Friday, March 16, 2007

The Nuggets of Esenberg: Shirley's Theme Song

The Shark wrote an essay on Judicial Restraint which is a delight to read.

But rather than excerpting long, I'll present a few aphorisms--nuggets--for future reference. They combine brevity with memorability, and get to the heart of the matter.

Re checks and balances (and setting the table for the rest of the paper):

We have given judges the final say on what the law means because they do not get to say what the law is.

While discussing the Ferdon decision:

The precise contours of this carnivorous form of review are not clear.

On the Dairyland decision (which reversed another decision which was only 2 years old):

Because the parties to the 1991-1992 compacts believed that they would be able to negotiate for new casino-type games in the future (the compacts provided for amendment), the court held that it would be an impairment of contractual obligation to construe the 1993 amendment to defeat that expectation.

It seems unlikely that the court really intends to find an unconstitutional impairment of contract whenever someone's hope for a favorable contractual amendment is frustrated by subsequent legislation.

...but they DID find so to accomodate Governor Doyle and the Tribes. Would the Court rule, then, that someone's belief that taxes will not rise should invalidate increased taxes?

In sum:

Having voted to restrict the expansion of gaming, the state's residents now find that they have conferred a monopoly on the tribes to engage in any type of gaming that the Governor might agree to and that is permitted by federal law.

Bet you didn't know that, eh?

In Jarrell, the Court mandated recording of police interrogations of juveniles.

...the court's concern went beyond problems of proof (that were themselves not present in the case before it) to substantive judgments about how interrogations should be conducted that were rooted in neither the constitution nor the statutes.

Justifying such regulation because it is implemented through a rule of admissibility (and is, therefore, a rule "governing the courts") establishes a principle with no obvious stopping point.

On the "lead paint" decision (Collins):

...its suggestion that the constitutional provision maintaining that Article I, section 9 "does allow for a remedy through the existing common law"61 suggests that it believes that Article I, section 9 imports into the common law a constitutional imperative for a "remedy" whenever there is a "wrong," whether or not recognized at common law. The court acknowledged amicus' argument that such a broad constitutional command cannot be "maintained in some principled way thereby creating uncertainty in a number of cases,"62 but pronounced itself untroubled ...

Which, I suppose, hints at the title of Screechin'Shirley's personal theme song:

Que Sera, Sera. Whatever will be, will be/the future's not yours to see/It depends on ME!

That is precisely the nature of Screechin'Shirley's decisions on carrying a concealed weapon for self-defense, which Esenberg also discusses (no excerpts here.)


Ms. Abrahamson has attempted to baptize (thus sanctify) her majority's meandering opinions as "The New Federalism," which has some appeal to people who disagree with the state of jurisprudence at the Federal level. You know, the 9th and 10th Amendments, and all that stuff. But the direction The Screecher has taken with her "New Federalism" looks a bit more like "Old Anarchy,"--a logical outcome of Social Science-based decisions.

In DuBose:

The court in DuBose, like Jerrell C.J., reached out to create a broad rule regarding what law enforcement procedures should be permitted in response to concerns that were not presented by the case before it.

both cases represent a departure from the way in which the court had generally handled such questions reflecting, perhaps, a diminished weight placed upon precedent. And as we have seen, Ferdon and Dairyland reversed very recent decisions, calling into question the extent to which anything can be regarded as settled other than by the type of head counting normally associated with political prognostication.

Esenberg concludes:

We have seen that a number of the Wisconsin Supreme Court's recent decisions have involved an aggressive re-examination of legislative fact-finding (Ferdon) or the rooting of a decision in facts that are controverted (Thomas) or outside of the record (Jerrell C.J., DuBose). We have seen the court engage in a judicial reformulation of legislation (Fisher) and adopt doctrine that it is unlikely to follow in future cases (Ferdon, Dairyland). ...

It is the purpose of this white paper to facilitate a discussion about this important trend and to foster a dialogue about the proper role of the courts in our state. It is the hope of its author that it begins now—in earnest

It is also the hope of rational citizens of this State, as well, Rick. Let's Get It On!!

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