Judicial Clerks' Personal Opinions: An Oxymoron?

On Thursday Judge Lynn Adelman spoke about judicial clerks and how their philosophies and opinions inform their work for judges. Judge Adelman is a Columbia Law alum ('65) and was a Wisconsin state senator from 1977 to 1997. He was nominated by President Clinton to the U.S. District Court for the Eastern District of Wisconsin in 1997.

Judge Adelman believes that while there is generally no litmus test for hiring clerks, often the best working relationships will be between judges and clerks with similar orientation. Group affiliations may give the judge a clue as to whether there would be working chemistry, but often the hiring process is still a gamble on both ends. When the clerk and judge have complimentary attitudes, the clerk will be well situated to help the judge push a decision in one direction or another.

He gave examples from two cases where his clerks provided useful insight on politically charged issues. In the first, a case of substitute counsel, the state trial court did not give the defendant's new lawyer adequate time to prepare his argument. A clerk interpreted the state court's holding as an unreasonable interpretation of the facts, and this interpretation allowed Judge Adelman to reverse where he felt justice so demanded.

The second, a case of fraud and sentencing guidelines, hinged on the interpretation of "advisory" in United States v. Booker, 543 U.S. 220 (2005). One of Judge Adelman's clerks aided him in maneuvering around a decision by a former Scalia clerk, district judge Paul Cassell. His clerk penned a refutation of overly strict adherence to the formerly mandatory guidelines, which allowed for a more contextual analysis of the situation at hand before sentencing.

Votes We Can Believe In, Part 2: How You Can Make Every Vote Count

On Tuesday, ACS welcomes Scott Novakowski for Votes We Can Believe In, Part 2: How You Can Make Every Vote Count, a discussion about obstacles voters will face next Tuesday and what is being done to address them. Mr. Novakowsi is a Senior Policy Analyst with the Democracy Program at DEMOS, where he works on issues related to the National Voter Registration Act and ensuring that historically marginalized populations have access to voting.

Mr. Novakowski began by describing voter roll purging. When done properly, purging keeps the voting rolls clean. The National Voter Registration Act tells states how to perform purging and prevents states from purging within 90 days of an election. Howevever, a recent Brennan Center study found that voters who are purged are not notified and that the process is prone to error. The study noted that the purging process is often performed with great secrecy and as a result not much is known about how states go about it.

Another important process is database matching, which is used to create purge lists and satisfy the requirements of the Help America Vote Act, which requires states to create centralized databases of voters. However, states are using this information to strike voters whose information does not match up perfectly. Yet, human error in the entry of data or completion of forms is almost always responsible for data not matching correctly. Mr. Novakowski noted that Florida has a no-match, no-vote law and that a suit in Ohio for similar enforcement is underway.

In terms of what to anticipate for Election Day, Mr. Novakowski said that there will be very long lines in many places across the country. Not only are many jurisdictions unprepared for what will be unusually high turnout, but election resources are seriously misallocated. A result may be that many voters end up casing provisional ballots. While this is better than their not being able to vote at all, a provisional ballot is not a guarantee that a vote will actually be counted. In 2004, for example, one out of three ballots were not counted.

This Week @ ACS

Votes We Can Believe In, Part 2: How You Can Make Every Vote Count

Tuesday, Oct. 28, 12:15 p.m.
JG 106

The past few election cycles have seen countless acts of intimidation and deception at the polls to prevent low-income and minority voters from exercising their right to vote. What obstacles will voters face this year, and what is being done to overcome them? Scott Nowakowski, Senior Policy Analyst with the Democracy Program at DEMOS, will speak about Demos's work on voting rights, election reform and democracy-related issues in the United States.

Non-pizza lunch will be served!


Judicial Clerks' Personal Opinions: An Oxymoron?
a talk by Judge Lynn Adelman

Thursday, Oct. 30, 12:15 p.m.
JG 103

Columbia ACS is very excited to welcome Judge Lynn Adelman (ED-WI) to campus to speak about judicial clerks and how their philosophies and opinions influence their work for judges. Come with questions and take this opportunity to chat with a sitting judge!

Judge Adelman is a Columbia Law alum ('65) and was a Wisconsin state senator from 1977 to 1997. He was nominated by President Clinton to the U. S. District Court for the Eastern District of Wisconsin in 1997.

Of course we will have food for those in attendance.

New ACS Board Members

Columbia ACS would like to congratulate the following 1Ls on their selection to the ACS Board:

Board Reps:
Ron Balfour
Taylor Kirklin
Lisa Knox

Finance Assistant:
Helen Mayer

Media Assistants:
Ken Aulet
Zach Weintraub

Debate Watching Party Tonight

When: TONIGHT, Wednesday, Oct. 15, 8:30 – 11 PM

Where: Lenfest Café

Join the American Constitution Society, CLS Republicans, Federalist Society, IMPACT, ACLU, and CLS Democrats to watch the final presidential debate between Senator McCain and Senator Obama. Come enjoy the pizza, beer, and other drinks. Come to join yourclassmates and fellow political enthusiasts to watch this important debate. Come to learn where the candidates stand on important issues. All members of the CLS community are invited!

Labor and the Economy: The Employee Free Choice Act

Yesterday, ACS and the Federalist Society presented Labor and the Economy: The Employee Free Choice Act, a debate between Richard Epstein and Mitchell Rubenstein.

Leading off, Mr. Rubenstein described the three main features of the Employee Free Choice Act: the legalization of card-check elections for union recognition, mandatory arbitration of the first contract reached by the union, and stricter penalties for violations of the Labor Relations Act. Card-check elections, where a union can win representation by obtaining he signatures of a majority of workers rather than through a formal election, dominated the debate. Mr. Rubenstein stressed the ability of employers to campaign against union representation, on company time, as a significant abuse that requires card-check elections as a remedy. Additionally, he stressed that 45% of new unions are unable to reach agreements with their new employers, leading to the new first-contract arbitration requirement.

Mr. Epstein in response argued for the repeal of the Labor Relations Act, and a return to the pre-1935 common-law rules on union organizing. Specifically, allowing employers to condition employment on employees not joining unions (formerly known as yellow-dog contracts). His argument stressed economic reasons – the (alleged) greater efficiency of non-union companies creates an economic argument that unions tend to destroy companies and industries they have traditionally dominated, using the American steel and automotive industry as examples. Unions, in Mr. Epstein’s view, should be required to create a win-win situation for the employer in order to win recognition – the unions ought to create incentives for the company to recognize them. Additionally, he charged that card-check elections, since they could be conducted effectively in secret, would force companies into permanent warfare mode against unions, wasting everyone’s time and greater amounts of money.

Mr. Rubenstein’s rebuttal focused on the distinction between economic arguments – that unions impair overall economic efficiency – with social arguments; that the social gains from unions, in equality, expanded power to the middle class, and the like override economic concerns. The argument between the two was essentially one of economic goals vs. societal goals, with Mr. Rubenstein arguing that the societal gains from unions outweigh the economic gains, and Mr. Epstein arguing that societal gains are essentially indefinable, and that the economic gains from greater efficiency makes everyone better off.

EVENT TODAY

Labor and the Economy: The Employee Free Choice Act

(Tuesday, October 14, 12:10 - 1:00 PM, JG 103)

The American Constitution Society and The Federalist Society present a
lunch debate featuring:

Richard Epstein
Richard Epstein is the James Parker Hall Distinguished Service
Professor of Law at the University of Chicago, where he has taught
since 1972. He served as Interim Dean from February to June, 2001.
He has also been the Peter and Kirstin Bedford Senior Fellow at the
Hoover Institution since 2000.

AND

Mitchell Rubenstein
Mitchell Rubenstein is Senior Counsel for New York State United
Teachers. He also teaches courses on Labor Relations and Employment
law as an adjunct professor at New York Law School.

Non-pizza lunch will be served!

This Week @ ACS

This Week @ ACS:
1. Lunch debate: Labor and the Economy: The Employee Free Choice Act
2. Presidential Debate-Watching Party!
3. ACS Membership Party!
4. Tabling in the law school Monday through Wednesday this week
5. Volunteer to Protect Voting Rights on Election Day

1. Labor and the Economy: The Employee Free Choice Act

Tuesday, October 14, 12:10 - 1:00 PM, JG 103

The American Constitution Society and The Federalist Society present a
lunch debate featuring:

Richard Epstein
Richard Epstein is the James Parker Hall Distinguished Service
Professor of Law at the University of Chicago, where he has taught
since 1972. He served as Interim Dean from February to June, 2001.
He has also been the Peter and Kirstin Bedford Senior Fellow at the
Hoover Institution since 2000.
AND
Mitchell Rubenstein
Mitchell Rubenstein is Senior Counsel for New York State United
Teachers. He also teaches courses on Labor Relations and Employment
law as an adjunct professor at New York Law School.

Non-pizza lunch will be served!

2. Presidential Debate-Watching Party!

Wednesday, October 15, 8:30 p.m., Lenfest Cafe

Join ACS and other CLS political groups to watch the third and final
Presidential debate! Beer and pizza will be served.

3. ACS Membership Party!

Thursday, October 16, 9 p.m., at 526 West 112th Apt. 51.

Come meet others involved in ACS, make bad law school jokes about your
favorite justice, and pre-game for bar review.

The party is free for ACS National members--one of the many perks of
ACS membership. You can join by paying the $10 membership dues at the
ACS table this week on Monday, Tuesday, or Wednesday from 11-2, or at
the party.

4. Membership Drive Tabling!

ACS will be tabling on Monday, Tuesday, Wednesday in the law school
hallway from 11-2 p.m.

Stop by this week to sign up to be a member of ACS National if you
haven't done so already, or just to chat if you have. We could use the
company. Send your friends by, too! Membership is only $10 for the
year for students and allows you to attend the National Convention,
our member parties and other exciting and exclusive ACS events that we
will come up with shortly.

5. Volunteer to Protect Voting Rights on Election Day

The Lawyers' Committee for Civil Rights Under Law ("Lawyers'
Committee") and its coalition partners seek volunteer New York City
attorneys, paralegals and law students to assist in Election
Protection on Tuesday, November 4, 2008. Election Protection is the
country's largest non-partisan voter protection program and is
supported by a national coalition that works throughout the year to
break down barriers to the ballot box for traditionally
disenfranchised voters.

To that end, the Lawyers' Committee and its partners are seeking legal
volunteers in the New York City area to staff the 1-866-OUR-VOTE
hotline and provide live assistance to voters who have questions or
need to report problems with voting. While the voter hotline serves
all voters across the country, it targets traditionally
disenfranchised communities, including African Americans, Asian
Pacific Americans, Latinos, Native Americans and other racially and
ethnically diverse communities, seniors, young people, low-income
voters and individuals with disabilities.

In addition, volunteer attorneys, paralegals and law students are
needed to serve as Mobile Legal Volunteers ("MLVs"). MLVs work in
teams of two, monitoring zones of 4-10 polling places, responding to
incidents reported through the hotline and assisting voters at the
polling place.

Potential problems include dissemination of misinformation by poll
workers, problems associated with voting machines (including new
electronic ones) and potential intimidation of voters.

To volunteer, please sign-up directly at
http://www.nationalcampaignforfairelections.org/page/s/vol08ep.

Maintaining Property Rights within the Context of Environmental Protection

Today, ACS joined the Federalist Society in presenting Maintaining Property Rights within the Context of Environmental Protection, a debate between Roger Pilon and Doug Kendall. Mr. Pilon is the founder and Director of the Center for Constitutional Studies at the Cato Institute. Mr. Kendall is the founder and Director of the Community Rights Council. (Mr. Kendall also spoke at a ACS event last year, Reclaiming Our Progressive Constitution.)

At the heart of the debate was under what circumstances the government should have to constitute property owners when enacting statutes that impact property owners' bundles of rights. Mr. Pilon spoke first and argued that when the government created regulations that limited how a property owner could use their property, this was a taking that must be compensated, unless the government was responding to a nuisance with external impact (as this would be an exercise of police power, not a taking). When the government is creating a new public good, he argued, it should not simply be billed to property owners by removing their property rights.

In his response, Mr. Kendall sought to demonstrate that at the crux of this debate about regulatory-takings is the fact that the relevant regulations are not simply removing sticks from property owners' bundles, but working towards important public protection. For example, he explained that in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the state statute limited Lucas' development rights in order to protect all property from increased risk of harm in the face of a hurricane. He also argued that framers did not view property rights as absolute, but saw them as moderated by overarching community concerns. In our modern extremely interconnected world, individuals' decisions to use their property in certain ways has tremendous impacts for our society as a whole, and these impacts should not be ignored when considering the extent of property rights.

Packing Heat: The Individual Right of the Second Amendment

Yesterday, ACS joined FedSoc in presenting Packing Heat: The Individual Right of the Second Amendment, featuring Alan Gura and Carl Bogus. Mr. Gura represented Heller before the United States Supreme Court in D.C. v. Heller and Mr. Bogus is a Professor of Law at Roger Williams Unitersity School of Law.

For those who which to learn more about the argument presented by Mr. Bogus, it is more fuly described in The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309 (1998). Believing that the Second Amendment would be alive and well, and protect important state interests, under a collective rights interpretation, he explains what issues the Second Amendment would speak to today in What Does the Second Amendment Restrict? A Collective Rights Analysis, 18 Const. Comment. 485 (2001). Because the Heller majority opted for the individual rights interpretation, perhaps the most timely question is what the decision means for public safety. Mr. Bogus has also written on what kinds of gun control are most effectice - Gun Control and America's Cities: Public Policy and Politics, 1 Alb. Gov. L. Rev. 440 (2008). The Columbia ACS Blog thanks Mr. Bogus for these suggestions for further consideration (and his descriptions thereof). .