TIME has the story.

I have always wanted to visit Cuba. I’ve thought for a long time now that our embargo and travel ban were counter-productive.

But our Cuba policy has always been held hostage by the anti-Castro refugees in Florida’s community of Cuban exiles. Understandably, since in Florida they are a powerful voting block that every presidential contender tries to court – Florida being worth so many electoral votes. They’ve made the argument that any loosening of our restrictions would just aid a dictator who jails his detractors. But hasn’t that angle been tried for decades now?

An ailing Castro is handing over power to his brother Raul, who is apparently a strong proponent of the status quo. Time for a new approach. I think the Cuban-American community is coming around to that view. Let’s kill ‘em (the communist regime) with kindness and capitalism.

Cuba is just 70 miles from Florida. It could be – should be – the jewel of the Caribbean, flush with American tourism and economic ties. Democracy, and a Major League Baseball team in Havana can’t be far behind. It will happen in time. First steps are what is needed now, and the Freedom to Travel to Cuba Act is a first step. I hope it passes.

B

The MERS edifice is apparently beginning to unravel. At least five court decisions, including opinions by the Kansas and Arkansas Supreme Courts, a Federal Bankruptcy Court in Nevada, a California trial court, and an Indiana Appellate Court, have found against MERS claims related to collection of loans following foreclosure sales, often leaving a second mortgage holder out tens of thousands of dollars. The problem is the presence of the MERS name on mortgage documents as a nominee or representative of the mortgagee, and the legal failure of MERS itself to retain any interest in the proceedings in its function as a mere database. Also the fact that transfer of ownership of the mortgage or DoT was not legally recorded as most states’ laws require.

If you are involved in realm of foreclosure, lending, etc, in any capacity, please be aware of this growing meltdown. More information can be found at the following links:

Information on NYT article and Indiana Appellate case: http://indianalawblog.com/archives/2009/09/courts_in_kansa.html 

Supreme Court of Kansas decision: http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090828/98489.htm

Discussion of Kansas decision: http://foreclosurebuzz.org/2009/09/15/kansas-supreme-court-mers-is-a-straw-man-with-no-enforceable-rights/

Detailed discussion of MERS legal problems: http://iamfacingforeclosure.com/blog/2009/09/24/the-trouble-with-mers/

Supreme Court of Arkansas decision: http://courts.arkansas.gov/court_opinions/sc/2009a/20090319/published/08-1299.pdf

Notes on the MERS legal situation: http://solari.com/blog/wp-content/uploads/2009/09/rp_kraft.pdf

Excellent discussion of the issues and developments: http://rismedia.com/2009-09-28/op-ed-60-million-mortgages-may-have-fatal-flaws/

More good discussion: http://seekingalpha.com/article/162768-has-a-mershole-opened-up

Thanks to Sam for aggregating this information.

B

Those five … are Samuel Alito, Clarence Thomas (who did not speak during the proceedings), Anthony Kennedy, Roberts and Scalia. That leaves a 5-4 vote, with Ginsburg, Sotomayor, Stephen Breyer and John Paul Stevens largely in support of current campaign finance laws. Kennedy dissented in Austin and could turn that dissent into the majority view now… . Kennedy left little question about his view on the matter during today’s oral arguments.

When the Supreme Court asked to re-hear oral arguments in this case, the justices specifically posed the question whether they should overturn one previous campaign finance case, Austin v. Michigan Chamber of Commerce (1990), and the parts of another, McConnell v. Federal Election Commission (2003), that uphold the regulation of corporate spending in elections.

In Austin, the Court found that electioneering communications rules were in the government’s interest to prevent “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.”

The Hill reports on the McCain-Feingold press conference outside the Supreme Court following the reargument:

After the arguments, McCain and Feingold both blasted justices for being dangerously out of touch.

“The questioning shows a real disconnect, a strong disconnect between the justices and political reality,” McCain said at the press conference.

“I wish that one of the justices who were standing up for people’s First Amendment rights had ever run for county sheriff,” he added. The justices showed an “extreme naïveté of the influence of corporate money and soft money.”

The Supreme Court upheld the McCain-Feingold law several times while former Justice Sandra Day O’Connor served on the court. O’Connor was the Senate majority leader in the Arizona state Senate; the court now has no member who has held elected office.

O’Connor’s departure and the arrival of Alito has shifted the balance of the court against McCain-Feingold, according to people on both sides of the debate.

Feingold warned that, should the court roll back sections of McCain-Feingold by overturning Austin and McConnell, it would leave Congress with “no ability” to reform the campaign finance system.

For me, this is very troubling. The Court may find a way to rule narrowly in this case, without drastically altering the law. But if not, my next post on this topic will be titled Notes from the Corpocracy. The Court’s opinion should appear later this year.

B

I watched an excellent debate on these issues on Bill Moyers’ Journal the other night. The transcript is here, or you can watch it. Trevor Potter, an attorney who has filed a friend-of-the-court brief defending the McCain-Feingold legislation observed that oil giant Exxon Mobil, through its political action committee (which accumulates funds through voluntary contributions of shareholders, employees and management) spent about 900 thousand dollars in the last election cycle under the restrictions imposed by current laws. But the company made 85 billion dollars net profit last year. If even a fraction of that money could be tapped for political campaigns, the megaphone given to such entities would be huge beyond compare.

What if a candidate was going to take positions Exxon Mobil didn’t like, perhaps strongly advocating alternative energy over oil, emphasizing measures against global warming, or increased taxation on oil companies? Exxon could threaten to drown such a candidate in a deluge of attack ads and unlimited funding for their opponent. Candidates not willing to toe the corporate line could be deterred from running.

Potter argues that by law, vast economic power has been given to corporations – power not available to individuals – but it was never intended for corporations to engage in unregulated, unlimited political speech. A corporation’s sole purpose is to maximize profit. It cannot vote, it is not among the constituents represented by elected officials. The First Amendment protects the free speech of PEOPLE, not of these creatures of statute we call corporations.

Noted First Amendment lawyer Floyd Abrams responded with a broad defense of free speech:

And why are we limiting free speech? If the movie had been funded in a different way, if the funds had come from different sources … then it would be protected. But because the funding came from a corporation. Because of that, we can make it a crime to put the movie out. That I think is an unacceptable articulation of not only what the First Amendment has meant. But what it ought to mean, as well. We should not make technical distinctions about the degree of First Amendment free speech rights, depending on the nature of the entity that engages in the speech.

If a company wants to speak out beyond an issue. If they want to condemn a Senator who is opposing legislation that has an impact on the company’s interest, economic or otherwise to me it’s just anathema to the notion of free speech to say, “Well, you have to understand it’s a company. Their funding is different.” That’s not the way we ought to go about deciding the limits of free speech.

Check the transcript for the entirety of the discussion. I’ll try to link a report on the oral arguments taking place today. I agree with Potter’s argument that corporations aren’t people, and their “speech” should be regulated. They have a huge advantage over individuals in amassing funds – we have given them those preferences in a careful balancing of our societal interests, of which economic prosperity is one part. To suddenly allow corporations to also dominate the political money scene - when their interest is not societal betterment but solely profit maximization – would have a negative long term impact on the people of our nation. 

B

 
(Image source: wikimedia commons)

Can a Muslim woman wear a burka/niqab while testifying in court? Michigan small-claims court judge Paul Paruk said no, ordering Ginnah Muhammed to remove her religious head covering so that he could observe her temperament and demeanor during her testimony.

Muhammad refused, saying that she was a practicing Muslim and would take off the veil only in front of a female judge.

Paruk said a female judge was not available and told Muhammad she could remove the niqab or have her case dismissed — she chose the latter, according to court documents.

She sued the judge in federal district court, which declined to exercise jurisdiction over the case. Muhammad has since appealed to the 6th Circuit Court of Appeals.

Yesterday, the Michigan Supreme Court issued an order instituting a rule change allowing courts to exercise reasonable control over the appearance of parties and witnesses for the purpose of observing demeanor and assuring proper identification. 

I think this will play out thusly:

Even under the most strict scrutiny applied by the United States Supreme Court to Constitutional issues, Muhammed’s argument – that the Michigan rule violates her First Amendment right to be free from laws prohibiting the free exercise of her religion – will fail. 

She may believe that the rule IS interfering with her religious beliefs, but the rule isn’t targeted at her or her religion. It’s aimed at head coverings in a courtroom setting, and for very practical (and essential) purposes. The government has a fundamental and compelling interest in the equitable administration of justice, and this incidental infringement will be allowed.

There is no less restrictive means. The request for a female judge fails on at least two grounds. First, it would institutionalize gender discrimination in these cases, there being no rational basis for distinguishing between a male or female judge in this situation. Second, it’s an affront to the principle of judicial economy. Already-crowded court dockets would be further confused by attempting to rearrange assignments for the purpose of obtaining a female judge. What if there were no female judges available in the jurisdiction? Absurdity results.

In America, you’ve never had to check your religion at the courthouse door. Oaths are taken on the religious text of your choice, or simply sworn to. But if your religion interferes with the long established procedures and practices essential to the fair and equal administration of justice, you are materially and adversely affecting other Americans, and thereby crossing the Constitutional line.

B

Two views worth reading:

NYPD Police Captain Brandon del Pozo

Response by progressive blogger Digby

Where on the spectrum do you fall?

B

When the appeal of the $50 million verdict came before newly-minted Justice Benjamin, he refused to recuse himself – despite Caperton’s stringent objections that he was biased, or appeared to be, due to Blankenship’s huge contribution to his election. Benjamin said he had no direct pecuniary (monetary) interest in the outcome of the case, and there had been no objective information offered to show he had a bias or had prejudged the outcome. Ultimately, in the court’s 3-2 decision for reversal of the damage award, Benjamin voted to reverse.

Caperton appealed this reversal (and Benjamin’s failure to recuse himself) to the U.S. Supreme Court on the Constitutional question of whether Benjamin’s refusal to step aside violated Caperton’s Fourteenth Amendment right to Due Process (procedural fairness). And how could it not? The outcome reeks of unfairness, does it not? It appears unfair, or that there is a risk of unfairness afoot since we cannot know, finally and with certainty, whether or not Justice Benjamin was influenced – we’re forced to take his word for it.

A bare majority of the Supreme Court agreed, reversing the decision of the West Virginia court. In an opinion by pivotal swing-voter Justice Kennedy, five Supremes (Kennedy plus the liberal wing: Stevens, Souter, Ginsburg and Breyer) agreed that Benjamin had used an improper standard when considering whether to recuse himself. Kennedy states the correct standard in approximately three similar iterations (bold added by me):

(1) whether, under the totality of the circumstances, “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”

(2) “not whether the judge is actually biased, but whether … there is an unconstitutional potential for bias.”

Most elaborately, Kennedy states (3a) the Court’s extant rule for treatment of Due Process issues, and then (3b) applies it to the case at hand, resulting in yet a third enunciation of the relevant test:

(3a) “[T]he Due Process Clause has been implemented by objective standards that do not require proof of actual bias. In defining these standards the Court has asked whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”” (citations omitted)

(3b) “Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances “would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.” In an election decided by fewer than 50,000 votes, Blankenship’s campaign contributions—in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election— had a significant and disproportionate influence on the electoral outcome. And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be forbidden if the guarantee of due process is to be adequately implemented.”” (citations omitted)

The inquiry focuses on the appearance, the probability, the potential for bias under the circumstances – not on the presence or absence of actual bias (which only a mind-reader could know, if indeed the biased judge was aware of his or her own bias – for biases can be subtle and difficult to detect and acknowledge even within ourselves). Justice Kennedy observes that Caperton is an extreme case, and falls beyond the Constitution’s pale, even if it’s impossible to draw a bright line rule under which to precisely (objectively?) analyze future cases: “This Court’s recusal cases are illustrative. In each case the Court dealt with extreme facts that created an unconstitutional probability of bias that ‘cannot be defined with precision.’”

What gives me pause is Kennedy’s insistence on applying the lable “objective” to his construction: “objective standard,” “objective inquiry,” as I highlighted above. Yes, items of evidence are examined: the election was close, the campaign contribution was disproportionate, etc. – and no, there is no “subjective” attempt to determine if Justice Benjamin was actually biased. But in Kennedy’s (3b) test (above), doesn’t the objective/subjective distinction blur almost beyond recognition? In determining whether “all the circumstances would offer a possible temptation to the average judge,” don’t we have to know, or presume to know, quite a lot about the inner workings of the mind of an “average judge”? Even defining an “average judge” implies the accurate construction of a composite, median mindset.

Justice Roberts’ dissent (joined by conservatives Scalia, Thomas and Alito) elaborates on a related concern:

The majority’s analysis is “objective” in that it does not inquire into Justice Benjamin’s motives or decisionmaking process. But the standard the majority articulates—“probability of bias”—fails to provide clear, workable guidance for future cases.

Roberts proceeds to pose forty questions, attempting to make the case that the devil is in the details and the majority’s opinion gives no guidance on dealing with a variety of details that could occur in future cases. Roberts concludes:

The Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.

Though I believe at least some subjective analysis is required to complete Kennedy’s inquiry, and I acknowledge it does not produce a bright-line rule, I could not disagree more with Roberts’ dissent. The Supreme Court was the last chance for justice to be done in this case. For justice to be done, Justice Benjamin could NOT be allowed to decide the case in favor of the company which had massively funded his election campaign (knowing that Benjamin would judge the case). For the Supreme Court to allow Benjamin’s participation would send a message to the public that justice can be bought – because that is the appearance, regardless of the reality (which we cannot know). If, in the absence of a bright-line rule, future cases must be decided on a case-by-case basis, so be it. Allowing Benjamin’s judgment to stand would have undermined public faith in judicial fairness.

Incidentally, Roberts’ forty questions (see the opion, linked above) invite perusal and, of course, answers. I started to go through them myself, and answers seemed obvious enough to me – so much so that I began to see the questions as an expression of petulance rather than an exercise in intellectual honesty. At least one Arizona lawyer, Keith Swisher, agrees. Swisher answered every question, concluding that only two or three of the forty qualified as legitimate. I tend to agree.

So was your faith in our judicial system preserved or eroded by Caperton v. Massey? If you enjoyed this article or have thoughts, feel free to leave a comment.

B

]]> http://blog.uslegal.com/2009/06/caperton-v-massey-preserving-faith-in-fairness/feed/ 0 http://blog.uslegal.com/2009/06/build-uslegal-host-and-manage-your-legal-content-with-us/ http://blog.uslegal.com/2009/06/build-uslegal-host-and-manage-your-legal-content-with-us/#comments Thu, 25 Jun 2009 20:57:47 +0000 kyle http://blog.uslegal.com/2009/06/25/build-uslegal-host-and-manage-your-legal-content-with-us/ Do YOU want to grow your on-line income, or create income where none exists? USLegal receives millions of page views monthly. If you maintain a legal content website, you can join the USLegal network to vastly increase your traffic and make commissions from ads and (where applicable) our products placed on your pages.

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Join USLegal and help us continue to make USLegal the premier destination for legal information, products and services – and make money! To contact us about Build USLegal, and for more information on the program, click here.

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]]> http://blog.uslegal.com/2009/06/build-uslegal-host-and-manage-your-legal-content-with-us/feed/ 0 http://blog.uslegal.com/2009/06/toward-a-better-administration-of-justice/ http://blog.uslegal.com/2009/06/toward-a-better-administration-of-justice/#comments Tue, 09 Jun 2009 18:50:27 +0000 Bryan Lieb http://blog.uslegal.com/2009/06/09/toward-a-better-administration-of-justice/ At Slate.com, Daliah Lithwick writes about America’s prison problem and Senator Jim Webb’s (D-VA) upcoming effort to address it.

A couple of quotes from Lithwick’s column:

The United States, with 5 percent of the world’s population, houses nearly 25 percent of the world’s prisoners. As Webb has explained it, “Either we’re the most evil people on earth, or we’re doing something wrong.”

…

Webb also reminds us that while drug use varies little by ethnic group in the United States, African-Americans—estimated at 14 percent of regular drug users—make up 56 percent of those in state prison for drug crimes.

Good column, worth reading. Key an eye on Webb’s initiative.

B

]]> http://blog.uslegal.com/2009/06/toward-a-better-administration-of-justice/feed/ 0 http://blog.uslegal.com/2009/05/understanding-the-california-supreme-courts-prop-8-ruling/ http://blog.uslegal.com/2009/05/understanding-the-california-supreme-courts-prop-8-ruling/#comments Fri, 29 May 2009 20:46:16 +0000 Bryan Lieb http://blog.uslegal.com/2009/05/29/understanding-the-california-supreme-courts-prop-8-ruling/ On May 26, the California Supreme Court issued it’s “Proposition 8″ (Prop 8) consolidated ruling on cases contesting the constitutionality under the California Constitution of the Prop 8 California ballot referendum. This referendum purported to ban same-sex marriage in California and had passed by a 52% to 48% vote on election day in November, 2008. Prop 8 had been a reaction to the California Supreme Court’s deeming same-sex marriage a fundamental constitutional right in an earlier 2008 decision (In re Marriage Cases).

Following passage of the referendum, opponents of Prop 8 immediately sued, arguing that a fundamental constitutional right (in reliance upon which 18,000 same-sex couples had already been married) could not be revoked by a majority vote. To allow such would put in jeopardy any minority right protected by the California Constitution.

In Tuesday’s ruling, the Court allowed Prop 8 to stand, but only by limiting its effect to mere symbolism. The important issue was whether Prop 8 embodied a constitutional revision (a substantial change – not allowed outside of a constitutional convention) or a constitutional amendment (a minor change properly the subject of a referendum).

The Court held that Prop 8 was a proper amendment, but (because) it did not alter any substantive rights of same-sex couples (to equal treatment and protection under the law). Prop 8’s only accomplishment was “reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state and constitutional law.“  

So it’s semantics. Despite Prop 8, same-sex couples can obtain all the rights and privileges under the law as opposite-sex couples, but the certificate issued by California to commemorate their union will say “Domestic Partnership” or “Civil Union” at the top, rather than “Marriage.” Nothing else – at all – is changed. And the 18,000 couples married prior to this decision? They keep the designation of “Marriage.”

If it walks, talks and looks like a duck … it’s a duck. Distinctions without a difference don’t tend to last, and (considering demographic trends) this distinction probably won’t survive future referenda aimed at eliminating it.

B

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