Top Ten Books to Read on Halloween, in order of how good they are

Top ten this week by Sue Yerpantzoff.
Editor’s Note: Sue Yerpantzoff’s judgments about literary quality do not reflect the judgments of the Law Weekly, or even the Law Weekly’s humor section. Sue, you’re on your own.
  1. The second Twilight book
  2. Twilight
  3. The third Twilight book
  4. The fourth Twilight book
  5. Twilight: the Short Second Life of Bree Tanner, the novella that Stephenie Meyer wrote after the series.  Actually, you can skip that one.  Read Fifty Shades of Grey, a book that started out as Twilight fan-fiction, or Midnight Sun, the beginning of Stephenie Meyer’s retelling of Twilight from Edward’s point of view (that guy is peeeeeeeeervyyyyy—if this doesn’t spook you on Halloween, I don’t know what will).
  6. The Host, by the author of Twilight
  7. Any of the books from the Goosebumps series
  8. Anything by Stephen King
  9. Your torts casebook (read any case involving an allegedly defective saw)
  10. An Inconvenient Truth (making the list due to pure scariness)

My Life as a Notre Dame Fan

Notre Dame senior linebacker Manti Te’o. Courtesy of Neon Tommy’s photostream on Flickr.com.I have two reasons for rooting for Notre Dame football. First, I’m Catholic. Second, I grew up watching Notre Dame football with my dad on Saturdays, and it’s something that means a lot to both of us, something that we’re always able to share no matter what else is happening. Like I said, I’m Catholic.

Sometimes it’s rough being a Notre Dame fan. Essentially, you get abused for being a frontrunner, without the benefit of your team actually running in front. Not only has the program not won a national title since 1988 or been in serious contention since 1993, but the sports media loves piling on when Notre Dame is bad. Whenever Notre Dame has a bad season (i.e., isn’t in the hunt for a national championship; so every since for the past 19) you can count on a handful of columns opining about how Notre Dame isn’t relevant any more, and possibly a Saturday Night Live sketch or two lampooning the program’s exclusive television contract with NBC.

That’s why this season has been so fantastic: it was unexpected. Year three of the Brian Kelly era could easily have been a disaster. Year three has not been kind to recent Notre Dame coaches. Bob Davie went 5-7, Tyrone Willingham went 6-5, and Charlie Weis went 3-9. Furthermore, coming in to the year, the team’s schedule looked so tough that it was entirely conceivable that even if the Irish were good, they might do no better than 7-6 or 8-5.

Instead, Notre Dame, largely carried by its defense, has been excellent this year. Starting with a blitzing of Navy 50-10 in Dublin, Ireland to open the season, the Fighting Irish have consistently impressed. After grinding out an ugly 20-17 win over Purdue came the Irish’s first real test: a road game at 10th-ranked Michigan State. Led by senior linebacker Manti Te’o, who played despite the deaths earlier in the week of both his grandmother and his girlfriend, Notre Dame dominated a supposedly superior team 20-3.

Te’o, the Heisman Trophy candidate inside linebacker, is the beating heart of this Notre Dame team. His five interceptions, two sacks, and approximately three bajillion tackles do little to measure his impact. The Mormon/Native Hawaiian is universally popular with the coaching staff, teammates, and the student body at large. Stories about him take on a mythic quality. When it was announced this year that for the first time Notre Dame’s captains would wear a “C” on their jersey, not only was there no doubt that Te’o would receive the honor, there was widespread speculation that the decision was made specifically with Te’o in mind. Supposedly, whenever Te’o is eating in the cafeteria and sees someone sitting alone, he will invite the individual to sit with him. When the Boogeyman goes to sleep at night he checks his closet for Manti Te’o.

After Michigan State, Notre Dame beat rival Michigan 13-6 in a rough-and-tumble throwback of a football game. They then steamrolled Miami at Soldier Field in Chicago, in preparation for 17th ranked Stanford, who had utterly waxed the Irish a year earlier in Palo Alto. The Irish would pull out the win in over time, 20-13, thanks to a goal line stand in which Notre Dame stopped Stanford four plays in a row inside Notre Dame’s own four yard line (with an assist from a possibly early whistle on the final play). The Irish even managed to avoid the classic “trap game,” beating BYU 17-14 after trailing for much of the game.

Notre Dame’s success is even more remarkable when you consider their coaching and quarterback situations. Kelly, came to Notre Dame with a  reputation for running an unstoppable spread offense predicated on excellent quarterback play. This Notre Dame team has, instead, succeeded in the trenches, playing with a borderline quarterback controversy. Tommy Rees, last year’s interception-prone starter, was suspended for the first game of the season, and the starting job went to redshirt freshman Everett Golson. Golson, however, stumbled against Purdue, and Rees came off the bench to engineer a game-winning drive. Golson has remained the preferred choice, and has played better overall, coupling a strong arm with an ability to run the ball. But Rees has played a lot, engineering another winning drive against Stanford, starting the Miami game, and even playing the whole BYU game while Golson sat out with a concussion.

Even with the success they’ve had this year, I expected Notre Dame to lose to Oklahoma this past weekend. The oddsmakers did as well, putting Oklahoma at 12 point favorites despite Notre Dame’s unblemished record. Apparently no one told Te’o and the Irish defense. They bent but did not break, surrendering 376 passing yards but only one touchdown and two field goals. Golson played every snap for the first time since the season opener, and he and the offense did more than enough: putting 30 points on the board without turning it over. Notre Dame didn’t just win, they won by 17.

It is the Irish’s most important win in decades. For the first time in almost 20 years, Notre Dame matters. The vitriolic columns and sarcastic fake commercials are gone. It is quite possible that Notre Dame will lose to Pittsburgh this weekend or Boston College the next, and it is perhaps likely that they will lose to at archrival USC in the last game of the season (I almost didn’t write this column for fear I would jinx them). The rest of the season, though, is just icing on the proverbial cake. The games are important again, and that’s all this Notre Dame can ask for. 

Contraception a critical issue for November Elections

With Election Day fast approaching, the issue of reproductive justice has become increasingly important as both candidates aggressively campaign for women’s votes. Democrats have spent the last several months accusing Republicans of waging a war on women, while Republicans have argued that they have their best interests at heart.

In light of the upcoming election, Law Students for Reproductive Justice hosted “The State of Choice,” a panel discussion on pro-choice initiatives at the state level that will be on the ballot come November 6th.  The panel also discussed legislative trends regarding insurance coverage and abortion bans throughout the country.

Marya Torrez of the National Partnership for Women and Families provided background on the wave of anti-choice measures that have swept across the country the past several years. Since the Supreme Court’s decision in Gonzales v. Carhart (2007), which upheld a federal ban on so-called “partial birth abortions,” states have passed a variety of laws to restrict women’s access to safe abortion and the right to choose. For example, thirty-five states have mandatory counseling laws on their books, which require doctors to provide women seeking abortions with specific information that is often inaccurate: several states require physicians to tell the woman that a fetus can feel pain – a claim highly disputed within the medical community – or that abortion increases a woman’s chance of getting breast cancer, a blatantly false claim. South Dakota even requires a doctor to tell a woman seeking an abortion that the procedure will increase her risk of suicide, though such a link has never been shown, and many women report feeling great relief when they exercise their right to choose.

Another type of restrictive law that has gained national attention this year is the mandatory ultrasound law, which requires women seeking an abortion to first receive a medically unnecessary ultrasound. Twenty-four states have passed a version of this law with varying degrees of intrusiveness. Under the Texas law, for example, doctors are forced to give women seeking an abortion an intrusive transvaginal ultrasound, as the majority of women seeking abortions do so during the first twelve weeks of pregnancy when the fetus is too small to be seen in an abdominal ultrasound.

One can argue the policy reasons behind these laws, but their impact on real individuals often gets lost in the debate. To this point, Lissy Moskowitz of NARAL Pro-Choice America demonstrated the real-world effects of legislation that restricts abortion. Imagine your friend who is pregnant with her first child.  She and her husband have been enthusiastically preparing for the baby’s birth, painting the nursery and making a crib from scratch. Around twenty weeks into the pregnancy, the doctor informs the couple that the fetus will not survive. After much discussion and deliberation, the couple decides to abort the fetus. However, the doctor informs them that due to the state’s twenty-week abortion ban, he cannot provide the abortion. The woman is forced to carry the non-viable pregnancy to term and give birth to a stillborn.

Laws banning abortions after twenty weeks demonstrate a recent trend in the anti-choice movement. Nine states currently have a twenty-week ban on their books, and the restriction is beginning to gain steam in other anti-choice legislatures across the country. Despite the fact that the majority of women who choose to have an abortion twenty weeks into a pregnancy do so because of a serious complication, anti-choice legislatures and governors are seeking to curb the women’s right to care for their own bodies.

This coming election offers voters the opportunity to begin reversing such trends. In Montana, voters will decide on an initiative that would prohibit a physician from performing an abortion on a minor under the age of sixteen without parental notification at least 48 hours prior to the procedure. The Florida ballot contains an anti-choice initiative that would prohibit public funding for any abortion or for health-benefits coverage that includes coverage of abortion, except for cases of rape or incest. The same initiative, if passed, will eliminate the protections in the state’s constitution that guarantee women the right to privacy.

Of course, many of us here at Georgetown do not vote in Montana or Florida. But issues of women’s health and reproductive rights are not limited to the states. The presidential election will have a large impact on a woman’s right to choose. As the panelists discussed, the contrast between the presidential candidates could not be starker.

Governor Romney has called for the overturn of Roe v. Wade. This is not an idle threat, as the next president will likely have the ability to nominate one or two more justices to the Supreme Court. The candidate has also said he would be delighted to sign a bill banning abortion, and vetoed a bill that would provide emergency contraception to rape victims (even Todd Akin’s legitimate rape victims!) when he was governor of Massachusetts. Romney has also said he wants to get ride of Planned Parenthood, apparently ignorant to the fact that cuts to family planning clinics leads to more unintended pregnancies, which, of course, lead to more abortions.

His running mate, Congressman Paul Ryan, has a track record that is even worse. He cosponsored the Sanctity of Human Life Act, which would have granted fertilized eggs the same rights as adult humans. He also cosponsored a bill that would force women seeking abortions to first receive government-mandated ultrasounds. In total, Ryan has had sixty opportunities to votes on issues of reproductive rights; he voted anti-choice every single time.

Contrast these records with that of the current President. One his first day in office, President Obama rescinded the Global Gag rule, which prevents U.S. foreign aid funds from going to any international organization that supports or even mentions abortion as an option for pregnant women. After a messy legislative battle, President Obama won passage of the Affordable Care Act, which will bring 30 million Americans better insurance coverage, including maternity care and other women’s health services like annual exams and breastfeeding support.  He has increased public funding for family planning care here in the United States and abroad. And, as everyone at Georgetown Law is keenly aware, the Obama administration, as part of health care reform, adopted a regulation that requires insurance providers to cover contraception with no co-pay for insured women, providing greater access to reproductive health care to the one in three women who struggle to afford contraception in this country.

The moral of the story is a simple one: go vote.  There is a lot at stake in this coming election, and no matter where you stand on any of the issues, you have no excuse to sit this one out.  

 

by N.B., LSRJ Board

Top Ten Things to Do During Hurricane Sandy

  1. Congratulate yourself on preparing for the storm, regardless of whether the storm actually ends up being No Big Deal, and you end up with enough canned goods to start a soup kitchen.
  2. Realize that you completely failed to prepare for the storm. Assure yourself that it will be No Big Deal. Concoct plan to steal bottled water from next door neighbors.
  3. Watch all 248 movies and TV shows currently in your Netflix instant queue. Even those depressing but critically acclaimed documentaries you’ve been putting off for years. Especially those depressing but critically acclaimed documentaries you’ve been putting off for years. Think about it. If patio furniture from inconsiderate neighbors crashes through your bedroom window and kills you—mid-documentary—your family and friends can then eulogize that you were so full of compassion that you spent your last moments learning about the plight of undereducated starving transgender child soldiers in Northeastern Somalia.
  4. Clean your room. (Love, Your Mom)
  5. Read a book. Wait, the only books you own are casebooks and E&E’s? Too late to visit the library now. Download something on your Kindle/iPad/whatever (Surface?!). Or read your roommate’s casebooks. At least they’ll be something new?
  6. Drink. Heavily. Don’t pretend you need me to give you a reason. You’re in law school.
  7. Teach yourself to swim. I’m pretty sure that’s a thing you can do just sitting in your apartment. There are YouTube videos.
  8. Check out http://instacane.com/, a crowdsourced collection of Hurricane Sandy Instagram photos. Realize how terrible crowdsourcing can be. Last I checked, the front page of Instacane included 2 shots of the same photoshopped pic of NYC (already proven to be a hoax), a cheery multiframe of people hiding under pillows, and a photo of the Jonas Brothers with Ryan Seacrest. But…pretty filters!
  9. Make new friends with people who live in your building. Live alone in a house with no one nearby? Get ready to paint a face on a volleyball.
  10. Study/outline/work. Just kidding.

Smith v. United States: The Court considers the scope of the federal conspiracy statute

In Smith v. United States, the ultimate issue is which party has the burden to prove withdrawal from a conspiracy prior to the statute of limitations. The circuit courts have been split 5-5 on this issue.

A number have held that once a defendant has met his or her burden of production that he or she has withdrawn prior to the statute of limitation, the burden of persuasion then switches to the prosecution to disprove withdrawal, under the theory that due process requires that each element of an offense be proven by the government beyond a reasonable doubt.

Other courts have instead held that the burden always remains on the defendant to prove withdrawal, on the theory that withdrawal is an affirmative defense.

Petitioners Calvin Smith and John Raynor were charged along with four other defendants with and ultimately convicted of participating in a twelve-year, drug-related conspiracy within the District of Columbia from 1988 through 2000, when they were charged.

Pre-trial, they both argued that they had withdrawn from the conspiracy prior to 1995, and thus were outside of the five year statute of limitations. The trial court denied these defendants’ motion to dismiss the indictment. Then, during jury deliberations, the jury sent a note asking the court to clarify the standard for withdrawal prior to the statute of limitations, and the court over the defendants’ objection, instructed the jury that the defendant had the burden of proof.

The court of appeals affirmed the district court’s instructions, reasoning that the elements of the conspiracy charge we proved once the defendant is proved to participate in an ongoing conspiracy. The court also noted that the defendant has the burden of proving withdrawal for the purposes of sentencing in order to take advantage of the federal guideline’s mitigating factor.

Petitioners argue that the government must prove that the defendant participated in the conspiracy within the statute of limitations in order to convict the defendant; once the defendant has withdrawn from the conspiracy the crime is over, such that the statute of limitations for the offense is triggered; and that therefore placing the burden on the defendant to prove withdrawal prior to the statute of limitation relieves the government of its burden to prove each element of the offense beyond a reasonable doubt, as required by due process.

The petitioners also emphasized the importance of statutes of limitations in the context of criminal prohibitions, arguing that they have been fundamental to the American and English legal systems since prior to the revolution and that statutes of limitations should be considered a demarcation of the boundaries of criminal behavior as much as traditional elements of an offense.

In its reply brief, the United States argues that the government proved all the elements of the offense by proving that the defendants willfully agreed to participate in the conspiracy. “Once an individual joins a conspiracy, he is criminally liable for belonging to the conspiracy and for any acts taken by co-conspirators in furtherance of the conspiracy’s goals even if the individual takes no overt action related to the conspiracy after agreeing to join.”

Regarding the statute of limitations, the government argues that it was only required to prove that the conspiracy, as an ongoing violation, continued to exist during the relevant time period. But, “to accomplish withdrawal … a defendant must not only end his involvement with the conspiracy, but also take some affirmative action that is inconsistent with the objectives of the conspiracy.”

Because the defendant remains a participant in the conspiracy absent such affirmative action, the government is under no burden to prove their lack of action. Withdrawal prior to the statute of limitations is therefore an affirmative defense, which due process does not require to be disproved by the government beyond a reasonable doubt.

Oral arguments in Smith are set for Tuesday, November 6th. 

Official campus closures announced due to Hurricane Sandy

Screen capture of official GULC website, as of October 28, 2012, 8:10 PMCheck back to this space. The Law Weekly will report all updates—as they occur—right here on this page.

UPDATED Tuesday, October 30, 10:00 a.m.

Following announcements for campus closures on Monday and Tuesday, and an advisory to stay indoors Monday evening, Georgetown University administration has declared an all-clear for the main and medical campuses. A HoyAlert email sent 7:53 a.m. reads:

“This message is the official ‘all clear’ lifting the shelter in advisory for the main and medical campuses, however please continue to use caution.  Only go outside if necessary.  Debris is causing slippery conditions, some trees are down and standing water remains in areas off campus. Thank you for your cooperation and patience.”

The HoyAlert emails and automatic calls did not mention the Law Center. However, Georgetown University’s Facebook account includes a recent update (9:05 a.m.) that states: “This is the official ‘all clear’for those at our DC campuses. Please continue to use caution when outdoors.”

UPDATED Monday, October 29, 4:11 p.m.

Students and faculty still on campus at the Law Center are now advised to stay indoors, due to worsening weather conditions, according to an email sent by Edward G. Piper, Director of Public Safety and Emergency Management, at 4:01 p.m. This announcement came at the heels of earlier instructions regarding campus closures for Monday and Tuesday. 

In an email to the entire campus, Piper writes that “the safety of all the members of our law community on campus is our primary concern.”

UPDATED Monday, October 29, 10:59 a.m.

Georgetown Law is officially closed for both Monday, October 29, and Tuesday, October 30. 

Georgetown’s HoyAlert system began alerting students to Tuesday’s campus closures at approximately 10:53 a.m. A text message broadcasted by the HoyAlert system informed students: “All Georgetown University campuses in DC Area (MAIN, MED, LAW) closed Tuesday, Oct 29. Call 292-687-SNOW or visit www.georgetown.edu for details.” 

A HoyAlert robo-call ensued shortly after, informing the Georgetown community that campuses in the D.C. metropolitain area will be closed, and that classes have been cancelled for main campus, the medical school, and the law school. However, all emergency personnel “must report to work on time.”

Hurricane Sandy’s estimates have been upgraded to a height of 85 mph winds (from a previous estimate of a height of 75 mph.)

UPDATED Monday, October 29, 10:37 a.m.

Georgetown University has announced that all university campuses in D.C. will be closed Tuesday as well. The HoyAlert system has not yet informed students of the new development. However, as of Monday, 10:37 a.m., the Georgetown Law official website has updated its inclement weather notice. 

The Georgetown University Facebook account posted the announcement at 10:11 a.m.

UPDATED Sunday, October 28, 8:50 p.m.

At 8:44 p.m., Sunday, October 28, Edward G. Piper, Law Center Director of Public Safety and Emergency Management, sent a campus-wide email confirming that the Law Center will be closed on Monday due to inclement weather.

“All activities and services, including classes and scheduled events (student organization meetings and events, CLE, and conferences), are canceled.  All administrative offices are closed.  The food services operation, fitness center and Early Learning Center are closed.  The library will be closed.

It is expected that only designated emergency employees will come to the Law Center to fulfill their responsibilities.  All others – including students, staff, faculty, and visitors – are expected not to come to the Law Center, which will not be staffed to support anything other than essential functions.  

The Law Center will continue to monitor developing storm conditions and will communicate a decision regarding its operating status for Tuesday, October 30, in the afternoon on Monday.”

A duplicate email was sent to all students and faculty at 8:55 p.m.

The HoyAlert system automatically called all those registered for the system at approximately 8:45 p.m. with a similar message, regarding campus closure “due to inclement weather.”

Sunday, October 28, 8:17 p.m.

According to a “HoyAlert” bulletin email sent on Sunday, October 28, at 7:30 p.m., the Georgetown Law Center campus is officially closed for Monday, October 29. This announcement occured as Washington, D.C. braces for Hurricane Sandy, set to hit D.C. this coming week.

The text of the email includes the following: “Georgetown University, Georgetown University Medical Center, and Georgetown University School of Medicine ARE CLOSED ON MONDAY, OCTOBER 29.  Emergency personnel must report to work on time.”

Previously, on Friday, October 27, Edward G. Piper, Director of Public Safety and Management, had sent an email to all faculty and students concerning emergency preparations for Hurricane Sandy. Piper wrote that the Law Center would “keep the community updated on possible closings and delays through our website, email, main switchboard (202) 662-9000 and the class cancellation line (202) 662-9446, as well as through the HoyAlert emergency notification system.”

Piper also recommended http://www.ready.gov/hurricanes as a resource for hurricane preparation, and noted that the Law Center’s inclement weather policy is stated in full on the official Georgetown Law website. (The GULC inclement weather policy can be found here:  http://www.law.georgetown.edu/campus-services/public-safety/inclement-weather-policy.cfm.)

According to the Washington Post, ”between Sunday night and Tuesday, we can expect 4-7” of rain and a long period of sustained winds above 35 mph with peak gusts over 60 mph.” The hurricane is expected to hit most severely from Monday into and through Tuesday. Power outages are expected.

The federal government also announced a complete shutdown for Monday. MTA has also announced that all rail and bus service is cancelled for Monday. 

Georgetown Law community members can register for the HoyAlert system here:  http://safety.georgetown.edu/49009.html.

 

Q&A with U.S. Rep. Bob Barr starts alumni weekend

Photo courtesy of Eric Glatt, 1L

On Friday, Oct. 19, the Student Bar Association hosted “A Conversation with Bob Barr” to coincide with the kickoff of Alumni Reunion Week at the Law Center. Mr. Barr is a member of the Georgetown Law Class of 1977, but is perhaps more widely known for his political career. He served for eight years in the United States House of Representatives as the representative for Georgia’s 7th Congressional District. After Congress, Barr switched from the Republican to Libertarian party in 2007, and was the Libertarian presidential candidate in the 2008 presidential election. In a wide-ranging interview with SBA President Shaun Zhang, 3L, Mr. Barr discussed his law school years, the value of legal training to public service, and where he will go from here.

The son of a West Point engineer, Barr grew up all over the world, graduating from Community High School in Tehran, Iran in 1966. After high school, Barr returned to the U.S. to attend the University of Southern California. “When I showed up to register at USC,” joked Barr, “they had me signed up for mandatory English as a foreign language. If I had been smart, I would have stayed in the class and not corrected their mistake. It would have been the only A that I would have gotten that year.”

After earning his bachelor’s degree in southern California, Barr moved to Washington D.C., earned a master’s degree from George Washington University, and applied to Georgetown Law. Barr attended Georgetown Law’s evening program, which he praised as making “a unique contribution to the university and the practice of law.” When he wasn’t attending classes, Barr worked full-time at the Central Intelligence Agency. Many of the practical skills that he learned during that time, such as “how to balance a large number of projects, ideas, [and] activities at one time,” he credited with helping him to be effective in his later career. Barr also looks for these traits in others, those and the requirement that they have a good sense of humor. “I never trust somebody who never smiles.”

Asked about his favorite professor at Georgetown, Barr spoke of Charles Ruff. Ruff taught Barr’s Contracts class, and would later work with Barr in Congress as the defense attorney for President Clinton during his impeachment. Barr noted that Ruff had the rare and requisite ability to boil down complex ideas into understandable parts. Working with Ruff on the impeachment, said Barr, made impeaching the President, “a generally unenjoyable process,” a “much more manageable and enjoyable process” than it would have been otherwise.

Barr spoke at length about the value of legal training to the functioning of Congress, and addressed whether or not the prevalence of lawyers in Congress is, on balance, good or bad. “There certainly are factors that limit [congressional] creativity,” admitted Barr, “but they don’t derive from being a lawyer and being trained in the law.” Instead, he attributed the lack of creativity primarily to people serving in Congress for the wrong reasons – “simply to perpetuate themselves” as members of Congress – and to the dynamics of the two-party system.

Of a Congress made up wholly of lawyers, Barr joked, “I don’t think anything would ever get done.” But, he argued, having lawyers in the Congressional mix is “absolutely essential” to the functioning of government. To bolster his point, Barr reminded the audience that a large number of our nation’s founding fathers were lawyers. “It is important,” said Barr, “that young lawyers be encouraged to become involved in politics and government.”

Among other things, Barr is sometimes critiqued for sharply shifting his views on gay marriage and the drug war. Zhang asked about these issues head-on: “You co-authored the Defense of Marriage Act [DOMA], and now you support its repeal. You were a well-known proponent of the drug war, and now you favor the legalization of medical marijuana. What prompted your change in views?”

Barr was forceful in his response. “I have no problem at all,” he began,” with men and women in public life changing their views. The key is, are they doing it for the right reasons?” Some such reasons might be that “the power given to government is no longer necessary” or “that power that has been granted through legislation has been abused and ought to be curtailed.” When a public official sees that a law has been abused or has outlived its usefulness, said Barr, “that ought to be encouraged.” Barr urged that officials should constantly ask themselves if the laws and powers granted to the government are still necessary or useful.

“Unfortunately what has happened in our political system … is that if you change your position you are immediately labeled as a flip-flopper.” Barr cited what happened to John Kerry in the 2004 Presidential campaign as a prime example. Early in the 2004 campaign, Kerry said that several portions of the PATRIOT Act that were sunsetting or coming up for renewal should be looked at carefully in the light of experience. “As soon as Kerry did that, he was blasted by the Bush campaign for being a flip-flopper, and he backed off of it, and it never became a real issue in the campaign.”

While in Congress, Barr authored and sponsored DOMA. Regarding his change in position, Barr explained that “the law has been used by the federal government as a club to try and force and constrain states.” This was not the intent of the law, said Barr.

“The intent was to make clear that states could, in fact, adopt their own definitions of marriage. In my view [DOMA] should be repealed. It has not worked the way that it was intended, we don’t need it, and the views of the country also largely have changed.” It is worth noting that the arguments used by DOMA’s in-court defenders have not reflected this view of congressional intent.

Regarding the drug war, Barr offered that the desires of his constituents were a big part of why he was such a strong supporter of the drug laws. “But,” he continued, “I’ve seen a number of studies over the years, particularly regarding marijuana … [that it is not] appropriate to be considered a Schedule I substance.” Schedule I drugs are the most tightly regulated and carry the most stringent penalties under federal law. “As citizens … we ought to encourage and applaud public officials that change their vision based on sound reason.”

Koh lectures at GULC, students protest drone strikes

Photo courtesy of Wikimedia Commons

International law is “about much, much, more than treaties and executive agreements,” said Department of State Legal Adviser Harold Hongju Koh as he delivered the 33rd annual Thomas F. Ryan Lecture here on October 17.

This is “not your grandfather’s international law.”

The way in which the government historically carried out international lawmaking could be described in three neat categories appropriate to a law school lecture, said Koh, the former dean of Yale Law School.

The United States might enter into an international treaty with the advice and consent of two-thirds of the Senate; create a congressional executive agreement through a statute passed by a majority of both houses and signed by the president; or carry out an executive agreement within the scope of the president’s independent constitutional authority.

And while these tools — especially treaties — remain an integral part of lawmaking practice, they aren’t the only options today. Take, for example, what Koh called “diplomatic law talk.”

“We are urging compliance with international legal norms through Facebook and Twitter,” he said.

“The United States Supreme Court is not the only mechanism to achieve an outcome; there is more than one way, as they say, to skin a cat.”

And then there’s what Koh termed “layered cooperation”— where legally nonbinding guidelines and principles are added to existing treaties, for example, with respect to space.

Third, private-public initiatives might establish norms for human rights among non-state actors like security contractors.

“Twenty-first century lawmaking is not limited to drafting codes…” he said. “It is a living, breathing, human tapestry of meetings, relationships, communications personal and virtual — all focused on the broader task of promoting cooperation.”

Outside the lecture, members from the Georgetown chapter of the National Lawyers Guild distributed flyers decrying Koh’s support of the use of drones to kill alleged terror suspects.

In an op-ed piece that ran in the Law Weekly, James Morlath (2L) encouraged attendees to ask critical questions of Mr. Koh, including why he changed his position on the use of drone strikes once he joined the Obama administration.

Several students took Morlath’s advice and questioned Koh on this subject with varying degrees of factual substance and emotion.

The annual lecture is named for the late Thomas F. Ryan (L’76). Ryan’s family attended the event, which was opened by Dean William M. Treanor.

Adaku Onyeka, 2L, contributed to the reporting of this story. Substantial reporting was generated from press releases by the Office of Communications.

Circuit DOMA ruling paves way for SCOTUS

Section 3 of the Defense of Marriage Act (DOMA), enacted in 1996 under President Bill Clinton, explicitly states the term “marriage” in any statute shall be only defined as a legal union between a man and a woman, excluding the possibility of federally recognized same-sex marriages. As if that were not enough, Section 2 further provides that states do not have to give effect to same-sex marriages or unions legalized in other states. After signing DOMA into law, President Clinton released a signing statement that included the following:

“I [w]ant to make clear to all that the enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination, violence or intimidation against any person on the basis of sexual orientation. Discrimination, violence and intimidation for that reason, as well as others, violate the principle of equal protection under the law and have no place in American society.”

But discriminate is exactly what DOMA did – in areas of taxation, immigration, intellectual property and veteran’s and social security benefits. DOMA left homosexuals in the late 1990’s feeling socially excluded by mainstream conservatives, understanding that the federal, state, and local governments would never have to legitimize their relationships with their life-long partners.

Of course, since then, six states have legalized gay marriage, President Obama has been the first sitting president to openly endorse it, and President Clinton has altered his position. Most recently, on October 18, over 16 years since DOMA’s enactment, the Second Circuit issued a groundbreaking decision in Windsor v. U.S., ruling at least part of the statute unconstitutional. Specifically, the court held Section 3 failed to withstand intermediate scrutiny under the equal protection doctrine, denoting the first time a federal circuit has applied this level of scrutiny to laws classifying people by sexual orientation.

Justice Jacobs, a George H.W. Bush appointee, wrote the majority opinion. Edith Windsor, plaintiff in this case, was “denied the benefit of the spousal deduction for federal estate tax” after her wife died in 2009, a deduction which amounted to over $350,000. Before living in New York, Edith married her wife in Canada. (Note that New York did not legalize same-sex marriage until 2011.) The sole reason for the deduction denial was DOMA’s reading of marriage into other federal statutes: that only those marriages between a man and a woman will be recognized.

 

The Court determined that Section III of DOMA requires heightened scrutiny, since the homosexual class is a “quasi-suspect” one, supported mostly by their discriminatory history, distinguishable characteristic and lack of defensive political power. Because the homosexual community is a “quasi-suspect” class, the government had to demonstrate classification by sexual orientation is substantially related to an important government objective. If not found “exceedingly persuasive”, the government would lose. Needless to say, the Second Circuit found the government unpersuasive.

The Bipartisan Legal Advisory Group (BLAG)—created by the House of Representatives after Attorney General Eric Holder announced the administration’s decision to no longer defend DOMA—argued for the statute’s supposed ‘important government objective.’ BLAG contended that the continuance of a uniform federal definition of marriage is needed for obtaining federal fiscal benefits and protecting the fisc, and “the unknown consequences of a novel redefinition of a foundational social institution” should be avoided. BLAG went so far as to maintain that Congress passed DOMA to encourage “responsible procreation.”

In Windsor, the Court first rules out the argument that there is a need for a uniform federal definition of marriage, asserting that the federal government has long been accepting of the variety of family laws among the states. Justice Jacobs also elaborates on how DOMA is not substantially related to the important government objective of protecting the fisc. As for the traditional justifications for defining marriage in Section III, the court analogizes DOMA to sodomy laws, overturned in Lawrence v. Texas. The Court is very suspicious of defending a law on the basis of its historical tradition, and plainly states that maturity of a concept does not make it less susceptible to scrutiny. Further, and likely most importantly, DOMA does not even preserve such a tradition, since it is still up to the states to allow or deny same-sex marriage.

The most absurd argument the government offers, that DOMA subsidizes procreation and “facilitates the optimal parenting arrangement of a mother and a father”, is also on shaky ground. Even though the Court admits the objective to promote procreation is an important one, it nonetheless finds the statute not substantially related to the government interest. Because DOMA does not incentivize homosexuals to enter into heterosexual relationships, and procreate naturally, the important government interest of procreation is not furthered in the least by the statute.

The Court thus holds Section III of DOMA unconstitutional under the equal protection clause, contrary to President Clinton’s signing statement, as it fails to meet intermediate scrutiny applied to cases of “quasi-suspect” classes. This decision is extremely significant moving forward. No other court has determined homosexuals to be a “quasi-suspect” class, and in doing so, the Second Circuit lays out a very sound argument for future opinions on this issue. Even though the lower court in this case ruled DOMA unconstitutional, it only did so on the grounds that it did not survive rational basis. However, in most cases, the government normally wins when a statute is only subject to rational basis scrutiny. The success of overturning DOMA will likely depend on what level of scrutiny the Supreme Court chooses to apply, and the Second Circuit has given it thorough reasoning for utilizing heightened scrutiny.

It is also valuable to note that the Court did not address Section 2 of DOMA, which allows states to deny recognition of marriages outside their jurisdiction. This leaves the door open to further deny equal protection state by state, even if eventually Section 3 is overturned. Making certain that even if the Edith Windsors of the United States receive federal benefits, they will not receive all of the benefits they have a constitutional right to. Especially relevant is the upcoming election in November, in which four states will be voting on same-sex marriage ballot measures – likely resulting in additional bans. Therefore, we should most certainly be approving of the Second Circuit’s opinion last week, but not content until all of DOMA’s discriminatory sections are finally ruled unconstitutional.  

Sarah Harrsion, 2L, can be reached at seharrison7@gmail.com

 

Students shower staff with affection & confections

Photo courtesy of Christine SigurdsonOn Thursday, Oct. 18, Law Center employees were treated to a sweet celebration for the first ever Georgetown Law Workers Appreciation Day.

On Tuesday, Oct. 16, the Student Bar Association passed a resolution establishing the new holiday honoring GULC employees for the work they do to promote an “educational environment [that] is well maintained and free from distraction.”

Sporting a banner that chirped, “Thanks for making our campus a great place to learn!” students from the Georgetown Law Workers Solidarity Group commemorated the day by giving workers homemade baked goods and a giant thank you sign made by first-year students in section 3.

Group members also offered information to students to let them know how they can support workers on campus on a regular basis.

The holiday is not a one-time event. Moving forward, the third Thursday of every year will be Georgetown Law Workers Appreciation Day, according to the SBA resolution.

The resolution passed unanimously and was sponsored by 3L delegate Christopher Morgan-Riess and 2L delegate Daniel Smith.