A National Bar Exam? (And Other Stuff)

A National Bar Exam?

I was perusing my usual list of reading in Google Reader today and came across this interesting bit: a national bar exam, whereupon successful completion, a newly minted Esquire may be certified to practice law in any state he chooses.  Naturally, a lot of law students like this idea despite the fact that many, including myself, consider the Bar exam and most standardized testing an anachronistic waste of time and money.  (Hat Tip: Best Practices for Legal Education Blog, One BAR to rule them all…)  Here’s a quote for ye:

The time to act is now, [Erica Moeser, president of the National Conference of Bar Examiners, says].  She mentions globalization in the profession, as well as a terrible job market that leaves many students unable to tell what state they’ll be working in when it’s time to sign up for bar exams and prep courses.

I highlighted the relevant language because this ought to be a prime, motivating factor for such an initiative.  I think we have all heard the horror stories about deferred first year associates and massive lay offs.  A national bar exam seems like a good idea.  If one job market looks like crap and you think you might have better odds in the neighboring state, then why not try it out?  It’d be nice if there were no obstacles in your way, like some other state’s exam which will probably cost you some dough at a time when you’re still trying to pay off your student debts (including thousands of dollars of debt incurred for taking bar prep and paying for the bar itself).

Unless God Himself intervenes, however, I (cynically) predict that things will stay exactly the same for some time.  The reason I think this is because state bar examiners still cling to the belief that a licensing exam is the best way to determine who deserves to be a capable attorney.  Also, states like California would not be apt to pick up on a national bar exam because California is a vast maze of legal nuance, thereby ingraining bar examiners into the mindset that a localized bar is better to prepare a would-be attorney for California practice, than a national bar that would not be customized to California’s  particular legal market.  To that I say: Big Deal.  There is a reason why there are treatises like California Jurisprudence and Witkin, etc.: to get lawyers up to speed on what the law is in California.  Oh, and lawyers have clerks too.  Have them do the research if you can’t pick up a state-specific treatise and read it.

All of this doesn’t deflect another concern that the NCBE probably has self-interested motives for advocating a national bar exam, but in standard law school fashion, let’s balance the harm versus the utility of such a thing and see what the less onerous result is.  For the sake of moving things along I’ll wrap this up by just saying I stand for a nationalized exam.  It makes more sense than each state deciding how much of a barrier they want to throw up in front of capable law students who successfully navigated law school.  I wish the NCBE the best; their fight will take years to see some fruition.  (There is another obverse to my pro-national exam: the national exam being harder than the state exam that got replaced; and also the national exam being a complete exercise in ineptitude so that anyone with a functioning brain stem could pass it, but those are blog posts for another time.)

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Give Teachers More Money

From Adjunct Law Prof Blog, it was reported that some website with a snappy name went and listed the best undergraduate majors by salary.  Naturally, the social sciences had some of the lousiest starting pay.  Speaking as a history major, however, I can tell you that you MUST pick what you love or your undergrad years are going to D-R-A-G.  Nothing drains the spirit by being locked in abysmal classes whose subject matter you cannot stand.  (I was a former computer science major.  Pure hell, I tell you.  So glad I finally saw the light.)

One thing I keep shaking my head is at lousy starting and mid-career pay scales for teachers.  These people deserve the big bucks because they shape the minds of our children, and yet we pay them like they were lowly DMV clerks.  The Adjunct Law Prof says: “[I]t has been known for some time that teachers are not paid the best.  Therefore, very few students go into teaching for the money.  That is how it should be.”  Yeah, but I believe the harder you work the more you should benefit from it, even if teachers already benefit from the satisfaction of expanding young minds.  This is particularly true in a profession where the school administration is automatically antagonistic towards you and will always throw you under the bus when parents complain or threaten legal action.  It makes me think of the people I know in law school who would have stayed in the teaching profession but for the horrible working environment, long hours, stress and low pay for doing something they originally loved but came to hate.  Giving teachers an extra 20K a year is a decent start, I think.

Also from Adjunct:

1. Lawyers talk too much.
2. Students from lower tiered schools are much happier workers.

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A New (Approach To) Law School

Last, and certainly not least, there is good friend Brian Baker @ Life on the Outskirts, whose article The Window for New ABA Law Schools is Closing Fast is very interesting.  Mr. Baker premises, inter alia, that the legal education system is changing, personified by the newly established UC Irvine School of Law:

[Dean Irwin Chemerinsky states:] “If we just replicate other law schools, UCI will fail in its unique opportunity to create an ideal law school.” So, what is his plan? Simple, “starting with its first year, when law students will be introduced to the practical tools of their profession through a lawyering-skills class that integrates clinical experience. Then, in their second year, students will work through simulated fact situations, honing their skills in a particular field of civil or criminal law, so that when they are ready to register for a third-year, semester-long clinical course, they will already have a working knowledge of how to represent clients.”

In addition, Dean Chemerinsky plans to introduce inter-disciplinary education into doctrinal courses. For example, the Dean states. “[i]f you’re going to do business or tax law,” he argues, “you’re going to need to know some economics. If you’re going to do criminal law, you need to know some psychology. If you’re going to do patent law, you need to know some engineering. And if you’re going to do environmental law, you need some environmental science.”

This, my friends, is the future of legal education. Not many schools can afford to do it at the tuition levels they charge now. Not many schools will be able to do it with the faculty they have now. This alone will close many law schools and cause many to be merged.

I’m all for the interdisciplinary approach but many law students I have spoken to have no clue what they’re going to practice in, or some, like me, had an idea of what they wanted to do but are learning that that area of the law just isn’t for them.  If I went to UCI, I would hate to think that all my psychology courses were a waste of time once I realized that criminal law was the absolute last thing on this Earth I wanted to do.  However, my argument is premised on the idea that UCI’s interdisciplinary approach means concurrent enrollment in law school courses and undergraduate courses.  Maybe what they meant was having a criminal law class with “psychology of crime” literature sprinkled into the case book (which I wonder if there are any even published).  Oh man, another thought just came to mind: you already know you hate criminal law but have to take it because its a bar course, and now here you are reading cases AND being subjected to case studies on serial killers that absolutely turn your stomach (Dr. Mengele, anyone?).  Plus, how do you fit in all the law and all the interdisciplinary into one course and still manage to get everything covered?  Imagine a contracts class that now has to include Posner’s theories of law and economics.  One of the things I liked about law school was that I no longer had to zone out to “undergrad” reading assignments that I just breezed through with little, if any, critical analysis because such things won’t help you IRAC any better.

Again, the interdisciplinary approach does sound good because I think its a creative alternative to the curriculum that’s in place now but the new system will have kinks to work out like any other.  Good luck to UCI and Dean Chemerinsky.

http://abaaccreditation.wordpress.com/2009/09/02/the-window-for-new-aba-law-schools-is-closing-fast/

NPS Announces Public Scoping Meeting Dates to discuss the Merced River Plan

Hello all,

The National Park Service has disclosed its meeting locations for public comments on the Merced River Plan.  LINK: http://www.nps.gov/yose/parkmgmt/mrpworkshops.htm

Public Scoping Meeting Schedule
All times 4–8 p.m., except the Yosemite Valley Open Houses

Date	Location	Address
Mon., Oct. 26	Masonic Lodge	Hwy 49, Oakhurst
Tues., Oct. 27	Mono Basin Visitor Center	Mono Basin Visitor Center, Lee Vining
Wed., Oct. 28	Yosemite Valley	Auditorium—Open House (1–4 p.m.)
Mon., Nov. 2	Mariposa Government Center	5100 Bullion St., Mariposa, CA 95338 (2nd Floor)
Tues., Nov. 3	Fresno REI	7810 N. Blackstone Ave. Fresno, CA 93720
Wed., Nov. 4	Groveland	Groveland Community Hall
Mon., Nov. 9	Sacramento Southside Clubhouse	2051 6th Street, Sacramento, CA 95814
Tues., Nov. 10	Doubletree Conference Center at Berkeley Marina	Doubletree Hotel & Executive Meeting Center Berkeley-Marina 200 Marina Blvd., Berkeley CA 94710
Mon., Nov. 16	LA River Center	570 West Avenue 26, L.A.
Wed., Dec. 2	Yosemite Valley	Auditorium—Open House (1–4 p.m.)

Legality of Tribal Disenrollment Articles Now in One Download

Hey everyone,

I’ve finally gotten around to collecting all the articles I’ve written on disenrollment into one PDF document.

It is available for download here: TribalDisenrollments.pdf

Took me long enough, right?  Thanks for your patience!

Friends of Yosemite Litigation Ends in Settlement

From the National Park Service’s Yosemite page:

The Friends of Yosemite Valley (FOYV), Mariposans for the Environment and Responsible Government (MERG), and the Department of the Interior /National Park Service (NPS), Yosemite National Park jointly announce the completion of a formal Settlement Agreement in the lawsuits concerning the Merced Wild and Scenic River Comprehensive Management Plan (CMP). The settlement resolves litigation on Merced River planning begun in 2000, and also resolves the complaint challenging the Yosemite Valley Plan. The parties to the litigation are pleased to have come to a final agreement. Yosemite National Park – Yosemite Merced River Litigation Settled After 10 Years (U.S. National Park Service), http://www.nps.gov/yose/parknews/mrpsettlement.htm (last visited Sep. 30, 2009).

The summary of the Settlement Agreement:

• Initiates a new process for the creation of a Merced River Plan, pursuant to the Wild and Scenic Rivers Act (WSRA)
• Provides guidance on procedures, process, and content for a new Merced River Plan
• Rescinds the Yosemite Valley Plan
• Rescinds plans for Yosemite Lodge, Curry Village, Valley Campgrounds
• Begins a new public dialogue on the question of user capacity
• Encourages ongoing maintenance and safety activities

Looking at the settlement agreement (found here, on MRP Litigation page), I pulled some items of interest:

Merced Wild & Scenic River Comprehensive Management Plan:

1. The Settling Parties, Friends of Yosemite Valley, et. al.; and the Secretary of Interior; and their undersigned attorneys, have agreed to create a new Comprehensive Management Plan and Record of Decision by December 2012; and a Public Scoping to begin in March 2010.
2. Procedurally speaking, the Settling Parties have decided that three user capacity experts will work the lead project manager to assist in the new CMP’s development.  Specifically, the expert assistance will aid in: defining the Outstandingly Remarkable Values (ORV) of the Merced River; participate in meetings and workshops that discuss the new CMP; and contributing to the draft and final Environmental Impact Statement.
3. Before “the draft EIS, the NPS will provide one or more public workshops to consult with individual experts and representatives from academic institutions, tribal governments and local, state and federal government agencies on protecting and enhancing ORVs.  Through these public workshops, NPS will gather information and advice relevant to ORVs from these experts and other individuals identified by Plaintiffs, within their individual areas of expertise.”
4. The NPS is will implement an “extensive, frequent, and robust public involvement process in an effort to give all interested parties access to the planning process.”  Examples of this “robust public involvement process” will include: open forum, public / agency panel discussions, public workshops, small group meetings, meetings dealing with specific topics, and other types of meetings in order to obtain the broadest possible amount of public input on the CMP.”  Additionally, each Plaintiff will, in good faith, send a representative from each party to attend public meetings; and will participate in the public scoping process by submitting written comments.
5. Some elements of the 2005 Revised Wild & Scenic River CMP will be used in creating this new CMP, but are limited to: Boundaries, Classifications, and Section WSRA Determination Process.  Furthermore, the parties agree not to litigate these items when they appear in the 2012 CMP.
6. The 2012 CMP shall include new sections that are the subject of this settlement agreement: User Capacity and Outstandingly Remarkable Values (ORVs)

Yosemite Valley Plan & Other Projects:

1. Yosemite Valley Plan (YVP) Environmental Impact Statement (EIS) and Record of Decision (ROD) are RESCINDED, with the exception of certain projects.  Some projects that are rescinded because of their reliance on the YVP EIS and Finding of No Significant Impact statements (FONSIs) shall continue in a limited form.  (Ex. Curry Village/East Valley Campgrounds will still go ahead with planned removal of 108 visitor tents, and 40 employee tents.)
2. Projects that relied on YVP EIS and ROD, and are now complete shall not be rescinded.  Among these projects are: 1) Yosemite Falls Area Plan implementation; 2) El Portal Resources Management and Science Building installation; and 3) Installation of Valley-wide interpretative exhibits (how many of these pertain to Native American subject matter is not known).

Maintenance & Operational Activities:

1. “Within the Merced River corridor the NPS may conduct operations and maintenance activities, correct accessibility deficiencies, and carry out all other activities necessary to address the daily, routine, and intermittent operational requirements of Yosemite National Park, as long as such operations and activities will not influence or predetermine the NPS analysis of user capacity, including the types, levels and location of uses, and are in full compliance with NEPA.”  The NPS will construct no new roads, trails, parking spaces or bridges; nor will they pave existing ones.
2. As for trail maintenance, the NPS is allowed to conduct these operations to maintain status quo, or specifically, to keep maintaining the trails in this area how they have been maintaining them for the past three years.
3. Repair work limited to improving accessibility for the handicapped.
4. Any other work or maintenance outside of these areas will require prior notice to Plaintiffs who, if necessary, will then enter court supervised mediation to dispute the work.

Attorneys Fees & Costs of Litigation:

1. The Secretary of Interior will pay $1,025,000.00 to the Plaintiffs.

So ends another chapter in the litigation drama surrounding Yosemite.  Some quotes:

“With this Settlement complete, the National Park Service is looking to the future and will move forward with preparing a new CMP that will continue to protect and enhance the Merced River for the enjoyment of future generations” stated Acting Superintendent Dave Uberuaga.

“We now have a new opportunity to bring people together, to finally discuss how to optimize a natural Yosemite experience for the most people possible, while recognizing that Yosemite is finite” said Greg Adair, Director of Friends of Yosemite Valley. “This took a decade of hard work, really. We’re grateful to the Courts, and Magistrate Judge Snyder for making this possible” continued Adair. Yosemite National Park – Yosemite Merced River Litigation Settled After 10 Years (U.S. National Park Service), http://www.nps.gov/yose/parknews/mrpsettlement.htm (last visited Sep. 30, 2009).

Now if we can only do something about the legally deficient Indian consultation procedures that are going to find their into this new CMP…

Inside the Actor’s Studio Questions

What is your favorite word?

Latin concept: Dignitas

What is your least favorite word?

Self-Pity (I think hyphenating it makes it one word, I’m not sure).

What turns you on creatively, spiritually or emotionally?

Being around people that are ambitious, not for personal wealth although that may be an outgrowth of the goal one is trying to reach, but being ambitious to live life, to make something out of yourself, to lead a good life.  I’m also into big ideas and everything it takes to foster and create such ideas; something as simple as a nice conversation with someone or reading an amazing book.

What turns you off creatively, spiritually or emotionally?

I cannot stand to be around people who think the highest education they will ever attain in life is their high school diploma.  I also can’t stand people who have two or three college degrees with several minors and can’t find a steady job.  I truly hate it when I hear someone say “I don’t give a fuck” when it came to something like education, politics, national security, or life in general and truly mean it.  I once heard someone say “I don’t like to think too much” and I had to fight to contain my anger.

What sound or noise do you love?

[Classified]

What sound or noise do you hate?

Loud cars and loud people.  All it shows is how insecure you are.

Oh, and car alarms.

Oh, and the “pfft” sound a car makes when its driver hits “the switches.”  I’m like, ok buddy, way to make an investment…

What is your favorite curse word?

Shit!

What profession other than your own would you like to attempt?

Screenwriter.

What profession would you not like to do?

Go into teaching.  Not because it’s a bad profession but because I don’t think I have the patience for it.

If Heaven exists, what would you like to hear God say when you arrive at the Pearly Gates?

“You may have never said all the things I wanted you to say, you may have never thought of the things I wanted you to think of, you may have never done all of the things I wanted you to do, but your faith in me meant more than any precious metal in the world, you never ran away from the challenges I gave you, you never were too proud to not seek help, you kept my promises in your mind when life took bad turns, and you never stopped believing.  You were not perfect and you weren’t always obedient; you always thought you could do things your own way and not mine, but you knew when to put aside your ego and seek my face.  You never gave up.  You always asked for forgiveness…and you are forgiven.

Welcome.”

Coming up for air

Okay, so summer is largely over which I find awesome because I hate summer in Fresno.  Spending my days cooped up in the house researching my law review article seem like a distant, air-conditioned, memory…  Spending them in the SJCL library and Room 213 pouring over research for my moot court brief were cool too.  The SJCL proctors like to keep that place like a freezer which is fine by me because stepping outside the building is like walking into Death Valley.  Oh, yeah, I’m still working at my awesome job, the United States Attorneys’ Office.  However, the air conditioner is either busted or set to such a high temperature that it rarely kicks on.

So, I’ve noticed that I haven’t posted anything in a while, but I think you know why.  I’m proud to say that I have completed the first draft of my law review article.  My law review is an agricultural law journal, specifically the San Joaquin Agricultural Law Review, so my article combines two areas of the law: agricultural terrorism and federal Indian law.  Sound like polar opposite subjects doesn’t it?  Well, when (and if) my article goes into publication I’ll let you know how I pulled them together.

Aside from law review, I’ve been reading for class which has now started again.  The line up thus far is: evidence, law practice management, wills & trusts, and constitutional law.  Some classes I like more than others.  Con law, in particular, I like because as a former history major I get a kick recognizing all the historical background behind every monumental case (Marbury, Plessy, Youngstown Steel, the Gitmo cases, i.e. Hamdi, Hamdan, Boumedeine, and Rasul).

I got to see San Diego again over the summer which I truly enjoyed on so many levels.  I love the city, I love its night life, I love its energy, its character and its weather (75 degrees the whole time, baby).

Nothing much else to say except I’m coming up for air before I dive back into school again, so I thought I’d take some time out of my Labor Day weekend to ramble on about the good life.  See you soon!

My Comment Concerning the Draft Environmental Impact Statement for the Environmental Educational Campus in Yosemite

Hey all,

Aside from working on my law review outline and working 40 hours a week at the U.S. Attorneys Office, I’ve been slaving away on my lunch breaks working on this comment.  The due date was this past Wednesday.

What was originally intended to be only five to seven pages ended up being twenty!  I’m very curious to know how my comment will be reviewed by the National Park Service.  I gave it a quick once-over around 12:02 a.m. that Wednesday morning as I wanted to have it all done on Wednesday, the day it was due.  I hope my research was thorough enough, my arguments persuasive, firm yet professional, and, hopefully, constructive.

I believe this issue is of importance to any lineal descendant of Chief Tenaya or the Yosemite Indian community.  The NPS preferred alternative for this plan was to demolish the dilapidated environmental educational campus jointly run by the NPS and Yosemite Institute at Crane Flat.  Alternative 3 (the preferred alternative) would have the Henness Ridge area (site plan, PDF) torn apart to make way for the new campus.  Alternative 2 (the alternative I reluctantly support) would keep Henness Ridge intact and update the existing structures at Crane Flat to bring them up to modern building standards and expand them to house more students.

My biggest concern are the Indian remains that may be housed underneath Henness Ridge and their unearthal by construction crews.  Neither the NPS nor myself know for sure what is below the ground, however the NPS knows that the area was once used as a trade route by my people.  It’s a logical conclusion that Indians may have been buried there given Yosemite’s historical use as a once-great nation and gathering area.  My ancestors are entitled to their proper resting place, especially those who have been dug by park archeologists for the past 50+ years.

Furthermore, the consultation process with park-affiliated tribes is deficient because at least one of the so-called “tribes” isn’t a tribe at all.  Technically, I have just as much standing to be a part of park-sanctioned consultation processes as this particular non-profit is concerned but the NPS thinks it can do whatever it wants.

My comment is available for you to download here: Comment re Environmental Campus Draft EIS

General info about the EEC: http://www.nps.gov/yose/parkmgmt/eecampus.htm

Been Busy Lately

Hey all,

I’m happy to report that summer school is over and I’m currently (and happily) putting together my law review article.

My time has once again been limited, not just by law review, but also because I have landed a new job.  I’m currently working as a volunteer law clerk for the United States Attorney’s Office downtown.  It’s an awesome job as I get to write and research all day.  The atmosphere is real chill and relaxing; I’m very lucky to be working around a lot of great people.

See you soon!

Important Items Concerning Lineal Descendants of Yosemite Indians

The National Park Service is gearing up for two major construction projects: 1) the Yosemite Institute’s Environmental Education Campus at Crane Flat; and 2) several projects pertaining to the Merced River Plan CMP.

New Merced Wild and Scenic River Comprehensive Management Plan – Notice of Intent To Prepare Environmental Impact Statement

To see the full online announcement from the Federal Register: http://edocket.access.gpo.gov/2009/E9-15429.htm

A quick background: The National Park Service put forward several construction projects under its Merced Wild & Scenic River Plan, which included the 30 year old (and abandoned) El Portal Wastewater Treatment Facility.  The plan called for the demolition of the building and re-vegetation of the soil.  However, invasive ground work would have been done to the area which is known to house Indian remains over 9,500 years old.  Two cases in the 9th Circuit, Friends of Yosemite Valley v. Kempthorne (464 F.Supp.2d 993) (Kempthorne I) and Kempthorne II (520 F.3d 1024), placed an injunction against the National Park Service for failing to provide a comprehensive managment plan.

Now:

Pursuant to the National Environmental Policy Act (Pub. L. 91-190) and the Wild and Scenic Rivers Act (Pub. L. 90-542), the National Park Service is reopening public scoping for planning and environmental impact analysis for a new Merced Wild and Scenic River Comprehensive Management Plan and Environmental Impact Statement (NMRP/ EIS) in Yosemite National Park.

In response to the litigation:

Consequently the NPS is reopening public scoping for the NMRP/EIS so as to provide additional opportunity for public involvement in developing a new plan . . . Broad participation of interested individuals and organizations is important to the planning and analysis process . . . Dates, times, specific locations, and additional information will be released through regional and local news sources, and updates will be posted at www.nps.gov/yose/planning/mrp.

The NPS is seeking YOUR opinion concerning this project:

In addition, updates regarding future public involvement opportunities, including workshops for alternatives formulation and later release of the draft NRMP/EIS for public review, will be similarly announced in regional news media and on the park’s Web site, and through direct mailings. Written comments should be addressed to the Superintendent, Attn: Merced River Plan, Yosemite National Park, PO Box 577, Yosemite National Park, CA 95389, or faxed to (209) 379-1294, and must be postmarked or transmitted not later than 60 days from the publication date of this NOI in the Federal Register (immediately upon confirmation of this date it will be posted on the park’s Web site and announced via local and regional press). Before including your address, phone number, e-mail address, or other personal identifying information in your comment, be advised that your entire comment–including your personal identifying information- -may be made publicly available at any time. While you can ask us in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.

One of the reasons cited by Kempthorne I in granting injunctive relief to the plaintiffs was the NPS’ failure to properly consult with the lineal descendents of the Yosemite Indian community.  (Kempthorne I at 1008.)  If you are such a descendent then now is your time to be heard.

Yosemite Institute’s Environmental Education Campus at Crane Flat; Comments on Draft Environmental Impact Statement

Links to all pertinent documents including the DEIS: http://www.nps.gov/yose/parkmgmt/eecampus.htm

The NPS has submitted a Draft Environmental Impact Statement concerning the Yosemite Institute’s Environmental Education Campus at Crane Flat.  It’s preferred plan is to demolish it and build a new one at Henness Ridge which is untouched by any development.  It’s other alternative is to keep the Crane Flat campus but give it a much needed facelift and bring it into compliance with ADA.  Public comments are now being solicited.

I do not support Alternative 3 (the agency preferred alternative) which would demolish the campus at Crane Flat, but also dig up scenic wilderness at Henness Ridge which could unearth American Indian remains.

Also, the Draft EIS has stated that although the Henness Ridge area (the site of the new campus under alternative 3) was used by Indians as a trade route the language of the EIS states that no American Indian cultural items will be found there.  This flies in the face of common sense.

I am concerned over the potential impact on American Indian artifacts this plan may cause and am writing a letter opposing Alternative 3.  If you are concerned about the disruption or disturbance of these artifacts then you should reply to the Superintendent at this address:

Superintendent, Yosemite National Park
ATTN: Yosemite Insitute EEC DEIS
P.O. Box 577
Yosemite, CA 95389
FAX: 209-379-1294
Email: Yose_Planning@ nps.gov
Phone: 209-379-1365

Any reply from you on this matter would be greatly appreciated.  You have until July 15th to get your comment in.

Relevant Pages from the DEIS:

* iv (Overview of alternatives)
* 1-8 (Purpose & Need, Relationship to Laws, Executive Orders, Policies and Other Plans)
* I-15 (Purpose & Need, overview of NAGPRA and AIRFA)
* 3-109 (Affected Environment & Environmental Consequences – American Indian Traditional Cultural Properties),
* 4-3 (Consultation & Coordination – American Indian Consultation)

Musings of the Legal Blogosphere

So far my summer has been off to a busy start.  First of all, I got my grades back and I’m happy to report that I’ve earned the right to continue onto my third year of law school.  Yay for me and now it’s off to my summer semester.

The most of my worries – and I use that term lightly because I’m having so much fun – is moot court and law review.  In case you haven’t figured it out by now I am a research fiend.  I like it, I love it and I want some more of it.  Moot court and law review are feeding my desire to keep my research skills sharp.  Thus far the moot court brief is coming along, now I need to start putting my arguments into their proper shape now that the research is done.  Law review is proving to be rewarding because I get spend all day on WestLaw.  Yes, I know: NERD ALERT!  That’s me.

Too, I get to spend more time looking across the legal world about the areas of the law that I love.  Such as:

Federal Indian Law

An interesting blog post from TurtleTalk’s Matthew Fletcher discusses the current trend with the United States Supreme Court concerning Indian law cases now that Roberts is at the helm:

For the Roberts Court, Indian law cases are easy for a couple reasons.  First, state government interests always trump tribal interests, and every case in which tribes defeat states strongly attracts the attention of the Court.  The reverse simply is not true.  It is my sense that the Roberts Court is happy to rest on the fact that state sovereignty is strongly protected by the text of the Constitution, and tribal sovereignty is not.  Second, the long, complicated, and important history of federal Indian law and policy is utterly unimportant to the Roberts Court.  Longstanding practice, legislative history, and simple Indian affairs history does nothing to persuade a majority of the Court, with only Justice Stevens paying much attention to it.

That’s not good news however I should have suspected as much with one half of the SCOTUS leaning to the right.  Very fine legal history by Mr. Fletcher.  We’ll wait and see how the SCOTUS decides (or declines) certain cases and its impact on Federal Indian jurisprudence.

The Tribulations of John Yoo

John Yoo, former federal attorney (in)famous for writing the “torture memos” is now being prosecuted by Jose Padilla, a convicted terrorist.  Basically, Yoo writes memos to Bush & Friends saying that there is a legal basis for “enhanced interrogation” (not advocating that they should but just that it’s possible, in legal theory) and Bush & Friends implement these measures at places like Abu Ghraib and Guantanamo.  One such person victimized by these policies was Jose Padilla, a terrorist, who then brings a civil suit in the US District Court for the Nothern District of California for violation of his 5th Amendment rights.  Why Yoo as the defendant?  Because his memos were the basis for Bush & Friend’s actions which caused him harm.  Naturally, Yoo files a motion to dismiss but it was denied and now this lawsuit is actually going to trial.  As reported by the Wall Street Journal’s legal blog, Judge White of the ND of CA stated:

Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.

Hint, hint Eric Holder.  Does this lawsuit have merit?  No.  Is Yoo the real person that needs to be sued for Padilla’s harm?  No.  Does the Obama Administration need to open up investigation into possible human rights violations and go after the real parties in interest?  Yes.

Obama’s Turn Around on Military Commissions

One of my current favorites of jurisprudence is Guantanamo Bay and the military commissions.  It’s a fascinating area of the law if you ever want to look into it.  Obama said he’d shut them down but then decided to re-open them.  I’m not surprised in the slightest because it’s typical politician fluff: say one thing to get elected, do another when you are elected.  Also, I think once Obama got into office and someone briefed him on the top secret stuff behind the War on Terror he had to change his tune.  Maybe the commissions are a great idea but Bush’s execution of them was wrong.  Maybe that’s why Glenn Greenwald, blogger on Salon.com, labeled these new tribunals the “kinder, gentler military commissions”:

There is simply no way to reconcile Barack Obama’s embrace of military commissions with the core criticisms made about Bush’s system.  Just consider what was said in the past about Bush’s military commissions by key Obama officials, Bush critics generally and, on occasion, even by Obama himself, and decide for yourself if this is anything other than a replica of one of the worst and most extremist abuses of the Bush era.

The idea of having a place away from the mainland of the United States to determine who is a genuine threat to the United States and who isn’t is a great idea.  It’s planning and execution, however was done with a neolithic disregard for due process – and that’s putting it nicely.

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Take care and thanks for reading!  I’m sure I’ll have more to gripe about as time passes, so I’ll talk at you later!