Constitutionalism and judicial review in an allegedly democratic society is a good topic to ponder if you want to feel like your head is about to explode. (See, for instance, a recent blog-comment conversation I had with my friend Jerry.) But that doesn’t stop some of us. We just love feeling like our heads are about to explode.

So I was glad to see that Professor Dorf posted some interesting remarks on the topic yesterday. Here’s a tantalizing excerpt:

[E]xperience shows that given the formal option of legislative override, citizens and subjects in countries quite similar to our own—including two (the UK and New Zealand) with no entrenched written Constitution—accept countermajoritarian judicial review as legitimate. This is pretty clear majoritarian support for the countermajoritarian practice of judicial review. . . .

[Critics of judicial review can] say that in accepting the legitimacy of de facto judicial supremacy, citizens and subjects of these common law countries are making a mistake; they are accepting a less than fully democratic regime. This would be a little like criticizing subjects of a benevolent (or even not-so-benevolent) dictator for accepting the dictator’s edicts as legitimate. That’s a perfectly sensible move, but note that it is hard to describe it as a move that questions the legitimacy rather than the wisdom of the system being criticized. And for the most part, critics of judicial review have tended to couch their arguments in terms of legitimacy.

In other words, you can have a “legitimate” system that is also “foolish”—or, to hit all possible combinations, a legitimate/wise system, an illegitimate/foolish system, or an illegitimate/wise system. But splaying all the combinatorial possibilities, while it may be helpful in clarifying debate, mostly just makes me question the independent viability of the concepts.

I suppose “legitimacy” roughly corresponds with procedural integrity, while “wisdom” roughly corresponds with substantive integrity. In other words, a “legitimate” system is one whose procedural workings are consistent according to societal agreement, while a “wise” system is one whose substantive effects are experienced by citizens as just. That really just pushes the debate into another arena, however: what constitues a societal agreement and who counts as a citizen?

Professor Dorf suggests in the excerpt above that tacit acceptance of judicial review by a society where it is not required may be a societal agreement that lends legitimacy to the practice. But what about societies like ours, where we have a strong textualist strain, which claims that only what is written can constitute the societal agreement? Do they automatically win because they have a writing to back them up? (This falls directly into a lot of the problems I pondered in the discussion linked in the first paragraph above.) And whose experience of justice is the one that counts toward determining the wisdom of the system? If any group can seize legitimate power in the name of justice, and impose an experience on others that the others perceive as unjust, is the system still legitimate? Is it just or unjust?

Even more troublesome is the question of what to do when a system appears illegitimate or foolish, but the concepts of legitimacy and wisdom, when given practical force, leave you no option but to ride along with what you perceive as the downfall of your society. (And how do you know your perceptions are accurate to begin with?)

Let the cranial pyrotechnics begin.

Here’s an opinion from the California Court of Appeal that piques my legal imagination: Estate of Will, handed down on Tuesday.

Sometimes people marry later in life. They’ve already raised children and accumulated assets, and they don’t want California’s community property law to mix things up. So they make a premarital agreement that says, in effect: “I’ll keep my stuff and give it to my kids when I die, and you do the same. Let’s stay away from this ‘community property’ thing. I won’t inherit from you, and you won’t inherit from me.”

That’s what Gertrude and Ted did in Estate of Will. And they expected Gertrude to die first because she was suffering from cancer. (Apparently the main reason they got married was so Ted could put Gertrude on his medical insurance, to cover the costs of her cancer treatment.)

Then Ted died, leaving behind substantial assets, to be distributed by his will and trust, which had been executed more than 20 years before he married Gertrude. So guess who wasn’t named as a beneficiary. Suddenly Gertrude—and her potential heirs—are looking at those substantial assets and apparently thinking, “Hey, I could get me a piece of that!”

California has some rules about who inherits from whom. For instance, if a testator (a person who makes a will) failed to leave anything to a surviving spouse who married him or her after the will was executed, the omitted spouse can still receive a share of the estate—unless the omitted spouse waived his or her inheritance rights.

So there’s Gertrude, surviving spouse of Ted, and she’s not named in his will because he made the thing decades before he married her. He’s got this estate that will need to be distributed. And she made that premarital agreement waiving her right to inherit. D’oh!

But they didn’t follow all the Family Code rules to make the premarital agreement enforceable. Gertrude was not represented by her own attorney and didn’t make the necessary waivers. Ted presented the agreement to her only the day before the wedding, so she didn’t have the required seven-day period to think about it before signing. Oh, and there’s this nifty little section in the Probate Code that says “the validity and effect of [a] premarital property agreement shall be determined by the law otherwise applicable to the premarital property agreement.”

So Gertrude (or, more likely, Gertrude’s attorney) thinks, as I probably would have in the same situation, “Aha! The Family Code says the premarital agreement is unenforceable, so the waiver of inheritance rights in that thing won’t work! Score!”

But the Probate Code also has some rules about what makes a waiver of inheritance rights enforceable, and those rules are quite a bit less stringent than the Family Code rules about premarital agreements. There’s no requirement of independent counsel or a seven-day waiting period.

So there is this written agreement, signed by Gertrude that says she waives her right to inherit from Ted. It will not hold up as a premarital agreement. But the court says it does hold up as a waiver of inheritance rights. And that’s the part that fascinates me.

The court’s opinion is pretty short, only about five pages long, and it doesn’t offer a lot of explanation. But it’s clearly saying that, in certain circumstances, a written agreement can function as a premarital waiver of the right to inherit, even if it’s not enforceable as a full-on premarital agreement. This illustrates, in a bizarre way, a basic concept of legal agreements: the writing and the legal effect of the writing are not the same thing. If Gertrude had been able to litigate this writing as only a premarital agreement, she probably would have succeeded in having it set aside. But the same writing, when litigated as a waiver of inheritance rights, was perfectly enforceable.

You’re not supposed to cite judicial opinions for holdings that are only implied, and not considered directly, but this one makes me wonder about those heightened procedural requirements for premarital agreements. How many legal effects could a creative attorney glean from an otherwise “unenforceable” premarital agreement? This opinion is not especially clear on that point, but it seems the court is tying the enforceability of the individual provisions in a premarital agreement to the public policy reasons that undergird the heightened procedural requirements:

In enacting Family Code section 1615 [regarding the requirements for enforceable premarital agreements], the Legislature did not mention [Probate Code] section 140 et seq. regarding premarital inheritance waivers by surviving spouses. This omission implies that the Legislature intended that omitted spouse waivers continue to be governed independently by the Probate Code. Moreover, the two statutory schemes are not so inconsistent or irreconcilable that they cannot have concurrent operation.

Maybe I’m missing something, but that seems like a pretty big chink in the armor for heightened procedural requirements for enforceable premarital agreements. It surely cannot mean that any code section relating to the enforceability of a written agreement, enacted before Family Code section 1615 was enacted, can make a provision in the agreement enforceable, because that would make section 1615 a dead letter. But what about provisions in premarital agreements that may not be essential to achieving the policy goals for the extra precautions? Are those still enforceable, even if the whole agreement is not?

Of course, I can’t actually think of any other situations when a piece of a premarital agreement might be enforceable while the whole is not. So maybe I’m just chasing phantoms. And does anybody drafting these things really need another excuse to be careful with terms and keep them narrow? But now I’m wondering about the possibilities—if there are any.

As the court notes in the opening paragraphs of its opinion, the result here is clearly the fair one: it seems obvious that Gertrude did intend to waive her right to inherit. But she never expected to have that opportunity anyway. In that respect, the opinion is a warning sign to people making agreements: never assume you can foresee the future. Sometimes, as this court put it, the uncertainty of human expectations will become apparent. And then, as they say, you may be up a creek.

Please note the usual disclaimers. I am not giving legal advice. Nothing I write here is intended as legal advice and nothing I write here should be taken as legal advice. If you have a personal legal problem, you should consult with a lawyer in your area who is licensed to practice law.

The California Court of Appeal handed down two quirky cases today. (By “quirky” I mean “including a creative argument, the discussion of which is both intellectually stimulating and entertaining.”)

First was Legal Services v. Bowen. There the court held that when section 2 of the 14th amendment to the federal constitution says you can disenfranchise people for “participation in rebellion or other crime,” the word “crime” is not restricted to “felonies at common law.” Go figure. And even though there are pages and pages of discussion in the court’s opinion thoroughly trouncing what was, I have to admit, a pretty creative argument, the best part is the last paragraph:

If Petitioners’ argument were accepted, it would mean that someone convicted of larceny, a felony at common law, would not be allowed to vote, however modest the take. But the defendants in People v. Schoenfeld (1980) 111 Cal.App.3d 671, serving life sentences for kidnapping 27 children and burying them in a school bus for 28 hours, would. As would the serial child molester. And the drug kingpin. If that manifests a worthy public policy, it comes in a novel guise.

In other words, if you haven’t already slapped your forehead, you should do it now. I love a well-turned judicial understatement.

The other quirky case is Lu v. Hawaiian Gardens Casino. In that one, a casino dealer argued that casinos should not be allowed to require the pooling of tips, since tips are handed directly to dealers, instead of being left on tables, like in restaurants. Again, another creative argument, although the court dismisses it, with the classic phrase, as “a distinction without a legal difference.”

The opinion is not so entertaining as the one in the case above, but there is an interesting bit about restaurant tips, quoted from an earlier case (Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062):

We dare say that the average diner has little or no idea and does not really care who benefits from the gratuity he leaves, as long as the employer does not pocket it, because he rewards for good service no matter which one of the employees directly servicing the table renders it.

This court then added:

Lu made no factual showing that casino patrons intend tips specifically for the dealer and not for the good service received from all the employees with whom they come in contact.

I used to have a job delivering food for a business that had a tip-pooling policy. Since I was the delivery person, I was often the only employee the customer directly interacted with, and the tips were always handed directly to me (because there was no one else to hand them to). But every now and then (not frequently) customers would declare a specific intent that a certain tip be mine, and mine only. Sometimes I put them into the pool, sometimes I didn’t. But either way, I felt like somebody was getting snubbed—I was either ignoring the wishes of the customer or ignoring the policy of my employer. (But I seem to recall my boss telling me that, in those situations, it was okay to keep the tip for myself. Or maybe it was my fellow employees telling me that. I forget.)

I had never really thought about that in legal terms until now, but it’s interesting. Do Lu and Leighton stand for the proposition that an employee may keep any tips the customer specifically declares to be intended for the personal use of the employee? Probably not. Both of these cases cite the doctrine that a judicial opinion cannot stand for a proposition it implies, but does not consider directly. That’s a signal that you’re out there in the borderlands of law. But that’s also where you can do some creative lawyering. Which, as both of these cases demonstrate, does not always succeed. (Makes for fun blog posts, though.)

Professor Dorf, apparently amused by the verbal shenanigans that appeared in President Obama’s oath of office, did some homework and devised a convincing hypothesis for what happened. He lays most of the blame with Chief Justice Roberts.

Now that we’re down to one more week of George W. Bush, the strength of his reality distortion field must be waning. Bob Woodward reports:

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.

In other words, we couldn’t prosecute Mohammed al-Qahtani, who allegedly planned to participate in the attacks on September 21, 2007, because any statements we might have obtained from him were legally inadmissible due to their being procured by torture.

Folks are abuzz that the word “torture” has finally seen the light of day, but Andrew Sullivan makes the more important observation, more clearly than I probably would have:

So we get bad information; and they get to avoid true legal or moral accountability for their acts of terror (if they committed any).

That’s what torture does. It puts all of us—not just the torture victims—into a place where information is destroyed and fabricated, and nobody knows which way is up. It’s contrary to truth-seeking and it’s contrary to our entire age, which values true information so highly.

And there’s a smidge of irony, too. Our legal rules prohibiting the use of statements obtained by torture come straight through our own checkered history, with cases where white police tortured black suspects to obtain confessions. (See, e.g., the infamous case of Brown v. Mississippi, 297 U.S. 278 (1936).) So here we are, with a white president authorizing the torture of brown-skinned detainees, but nobody will actually admit it until just before the first black president assumes the Oval Office.

I doubt there’s really anything to that observation. Judge Crawford probably would have said the same thing no matter the color of Barack Obama’s skin. But the circumstances lend well to poetic drama. And witnessing the beginning of the end of this whole torture charade only reinforces, to many of us, the terrible danger of turning the most powerful office in the world into a cult of personality and a bastion of ideology. Reality slips away and we damage the integrity of all humanity.

Some advice from PZ Myers:

I want my commenters to be uncivil. There is no virtue in politeness when confronted with ignorance, dishonesty, and delusion. I want them to charge in to the heart of the issue and shred the frauds, without hesitation and without faltering over manners. These demands for a false front of civility are one of the strategies used by charlatans who want to mask their lack of substance — oh, yes, it would be so goddamned rude to point out that a huckster is lying to you. I am quite happy that we have a culture of being rude to frauds [on Pharyngula].

I completely agree with the underlying sentiment, which appears in the sentences that I put into boldface above. The hard part is recognizing when you are truly facing “ignorance, dishonesty, and delusion” from “charlatans.” Unfortunately, you can’t just ask someone, “Are you an ignorant, dishonest, and delusional charlatan? Are you trying to mask your lack of substance?” Well, you can, but then you can’t expect an accurate response. It takes some experience discussing a particular topic with a variety of people before you’ll have a passable success rate at determining on your own whether a conversational foe meets those criteria.

So while there may be no virtue in suffering fools, there’s probably some virtue in honing your fool-detection skills before you take Myers’ advice to heart.

Here’s another way technology that makes information more accessible is improving things:

[A] national study released today by Indiana University that found that law school students who used their laptops in class were highly engaged in classroom activities. The study of more than 29,000 students at 85 law schools found that students who frequently used their laptops to take notes, review ideas from past lectures or read a self-prepared case brief were more likely to come to class prepared, contribute to class discussions and synthesize material across courses. They were also more likely to work hard to meet faculty expectations.

When I was a law student, I used a laptop. Sometimes (like in my deathly boring class on wills and trusts, or while my remedies professor shared endless anecdotes and punny witticisms) I was only playing games. But most of the time, I used my Mac to take highly structured lecture notes (using OmniOutliner), to do quick legal research (with LexisNexis), to explore basic background information (with Google), and to request clarification from classmates (“What did the professor just say?”) (using Adium). My grades were alright.

So I never understood the complaints of people who say that laptops in class are a bad thing. But it’s nice to see my experience backed up by a “national study.”

If you’re not yet accustomed to the collapsing barrier between “human activity” and “environment,” and recognizing that everything we do with our high-tech, silicon-based, electrically-powered devices is directly related to everything that happens with the ecosystem, then you should read this post from the Guardian Technology Blog. Here’s an excerpt:

Google claims that its servers generate 0.2g CO₂ per search, and counters that “the average car driven for one kilometer (0.6 miles for those of in the U.S.) produces as many greenhouse gases as a thousand Google searches.” Kevin Marks, who works at Google on their Open Social project, says on his personal blog that people generate about 6g of CO₂ from simply breathing for 10 minutes.

How is that for a consciousness-raiser? Do a Google search and Google’s servers generate two-tenths of a gram of carbon dioxide, which goes into the air we breathe. Your own computer or web-connected device is doing something similar when you run that search. Now compare that to the CO₂ that would have been generated, back in the old days, by whatever means you had to research the same questions.

And by the way, do you remember the old days? You would be with your friends and somebody would ask a question like, “I wonder how much carbon dioxide a server at Google generates when you submit a search.” People would pull numbers out of thin air, and whichever of you could manage to sound the most authoritative would trigger a discussion that, based on your imaginary numbers, was little more than discursive masturbation. Now you can pluck just about any fact not from thin air, but from the combined informational resources of the entire human species, thanks to Google.

At any rate, so long as you ignore news from the Middle East, or anything having to do with religion, it sure seems the human species is progressing nicely toward increasing its collective knowledge and awareness of its surroundings. The idea that there is a “we” that is separate from the “environment,” and the environment is out there, barreling along like a truck that we just happen to be riding in, doing our whole “All the world’s a stage” schtick, pretending that human history is something separable from natural history, looks like it’s on the way out. Finally.

After weeks of people complaining that openly anti-gay pastor Rick Warren was invited to participate in the Obama inauguration, now I read that openly gay Episcopalian bishop Gene Robinson has also been invited. I’m not surprised. The anti-Warren-ites, with their wailing and gnashing of teeth, somehow managed to forget that a major theme of Obama’s political life, especially in his presidential election campaign, has been inclusion. That Obama is not substituting Robinson for Warren is important, and gets to straight what I already wrote on this issue:

So long as whoever has the reins of power is just using that power to shunt dissenters to the side, instead of drawing everyone into the national conversation, we will never make progress. The change is to broaden the conversation, not just to swap out who is talking.

I am especially pleased to see that Robinson is not just an openly gay Christian minister, but also one of the people who irrationally (in my opinion) complained about the choice of Warren, calling it a “slap in the face.” Leave it to someone like Barack Obama to put mortal foes in the Culture Wars up there next to each other, praying to the same God. Put that in your pipe and smoke it, culture warriors.

None of that is to say, however, that I don’t think Robinson is equally as loony as Rick Warren. Here’s a quote from Robinson:

God never gets it wrong. The church often takes a long time to get it right. It is a human institution, but one capable of self-correction.

No, sorry, there is no God, and the church only gets it right after the rest of us drag you kicking and screaming into reality. (Unless you’re a Catholic, in which case you subscribe to a bizarro-world parallel history that inaccurately and inexplicably portrays all good things in the world as being the result of the Roman Catholic Church.)

And, while I enjoy this turn of events, what I wrote before still applies, maybe even moreso:

The real problem is that there is an invocation at all during an inauguration ceremony. The strong, underlying message remains: If you want to be an American, you have to worship God. All other possibilities are subtly omitted and excluded. So Obama could still do more, yes—for instance, he could invite Sam Harris to offer some words during the same portion of the program when Warren speaks—but asking Rick Warren [and Gene Robinson] to give an invocation is not a bad thing.

At least Robinson has the good sense to admit that ”[w]hile [the Bible] is a holy and sacred text to me, it is not for many Americans.” He also says, “I will be careful not to be especially Christian in my prayer. This is a prayer for the whole nation.” Which is nice. But maybe he could go all the way and be careful not to be especially religious in his invocation. That would be interesting.

Watch this video of police up in the Bay Area shooting 22-year-old Oscar Grant in the back while he is lying on the ground, face down, compliantly.

Yes, it is disturbing. You need to be disturbed. Especially if you think civilian oversight of police is a bad idea. Despite the Second Amendment, police officers are pretty much the only people we allow to walk around in public, weilding firearms. What’s the problem with that? Watch the video.