Friday, April 27, 2012

Transcript of Oral Argument in Arizona v. United States

The transcript of the oral argument in Arizona v. United States is available here. I will analyze what occurred during oral argument in a later post. My previous posts on the subject are set forth below the fold.

Wednesday, April 25, 2012

Presentation at NEOMED Thursday on the Constitutionality of Health Care Reform

I will be speaking to an audience at Northeast Ohio Medical University on Thursday, April 26, about the constitutionality of the Affordable Care Act. I will review the issues that are before the Supreme Court and summarize the amicus brief that I submitted to the Supreme Court on behalf of a committee of professors.

Tuesday, April 24, 2012

EEOC Rules That Discrimination Against Transgender Persons Is Unlawful Gender Discrimination

The EEOC has rendered a landmark victory for transgender persons. Henceforth discrimination against transgender persons will be considered to be a form of gender discrimination, which is already prohibited by the Equal Employment Opportunity Act.

Monday, April 23, 2012

Article on Same-Sex Marriage in Context of American Law and Philosophy

I have posted a working draft of an article to SSRN discussing the rapid acceptance of same-sex marriage in the United States in light of the theories of "pragmatism" and "legal realism" that have come to dominate American philosophy and jurisprudence. The article is entitled The Growing Acceptance and Legal Recognition of Same-Sex Marriage in America Constitutes a Victory for Reality-Based Thinking and it may be downloaded here

Sunday, April 22, 2012

Summary of Postings on Prosecution of George Zimmerman for Killing Trayvon Martin

This post lists my previous entries describing the statutes that will govern the criminal case against George Zimmerman for the shooting death of Trayvon Martin. These posts analyze the murder and manslaughter statutes, the law of self-defense including "Stand Your Ground" and "Use of Force by Aggressor" statutes, and the investigators' affidavit filed against Zimmerman.

Thursday, April 19, 2012

Judge Peter Sikora

It is being reported at, WKYC, and WTAM that Peter Sikora, the longest-serving member of the Cuyahoga County Juvenile Court, has passed away at age 60. Judge Sikora was not only a highly respected jurist but was an inspiration to all who knew him. His wisdom, kindness, and fairness did honor to the bench. He will be greatly missed.

Tuesday, April 17, 2012

Jefferson Davis' Speech at Macon, Georgia, September 23, 1864: Worst Speech Ever?

Jefferson Davis' speech of September 23, 1864, was so bad that Americans North and South speculated that it was a spoof or a satire - but it was real and sincere. In this speech Davis greatly discouraged his own troops and vastly raised morale in the North; unpersuasively justified his removal of a popular, effective commander for one who had suffered unprecedented losses; viciously attacked one his critics without naming him, leading many of his opponents to believe themselves gravely insulted by the President; and through an unbelievable exercise of "loose lips" caused his army's strategic plans to be published in the newspapers, thereby contributing to the some of the most astonishing Union victories of the Civil War. Most significantly he revealed the principles that he thought the Confederacy stood for.

Sunday, April 15, 2012

Florida Cases Interpreting Section 776.041: Person Who "Initially Provoked" Incident May Not Claim Self Defense

In yesterday's post I discussed the effect of Section 776.041 of Florida law which codifies the common law rule that to claim self-defense a criminal defendant must not have been the aggressor. Under this statute George Zimmerman's guilt or innocence is likely to turn on whether the jury finds that he "initially provoked" the incident in which he shot Trayvon Martin to death. If he did provoke the attack and did not subsequently try to escape or withdraw from the confrontation, the "Stand Your Ground" law does not apply and Zimmerman will not be permitted to claim that he acted in self-defense. In this post I examine two recent Florida cases interpreting 776.041 and I cite some older Florida cases applying the common law rule that a wrongdoer may not claim that he acted in self-defense.

Saturday, April 14, 2012

The Interplay of Sections 776.041 (Use of Force by Aggressor) and 776.013(3) (Stand Your Ground) in Zimmerman Case

The "Stand Your Ground" law explicitly provides that a person "has no duty to retreat" if he or she is "not engaged in an unlawful activity." However, another statute entitled "Use of Force by Aggressor" provides that if a person initially provokes the use of force then that person may not claim self-defense unless he or she has "exhausted every reasonable means to escape." I suspect that prosecutors will rely upon this second law in their prosecution of George Zimmerman for the shooting death of Trayvon Martin.

Friday, April 13, 2012

Investigators' Affidavit Emphasizes Zimmerman's Suspicion of Martin

Talking Points Memo has posted the affidavit filed by the special prosecutor's office explaining why there was probable cause to charge Zimmerman with second degree murder in the shooting death of Trayvon Martin.

Thursday, April 12, 2012

Zimmerman's Low Burden of Proof on the Issue of Self Defense

In her news conference announcing that George Zimmerman was being charged with second degree murder in the death of Trayvon Martin, Florida Special Prosecutor Angela Corey mentioned several times that self-defense is an "affirmative defense" under Florida law. She also said that "Stand Your Ground" is "a tough affirmative defense to overcome." See M. Alex Johnson, MSNBC, Zimmerman to plead not guilty to second degree murder (April 11, 2012). It will be "tough" for the prosecution because although Zimmerman has to introduce some evidence that he acted in self-defense, that doesn't mean that he has to convince the jury that he acted in self-defense. All he has to do is to create a "reasonable doubt" as to whether he acted in self-defense. A proposed amendment to the Florida Jury Instructions makes that perfectly clear.

Florida Statutes on Second Degree Murder and Manslaughter

George Zimmerman has been charged with second degree murder, which carries a possible penalty of life in prison. A possible lesser charge is manslaughter, for which he could be sentenced to 15 years imprisonment. This post sets forth the relevant Florida statutes on homocide.

Saturday, April 7, 2012

"Immorality" and Social Change

Social conservatives sincerely believe that they are defending "morality" when they condemn practices such as  birth control, women working outside the home, and same-sex marriage. Their view is that these practices are "immoral" because they threaten the fabric of society. They consider people who condone these social transformations to be fostering "immorality."

They are mistaken. They view change itself as threatening. They forget that society often changes for the better - that human progress is possible - and that if given the opportunity to pursue their hopes and dreams people can often make this a better world.

2011-2012 Supreme Court Term: Oral Argument in Reichle v. Howards, No. 11-262: Should the Secret Service Have Immunity From Liability for an Alleged Retaliatory Arrest?

During oral argument in Reichle v. Howards the justices of the Supreme Court were understandably skeptical about allowing a man to sue a group of Secret Service agents for "retaliation" where there was probable cause for the agents to arrest the man. On the other hand, the Court struggled to find a way not to give the Secret Service - or the police generally - carte blanche to arrest protesters for pretextual reasons.

Friday, April 6, 2012

Gregg Williams Recorded Urging Players to Injure Opponents

The Huffington Post has posted an audio recording of New Orleans defensive coordinator Gregg Williams exhorting his players to inflict a concussion and a torn ACL on specific members of opposing teams for money. I think this earns Williams a lifetime ban from football at any level. What does it say about football in general?

Why the Courts Must Presume that Economic Legislation is Constitutional

In yesterday's post I cited abundant authority in support of the principle that the courts must defer to the judgment of Congress in reviewing the constitutionality of economic legislation. Decisions under the Due Process, Equal Protection Clause, Spending Clause, and Commerce Clause all reveal the same idea, that the courts lack the power to second-guess the political branches in the determination of national economic policy.

I promised that today I would explain why the courts lack that power. There are two reasons. First, the courts are not institutionally equipped to undertake the complex analysis necessary to the establishment of economic policy. Second, the courts are not democratically authorized to balance and compromise the economic interests of different segments of our society.

Attorney General Holder's Response to Judge Jerry Smith on the Separation of Powers

The Attorney General's letter is here. More below.

Thursday, April 5, 2012

Suppressed 2006 Zelikow Memo Against Torture Released

The State Department has released a copy of the February 15, 2006 memo by Philip Zelikow arguing that the "enhanced interrogation techniques" used to question detainees were illegal. The Bush administration had sought to destroy all copies of the memo.

Separation of Powers and the Presumption of Constitutionality: A Response to Justice Kennedy

At oral argument in the health care case Justice Anthony Kennedy suggested that the government bears the burden of persuading the Supreme Court that the Affordable Care Act is constitutional. He is precisely wrong. Like all purely economic legislation, the Affordable Care Act is presumed constitutional. This is a fundamental principle of the doctrine of Separation of Powers.