Civil Attorneys

First came Caroline Kennedy on all the talk shows, promoting “In Our Defense: The Bill of Rights in Action,” (Morrow) the best-seller she and a law school classmate wrote to dramatize issues like the death penalty and freedom of the press.

Then there was Life magazine’s special issue on the Bill of Rights, complete with analysis of each of the constitutional amendments, 1 through 10.

And now, finally, it’s Freedom Week, the 200th anniversary of the Bill of Rights, marked by events like the one Wednesday at the Columbia Graduate School of Journalism, which celebrated the First Amendment, and segments all week on the NBC News program, “Today.”

All well and good, says Howard N. Meyer, from his book-crammed Upper West Side study, but what about the 14th Amendment?

Some people have a thing for trains, or stamps, or horses. But Mr. Meyer, a 77-year-old labor lawyer who is still active as an arbitrator, has a passion for the amendment he refers to as “Big Fourteen” in his out-of-print 1973 book, “The Amendment That Refused to Die.”

Those who have spent little time pondering constitutional law may not see the glory of the 14th Amendment, which says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

But Mr. Meyer is a true believer. He writes letters to the editor about the 14th Amendment. He corresponds with legal reporters, and occasionally with Supreme Court Justices. And buff that he is, Mr. Meyer is aggrieved that the 14th Amendment is being ignored in the current publicity for the Bill of Rights.

He dismisses Ms. Kennedy (”let’s call her Janie-Come-Lately”) and keeps a file called “First v. Fourteenth,” piling up evidence that the 14th Amendment is the real cornerstone of individual liberties, since without it, the Bill of Rights would have little effect.

More : query.nytimes.com

This city’s 5-day-old experiment in sanctioning marriage for same-sex couples could come to an abrupt halt Tuesday as opponents working to stop the unprecedented wedding spree get to present their cases in court.

Two conservative groups will ask judges at separate hearings to block the city from issuing more same-sex marriage licenses, an act of civil defiance that they say violates California law. The city will contend that laws restricting marriage to opposite-sex couples violate the state constitution’s protections against discrimination.

“This is going up as far as the litigants are willing to take it, certainly to California’s appellate courts, as controversial as this issue is, and it could be taken to the U.S. Supreme Court,” said Jesse Choper, a constitutional law professor at the University of California-Berkeley.

That scenario played out in Massachusetts, where the state’s highest court struck down a same-sex marriage ban and ordered marriage licenses to be issued in May. The Legislature last week held two days of impassioned debate on proposed amendments to the state constitution that would bar gay marriage but recessed until March 11 without acting.

Here at City Hall, hundreds of gay and lesbian couples braved cold rain and camped overnight to boost their chances of obtaining licenses before today’s court showdown. Lacking enough staff to process every application, officials had turned away hundreds Sunday.

Mayor Gavin Newsom, now a hero in the gay rights movement after he ordered officials to issue licenses to same-sex couples last week, kept City Hall open on Presidents Day to handle the crush of marriage-seekers. By late Monday, 2,340 licenses had been issued in five days as couples waited hours in lines that snaked through the ornate building and around the block.

More : usatoday.com

At the regular meeting of the Board of Trustees of Columbia University, held Monday, the budget for the fiscal and academic year, beginning July 1, 1913, was adopted. The sum total of the budget appropriations for the maintenance of the university in all its parts for the year 1913-14 is $3,768,175.

Source : query.nytimes.com

Gerald Gunther, a constitutional scholar and the author of the definitive biography of his own mentor, Judge Learned Hand, and a legal educator who was sometimes mentioned as a Supreme Court prospect, died on Tuesday night at his home in Stanford, Calif. He was 75.

The cause was cancer, said his son Daniel, a lawyer who lives in San Francisco.

One of the nation’s foremost scholars of constitutional law, Professor Gunther had been on the faculty of the Stanford Law School since 1962. He wrote ”Constitutional Law,” a 1965 volume of case studies that is the standard text on the subject in most American law schools; the latest edition was written with Kathleen Sullivan.

Professor Gunther was a teacher and mentor of judges, including one who made it to the Supreme Court. In a telephone interview last night, Supreme Court Justice Ruth Bader Ginsburg said: ”Gerald Gunther was my teacher, my adviser, my friend, our nation’s leading constitutional law scholar and judicial biographer. His commentary and counsel I retain in my mind will continue to guide me through all my days on the bench.”

Justice Ginsburg said that when she graduated from Columbia Law School in 1959, she had two strikes against her in her search for a position as a law clerk.

”I was a woman and I had a 4-year-old child,” she said.

Professor Gunther, who was then on the Columbia faculty, ”got me my clerkship by pressuring every judge in the Southern District,” Justice Ginsburg said. She said that Professor Gunther had to promise that ”if I didn’t work out, he would find a male lawyer to replace me.” She was hired by Judge Edmund L. Palmieri of the Southern District.

More : query.nytimes.com

When President Bush introduced Harriet Miers to the nation last week, his description of his Supreme Court nominee — that of a trailblazing female lawyer and a dedicated public servant — seemed designed to define her to Americans before any critics could.

During the past nine days, however, the White House’s marketing of Miers has been thrown off track. Miers’ lack of experience as a judge, her virtually non-existent paper trail on key legal issues and her closeness to Bush have led critics — notably fellow conservatives such as commentators George Will, William Kristol and Charles Krauthammer — to essentially cast Miers as an unqualified crony.

That led the White House, through allies such as the American Center for Law and Justice’s Jay Sekulow, to add a dimension to its portrait of Miers.

Sekulow and other activists emphasized her affiliation with an evangelical church in Dallas, and they made not-so-veiled suggestions that she would oppose abortion rights. (Related story: Dobson to offer clarification)

But in revising its strategy for Miers’ confirmation by the Senate, the administration has ignited new controversies.

More : usatoday.com

Ephraim London, a lawyer who specialized in constitutional law and who won landmark cases involving the censorship of films, died on Tuesday at his home in Manhattan at the age of 78. The cause of death was complications from diabetes, his family said.

Ephraim London, a lawyer who specialized in constitutional law and who won landmark cases involving the censorship of films, died on Tuesday at his home in Manhattan at the age of 78. The cause of death was complications from diabetes, his family said.

During a long career Mr. London argued nine cases before the United States Supreme Court and won all of them. The two that aroused the greatest public interest involved films that were banned in New York - ”The Miracle” in 1950 and ”Lady Chatterley’s Lover” in 1956.

”The Miracle,” which was directed by Roberto Rossellini and starred Anna Magnani, told the story of an Italian peasant girl who believed she had immaculately conceived a child by St. Joseph. It was denounced as sacrilegious by Roman Catholic authorities in the United States and its license for exhibition in New York was revoked by the State Board of Regents.

Invoked First Amendment

The film’s distributor, Joseph Burstyn, took the case to the Supreme Court, where Mr. London successfully argued that the First Amendment’s protection of speech and the press extended to films as well. The decision to reinstate ”The Miracle” was unanimous.

In the case involving ”Lady Chatterley’s Lover,” the film version of the D.H. Lawrence novel concerning a high-born English woman’s amorous relations with the caretaker of her husband’s estate, Mr. London appeared on behalf of Kingsley-International, the distributor. The Supreme Court struck down an important part of New York State’s 36-year-old film censorship system.

All nine justices agreed that the ban on ”Lady Chattereley’s Lover” was improper, and a majority of five ruled that it was unconstitutional for New York to prohibit showing a film deemed obscene simply because it depicted conduct that was considered immoral.

Among other films whose bans were overturned by the Supreme Court after Mr. London argued appeals were ”The Lovers,” from France, in 1964 and ”Language of Love,” from Sweden, in 1971.

More : query.nytimes.com

To the Editor of the New-York Times: Since my communication of Nov. 30, I have seen several able arguments on the question I have again written about one in the Boston Courier, of Dec. 12, and especially one which occurs in an able and eloquent appeal on behalf of Constitutional Law against the “higher law,” from the pen of Judge NICHOLAS, of Kentucky, in the Louisville Journal of the 11th December.

Source : query.nytimes.com

The year’s budget occupied the bulk of the attention of the trustees of Columbia University at their monthly meeting yesterday afternoon. The cost of maintaining the university for the year beginning July, 1913, was fixed at $3,450,475.86. Appropriations for work carried on by the trustees of Columbia University directly total $2,366,244.86.

Source : query.nytimes.com

Robert Bierstedt, an author and emeritus professor of sociology at the University of Virginia, died on Sept. 8 in Martha Jefferson Hospital in Charlottesville, Va. He was 85 and lived in Charlottesville.

He began teaching at the University of Virginia in 1972 and became a professor emeritus in 1983. Previously, he headed the department of sociology at City College in New York and at New York University.

Dr. Bierstedt, who combined abiding interests in sociology and constitutional law, was a longtime director of the American Civil Liberties Union, serving as chairman of its academic freedom committee and the church-state committee in the 1960’s and 1970’s.

Dr. Bierstedt wrote several books, including ”The Social Order” (Mcgraw Hill, 1957), ”Power and Progress: Essays on Sociological Theory” (McGraw-Hill, 1974) and ”American Sociological Theory” (Academic Press, 1981).

He was a former director of the American Council of Learned Societies, a federation of scholarly groups focused on the humanities, and president of the Eastern Sociological Society. He also held Fulbright Senior Lectureships at Edinburgh University and the London School of Economics.

Dr. Bierstedt, a native of Burlington, Iowa, graduated in philosophy from the University of Iowa in 1934. He received a master’s degree in philosophy in 1935 and a doctorate in sociology in 1946 from Columbia University.

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Since Sept. 11, 2001, the United States has been at war. It is a war unlike our previous wars, but it is a war nevertheless. War places law under pressure, and so it is timely to consider the pressure exerted on law by our previous wars, a pressure that was greatest during the Civil War. Hence ”Lincoln’s Constitution,” by Daniel Farber, a professor of law at the University of California, Berkeley, and the University of Minnesota.

Farber addresses two topics. The first is the relation between the federal government and the states. Farber asks whether secession was lawful and, if not, what means were lawful to combat it. The second topic is the curtailment of civil liberties, and other constitutionally highhanded actions by Lincoln. Here the question is whether Lincoln upset the balance between the executive and the legislative and judicial branches of the federal government.

Farber makes a workmanlike lawyer’s case for the constitutionality of most of Lincoln’s controversial measures, yet in doing so seems somehow to miss the point. In defense of suspending habeas corpus, a power that the Constitution seems pretty clearly to reserve for Congress (though Farber disagrees), Lincoln asked rhetorically and, as it seems to me, unanswerably, ”Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

In the weeks following Lincoln’s inauguration, and indeed for the first two years of the war (until the almost simultaneous Union victories at Gettysburg and Vicksburg), the outcome of the Civil War was in doubt. Suspending habeas corpus may have been one of the measures that kept the Union going during this very dangerous period. The suspension not only enabled thousands of rebels and subversives to be detained without access to judges, many of whom were sympathetic to the Southern cause, but also showed Lincoln to be resolute, indeed ruthless, in the prosecution of the war. Resoluteness in times of great danger is essential to staving off defeatism; it goes some distance in explaining why Britain withstood the Nazi onslaught in 1940 and France did not.

More : nytimes.com

In the modern world of family turmoil, the life of Judge Anthony McLeod Kennedy seems almost like a living Norman Rockwell portrait of provincial constancy and familial loyalty. He has been married to the same woman for 24 years, has sent all three of his children to his alma mater, Stanford University, and lives in the same white colonial-style house in Sacramento, behind a camelia bush and a neat row of gardenias, where he was born 51 years ago.

Such restraint and respect for precedent find an echo in the legal opinions of the man President Reagan has picked as his third choice to fill the vacant seat on the Supreme Court. And if the President had originally hoped to fill the seat with a doctrinaire conservative, he will not find that in Judge Kennedy, an energetic, self-effacing and immensely polite man who likes to read history, complain about his deteriorated golf game and taste fine California wines.

While Tony Kennedy, as friends call him, is clearly a political and legal conservative, he strikes those who know him as a quiet pragmatic one, open to persuasion. His 500 or so written opinions in 12 years on the Court of Appeals for the Ninth Circuit in San Francisco are cautiously and narrowly crafted, sticking close to precedent and avoiding sweeping statements on social issues.

Judge Kennedy sits well to the right of center of the 36 regular and senior judges of the Ninth Circuit, which has been badly divided on such issues as immigration and criminal rights. But he is by no means on the extreme.

More : nytimes.com

Paul Michael Bator, a lawyer, educator and an expert on the Federal courts and constitutional law, died yesterday at his home in Chicago after a long illness. He was 59 years old.

Paul Michael Bator, a lawyer, educator and an expert on the Federal courts and constitutional law, died yesterday at his home in Chicago after a long illness. He was 59 years old.

In 1959 he joined the faculty at Harvard University as an assistant law professor and in 1962 became a full professor there. From 1971 to 1975 he was associate dean of the Harvard Law School, and in this period testified before a House committee, backing the constitutionality of a special prosecutor appointed by Congress to deal with the Watergate affair.

In 1982 Mr. Bator took a leave of absence from Harvard to become Deputy Solicitor General. In 18 months in Washington he argued and won eight cases before the Supreme Court on behalf of the Government. He was nominated for Federal judgeship by President Reagan in 1984 but withdrew his name because of poor health.

He returned to Harvard but in January 1986, because of unhappiness with what he felt was an increasing factionalization at the law school and what he saw as its dominance by left-leaning faculty members, he left to join the faculty at the University of Chicago Law School. A Native of Budapest

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The Supreme Court’s decision overturning school desegregation policies in two U.S. cities yesterday culminates a fractious term in which the new Roberts court moved the law significantly to the right, legal analysts said.

In a series of 5 to 4 decisions this term, the court also upheld a federal ban on a late-term abortion procedure and gutted a key provision of the McCain-Feingold campaign finance law. Along with yesterday’s schools case, each of these decisions left open the possibility of more change in areas of the law on which the court had seemingly ruled definitively within the past decade.

“Conservatives got everything they could reasonably have hoped for out of the term,” said Thomas C. Goldstein, a Washington lawyer who specializes in Supreme Court litigation. “The table is set, particularly if there are more changes in the court, for wholesale changes in constitutional law. There were some incremental steps, but they were in a distinct direction and a uniform direction.”

The conservatives’ advance was limited by the occasional defection of Justice Anthony M. Kennedy. Yesterday’s case showed Kennedy’s moderating influence, as he issued a concurring opinion that may have blunted the practical impact of the court’s ruling.

More : washingtonpost.com

The 9th Circuit Court of Appeals (search) collected legal briefs Wednesday from parties petitioning it to take the unusual step of overruling a decision by its own three-judge panel to postpone California’s recall election.

Secretary of State Kevin Shelley (search) filed a brief asking for an 11-judge panel to be appointed to reinstate the Oct. 7 date, saying to do otherwise would violate the state constitution’s direction to hold the election within 80 days of certifying the signatures petitioning for it.

“The irreparable harm to the state from the panel’s injunction includes not only the inability to fulfill its mandated duty to proceed with the ongoing election, but also the destruction of the state’s interest in neutral, general application of the election schedule requirements,” Shelley wrote.

Shelley said the vote must go forward because thousands of absentee voters have already been mailing in their ballots, reflecting their decisions whether to recall and replace Gov. Gray Davis (search).

More : foxnews.com

Judge THOMAS M. COOLEY, the highest authority on constitutional law in the United States, under the title “Grave Obstacles to Hawaiian Annexation,” discusses in the June number of the Forum the coustitutional bearing of the exercise of the treaty-making powor of the Government for the “annexation,” or acquisition, of independent nations remote from our national boundaries.

Source : query.nytimes.com

WRITING in April for a unanimous Supreme Court, Chief Justice John G. Roberts Jr. found that the police in Brigham City, Utah, acted properly in entering a home without a warrant after they peered through a window and saw a fight in progress that had left one man spitting blood.

“The role of a police officer includes preventing violence and restoring order, not simply rendering first aid to casualties,” the chief justice said, rejecting the argument that the police should have waited until the altercation ended more conclusively. “An officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided,” he explained.

The chief justice’s sports imagery galvanized the legal blogs. Some found his boxing reference inapt. “The whole point of boxing is fighting!” wrote a participant on the Althouse blog, run by Ann Althouse, a law professor at the University of Wisconsin.

Others took issue with the hockey reference. “Given all the padding that hockey players wear, being punched by an opponent hardly is more significant than being hit by a toddler,” one said.

Finally, another writer took a step back and observed that “this shows another side of Roberts as a good writer: displaying some wry humor and hipness.”

More : nytimes.com

Louis Seidman finds a contradiction in the Court of Appeals overturning the Ethics in Government Act (Op-Ed, April 25). He argues that the ”judges contended that constitutional rights are best protected by political accountability and ordinary politics. Yet the 1978 Ethics in Government Act was the product of ordinary politics.” One wonders if Mr. Seidman realizes how thoroughly his discovered ”contradiction” permeates United States constitutional law.

For example, because freedom of speech is necessary to preserve ”political accountability and ordinary politics,” the Supreme Court has repeatedly invoked the First Amendment to overturn acts of Congress that restrict this freedom. The Court never held that an act of Congress may restrict freedom of speech merely where the act ”was the product of ordinary politics.” Indeed, many respected theorists have attempted to construe almost all American constitutional law as a type of political ”antitrust” law through which the Federal courts are empowered to keep the ”political marketplace” and the ”marketplace of ideas” free.

If Mr. Seidman senses a general contradiction in the United States Constitution, he is in good company: it is said that Kurt Godel, perhaps the greatest logician who ever lived, long refused to become an American citizen and pledge allegiance to the principles of that document because it was, to his eye, so obviously internally inconsistent. As Justice Oliver Wendell Holmes pointed out, the path of the law has not been logic, but experience. KENNETH MCKENNA New York, April 25, 1988

Source : query.nytimes.com

PRESIDENT NIXON’S eleventh-hour attempt to stave off rejection of the Carswell nomination was an unusual effort to equate Senate opposition to the President’s will with an attack on presidential powers and a threat to the system of checks and balances.

Nixon wrote: “What is centrally at issue is the constitutional responsibility of the President to appoint members of the court—and whether this responsibility can be frustrated by those who wish to substitute their own philosophy or their own subjective judgment” for his. Senate opponents, Nixon argued, were out of bounds in resisting Carswell simply because they felt that there could have been a better choice. He also complained that the opposition Senators were trying to deny him appointment rights that had always been accorded to Presidents of both parties.

At best, the President’s letter contained a dubious view of the Senate’s constitutional role. The Constitution states that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.” The responsibility to propose is the President’s alone; the power to dispose is shared.

There were few defenders of the President’s letter in the Senate, even among Carswell supporters. Constitutional-law experts also criticized Nixon’s reasoning. “Presidential carte blanche is repudiated by the very words of the Constitution,” said Francis Allen, dean of the University of Michigan law school. Added Philip Kurland, constitutional-law expert at the University of Chicago: “It is quite clear in the Constitution that the President and the legislature are responsible for creating a third, coequal branch (of Government).”

More : time.com

On Saturday, when the United States Supreme Court stopped the recount in Florida, Associate Justice Antonin Scalia sent a thunderous message to the world. The Bush team “has a substantial probability of success,” he said.

In the legal world, that phrase has a specific, somewhat limited meaning.

But in the real world transfixed by the presidential battle, it took on a booming significance that may have been even more dramatic than Justice Scalia intended: It was taken to mean the battle for the presidency was all but over.

After listening to arguments yesterday in the nation’s highest court, experts on constitutional law said they saw the justices searching for some middle ground. That was quite different from the inevitable defeat for Vice President Al Gore that Justice Scalia had seemed to predict.

“I think everyone thought it was over,” said Barry Friedman, a constitutional law professor at the New York University School of Law. “But after listening to the argument you sit back and think, boy, they may really send this thing back for more vote counting.”

It is rarely possible to predict the votes of the justices based on their questions. And the experts interviewed yesterday said it was still possible an effort at building a coalition could collapse, sending the court back to its 5-to-4 split in the stay order on Saturday.

But after the arguments yesterday, some experts said liberal justices seemed more attracted to certain Bush legal arguments than had been expected and two of the justices who had agreed with Justice Scalia on Saturday, Sandra Day O’Connor and Anthony M. Kennedy, appeared undecided about certain issues.

More : nytimes.com

Joseph H. Choate died suddenly late last night at his residence, 8 East Sixtythird Street, of a heart attack. He had complained of feeling ill during the day and had retired early, but there was no physician with him when the end came. He breathed his last at 11:30. Mrs. Choate and their daughter, Miss Mabel, were at his side.

Source : query.nytimes.com