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A few weeks ago, Texas governor and presidential front-runner Rick Perry staged “The Response,” an all-day event of Christian-centered prayer in Houston. He “called on Jesus to bless and guide the nation’s military and political leaders and ‘those who cannot see the light in the midst of all the darkness.'” In the weeks leading up to The Response, Perry and his supporters predictably received criticism from liberal religious leaders, particularly Jews, and civil liberties groups.

There’s plenty to criticize about The Response, for example, its emphasis on piety and Jesus over our more this-worldly injustices and dangers. But criticizing the public display of religiosity, as many groups did, is dangerous for both religion and secularism.
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Religiously Insane

Can a person be declared incompetent to stand trial based solely on his religious beliefs? Last week, the Ohio Court of Appeals said, no (via VC). But it’s not the victory for religious freedom that it may look like at first glance.

In March 2010, John Daley was charged with retaliation, intimidation, aggravated menacing, menacing, and telecommunications harassment, stemming from a threatening voice-mail and letter. At the court’s request, he was sent for a psychiatric evaluation and diagnosed with psychotic disorder, not otherwise specified. The court found Daley incompetent to stand trial and “ordered him hospitalized for restoration to competency.” The Ohio Court of Appeals disagreed because the sole grounds for the defendant’s incompetency were his constitutionally-protected religious beliefs. (more…)

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This is a guest post by Apollo, a second-year law student.

It takes a lot from an elected official to irk me these days because my expectations are pretty low. Let’s face it — politicians do not set the bar too high. Rod Blagojevich was just found guilty on seventeen counts of corruption, making him the fourth of the last seven Illinois governors who will serve time in jail. The Republican primary process seems more like a circus than anything resembling political/policy discourse. Ex-Representative Anthony Weiner, who was entrusted by his constituents to cast meaningful votes on matters ranging from the Wall Street Bailout to the use of military force in Iraq and Afghanistan, did not have enough common sense to avoid extreme ‘sexting.’ Spitzer, Edwards – I could go on. In a bipartisan overture, I would say that the most significant unifying factor between Democrats and Republicans is each party’s proclivity towards stupid behavior. But these events don’t bother me anymore; they’ve become so common-place that I really don’t expect anything much different.

A couple of weeks ago, however, I found myself surprisingly irked over something President Barack Obama said in a speech to a group of gay rights advocates. Obama reiterated his position that gay marriage is a matter best left for the states to decide, invoking the age-old “States’ Rights” argument in an attempt to evade handling the gay marriage hot potato “straight”-on. As a political maneuver, not bad. I completely understand his fear of alienating the Blue-Dog Democrats who have helped elect him. Also, let’s not forget about his socially conservative Hispanic voting contingent. From the liberal side, Obama definitely annoyed a few constituents; but why would he pander to lefties in his party; who else are they going to vote for in 2012? Bachman? Palin?!?! From his time as an Illinois State Senator to his current tenure as President, Obama has consistently flip-flopped on gay marriage. Currently, his position is ‘evolving.’ Normally, I would not fault a politician for feeling the need to side-step this contentious issue, especially so close to an election year. Every politician does it and Obama actually makes it look easy. My problem with Obama is that, given his past, his dishonesty on the issue is particularly troubling. I do not know what bothers me more, that the comment came from an African-American, from a child of a racially mixed marriage, or from a former constitutional law professor.
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The New York Times editorial board should be reminded that poisoning the well is intellectually lazy and does nothing to advance public discourse. Writing on the Supreme Court’s recent decision striking down Arizona’s campaign finance law, the Times managed to spend 500+ words criticizing it without a single bona fide legal argument. Reading the editorial, I would barely know what the Court’s reasoning actually was.

After briefly explaining how the legislation works, the editorial states: “Chief Justice Roberts found that this mechanism ‘imposes a substantial burden’ on the free speech rights of candidates and independent groups because it penalized them when their spending triggered additional money for a candidate who opted into the public program.” That’s all the legal analysis we get. The Times continues, “[t]he court turns the First Amendment on its head.” Why? Because it doesn’t like the result and, by the way, conservative judges don’t care about clean elections.
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During one of my frequent visits to Tablet: A New Read on Jewish Life, I came across this article, entitled When Anti-Circumcision Turns Anti-Semitic. The article is interesting, discussing whether certain cartoons produced by the anti-circumcision movement in the Bay Area are Anti-Semitic – Marc Tracy thinks that they are and convinced me. One of the comments to the article particularly interested me:

This should not even be allowed on any ballot measure as it will be deemed illegal as it interferes with seperation of church and state. it will never see a vote. I am very liberal and this is just a ballot hatred. Tis is not what san francisoc is about. It’s disgusting!

Typos aside, this brings up a very interesting question: is outlawing circumcision constitutional? As I frequently find with “core” American political dogma (in particular relating to freedom of speech, religion, etc.), there is significant confusion about what the precise parameters of our “rights” are. For example, this commenter believes that a ballot measure outlawing circumcision would interfere with the “separation of church and state.” The separation of church and state is found in the First Amendment to the Constitution of the United States and reads that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” Of course, some intermingling of church and state has always been permissible in the United States – the best examples are blue laws. Additionally, the United States gives billions of dollars in tax exemptions to religious institutions exempting contributions to churches (and other houses of worship). Interestingly, because of the structure of the tax exemption of contributions to churches, they cannot endorse political candidates – another example of the government intermingling in the “god business.” Finally, several states maintain “Kosher Laws,” including New York, and at least 16 other states define the term “kosher.” In Miami-Dade County, Florida, it is “unlawful to offer any food product for sale which is falsely represented to be Kosher”; in Broward County, Florida, “sellers of kosher food [must] hold a Broward County Kosher Specialty Regulatory License.” Of course, thousands of municipalities, quasi-governmental agencies, and both federal and state governments display religious artifacts during the month of December – typically Hanukkah menorahs, X-mas trees, and nativity scenes.
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This recent Wall Street Journal article discussed the DOJ’s letter to the BCS which reads, in part:

Serious questions continue to arise suggesting that the current Bowl Championship Series (BCS) system may not be conducted consistent with the competition principles expressed in the federal antitrust laws. The Attorney General of Utah has announced an intention to file an antitrust lawsuit against the BCS. In addition, we recently received a request to open an investigation of the BCS from a group of twenty-one professors, a copy of which is attached. Other prominent individuals also have publicly encouraged the Antitrust Division to take action against the BCS, arguing that it violates the antitrust laws.

Although I am somewhat suspicious that the AG of Utah is interested in this issue – after all, the University of Utah Utes are always on the outs in getting into the national championship game, see this link –  I think that the letter and the piece make a very good point.

This is a recurring issue: the anti-competitive nature of a large number of American institutions, in particular in sports organizations.  Although the NFL appears to have effectively “won” their case against the players (non) union – see this link – the issue regarding the players and owners revolved centrally around the anti-competitive nature of the NFL.  In another recent decision, the U.S. Supreme Court held that the NFL was not exempt from anti-competitive regulations, like the Sherman Anti-Trust Act.

Where does this leave us?  As most of us know, MLB – Major League Baseball – has an exemption from regulations designed to maintain competition in markets.  Clearly football and the other sports do not.  One might question whether competition in football has made it more competitive than baseball (and why football is soooooo much more financially successful than baseball – according to this study the NFL makes nearly 13% more money than baseball while playing approximately 10% of the regular season games AND competing with basketball, hockey, college football, and college basketball for viewers while baseball competes with…).  Query whether competition would improve the game of baseball and draw more fans to games.

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Standard of Review Anyone?

It appears that many people think that an appellate court reviews each appeal in the same way a trial court does, e.g., by looking at the evidence – perhaps people think that witnesses come back and testify again. I do not claim to be an expert on the public’s general knowledge (and belief) regarding appellate courts. Disclaimer, I most likely did not understand appellate review prior to attending law school and there remain many things I still don’t know about appellate review and standards of review on appeal.

Standard of review matters, a lot. How much you ask? Well standard of review determines cases. As a recent post on Above the Law – a, mostly, funny legal blog – asserted in one of its few serious pieces:

After a relatively short time on an appellate bench, a judge’s brain becomes hard-wired to examine standards of review. For federal appellate judges, that means that, if the standard of review is de novo, the court should think hard about the trial court opinion and reverse if the result seems wrong. If the standard of review is for clear error, then the judge knows that the appellate court should probably affirm. If the standard of review is for abuse of discretion, then you don’t really have to bother reading the briefs. Just get out the “affirmed in an unpublished memorandum disposition” stamp, and move on to the next case.

Now, many of you likely will not know what the jargon-ey standards discussed above mean but suffice it to say: standard of review matters, and determines cases.

Just like every other piece I have seen on Dukes v. Wal-Mart, this New York Times piece, while interesting (especially where it suggests alternatives to a 1.5 million person class), completely fails to properly educate to the readers to the role of the appellate courts in the United States (and the Supreme Court in particular). Although it would be difficult to provide context in this short editorial, perhaps at some point someone in some news source could at least mention that class certification is subject to a certain kind of review – and it isn’t de novo but rather abuse of discretion. This means that the trial court has significant discretion in determining whether a prospective class is certifiable. The appeals court (Supreme Court included) does not get to displace the trial court’s determination with its own. My review of the comments suggests that the commenters are clearly are not aware of the standard of review and the significant impact it has.

This is significant in two ways regarding Dukes v. Wal-Mart:

1. It will be very difficult for Wal-Mart to win on appeal because of this significant burden on the appealing party.

2. It is unclear that if the Supreme Court upholds class certification for the plaintiffs in Dukes that this will materially change any law or set any precedent (I do recognize that this may be highly relevant for the plaintiffs and in plaintiffs’ lawyers). All that an affirmation will show is that these plaintiffs and these facts are not so outside the trial court’s discretion and that it was o.k. for it for certify this class. This does not mean that each and every time an employee sues his or her employer the employees of that employer are certifiable as a class (although affirming the trial court’s class certification likely means that the raw size of the plaintiff class is not de facto a reason to overturn certification).

Has anyone seen an article discussing the standard of review in Dukes v. Wal-Mart – or any other case?

Does anyone think that this case could have a more meaningful impact on existing law than I outline above?

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