Objectivity needed

Professor Chemerinsky (August) informs us that in its most recent session the Supreme Court “made no new law but instead applied long-standing precedent.” He elaborates that Kelo v. New London, justifying use of the “takings” clause for local economic benefit, “in no way changed the law.” He even cites “misreporting in the media” as the likely cause for any contrary opinions.

The professor seems nonjudgmental about the idea of the court “making new law” but he plainly wants to avoid having that loaded phrase attached to a case advancing the “big government” agenda he favors.

Those of us who read your coverage of the court hoping for some objective insight into its workings and rulings will have to look elsewhere so long as your only offering on the subject is advocacy from a well-known activist for liberal causes.

Richard H. McConnell
Mill Valley

A big deal

Irwin Chemerinsky seeks to minimize the importance of the public use/eminent domain Supreme Court decision in Kelo v. City of New London. He considers the case to have been misreported by the mainline press and is critical of what he calls the “dramatic press coverage,” since in his judgment the decision “in no way changed the law.”

Justice O’Connor, writing in dissent in Kelo, states the majority “significantly expanded the meaning of public use” for eminent domain purposes and that the decision “abandons a long held, basic limitation on government power” to condemn private property. That certainly sounds to me as though at least one Supreme Court justice believes the law was being changed by the majority’s decision and, if that’s right, how can the lay press be criticized for dramatically reporting the same thing? Is it possible that Justice O’Connor and the press are more correct on this point than Irwin Chemerinsky?

But regardless of whether or not the law was changed, the Kelo decision represents an important new development. For the first time the Supreme Court held that proposed private development, standing alone, constitutes a sufficient public use or purpose to sustain an action in eminent domain. That’s dramatic, and it’s fully worthy of dramatic press coverage.

Tom Gilfoy
La Canada

Where’s the right?

While Mr. Chemerinsky’s analysis was certainly interesting, intelligent and well-written, it represents the liberal view of the U.S. Supreme Court and last term’s decisions (Mr. Chemerinsky ably presents the left’s views on current legal issues on a radio talk show based in the LA area). Will we see a similar analysis in the Bar Journal by a conservative court-watcher?

Anne Marie Flaherty
Sacramento

Up in smoke

I am disturbed with the rationale of the medical marijuana case. True, in Gonzales v. Raich, 125 S.  Ct. 2195 (2005), “Justice Stevens explained that for almost 70 years, Congress has had the authority to regulate activities that have a substantial effect on interstate commerce.”

But I remember learning from Professor Chemerinsky that Congress can only regulate things like medical marijuana if, at a minimum, there is a rational basis for so doing. The court reasons that federal drug prohibition reaches the intra-state cultivation of state-approved medical marijuana cultivation because, in the aggregate, such cultivation would substantially impact the illicit interstate market for non-medical marijuana; however, left unanswered is the public interest reasonably served by protecting the black market and why the government does not have to cite empirical evidence of medical marijuana’s substantial impact on the illicit market as required by U.S. v. Lopez, 115 S. Ct. 1624 (1995) and U.S. v. Morrison, 120 S. Ct. 1740 (2000).

Worse, all the justices ignored the de jure racial animus involved in the genesis of marijuana prohibition. In my opinion, failing to address the rational basis of a federal policy that radically restricts federalism and personal autonomy, as well as the whitewashing of history for the sake of upholding Wikard v. Filburn, 63 S. Ct. 82 (1942), produces something other than “calm.”

Kenneth Michael White
Upland

How about a serious test?

After reading the MCLE with the anti-bias self-study piece in the August Bar Journal, I must say that I literally wanted to puke.

With all of the problems that we have with individuals losing their health insurance, people being wrongly convicted and injured workers being forced into poverty, one would think that the Journal would carry something a little heavier than teachings on what snoopy judges and lawyers should do if they hear another attorney tell an off-color joke.

Frankly, I question when all this nonsense will end. It appears that the State Bar continually caves into these grievance groups with nothing more than a whimper being detected by those of us who are members. The bar needs to get back to where it once was and that is to further the interests of the association and its members without spending so much time trying to change the attitudes of its members.

Robert L. Kelley
Camarillo

Disgusting reality

When a friend told me to tune into the newest reality show based on a real law firm setting, I was intrigued, until I watched the show. After enduring horrific trial advocacy skills for 60 minutes, I was surprisingly shocked at the conclusion when one young attorney was so dismayed at the mock-arbitrator’s ruling, he stormed out of the conference room like a child, blasting the judge with an offensive expletive. At the firing segment, this young man was not let go but rather slapped on the hand.

In a time when lawyers are the butt of all jokes and thought poorly of, I am offended that behavior such as the one on the show was not reprimanded. Even more offensive was the inaction by Roy Black, a supposed legal icon who must have passed the bar before ethics became a mandatory prerequisite.

David D. Diamond
Los Angeles