Thursday, November 1, 2012

Geddicks on HHS

A former visiting professor of mine, Fred Geddicks, has written some particularly inane things about the HHS mandate. His original bit, a response at MOJ, and Geddicks' making-it-worse response.

I left the comments below in the ACS comments box.

I find Prof. Geddicks' reference to Estate of Thornton v. Caldor decidedly unpersuasive. Thornton involved a state law that granted unique legal privilege to one class of religious believers, those who found it morally objectionable (or, given the actual facts of the case, perhaps simply inconvenient) to work on Sunday.

If giving a unique legal privilege to a distinct class of religious believers violates the establishment clause, then so be it. Mr. Justice Burger's statement about the burden that privilege places on other persons, while it may have helped rationalize the outcome, cannot logically necessitate it. It's the privilege, not the burden, that the law creates, and if the privilege be unconstitutional, it would be so even if it were socially cost free. (See, e.g., every Christmas-display case ever decided.) Burger's statement about burdens is a dictum.

But even if Mr. Justice Burger's odd statement about burdens were necessary for the outcome in Thornton, it bears no relationship to the HHS mandate at all. What Prof. Geddicks proposes is that the religiously motivated actions of a private individual can impose a constitutionally significant burden on the personal (not religious, perhaps commercial) conduct of another private individual.

This is horse feathers. I know Prof. Geddicks has expressed elsewhere dissatisfaction with Cruikshank, but the rule that non-government actions do not impose Constitutional burdens is not going away (and even if it were, Prof. Geddicks prefers that we discuss the issue under present doctrines). The idea that there is a Constitutionally protected liberty interest in being free from burdens imposed by the religiously motivated actions of other individuals, without the intervention of any privilege, compulsion, or intervention by the law on the part of the religiously motivated actor, is simply absurd. It might be the most absurd and barbaric assertion made by any defender of the Mandate to date.

Let us be clear about what Prof. Geddicks claims here. He cannot be claiming, as he might insist, that it is merely a Constitutional exemption that would be an imposition. That at least would have a flavor of legal compulsion. No, the Professor is saying that the religiously motivated actor's choice to do or not do a Thing (in this case, subsidize contraception) itself imposes a burden on third parties. This has to be the case, because Prof. Geddicks wants us to balance the burden against the claimed liberty interest of the religiously motivated actor in determining whether the Constitutional exemption should exist. Clearly, the Constitutional exemption cannot be used as a justification for its own existence.

In the end, Prof. Geddicks' argument in this regard is either a call for a shockingly tyrannical reduction in the meaning of religious liberty or a specious display of circular reasoning. In fact, it bears many indicia of being both. It is the sort of argument that makes one wish that Rule 11 applied to academic papers.

Tuesday, October 30, 2012

Public Riparian Easements in Tennessee

"While the beds of all streams not navigable in the legal sense belong to the riparian proprietors and are private property, yet if in its natural state the volume of a stream, whether ordinary or when swollen by rains at certain periods of the year occurring with reasonable certainty, is such that the stream can be used profitably for commercial purposes in the transportation of the products of the forest, mines, tillage of the soil, or other articles of commerce, the public has an easement of highway therein, and this easement cannot be unreasonably obstructed by the riparian proprietors."

Miller v. State, 137 S.W. 760, 762 (Tenn. 1911)

Tuesday, September 4, 2012


The humeral veil worn by an acolyte in a pontifical liturgy is called a vimpa.

Thursday, May 17, 2012

The Inherent Dangers of Cows

In Mississippi, the presence of a cow upon a public highway creates a rebuttable presumption of negligence on the part of its owner. Miss. Code Ann. 69-13-111 (2001); Miss. Dep't of Transp. v. Johnson, 837 So. 2d 108 (Miss. 2004).

Friday, April 27, 2012

The Burden of Proof

Ei qui affirmat, non ei qui negat, incumbit probatio.

He who asserts must prove, not he who denies.

 - Julius Paulus Prudentissimus, 2d century A.D.

Tuesday, April 24, 2012

Thoughts on Duty

An individual owes a duty of care to another individual when it is reasonably foreseeable that the other individual lies within the zone of danger of the first individual's actions according to ordinary understanding.

Quaeritur: Does Wile E. Coyote owe a duty of care to the Roadrunner, given that the universal understanding of reasonable people is that no action undertaken by Wile E. Coyote is injurious to the Roadrunner?

Monday, February 13, 2012

Holes in the Limitations Period

Be careful, when mustering old authorities regarding limitations periods: they were retroactively tolled during the late unpleasantness.

"[A]t all events, possession has been adverse since the date of the deed, as set forth in the answer, eleventh August, 1855, and more than 20 years have elapsed since then to the date of filing this bill, excluding time from sixth May, 1861, to first January, 1867."

Burns v. Headrick, 85 Tenn. 102, 2 S.W. 259, 261 (1886).

Monday, January 16, 2012

Stradivarius, Doyle, and the Restatement

Law school exams are notorious for predicating questions about the legal ramifications of certain acts on events from the news, films, or literature, not infrequently amplified to provide more shocking details. It appears that the editors of the Restatement (Second) of Torts were not above showing their professorial stripes.
6. A is a violin expert. He pays a casual visit to B's shop, where second-hand musical instruments are sold. He finds a violin which, by reason of his expert knowledge and experience, he immediately recognizes as a genuine Stradivarius, in good condition and worth at least $50,000. The violin is priced for sale at $100. Without disclosing his information or his identity, A buys the violin from B for $100. A is not liable to B.
Restatement (Second) of Torts § 551 cmt. k, illus. 6.

We had a pleasant little meal together, during which Holmes would talk about nothing but violins, narrating with great exultation how he had purchased his own Stradivarius, which was worth at least five hundred guineas, at a Jew broker's in Tottenham Court Road for fifty-five shillings. This led him to Paganini, and we sat for an hour over a bottle of claret while he told me anecdote after anecdote of that extraordinary man. The afternoon was far advanced and the hot glare had softened into a mellow glow before we found ourselves at the police-station. Lestrade was waiting for us at the door.
Sir Arthur Conan Doyle, "The Adventure of the Cardboard Box" in The Memoirs of Sherlock Holmes (1894).