Witzlaw's Commentary

Some Immigrants Denied Marriage Licenses

2007-07-14T00:01:00.000-05:00

From a AP-wire story posted earlier today via CBS News, datelined Nashville, Tennessee: Link to article

"A federal law that requires people to supply their Social Security number when applying for a marriage license has forced thousands of couples around the country, particularly illegal immigrants, to put their wedding plans on hold.

The law has been on the books for about a decade and was intended to make it easier to collect child support payments. But in some places it has prevented even legal immigrants and some American citizens from getting married."

Sure enough, here's Tennessee Code Annotated, sec. 36-3-104(a): "No county clerk nor deputy shall issue a license until the applicants make an application in writing, stating the names, ages, addresses, and social security numbers of both . . . parties." I'm cited to an attorney general opinion from 1998 (OAG 98-065) which may clarify the issue, but I can't get to it online.

One problem immediately arises as to the use of Social Security numbers, and it is this: Social Security numbers may not be immediately available for legitimate non-immigrant visa holders coming to the United States. For example, persons arriving on a K-1 visa (that's the fiancee visa) arrive expressly to be married to their U.S. citizen sponsors. They may not even be seeking employment (that's the usual reason for applying for a number in the first place). In fact, the Social Security Administration, on its website, states they will not issue numbers where the sole purpose is to obtain identification (for example, a driver's license) and not to procure employment.

But there's an even more serious issue. Marriage is a fundamental right under the U.S. Constitution. "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. [...] Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival..." Zablocki v. Redhail, 434 U.S. 374 (1978) (citing Loving v. Virginia, 388 U.S. 1 (1967)). Being a fundamental right, if the Tennessee statute is being construed and enforced to prohibit marriages in the absence of a Social Security number, this is a matter that needs to be examined very, very closely. It's certainly something that I want to research more after the bar exam.

But for now, let me say this. It is not immediately clear that the enforced use of Social Security numbers in this instance was originally meant to uphold the immigration laws of the U.S. But even if it were, and ignoring for the moment the constitutionality issue, it is simply a poor policy choice. There are many ways to uphold and enforce immigration laws besides preventing people from entering into marriage. Let's therefore hope that saner minds in this matter will ultimately prevail. --SJR

At the Intersection of Immigration, Islam, and Intolerance

2007-01-06T01:36:00.000-06:00

Listen, I'm not a big fan of maintaining political correctness, but I still must wonder about the following--

FOXNews.com - Congressman Criticized for Muslim Letter - Politics See also: Actual Letter (via thesmokinggun.com).

Two points: First. The letter demonstrates an extraordinarily poor way of discussing immigration policy. For it is legitimate to ask whether an intending immigrant will subscribe to the collective and enduring values of the United States. I would also suppose it may even be legitimate to ask whether the United States has the resources to handle an increased immigration population--legal or otherwise--or whether there are economic or social impacts to be concerned about. But to suggest, as Rep. Goode (R-VA) does, that only persons who subscribe to Christianity or Judaism can be entrusted to sustain American values or uphold the Constitution seems not only to cross the line, but does so by an astonishing margin.

Second. Significant opposition has been raised, by commentators purporting to be conservative, regarding the use of the Islamic scriptures in an oath ceremony. Let me say this: While I cannot subscribe to Islam, and I consider myself to be very conservative as a Christian, the fact remains that it is holy scripture as to this faith. Our country stands, among the most important of things, for freedom of religion and thought. All members of Congress, all members of the Executive Branch, and all members of the Judiciary each swear to uphold the Constitution. In view of these facts, frankly, I don't see the issue here.

Seeing that this post appears immediately above the one from last August, I must make one other comment, lest this post be viewed as a contradiction. To the extent that one upholds terror in the name of religion--that absolutely needs to be addressed. But that issue is not confined to any specific faith, let alone Islam: One only look to the likes of Timothy McVeigh or Eric Rudolph and know that there are other relevant examples. Moreover, it is entirely separate from the question of whether one is free to practice the religion of his or her own choice, to the extent that such a choice does not abridge the rights or freedoms of others.

Analysis of Religious Rhetoric Requires Balance

2006-08-22T13:28:00.000-05:00

"JURIST Contributing Editor Ali Khan of Washburn University School of Law says that politicians' increasing use of abusive language to describe Islam in the context of the war on terror is symptomatic of multiple problems in Anglo-American democracy and culture."

Fighting Words: The Abuse of Islam in Political Rhetoric

RESPONSE: I agree with Mr. Khan to the limited extent that we should be cautious in rhetoric that paints entire religious belief systems with a broad brush. But I would submit such an agreement, in turn, needs to be broad enough to cover not only statements attributed to Western countries or officials, but also antisemitic or anti-Christian remarks attributed to predominantly Islamic countries, Iran being the most notable example. An analysis that criticises one but ignores the other is suspect in my mind.

I would also respectfully ask Mr. Khan to consider that much of the terrorism that has come to pass, both prior to and since 2001, have been ostensibly been done to support or maintain the faith, to please deity, or both. The term "jihad" comes to mind in this regard. The religious decrees issued by the likes of Osama Bin-Laden also come to mind. Even if we assume that the term "Islamic fascism" is inappropriate to describe such acts or behaviour, how does one avoid the fact that religion is unavoidably intertwined therein?

State v. Stephenson

2006-06-30T14:19:00.000-05:00

Link to opinion (Tennessee Supreme Court). The remarkable thing about this capital murder case is this: Defendant was tried and convicted of the charges in 1990 (he hired for someone to murder his estranged wife). At the initial sentencing hearing, the death sentence was imposed. During the initial set of appeals, the sentence was reversed. On remand, the State opted not to seek the death penalty and the defendant was re-sentenced to life in prison without parole. In 1998, defendant fights this sentence as well in a habeas action on the grounds that it was void. The Supreme Court agrees. On remand, the state again sought the death penalty. The re-sentencing jury agreed, so the original sentence was re-imposed. In this month's ruling, the Supreme Court affirmed.

Moral of the story: If you're a capital murder defendant who managed to get a death sentence reduced to life, be careful about what you ask for. You might very well get it, along with some extremely unpleasant surprises. Such as re-opening the door to the death penalty.

In re Death Penalty (Tennesseean Editorial)

2006-06-29T15:00:00.000-05:00

Here's a link to an editorial that was in the Tennessean on 29 June 2006. In this editorial, the commentator goes on to note how attitudes towards the death penalty and the method of execution has shifted over time. I submit that this observation misses the point.

It is understood that such a shift within our world has transpired. Nevertheless, there are certain crimes that throughout history have universally shocked society's conscience. These crimes are so inherently intolerable that a person of sound mind who commits them should forfeit his right even to subsist in a penal institution. This is so because the crime is not just against the victim or even his or her immediate family. For the same act irreparably and forever damages the very fabric of our society. Premeditated murder easily qualifies as just such an offense.

The writer also suggested that the death penalty is not valid because crime continues. That also misses the point. The question is not wither a certain penalty fully eliminates crimes, because sadly, crime will always be with us. The question is whether a purportedly civilized society is willing to uphold the life of a known murderer, even though that person clearly does not value the life of others. I personally question our level of civilization to the extent we do that.

The above is not to suggest that we must rush to the death chamber or that it is wrong to have years of appeals in a given case. I have no quarrel with the precautions and safeguards that need to be part of the appellate process. My point is that the death penalty must be fair and just...but it must be also certain as to those who are most deserving of it.

A civilized society deserves nothing less.

Tongue in Cheek: Diets and Establishing the Burden of Proof

2005-08-10T14:45:00.000-05:00

Abstract: You know you're too deep into law school when you begin thinking about your diet in legalistic terms.

* * *

When you undertake a diet, it is very likely that a significant other (including--but not limited to--a close friend, wife, or domestic partner) (hereinafter “S.O.”) will be involved in your efforts. Just as in a judicial setting, it is imperative to know the burden of proof or persuasion in a given matter, it is equally important to know what your burden of proof shall be in order to show to the S.O. or others, as trier(s) of fact, that you are truly in the process of accomplishing your goals. Hence, when you approach the S.O. on this issue, you may wish to consider the following guidelines as to each level of the evidentiary hierarchy:

• Probable Cause: You’ve been eating cheeseburgers and pizza all day, and chasing them down with regular Cokes. But someone managed to catch you one time in the middle of the night, sipping a SlimFast shake while watching a Jerry Springer episode. There is probable cause to support the contention that a diet has occurred and that you’re the one committing it.

• Preponderance of the Evidence: You concede under cross-examination that in the recent past, you’ve ingested a cup cake or two. And a bag of popcorn. And a double quarter-pounder (super-sized). You’ve even been caught nibbling off of the double-layered chocolate cake your S.O. was reserving for her nephews. (Well, all right, you’ve made the cake into the similitude of “PacMan,” but the evidence was circumstantial.) Still, if you’ve been drinking Diet Coke all day, have at least one good low-calorie meal, and follow it up with a few carrot sticks, you may be able to convince the fact-finder that more likely than not, you have been dieting.

• Clear and Convincing: Many of your meals are low-calorie. Your weight has been trending lower, although there are some up-ticks here and there. One time you’re caught inside of a McDonald’s, and when asked what you are doing there, you immediately corrected your order and asked for a Caesar salad. Your opponent can raise doubts over whether you are truly dieting; even so, the odds are largely in your favor.

• Beyond a Reasonable Doubt: You’re close to meeting your desired weight. Occasionally you’ll still have a french fry or two from your toddler’s Happy Meal. Your opponent may try to put forward a theory that you still eat mixed nuts in the middle of the night and fantasize about cheesecake dripping with wild cherry sauce, but you can respond that this is preposterous…and besides, you’re allergic to nuts. Counsel would be able to tell the jury with a straight face that you even look at the nutrition labels on bottled water to determine whether you are in keeping with your daily caloric intake. Under this burden, it would take a reasonable jury no more than a few hours to agree with you.

• Absolute Burden: You walk into the courtroom below the minimum weight recommended by the Surgeon General and scare the wits out of most of the jury simply by sitting at counsel’s table. At least three expert witnesses (all of whom are doctors who know the local standard of care for prescribing a diet regimen) all testify that you need to start increasing your calories immediately. One lay-witness testifies that you had already forgotten what a chocolate torte was, and when asked, you told him it was the conversion of cocoa plants in Brazil without the owner’s permission. Your opponent is too stunned to object to the hearsay and waives the point. Even the court takes judicial notice of your condition and offers you a ham sandwich (taxing it as costs against the other side). You’ve met the most stringent of burdens as to both production and persuasion.

With the above in mind, the following is a rough outline of the various burdens you will encounter when dealing with various individuals:

• Co-workers, distant relatives: You can generally get away with a probable cause standard, but the nosier of your associates may rise to the preponderance level, so some caution would be in order.

• Closer relatives, but not inside your immediate family (i.e., nephews, grandparents): You will be working inside a range that will fall largely under a preponderance standard. A few will rise to the clear and convincing level (for example, your uncle Ralph, who lifts weights in his spare time and looks to Jack LaLane as his childhood hero). Others will not care at all; your burden is diminished as to these individuals.

• Your S.O. and immediate family: You should presume a reasonable doubt standard unless the evidence begins to preponderate otherwise. For example, if your spouse one day makes you an pumpkin pie and adds a liberal amount of whipped cream, then henceforth you may be able to operate under a clear and convincing standard.

• Life insurance carriers, your personal physician, yourself: Beyond a reasonable doubt. A few insurance companies may even seek to impose an absolute burden. And of course, you have to live with yourself 24/7/365/etc., and there’s no getting away from that. (Not unless one has an out-of-body experience, but that’s well beyond the scope of this discussion, and will have to be saved for a later time.)

• Door-to-door salesmen, outright strangers, opposing counsel (as to other matters), the photographer at Wal-Mart: No burden whatsoever.

Appellate procedure. If you are assessed under the wrong standard, you could try to argue there was an abuse of discretion and that (s)he should try to re-examine your situation de novo without a presumption of correctness, but then, that person will look at you as if you were from another planet and wonder what in creation you are talking about. So perhaps it would be better to leave the matter alone and simply diet with increased zeal (so long as your efforts remain within reasonable or prescribed limits).

Conclusion. Factoring in the burden of proof when executing a diet and exercise plan may not cause you to lose additional pounds. But it may reduce the stress and friction you may receive while en route to your destination, which in turn will allow you to focus your attention towards weightier matters. Such as pondering whether a theft of $500 is a misdemeanor or a felony, or whether you should file a Rule 11 motion against opposing counsel because she gave you a very strange look during a summary judgment hearing.

Special Disclaimer. I did mention this was meant to be humor, right...?

Considerations in Selecting a Law School

2005-07-13T22:45:00.000-05:00

NOTE: The following item was originally posted at lawschooldiscussion.org, but I felt it was worth retaining here.

As many can attest, there is not a "one size fits all" approach that can be taken in choosing a law school. For most students, an American Bar Association ("ABA")-certified school is arguably the preferred route. Nonetheless, I would submit there are limited instances where the selection of a non-ABA (but state-certified) law school would be appropriate. The key is to make the decision--whatever it is--as objectively as possible and in full understanding of the consequences.Factors weighing into the decision would include (but is not limited to) the following--

Whether someone is entering law school directly from an undergraduate or bachelor's degree, or if there has been an intervening number of years of work experience;
Whether that person can afford to proceed to law school without outside employment (even after considering the availability of student loans and scholarships);
The availability of law schools within a reasonable driving distance of home and employment;
Whether the student would be willing to relocate solely for the purposes of entering into a law school;
Whether the law school's schedule will be compatible with outside employment; or in the alternative, whether a night school is available;
Whether the school is ABA accredited; or in the alternative, whether one would be able to accept the implications of going to a school that only has state accreditation (including certain jurisdictional limitations on where one can practice);
Family considerations (i.e., spouse, dependants, significant others, etc.);
The quality of the school(s) being considered, independent of the certification issue, including the track record of students that have have previously graduated from the school;
The student's prior accomplishments and legal aptitude (i.e., GPA and LSAT), including whether the student will be able to receive one or more scholarships at the desired school;
The cost of tuition for the schools being considered (or alternatively, the estimated amount of debt one will face after completion of studies); and,
One's reasons for going to law school in the first place, and to what extent these reasons are career-oriented.

Arguably, perhaps the last factor may be among the most important. If one's motive is specifically to join the top 5% of law firms anywhere in the country, or to work in a high profile position in federal or state government, the school one goes to becomes highly relevant. At the other extreme, there are those who study the law purely from the standpoint of personal interest or to supplement knowledge in one's current career. In such instances, the school becomes somewhat less relevant. Between these extremes are combinations of personal interest and career in various amounts, and these have to be balanced out carefully against the remaining factors as outlined above. --Sandy

Hello and Welcome

2005-07-13T00:01:00.000-05:00

On this date, Witzlaw's Commentary is open for business. If you are just joining us, you haven't missed very much. :-)

What I think I would want to do at some point is to publish a statement of some guiding principles, which in turn will hopefully place my subsequent remarks into context. But for right now, let me say at the very outset the following:

I will probably be more conservative than liberal, but beyond that, I'm not sure I would fit into a specific portion of the political spectrum. I'll consider myself independent for the time being, but this may be subject to change.
I will not seek to offend, but there will undoubtedly be some topics and some viewpoints that I will feel very passionate about. As to such items, I will seek to approach the subject matter tactfully and diplomatically, but at the same time zealously and perhaps even forcefully. That's not an easy balance, but it will be what I shall strive for. Obviously it will not be possible to be in agreement with everyone...such is life, especially in the world of everyday discourse. But even if one is in disagreement with a particular viewpoint, I believe that it is possible to handle differences in a way that respect is maintained and even cultivated.
Of course, all of the above sounds very idealistic. If it is so, it is because I am an idealist. I would like to talk more about how things ought to be, rather than how things actually are.
Finally, I will also note that my religious beliefs and my testimony are very important to me. It is the key building block on my life and is the foundation behind my growing family. Which is not to say that I intend to impose my religious beliefs upon others...in fact, I feel very strongly against such behavior. In a world of extremely divergent viewpoints, especially in matters of religion, it is important to recognize that our spiritual journey is a deeply personal one. In that context, the two most important things we can do are 1) Follow the spiritual compass that God has given to each of us, and 2) Stand firmly behind the things you know to be true, no matter what.

And that will do it for my first point. Stay tuned for some initial remarks about law school. And thank you for your time in looking through Witzlaw. I think it's going to be a very interesting journey indeed.

Cordially,
Sander J. "Sandy" Rabinowitz