As Orin wisely notes in the immediately preceding post, the typical law review article first footnote disclaimer “all errors are the author’s alone”  provides no useful information to the reader. Below are some alternatives which I have used:

“All errors are society’s fault.” 29 Hamline L. Rev. 520.

“Any errors are the fault of no-one in particular; rather, society itself is to blame.” 68 Alb. L. Rev. 305.

“All errors are the authors’ sole responsibility, but persons aggrieved by any such errors are encouraged to sue the companies which manufactured our computers.” 34 Conn. L. Rev. 157.

“Any errors in this article are the fault of society, and cannot be blamed on an individual.” 18 St. Louis U. Pub. L. Rev. 99. 

“Errors are entirely the responsibility of sinister unknown forces, not the authors.” 30 Conn. L. Rev. 59.  

Feel free to use any of these, provided of course that you include a citation to the original source. :)

Orin’s post may also be considered an oblique foreshadowing of the 2014 bestselling book: Barack Obama, My Autobiography, Part III: The Four Presidential Years, with the first footnote stating, “All my errors were because I did not listen to Cass Sunstein.”

Ross Douthat pens another excellent column in yesterday’s New York Times. He observes that “obsessing about the paranoia of the masses is often a way for American elites to gloss over their own, entirely nonsymbolic failures.” For example, “Today, establishment liberals would much rather fret about the insanity of the Republican base than reckon with the unpopularity of Barack Obama’s domestic program.”

For a good example, see this recent episode of Bloggingheads.tv, featuring Michelle Goldberg (The Daily Beast) and Sally Steenland (Center for American Progress) talking each other into ever-higher levels of paranoia against the American people, based on gross misinterpretations of the Tea Party movement.

Ann Coulter’s column today argues that Obama is not a Muslim; rather, he “is obviously an atheist.” The gist of the argument is “The only evidence for Obama’s Christianity is that he faithfully attended the Rev. Jeremiah Wright’s Trinity United Church of Christ for 20 years....Attending Wright’s church is the conscious, calculated decision to immerse yourself in hate-filled demagoguery and call it ‘Christianity.’”

I disagree with both the facts and the conclusion. Coulter is accurate in calling Jeremiah Wright “a racist nut.” However, that does not prove that Wright (and by extension Obama, to whatever extent Obama believes in Wright’s theology) is not a Christian. Some practitioners of “liberation theology” (including the black liberation theology variant) may simply be Marxists looking for some broadly-appealing rhetoric to add to their political program. Other practitioners, however, may be sincerely and otherwise-orthodox Christians who truly believe in both Christianity and Marxism, and in the liberation theology fusion of the two. For example, liberation theology was popular among many Catholics in Latin America from the late 1960s until 1984, when it was condemned by the Vatican’s Congregation for the Doctrine of the Faith. I think it is implausible to believe that, pre-1984, the many Latin American American bishops, priests, nuns, and Catholic lay people who embraced  liberation theology were all closet atheists. It seems much more reasonable to conclude that at least some of them were orthodox Catholics who, until 1984, could consider liberation theology to be one legitimate way of expressing the Catholic faith.

Similarly, I would suggest that many of the pastors in slave states in antebellum America who taught that slavery was legitimate because of the slaves’ inherent racial inferiority were also sincere Christians, albeit grossly mistaken in their teachings on this matter.

Ergo, belief in the racist, Marxist philosophy of black liberation theology is not necessarily incompatible with being a Christian who has orthodox beliefs on most matters of Christian doctrine (e.g., the trinity, the resurrection, virgin birth, and so on).

Second, the record of President Obama’s Christianity is not limited to his record of attendance at Reverend Wright’s nut-house. For example, this year, the President spoke at a prayer breakfast on Easter Sunday, on what the resurrection means to him personally. His remarks about “the Easter celebration of our risen Savior...and what lesson I take from Christ’s sacrifice” were entirely straightforward statements of orthodox Christianity. I doubt that any normal Christian, of whatever denomination, could theologically disagree with a single word President Obama said.

A couple weeks ago, I blogged about an article in the Korea Times reporting that the Obama administration was blocking the import of American-made M1 Garands and M1 Carbines which the South Korean government wished to sell into the U.S. market. The Korea Times reported that an unnamed Korean official said that the American government was blocking the imports because of objections to increasing the gun supply in the United States. Some blog commenters speculated that the Korea Times was wrong, and that the real objection must have been that since the rifles were probably gifts from the United States government, the terms of the gift required that the rifles be given back to the U.S. Army once the Koreans did not want them any more.

Today, Maxim Lott’s reporting for FoxNews confirms that the Korea Times accurately characterized the American government objections:

The Obama administration approved the sale of the American-made rifles last year. But it reversed course and banned the sale in March – a decision that went largely unnoticed at the time but that is now sparking opposition from gun rights advocates.

A State Department spokesman said the administration’s decision was based on concerns that the guns could fall into the wrong hands.

“The transfer of such a large number of weapons — 87,310 M1 Garands and 770,160 M1 Carbines — could potentially be exploited by individuals seeking firearms for illicit purposes,” the spokesman told FoxNews.com.

“We are working closely with our Korean allies and the U.S. Army in exploring alternative options to dispose of these firearms.”

The article quotes the Brady Campaign’s Dennis Henigan, and me, regarding the policy issues raised by the import ban.

Apparently a successful cause of action, according to today’s Wall Street Journal Law Blog:

Law Firm Hamburger War Heats Up

Powerhouse D.C. law firm Steptoe & Johnson has won an order to force a neighboring burger restaurant to stop omitting hamburger fumes into the firm’s air intake system.

See and Post Comments:

http://blogs.wsj.com/law/2010/08/26/law-firm-hamburger-war-heats-up?mod=djemlawblog_t

Today’s Wall Street Journal Law Blog has an article about the “UnemployedJD” blog of an unemployed law graduate. The website begins “My name is Ethan Haines.” The website features a picture of a trim white male who, according to the website, is on a hunger strike to protest his own unemployment and the unemployment of other law school graduates.

However, according to the WSJ, the website is operated by Ms. Zenovia Evans, who does not in any way resemble the profile of “Ethan Haines.” As reported by USA Today, Ms. Evans chose not to take the July bar exam, chose instead to study abroad in London, and is currently purusing a MBA. USA Today reports that she is not unemployed, but is instead an “independent contractor (which means no benefits) for a personal injury law firm, earning about $600 a week to hone her legal skills.”

UnemployedJD does not disclose where Evans/Haines attended law school. But a web search found a Zenovia Evans who attended the Auburn Hills campus of Thomas M. Cooley Law School.

The particular demands of the Evans/Haines hunger strike are that ten particular law schools provide certain information about the employment of graduates to an organization called Law School Transparency, and that the schools audit their career counseling programs “for effectiveness, resourcefulness, and accuracy.” [LST has no relation to Evans/Haines or the hunger strike.]

According to Evans/Haines, the ten schools to which s/he sent the hunger strike demands were “randomly selected law schools ranked in the Top 100 of the 2010 U.S. News & World Report’s annual rankings. These schools were selected because they stand to gain the most from keeping the current rankings structure in place.”

The Cooley Law School has been a long-time critic of the US News ranking sytem, which Cooley analogizes to ranking college football teams based on the quality of their freshman recruits, rather than by the results achieved by the teams. Cooley favors an alternative rankings system, under which Cooley scores in the top-20.

According to USA Today, “She says she owes more than $150,000 in loans.” (On the blog, she says that she authorized USA Today to reveal her real name.) Cooley’s current annual tuition is $30,644, with discounts of 25–100% available for students with high LSATs (starting at 149, with an additional 10% discount for Michigan residents).

It does not seem prudent for a person with $150,000 in debt to postpone the bar exam, study in London, and then enroll in a different professional school program.

Haines/Evans does not allege that Cooley Law School misled her in any way, or that Cooley’s Career and Professional Development Office failed to function in a professional and appropriate manner.

Surprisingly, Evans is also the proprietor of the J.D. Lifeline website, which sells a book for pre-law students, and another book for 1Ls. According to J.D. Lifeline, “now is the perfect time to go to law school.”

Regarding the progress of the hunger strike, Evans/Haines writes: “As of today, August 24th, I am officially at the end of the second stage of starvation. I have rejected all food thereby limiting myself to water and fruit juice for the past 12 days. Stage three – where death is highly probable – is in the very near future, but I have yet to receive any communication from law school officials regarding my Notice of hunger strike.  As of today, I have lost 15 pounds! I am at a loss for words…”

Given the near-death situation, one wonders if Ms. Evans is still able to perform her duties effectively at the law firm where she works.

Constant improvement of post-graduation data, and constant improvement of law school career counseling offices are both worthy goals. Certainly there is room for debate about the merits of the US News ranking system versus alternative ranking systems. To me, however, Mr. Haines and Ms. Evans do not appear to be particularly persuasive spokespersons for those causes.

In this polarized period of American politics, many people on the Right have been taking cheap shots at President Obama because he plays golf so much.

These golf-related criticisms are at least factually accurate, in contrast to the lies that Michael Moore told about George Bush supposedly vacationing much of the time. However, the criticisms of President Obama are misguided.

Of American Presidents since World War II, the one President who is now almost universally regarded as highly successful and constructive, by persons of all political persuasions, is President Dwight D. Eisenhower. While serving eight years as President of the United States, Eisenhower may have played over eight hundred rounds of golf. In other words, about twice a week.

Like President Obama, President Eisenhower was criticized by partisan opponents for his avid interest in golf.

Obviously there are many differences between President Eisenhower and President Obama. To begin with, the former came into office with demonstrated success in a very difficult executive job, Supreme Allied Commander Europe, defeating Hitler and Mussolini. By contrast, Obama was apparently successful as President of the Harvard Law Review, but was a failure at his only latter significant executive position, Chairman of the Board of the Chicago Annenberg Challenge, which attempted unsuccessfully to improve education in selected Chicago schools.

However, President Eisenhower demonstrated beyond any doubt that there is no inherent contradiction between being a good President and being an avid golfer. Indeed, golf helps clear the mind, and hardly any sport is better at fostering humility in participants.  So unless President Obama’s critics are willing to state that President Eisenhower golfed too much, they should stop carping about President Obama’s golfing.

According to The Korea Times, the Obama administration has blocked efforts by the South Korean government to sell over a  hundred thousand surplus M1 Garand and Carbine rifles into the United States market. These self-loading were rifles introduced in 1926 and 1941. As rifles, they are especially well-suited to community defense in an emergency, as in the cases of community defense following Hurricane Katrina in 2005 and Hurricane Andrew in 1992. Along with AR-15 type rifles, the M1 rifles are the quintessential firearms of responsible citizenship, precisely the type of firearms which civic responsibility organizations such as the Appleseed Project teach people how to use.  

According to a South Korean official, “The U.S. insisted that imports of the aging rifles could cause problems such as firearm accidents. It was also worried the weapons could be smuggled to terrorists, gangs or other people with bad intentions.”

Regarding the second objection, any firearm lawfully imported into the United States would eventually be sold by a Federal Firearm Licensee who, pursuant to the background check system imposed by Congress (and endorsed by the NRA) would have to contact federal or state law enforcement to verify that the gun buyer is not prohibited from possessing firearms. Accordingly, the risk that the South Korean surplus guns might fall into the hands of gangsters or other bad people is exactly the same as with the sale of any other retail firearm in the United States. Notably, neither the M1 Garand nor the M1 carbine are concealable, and the M1 Garand is long, heavy, and bulky. Accordingly, the criminal utility of such guns is relatively low.

The second Obama administration objection is accidents. But in fact, increasing gun density in the United States has been associated with steeply declining rates of gun accidents. In 1948 there were .36 guns per person. (That is, about one gun for every three Americans.) By 2004, there was nearly one gun for every American. In 1948, there were 1.6 fatal gun accidents per 100,000 persons. By 2004, the rate had fallen by 86%, so that there were .22 fatal accidents per 100,000 persons. (For underlying data, see Appendix B of my amicus brief in Heller.)

Legally, it is indisputable that the guns are importable. Being over 50 years old, the rifles are automatically “Curios and Relics” according to federal law. 27 CFR section 478.11. Accordingly, they are by statutory definition importable. 18 USC section 925 (e)(1). Notwithstanding the law, the Obama administration has the ability to pressure the South Korean government to block the sale of the guns.

President Obama was elected on the promise that he supported individual Second Amendment rights. His administration’s thwarting of the import of these American-made rifles is not consistent with that promise.

UPDATE: I’ll be discussing this issue tonight at 11:20 p.m., Eastern Time, on NRA News. (Available live on the web, or via Sirius/XM channel 144, and also archived on the web for the following week.) The discussion will take into account the helpful contributions of some of the commenters, who have pointed out that the rifles were part of a lend-lease program, which means that the South Korean government is contractually barred from transfering the rifles without U.S. permission. As some other commenters point out, the win-win solution would be to resell the rifles via the Civilian Marksmanship Program, with the U.S. and South Korean governments agreeing to share the revenue.

The Bill of Attainder clause was among the topics of my Advanced Constitutional Law class last semester, so while I am not an expert on the clause, I’ll try to provide some guidance.

First, there are few Supreme Court cases on the clause. Second, Bill of Attainder controversies in the United States never involve the classic bills of attainder that were well-known to the Founders–namely a parliamentary vote that someone be executed for treason or some other crime. Accordingly, for Bill of Attainder law in the United States, the ratio of settled law to gray zones is lower than for many other topics of constitutional law. In my view, the legal analysis from the District Court (ruling for ACORN) and from the Second Circuit (ruling against ACORN) are both plausibly based in precedent.  The Second Circuit examined matters of law de novo, so District Court’s legal analysis was entitled to no deference.

Here are the key points of the Second Circuit decision:

ACORN has standing to sue all the defendants. Even if ACORN has no interest in applying for Department of Defense grants, the fact that the DoD statute specifically forbids grants to ACORN causes a reputational injury to ACORN.

Whether something is a Bill of Attainder depends on a three-part test: (1) “specification of the affected persons,” (2) “punishment,” and (3) “lack of a judicial trial.”

The government conceded on items (1) and (3). Accordingly the question is whether the federal funding cut-off constitutes “punishment.” Here again there is a three-part test (verbatim from the Second Circuit):

(1) whether the challenged statute falls within the historical meaning of legislative punishment (historical test of punishment);

(2) whether the statute, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes” (functional test of punishment); and

(3) whether the legislative record “evinces a [legislative] intent to punish” (motivational test of punishment).

According to the Second Circuit, withholding of federal grants, especially in regards to a corporation rather than an individual, is not a traditional form of punishment, so item (1) is not satisfied.

The government passed item (2) of the test, because there was an eminently plausible non-punitive purposes: namely to efficiently manage federal funds by not giving taxpayer dollars to an organization which by its own admissions had extensive problems with accurate accounting and proper financial management, and which has an admitted record of embezzlement and criminal convictions of employees. 

As for item (3), the Second Circuit agreed that there were some floor statements by Congresspersons indicating an intent to punish ACORN for alleged crimes; “however, here, the statements by a handful of legislators are insufficient to establish — by themselves — the clearest proof of punitive intent necessary for a bill of attainder.”

The three-part punishment test examines all three factors together. Accordingly, even if (3) were a close call, the government was so clearly the winner on (1) and (2), according the Second Circuit, that the government prevailed.

My editorial comment: Long before Andrew Breitbart broadcast the hooker tapes, the record of ACORN’s shady financial practices was so extensive, in my view, that Congress should have cut off all funding. In retrospect, some of the ACORN employees in the Breitbart tapes were unfairly maligned, because they contacted law enforcement shortly after the pretend pimp and prostitute departed. The Shirley Sherrod episode makes it very likely that any future videotape released by Breitbart will be viewed with cautious skepticism by much of the public, and there will not a be a rush to judgment.

While the Obama-Holder Department of Justice has been appropriately criticized for political favoritism in some cases (such as the New Black Panthers voter intimidation), in the ACORN case the DOJ played it straight, and followed its legal duty to vigorously defend the federal laws. The Obama-Holder DOJ deserves praise for its solid performance in the ACORN case.

The final event at the annual meeting of the Southeastern Association of Law Schools was a Federalist Society panel on the constitutionality of the centralized health control law. Participants were Randy Barnett (Georgetown, VC), Jack Balkin (Yale),  Gillian Metzger (Columbia), and me (Denver, VC). The moderator was  Bradley A. Smith (Capital). Available here. The recording is 93 minutes, although the event itself ran a little longer. While the focus was on the two state suits (Virgina, and the 20-state coalition), we also discussed some of the additional issues raised by the five other suits, such as due process rights to medical privacy and decision-making.