While Cameras Are Away The Mice Will Play

Given that Justices Thomas and Breyer chatted together on the far end of the bench during the oral argument I attended (colleagues have reported the same on other occasions), it is only appropriate that they brief the public on whether the Justices are open to cameras in the SCOTUS court room. I think the public would be very amused to watch their little side show. Wink, wink.

For more on this head over to the Wall Street Journal Online.

Just to be clear, this does not mean that I endorse cameras in the courtroom. In fact, I do not, and I think it would lead to the kind of grandstanding we see on the floor of Congress most days, for those of us nerdy enough to watch C-SPAN.

Willing To Live Worse

If this generation were willing to be the first generation to not live more prosperous than our parents, willing to quit putting bandaids on the problem and instead spend the next 40-60 years (2-3 generations) digging out of the national debt and financial folly, we could be the second greatest generation.

Will we sacrifice our present-day prosperity for the long-term solvency and prosperity of our nation for our children and our children's children? We must reject fear, embrace sacrifice, and have vision outside of ourselves.

We can survive this crisis without a stimulus that will save ourselves and doom those to come. What we are doing is like standing on the Titanic, pushing our kids back on the ship, and jumping into lifeboats to save ourselves.

Self-Control Rather Than State-Control

This week I heard cries from the left and the right that there should be a law passed to regulate how many eggs may be implanted during IVF treatment. While I question the judgment of a single mother with six children persisting in IVF treatment, leading to eight more children, she has a right to do so.

Do we want to live in a country that tells couples how many children they may have, or try to have, at one time? Do we want government regulation that is motivated by an outlier case? I don't think so.

Liberty is a precious thing. It allows for personal choice with a few exceptions (e.g., murder is not a personal choice we accommodate, nor is assault or battery). Liberty means that people will sometimes make choices that society in general thinks are not good choices, and my sense is that society in general thinks that Nadya Suleman made a bad choice when she continued IVF treatment. But, the beauty of America is that she was FREE to do so.

Ms. Suleman may be ill, as some have suggested, and the clinic that administered her treatment should take a hard look at their screening process to see if perhaps their desire for a sale did not trump their concern for her best interest and that of her children. As the Hippocratic oath instructs, "never do harm to anyone." The clinic could have turned her away, and perhaps should have turned her away, but I do not think that the government should mandate or regulate how many eggs may be implanted in wombs.

I recognize that preserving liberty means that we must engage in self-control, rather than state-control, and so let us rise to that challenge. As Lord Acton said, "Liberty is the prevention of control by others. This requires self-control and, therefore, religious and spiritual influences; education, knowledge, well-being."

As for Ms. Suleman, I hope that the local community and particularly the local religious community rallies to help her as she takes personal responsibility for her actions.

Dean Kenneth W. Starr Visits Penn State

Excitement was in the air at the Lewis Katz Building as Dean Kenneth W. Starr's visit approached on Tuesday, February 3, 2009. In December of 2008, Dean Starr filed a complaint in California to address the legal question whether Proposition 8 is a revision or amendment to the California State Constitution. Members of the LGBT community called upon ralliers from Altoona to Harrisburg to peacefully protest his involvement in Proposition 8. The great tradition of free speech in America was on full display at the law school through Dean Starr's speech and the protesters' rally.

Dean Starr was hosted by the Federalist Society, a national legal student organization that is committed to the principles that: (1) the state exists to preserve freedom, (2) the separation of powers is central to our Constitution, and (3) it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. More importantly, the Society is committed to attracting intellectually stimulating speakers to campus. Being provoked to think critically about a diversity of viewpoints is important for the next generation of emerging lawyers. The event was co-sponsored by the Young America's Foundation, Speaker's Trust, and the Dean's Office.

Since the law school's University Park location opened its doors in the fall of 2006, the Federalist Society has hosted debates and speeches addressing topics ranging from: immigration and the environment, to the International Criminal Court, gay marriage, and homeland security.

Dean Starr added to that fine tradition when he specifically addressed "The Supreme Court in American Life" to an audience of around 200. He believes that Americans currently either do not understand or misunderstand the role that the Supreme Court plays in our daily lives. He believes that to say that the Court is merely a political court is a misconception.

Dean Starr offered as an example a recent case where university funding was threatened if military recruiters were not allowed on campus due to the exclusion of openly gay and lesbian people in the military. In a unanimous decision on a topic that can be politically charged, the Supreme Court held 9-0 that the military has the right to recruit on campus.

Following his address, Dean Starr answered questions on topics ranging from Guantanamo Bay to the Second Amendment right at issue in D.C. v. Heller. Questions were submitted by those in the Katz Building Auditorium, in addition to students attending the event via simulcast from the Advantica Building in Carlisle.

Reflecting on the event, as one student said, "This was a Grand Slam for the law school." It was the first public event held in the Katz Building Auditorium, and I hope that Dean Starr's speech represents the first of many events that law students at Penn State will attend for generations to come.

A Positive Aspect To Audio-Visual Legal Education

We have all heard complaints about Audio-Visual (AV) classes at the law school. To be honest I don't think it's that bad, just distracting when invariably something goes wrong each class. We are used to it though. We say to each other, "Par for the course. It's AV. What else do you expect?" Once one accepts that fact, it starts to feel normal. Good? Not good? I leave that up to the comments section.

I draw your attention, however, to one very important and positive aspect to AV: the power to record and watch later. This never seemed all that important to me until this past week when three of my professors scheduled their final review sessions, all at the same time! It appears that Wednesday afternoon is hot real estate in the final review market.

The good news? Because of our stellar AV capabilities I will be able to attend all three sessions, though I will have to pick and choose which sessions to view live and which to view recorded. In an AV-less world I would have to choose which session to attend, send my partner-in-law-school-crime to the other session, and we would BOTH miss the third. Or, we could always send an ambassador to the third.

All this to say: HURRAY! I have found something that makes me so very glad we have AV. What say you? Is it enough to outweigh the random glitches and snafus throughout the year?

Back to the negatives, from the teaching perspective, if students know the session will be recorded the professor may end up reviewing to a room of empty seats and a video camera. Hence, the image.

"Debt Is The Slavery Of The Free" - Publilius Syrus

I emerge from studying to quickly draw our readers' attention to a recent fact noted by Bloomberg.com. "The U.S. government is prepared to lend more than $7.4 trillion on behalf of American taxpayers, or half the value of everything produced in the nation last year, to rescue the financial system since the credit markets seized up 15 months ago."

This fact is placed in greater perspective by an additional fact: the national debt (accrued from the late 1700's until today) as of 6:30 p.m. GMT on November 24th was $10.6 trillion plus. A little more perspective: the national debt has continued to increase an average of $3.93 billion per day since late September 2007.

For more on the national debt, check out this foundation which is presided over by David Walker. Walker served as Comptroller General of the United States and head of the Government Accountability Office (GAO) from 1998 to 2008. According to Walker, the "real" national debt is closer to $52.7 trillion. Considering his position within the government for the past ten years, I consider him a reliable source.

Back in September I wrote a post, to which I commented that my preferred course of action is: Let Them All Fail. In other words, do nothing (from the government's perspective). Click here to watch Peter Schiff, again on Bloomberg.com, make a similar argument in light of the fact that we are already so deeply in debt.

Flabbergasted

Ideology aside, I am shocked by the reaction to the passage of Prop 8 in California via the very democratic process of the people voting. If the outcome is not favorable to some, there are other democratic processes by which to change that. Recall that Prohibition was later repealed by a constitutional amendment when the wisdom of the earlier amendment was called into question. We live under the Rule of Law, which as Judge Smith of the 3d Circuit recently reminded students at the law school, is a law of rules.

There are rules that we follow. There are ways to amend constitutions and ways to repeal those amendments. I encourage all those raging about Prop 8 to gather their senses and accept the current will of the people. Almost half of the country did not vote for President-elect Obama on November 4, but those who lost accepted the will of the people as such and resolved to respect that decision. Respecting the outcome of elections is critical to our success as a peaceful and law abiding people.

I heard San Francisco's Mayor, Gavin Newsom, suggest in an interview on CNN that perhaps Prop 8 was not a constitutional amendment and that the issue is now up to the California Supreme Court to decide. I merely refer the Mayor and any readers of this blog to a voter guide issued by California State itself. The website makes it clear that at least before the election's outcome the Secretary of State thought that Prop 8 was a constitutional amendment. Perhaps history will be re-written by four or more of the California Supreme Court's seven members.

History Made

Congratulations to President-elect Barack Obama for being the first African American in our nation's history to secure the Presidency. Not only did he win, but he won decidedly with the electoral college going in his favor, 2 to 1. What an awesome day for everyone in our country to see that as a people we can rise above the sins of our past.

For those who are Republicans, you have experienced four to eight years of bitterness on the part of Democrats towards President Bush. I call upon you to not give in to the temptation towards bitterness, cynicism, and fear. Instead, support President-elect Obama when you agree with his policies and speak with passion but respect when you disagree.

It's going to be an interesting four years. I know that in the years to come my children and grandchildren will ask me what I did on my watch. I want to be able to look them in the eye and have no regrets.

"All The Mavericks In The House Put Your Hands Up!"

For those of you who have been watching SNL, Amy Poehler did a great skit a couple of weeks ago where she rapped, "All the Mavericks in the house, put your hands up! All the plumbers in the house, pull your pants up!" I thought it was great and hilarious. On Tuesday night, 7,500 central Pennsylvanians showed up at Rec Hall to watch a Maverick not only put her hands up but also raise her voice in defense of conservative principles and policies.

Sarah and Todd Palin came on stage around 9 p.m. to a crowd that was energized by Zombie Nation and shouting, "WE ARE PENN STATE." I think they weren't sure what to expect that late at night in Happy Valley, but one thing is for sure . . . the Valley wasn't sleepy!

Due to my husband's insistence upon getting in line very early (thank you, honey) we got GREAT seats and were able to shake hands with the Palins as they walked onstage. It was an honor to shake hands with the second female VP candidate in American history. I missed Geraldine Ferraro in 1988, that was 20 years ago. Let's hope this isn't a once-every-twenty-years phenomenon, right ladies?

One picture shows me handing the Governor a notebook to sign for a little boy who was standing behind me while my husband looks over my right shoulder. The other picture is of Todd helping the Governor sign paraphernalia. The white shirt under her arm is a Lady Lions jersey. She was thrilled to meet them, being a basketball player herself, and posed for pictures with the team.

It's a Deal

Early this morning, as most Americans slept perhaps restlessly in light of the current crisis, Congress came to agreement on a plan that has a little of what everyone was looking for: (1) big money injected quickly into the market (2) limits on golden parachutes for executives of failed firms (3) stock warrants for the government in return for the bailout (4) and as a nod to the House Republicans a market-based solution through insurance alternatives to the government buying distressed securities.

The details have yet to be put in writing, and that is the task for Sunday. Perhaps the market will know where things stand by the time the bell rings Monday morning. I have a feeling it will be years before we fully comprehend the effects of this momentous occasion.

More here at Breitbart.

Discourse, Please, Not Drama

Whether you like the personalities on either side, or the respective interests they represent: an African-American on the Democratic ticket, a woman on the Republican ticket, and two old white guys on both tickets, this election should not be about race, gender, age, style, pop culture popularity, celebrities, scandals, or the like. What this election should about are policies, and where the two parties' policies will take our country over the next four years.

The choice, as I see it, is clear: should the American government be responsible for helping the American people, or should the American people be left with the responsibility of helping the American people? If the former, your ticket is Obama-Biden, if the latter, your ticket is McCain-Palin. It has nothing to do with the people, the color of their skin, how many kids they have, or anything else. It has everything to do with whether you think government should solve American's problems, or whether you think that Americans with the help of other Americans around them should solve their problems.

Senator Obama and his wife, Michelle, are perfect examples of the success that is possible when you are surrounded by a caring and invested network of people (for most people this comes in the form of family). The Obamas did not succeed because of the government, they succeeded because of the dedication of their families and their own hard work. They got where they are, despite their humble beginnings, not because the government helped them, but because Americans around them helped them. Why they think that formula should change and somehow won't work for the next generation is not clear to me.

I believe that Americans are generous and if left more of their own money (rather than being taxed at high percentages) they will use that money to help their fellow Americans. Not for accolades, but for street cred, I want you to know where I am coming from and that I put my money where my mouth is. Every year for the past four years my husband and I have donated around 18% of our annual income. I was not born with a silver spoon in my mouth, I am first generation higher education and have done everything from delivering phone books for cash to working in a law firm. I, like the Obamas, have been supported by a network of caring Americans who helped me along the way, and my goal is to pay it forward.

The difference between Senator Obama and me is that he wants me to give the government my money in the form of taxes so he can pay it forward for me, to who he wants to, when he wants to, with no reporting back to me as to the success of or return on the investment. I, on the other hand, want to "invest" my philanthropy dollars into organizations and people that I know, from having my own boots on the ground, are making a difference and having an impact in people's lives. The more the government leaves in my pocket, the more I have to pay forward.

Government should build our roads, provide infrastructure for growth, and fend off our enemies at the borders and abroad. Other than that, the American people should be left alone to take care of themselves and each other. You know you can take care of your neighbor better than a government office can, that's common sense! You can do it, we all can do it, we don't need the government to do it.

I add the caveat that the Republican party is not exactly the party of less government interference these days. With recent bailouts, corporate welfare seems to be on the rise. The Republicans, however, are still on the whole less inclined towards socialism than Democrats.

Click here for a related article, "It's Not About the Issues."

Progress

Regardless of where you are on the political spectrum, it is worth noting the historic event taking place this evening. Tonight, forty-five years after Dr. Martin Luther King's "I Have a Dream" speech, Senator Barack Obama will accept the Democratic Party's nomination for President of the United States. This is tremendous progress and something that I think Dr. King would have been proud to see happen. This race is not about race, or at least it should not be and I do not intend to make it, but the event taking place this evening says a lot for America and her ability to change and move forward. I love our country.

Senator McCain too noted the importance of this occasion.

Free Exercise, Free Speech, and "Mere Religious Worship"

I am admittedly fond of Justice Clarence Thomas and the unique role he plays on the Court. He's the only Justice who feels no need to ask questions from the bench during oral argument and doggedly continues to argue for a strict interpretation of the Commerce Clause. As with the other eight Justices, he is no doubt a substantive player.

With that said, as I researched and wrote a recent article I found myself asking, "CT, what were you thinking?!" The case is Good News Club v. Milford Central School, 533 U.S. 98 (2001). The issue was whether a religious club could conduct its activities after school on school premises. The Court held under the Free Speech Clause that the Club's speech (focused on, inter alia, the teaching of moral values) was allowable content within the forum, and that denying the Club access to the space was unconstitutional viewpoint discrimination.

Okay, so far so good, but in Footnote Four things got sticky. Justice Thomas, writing for the majority, made the following statement: "In any event, we conclude that the Club's activities do not constitute mere religious worship, divorced from any teaching of moral values." Id. at 112 n.4 (emphasis added). This statement raises the unspoken question: What if the Court HAD found the Club's activities to be "mere religious worship?" What a can of worms has been opened! Who gets to determine what is allowable religious speech and what is forbidden "mere religious worship?" What will be the effect of this brief, yet provocative and potentially powerful statement?

One need look no further than the Second and Ninth Circuits to see that courts are seizing upon this language. They are at least flirting with relying on FN4 to uphold state regulations and procedures that forbid the exercise of "religious services" and "religious worship services" in public spaces. See Bronx Household of Faith v. Bd. of Educ. of N.Y., 492 F.3d 89 (2d Cir. 2007); Faith Ctr. Evangelistic Church Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007). The trend emerging from these two cases puts religious groups in a quandary as their protection under the Free Speech Clause is eroded by application of FN4 in Good News Club.

Perhaps I will address my suggested solution in a later post. For now, chew on what you, as a lower court judge, would do with FN4 and how you would define "mere religious worship." Talk about a hot potato, but is it too hot to touch? Apparently some judges are willing to take the risk that when the music stops playing they will be the one holding the potato.

See my working paper on this topic.