I note with mild relish that I have begun to get personalized adverts on my page. So far they seem to be chiefly for sort of amateur legal research databases. I shall have to use more interesting keywords before I will be able to boast the museum specimens, opera publications, martial arts equipment, culinary and religious supplies, prom dresses and, curiously today, laser keratotomy that I have seen on Odious and Peculiar.

German Philosophy

The following is an excerpt from a very old number of the Michigan Law Journal--out of an article entitled simply German Legal Philosophy. I thought it might tickle the fancy of those of my friends who, like me, suffered through too many seminars on Hegel, Heidegger, and similar goobers. Some of the vituperation is admittedly ascribable to the date of publication (1918), but I still find it amusing for its sheer mass of sarcasm.

So it is in the philosophy of the law. Professor Beinkopf finds something that strikes him as an idea in English or French or Italian writing. He at once invents a new theory, sounds a new watchword and savagely criticizes his rivals as without discernment. Thereupon Doctor Schlechtbier retorts with a rolling thunder of German amenities prounouncing Beinkopf a hollow sham. This rouses Professor Raucher who writes a grund-something-or-other to prove to a demonstration that both Beinkopf and Schlechtbier are mere dabblers in science, arrogant peacocks, and a disgrace to a learned country. The noise of the conflict arouses the Geheimrat Rauhbart, and by a mere multiplying of language, beginning with the heavy patter of metaphysics degenerating into a slow, steady, endless drizzle of words, he drowns the others and demonstrates that Beinkopf, Schlechtbier and Raucher are all of them totally wrong. But after the storm has passed it is found that they were all asserting the same thoughts in different words, and the only residual matter is their denounciations of one another. Professor Kocoureck apologizes for this "elemental savagery" of German "criticism" by the fact that "the German language is blunt and plain." It seems to be an extraordinary sort of language in which a man cannot express himself without being a blackguard. As a matter of fact, the German language is like their critical thought and writing. What is needed is justness of perception in dealing with involved facts. But in this sort of perception the German mind, as a great critic has remarked, is naturally wanting. Their mind is like their language, not clear, but vague and gauche; it has in it "something splay and something blunt-edged, unhandy, infelicitous--some positive want of straightforward, sure perception." The language permits and encourages the invention of awkward, vague compounds, with no restraint on their ugliness. This gives their language to ordinary eyes its tremendously learned appearance. The average man is bound to assume when he sees such agglutinative monstrosities as Militarstrafgerichtsverfahren, Gerichtsverfassungsgestez, Poliszussammengehorigkeit, Geschlechtsgenossenschaft, Buffelshalsbuckelsfettigheit, Entwickelungsgeschichte, or Volkerrechtswissenschaftslehre sprawling their uncouth lengths of tremendous consonantal thicket across the page, that thelanguage is learned and the thought profound. But that is all illusion. Aristophanes or Plautus did this kind of thing for fun, but the Germans are in deadly, sober earnest.

John M. Zane, German Legal Philosophy, 16 Mich L. Rev. 287, 366-67 (1918).

Tennessee v. Lane

This Monday, the radio was all abuzz about three political issues, all involving the judiciary. There were, of course, the debacle over same-sex marriage in Massachusetts, and a lengthy discussion in honor of the fiftieth anniversary of Brown v. Board of Education of Topeka. I noted that the discussion of Brown dealt, predictably, very little with its actual legal innovations, and almost exclusively with the absurd question "If Brown outlawed segregated schools, why are our schools still segregated?" (Answer: because Brown did not outlaw segregated schools, it merely prohibited states from segregating them.)
But the third and really perplexing treatment was of the recently decided case Tennessee v. Lane. Lane is the sort of case that the news media love dearly for its lurid facts and potential to spark controversy among the ignorant. It involves a suit brought by a parapalegic southern gentleman who was charged with some minor criminal offenses and arraigned in a courthouse without wheelchair access. The reporters took every possible opportunity to repeat, with salacious alacrity, that "Mr. Lane had to crawl up the steps of the courthouse," and dwelt at great length on the myriad indignities imposed on the disabled by our cold and heartless society.
Mr. Lane's plight seemed very sympathetic, but the story left me a little puzzled. The ADA has for years required provision for wheelchair access to public facilities, and almost any litlgation surrounding the interpretation or validity of that act was decided years ago. However, the reporter finally saw fit to note that the decision was not on the actual merits of Mr. Lane's claim, but on the 11th Amendment issue.
For those without pocket Constitutions handy, the 11th Amendment disallows suing states in federal court. This may come as a surprise, since a great deal of federal "civil rights" litigation has a state or one of its organs as a defendant. Suffice it to say that there are many exceptions, notably that, under ex parte Young, you can sue federal officials to enjoin them from state action. The issue in Mr. Lane's case was not, therefore, whether the vile state of Tennessee could force him to crawl up the steps of the courthouse, since he could clearly ask for an injuction requiring the state to install a ramp, or probably even have his convicion overturned on a federal habeas petition if he were jailed for failing to appear. No, the issue was whether Mr. Lane could sue the state for money damages, for which the ADA also provides.
I understand that the general public might have trouble understanding all the ramifications of 11th Amendment jurisprudence, but had NPR's purpose been to inform rather than titillate, they could easily have reduced the issue and holding in Lane to four points:

1. The 11th Amendment prohibits suing states for money damages.

2. The 14th Amendment created an exception to the 11th Amendment when states violate 14th Amendment rights.

3. Therefore, Congress can abrogate state sovereign immunity as long as it is acting under its power to enforce the 14th Amendment.

4. The right of access to the courts is one such right, and so Congress can authorize damage suits against states who violate it.

Lane contains no startling revelations about the constitutionality of failing to have wheelchair ramps in public places. Indeed, the Court's decision would apply equally if Congress had provided for damage suits in case of any barring of access to the courts whatsoever: Mr. Lane's being handicapped is irrelevant to the majority opinion's reasoning. This is true despite the unhelpful and fatuous concurrences of Souter and Ginsburg, which, respectively, bring up eugenics and try to turn the Constitution into a manifesto of inclusiveness.
All this is as much as to say that, if the news is going to report on current Supreme Court decisions (which I generally regard as a bad idea, but that is the subject of another post), it ought at least to enlighten the ignorance of the masses rather than provoke it. For heaven's sake, it took me weeks to learn last summer that the much-deplored American Library Association decision was a spending-power case.

Prolegomena

At the gentle prodding of certain friends, I have finally decided to indulge in myself that gauche modern notion that the detritus cluttering a cathode-addled brain looks better in electronic type. Or, perhaps I simply know that certain acquaintances of mine do in fact spend a deuced long time on the internet; and conceive that, by providing them with a paragraph or two of public blithering and indictments, I can enervate the general neglect which I have shown them during my past three years of academic seclusion. But make no mistake: I cannot pretend, however feebly, to emulate the genius of Odious and Peculiar (or, for the matter of that, of either individually). I have neither the wit, the knowledge of opera, nor the free access to intoxicating liquors for such an undertaking. Any chance I may have had to contribute to such a grand enterprise as Odious's and Peculiar's was dashed by my failure to think of a sufficiently catchy adjective. I must, therefore, try to make up in an aboundance of free time (of which I find myself briefly in possession since my recent graduation from Law School) for those aforementioned qualities that I lack. I will probably restrict most of my commentaries to my areas of expertise, which at present consist in a somewhat warped, federalist view of American constitutional law and tradition. I offer up the caveat that, however bombastic and (occasionally)politically controversial my comments may appear, I don't really present it to have it commented upon, unless you are one of the few about whose opinion I happen to care. I once cohabited with Dialogue for long enough that the two of us are barely on speaking terms. I have, therefore no intention of opening up my sololoquy to those who would spoil it with tedious contrary observations, more particularly if those observations happen to be true.
Therefore, I will now go to avail myself of my small stock of Paulaner HefeWeizen, to take inspiration for a post about Tennessee v. Lane.