OFFICIAL NEWSPAPER OF THE STUDENTS OF MELBOURNE LAW SCHOOL

DE MINIMIS
MONDAY, OCTOBER 15, 2012 Established 1948; Revived 2012 VOLUME 2, ISSUE 11

USA: Equality takes Centre-Stage

Naturally, eyes are fixed on news surrounding the executive and legislative branches of the US government at the moment. Yet the new Supreme Court term, which began on 1 October, promises legal developments as fascinating and important as the political developments we are currently seeing in the first and second branches of the US government. A few weeks ago De Minimis reported on the musings of Ronald Dworkin, who stated that Chief Justice John Robertss surprise endorsement of the constitutionality of the Affordable Care (Obamacare) legislation was part of a calculated decision to provide cover and credibility for the Supreme Court. This is in light of the fact that in the term now underway, the Court confronts a large number of politically-charged cases scheduled for hearing. Whereas last term the Supreme Court had to articulate the relative powers of the federal and state governments, this term they have to focus on questions about equality. The Court will soon hear a challenge to the University of Texass affirmative action program, as well as at least one case (and possibly two cases) concerning same-sex marriage. The common thread in these cases is the meaning of the Constitutions guarantee of equal protection of the law in the Fourteenth Amendment. Justice Ruth Bader Ginsburg has said that the court will take up same-sex marriage toward the end of the term. This means considering appeals involving Californias Proposition 8 ban on same-sex marriages, and deciding whether the 1996 Defense of Marriage Act's (DOMAs) prohibition on same-sex spouses collecting federal benefits violates the Fourteenth Amendment. In 2011, the Obama Administration said that it considered DOMA unconstitutional and would no longer defend it. The outcome of these cases is likely to turn on the Courts swing justices. Justice Anthony Kennedy is considered to wield unusual power as the Courts main swinger vote in its 5-4 decisions. Appointed by Ronald Reagan, he most famously switched sides in Planned Parenthood v. Casey (1992) to uphold abortion rights. However, he also voted with the majority in Boy Scouts of America et al. v. Dale (2000), which held that a private organisation can be permitted to exclude a (gay) person from membership through their First Amendment right to freedom of association in spite of state antidiscrimination laws. Furthermore, Chief Justice Roberts, appointed by President George W. Bush in 2005, was considered a conservative until his tie-breaking vote to uphold Obamacare. He is known to pay close attention to media coverage and to the Courts image and reputation. Of the z remaining justices, Scalia, Alito and Thomas are conservatives, while the liberal contingent comprises Ginsburg, Breyer, Sotomayor and Kagan. Many of the justices are aware that sooner or later samesex marriage will be widely accepted, and that any discrimination on the basis of sexual orientation will be widely viewed as unacceptable in the way that race and sex-based discrimination are considered unacceptable today. However, this does not exactly make things simple. On the one hand, the liberal justices and Justice Kennedy are not likely to want to stand in the way of such change; on the other hand, all of the justices are aware that many states are not yet ready to recognise same-sex marriage. In Fisher v. University of Texas, for which hearings start on 10 October, the Court will decide whether the University places too much emphasis on race in selecting its freshman class. This affirmative action case highlights the contradiction at the core of the Supreme Courts approach to this contentious question. It has previously ruled that any consideration of race, even to advantage historically disadvantaged groups, must entail strict scrutiny. This requires the state to show that its consideration of race is narrowly tailored to further a compelling state interest. Although the Court has held that educational diversity counts as a compelling state interest, in Grutter v. Bollinger (2003) thenJustice OConnor speculated that in 25 years time, consideration of race may no longer be warranted, even for diversitys sake. While 25 years have not yet passed, the challengers are counting on the fact that OConnor was replaced by conservative Justice Samuel Alito, possibly giving them five votes against affirmative action. For the Court to reverse Grutter after only nine years could lead to the re-segregation of many of the nations most eminent institutions of higher learning. Fisher will be a litmus test of how radical the Courts conservative justices truly are, and possibly a landmark case. According to Georgetown Law Professor Pam Harris, [t]his is an issue the chief justice cares deeply about. I dont think anyone thinks affirmative action is long for this world.
Bronwen Ewens

Monday, October 15, 2012

[VOLUME 2, ISSUE 11]

Mr Roberts comes to Melbourne

MLS Senior Lecturer Andrew Roberts is a criminologist and legal theorist with a varied background in the law. Last week he took a moment from his busy research schedule to sit down and share his story with De Minimis. Andy teaches Evidence and Proof in the JD program, and in the past has taught both an LLB equivalent of the subject, and a class on Legal Theory. Andy also enjoys working with the theoretical framework of criminal justice, examining broad questions such as how to achieve more fairness and responsibility in the justice system. Andy, an English native, first became involved in the law by way of working with identification evidence in the London Metropolitan Police force in 1988. Working in the East End, he observed the law to be a powerful instrument and considered the power of the police to be very coercive. Spurred on by these experiences, he took up legal studies at the University of Nottingham, spending his third year at the University of Texas. One subject Andy studied during his time in the States was American criminal law, and this led him to pursue a Master's degree in criminology at Cambridge. An interest in positive law (where rules constrain judicial discretion) and criminal procedure led Andy to pursue a PhD at his undergraduate institution, Nottingham. Around that time, Andy contended with his greatest challenge yet: children and family life. Putting aside his PhD studies for the time being, Andy began teaching at the Universities of Warwick and Leeds, before arriving in Australia in 2009 for a six-month teaching stint at UNSW. Warm and balmy Australia left an indelible mark on Andy, who returned with his family to England in December 2009. It was -8C and stayed cold for three weeks, Andy said. It never really rose above the freezing point. Andy's interest in returning to Australia continued to simmer till he applied for a position at MLS in 2010. Now that he works for the law school, his academic pursuits include exploring a legal theoretical approach to state power and the rights of individuals in a free and democratic society. Andy is also undertaking his doctoral research again, focusing on issues of privacy in criminal procedure at Leiden University in the Netherlands. In his spare time, Andy spends time with his young family in dynamic Melbourne, and helps to coach the Brunswick Cricket Club. Asked if he had a chance to change something in the world, Andy said that he would ensure everyone in the world had access to a free healthcare service. Dean R.P. Edwards

THIS MONTH IN LOL HISTORY

THIS WEEK IN LEGAL HISTORY

October 18, 1867 America Buys Alaska from Russia This Thursday marks the 145th anniversary of the day the United States purchased the territory of Alaska from Russia for $7.2 million USD. Known as Alaska Day, the Alaskan public holiday celebrates the anniversary of the formal transfer of the Territory of Alaska from the Russian Empire to the US occurring in 1867. At the time, Russia feared war with Britain and did not want to risk losing part of their territory in future armed conflict. In particular, Russia was threatened by the increasing presence of the British population, who were colonizing the nearby area of British Columbia due to the recent gold rush. Fearing that Alaska would become quickly and easily captured in the event of war, Tsar Alexander II decided to sell it off, with a view that it was better to sell the land for consideration than to give it up by virtue of defeat. Interestingly, the offer of sale was made to both Britain and the United States, with some suggesting that the Tsar intended to initiate a bidding war between the two Great powers. However, the British Empire showed little interest in purchasing the territory. Rather, America indicated some interest in buying the land in 1859. Nevertheless, formal talks with the US would not resume until March 1867 due to the interruptions caused by the American Civil War. On March 30, 1867, Russia and the United States settled on a treaty which determined a purchase price of $7.2 million USD (equivalent to about $4.74/km2 today). The treaty was generally welcomed by the people of both countries, with the hope that the transfer would foster friendship and better relations between the two states. Alaska would go on to join the Union as a state in 1959. Annie Zheng

De Minimis

Monday, October 15, 2012

[VOLUME 2, ISSUE 11]

L IS FOR...
League [leeg] noun 1. 2. An association of individuals having a common goal; A bunch of wankers that form a study group at Melbourne Law School. Everyone knows the study of law is solipsist; its every man, woman, and overgrown child for themselves. Thats why syndicate exercises are the bane of our existence, thats why complicity was the hardest part of criminal law for law students to comprehend, and thats why every time I open the door to a group study room on level 5 theres only one person in the room. EVERY TIME. A study group, therefore, is in every way antithetical to the foundations of law school culture; its science to fundamentalist Christianity, its logic to scientology and its bacon to the Jews. But I should back-track and detail the basic premise of the league is (or is it the league? The douches of the league would write it the league or The League). The League is a self-formed, self-governing study group formed after LMR for the purposes of writing group notes and engaging in group revision to achieve the best marks possible with the least effort possible, according to The Leagues website found at www.weloveourselves.com. Firstly: The League? I dont care if someone outside the group came up with the name that it has since stuck can only mean that it is an amass of tool-face-loser-wankers, or toolfaceloserwankers for slightly shorter. The problems with their mantra, in a place like the law school, are threefold: self, group and least effort.

That the group is self-formed suggests they had a new idea; which is absurd. Law school is about tradition and routine and not thinking outside the box and cereal (Im hungry and thought about foods that come out of boxes). Just look at Kirby J; because hes just over there oh and also it supports my point. That its a group suggests they privilege group effort over individual toil; which is blasphemy. Law school is about being alone and hating everyone, like being an inmate in a maximum security prison or a politician. No law student could possibly seek to work in a collegiate fashion, because their natural instinct would be to sabotage their so-called teammates, which would result in simultaneous mutual sabotage, which is like befriending people on Big Brother (which I know nothing about because I never watch the show and know nothing about how B-Rad got evicted last week). That its a group suggests they spend less time studying law than the average student; which is downright preposterous. Any self-respecting law student understands that law is ones priority above all else: work, family and sex. The only instance in which one of those things is not a lesser priority, is if you can combine the law with it: working at the law library, breeding with other law students or breeding with other law students. If these students had any shred of respect for the law, the law school, or the practice of legal education, they would remain in every way discrete and individual, impossibly hard-working, depressed and alone. Charles Hopkins is a member of The study group formerly known as The League.

PROCRASTINATION STATION Quiz Time!

(1) Which book opens with the line, You have brains in your head. You have feet in your shoes. You can steer yourself in any direction you choose. (2) Which Shakespearean character, half mad by this point in the play, has the famous line, Out, damned spot!? (3) Which Ancient Greek God was associated with wine? (4) Which is the only country in Africa not currently a member of The African Union? (5) When asked about US foreign policy in a TV interview, who famously (infamously?) answered that Russia was just there over the border? (6) Who has the most lines in Shakespeares Othello? (Its not Othello) (7) What is the national winter sport in Canada? (8) What was Nigella Lawsons first cooking book called? (9) On the 15th of October 1582 (430 years ago today) the Gregorian calendar was implemented in Italy, Poland, Portugal and Spain who implemented it? (10) Which film ends with the line, Louis, I think this is the beginning of a beautiful friendship?

Haiku Heaven
Write your own haiku here about your current feelings towards life, love, and law.

ANSWERS: (1) Oh, the Places Youll Go! By Dr. Seuss; (2) Lady Macbeth; (3) Dionysos; (4) Morocco; (5) Sarah Palin; (6) Iago; (7) Ice Hockey (simply referred to as hockey); (8) How to Eat (1998); (9) Pope Gregory XIII; (10) Casablanca, said by Rick Blaine played by Humphrey Bogart

De Minimis

Monday, October 15, 2012

[VOLUME 2, ISSUE 11]

De Minimis