Amici Curiae: The Money Talks, Unenvironmental Law and There’s an App for That Edition

Let Money Talk
The U.S. Supreme Court delivered a “blow to democracy” in a “disastrous” judgement yesterday, The New York Times editorial board declared, urging the U.S. Congress to “act immediately to limit the damage of this radical decision.” In its bitterly-divided 5-4 ruling in Citizens United v. Federal Elections Commission, the high court found restrictions on so-called “independent” or third-party spending by corporations to be unconstitutional. Companies are now free to spend their money on election advertising without limit, though prohibitions on direct contributions to candidates remain. As Daniel Fisher of Forbes suggests, the decision “can be summed up in a few words: ‘Money talks. And that’s OK.’ ” In making their decision, the Supremes overturned two important precedents, one as recently decided as 2003. Justice (and perennial swing-vote) Anthony Kennedy authored the opinion, but observers recognized the judgement would not have been possible but for Chief Justice John Roberts and Justice Samuel Alito, both of whom were appointed by President George W. Bush in recent years. Justice John Paul Stevens, joined in dissent by the other three members of the court’s traditional liberal wing, read his strongly-worded opinion from the bench, an increasingly common occurrence these days by an increasingly frustrated minority.

Republicans are expected to the primary beneficiaries of increased corporate spending, leaving Democrats particularly unhappy, even though they see increased support in the form of union advertising. President Barack Obama blasted the decision, calling it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” He said he will work with Congress to mitigate its effects. But as Heather Gerken, writing over at Balkanization, points out, “the real significance of the case lies in what the Court said Congress can do going forward,” which is, basically, not much. Richard L. Hasen, a professor of law at Loyola and co-editor of the Election Law Journal, echoed criticism from the liberal corner, describing the decision as “activist” and warning that “it increases the dangers of corruption in [the U.S.] political systems.” Not all bloggers, however, were up in arms: Paul Sherman of National Review cheered the decision, saying it “represents a tremendous victory for free speech,” which “will simply result in a more diverse mix of political speech, and that is a good thing for American democracy.” Slate’s Dahlia Lithwick was in the room yesterday when the judgement was announced and offers a play-by-play. SCOTUSblog has a round-up of commentary from across the blawgosphere.

China’s Top-10 Constitutional Events of 2009
China’s Procuratorial Daily has published a list of the top ten Chinese “constitutional events”of the past year, translated and analyzed for English readers by Donald Clarke on his Chinese Law Prof Blog. Making their list: “The person in Chengdu who committed suicide by self-immolation to protest the forcible tearing-down of her home” and “Sichuan peasant deprived of villager status by village vote.” Tom Ginsburg of Comparative Constitutions, who requested the translation, remarks that the list is “a remarkable document in its conception of what counts as constitutional: many of the incidents involve abuse of power by lower level officials.” It’s also remarkable for another reason: The online version of the Procuratorial’s article includes nothing at No. 3. Explains Clarke: “What event made it on the list and then caught the attention of the censors and had to be deleted because it was too sensitive? The forced nationalization of coal mines in Shanxi, that’s what.” Clarke nonetheless managed to get his hands on a print version of the article and provides details.

SCOTUS Extreme Makeover
George Mason University profs Craig Lerner and Nelson Lund want to de-celebritize the Supreme Court of the United States. They call for “modesty and restraint”, for “the lives of the Justices to become more like the day-to-day lives of judges on the lower courts”. Doubtless responding to mob-friendly firebrands like Justices Clarence Thomas and Anthony Kennedy, Lerner and Lund say that present SCOTUS practise has been corrupted by the post-Borkian confirmation process as well as the evolution of judicial opinion writing that favours style over substance. Of the confirmation process, the authors say that both prospective judges and their congressional interlocutors forego serious discussion of constitutional interpretive methods and are content to trade bromides about the judges being “modest and humble servants of the law … without a desire to move the law in any particular direction.” Moreover, the authors decry the Marshall-era encouragement of “elaborately reasoned opinions … signed by individual judges” that “read less like the work of judges than like political manifestos or pop philosophy.” In their paper (SSRN abstract here), Lerner and Lund suggest “four statutory reforms that could help the Justices stick a little closer to the promises they are expected to make, and do make, at their confirmation hearings.” In short, according to the authors, Congress should pass laws requiring that SCOTUS judges a) issue anonymous judgements, b) hear a set quantity of “unglamorous” circuit court cases, c) disassociate themselves from their helpmeet clerks, and d) establish lower federal court service as a prerequisite for SCOTUS membership.

The Decade’s Top 10 Canadian Environmental Law Decisions
… don’t exist, writes Shaun Fulker at ablawg. “Environmental law,” he says, “has stagnated and lost its vigour and imagination.” According to Fulker, the Court’s 1990’s jurisprudence was often marked by bold assertions  such as Justice LaForest’s in R. v. Hydro Quebec of the “superordinate importance” of environmental issues. The following decade saw a retreat at all levels of the justice system into a “tinkering at the margins of environmentalism” that made the Court’s earlier decisions “seem like nothing more than rhetoric.” More than that, though, Fulker notes a general degradation in the legal discourse around environmental issues. What was once a vigorous political argument as to how Canadians should live has subsided into a technocratic consensus that sees lasting triumph in uncontroversial matters like municipal pesticide bans. Accordingly, Fulker assigns judgement-of-the-decade anti-honours to the Federal Court decision in Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage), where the court confirmed the Minister’s statutory authority to construct a winter road in Wood Buffalo National Park a decision, says the author, that “has effectively nullified any impact of the [Canada National Parks Act] towards enhancing a preservation mandate in the parks.”

Yoo did it
Liberal partisans had been gearing up for a righteous skewering: John Yoo of torture memo fame, ostensibly suffering from temporary insanity, had accepted an invite to appear on The Daily Show with Jon Stewart. This was going to be good: As Chris Beam of Slate explains, “Stewart would take the same razor to Yoo that had so memorably eviscerated the likes of Tucker Carlson, Chris Matthews, Jim Cramer, and Betsy McCaughey. The Orwellian logic that undergirded the ‘torture memos’ would collapse once and for all. The punishment would be so cruel, so unusual, Yoo would beg for water-boarding.” But it didn’t happen. In fact, it was the other way around. “He slipped through my fingers,” Stewart recalled somewhat sheepishly after Yoo’s recent appearance. “It was like interviewing sand.” How’d Yoo do it? It’s simple, says the Berkeley Law prof: “I’ve spent my whole career learning to settle down unruly college students who have not done the reading.” You can watch the clip/reverse beating online.

Soft Statehood: Canada Still Not A Real Country
Why do we recognize some states and not others? Is Canada really a “state”? Or, as University of Helsinki professor Jan Klabbers asks, “shouldn’t we come to conceptualize statehood in gradations?” At Opinio Juris, Klabbers riffs on notions of “soft law” and state legitimacy in light of the death of Prince Giorgio, sovereign of the Principality of Seborga. Seborga, a feudal vestige (population 300+) near the borders of France and northwest Italy, had as its head of state “Prince” Giorgio Carbone. In 1963, after discovering what may loosely be called a gap in Seborga’s chain of title, Carbone ran for the office of Prince and got elected; the Prince thereafter styled himself as “His Tremendousness” and ran a parody-state, issuing stamps and currency and enacting legislation to encourage smoking. Klabbers sees differential analogues with respect to Seborga’s “statehood” in Luxembourg, Brazil, and Canada. Somewhat incredibly, Klabbers says that “it is arguable that Canada does not, unlike Seborga, have its own head of state. So where does the difference stem from?” Invoking the example of Kosovo and unhelpfully failing to place Canada in his soft/hard schema, Klabbers says that Kosovo’s intermediate, unclassifiable status argues for the creation of a new state category, that of the “soft state,” and he concludes that “recognition of the concept of soft statehood can only be a matter of time.”

Passing the Bar: There’s an App for That
The first an iPhone app to cost $999.99 had a short shelf life. The app, called “I Am Rich,” did nothing more than display a picture of a red gem and was quickly pulled by Apple. But the $999.99 application is back, and this time it can help you pass the California bar. Mike Ghaffary, the brains behind the app, told TechCrunch he came up with the idea when he was preparing for the bar exam. He could not believe BarBri, the ubiquitous testprep company, charged the $4,000 to send him an iPod with audio notes on it. And so he created BarMax, “the only complete bar exam prep solution (Essay, MBE, Performance Test, and Flash Cards) available for purchase in the iPhone App Store.” TechCrunch is impressed: “It includes thousands of pages of materials as well as hundreds of hours of audio lectures. It’s all the information you could ever want for the two-month course. And again, it can done all on your iPhone.” You can fork-over your money here.

The Guantanamo Suicides, Revisited
On June 10, 2006, three inmates of the Guantanamo Naval Base prison camp committed suicide. Was this really an instance of “asymmetrical warfare” against the United States, as claimed by Rear Admiral Harry Harris, Guantanamo’s commander? At Harper’s, Scott Horton doubts that these were suicides at all. Horton further speculates that “the Justice Department decided to use the suicide narrative as leverage against the Guantanamo prisoners and their troublesome lawyers” in order to seize the prisoners’ privileged communications. Last year, the faculty at Seton Hall University School of Law released a report highlighting inconsistencies in the Naval Criminal Investigative Service’s heavily redacted report on the matter. Now, Guantanamo camp guards have provided Harper’s with witness accounts pointing to the existence of a “black site” outside the prison camp’s boundaries at which prisoners may have been subjected to unusually harsh interrogative measures. According to Horton, the guards’ evidence raises serious questions about the complicity of the Obama administration, and “suggests the current administration failed to investigate seriously—and may even have continued—a cover-up of the possible homicides of three prisoners at Guantánamo in 2006.”

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