As someone who has a birthday near a holiday, I know it’s not an easy thing. But a birthday that is being properly marked despite the holidays is Frank Sinatra’s 100th. As a T&E professor, I have come to know Sinatra as much for his tidy estate plan as his music, so I look forward to the major music concert in his name on Dec. 6 on CBS. So, if you’re a music fan like me, add that to your holiday concert list.
Posted by Margaret Ryznar on November 27, 2015 at 11:36 AM
In New York, an Asian dumpling with all the flavors of Thanksgiving encapsulated in one savory bite dipped in artisan cranberry delight
A Parisian father affirming love over hate, in the embers burning images of twin towers, Beirut, Paris, Mali; unarmed black young men shot: disproportionate volley
But faith restored is stronger, unshaking after its near breaking To see ‘hope in the unseen’—in the brine The soul’s light streaming like Bonnie through Prine
Homecomings in places of our choosing or of our birth, of our coupling; of conscious (re)coupling On the heels of a Full Mourning Moon seeking cures or tribally a Moon When the Deer Shed Antlers
The night calls for shedding, while the day calls for thanking to see the homeless, the wounded, the incomplete remaking. To air grievances; binge watch football and zombies We, imperfectly, give thanks for this world of opportunity.
Posted by Caprice Roberts on November 27, 2015 at 08:54 AM
Caprice….beautifully written , haunting, poetic, resounding flair for justice.
Posted by: Vicki | Dec 10, 2015 1:45:09 PM
You read aloud to us Thanksgiving day and I do so again now, silently – truly amazing writing. I’ll will be sharing just like Mom would, pride bubbles over!
Posted by: Cherise | Dec 3, 2015 8:44:55 PM
Generations of shared DNA meet in annual ritual affirming bonds of the heart and mutual history. Thanks for letting C and I be a part of it.
Posted by: S | Nov 28, 2015 9:01:42 AM
This is beautiful, Caprice! Thank you.
Posted by: Andrea Boyack | Nov 26, 2015 7:03:16 PM
Allison Anna Tait (University of Richmond – School of Law) has posted The Secret Economy of Charitable Giving on SSRN. Here is the abstract:
Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor intent above all other considerations. Recent reforms, however, have moved courts toward a more flexible application of the doctrine. In this Article, I analyze certain high-profile cases that have driven these reforms — including the presumption of general charitable intent, the recognition of “wasteful” as a criterion, and the deployment of deviation — and explain how these reforms represent positive change. Moreover, I provide a theoretical grounding to account for the correctness of these reforms. I argue that charitable giving should be understood as embedded in a nexus of material and social exchanges — part of the “charitable gift economy.” I describe how charitable giving provides a range of benefits to donors, including both tangible tax benefits and intangible benefits such as status, social identity, and “warm glow.” Based on this understanding of the charitable gift economy, courts and charities alike should embrace current reforms and seek to expand them further.
I found this article quite fascinating. Not only does Tait provide an excellent, concise but thorough account of the history of the doctrines of cy pres and deviation, but also she proposes a rich account of what she calls the “charitable gift economy” and how it ought to affect our understanding of the proper scope of cy pres and deviation. Essentially, she argues that donors receive a congeries of benefits associated with their charitable contributions, and courts ought to consider the nature of those benefits in determining the appropriate scope and duration of restrictions on charitable gifts. In other words, perhaps cy pres and deviation ought to become easier to invoke as time passes. As an aside, I also commend Tait’s well-chosen quotes from Marcel Mauss and La Rochefoucauld in the epigraph of her paper.
Posted by Brian Frye on November 25, 2015 at 09:29 PM
In an earlier Prawfs post, I talked about the holdout in the Jodi Arias case and how the holdout was able to get her vote out of the jury room because she had been “treated” with the Colorado method of capital voir dire.
That jury deliberated for five days and when they were released, those who wanted death were pretty vocal about how angry and frustrated they were with the holdout. Compare that angry reaction to the calm reaction by the jurors in the James Holmes trial. This eight-minute clip of Jury 17 describing the jury dynamics is well worth watching. She describes how the jurors were cordial and respectful of each other. When pressed by reporters as to whether tempers flared in the deliberation room, she said tempers didn’t, and that everyone simply recognized that the juror who was voting for life was firm in that position. (Two other jurors were on the fence.)
So why was the Arizona jury so angry and the Colorado jury so calm?
If anything, we should expect the reverse. The Arias case was not that egregious as far as death penalty cases go. Many reasonable people could argue that those types of cases shouldn’t even qualify for the death penalty. And in those types of cases, we might not expect the death-voters to be that committed to ensuring a death verdict gets out of the jury. However, most would agree that if a jurisdiction is going to have the death penalty, the Holmes case would qualify. The death penalty is supposed to be reserved for the worst murderers, and that case appears to be about as bad as it can get. We might expect the death-voters to be deeply committed to getting a death verdict out of the jury.
In both cases, the defense attorneys used the Colorado method of capital voir dire. (This article describes its use in the Holmes case). That method has two main parts: identification and treatment. In the first step, the defense counsel ask a precise question that is designed to accurately and reliably measure whether the potential jury is constitutionally prohibited from serving on a capital jury. The defense counsel then develop a rating for that juror using open-ended questions. Once the juror is identified, the defense counsel move to step two.
In that phase, the defense counsel “treat” all of the favorable jurors (those who are likely to start with the presumption that life is appropriate) with a condition – the defense counsel teach those jurors how to get their votes out of the deliberation room. That happened in both Arizona and Colorado.
The defense counsel also treat the unfavorable jurors (those who are likely to start with the presumption that death is appropriate) with a condition – the defense counsel teach those jurors how to respect the decisions of others. Among other things, the defense counsel explain that the penalty decision is a moral decision and that in most social situations, it is unacceptable to challenge someone’s moral decisions (“You wouldn’t tell someone that they had chosen the wrong religion, would you?”). The defense counsel also have the potential jurors commit to behaving in a professional way and to ensuring that others do the same (“If you see someone raising their voice at someone else, I can count on you to tell them to keep it professional, right?”).
In Colorado, the jury did get this treatment and responded to it. Indeed, even the prosecutor responded. But in the Arias trial, the defense counsel did not have the time in voir dire to do this treatment. The Arias defense counsel were able to treat the presumptive life-voters, though, and that proved enough to get one vote out of the deliberation room.
Posted by Eric Carpenter on November 25, 2015 at 12:30 PM
In Star Wars Episode 3, Obi-Wan Kenobi says that “Only a Sith deals in absolutes.” (Yes, it seems contradictory for a Jedi to assert so absolutely that only a bad-guy Sith would peddle in simplistic worldviews.) But like the Sith (and apparently Obi-Wan himself), the law at least frequently deals in absolutes. Typically, people are either negligent and owe full compensation or not and owe nothing. They are either guilty and must serve at least a minimum sentence or not and go home free. In many places, if you deal drugs 999 feet away from school, your sentence is substantially enhanced but if you were 1001 feet away, it’s not.
I wrote about the topic in general terms in a paper called Smooth and Bumpy Laws. In a new draft paper, I consider the smooth and bumpy features of criminal law in particular.
Posted by Adam Kolber on November 25, 2015 at 12:18 PM
As family descends upon your kitchen this Thanksgiving (or, in my case, upon the Bears-Packers game), I am reminded of the reasons a high estate tax would not be popular. I have a forthcoming law review article arguing that not only do people want to leave their property to their family, but also that the family law system relies on this private safety net to a great extent. The article is available here.
Posted by Margaret Ryznar on November 25, 2015 at 11:45 AM
Howard always does a fine job of promoting his corner of Jotwell; I do not. But here is my con law jot on Samuel Bagenstos’s excellent article “The Unrelenting Libertarian Challenge to Public Accommodations Law.” Jotwell is devoted to writings that the editors and reviewers “like lots,” but one can “like lots” an article that one doesn’t entirely agree with, or that is not wholly in line with one’s priors. When I can, I prefer to select articles of that sort for my own (rare) jots. So here is a jot on an article that I think superb and that “has troubled me for a year now.” It is also, I suggest, one of the first and still one of the best of the current burgeoning line of what I call [anti-] “neo-Lochnerism” scholarship.
A contrary perspective can be found in the same journal issue in this article by Richard Epstein, but my discussion is along different lines. It spotlights the article’s arguments and strengths, while emphasizing the implications of Bagenstos’s observation that the balance between the “public” and “private,” or “civil” and “social,” spheres may prove permanently unstable and continually (but not constantly) contested. (In my view, legal academics are therefore unlikely to make unique or lasting contributions to the core conflict.) The strong critical insights Bagenstos brings to bear on previous attempts to fix the line between permissible and impermissible regulation apply well to the libertarian arguments he discusses, but they also apply to the other side of the debate.
One thing the article suggests, by comparison with later articles on “neo-Lochnerism,” is that although many current liberal or progressive articles in the law reviews make use of Critical Legal Theory or Crit-type arguments to undermine their opponents and thus attempt to entrench a more egalitarian or progressive legal regime, there is a startling unwillingness in that literature to name CLS as the source of these undermining arguments, and still more reluctance to acknowledge that those arguments might undermine or destabilize their own positions. I should add that this point emerges from a reading of Bagenstos’s article against some of the more recent literature; it’s not a criticism of Bagenstos’s article itself. Such, perhaps, is the inevitable fate of the Crits, who are applauded by normatively oriented legal scholars who are trying to resist some legal regime, but treated as unpersons when these scholars are trying to establish or entrench such a regime.
Some excerpts after the fold. If you haven’t already, read Bagenstos’s article!
Samuel Bagenstos’s excellent article, The Unrelenting Libertarian Challenge to Public Accommodations Law, has troubled me for a year now. Anyone seeking to elaborate, and in some cases defend and expand, the developments it describes and, I think, implicitly criticizes, must reckon with it. As this Jot argues, however, so must supporters of Title II, who may find that their arguments defending it, and their reassurances about its scope and limits, are equally subject to the undermining logic of Bagenstos’s own critical—or Critical, if you like—argument. As he concludes, the conflict over just “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres” is a real one, and unlikely to go away, for reasons that apply to both sides in the debate….
No matter their priors, people interested in public accommodations laws can profit a great deal from this article. Libertarians will find much valuable history and analysis, and perhaps an invitation to display greater candor or self-awareness about the nature of their project. Those who champion religious accommodation, even in the realm of public accommodations, for non-libertarian reasons will also find cause for concern here. For reasons both strategic and sincere, few supporters of religious accommodation want to attack entirely the underlying logic of laws forbidding discrimination in public accommodation, at least where race is concerned. Much of their own project consists of efforts to draw reasonable lines between for-profit and non-profit enterprises, or between the public and private or civil and social spheres. In doing so, they will have to reckon with Bagenstos’s article, which reveals the potential instability or incoherence of those efforts.
And defenders of an expansive reading of public accommodations laws, in the face of religious or other challengers and seekers of exemptions? They, too, ought to have reason for concern after reading Bagenstos’s article. That is perhaps the best evidence of its success as legal scholarship, of its genuinely analytic and descriptive nature. This is not simply a liberal critique of the libertarian challenge, but a critical take, drawing on the literature of Critical Legal Studies. Like the public-private distinction, he argues, the distinction between civil and social rights turns out to be “unstable and continually”—we might even say essentially—“contested.” Here, he cites Duncan Kennedy. Similarly, efforts to draw a distinction between commercial and expressive associations are “unstable.” He acknowledges that multiple readings and legal options are available in response to what, quoting Jack Balkin, he calls a “pervasive welfare state.”
Little wonder, then, that “[w]e continue to struggle over the proper placement of the civil-rights/social-rights line, nearly fifty years after Congress and the Supreme Court supposedly laid that distinction to rest.”(P. 1220.) ….
If there is a surprise in the current neo-Lochnerism literature, it is that so much of it relies on Critical Legal Theory’s insights, yet virtually none of it cites the literature, or acknowledges the double-edged nature of those insights. A Westlaw search for articles containing the terms “Lochner” and “Hobby Lobby” since the beginning of 2012 yields 43 results; add “Duncan Kennedy” to the mix and the number plummets to two. One is mostly irrelevant, and the other is Bagenstos’s article. To reveal the instabilities in another’s argument is human; to fail to notice that you have also dug a hole under yourself is, well, all too human. It is telling, perhaps—whether of extreme certitude or great insecurity is not clear—that these efforts to entrench a new liberal settlement routinely deploy the Crits’ analytical moves, but otherwise consign the Crits’ names and works to the memory hole.
Therein lies the relative weakness of the new defenses of public accommodations laws against religious challengers, and the scholarly strength of Bagenstos’s piece. It does indeed suggest a more sweeping arc to the narrative of challenges to public accommodations laws, one connecting past, present, and perhaps future. It does so on a sound basis, mostly without appealing to essentially irrelevant arguments about the challengers’ motives or funding…..
Most important, it recognizes that the instabilities and uncertainties in this area are inevitable and universal. The question “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres”—whether its limits are substantial, whether the government may override associational choices altogether, or whether the balance rests at some unstable point in between—is and must be a subject of continuing contestation and re-evaluation. Every new era, with its fresh controversies, demands its own renegotiation—if not of the unstable line between “public” and “private,” then of the reasonable reach and limits of state power in practice. Hence the haunting nature of Bagenstos’s fine article.
Posted by Paul Horwitz on November 25, 2015 at 11:15 AM
The Wu-Tang Clan is a popular hip-hop group, formed in 1993 in Staten Island, New York (shout-out to Josh Blackman) by RZA, GZA, Method Man, Raekwon, Ghostface Killah, Inspectah Deck, U-God, Masta Killa and the late Ol’ Dirty Bastard. After achieving remarkable success as a group, the members of the Wu-Tang Clan gradually went in different directions, in many cases achieving similar success as solo artists.
In any case, in March 2014, the Wu-Tang Clan announced the release of a new album, Once Upon a Time in Shaolin. But there was a twist. They stated that they would create and sell only one copy of the album. And they meant it. The Wu-Tang Clan put the 128-minute concept album on Paddle8, an Internet art auction website, and sold it to an unnamed “private American collector” for a price “in the millions.” The album is described as “a retrospective soundscape that threads 31 songs, skits, and stories into a 128-minute-long aural screenplay,” and the package includes a nickel-silver box, assorted artifacts, and a pair of $55,000 speakers.
Needless to say, the sale and its terms present a fascinating set of copyright issues. While the sales agreement is not public, the Paddle8 website explains its terms as follows:
The seller of this Artwork will provide the Buyer with a Certificate of Authenticity for the Artwork at the time the Artwork is delivered to the Buyer. The Buyer’s right of ownership of the Artwork and its content is for private use only. The Buyer acquires full public and commercial rights in the Artwork eighty eight (88) years from the date of sale. The seller has agreed, as a condition of the sale, not to ever release any of the content on the Artwork in any form, format, channel, medium or manner (including, print, disk, tape, electronic or virtual) to the public. This Artwork is offered for sale without copyright, broadcast rights, performers consents, and other reproduction rights. The Buyer must apply to the relevant parties to obtain such clearance and consents as may be necessary.
To begin with, it is unclear whether the agreement is to sell a copy of the recording or the copyright in the recording, or what rights it is intended to convey. As a consequence, it’s not clear whether any dispute would sound in copyright or contract, per T.B. Harms. But further, the entire concept seem antithetical to the entire purpose of copyright law, which is to encourage the dissemination of works of authorship. It seems that the Wu-Tang Clan’s decision to offer the album for sale as a unique object was inspired by the art market, but an audio recording is inherently not a unique object, as observed by Walter Benjamin, oh-so-many years ago. On balance, I am inclined to agree with “Method Man,” who observed:
Fuck that album. I’m tired of this shit and I know everybody else is tired of it, too. Fuck that album, if that’s what they are doing. I haven’t heard anything like that, but if they’re doing crap like that, fuck that album. Straight up.
I’m just keeping it 100. When music can’t be music and y’all turning it into something else, fuck that. Give it to the people, if they want to hear the shit, let them have it. Give it away free. I don’t give a fuck; that ain’t making nobody rich or poor. Give the fucking music out. Stop playing with the public, man.
That said, it seems pretty likely that the ultimate result will be that the album is available for free, albeit perhaps illicitly, along the lines of Danger Mouse’s Grey Album. So maybe the Wu-Tang Clan just hit on a clever way to cash in on the value of their album, while cutting out the middlemen. If so, I doubt that anyone is likely to find future takers for similar offerings.
Posted by Brian Frye on November 24, 2015 at 08:20 PM
Apparently, the Wu-Tang clan has identified the buyer: Pharma CEO and pilloried price gouger Martin Shkreli. Shkreli allegedly paid $2 million. Because of course he did.
Posted by: Jake Linford | Dec 9, 2015 10:50:02 AM
Happy Thanksgiving for Anyone!
Posted by: Tanya Wesse | Nov 25, 2015 2:31:55 AM
Eric C. Chaffee (University of Toledo – College of Law) has posted Collaboration Theory: A Theory of the Charitable Tax Exempt Nonprofit Corporation (49 U.C. Davis L. Rev. __) on SSRN. Here is the abstract:
Legal scholarship regarding tax exempt nonprofit entities is meager at best. Although some excellent treatises, book chapters, and journal articles have been written, the body of scholarship relating to these entities is not nearly as healthy and robust as the scholarship relating to their for-profit companions. This is especially troubling considering that nonprofit entities help to improve our society in a myriad of different ways.
This Article seeks to fill a void in the existing scholarship by offering an essentialist theory for charitable tax exempt nonprofit corporations that helps to explain the essence of these entities. Beyond the purely academic metaphysical inquiry into what is a corporation, understanding the essential nature of these corporations is important because it helps to determine how they should interact with society, what rights they should have, and how they should be governed by the law. This discussion is especially timely because the recent opinions by the Supreme Court of the United States in Citizens United and Hobby Lobby have reinvigorated the debate over the essence of the corporation.
This Article breaks new ground by offering a new essentialist theory of the corporation, which shall be termed “collaboration theory.” The decades of debate over the essence of for-profit corporations has coalesced into three prevailing theories of the corporation, i.e., the artificial entity theory, the real entity theory, and the aggregate theory. The problem is that none of these prevailing theories fully answers the question of what is a corporation.
Collaboration theory suggests that charitable tax exempt nonprofit corporations are collaborations among the state governments, federal government, and individuals to promote the public good. Unlike the prevailing theories of the corporation, collaboration theory explains both how and why charitable tax exempt nonprofit corporations exist, which provides a fuller and more robust understanding of these corporations. Collaboration theory advances the existing scholarship by finally offering an essentialist theory for nonprofit corporations, and it shows remarkable promise for understanding the essential nature of for-profit corporations as well.
I saw Chaffee present this article at the Central States Law Schools Association 2015 Annual Scholarship Conference at the University of Toledo College of Law in October and was very impressed. And I could not recommend the paper more highly. As he observes, while the scholarship relating to the taxation of charitable organizations is vast and quite sophisticated, scholarship relating to the governance and theory of charitable organizations is considerably more meager. Unsurprisingly, tax scholars tend to see charitable organizations as an interesting taxation issue, and corporations scholars tend to see charitable organizations (to the extent they notice them) as just another corporate form.
By contrast, Chaffee sees the charitable organization as a unique organizational form that traditional theories of business corporations cannot adequately describe. As he explains:
This theory is superior to the existing essentialist theories of for profit corporations because it answers why corporations exist, rather than simply struggling with how they exist. The reason why charitable tax exempt nonprofit exist is because they are collaborations to promote the public good among state governments, the federal government, and individuals. How they exist is as separate entities because collaboration yields something greater than the state government, federal government, and individuals could achieve alone, yet the state and federal governments can circumscribe these entities rights because the state and federal governments are part of the collaboration.
But as Chaffee further observes, “collaboration theory” may enrich our understanding of business corporations as well, by explaining the normative justification for corporations, rather than just describing their function. In order to understand what corporations – charitable or otherwise – should look like and how they should be governed, we must understand their purpose and justification. Chaffee’s article provides a helpful step in that direction.
Posted by Brian Frye on November 24, 2015 at 06:52 PM
First, thank you, Brian F., for posting this! I’ve found the community of people who I’ve met writing about tax exempt entities to be very welcoming, and I appreciate you taking the time to post about my work, especially because I’ve enjoyed your work so much.
Second, Brian G., I’m happy that you find my work provocative. I’m surprised that you find footnote 15 to be the most controversial point in the piece. It was more a lament that more people aren’t writing about nonprofits and charity, which I didn’t think was that controversial. I always look forward to your work on charity, and I’ve read most, if not all, of it. It’s been very influential in my thinking about a number of topics. I suppose my lament is that I wish more people were writing about such topics. Every week, I check various lists of new publications, and I end up wanting more.
Posted by: Eric Chaffee | Nov 26, 2015 12:41:53 AM
Brian, thanks for sharing your thoughts! For what it’s worth, my post & comments were by no means intended as an endorsement of everything in the article, only a reflection on why I found it interesting. While I obviously agree that there is a substantial L&E literature on charities, I do think it is rather dwarfed by the literature on business corporations. My sense is that Chaffee was just making a broad (perhaps over-broad?) generalization about tendencies in charity law scholarship & the discomfort that some L&E scholarship seems to have with the concept of altruism. While I agree that there are economically rational reasons to form a charity, in my experience they are not always the most salient to those who actually decide to start charities.
In any case, your comment prompted me to check out your SSRN page, which was quite productive, as several of your recent papers are quite relevant to some of my current projects. And for readers, I recommend Brian Galle’s paper The Role of Charity in a Federal System (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1473107), which elaborates on some of the points he makes above. And is quite insightful indeed.
Posted by: Brian L. Frye | Nov 25, 2015 8:52:08 PM
Thanks, Brian. It’s an interesting piece, but a lot of things about it puzzle me. Take note 15, which goes on for quite a bit on the author’s theories about why there is relatively little writing (that he’s aware of) about nonprofit governance. He speculates that law & economics is important to the study of for-profit firms, but that l&e types are uninterested in nonprofits. This is a curious claim. Perhaps it stems from the author’s other assertion (not in a footnote) that economics predicts that nonprofits should not exist. This in turn forms the basis for his claim that his is the first theory to explain the existence of nonprofits.
In fact, there is a pretty robust literature on why even rational self-maximizing entrepreneurs would form a non-profit, some of it (albeit probably the least insightful) by me.
Posted by: BDG | Nov 25, 2015 9:56:37 AM
I’m a big fan of Stephen Colbert–an extraordinary smart and talented comedian–especially in his days as a correspondent on The Daily Show. I liked The Colbert Report, too, but his character’s personality could sometimes be a little much (and did we really have to wait each night for his audience’s clapping to quiet down?). So I was excited to learn that he’d be playing his naturally charming self on his late night talk show.
It’s probably too soon to predict how his show will fare. This article suggests that his political views may be alienating a good chunk of his potential audience. My own concern with the show is two-fold: First, he’s got more time to fill. Material that’s hysterical for about 20 minutes is a bit less hysterical spread out over a much longer time period. Just as I think scholarship should roughly be a function of interesting ideas per unit time spent reading it, comedy is roughly a function of humor value per unit time spent consuming it. Second, The Colbert Report was much more subversive than his current show. I was surprised how much his late night show sticks to a relatively common formula. I get that he used to have a half-hour show on Comedy Central and now has a longer show on a major broadcast network. Still, one can regret the possibility that Colbert has been forced to tame his comedic sensibilities.
Posted by Adam Kolber on November 24, 2015 at 05:42 PM
I wasn’t aware that others had said the same thing, Blowspon, but given the millions of watchers, that makes sense. If you have any pertinent links that you’d like to share in the comments, they will be most welcome. Happy T-day!
Posted by: Adam Kolber | Nov 26, 2015 11:57:36 AM
Weak sauce, Adam. Weak. Do you often recycle observations others made months and months ago?
Posted by: Blowspon | Nov 25, 2015 10:36:12 PM
When I spoke of taming his comedic sensibilities, I wasn’t focused on that particular aspect of it. You may be right, though, that if he were more liberated, the show would seem more politically polarized. But even with respect to non-partisan material, the show (to the extent that I’ve watched it) still feels bottled up relative to The Colbert Report and the kinds of things he’s done on social media.
Posted by: Adam Kolber | Nov 25, 2015 9:21:52 AM
If Colbert had not been forced to “tame his comedic sensibilities,” and had been permitted to take unhindered shots at conservatives, his ratings would probably be even lower than the third place in which he is currently mired.
Posted by: Douglas Levene | Nov 25, 2015 7:37:59 AM
I just kinda miss Jay Leno.
Posted by: Margaret Ryznar | Nov 25, 2015 4:42:03 AM
A couple of weeks ago, I wrote about the ABA Law Student Division’s National Appellate Advocacy Competition, which featured an appellate court unanimously reversing a district judge in a hate-crimes prosecution by saying “We fear that [the district judge] allowed his personal feelings as a black man to color his view of the evidence.”
The LSD has released a revised record, with that line removed. Good for them for coming to their senses (presumably following some loud complaints), although without explanation, apology, or acknowledgement of the change or the original mistake. And I remain appalled that the drafters would have included such a line in the first place. It will be interesting to see if there is longer-term fallout from this.
Posted by Howard Wasserman on November 24, 2015 at 03:11 PM
Maybe they were on LSD.
Posted by: James Grimmelmann | Nov 24, 2015 5:22:55 PM
A cert petition was filed last week in a very interesting case. A few states recognize—whether by statute or case law—second parent adoption, which allows a second parent of the same gender as the biological parent to adopt a child without terminating that parent’s parental rights. As you can imagine, this is very useful for same-sex parents who want to be both recognized as the parents.
In the case, Georgia had allowed a second parent adoption by a same-sex partner, even though Georgia’s second parent statute at the time required a marriage between the prospective adoptive parent and the biological parent (this was pre-Obergefell, so the parties did not have the choice to marry). Otherwise, the biological parent would have to terminate parental rights for an adoption to proceed.
Now, after breaking up, the women are fighting over visitation in the state of Alabama, and the Alabama Supreme Court is refusing to recognize the second parent adoption that happened in Georgia, on the grounds that Georgia misapplied its own adoption statute by allowing a second parent adoption to proceed despite the lack of a marriage.
The constitutional problem, of course, is that the Full Faith and Credit Clause requires state courts to recognize each other’s judgments. There is, however, a narrow exception to the Full Faith and Credit Clause: a court need not grant Full Faith and Credit to a judgment issued by a sister state court that lacked jurisdiction. This is where the Alabama Supreme Court hangs its hat: by granting a second parent adoption when there was no marriage, the Georgia court lacked subject matter jurisdiction.
Of course, there are other arguments besides Full Faith and Credit—for example, the need for finality of adoption decisions and the child’s best interests to have a parent legally recognized if the parent raised the child (especially for visitation purposes).
It’ll be interesting to see whether the U.S. Supreme Court will want to hear this case, and if so, whether it will serve as a proxy for the same-sex adoption issue.
Posted by Margaret Ryznar on November 24, 2015 at 11:40 AM
Ah, got it. Will have to look up those old Prawfsblawg posts too. Thanks.
Posted by: Margaret Ryznar | Nov 30, 2015 5:02:09 PM
Yes, the lower court opinion has added context if one knows about the membership of the Alabama Supreme Court & their past actions in this context including an opinion reaching out to hold same sex marriage is not protected as in was pending in front of the U.S. Supreme Court was examining the question earlier this year. This blog had some analysis as events were ongoing.
The court chose a technical approach while a concurring opinion went the more “hot button” route.
Posted by: Joe | Nov 30, 2015 9:35:40 AM
Roy “Obergefell is Worse than Dred Scott [1]” Moore once wrote a letter to the governor, asking him to continue recognizing Alabama’s SSM ban after a Federal Judge had ruled it unconstitutional: http://www.al.com/news/index.ssf/2015/01/alabama_chief_justice_roy_moor_1.html
He also claimed (claims?) that SCOTUS rulings are purely advisory until the period for rehearing has passed: http://www.al.com/news/index.ssf/2015/01/alabama_chief_justice_roy_moor_1.html
[1]:http://edition.cnn.com/2015/06/26/politics/roy-moore-conservatives-gay-marriage-alabama-react/
Posted by: Pranav | Nov 30, 2015 7:23:02 AM
I’m not familiar with that bench at all, but you’re right that it’s surprising that everyone signed on.
Posted by: Margaret Ryznar | Nov 30, 2015 3:17:30 AM
I fully expected the opinion to have been written by More. Surprisingly, it was per curiam.
Posted by: Pranav | Nov 25, 2015 6:13:54 AM
Luckily for us, we don’t need to figure out in this case what it means for a state court of general jurisdiction to lack subject matter jurisdiction, because the Georgia statute actually gives the superior court exclusive jurisdiction in all matters of adoption.
Posted by: Margaret Ryznar | Nov 25, 2015 4:40:04 AM
Yes, the two really got conflated here.
Posted by: Margaret Ryznar | Nov 24, 2015 4:06:45 PM
In the case of a state court of general jurisdiction what does it mean to lack subject matter jurisdiction? Is the inquiry the same as asking whether it was a judicial act in the judicial immunity context?
Posted by: Brad | Nov 24, 2015 4:05:40 PM
The problem with SCoAl’s decision–clearly not limited only to federal courts–is that the absence of a marriage means the decision granting the adoption is wrong on the merits, not that the issuing court lacked S/M/J.
Posted by: Howard Wasserman | Nov 24, 2015 1:23:56 PM
