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Ex Parte is a group weblog managed by the Harvard Federalist Society, a student organization of Harvard Law School, and written by its student members. To join Ex Parte, contact the Majordomo, Eric Soskin, at esoskin-at-law-dot-harvard-dot-edu.

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Monday, November 29, 2004

Posted 8:21 PM by Don't Be a Victim
A more positive take on the Raich oral argument

A VERY thorough account of the oral argument can be found at Legal Theory blog. (Hat tip: Volokh Conspiracy)

Also, Jim Lindgren of the Volokh Conspiracy sees the oral argument as a coup for Raich.

Also, HLS Prof. Charles Fried was on NPR today (around the 4:00 mark of the audio) making a similar point to Randy Barnett's marriage/prostitution analogy about non-economic activity by saying that we should think of the cannabis as geraniums grown in a window flower box, and ask if Congress should be able to regulate that. (This NPR piece is annoying because, like much of the media coverage, it focuses on the legitimacy of the medical use of marijuana rather than the commerce clause issue central to the case.)

UPDATE: Timothy Lynch of the Cato Institue gives his impressions of the oral argument at the Ashcroft v. Raich blog. His take is a bit more pessimistic.

Posted 1:37 PM by Don't Be a Victim
Ashcroft v. Raich oral argument update

The initial news is not very positive for Raich supporters:

Medical Marijuana Draws Skepticism at U.S. Top Court (Bloomberg.com)

[...]

There's no reason to believe ``everybody is going to get it from a friend or from plants in the back yard,'' Justice David H. Souter told the lawyer for the two women. ``They're going to get it in the street. Why isn't that the sensible assumption?''

[...]

Justice Antonin Scalia asked Barnett how his logic would apply to federal laws protecting endangered species. Those laws ban possession of ivory or eagle feathers without regard to whether a person obtained them through interstate commerce.
``Are those laws likewise unconstitutional?'' Scalia asked.


Wary Court Considers Medical Marijuana (ABCNew.com)

[...]

Justice Stephen Breyer said supporters of marijuana for the ill should take their fight to federal drug regulators before coming to the Supreme Court, and several justices repeatedly referred to America's drug addiction problems.

Posted 12:52 PM by Don't Be a Victim
Ashcroft v. Raich oral arguments heard today.

Prof. Randy Barnett of BU law school made the oral argument for Raich, while Acting Solicitor General Paul D. Clement made the oral argument for the government. I will post more when I hear how the oral arguments went.

Further resources:

Randy blogs at the Volokh Conspiracy and there are a few posts there on the case. It may be a good source for links to reporting on how the oral argument went.

There is an Ashcroft v. Raich blog dedicated to this case.

There is a good, general summary of the case at Drug War Rant, though I think his 8-0 prediction is wildly optimistic.

SCOTUS blog has collected other recent media stories on the case.

The New York Times weighs in:

Although the California women should win, it is important that they win on narrow, fact-specific grounds. Advocates of states' rights have latched onto this case and are urging the court to use it to radically rewrite its commerce clause rulings, reviving ancient precedents that took a more limited view of Congressional power. This is where the greatest danger lies in this case. If this sharply restricted view prevails, it could substantially diminish the federal government's ability to protect Americans from unsafe work conditions, pollution, discrimination and other harms.

(hat tip: Volokh Conspiracy)

Tuesday, November 23, 2004

Posted 9:06 PM by Don't Be a Victim
Victory for Free Speech and E-commerce!

Good news from California...

From IJ's email press release:

Federal Court Declares California's Online Real Estate Licensing Law Unconstitutional

Licensing Internet Publishers Violates First Amendment Rights

Washington, D.C.-In a ruling that will unshackle Internet publishers and save consumers millions of dollars, a federal judge in Sacramento struck down California's demand that websites obtain a real estate broker's license to publish real estate advertising and information. The court concluded that the law, which requires websites to obtain a license but specificallyexempts newspapers that publish the same information, was "wholly arbitrary"and violated the First Amendment guarantees of free speech and freedom ofthe press.

For the full press release (a somewhat different version than above) see:
http://www.ij.org/media/first_amendment/real_estate/index.html

Posted 4:59 PM by Don't Be a Victim
Moot Court Account

You can read a blow-by-blow account of the Ashcroft v. Raich moot court hosted at HLS today (by HLS Federalist Society and HLS Forum) at Amber Taylor's blog - Part 1 and Part 2.

Prof. Randy Barnett argues the case for real next Monday.

Monday, November 22, 2004

Posted 7:53 PM by Don't Be a Victim
Ashcroft v. Raich Supreme Court Moot - On campus tomorrow afternoon

Anyone interested in hearing a trial run of a Supreme Court oral argument should come to Ames Courtroom in Austin Hall at 2:30 pm on Tuesday, Nov. 23 to hear Prof. Randy Barnett make oral arguments in Ashcroft v. Raich. Hearing the oral argument as Justices will be Professors Fried, Young, Parker, Calabresi, Shapiro, and Meltzer. Barnett will be making the actual Supreme Court oral argument next Monday, Nov. 29.

The case is an important one for Federalists, as the court considers whether Federal drug regulations prohibiting the use of medical cannabis (permitted in California) are valid under the Commerce Clause, or if noncommercial cultivation of medical cannabis for private use is not an activity that substantially affects interstate commerce.

Sunday, November 21, 2004

Posted 11:18 PM by Jesse
The NBA's reaction to this debacle is simply infuriating. In reaction David Stern said this:

"We have to make the point that there are boundaries in our games," he said. "And that one of those boundaries, which has always been immutable, is the boundary that separates the fans from the court. And players cannot lose control and go into the stands. As a corollary, we have to hold fans responsible for their antisocial behavior as well." Stern said that fans who did not conduct themselves properly would be barred permanently.



As for the players--the professionals who make millions to stay on one side of that line and who violently crossed this "immutable boundary"--they only have to sit out for anywhere between 6 to 72 games. Next year, they get to come back and make millions and do it again next year. Absolutely outrageous.


Stern also said this of Artest: "I did not strike from my mind the fact that Ron Artest has been suspended on previous occasions for a loss of self-control." Indeed, according to NYT:

Artest...has had a history of misbehavior. Before Friday night, he was suspended for a total of 15 games by the league and by his teams. In January 2003, he destroyed a Madison Square Garden camera and slammed a monitor to the ground. He amassed nine flagrant foul points during that season.

A fan is likely to get suspended for life from NBA games for crossing the line once, but a player can do it again and again and again. Truly, the NBA, as a league and as an institution is in a shambles. It's a disgrace, and the saddest part is that dozens of kids will wear Artest jerseys to school this week...

Posted 6:07 PM by Jesse
I think you've got the better of this one. For the present, I concede the particular point and agree on the larger point (but would contest one small point--I doubt Lott was forced out on principle, but rather on political untenability). And hey, looks like we're blogging again.

No thoughts on the NBA situation? A less political discussion to be sure, but equally interesting I think. I had a great discussion with somebody yesterday who felt the fans "got what they had coming to them." I still think these players should be banned.

Saturday, November 20, 2004

Posted 11:44 PM by Jesse
Fair enough. And you may be right about this particular incident, this particular prosecution, and this particular rule change. Even so, this is a critical time for a party with great power, promise, and wide-ranging support. I quote Brooks:

[M]any House Republicans know that DeLay has been playing close to the ethical edge for years. They've noticed the number of scandals - the latest involving lobbying fees for some Indian casinos - that trace back to DeLay cronies. They still remember that delicious feeling of possibility when they arrived in Washington and vowed they would not turn into the corrupt old majority they had come to replace. They know Delay symbolizes their descent from that reformist ideal.

My cocern is that so much promise not be washed away by politics as usual. Indeed, the Republicans of 1994 came in with a mission and a set of ideals; after 10 years in power, I hope those ideals do not give way to "career" interests and inside baseball.

Posted 4:06 PM by Jesse
Ex Parte…where have you gone. A noticeable dearth of postings these last few weeks…

In the news headlines today are two things that I’d be curious to hear other people’s thoughts on:

First, the NBA brawl in Detroit. The NBA has announced that the players who threw punches at fans--Ron Artest, Jermaine O'Neal and Stephen Jackson—are, as of now, suspended “indefinetly.” This brawl, and truly it was a brawl, is Exhibit A as to why I rarely, if ever watch professional sports, and why I never watch the NBA. In any other profession, save sports, employee conduct of this nature toward a customer (even a rude, boorish, and provocative customer) would result in immediate termination—and, likely, criminal prosecution. No less should be the outcome here. These men, to whom the League pays millions and whose names adorn the jerseys children wear to school, fancy themselves “professional” athletes. There is nothing professional about what occurred the other night—as, so often, there is nothing professional about NBA players’ conduct, on or off the court. Ron Artest and his cronies acted like animals—like animals in a cage fight—and their actions were, simply, sickening. They do not deserve continued employment in the NBA, do not deserve their salaries, and indeed, in my opinion, should be banned from the NBA for life—and criminally prosecuted.

Second, Tom Delay and the House Republicans’ capitulation. David Brooks of NYT, suggests that one reason, of course, that House Republicans went along with the rule change was self-interest: it would be bad for their careers to challenge the majority leader, even if he is in a bit of hot water. A fine and obvious explanation. The problem for me is that any member of Congress should view his service as a career. While I’m not sure I favor mandated term limits, it seems to me, that if we had more public-spirited men and women who viewed their service as temporary—and as service—breakdowns such as these would not occur. When you are not looking at your likely chairmanship (or reelection) fifteen years down the line, you can vote your conscience and your principles more often. Indeed, after the astounding election results earlier this month, this is decidedly a step in the WRONG direction for the Republican Party.

Tuesday, November 09, 2004

Posted 4:41 PM by The Driver
Could Gregg Easterbrook and the New Republic really be too cheap to pay for a subscription to the Wall Street Journal? Nah. But why else did Easterbrook's Tuesday Morning Quarterback wait to discuss the relationship between Title IX and women's feet until the Journal's free online preview week?

Anyway, I'll point Ex Parte readers to the July WSJ article on the topic. I imagine this is a serious issue for women at the law school - the article suggests that the typical customer for larger-size shoes "is a 26-year-old woman who used to row crew, play soccer, volleyball or basketball. Now she's a lawyer or investment banker, and we have to keep her well-shod."

Posted 10:55 AM by The Driver
I've been critical of Harvard President Larry Summers for the contradiction between his verbal support and his lack of practical action for the military on campus. For example, in June he spoke at the ROTC commissioning ceremony, declaring that "the ROTC program is so profoundly important to this University," yet he has made no serious effort to bring Harvard's ROTC students back from MIT, where they've been forced to train since 1969, or to pay for their expenses, which have been privately funded since 1993.

It appears increasingly likely that ROTC's absence will be rectified not by leadership from a president who wants "to associate the University with something that is very noble and something that is crucial," but by Congress: on October 29, President Bush signed the FY05 Defense Authorization Act, which moves the penalty for discriminating against ROTC closer to Solomon Amendment territory by banning universities from receiving funding from DHS or other war on terror funds. This probably won't be enough to influence Harvard, but it's a step in the right direction.

In the meantime, President Summers, and anyone else sympathetic to the military in the Harvard administration (alas, he does stand on a lonely road, it seems - one reason for his inaction), could do more than give an annual speech supporting the military. Blackfive highlights a story about a University of Texas event honoring staff members serving in Iraq.

Will we live to see anything similar at Harvard? There seems good reason to doubt it -- after all, Veteran's Day is on Thursday. The Marines are fighting in Fallujah. Is there anything planned? Apparently not, although morning prayers in Appleton Chapel have been cancelled.

Monday, November 08, 2004

Posted 4:50 PM by The Driver
Like Professor Bainbridge, I'm inclined to believe that any scuttlebutt about Justice Thomas' possible elevation to Chief is just gamesmanship to make an actual nominee appear more "mainstream."

Of the speculation I've read so far, Tom Goldstein's speculation on Judge John Roberts of the D.C. Circuit is the most compelling and thought-out.

Elsewhere, today's ruling from Judge James Robertson granting habeas to Salim Ahmed Hamdan and suspending his Guantanamo Bay military tribunal is a powerful reminder that the courts are not just relevant to "cultural values," but are themselves a battleground in the war on terrorism.

Flip-flop alert: Changed my mind. While Goldstein's speculation is well-reasoned, the more I think about it, the more I disagree with his argument that "have candidly stated their opposition to Roe – are quite unlikely candidates." Sooner or later, political pressures ensure that President Bush will have to nominate a declared, anti-Roe candidate. And now is the time to do it - when the election victory and its associated "political capital" are fresh, and when it's the replacement for Chief Justice Rehnquist.

Posted 1:55 PM by The Driver
Power Line points out that this article by Dean Murphy in yesterday's New York Times implicitly forecasts the assassination of President Bush:

Murphy's piece begins with the assassination of Lincoln, discusses the political impact of the assassisnation of McKinley, and concludes:

"The Republicans are basically unchecked," Professor Wilentz said. "There is no check in the federal government and no check in the world. They have an unfettered playing field."

Until the next act of God, that is.

[McKinley's] death was a tragedy and a fluke, Professor Wilentz said, but it changed the course of political history. Had McKinley not been killed, Marcus A. Hanna, the political handler who was as instrumental to McKinley's success as Karl Rove has been to Mr. Bush's, would have pursued his dream of "creating a Republican machine that would go on forever," Professor Wilentz said.

Instead, Theodore Roosevelt became president, and pursued progressive policies at home and power projection abroad. "What followed shifted the Republican Party in a direction it had not planned to go, and created the groundwork for 1912 and eventually the New Deal," Professor Wilentz said. When his successor, William H. Taft, turned back to conservatism, Roosevelt ran against him in 1912 on the Progressive, or Bull Moose, ticket, and split the Republican Party, yielding the White House to the Democrats and Woodrow Wilson.

Saturday, November 06, 2004

Posted 6:01 PM by The Driver
Who needs NASCAR Dads? According to Newsweek's election post-mortem, the real NASCAR swing voters are the women:

The corridor outside [Matthew Dowd's] office was decorated with a NASCAR racing poster; the area was known as Pit Row. NASCAR fans were seen as a key swing vote—not so much the men, who were mostly pro-Bush, but the women (roughly 40 percent of NASCAR fans are female), who were more likely to be on the fence.

Posted 5:09 PM by The Driver
Over the last three years, the United States has tried to depersonalize the war on terrorism away from Osama bin Laden. And for good reason: not only has al Qaeda promoted a vast array of parallel, friendly groups, but the organization has in some cases been able to promote junior members to replace the top leaders that we've killed or captured. And while many of the replacements may not be as experienced or as skilled as those they replace, they have no shortage of venom to direct at those who disagree with their Islamo-fascist views.

In the war on Palestinian terrorism, the United States has pursued a different approach under President Bush, personalizing Yasir Arafat as the enemy. Focusing on his person has made a lot of sense - European countries have tended to portray him in flattering terms and assume that he is a potential partner in peace, when all the historical evidence (including the failure of the 2000 peace talks) suggests otherwise.

If these are Arafat's final days, though, we would be wise to start suggesting that the problem extends beyond him. While we may want to support any Palestinian who can actually assume leadership of the Palestinian Authority, the pedigrees of his likely replacements should give us pause.

Israpundit has assembled past remarks of likely Arafat successors. I've excerpted some highlights:

Abu Ala - This guy was the third person in line after Yasser Arafat, as the speaker of the PLO "Palestinian Legislative Council." After the IDF killed 15 Hamas terrorists at a training camp in Sept., he came out saying that any Hamas murderous terrorism would be justified in response...This was at a time he was the PA "prime minister."

Abu Mazen - This person was the first "PM" of the Palestinian Authority, one of the original founders of the PLO terrorist organization in 1964. His doctoral thesis in Moscow "proved" that the Holocaust never happened, that the deaths of Jews came to a few hundred thousand, and this was planned by the Zionists...

Muhammad Dahlan - a former boss of the PLO "Preventative Security" force in Gaza... He was the person who ordered a terrorist attack in 2000 on an Israeli school children bus

Farouk Kaddoumi, - He is currently the "foreign minister" of the PLO, and was one of the founders of the PLO... Perhaps the clearest picture of this terrorist was in [an] interview he gave to a Jordanian paper in April 2004. Some of what he said:

Kaddoumi said the armed struggle was the only way to force Israel to accept the demands of the Palestinians.

He admitted that the PLO charter, which denies Israel's right to exist, was never changed.

"If Israel wants to leave the Gaza Strip, then it should do so. This means that the Palestinian resistance has forced it to leave. But the resistance will continue. Let the Gaza Strip be South Vietnam. We will use all available methods to liberate North Vietnam."

Friday, November 05, 2004

Posted 10:14 AM by The Driver
Unfortunately, the 2004 election seems to be perpetuating the Red State vs. Blue State madness in the minds of many commentators. And it's not just limited to Blue State Democrats - yesterday, many Republicans were talking about the red/blue county-level map.

Get over it.

There may be some truth to the idea that people in different parts of the country are looking for different qualities in their leaders. But it's silly to look at these maps and claim that "red staters are ignorant" or "Republicans are on the verge of a takeover."

It's not just that 30%, 40%, even 49% of the people in each county voted for the presidential candidate from the other party. It's that many of the people who voted for one candidate in this election did so after careful consideration -- presumably the same consideration that has led them to vote for candidates of the other color - in this and in other elections.

The best reason to be skeptical of anyone who talks about red states and blue states is to recolor the red-and-blue map based on the governors of each state. As you all know, it looks remarkably different.

Consider the states that backed Sen. Kerry that have Republican governors. It's the whole electoral base: California, New York, Massachusetts, Vermont, perhaps Washington, depending how it turns out.

And the supposedly "red" states with Democratic governors: Virginia, North Carolina, Kansas, Missouri, Louisiana. Not quite the same electoral weight, but not a minor indicator, either.

There are plenty of theories to explain these voting patterns. But the red-state and blue-state thinkers aren't addressing them.

Posted 9:53 AM by The Driver
Unfortunately, the 2004 election seems to be perpetuating the Red State vs. Blue State madness in the minds of many commentators. And it's not just limited to Blue State Democrats - yesterday, many Republicans were talking about the red/blue county-level map.

Get over it.

There may be some truth to the idea that people in different parts of the country are looking for different qualities in their leaders. But it's silly to look at these maps and claim that "red staters are ignorant" or "Republicans are on the verge of a takeover."

It's not just that 30%, 40%, even 49% of the people in each county voted for the presidential candidate from the other party. It's that many of the people who voted for one candidate in this election did so after careful consideration -- presumably the same consideration that has led them to vote for candidates of the other color - in this and in other elections.

The best reason to be skeptical of anyone who talks about red states and blue states is to recolor the red-and-blue map based on the governors of each state. As you all know, it looks remarkably different.

Consider the states that backed Sen. Kerry that have Republican governors. It's the whole electoral base: California, New York, Massachusetts, Vermont, perhaps Washington, depending how it turns out.

And the supposedly "red" states with Democratic governors: Virginia, North Carolina, Kansas, Missouri, Louisiana. Not quite the same electoral weight, but not a minor indicator, either.

There are plenty of theories to explain these voting patterns. But the red-state and blue-state thinkers aren't addressing them.

Posted 9:53 AM by The Driver
Unfortunately, the 2004 election seems to be perpetuating the Red State vs. Blue State madness in the minds of many commentators. And it's not just limited to Blue State Democrats - yesterday, many Republicans were talking about the red/blue county-level map.

Get over it.

There may be some truth to the idea that people in different parts of the country are looking for different qualities in their leaders. But it's silly to look at these maps and claim that "red staters are ignorant" or "Republicans are on the verge of a takeover."

It's not just that 30%, 40%, even 49% of the people in each county voted for the presidential candidate from the other party. It's that many of the people who voted for one candidate in this election did so after careful consideration -- presumably the same consideration that has led them to vote for candidates of the other color - in this and in other elections.

The best reason to be skeptical of anyone who talks about red states and blue states is to recolor the red-and-blue map based on the governors of each state. As you all know, it looks remarkably different.

Consider the states that backed Sen. Kerry that have Republican governors. It's the whole electoral base: California, New York, Massachusetts, Vermont, perhaps Washington, depending how it turns out.

And the supposedly "red" states with Democratic governors: Virginia, North Carolina, Kansas, Missouri, Louisiana. Not quite the same electoral weight, but not a minor indicator, either.

There are plenty of theories to explain these voting patterns. But the red-state and blue-state thinkers aren't addressing them.

Monday, November 01, 2004

Posted 8:35 PM by The Driver
It's all over but the voting... and the counting... and the ulcers.

Pre-election blogging is winding down, but over at Slate, Mickey Kaus sets out why he's "cocooning for Kerry", demonstrating the [DNC ad-defying] ostrich-like tendencies of some who support Sen. Kerry for his presumed ability to alter the dynamics of the war on terror. Kaus writes:

Both candidates will hunt down and kill existing terrorists. The issue is how many new terrorists are we creating--as Donald Rumsfeld famously wrote, "Is our current situation such that 'the harder we work, the behinder we get.'?" Let's say that n is the number of net new terrorists who'll come online in the next four years. Isn't it obvious that n is a lot lower if Kerry is president than if Bush is president? Even if you think the Iraq war was worth fighting, as it may well turn out in the long run to have been, it's hard to deny that it has angered millions around the world, and that Bush is a focal point of their anger. A tiny but definitely non-trivial percentage of these people will be angry enough to try to do us harm, and as the years go by technology will make it easier for them to accomplish this. We lower the volume of lethal hatred simply by thanking Bush for his efforts and retiring him.

Significantly, President Kerry will not have to do anything to accomplish this. He won't need any grand foreign policy framework. It will happen to him automatically if he wins, whether he likes it or not. In all probability he will have to fight against the tide of smarmy international goodwill that will envelop his administration--forcefully reminding the world that he intends to be tough, America should still be feared, etc. Unless he's an utter incompetent, however, he should be able to accomplish that while simultaneously lowering the level of anti-Americanism and at least partially defusing the self-fulfilling prospect of a "clash of civilizations." Meanwhile, if President Bush worries about how many people around the world his policies are enraging, he gives no sign of it. In four more years the "n" number could rise to calamitous, irreversibly high levels, even if the lethal effects might not be felt for a decade or two.