The Blogora: The Rhetoric Society of America
legal rhetoric


Judicial Sense-Making

Submitted by Jim Aune on May 19, 2010 - 11:58am

My recently-PHD'ed advisee Ryan Malphurs teaches us some important things about oral arguments before the Supremes here.


US v. Comstock

Submitted by Jim Aune on May 17, 2010 - 12:25pm

An interesting 7-2 decision today, affirming the use of civil commitment to keep convicted sex offenders in jail for longer than their sentences. Scalia and Thomas dissent. The highly elastic reading of the "necessary and proper clause" continues to bother me, but I'm not losing any of my civil libertarian sleep over this. If there is actual empirical evidence that such a policy deters crime, and if there are procedural safeguards in place, for me utility here trumps rights.


CLS v. Martinez Revisited

Submitted by Jim Aune on April 28, 2010 - 12:44pm

A pretty persuasive defense of the Martinez/UC-Hastings side of the case. The problem, though, as appeared in the oral argument, is the murky nature of the stipulated facts in the lower courts, and I have this feeling that the majority may duck the substantive issues in the name of "minimalism."


The Need for Bright Lines

Submitted by Jim Aune on April 26, 2010 - 1:06pm

I'm still puzzling over US v. Stevens (the animal cruelty video case). My, admittedly tentative, opinion at the moment is that Alito's dissent is right: there is such a close connection between the video depiction and illegal acts that normal free speech principles should not apply here. If, yes, the law is overbroad--the main point of the 8-justice majority), it remains unclear how to draft it more narrowly.


Christian Legal Society v. Martinez

Submitted by Jim Aune on April 19, 2010 - 8:45am

The Supremes hear oral arguments in the UC-Hastings Law School case today, involving the right of a "Christian" group on campus to exclude GLBT folk, in violation of the University's anti-discrimination policy. Useful (if slanted) background here. I don't see how Hastings can win this case, either on the merits or on the numbers of justices. Do I wish CLS would dry up and blow away? Yes.


C-Span Video Treasures

Submitted by Jim Aune on March 21, 2010 - 2:19pm

There's a lot of good stuff in C-Span's video vault. Here's a tribute to the great Justice Hugo Black on the 25th anniversary of his death.


Free Speech, Freedom of Association, Free Exercise, Academic Freedom

Submitted by Jim Aune on March 16, 2010 - 9:54pm

Oh, what a mess, and a good illustration of how narrowly clause-bound constitutional jurisprudence doesn't work. The "Christian Legal Society" (who appear never to have thought much about the sort of people Jesus hung out with) excludes gay members, and thus ran afoul of UC-Hastings Law School's nondiscrimination policy. The 9th Circuit and the 7th Circuit are split on the key constitutional question(s).


Humanitarian Law Project v. Holder

Submitted by Jim Aune on February 24, 2010 - 10:06am

I usually become a hard-core legal formalist on free speech cases, but this one is rather complicated, on national security grounds. I'm still in quest of a rhetorical theory of "incitement." NPR story here. [h/t to Ryan Malphurs]


Prop 8 Trial

Submitted by Jim Aune on February 1, 2010 - 6:33pm

Oral testimony is now over. William Eskridge provide a splendid summary of key arguments. Before the trial started, I was one of those who opposed the Olson/Boies strategy (and thought it was better to slog through the legislatures), but now I'm convinced that the strategy was right. The advocates for the defense have been so incompetent (and mendacious) that I don't see how Judge Walker can rule for them. And, eventually, it all depends on Justice Kennedy (who, as I noted before, attended Ted Olson's wedding last year).


Not Televising the Prop 8 Trial

Submitted by Jim Aune on January 13, 2010 - 8:17pm

The Supremes voted 5-4 to block video coverage--discussion and links to the unsigned opinion and Justice Breyer's rather pointed dissent is here. I understand the arguments against televising trials, but in this case it's clear that the Prop. 8 forces just don't want an open debate on this topic.