Tuesday, February 09, 2016

Legal debates...

First: "What's harder, for a man to do 30 pushups or a woman to do 14?"  That's from Althouse discussing the 4th Circuit case of Bauer v. Lynch, which addresses the requirements for the FBI:
"Whether physical fitness standards discriminate based on sex, therefore, depends on whether they require men and women to demonstrate different levels of fitness.... [T]he numbers of push-ups men and women must complete are not the same, but... the fundamental issue [is] whether those normalized requirements treat men in a different manner than women.... [A]n employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each."

Second, is Cruz eligible to be President?  From Harvard Law Today:
“Cruz claims that the narrow, historical meaning of the Constitution is literal, except when it comes to the ‘natural born citizen’ clause,” said Tribe, who taught Cruz when he was a student at HLS in 1994.
The crux of the matter is that the Constitution, in Article II, Section 2, Clause 5, states that “no person except a natural born citizen” can be president.
Under English common law, upon which U.S. law was based, a “natural born citizen” would be someone born on American soil. For Tribe, according to this definition, Cruz does not qualify. He compared Cruz to Alexander Hamilton, a founding father who was born in St. Croix, Virgin Islands, but qualified as a U.S. citizen at the time of the adoption of the Constitution, and former presidential candidate John McCain, who was born in the Panama Canal Zone when it was under U.S. control.
“Unlike Cruz, McCain was born in U.S. territory,” said Tribe. “And unlike Cruz, McCain was born to two U.S. citizens, parents who had been deployed to the Panama Canal Zone by the military to serve the country.”
But for Jack Balkin ’81, a constitutional law professor at Yale University, Cruz is a “natural born citizen” because under U.S. immigration law in 1970, he automatically became an American because his mother was one. The law grants birthright citizenship to a child born overseas if one parent is a U.S. citizen.
I think question 1 might get more commenters' blood boiling...

Monday, February 08, 2016

Monday morning update

So like the rest of you, I watched the Super Bowl and the commercials.  zzzzzzzzzzzzz

What a snoozer.  Seemed more like a Thursday night Raven/Titan game than the Super Bowl.

Politics this weekend was far more entertaining.

Of course, you had SNL with Larry David/Bernie Sanders:

But the better comedy was at the GOP debate:

In terms of the actual debate, I thought Marco got crushed in this exchange:

Thursday, February 04, 2016

Docs v. Glocks going en banc

Here's the order.

The third opinion was back in December.

Jordan and Pryor agree...

...that sleeping during a murder trial is not ineffective.  After a strenuous debate earlier in the week (Jordan v. Pryor), we get this per curiam unpublished doozy (Julie Carnes also joined):
We issued a certificate of appealability to address Williams’s argument that “he was denied his Sixth Amendment right to counsel when his counsel allegedly dozed or slept during a part of [his] trial.” Because it was not an unreasonable application of clearly established federal law for the state trial court to conclude that Williams was not prejudiced by counsel “[falling] asleep a couple of times” while the state replayed a recording of an interview that was cumulative to earlier testimony from the interviewee, we affirm.

Despite Rumpole's objections, the opinion starts with a description of the crime:

When Austin Joseph Paine intercepted burglars in his home, they shot and killed him. Chad Michael Leon afterward overdosed on morphine and checked himself into a hospital, where he implicated himself, Williams, and Randy Carter Jr. in Paine’s murder. Leon later showed officers where in the ocean he had discarded a revolver and a semiautomatic firearm used by Williams and Carter.
 Here's the analysis:
In the absence of controlling precedent, fairminded jurists could disagree about whether a defendant is entitled to a presumption of prejudice because defense counsel, who was otherwise actively engaged in the trial, “fell asleep a couple of times” while the jury listened to a recorded interview that was cumulative to testimony earlier provided by the interviewee.

Wow.  All I have to say is: zzzzzzzzzzzzzzzzzzzzzzz

Wednesday, February 03, 2016

It's a very old Supreme Court

Four Justice are older than 75.  This op-ed wonders whether that's a problem.  It certainly will be a big deal for the next President.  From the conclusion:
The problem of an aging judiciary extends beyond the Supreme Court to the hundreds of elderly federal judges across the country. The average age of these jurists is now over 70, with many in their 80s and 90s. The 94 U.S. district courts and 13 courts of appeals decide more than 98% of all cases with federal jurisdiction, so the continued mental acuity of these jurists should be a concern for all of us who use interstate commerce or expect due process.
If there's a silver lining, no pun intended, it's that some of these jurisdictions have implemented programs to promote sharpness in judges as they age. The 9th Circuit Court of Appeals, for instance, offers a battery of mental health assessments, hosts discussions with neurological experts and has created a hotline where staff may report signs of cognitive decline in their colleagues. Such measures are necessary because it's hard for friends and family members, let alone the individual in question, to know if a tendency to, say, forget one's keys is innocuous, or portentous.
Unfortunately, the 9th Circuit program and a handful of others across the country exist in isolation, as there is no judiciary-wide strategy to cope with cognitive decline. That should change. Chief Justice Roberts should use his authority as head of the federal judiciary to require his high court colleagues and others to undergo regular mental health checkups.
Further, he could recommend a judicial retirement age of 70 or 75, as is done in the rest of the Western world. He and future nominees to the bench could even pledge to serve for no more than 18 years, as has been suggested by constitutional scholars and interest groups on the left and right as a reasonable limit on judicial tenure.
Our court system and the law benefit from the wisdom of judges with many years of experience. But the federal judiciary, especially given congressional dysfunction, is simply too important to leave in the hands of old fogeys.
Our district has gotten a lot younger recently.  What judge would you rather appear before -- old or young?