William & Mary ACS

As lawmakers search for ways to reduce our national carbon dioxide output, some far out suggestions for cooling the planet have popped up. Have you heard about the sun shade proposal? We would launch a huge sheet of trillions of reflectors into space, giving the Earth some quality shade time. How about the one where we build a volcano that shoots sulfur into the air? Or the one where we build a forest of artificial trees that suck more CO2 out of the air than natural trees? Compared to these, building more nuclear power plants sounds downright sane.

It is true that nuclear power is cleaner in some respects than, say, coal power. But even though nuclear power production is better for our air, its byproducts have the potential to cause us serious problems in the future. Right now, the hot button issue in the nuclear industry is low-level radioactive waste. This is the stuff that power plants and some medical facilities use in their day to day operations, like tools, clothing, and test tubes. These random pieces of radioactive detritus can take up to 500 years to lose their radioactivity.

Right now, low level radioactive waste can either be stored where it’s produced, or shipped to a licensed disposal facility. Here’s the catch– America only has three of these facilities, and one of them just closed. Until this month, Washington, Utah, and South Carolina were home to the only three low level radioactive waste disposal sites in the country. On July 1, after almost 40 years of national junkyard-dom, the disposal site in Barnwell, South Carolina stopped accepting several classes of waste from all states except New Jersey and Connecticut.

Thirty years ago, governors from across the nation got together and proposed a plan for every state to take care of its own wastes, either through building its own disposal facilities, or by contracting with other states. Congress made this plan a law in 1980. Fast forward to today. Many states have not set up their own facilities as they were supposed to, and one has even sued the Federal government, claiming that the national plan Congress adopted in the 1980’s was unconstitutional. The nation now depends on Utah and Washington to accept the bulk of our low level radioactive waste.

What’s the silver lining in all this? For over twenty years now, states have failed to fulfill their political obligations to provide for disposal of their own wastes, indirectly putting more and more pressure on the nuclear industry to come up with its own solutions. Confronted with decreasing disposal capacity, the nuclear industry has actually reduced the amount of some classes of low level radioactive waste that it produces.

Perhaps this small environmental case study demonstrates that scientific ingenuity can sometimes help when political ingenuity breaks down. As lawmakers across the country search for political solutions to our environmental problems, the apolitical ingenuity of scientists, businesses, teachers, and even that couple down the street from me who made their old Mercedes bio-diesel compatible, proves that when the top lags, change can come from the bottom up, even when there’s something glowing in the dark down there.

Photo courtesy of Flickr user mandj98. 

With all of the chatter around the Supreme Court’s recent Heller, Boumediene, and Kennedy decisions, it has been easy to overlook some interesting cases making their way through other parts of the court system. For instance, Center for Bio-Ethical Reform v. Los Angeles County Sheriff Department, No. 05-55294, slip op. (9th Cir., July 2, 2008).

Without going into too much detail, the Center for Bio-Ethical Reform is an anti-abortion organization that works to “expose as many people as possible to the reality of abortion.” In this case, CBER did it by driving a billboard truck with pictures of aborted fetuses around and parking it by a Los Angeles middle school as students arrived for class in the morning. Two deputy sheriffs made CBER move the truck, citing Cal. Penal Code § 626.8, a state criminal statute prohibiting “disruptive entry” on school grounds. The ultraconservative Thomas More Law Center represented CBER in its suit against the L.A. County Sheriff. On Wednesday, the 9th Circuit very reasonably ruled that the deputies violated CBER’s First Amendment rights.

On Thursday CBER issued a celebratory press release that contained this gem: “The First Amendment means nothing if it doesn’t mean the right to show people things they don’t want to see.” That’s not a perfect definition by any means, but I for one am thrilled to see CBER taking the First Amendment so seriously.

Which raises a question in my mind… Why on earth would staunch defenders of the First Amendment like CBER want to associate with the Thomas More Law Center? This is the organization, after all, that has pulled out all the stops to prevent Summum’s Seven Aphorisms to go on display in Utah parks. I can only assume that Thomas More’s attorneys had a conversion experience on the road to Damascus (or 1 First Street as the case may be, since that’s where Summum is heading).

Regardless, I welcome CBER’s support. I can’t wait to see its backers and supporters weigh in against the FCC’s heavy-handed indecency enforcement policies. After all, the First Amendment means nothing if it doesn’t mean the right to broadcast Charlotte Ross’s bare posterior or Bono’s profanity even if some people don’t want to see or hear them. And I can’t wait to read their amicus brief in Summum’s support, since the First Amendment means nothing if it doesn’t mean the right to teach people about mummification and telekinesis even if they would rather their Ten Commandments monuments stand alone.

Frankly, it’s always nice to see more voices coming out in support of free speech and free expression, especially since there are so many people and organizations out there that only support the right when the speech or expression is something they agree with. Thank you, CBER, for showing us that your organization is not one of these cynical and hypocritical groups.

Photo courtesy of Flickr user wfyurasko.

A deal has been reached in the House under which the telecommunications companies, which permitted the President to illegally spy on Americans, will have the cases against them dismissed once the Attorney General represents to a US District court that the Government requested their cooperation in obtaining wiretaps of American citizens in violation of congress’ own prior law on the subject. The deal has now passed the House and goes to the Senate next week where a vote will be held on removing this provision, but which no one seriously expects to succeed. I don’t have much more to say about the merits of the arguments in favor or against this retroactive immunity that I haven’t already said before. I do, however, have two observations to provide, for whatever they are worth.

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Standing – the question of whether the plaintiffs in a case even has a case that a court has the power to hear – can be a very complicated issue, but courts tend to make it even more complicated than it should be by … well … getting it wrong.

There are two common strategies courts employ to achieve this. First, they mix the question of standing with other questions such as ripeness, mootness, and the political question doctrine. Second, they include an additional, extrajudicial, element into the question of standing: do we WANT to hear this case.

The combination of these proven strategies-for-error result in many very interesting cases being dismissed on standing grounds, when they should (probably) be dismissed on other, more appropriate, grounds. There is even an entire class of cases in the Fourth Amendment area where the Supreme Court has already told everyone that what they were calling “standing” was actually just a decision on the merits, but, hard-headed as lawyers are, they insist on continuing to call it standing.

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Justice Scalia reacted indignantly when questioned about the Court’s decision in Bush v. Gore, suggesting everyone should “get over it” because the legal issue “wasn’t even close.” While I have always thought that outrage, while predictable and in some sense justified, the Court largely handled the legal issues fairly.

The problem with Justice Scalia’s dismissive response is not his justification of the ruling on the merits, the problem comes at the end where he says “what were we supposed to say? ‘It’s not important enough?’” Now I don’t expect CNN to get into fine questions of constitutional law, but Justice Scalia could stand a little humility when answering this question. Should the Court have said “we won’t hear it, the case isn’t important enough,” of course not. Quite the contrary. Look over the following passage from Baker v. Carr, which to the best of my knowledge is still good law on this point, and ask yourself whether it would be so preposterous for the Court to decide it wasn’t their place to make this call:

“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

You’re still not safe because there’s still no terrorism exception to the rule of law. That was the message from the Attorney General this week in his address to the Commonwealth Club of California. After his initial remarks (which were on the ongoing effort to fight public corruption) he solicited a question on the debate over retroactive immunity for the telcoms violations of the statutes protecting the privacy of their customers at the behest of the President.

I don’t write this because I expect to change anyone’s mind, this isn’t that kind of issue. I am writing this because I am tired of being talked down to by people who exude a sense of entitlement to conduct themselves as they see fit, the rule of law notwithstanding. We may see legal protection for the telcoms fairly soon – Congress will reconvene on April 14th – but it will be all the more tragic because we won’t be able to hide behind a claim of ignorance like we did with the Patriot Act.

The Attorney General began by explaining, from his perspective, why the telcoms are being sued:

“[The telcoms] are being sued … because they are believed to have responded to the direct assurance by those in authority that the President had asked them to help collect foreign intelligence against foreign targets – we’re not talking about domestic surveilliance … of targets located abroad, and that it was legal”

Wrong. The telcoms are being sued because they broke the law. This is one of the most offensive aspects of the rhetoric being used. What the Attorney General is trying to describe is a legal justification for what the telcoms did. If he is right, there is a good chance that they in fact did not break the law. Fantastic right? So why do we need to immunize them, just let them win in open court. In fact, if the claims are half as frivolous as the Attorney General suggests, the plaintiffs would have been thrown out a long time ago. Later on, he comes back to this, saying “we need and get court permission … to [conduct surveillance on Americans here in the United States],” again saying this is about foreign intelligence and foreign targets. Whatever planet the Attorney General is living on, the lawsuits here in the United States are brought by Americans who claim that THEIR rights have been violated.

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Recently, ten members of William & Mary’s chapter of the American Constitution Society drove up to Washington, D.C. to explore some of the capital’s most important landmarks.

The first stop of the day – not counting Wawa on I-95 – was the Supreme Court of the United States. After inquisitively checking out the many busts of Chief Justices of the past (and wondering why the first, John Jay, was tucked away in a random stairwell), the group sat in on an informational question and answer session inside the very court where cases such as “The Bong Hits for Jesus Case” were decided. Ironically, the only other group at the Court on this particular day was composed of approximately sixty ten year-olds. When the tour guide invited the group to try to stump her on Supreme Court trivia, it was not one of the law schoolers who succeeded in doing so, but a small child from California who asked, “What was the fifth case argued in this Court?” The tour guide was stumped. She did know, however, the mythological significance of all of the sculpted figures decorating the upper walls, nearly all of whom were religious figures.

The second stop of the day, only a few feet from the SCOTUS itself, was the cafeteria of the Supreme Court of the United States (COTSCOTUS) where the group enjoyed a tasty meal in the same room where, as a plaque in the room explained, Antonin Scalia eats his breakfast every day, even when the court is not in session, “because that’s how the framers did it.” Highlights of the COTSCOTUS menu include the Burger and Frankfurter and the Blackmun and White milkshake. Hey-o!

After finishing the meal, the group headed to one of the Senate Office Buildings (SOBs) where they met with Kevin Landy, Chief Counsel to the Senate Committee on Homeland Security and Governmental Affairs, chaired by Senator Joseph I. Lieberman. Mr. Landy was kind enough to explain what his job involves and to answer the group’s questions about government in general. His charming mix of obvious intelligence and political savvy made him an immediate hit with the group.

The next stop was at Virginia Representative Bobby Scott’s office. Although Rep. Scott was not there, David Dailey, one of his highly affable aides was kind enough to meet with the group to give them a guided tour of the capitol building. Highlights included the former basement-locus of the Supreme Court, preserved exactly as it was when Chief Justice Roger Taney wrote the Dred Scott decision, and the old senate chamber where John Quincy Adams is said to have feigned age-induced feebleness in order to listen in on the conversations of his opponents across the room, making use of an odd curvature in the ceiling of the room that amplifies noises from across the floor.

By that time it was time to leave, or else be stuck in seven hours of traffic just to get from D.C. to Fredericksburg. It may have been a short trip, but there’s no doubt that the ten ACS members who embarked on this journey, much like Frodo and Sam, will never forget it.

Interested in consumer law? First of all, register for Professor Tortorice’s class. Next, check out W&M ACS member Alex Chasick’s work over at consumerist.com.

You might be familiar with Chasick’s muckraking if you’ve been following this site for a while. Almost a year ago, he wrote W&M officials to discuss the RIAA’s litigious tactics on college campuses.

Nowadays, he’s still publishing stories about the RIAA and trying to warn baseball fans about getting ripped off by ridiculous ticket policies.

Keep up the good work, Alex! Protecting people from harmful business practices is progressive, after all.

Thanks to Flickr user JCardinal18 for the photo! 

After stumbling on a recent news story about concealed weapons in restaurants, I decided to do a little digging on Virginia’s gun control laws. On March 4, Governor Kaine vetoed a Virginia state bill that would have allowed people to carry concealed weapons into restaurants that serve alcohol. Currently, it is only legal to carry a concealed weapon in an alcohol-free restaurant in Virginia. I did not know that it was legal to carry concealed guns into restaurants at all, and this got me wondering about Virginia’s other gun regulations.

If I wanted to, could I buy a gun and carry it into a restaurant today? To buy a rifle or a shotgun here, I would have to be at least 18 years old. To buy a handgun from a licensed firearms dealer, I have to be 21 years old. Check. I can buy a rifle, a shotgun, or a handgun. Since it would be pretty hard to conceal a rifle or shotgun before walking into my hypothetical restaurant, we’ll assume I’m buying a handgun. Because I’m in Virginia, I don’t have to register the gun. Virginia gun-owners only have to register machine guns. Interesting. How about this: what If I want more than one gun? Since I probably can’t conceal a rifle or shotgun, and I can’t get a machine gun without registering it, can I buy more than one handgun at a time? No, I have to wait 30 days between handgun purchases. What if I want to carry my new handgun other places? How about into church? I can carry my gun into a place of worship in Virginia, but only if I have a “good and sufficient reason.” This is only a sampling of some of Virginia’s gun regulations. As a non-gun owner, I found it enlightening to peruse the state’s concealed weapon code.

Many competent gun owners will tell you they feel safer with their concealed weapons. I even know a woman in another state who brings her gun to church regularly. However, the potential harm of carrying a concealed weapon into an establishment that serves alcohol seems to vastly outweigh the potential benefits. In 2005, there were 12,000 reported homicides by gun in the United states, and nearly 53,000 emergency room visits involving gun shot wounds. These numbers may seem small compared to the total U.S. population, but think about this: A study reported in the Journal of the American Medical Association in 1999 concluded that gunshot injuries in the United States in 1994 produced $2.3 billion in lifetime medical costs. Guess who pays a lot of those costs? Taxpayers. We paid approximately half that $2.3 billion through Medicaid, Medicare, worker’s compensation, and other government programs. Not only does Governor Kaine’s veto of concealed weapon bill promote the safety of police officers and late night bar patrons, it might also save us all some money. April 15 is coming fast.

Flickr photo courtesy of user Travis Nicholson! 

Virginia Attorney General, Bob McDonnell, visited William & Mary School of Law earlier today and spoke to The Federalist Society and guests. Although ACS and I have some strong ideological differences with AG McDonnell, he should be commended for staying relatively non-partisan in his lecture.

AG McDonnell touched on a variety of topics, and also spoke about what aroused his political interest. As a former prosecutor, he felt that in the late 80s and early 90s that too much attention was being paid to the needs of criminals, while not enough attention was being paid to victims.

Prior to discussing specific issues and the things that are occurring these days in the Virginia legislature, the AG also spent some time discussing his political philosophy. His philosophy really focuses on paying a great deal of attention to the 9th and 10th Amendments to the Constitution, and his belief that powers not expressly given to the federal government are definitely best left to the states. This is not a novel concept but it provides insight into his view of why government should be smaller than it currently is.

The Commonwealth’s AG talked about mental health reform during the 2008 Virginia General Assembly Session and discussed it in the context of the tragedy at Virginia Tech that occurred last year. There is no doubt that more needed to be done regarding mental health reform in light of last year’s horrendous crime. In my opinion, the legislation working its way through the Virginia General Assembly, seems fair and is certainly needed. I can’t argue against notifying parents when college students are deemed to be a serious threat to themselves or others.

Having said that, it seems that the AG is interested in only attacking the issue from one direction. One would think that it may be reasonable to also support tougher legislation so that those who want to acquire guns for legitimate purposes are the ones who get them. Legitimate purposes would be self-defense and recreational activities such as hunting, or even those who may get them as part of a collection. However, the AG did not support the idea of tougher gun laws, seeming to leave loopholes open for troubled individuals to commit crimes. Remember, it’s sometimes very difficult to realize how much of a threat an individual is until they commit a heinous crime. Strengthening gun-safety laws at that point in time is action behind the curve, rather than where we need to be, which is ahead of the curve.

The AG also felt that Virginia can take care of itself and this is not an area where the federal government should step in and regulate. As one of the questioners (another ACS member) pointed out, in this day and age, how can a state keep weapons out of the hands of dangerous people when they can buy weapons online from other states? The AG’s answer was a little confusing at this point, which may be a reflection of the power of the gun lobby in Virginia. Regardless, he does not seem to support any federal legislation to help with the problem.

Furthermore, the AG mentioned the amicus brief he joined in District of Columbia v. Heller, where he firmly believes DC’s policies unfairly abridge individual’s 2nd Amendment right to bear arms.

All in all, the AG’s lecture was enjoyable and he was very civil to those with different ideological viewpoints. He gave a polished presentation and will likely be a formidable opponent for future political offices. After all, he did mention his upcoming campaign for governor once, but only at the very end (just like this post)!