Legislation Course @ Moritz College of Law

Speaking of Ralph Nader...

it now appears that he might be gearing up for another run for President, according to this new CNN story.  I found these excerpts from the story especially relevant in light of our discussion today:

Nader has launched an official exploratory committee Web site, and said he will formally make a decision in about a month.  He said he is certain to get in the race if he can demonstrate the ability to raise $10 million and recruit enough lawyers to deal with ballot access issues....

Nader said he finds Democrats Hillary Clinton and Barack Obama both unacceptable candidates, and he said whichever wins the party's presidential nomination will not have an impact on his decision to run.  "They are both enthralled to the corporate powers," Nader said of the two leading Democrats....

Nader attracted close to 100,000 votes in Florida in 2000 — a state Al Gore ultimately lost to George Bush by approximately 500 votes. He brushes aside suggestions his candidacy this year may ultimately spoil the election for the Democratic Party. "Political bigotry will be the label on anybody who uses the word 'spoiler,' he said. "Because 'spoiler' means minor candidates are second class citizens. Either we have an equal right to run for election, or we are spoilers for each other trying to get each other's votes."

Hmmmmm....

A (risky? helpful?) open dialogue about our class final

As I have already mentioned a few times, I am not yet sure what kind of final I should give in this class.  Though I am leaning toward a 36-hour essay/policy take-home exam (option 2(d) discussed below), I am not sure such an exam format is student-friendly in the Spring Semester after a long 1L year.  Moreover, because I am (intentionally) focused on broad themes in our class, I am starting to think a final paper might be more appropriate than an exam.

Especially because class members have now just received their grades from first semester exams, I thought it might be useful to ponder the class final publically in this space and to encourage student input (either through comments or during our upcoming lunches).  Though I may eventually survey the whole class in a more formal manner, for now I want to lay out six basic options I am seriously considering and hear whatever reactions students might have to any or all of the possibilities.  So here goes:

1.  A traditional exam final (given in-class and closely timed) and comprised of (a) mostly focused issue-spotting questions OR (b) mostly broad policy questions.

2.  A take-home exam final (with some time pressure and strict word limits) and comprised of (c) mostly focused issue-spotting questions OR (d) mostly broad policy questions.

3.  A final paper (with a fixed deadline and strict word limits) and comprised of (e) a few shorter submissions due through the semester OR (f) a larger single paper submitted at the end of the semester.

Speaking of voting in Florida and Michigan... and primary structures

Providing a fitting follow-up to issues we talk about in class on Friday, check out this new press release from Hillary Clinton.  Here is the full text:

"I hear all the time from people in Florida and Michigan that they want their voices heard in selecting the Democratic nominee.

"I believe our nominee will need the enthusiastic support of Democrats in these states to win the general election, and so I will ask my Democratic convention delegates to support seating the delegations from Florida and Michigan. I know not all of my delegates will do so and I fully respect that decision. But I hope to be President of all 50 states and U.S. territories, and that we have all 50 states represented and counted at the Democratic convention.

"I hope my fellow potential nominees will join me in this.

"I will of course be following the no-campaigning pledge that I signed, and expect others will as well."

No mention of "one person, one vote," but a little bit of representational theory in this fascinating public statement.

UPDATE:  Monday's New York Times has this interesting article detailing how the structures of the primaries (and the importance of delegates) are impacting the politicking that surrounds all the voting that will take place on February 5.   Think some more about the concept of "one person, one vote" as you read this piece and think "hmmmm" about our current primary system.

Great student input on IDs and felon disenfranchisement

I hope today's class discussion helped folks get a sense of how I plan to use the "who" system (though I also hope that I'll get to more "whos" in each class and I want on Friday to quiz more "whos" about whether and how they care about classic issues related to electoral structures). 

Also, I am pleased to now post — and encourage comment reaction to — two great e-mail I received from students after class:

Comment #1:

I'm glad we got to discuss the issue of IDs and the impact it would have on voters, but I couldn't figure out where on the blog a comment about that would go.  I think it's easy for sheltered law students (who might not even know what current postage rates are due to online bill pay) to forget that voting in person takes a lot of time, in Columbus especially (I waited over two and a half hours in the rain in 2004).  Students don't want to miss class and working people don't want to ask for the time off or risk being late to work.  To get an government issued ID isn't easy: it takes transportation, money, and most importantly time to wait in line, go home to get even more documents and then go back and wait in an even longer line!  So it is nice that there is a more liberal policy now about absentee ballots in Ohio, but you have to know about them to make use of them, and as was evident in class, there are lots of educated people who don't know the rules about the absentee ballots, so how on earth can we expect everyone to know the current rules and take advantage of this easier method?

Comment #2:

I think this may be a very relevant article about how 1 person, 1 vote concept is undermined in our present system.  This article talks about black votes being suppressed by conviction in our penal system.

Many thanks to these students for sharing reactions and resources that are so blog-worthy.  Needless to say, these students earn some of those magical Berman bonus points.

Time to pick your who...

because I am going to call on folks this week to report which particular who they selected, and then ask folks to try to explain the import and impact of different structural features of the legislative process from that particular perspective.

Berman bonus points will go to any and everyone who reports a selected who in the comments here.

My statutory interpretation attack on acquitted conduct sentencing enhancements

As I mentioned briefly in class on Friday, I have been working on an amicus brief for the Sixth Circuit that questions federal sentencing enhancements on the basis of so-called "acquitted conduct."  Together with a terrific group of lawyers from a big New York firm working pro bono, last week we finished a short brief making a number of refined statutory arguments about reliance on acquitted conduct in the federal sentencing process.  The brief can be accessed at this link, and here is the heart of the statutory argument as explained in the brief's introduction:

[T]he directions that Congress set forth in the Sentencing Reform Act (SRA), and particularly the text of 18 U.S.C. § 3553(a), provide the ultimate instructions for sentencing decision-making by district and appellate courts.  Acquitted conduct enhancements in some cases — especially when they significantly affect the applicable Guideline range and the ultimate sentence imposed — may disserve the statutory purposes of sentencing that Congress enumerated in 18 U.S.C. § 3553(a) and sought to vindicate in the SRA.

Though one needs to know a lot about federal sentencing law and practice to understand the specifics and goals of this amicus brief, I hope interested students might read the brief to gain an appreciation of how practicing lawyers can construct statutory-based arguments.  Indeed, students who suggest lessons to be learned from the brief in the comments will earn Berman bonus points (and a free pass the first time I call on them and they are unprepared).

A (partial) list of whos

Aided by student feedback, I now have this refined (and still growing) list of potential "whos" for in-class "on-call" roles.  Divided somewhat artificially by process and product, possible whos include:

Process whos:

1. US President (and staff)
2. US Senator
3. US House member
4. US agency head
5. Ohio Governor
6. Ohio Senator
7. Ohio House member
8. Head of the National Democratic party
9. Head of the National Republican party
10. Head of the Ohio Republican party
11. Head of the Ohio Democratic party
12. Head of the AARP (or the Sierra Club or the Chamber of Commerce)
13. Head of a Grass-roots "outsider" group
14. Professional Lobbyist (will work for lots of $$)
15. Prominent member of traditional media
16. Prominent member of non-traditional media (e.g., Oprah, Rush, blogger)

Product whos:

1. US Supreme Court Justice
2. US lower court judge
3. US Attorney General
4. Ohio Supreme Court Justice
5. Ohio lower court judge
6. Ohio Attorney General
7. Lawyer with mostly individual private clients
8. Lawyer with mostly institutional private clients
9. Lawyer with a public policy group
10. Impacted citizen
11. Interested citizen

Of course, there are many other possibilities (which folks might use the comments to fill out).  As I mentioned in class, I encourage students to adopt a "who" that connects with personal and professional interests.

Intriguing SCOTUS ruling about politicial parties

This morning the Supreme Court issued a relatively short decision addressing election law and the First Amendment in New York State Board of Elections v. Torres (06-766).  The ruling, which can be accessed here, was unanimous although there were two little interesting concurring opinions. 

The decision is technically about the election process for state judges, but I think there are lots of lessons to be drawn from the case for our study of legislation.  Students who suggest some of those lessons through the comments will earn Berman bonus points (and a free pass the first time I call on them and they are unprepared).

Putting civil rights history in historical perspective

As I hope many class members realize, the hottest political topic right now relates to the Democratic in-fighting over the history of the Civil Rights Act.  Though there is lots of interesting aspects of this on-going story, I thought this article provides a thoughtful (and student-friendly) discussion of what the author calls "the historical record."

Following up on CVRA statute and litigation

The Crime Victims' Rights Act, which is codified at  18 U.S.C. § 3771, is a fascinating and under-examined statute that I may end up coming back to repeatedly.  In the short term, for the next chapter in the litigation I was describing to you today, check out this new post, "Tenth Circuit rejects CVRA claim in shooting case," on my sentencing blog.

I would be very interested in any reactions/comments to the CVRA as a statute and to this litigation over its terms.  (And, of course, bonus points are awarded to anyone who can find and link a video that's relevant to the discussion.)