Diana Olick, writing for CNBC, has an article entitled Foreclosure Fraud: It’s Worse Than You Think. I’ve touched on this a little bit before, but the problem faced by big time mortgage holders is that they cut corners and didn’t get their paperwork right.

The issues are securitization, modernization and a whole lot of cut corners. Real estate law requires real paper transfer of documents and titles, and a lot of the system went electronic without much regard to that persnickety rule. Mortgages and property titles are transferred several times in the process of a home purchase from originators to securitization sponsors to depositors to trusts. Trustees hold the note (which is the IOU on the mortgage), the mortgage (the security that says the house is collateral) and the assignment of the note and security instrument.

As a creditor’s rights attorney, I’m not terribly excited by the prospect of debtors skipping out on their obligations; but creditors have to realize that, if they can’t prove that they, in fact, own the debt in question, they’re in a whole lot of trouble.

I’m not a scholar of legal history, but what reading I’ve done suggests that real estate law is really the fountainhead of the common law. The crown needed a system to resolve land disputes between his nobles (or, at times, a fig leaf for taking that land). The result has been something like 800 years of real estate law. My sense is this means that real estate jurisprudence tends not to be as forgiving when your “i”s aren’t dotted and your “t”s aren’t crossed. Clouding the chain of title by zipping electronic assertions of ownership here and there is going to come back to bite mortgage holders.

Ed Brayton flagged this story out of Mississippi where a judge apparently jailed a lawyer for contempt when the lawyer stood respectfully for the pledge of allegiance instead of reciting it.

Says the judge:

BE IT REMEMBERED, this date, the Court having ordered all present in the courtroom to stand and recite the Pledge of Allegience, and having found that Danny Lampley, Attorney at Law, failed and refused to do so, finds said Danny Lampley to be in criminal contempt of court.

I guess it’s Mississippi, and this kind of stuff is just going to happen there. However, I suspect the types of folks who routinely complain about activist, arrogant judges would see no problem with this case.

Ed quotes Justice Robert Jackson in West Virginia v. Barnette:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Ed Brayton, in Dispatches for the Culture Wars, had much the same reaction as I did to the concurrence of Justice Thomas in the case of McDonald v. Chicago (pdf).

This case was not, strictly speaking, about whether the Second Amendment guarantees an individual right to bear arms or whether that right is tied to regulation of a militia. The Supreme Court decided the former in the Heller case back in 2008. Rather, the question was whether the Second Amendment – whatever it means – applies to the states and, if so, why.

Ed says:

The fact that the second amendment applies to the states through 14th amendment incorporation should be utterly uncontroversial. It is absolutely clear from the debate surrounding the amendment that one of the primary motivations for passing the law was to overturn laws in the south forbidding blacks from owning guns.

The problem with the majority opinion is that it follows bad precedent by incorporating via the due process clause of the 14th Amendment. Justice Thomas has, correctly I think, been pushing for jurisprudence that incorporates those rights through the privileges and immunities clause. The Supreme Court basically read the privileges and immunities clause out of the 14th Amendment in the Slaughter-House cases back in 1873.

Concludes Ed:

The position Thomas is taking is one that is very popular, virtually a consensus, among most legal scholars — with some conservative exceptions, who fear that the P & I clause is broader than the due process clause and will lead to more recognition of unenumerated rights, which is exactly why I like the idea.

He’s right on this one. And the fact that he continues to beat the drum for a revival of the P & I clause despite the fact that none of his colleagues are willing to go along with him — not because he’s wrong but because doing so would mean reevaluating a bunch of other cases — is something that I admire.

Just for reference, the text of the Fourteenth Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Lawyers and judges can learn a lot from Road House (as can people from just about any walk of life.)

Dalton: All you have to do is follow 3 simple rules: One, never underestimate your opponent..expect the unexpected; Two, take it outside, never start anything inside the bar unless it’s absolutely necessary; and Three…be nice.

Hank: [Incredulously] Come on!!

Dalton: If somebody gets in your face and calls you a cocksucker I want you to be nice.

Hank: [With resignation] Ok

Dalton: Ask him to walk, be nice, if he won’t walk, walk him, but be nice, If you can’t walk him, one of the others will help you and you will both be nice…I want you to remember, that it’s the job, it’s nothing personal.

Steve: Being called a cocksucker isn’t personal?

Dalton: No, it’s two nouns combined to elicit a prescribed response

Steve: What if somebody calls my Mama a whore?

Dalton: Is she?
[everybody snickers]

Dalton: I want you to be nice.. until it’s time..to not be nice

From the sounds of a Court of Appeals opinion (h/t Indiana Law Blog,) Judge William Young of the Marion County Superior Court, Criminal Division 13 wasn’t following Dalton’s third rule.

Hollinsworth argues that comments by the trial court during the bench trial showed the court was not impartial. For example, at the beginning of the trial, the court granted a recess so the parties could discuss a plea agreement, but no agreement resulted, and the trial began. After the State called its first witness, Hollinsworth informed the Court that she did not want a trial and now wanted to accept the State’s proffered plea agreement. The Court exhibited impatience and stated that if Hollinsworth were found guilty, “she’s going to jail for a year.” (Tr. p. 8.) The trial court further stated, “I don’t know if I want to take your plea. I’d rather just go to trial, I think. I don’t like being jerked around at all, all right?” (Tr. p. 9.) Also, while reviewing Hollinsworth’s criminal history at sentencing, the trial court noted that Hollinsworth had been charged with theft and battery while the instant suspended license case had been pending. When her attorney stated, “Those are only alleged charges,” the trial court responded, “Sure they are.”

The Indiana Supreme Court agreed with the Defendant and reversed the trial court, citing Canons of Judicial Conduct that require a judge to be impartial, patient, dignified, and courteous to litigants. Jon Murray spoke with Judge Young who conceded that he had been in the wrong that day and the Supreme Court had done the right thing.

Federal Judge, Sarah Evans Barker, writing for the United States District Court for the Southern District of Indiana has issued an order enjoining Greenwood High School from proceeding with its planned school prayer. (via the Indiana Law Blog (pdf)). One of the folks I follow on Twitter was tweeting about the oral argument yesterday, and it sounded like the Bose McKinney lawyers hired by the school corporation were having a tough time of it.

The issue, generally, is that Greenwood High School went out of its way to have an election for the purpose of asking graduating students whether they wanted a prayer at their commencement. The senior class secretary or treasurer would be called upon to lead the prayer, written by that person but subjected to prior approval by the school administration. This, according to prior Supreme Court precedent as reviewed by Judge Barker, is unconstitutional. This is not an open forum, it’s a closely controlled government function. The school engineered a process – by setting up the vote – that would lead to a controlled government forum in which students were required to sit through a school-approved prayer.

I can’t read minds, so I don’t know for sure, but I’m skeptical about the motive behind these efforts to pray at public, government sponsored events. I can’t believe these things enhance the relationship between an individual who desires it and their god in any way that can’t be accomplished an hour earlier or an hour later. I’m left to conclude that it’s a desire by those people to enhance the relationship between third-parties and God. But, more than that, as I’ve said before, it looks to me like marking territory. The people who believe in God and actively push for these kinds of prayers want to demonstrate that *they* are in control. Anyone else just lives here.

(Indy Star article for further reading)

Justice Stevens’ decision to retire prompted the age old discussion of “strict construction” by judges. The idea is that judges are supposed to strictly apply the law to the facts at hand and not do much in the way of reflection on the law or the desirability of the outcome. During that discussion, I suggested that I hadn’t actually had the pleasure of observing a strict constructionist, regardless of how a particular judge might describe him or herself. Hugo Black is probably as close as we’ve gotten.

What occurred to me only later is what immense responsibility this would place on legislators if they were actually forced to deal with nothing but strict constructionist judges. They’d have to think through the full implications of what they wrote into law without being able to trust that judges would be, well, judicious in how the law was applied. It reminded me of a passage from Neal Stephenson’s Cryptonomicon:

This “sir, yes sir” business, which would probably sound like horseshit to any civilian in his right mind, makes sense to Shaftoe and to the officers in a deep and important way. …he has come to understand the [military] culture for what it is: a system of etiquette within which it becomes possible for groups of men to live together for years, travel to the ends of the earth, and do all kinds of incredibly weird shit without killing each other or completely losing their minds in the process. The extreme formality with which he addresses these officers carries an important subtext: your problem, sir, is deciding what you want me to do, and my problem, sir, is doing it. My gung-ho posture says that once you give the order I’m not going to bother you with any of the details – and your half of the bargain is you had better stay on your side of the line, sir, and not bother me with any of the chickenshit politics that you have to deal with for a living. The implied responsibility placed upon the officer’s shoulders by the subordinate’s unhesitating willingness to follow orders is a withering burden to any officer with half a brain, and Shaftoe has more than once seen seasoned noncoms reduce green lieutenants to quivering blobs simply by standing before them and agreeing, cheerfully, to carry out their orders.

I’ve read enough legislation and draft legislation in my time to shudder a bit at the thought of judges applying the language absolutely in all situations unless the text specifically instructs them not to regardless of whether doing so makes sense or seems remotely just. That would really up the pressure on legislators to craft legislation meticulously, being sure to describe every caveat and exception.

Today, the 7th Circuit issued its opinion in the case of Milwaukee’s Sheriff’s Association v. David A. Clarke (pdf) (7th Cir. 2009).

The case involved a complaint by members of the Milwaukee County Sheriff’s Department following mandatory employee meetings where a religious group was allowed by the Sheriff to give Christian-focused presentations. The district court entered summary judgment in favor of the Plaintiffs, finding a violation of the Establishment Clause. The 7th Circuit agreed “[b]ecause the group’s presentations during mandatory employee gatherings gave, at the least, the appearance of endorsement by the Sheriff’s Department.”

The first presentation occurred at the Sheriff’s department leadership conference. Attendance was mandatory for all deputies with the rank of Sergeant or above. The Sheriff spoke first. He announced that he would be making upcoming promotions to the rank of Captain and distributed written material that included a quotation from the Bible. The handouts listed the qualities a leader should look for in his inner circle—one of which was “people of faith.”

About an hour later at this mandatory meeting, a member of the Christian group, “The Christian Centurions” gave a speech which said, among other things:

Whether or not we acknowledge it, each of us here today has a high calling and corresponding responsibility. Civil government was God’s idea. The first several verses of Romans 13 tell us He established government and that people in authority are ministers of God assigned to promote good and punish evil.
. . .
Grappling with enormous pressure while realizing that some level of evil plays a role in each of our lives can be discouraging, maybe defeating. That’s why Paul tells us in his letter to Timothy to pray for those in authority. I don’t like to admit it but my life is fragile—the book of James tells us that life appears like a mist and it’s gone. I’m not really the captain of my own ship. Fortunately, the same God who ordained authority inspired a book and sent a counselor that promises to give us guidance on how to navigate life’s road.

After that, the Sheriff arranged for the Centurions to speak at 16 roll calls, which are mandatory, between May 9 and May 16, 2006.

The 7th Circuit analyzed the action under the Lemon test: “government action violates the Establishment Clause if it has any of the following characteristics: (1) a non-secular purpose; (2) the principal or primary effect of advancing or inhibiting religion; or (3) fostering an excessive government entanglement with religion.” Lemon has been sharply criticized by Justice Scalia, but has not yet been overturned.

Scalia’s characterization of Lemon in Lamb’s Chapel v. Center Moriches:

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed “test” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so.

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs ‘no more than helpful signposts.’ Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. (Citations omitted.)

Anyway, back to today’s the 7th Circuit case. “a government practice can also violate the Establishment Clause if a “reasonable person, apprised of the circumstances surrounding the [challenged government act], would conclude that [it] amounted to an endorsement of religion.” The Sheriff’s repeated inclusion of unabashedly Christian messages in a mandatory meeting of government employees would seem reasonably to lead to a conclusion that he was endorsing Christianity and that non-Christians were outsiders.

Concluding its Establishment Clause analysis, the 7th Circuit writes:

We do not suggest, however, that religiously affiliated groups are always constitutionally barred from working with or speaking to government employees. Rather, we limit our analysis to the facts of this case, where an authority figure invited a Christian organization that engaged in religious proselytizing to speak on numerous occasions at mandatory government employee meetings. A reasonable observer would have been well aware that the Sheriff did not extend such privileges lightly. Most other organizations that received similar access shared a common attribute: the Sheriff had expressed an interest in partnering with them.1 Indeed, it would be difficult to interpret the Sheriff’s actions as anything other than endorsement.

Maureen Groppe, writing for Gannett News Service, has an article about Judge Hamilton’s nomination to the 7th Circuit Court of Appeals. Conservatives are stalling a vote on his nomination. One case he has gotten particular grief about is his ruling that sectarian prayer could not be part of the official business of the Indiana House of Representatives. That decision, was well reasoned, and well within prior precedent. (The 7th Circuit declined to rule on the merits, instead overturning the decision based on taxpayer standing using Supreme Court decisions of a more recent vintage.)

Groppe’s article says that Senator Lugar supports the Hamilton nomination. Lugar says Hamilton has not been a judicial activist and “has ruled objectively and within the judicial mainstream.” The way the political parties have used the term, judicial “activism” has been meaningless — nothing more or less than “ruled consistently with my political philosophy.” Still, I think it’s pretty fair to say that Judge Hamilton has done a good job of applying precedent and statutory authority to the facts presented to him.

Hamilton is the nephew of former (and well respected) Congressman Lee Hamilton. Sen. Lugar has known the Hamilton family for a long time.

The FBI has apparently arrested a right wing radio host and blogger by the name of Hal Turner. Mr. Turner apparently made threats against 7th Circuit Court of Appeal judges in conjunction with their decision in the case of NRA v. Chicago.

Internet postings [by Turner] on June 2 and 3 proclaimed ‘outrage’ over the June 2, 2009, handgun decision by Chief Judge Frank Easterbrook and Judges Richard Posner and William Bauer, of the Chicago-based 7th U.S. Circuit Court of Appeals, further stating, among other things: ‘Let me be the first to say this plainly: These Judges deserve to be killed.’ The postings included photographs, phone numbers, work address and room numbers of these judges, along with a photo of the building in which they work and a map of its location.

Talk about your misplaced anger. Reading the opinion gives one the distinct impression that these judges may well have agreed that the Second Amendment should be incorporated through the Fourteenth Amendment and applied to the states. However, they felt constrained to abide by Supreme Court precedent refusing to incorporate the Second Amendment. The Seventh Circuit judges noted that the precedent was old and might well be ripe for overturning, but that it was not their place to do that. It was up to the Supreme Court to do so. In other words, they appear to have refused to overturn the Chicago handgun bans because the Supreme Court had not yet given them the green light.

In 1989, the Supreme Court issued a ruling that destroying a flag in protest is protected free speech. Kaitlin Shawgo of the Fort Wayne Journal Gazette has an article about the decline of flag burning as a pressing issue in American politics. There’s nothing that would make me want to burn a flag except attempts to prohibit it. I doubt flag burning was ever a very common past-time and the controversy about the need to ban it was mainly ginned up for votes and campaign money.