JuridicsUSA: Law Schools: Getting into a graduate law faculty

-
- Follow @Owlb

-
Redeeming Law (December10,2k11)
— Materials reposted here by Lawt
Hat Tip to Gideon Strauss

This is the last video of a series of three.
-

Advice on the Nuts & Bolts 

of the Law School Application

Michael P. Schutt directs the Institute for Christian Legal Studies, a cooperative ministry of Regent University School of Law and the Christian Legal Society, whose goal is to encourage Christian law students, law professors, and practicing lawyers to seek and study Biblical truth, including the natural law tradition, as it relates to law and legal institutions, and to encourage them toward spiritual growth, compassionate outreach to the poor and needy, and the integration of faith with learning, teaching, and legal practice.

Stephen Bretsen holds his JD degree (Doctor of Jurisprudence) from the University of Colorado (1986) and his earlier BA in Government from the College of William and Mary (Williamsburg, Virginia).  Dr. Bretsen is a professor at Wheaton College (Wheaton, Illinois, USA) where he is the William Volkman Professor of Business and Law, and Professor of Business and Law, Associate Professor of Business and Law, Department Chair, and Pre-Law Advisor.  Prior to accepting a position at Wheaton College, Steve was an in-house attorney and a director-level corporate development executive for several publicly traded companies. His activities focused on mergers and acquisitions, domestic and cross-border commercial transactions, venture capital equity investments, corporate law, and antitrust law. Steve is using his professional experience to teach business and courses from a Christian perspective.

His current research interests include:  Current water law, business as mission, and Christianity and the corporation.

His academic papers (published and presented) include:

Bretsen, Stephen N. and Peter J. Hill, "Water Rights and the Anticommons," in Aquanomics, eds. Randy Simmons and B. Delworth Gardner (Oakland, CA: Independent Institute, 2011) (forthcoming).

Bretsen, Stephen N., "In Competition with Godless Hoards: Are Some Strategic Approaches More Appropriate for a Faithful Business?," The Journal of Biblical Integration in Business, 13 (2011): 110-127.

Bretsen, Stephen N., “Rainwater Harvesting Under Colorado’s Prior Appropriation Doctrine: Property Rights and Takings,” Fordham Environmental Law Review, 22, no. 2 (Spring 2011): 159-232. 

Bretsen, Stephen N. and Peter J. Hill, "Water Markets as a Tragedy of the Anticommons," William & Mary Environmental Law and Policy Review, 33, no. 3 (2009: 723-783).

Bretsen, Stephen N., "The Creation, the Kingdom of God, and a Theory of the Faithful Corporation," Christian Scholar's Review, 38, no. 1 (Fall 2008): 115-54.

Bretsen, Stephen N. and Peter J. Hill, "Irrigation Institutions in the American West," UCLA Journal of Environmental Law and Policy, 25, no. 2 (2006/2007): 283-331.

Bretsen, Stephen N., "The Faithful Buisness as a Publicly Traded Corporation - Testing the Outer Limits of Corporate Law," The Journal of Bilblical Integration in Business, 1, no. 1 (Fall 2006): 42-80.

Bretsen, Stephen N., "Bringing the Appellate Court to the Classroom," Christian Business Academy Review, 1, no. 1 (Spring 2006): 57-63.

JuridicsUSA: Med device executives: On their way to prison — how about execution?

-
-
-
York [Pennsylvania] Dispatch (Nov21,2k11)
Reposted here by Lawt
-
-
Feds seek prison for execs in deadly medical trial

By MARYCLAIRE DALE Associated Press Writer

PHILADELPHIA—Four white-collar defendants hope to avoid prison Monday when they are sentenced for conducting unapproved medical trials that left three patients dead.

The former executives of Snythes Inc., a medical-device company with U.S. headquarters in suburban Philadelphia, pleaded guilty to a misdemeanor as "responsible corporate officers."

In a rare move under that statute, U.S. prosecutors are seeking one-year prison terms for what they call "human experimentation."

They say the Synthes officials bypassed Food and Drug Administration rules as they hurried to have surgeons test the bone cement in people with spine fractures. The product was not approved for that use, and three people died in the operating room in 2003 and 2004.

The defendants are former Synthes North America President Michael D. Huggins, of West Chester; former senior vice president Thomas B. Higgins of Berwyn; ex-director of regulatory and clinical affairs John J. Walsh of Coatesville; and former Synthes Vice President Richard Bohner of Malvern.

Both Synthes, with a U.S. headquarters in West Chester, and its subsidiary Norian Corp., pleaded guilty to corporate health care fraud charges and agreed to pay $23 million in fines.

The defendants deny any intent to violate FDA protocols, and at least one argued that he made repeated, good-faith efforts to prevent off-label use.

However, in a key pretrial ruling issued last week, U.S. District Judge Legrome D. Davis rejected many of the arguments raised by the defense since the 2009 guilty pleas.

"The patients were directly and proximately harmed by the conduct of defendants and others at Synthes," Davis wrote. "Defendants subjected the patients to the risks of SRS and XR (bone cement) without the patients' full informed consent and without the FDA's authorization. Some of those patients were injured and some died."

One defense lawyer has pointed out the disconnect between the fact that doctors can use products "off-label," but companies cannot promote them for those alternative uses.

The bone cement was used in about 200 spine patients.

Earlier pilot studies had shown the cement could cause blood clots in humans, while pig research suggested such clots could move to the lungs, according to the June 2009 indictment. But with competitors ahead in the race to market, Synthes was eager to move forward, authorities charged.

The patients who died suffered a severe drop in blood pressure following the injections. None of the surgeons could rule out the bone cement as a factor in the deaths, but it also wasn't definitively blamed for them.

One patient died in Plano, Texas, and two others in northern California. Each was frail, with multiple health problems, Davis said.

According to prosecutors, the defendants not only tested the bone cement on humans, but failed to report the deaths and lied to FDA investigators. Each defendant has lost his job and been fined $100,000.

Juridics: Criminal Justice: San-Hyun Song, Prez, International Criminal Court makes statement July 17

Christian Post, Singapore Edition (July15,2k11)
Material posted here by Lawt

International Criminal Justice Day

Friday, Jul. 15, 2011 Posted: 7:32:39PM HKT

On 17 July the world celebrates International Criminal Justice Day. This commemorates the adoption on 17 July 1998 of the Rome Statute of the International Criminal Court (ICC for short). States and civil society from all continents came together to end impunity for the gravest international crimes – genocide, crimes against humanity, war crimes and aggression.

In 2002, the ICC opened its doors in The Hague, Netherlands. Today, it is a major international institution, securing justice for victims when this cannot be delivered at the national level. 14 suspects and accused have appeared before the judges to face accusations against them. The first trial is concluding soon, with closing arguments set to be heard next month.

I am delighted to see support for international criminal justice growing around the world. 114 nations have already joined the ICC, and Grenada from the Caribbean and Tunisia from North Africa will become the next two States Parties later this summer. Several other countries have announced their intention to follow in the near future. But many more countries have still to join if the ICC is to be seen as representing the will of the overwhelming majority of the world's peoples.

During the past year, I have met representatives of governments, civil society and regional organisations in the Americas, Africa, Asia, Europe and most recently the Arab world. Time after time, I have found that the goals of the Rome Statute resonate everywhere, regardless of culture, language or nationality. People of all nations want peace, justice, rule of law and respect for human dignity. These are the very goals for which the ICC exists.

Let us cherish our spirit of solidarity while we commemorate 17 July. Let us show our compassion for all the innocent civilians who continue to fall victim to unimaginable crimes. Let us state loudly and clearly that mass crimes such as murder, rape, torture and the use of child soldiers cannot and will not be tolerated. The perpetrators of such crimes must be held accountable, regardless of their official position.

I call on states and people everywhere to join the international justice movement, as we work toward a more just, more peaceful future for children, women and men around the world. We must be united in our resolve to defeat impunity and the lawlessness, brutality and disdain for human dignity that it represents. We must persevere.

EconomyUSA: What shoud new Prez and new Congress do, money-w+z?

Webs+t The Conglomerate carries a blog-entry by TomJoo regarding the s+t's theme for the year "A Business Law Agenda for the New Congress and the President" (Nov4,2k10).   The t+tl of course is a rip-off of Volokh Conspiracy.  Minds too clichéd to come up with something original.  Fortunately, the blog-entry in which I was interested was brief, well written, and a bit jaunty.  Thanks for that!

 Agenda for the 112th: 

The Bigger They Come

Posted by TomJoo

Too Big to Fail.

It was impossible to make use of quotation text from this blog.  I won't be using anything from this source in the future.  But you can click up the current entry, and make a note of the URL if it proves to be of further interest to you.

In any case, the one link preserved is an appropriate quote from a work of music by Jimmy Cliff, thanks to blog-entry author TomJoo.  I wonder how the webs+t can quote this video, and yet make it impossible for quoters to quote their own texts.  Everyone knows that quotation by other blogs increases the readership of the intitial meme-creating blog-entry.

Food for thawt indeed.  If they want a narrow secret-society readership, to 'ell with 'em!

-- Lawt

EconomyUSA: Crisis: 'How the banks put the economy underwater'

I found this blog-entry on Yves Smith's Naked Capitalism via Technorati.

Our New York Times Op-Ed: How the Banks Put the Economy Underwater
Several regular readers were kind enough to send congratulatory e-mails on our New York Times op-ed, which appears in the Sunday edition. I hope you enjoy it. The text follows:

In Congressional hearings last week, Obama administration officials acknowledged that uncertainty over foreclosures could delay the recovery of the housing market. The implications for the economy are serious. For instance, the International Monetary Fund found that the persistently high unemployment in the United States is largely the result of foreclosures and underwater mortgages, rather than widely cited causes like mismatches between job requirements and worker skills.

This chapter of the financial crisis is a self-inflicted wound. The major banks and their agents have for years taken shortcuts with their mortgage securitization documents — and not due to a momentary lack of attention, but as part of a systematic approach to save money and increase profits. The result can be seen in the stream of reports of colossal foreclosure mistakes: multiple banks foreclosing on the same borrower; banks trying to seize the homes of people who never had a mortgage or who had already entered into a refinancing program.

-- EconoMix

Click on the t+mstamp to Read more ... 

JuridicsUSA: Gay Reparations: Left TV commentator advocates

Jeff Poor writes online (NewsBusters, Aug8,2k10) in response to the YouTube video snipped from a recent telecast of Thom Hartmann, leftoid TV commentator regarding openly-gay Judge Vaughn Walker's Aug4,2k10 ruling in San Fransisco. Poor's article is entitled, "Liberal talk show host Thom Hartmann says it's time for Gay 'reparations.' "

Walker, a conservataive jurist, after listening to arguments based on gay-motivated social-science discourses,  has foddered Hartmann's enflamed imagination to suppose that some kind of "reparations" are in order for his precious "gays."   The latter term is a political-ideology term, whereas to be homo or lesbian is another thing.  Disclosure:  I'm homo, and celibate, not a participant in the skewered equality-fetish with which the gay ideology is recondite.  

Please note  that marriage is not reducible to other intimate unions, whether of 2 women or of 2 men.  Nor are 2-women intimate-unions reducible to 2-men intimate-unions -- so ,much for the neologism "same-sex," as in "same-sex marriage."   Gay ideologists want to erase differences of structuration in the 3 kinds of intimate-unions.  These 3 kinds of intimate unions are all qualified normatively by by the same ethical modal norm, by the same creational moral character under God (Bible verses and Sharia quotes to the contrary notwithstanding) thus constitutes their internal structural principle., but only in one respect, the qualifying functional aspect.  

However, the sameness of the three kinds of intimate unions that bond each kind of  couple (even thru occasions of strife in the ongoing development of each couple's mutuality, reciprocity, and responsiblity) in regard to the the qualifying function of their self-constitution as a moral entity with a vowed relationship to undergird  the couple's mutual life,  excluding all others from the depth of their intimacy, with an intention of permanence.  However, the 3 kinds are typified also by difference.  The different foundational functions (following philosopher Herman Dooyeweerd) obtain to differentiate 1woman-1man intimate unions from 2women intimate unions and from 2men intimate unions.  A three-term differentiation, without reducing any of these three kinds to one another.  Along these lines, Dooyeweerd's  juridical-scientific approach is largely confirmed by two professional philosophical ethicists, Andre Troost and James Olthuis.

That's the proffered paradigm by which to distinguish kinds of intimate unions, only one of which is marriage.m  Whether it shoud be prioritized by the state, as I think it shoud be, is yet another question.

Besides intimate unions, there are two other chief sorts of relationships that are also qualified by the creational ethical mode (again qualifying function of a multifunctional, multi-aspectual human being in his/her/inbetween integral existence).  The two further are friendship, and family (parents, their kids,. and the sibling relationship among the children of these parents).

The philosophically-shallow decision of Judge Walker seems, on the basis of newsreports, to have confused family with couples (vowed, exclusive, intention of permanence).  The issue of lesbian reproduction (kids) and adoption of kids (male homos too)  is juridically not at issue in the question of the intimate union of any of the three kinds.  Judge Walker is probably guilty of a category mistake in this regard, based on his lack of an adequate philosophy of law, inadequate to the juridical problems at hand.

I have not tried to provide answers to all questions that m+t surge into mind for various readers, where their own sexuality can powerfully function when trying to absorb the set of distinctions I have so far made.  For instance,  bisexuality can be discussed in the terms and concepts already supplied.   So also can transgender concerns.   Suffice it to say that this juridical view, ethical theorizing for moral behaviours, and all else,  is not moralistic, not legalistic, not biblistic. (Arnolod DeGraaqaff).

-- Albert Gedraitis,  refWr+t publisher

Juridics: Canada: Law journalism for the law-focussed professions is slowly rising in Canada

One feature of the emerging magazines both in print and online, targetting the need of persons in the law professions for magazines that cater to the kind of discourse and reportage they need. In Ontario, perhaps the flagship of this niche among online journals is Law Times. R+t smartly, the editors of the online versions of these mags have concentrated on to a considerable extent on news videos, often produced and distributed by the digital dynamoes themselves.

Above, we have embedded the latest short video in the weekly "Ontario Legal News Update," usually carrying a quick survey of legal developments in our procvince, featuring stories selected by the editor, covering the week's developments. In this case, the week beginning June 7, 2k10. In the near future, refWr+t will be taking up some the developments featured in Law Times and other law mags hailing from Ontario, wider Canadian locales, and perhaps even occasionally a French-language story, regarding which our readers may benefit from it's being aired here.

-- Lswt

Juridics: Ontario: Canadian court makes important "religious hiring" decision

Stanley Carlson-Thies of the Institutional Religious Freedom Alliance has emailed IRFA's May 27,2k10 newsletter. One of the items in this issue of the newsletter features an important juridical note about a recent development in Ontario regarding indiscriminate hiring by non-church faith-based organizations (many of them are social-service agencies who recruit staff on the basis of commitment to Christian morals and faith).

The court deciding the case, and the rhetoric of discussing the case bandies about the term "discrimination" -- but the Christian defence shoud emphasize the hazards of indiscriminate hiring of people who don't evidence having their heart in the secular realization of the Christian all-of-life concern and mission. Christian organizations have every r+t to discriminate against indiscriminate hiring, and the freedom of association that established the org and operates its financial base, shoud trump individuals who don't have their heart in the Christian basis of the organization's work which may be one of faith and morals.

Of course, most Christian social-service orgs need workers heartfully committed to serving all who come to them for service. In this key sense, being Christian in social service may mean anti-discrimination in regard to those cared for by the org. However, a social-service agency, whether Christian or not, needs to discriminate according to its focal task: for instance, caring for the disabled. Such agencies are not ghettos, and it's precisely the discriminating hiring policy that selects for those who can serve in the task at hand indiscriminately. Clear? Stanley states the case, but I have further questions because of the particulars.  All is not what it seems.

Click the time tag below to read more >

Juridics USA: Here's some Google Reader selections from our publisher

Lawt

Juridics: ICC: First steps to arrest perpetrators of suspected Sudan war crimes in Darfur region

Jurist carries a vital report by Caitlin Price, "ICC prosecutor urges arrest of Sudan war crimes suspects" (Jun7,2k7):

Chief Prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo Thursday renewed his call for the arrests of two top suspects accused of committing war crimes in the Darfur region of Sudan. Moreno-Ocampo briefed UN Security Council (UNSC) delegates one week prior to their joint trip with African Union (AU) representatives to several African capital cities to lay out a "hybrid force" peacekeeping effort. The suspects, former Sudanese interior minister and current humanitarian affairs minister Ahmad Muhammad Harun and former militia leader Ali Muhammad Al Abd-Al-Rahman (also known as Ali Kushayb) are each accused of nearly 50 counts of war crimes and crimes against humanity. Moreno-Ocampo underscored the importance that every African nation help to apprehend the suspects and urged the Security Council to "take the lead" in bringing them before a court.

Rather than focussing explicit positive steps toward serious amelioration, if not "solution", to Darfur's misery, action-absolutists blame in every direction they can intrigue, but now seem to be getting to a clearer stance:Foreign Policy carries an analysis by Morton Abramowitz and Jonathan Kolieb, "Why China Won’t Save Darfur" (Jun,2k7):

Frustrated by the West’s failure to halt the slaughter in Sudan, Darfur advocacy groups are pinning their hopes on a country they see as genocide’s enabler in chief: China. But in pressuring an indifferent Beijing, activists are merely helping Western governments evade responsibility for a humanitarian crisis that they could do far more to stop.

Africa > Darfur

After four years of tireless efforts, Darfur advocacy groups have had little success in pressuring the Bush administration or any other Western government to move decisively against the Sudanese government for its atrocities in Darfur. These groups are right to dismiss the Bush administration’s latest sanctions initiative as mere posturing; like all of the president’s efforts to date, it’s too limited in scope and lacks a wider, more holistic diplomatic strategy. These groups are focusing instead on the two C’s of humanitarian advocacy—China and celebrities—as a remedy for a crisis that has killed over 200,000 people and displaced more than 2.5 million. But in pointing the finger at China, proponents of stronger action on Darfur are merely helping the White House evade moral responsibility for a humanitarian disaster that it labels a “genocide.”

Juridics: Canada: Supreme Court affirms economic-class basis for access to Canadian legal system

Bloomberg.com carries a major news story from Toronto by
Joe Schneider "Canadians Don't Have Entitlement to Legal Services, Court Says" (May25,2k7):

Canadians don't have a constitutional entitlement to legal services, the country's highest court ruled, overturning two lower court decisions that declared a British Columbia tax on legal fees unconstitutional.

Yes, the narrow issue was a taxation issue. But it's quite obvious that recent pronouncements that the Equality section of Canada's Charter of R+ts and Freedom's has done its job in getting equal pay for equal work and other issues of equality related to the situation of women in Canada. But then it was stretched beyond the meaning of the Charter-writers in order to be used for other purposes in lower courts and the Supreme Court of Canada. The Equality sections were activistically stretched beyond reason to demote the unique status of 1woman1man intimate unions and to alter the traditional meaning of the word "marriage" in law, so that the term itself becomes a mere generic for any kind of intimate union without difference in the Canadian legal system. Now the Court has mothballed the Equality section for any foreseeable future.

After this addle-brained decision, you can't use a legal concept of equality to render fairness for members of all Canada's classes and income-levels before the law, equality of the poor to have the same access to the legal system as the middle and upper classes. Unequal, if you can't afford to pay to hire a competent lawyer.

Dugald Christie, a British Columbia lawyer killed last year on a cross-country bicycling trip, had sued the provincial government saying a 7 percent tax on the purchase of legal services made it impossible for some people with low incomes to pursue claims. A trial judge agreed, saying the tax breached a constitutional right to access to justice. A provincial court of appeal upheld the decision.

``The impugned provincial legislation is constitutional,'' Canada's Supreme Court said today in a 9-0 decision. ``The right to access the courts is not absolute.''

Well, nothing is absolute; only God the Almitey Creator is absolute. The Constitution acknowledges God. So the Court's statement on absolutes is no comfort to the poor who can't afford legal representation in various jurisdictions. It's the poor who are unequally served by how the Canadian Supremes deploy thru the legal system their own tragic Equality history and very self-contradictory conceptualization of Equality. The recent decision is nonsensical.

Juridics > Canada

British Columbia is the only province in Canada to tax legal fees. The tax was imposed in 1993, ostensibly to add funding to the provincial legal aid program, which provides lawyers to people with low incomes at no charge. The money collected is included in general revenue and the high court said it's difficult to ascertain how much of the tax goes to legal aid.

This manoeuvre by the BC govt is a typical tax shell-game that is typically used by govts' to rip off specially-designated revenue streams which are such in name only. The court should demand transparency of the BC govt in regard to legal aid revenues.

Christie, 65 at the time of his death on July 31, was struck by a van on the Trans-Canada Highway east of Sault Ste. Marie, Ontario, as he was cycling across the country to raise awareness about access to legal services.

He was the founder of the Western Canada Society to Access Justice. The Supreme Court said his net income between 1991 and 1999 didn't exceed C$30,000 ($27,787) annually because his clients often couldn't pay their bills.

Under the provincial law, he still had to pay the tax on fees that had been levied, even if he didn't get the money [from his impecunious clients].

``Notwithstanding our sympathy for Mr. Christie's cause, we are compelled to the conclusion that the material presented does not establish the major premise on which the case depends -- proof of a constitutional entitlement to legal services,'' the Supreme Court said.

So much for legal equality in regard to class and income-level in Canada.

The case is Attorney General of British Columbia v. Christie, Supreme Court of Canada (Ottawa), Case No.: 31324

I think in this decision the Court has been found out in the contradictions of its own juridical hypocrisy, in the emptiness and self-contradictoriness of its collective conceptualization, and in the unanimous philosophy entrenched in the personnel of the Court, to the exclusion of any genuine jurisprudential viewpoint-pluralism.

Juridics: Pisteutics: Episcopalian Diocese of Virginia goes to court to seize properties of new Anglican District of Virginia

Washington Times carries an article by Julia Duin, "Church schism set for Va. court" (May21,2k7).

The mother of all lawsuits pitting Episcopalian against Anglican kicks off today in the red-brick confines of Fairfax County Circuit Court.

The case has amassed numerous court filings involving 11 churches, two dozen lawyers, 107 individuals, the 90,000-member Diocese of Virginia, the 2.3 million-member Episcopal Church and the 18.5 million-member Anglican Province of Nigeria.

The Episcopal Church and its Virginia Diocese are suing 11 churches, their clergy and lay leaders for leaving the diocese last winter in order to join the Nigerian province. Since the 2003 consecration of the openly homosexual New Hampshire Bishop V. Gene Robinson, conservatives have been fleeing the denomination.

The 11 churches of the new District of Virginia, part of the Convocation of Anglicans of North America, a mission of the Anglical Province of Nigeria, are as follows: Celebration Church, Christ the Redeemer, Christ the Savior Anglican, Church of our Saviour (Oatlands), Church of the Apostles, Church of the Epiphany, Church of the Messiah, Church of the Word, Potomac Falls Church, St Margaret’s, St Paul’s, St Stephen’s, The Falls Church, Truro Church

Some of the nation's top law firms are involved in the fight, including the 750-attorney firm Goodwin Procter. One of its partners, David Beers, is chancellor for the Episcopal Church. Hourly rates for partners at the firm go as high as $475, according to filings in a 2006 case in U.S. District Court for the District of Columbia.

The defendants are having to pony up huge amounts as well. The Falls Church, oldest of the 11 churches, has announced it will have a special collection June 10 to defray $342,576 in unpaid legal expenses.

Virginia Theological Seminary historian Robert Prichard said that in terms of the number of individuals and fair-market value of the historic properties, this may be the Episcopal Church's largest lawsuit ever.

He declined to predict the winner of the dispute. "I've got better sense than that," he said.

Circuit Judge Randy Bellows, no stranger to high-profile cases, will preside. He's the former assistant U.S. attorney who was the lead prosecutor on the "American Taliban" case of John Walker Lindh, and the investigator called upon to examine how the FBI bungled its espionage probe of Taiwanese-American scientist Wen Ho Lee.

The plaintiffs' main complaint is not that several thousand people have exited the diocese, but that they took millions of dollars of church property with them.

The suit also charges that members who wanted to stay Episcopalian -- mostly tiny minorities, but in two cases, one-quarter of the parish -- were not granted separate services on church property.

But the new Anglican District has adopted these classical Episcopalian resources, but including some recent ones of the worldwide Anglican Communions with which the Episcopal Church is not in harmony ("impaired communion"): The Thirty-Nine Articles of Religion [of the Church of England](1562), Chicago-Lambeth Quadrilateral (1886, 1888), The Episcopalian Church Book of Common Prayer (1662, update 1928 USA), Lambeth (1998) Resolution 1.10 on Human Sexuality, Primates’ Statement (Oct23,3k3), The Windsor Report (2004), Primates’ Statement (Feb2k5), To Set Our Hope on Christ (TEC’s response at the Anglican Consultative Council Meeting in Nottingham, 2005), Primates’ Statement (Sept2k6), Primates’ Communique (Dar es Salaam, 2007)

"There were people who wanted to worship as Episcopalians," diocesan spokesman Patrick Getlein says. "They were denied that. That was really quite something for the bishop and the diocese to hear, that there were Episcopalians turned out of their churches."

Leaders of the departing churches say no one has been made to leave and that the diocese has made it impossible for 21 departing clergy -- all under an ecclesiastical "inhibition" order -- to function as Episcopal priests.

Mary McReynolds, chancellor of the Anglican District of Virginia, the new ecclesiastical body for the 11 churches, said the diocese and the churches hammered out a "protocol" allowing conservatives to leave. The diocese then appointed a property commission to look at the assets of each church and levy an amount each church must pay in order to leave. Then on Jan. 31, the diocese filed lawsuits against each of the 11 churches.

"The members of the property commission were embarrassed by this situation," she said. "It was such an about-face. It took 13 months to negotiate that protocol."

Leaders of the departing churches, she added, suspect the diocese was pressured by church headquarters in New York to fight for the property.

"The curious thing is, not only did [Virginia] Bishop [Peter J.] Lee do a 180-degree turn," she said, "but the Episcopal Church had a policy of all property matters deferring to the diocesan bishop."

Mr. Getlein said the diocese never agreed on the protocol. "It was a work product given to the [diocesan] executive board and the standing committee, but they never agreed to it," he said. "It was nothing official."

Opening briefs filed by both sides are expected to take up the summer. Oral arguments may not start until the fall.

The crux of the case is a state law that spells out that in a division within a denomination, the congregation can retain its property if a majority votes to disassociate.

The diocese's position is that the properties are owned by the trustees as long as the congregation remains Episcopal. If it leaves the denomination, it forfeits ownership.

In another development, but one not involving the public courts, is the latest move by the Episcopal Church USA's Diocese of Fort Worth, as reported Episcopal Life by Rev. Mary Frances Schjonberg, "FORT WORTH: Diocese renews its oversight request, proposes new structures" (May17,2k7):

The leadership of the Episcopal Diocese of Fort Worth voted May 14 to move ahead with its appeal for alternative oversight from a primate other that Presiding Bishop Katharine Jefferts Schori.

Juridics > Episcos USA vs Anglicans USA

A statement issued May 16 and signed by the bishop and standing committee of the Diocese of Fort Worth proposes three different ways in which such a change might happen. They include:

* forming a new Anglican province of the Anglican Communion in North America in a cooperative effort with other dioceses "in consultation with Primates of the Anglican Communion;"
* transferring to another existing province of the Anglican Communion; or
* seeking the status of an extra-provincial diocese, under the authority of the Archbishop of Canterbury.

Fort Worth Bishop Jack Iker and the diocese's General Convention deputation announced at the 75th General Convention June 19 -- the morning after Jefferts Schori's election -- that the diocesan Standing Committee had asked the Archbishop of Canterbury for what it called "alternative primatial oversight" (APO). That call was subsequently endorsed by the diocese's Executive Council and its convention.

"The Bishop and diocese remain firmly convinced of the need for alternative oversight," the May 16 statement said.

Therefore, the statement said, the Standing Committee adopted a statement assessing "the current situation" and proposing to "actively pursue all viable options." The diocesan Executive Council subsequently adopted that stance.

"While we remain open to the possibility of negotiation and some form of acceptable settlement with [the Episcopal Church], it appears that our only option is to seek APO elsewhere," the statement said.

Varieties of Christianities > Anglicans

The requests for APO have changed several times in the months since June 2006. After Fort Worth made its initial request June 19 it entered into a formal request July 20 that the Archbishop of Canterbury appoint a "commissary" for the dioceses of Pittsburgh, Central Florida, Dallas, San Joaquin, South Carolina, and Springfield. In September 2006, Dallas Bishop Jim Stanton confirmed that his diocese had withdrawn from the July 20 request and in October the Diocese of Quincy (Illinois) joined the APO request.

(A commissary is a kind of overseer used by the Bishop of London for the colonies which later became the United States and then left the Church of England.)

Then in early November at its convention, the Diocese of Pittsburgh reverted to an APO request. Three different versions of that request have appeared on Pittsburgh's website since July 2006, including one in February that appealed to Anglican Primates in the Global South.

In late November 2006, Jefferts Schori and a group of bishops announced an alternative structure for the APO requests. The plan revolved around a "primatial vicar" who would be the Presiding Bishop's designated pastor to bishops and dioceses that have requested such oversight. The primatial vicar would have been accountable to the Presiding Bishop and would have reported to an advisory panel that would consist of the designee of the Archbishop of Canterbury, the Presiding Bishop's designee, a bishop of The Episcopal Church selected by the petitioning dioceses, and the President of the House of Deputies (or designee).

The May 16 statement from Fort Worth noted that "the appellant bishops rejected the proposal as unacceptable."

The APO requests were discussed at the February meeting of the Anglican Primates, who proposed the appointment of a primatial vicar nominated by bishops who have declared themselves to be "Windsor bishops," that is those who say they are committed to the proposals for life in the Communion suggested in the Windsor Report. The vicar would have been accountable to a pastoral council established by the Primates.

The Episcopal Church's House of Bishops rejected that plan during its March meeting, saying it "would be injurious to The Episcopal Church" and urging that the Executive Council decline to participate in it.

The bishops said the so-called pastoral scheme violates Episcopal Church law because it calls for a delegation of primatial authority not permissible under the Canons and would compromise the church's autonomy, which the bishops said was not permissible under the church's constitution. They also said the scheme "fundamentally changes the character of the Windsor process and the covenant design process in which we thought all the Anglican Churches were participating together," violates the church's "founding principles," and changes the leadership structure of the Episcopal Church and the Anglican Communion.

The Fort Worth statement criticized Jefferts Schori's response to the Windsor Report, saying she "has failed to seek implementation of the essential requests" made by the Primates in February. The statement also criticized her theology.

"For all these reasons and others, we do not wish to be affiliated with her, nor with anyone she may appoint or designate to act on her behalf," the statement said.

In other words, the Diocese of Forth Worth regards the Presiding Bishop of the Episcopal Church to be an apostate and that whole denomination, of which Forth Worth is a part while in a state of protest, is headed toward fullscale apostasy under her presidency.

Juridics: Abusive taxation: Redeemer University College subjected to tax abuse by bureaucrats

Hamilton Spectator (Hamilton, Ontario, May11,2k7) carries an unsigned report that, all said and done, works in a defamatory way (I'm not criticizing the newspaper or the Christian institution subject to this de facto defamation), defamation targetting Redeemer University College, Ancaster, Ontario. The headline: "Top court to hear Redeemer case."

The Supreme Court of Canada ruled yesterday that it will hear a case affecting the tax returns of 250 area residents.

They are facing tax reassessments after making donations to support students at Redeemer University College.

During a routine audit of Redeemer Foundation, the fundraising wing of the Ancaster-based Christian school [a liberal-arts college full of PhDs], the Canada Revenue Agency (CRA) asked for and received a list of names of donors to the school's Forgivable Loans Program.

The CRA used the list of names to launch tax reassessments of individual donors. When Redeemer went to bat for its donors, it discovered that the Income Tax Act stipulates donor information can only be secured by auditors with a court order.

[In other words, some bureaucrats to whom were assigned the Redeemer file, proceeded to break the law, to purloin records to which they were not entitled, and to persecute the donors to the program to aid indebted students and thus persecute the excellent liberal-arts college of Christian confession, in Ancaster. - Lawt]

Redeemer sought a court declaration that the request for the donor list was improper, that the CRA be ordered to return the information and that the CRA be prevented from acting on the information to reassess its donors. There has been one ruling in favour of Redeemer and one against [by lower courts].

I would find it very difficult to believe there was no motive on the part of active bureaucrats to persecute this sterling Christian institution. This is the only institution in North America that houses a center where the works of the philosophy of law by the great Dutch juridical scholar are being translated and published. Among other things potentially of interest to the malicious bureaucrats, the contents of the magnum opus of jurisprudence by Herman Dooyeweerd place into question the entire leftliberal takeover of the Canadian law-sphere, without "viewpoint pluralism" in the courts or law-philosophy research at the universities and their law schools (all of them, unlike Redeemer College's Dooyeweerd Centre, funded by various levels of government thru the entire Dark Ages of Liberal Party rule and court-packing on the Federal level). All funded, but Redeemer College, it would seem.

What's more, Dooyeweerd's Encyclopedia of the Science of Law is part of an outlook which requires a far better system of worker representation than is available in Canada's civil service (including the bureaucrats of the Canadian Revenue Agency), which is severely backward in these regards. The civil-service organization to which the abusing bureaucrats belong and by which they are protected even when they violate the law governing their work, is itself radically criticizible on the basis of that organization's lack of viewpoint-pluralist workers-representation (whereas in much of Europe there is no closed shop, and the civil r+t to freedom of association is recognized in regard to workers representation).

In other words, regarding the present case, those bureaucrats who broke the law to persecute the Redeemer College donors, the donors having given to a fund to remit student loans charitably (since Redeemer doesn't get help with its general funding as do all other colleges in Ontario), those bureaucrats are thereby working to prevent the emergence of legal-scholarship critique that would show what a nest of vipers is mono-unionism and mono-professional groupings that falsely claim to represent all workers, without viewpoint pluralism provided in the representational structures.

The persecuting bureaucrats have plenty of nefarious motive to destroy Redeemer College, and it is all ideological in the worst sense of the word.

Juridics: USA: Supreme Court ban partial-birth abortions 5-4

A reporter for Washington Times [WaTi], Stephen Dinan, gives a succinct yet detailed report on the Supreme Court of the USA [SCOTUS] decision yesterday ending partial-birth abortions practised by some abortionists and defended apparently by the entire elite of pro-abortion organizations and the medical profession involved.

The Supreme Court yesterday upheld a federal law prohibiting partial-birth abortion, marking the first time a specific abortion procedure has been successfully outlawed.

The 5-4 ruling, which reversed the justices' decision in a Nebraska case seven years ago, is the first major shift since Justice Sandra Day O'Connor retired from the court and was replaced by Justice Samuel A. Alito Jr.

Yesterday he provided the key fifth vote, joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy, who wrote the majority opinion ruling that the government can ban a particular medical procedure if there are other options available and if the state has a reason to be concerned.

"When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the state is altogether barred from imposing reasonable regulations," Justice Kennedy wrote. "The act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives."

Justice Ruth Bader Ginsburg, writing for the minority, said the ruling was "an effort to chip away at a right declared again and again by this court." She was joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

"Today's decision is alarming," Justice Ginsburg wrote. "It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists."

.In another WaTi article, Amy Fagan reports how the SCOTUS "Ruling opens abortion debate for '08" (Apr19,2k7):

The Supreme Court decision upholding a federal ban on partial-birth abortion predictably pleased the Republican presidential contenders and disappointed Democratic candidates.

To the Republicans it was "a step forward" and "correct"; to the Democrats it was "alarming" and a "dramatic departure." But partisans on both sides agreed the decision is the beginning, not the end, of the abortion debate in the 2008 campaign.

"This decision marks a dramatic departure from four decades of Supreme Court rulings that upheld a woman's right to choose and recognized the importance of women's health," said Sen. Hillary Rodham Clinton, New York Democrat and the perceived front-runner for Democrats' presidential nomination.

She had "warned of precisely this erosion of our constitutional rights" when she voted against both of President Bush's Supreme Court nominees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

The Republicans, all of whom have said they would nominate judges like Justices Alito and Roberts, called the decision a victory for pro-life advocates.

So, the whole victory is politicized immediately. However, there's a pre-political dimension which has to do with carrying your baby to term, or getting your abortion much earlier in your pregnancy so that your kid isn't half-born when you have it removed, instead of hacked to pieces. There's an ethical relationship at stake here between the mother and her offspring, that she must deal with earlier than a last-minute infanticide. The Supreme Court decided to ban only a narrow segment of abortion cases, abortions obtained by particularly irresponsible mothers and abortionist doctors. The rest of the industry remains intact--lobbyists, govt funding, Planned Parenthood, and political opportunists (speaking in the name of an assertedly absolute r+t of a woman to an abortion whenever and however she wants it or is compelled by others to seek it), like Hillary Clinton.

Whether all the Justices voting against this kind of abortion would find legislation constitutional that outlawed all abortions of every kind and for whatever reason they otherwise may take place (rape, incest, death of the mother if baby brawt to term, etc) remains to be seen. I would never support legislation that outlawed all abortions for any reason whatseover--which is what many of the Republicans and lobbyists of the fanatical r+twing want. "Pro-life" has a lot of injustice up its own sleeve.

But, thank God for the wisdom of this SCOTUS with Chief Justice Roberts and Justice Alito on board, and for the "swing Justice" Kennedy too. And let the partisan absolutist politicians rant and rave and foam at the mouth, but don't let them determine the law.

Juridics: Canada: Ontario beefs up legal aid for the poor, or does it?

In an Apr2,2k7 editorial for Law Times, editor and associate publisher Gail J. Cohen discusses "Small steps to fixing legal aid" (c) Law Times Inc. 2007. Reprinted with permission. Here's Cohen's text:

Attorney General Michael Bryant has been acting quite coy about it for months, but last week, he finally got to let the cat out of the bag, spread the good news, and offer up $51 million for legal aid over the next three years. He promised the profession he’d do something about legal aid and the follow-through was there. A good day for a politician.

For Legal Aid Ontario, the news of the impending cash infusion is also quite positive. It gives LAO some wiggle room and also allows it to pay lawyers a bit more for the work they agree to do.

There’s still a battle to be fought to bring back the many criminal lawyers who’ve stopped taking legal aid certificates, though. And as our page 1 story notes, there’s still some division on exactly what percentage increase is being applied to the tariff, five or 2.5 per cent. But at the end of the day, it’s more than it was but still not that much: $94.50 an hour for a senior counsel is still in the basement of what most lawyers in any practice area charge for their services.

The $15 million LAO will get for the 2007-8 fiscal year really might not even make that much of a difference. If you consider that halfway through the last fiscal year, LAO announced it had already spent $10 million more than it had budgeted, due to megatrials and other lengthy criminal prosecutions, the new money looks like all it will do is prevent LAO from drowning. It sure isn’t going to give it wings to fly.

The amount also falls short of the minimum $20-million increase suggested by the Ontario Bar Association during pre-budget consultations.
But there’s breathing room and, most importantly, recognition from government that the system needs a fix.

LAO and the Ministry of the Attorney General are still working together to try to sort out what to do about funding for multi-accused and big criminal trials. In the last few weeks, LAO announced it was indefinitely delaying the imposition of funding caps for those trials while discussions were ongoing with the ministry, which is a good sign.

The reality remains that the legal aid system is not working that well.
Many people can’t afford representation but aren’t poor enough to get legal aid. They slip through the cracks, don’t get justice, or end up representing themselves in court, which leads to a whole coterie of other problems and costs. Many lawyers aren’t prepared take legal aid work anymore, so those who get certificates have trouble finding quality representation.

Something has to be done. The budget’s funding boost shows the province understands there is a problem and is working toward some solutions. Now the federal government needs to get on board and show its support for creating a justice system that serves all Canadians, not just wealthy Canadians.
— Gail J. Cohen

I'm surprised that the funding of community legal aid clinics, where no legal aid certificate is required, but the kind of cases of the poor which the clinics may take-on, are restricted to the government's particularizing mandate. Noting the differences between the two systems, and noting how the pay-for lawyers have backed away from the poor (see Cohen above), and noting what a University Avenue lawyer charged me for meagre work on a bureaucratic snafu in a govt agency (I didn't want money from the agency) that was injurious to me; I think we need to see the whole system.

Not just the pl+t of the pay-for attorneys who are suffering so badly from financial constraints, they whine continuously against the rate of remuneration resulting from taking on legal aid certificates. I think all lawyers and medical doctors should have to continue a certain amount of their workweek (averaged out seasonally, say) in service to the poor and working poor (one day a week, say). But why I think so--in my milieu of Toronto, Ontario, Canada--would require much more lengthy a discussion.

Of course, there are lawyers who work on cases brawt by people of "moderate income" by affiliation to a community legal clinic which pays their salaries, neibourhood legal clinics also being funded by Ontario Legal Aid here. And, of course, before such arrangements existed, a number (probably small) of middleclass and upwards by an income measurementm genuinely offered pro bono legal services to lower-middle and low income people. But a lot of misdirection can lurk under what lawyers call "pro bono (for good, for free instead of pay-for). Taking on a case for free is not what I'm focussing on, insofar as it's only a form of advertizing to the client who is on the way to becoming a lucrative source of income for the lawyer and his/her law firm.

With the increasing income gap, lawyers and medical doctors must be brawt out of their isolated worlds to work across the culture gap that the income gap produces. Justice should be more available to the poor thru the relatively-small portion of time all lawyers (and medical doctors) should be required to devote. There would be some technical problems to making such arrangements, of course. Law has differentiated into numerous specializations, some of which can be quite lucrative and contribute to the growing income gap. But an accounting lawyer could go over to the legal clinic or community center once a week to help homeless, welfare recipients, and disabled get their income documentation and finances in order. This would be part of every lawyer's job, a factor the fulfilling of which would be a required for continued qualification to practice law in the jurisdication.

Please understand that I am not advocating socialism, as outside the stipulated proportionate free service at a legal clinic or community centre, lawyers would still be able to devote the lion's share of their time to becoming the multimillionaires for which many of them dream. A different structure of the obligatory facet of their profession may just give them authentically richer dreams for the good of all, for good, pro bono.

Juridics: USA: Reorientation of Supreme Court on racial ratios in schools

USA Today has published an opinion piece by Laura Vanderkam, "Message to high court: 'Get out'" (Mar20,2k7). Vanderkam brings together some descriptive accounts of American school systems that have built up traditions of complying with past Supreme Court decisions, thus opening the way for racial ratios to govern the composition of the student bodies of its schools (and likewise presumably the teaching staffs). The quota-compliance traditions are held in place by democratic votes, most notably in the key instance of the Louisville, Kentucky area's public schools. There, school boards are regularly elected over the years, which support maintaining the 15%-50% quota for black students in every school in the system, so that racial integration is engineered for all schools under that board's jurisdiction (and, incidentally, there are, as a result, no longer any all-black student bodies in Louisville).

Vanderkam claims it works. It works in part because of a broader but more distinctly educational-philosophical position of the school system that structures the studernt learning process around a division-of-labour arrangement among the several schools. Each school offers a different set of course and curriculum options, making each distinct on a basis other than neiborhood location or the specific racial demographic configuration of that neibourhood. The whole arrangement is built around the concept of "magnet schools." Thus, each school has a reason for bringing into its student body (on the basis of each student's chosen interests) numerous students not from its immediate neibourhood, yet of course all from within the one system loaded with distinctive magnet schools.

But this more recently has created an apparent reorientation among jurists, and apparently also among the Justices of the Supreme Court of the USA (SCOTUS, as the court is nicknamed). "Judicial restraint has been a guiding conservative principle. ‘Activist judges,’ after all, are rooted in the liberal camp. But an upcoming Supreme Court decision on school desegregation might turn conservative jurisprudence on its head." Vanderkam suggests the possiblity that "conservative jurisprudence" may become activist in order to counter the democratic tradition of imposing the 15%-50% black student ratio in all schools (of course, I'm citing the Louisville case as a kind of model here; a related case from the Seattle, Wasington schools will have other particulars regarding ratios). That means, of course, no school can be all black; nor any all white (leaving aside for this discussion the very probable presence in the system and its schools of students of yet other races -- Asian, American Indian ...).

Bussing of students simply to achieve "racial balance," including the determination of quotas and ratios, has always had its problems. And continues to do so. Not least of all because it makes all-black schools illegal, as well as all-white schools. But Louisville has obviated the severity of the race-balancing bussing problem in that a superiour and more strictly curricular educational motive has become the priority for the assignment of students to schools outside their immediate neighbourhoods. This means there's a clearly educational motive related to each student's choice of learning goals (the magnet-school concept), and not just the single educational objective of teaching-by-doing inter-racial socialization. The latter easily becomes contestable conceptually because many people (of both the races focussed upon here) disown the value of socialiZation (specifically inter-racial socialization) as a valid objective of schooling as such, especially when prescribed by government schools--tho independent schools necessarily would be free to determine the educational value of inter-racial socialization, or for that matter of inter-gender socialization). Outr+t segregationism would remain illegal in regard to races, but not in regard to genders.

My view is that because Louisville has an explicitly educational motive thru its magnet-schools concept, the racial ratios, democratically continued by the school board's electorate from vote to vote over the years, become far less problematic in constitutional terms (even for a conservative jurisprudence of judicial restraint). The Louisville schools make it possible for black students to opt for their own choice/s among the wide range of curricula available in the school-system as a whole, thus helping to fulfill the chief objective of a school system predicated upon the obviously educational value of curricular diversity, choice, widened horizons--all thru magnet schools.

However, this may not be the case in regard to the Seattle school system. Whether or not "race-mixing" or "inter-racial balancing" or racial quotas/ratios or bussing for the purpose of inter-racial socialization obtains in both Seattle and Louisville, I think SCOTUS should be free, on the prime juridical principle of sphere sovereignty, to approve the Louisville Educational Philosophy (in regard to the points at issue), while at the same time possibly outlawing whatever prevails under the Seattle arrangement (I'm speaking only hypothetically here, assuming that Seattle's schools are not sufficiently organized around the magnet concept with all the implications for diversity of curricula from school to school that flows from it).

Were Seattle relying solely on inter-racial socialization as an educational objective sufficient in itself to justify bussing from neibourhood to neighborhood on the basis of racial quotas/ratios, then that conceivably non-educational motive or, let us say, that policy questionable in regard to its educationality as a prime task of schools, would suffer by comparison with the Louisville Educational Philosophy. Moreover, my hypothetical Seattle approach would certainly be unconstitutional in making an all-black school illegal under the Seattle boar (it would fail also in making an all-white school illegal). Of course, I am not arguing for schools that disqualify the admission of any student based on her or his race. Location of residence may, however, be a legitmate reason for non-admission to a given school, and result in a defacto all black or white or Asian or Native American school--or nearly so, in each case.

A sensitivity to the juridical principle of sphere sovereignty would enable a SCOTUS Justice or an Appeals Court Judge to distinguish among factors like a location-rule and a racial-quota rule, on the one hand, and an explicitly and hardcore educational-philosophical concept like a diverse-curricula objective such as that of a concept of a citywide sytem of magnet schools. At the same time, if a school system does not develop a prevailing magnet system, then the role of location-rules become more apropos, and the role of racial quotas/ratios become less apropos. One thing further, I don't see why in a magnet-school system there could not be room for a school specailly structured in its curriclum to feature black studies, Africa studies, African languages, and to celebrate Black cultural holidays, if the interest is present for such a specialized magnet school within the city's population. Rural school systems may have a smaller capacity in achieving a wide diversity of magnet schools reachable by students day by day.

LOUISVILLE — Here in Jefferson County, Ky., thousands of students recently learned which magnet schools they'll attend next year. With different schools offering everything from Chinese to pre-dentistry, the application process always gets kids excited.


Some of Jefferson County's schools take mostly neighborhood kids. Some look at grades. Some also look at the student's race — a fact that could have ramifications far beyond Louisville. After a long history of court-ordered desegregation, the elected school board has decided, voluntarily, that most schools' enrollments should be 15%-50% black.

Most students get their first choice. Some don't. A few years ago, a mom named Crystal Meredith wanted to transfer her son to a different school. Because this would have left his first school with too few white students, the district denied the request. After much back and forth, Meredith's son wound up in his desired school. The problem seemed to go away. Nevertheless, Meredith has sued the schools for considering race at all, and last summer, the U.S. Supreme Court decided to hear the case (bundled with a Seattle one). A ruling is expected this spring, leaving a question mark over this year's enrollment process.

Shifting principles?

After oral arguments, many observers believe that the court's new conservative majority is poised to overturn Louisville's solution to the tough issues of race and education. That wouldn't be a victory for democracy or local control — things that judges favoring "judicial restraint" cherish. Though conservatives have fought for years to fill the Supreme Court with restrained judges, the Meredith case could undermine the philosophy in one blow.

Like many cities, Louisville greeted Brown v. Board of Education, the 1954 Supreme Court ruling that declared segregation unconstitutional, with fear. Unlike many cities, though, Louisville tried to comply.

Superintendent Omer Carmichael had been drawing up plans and by fall 1956, 55 of the city's 75 schools had mixed student bodies. This happened peacefully, which led Carmichael to write a book, The Louisville Story, about this "triumph — of man's ability to solve some of his most vexing problems with reason and goodwill."

The problem, however, did not stay solved. A generous transfer policy and segregated neighborhoods meant that by 1957, only 5,630 of Louisville's 12,010 black students attended schools with any white children. White flight to the county schools increased tensions.

In 1975, Kentucky ordered the merger of the Louisville schools with Jefferson County's schools, and a judge ordered a desegregation plan. Students would be bussed based on the first letters of their last names.

It was a harsh solution, and that fall, Louisville boiled. Eventually, the protests ended. But white families kept leaving. So in the '80s and '90s, the school board moved to a system of magnet schools and managed choice to lure people back. DuPont Manual High School, for instance, decided to offer dozens of Advanced Placement classes.

In 2000, a judge ruled that the district could be released from previous court orders. But the school board, reading community sentiment that diversity had become a good thing, decided to keep most schools 15%-50% black. They read right. School board members who support the 15%-50% target keep getting re-elected.

In other words, after a long struggle, Louisville has a school system that parents vote for at the polls and by enrolling their kids.

Usually, conservatives think that local, democratic solutions beat court-ordered ones. In Planned Parenthood v. Casey, a 1992 Supreme Court abortion case, Justice Antonin Scalia penned a dissent praising this judicial restraint.

'We have no right'

"By foreclosing all democratic outlets for the deep passions this issue arouses...the Court merely prolongs and intensifies the anguish," he wrote. "We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining."

In December 2005, when Justice Sandra Day O'Connor was still on the Supreme Court, the justices gave their support for democratic solutions by declining to hear a case from Lynn, Mass., like Meredith's. With the addition of President Bush's new justices, though, the court changed course. Scalia scoffed in oral arguments at statistics showing local support. "Nobody is going to say 'give me a lily-white school,' " he said.

In other words, when it comes to race, judicial restraint goes out the window.

Some conservatives offer explanations. Abortion isn't mentioned in the Constitution; race is. But schools aren't mentioned at all. Louisville allows appeals; no one is denied due process. The constitutional reasoning for forbidding the use of race in enrollment is unclear. That's why local elections, where "deep passions" can be released, minimize the anguish.

But many conservatives, politically, don't like racial balancing programs. Because they sometimes lose, politically, on this issue, they've taken to the courts — precisely what proponents of judicial restraint complain that liberals do. Some conservative voices put principle over politics.

In the Seattle case that accompanied the Louisville one, Reagan-appointee Alex Kozinski of the 9th Circuit Court of Appeals noted that "there is much to be said for returning primacy on matters of educational policy to local officials." School systems have already endured much when it comes to liberal court meddling; conservatives have fought too long to rein in activist courts to abandon that philosophy for one political win.

"This community is trying to do the right thing," says Carol Haddad, a school board member in Louisville. "That ought to say a lot to the Supreme Court."

Namely, as Scalia once said, that there is virtue in choosing to "get out."

It's a knotty set of problems, but I think the sphere sovereignty of a school for the purpose of educating the young should prevail as the over-ruling principle. Louisville seems to have done something wonderful and unique, in an imperfect world, where a priority has to be achieved as to what are the driving and guiding factors that colour the entire institution. It all depends on how a citywide school system answers the question What is a school?