I am not a lawyer


My Prediction

I just want to get it on record that this is how I think it comes out tomorrow:

1. A majority of the Justices decide that the Anti-Injunction Act doesn't prevent a ruling on the Affordable Care Act.

2. A majority of the Justices reject the medicaid challenge.

3. A plurality of the justices find the law to be severable

4. A 5-4 majority opinion authored by the Chief throws out the individual mandate on fairly narrow grounds but still manages to upset Commerce Clause jurisprudence seriously (see below), and makes a hash out of the Tax and Spend power.

5. Clarence Thomas writes a special concurrence saying the court doesn't go far enough in restraining Commerce Clause powers.

For the record, I can't for the life of me figure out how they are going to throw out the mandate. They can't do it without changing Commerce clause jurisprudence, and the dissents by in particular Breyer and Sotomayor will point that out. After this, it won't be clear exactly how things work with the regulation of interstate commerce for a good long while, and this will invite lots of new litigation on things that we had thought were long settled. As a result, in the next couple of years, unless we get an unexpected change on the court, we may see regulatory programs being struck down as exceeding the scope of the commerce power that have been in existence for decades.

But after tomorrow they're going to have to change the con law text books. There's no doubt about that in my mind.

EDIT: I was wrong. Thank god.

Everything Old is New Again


If an author has among his writings a musical composition, the only possible way of “securing” to him the “exclusive right” thereto is by giving him the monopoly of this musical composition, no matter in what form it may be represented; otherwise, he gets only a partial exclusive right thereto. No composer can be truly said to have “the exclusive right” to his musical composition writings secured to him so long as others have the right to publish, and sell them without his consent . . .

Leave off of that quote right there and it could be about digital file-sharing and made last week. However, the last six words are in fact "in the form of perforated music" and the statement was made in 1908 in a landmark Supreme Court case determining that player piano rolls did not fall withing the definition of a "copyrighted work" that was on the books at the time. In 1908, in the case White-Smith Music Publishing Company v. Apollo Company, the Supreme Court determined that technology had overtaken the existing law of copyright and the law as written did not cover the new technology.

Things They Don't Teach You In Law School

So they teach you a lot in Law School. You learn about contracts and how they are made, what makes them legitimate, what happens when they are breached. You learn about the procedure by which things happen in courts and the importance of getting your filings right and what happens when you get them wrong. You learn about property and criminal procedure and that the constitution doesn't protect as much as you think it does in some places, but protects a heck of a lot more than you think elsewhere.

But they never teach you what to do when everybody you know is wrong about something, doesn't understand why they're wrong about something, and get mad at you for not being wrong the same way they are because based on your political leanings they expect you to react the same way that they have.

That is really hard. And I think it's the reason a lot of lawyers either shut up about stuff or just decide to go with the reputation of being an asshole.

Dispatches From Occupied Tucson: Week 1

So I'd been meaning to write something about Occupy Tucson for a little while now, and the hope was that I could blog some about it on a day by day basis. Turns out that hasn't really been possible. Between school and some clinical stuff I'm doing and the Occupation, I haven't had a lot of time to reflect on what it all means. Now that it's Friday and I have some free time before the working group meeting I need to attend this evening, I feel the need to let the theorist in my brain run wild for a little bit and there are a few things that have struck me that I'd like to make a note of. Here they are in no particular order.

The Magician, The Priest, The Conjurer & The Lawyer: Law, Mysticism, Magic, and the Occult

I begin with my own personal definition of magic: magic is the explanation of last resort. I am, among other things, an amateur magician; or to put it another way, don't play cards with me for money. I use this concept of magic, tho, because it encompasses not only legerdemaine and conjuring as entertainment, but also magic as a subject of anthropological study: the practice of various believers in magic that exist and have always existed in human society. It also encompasses practices that, I think, the people who engage in them would hesitate to describe as magic. I'm thinking here of the sacraments of various christian churches, marriage rites, funeral rites and the like that are more generally thought of as religious rather than magical. My thinking about magic is intentionally wider than what I think most people would accept for various reasons, but most fundamentally it is to encompass in a single concept the resonant similarities I feel in my encounters within four cultural institutions that I see as making use of magic to accomplish their ends.

Marijuana Decriminalization: A Sketch of the Case in Favor

Fact: a lot of people like to get high. Whatever your position on the issue of Marijuana Decriminalization, I think we can start from a place of agreement on that basic premise: yes, Virginia, a lot of people like to get high. But here's another fact that may be a bit more controversial: Marijuana is good medicine for a lot of people. You may not know this, but this is a fact that's been recognized by the federal courts. There are a couple of people with serious degenerative diseases in America for whom the most effective treatment with the least damaging side effects is smoking marijuana. There aren't a lot of those folks, but there are some, and because of their situation as a result of a court settlement, a couple of people (I think the actual number is four), get regular shipments of Marijuana cigarettes from federal labs that grow pot for them.

Ok, so stipulate to that fact: for some limited, small number of people at least, Marijuana is extremely valuable as medicine. We can have a debate about the numbers, sure, but accept that there are at least a couple and we can have an important conversation.

And that conversation is about what do you do about the intersection of those two uses of Marijuana, on the one hand purely recreational and on the other objectively medically valuable.

How a person participates in that conversation, I would argue, has to do with their answer to a couple of fundamental questions: first, is there something wrong with getting high, and second based on the answer to that question, what do you do about the problems created by a particular subgroup of the folks who like to get high?

Why I Hate Firedoglake

So I just got an email from firedoglake, a blog that I started reading during the healthcare debacle of last year primarily because the editor was appearing repeatedly on The Rachel Maddow Show.

Here's what the email said:

A federally funded drug task force seized as evidence up to 200 petition signatures for marijuana legalization in Washington State in a series of early-morning raids this week. Seizing the petition signatures is bad enough. What's worse is what the task force did on its raids of a legal marijuana dispensary and its owner's home.

Drug agents handcuffed a 14-year-old boy and pointed a gun at his head. Then they took $80 from a 9-year-old girl's Minnie Mouse wallet that she earned for straight A's on her report card.

Now the drug agents - funded by the US Department of Justice - say they can only find two pages of the petition. But they had time to make photocopies of the petition, keeping the names and addresses of residents who signed.


The intended effect of this raid is to put a chill on other citizens from signing the petition, who will fear having their names and addresses exposed to a drug task force. It's intimidation, pure and simple. And your tax dollars are paying for it.

Now this all came as a bit of a surprise to me. As someone who follows the drug war fairly closely, I recalled that last year the Obama administration had made the decision that pursuing medical marijuana growers who were in compliance with state law was not a good use of federal manpower and that it would be de-emphasized. So it was surprising to me that this federal taskforce was going after a medical marijuana dispensary, particularly in my home state where attitudes about The Weed among law enforcement are in my experience pretty lax and where the City of Seattle has more or less decriminalized the possession of small amounts for personal use.

Oil Volcano

I watch these interviews with charter boat captains and shrimp and crab fishermen in the gulf. They're these tough, stoic guys who don't like all the attention they're getting. They're all on the verge of tears, trying to be as fair as possible, but they have this shell-shocked thousand yard stare that's just heartbreaking.

I don't know what else to say about this. A lot of times it's guys like this, fishermen, loggers, roughnecks and so on are opposed to environmental regulation because they're company men and what's good for the company is usually good for them. But now, looking at this, this is the reason why that logic is wrong.

I don't know where environmental politics go after this. The Valdez happened in Alaska and it was largely out of site out of mind. The Salmon and crab fisheries up there were huge but nowhere near the size of fisheries in the gulf. I don't know whether this is the wake up call that folks need to realize that corporations are not their friends, and that capital is something that needs vigilant and constant supervision. This, if the world were just, would kill the neo liberal and conservative friends of capital in the republican and democratic parties. I don't know that it will. I just know that people are suffering and that it could have been prevented. The reason it wasn't is because of greed, and it is the greed of our culture and therefore something in which we are all culpable.

Why I don't trust Kiva

Maybe you've seen the ads on Hulu of President Clinton touting this non-profit Kiva website that makes it possible for firstworlders to make microloans to borrowers in the developing world. It's also something that's been cycling through the google ads on this site. Not totally surprisingly, I actually have a big problem with this crap.