Legislation Course @ Moritz College of Law

Class plans for this week and beyond

Just a quick note to remind everyone about this week's class plans:

1.  I will clarify any confusion I have created about the grading of the mid-term paper and about the format of the final exam.  (Remember that the mid-term paper needs to be handed in to my secretary before the end of this week.)

2.  I want to talk just a bit more about Hyle v. Porter, with a focus on two questions: (A) what is the strongest statutory interpretation theory one could put forward to support the Ohio Supreme Court's ruling, and (B) what should the Ohio legislature do in response to the ruling?

3.  I want to focus on the issues and statutory construction canons that appear in the Fourth Circuit ruling in US v. Hayes (available here), with a focus on two questions: (A) what canon best accounts for the outcome in the Fourth Circuit, and (B) does the constitutional doubt canon have any relevance here?

Welcome back ... to a new focal point for statutory interpretation

I hope everyone had a restful break because we are going to have a hard charging last few weeks of class focused on issues of statutory interpretation. 

Helpfully, the Supreme Court today decided to bring attention to an interesting (and complicated) statutory issue by granting cert in U.S. v. Hayes (07-608), to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence.  The Fourth Circuit decision under review in Hayes is available here.  The Fourth Circuit Hayes opinion covers a lot of issues we will be discussing in the weeks ahead, and anyone taking the time to read Hayes will have a running start on understanding the statutory interpretation concepts we will cover in the remainder of the semester.

Are the Democrats violating the Constitution?

Though a throw-back to materials we read in the first part of the semester, I thought folks might be interested to see this news from today's CNN political ticker:

The Democratic National Committee is violating the equal protection clause of the 14th Amendment by allowing only four states to hold caucuses or primaries before the first Tuesday in February, a Florida attorney argued Monday before a federal appeals court.

Attorney Michael Steinberg filed suit in August on behalf of Democratic Party activist Vincent Dimaio after the DNC said it would not seat Florida delegates at the national convention because the state party defied party rules and scheduled its primary for January 29.

A federal judge in Florida dismissed the lawsuit in October, but Dimaio appealed. "You can't treat the citizens of some states differently than other states," Steinberg told reporters after the hearing. "What I tried to assert is that the DNC has the right to make rules … but the rules have to be the same for all the states."

Additional (optional) readings on residency restrictions

Anyone deeply interested in the law, policy and litigation surrounding sex offender residency restrictions should check out a new student note (and other links) discussed here at my SL&P blog.  In addition, the group Human Rights Watch recently produced this extraordinary report titled "No Easy Answers: Sex Offender Laws in the US."  Though covering lots of issues, Chapter 9 of the report is focused on residency restriction laws, and it details some of the forms these laws have taken in states other than Ohio:

• In 2002, Iowa legislators passed a law prohibiting registered offenders whose victims were minors from living within 2,000 feet of any school or child care center. Violators face up to two years in prison and a $5,000 fine.

• In 2006, Georgia passed a sex offender zoning law which would prohibit any registered sex offender from living within 1,000 feet of places where children gather, including bus stops and places of religious worship.

• In November 2006, California voters by a large measure (70 percent) passed Proposition 83, a ballot initiative that, among other things, prohibits any registered sex offender from living within 2,000 feet of any school, daycare facility, or place where children gather.

Additional information and filings in Hyle v. Porter

After re-reading Hyle v. Porter, No. 2008-Ohio-542 (Ohio S. Ct. Feb. 20, 2008) (available here), for the fourth time, I still had lots of unanswered questions about the case.  Helpfully, the Ohio Supreme Court's website provides access at this link to a lot of the case documents (including all the briefs filed in the Ohio Supreme Court).

The ruling below coming from the First District in this case is available here, and it provides additional interesting background information.  I found this passage from that ruling especially noteworthy:

In the summer of 2005, Hyle had discovered that Porter's home of 14 years was within 983 feet of St. Jude Elementary School.  Hyle then sued under the rule, requesting that the court enjoin Porter from remaining in his home.

St. Jude is not visible from Porter's property.  And it is impossible to walk to the school in a straight line without averting obstacles, hurdling hedges, traversing trellises, or otherwise encroaching on neighbors' property.  Despite the fact that the meandering path to St. Jude would have required that Porter travel “over the river and through the woods,” the legislature and the court below decided that the 1,000 feet is measured as the crow flies.  Although Porter is not a crow and cannot fly, the trial court found that Porter was a registered sex offender whose back yard was within the 1,000-foot radius extending from St. Jude.  So Porter was evicted.

One dated(?) view of one(?) law school's problems

Inspired by a student follow-up to yesterday's class, I found this great old review of Richard Kahlenberg's notable book about Harvard Law School, a book which I read when I was a 3L at HLS.  The full book text of Broken Contract is available here via Google book, though this June 1992 review highlights the book's themes and adds new insights.  Here are a few snippets from the review, which echoes some themes I expressed in class on Friday:

The point is not that private practice is always evil, but that so many who enter Harvard get turned away from their original goals.  Seventy percent enter saying that they want to do public interest work; 95 percent leave to work in law firms, banks, and the like. This is quite a feat, especially at a time when, to hear conservatives tell it, academia is teeming with Marxists bent on tearing the system down. Harvard Law has its share of Marxoids, known there as proponents of Critical Legal Studies.  But Kahlenberg shows — and this is probably his most important insight — how the Crits help create the corporate hired guns they deplore.  Deconstructing the law, they deconstruct their students' idealism as well....

During his first year, Kahlenberg attends a meeting with [Harvard's] public interest adviser (a position since eliminated), who cites [this] estimate: 95 percent of the nation's legal time is spent serving the wealthiest 10 percent, 5 percent on the poor through legal services, and virtually nothing on the 160 million Americans in the middle.

One telling aspect of this 1992 review is how "current" it still seems, even though it was written when many current law students were in grade school. 

Some very notable folks graduated from HLS during the period Kahlenberg describes in his book: Kahlenberg himself graduated from HLS in 1989; Michelle Obama graduated from HLS in 1988; Barack Obama graduated from HLS in 1991; current US Solicitor General Paul Clement graduated from HLS in 1992.  Hmmm....

Incarceration statistics and a nation's collective responsibility

Here are some materials and ideas to follow-up on parts of Friday's class discussion: 

First, the potent Pew Center report, "One in 100: Behind Bars in America 2008." which I showcased in class is discussed and linked here.

Second, I quickly mentioned in class President George Bush's 2005 inaugural address.  That address can be found at this link, and here are a few inspiring excerpts:

America's vital interests and our deepest beliefs are now one.  From the day of our Founding, we have proclaimed that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth.  Across the generations we have proclaimed the imperative of self-government, because no one is fit to be a master, and no one deserves to be a slave.  Advancing these ideals is the mission that created our Nation.  It is the honorable achievement of our fathers.  Now it is the urgent requirement of our nation's security, and the calling of our time....

We will persistently clarify the choice before every ruler and every nation: The moral choice between oppression, which is always wrong, and freedom, which is eternally right.  America will not pretend that jailed dissidents prefer their chains, or that women welcome humiliation and servitude, or that any human being aspires to live at the mercy of bullies....

The leaders of governments with long habits of control need to know: To serve your people you must learn to trust them.  Start on this journey of progress and justice, and America will walk at your side....

All Americans have witnessed this idealism, and some for the first time.  I ask our youngest citizens to believe the evidence of your eyes.  You have seen duty and allegiance in the determined faces of our soldiers.  You have seen that life is fragile, and evil is real, and courage triumphs.  Make the choice to serve in a cause larger than your wants, larger than yourself — and in your days you will add not just to the wealth of our country, but to its character.

America has need of idealism and courage, because we have essential work at home — the unfinished work of American freedom. In a world moving toward liberty, we are determined to show the meaning and promise of liberty....

In America's ideal of freedom, the exercise of rights is ennobled by service, and mercy, and a heart for the weak. Liberty for all does not mean independence from one another. Our nation relies on men and women who look after a neighbor and surround the lost with love. Americans, at our best, value the life we see in one another, and must always remember that even the unwanted have worth.  And our country must abandon all the habits of racism, because we cannot carry the message of freedom and the baggage of bigotry at the same time.

Third, for a brief review of the Pew Center's report, you can check out this article about the Pew report from the media outlet Al Jazeera:

More than one percent of US adults are serving prison sentences, higher than any other country in the world, according to a new report. 

The US penal system held more than 2.3 million adults at the start of the year, the Pew Centre on the States said on Thursday. More populous China was ranked second with 1.5 million behind bars, while Russia was third with 890,000. "Beyond the sheer number of inmates, America also is the global leader in the rate at which it incarcerates its citizenry, outpacing nations like South Africa and Iran," the report said.

The report said growth in prison numbers had not been driven by a similar increase in crime rates or a corresponding increase in the nation's population.  "Rather, it flows principally from a wave of policy choices that are sending more lawbreakers to prison and, through the popular 'three-strikes' measures and other sentencing enhancements, keeping them there longer," it said.

Correction expenditure US states spent more than $44bn on corrections last year, the report said, compared with $10.6bn in 1987.  Ryan King of the Sentencing Project, a US prison reform group, told Al Jazeera that many of those currently incarcerated were serving sentences for minor offences or were drug users. "We are using tens of billions of dollars of our domestic resources to incarcerate individuals who would be much better off either under community supervision or in a public health treatment programme."

The report said that the national prison population had almost tripled between 1987 and 2007.  While one in 106 adult white men are incarcerated, one in 36 Hispanics and one in 15 African-Americans are behind bars.

Hmmmmm...  I guess President Bush is quite insightful when, in his 2005 inaugural address, he makes much of "the unfinished work of American freedom."  And the statistics in the Pew report provide another reminder of the real work for all of us if we take seriously, as I think we should, President Bush's righteous assertion that "our country must abandon all the habits of racism, because we cannot carry the message of freedom and the baggage of bigotry at the same time."