and the Patriot Act).

It was for these reasons that Katyal began searching for a test case to challenge the President’s order. Charlie Swift (LCDR U.S. Navy) recommended Salim Ahmed Hamdan, who was the captured driver of bin Laden. Hamdan agreed to be represented by Katyal and Swift, and his case was filed. They argued that the trials violated the separation of powers, the Uniform Code of Military Justice ("UCMJ") which says how to conduct trials, and the Geneva Convention. The District Court agreed that this trial violated the separation of powers because it did not follow the UCMJ—specifically because Hamdan was kicked out of his own criminal trial. This apparently has not been allowed since the Star Chamber in England. At the D.C. Circuit they lost on appeal unanimously. Judge Williams, in his concurrence, did give some hope in rejecting the District Court’s decision that Common Article III of the Geneva Convention did not apply. Common Article III says that in all conflicts, the rights indispensable to all civilized people must be granted, but the Administration argued the since al-Qaeda did not sign the convention they do not get this protection. Katyal response was, “Whales didn’t sign the Whaling Convention.”

The Supreme Court granted cert, but Congress passed a bill to strip the case off of the Court’s docket. There was, however, an argument that the bill could be read to “grandfather” in Hamdan’s appeal. On 29 June 29th, 2006 the Court sided with Hamdan on all arguments. Katyal first impression upon leaving the court house was that the Court in a time of armed conflict told the President “No.” This guy with no financial means, who was accused of conspiring with one of this nation's worst enemies in its history, sued the President of the United States in the highest court in this land, and won. This is unique in this world. In many places, Hamdan would have been shot for doing this. Katyal quoted then Judge Roberts: “If the little guy’s argument is right, he wins.”

He then spoke about the Military Commissions Act (“MCA”) and his amazement that it was proposed by the President and passed by Congress in only three weeks. He believes it passed so fast because “it literally only effects people who cannot vote.” It only applies to green card holders and other non-citizens. American citizens, he said, “get the Cadillac of justice,” but if you are not a citizen “you get the beat up Chevy version of justice.” The first time Katyal met Hamdan, Hamdan asked Katyal why he was representing him when his last client was the Vice-President? Katyal thought of his parents, who came to the U.S. from India because of its commitment to equality and fairness. The MCA was violating this vision of America. Equal Protection of the laws under the 14th Amendment says “all persons” not “citizens.” This was done to overrule Dread Scott which limited constitutional rights to citizens only. Under the MCA, a separate trial system for foreigners has been set up, and it says that they only get a limited set of rights, while we get everything. That is why Katyal believes it is “doomed to fail.”

After the decision was handed down, the President and others in the Administration said that this would be a chance to paint Democrats as soft on the war on terror. Katyal expressed his shock that this was the President’s response. The first thing the President ever does is take an oath of office in which he swears to uphold the Constitution. The Supreme Court of the United States had just told the President that he violated the Constitution. The President, however, looked for the political gain that could be made from the decision. Since the war on terror has begun, no one has been brought to trial, and for Katyal “that is not a way to run a justice system.”

Katyal last spoke of a quote that was sent to him after the decision came out. It was the words written by Justice Rutledge in his dissent in the 1946 Supreme Court decision Yamashita v. Styer:

More is at stake than General Yamashita's fate. There could be no possible sympathy for him if he is guilty of the atrocities for which his death is sought. But there can be and should be justice administered according to law. In this stage of war's aftermath it is too early for Lincoln's great spirit, best lighted in the second inaugural, to have wide hold for the treatment of foes. It is not too early, it is never too early, for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, that is, of all men, whether citizens, aliens, alien enemies or enemy belligerents. It can become too late.

This long-held attachment marks the great divide between our enemies and ourselves. Theirs was a philosophy of universal force. Ours is one of universal law, albeit imperfectly made flesh of our system and so dwelling among us. Every departure weakens the tradition, whether it touches the high or the low, the powerful or the weak, the triumphant or the conquered.

The person who sent it was not quoting the case. Rather, it was from a chapter on Rutledge written by one of the Justice’s former law clerks. That clerk, now Justice John Paul Stevens, made good on his boss’s promise fifty years later.

A good discussion followed Katyal’s remarks as well as a “delightful” reception. We would like to thank Professor Katyal for speaking with us this evening. We would also like to express thanks to Dechert LLP, Paul Weiss, Perkins Coie, Cleary Gottlieb Steen & Hamilton LLP, and Cravath, Swaine & Moore LLP for their generous support which made the evening possible.

Gone Are the Brethren

In my* 3½ semesters in law school, I’ve noticed a funny expression in old Supreme Court opinions. Justices would often use the phrase “my brethren” to refer to their fellow justices.

As one might expect, the appointment of a woman to the Supreme Court marked the end of this practice. A Westlaw search of the phrase “my brethren” in Supreme Court opinions yielded some 284 Supreme Court cases, from 1795 to 1981, in which the phrase appeared. The last time “my brethren” was used to refer to fellow justices was in Justice Rehnquist’s dissent from a denial of certiorari in Jeffries v. Barksdale, 453 U.S. 914 (1981). The Jeffries dissent was handed down on June 29, 1981; President Reagan nominated Sandra Day O’Connor on July 7, 1981.

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^* Although I have been a Columbia ACS freerider for some time now, this is my first post on this eminent blog. Thank you to outgoing media chair Andy Bradley for allowing me to share this nugget of wisdom with the Columbia ACS community. Like what you read? There’s more of this on Sauntering, the blog that Andy and I run.

Summer Funding Restrictions Courtesy the Catholic Church

A very distressing story has been developing at Georgetown University Law Center over the past week or so. Like many other law schools, Georgetown does not guarantee summer funding for public interest work by 1L students, but has a competitive process for awarding some grants to some students led by its Equal Justice Foundation (similar to Columbia’s PILF). Some of the funds are directly raised by the student group, and some kicked in through the administration’s fundraising efforts. When a 1L student sought funding for work at Planned Parenthood, the student group selected her to receive funding, but Dean Alex Alenikoff vetoed that decision, saying (full story here: http://www.insidehighered.com/news/2007/04/06/georgetown)

There are a number of highly troubling issues here. One basic one is that it seems pretty unfair to spring this policy decision on a student in the spring, when most employment decisions are made. (Though, presumably the Public Interest office was able to help the student in question receive outside funding.) It also seems to come completely and entirely out of the blue. Like many avowed pro-choice liberals, I applied to Georgetown Law, and strongly considered attending it. One of the reasons was that it actually is a place where liberal ideals of public service are actively fostered. The Law Center employs some top progressive legal thinkers, including Lawrence Gostin, David Vladeck and Chai Feldblum (and until his recent passing, Father Robert Drinan- former Congressman, Roman Catholic priest, and pro-choice). At no point would a student have any reason to think that their career options would be vetted by the “Jesuit heritage” of the school. I was actually just at Georgetown Law last week, where the school’s Outlaws group hosted a luncheon for law students lobbying against Don’t Ask, Don’t Tell. This school does not give the impression of one concerned with adhering to the Catholic Church’s teachings as much as supporting a new generation of lawyers in their pursuit of justice.

The second major concern is how far does this seemingly new “policy” go. If GULC prohibits its students from funding work in reproductive rights, will it prohibit funding of gay rights work as well? Though Alenikoff refers to abortion as part of the institutions “core identity”, abortion is mentioned fewer times in the bible than homosexuality is. Further, Georgetown hosts several outstanding clinical programs. Will the school force them to turn down all cases not in line with Catholic Church teachings? The school employs some very passionate pro-choice scholars- will they be limited in what they can say in the classroom? In their scholarship?

In the end, I can’t think that this decision would do anything to help Georgetown Law in the long-run. When career choices are effectively censored because of religious dogma, that censorship permeates the entire academic institution. The majority of Georgetown Law students, from my own informal but detailed knowledge, are pro-choice, and pro- a lot of other things the Catholic Church might disagree with. Georgetown Law’s reputation as a top law school has little to do with dogma, and a lot to do with its historical emphasis on public service. Actions like this may deprive Georgetown of dedicated, bright students with an eye on changing the world. Hopefully, they will be supported elsewhere.

SCOTUS Haiku with Professor Michael Dorf

A few months back, we twisted Professor Dorf's arm until he agreed to generate a haiku or two in quick response to notable SCOTUS opinions. His first haiku concerns yesterday's Massachusetts v. EPA (.pdf link):

The Earth gets hotter.
Massachusetts can complain.
EPA comply.

Climate Change, Public Goods, and Standing

DISCLAIMER: The following represents the uninformed reaction of a CLS 1L, utterly befuddled by constitutional law and lacking anything approaching the appropriate level of background knowledge or research. Although when has insufficient knowledge or research ever hindered anyone from posting something on the internet? So here we go.

     Climate change is a different kind of litigation. Legal scholars examined it through the lens of traditional causes of action (notably Professor Merrill’s Global Warming as Public Nuisance) and found it a problematic fit. The inability to project climate change into a conventional law suit derives primarily from the fact that a stable climate is not a private right that may be infringed upon. A stable climate is a public good.
     Economists define "public good," as anything with two main characteristics: public goods are nonrival in consumption and nonexcludable. The benefits of a stable climate are enjoyed by all of us simultaneously, though perhaps to varying degrees. A stable climate is nonexcludable in that those who pay for its maintenance cannot withhold the benefits of a preserved planet from those who shirk their contribution. The global climate is a public good, and the definitive characteristics of public goods are at odds with the traditional requirements for standing.
     Chief Justice Roberts rightly critiques any claim of the petitioners to conventional standing. The demand that a plaintiff’s injury be “particularized” and different in kind (as opposed to in degree) from others suffering due to the defendants’ conduct is clearly at odds with the global nature of climate change. The requirement of redressibility demands that the court be able to alleviate the injury suffered by the plaintiff through forcing the defendant to do something or pay some amount in damages. Any amelioration of climate change affected by an agency regulation on automobile emissions would be enjoyed by everyone world-wide. Certainly not a bad thing, but because the public good of climactic stability cannot be partitioned: the court cannot direct the benefits from reduced carbon dioxide emissions. The traditional requirements of standing cannot be neatly applied to an injury to a public good. This sends Justice Stevens upon a jurisprudential obstacle course in an attempt to draw standing from provisions of the Clean Air Act and case law dealing with procedural rights conferred by Congress. In that task, Stevens succeeds admirably, upon my reading at least.
     Chief Justice Roberts assuages the fears of environmentalists and rational actors alike by assuring us all that the political branches are an apt and appropriate forum for dealing with climate change. There are two practical problems with labeling climate change a “political question” and booting these petitioners out of court. First, environmental policy in general and climate change legislation in particular, suffers from an utter and acute failure of our political system. Presenting a classic problem of collective action, the beneficiaries of a stable climate are diffuse, unorganized, and susceptible to free-rider problems. Opponents of climate change regulation are, on the contrary, exceptionally well-organized, well-funded, and – until recently – highly motivated to fight regulatory change tooth and nail. In a very real sense, a Congress dependent upon campaign contributions is absolutely institutionally incompetent to deal with the problem of climate change in an independent and effective manner.
     While our adversarial judicial system may be equally ill-suited to adjudicate threats to public goods, the court is armed with an immutable weapon. The Supreme Court may, as it did yesterday, send a clear message to the “political branches” and their delegates in administrative agencies. The Court can say, in effect: “while we cannot complete the political tasks before you, we can, we must, and we do demand that you face common challenges rather than obfuscate them.” If the EPA, in response to the Court’s decision, or Congress, to supersede independent agency action pursuant to the decision, effectively addresses climate change, then the court will have redressed to the petitioners’ injuries. That is not a dismissive “political question” opinion. That is one co-equal branch checking another. That is the judiciary providing relief to the injured party before it. Though it faces an unfamiliar type of problem, that is the judiciary resolving a controversy. That is the role of the Court.

Environmental Roll Call in Massachusetts vs. EPA?

Nearly half the states joined the landmark Massachusetts v. EPA (.pdf link), decided today by the Supreme Court.

The plaintiff side featured Massachusetts, California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.

Amici curiae supporting the EPA were Alaska, Idaho, Indiana, Kansas, Michigan, Nebraska, North Dakota, Ohio, South Dakota, Texas, and Utah.

PROPERTY RIGHTS POST-KELO

     Today, the Environmental Law Society, ACS, and Federalist Society welcomed John Echeverria of the Georgetown Environmental Law & Policy Institute, and Timothy Sandefur, of the Pacific Legal Foundation, to discuss the implications of the Supreme Court's 2005 decision in Kelo v. New London. The event began with Professor Tom Merrill offering a broad legal, political, and historical explication of the tension between property rights and government management of land use.
     Mr. Echeverria spoke first, beginning with a flat-out condemnation of the "regulatory takings agenda." He characterized this agenda as an effort to sabotage the workings of government in responsible management of land. The Takings Clause, Mr. Echeverria argues, should be applied narrowly to actual takings and invasions of property, citing an opinion written by Justice Scalia asserting such an interpretation. Mr. Echeverria traced the development of the "regulatory takings agenda" to the academic work of Richard Epstein, however declared it a "flop" given consistent Supreme Court holdings restricting the doctrine of regulatory takings to those situations in which regulation effectively constitutes an actual taking of the property. Turning to considerations of public policy, about half of the states have some sort of regulatory takings legislation. Aside from a referendum in Oregon (Measure 37), which Mr. Echeverria chalks up to electoral manipulation, the state policies are largely symbolic. Analyzing the slate of over 20 referendums at issue in the 2004 election, Mr. Echeverria optimistically points out that those propositions focused narrowly on eminent domain were successful, while those confounding that issue with regulatory takings failed. Concluding with an observation on the experience in Oregon, Mr. Echeverria notes that the regulatory takings argument for land-owner compensation fails because the regulation applies to all in the community, and therefore protects a complaining land-owner while inhibiting them. Therefore, those who seek compensation under the theory of regulatory takings really seek an individual exception to a mutually beneficial land-use regulation.
     Mr. Sandefur began his comments with a rejection of Mr. Echeverria's presentation and a plug for his recent book. Beginning at the beginning, Mr. Sandefur parsed the language of the 5th Amendment and sought to demonstrate the blurry line between physical takings and an outright and absolute restriction of the uses of a given property. Mr. Sandefur equated the post-Kelo world with Hobbes' nasty and brutish state of nature. The theories of John Locke informed the founders' thinking, and as such, the government is limited by theories of natural rights: the government cannot wrongfully abridge one's natural property right. Mr. Sandefur argued that "liberty trumps democracy," and that the Constitution created a government that should serve as a "bank guard" and restricted that guard from robbing the bank himself.
Attacking the tenets of progressive political thought, Mr. Sandefur generally criticized progressives' willingness to submit to majority views on the meaning rights. Mr. Sandefur went on to criticize the "rational basis" standard of review as a crippling and irrational judicial standard as the product of the progressive view. Coming around to the effects of Kelo, Mr. Sandefur points out that eminent domain reform has no natural constituency, while regulatory takings reform does have strong and financially-capable support. Mr. Sandefur characterized the argument against regulatory takings as "we can't afford it, so we should get it for free." He noted that forcing the government to pay for regulatory takings would compel more rational policy-making by forcing the government to bear the costs of their choices. Mr. Sandefur ended with his opening question: "what is a legitimate government interest." In crescendo, he asks: "If we don't know what a legitimate government interest is, what business do we have determining what a rational basis for one is?"
     Compelling argument throughout the hour, the issue of regulatory takings taps into deep philosophical questions about the purpose and powers of the federal government. The ACS, ELS, and FedSoc would like to thank both Mr. Echeverria and Mr. Sandefur for their dynamic, adversarial, entertaining, and genuinely thought-provoking comments.