Within the Scope

Blogging on Administrative Law and the Public Sector

Thursday, February 28, 2008

The New Guy: Honorable Manuel J. Cervantes

Chief Administrative Law Judge Raymond R. Krause announced this morning that Manuel J. Cervantes has accepted a position as the new Administrative Law Judge with the Minnesota Office of Administrative Hearings.

Cervantes, who now serves as an Assistant Attorney General in the Charities Division of the Attorney General's Office, has a wide background in government – having formerly served as the St. Paul City Attorney, a Second Judicial District Court Referee and as a Judge on the Workers’ Compensation Court of Appeals. "Manuel will be a great addition to our team," said Krause.

A graduate of Macalester College, the University of Minnesota Law School and the Hubert H. Humphrey School of Public Policy, Cervantes will begin his work with the OAH in April.

Wednesday, February 27, 2008

Senator’s Call for Common-Sense – At First Amusing, But Quite Important

Who says that you can’t legislate common sense? Senator Don Betzold (DFL-Fridley) knows otherwise.

In a bill (that will be among the introductions of Senate Files tomorrow) Senate File 3206, Senator Betzold proposes to modify the list of qualities that the Commission on Judicial Selection will search for when interviewing candidates to fill judicial vacancies. The Senator proposes to include a would-be judge’s “common-sense” among the Commission’s selection criteria. Senator Betzold would also add to the criteria the would-be judge’s “ability and to promote public confidence in the judiciary, “ “communication skills” and ability to add to the diversity of the state court bench.

And while I am having a little good-natured fun in this post as to the call for "common-sense," all kidding aside, the bill is a very important contribution to the current debate on judicial selection. Let me tell you why.

Among the bill’s other features is a proposal to establish an independent commission, comprised of appointees that are selected by the Governor, the leaders of the House of Representatives, the leaders of the Senate, the Justices of the Supreme Court, and the Minnesota State Bar Association. This combination of commissioners would nominate a list of candidates for judicial appointment, from which the Governor would be obliged to choose when filling a vacancy on the state courts. Additionally, and “as nearly as practicable,” these commissioners would also evaluate the performance of judges who are now serving at a point midway through those judges’ terms of office. The Commission proceedings would be subject to the Open Meeting Law and its members would select their own leaders.

The bill represents a serious and very thoughtful plan. It is provides for a selection team that is far more representative than the one envisioned by the Minority Report of the Quie Commission, and yet it also avoids the fundraising perils that necessarily follow from Governor Quie’s retention election plan.

A copy of the complete bill is accessible here.

Senator Betzold really has this common-sense thing down….

New Form for Better Cost Estimates

The Inter-Agency Rules Committee – the consortium (and support group) for state rule writers – has just posted to the internet a new "Estimated Costs for Rulemaking Form." The form is handy checklist that permits agency personnel to guesstimate the amount of resources that it will require in order to complete various planned rulemaking projects.

In rulemaking, as in carpentry, measure twice and cut once.

The new estimating form, in a Microsoft Word format, is accessible here.

Saturday, February 23, 2008

Keeping Up with the High Court: Audio for Weekend Feather-Dusters

As Mrs. WTS has a lengthy to-do list of chores for me this weekend, I thought that the best thing was to load up my iPod with some handy audio on pending U.S. Supreme Court cases. And that earful is certain to keep me on task moving through the list … and from receiving an earful of a very different sort. Among the items that I have loaded, and which may be of interest to you, are:

n A panel discussion from the American Constitution Society on retaliation claims under federal civil rights laws (and the three cases that have reached the High Court) which is accessible here.

n A panel discussion from the American Enterprise Institute on the relationship between federal regulation and state tort law (and the cases that have reached the High Court this term) which is accessible here.

n A set of remarks from University of Chicago Law School Professor Richard Epstein summarizing the recently decided U.S. Supreme Court preemption cases, Riegel v. Medtronic, Inc. and Rowe v. New Hampshire Motor Transportation Association, which is accessible here.

And so … We whistle while we work ….

Friday, February 22, 2008

Just the Help that “Responsible Authorities” Need

The Information Policy Analysis Division of the Minnesota Department of Administration today released a updated (and very handy) set of checklists. The lists were designed to guide records management officials through all of the steps that are needed to build an effective data practices program.

IPAD has posted to the internet a "fill-in-the-blank" version of the checklist and a sample completed version, so that officials can compare their plans with the model that state officials have created.

The new checklists are accessible here.

Monday, Tuesday, Wednesday: The State Courts will be in Sharp Focus at the Capitol

On Monday of this coming week, Senator Moua (DFL-St. Paul) will introduce legislation proposing to expand the jurisdiction of the Commission on Judicial Selection to include the duty of making recommendations for filling appellate court vacancies. As it will be introduced, a copy of Senate File 3129 is accessible here.

On Tuesday of this coming week, the Senate Judiciary Budget Division will consider the Judicial Branch’s Supplemental Budget request. Details on the committee hearing are accessible here and an earlier memorandum from State Budget Director Jim Schowalter as to “the need to consider rolling back increased spending – both in operating costs and state grant programs,” is accessible here.

On both Tuesday and Wednesday, legislators will consider a constitutional amendment to provide for retention elections for state court judges. Details about Tuesday’s hearing in the House are accessible here and information about Wednesday’s hearing before a Senate committee is accessible here.

Wednesday, February 20, 2008

I’m Rubber, You’re Glue: Preemption Cases Pivot on the Court, Congress Both Reading Case Law (and Reading it the Same Way....)

Issuing parallel opinions today, the U.S. Supreme Court sustained two challenges to state law requirements on the grounds that those requirements interfered with Congressional statutes regulating commercial activities.

Among the interesting features of these two cases is the Justices’ observation that the Congressional enactments at issue were best and most meaningfully understood against the backdrop of the Court’s earlier construction of similar terms, in other cases. In Riegel v. Medtronic, Inc., for example – which addressed whether the federal Medical Device Amendments of 1976 barred certain common-law tort claims – Justice Scalia points to Congressional reliance upon the Court’s decisions when Congress decides to legislate. He writes:

Congress is entitled to know what meaning this Court will assign to terms regularly used in its enactments. Absent other indication, reference to a State’s “requirements” includes its common-law duties. As the plurality opinion said in [Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992)], common-law liability is “premised on the existence of a legal duty,” and a tort judgment therefore establishes that the defendant has violated a state-law obligation.…

In the present case, in the context of this legislation excluding common-law duties from the scope of pre-emption would make little sense. State tort law that requires a manufacturer’s catheters to be safer, but hence less effective, than the model the FDA has approved disrupts the federal scheme no less than state regulatory law to the same effect. Indeed, one would think that tort law, applied by juries under a negligence or strict-liability standard, is less deserving of preservation.
....

The dissent would narrow the pre-emptive scope of the term “requirement” on the grounds that it is “difficult to believe that Congress would, without comment, remove all means of judicial recourse” for consumers injured by FDA-approved devices. But, as we have explained, this is exactly what a pre-emption clause for medical devices does by its terms.

While in a different context, this same theme is carried forward in today’s other preemption case, Rowe v. New Hampshire Motor Transportation Association. The Rowe case addressed whether a federal statute that prohibits States from enacting any law “related to” a motor carrier “price, route, or service” pre-empted Maine’s regulations which restricted the methods of delivering tobacco products. As Justice Breyer wrote for the majority in that case:

Here, the Congress that wrote the language before us copied the language of the air-carrier pre-emption provision of the Airline Deregulation Act of 1978. And it did so fully aware of this Court’s interpretation of that language as set forth in [Morales v. Trans World Airlines, Inc., 504 U. S. 374 (1992)]. See H. R. Conf. Rep., at 83 (motor carriers will enjoy “the identical intrastate preemption of prices, routes and services as that originally contained in “the Airline Deregulation Act); ibid. (expressing agreement with “the broad preemption interpretation adopted by the United States Supreme Court in Morales”).
.…

[G]iven Morales, where the Court held that federal law pre-empts state consumer-protection laws, we find that federal law must also pre-empt Maine’s efforts directly to regulate carrier services.

The Court’s complete analysis in Riegel is accessible here, and its analysis in Rowe is accessible here.

Tuesday, February 19, 2008

Senator Betzold Introduces a Measure to Address the Holding in Giem

As readers of these pages will recall, in December the Minnesota Supreme Court issued an opinion clarifying the meaning of the statutory deadlines for court proceedings under Minnesota’s Sexually Dangerous Person and Sexual Psychopathic Personality statutes. Finding a substantial violation of the statutory timelines, the Court ordered that the target of the commitment petition, one Terrance John Giem, be released from the Minnesota Security Hospital.

A bill introduced today by Senator Don Betzold (DFL-Fridley) proposes to revise the statutory deadlines so as to withdraw from commitment petitions brought under Minnesota’s Mentally Ill and Dangerous, Sexually Dangerous Person or Sexual Psychopathic Personality statutes, the right to demand an "immediate hearing."

The Court’s analysis in the Giem case is accessible here, the current timelines are accessible here, and Senate File 2919 is accessible here.

Monday, February 18, 2008

On Originalism and Pragmatism: Daydreams for Presidents Day

Among the odd juxtapositions that occurs on this holiday honoring the Nation’s Presidents, is that today is likewise the 20th anniversary of the seating of Associate Justice Anthony M. Kennedy on the U.S. Supreme Court. Today, therefore, we are reminded that as powerful as Presidents are, their broader legacy is something that will, in part, be set by other men and women.

Likewise interesting to me, were the words that were spoken by Justice Kennedy and then-President Ronald Reagan following the administration of the oath of office on that day. With the benefit of exactly two decades worth of hindsight, we see that the ceremony in the East Room of the White House on that day foreshadowed the critiques that later would come as to both men. Justice Kennedy, for example, gave expression to some of grandiloquent flourishes for which he would become well-known; remarking that “it is appropriate to recognize an essential truth, and that is that the Constitution of the United States is the single fact, the single reality, the single idea, the single moral principle that sets the United States apart from other nations, now and throughout history.”

For his part, President Reagan was pointedly explicit about his hopes for the new Justice’s work:
[T]he role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it – certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.
Concluding good-naturedly about the new hire, Reagan noted that “anyone who teaches law in a powdered wig and a tri-cornered hat is all right by me on original intent.”

The complete set of remarks from February 18, 1988 is accessible here.

Perhaps pragmatically, I will do my daydreaming on this from a seat in the House Gallery – as the Minnesota Legislature is still hard at work on this state holiday.

Sunday, February 17, 2008

Autumn Playbook: William Mitchell Law Review Examines Election Administration

The latest issue of the William Mitchell Law Review, which is now available, explores a series of election administration issues in Minnesota and the broader nation.

Beginning with a foreword from former Minnesota Congressman and Gubernatorial candidate, Tim Penny, this issue asserts that the improvements we have made to election administration during our history "are not inevitable." Continues Penny: "They take effort. They take action. To ensure a well-functioning system, improving our democracy is every generation’s obligation."

What follows in the volume is a set of richly-detailed and provocative analyses of anti-fraud measures and campaign finance regulations – many of which are drawn from a stable of local celebrity authors.

As we steam head-long into a vigorously-contested set of elections in 2008, this issue highlights features of the backdrop against which these contests will be waged, fought and won. Copies of the individual articles that appear in this issue are accessible here, or a bound version of the entire set, can be obtained here.

Better than the Sunday Times: A Quiet Moment to Think about Delegations and Preemption by Congress

Among the items that have been posted recently to the Social Science Research Network are three articles that may be of interest to practitioners of Administrative Law. These articles, which provide a great opportunity to think about some of the broader landscape of our law, are:

n Deadlines in Administrative Law, by Professors Jacob E. Gersen (of the University of Chicago Law School) and Anne Joseph O’Connell (of the University of California, Berkeley - School of Law, Boalt Hall), explores how Congress exerts control over Executive Branch agencies by setting timelines for the completion of administrative action. Both an abstract of the article and the complete work are accessible here.

n Agency Preemption and the Shimer Analysis: Unmasking Strategic Characterization By Agencies and Giving Effect to the Presumption Against Preemption, by Professor Karen Jordan (of the Brandeis School of Law - University of Louisville) examines how federal agencies can engage in “strategic characterization” – a practice of pointing to Congress as the source of preemption of state laws, rather than the agency’s own regulatory designs. Professor Jordan urges the courts to use a “totality of the circumstances approach” when deciding whether Congress or an agency is the source of preemption, so as to give effect to the “presumption against preemption.” Both an abstract of the article and the complete work are accessible here.

n Lastly, but hardly least, is State Innovation and Preemption: Lessons from Environmental Law, in which Minnesota’s own Alexandra B. Klass (Associate Professor at the University of Minnesota Law School) argues that “in cases where Congress has expressed an intent to preserve state law in the federal regulatory framework governing areas of ‘traditional state concern,’ such intent should be construed not only to preserve state law in its current form but also to act as an implied delegation to states to fulfill federal as well as state policy goals going forward.” Both an abstract of the article and the complete work are accessible here.

Saturday, February 16, 2008

Receipt of Agriculture Subsidies Prompts Public Disclosure of Farm Data

In an interesting opinion issued yesterday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed a lower court ruling which shielded from public disclosure detailed information on the agricultural practices, acreage, soil, crops, livestock, and geographical location of farms owned by persons receiving agricultural subsidies from the Farm Service Agency (“FSA”). FSA promotes “a stable and abundant American food supply … in part, by offering subsidies and other financial assistance to farms.”

Multi Ag Media LLC, a commercial vendor of agricultural data, sought disclosure of database information maintain by the FSA under the Freedom of Information Act; a request that the agency denied on the grounds that disclosure “would compromise farmers’ privacy interests and that these files are properly withheld under FOIA Exemption 6.”

While acknowledging that the privacy interests of the participating farmers that would be compromised by disclosure of the files “is greater than de minimis,” the panel reasoned that because “FSA uses this information in making subsidy and benefit determinations” disclosure was warranted because the public had a greater interest “in being able to look at the information the agency had before it when making these determinations so that the public can monitor whether the agency is correctly doing its job.”

The panel’s complete analysis, and its balancing of the competing interests, is accessible here.

Thursday, February 14, 2008

Minnesota Supreme Court Splits on Custody Credits

In an interesting opinion issued today, the Minnesota Supreme Court split 6 to 1 on the question of whether patients who are indefinitely committed to the Minnesota Sex Offender Program, and who later commit crimes, are entitled to “custody credits” for the days spent in confinement under the earlier civil commitment petition. In Minnesota, criminal defendants receive a credit for the time spent “in custody in connection with the offense or behavioral incident for which sentence is imposed” as a deduction against a later-executed sentence.

Asserting that the conditions of civil commitment were the “functional equivalent of jail,” Joshua Lawrence Johnson argued that he was entitled to a credit for the days he spent as a civilly committed patient, while separate and parallel criminal proceedings against him were underway.

Disagreeing, a majority of the panel concluded that Johnson was not entitled to a credit for the days spent in civil commitment pending trial and sentencing. Wrote Justice Helen Meyer:

There is no evidence in the record that the terms of Johnson’s confinement under civil commitment have been altered because of the criminal charges. Even if the record established (and this record does not) that Johnson’s sentence to confinement in a correctional facility delayed his sex offender treatment program at St. Peter, his civil commitment is indefinite. The sentence without custody credit does not prolong Johnson’s confinement and therefore does not serve as a de facto consecutive sentence.
Dissenting, Justice Alan Page urged that “[b]ecause the record suggests that Johnson was transferred from the St. Peter Security Hospital to the Moose Lake Treatment Center for purposes of punishment related to the charges against him, I conclude that he is entitled to custody credit.”

The majority and dissenting opinions are accessible here.

Today’s Bill Introductions Highlight Inquiries and Debates at the Legislature

Among the bills that were introduced today in the Minnesota House of Representatives were:

H. F. 2911 (Atkins), A bill for an act relating to crime; establishing offenses involving the sale and purchase of event tickets.

H. F. 2934 (Winkler), A bill for an act relating to courts; providing for a deferral from jury service for certain nursing mothers.

H. F. 2959 (Johnson, Juhnke, Hoppe, Sailer and Beard), A bill for an act relating to telecommunications; requiring the commissioner of commerce to contract for a statewide inventory and mapping of broadband service; appropriating money.

H. F. 2965 (Gottwalt, Wardlow, Berns and Severson), A bill for an act relating to drivers' licenses; requiring that full head and face be shown on driver's license photograph.

H. F. 2996 (Paymar and Eastlund), A bill for an act relating to corrections; authorizing deferral of judgment for certain drug offenses; repealing the sunset on early release of nonviolent controlled substance offenders; granting the Department of Corrections access to DEED preconfinement data on inmates; providing a tax credit to employers that employ persons with criminal records; requiring the commissioner of corrections to study re-entry facilities and programming; increasing funding for chemical and mental health treatment for inmates and probationers; creating a certificate of rehabilitation; establishing a task force to study and recommend approaches for developing a re-entry court pilot program; establishing a controlled substance law working group; requiring the commissioner of corrections to conduct an internal review of parole and supervised release procedures and sanctions; appropriating money.

H. F. 2997 (Buesgens), A bill for an act relating to public employment; establishing financial parameters for public employment contracts.

Tuesday, February 12, 2008

The Reach That is Needed for a Meaningful Remedy

In an important published decision issued today, a panel of the Minnesota Court of Appeals held that the District Courts have the authority to direct the expungement of judicially-created records – even if those records have been transferred to, and are held by, agencies in the Executive Branch. Noting that courts may reach these records “when doing so is necessary or conducive to providing a meaningful remedy” for the petitioner seeking expungement, Judge Renee Worke wrote for the appellate panel:
[T]he records sought to be expunged were not merely created for use in a judicial proceeding but, rather, were generated as a result of a judicial proceeding. The public information generated in the district court and disseminated to the [Bureau of Criminal Apprehension], which maintains custodianship of this information, includes: offense, court of conviction, date of the conviction, and sentence information. Therefore, when a district court orders an expungement of a criminal record by way of its inherent authority, that expungement order includes the judicially created public record maintained by the BCA.
The panel’s complete analysis, and a special concurring opinion from Judge Gordon Shumaker, is accessible here.

Because the decision arrives like Cupid's arrow, it will be interesting to learn if it will be the object of affection, or rebuffed at the door, during this Valentine's Day event on Thursday.

Monday, February 11, 2008

Big Start Tomorrow for the Minnesota Legislature

Legislators will lose no time whatsoever starting on the big issues of the day, when they reconvene in Saint Paul tomorrow. And topping the agenda will be measures relating to the state court system. Among the bills that will be introduced on the first day of the 2008 regular session will be:

S.F. No. 2401: A bill for an act relating to elections; proposing an amendment to the Minnesota Constitution, article VI, sections 7 and 8; establishing and modifying procedures for filling judicial vacancies; creating a judicial performance commission; and creating a commission on appellate judicial selection. (Introduced by Senators Rest, Senjem, Clark, Moua and Michel)

S.F. No. 2494: A bill for an act relating to courts; creating an exception to mandatory retirement date for judges in office on December 31, 1973. (Introduced by Senator Latz)

To commemorate the day, I have picked out a song, that is accessible here; so be sure to sing along....

Saturday, February 09, 2008

Running One’s Mouth is One Thing; Running with the Land Another

In an interesting unpublished opinion handed down on Tuesday, a panel of the Minnesota Court of Appeals held that request for approval of an amendment to an existing Conditional Use Permit did not provide the occasion for local zoning authorities to revisit and narrow the approved uses under the original permit.

In 1997, Minnewawa Sportsman Club applied for a Conditional Use Permit to operate a firearms range on a 20-acre parcel in Aitkin County. While Club officials suggested during a hearing on their request that the range would ordinarily operate on one weekday and on Saturdays each week, this restriction was not included in the later approved permit. When in 2006, the Club sought to expand its operations onto an adjacent nine-acre parcel, County zoning officials imposed 17 conditions on the amended Conditional Use Permit – some of which touched upon the earlier-approved uses. Among the new limitations was a codification of the Club officials’ 1997 suggestion that the pistol range would operate on only one weekday and Saturdays each week.

Holding that this narrowing of the uses that were authorized in 1997, was improper, the panel wrote:
[U]nless the landowner’s purportedly binding representations are themselves recorded with the CUP, interested parties or future purchasers may have no notice of use restrictions on the property. There is no indication in the record that Ward’s statements during the 1997 hearing were recorded as part of the [Conditional Use Permit]. This is critical since a CUP runs with the land and continues to encumber the property even after it is conveyed to subsequent owners. Second, this case also presents a practical problem concerning the allegedly binding representation—imprecision. The minutes of the 1997 process indicate that Minnewawa’s representative Ward stated only that “the majority [o]f the shooting” would occur during expressly stated times and days. Third, the chairperson specifically said that he “did not see a need for any conditions” on the CUP. Consistent with that discussion, the county’s chairman signed the CUP indicating the imposition of no conditions.
The panel’s complete analysis is accessible here.

Thursday, February 07, 2008

Shot With Its Own Gun: Lessons from the Personal Protection Act

As widely reported in the media, on Tuesday of this week, a panel of the Minnesota Court of Appeals affirmed-in-part a lower court’s injunction which barred the enforcement of certain provisions of Minnesota’s Personal Protection Act against two metro-area churches. The Personal Protection Act created a uniform set of state standards for the issuance of concealed weapons permits and established notice provisions in the event that certain property owners forbade the possession of concealed weapons on their premises. The plaintiff churches, however, wanted neither concealed weapons on their premises nor the type of signage and disclosures that the state required to inform visitors of this fact.

As I recall the discussions surrounding passage of the original Act in 2003, and I was a member of the House Civil Law Committee at the time, the aim of legislators was to dissuade pretextual, ad hoc and whimsical claims that otherwise permitted firearms were not allowed on premises that were ordinarily open to, and served, members of the public – such as local government offices, restaurants and other public accommodations, and common carriers. To avoid ad hoc bans as to which permit holders would have no advance warning, therefore, the Legislature created a regimen of uniform, but admittedly very ugly, signs.

For me, the most interesting feature of the panel’s analysis is the tension between the doctrine that “[s]tatutes are presumed constitutional, and an appellate court should exercise extreme caution in deciding whether to declare a law to be unconstitutional,” on the one hand, and the panel’s apparent reticence to limit or recast the statute’s text so as to save it from constitutional over-breadth, on the other.

Thus, while the panel’s analysis includes important discussions on the preamble to Minnesota’ Constitution, the religion clauses of Article I, and the limits of the Religious Land Use and Institutionalized Persons Act, to my mind the broader lessons of Tuesday’s decision relate to the legal dangers that accompany compelled speech by state government. And that is an issue which extends far deeper and wider than the property lines of the plaintiff churches.

The panel’s complete analysis is accessible here.

Wednesday, February 06, 2008

Update on Judicial Selection and Retention Hearing

The audio and video from a State Senate hearing on judicial selection and retention reform, held this past Monday, is now available on-line.

The testimony included remarks from a celebrity cast of witnesses – including former Vice President Walter Mondale; former Minnesota Governors Al Quie and Arne Carlson; former Speaker of the Minnesota House Phil Carruthers; Chief Justice Russell Anderson; Associate Justice Alan Page; and President of the Minnesota State Bar Association, Brian Melendez.

Comparing the hearing on Monday with all of the legislative hearings he had witnessed as a member of the Legislature, Governor Carlson expressed the view that Monday's hearing was the best legislative hearing he had ever seen. A video clip of the testimony is accessible here.

I also had an opportunity to make a few remarks at the hearing on Monday, urging the Legislature to adopt a legislative confirmation model for selecting and retaining state court judges. My testimony appears at or around the 2 hour 52 minute point in the video clip – or by way of a separate audio clip that is accessible here.

As always, reader feedback on any of the ideas that were presented during the hearing is warmly received.

Sunday, February 03, 2008

Commissioner Fabian Files a Petition for Review of Decision in Rud

As readers of these pages will recall, on the last day of 2007 a panel of the Minnesota Court of Appeals held that, James John Rud, an inmate who was sentenced to state prison in 1985, could not be disciplined for his refusal to participate in prison-based sex offender treatment. As the panel reasoned, because the statutes that link prison-based treatment programs and formal discipline were enacted by the Minnesota Legislature in 1992 and 1999, and "Rud was sentenced in 1985, the commissioner did not have authority ... to require Rud to participate in a mental-health program ... if he refused to participate."

In papers filed with the Minnesota Supreme Court on Wednesday of this past week, Commissioner Fabian argued that the reasoning of Rud decision imperils her ability to run prison-based treatment programs – because inmates arrive at state prison, in different years and under different statutory regimens.

Saturday, February 02, 2008

Lots and Lots of Provocative Audio

During the month of January, the Federalist Society – both as a national organization and as a local, Minnesota Chapter – hosted a series of thought-provoking events, with audio recordings that are now on-line.

Among the dynamite megabytes for your mp3 player are:

n A discussion on the Judicial Confirmation process with Senator Arlen Specter (Ranking Minority Member of the U.S. Senate Committee on the Judiciary) and an all-star panel of confirmation-watchers from the media, the academy, advocacy groups and the Bar. The audio clip is accessible here.

n A set of audio clips from the Society’s 10th Annual Law Faculty Conference – which includes very interesting panel discussions on the proper scope of Presidential power, reforms that have followed the U.S. Supreme Court’s 2005 ruling in Kelo v. City of New London and the constitutionality of the District of Columbia’s handgun ban.

(Among the throw-downs that occurred during the discussion on Presidential authority, for example, was the claim that “the non-delegation doctrine is prissy.” And while I am not sure that administrative lawyers, as a group, are prone to bar-fighting, if we were, that one seems like fighting words to me…. “Hey, bub! Just whose reading of Article I, Section 1 are you calling prissy?!?....”)

n Closer to home, was the Society’s Minnesota Chapter hosting of a lecture by Todd Gaziano, Director of the Heritage Foundation’s Center for Legal and Judicial Studies. Gaziano spoke this past Wednesday on the proliferation of criminal sanctions for purely regulatory lapses. Because of a computer glitch, I was not able to capture the first 5 or so minutes of his remarks – entitled, The Criminalization of Almost Everything: Why Liberals and Conservatives Should be Worried – but the worthwhile remainder, and the Question and Answer session that followed, is accessible here.