Ahh the effects of summer vacation on good intentions....
but I am back, and very excited to continue looking at this case. I couldn't sleep this morning, and since Anna could (after a hard night of teething, thank goodness), I decided to read a little more from my current case (and no, the purpose was not to put me back to sleep).
I finally got past the syllubus to the meat of the opinion. This is good stuff. I know it is good stuff when I don't have to read the paragraphs more than once and I am as glued to the pages as I would be in any popular novel. The fact that the case concerns a law school further adds to the interest because law school was my home for three years. The Christian Legal Society is not so different from organizations I myself joined as a law student. What an exciting time to be a Hastings law student-- at the forefront of an issue that is so intrinsic to the rights described in the First Amendment. I don't care where you stand on this issue, it is the fodder for great conversation and debate, and as a result, my brain is working, my palms are sweating, my heart is racing-- just like the good old days.
At the outset, I can already see that the CLS (Christian Legal Society) made what could be considered a fatal mistake. It stipulated to a fact that it later wanted to dispute. In cross motions for summary judgment, both sides stipulated to the fact that Hastings had an "all-comers" policy-- requiring that any registered student group open eligibility to all students, regardless of belief. And in essence, this is a fairly accurate statement of Hastings policy, but accepting that statement as a fact turned the attention to the constitutionality of Hasting's treatment of CLS, rather than the constitutionality of the policy itself. (CLS wanted to argue that the policy unfairly discriminates against religious groups that center their organization around religious belief). I know it is a small distinction, but one that probably turned the tide of this argument. In fact, the court acknowledges that there are previous pleadings and statements made by Hastings which cast some doubt on whether or not the policy truly is as "viewpoint neutral" as Hastings claims it to be. However, once two parties stipulate to a fact, it becomes a fact for the record that not only trumps previous pleadings, but it no longer becomes an issue for the court to decide. Thus, the court is deciding whether or not the restrictions imposed by CLS are in compliance with Hastings policy, and not on whether or not Hastings policy is constitutional.
Tough love by the Court. I can just see counsel for CLS hanging butting their head against the wall and thinking "why did I stipulate to that."
note to self: don't hand over the trophy before the fight has even begun.
more later!
Thursday, July 22, 2010
Friday, July 2, 2010
Second Case: Christian Legal Society v. Martinez
This is just a preliminary post because I have only read 8 pages and they have all been part of the syllabus. This case is 85 pages long, and the opinion, I believe, only takes up 35 pages of that. This was a 5-4 decision, obviously well-fought on either side, and because I have often found myself swayed by the persuasive words of certain justices, I thought it would be beneficial to share my thoughts prior to reading the case in its entirety.
Although I identify myself as a Christian, I have to say that I agree with the Univeristy's decision. Just because I agree with the beliefs of a certain group does not mean that I believe it is inherently wrong to restrict them in certain contexts. I choose my words carefully, because although I believe the University restricted them from a certain amount of school participation, I do not believe the University censored them in any way. They may not have the sponsorship of the University, but they still have the right to gather, to hold activities, and to exclude anyone they want from membership. The underlying principle for me is that I don't think a student should have to pay dues to support a group that it would be prohibited from joining.
I don't agree with homosexual conduct, or really any behavior that transgresses laws of chastisty, but I do believe that people should be free to live as they choose. Sometimes the laws of God are different than the laws of the land. There is a fine line between laws prohibiting the establishment of religion and laws restricting the free exercise of religion. This line often become indistict, and when it does, my religious sensibilities wage war with my more liberal sensibilities.
However, I do support a University's right to restrict university sponsorship to those organizations that allow open membership, as long as there are alternative opportunities for prohibited organizations to form and gather according to their own discretion.
more on that later. I anticipate that my opinions may change by the time I finish with this case
Although I identify myself as a Christian, I have to say that I agree with the Univeristy's decision. Just because I agree with the beliefs of a certain group does not mean that I believe it is inherently wrong to restrict them in certain contexts. I choose my words carefully, because although I believe the University restricted them from a certain amount of school participation, I do not believe the University censored them in any way. They may not have the sponsorship of the University, but they still have the right to gather, to hold activities, and to exclude anyone they want from membership. The underlying principle for me is that I don't think a student should have to pay dues to support a group that it would be prohibited from joining.
I don't agree with homosexual conduct, or really any behavior that transgresses laws of chastisty, but I do believe that people should be free to live as they choose. Sometimes the laws of God are different than the laws of the land. There is a fine line between laws prohibiting the establishment of religion and laws restricting the free exercise of religion. This line often become indistict, and when it does, my religious sensibilities wage war with my more liberal sensibilities.
However, I do support a University's right to restrict university sponsorship to those organizations that allow open membership, as long as there are alternative opportunities for prohibited organizations to form and gather according to their own discretion.
more on that later. I anticipate that my opinions may change by the time I finish with this case
Tuesday, June 22, 2010
First case finished
I just finished Levin v. Commerce Energy. It kind of reminds me of what I feel like after I go running. The running isn't necessarily fun, but it feels good after it is over.
So my impressions are these:
All of the Justices make sense. Some make more sense than others, but they can all sure argue in favor of their argument. I agreed with the holding of the court (remanding to the state court on principles of comity), but I think I agree most with the concurrence by Justice Thomas (stating that the case should have been remanded for lack of jurisdiction prior to even considering comity). I like it when they quote themselves from previous cases. And I am a sucker for a well-played quotation. The reason why I liked Thomas' opinion is that he considered the difference between "may" and "should" in one of the Court's previous decisions on which the current case seemed to turn. I like debates about semantics.
I also think it is funny when they talk about themselves, as a court, in the third person. They will say "I am still a little troubled by the Court's decision in the Hibbs case" or "while the Court's reasoning in Dow did not clearly define comity..." I especially think it is funny when they disagree with each other (and they obviously often do).
This was a modest case at only 28 pages. I found it reasonably clear to read. I did read the footnotes (I should say skimmed), but I did not look up other cases that were cited. I probably should have looked up the statute cited (The Tax Injunction Act), but I think I am still a little bit lazy at this point in my project.
So my impressions are these:
All of the Justices make sense. Some make more sense than others, but they can all sure argue in favor of their argument. I agreed with the holding of the court (remanding to the state court on principles of comity), but I think I agree most with the concurrence by Justice Thomas (stating that the case should have been remanded for lack of jurisdiction prior to even considering comity). I like it when they quote themselves from previous cases. And I am a sucker for a well-played quotation. The reason why I liked Thomas' opinion is that he considered the difference between "may" and "should" in one of the Court's previous decisions on which the current case seemed to turn. I like debates about semantics.
I also think it is funny when they talk about themselves, as a court, in the third person. They will say "I am still a little troubled by the Court's decision in the Hibbs case" or "while the Court's reasoning in Dow did not clearly define comity..." I especially think it is funny when they disagree with each other (and they obviously often do).
This was a modest case at only 28 pages. I found it reasonably clear to read. I did read the footnotes (I should say skimmed), but I did not look up other cases that were cited. I probably should have looked up the statute cited (The Tax Injunction Act), but I think I am still a little bit lazy at this point in my project.
Monday, June 21, 2010
its all coming back to me now...
Still continuing on that Levin v. Commerce energy case.
Today I finally got a chance to read a bit more. Making progress is good. This time I said a little prayer before beginning to read (a practice I sometimes employed as a law student), hoping that I could make sense of what had initially appeared to be a jumbled mess of gobbledy gook. And after really beginning in earnest-- I started understanding! What a breakthrough.
The issue being discussed is a classic civil procedure issue. It involves federal question jurisdiction stuff, and the give and take between state and federal courts. It took me right back to my first class, my first day, my first year of law school-- Civil procedure with Professor Thomas Lee. Civil procedure is one of those classes that you either hate or you optimistically put up with (i think "love" would have been too strong a word here). But love it or leave it, it is everywhere in everything you do in the law. It is kind of the omnipresent legal subject.
As a I read, I remembered why it was so hard to get your head around civil procedure. Cases weren't necessarily about concrete subjects like a contract being broken, or a criminal event, they were about the way a lawsuit was filed or whether the case could even continue in court, procedurally.
Like fire in my bones I can feel my power returning like Captain Planet. I AM GETTING IT!
So the plaintiffs are independent marketers of gas who are suing the tax commissioner of Ohio for giving them higher taxes to sell gas than some other competitors who offer combined services of selling gas AND installing it. Your basic discriminatory taxation. What relief do they want? They want Ohio to tax other the other guys just as much. They don't want their taxes lowered, they want the others to not get the tax breaks. Doesn't this seem a bit childish to you. Now I know there is a legal reason behind seeking this particular form of relief (something to the effect that you can't decrease a state's tax revenue). So maybe they thought "hey, whats not to like about getting the state more money," but to me it sounds like a child who sees another child getting a treat, and instead of asking for the treat, the child just asserts that it would be more fair if no one gets the treat. "If I can't eat a donut...no one can!"
There has also been quite a bit about the comity doctrine which, within the context of this case, states that a federal court should not interfere with a state legislature's determination of an appropriate tax, and more specifically, should not require an additional tax that the legislature did not deem necessary. Comity, in essence, is about respect and limits.
more later.
Today I finally got a chance to read a bit more. Making progress is good. This time I said a little prayer before beginning to read (a practice I sometimes employed as a law student), hoping that I could make sense of what had initially appeared to be a jumbled mess of gobbledy gook. And after really beginning in earnest-- I started understanding! What a breakthrough.
The issue being discussed is a classic civil procedure issue. It involves federal question jurisdiction stuff, and the give and take between state and federal courts. It took me right back to my first class, my first day, my first year of law school-- Civil procedure with Professor Thomas Lee. Civil procedure is one of those classes that you either hate or you optimistically put up with (i think "love" would have been too strong a word here). But love it or leave it, it is everywhere in everything you do in the law. It is kind of the omnipresent legal subject.
As a I read, I remembered why it was so hard to get your head around civil procedure. Cases weren't necessarily about concrete subjects like a contract being broken, or a criminal event, they were about the way a lawsuit was filed or whether the case could even continue in court, procedurally.
Like fire in my bones I can feel my power returning like Captain Planet. I AM GETTING IT!
So the plaintiffs are independent marketers of gas who are suing the tax commissioner of Ohio for giving them higher taxes to sell gas than some other competitors who offer combined services of selling gas AND installing it. Your basic discriminatory taxation. What relief do they want? They want Ohio to tax other the other guys just as much. They don't want their taxes lowered, they want the others to not get the tax breaks. Doesn't this seem a bit childish to you. Now I know there is a legal reason behind seeking this particular form of relief (something to the effect that you can't decrease a state's tax revenue). So maybe they thought "hey, whats not to like about getting the state more money," but to me it sounds like a child who sees another child getting a treat, and instead of asking for the treat, the child just asserts that it would be more fair if no one gets the treat. "If I can't eat a donut...no one can!"
There has also been quite a bit about the comity doctrine which, within the context of this case, states that a federal court should not interfere with a state legislature's determination of an appropriate tax, and more specifically, should not require an additional tax that the legislature did not deem necessary. Comity, in essence, is about respect and limits.
more later.
Wednesday, June 16, 2010
It begins...
I got my juris doctorate degree a year ago from BYU law school. After working a year at the Fourth District court in Provo, Utah, I quit my job so I could raise my daughter at home. I have taken and passed the bar in both Washington and Utah. Currently, I am not working (at least, not in any way that pays me money).
I am starting this Supreme Court project as a way to keep me legally minded and sharp until such a time as I can go back to work. I choose to stay at home with my daughter, Anna, who is almost a year old. I am not willing to compromise her childhood for my own ambitions, but at the same time, I love the law, I loved law school, and I know that at some point I will be a practicing attorney in some capacity. I need to be ready when that day comes, but I cannot just expect to come back to the law after a few years hiatus and expect that it will welcome me with open arms and a job offer. So I am taking matters into my own hands.
I am going to read one Supreme Court case a week and keep a journal of my thoughts as I struggle to understand the direction the law is going. This is an exciting time for the Supreme Court, and there are a lot of changes brewing. I don't want to be left out, and right now I could not tell you the difference between the opinions of Justice Kennedy and Justice Scalia. I want to change that. I want my mind to become a sharpened instrument like it used to be. And I know it is going to be a challenge, because it was a challenge when reading cases was my full time occupation. Since then, the most common reading I do is "Bubbles takes a bath" and "the Runaway Bunny."
So here are my first thoughts:
I have just started reading my first case, LEVIN v. COMMERCE ENERGY, INC., and I found myself having to read the first few paragraphs a couple of times each just to get my head around what I was reading. I had to take a break after the first page (but I am not going to watch The Bachelorette instead). I have gotten out of shape as far as legal reading is concerned. All the words are so long. It is a lot different than reading picture books. To top it off, the issues are not ones that particularly interest me-- some stuff about unequal taxation of natural gas suppliers. Yuuuck! I have only been away from the law for a year, and I already feel like it is like the first day of law school all over again.
I will write again when I have gotten further.
I am starting this Supreme Court project as a way to keep me legally minded and sharp until such a time as I can go back to work. I choose to stay at home with my daughter, Anna, who is almost a year old. I am not willing to compromise her childhood for my own ambitions, but at the same time, I love the law, I loved law school, and I know that at some point I will be a practicing attorney in some capacity. I need to be ready when that day comes, but I cannot just expect to come back to the law after a few years hiatus and expect that it will welcome me with open arms and a job offer. So I am taking matters into my own hands.
I am going to read one Supreme Court case a week and keep a journal of my thoughts as I struggle to understand the direction the law is going. This is an exciting time for the Supreme Court, and there are a lot of changes brewing. I don't want to be left out, and right now I could not tell you the difference between the opinions of Justice Kennedy and Justice Scalia. I want to change that. I want my mind to become a sharpened instrument like it used to be. And I know it is going to be a challenge, because it was a challenge when reading cases was my full time occupation. Since then, the most common reading I do is "Bubbles takes a bath" and "the Runaway Bunny."
So here are my first thoughts:
I have just started reading my first case, LEVIN v. COMMERCE ENERGY, INC., and I found myself having to read the first few paragraphs a couple of times each just to get my head around what I was reading. I had to take a break after the first page (but I am not going to watch The Bachelorette instead). I have gotten out of shape as far as legal reading is concerned. All the words are so long. It is a lot different than reading picture books. To top it off, the issues are not ones that particularly interest me-- some stuff about unequal taxation of natural gas suppliers. Yuuuck! I have only been away from the law for a year, and I already feel like it is like the first day of law school all over again.
I will write again when I have gotten further.
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