My first duty upon arriving at work in the morning is to scan through the newspapers, looking for any news that's relevant to CRDF. The Moscow Times and Itar-Tass have been providing much of my FSU news, but, thanks to this article on Kazakhstan's response to train robbers---horse-mounted patrols---I'll have to join Nathan's MosNews Appreciation Society and add that paper, too. Soldiers joy-riding a tank to the vodka stand should be called to the office's attention as a matter of national security. (MosNews's choice of photo for the mounted police story, though, looks like Muscovites poking fun of southern Kazakhs: tourists are just about the only folks who live in yurts these days.)

MosNews’s take on the Michael Jackson acquittal is interesting not for its assumption that the verdict was preordained, but for what it praises in our jury system. There's much in the article that seems confused---the distinction between O.J. Simpson's criminal and civil prosecutions---or pulled out of thin air---that America is insufficiently puritan, or sufficiently star-struck, that being a celebrity defeats charges of child molestation (Roman Polanski doesn't think so). The beliefs in this article are more important than the assertions.

Russia recently saw the trial of one of its own celebrities----Mikhail Khodorkovsky, the nation's wealthiest man. He was convicted and sentenced to 9 years. He was also in disfavor with the Kremlin. Given a choice between being on the wrong side of Putin and the wrong side of the Puritans, experience is showing it's best to go with the latter because in the former, you're probably not going to have a jury.

A jury doesn't always get the "right" answer: in the case of Jackson, the article finds the jury gave a "blatant[ly]" wrong verdict because the people were "so awed by the close proximity of a superstar that they grew too languid to put him behind bars." In this analysis, when celebrity turns the day, it's a sign of hopeful progress. Other factors outside of evidence presented at the trial, like the ever-present issue of race or nationality, did not foreordain the result. The article implies that, in time, juries wise up to the race card and any other cheap tricks, rendering them far less effective, and making counsels resort to better lawyering.

It’s a touching homage: from the not-dishonest mistakes of men, fairer courts are born.

In this case, even if they were mistaken from the judicial point of view, it is not very important for the justice system in general. Because it is precisely such “blatant” – in terms of the behavior of the jury – cases that don’t destroy, but only strengthen the nation’s court system as a whole. The prosecution will be better prepared for future accusations by doing a more thorough job of searching for evidence which will have to appear to be irrefutable to the most well-wishing of juries. The defense lawyers will have to look for better methods and argumentation, since the oft-used and seemingly “cheap” approaches (such as playing the race card) are already devaluating. The judges will have to make sense of all these strategems, thereby only raising their professional level and objectivity. They will have to grow immune to the most cunning of designs from both the prosecution and the defense.

And, in the end, failures (if it really is a failure) in such high-publicity cases as “Jackson’s pedophilia” will turn into victories in fairness for thousands of accused and their victims in the little-noticed court cases where the lives of average men and women are either broken or rescued. And that is the greatest achievement of the “mistakes” made by juries. The alternative is the “exactitude” of the Basmanny Court. And not just in the case of Mikhail Khodorkovsky.

Nope - I can't help adding more thoughts on Kelo. A few things occur to me as I mull the decision over.

1) The eminent domain doctrine is an exceptionally hard doctrine to explain to laymen in a persuasive way. I spent the half hour walk to Whole Foods this afternoon (buying olives, garlic, and anchovies for tapenade - more on that some other time) on the phone attempting to explain the issues to my mother, who was outraged. Fascinating to me was that the hang up was the takings doctrine itself, not Kelo's startling expansion. By the time I got to that, my mom's indignation was palpable.

2) I think Kelo is another example of something I wrote about in March - the importance of the Chief Justice as leader, rather than as simply first among equals. Orin Kerr at Volokh notes that O'Conner's dissent has the hint of a draft majority opinion. Maybe a healthier Chief would have brought the majority with him?

3) The lesson of the last few months, for me at least, appears to be that Justice Kennedy's promised (in Lawrence) libertarian revolution stops where the Constitution's text begins. Non-existent (if welcome, in ways) rights to sodomy? Sure, they can be implied from the constitution. And yet, the merest of rational basis reviews for expressly guaranteed property rights. Baffling.

I hesitate to make such an obvious point, but-- one virtue of the Kennedy "I might grant heightened review later" concurrence, the Stevens "we will deal with abuses when we sit it" opinion as well as the "go enforce other constitutions in other courts" opinion is that it leaves a lot of work, and a lot of litigation to be done, much of it state by state, case by case. This takes time and it takes money. If you have enough to spare on charity and social justice, consider giving some, even a little, to The Institute for Justice or other groups that will be at the front line of the next round of litigation. Contra both Professor Garnett and Professor Merrill, I think they've been doing pretty well so far.

[Disclosure: The author of this post works for IJ, but posts this entirely at his own initative, and with some embarassment.]

I leave to the smarter people on this blog to discuss Kelo as law. I have only this brief snippet of conversation to share, from a break in our Bar Bri session a few minutes after the dread case came down. A group of us had gathered to complain, not having read the opinion as yet:

Friend: I haven't read the decision yet, but I think the Court based their decision on deference to the legislature - that this is the kind of thing politicians should decide.

Me: But that can't be right - what could be more "emphatically" the province of the courts than something like the definition of public use?

Friend: Good question.

The first paragraph of Justice Thomas's dissent:

Long ago, William Blackstone wrote that “the law of the land … postpone[s] even public necessity to the sacred and inviolable rights of private property.” 1 Commentaries on the Laws of England 134—135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “ ‘[P]ublic [P]urpose’ ” Clause, ante, at 9—10 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”

Also, commentary (from Richard Lazarus) has begun on the SCOTUSBlog Discussion site.

The trouble with blogging under one's real name while one is still in law school and quite low on all of the relevant totem poles is that one wants to avoid saying things on one's blog that one will regret. Therefore, it will be a little bit before I manage to articulate further anything coherent about Kelo.

The opinions are here.

Kelo loses. More to come....

More: My Land Use professor hoped for and predicted exactly what happened-- an opinion about the virtues of private property, deference, and a call to litigants to turn to the states for litigation, not the federal government. O'Connor's (!) stinging dissent gets this about right:

States play many important functions in our system of dual sovereignty, but compensating for our refusal to enforce properly the Federal Constitution (and a provision meant to curtail state action, no less) is not among them.

The consequences of today's decision are not difficult to
predict, and promise to be harmful. So-called "urban renewal" programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect "discrete and insular minorities," United
States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages "those citizens with disproportionate influence and power in the political process, including large corporations and development firms" to victimize the weak.

Via various folks I see that Professor Picker will be running a Grokster/Brand X blog when the relevant Supreme Court decisions come down. This blog will include previous guest-blogger Doug Lichtman as well as Lior Stahilevitz, Larry Solum and many other exciting folks. This is cool; I intend to keep an eye on it.

It is not often that I manage to garner so little disagreement in response to something I post, but such disparate voices as Dan Moore, Paul Goyette, and an anonymous reader all agree with my previous post that Ian Ayres's suggestion for apologetic weddings is just a lousy idea. The anonymous reader writes:

I agree with you completely. And I speak with somewhat more authority on this subject than most people. Not only am I a gay man in a committed relationship, but also I happen to be on my way this very weekend to a heterosexual wedding in Washington State. The ultra-liberal, Yale- and Princeton-educated couple who are getting married are just the sort of people who might be encouraged to do something like this. Fortunately, they did not. They sent X and me a wedding invitation addressed the same way, and worded the same way, as all the invitations they sent to other couples. THAT, not embarrassing us by singling us out, is how someone who believes our relationship deserves dignity can give it the dignity it deserves.