I thought teach-ins were only held by ultra-lefty nutbars who couldn’t get real teaching jobs. Apparently I was at least partially wrong:

I attended a teach-in about the current state of judicial nominations today [Jack Balkin on the Constitution in Exile: “I don’t believe it for a second.”] and came away with, inter alia, a map of the geographic boundaries of not only the Circuit courts but also the District courts (sort of like this only easier to read and less garish). It’s something of a surprise to me. New Jersey, the ninth most populous state, is a single federal district. Oklahoma, the twenty-seventh, has three. West Virginia, the thirty-seventh, has two. To be sure population and federal caseload are but rough correlates (witness, e.g., the District of Columbia) but still. Three districts in Oklahoma? Three in Alabama?

Is the mismatch because some local features turn up a surprising amount of federal case law, or because districts are created as prizes for local senators, who presumably get to fill the spots with their chosen folks? Presumably both.

How about a third theory: geography. Try dragging your court around a state the size of Alabama versus one the size of New Jersey. Pork may be a factor (though I’m somewhat skeptical—there are not a lot of patronage jobs in the courts), but I think the more compelling explanation is that Oklahoma and Alabama are a heck of a lot bigger than New Jersey.

Monday’s Telegraph carries a report that the Saddam loyalists in the Iraqi insurgency may be willing to give up their fight in exchange for Saddam not getting the death penalty. (þ: memorandum)

Meanwhile, the real Olympic bomber, Eric Rudolph (not to be confused with Richard Jewell), avoided the death penalty for his mid-90s bombing spree in Alabama and Georgia this week by revealing information, including the location of weapons caches, to federal authorities.

Of course, if monsters like Saddam and Rudolph aren’t going to get the death penalty (even if they deserve it—an argument that could easily be made for both men), I’m not at all convinced that anyone else should get it—even putting my philosophical problem with the death penalty aside.

The lead editorial in today’s Clarion-Ledger calls on Mississippi to adopt a non-partisan redistricting panel to set congressional and state legislative districts, noting the mess resulting from the last redistricting round in 2001. As noted before, a initiative to place a constitutional amendment on the ballot would be a long-shot, but perhaps the prospect of another fight over congressional districts will get the legislature to consider adopting a non-partisan districting proposal.

The Clarion-Ledger also carries an article today looking at the wrangling over judicial redistricting and the defeat of Ed Blackmon’s “single-shot” districting bill.

Stephen Bainbridge has dug up a law review article that includes evidence that Robert Byrd, in fact, endorsed the Senate’s ability to amend the Senate rules to limit the filibuster by a simple majority vote in 1979; it’s not exactly the equivalent of the “nuclear option,” which would be a (possibly suspect) ruling from the chair, but it’s pretty damning evidence nonetheless (þ: Steven Taylor; more here).

Meanwhile, everyone’s favorite syphilocon/national securty threat Robert Novak is reduced to complaining about the order in which Arlen Specter plans to send judicial nominees to the Senate floor, which is doubly amusing since at the end of the article he concedes it won’t matter anyway (þ: memeorandum).

I haven’t had anything to say about the CNet interview with FEC commissioner Brad Smith, so I’m a bit late to the party, but apparently the controversy has a former McCain aide and FEC commissioner trying to respin the story. (þ: InstaPundit).

Sebastian Holdsclaw has extracted a rather interesting comment from a long thread at Left2Right about judicial interpretation of the Constitution. However, I don’t know if it will get me to abandon my long-held opinion (only reinforced by attempting to teach two entire constitutional law textbooks) that every judicial mode of reasoning is just an excuse for attitudinalism run rampant.

Unlike my co-blogger, I tend to think that the Supreme Court’s decision in Roper v. Simmons was the morally correct one—in general, I am suspicious of the death penalty not for legal or practical reasons, but philosophical ones; namely, that the state should not have the power to kill its own citizens, whether or not they are of some arbitrary age. Having said that, like Will Baude, Steven Taylor, and James Joyner I am deeply skeptical of any form of legal reasoning that relies on state legislatures to decide the constitutionality of various actions. I may have more coherent thoughts once I’ve actually sat down with the opinion… which comes at a fortuitous time, as we will cover the 8th amendment on March 16th in my con law class.

In other judicial news, I tend to think the Padilla case was correctly decided (both on the legal merits and the moral ones), following most generally from Hamdi (particularly Scalia’s partial dissent, which I think articulated the correct standard) and Ex parte Milligan.

Will Baude explains the problem with the Court’s pseudo-jurisprudence on race and the Bill of Rights more generally:

Yesterday, the Supreme Court decided that separating prisoners on the basis of race, even for 60 days, ought to be subject to strict scrutiny (although it is as yet unclear whether they mean Adarand-strict or Grutter-strict). [emphasis mine]

This isn’t particularly surprising, since the Court rarely (never?) says racial classifications are subject to anything other than strict scrutiny—whatever the heck that means.

More in line with my pet peeves, readers are invited to comment on whether or not any standard of review other than “rational basis” (i.e. “we’re not going to do anything about it so long as the legislature or executive goes through the motions of justifying its action”)—heightened scrutiny, strict scrutiny, imminent lawless action, Lemon, whatever—is functionally equivalent to “we’ll strike it down if five of us are in the mood on that particular day.” For added Bonus Cool Points, pick any five cases where the court applied “strict scrutiny,” apply “heightened scrutiny,” and tell me if you get a different outcome in any of the cases.

Just what we all need, a visit from the Klan:

PHILADELPHIA — When Edgar Ray Killen’s murder trial starts April 18 for the 1964 killings of three civil rights workers, the Ku Klux Klan is expected to be there.

J.J. Harper of Cordele, Ga., imperial wizard of the American White Knights of the Ku Klux Klan, is requesting permission to demonstrate on the lawn of the Neshoba County Courthouse in support of Killen, an 80-year-old sawmill owner and part-time preacher who pleaded innocent to murder last month in the June 21, 1964, Klan killings of James Chaney, Michael Schwerner and Andrew Goodman.

The Web site of the American White Knights shows a hanging post with three nooses holding the severed hands of African Americans. The post reads “Murder in Mississippi,” but the word “Murder” is crossed out in red with the word “Justice” written over it.

Harper said his organization is both Christian and nonviolent, but he says on his Web site: “Brother Killen is being charged with murdering a n——- and two Jews back in 1964. Personally, I’d ask, ‘What’s wrong with that?’ ”

With tactics like this, one has to wonder whether the Klan is trying to get Killen convicted. Not that he probably needs much help in that department, mind you.

Both Jeff Goldstein and James Joyner aren’t particularly upset that the Supreme Court passed up an opportunity to overturn Alabama’s law prohibiting the sale of sex toys. Mississippi is one of two other states having such laws; apparently the early eighties saw a binge of women getting off with dildos, so the legislature (presumably not wanting competition in the “being dildos” department) decided to intervene.

The Mississippi Supreme Court today decided to require 115 asbestos-suit plaintiffs to actually show they were injured by asbestos before they could join a class action against asbestos manufacturers. And, just last week, the last two of twelve plaintiffs in a 1999 fen-phen class action pled guilty to federal fraud charges.

Todd Zywicki suggests that increased advertising for legal services has increased bankruptcy filings. I tend to think that to indicate causation, Zywicki ought to at least demonstrate whether the trend in bankruptcy filings was flat before the Supreme Court found lawyers’ commercial speech constitutionally protected in Bates v. State Bar of Arizona. Unfortunately (for him, at least), Zywicki’s graph starts in 1979, two years after the 1977 ruling in Bates.

Even if he could show that, considering that this time period also corresponds with the emergence of the consumer credit card industry it would be difficult to disentangle the two effects. Slithery D is also unimpressed.

This is my entry in today’s OTB Traffic Jam.

Marc Cooper is rightly outraged that the Bush administration is attempting to stop former American POWs during the 1991 Gulf War from collecting damages for being tortured by Saddam Hussein’s regime.

While I’m somewhat sympathetic to the administration’s argument that the new Iraqi regime needs the money to help it get on its feet, and I recognize that the law that the POWs sued under (the Anti-Terrorism Act of 1996) is designed mainly to deplete the assets of anti-American regimes like Cuba and Iran rather than for the purpose of securing any meaningful “justice,” I have to say this is an incredibly boneheaded decision, one that Congress would do well to force reconsideration of.

Nice to see the appellate courts still wasting time on claims of reporters’ privilege; it’s only been 33 years since Branzburg v. Hayes after all. And, if we’re really lucky, this means the stupid Valerie Plame business will be settled once and for all… of course, I’ve said that before. (þ: OTB)

Eugene Volokh has a lengthy post questioning the wisdom of an Oklahoma state legislator’s proposal to define any sexual activity between a student under 21 and a university employee as “rape”.

I tend to agree with Eugene’s position—the position, incidentally, staked out in the most recent addendum to the Millsaps faculty handbook (I think; I’ll look it up when I’m at work tomorrow)—that relationships betwen faculty members and students they are currently instructing are inappropriate, for a variety of reasons that he details in his post. I generally also think that faculty members are just asking for trouble if they get involved with undergraduates—whether or not they are responsible for assessing their work—but I can’t see any good reason to make consensual sexual conduct illegal as long as both parties are over 18.

Arnold Schwarzenegger’s plan to end redistricting as we know it in California may be hitting a snag; James Joyner notes that opposition has emerged among California’s Republican members of Congress who were gerrymandered into safe seats in the 2000 election and might have problems winning competitive elections due to the national GOP‘s position far to the right of the median California voter.

More details in today’s Los Angeles Times; meanwhile, Robert Tagorda looks at the redistricting politics on both sides of the aisle, while Kevin Drum denies he’s a hack but senses an opportune time to switch sides and support the Schwarzenegger plan nonetheless. At least Greg Wythe has been on the bandwagon all along ☺.

Incidentally, is anyone up for collecting nearly 110,000 signatures (12% of the number of votes cast in the 2003 gubernatorial race) in twelve months to qualify an initiative to do the same thing in Mississippi?

Today’s New York Times has a somewhat lengthy piece on efforts in various states to reform their redistricting processes. As far as I know, aside from various efforts to create majority-minority Supreme Court districts, there are no serious efforts to fix redistricting in Mississippi—an oversight that surely ought to be corrected.

And, Sacramento Bee columnist Dan Walters says plans for a redistricting initiative in California may potentially be hijacked by partisan interests, although Walters doesn’t do a very good job of explaining how—he just alleges that requiring the redistricting commission to create competitive districts might somehow favor Republicans. (þ: Rick Hasen).

Update: More on this theme from John Fund at OpinionJournal.com.

Orin Kerr discusses law school grading practices, including the notorious (and universal) use of strict curves, without as much overthinking as I engaged in earlier this week.

The which intentional tort are you test is making the rounds today; like TigerHawk and Will, I too am “trespass to chattels.” Perhaps more importantly, I am also glad to have never attended law school.

Amber Taylor and Glenn Reynolds are among those noting that Virginia’s Supreme Court has struck down that state’s anti-fornication statute on the basis of the U.S. Supreme Court’s 2003 decision, Lawrence v. Texas. But the morals police will be delighted to know that Mississippi’s 1848 statute banning such behavior remains in force.

Both James Joyner and Glenn Reynolds recommend this post at Belgravia Dispatch regarding the whole Gonzales-Gitmo-Abu Gharib flap. My general point of view (similar to that expressed here a couple of weeks ago by Robert) is when you’ve resorted to semantics—“stress positions” versus “torture” and the like—you’ve already lost the battle in the court of public opinion, even if legally you might be in the right.*

On Gonzales in general, I have to say that I never thought I’d favorably compare John Ashcroft to anyone else (although it could be argued he was at least an upgrade from Janet Reno), but at this point I’d rather have the Prude over the Enabler any day.

Radley Balko points to a Telegraph article that indicates that the Bush administration is settling in for a long haul with the Gitmo detainees:

The Bush administration is drawing up a long-term plan for al-Qa’eda suspects at Guantanamo Bay, including building a prison where they could be held for the rest of their lives without ever appearing in a court of law.

Defence officials told the Washington Post that the Pentagon was preparing to ask Congress for $25 million for a 200-bed prison, known as Camp 6, to hold suspects it does not have enough evidence to convict.

Another proposal being discussed is transferring many Afghan, Yemeni and Saudi detainees – the majority of the 500 suspects at Guantanamo Bay – to new US-built prisons in their own countries.

Local officials would run the prisons but the US would monitor them for compliance with human rights standards.

The good news is that many in Congress aren’t exactly convinced this is a good idea:

Sen Richard Lugar, the Republican chairman of the Senate foreign relations committee, said: “It is a bad idea. We must have a very careful, constitutional look at this.”

Sen Carl Levin, the senior Democrat on the armed services committee, said: “There must be some semblance of due process if you are going to detain people.”

If the administration is planning to come up with a constitutional and credible solution to the problem, it’s certainly not on display in this plan.

The next time a student complains about a con law exam, I think I’ll assign them this question. Then again, I did give them this one on my second exam (open book, take-home, and optional):

In United States v. Lopez, while the Supreme Court did not overturn Wickard v. Filburn outright, the Court clearly staked out some limitations to Congress’s use of its power to regulate interstate commerce. With that precedent in mind, consider the upcoming Supreme Court case Ashcroft v. Raich, in which the 9th Circuit Court of Appeals argued that federal regulation of the noncommercial cultivation and distribution of marijuana exceeded Congress’s commerce clause powers. You should consider the following questions: Does Raich meet the standard for interstate commerce outlined in the Lopez test? How does Raich differ from Wickard—or, aside from the crops at issue, does it not differ at all?

I also gave this one on my first exam:

In 2007, the Supreme Court will hear the case Lewis v. Boulder County School District, in which perennial Pledge of Allegiance challenger Michael Newdow represents Sally Lewis, a 16-year-old atheist and high school student in Boulder who objects to the use of the phrase “under God” in the Pledge of Allegiance, added to the pledge by Congress in 1954 (codified at 4 USC 4). Lewis advances essentially the same argument on the merits advanced by Newdow in Newdow v. Elk Grove Unified School District (2004); however, Lewis’ parents, English professors at the University of Colorado at Boulder, fully support her challenge to the law and have permitted Newdow to represent her in her case against the school district.

In the meantime, Congress has passed the Pledge Protection Act of 2005, which was signed into law by President Lieberman.* The Pledge Protection Act provides that no court created by Congress shall have original jurisdiction in any challenge to the Pledge of Allegiance, nor shall the Supreme Court have appellate jurisdiction.

How should the Supreme Court decide the case at hand? Consider the issues of jurisdiction and standing, as well as the decision on “the merits.” In particular:

• Does Lewis have standing to sue?
• Is the Pledge Protection Act of 2005 constitutional?
• Is the inclusion of “under God” in the pledge an unconstitutional establishment of religion?

Consider the court’s precedents on standing and jurisdiction, as well as the political circumstances that gave rise to the Court’s decision in Ex parte McCardle. Your response will be fortified by reference to the legal and attitudinal approaches to judicial interpretation outlined in Chapter 1 of the [Epstein and Walker].

Ok, maybe I am an evil con law prof after all.

Steven Taylor attempts to remind Kevin Drum that a belief in natural rights, such as that of Clarence Thomas, is hardly a right-wing radical (or reactionary?) notion; indeed, it was a bedrock principle that this nation was founded on, explicitly discussed in the Declaration of Independence and inherent in the Constitution—the “Blessings of Liberty” referred to in the preamble didn’t just emerge from thin air.

Update: Note that there is nothing inherently Christian in the Jeffersonian natural rights doctrine; as Jon Rowe points out, Jefferson and most of the key thinkers behind the Founding and the Constitution were not really Christians.

A recent amendment to the Fair Credit Reporting Act requires that all three major credit bureaus (Equifax, Experian, and TransUnion) provide you with a free copy of your credit report, upon your request, once per year.

To prevent them from being overwhelmed with requests, the free reports are being phased in over a nine month period, from Dec. 1, 2004 to Sept. 1, 2005, depending on your state of residence.

For more information, visit the FTC‘s page, or go to http://www.annualcreditreport.com/. (No link provided, since that web server rejects requests with a HTTP_REFERER header from any site other than www.ftc.gov, www.equifax.com, www.experian.com, or www.transunion.com, presumably to thwart phishing attacks.)