The Schmooze: Here is a great article from the Wall Street Journal discussing liberal lefties and conservative righties uniting around a form of constitutional interpretation based on the original intent of those who wrote the post Civil War Reconstruction amendments; as opposed to the intent of the Founding Fathers.

Rethinking Original Intent
The debate over the Constitution’s meaning takes a surprising turn; a pivotal gun-rights case

By JESS BRAVIN

Art Resource, NY

The nation’s founders in ‘The Signing of the Constitution,’ a 1940 painting by Howard Chandler Christy. A debate is building over how to interpret the document.

After the Supreme Court struck down the District of Columbia’s handgun ban last June, gun-rights advocates trained their sights on similar restrictions in Chicago and Oak Park, Ill. Last month, the National Rifle Association received ammunition from an unlikely source: the Constitutional Accountability Center, a liberal litigation shop.

In a brief filed with the federal appeals court in Chicago, the center not only argued that gun ownership is a constitutional right, it also employed the legal method popularized by such conservative icons as Supreme Court Justice Antonin Scalia. That method is originalism, which seeks to apply the law today according to the text’s meaning at the time of its adoption.

This new twist on originalism is gaining momentum, and its proponents hope it will lead courts to take a more expansive view of individual rights. Although nurtured by liberals — including some with close ties to the Obama administration — some conservatives are backing the broader application of the originalist method. In uniting some unusual allies, the Illinois gun-rights case could be the vehicle to correct what scholars on the left and right say is a 136-year-old constitutional wrong.

(l-r) Hulton Archive/Getty Images; LOC; Time Life Pictures/Getty Images; Getty Images

Progressive originalists are focusing on a clause in the 14th Amendment in their quest to change how the courts view individual rights. Click on the image for a look at the amendment’s history.

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The Constitutional Accountability Center brief served in effect as an intellectual loss leader for liberals frustrated by conservative success in the battle over the Constitution’s meaning. Douglas Kendall, the center’s head, says he personally supports gun control, but if courts embrace his arguments, the door could open to a new era of liberal jurisprudence.

So-called progressive originalism departs from the conservative strain by shifting focus from the 18th-century constitutional text to the three Reconstruction amendments ratified after the Civil War. The 13th, 14th and 15th amendments radically altered the structure of American federalism, elevating federal power over that of the states, and giving individual rights pre-eminence.

Viewed through the Reconstruction prism, the “Constitution turns out to be way more liberal than conservative,” says Yale law professor Akhil Reed Amar, a leading proponent of progressive originalism. “The framers of the 14th Amendment were radical redistributionists. The 13th Amendment frees the slaves and there’s no compensation,” he says. “It’s the biggest redistribution of property in history.”

By applying methods blessed by conservatives to the neglected texts and forgotten framers of the Reconstruction amendments, liberals hope to deploy Read the rest of this entry »

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The Schmooze: To put it simply, a broadband stimulus bill moving through Congress has had language put in, then taken out, but possibly put back in that will allow Internet Service Providers (ISPs) to inspect data transferred between users to check for copyrighted materials. This language, strongly lobbied for by Hollywood, would raise major privacy issues. Additionally, it would significantly weaken the “Fair Use” provision that allows the use of copyrighted works in certain circumstances. Though the most recent version of the bill had the language taken out, this morning the bill is in committee where it could be slipped back in. For more information, check out Public Knowledge’s blog. To send a letter to your Senator to express your objection to the inclusion of this language, click here.

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Below is a great post from Howard Wasserman over at Sports Law Blog. The article discusses the recent decision from the Wisconsin Supreme Court holding that cheerleading is a ‘contact sport” (see my previous post on the decision here). Specifically, Wasserman contemplates what the court’s holding could mean for Title IX. Enjoy.

Title IX and the definition of sport

Having read the Wisconsin Supreme Court’s decision in Noffke v. Bakke and Marc’s ATL post on its Title IX implications, let me weigh in.

First, the court relied on a dictionary to define sport as an “activity involving physical exertion and skill that is governed by a set of rules or customs.” This is, to my mind, far too broad a definition–more on that in a minute. The court also found that the statutory requirement that there be “physical contact” in the activity applied to more than aggressive physical contact with the opponent. It included any physical contact, with opponent or teammate, incidental or not. That seems right to me, for reasons I mentioned in an earlier post on the case–a lot of things that must be considered sport and that surely were intended to be covered by this statute (which was enacted to limit liability for sports injuries resulting from simply negligence) almost never involve direct contact with an opponent (e.g., baseball, tennis, volleyball, track, swimming).

Second, the court rejected any requirement that something be competitive in order to be a sport. And that actually makes irrelevant what I consider the central element of a meaningful definition of sport–objective scoring (as opposed to “judging”) and objective determinations of winners. The court’s main justification for this was the inconsistency it would produce–something would or would not be a sport depending on what the team was doing and when–whether it was practice or a game or whether the cheerleaders were leading cheers at a basketball game on Friday or participating in a competition on Saturday. This argument strikes me as silly. It would be rational enough to recognize that a team (say, the boys’ basketball team) has as its central goal or purpose to engage in competition, but that practice (in which score may not be kept) is necessary to achieve that purpose. Thus the Wisconsin statute should provide immunity for all activities related to that purpose of competing in games on Saturday, including practicing on Thursday. Same with che

This also is why I somewhat depart from Marc’s analysis. He makes much of the difference between those squads that engage in competitive cheerleading and those that merely are the “spirit squad” (leading cheers at games). But if competition is irrelevant to the definition of sport (assuming the Department of Education were to adopt the same definition for Title IX), it also is irrelevant whether a team engages in competitive cheering or spirit. Both are sports–activities involving physical exertion and skill, governed by a set of rules or customs. And what else falls within that broad definition? Dance team? Yes. Marching band? Why not. And with no requirement of competition or scoring, much less objective scoring, we do not even have to reach whether a particular band or team participates in competitions or not to define the activity as sport.

And that makes the Wisconsin Supreme Court’s definition of sport problematic for us in Title IX. For one thing, we have to think about Title IX not only as to NCAA participation, but also for participation in high-schools and middle-schools, all of which are bound by Title IX to provide athletic opportunities to females. In fact, these schools have the real burden and obligation, because this is where a truly substantial number of girls will be able to take advantage of opportunities to play sports–they have the time, they are more likely to have the skill level (compared with the ability at the collegiate level), and the greater number of schools nationwide means greater opportunities for more girls. But any definition of sport that includes band, dance, and cheer–all worthwhile activities, to be sure–potentially undermines Title IX by helping schools out of their obligation to provide meaningful sporting opportunities for women. If a school can satisfy its Title IX obligations through band and cheerleading (activities in which women historically have participated in large (even predominant) numbers), it has no incentive to also provide new opportunities for women, such as lacrosse or tennis. Band and cheerleading and dance keep the school in Title IX compliance because schools can point to those as existing opportunities for female participation, without having to add anything new.

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Cheerleaders in action

The Schmooze: A Wisconsin court has ruled that cheerleading is a “contact” sport. The significance of the ruling is that it prevents, at least in Wisconsin, people injured during cheerleading to sue when the injury stems from the actions (or as in this case, inaction) of a fellow participant. Though I agree with the decision that cheerleading is a contact sport, I feel that in cheerleading, as opposed to other sports like football and baseball, it would be harder to tell when someone has caused an injury simply by mistake or lack of skill, as opposed to purposeful, willful, or reckless behavior. It will be interesting to see if other states follow Wisconsin’s lead.

Wisconsin court rules high school cheerleading is a contact sport

MADISON, Wis. (AP) — High school cheerleading is a contact sport and therefore its participants cannot be sued for accidentally causing injuries, the Wisconsin Supreme Court ruled Tuesday in a case being closely watched in the cheerleading world.

The court ruled that a former high school cheerleader cannot sue a teammate who failed to stop her fall while she was practicing a stunt. The court also said the injured cheerleader cannot sue her school district.

The National Cheer Safety Foundation said the decision is the first of its kind in the nation.

At issue in the case was whether cheerleaders qualify for immunity under a Wisconsin law that prevents participants in contact sports from suing each other for unintentional injuries.

It does not spell out which sports are contact sports. The District 4 Court of Appeals ruled last year cheerleading didn’t qualify because there’s no contact between opposing teams.

But all seven members of the Supreme Court agreed Tuesday to overturn that decision. In the opinion, Justice Annette Ziegler said cheerleading involves “a significant amount of physical contact between the cheerleaders.” As an example, she cited stunts in which cheerleaders are tossed in the air.

The lawsuit was brought by Brittany Noffke, who was a varsity cheerleader at Holmen High School in western Wisconsin. While practicing a stunt in 2004, Noffke fell backward off the shoulders of another cheerleader and suffered a serious head injury.

She sued a 16-year-old male teammate who was supposed to be her spotter but failed to catch her; the school district; and the district’s insurer.

Ziegler rejected Noffke’s argument that “contact sports” should mean only aggressive sports such as football and hockey. She wrote they should include any sport that that includes “physical contact between persons.”

“I think it’s groundbreaking, but I’m disappointed in the result,” said attorney Tracy Tool, who represented Noffke.

Tool would not elaborate on Noffke’s injuries or say if she has fully recovered.

The decision means cheerleaders can be sued only for acting recklessly. The court said Noffke’s teammate only made a mistake or showed a lack of skill. As for the school district, Ziegler said it cannot be sued for the coach’s behavior under a Wisconsin law that shields government agencies from lawsuits for the actions of employees.

Many observers had warned that families of cheerleaders would be forced to take out big insurance policies if the lower court decision stood.

Because of the increasingly difficult stunts, injuries among high school cheerleaders are a problem. Researchers at the University of North Carolina have found that two-thirds of the roughly 100 cases of “catastrophic” sports injuries among high school girls since 1982 have involved cheerleading.

More than 95,000 female students and 2,100 male students take part in high school cheerleading every year, according to the North Carolina researchers.

Most state athletic governing bodies do not regulate cheerleading. Those that do make a distinction between “competitive spirit squads” and sideline cheerleading, according to the National Federation of State High School Associations. The group writes voluntary rules for cheerleading that do not have the force of law.

“There’s a lot of gray area about whether it’s a sport or an activity,” said spokesman Bruce Howard.

Copyright 2009 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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The Schmooze: Here is a very interesting case out of North Carolina that flies in the face of established tort law as it relates to spectator sports.

Posted on December 16, 2008 by Mack Sperling

All lawyers know, from first year torts class, that if you are hit by a baseball at a baseball game, you are unlikely to have any claim against the operator of the baseball stadium.  There’s a well developed body of law to that effect.

Today in Allred v. Capital Area Soccer League, Inc., the North Carolina Court of Appeals held that the rules of the game may be different when it’s a soccer game being played.  The Allred case is apparently one of only three cases in the country that deals with injuries suffered by spectators from soccer balls kicked into the stands.

The Plaintiff in Allred was attending a women’s professional soccer game at State Capital Soccer Park in Cary, North Carolina.  She was sitting in the stands behind one of the goals, and was hit in the head by a ball during warmups, when “many balls were directed towards the nets in a relatively short period of time.”  Op. at 4..  She suffered “substantial head injuries.”   Op. at 2.

The trial court granted Defendant’s Motion to Dismiss on Plaintiff’s claim of negligence, but the Court of Appeals reversed.  Judge Steelman began the unanimous opinion of the Court by observing that there were no reported cases in North Carolina involving injuries to spectators at soccer games, but that the cases involving baseball games “have been uniformly decided against the spectator, either on the basis that the stadium operator was not negligent or that the spectator assumed the risk of being hit by a baseball.”  Op. at 5.

The Court’s analysis then turned to two issues: the duty owned by the sports facility operator to the spectator, and whether the Plaintiff had assumed the risk by attending the game.

On the point of duty, it is established that an operator of a stadium or arena has “no duty to protect a lawful visitor against dangers which are either known to him or so obvious and apparent that they reasonably may be expected to be discovered.”  Op. at. 7. In baseball cases, Judge Steelman said “it has been accepted as a matter of law that a patron’s being struck in the stands by an errant baseball was an inherent and obvious risk of attending the game.”  Op. at 8.

But that’s not necessarily true of soccer games, probably because soccer doesn’t have the long and established history in the United States Read the rest of this entry »

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The Schmooze: First of all, it is very rare for sitting Supreme Court Justices to issue public declarations. Be it editorials, speeches, books…Justices on the whole tend to be private and not in the public eye. Therefore, it is important to take note when a Justice decides to air his or her points of view in a public setting such as the Wall Street Journal editorial from Justice Clarence Thomas below.

Now lets move on to the substance of Justice Thomas’s editorial. Thomas basically says there are two ways to read the Constitution: Originalism or Make-it-up-ism. He concludes that, though it is certainly flawed, Originalism is the only legitimate way because any other way leaves too much to the personal belief system of the judge. In some sense this true. However, if one adheres to a strict philosophy of Originalism, the following would probably be true:

1. Slavery would still exist

2. Women would not be allowed to vote

3. Homosexuals would not have any rights

Any judicial philosophy that would allow the above to still be part of America can not be the correct way to interpret the Constitution. This is not to suggest that judges should interpret exclusively based on their own whims and prejudices. Rather, the two concepts must be balanced. As Joe Pesci said in the movie With Honors, the genius of the men who wrote the Constitution was that they knew they did not know everything. Originalism must be balanced with the new dynamics that define the country.

The following is an excerpt from Supreme Court Justice Clarence Thomas’s Wriston Lecture to the Manhattan Institute last Thursday:

When John F. Kennedy said in his inaugural address, “Ask not what your country can do for you — ask what you can do for your country,” we heard his words with ears that had been conditioned to receive this message and hearts that did not resist it. We heard it surrounded by fellow citizens who had known lives of sacrifice and hardships from war, the Great Depression and segregation. All around us seemed to ingest and echo his sentiment and his words. Our country and our principles were more important than our individual wants, and by discharging our responsibilities as citizens, neighbors, and students we would make our country better. It all made sense.

Today, we live in a far different environment. My generation, the self-indulgent “me” generation, has had a profound effect on much around us. Rarely do we hear a message of sacrifice — unless it is a justification for more taxation and transfers of wealth to others. Nor do we hear from leaders or politicians the message that there is something larger and more important than the government providing for all of our needs and wants — large and small. Read the rest of this entry »

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Foot tapping protected by First Amendment, Craig’s lawyer says

From CNN’s Chris Welch

ST. PAUL, Minnesota (CNN) – In an effort to persuade a three-judge panel to throw out Sen. Larry Craig’s guilty plea, his attorney suggested Wednesday that his foot tapping in an airport men’s room may have been protected by the First Amendment right to freedom of speech.

The Idaho Republican was arrested in the Minneapolis-St. Paul airport in June 2007, after an undercover police officer accused him of soliciting sex by using hand signals and tapping his foot in a bathroom stall.

Two months after his arrest, and without consulting a lawyer, Craig later pleaded guilty to a misdemeanor charge of disorderly conduct.

In addition to suggesting that First Amendment may be involved, Craig’s lawyer, Billy Martin, also argued before the Minnesota Court of Appeals panel that no one besides the arresting officer saw the hand signals and foot tapping, which would mean no one else was offended by the behavior and, thus, make the disorderly conduct charge invalid.

Martin also suggested that the judge who Read the rest of this entry »

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Here is an interesting article about the emerging use of Facebook and other social networking sites as tools used by prosecutors and judges in the legal system. Remember, anything you post on the internet is public domain. Pictures, articles, the websites you visit…one way or another they can all come back to haunt you. While the success of Facebook and MySpace have certainly created a new sphere of interconnectedness utilizing the technological achievements of the 21st century, they have at the same time created an environment were people, particularly young people, surrender more information about themselves to the public domain than at any other time in history. Since these social networking sites cater primarily to young people, the consideration of the hazards and potential future ramifications is often times lacking when a user decides what information to share (this includes pictures and other forms of media). It is simply a case of lack of foresight, something we have all been guilty of at one time or another. However, as the article illustrates, it is a lack of foresight that can have extremely detrimental consequences.

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