Friday, May 14, 2010
Wednesday, May 12, 2010
"Surely one of the nettles that has to be grasped by the environmental movement in the U.S. and Europe is confronting the fact that prescribing feel-good remedies like wind power and tree-planting carbon credits as a solution for present energy and climate problems is no better than prescribing Laetrile for cancer. (They may not do any actual harm, but, to the extent that people are tricked into thinking that they might be a solution, they do do harm.) Once this nettle is grasped, then there would probably be an opportunity to reform the regulatory system so that nuclear plants can be built in the U.S. as well as in Pakistan and the Ukraine."
Somehow, those words sounded eerily familiar to me.
Remember, you get it here, first.
Tuesday, May 11, 2010
This is vastly different from the hundred in the Senate and the 435 in the House of Representatives. Those 535 clowns--plus delegates--can wear camouflage that quickly hides stupid. How else to explain how clowns like Ron Wyden, Barbara Boxer and that squirrelly chick from Washington State can maintain their seats. Among an hundred, one can be lost.
Not so with nine.
There are few perquisites of the Court held by any member, not held by all. But one is immensely important and is held by the Chief Justice. And a Justice Kagan must take note; this one power will make or break a Justice.
I don't know how much law you've read. I've only read Constitutional law for forty to fifty hours. That's a year of ConLaw (fifteen hours), and hours spent on portions of ConLaw, like ten hours on the First Amendment, and such. Like a five hour class on the Commerce Clause.
When you read the decisions of the Supreme Court, you're quick to note that not all justices were created equally. Some of the best are like sitting at the feet of Talmudic scholars, listening to pure words of wisdom and reason. Some are like sitting in your kid's fifth grade orchestra concert. Violin is not easy. Children should not play in public until they command their notes. Poor selection of recital pieces should be loudly and constantly condemned. If the kid can only play one note well, play it well. Teach him syncopation. Anything. Until he learns 1st position, keep him on an open string. Please.
Justices writing the decision of the Court quickly become known their their writings. And, I would assert, Justices have been shamed into changing their minds on what decisions they support and oppose based upon the writing of the Justice assigned to write the Majority Opinion. And some of the most important legal writing has been written in the Dissents of the Justices. Words matter. And at the Supreme Court, words are the work product of the Justices.
Name one or two poorly thought out opinions. Not to say, poorly written, although there are plenty of those, too. But if you can name just one poorly thought out opinion, you can imagine the incredible level of ridicule that was heaped upon its author. If you've voted on the side that "won," imagine the pain of having to add your signature to an opinion so poorly worded, so poorly reasoned, that it gives reason to write your own, concurring opinion. The effect of a single concurrence in a closely decided case has an important impact on the theory of the Court, the holding of what is known as stare decisis. This important legal doctrine is underlined by a case, such as Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
What, actually, does the decision mean?
Being selected to nomination for the Supreme Court is one of the highest honors that can ever be awarded to an American. Serving the Supreme Court is one of the greatest responsibilities that can ever be given to an American.
And being Chief Justice means you can assign the writing of a particular case's decision to a particular Justice.
And so, if I were Justice Elana Kagan, I would be very circumspect in the arguments I posited in making a decision involving a case before the Court. You can be made to pay. And these lessons won't just stay with you for your life, they will stay with us throughout the history of our nation.
Congratulations on your nomination, Dean Kagan. May God grant you wisdom and humility. No one else will.
Monday, May 10, 2010
Such is the case with Oregon's Workplace Meeting Law (.pdf).
I know that this law is an attempt at prior restraint. What is amazing to me is that legislators in the state felt that a business's compulsion of employees to attend a meeting that dealt with either politics or religion so repugnant, that it felt it could do what Justice Potter felt he could not, define the material so objectionable as to be forcibly withheld from ones employees. If we assert that the test proposed by Stewart in Miller v. California didn't have the same problem, it is that the test became "that to prove obscenity it must be affirmatively established that the material is 'utterly without redeeming social value.'"
So, Oregon, seeking to create a better workplace environment for Oregonians has decided that it is best for employees not to be put into situations where religious or political speech make take place. That is to say, that Oregon views religious or political speech on a par with hardcore pornography. From Miller v. California:
All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572:
. . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social [p21] value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .
What value exists in outlawing the compulsory attendence of employees to a meeting of those employees where the primary purpose of the meeting or communication is to communicate the opinion of the employer about religious or political matters? From what error, what wrong, what transgression is the employee being protected? It must be seen, by our Oregon Legislature, as harm on par with that of hardcore pornography. Not content to intrude into the workplace by regulating wages and work conditions, now the regulators of Oregon wish to control the content of the communications held between employers and employees.
Let's take a minute and think about pornography.
If you're at work, here's a simple test: get on-line, bring Google up on your web browser, and type in the words "free pornographic movies." There are approximately nine million, five hundred thousand results for "free pornographic movies." Now, click on a link. Now, ask yourself, "Am I going to get fired?"
Where was the "prior restraint" between you and your access to pornography? None. You wanted pornography, you entered the search terms, and immediately you were given access to pornography. And, you're at work.
Have you been harmed?
According to the Oregon Legislature, probably not. Pornography is protected speech. Religion and politics are not. This is why the recent press release by Bureau of Labor and Industries is so disturbing to me.
Employer groups argued law is unconstitutional, preempted by federal law
“Although I am not the enforcer of
Before the law went into effect, Associated Oregon Industries and the US Chamber of Commerce filed suit against Avakian and the Laborers International Union of North America, Local 296, claiming the law is unconstitutional and illegally limits an employer’s right under the National Labor Relations Act to hold workplace meetings. Judge Mosman’s ruling dismissed the case against both respondents, saying that it was premature to rule on the merits of the case when no harm had yet been shown. Avakian and other supporters of the law cheered the decision while recognizing that there could be future challenges.
“This decision is good news for Oregon’s workers and a victory for the wider labor community as well,” Avakian said.
The Bureau of Labor and Industries defends the rights of workers and citizens to equal, nondiscriminatory treatment in workplaces, housing and public accommodations and encourages and enforces compliance with state laws relating to wages, hours, terms and conditions of employment. The bureau also partners with business and labor organizations to build a skilled workforce in
Some may say that Oregon is a screwed-up place that is anti-business. I would go a bit farther. Oregon is a place where normal people with normal hopes, dreams and visions are discouraged. And it is the policy of the State to repress, censor and impose prior restraint upon those who would find disagreement with the abnormal hopes, dreams and visions of the ruling class. That normal Oregonians weren't able to find a judge to rule on the prior restraint elements of this law shouldn't be surprising.
Oregon. We do things differently here.