Supreme Court Parody of Gilbert & Sullivan

Legal Times reports that John Barrett of St. John’s University School of Law in NY recently found a parody of a song from The Mikado written by Chief Justice William Rehnquist in 1953 in the papers of Justice Robert Jackson at the Library of Congress. Barrett’s article A Rehnquist Ode on the Vinson Court (Circa Summer 1953), Green Bag 2d, Vol. 11, p. 289 (2008) is available at SSRN. The full text of the parody for all you fans of Gilbert & Sullivan is here.

PARODY: Tune, Pish Tush’s solo from Act I of Mikado
(“Our great mikado, virtuous man, etc.”)

Our Great Chief Justice, Virtuous Man
When He to Rule Our Court Began
Resolved to try
A plan whereby
The Judges might be steadied

So he decreed with stern portent
That who thereafter did dissent
Unless he had the Chief’s consent
Would forthwith be beheaded

This hard decree, of such import
Caused great dismay throughout the court
Verbose and mum, and smart and dumb
Were equally affected

The judges who by F.D.R.
Had come to lord it o’er the bar
Took great offense
At this pretense
By one whom Harry’d selected

Now Stanley Reed evades the ban
In about the only way he can
“Without a label
No one is able
To tell if I’m dissenting”

And Bill and Hugo wrote the Chief
“It is our most considered belief
Your rule has taint
of prior restraint
To it we’re not consenting”

Felix too was up in arms
When Fred stood fast against his charms
“My weekly speech
Should rightly reach
The ears of errant lawyers”

R.H.J. the Chief embraced
“With this restriction on me placed
With Shay and you
I’ll now pursue
The vagaries of baseball.”

Federal Lawsuit Challenges War in Iraq

A press release issued by Rutgers University announced the filing today (May 13) of a law suit, New Jersey Peace Action v. George W. Bush, in the Federal District Court in Newark, NJ challenging the legality of the war in Iraq. The plaintiffs include a group called New Jersey Peace Action and two leaders of the New Jersey chapter of Military Families Speak Out (MFSO), an anti-war organization of people with relatives or loved ones currently serving in the military in Iraq. The Rutgers Law School/Newark Constitutional Litigation Clinic filed the suit seeking a Declaratory Judgment that the preemptive war against Iraq by President Bush in 2003 violated Article I, Section 8 of the US Constitution, which assigns to Congress the power to Declare War. Half a dozen Rutgers Law School students have been working with Prof. Frank Askin and his colleagues in the past academic year studying the issues and preparing the law suit.

According to Askin, the Complaint relies on the annals of the 1787 Constitutional Convention, where the Founders deliberately denied to the president the power to wage war except in response to a sudden attack when Congress did not have time to act. The complaint cites a 19th Century Supreme Court ruling in Bas v. Tingy, 4 U.S. 37, (1800) holding that an all-out, or "perfect," war could only be declared by Congress, but Congress could authorize the president to wage a quasi, or "imperfect," war under strict limits as to scope and duration without a full-scale Declaration, as they did during the quasi-war with France from 1798 to 1800. Bas v. Tingy was the first major US Supreme Court test of the meaning of the power to wage war. It arose during President John Adams' administration when the nation found itself in an undeclared sea war with France in the course of which one of our merchant ships had been captured by the French and then retaken by an American public armed ship. The case involved a suit by the owner of the merchant ship who challenged a 1799 law authorizing an award of half the value of his ship and cargo to a public armed ship that had retaken it from an enemy. The plaintiff argued that there was no declaration of war between the United States and France and that France could not be an enemy. The owner of the public armed ship of course took the opposite view.
The Supreme Court agreed with the owner of the public armed ship dismissing the contention that America and France were not at war because of the absence of a declaration. In Bas v. Tingy, the Supreme Court expanded the concept of constitutionally permissible war to include imperfect war. The next major test of the war powers cam in The Prize Cases, 67 U.S. 635 (1862) where the court shrank the concept of war to include blockades that occurred before the Civil War. The effect of this case was to restrict even further Congress' exclusive franchise to declare or authorize it (as in Bas v. Tingy).

The Complaint acknowledges that earlier law suits challenging U.S. military actions without a Congressional Declaration since the end of World War II have failed in the lower federal courts. The Supreme Court has never held that the president may wage an all-out war against a sovereign nation in the absence of such a Declaration. The plaintiffs in this case face an uphill battle given the history concerning constitutional war powers. The federal courts will likely choose not to intervene, claiming that the disagreement between the president and Congress is a political question. Nonetheless, this will be litigation worth following.

A Firm Grows in Brooklyn

Weil, Gotshal & Manges LLP, one of the largest law firms in the world, announced this week that it will expand its Manhattan headquarters in the former GM Building on 5th Avenue by opening a new office in Downtown Brooklyn's MetroTech Center. The space in 15 MetroTech, within walking distance of BLS, is one of the newest buildings within the MetroTech Commons and a major presence in the Downtown Brooklyn area. The office will house several of the firm's staff groups, including employees in Information Systems, Finance and Operations.

Weil Gotshal is a global law firm of approximately 1,300 lawyers, including over 300 partners. In addition to its New York headquarters, it has offices in Austin, Boston, Budapest, Dallas, Frankfurt, Hong Kong, Houston, London, Miami, Munich, Paris, Prague, Providence, Shanghai, Silicon Valley, Warsaw, Washington DC and Wilmington. Its move to downtown Brooklyn is scheduled for August and is the first for a major law firm.

MetroTech Center spans ten blocks of Downtown Brooklyn between Flatbush Avenue and Jay Street and is located near many of the borough's cultural institutions, including Brooklyn Law School. An article in New York Lawyer (reprinted from an article by Brian Baxter in The American Lawyer) states that “rates in the GM Building run about $120 per square foot while comparable space in Brooklyn costs between $35 and $45.” The proposed Atlantic Yards development project in downtown Brooklyn is serving as a magnet for businesses to relocate to the area.

Law Day, U.S.A., 2008

Fifty years ago, President Dwight D. Eisenhower issued Proclamation 3221 designating May 1, 1958 as Law Day – USA, the first time that Law Day was recognized in the US. The origins of Law Day go back to 1957, when Charles S. Rhyne, President of the American Bar Association (ABA) envisioned a special day to celebrate the American legal system. The idea arose at the height of the Cold War when most countries celebrated May Day or International Workers Day on May 1. Law Day was created to counterbalance these celebrations which were perceived as communist. The issuance of presidential proclamations recognizing Law Day has continued every year since 1958. A complete list of these proclamations with links to the Code of Federal Regulations pages for them is available at the Law Library of Congress page on Law Day.

Brooklyn had a prominent role in the history of Law Day as it was Brooklyn-born Rep. Emmanuel Cellar, Chairman of the House Judiciary Committee, who introduced H. J. Res. 32 which Congress passed as Pub. L. 87-20. Law Day is currently codified in the US Code at 36 U.S.C. §113.

Each year, Law Day events and programs are planned by bar associations throughout the country. This year, the ABA has selected “The Rule of Law” as the theme for the 50th anniversary of Law Day. Today the White House issued a proclamation to recognize “the fundamental role that the rule of law plays in preserving liberty in our Nation and in all free societies”. Interestingly, pursuant to 36 U.S.C. 119, the White House also recognized today, the first Thursday in May, as the National Day of Prayer.

NYC is “Marijuana Arrest Capital” with 39,700 Arrests in 2007

A 108-page study, "The Marijuana Arrest Crusade in New York City: Racial Bias in Police Policy 1997-2007", written by Harry Levine of Queens College and lawyer Deborah Patterson Small, was released yesterday by the New York Civil Liberties Union. The report shows nearly 400,000 arrests for possession of small amounts of marijuana since 1977, when the NY State legislature amended the Rockefeller Drug Laws by passing the Marijuana Reform Act of 1977. That reform made simple possession of marijuana a violation and not a crime under § (221) of the State Penal Law.

Notwithstanding these reforms, the report alleges that most of the arrests were based on a questionable stop and frisk campaign aimed primarily at minorities and young people and not for having marijuana “burning or open to public view”. Data provided by the Division of Criminal Justice Services showed that 52% of the suspects were Black, 31% Hispanic and only 15% White. Blacks represented 26% of the city’s population, Latinos accounted for 31% of the arrests but 27% of the population and Whites represented only 15% of those arrested while comprising 35% of the population.

The report puts the yearly cost to NYC of arresting, jailing and arraigning an average of 35,000 people a year, mostly teenagers and young adults, at approximately $53 million to $88 million. Despite NYPD claims that the effort is effective, the report says the arrests do not reduce serious or violent crime and may increase it by diverting officers from more effective anti-crime work.

US Supreme Court Rejects Challenge to Law Requiring Photo ID for Voters

Today’s Bloomberg News reports that the US Supreme Court by a vote of 6-3 in the case of Crawford v. Marion County Election Board rejected a challenge by the Indiana Democratic Party to Indiana's photo id requirement for voters. The Indiana Voter ID Law (SEA 483), passed in 2005, is viewed as one the nation's strictest voter-ID law requiring registered voters to present photo ID’s to vote at the polls. According to the opinion, the statute applies to in-person voting at both primary and general elections but not to absentee ballots submitted by mail.

Justice Stevens, writing for the majority, writes at p. 11 of the opinion:

The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history…It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists.

Footnote 11, citing to voter fraud with a local New York flavor, reads:

One infamous example is the New York City elections of 1868. William (Boss) Tweed set about solidifying and consolidating his control of the city. One local tough who worked for Boss Tweed, “Big Tim” Sullivan, insisted that his “repeaters” (individuals paid to vote multiple times) have whiskers:
“When you’ve voted ’em with their whiskers on, you take ’em to a barber and scrape off the chin fringe. Then you vote ’em again with the side lilacs and a mustache. Then to a barber again, off comes the sides and you vote ’em a third time with the mustache. If that ain’t enough and the box can stand a few more ballots, clean off the mustache and vote ’em plain face. That makes every one of ’em good for four votes.”

Recalling the colorful past of Tammany Hall to justify voter ID laws seems dated and out of touch with todays' voters which Justice Souter’s dissenting opinion addresses in real terms:

Tens of thousands of voting-age residents lack the necessary photo identification. A large proportion of them are likely to be in bad shape economically…The Voter ID Law places hurdles in the way of either getting an ID or of voting provisionally, and they translate into nontrivial economic costs. There is accordingly no reason to doubt that a significant number of state residents will be discouraged or disabled from voting.

Free New Web-based Legal Library

An article in today’s NY Times reports on JDSupra, a website that began in February 2008 where consumers can do preliminary research on legal issues before seeking help from a lawyer. The site is free of charge but requires users to register in order to access documents. Lawyers and law firms can use the site as a marketing tool to promote their practice by uploading legal documents, memos, forms, filings and briefs for use by the legal community and the public.

The site is searchable by keyword allowing refined searches by jurisdiction, court/circuit/region, type of filing and subject matter. The number of organizations and firms that have contributed documents to the site is small bit growing. The firms with the largest number of contributions to the website are the Electronic Frontier Foundation and Morrison & Foerster.

There is a Hot Docs section of newsworthy filings, for example an April 21, 2008 NJ Supreme Court decision in State v. Reid (that ISP subscribers have a privacy right in their internet data and that law enforcement officials need a grand jury warrant to have access to their private information) and a newly posted U.S. Department of Labor - Employees' Compensation Appeals Board decision on an employee's claim that exposure to Agent Orange caused cancer. While these documents are available on commercial databases, the FAQ section on the website states:

Today there are millions of court filings, decisions, and articles on the law sitting idly in the various hard drives and filing systems of the legal community. Only a fraction of these documents are on Westlaw, LexisNexis, and other expensive services.

Given the limited number of participating lawyers and law firms registered with JDSupra and the fact that the accuracy of material posted on the site is dependent on users to flag questionable documents, it is not likely that JDSupra will provide competition for paid legal research providers like LexisNexis and Westlaw. But tech-savvy researchers now have a new web-based library tool.