Amici Curiae: The American Emperor, Dead Laws and Dressing Sotomayor Edition

Sotomayor’s Sartorial Splendor
The clothes make the justice, or so the White House seems to think, suggests Jennifer Forsyth over at the WSJ Law Blog. Justice Sonia Sotomayor, known for her gift of gab, told a private audience at her 30th Yale Law School class reunion that the White House tried to script her entire confirmation process, down to her choice of dress. “[S]he’d gone shopping for clothes to wear to her acceptance ceremony, but government officials instead told her to bring five suits, one of which they would recommend for her to wear,” an attendee told the New Haven Register. A casual assessment of Sotomayor’s outfits would seem to suggest the Obama administration was sending some subtle sartorial signals to Democrats, Republicans and those in between with her cheery blue, red and purple suits.

Scotland Poised for First Class Act
The government-backed Scottish Civil Courts Review has concluded that class action lawsuits should be introduced in Scotland, reports. If accepted, the review’s recommendations could make Scotland the first part of the United Kingdom to allow class action suits. “However well the regulatory regimes may operate, there may still be cases that require to be litigated and a multi-party procedure is, in our view, an essential element of the range of options available for the resolution of disputes involving a number of parties with the same or similar legal or factual interests,” the review’s authors write. The commission’s members, including Lord Justice Clerk Lord Gill, the second-highest ranking judge in Scotland, acknowledged that certain class action systems, namely those in the United States, can be “cumbersome, expensive and ruinous for many defendants,” but nonetheless said the introduction of a formal multi-party procedure is warranted.

SCOTUS v. The Executive Branch Revisited
The Los Angeles Times’ David G. Savage reports that the U.S. Supreme Court is poised to make “a far-reaching decision on whether the executive branch can keep holding a prisoner in the war on terrorism even if the courts have found him to be no threat.” The court decided this week to hear a new appeal in the case, Kiyemba v. Obama, from the Uighur detainees held at Guantanamo Bay. The Uighurs, considered separatists in their native China, can neither be repatriated in good conscience nor, owing to bipartisan American opposition, released into the United States. Even the Bush administration conceded that the Uighurs were not enemy combatants, however, and the Uighurs’ purgatorial status therefore casts a particularly unfavourable light on the Obama administration. The President’s endorsement of due process and stated determination to shut down Guantanamo Bay sit uneasily alongside the arguments advanced by his own solicitor general, Elena Kagan. In a brief filed with the Supreme Court in May, Kagan stated that the Uighurs’ “continued presence at Guantanamo Bay is not an unlawful detention, but rather the consequence of their lawful exclusion from the United States,” and that the Uighurs “are free to leave Guantanamo Bay to go to any country that is willing to accept them.” The Uighurs’ lawyer, Susan Barrett Manning, says “I never thought we would be arguing in court whether the government can lawfully imprison someone who was found to be innocent. And I never thought we would be arguing against the Obama administration.”

Canadian Legal Publishing’s Pre-Post-Mortem
Canadian legal publishers are taking a big chance in outsourcing and offshoring their core business, says’s Gary P. Rodrigues. Having built up an online legal information industry on the Canadian model, “a solution that would reflect everyone’s interest, offend almost no one, and do the job as well as, if not better than, is done, anywhere else,” “certain” publishers (names go unnamed here) have begun killing their golden egg-laying geese. The result? Rodrigues’ optimism is fractional, as he predicts a Canadian version of the “Buy American” movement which actually sounds like a complete collapse of the present state of affairs. That is, existing Canadian legal publishers’ reputation for authority and currency may finally be so eroded by over-reliance on cheap, remote labour that customers would desert “nameless companies based abroad” for the content provided by a renascent, pure laine Canadian legal publishing industry.

A Prosecutor’s Reach Should Exceed Her Grasp
David Protess, director of the Medill Innocence Project at Northwestern University, has been served with a bottom-trawler of a subpoena by the Cook County, Illinois state’s attorney. Legal Blog Watch reports that Protess has been asked to provide his students’ grades, evaluations, class syllabi, notes, reports, summaries, receipts, and e-mails in connection with their investigation of the conviction of Anthony McKinney, a Chicago-area man who is still in prison for a 1978 robbery and murder he may not have committed. Of the subpoena, the Illinois Press Association’s Don Craven says, “They’re either trying to undermine the investigation, or they’re trying to undermine the entire project.” Indeed, the state’s request to deny the motion to quash supports this impression, presenting the argument that the Innocence Project and its students acted as private investigators throughout their involvement in People v. McKinney, and that, therefore, they should not enjoy the journalistic status that would afford protection of their sources under the Illinois Reporter’s Privilege Act. Hinting at its rationale for subpoenaing post-millenial student grades in respect to a 1978 murder conviction, the state asks, “did students hoping [sic] to attain a good grade in class by documenting all their hard work on the case?” Worse, were they induced to “get an ‘A+’ if they [got] exculpatory evidence?”

Dead Law Walking
New York’s high court in 1983 struck down a 1960s-era provision that made cruising illegal and yet in the 26 years since the New York Police Department has continued to enforce the defunct law, Daniel Redman reports in Slate. The law, historically used to target gay people, has apparently been invoked thousands of times. Despite multiple court orders and several bulletins sent out by the police brass, the arrests continue. And the cruising statute is not the only dead law still being enforced: Two other statutes found to be unconstitutional, one concerning loitering and the other begging, continue to be enforced. “These statutes plus the anti-cruising provision — all the subject of pending federal lawsuits — have racked up more than 20,000 arrests and citations that had absolutely no legal basis,” Redman states. “That’s 20,000 too many.”

Contract and the Average Man
Does more regulation actually grease the wheels of commerce? Neil H. Buchanan, over at Dorf On Law, says yes . Using the Great Recession-inspired proposal of a new U.S. Consumer Financial Protection Agency as a spring board, Buchanan dives into the question of how best to tackle the enforcement of private contracts in a world where few people understand their terms and fewer still ever read them. “[I]t is especially appalling to claim that we can expose the average American to the tender mercies of the consumer loan market when we as a society have failed so abysmally to educate so many of our citizens,” Buchanan argues. “If the social Darwinism of our time insists that people must read the contract and protect themselves, then that makes it all the more important that we make sure that they receive the education necessary to be able to understand a contract when one is offered.” But complete reliance on education, Buchanan argues, “is simply inapt for the modern economy” where contracting “is now too expensive to be done the old fashioned way,” that is, through face-to-face negotiation. The answer, he concludes, lies in understanding that there exists an “inextricable role of government in making it possible for a country to benefit from a market economy.”

The American Imperial Counterfactual
In 1859, the United States that threw off the British imperial yoke became quietly subject to its own imperator in the person of His Imperial Majesty Emperor Norton I. The crack blog-team at Popehat has blown the lid off a long-suppressed chapter in the country’s history, a chapter when the American republic enjoyed an explicit imperial relapse, when the planetary easement that America has long claimed for itself expressly became its deed of title. Popehat writes lovingly of the half-fictional ascent of a man, Emperor Norton I, who “assumed the office of Protector of Mexico, and began to rule that nation with the same loving hand” enjoyed by his American subjects; a ruler so revered by his San Franciscan vassals that his privately issued currency was local legal tender; a man whose “citizens … provided a yearly allowance for their Emperor’s regalia”; a beloved tyrant whose funeral was attended by 30,000 San Franciscans.

In a rather strange article composite of sober constitutional analysis as well as a sentimentality that is either true mawkishness or accomplished irony, the author tells us that the Emperor/Protector “represents a vision in stark contrast with the dominant paradigm of western civic thought,” a figure now “revered by anarchists, libertarians, discordians, and other fringe types.” However absurd its subject matter, though, Popehat’s approach to Norton I is not entirely facetious. The piece examines the man’s ideas, and their contemporary reception, in the aid of constitutional exposition. The author takes a comparative look at the policies that obtained during Norton I’s reign and what constitutional implications flow from them. Buchanan, Lincoln and Jefferson Davis, for instance, represented in toto the coercive sovereign, commanding neither consent nor respect; Norton I, by contrast, “employed the weapon of the true sovereign:  love.” Raising the suspicion that his only weapon was self-love, however, America’s only Emperor convened an assembly of army officers in order to abolish the U.S. Congress, and he served “mandates” on both the Catholic and Protestant churches in order that they endorse the coronation of himself as Emperor. Congress and the churches ostensibly ignored his demands.

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