I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Health Care Reform By Increments

The whole Admiral Ackbar thing makes the New York Times

Well, at least a blog.  And it includes a quote from Lucasfilms on the subject.

For a character who makes only a passing appearance in the original “Star Wars” trilogy, things are going swimmingly for Admiral Ackbar, a bit player from “Return of the Jedi.” The Atlanta Journal-Constitution reported that the students of the [...]

SCOTUS blog legal history post about the Supreme Court and civil rights in the late 19thC

The SCOTUS blog is having some posts about the U.S. Supreme Court and race.  One is a nice discussion of two decisions from the 19th Century limiting the scope of the Reconstruction Amendments by Robert Cottrol, a professor of law and history at George Washington University.  It begins:

Chances are if you went to law school sometime in the last half-century you absorbed a certain narrative about race and the Supreme Court.  The Court was the hero of that narrative.  Its 1954 decision in Brown v. Board of Education cut through the Gordian knot that had long stifled racial progress in the nation.  The decision, the first act of the new Warren Court, gave strength and heart to the postwar Civil Rights movement and ultimately courage to the political branches.  It helped precipitate a civil rights revolution, one in which the law went from being an active abetter of American-style apartheid, Jim Crow, to being the chief vehicle for attacking racial discrimination.  The Court’s school desegregation decision would become exhibit A in the argument for a robust view of the judicial power.  The decision would also give the Supreme Court a moral authority that has increased in the ensuing decades with greater national acceptance of the 1954 decision.

That narrative is true as far as it goes.   And yet Brown and the undoubted boost that it gave to the cause of racial justice in postwar America have served to obscure an unpleasant truth.  If the Supreme Court played an important Continue reading SCOTUS blog legal history post about the Supreme Court and civil rights in the late 19thC

Open Thread

I was asked, everyone has been well-behaved with lots of opportunities for annoying responses, and so here’s one.

Health Care Question…

By the way, did we have a referendum on the health care bill? I don’t remember being asked when the American people “rejected” it.

Motorhome Diaries Folks File Motion to Suppress, tort claim letter

The Motorhome Diaries folks have fired their next barrage against Jones County.  First, from an article in the Laurel, Mississippi Leader-Call that sums up the situation:

Pete Eyre, Adam Mueller and Jason Talley were traveling through Jones County on I-59 North on May 14 when they were stopped by Jones County deputies.

In Laurel Justice Court in September, deputy James Atkins testified that he pulled the group’s RV over because he could not read the temporary tag. He said the three were later arrested because they were disruptive and didn’t obey his commands when they were asked to show identification. The three were found guilty of their respective charges. Their bond payments were enough to cover the fines on their charges and no jail time was required.

According to a letter from Jackson-based attorney Michael Cory, the agencies are being sued “for the unlawful conduct of their law enforcement officers who were acting within the scope of their employment in reckless disregard of the safety and well-being of the claimants and the reckless destruction of their property. None of the claimants were at the time of the event described below engaged in criminal conduct.”

Continue reading Motorhome Diaries Folks File Motion to Suppress, tort claim letter

“Mr. Yoo and Mr. Bybee were not acting as fair-minded analysts of the law but as facilitators of a scheme to evade it.”

The editorial page of the New York Times has apparently been thinking through its reaction to the recent OPR opinions as deliberately as I have (note the quote in the title). The lede sentence is haunting to me as a lawyer:

Is this really the state of ethics in the American legal profession? Government [...]

It all depends on who’s ox is gored: John Yoo and Youngstown

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) is the leading case on presidential power in wartime, and specifically on the president’s authority with regard to congressional power when the nation was at war.  Justice Black’s opinion frames the issue in those terms:

We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills. … The Government’s position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United States.

The opinions (there was a majority opinion, a dissent, and five opinions concurring in the majority) grappled in a serious way with the scope of presidential power in wartime (there are extensive quotes from the opinions at the bottom of the post to illustrate this point).

One of the most remarkable things about John Yoo’s opinions about torture and presidential power that he wrote while at the Justice Department was that they did not bother to discuss, distinguish, or even mention Youngstown. Brad DeLong has lead a major part of the charge against John Yoo, by demanding the administration at Berkeley consider whether Yoo was fit to continue as a law professor.  DeLong argued that Yoo had so violated professional norms his tenure should be revoked; one point he has raised is about Yoo’s failure to even mention Youngstown in the torture memos.

Yoo’s memos concern presidential powers in a time of war. One famous precedent with which any lawyer would have to grapple is the Supreme Court’s decision in Youngstown, concerning President Truman’s seizure of the country’s steel mills to keep them rolling during the Korean War. The Supreme Court ruled his action unconstitutional. The Youngstown case set out the Supreme Court’s judgment as to how far the president’s inherent powers go in a wartime emergency and to what degree those powers are subject to congressional authority.

In his memos, however, Yoo never mentioned Youngstown—either to distinguish it as sufficiently different that the decision does not control, or to argue that it was wrongly decided and should be overturned. This, the lawyers say, is compelling evidence that Yoo was acting not so much as a lawyer but as a political hatchet man.

Last year, Yoo did see fit to mention Youngstown in a Wall Street Journal op-ed about whether the president had the power to ignore legislation– in that instance, federal wiretapping statutes.  He thought the Justice Department “absurd” to take the position that legislation like that limited presidential power, and jeered at citation to Youngstown– “Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes.”

Oh.

It’s about labor disputes.

Not about the scope of presidential power in wartime.

I think what we have here is equivalent to a con law professor telling us that Brown is an education law case about pupil assignments, and I’m reminded of Justice Holmes’s remark in “The Path of the Law” that the color of the hat one wears when signing a contract is not relevant to questions about the nature of the contract being signed.  It is untenable to say that the issue’s origin as a labor dispute– a threatened strike– means that the case did not deal with questions of presidential power in wartime.

So there it was, till yesterday.  Yesterday, John Yoo, through counsel (Miguel A. Estrada and Scott P. Martin of Gibson, Dunn &  Crutcher.  Folks may remember the two year battle over Estrada’s nomination as a circuit judge during the Bush adminsistration) filed a brief in a case where Yoo was sued by Jose Padilla for facilitating the torture of Padilla through writing those torture memos.  On pages 23 and 24 of the brief (which I am going to assume that Mr. Yoo, a lawyer, has read), there’s this about Youngstown:

The holding of that case, of course, is that by seizing steel mills, President Truman had impermissibly encroached onto congressional lawmaking authority. See id. at 588- 89. “The Founders of this Nation,” the Court held, “entrusted the law making power to the Congress alone in both good and bad times.” Id. at 589 (emphasis added).

What? No mention of labor law?  Just something about Presidential power as against Congressional enactments?  I think we can give Yoo and his lawyers two points here for mentioning the presidential versus congressional power issue, but what should we deduct for failing to mention the wartime context?

Continue reading It all depends on who’s ox is gored: John Yoo and Youngstown

Thad Cochran and Roger Wicker: Against a vote on the jobs bill but for the jobs bill. Got it?

There are much harder gyrations politicians attempt to make– take, for instance, McCain’s current claim that he didn’t realize the Tarp money was going to banks (he said he was mislead by Bush’s secretary of treasury) and that Obama suspended his campaign, too– but the two Mississippi senators are in a small and exclusive [...]

Judge Hitner in Wilson v. Scruggs: Lets get on with it– and do so in 14 pt type

What remains of Wilson v. Scruggs is in the Federal District Court for the Northern District of Mississippi.  As I’ve posted earlier, Wilson has settled with Scruggs and Langston but continues to pursue Patterson, Peters, and Balducci (the last filed a pleading admitting liability but asserting other defendants were primarily liable).  The case is [...]