Constitutional Daily

Founding Principles

The Tenure Paradox - Robot pimp

Slap on the Wrist for "Non-Consensual Sex" - Lampshade, Esq.

Intelligence: The Gathering - Graphic and Gratuitous

Grads are the New Illegals - Robot Pimp

Meet Entitlement Eric - Robot Pimp

Wherein I Solve World Peace - Lampshade, Esq.

A Necessary Delusion - Shadow Hand

Do you even need to shave overhead? - Lawyerlite

LSAT Jenga - Publius Picasso

http://www.constitutionaldaily.com/index.php?option=com_content&view=article&id=1573:legal-reasoning-redux-5&catid=38:there-and-never-back-again&Itemid=65

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Constitutional Daily

MSNBC Throws Self Under Palin Bus

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An MSNBC pundit has accused Sarah Palin's bus tour of operating in violation of federal law.

Claims of breach of federal campaign finance laws are common in every election, and Donald Trump was accused of a breach before announcing he wouldn't be running. But, that's not the offense Martin Bashir has accused Palin of committing.

Bashir instead says that the stars and stripes painted on Palin's tour bus, which is being used in part to promote book sales, is in violation of the United States Flag Code:

"In fact, the whole thing could be in breach of a federal law because the United States Flag Code establishes important rules for the use and display of the stars and stripes, the flag of the United States. Under standards of respect and etiquette, it's made clear that the flag of the United States should never be used for any advertising purpose whatsoever. Yet that's precisely what Sarah Palin is doing. She's using the flag of the United States for her own financial purposes. She drapes herself in the stars and stripes and makes millions of dollars in the process."

Title 4, Chapter 1, Section 8:

No disrespect should be shown to the flag of the United States of America; the flag should not be dipped to any person or thing. Regimental colors, State flags, and organization or institutional flags are to be dipped as a mark of honor.

(i) The flag should never be used for advertising purposes in any manner whatsoever. It should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard. Advertising signs should not be fastened to a staff or halyard from which the flag is flown.

This rule is discussing mutilation of a flag to be used in commercial purposes, not the use of a representation of a flag, such as a partial flag painted on to a tour bus. Another section lays out more strict rules, which would prohibit painting the flag onto anything for a commercial purpose, but the rule only applies to DC, comes with a misdemeanor charge and $100 fine, and under Supreme Court rulings, is unenforceable as a violation of the First Amendment freedom of speech.

The idea that the flag cannot be used in commercial enterprises is, on its face, absurd, and smacks of the sort of convoluted, counter-factual notions produced by tin-hat conspiracy theorists.

Just for fun, we looked a little further into the flag code, and... well, we'll let it speak for itself. From the same section:

(j) No part of the flag should ever be used as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations. The flag represents a living country and is itself considered a living thing. Therefore, the lapel flag pin being a replica, should be worn on the left lapel near the heart.

[Media Research Center TV]

[Flag Code]

Louisiana Parish to Carve Out Black Judicial District

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Terrebonne Parish, Louisiana may soon be getting a special black judicial district.

The parish has five judges, who are elected at large across the district, and all of whom are currently white men. The new bill going through the state legislature would carve out a special black district to elect one of those judges. Residents of the special district would not be allowed to vote in the parish-wide judicial elections.

The special district would be overwhelmingly black, with the expectation that this would ensure a black judge was elected. Apparently, this is prefaced on the idea that not only are whites racist against blacks, but blacks are racist against whites, and thus wouldn't ever consider using their special district to elect a white judge. Nothing like some good ol' segregated Us v. Them mentality.

The district affects only the elections, and not the jurisdiction of the judges. That means people outside of the special district run a chance of appearing before a judge who was elected entirely by another group. And, people within the district will, more often than not, be in court before a judge for whom they had no say in the election of.

15 parishes in Louisiana have already set aside special black judicial carve outs.

[Daily Comet]

4 Year Old's Advice to HLS Grad

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Excellent advice from a 4 year old to a recent Harvard Law Grad. There are enough lawyers already, why not be a trash man instead?

Here is a Dime, Use it to Phone a Friend

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They say that cheaters never prosper. But, we all know the truth. Cheaters are more likely to prosper than if they had not cheated. If this weren't the case, no one would cheat.

In his newest article, BL1Y talks about his experience cheating on his 1L civ pro exam: Here is a Dime, Use it to Phone a Friend.

Whorder in the Court

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"I will treat you with respect each time we are in contact."

"Attorney Bajaj serves a variety of counties and will be willing to travel to you if necessary. She serves DeKalb, Boone, Winnebago, Kane, DuPage, Ogle, Lake, McHenry, and Lee. This list is not exhaustive of where she will go to help a client."

A Sycamore, IL attorney has been arrested and charged with prostitution.

Reema Bajaj, a graduate of Northern Illinois University College of Law, was charged with three counts of prostitution. The counts contend that Bajaj engaged in sexual acts for $100 (Class A misdemeanor) and within 1000 feet of a school (Class 4 felony).

Bajaj was a known prostitute, having previously been charged with offering sexual favors for $50 (the price she now charges for a demand letter), but she claims she has not engaged in prostitution since being admitted to the bar last November.

Bajaj turned herself into the police last Tuesday, after a warrant was filed for her arrested. Conveniently enough, she was already at the courthouse with a client, a man charged with possessing child pornography and aggravated sexual assault.

She has withdrawn from that representation, and will likely be dropping a few more clients after the state bar disciplinary committee get involved.

[Daily Chronicle, gavel wave Faux Trixie]

[Bajaj firm website]

NYC Cops' Acquittal Pretty Reasonable Actually

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A lot of people have weighed in the recent NYPD rape case, including a protest with several hundred people shortly after the not-guilty verdicts came down.

One of the chief talking points is that some how the jury managed to accept the defense's argument that the victim was simultaneously too drunk to accurately remember the events of the evening, but sober enough to consent.

We're here to set the record straight. First thing's first, in a criminal prosecution the defense doesn't have to argue a damn thing. The burden is on the prosecution. There was evidence (an admission) that the officer in question had sex with the victim, but sex is not a crime to which consent is an affirmative defense. No, sex without consent is a crime, and proving a lack of consent is on the state.

In this case, the jury wasn't even hung. They came back unanimously to say the prosecution failed to make its case. But, a bunch of really angry people decided they knew the evidence better that the jury, and insisted that two cops got away with rape. (They were found guilty of official misconduct and were immediately terminated.)

 

More importantly, being too drunk to be a credible witness and being sober enough to consent are not mutually exclusive.

Someone can be black out drunk, that is to say, too drunk to form credibly and complete memories, and still be able to function in a reasonably competent manner. We don't condone drunk driving, but the vast majority of people driving home hammered every weekend night arrive home without incident. And, many of those people will have no memory of leaving the bar, driving home, putting their pajamas on, or drunk dialing their ex girlfriend.

We don't know how drunk the victim in this case was, but we do know that there's drunk, drunk, and passed-the-fuck-out, and that the jury did not find there was sufficient evidence to prove the victim was drunk enough to not consent. Sorry to everyone who likes to have knee-jerk reactions, but "drunk sex" does not always mean rape, no matter how many times you describe that as "overwhelming evidence."

[Jezebel]

The Paper Waste: Legal Academic Writing

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What if you were to hear that law schools spend over $10 million dollars a year paying professors to write articles that virtually no one reads?

What if you were to hear that by "law schools" we actually meant "one law school." ...Yeup. Students at Michigan shell out about $10k each, every single year, to pay for articles no one wants, and no one reads.

There are over 10,000 articles published every single year by law journals. If there's a worthwhile piece among them, you'll never find it.

Read more about the great white and green paper waste here: The Paper Waste: Legal Academic Writing

Bugger...

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New speech codes will soon arrive in Australia.

The local government for the state of Victoria is set to pass a law that would give police officers the ability to issue tickets for offensive or obscene speech in public. The police can already arrest people for their public obnoxiousness, but the new measure is aimed at giving police a quicker, more convenient punishment rather than the time consuming process of making an arrest.

A ticket for public swearing comes with an AUS$240 (US$257) fine.

Well, not everyone can be as awesomely pro-free speech as the United States. America, fuck yeah!

[Brietbart]

Actually, That's Dr. X

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Over on Prawfs Blawg, professor Lyrissa Lidsky (Levin) complains that students are addressing their male professors with a greater sense of respect than their female professors:

I and many other women professors I've talked to have had students refer to us as "Ms." or "Miss Y" literally in the same sentence that they refer to a male colleagues as "Professor X."

Quick aside, the female professor should be X, and the male professor Y. Either because you understand sex chromosomes, or because you put your alphabet in the correct order.

On to the substance of her complaint (which is followed by a dilemma about correcting students); we found it very easy to come up with a scenario where this would be entirely acceptable:

Ms. Lidsky, will you be attending Professor Man's lecture tonight?

It's pretty common to refer to third parties with a greater sense of formality (especially below the Mason-Dixon Line), and if you have a more relaxed relationship with your students, you're going to create a disparity. In her conversations Lidsky is never a third party, and third party professors are more likely to be male, so this disparity might be fairly common. But, there is nothing disrespectful about it.

There is of course a more problematic possibility to what Lidsky is referring to:

I attended a wonderful lecture last night by Professor Man and Ms. Woman.

That sounds terribly awkward to us though. If a student speaks like that, you may need to address the level of respect they give to female professors, but the more pressing issue is their inability to form a naturally-flowing sentence.

[PrawfsBlawg]

Maine Considers Unicameral Legislature

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State governments are generally a good source of wacky ideas. You take the weird ideas that the federal government comes up with, and then crank up the heat, spitting stuff out at a rate 50 times faster.

The Maine House of Representatives gets major originality points for its latest proposal. In an 8-5 vote, the House State and Local Government Committee approved a bill that, if passed, would put before the voters the option to change to a unicameral government. The state would have only a senate, with 151 members.

The idea is to streamline the legislative process. A single house eliminates the possibility of the two houses being controlled by opposing parties, as well as the need for conference committees.

As soon as the citizens of Maine realize that the opposing party would also get to take advantage of the process, it's likely this proposal will fail.

[The Republic]

Page 95 of 136

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