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July 20, 2005

Roberts Chit-Chat

The whispered discussions here at the law school about nominee Roberts have been whipping around all day, and they've been very positive in my circle. One enterprising classmate of mine found this wonderful exchange between Senator Feingold and Roberts in the follow-up questions to their hearing - I would credit the person, but I got the cite third-hand. Italics added, and the document in PDF where this was found, here (p. 422)

Senator Feingold: "As a student, you wrote a law review note on the Takings Clause that was published in the Harvard Law Review in 1978. One of your arguments was that the emotional attachment property owners have for their property should be considered in determining the appropriate level of compensation. Do you still hold that view of the Takings Clause?"

Response: "I have reviewed the note in question, 91 Harv. L. Rev. 1462-1501 (1978), and can find no place where I argued that the emotional attachment property owners have for their property should be considered in determining the appropriate level of compensation. I do not recall thinking that then and do not believe now that the law requires considering emotional attachment in determining just compensation. The note stated that "current rules regarding what constitutes just compensation are fairly well established and uniformly applied. Generally, the state must pay the property holder the fair market value of the property taken." Id. at 1498. In any event, I would, if confirmed as a circuit judge, follow Supreme Court precedent in this area, as in any other. I would not follow my student note; no one else has.


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In praise of Roberts

There will be much digging and arguing about whether or not Judge Roberts is a good (or bad) conservative, originalist, and whatever else. This would be interesting enough if it were not already a foregone conclusion that-- barring an unexpected discovery that Judge Roberts has committed a felony-- he will be confirmed.

But whatever else, he is clearly going to be a great judge. I have finally read his opinion in Hedgepeth, the case where a 12-year-old girl was arrested, handcuffed, and taken to the police station for eating one french fry in the Tenleytown station. (The opinion is available here, and is worth reading.)

The opinion is clear, engaging, and honest-- the sort of thing that makes one believe in the case method of legal education again. I will leave the dickering over his substantive opinions to the U.S. Senate and others.

Because I cannot resist, I offer the opening to Roberts's opinion:

No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later — all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as ‘‘foolish,’’ and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.


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Little Lochners

My newest Conglomerate post, Little Lochners, is up. I defend Lochnerish principles being enshrined in state constitutions.


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