‘God’ doesn’t exist. We all know this. Nonetheless, allegedly atheist Nebraska State Representative Ernie Chambers has seen fit to sue His Omnipotence for various tortious wrongs.

This article wastes most of its column inches detailing the various charges levied against The Everlasting, only mentioning in passing Chambers’ alleged point:

[H]is main objection is the constitution requires that the doors to the courthouse be open to all.

Apparently, Chambers is trying to make a point about frivolous lawsuits. It would have been nice if the article would have spent a little more time explaining how Chambers intends this lawsuit to make that point.

I do not think legislators, of any level of government, should engage in sarcasm. I also do not find sarcasm a persuasive argument, nor do I think the courts should play host to such arguments. If Chambers’ point is that the courts are overburdened with frivolous lawsuits, filing a frivolous lawsuit isn’t going to help the problem. Chambers should do his job and introduce legislation to strip some jurisdiction from the Nebraska courts.

I would be interested to hear Chambers’ opinion on how court jurisdiction should be limited in order to prevent the filing of frivolous lawsuits. Whatever it is, I doubt it would work. If he’s arguing jurisdiction, maybe he should have thought more about how he chose to do so. His lawsuit is frivolous first and foremost because of a lack of jurisdiction. God cannot be served in Nebraska. Cf. U.S. ex rel. Mayo v. Satan, 54 F.R.D. 282, 282 (W.D. Pa. 1971) (finding that Satan could not be served anywhere in the United States). I would suggest that a large number of frivolous lawsuits are in fact filed despite a lack of jurisdiction. So narrowing the jurisdiction of the Nebraska courts would not be likely to have any effect on the quantity of frivolous lawsuits filed there. They would still be filed, and they would still be dismissed by one of the gatekeeper rules (analogous of Fed. R. Civ. P. 12(b)).

The lawsuit Chambers objected to, and which apparently set him off, was (as far as can be speculated from the scant information available on the Interwebs) a civil suit against Nebraska district judge Jeffre Cheuvront for (guessing here) emotional distress stemming from his 2006 decision granting a defense motion to prohibit the use of the word “rape” (inter alia) during a rape trial. Now I’m no expert on Nebraska’s Tort Claims Act, but I think this suit would die for failure to state a claim. Tort Claims Acts generally protect government officials from personal tort liability arising from actions committed within the scope of their government duties. And his decision on the motion would only be reviewable under an abuse of discretion standard on appeal, so any question of whether Cheuvront was acting within that scope would depend intimately on any appeals of the motion. No such appeal appears to be in the works, but even if one were, it wouldn’t be ripe because the first jury hung, so there is no final judgment from which to appeal.

So as far as I can tell, Chambers’ position here is simply, “That’s rubbish; there ought to be a law.” Unfortunately for Nebraskans, Chambers has the power to act on this position.

Posted by Qwertz at 10:27pm on 18 Sep | No Comments

Today, my law school hosted a mini-panel on equality as part of the University’s ongoing “Diversity Week,” and as part of the Law School’s “Constitution Week.” Several professors spoke on their research into equality and the Constitution. All three took a Progressivist stance.

By Progressivist, I mean this:

It is one thing to insist that the law be applied equally to all. It is entirely another to insist that equality requires the unequal application of the law. For instance, if equal operation of the law has the effect of ‘disenfranchising’ some group (the poor; the uneducated; the disinterested), then the law must be applied unequally in order to even out the effect. The argument is that ‘equal’ operation of the law ignores the contextual differences between groups, and so equal operation of the law reinforces those contextual differences. Examples of contextual differences apparently include wealth, education, color, history of oppression/disenfranchisement, gender, &c., &c.

Here are just some of the problems:

1. The law does not exist to enforce “contextual equality,” or “equity” as it was termed by a panelist. The law exists to protect individual rights, and it accomplishes this by setting objective rules for when and how government force may be used. The law is not a vehicle for enforcing income equality, or education equality, or weight equality.
2. This is not a country of groups. It is a country of individuals. Groups do not have rights; only individuals do. It would be silly indeed to insist that the law enforce ‘equity’ on an individual level, so this groupthink is essential to the Progressivist’s position. How, as Ayn Rand asked, can one purport to be a defender of minority rights, if one ignores the rights of the smallest minority?
3. There is nothing relevant to legal determinations (that is, determinations of whether and how government force should be applied in particular instances) beyond that which is ethically relevant. The fact that one is rich does not affect one’s guilt for a murder. The fact that one is of Asian extraction does not affect whether one’s contract is enforceable. Only volitional acts are morally cognizable, and the law should concern itself with only those volitional acts related to the instant purported rights-violation.

In all, it was a pretty unfortunate display.

Posted by Qwertz at 9:35pm on 18 Sep | No Comments

Yesterday was Constitution Day and I let it slip by without saying anything profound. Naughty Qwertz. Very bad.

The Constitution’s brilliance (aside from the revolutionary idea that government power is derived only from the people) is in its attempt to insulate itself against corruption. The Framers separated government power among the Federal branches, and between the Federal and State governments, so that tyranny could grow only slowly. The Framers knew they were drafting a document composed largely of compromises, and probably knew that would come back to bite the country in the backside at some point in the future. So they created the Separation of Powers doctrine to help slow that down.

Today, we see all sorts of erosions of the Separation of Powers doctrine: mostly the Executive encroaching on the Legislature or the Legislature encroaching on the Judiciary. Of the three branches, the Judiciary tends to be the least “activist” in breaking down the Separation of Powers (though they are not guiltless in this). With the degradation in the separation of powers, the Federal government will become more nimble and we will see changes occurring at an increased pace. The Federal government is not so much a hulking, lumbering, clumsy sloth by design any more as it is by simple bloat.

Unfortunately, the Separation of Powers doctrine also protected those flaws in the Constitution that were born of compromise. Slavery could have been abolished under the Constitution in 1808, but it took 60 more years and over 600,000 dead before that happened. Changing something so fundamentally bad as Congress’ power to lay and collect taxes (Art. I, § 8, cl. 1), the Commerce Clause (Art. 1, § 8, cl. 3), the post office (Art. 1, § 8, cl. 7), or changing the ability of something like Amendments XVIII and XXI to even occur in the first place, or repealing bad alterations, like Amend. XVI or Amend. XVII, are all hindered by the Separation of Powers doctrine, not so much by virtue of the difficulty of altering the actual text of the Constitution as by virtue of the difficulty faced by the Judiciary in navigating Executively- and Legislatively-entrenched obstacles to reach a just solution.

Nevertheless, the dispersion of power effected by the Constitution is masterful, and a testament to the brilliance of the Framers.

Posted by Qwertz at 8:55pm on 18 Sep | No Comments