Interesting Standing Decision

I haven't read the opinion yet, but here is a newspaper account from the Indianapolis Star:

"All prayers, including those to Jesus, once again can be given from the podium of the Indiana House.

The 7th U.S. Circuit Court of Appeals in Chicago ruled today to overturn the decision of a U.S. district court judge who ruled that sectarian prayers could not be offered from the floor of the Indiana House.

The initial decision, rendered by U.S. District Judge David Hamilton in November 2005, ruled that opening prayers in the House could not mention Jesus nor endorse a particular religion. Then House Speaker Brian Bosma, R-Indianapolis, appealed that decision and current Speaker B. Patrick Bauer, D-South Bend, decided to continue it.

The lawsuit challenging the House prayers was filed by the American Civil Liberties Union of Indiana on behalf of four citizens.

In a 2-1 ruling today, the appeals court said those plaintiffs did not have the standing to sue because public tax dollars could not be linked to the practice of prayer.

Bauer applauded the decision this afternoon.

"While we do need more time with the Indiana Attorney General and the House staff counsel to examine all the ramifications of today's decision, I am delighted that the court has left alone a tradition that has been a part of House proceedings for nearly 190 years," Bauer said."

"For polyamorists, three's not a crowd; it's just the start"

From the Seattle Times.

After Lawrence, are these consenting adults exercising a constitutionally protected liberty?

Law Review Citations

Here are citations for the law review articles assigned for Friday's discussion of Roe v. Wade:

1. John Hart Ely, The Wages of Crying Wolf, 82 Yale L.J. 920 (1973) (Hein online)

2. Frances Olsen, Unraveling Compromise, 103 Harv. L.Rev 105 (1989)(Hein online)

Class Schedule: Wednesday Oct.17 & Oct.24

UPDATE: I did figure out what holiday we are celebrating by canceling class next Wednesday, Oct.24: Red Sox in the World Series (again) Day!

Another one of our required class cancellations is coming up next week.

The law college's annual alumni lunch is scheduled for noon, October 17, at the Cornhusker Hotel. I have been asked by the Dean to attend, and so there will be no class on Wednesday Oct.17.

We still need to cancel 4 more classes. I will use 2 of these for the last week of class (Wed-Thurs) and the last Friday of class will be an optional review session for me to field your questions. I will probably cancel class on Wed. October 24 as well. I will save one required cancellation for a possible snow day or emergency.

2050: Brave New World

At first I thought this was a joke, but after reading it, the authors are serious. Right now it is a scientific forecast, but, believe me, if people begin to want this, it will become a constitutional issue sooner rather than later. Here is the link. Here is an excerpt:

"Forecast: Sex and Marriage with Robots by 2050
By Charles Q. Choi, Special to LiveScience

Humans could marry robots within the century. And consummate those vows.

"My forecast is that around 2050, the state of Massachusetts will be the first jurisdiction to legalize marriages with robots," artificial intelligence researcher David Levy at the University of Maastricht in the Netherlands told LiveScience. Levy recently completed his Ph.D. work on the subject of human-robot relationships, covering many of the privileges and practices that generally come with marriage as well as outside of it.

At first, sex with robots might be considered geeky, "but once you have a story like 'I had sex with a robot, and it was great!' appear someplace like Cosmo magazine, I'd expect many people to jump on the bandwagon," Levy said.

Pygmalion to Roomba
The idea of romance between humanity and our artistic and/or mechanical creations dates back to ancient times, with the Greek myth of the sculptor Pygmalion falling in love with the ivory statue he made named Galatea, to which the goddess Venus eventually granted life.

This notion persists in modern times. Not only has science fiction explored this idea, but 40 years ago, scientists noticed that students at times became unusually attracted to ELIZA, a computer program designed to ask questions and mimic a psychotherapist.

"There's a trend of robots becoming more human-like in appearance and coming more in contact with humans," Levy said. "At first robots were used impersonally, in factories where they helped build automobiles, for instance. Then they were used in offices to deliver mail, or to show visitors around museums, or in homes as vacuum cleaners, such as with the Roomba. Now you have robot toys, like Sony's Aibo robot dog, or Tickle Me Elmos, or digital pets like Tamagotchis."

In his thesis, "Intimate Relationships with Artificial Partners," Levy conjectures that robots will become so human-like in appearance, function and personality that many people will fall in love with them, have sex with them and even marry them."

As the Instapundit likes to say, there's more--read the whole thing.

Incorporation: Structural Provisions vs. Individual Liberty Interests

Does the Nebraska Legislature have the power to declare war against, say, Iran or Canada? Could we argue that the answer is yes, because the power of Congress to declare war has been incorporated and applied to the states via the Due Process Clause of the 14th Amendment?

When talking about the Doctrine of Incorporation it is important to distinguish structural provisions defining the power of Congress--which are not incorporated--and individual rights deemed to be so fundamental as to support incorporation. In the words of Justice Stevens, "the idea of liberty" is the source of the incorporation doctrine.

Our class discussion will focus on incorporation of the Establishment Clause and we will try to determine whether the EC is a liberty provision, a structural provision, or in part the one and in part the other.

We will not spend much time talking about the cases in the casebook other than to point out the tests they employed for incorporation:

1. Palko--In Palko, the Court talks about incorporation of the "freedom" of speech, "freedom" of the press, and "freedom" of religion and says the test is whether an individual liberty interest contained in the Bill of Rights is "implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment becomes valid as against the states."

2. Duncan v. Louisiana--the test for incorporated individual liberties is whether the liberty in question is among the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," or whether the liberty is a "fundamental right" and "basic in our system of jurisprudence."

Does the Establishment Clause create a liberty interest? Or is it a structural limitation on the power of Congress to enact laws "respecting" an Establishment of a national religion? When the Court says that the EC forbids government from "endorsing" religion or "advancing" religion, is it recognizing a limitation on the power of government to, for example, express certain ideas in the public square, or creating an individual liberty interest?

If the latter, exactly what is the liberty interest protected? If the former, then how is it possible to talk about incorporation of a non-liberty, structural limitation on the power of "Congress?"

Is there a difference between a law requiring students to pray in the public schools and a city policy of having a Nativity display in a public park during the Christmas season? What is the difference in terms of incorporation of "liberty" interests?