And Thou Shalt Not File Frivolous Lawsuits

In a bizarre attempt at combining law and religion in order to make a point about frivolous lawsuits, Nebraska state senator Ernie Chambers is suing God.

More surprisingly, God has responded. According to District Clerk John Fiend, the answer "miraculously appeared on the counter." Oh, those law clerks.

After only a month of law school, I can already sense that the myriad jurisdictional and enforcement issues involved in this case make it unlikely to succeed. On the off chance that Chambers is granted his injunction, the court obviously has no way to enforce its ruling.

Civ Pro Mini Quiz- Does this qualify as sufficient service of process?

But this case is an effort to make a statement about a much bigger issue than whether God is a terrorist: tort reform.

Chambers is using this lawsuit, which he admit is absurd, to make the point that anyone can sue anyone. But is that necessarily bad?

In our legal system, tort legislation (ideally) acts as a form of social insurance. It allows people a remedy when they are injured, and in many cases prevents people from bearing an undue financial burden. Additionally, the knowledge that anyone can be sued (theoretically) encourages people to be more careful in their interactions.

As a society we have consistently supported this idea. Congress, for example, has explicitly recognized the value of litigating relief by passing statues that allow victorious plaintiffs to claim attorneys' fees from defendants in certain kinds of cases. These laws are specifically designed to encourage lawsuits (and thereby discourage particular kinds of undesirable conduct).

On the other hand, the tort system does not appear to be working properly. Tort costs in the U.S. each year reportedly exceed $200 billion. According to Bureau of Justice statistics, less than half of all tort plaintiffs succeed at trial. For medical malpractice, the figure is closer to one quarter. Worse, the right people usually don't sue. According to a Harvard Study, less than 1 in 7 injuries caused by medical malpractice are ever litigated.

The issue is obviously far more complicated than this post can begin to cover, but it boils down to a fundamental question. Are we willing to pay the huge procedural costs of often frivolous lawsuits in order to protect the right of every American to sue when he or she is wronged?

The truth of the matter is, if we're willing to stomach the costs, the legal system seems to do a fine job of filtering out frivolous lawsuit. In fact, in the lawsuit Chambers is protesting, the Judge is considering sanctions for the plaintiff's counsel.

Chambers, however, prefers to demonstrate how frivolous lawsuits waste taxpayer dollars by, well, wasting taxpayer dollars. God has yet to weigh in on the issue.

John Roberts: Restrained Judicial Conservative or Conservative Judicial Activist

Today, the Columbia ACS and Federalist Society hosted a conversation between Emily Bazelon (Senior Editor of slate.com) and M. Edward Whelan III (President of the Ethics and Public Policy Center) focusing on what to expect from the Roberts Court.

Mr. Whelan opened by noting his initial uncertainty as to Chief Justice Robert's attitudes, and then declared his satisfaction with the Chief Justice thus far. Interestingly, Mr. Whelan defended the term "judicial activism," noting it is inherently apolitical, but involves the overriding of political decision-making. He also noted that judges can affect similar error through "judicial passivism" in refusing to enforce politically-created rights. Further, Mr. Whelan distinguished judicial restraint from stare decisis because judicial restraint involves deference to the political branches. Returning to Chief Justice Roberts in conclusion, Mr. Whelan expressed his approval.

Ms. Bazelon dove right into an analysis of Chief Justice Roberts emphasis on unanimity in his first term. Moving into the recently elapsed term, Justice Kennedy's role in the numerous 5-4 decisions places him, and rather than Chief Justice Roberts, as the driving mind on the Court. This leaves Chief Justice Robert's role as one of timing and pacing. Ms. Bazelon pointed to a deeper understanding of restraint, noting the Justice Scalia's frequent criticisms of his Chief for "faux judicial modesty." Robert's emphasis on "modesty" bespeaks a preference for incremental change in the Court's decisions and calls for a delicate respect for precedent. Returning to the issue of pacing and timing, Ms. Bazelon pointed out the conservatives on the Court are just younger than the liberals and thus have time on the court to be patient and can build a number of decisions to cut away at important precedents. She asserted that Chief Justice Roberts will ultimately be an activist judge because he will drive the law toward an end-state that he desires.

Professor Peter Strauss, our moderator, opened the question period with a detailed query as to the current Court's approach toward the rule of law and respect to precedents in the context of a "common law" statute. What ensued was a wide-ranging and considered discussion of a number of jurisprudential points. Student questions focused on the terminology and evolved-meaning of the term "judicial activism," and the interpersonal dynamics among the Justices on the Court.

In the midst of answering a question, Ms. Bazelon expressed her anxiety in relying upon Justice Kennedy for her hopes for the court. "Me, too," enjoined Mr. Whelan. Regardless of their position on the alleged activism of Chief Justice Roberts, both speakers agree that Justice Kennedy is the linchpin of the Court and it is that dynamic which will be the prime driver of the Court in the near future.


Columbia ACS would like to thank Emily Bazelon, Edward Whelan, and Professor Peter Strauss for joining us today and offering their important and interesting remarks.

Ahmadinejad on Campus

These remarks are entirely my own and I do not speak for ACS or the Columbia chapter thereof. I offer my responses to President Ahmadinejad's appearance with the sincere hope that this may be the beginning of a robust discussion here on columbiaacs.blogspot.com.

Today, the President of the Islamic Republic of Iran, Mahmoud Ahmadinejad, spoke and answered questions here at Columbia upon the invitation to join in the World Leaders' Forum. News vans, police, and passionate discourse all followed him here, and I - for one - cannot imagine a better use of the University's resources and good name.

Ahmadinejad is an indisputable threat to global security of the highest magnitude. He is also a genuinely bad person, a "petty and cruel dictator," in the words of University President Lee Bollinger. I join President Bollinger's condemnation without qualification. Ahmadinejad is, however, undeniably a "world leader," and it is, as noted by President Bollinger, the duty of the academy to host and critically engage with all viewpoints, ridiculous or otherwise.

Deeply embedded in the American conception of free speech is the idea that society benefits from a free trade of ideas in an open and diverse 'marketplace' of thought. It is only when juxtaposed with considered and rational ideas that the absurd and evil are revealed convincingly as such. Ahmadinejad began by dismissing Bollinger's criticisms as impolite as coming from a host, and moved to discuss the importance of scholarship as advancing civilization.

It was tactful of the Iranian President to frame his remarks as focused on the advance of knowledge. By entrenching his discussion in religious scripture, Ahmadinejad implied his fundamental and ultimately problematic thesis: truth is bestowed by God, and my God bestows my truth.

Predictably, Ahmadinejad used this platform as an opportunity to criticize the "big powers" of geopolitics. He pointed to American hypocrisy in preaching freedom abroad while denying privacy to its own citizens. A point well taken. He argued that the West uses science and scholarship to suppress indigenous cultures and the scientific advance of periphery nations, like his own. The intellectual leaders of the West, are divorced from human and cultural values, he argued, and this divorce renders Western science impure and unholy.

Ahmadinejad ended with two questions. First, he asked why more diverse scholarship investigating the Holocaust has not been produced. In a way, he turned President Bollinger's criticism of his government's stance toward the academic community back against the West. In that, he revealed an important and overlooked common ground: we must all observe and respect divergent viewpoints and secure safe spaces for such discourse.

Without phrasing it as a question, Ahmadinejad next asked why Iran should be denied the right enjoyed by other nations to develop a peaceful, civil nuclear program.

To me, Ahmadinejad's visit was an incredible intellectual opportunity and reminded me that the academy, and Columbia in particular, serves as an important and volatile center of international discourse. Ahmadinejad himself comes across as evasive, obfuscating, and an entertainer; ever playing the victim and avoiding any discussion of the magnitude of his inflammatory remarks.

In the end, President Bollinger's scathing introduction seemed, to me, to capture today's event aptly. Ahmadinejad cannot, with reason, refute the malevolence and irrationality of his publicly-expressed views. This is the lesson of the day: all views must be considered, but all must also be supported with reason and evidence. President Ahmadinejad's evasion and selective use of Western ideas are unpersuasive and uselessly polemical.

The President's Pen: Negating Congressional Initiative and Hampering Effective Policy

The presidential signing statement is not new. Its been around for a long, long time, but the frequency with which this President has employed it is staggering. Between 1817 and 1981, only 75 such statements were issued from the White House. As of June 2006, President Bush had issued over 600. (For an excellent overview of Bush's use of signing statements, www.beyondpartisan.org). It is true that Presidents Reagan and Clinton issued signing statements at a far greater rate than their predecessors, this executive has implemented the form for the purposes of participating in a purely legislative process: the determination of what issues federal legislation should address.

This is what bothers me most about President Bush's use of the signing statement. He is effectively telling Congress, "I understand that you have identified a social problem, but I disagree with the means you chose to address is (or perhaps that it is a problem at all). Thus, I will abandon my Constitutional duty of implementation, because you, vox populi, are talking jive."

It's fun to eviscerate democracy!

The first signing statement issued by President Bush is illustrative of this point. Congress, in passing the Animal Disease Risk Assessment, Prevention, and Control Act, instructed the Secretary of Agriculture to provide reports including legislative recommendations on various issues of animal disease prevention. President Bush's signing statement objected to Congress' temerity in telling his employee what to do. The merit of the administration's fundamental separation of powers argument here is beyond my capacity or present interest to assess, but this example is telling on a more basic level.

Here, Congress has responded to widespread public apprehension about diseases carried by animals and their potential communicability to humans or impact on the food supply. (Remember Avian Flu?) The President - whether or not he agreed that this was an important problem with a role for the federal government in tackling it (it looks like he did, given that his CDC has been training to deal with a potential Avian Flu pandemic) - squelched a useful avenue for the provision of valuable scientific expertise to the Legislature for reasons boiling down to a juvenile bureaucratic turf war. Congress saw a problem, realized it needed expert assistance to effectively legislate against it, and asked for that aid. President Bush ignored the public good, legislative and popular mandate, and the quest for effective policy solutions.

Perusing the index of signing statements published by ACS (pdf) is an interesting and frustrating endeavor. The exercise also reveals that President Bush has used signing statement to usurp judicial - in addition to legislative - powers. In many cases, the administration's reason for issuing a signing statement is that the particular provision at issue contravenes a constitutional provision or the Supreme Court's interpretation thereof. (Very often the signing statements invoke INS v. Chadha as prohibiting post-enactment participation of Congress in implementation decision-making).

While all government actors should consider the constitutionality of their actions at all times, the supreme arbiter of constitutionality is the Supreme Court (see e.g. Marbury v. Madison). This is especially true when applied to interpreting the Court's own precedents.

In the end, my overwhelming reaction to this important documentation of a little-known presidential tactic is quite blunt: I implore you Mr. President, KNOW YOUR ROLE. Let the Court and Congress to their respective jobs and you stick to the enduring inept execution of your own.

6 Years at Gitmo: A Travesty, or A Good Start?

Today, the Columbia's chapters of the Federalist Society and ACS welcomed Professor George Fletcher, of Columbia Law School, and David Rivkin, of Baker Hostetler. Mr. Rivkin and Professor Fletcher debated the merits of the Military Commissions Act, and discussed other issues relating to the detention, treatment, and trial of detainees since 9/11.

After a brief introduction by Federalist Society President Nate Berry touching upon the solemnity of the day and importance of vibrant political debate, the debate began with Mr. Rivkin's remarks.

Mr. Rivkin opened his allotted time by rejecting the varied criticisms of the Bush administration's legal policy as an unprecedented assault on Constitutional protections. In great detail, Mr. Rivkin discussed the procedures under the Detainee Treatment Act as essentially fair.

Mr. Rivkin historically linked the current policies as to unlawful combatants with longstanding legal traditions and emphasized that the news-making cases were marginal and atypical.

The District of Columbia Court of Appeals is the relevant reviewing appellate court, and its scope of review is limited to procedural and constitutional questions. This scope of review has been upheld during World War II by the Supreme Court. Discussing habeas corpus, Mr. Rivkin dismissed the criticism that appellate courts would be unable to review questions of fact (i.e. if a petitioner is actually an enemy of combatant) by pointing to case law that would permit a review of pertinent facts.

In closing, Mr. Rivkin admitted that these procedures are limited when contrasted with domestic criminal law. However, he emphasized that the "laws of war" paradigm should be the basis of comparison because "if this isn't a state of armed conflict, I don't know what is," and in that contrast, the procedures relating to War on Terror detainees are "far more austere," in his words.

Professor Fletcher began his remarks with a professorial introduction, laying out in plain terms the academic points of the current habeas corpus debate. His focus was on fundamental questions: does the Constitution authorize the military commissions? They are operated by the executive branch, but, unlike similar court martial proceedings, their jurisdiction is over non-U.S. soliders. However, court martials are different because they are constitutionally designed as tools for managing the armed forces. Without a specific constitutional grant over the power to adjudicate cases involving enemy combatants, these military tribunals exist outside of the Constitution.

Professor Fletcher then offered an historical survey of the growth of these military tribunals. He emphasized that these tribunals had never received legislative consent. One 1920 statutory reference indicated that these tribunals were an expression of the international law of war. This proposition was only tested in Hamdan in 2005. Hamdan decided two issues: conspiracy (the central charge) was not part of the "law of war" and thus could not be charged in a military tribunal. The second central issue was Hamdan's inability to be present during testimony against him in the military tribunals. The court rejected this as a violation of the Geneva Conventions Common Article III. Five Justices applied the Geneva Conventions, but avoided making a constitutional decision.

Congress responded to Hamdan by creating a detailed set of military courts, however Article I of the Constitution does not grant Congress such a power. This deeply troubles Professor Fletcher.

Moving to address the "law of war, " accepting Mr. Rivkin's assertion that we are in the midst of war. His problem is that soldiers are not guilty of a crime in making a attack. Prisoners of war are not subject to prosecution. He views the problem as the Bush administration's attempt to pick and choose their favored attributes from both civil and wartime adjudicative procedures. This is the extraordinary development that merits critical attention.

Mr. Rivkin's brief response addressed some jurisdictional issues that Professor Fletcher discussed. Then Mr. Rivkin confronted a few "questions of fact." Military tribunals are not Article II courts, but rather under Article I. He then assured us that there are plenty of Supreme Court cases that upheld Article I bodies are appropriate for criminal adjudication, provided there is opportunity for judicial review. He also distinguished between the prosecutorial immunity for lawful enemy combatants to the lack of protection afforded to those labeled with the stigma of "unlawful enemy combatant."

Unfortunately, time did not permit Professor Fletcher's full response. His brief reply was to reject Mr. Rivkin's argument that the legacy of "unlawful enemy combatants" is longstanding, by describing the relevant WWII case initiating the doctrine. Professor Fletcher concluded by imploring the prosecution of actual and existing war crimes.

The exchange was observed and enjoyed by an over-flowing crowd of students and Columbia ACS would like to thank both Professor Fletcher and Mr. Rivkin for their lively debate and insights.

Tom Goldstein: Bloodbath & Beyond: The Coming Supreme Court Term

Columbia ACS Events Chair Quinn Arnsten reports on Tom Goldstein's visit to CLS:

"Tom Goldstein is the head of Akin Gump's Supreme Court practice and one of the foremost Supreme Court litigators in the country. He also runs SCOTUSblog.com which is an interesting blog that covers the day-to-day happenings of the Supreme Court.

"Right now, Mr. Goldstein is working on a second amendment case that will be going before the Supreme Court this term; it should be one of the most interesting cases they hear, so keep a look out. The D.C. Court of Appeals recently overturned D.C. gun legislation on the ground that it violated the 2nd Amendment.

"According to Mr. Goldstein, the current court is very conservative. Last term most of the close cases were decided 5-4 on ideological grounds. This fact has been used to rally progressives against republicans and created a loud cry for a democratic president.

"First, Mr. Goldstein discussed his personal background, outlining his experiences as a clerk and his early pro bono work in the Supreme Court. As a piece of professional advice, Mr. Goldstein noted that there is often a small circle of really smart people in any field; it is important to know and be cordial with them.

"Then, he moved on to discuss the recently elapsed term. Last year the court heard 72 cases—this is not very many for a Supreme Court term. Right now it is Justice Kennedy’s world and we just live in it. In every 5-4 case Kennedy was in the majority. In 70 out of 72 cases Kennedy was in the majority. This is extraordinary.

"A side note: most Supreme Court cases are decided on the briefs. Thus, oral advocacy isn’t really that important. However, to get to the position where you will do Supreme Court litigation you need to be a great oral advocate.

"Returning to the term, the Supreme Court treated business very kindly. The chamber of commerce won every case: “they had the best week ever for 52 weeks in a row.” Ledbetter is a case that clearly demonstrates this.

"The school desegregation cases from last term demonstrate the schism between liberals and conservatives on this issue. The two sides come nowhere near seeing where the other side is coming from. The plurality opinion took a completely unrealistic approach to what is feasible for elementary school admissions.

"Finally, Mr. Goldstein offered a brief look at exciting issues pending for the upcoming term, including gun control, Guantanamo Bay, the sentencing of a convicted child rapist, child pornography, and the disparity in sentences for crimes involving crack versus those involving cocaine.

"Goldstein predicts that the court will probably decide a number of these cases with opinions amenable to liberals. This will make it appear as though the court is shifting. However, this is not the case and it just happens that there is a freak set of cases this term.

"Goldstein's bottom line: the Supreme Court will act as a mobilizer for the right in the upcoming election. This is because the left will have won the majority of cases from the previous term."

Columbia ACS would like to sincerely thank Tom Goldstein for his candid and interesting remarks as well as his legal and advocacy work.

A Catalogue of Passed-But-Unenforced Legislation

Today, the national ACS website posted an interesting 229-page .pdf file. It's an index of all the Presidential Signing Statements issued between 2001-2007.

Although not specifically permitted or prohibited by the Constitution, signing statements provide notice how a President intends to enforce a law. According to the file on the ACS website, President Bush has used signing statements to lodge 1,047 objections to legislation signed into law.