2nd Semester Classes

I will not be taking Con Law until next year. It is a two semester course at NYL that will span both semesters of the second year. Con Law was one of the subjects that was covered in Law Preview, which is meant to review all the traditional first year classes. I am not certain what a majority of law schools around the country do, but I would tend to think that NYL is more the exception than the rule in terms of the placement of Con Law in the curriculum. Con Law is a class that I have been looking forward to since I knew that I was going to attend law school. I am very interested to read about John's experiences with it this semester. For instance, I have long wondered how politically drive a class in Con Law would inevitably become. At NYL, for example, the professor who teaches Con Law is the former president of the ACLU. Given her background and obvious agenda, how could the class not become overtly political? Although its hard to imagine a former president of the (gulp) ACLU doing so, I would assume that in order for the class to work and to foster a learning environment, she would have to be fair and impartial. Although when it comes to Academia, nothing surprises me anymore when it comes to far left professors and their attempts to indoctrinate their students. We shall see.  

SCOTUS taking back a mistake?

Andy McCarthy reported at The Corner earlier this week that the Supreme Court has invited the parties to argue that the Kennedy v. Louisiana decision was wrongly decided. I am not sure how many people are familiar with this, but it was a case decided during the summer that John and I discussed with our coworkers at great lengths. In a 5-4 decision, the court ruled that a Louisiana law permitting the death penalty for child rapists was unconstitutional. From my perspective, and I am sure John's as well, this is an extremely welcomed development. 

The opinion was obviously very policy driven as the Court's 4 liberal justices and one incompetent justice, Anthony Kennedy, decided to use the case as an opportunity to limit the use of the death penalty. Ideally we know they would like to just end the practice all together, but strong public opinion the other way makes that quite unfeasible. 

The Court's reasoning was quite thin. They argued that since most other states had outlawed the practice of executing child rapists, a "national consensus" had been formed on the issue, which prevented Louisiana from acting contrary to it. As many people observed, the reason most other states had outlawed the practice was because of a prior Supreme Court decision from a few years back that outlawed the death penalty in cases involving the raping of adults. Most states assumed that since the death penalty was outlawed for adult rape cases, it would naturally apply to children as well. So most states outlawed the practice under the assumption that they were required to as a result of the previous decision. How very convenient then that the Court would site a "national consensus" that existed only because of their own previous decision. 

Kennedy also made a borderline incoherent argument that the practice was cruel and unusual. His reasoning was that the punishment is "disproportionate" to the crime. Who really believes that the death penalty is disproportionate punishment for the raping of a child (which in many if not most cases effectively ruins that child's life)? Even then if you were to accept the premise that this was a a "disproportionate" punishment, why does it then logically follow that it is cruel and unusual? What is the standard by which we deem something disproportionate to be cruel and unusual? All questions left open in the Court's flawed reasoning.

It is encouraging to see that the Court is now at least considering correcting an obvious mistake and doing the correct thing.  

Digging In to the Cases...

In law school, you recognize very quickly the types of cases you can expect to read in each class. For example, torts and contracts cases, generally grounded in the common law, are largely decided by state courts. Civil procedure cases, however, at least on the subject of jurisdiction, are largely Supreme Court Decisions. These are the cases where I actually recognize the names of the judges who wrote the opinions. This can be a good thing, and this can be a bad thing. Its good in the sense that it definitely adds to the learning experience if you understand the background and perspective of the judge who is writing the opinion. It is also a bad thing, because you evaluate the opinions with pre-conceived notions about the opinions. For example, today I was reading cases dealing with the subject of personal jurisdiction (when can a state can force a nonresident to appear and defend itself in the state's court). 

In the first case, the issue was whether or not plaintiff, a seriously injured mother and wife who was injured in an automobile accident could force a New York based automobile distributor to appear in court in Oklahoma. The majority ruled that since the company did not have minimum contacts in OK, the state did not have jurisdiction. Included in the casebook was a dissent by Justice William Brennan. I just thought to myself: "what a shock". The most notorious and liberal justice of the 20th Century siding against the corporation. He advocated for an extremely broad view of jurisdiction in his consent. 

However, the next case I read dealt with the same issue, this time whether or not Burger King could sue a Michigan resident in Florida. I was surprised to see that staying consistent with his previous legal opinion, Brennan sided with the giant corporation, Burger King, and argued that the company did in fact have authority to haul this Michigan citizen into court on its home turf in Florida.

I am often cynical when it comes to Supreme Court Judges. I tend to think that legal theory or philosophy doesn't really mean anything to them. It is just the tool they use for the purpose of imposing their political views on the country; not just liberal judges, but conservative judges as well. I was pleasantly surprised by Brennan's opinion in the second case, standing true to the principle he believed in, even though you could just tell deep down he was dying inside ruling for the corporation against the "little guy". 

Perhaps law school will strengthen my faith in the American judicial system.     

Torts v. Contracts: The Law's Political Spectrum??

Perhaps I am going out on a limb here. Maybe my view is distorted because being such a political creature myself, I tend to see almost everything through the lens of politics and ideology. But after reading the introduction material to all my courses, perusing the first couple of cases in each book, and now having sat through my first torts class today, I can't help but making a few political observations.

The law of torts is extremely collectivist by nature. Someone is injured during the normal course of the their life by someone or something (perhaps a household appliance or an automobile) and there is the intrinsic assumption that this person is owed something from another individual or a larger entity (a corporation or the government). The law of torts commands that every person has a duty and an obligation to every other person, and that corporations and governments have duties to all of us. If someone is hit by Coca Cola truck, society has an obligation to compensate them for their bad luck. Coca Cola pays the damages directly, but consumers also share in the cost as Coca Cola compensates for the loss by raising the price of their products. Sounds collectivist to me.  

On the opposite side of this spectrum, I see contract law as very individualistic by nature. The right of two private parties to enter into a contract with one another on their own terms is an incredible source of individual freedom and liberty. There is no government intervention or paternalism that dictates what your contracts look like. It is completely up to private citizens to decide the nature of a contract and whether or not it is their personal prerogative to enter into it. In fact, the role of the courts in contracts law is largely to enforce contracts where they deem them to exist. The courts hold people personally responsible for the agreements they themselves created. There is no excuse-making on the behalf of the party that wants out of the deal, no sob-story or claims of oppression by the powerful against the weak. No, none of that at all. It's basically a matter of "you decided of your own free will to make this contract, and now you are responsible for the consequences of your own actions." This is the very essence of individualism and personal responsibility. 

Is torts law liberal? Is contracts law conservative? I obviously do not have definitive answers to those questions, and I am certain that even if there is a general rule, there will always be exceptions to it. But this observation is something that immediately jumped out at me while doing my introductory readings this past weekend. It is a hypothesis that I am definitely going to keep my eye on as my courses progress and I will test it as often as possible.