Law Blog

If you’ve been watching cable news, you’re probably aware of the “Birther” movement – a loose coalition of individuals and organizations promoting the idea that Barack Obama is, for one reason or another, not constitutionally eligible to serve as President.

They make a variety of factual and legal arguments to support their conspiracy theories. The most common “factual” (a term I use loosely) argument they make is that Obama was not actually born in Hawaii, as is widely accepted. Instead, they claim, he was born in a foreign country (usually Kenya). Of course, they ignore that a Certification of Live Birth has been released, and confirmed to be accurate by the relevant officials in Hawaii.

Others concede that he was born in Hawaii, and rely on dubious legal arguments to support their claims. Some claim (usually without citing any supporting authority) that, in order to be a “natural born citizen” under the meaning of the U.S. Constitution, both parents must also be citizens of the United States. To be fair, the Supreme Court has never firmly ruled on what it means to be a “natural born citizen” under the meaning of the Constitution. So, the birthers have simply settled on their own definition, to the exclusion of all other possible definitions.

To support this point, they often rely on the writings of a Swiss political philosopher named Emerich de Vattel, author of the 1758 book “The Law of Nations.” This tome was apparently quite influential in the early development of international law, and it advocates the idea that, for a person to be a “true” citizen of a nation, both of his or her parents must also be citizens. There’s just one problem: no evidence suggests that this work particularly influenced the framers of the U.S. Constitution when they were drafting that document. Even if it did, a Swiss book on political philosophy is not binding legal precedent in the United States.

None of this has stopped a dentist/lawyer named Orly Taitz from filing a lawsuit challenging President Obama’s eligibility to serve.

The result? The case was dismissed almost immediately. However, Ms. Taitz continued to file motions, and, after repeated warnings from the judge, was slapped with a $20,000 fine for misconduct, noting that she made no coherent legal arguments, and that her briefs and motions read more like political manifestos than court documents.

It should be noted that one of the best things about this country is the fact that you can say almost anything about anyone, especially elected officials, with relatively few legal ramifications. However, that does not mean that you are guaranteed a platform to air your views, or that you get to use the courts to air whatever crazy idea happens to pop into your head. If that were the case, I’d be in court right now, arguing the merits of hamburger earmuffs.

In the end, we should all remember that the courts are a place to settle genuine legal disputes, and the non-issue of Mr. Obama’s citizenship is not one of them. Ms. Taitz has every right to express her political views in any number of ways. She could buy space on a billboard, she could run spots on the radio, or she could simply make like this guy.

I always like it when frivolous lawsuits are in the news.  This time they are at the center of the President Obama’s proposed health care plan.

The gist of it is that the current debate surrounding the new health care plan could be resolved if the Republicans get their way on medical malpractice lawsuit reform.  For those of you who might not know, the Republican Party has long held the view that frivolous lawsuits are a plague on modern American society.  In the case of medical malpractice, they essentially believe changing the ease in which claims can be brought against medical professionals and/or placing caps on what plaintiffs can receive in pain and suffering awards will lower medical malpractice insurance.  The logic here is that reducing the liability and financial risk of practicing medicine reduces malpractice insurance premiums which will then reduce the cost of health care for all us Americans.

In practice, however, it’s not that simple.

Now to all you out there on the internet who are still reading my various rantings, you’ll know that I’m not a fan of frivolous lawsuits in that I think they are, well, frivolous.  They clog up our judicial system with claims better suited for rulings from a clown court.  They often don’t need to be heard at all and are aimed only to make money.  You’ll all probably also notice by now that my politics fall in the center and I’m more an advocate for bi-partisanship, despite the fact that I generally loathe the frivolous lawsuit.  So it pains me to say that at the same time, I do realize the ease in which lawsuits can be filed can also serve as a great potential deterrence to the more corrupt in our society.  Most people looking to rip people off in an intricate business scheme would probably think twice, or at the very least further complicate their plan to rip people off, if they know that they could easily be held liable for their actions.

So what am I saying, you ask?  Well, basically that in this case there needs to be a better balancing of objectives.  While it may seem like a good compromise by making lawsuits hard to file against medical professionals, that also means it will be harder for all people to file lawsuits against medical professionals, regardless of the legitimacy of their claim.  Furthermore, putting a cap on pain and suffering award will most likely reduce medical malpractice insurance for doctors, which is great for doctors.  However, that doesn’t necessarily mean that those savings will be passed on to patients.  If you were suddenly freed from your car insurance premiums, would you give all that new disposable income to Oliver Twist and the rest of orphanage?  I would, but not everyone is a wonderful as I am.

The best course of action, I think, in this case would be a compromise from the Republicans.  As much as medical malpractice lawsuits need to be reformed, the sheer number of health needs that will be served by the passage of President Obama’s new health care plan greatly outweighs the follies of an overly litigious public.  The privatization of health care in some ways could be a factor in increasing frivolous lawsuits, as well.  People who can’t get the money for their surgery from their insurance company could theoretically try and go after their medical providers instead.  It may sound like a stretch to some, but hey, crazier things have happened.

Once again, I’ll get off my soapbox…

Obama’s newest (murky) plans finally offer an alternative to Bush’s Military Commissions, as well as the possibility that Guantanamo Bay’s Camp-Delta will be shut down once and for all. Such a decision cannot happen immediately, much to the ACLU’s chagrin, but the very idea that it could happen at all comes as a relief to human rights advocates and legal scholars alike. (Thanks to How Appealing for the story).

So what is Obama proposing? Andrew Cohen of CBS News outlines Obama’s possible tripartite scheme to deal with the 250 or so prisoners remaining at Camp-Delta. The details are not readily available, but they include two controversial parts that have been bandied about in the media recently and discussed on well known legal blogs: 1) bring those suspects who have less egregious “garden variety” terrorism charges to the United States to stand trial in Federal Court; and 2) create a new, largely secret court in the United States to handle the most egregious offenders, such as masterminds like Khalid Sheikh Mohammed, currently on trial at Guantanamo Bay.

Part one would be controversial, but not without precedent. The U.S. has tried suspected terrorism suspects in open court before, such as the recent prosecution of Zacarias Moussaoui. However, extending due process rights to terrorism suspects makes some worry about exposing national security secrets. Such a right could mean exposing a terrorist snitch or shedding light on confidential intelligence gathering methods. However, American courts try extremely dangerous criminals everyday using evidence provided from confidential sources. In camera inspection and gag orders can be crafted to remedy possible security concerns, and in any case, these suspects would not be high level detainees tried with sensitive evidence.

Part two is even more controversial, and it is questionable whether President-elect Obama would have the authority to create an entirely new court system. Obama’s proposal, although at an early stage, also sounds like it might suffer from the lack of transparency currently plaguing Bush’s Military Commissions.

Egregious problems with the current system include the use of evidence obtained by torture such as waterboarding, and not allowing defendants to see the evidence against them. If one takes Obama advisor Laurence Tribe at his word, however, these important issues will be addressed with these new courts: “It would have to be some sort of hybrid that involves military commissions that actually administer justice rather than just serve as kangaroo courts… it will have to both be and appear to be fundamentally fair in light of the circumstances.”

Hopefully, Tribe’s idea of justice and fairness is in line with the basic ideals outlined in our Constitution and the Geneva Conventions. If they were, this new system would definitely be far, far different than the current regime put into place by the Bush administration.