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Law
searching for a job
We’ve entered the job-search phase, which is an immensely terrifying thing. I alternate between a sense of optimism and hopelessness. Legal areas that interest me include intellectual property, criminal law, immigration law (refugee/asylum), public international law, and litigation generally. A clerkship would also be lovely. If anyone actually reads this, and anyone has any sort of job opening, let me know. I’m writing three papers this semester (yay!). My topics are: enforcing immigration law using criminal law, specifically aggravated identity theft, where the mens rea requirement is disputed and conveniently massaged to include more immigrants in its scope; whether children with disabilities can sue under sec. 1983 when their rights are violated under the IDEA; and international copyrights (using international treaties and individual national laws) protecting composers and performers of folk songs and contemporarily composed music. Fun, no?
Jun 2008Heller
This isn’t my own creative work, but it amused me. It was posted on the Lawrence Journal-World website. Here’s a haiku in response to the Heller decision. Hand me my shotgun. I need to go kill a bear, then I’ll have bear arms.
Jun 2008the bar application in Kansas
I’ve been looking at the Kansas bar application (not necessarily meaning that I will take the Kansas bar, but I need to start pulling my information together), and when it comes to references, both general ones and character fitness ones, I need to have known all of them for four or more years. They also can’t be employers, relatives, “fellow” law students (I need to find out if this disqualifies law students from other schools), and only one out of the eight can be an attorney or a judge. This essentially disqualifies all the people I talk to currently. Rather, it disqualifies all the people who know me well and can attest to my ability and fitness. It disqualifies all my pastors, as I worked for Luther College Ministries and my mom has been my pastor the rest of the time (ooh, wait, there might be one!). I could ask the bishop, but he really only knows me through my mom. I just think it’s an arbitrary requirement that doesn’t actually mean that someone knows you well now, but rather, that they’ve known you in the past.
May 2008ICE
We all know ICE has done terrible things to people, even US citizens and LPRs. And so I think the rallying cry should be: “Ice ICE, baby.” I came up with this while I was sort of listening to a conference call in my boss’s office. I started to giggle and then had to stop myself. More on my job later. Suffice it to say, I’m loving being in DC and working for LIRS and using all sorts of acronyms. The learning curve is amazingly steep. That’s all for now. If anyone should go hang out with my cats, tell them hi from me and tell them I miss them. :)
May 2008Chief Justice Roberts visited KU
Last night, CJ Roberts gave a lecture through the business school. It was fairly disappointing, honestly. He read his talk, and he talked about the Louisiana Purchase. He also spent a long time on the mechanics of the Supreme Court. I understand that the audience was made up of many lay people and that he couldn’t actually talk about many of the things we really wanted to hear about (e.g., Heller), but I guess I expected a little more. Today, however, he had a Q&A session for law students. I got there 1 1/2 hours early, so I was first in line. He actually walked in while I was in line, and he said hi. It was quite the moment. I got to sit in the front row, and the session was just great. People asked all sorts of things, from what he considers when deciding a case to his view on the Constitution (although that question was also asked last night by Adam Davis and received by the audience with resounding applause) to advice for aspiring advocates. I asked the second question. I asked him about the Medellin case. In that one, which came out just over a month ago, he wrote the opinion for five justices (the conservative ones), in which the Court held that an ICJ decision (that a certain treaty required the government to notify the Mexican government of the charging of Mexican nationals) was not binding on the individual states, and so the habeas petitions filed by 51 Mexican nationals were rightfully denied. In the analysis, the majority looked to the text of the treaty, and the Vienna Convention on the Law of Treaties, and the US Constitution, and found that ICJ decisions were not self-executing treaties and could not be binding unless the Senate ratified them. My question was whether he would advise countries developing independent judiciaries to include something in their constitutions that would make ICJ decisions binding on the individual parts of the country. He didn’t directly answer this, saying that it was up to the country and he couldn’t advise them one way or the other, but he also said that if the country decides it wants to be bound by a bunch of judges far away, it’s that country’s own perogative. That seems clear enough to me. So then he taught the constitutional law class, which I unfortunately could not attend. I heard it was great. But then, in the afternoon, he and four judges who sit in Kansas (two 10th Circuit judges, a District of Kansas judge, and a Kansas Supreme Court justice) judged the final round of our in-house moot court competition. There were probably 100 students there, a number of professors, a handful of local judges, and lawyers from the firm (Foulston Siefkin) that sponsors the prizes for the in-house competition. The student advocates were excellent. The bench was really hot. The justices usually didn’t let the advocates speak for more than 15 or 20 seconds without interrupting them. The few times they didn’t interrupt, the advocates were kind of thrown off. But everyone did a really great job of advocating, especially under such intimidating circumstances. All of the judges/justices-for-the-moment gushed about how wonderful the advocates were, and Judge Tacha even said they did as well if not better than the final round in the national competition, whose problem we used. I was thrilled for the team that won - Dani and I were rooting for them from the beginning - but I was still a little bummed that it wasn’t the two of us up there. After the competition, there was a reception in the informal commons. Lots of men in suits (and not just federal marshalls) were trying to get close to Roberts, but I managed to get pretty close to him. And then he turned towards me! And he shook my hand and thanked me for my question! It was a very proud moment for me, even if it was just what the situation required. I know CJ Roberts is a conservative judge, and I don’t necessarily agree with his opinions (including the opinion he wrote for Medellin), but he’s brilliant, his credentials are absolutely outstanding, and he’s kind of dreamy. I’ve been joking about swooning. Ah, men with power. That is probably slightly inappropriate for a legal blog, but oh well. It’s been an exciting day and a half. (And today was the last day of classes, which made it even better.)
Feb 2008in response to the McCain controversy
A friend asked me what I thought, so I responded. This was on Facebook, so it is a little informal: Whether McCain is a natural-born citizen has been getting press (well, minor press) for years, but it makes sense that the politicos would bring it up now. I think the US Constitution was created to define rights between the federal government, the states, and the people, and giving people rights is one of the big things, so it would make sense that “natural-born” would be interpreted broadly. Also, I just spent a few minutes perusing the INA, and sec. 303(a) says “Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this Act, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.” It seems to me that the distinction between “citizen” and “natural-born citizen” is just citizenship at birth. The courts should (at least I think they should) find that the use of “citizen” in the statute means “natural-born citizen.” There.
Feb 2008universal jurisdiction
No citations this time, just ruminations. I read a story about how some nations are using universal jurisdiction to prosecute war crimes . Universal jurisdiction is an awkward concept to me. It allows a nation with absolutely no connection to a crime to prosecute the perpetrator of that crime. The nation has no interest in it except a moral one. While morality does have a place in law, and especially in criminal law, it cannot be the sole reason for bringing someone to justice. There should be some other connection. While universal jurisdiction might be used to prosecute only the most egregious of war crimes, it sets an alarming precedent. If a homosexual were to travel to a nation where sodomy was criminalized and the law was enforced, even if the person did not engage in sex while there, the government could theoretically prosecute by using universal jurisdiction. The point of international law is to create treaties between nations. Nations have to agree to be bound (however, if a law is so fundamental as to be jus cogens, then every nation is bound regardless of whether or not the nation agrees). Hence, for individuals to be prosecuted by the International Criminal Court, that individual’s nation must be a party to the Rome Treaty. Beyond that, there are the tribunals set up by the UN to prosecute individuals for crimes committed during conflicts in certain areas, like Yugoslavia and Sierra Leone. Granted, universal jurisdiction only comes into play if the individual cannot be brought to justice under the Rome Treaty or under one of the special tribunals, but if the UN is unwilling to create a tribunal, why should individual nations be able to prosecute those people? This may be rather incoherent. I apologize.
Feb 2008protecting the innocent... corporations?
I didn’t realize the significance of this case until I read a blurb about it in the Economist this week. The US Supreme Court came down recently with the decision in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., — S. Ct. —, 2008 WL 123801 (2008). Kennedy wrote the opinion, joined by all the conservatives, and Stevens wrote a dissenting opinion, joined by Souter and Ginsburg. Breyer recused himself from the beginning because of stock he owns. Roberts initially did, but I guess he sold his stock so he could be part of the opinion. On to the opinion itself: Investors (led by Stoneridge Investment Partners) sued a cable company (Charter Communications, Inc.), its executives, its independent auditor (Arthur Andersen, poor souls), and the company’s vendors and customers. The investors said the company made sham transactions that inflated its reported revenues and cash flow. The investors wanted the customers and suppliers to be liable for the sham transactions they agreed to. Scientific-Atlanta and Motorola were suppliers and then customers of Charter. The Court assumed that Arthur Andersen had been misled, though it made no controlling decision on that point. Id. at *3. That’s good for Arthur Andersen, at least. Charter entered into a deal with both Scientific-Atlanta and Motorola to pay more for digital cable converters that it purchased from them, and they would then buy advertising (at higher prices) from Charter. Id. Charter drafted documents to mislead Arthur Andersen in its transactions with Motorola and Scientific-Atlanta and make it appear that the transactions were unrelated by backdating the purchase agreements to a month before the advertising agreements. Id. Charter showed an increase in revenue and cash flow of $17 million, which it reported to the SEC and the public. Id. The investors said Scientific-Atlanta and Motorola had a duty to disclose the transactions. Id. at *4. The Court had previously held that, when suing for deceptive practices in the selling of securities, liability does not extend to aiders and abettors. Id. at *5 (citing Central Bank v. First Interstate Bank, 511 U.S. 164, 177 (1994)). The idea was that a company had to make statements or actions that the plaintiff directly relied upon before there could be any liability. Id. The Court decided in this case that, because “[n]o member of the investing public had knowledge, either actual or presumed, of [Scientific-Atlanta’s or Motorola’s] deceptive acts during the relevant times,” the investors “cannot show reliance upon any of [those] actions except in an indirect chain . . . too remote for liability.” Id. at *6. The Court did point out that secondary actors (including aiders and abettors) can be subject to criminal penalties and civil enforcement by the SEC, but that there is not always a private right of action against those secondary actors. Id. at *11. In the dissent, the liberals were rather vehement about the majority being incorrect. Stevens wrote that the actions of Scientific-Atlanta and Motorola “had the foreseeable effect of causing [the investors] to engage in the relevant securities transactions.” Id. at *13. The majority, in stark contrast to this, requires an action that makes it “necessary or inevitable” for the issuer to deceive as it did. Id. at *7. This is the really interesting point of contention to me. Should we hold people and companies to a high standard of morality in business practices? Every action has a foreseeable effect, usually many foreseeable effects, but being foreseeable does not make an effect inevitable. I’ve been analogizing a lot of situations to raising children lately, although I have no experience with that, so here’s another one: If your child asked for $10 to buy a birthday present for a friend, and you knew that what your child wanted to buy really cost $5, and you suspected your child wanted the $10 to spend the extra money on something you disapproved of, would you be at fault by giving your child $10? Giving a child more money than you suspect is necessary may have the foreseeable effect of your child spending it on something you disapprove of, but it’s not an inevitable effect. If children can choose what to do with their money, shouldn’t corporations be able to choose as well? We cannot be responsible for the bad things other people do unless we are directly involved. That may not apply to criminal law very well, but I do think that in this time where independence is valued more than most other things, we cannot treat people, or companies, as a community that is collectively responsible for the faults of one when it is convenient.
Jan 2008participating in persecution
A recent case – Chen v. U.S. Atty. Gen., — F.3d —, 2008 WL 150205 (11th Cir. 2008) – discussed a woman’s application for asylum status. Chen lived in China and worked at a governmental family planning office. Her job was to watch over the pregnant women who had violated the country’s family planning policies until they were forced to abort the fetuses. After about a month of working there, she released a woman who was eight months pregnant and was subsequently fired. She feared worse, and so she fled to Thailand and then the US two years later (in 2005).