Amici Curae: Pragmatism, Pollution and Prostitutes Edition

Pragmatism: The New Ideology
When U.S. Supreme Court Justice David Souter announced his retirement earlier this year, some liberals openly hoped that President Barack Obama would choose as his replacement a judge who would augur a fierce intellectual revival for the high court’s moribund liberal wing. By those aspirations, Sonia Sotomayor would appear to disappoint, as Jeffrey Toobin notes in this week’s New Yorker. “I don’t think that she has an ideology — that’s what was so great about her,” he quotes an Obama administration official as saying. Moreover, Sotomayor may be an indication of what will become the “Obama template” for further judicial appointments, whereby “pragmatism” steps in for ideology. Toobin concludes that the choice of Sotomayor represents a broader shift in the liberal legal agenda, one that recognizes that the activist Warren era is long over and a more circumscribed role for the courts is in order. Jeffrey Rosen, in an excellent piece in The New York Times Magazine earlier this year, traced this new breed of thinking back to a single meeting in 2005 (see below for more).

The Constitution in 2020
David S. Law argues in Balkanization that constitutional theory is in need of a paradigm shift. In considering several “grievous calamities of the last century,” including war, famine and genocide, Law concludes that it is not nature, but “our technologies of government that fail us catastrophically.” Identifying “constitutional successes” and “constitutional failures,” Law suggests we do two things: “The first is to articulate the criteria of constitutional success, or the goals that constitutional policy should aim to achieve. The second is to identify the constitutional choices that best advance those goals.” Law’s piece is part of a series leading up to “The Constitution in 2020,” a conference to be held next weekend at Yale Law School. The event is a reunion of sorts for scholars who in 2005 first articulated an alternate theory to traditional liberal jurisprudence, what they termed “Democratic Constitutionalism.” (See Jeffrey Rosen’s piece, also mentioned above.)

The Alberta Hate Speech Challenge
Will a ruling to strike down Alberta’s hate speech provisions undermine the criminal hate speech principles established in R. v. Keegstra, [1990] 3 S.C.R. 697? Jennifer Koshan worries that such a ruling in favour of the appellants in Boissoin v. Lund, currently before the Alberta Court of Queen’s Bench, might do just that. Koshan illuminates the defects in the appellants’ claim that Alberta’s human rights code is ultra vires, an encroachment on federal criminal law powers, and further argues that any enforcement authorized under the legislation is remedial, not punitive, in nature. If these arguments fail and the hate speech provisions are struck down, Koshan says, “the issues in Keegstra surrounding the constitutionality of the criminal provisions against hate speech may be revisited as well.” Even if this doesn’t happen, she adds, the loss of hate speech provisions in the Alberta human rights code would leave the criminal courts as the only, perhaps severe, means of addressing such problems.

An Inconvenient Tort
Setting the stage for a monstrous dilation of the right to quiet enjoyment, the U.S. Court of Appeals for the Second Circuit has reinstated two public nuisance suits brought by New York City and eight states, among others, against major utilities for their coal-burning plants’ contributions to global warming. The panel’s remaining two judges (Sonia Sotomayor got a better job) held that the actions could proceed to trial, notwithstanding the absence of guiding federal policy or, as per the defendants’ argument, a cross-state nuisance so “immediately harmful” as to have “justified war at the time of [its] founding.” New York Attorney General Andrew Cuomo calls it a “game-changing decision … reaffirming our right to take direct action” against polluters. The court’s decision “opens up a whole new avenue by which environmentalists can seek to compel major emitters to modify their global warming-causing behaviour,” argues the Constitutional Accountability Center’s Warming Law Blog. But it also notes that some climate change activists, foreseeing an unhappy appearance before a conservative Supreme Court, aren’t quite as pleased about the decision as Cuomo is.

Ignoring the Courts in Europe
A recent report presented to the European Parliament indicates that EU member states are failing to implement judgments of the European Court of Human Rights in a timely fashion, notes Antoine Buyse in the ECHR Blog. Buyse reports that implementation rates appear to be worse than in previous years and noncompliance involves member states from all over Europe, both original signatories and more recently entrants to the club. “All in all, [it is] a very worrying trend,” he concludes.

Obama and Bush … agreeing on the law?
President George W. Bush was often portrayed as blithely pushing aside international law in the name of U.S. national interests. Not only is such a characterization somewhat unfair, President Obama is likely to act quite similarly, argues Eric Posner, writing in Foreign Policy. Indeed, he suggests, Obama is already doing it, citing Obama’s lack of support for the International Criminal Court and the continued detention of “enemy combatants” without trial in Iraq and Afghanistan. “Obama has provided some symbolic support for international law in a few ways, but where it counts … he has expended no political capital,” Posner notes. “Don’t expect this to change.”

Tortured Lawyering
In The New York Review of Books, David Cole takes issue with U.S. Attorney General Eric Holder’s announcement last month that he would not prosecute “anyone who acted in good faith and within the scope of the legal guidance given by [the Justice Department’s] Office of Legal Counsel regarding the interrogation of detainees” held in the aftermath of the September 11 attacks. There is deep irony, Cole argues, in Holder’s invocation of “good faith” in the context of the OLC, whose lawyers “contorted the law to authorize precisely what it was designed to forbid.” Cole argues that, in the so-called “torture memos” issued between 2002 and 2006, the OLC exemplified the very worst about the practice of law — John Yoo et al toadied to power and “used law not as a check on power but to facilitate brutality, deployed against captive human beings who had absolutely no other legal recourse.”

Eats, Shoots and Judges
Above the Law reports on an inspiring example of a new, grammar-based jurisprudence developing in Florida. District Court Judge Gregory Presnell threw his Strunk and White at lawyer David W. Glasser for soiling the court with a wretchedly drafted motion. In his order, Presnell denied Glasser’s motion, in part on the grounds that the document was “riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible.” After ordering Glasser to reread all federal and local rules of civil procedure, the judge delivered a nice coup de grace: he ordered Glasser to show the order, with copies of the red ink-drenched motions, attached, to his lucky client.

This just in: Prostitutes are not tax deductible
A veteran New York tax lawyer lost his legal battle to claim tax deductions against more than $100,000 he spent on prostitutes and pornography, Robert J. Ambrogi notes over at’s Legal Blog Watch. The lawyer claimed the amounts as medical expenses, but the U.S. Tax Court had none of it, stating flatly: “Petitioner’s payments to various prostitutes were personal expenses not prescribed by a doctor and not intended to treat a medical condition. Petitioner is not entitled to deductions for these amounts.”

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