i woke up at 8:25am Wednesday morning, same as i wake up every morning now that the Fall Semester is here.
i ate a banana, had a shit, brushed my teeth, then got dressed and grabbed my school bag.
of the three classes i had on the schedule, i only packed one book into my bag, with my laptop computer and three folders full of the briefs on the subjects we were scheduled to discuss.
it just isn't practical to bring all three books to school. it makes my bag way too heavy.
so far, Legislation and Regulation seems to be the only class where we reference the text of the cases we are reading right there in class.
in the event that i should ever need to have my books for either Constitutional Law of Civil Procedure, well, i guess i'd just be shit out of luck.
i kissed the Monster and the PSE goodbye then went out on my way.

once again, Constitutional Law started with our classmate Nijim Skyping in from down in Houston.
he said his house and his family remain fine, though there was some concern that a levy might break in his neighborhood and if that happens, everybody will get washed out to sea.
we wished him the best, again, then got down to the topic of the day.
at first, our Professor spent some time talking about Article V of the Constitution which spells out procedures for amending the Constitution.
there are two ways, you should know, through Congress, or through 2/3rds of State Legislatures calling for a convention.
the Convention route has never been done under the Constitution and we spent some time hypothesizing about how that might go, though, nobody really knows.
the problem with a Constitutional Convention is that the last time one was called it was to tidy up the Articles of Confederation and they ended up just scrapping the whole thing and writing the Constitution.
you don't want to give people the opportunity to get carried away.

next we moved on to the Scope of Federal Power and how the Federal Government gathers power for itself.
there are certain things the Constitution explicitly prescribes the Federal Government to do; raise an army, coin money, borrow on credit, enter into treaties, but then there all of the other things that the Federal Government has grown to do, all of the things that make up the sprawling Federal Beast and those things are implicit powers.
a good number of those implicit powers come out of either the Commerce Clause or the Necessary and Proper Clauses of the Constitution.
the Necessary and Proper Clause says that “Congress shall have power... to make all laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States...”
which is to say that Congress shall have the power to give itself power, if it deems it necessary and proper.
and the Courts have historically ruled that “necessary” has a fairly loose definition.
if you were to ask me what “necessary” means i would define it as “essential,” something without which the Government could not function, but the Court tends to read “necessary” as “convenient.”
this is because somewhere else in the Constitution the term “absolutely necessary” appears and they figure that if “necessary” meant “absolutely necessary” it wouldn't have the modifier.
so, in all likelihood, we have the expansive, sprawling bureaucracy that the Federal Government is today on account of some Framer's sloppy writing.
the other big way the Federal Government gathers power for itself is through the Commerce Clause.
we only just started to talk about the Commerce Clause and we will likely get into it more over the coming weeks because it's a doozy.

after class, i got to talking to a guy i'm friendly with who spent twenty-someodd years working in law enforcement.
he is a realist, like me and we talked about how, really, everything we are talking about is a mess of bullshit.
Constitutional Law, like all law, and like society in general is all just a great big fiction that most but not all of us agree to live by.
the Courts say that people who interact with the police have a Constitutional right to have their Miranda rights read to them but in practice, if they want to get a confession out of a guy first, they'll find a way.
if a cop wants to fuck a guy up before taking him to the precinct, he'll do that, too.
political power flows out of the barrel of a gun, like the Chinaman said.
all we're really doing in Law School is learning how to masturbate.

after Constitutional Law i went down to the library to do an hour's worth of reading for some other class, then, at 1:00pm, i met up with the PSE and the Monster who came to bring me lunch.
we sat and ate together for twenty-five minutes, then i kissed the girls goodbye for a second time and reported to my second class of the day.

in Civil Procedure we talked about General Jurisdiction, as opposed to Specific Jurisdiction which we'd been talking about all this time before.
General Jurisdiction is a way for Courts to assert jurisdiction over a Defendant who can't be served in the forum state even when the controversy in question didn't occur in that state.
as opposed to Specific Jurisdiction which requires either that a Defendant be served in the forum state, or that certain minimum contacts tie them to the state.
to assert General Jurisdiction, a petitioner must show that a Defendant has had “continuous and systematic contacts” with the state in which jurisdiction is sought.
the courts have further refined “continuous and systematic contact” to mean that the state is essentially the home state for the Defendant.
all of that got pretty in-the-weeds for my preference.

in Legislation and Regulation we continued to talk about purposivists and textualists, about how one group of judges look at the purpose of the legislation they are asked to interpret and the other looks strictly at the text.
this is all that we've been talking about for three classes now and i'm not sure why we're spending so much time on this.
this time, we talked about King v. Burwell, which is the 2015 Supreme Court decision that upheld Obamacare, largely.
our Professor wanted us to see that Chief Justice Roberts' majority opinion was a hybrid purposivist-textualist approach, that he looked at the text in question, whether or not an “exchange established by the state” excluded healthcare markets set up by the Federal Government and, when he found ambiguity -and only when he found ambiguity- did he then look to the purpose of the text.
and, the Chief Justice decided, the purpose of the law was not to create a healthcare market just to watch it implode on itself but to try to create something that would work.
which makes sense, i guess.
perhaps the best part of King v. Burwell, though, is the dissent, which was dripping with Antonin Scalia snark.
“the Secretary of Health and Human Services is not a state.” that's cute.

on Friday i had Civil Procedure, Again from 1:30 to 2:50.
we talked about how the Internet effects concepts of jurisdiction.
jurisdiction is territorial and traditionally, for a court to exert jurisdiction, the person they are trying to get jurisdiction over must be physically in the state or they must have certain minimum contacts with the state, but, what the fuck is a minimum contact for the Internet?
the Court came up with something called the Zippo Test which is a continuum they can use to evaluate websites to determine if these minimum contacts are being met.
one one end you have websites that are interactive and used to exchange important information, like banking information, on the other end you have websites that are completely passive that people just look at.
how much interactivity people have with their websites determines whether minimum contacts for jurisdiction have been met.

//[ab irato ad astra]

October 2017

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