The property is in the name of "Tree Farm Land Trust," which lists Monaghan as its sole owner. Tree Farm Land Trust is not affiliated with Ave Maria University or town, according to Roney and a vice president at Barron Collier Cos., the town's co-developer with Monaghan. Proceeds from the sale will go toward the university and town, but the dollars haven’t been earmarked for a specific purpose, Roney added.
I find this passage to be interesting as it shows the blurring of finances and corporate structures found in every Monaghan project: proceeds of the sale are going towards the university, even though the "Land Trust" is not affiliated with the university or town. Can't we just admit that all Monaghan investmests, properties, monies are commingled in one big Monaghan piggy bank?
[Paul] Roney, who's acting as Monaghan's agent for the Tree Farm property, holds many titles at Ave Maria entities. He's executive director of the Ave Maria Foundation, the charity established by Monaghan, chief financial officer of Ave Maria University and is one of five board members on the government of Ave Maria town.
See, even Monaghan's people are commingled in the big piggy bank.
In April, the Ann Arbor, Mich.-based Ave Maria School of Law announced it was moving to the 12-acre Vineyards property in North Naples, which was the temporary location for Ave Maria University before it began operations in eastern Collier last August. The law school will lease that property from the university, which had been trying to sell it. Monaghan founded both the law school and the university and sits on both boards, but there's no institutional connection between the two.
Hee, hee. "No institutional connection." ..... rrriiiiggghhhttttt.
The 8th Circuit Court just issued its decision to vacate the injunction obtained by Planned Parenthood against the State of South Dakota to stop the implementation of House Bill 1166.
You will remember that this bill regulates abortion by requiring informed consent that includes the statement: "That the abortion will terminate the life of a whole, separate, unique, living human being;" The statue defines "human being" as “an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation.”
The Bill's novelty is in the above statement, the necessity that the physician certify that the patient understands the information (making him subject to a class 2 misdemeanor and subject to lose his license if he doesn't certify), and alerts the mother that her relationship with the baby in utero is Constitutionally protected, but these rights are terminated with the abortion procedure.
The preliminary injunction was granted upon PP's claim that this statement, specifically saying "human being" violates the First Amendment rights of the physician because it is ideological and not factual, and non-medical information.
This despite the legislative hearings that included the following testimony from Dr. Peeters-Ney, a physician and geneticist, on the factual, biological meaning of "human being":
Becoming a member of our species is conferred immediately upon conception. At the moment of conception a human being with 46 chromosomes comes into existence. These chromosomes, the organization, the chromosomal pattern is specifically human. The RNA, the messenger protein, the proteins are distinctly human proteins. So this new human being is a member of our species, and humanity is not acquired sometime along the path, it occurs right at conception. Dr. Peeters-Ney also stated that an embryo or fetus is whole in the sense that “[a]ll the genetic information sufficient and necessary to mature, and the information that is needed for this human being’s entire life is present at the time of conception”; that it is “separate from the mother” because “[t]he genetic program is totally complete and this human being will mature according to his or her own program”; and that it is unique because it has “a totally unique genetic code.”
The 8th Circuit vacated the preliminary injunction mostly because it recognizes a higher threshold for injunctions against regulatory actions that derive from the democratic, legislative process (substantial chance of prevailing, rather than less than 50%). Planned Parenthood asserted that the language in the Act is ideological, but did not show how, or how the meaning of the language could be understood other than what is contained in the statutory language:
In the absence of some showing that there are particular circumstances in which a successful abortion will do something other than terminate the life of a whole, separate, unique, living member of the species of Homo sapiens during its embryonic or fetal age, Planned Parenthood cannot demonstrate that the physician’s ability to disassociate is implicated in this case. Given Planned Parenthood’s failure to produce sufficient evidence to establish that it is likely to prevail on the merits of its compelled speech claim, we need not address the remaining ... factors. In summary, the district court abused its discretion by failing to give effect to the statutory definition of “human being” in § 8(4) of the Act. Planned Parenthood’s evidence at the preliminary injunction stage does not establish a likelihood of proving that, with the definition incorporated, the disclosure required by § 7(1)(b) is anything but truthful, non-misleading and relevant to the patient’s decision to have an abortion, and thus “part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Casey, 505 U.S. at 884. Accordingly, we vacate the preliminary injunction entered on compelled speech grounds by the district court.
There were four dissenting judges. Justice Murphy, a woman (because the dissenting opinion has to be made by the woman on the bench) makes some radical arguments:
The medical fact that a unique set of DNA is present at conception . . . does not support a conclusion that the statutory adjectives preceding the word "human being" have scientific meaning. Dr. Ball testified to the contrary. She explained that the proposition that an abortion terminates the life of a "whole, separate, unique, living human being" is neither a medical statement nor a fact which medical doctors are trained to address, but rather an "ideological pronouncement." Ball Aff. ¶ 4. Dr. Wolpe similarly refuted assertions by several of the state's other declarants who claimed that it is a medical or scientific fact that an embryo or fetus is a "whole, separate, unique, living human being" from the moment of conception. Wolpe Aff. ¶ 2. The record is far from showing a medical consensus that a full set of DNA constitutes a "whole, separate, unique, living human being." The adjectives used in the Act to modify "human being" are not statutorily defined so they must be construed "according to [their] accepted usage and a strained, unpractical, or absurd result should be avoided." Juttelstad v. Juttelstad, 587 N.W.2d 447, 450 (S.D. 1998). A nonviable fetus is not "whole" in that it cannot maintain a separate life outside the woman's womb, and it neither "contain[s] all components or constituents" nor does it represent "a complete entity or system." See, e.g., Webster's New College Dictionary (3d ed. 2005). Likewise, "separate" in common usage means "detached," "disconnected," "existing independently," or "not shared." See, e.g., Random House Unabridged Dictionary (2006). A fetus cannot be established to be a "separate" human being since it is physically attached to a woman by an umbilical cord and fully contained inside her body, a connection on which its very survival depends. Cf. Wolpe Aff. ¶ 6.
"Hon." Judge Murphy, you complain that the statutory language is ideological, and yet these statements above are not only ideological, but they are "strained, unpractical and absurd."
1. Doesn't "separate" in this context simply mean that the human being in the womb is not a clump of the mother's cellular DNA, indistinguishable from a toe nail, or hair folicle of the mother? Doesn't "separate" in this context mean, that this life system is independent of the mother's life system, albeit dependent on it for periodic nourishment?
2. Doesn't "whole" in this context mean that the unborn has all the necessary parts to be classified as a human being? Doesn't "whole" simply mean that the being possesses everything necessary to be human? We are not talking about a leg, or an ear, but a whole human organism containing everything it needs to live in its natural developmentally appropriate environment. Would Judge Murphy suggest that a human being is not "whole" if he was placed underwater where he can not obtain the necessary oxygen to be "viable?"
3. What is the medical statement about what an abortion is if it doesn't terminate the life of a whole, separate, unique, living human being?
The Office of Inspector General recently issued a report finding that the Justice Department illegally hired conservative applicants to the DOJ Honors program. From an article in the New York Times:
The blistering report, prepared by the Justice Department's inspector general, is the first in what will be a series of investigations growing out of last year's scandal over the firings of nine United States attorneys. It appeared to confirm for the first time in an official examination many of the allegations from critics who charged that the Justice Department had become overly politicized during the Bush administration.
"Many qualified candidates" were rejected for the department's honors program because of what was perceived as a liberal bias, the report found. Those practices, the report concluded, "constituted misconduct and also violated the department's policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations."
The shift began in 2002, when advisers to then-Attorney General John Ashcroft restructured the honors program in response to what some officials saw as a liberal tilt in recruiting young lawyers from elite law schools like Harvard and Yale. While the recruitment was once controlled largely by career officials in each section who would review applications, political officials in the department began to assume more control, rejecting candidates with liberal or Democratic affiliations "at a significantly higher rate" than those with Republican or conservative credentials, the report said. ....... Applications that contained what were seen as "leftist commentary" or "buzz words" like environmental and social justice were often grounds for rejecting applicants, according to e-mails reviewed by the inspector general's office. Membership in liberal organizations like the American Constitution Society, Greenpeace, or the Poverty and Race Research Action Council were also seen as negative marks.
Affiliation with the Federalist Society, a prominent conservative group, was viewed positively.
My initial reaction was, "Why is this an issue? Can't the DOJ hire who it wants to, even based on political leanings?" It turns out that I was wrong, and that this is an issue. Of course, private citizens can discriminate based on political affiliations when hiring. The President can certainly discriminate based on political affiliations when hiring someone as a political appointee. But for non-political appointee, civil servant positions in the DOJ Honors program, it is illegal to hire based on political affiliations. 28 C.F.R. 42.1(a) says that: "It is the policy of the Department of Justice to seek to eliminate discrimination on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, political affiliation, age, or physical or mental handicap in employment within the Department and to assure equal employment opportunity for all employees and applicants for employment (emphasis added)."
This raises all kinds of interesting issues:
-The government report compared the deselection rates of liberal "highly qualified" candidates versus conservative "highly qualified" candidates. However, "highly qualified" was defined as having attended a top 20 ranked law school, being in the top 20%, with a federal judicial clerkship and law review credentials. Thus, an applicant from Notre Dame or AMSL or a non top-20 law school is not considered "highly qualified," even though a highly intelligent conservative law student might specifically choose ND or AMSL over liberal Harvard and Yale. So, a top student from Notre Dame or AMSL would not be considered a candidate on par with a candidate from a US News top 20 school, and presumbly a Notre Dame/AMSL hire would be evidence of illegal hiring.
-It is a humorous to read the report claiming discrimination of liberals, because it is clear from the report that liberals outnumber conservatives to a huge extent and overwhelmingly dominate the legal community. For example, the report's appendix lists organizations which applicants were affiliated with. For the 2006 Honors Program, applicants were affiliated with 72 "liberal" organizations, but only 12 "conservative" organizations, a ratio of 6 to 1.
-A commenter on Volokh points out that liberal candidates to the Honors program in 2006 outnumbered conservative candidates by a ratio of 5 to 1. Why so many liberal candidates to begin with? Were conservative candidates screened out in greater numbers by the screening committee, which may have been made up of liberal careerists?
-Even supposing Republicans are guilty of this, weren't the Democrats guilty of this in the Clinton years? The DOJ Civil Rights Division is notorious for being filled with ultra-liberal personnel.
Today, the Supreme Court issued its ruling in the Second Amendment handgun ban case, District of Columbia v. Heller. The decision was 5-4, striking down the handgun ban as being in violation of the Second Amendment. Scalia wrote the majority opinion, with Roberts, Alito, Thomas, and Kennedy joining. Stevens and Breyer each wrote dissents, with Ginsburg and Souter joining the dissenters. The opinion is here. At first glance, Scalia's opinion has an interesting and very thorough parsing of the language of the Second Amendment.
At the very end of the majority opinion, Scalia has the following statement:
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
This is in contrast to Kennedy's child rape opinion from yesterday. Yesterday, Kennedy banned the death penalty for child rapists based on policy considerations; today, Scalia acknowledges that some might think a handgun ban is a good idea based on policy considerations, but that imposition of this ban "is not the role of this Court." Can you guess who is acting like a judge and who isn't?
Dr. Peters gives six reasons. I like the following one, in particular:
5. The brevity of the current fast means that Catholics with guilty or doubtful consciences have no discrete way to refrain from going up to Communion without attracting attention, resulting in pressure on them to approach the Eucharist under conditions that risk profanation.
Today, the Supreme Court struck down Louisiana's death penalty for child rape statute in the case of Kennedy v. Louisiana (a fitting name for the case). The decision was 5-4, with Kennedy writing the majority opinion and Stevens, Ginsburg, Souter, and Breyer joining. The dissent was written by Alito, with Roberts, Scalia, and Thomas joining. The opinion is here.
Regardless of what you think about the morality or prudence of death penalty for child rapists, Kennedy's opinion is pathetic. It has no sound legal basis and rests entirely on Kennedy et al.'s personal views of what are "evolving standards of decency." Alito completely demolishes Kennedy in the dissent (though in a very restrained and respectful manner). Alito even points out that Kennedy's evidence of "evolving standards" aren't tending towards abolishment of the death penalty for child rape, but may be tending in the opposite direction.
Yes, Kennedy is, by far, my least favorite justice.
From: Pucillo, Philip A Sent: Wed 6/18/2008 7:51 PM To: All Law System Distribution; All Alumni Subject: my visit at Tulane
Dear members of the Ave Maria School of Law community,
I write to inform you that I will spend the forthcoming academic year as a visitor at Tulane Law School, where I will teach Federal Courts, Administrative Law, and Constitutional Law. As you might imagine, I am thrilled and honored that I will have the opportunity to serve alongside my former professors, and to teach some terrific courses in the very classrooms where I sat as a student.
It has been such a blessing to get to know and to work with so many of you. Although my status as an Ave Maria faculty member is set to expire later this summer, my commitment to the success of Ave Maria’s students and alumni will endure. Anyone wishing to contact me may do so using the Ave Maria e-mail system (until August 15) or at papucillo AT yahoo DOT com. For those of you who have me listed as a reference, I expect that I will have specific Tulane contact information within the next month or so.
Have a wonderful summer, and please stay in touch.
A few days ago, I had the privilege of engaging Sen. Barack Obama in private conversation for several hours with Rev. Franklin Graham, Bishop T.D. Jakes and a diverse group of 30 or so religious leaders from Protestant, Catholic, Evangelical and other traditions. Why would the presumptive nominee of the Democratic Party devote so much time talking faith rather than politics? Quite simply, because it is the senator's deep personal faith that explains his audaciously positive hope for his country.
"His audaciously positive hope for his country"? Here, Kmiec is citing the title of Obama's book The Audacity of Hope. I'm almost embarrassed for Kmiec and his over-the-top giddiness.
The editorial contains more of Kmiec's disingenuousness about Obama's position on abortion:
... it is abundantly clear from our conversation that Obama shares a common aspiration to reduce the incidence of abortion.
How? Obama is committed to encouraging "responsible sexual behavior," discouraging unwanted pregnancies, promoting adoption as a more viable, affordable and appealing option than it presently is, and putting off limits in a manner consistent with the law as the justices see it, late-term abortion. Obama will not exclude abortion from medical coverage to fulfill a health exception "rigorously defined."
Can Kmiec not see the obvious sleight of hand being dealt to him by Obama? Obama is using code words for greater abortion access and education, federal funding for abortions and abortifacient "contraceptives," less religious freedom for health-care professionals, and who knows what else.
Obama's life is one of accomplishment in the face of unexpected challenge - the all-too-usual perils of an absentee father overcome by the extraordinary love of mother and grandparents; a home with little religious practice surpassed by an early education in Catholic schools and a later immersion in the hard work of faith assisting the poor in Chicago.
Here, Kmiec's intellectual dishonesty really shines through: Kmiec is mentioning Obama's slim Catholic education in order to score rhetorical points, while conveniently ignoring Obama's much closer links to Islam and the radical black Christianity of Rev. Jeremiah Wright.
Finally, the editorial is captioned in this way: "Douglas W. Kmiec, who was denied communion by a priest for endorsing Barack Obama, is a professor of constitutional law at Pepperdine University and was an assistant U.S. attorney general during the Reagan administration." Kmiec's martyrdom over being denied communion is really tiring. If it happened, it was a mistake by the minister of communion, not a mistake of the Church. Professor Kmiec, put the martyr complex to bed, please.
-Kmiec begins his article by disingenuously bringing up the spectre of racism, even though McCain has never made race an issue.
-Kmiec implicitly accuses McCain of "supporting water-boarding and other forms of torture." (I know that McCain is more pro-Iraq than Obama, but I don't know what his position is on water-boarding and torture.)
-Kmiec illogically argues that Obama's abortion position is more desirable than McCain's because it is more in line with subsidiarity and prudence. Kmiec ignores the fact that McCain's pro-federalism position completely encompasses Obama's, because under McCain's position, the ultimate abortion decision is STILL with the mother. Further, Kmiec fails to see that Obama's position is contrary to subsidiarity because decisions about abortion restrictions are taken out of the hands of individuals and the states, and is made a federal issue that cannot be questioned.
-Kmiec claims Obama has one position on abortion, while recognizing that Obama's own words contradict this position. Isn't that a definition of insanity?:
Those who are pro-abortion, as I see it, are those who advocate the practice as a matter of fundamental right or as part of a radical, often feminist, agenda that takes no account of the moral weight or significance of unborn life. This is not Senator Obama's position, though before our meeting, and during it, I would take issue with him and his advisors for occasions where he has, in my judgment, spoken with less clarity than he should to differentiate himself. ... He reminds me that he speaks consistently to those who are both pro-life and pro-abortion and for the most part I have found that to be true.
-Kmiec again says the ridiculous argument that though it would be great if the Supreme Court directly outlawed all abortion entirely, that is never going to happen, therefore it doesn't really matter whether a pro-life Thomas or a pro-abortion Ginsburg gets appointed as Supreme Court Justice.
-Weird mental gymnastics by Kmiec:
Nevertheless, like the Archbishop, I have been looking for opportunities in dealing with both campaigns to reaffirm what Mother Teresa taught us so well and that is that no child should ever be seen as a burden or a punishment.
For example, I shared with Senator Obama's senior campaign advisers, and more recently with the Senator himself, that it was deeply unfortunate that the Senator during an off the cuff question and answer session during the Pennsylvania primary seemed to characterize an unwanted pregnancy as a penalty.
The Senator said frankly the rigors of the campaign had resulted in his not expressing well that the "punishment" he was referring to was not the child, but the social circumstances and lack of maturity that would deprive a young, often teenage, pregnant woman of the joy families experience when there is news that someone in the family is with child.
While some may say this is merely a politician's post-hoc rationalization, I have reason to believe it was more than that. Having been blessed in my own family with five children, and appreciating how each has permitted my wife and myself to be co-creators of God's universe, I can well understand how not perceiving a child in that way would truly be punishing.
-Kmiec takes McCain to task for using "spare embryos" in the context of the stem cell debate. Isn't Obama as bad or worse than McCain on embryonic stem cells?
-Kmiec on how Obama will reduce abortions: "[Obama] would also prohibit late-term abortions, consistent with the requirements of the Constitution as interpreted by the Court. Such requirements usually entail an exception for the health and life of the mother." Isn't Kmiec a law professor? Doesn't he know that the "health" exception is no exception at all, as it is interpreted by the courts?
-The last section is so saccharine as to make one sick. "It is the Senator's voice that America should hear discussing his desire and plans for strengthening family, fatherhood, or how we must recommit to universal values of integrity and honor. The founders may have been pessimistic about human nature, but in keeping with the "yes we can" theme of his campaign, Obama is not."
From: Conner, Rachele Sent: Thu 6/12/2008 12:02 PM To: All Law System Distribution; All Alumni Subject: Update on the Class of 2011
Dear Law School Community,
I hope you are enjoying your summer. Many of you have asked about our incoming class, and I am happy to provide you with an update.
To begin with, we have received over 1,300 applications, the second highest application volume in the history of the law school. Applications came in from all states and several countries like Ukraine, Ghana, South Korea, China, and Canada.
With regard to the men and women who will compose our Class of 2011, we now project a final class size of between 115 and 130 students. Among notable characteristics of the class are the following: incoming students are from more than 30 states and 5countries; the number of colleges and universities they come from is over 100, and include University of Dallas, Villanova University, and Gonzaga University; nearly half of the class is female and 15% of the incoming students has identified themselves as an ethnic minority.
On behalf of the staff of the Admissions Office I would like to thank our student ambassadors who have volunteered many hours of their time to meet, call, and email prospective students. I also would like to thank the staff and faculty of the Law School who have taken an active role in our Voir Dire programs and in communicating via email and phone with these incoming students. Additionally, our gratitude goes to the several alumni who have taken the time to offer their help and support by way of writing letters and sending emails to our incoming students.
I hope you found this update informative. While we keep working with our incoming students, our Office is now looking ahead to the recruitment of the 2009 entering class. Please let me know if you would like to participate in our efforts.
Enjoy the rest of your summer!
Rachele Conner Director of Admissions Ave Maria School of Law
It is incredible to think that home sales are only 10% of projections. The article reports that "For more than six months Monaghan has publicly blamed the real estate market for the town's failure to meet its goals."
We said that you shouldn't gamble AMSOL's future on real estate speculations. We said that we should just wait a couple of years to let Ave Maria Town/University become established before moving the law school. But did Monaghan and the Board of Governors listen? No, they didn't.
From: Frohnen, Bruce P Sent: Tue 6/10/2008 12:00 PM To: All Law System Distribution; All Alumni Subject: Resignation
Dear AMSL Community:
I write to inform you that I have resigned from the faculty of AMSL, effective the end of my current contract year; I will not be teaching at AMSL this coming fall. I hope more clarifications regarding faculty members' status will be forthcoming in short order.
I will miss very many of you and wish you the best in your future endeavors. Those wishing to contact me as of this fall may do so at the Ohio Northern University College of Law.
To summarize his argument: -Obama thinks abortion is a constitutional right. -McCain thinks abortion should be left up to the states to decide. -Therefore, the political positions of both candidates are equally pro-abortion. -So we have to look for what is the most effective manner to reduce abortion, and Obama's "emphasis on personal responsibility (conveying especially to young people the need to understand the maturity and commitment needed for sexual intimacy) is the course most likely to make a difference." -Lobbying both political parties to change their pro-abortion views is necessary, and Obama would be more open to this pro-life lobbying because "he is more dedicated toward reducing the partisanship of the past, has very responsibly and very consistently called upon our better natures, and has articulated -- long before he sought the presidency -- a genuine appreciation for the importance of faith in the public square." -Finally, it would be great if the Supreme Court directly outlawed all abortion entirely, finding an unalienable right to life from the moment of conception. But that is never going to happen. Therefore, it doesn't really matter which judge gets appointed. A Ruth Bader Ginsburg is just the same as a Clarence Thomas. So, it is pointless to talk about judicial appointments.
There are so many logical fallacies in this argument that my head is spinning. How did Kmiec ever become known as a smart guy?
Over the last couple of weeks, the legal blogosphere has been buzzing about a horrendous note recently published in the Harvard Law Review (121 Harv. L. Rev. 1886) entitled "Never Again Should a People Starve in a World of Plenty." Above the Law has thoroughly covered the story here and here.
The note (which you can read here) claims to be an investigation of morality and justice when choosing a legal profession. What it is, is complete and utter tripe, a uneducated rambling about poverty and injustice with no legal basis or thoughtful insight, something a highschooler pulling an all-nighter could have thrown together at the last minute for his social studies class. It certainly has no place beside any piece of legal scholarship, much less published in what many consider the most prestigious law review of all, the Harvard Law Review. It is mind-boggling to think that a Harvard Law professor approved this note in his or her capacity as a note advisor and that the Editorial Board and the rest of the Law Review actually published it.
Besides the simplistic moral reasoning (the author clearly needs to take a Charlie Rice jurisprudence class), the note is littered with errors:
My lasting impression after reading the note is that the author is quite unintelligent, and I say this after evaluating the note in as objective a manner as possible. The author makes logical fallacies, fails to raise important distinctions, and displays a lack of intellectual ability in making sound arguments and recognizing important subtleties. I just don't think the author is very smart. I guess he must be smart enough to get through law school and even do well on exams because he is on Law Review, but based on his note, he is not very intelligent. I would bet that dozens of students [update: and former students] at Ave Maria are more intelligent than this author.
This is very disappointing to me. Judge Brown has never hired an Ave Maria graduate as a clerk, and yet here, she has hired a Harvard law student who is demonstrably more stupid than dozens of other Ave Maria students and alumni. Maybe Judge Brown was blinded by the fact that he went to Harvard Law. Perhaps Judge Brown will realize that law school ranking doesn't always correspond to intelligence and legal proficiency. Hopefully Judge Brown will find the courage to consider well-qualified candidates from schools like Ave Maria, as opposed to automatically settling for unintelligent students from so-called "top" law schools.