Legal issues

[Crafty_Dog]

Amen!!!

[G M]

Sir Robert Peel's Nine Principles
 
--------------------------------------------------------------------------------
The basic mission for which the police exist is to prevent crime and disorder.

The ability of the police to perform their duties is dependent upon public approval of police actions.

Police must secure the willing co-operation of the public in voluntary observance of the law to be able to secure and maintain the respect of the public.

The degree of co-operation of the public that can be secured diminishes proportionately to the necessity of the use of physical force.

Police seek and preserve public favour not by catering to public opinion but by constantly demonstrating absolute impartial service to the law.

Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient.

Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.

Police should always direct their action strictly towards their functions and never appear to usurp the powers of the judiciary.

The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with it.

[JDN]

That should be posted in every police station!

[JDN]

I'm the resident liberal here; make love not war.   

So why, under the First and Fourteenth Amendments is CA allowed to prohibit minors to buy Playboy Magazine,
but it is not ban violent games?

http://www.latimes.com/news/nationworld/nation/la-na-court-games-20110628,0,6836552.story

[Crafty_Dog]

GM, I would love to see that posted in the Police-Civilian interaction thread on the Martial Arts Forum.
================


For the past century, the imperial power of the law seemed unstoppable, as legislation and litigation reached into every area of life. But now the law has met its match. Technology raises issues so quickly and unpredictably that judges are reduced to King Canutes, trying to stop the flow of ocean tides with their bare hands.

Consider two similar cases based on rapid changes in technology occurring a century apart. Both dealt with "hot news," a legal doctrine that determines who owns news for how long. Long dormant, the issue has heated up as services such as Google and aggregators such as Huffington Post drew large audiences through summaries of original reporting by news organizations.

These cases were hard calls for judges in 1918 and again in the case decided last week. Here are the facts in the earlier case, International News Service v. Associated Press:

The International News Service was founded by William Randolph Hearst as an alternative to the Associated Press. Like his newspapers, INS opposed America's entry into World War I. British military censors tired of its exaggerated reporting (one headline read, "Zeppelins Set London Ablaze!") and banned Hearst's newswire from using the undersea cable that linked to telegraphs in the U.S. that delivered reports to newspapers.

Hearst's newswire responded by copying AP stories, sometimes obtained by bribing AP employees, and sending the reports to its member newspapers as its own. "The distribution of news matter throughout the country is principally from east to west," Supreme Court Justice Mahlon Pitney observed, "and, since in speed the telegraph and telephone easily outstrip the rotation of the earth, it is a simple matter for defendant to take complainant's news from bulletins or early editions of complainant's members in the eastern cities and, at the mere cost of telegraphic transmission, cause it to be published in western papers issued at least as early as those served by complainant."

The news itself, as opposed to the words in which it is written, is not subject to copyright. But the court found that INS had misappropriated a "quasi-property right" by "endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant's members . . . appropriating to itself the harvest."

View Full Image

Getty Images/Imagezoo
 .Last week's case, Barclays Capital v. Theflyonthewall.com, turned out differently. The website uses the Internet to redistribute information the way Hearst's newswire used the telegraph. The plaintiffs in the case, which include Merrill Lynch and Morgan Stanley, invest in research about companies and markets and then share their market-moving trading recommendations with their biggest trading customers. They make the recommendations public only later, after funding the research through trading commissions.

Theflyonthewall.com undermined this system by reporting these recommendations quickly after their distribution to big investors; it's hard to keep secrets these days. A trial judge had sided with the banks and ordered the site to wait until 30 minutes after the opening of the stock exchange to republish the banks' buy-sell-hold recommendations, giving the banks' customers time to trade.

But the Second U.S. Circuit Court of Appeals ruled last week that the website could continue its work. Unlike in the Hearst newswire case, Theflyonthewall.com is not free riding when it collects and distributes news about banks' research. "The firms are making the news," Judge Robert Sack wrote. "Fly, despite the firms' understandable desire to protect their business model, is breaking it."

Judge Sack knows the news industry well after representing Dow Jones and other media companies when he was in private practice. He is philosophical about the power of judges to stem the tide of technology, even when there's unfairness. "The adoption of new technology that injures or destroys present business models is commonplace," he writes.

There can't be laws against using technology to spread news. Justice Louis Brandeis wrote as much in his 1918 dissent in International News Service. "With the increasing complexity of society, the public interest tends to become omnipresent, and the problems presented by new demands for justice cease to be simple. Then the creation or recognition by courts of a new private right may work serious injury to the general public unless the boundaries of the right are definitely established and widely guarded."

But just because the law can't control how news spreads does not make technology a pure good. Google and Twitter filed a brief in Theflyonthewall, warning: "Hot news becomes cold in a nanosecond in the modern world." They don't want restriction on their business practices. But as in the cases of the not-so-innocent Hearst newswire and Theflyonthewall.com, Internet aggregators profit from the work of others as they undermine their business models.

Judges are right to stand aside to let the tide of technology flow freely. It's only through more innovation, unfettered by new legal constraints, that technology will deliver new ways to fund original reporting, whether by journalists or equity analysts.

[Crafty_Dog]

By CLIFFORD WINSTON
AND ROBERT W. CRANDALL
The job market is not looking bright for Americans of all walks of life, even Ivy League college graduates and those with advanced degrees. For example, a new wave of law school graduates has just taken state bar examinations, which they must pass to obtain a license to practice law. But after accumulating as much as $150,000 in law school debt (likely on top of undergraduate debt), many of those test-takers are concerned that jobs in their field are vanishing.

Is there really an excess supply of lawyers? The Senate Judiciary Committee is investigating the subject while the New York Law School and the Thomas Cooley Law School in Michigan are being hit with class action suits claiming that they fraudulently inflated employment statistics to lure prospective students. But the solution proffered by many in the legal community—to put new limits on entry into the legal profession—is not the answer and will make the problem worse over the long term.

The reality is that many more people could offer various forms of legal services today at far lower prices if the American Bar Association (ABA) did not artificially restrict the number of lawyers through its accreditation of law schools—most states require individuals to graduate from such a school to take their bar exam—and by inducing states to bar legal services by non-lawyer-owned entities. It would be better to deregulate the provision of legal services. This would lower prices for clients and lead to more jobs.

Occupational licensing limits competition and raises the cost of legal services. But those higher costs are not justified when the services provided by lawyers do not require three years of law school and passing a particular test. One example is LegalZoom.com, an online company which sells simple legal documents—documents that should not require pricey lawyers to prepare—like do-it-yourself wills, uncontested divorce documents, patent applications and the like.

The competition supplied by new legal-service providers, who may or may not have some type of law degree and may even work for a non-lawyer-owned firm, will not only lead to aggressive price competition but also a search for more efficient methods to serve clients.

Every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality. For example, most regulated large airlines used to operate with large numbers of empty seats, particularly on longer routes. Once deregulation allowed Southwest Airlines, a smaller regional carrier, and other new carriers to offer service on any route, airline fares declined dramatically and the industry operated with far fewer empty seats and more employees. Deregulation of wireless, cellular telephone services and the entry of new carriers has led to the lowest wireless rates in the developed world and stimulated huge expenditures and associated employment in constructing new networks.

Entry by new firms—sometimes from other industries—spurs innovation. The legal industry will be no different. Ford, Honda and Toyota moved into motor vehicle production from bicycle, motorcycle and farm-equipment production, respectively. More recently, Apple moved from computers into mobile telephones (the iPhone), putting enormous competitive pressure on industry giants such as Nokia, Motorola and Research in Motion (Blackberry). The resulting innovations improved quality and lowered prices while also expanding employment.

Allowing accounting firms, management consulting firms, insurance agencies, investment banks and other entities to offer legal services would undoubtedly generate innovations in such services and would force existing law firms to change their way of doing business and to lower prices.

Entry deregulation would also expand individuals' options for preparing for a career in legal services, including attending vocational and online schools and taking apprenticeships without acquiring formal legal education. Established law schools would face pressure to reduce tuition and shorten the time to obtain a degree, which would substantially reduce the debt incurred by those who choose to go to those schools.

Supporters of occupational licensing to restrict the number of lawyers in the U.S. are wrong to assert that deregulation would unleash a wave of unscrupulous or incompetent new entrants into the profession. Large companies seeking advice in complex financial deals would still look to established lawyers, most of whom would probably be trained at traditional law schools but may work for a corporation instead of a law firm.

Others, seeking simpler legal services such as a simple divorce or will, would have an expanded choice of legal-service providers, which they would choose only after consulting the Internet or some other modern channel of information about a provider's track record. Just as the medical field has created physician assistants to deal with less serious cases, the legal profession can delegate simple tasks.

The track record of deregulation naysayers is hardly impressive—after all, some predicted in 1977 that airline deregulation would lead to a United Airlines monopoly. And while we cannot predict all the effects of legal services deregulation, we are confident that those services would be more responsive to consumers and that there would be more jobs in the legal profession.

Mr. Winston is a senior fellow at the Brookings Institution, where Mr. Crandall is a nonresident senior fellow in the Economic Studies Program. They are co-authors, along with Vikram Maheshri, of "First Thing We Do, Let's Deregulate All the Lawyers" (2011, Brookings Press).

[Crafty_Dog]

http://www.nytimes.com/2012/03/20/business/for-lsat-sharp-drop-in-popularity-for-second-year.html?nl=todaysheadlines&emc=edit_th_20120320

[bigdog]

  is this unprecedented?
« Reply #876 on: Today at 02:12:44 PM »     

--------------------------------------------------------------------------------

http://www.cbsnews.com/8301-504564_162-57408827-504564/appeals-court-fires-back-at-obamas-comments-on-health-care-case/

Appeals court fires back at Obama's comments on health care case

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Overturning a law of course would not be unprecedented -- since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise -- despite the president's remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

I've reached out to the White House for comment, and will update when we have more information.

CBSNews.com Special Report: Health Care Reform 

[Crafty_Dog]

BD:

Before she was a Justice, Kagan worked on the passage of Obamacare.   My understanding is that this means she should recuse herself from the Obamacare decision.  She has not.

What are your thoughts on this?

[DougMacG]

Yes, I also am interested to know BD latest thoughts on this.  It did seem Kagan stayed somewhat in the background on questioning.  My understanding is that she largely denies the involvement Crafty suggests and it is her own decision to make on recusal.  OTOH, critics want to know details of a 2 month Nixon-like gap in her govt email record ot know her involvement and dishonesty IMHO would set up a political case for impeachment - that I'm sure will never happen...

Remember Thomas' critics were also strong on recusal for his wife's political involvement.

[bigdog]

Recusal is completely up to the justice to determine.  There have been many recent examples in which Democrats/liberals called for a conservative justice to recuse himself.  DMG notes but one.  There were calls for Scalia to recuse himself when his hunting partner, VP Cheney, had a case before the court about extended executive privilege to the vice president.  According to former Chief Rehnquist, "There is no formal procedure for court review of the decision of a justice in an individual case," Rehnquist said in a letter to Democratic Sens. Patrick J. Leahy of Vermont and Joe Lieberman of Connecticut. "That is so because it has long been settled that each justice must decide such a question for himself" (see http://articles.latimes.com/2004/jan/27/nation/na-duck27 for citation).  In the end, unless there is a written rule, it is up to the justice to decide.  While I sometimes disagree vehemently with justices' decisions in this regard, I like it being up to the justice.  By the way, the decision in Marbury v. Madison, which seems to be getting a good deal of reading in the wake of the president's comments about the USSC ACA case, is a very fine example of when recusal should have occurred. 

[Crafty_Dog]

Understood.

I'd like to ask you to take it a step further.

SHOULD Kagan have recused herself?

Would an appellate or trial judge with similar connection to a case have to recuse?

[bigdog]

And the letter:

http://legaltimes.typepad.com/files/doj_letter_smith.pdf

  is this unprecedented?
« Reply #876 on: Today at 02:12:44 PM »     

--------------------------------------------------------------------------------

http://www.cbsnews.com/8301-504564_162-57408827-504564/appeals-court-fires-back-at-obamas-comments-on-health-care-case/

Appeals court fires back at Obama's comments on health care case

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Overturning a law of course would not be unprecedented -- since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise -- despite the president's remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

I've reached out to the White House for comment, and will update when we have more information.

CBSNews.com Special Report: Health Care Reform 

[bigdog]

Probably, at least due to the appearences.  And, yes, those matter: "Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge," provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." (citation below)

However, this http://en.wikipedia.org/wiki/Judicial_disqualification discusses the history of recusals, and offers one (and the implication) that I had not heard of. 

Understood.

I'd like to ask you to take it a step further.

SHOULD Kagan have recused herself?

Would an appellate or trial judge with similar connection to a case have to recuse?

[bigdog]

http://www.usatoday.com/news/opinion/forum/story/2012-04-02/supreme-court-obamacare-kennedy/53953470/1

"Justice Anthony Kennedy is, in a sense, the king of the United States of America. As the deciding vote on the U.S. Supreme Court in dozens of important cases where the liberals and conservatives are evenly divided, he has become, in effect, a jurisprudential monarch (hence columnist Mark Steyn's nickname for him, "the Sultan of Swing"). He has been the final word on everything from the 2000 Bush-Gore presidential election to partial-birth abortion and terrorist detention. And now he will, in all likelihood, decide the constitutionality of the Patient Protection and Affordable Care Act— aka ObamaCare."

[bigdog]

http://www.nytimes.com/2012/04/04/opinion/dowd-men-in-black.html

"How dare President Obama brush back the Supreme Court like that?

Has this former constitutional law instructor no respect for our venerable system of checks and balances?

Nah. And why should he?

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once it gives the last word, is well on its way to becoming one of the most divisive in modern American history."

[G M]

http://www.breitbart.com/Big-Government/2012/04/03/The-Vetting-Incorrect-Lochner-Reference-Shows-Derrick-Bells-Influence-on-Obama

The Vetting - Lochner Reference Shows Bell's Continuing Influence on Obama
 


by Joel B. Pollak

In continuing his attack on the Supreme Court on Tuesday, President Barack Obama made a mistaken reference to the Lochner decision--an error that suggests just how deeply Derrick Bell affected his thinking about the Court and the Constitution.
 
James Taranto of the Wall Street Journal noted that Obama, facing questions from journalists, had cited the case of Lochner v. New York (1905) as the last time the Supreme Court had overturned an economic law passed by Congress:
 

Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we're going back to the '30s, pre-New Deal.
 
Obama was wrong on three counts: Lochner was not decided in the 1930s; it was not the last time an economic law was overturned; and it involved a state law, not a federal one.
 
But Obama's interpretation of Lochner is an interesting one, and points directly to the influence of Derrick Bell and his radical Critical Race Theory approach to constitutional jurisprudence.
 
Law students are typically taught about Lochner as a cautionary tale, a fable about the evils of a conservative judiciary determined to strike down economic legislation, allegedly to protect entrenched interests.
 
The dissenting opinion of Justice Oliver Wendell Holmes, Jr., is often cited--in particular, his declaration that the Constitution does not enshrine laissez faire economics or "Mr. Herbert Spencer's Social Statics." But law professors often leave out Holmes's full statement, in which he also says the Constitution does not embody economic "paternalism," either.
 
The true context of Lochner was not a judicial system determined to defend the rich, but one determined to defend the freedom of contract--which, in the post-Civil War era, was felt to be a necessary corrective to laws and decisions that had protected slavery.
 
The Supreme Court of the New Deal era, after pressure from President Franklin Delano Roosevelt, eventually abandoned Lochner and granted the federal government far greater power to regulate economic activity.
 
For left-wing legal pundits, like CNN's Jeffrey Toobin, that switch--following presidential bullying--was enough to establish that "national economic problems require national solutions," and ought to have paved the way for Obamacare.
 
This was an opinion seconded by Derrick Bell. For Bell, the Lochner case was particularly important. In the same 1984 speech in which he elucidated views on the Warren Court that Obama echoed years later, Bell spoke about the Lochner decision in detail as the last gasp of conservatism -- a conservatism, he does not bother to add, that must die an ignominious death:
 

The deep depression of the 1930s brought an end to the Lochner era, a 50 year period when the Supreme Court and much of the country espoused substantive due process and, often enough, summary invalidity for any government measure intended to aid the poor or alleviate the worst abuses of big business. It required the perspective provided by the country's economic troubles for the realization to sink in that the right of contract and the protection of property rights would be meaningless under anarchy...
 
The Court decided that the error of the Lochner era was its involvement in economic arrangements, and it promptly withdrew Fourteenth Amendment protection from those claiming economic-based discrimination at the hands of the state....
 
For Bell, the Lochner case was important because it represented the last gasp of conservative jurisprudence.
 
It is noteworthy, then, that Obama went straight to Lochner in looking for a Supreme Court precedent overturning an economic law, and that he thought it had been decided more recently than 1905.
 
Just as Obama used Bell's legal writings to shape his students' understanding of the Constitution, so they continue to shape his own.

[bigdog]

http://usnews.msnbc.msn.com/_news/2012/05/08/11585227-president-obama-stingy-on-pardons-says-clemency-expert?lite

[Crafty_Dog]

http://www.nytimes.com/2012/09/16/business/in-prosecutors-debt-collectors-find-a-partner.html?nl=todaysheadlines&emc=edit_th_20120916

[Crafty_Dog]

A Liberal Who Preached Restraint
In his letters, as on the bench, Judge Learned Hand argued against judicial activism. .
By ADAM J. WHITE

If modern constitutional law has a bedrock rule, it is this: Brown v. Board of Education was correctly decided. To argue, even to imply, that the Supreme Court erred when it ended school segregation in 1954 is to exile oneself from respectable constitutional debate. "Such is the moral authority of Brown," constitutional scholar Michael McConnell wrote in 1995, "that if any particular theory does not produce the conclusion that Brown was correctly decided, the theory is seriously discredited."

Only one jurist has condemned Brown without losing his reputation, and he accomplished that feat only because he had established himself as one of the greatest judges in American history. In 1958, near the end of his half-century of service on the federal bench, New York's Judge Learned Hand used a Harvard lecture series to criticize what he saw as the Supreme Court's unprincipled judicial activism in desegregating the schools. Yet just three years later, no less a civil-rights champion than Bobby Kennedy would remark, upon Hand's death, that "he was one of the great legal minds of our history, ranking with John Marshall and Oliver Wendell Holmes."

Judge Hand rejected Brown not in spite of his progressive values but because of them. That is the major lesson imparted by "Reason and Imagination," a collection of Hand's selected correspondence edited by Constance Jordan (a retired English professor and Hand's granddaughter). The book traces Hand's intellectual journey through the words of Hand himself and those of his correspondents, especially his friends Felix Frankfurter and Walter Lippmann. It becomes clear, over the course of these letters, that the views that propelled Hand to acclaim in the first half of his career were also those that, retained with increasing rigidity and even bitterness, put him at odds with the defining legal decision of his lifetime.

Learned Hand was born in Albany, N.Y., in 1872. From his father, a lawyer, he inherited a profession; from his mother, Lydia Learned, he received his memorable name. "Learned" was, in fact, his middle name; born Billings Hand, he dropped his given name in his 20s. He studied philosophy and law at Harvard, graduated in 1896 and returned to Albany to practice law. Like his idol, Oliver Wendell Holmes Jr., Hand would find little fulfillment in the practice of law; unlike Holmes, Hand sought refuge in politics. Moving to New York in 1902 in pursuit of an interesting caseload, he soon became enamored of progressive Republican politics.

In one of the first letters presented by Ms. Jordan, a note to his cousin Augustus Hand (a future colleague on the U.S. Court of Appeals for the Second Circuit), Hand rejected the "doctrinaire individualism" of his Democratic family and embraced the view "that in a vast multitude of cases the State must and should regulate the conduct of individuals for their own welfare and modify the contractual relations which they assume towards one another."

Hand would meet Teddy Roosevelt before TR became governor; he would befriend the progressive movement's leading voice, Herbert Croly, not long after. The two affiliations, it could be said, helped to change American history. By sending TR an advance copy of Croly's "The Promise of American Life," Hand introduced TR to the "New Nationalism" that would define TR's post-presidential political life, leading TR to re-enter politics in 1912, stripping the White House from William Taft and the Republicans, and handing it to Woodrow Wilson and the Democrats. Hand would also help Croly found the New Republic magazine, to which he contributed unsigned pieces. Bored with legal practice, he secured an appointment to Manhattan's U.S. District Court for the Southern District of New York.

The legal philosophy that Hand employed as a judge, and that he extolled in his widely read essays, was the judicial restraint preached by the progressive reformers of Hand's youth. Just weeks after Hand entered Harvard Law School, the law review published James Bradley Thayer's "The Origin and Scope of the American Doctrine of Constitutional Law," an article that guided Hand's lifelong judicial philosophy.

In an era dominated by the Supreme Court's nullification of state laws concerning public health, safety and labor, Thayer argued that the courts should defer to state legislatures and uphold state laws—that is, progressive reforms of state laws—unless the laws' unconstitutionality was "so clear that it is not open to rational question." Because the people's government must respond to "great, complex, ever-unfolding exigencies," the courts must stay their hand, Thayer said, lest they take on the power of an unelected super-legislature.

Hand's debt to Thayer is reflected in Ms. Jordan's choice, to begin the book, of a letter from Hand to "My dear Mr. Thayer" a year after Hand graduated from Harvard. Hand later took up Thayer's theme in a 1911 letter to Frankfurter: The "stand-patters," he wrote, ". . . want to put the whole weight of government on nine elderly gentlemen at Washington." Hand's own belief was that the court "ought not to exercise [the power of judicial review] at all." Instead, as he wrote in a letter to Frankfurter 40 years later, a judge applying a statute should try to "imagine" what outcome the original legislators would have intended. (Hence Ms. Jordan's choice of book title.)

Early in his career, when his progressive political preferences enjoyed wide public support, Hand was a proud democrat, in the small-d sense: Whatever the flaws of the vox populi, legislatures were "the most capable engine of government." Over time his version of progressivism would lead him to shift his political allegiance from the Republican Party to FDR. Still, he continued to defend judicial restraint, not activism, out of a suspicion of the judiciary's elitist prejudices. He warned a correspondent that "judges drawn from one economic class feel free to make the law on their own 'hunches,' and those hunches have corresponded to the unconscious prejudices of their class."

Because Judge Hand had quickly risen to prominence in progressive circles, many hoped that he would rise all the way to the Supreme Court. But in 1930 President Herbert Hoover passed him by for an open seat. It was the closest Hand would come to the high court. Hand had played down his prospects: "The chances are so remote," he told Frankfurter, "as to be merely in the realm of mathematical possibilities." Even so, he was disappointed. In a letter to his wife, he confessed that the nomination "was in my thoughts all the time; it made a kind of coward at me."

It was perhaps the most touching moment of Hand's career; inexplicably, Ms. Jordan omits that letter from "Reason and Imagination." Those searching for it must turn to Gerald Gunther's superb 1994 biography, "Learned Hand: The Man and the Judge."

Ms. Jordan's omits other letters between Hand and his wife, Frances, including any that might shed light on Hand's reaction to his wife's long relationship with Louis Dow, a Dartmouth professor of French. (Dow and Frances were frequently in each other's company and even traveled to Europe together.) When Hand vaguely alludes to "F.H. or Louis Dow" in a letter, the reader is left clueless about Hand's pain. For excerpts from the letters between the Hands, or between Judge Hand and Dow, one must go again to Gunther's biography, which describes the "jealousy and inadequacy" that Dow likely stirred in Hand.

Ms. Jordan focuses instead on Hand's political and judicial philosophy, which took on a decidedly pessimistic color as the years passed. His hero, Justice Holmes, once wrote that "if my fellow citizens want to go to Hell I will help them. It's my job." In a similar tone, in a 1950 letter, Hand decries "the infantile beliefs of so many of our fellows." Still, he sticks with judicial restraint. As he once explained to Lippmann: "We are in for democracy, and while I am as shaken as you, I ask for any available substitutes."

Thus the letters in "Reason and Imagination" offer a narrative arc: Hand adopted a firm philosophy of judicial restraint early in life, as a means toward progressive political ends—and stuck with the philosophy, as the years passed, as an end in itself. Decades later, as FDR replaced the conservative Supreme Court of Hand's youth with a court stocked with liberals and progressives, Hand was unwilling to rethink his views, even if the court's decisions were likely to be more in line with his political outlook.

The next generation of constitutional scholars, such as Alexander Bickel and John Hart Ely, would construct theoretical defenses for the courts' liberal rulings on issues of race and social justice. Brown v. Board of Education was their victory but Hand's defeat. His career confirms Antonin Scalia's warning, years later (before Mr. Scalia himself joined the court), that, "unfortunately, a tactic employed for half a century tends to develop into a philosophy."

Once Hand's gospel of extreme judicial restraint fell out of favor, scholars and judges, such asWilliam Rehnquist, praised him in the neutral terms of "craftsmanship." In 1958, Hand himself had said in a lecture, referring to judges and lawyers: "It is as craftsmen that we get our satisfaction and our pay."

In 2009, Justice David Souter quoted those lines in his farewell address to a conference of federal judges. But to focus on the virtues of craftsmanship leaves one vulnerable to its vices. As Richard Sennett wrote in "The Craftsman" (2008): "The obsession with getting things perfectly right may deform the work itself." There can be no better example of this danger than Judge Hand. The 1958 lectures in which he offered his ode to "craftsmanship" were the same lectures in which he condemned Brown v. Board of Education.

[Dog Pete]

Woof Marc,

Saw this post and was curious to the meaning of "special relationships"? Any feedback?

http://en.wikipedia.org/wiki/Warren_v._District_of_Columbia

[Crafty_Dog]

I've no comment on the particular meaning of "special relationship" here, but will say that the lack of duty to protect, as disconcerting as it can be, is pretty standard stuff-- a and a good point to keep in mind when considering our gun rights!  Our GM around here has a strong background in law enforcement law related matters. Perhaps he can chime in.

[DougMacG]

"The public-duty doctrine holds that the government and its officials owe a legal duty to the public at large but not to any individual citizen....two exceptions... the “danger creation exception” and the “special-relationship exception."  http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=1172&issue_id=52007

"If a suspect is taken into custody by law enforcement, a duty to protect -be it at the scene, during transport, or at the jail-exists.7 The majority of courts require a person to be in physical custody of police before that person has a special relationship with police."..."One federal district court has held a special relationship between the state and a confidential informant existed, and thus there was a duty to protect."  http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=341&issue_id=72004

[G M]

Doug pretty much nailed it. In addition, there is this:

CASTLE ROCK v. GONZALES
--------------------------------------------------------------------------------

Case Basics
Docket No.
04-278
Petitioner
Town of Castle Rock, Colorado
Respondent
Jessica Gonzales, Individually and as Next Best Friend of Her Deceased Minor Children, Rebecca Gonzales, Katheryn Gonzales, and Leslie Gonzales
Decided By
Rehnquist Court (1994-2005)
Opinion
545 U.S. ___ (2005)
Granted
Monday, November 1, 2004
Argued
Monday, March 21, 2005
Decided
Monday, June 27, 2005 
Advocates
John C. Eastman
(argued the cause for Petitioner)
John P. Elwood
(argued the cause for Petitioner)
Brian J. Reichel
(argued the cause for Respondents)
TagsDue Process Miscellaneous  Term: 2000-20092004
Facts of the Case
Jessica Gonzales requested a restraining order against her estranged husband. A state trial court issued the order, which prohibited the husband from seeing Gonzales or their three daughters except during pre-arranged visits. A month later, Gonzales's husband abducted the three children. Gonzales repeatedly urged the police to search for and arrest her husband, but the police told her to wait until later that evening and see if her husband brought the children back. During the night Gonzales's husband murdered all three children and then opened fire inside a police station, where police returned fire and killed him. Gonzales brought a complaint in federal District Court, alleging that the Castle Rock police had violated her rights under the Due Process Clause of the Constitution by willfully or negligently refusing to enforce her restraining order. The Due Process Clause states: "No state shall...deprive any person of life, liberty, or property, without due process of law..." The District Court dismissed the complaint, ruling that no principle of substantive or procedural due process allowed Gonzales to sue a local government for its failure to enforce a restraining order. On appeal, however, a panel of the Court of Appeals for the Tenth Circuit found that Gonzales had a legitimate procedural due process claim. A rehearing by the full appeals court agreed, ruling that Gonzales had a "protected property interest in the enforcement of the terms of her restraining order," which the police had violated.

Question
Can the holder of a restraining order bring a procedural due process claim against a local government for its failure to actively enforce the order and protect the holder from violence?

Argument
Castle Rock v. Gonzales - Oral Argument
Full Transcript Text  Download MP3
Castle Rock v. Gonzales - Opinion Announcement
Full Transcript Text  Download MP3
Conclusion
Decision: 7 votes for Castle Rock, 2 vote(s) against
Legal provision: Due Process
No. In a 7-2 decision, the Court ruled that Gonzales had no constitutionally- protected property interest in the enforcement of the restraining order, and therefore could not claim that the police had violated her right to due process. In order to have a "property interest" in a benefit as abstract as enforcement of a restraining order, the Court ruled, Gonzales would have needed a "legitimate claim of entitlement" to the benefit. The opinion by Justice Antonin Scalia found that state law did not entitle the holder of a restraining order to any specific mandatory action by the police. Instead, restraining orders only provide grounds for arresting the subject of the order. The specific action to be taken is up to the discretion of the police. The Court stated that "This is not the sort of 'entitlement' out of which a property interest is created." The Court concluded that since "Colorado has not created such an entitlement," Gonzales had no property interest and the Due Process Clause was therefore inapplicable. Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, dissented.

And this:

http://www.nypost.com/p/news/local/brooklyn/to_serve_but_not_protect_Qr3ume5gEhMhtg8LvHgzAI?utm_campaign=OutbrainA&utm_source=OutbrainArticlepages&obref=obinsource

City says cops had no duty to protect subway hero who subdued killer
By KATHIANNE BONIELLO
Last Updated: 5:56 PM, February 1, 2013
Posted: 1:03 AM, January 27, 2013
He says he put his life on the line to stop a killer — and claims cops sat back and watched.

But city lawyers are arguing that the police had no legal duty to protect Joseph Lozito, the Long Island dad stabbed seven times trying to subdue madman Maksim Gelman — a courtroom maneuver the subway hero calls “disgraceful.”

A judge is currently deciding whether Lozito, who sued the city last year for failing to prevent the attack, will get his day in court.

The drug-fueled Gelman had fatally stabbed three people in Brooklyn and killed another with a car during a 28-hour rampage when he entered an uptown No. 3 train on Feb. 12, 2011.

 
Theodore ParisienneGOT HIM! Officer Terrance Howell escorts murder-spree maniac Maksim Gelman from Brooklyn’s 61st Precinct.Police officers Terrance Howell and Tamara Taylor were part of a massive NYPD manhunt. They were in the operator’s cab, watching the tracks between Penn Station and 42nd Street for any sign of the fugitive. Lozito was seated next to the cab.

In the official NYPD account and Howell’s own affidavit, Howell heroically tackled and subdued the killer. But Lozito tells a different story.

The 42-year-old mixed-martial-arts fan says he watched Gelman approach the cab window, barking: “Let me in!” Gelman even claimed to be a cop, but a dismissive Howell turned away, he says.

Gelman walked off. A straphanger recognizing Gelman tried to alert the cops, but was also rebuffed. A minute later, Gelman returned and set his sights on the 6-foot-2, 270-pound Lozito.

“You’re going to die,” Gelman announced — then stabbed him in the face.

Lozito leapt from his seat and lunged at the 23-year-old Gelman as the psycho sliced at him.

“Most of my wounds are in the back of my head,” Lozito said. “He got to the back of my head because my left shoulder [was] in his waist.”

In his account, Lozito pinned Gelman to the floor, disarming him. Howell then emerged from the booth, tapping Lozito’s shoulder: “You can get up now,” he said.

“By the time he got there, the dirty work was already done,” Lozito said.

Gelman was convicted in the spree — which left his girlfriend, her mother, his stepfather and a pedestrian dead, and five others injured.

Lozito says a grand-jury member later told him Howell admitted on the stand that he hid during the attack because he thought Gelman had a gun.

An angry Lozito decided to sue the city for negligence, arguing the cops should have recognized Gelman and prevented, or reacted more quickly to, the assault.

The city routinely settles such litigation but is playing hardball with Lozito, insisting his demand for unspecified money damages be tossed because the police had no “special duty” to protect him or any individual on the train that day.

“Under well-established law, the police are not liable for such incidents,” said city lawyer David Santoro. “That doesn't detract from the Police Department's public safety mission -- or the fact that New York is the safest big city in America."

Experts say it’s a long-standing legal precedent requiring police to put the public safety of all ahead of any one individual’s rights.

Lozito says his case is different.

“If the cop is on the train, and I get robbed by a stranger, of course, the cop can’t be clairvoyant,” Lozito told The Post. “But when they’re looking for Maksim Gelman, and Maksim Gelman bangs on the door and says, ‘Let me in, I’m a cop’ and all you say is: ‘No, you’re not?’ ”

1. Joseph Lozito enters the uptown No. 3 train, sitting behind the train operator. Officers Terrance Howell and Tamara Taylor enter the operator’s booth; a few minutes later, the train slowly pulls out of Penn Station.

2. Maksim Gelman walks up to the booth and says: “Let me in!” Howell allegedly dismisses him and Gelman walks away.

3. Minutes later, Gelman walks back up to the booth, looks at Lozito, says “You’re going to die,” and stabs him.

4. Lozito fights back, getting seven stab wounds during the 60-second struggle with Gelman, eventually pinning him and knocking the knife away.

5. Howell allegedly emerges from the booth, taps Lozito on the shoulder and says: “You can get up now.”

kboniello@nypost.com

[bigdog]

http://www.justice.gov/opa/pr/2013/January/13-crt-056.html

vs.

http://www.wwltv.com/news/eyewitness/brendanmccarthy/DOJ-blast-citys-attempt-to-void-NOPD-consent-decree--191486911.html

[ccp]

If my understanding is correct the present medical community thinking is surgeons who carry blood born transmissible diseases such as Hepatitis B or C or HIV should be allowed to practice their craft being that there is a bidirectional duty to protect themselves and their patients with proper precautions.   Sterile technique gloves etc.  In practice it has not been rare though it seems the exception for me to see patients getting HIV test  before surgery.  I am not sure who ordered the tests or why but I suspect it was the surgeon looking to protect him/herself.   Yet I have never heard of an infected surgeon disclosing to a prospective patient that he or she is infected.   One can argue the surgeon has the right to privacy and to not be discriminated against.  But I would err on the side that the patient has the right to know they are or might be at increased risk to contract a chronic infection by undergoing an invasive procedure from an infected surgeon.    Indeed, I frankly take the position that an infected person has no business performing procedures on patients.   Would I or you or anyone in their right mind want someone to do a bloody procedure such as opening your belly or your chest etc if I you knew the surgeon was HIV positive.  Gloves will not protect from an accidental scalpel cut.   On the other hand I see no reason why someone cannot be a doctor in a nonsurgical specialty.

http://news.yahoo.com/feds-hepatitis-b-no-barrier-health-practice-144109082.html