The court of appeals issued a judgment on October 31, 2011 (No. 11-1332), denying appellant's appeal and granting defendant-appellee Bank of America Corporation’s motion to dismiss the complaint. I (petitioner) have submitted a Motion For Leave To Proceed In Forma Pauperis and for writ of certiorari and placed it in the United States Postal Service via first-class postage prepaid, on January 25, 2012 before the final date allowed for filing. The Court's jurisdiction is invoked under 28 U.S.C. § 1254(1), which provides: Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1)By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree; (2)By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.
or abridging the freedom of speech. arising under this Constitution.--to Controversies to which the United States shall be a Party. other public Ministers and Consuls. Amendment I Congress shall make no law respecting an establishment of religion. or the Citizens thereof. other public Ministers and Consuls. or the right of the people peaceably to assemble. shall be by Jury. and Treaties made. Section. both as to Law and Fact. 2. receive for their Services a Compensation. 1. and between a State.--between a State and Citizens of another State. the Trial shall be at such Place or Places as the Congress may by Law have directed. which shall not be diminished during their Continuance in Office. Section. and to petition the Government for a redress of grievances.--to all Cases affecting Ambassadors.--to all Cases of admiralty and maritime Jurisdiction. Amendment V 3 . or of the press. the Supreme Court shall have appellate Jurisdiction.Roy A. In all the other Cases before mentioned. The judicial Power of the United States shall be vested in one Supreme Court. the Laws of the United States. with such Exceptions. The Trial of all Crimes. both of the supreme and inferior Courts. and in such inferior Courts as the Congress may from time to time ordain and establish. and those in which a State shall be Party.-between Citizens of different States. and such Trial shall be held in the State where the said Crimes shall have been committed. shall hold their Offices during good Behaviour. under their Authority. but when not committed within any State. in Law and Equity.--between Citizens of the same State claiming Lands under Grants of different States. and foreign States. The judicial Power shall extend to all Cases. Citizens or Subjects. except in Cases of Impeachment. Slay CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Article III. or which shall be made. and shall. In all Cases affecting Ambassadors. the Supreme Court shall have original Jurisdiction. or prohibiting the free exercise thereof. and under such Regulations as the Congress shall make. at stated Times.--to Controversies between two or more States. The Judges.
also known as the 'Public Company Accounting Reform and Investor Protection Act' (in the Senate) and 'Corporate and Auditing Accountability and Responsibility Act' (in the House). the right of trial by jury shall be preserved. Section 5. nor be deprived of life. or otherwise infamous crime. *Changed by section 1 of the 26th amendment. also known as the Financial Services Modernization Act of 1999. is a United States federal law enacted on July 30. The Gramm–Leach–Bliley Act (GLB). and no fact tried by a jury. Slay No person shall be held to answer for a capital. without due process of law. enacted July 30.Roy A. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. without due process of law. public company boards. except in cases arising in the land or naval forces. nor deny to any person within its jurisdiction the equal protection of the laws. which set new or enhanced standards for all U. nor shall private property be taken for public use. unless on a presentment or indictment of a Grand Jury. management and public accounting firms. AMENDMENT XIV Section 1. nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.S. the provisions of this article. where the value in controversy shall exceed twenty dollars. there must be a policy in place to 4 . liberty. when in actual service in time of War or public danger. and subject to the jurisdiction thereof. The Congress shall have the power to enforce. 2002. liberty. 2002). whether a financial institution discloses nonpublic information or not. than according to the rules of the common law. The Sarbanes-Oxley Act of 2002. without just compensation. by appropriate legislation. or property. GLB compliance is mandatory. shall be otherwise re-examined in any Court of the United States. nor shall any State deprive any person of life. or in the Militia. are citizens of the United States and of the State wherein they reside. All persons born or naturalized in the United States. or property. nor shall be compelled in any criminal case to be a witness against himself. Amendment VII In Suits at common law.
Sec. and to report suspicious activity that might signify money laundering.S. WHISTLEBLOWER PROTECTION. or privileges of employment because the employee. Slay Major components put into place to govern the collection.Roy A. Specifically. or any order. the Federal Government. or is about to provide or cause to be provided to the employer. or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any other Act enforced by the Commission. caused to be provided. Sec. or other criminal activities. §2087]. to end "too big to fail". or ban under any such Acts. disclosure. or the attorney general of a State information relating to any violation of. Consumer Financial Protection Act of 2010. conditions.-(a) No manufacturer. may discharge an employee or otherwise discriminate against an employee with respect to compensation. Subchapter I. (3) assisted or participated or is about to assist or participate in such a proceeding. or retailer. government agencies to detect and prevent money laundering. whether at the employee's initiative or in the ordinary course of the employee's duties (or any person acting pursuant to a request of the employee)-(1) provided. (2) testified or is about to testify in a proceeding concerning such violation. private labeler.S. or otherwise known as the Currency and Foreign Transactions Reporting Act) requires financial institutions in the United States to assist U. [15 U. 6801-6809 Disclosure of Nonpublic Personal Information. standard. and for other purposes. to protect the American taxpayer by ending bailouts. rule. to protect consumers from abusive financial services practices. or 5 . the act requires financial institutions to keep records of cash purchases of negotiable instruments.C. regulation. tax evasion. distributor. terms. The Bank Secrecy Act of 1970 (or BSA. and protection of consumers’ nonpublic personal information.000 (daily aggregate amount). The Dodd-Frank Act is to promote the financial stability of the United States by improving accountability and transparency in the financial system. and file reports of cash purchases of these negotiable instruments of more than $10. 40. or personally identifiable information includes: Financial Privacy Rule Safeguards Rule Pretexting Protection 15 USC.
in writing. practice. any activity. and of the opportunities that will be afforded to such person under paragraph (2). regulation. of the substance of evidence supporting the complaint. (B)(i) The Secretary shall dismiss a complaint filed under this subsection and shall not conduct an investigation otherwise required under subparagraph (A) unless the complainant makes a prima facie showing that any behavior described in paragraphs (1) through (4) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint. and request a hearing on the record. or ban under any such Acts. or both. the Secretary shall notify. standard. by clear and 6 . If the Secretary concludes that there is reasonable cause to believe that a violation of subsection (a) has occurred. Not later than 30 days after the date of notification of findings under this paragraph. or any order. the complainant and the person alleged to have committed a violation of subsection (a) of the Secretary's findings. Any such hearing shall be conducted expeditiously. (b)(1) A person who believes that he or she has been discharged or otherwise discriminated against by any person in violation of subsection (a) may. Upon receipt of such a complaint. in writing. the preliminary order shall be deemed a final order that is not subject to judicial review. policy. (ii) Notwithstanding a finding by the Secretary that the complainant has made the showing required under clause (i). The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order. or refused to participate in. the Secretary shall accompany the Secretary's findings with a preliminary order providing the relief prescribed by paragraph (3)(B). Slay (4) objected to. either the person alleged to have committed the violation or the complainant may file objections to the findings or preliminary order. no investigation otherwise required under subparagraph (A) shall be conducted if the employer demonstrates. If a hearing is not requested in such 30-day period. not later than 180 days after the date on which such violation occurs. the person named in the complaint of the filing of the complaint.Roy A. of the allegations contained in the complaint. (2)(A) Not later than 60 days after the date of receipt of a complaint filed under paragraph (1) and after affording the complainant and the person named in the complaint an opportunity to CONSUMER PRODUCT SAFETY ACT 106 submit to the Secretary a written response to the complaint and an opportunity to meet with a representative of the Secretary to present statements from witnesses. rule. the Secretary shall initiate an investigation and determine whether there is reasonable cause to believe that the complaint has merit and notify. file (or have any person file on his or her behalf) a complaint with the Secretary of Labor alleging such discharge or discrimination and identifying the person responsible for such act. or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act or any other Act enforced by the Commission.
the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States with jurisdiction. (iv) Relief may not be ordered under subparagraph (A) if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior. conditions. (B) If. the Secretary determines that a violation of subsection (a) has occurred. that the employer would have taken the same unfavorable personnel action in the absence of that behavior. the Secretary may award to the prevailing employer a reasonable attorneys' fee. (4) If the Secretary has not issued a final decision within 210 days after the filing of the complaint. to be paid by the complainant. the Secretary shall order the person who committed such violation-(i) to take affirmative action to abate the violation. which shall have jurisdiction over such an action without regard to the amount in controversy. or within 90 days after receiving a written determination. and (iii) to provide compensatory damages to the complainant. as determined by the Secretary. and the person alleged to have committed the violation. (C) If the Secretary finds that a complaint under paragraph (1) is frivolous or has been brought in bad faith. the complainant. or in connection with. a proceeding under this subsection may be terminated on the basis of a settlement CONSUMER PRODUCT SAFETY ACT 107 agreement entered into by the Secretary. and privileges associated with his or her employment. the bringing of the complaint upon which the order was issued. in response to a complaint filed under paragraph (1). If such an order is issued under this paragraph. the Secretary shall issue a final order providing the relief prescribed by this paragraph or denying the complaint. At any time before issuance of a final order. at the request of the complainant. Slay convincing evidence. (3)(A) Not later than 120 days after the date of conclusion of any hearing under paragraph (2). shall assess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorneys' and expert witness fees) reasonably incurred. not exceeding $1.Roy A. and 7 . by the complainant for. (ii) to reinstate the complainant to his or her former position together with compensation (including back pay) and restore the terms. Slay paragraphs (1) through (4) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint. (iii) The Secretary may determine that a violation of subsection (a) has occurred only if the complainant demonstrates that any behavior described in Roy A.000. the Secretary.
Review shall conform to chapter 7 of title 5. and Roy A. The proceedings shall be governed by the same legal burdens of proof specified in paragraph (2)(B). expert witness fees. without regard to the amount in controversy or the citizenship of the parties. or in the United States district court for the District of Columbia. (7)(A) A person on whose behalf an order was issued under paragraph (3) may commence a civil action against the person to whom such order was issued to require compliance with such order. at the request of either party to such action. injunctive relief and compensatory damages. The court shall have jurisdiction to grant all relief necessary to make the employee whole. with interest. including injunctive relief and compensatory damages.Roy A. in issuing any final order under this paragraph. allegedly occurred or CONSUMER PRODUCT SAFETY ACT 108 the circuit in which the complainant resided on the date of such violation. and reasonable attorney's fees. any person adversely affected or aggrieved by a final order issued under paragraph (3) may obtain review of the order in the United States Court of Appeals for the circuit in which the violation. including-(A) reinstatement with the same seniority status that the employee would have had. (B) The court. operate as a stay of the order. including litigation costs. the Secretary may file a civil action in the United States district court for the district in which the violation was found to occur. but for the discharge or discrimination. may award costs of litigation (including reasonable attorneys' and expert witness fees) to any 8 . unless ordered by the court. The petition for review must be filed not later than 60 days after the date of the issuance of the final order of the Secretary. the district courts shall have jurisdiction to grant all appropriate relief including. to enforce such order. Slay which action shall. United States Code. but not limited to. be tried by the court with a jury. Slay (C) compensation for any special damages sustained as a result of the discharge or discrimination. In actions brought under this paragraph. (5)(A) Unless the complainant brings an action under paragraph (4). to enforce such order. with respect to which the order was issued. The commencement of proceedings under this subparagraph shall not. (B) the amount of back pay. The appropriate United States district court shall have jurisdiction. (B) An order of the Secretary with respect to which review could have been obtained under subparagraph (A) shall not be subject to judicial review in any criminal or other civil proceeding. (6) Whenever any person has failed to comply with an order issued under paragraph (3).
distributor.Roy A. victim. private labeler. or both. and shall permit the United States to intervene for presentation of evidence.C.S.C.S. and for argument on the question of constitutionality. United States Code. shall be fined under this title or imprisoned not more than 10 years. Slay party whenever the court determines such award is appropriate. or retailer (or such person's agent). if evidence is otherwise admissible in the case. deliberately causes a violation of any requirement relating to any violation or alleged violation of any order. subject to the applicable provisions of law. The United States shall. (e) (!2) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy US Code . (d) Subsection (a) shall not apply with respect to an employee of a manufacturer.Section 1513: Retaliating against a witness. officer or employee thereof is not a party. before or after rendition of judgment or decree.S. (2)By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired. Certified questions: Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1)By writ of certiorari granted upon the petition of any party to any civil or criminal case. wherein the constitutionality of any Act of Congress affecting the General. for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense. Certiorari. regulation. or an informant (whistleblower) (e) (!2) Whoever knowingly. 28 U. and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy. (c) Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus proceeding brought under section 1361 of title 28. § 2403 : US Code – Section 2403: Intervention by United States or a State. 18 U.Chapter 73: Obstruction of justice 28 U. have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts 9 .C. suit or proceeding in a court of the United States to which the United States or any agency. distributor. private labeler. takes any action harmful to any person. or consumer product safety standard under this Act or any other law enforced by the Commission. including interference with the lawful employment or livelihood of any person. or retailer who. constitutional question (a)In any action. with the intent to retaliate. § 1254 : US Code – Section 1254: Courts of Appeals. § 1513 : US Code . acting without direction from such manufacturer.
and having power to prevent or aid in preventing the commission of the same. of any State or Territory or the District of Columbia. any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia 42 U.S. officer.C. except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity. or causes to be subjected. or to influence the verdict. by force. ordinance. intimidation. and mentioned in section 1985 of this title. freely. or juror. have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality. or of his being or having been such juror. regulation. or indictment lawfully assented to by him.C. or employee thereof is not a party. and truthfully. and shall permit the State to intervene for presentation of evidence. § 1986 : US Code – Section 1986: Action For Neglect To Prevent: Every person who. or other proper proceeding for redress. § 1983 : US Code – Section 1983: Civil Action For Deprivation of Rights: Every person who. privileges. or indictment of any grand or petit juror in any such court.S. or usage. or to injure such party or witness in his person or property on account of his having so attended or testified. custom. intimidating party. or immunities secured by the Constitution and laws. If two or more persons in any State or Territory conspire to deter. § 1985 : US Code – Section 1985: Conspiracy To Interfere With Civil Rights: (2) Obstructing justice. having knowledge that any of the wrongs conspired to be done. For the purposes of this section. the court shall certify such fact to the attorney general of the State. and for argument on the question of constitutionality. any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights. or if two or more persons conspire 42 U. under color of any statute. presentment.(b)In any action. any party or witness in any court of the United States from attending such court. or to injure such juror in his person or property on account of any verdict. subjects. The State shall. shall be liable to the party injured in an action at law. or proceeding in a court of the United States to which a State or any agency. 42 U. wherein the constitutionality of any statute of that State affecting the public interest is drawn in question. fully. neglects or 10 . or threat. or from testifying to any matter pending therein.Roy A.S. are about to be committed. subject to the applicable provisions of law.C. if evidence is otherwise admissible in the case. presentment. witness. suit. suit in equity. Slay and law relating to the question of constitutionality. injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
or data contained in a computer. and if there be no widow. for the benefit of the widow of the deceased. (2) obtaining money. § 11-52-6(a)(b)(c)(d)(e) Civil action. and for fraudulent or other illegal purposes. altering. computer program. computer network. representations. computer system. directly or indirectly. damage. damages. computer software. – Whoever directly or indirectly accesses or causes to be accessed any computer. and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action. shall be liable to the party injured. in lieu of actual damages. or destruction. computer system. shall be guilty of a felony and shall be subject to the penalties set forth in § 11-52-5. deleting. if there be one. or promises. intentionally. without authorization. – (a) Any person injured as a result of a violation of this chapter may bring a civil action against the violator for compensatory damages. – Whoever. the injured person. alteration. or services by means of false or fraudulent pretenses. and any other relief that the court deems appropriate. punitive damages. § 11-52-3 Intentional access. destroying. court costs. other than an electronic mail service provider. § 11-52-2 Access to computer for fraudulent purposes.Roy A. and such damages may be recovered in an action on the case. or (3) damaging. (b) If the injury arises from the transmission of unsolicited bulk electronic mail. computer system. for all damages caused by such wrongful act. or computer network shall be guilty of a felony and shall be subject to the penalties set forth in § 11-52-5.000 damages therein. or computer network for the purpose of: (1) devising or executing any scheme or artifice to defraud. or removing any program or data contained in it in connection with any scheme or artifice to defraud. may also recover attorney's fees and costs and may elect. which such person by reasonable diligence could have prevented. alters. and may recover not exceeding $5. the legal representatives of the deceased shall have such action therefor. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued. including reasonable attorneys' fees. Slay refuses so to do. or destroys any computer. computer program. property. accesses. to recover the lesser of five hundred dollars ($500) for each and every unsolicited bulk electronic 11 . and if the death of any party be caused by any such wrongful act and neglect. then for the benefit of the next of kin of the deceased. or his legal representatives. if such wrongful act be committed.
computer network. 12 . (c) If the injury arises from the transmission of unsolicited bulk electronic mail. computer program and computer software involved in order to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any party. conduct all legal proceedings in such a way as to protect the secrecy and security of the computer. an injured electronic mail service provider may also recover attorneys fees and costs.000) per day. in its discretion. computer data.000) per day. and may elect. the court may.Roy A. Slay mail message transmitted in violation of this chapter up to a maximum of twentyfive thousand dollars ($25. The injured person shall not have a cause of action against the electronic mail service provider which merely transmits the unsolicited bulk electronic mail over its computer network. to recover the greater of five hundred dollars ($500) for each and every unsolicited bulk electronic mail message transmitted in violation of this chapter up to a maximum of twenty-five thousand dollars ($25. in lieu of actual damages. (d) At the request of any party to an action brought pursuant to this section.
§ 2403 (Intervention by United States or a State. my Fourteenth Amendment – Section 1 rights (―Due Process of Law and Equal Protection Of The laws‖) and Article III. Slay STATEMENT OF THE CASE This case is about the denial of my (Petitioner) Seventh Amendment right (―Trial by Jury‖) in a civil case. except in Cases of Impeachment. 3 business days after receiving my (Appellant) Petition for review of my misconduct complaint(s) dated October 26. 2011 and the filing of a Misconduct Petition against that magistrate judge dated July 06.C. for the Respondent (Bank of America N. 28 U. 13 . He has waived any other claim of error. 2011. ―accepted a magistrate judge’s March 9. 2011 recommendation and granted defendant-appellee Bank of America Corporation’s motion to dismiss the complaint‖ and ―Slay’s only preserved claim of error—that the dismissal of his complaint violated his due process right to a jury trial—is meritless. 2011 to the Judicial Council by stating appellant.C. constitutional question) and 42 U. 2011. Two Temporary Agencies I can name that were involved are Randstad US and Volt Workforce Solutions.Section 1-2.A. or an informant (whistleblower)).C.S.) act of terminating my employment and actions since of leaving me destitute. 18 U. I (Petitioner) disagree with the above statement from the court of appeals. my First Amendment right (―Freedom of Speech‖).Roy A.Section 1-2 ( ―Shall hold their Offices during good Behaviour‖)(―The Trial of all Crimes. § 1513.S. 28 U. Fifth Amendment right (―Due Process of Law‖). my Fourteenth Amendment – Section 1 rights (―Due Process of Law an Equal Protection Of The Laws‖). blacklisting and manipulating me in my employment search.S.S. victim. In addition. shall be by Jury‖). The United States Court of Appeals For the First Circuit err in its judgment on October 31. § 1983 (Civil Action For Deprivation of Rights). § 2403 should apply in my quest for justice for what the lower courts failed to uphold and 18 U. Article III. § 1513 (Retaliating against a witness.S. The statement by the judges of both the district court and the court of appeals is in direct violation of my civil rights under the Constitution in particular.‖ after filing a Notice of Appeal dated March 25.C.C.
Anderson who is named in my complaint was contacted and spoken with by Judge Martin or someone from the court on his behalf. except in Cases of impeachment. was my name in it?‖ Any interviews conducted by Judge Martin or individuals acting on his or the court behalf with the Appellee employee’s wasn’t administer under oath. changes are needed. and granting the Defendant’s Motion to Dismiss Complaint. Anderson is quoted. David K. Slay The United States District Court For The District Of Rhode Island err in its judgment when it violated the. Judge Martin partially quoted some quotes from my Timeline.C. The United States District Court For The District Of Rhode Island violated Article III – Section 1-2 ―shall hold their Offices during good Behaviour & The Trial of all Crimes. Judge Martin Report and Recommendation is bias and misleading. § 1983 should apply to Bank of America N. ―What letter. so it should be considered hearsay and not be included in his Report and Recommendation.S.‖ which I (Plaintiff) did.Roy A. Examples of Judicial misconduct include. pursuant to this Court’s Memorandum and Order dated March 16. 2011 that is based on a bias and misleading Report and Recommendation that violates the Judicial Conference Of The United States Committee On Judicial Conduct And Disability and the court own Local Rules of requesting a Jury Trial by. shall be by Jury‖ and Plaintiff Seventh Amendment right of the United States Constitution to a ―Jury Trial‖ when it issued Judgment dated March 16. David K. by stating. Judge Martin violated the Judicial Conference Of The United States Committee On Judicial Conduct And Disability.S.C. ―Judicial Conference Of The United States Committee On Judicial Conduct And Disability. below the case number. § 1513. ―plaintiff Roy A. ―Any pleading containing a demand for a jury trial shall set forth the demand to the right of the caption.‖. The United States District Court For The District Of Rhode Island violated 14 . for providing false information to the Rhode Island Department of Labor and Training.A. As for the district court. Slay. accepting the Magistrate’s Report and Recommendation dated March 9. 18 U. 2011. ―having improper discussions with parties or counsel for one side in a case. 42 U. 2011. treating litigants or attorneys in a demonstrably egregious and hostile manner.‖ The written transcript doesn’t match the recorded transcript.
15 . during the Motion To Dismiss hearing. In addition. 2011 to the Judicial Council by stating appellant. 2011. ―accepted a magistrate judge’s March 9. I (Plaintiff) wasn’t allowed to completely read my court statement and received an alter transcript from that Motion To Dismiss hearing. The United States District Court For The District Of Rhode Island violated my (Plaintiff) Constitutional First Amendment right of ―Freedom of Speech‖ and Article III Section 1 ―shall hold their Offices during good Behaviour‖. 3 business days after receiving my (Appellant) Petition for review of my misconduct complaint(s) dated October 26. 2011 followed by its Judgment on March 16. 2011 recommendation and granted defendant-appellee Bank of America Corporation’s motion to dismiss the complaint‖ and ―Slay’s only preserved claim of error—that the dismissal of his complaint violated his due process right to a jury trial—is meritless. 2011.Roy A. He has waived any other claim of error‖. The United States Court of Appeals For the First Circuit violated my (Appellant) Constitutional Fifth Amendment right of ―Due Process of Law‖ when it issued Judgment on October 31st. The United States Court of Appeals For the First Circuit violated my First Amendment right when the court decided that my appearance was not needed after I filed a Notice Of Appearance. Slay my (Plaintiff) Constitutional Fifth Amendment right of ―Due Process of Law‖ when it violated the Judicial Conference Of The United States Committee On Judicial Conduct And Disability when it issued a bias and misleading Report and Recommendation on March 9.
The Tiverton Police Department had police cars cruise my street until one of the officer’s cruise by a couple of times and finally sees me taking out the trash. § 1983 and 37 CFR 10.C. shall hold their Offices during good Behaviour‖) and my (Petitioner) First. the Judicial Conference of The United States Committee On Judicial Conduct And Disability. Seventh and Fourteenth Amendment rights. David K. § 1985) when David K. was my name in it?‖ In Judge Martin Report and Recommendation.C. 42 U. I (Petitioner) submit this Petition (To The Director). The judge conduct regarding me violated Article III Section 1 of the Constitution. I was 16 .146. My (Petitioner) rights have been violated by the district court. ―what letter. both of the Supreme and Inferior Courts.S. The district court final violations were my Seventh Amendment right of a (―trial by jury‖) and my Fourteenth Amendment right (―due process of law‖) when it issued ―Judgment‖ based on a bias Report and Recommendation that omitted facts. Article III – Section 1 (―The Judges. The district court disregarded the accepted and usual course of judicial proceedings that it warrants a review by the Supreme Court. During the Motion to Dismiss hearing. pulls over to make some notes. The district court also acted improperly. Anderson is quoted.Roy A. (under 42 U. 37 CFR 2.S. Judge Martin or someone from the court acting on his behalf contacted my (Plaintiff) town police department. wasn’t accurate and violated the Judicial Conference of The United States Committee On Judicial Conduct And Disability and Article III – Section 1 of the Constitution.89. my First Amendment right was violated when I the (Plaintiff) wasn’t allowed to finish reading a prepared statement I wrote for the hearing. Slay REASONS FOR GRANTING THE WRIT A Writ of Certiorari should be granted because the district court violated its own Local Rules (LR Cv 5(a)(4)) (―demand for jury trial‖) applicable to civil proceedings. Under the Code of Federal Regulations. Anderson who is named in my complaint was contacted and spoken with by Judge Martin or someone from the court on his behalf.
―granted defendant-appellee Bank of America Corporation’s motion to dismiss the complaint. In any event. ―He has a 25 million dollar lawsuit against Bank of America. when we were interrupted by another neighbor. the district court conducted its judicial process with disregards to my First. where it was quickly moved to federal court. Constitutional Question is needed regarding my Petition for a Writ of Certiorari. S. I Notice a Tiverton Police Car parked in front of his house and a police officer talking with him for over 40 minutes a few days prior. misleading Report and Recommendation from the district court. I (Petitioner) requested this when I filed my civil suit in state court. I filed a Judicial Misconduct Complaint. How many others (Citizens) have had their Constitutional rights.Roy A.S. I overheard him tell her. I next submitted a petition to the Judicial Council for review of my misconduct complaint. only to have it dismissed. my appeal from the district court was entered into Judgment. and Fourteenth Amendment rights.‖ This neighbor has friends who are Police Officers in the Tiverton Police Department. Fifth. C.A. disregarded or will during future litigations? Under 28 U.C.S. § 2403 and 42 U. Three business days later.. My neighbor walked to the edge of her property to greet him. Seventh. not Bank of America Corporation. The actions of the court of appeals violates 28 U. § 1983 and are based on a bias. 28 U. C. § 2403(a)(b). § 2403(a)(b) and its own rules. This civil action needs to go to a Jury Trial.C. S. I (Petitioner) appealed the district court ruling to the court of appeals. Slay speaking with one of my neighbors. 17 . Intervention By United States Or A State.‖ My civil action was against Bank of America N.
2012 18 .Roy A. ______________________ Roy A. Respectfully submitted. the petition for a writ of certiorari should be granted. Slay CONCLUSION For the foregoing reasons. Slay 131 Canonicus Street Tiverton. RI. 02878 (401) 636-1371 Date: January 25.


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David M. Farnum is of-counsel to Anova and leads firm’s IP litigation, while maintaining his own independent IP law practice. Mr. Farnum is a leading national intellectual property litigator with focus on patented high technologies and science, trademarks, trade secrets, copyrights, false advertising, licensing, and unfair competition. In this capacity, Mr. Farnum has litigated dozens of patent suits before numerous United States District Courts, the United States Court of Appeals for the Federal Circuit and the International Trade Commission.
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AdvancedProcessor Technologies v. Advanced Micro Devices (E.D. Tex). Lead counsel for plaintiff in patent suit relating to data processors supporting dynamic frequency and voltage switching and data processors supporting virtual memory functions.
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AdvancedProcessor Technologies v. Atmel (E.D. Tex). Lead counsel for plaintiff in patent suit relating to data processors with virtual memory functions.
AdvancedProcessor Technologies v. Conexant Systems (E.D. Tex). Lead counsel for plaintiff in patent suit relating to data processors with virtual memory functions.
AdvancedProcessor Technologies v. Creative Labs (E.D. Tex). Lead counsel for plaintiff in patent suit relating to data processors with virtual memory functions.
AdvancedProcessor Technologies v. Marvell Semiconductor (E.D. Tex). Lead counsel for plaintiff in patent suit relating to data processors with virtual memory functions.
AdvancedProcessor Technologies v. Mindspeed Technologies (E.D. Tex). Lead counsel for plaintiff in patent suit relating to data processors with virtual memory functions.
AdvancedProcessor Technologies v. NVIDIA (E.D. Tex). Lead counsel for plaintiff in patent suit relating to data processors with virtual memory functions.
AdvancedProcessor Technologies v. PMC-Sierra (E.D. Tex). Lead counsel for plaintiff in patent suit relating to data processors with virtual memory functions.
AdvancedProcessor Technologies v. Xilinx (E.D. Tex). Lead counsel for plaintiff in patent suit relating to data processors with virtual memory functions.
AdvancedProcessor Technologies v. Analog Devices et al (E.D. Tex). Lead counsel for plaintiff in patent suit relating to data processors with virtual memory functions.
Wireless Recognition Technologies v. Amazon, Google, Nokia and Ricoh (E.D. Tex). Lead counsel for plaintiff in patent suit relating to mobile visual search systems.
Atwater Partners of Texas v. Comtrend Corporation (E.D. Tex.). Lead counsel for defendant in a patent suit relating to telecommunication system routers.
IBC-Hearthware v. Morningware (N.D. Ill.). Lead counsel for plaintiff in patent suit relating to countertop electric ovens.
Network Gateway Solutions v. Media5 (D. Del.). Lead counsel for defendant in a patent suit relating to digital network access servers.
Klausner Technologies, Inc. v. Panasonic Corporation of North Am. (E.D. Tex.). Represented defendant in a patent suit relating to visual voicemail.
Balsam Coffee Solutions v. Melitta USA (E.D. Tex.). Represented defendant in patent suit relating to coffee processing systems.
Juxtacomm v. Metastorm (E.D. Tex.). Represented defendant in patent suit involving computer software relating to systems integration.
NSGDatacom v. Spatial Adventures (E.D. Va.). Represented plaintiff in suit over ownership of patent relating to virtual private networks.
Telarix v. Vero Systems/TEOCO (E.D. Va.). Lead patent counsel for defendant in a patent suit involving computer software relating to optimal cost routing in telecommunication networks.
Simplification v. Block Financial Corporation (D. Del.). Represented plaintiff in patent suit involving computer software relating to tax preparation.
Synergy v. Naturally Nova Scotia (ICDR). Represent complainant in an arbitration involving nutraceuticals.
Euro-Pro v. Euroflex (S.D.N.Y.). Represented plaintiff in Lanham Act false advertising case involving household steamers.
TEOCO v. Razorsight (E.D. Va.). Represented plaintiff in trade secret and copyright suit involving computer software relating to bill tracking software for telecommunication carriers.
Tessera v. Acer, Powerchip, Nanya, et al. (U.S. ITC). Represented respondent in patent suit involving small-format Ball Grid Array semiconductor packages.
Microsoft v. Alcatel-Lucent (U.S. ITC). Represented respondent in patent suit involving unified communication systems.
Telcordia v. Lucent Technologies (U.S. ITC). Represented respondent in patent suit involving routers, switches and hubs used in telecommunications equipment.
Telcordia v. Lucent Technologies (D. Del.). Represented defendant in patent suit involving routers, switches and hubs used in telecommunications equipment (dynamic time division multiplexing; survivable ring networks).
Golden Bridge Technology v. Lucent Technologies (E.D. Tex.). Represented defendant in patent suit involving 3rd generation wireless technology (RACH ramp-up).
QPSX Development v. Lucent Technologies (E.D. Tex.). Represented defendant in patent suit involving digital communication networks.
CCC Information Services v. Mitchell International (N.D. Ill.). Represented plaintiff in patent suit involving computer software (networked auto-estimating software).
Venetec International Inc. v. Nexus Medical LLC (D. Del.). Represented plaintiff in patent suit involving medical device (catheter stabilization device).
Fresenius Medical Care Holdings v. Roxane Laboratories (S.D. Ohio). Represented generic company in Hatch- Waxman case involving calcium acetate.
Abbott Laboratories v. IVAX (D. N.J). Represented patent holder in Hatch-Waxman case involving trandolapril.
ITT v. Sprint (D. Del.). Represented defendant in patent suit involving GPS and wireless communications technology (location based services; assisted GPS).
Armament Systems and Procedures v. Vector Products (E.D. Wis.). Represented defendant in patent suit involving miniature flashlights.
Software AG v. BEA Systems (D. Del.). Represented patent holder in suit involving computer software (middleware to integrate legacy systems). Favorable settlement one day before trial.
Kao Corp. v. Unilever (D. Del.). Represented defendant in patent suit involving copolymers used in cosmetic article. One week bench trial, directed verdict on willfulness at close of plaintiff’s case during trial, post-trial decision of non- infringement. Affirmed by Federal Circuit.
CFM Corp. v. Dimplex (N.D. Ill.). Represented patent holder in suit involving electric fireplaces. One week trial, jury award of $8 million damages.
Ecolochem v. Southern California Edison (C.D. Cal.). Represented patent holder in damages phase of trial. Favorable settlement after district court awarded over $12 million for combined damages and attorneys’ fees.
Bayer v. Carlsbad Technology, Inc. (S.D. Cal.). Represented generic drug company in Hatch-Waxman case involving ciprofloxacin.
In re Gabapentin Patent Litigation (Pfizer v. Teva Pharmaceuticals) (D. N.J.). Represented generic drug company in Hatch-Waxman case involving gabapentin. District court granted summary judgment of non-infringement (subsequently overturned on appeal).
GoLight v. Wal-Mart (Fed. Cir.). Represented defendant/appellant in petition for rehearing en banc on claim construction issue in patent suit involving search light.
MMTC v. U.S. PTO (E.D. Va.). Represented patent holder in dispute over failure to pay patent maintenance fees.
In the Matter of Certain Ear Protection Devices (U.S. ITC). Represented complainant 180s, Inc. in section 337 action. Early settlements from all respondents.
In the Matter of Certain Zero-Mercury-Added Alkaline Batteries, Parts Thereof and Products Containing Same (U.S. ITC). Represented respondent Chung Pak Battery Works in section 337 action.
Lucent Technologies and Agere Systems v. Lemelson Medical, Education & Research Foundation (American Arbitration Assoc.). Represented claimants in arbitration over license regarding patents involving analog and mixed- signal integrated circuits.

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Such things as criminal fines and costs serve as judgments in favor of the Commonwealth, Virginia Code §§ 19.2-336, 19.2-341. Restitution to the victim of a crime may be docketed when so ordered by the court or upon the written request of the victim, Virginia Code § 19.2-302.2 (B).
Federal and State tax liens: Virginia Code §§ 55-142.2, 58.1-1805, Virginia Department of Social Services: Virginia Code § 63.2-1927, Virginia Department of Labor and Industry: Virginia Code §40.1-29, Virginia Department of Mines, Minerals and Energy, Virginia Code § 45.1-246 (D), Virginia State Corporation Commission: Virginia Code § 12.1-37, and Municipal Improvement Assessments: Virginia Code § 15.2-2412.
Orders of awards of the Virginia Worker’s Compensation Commission. Virginia Code § 65.2-710.
Child Support Enforcement under Federal Social Security Act - 42 USC 651/66 (a) (4) (A).


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I am quoted in this CNBC story on the Bladensburg Cross case up for oral argument next week. The author, Tucker Higgins, put together a nice piece (one tiny quibble: Town of Greece v. Galloway was not decided on the basis of the coercion approach…that part of the opinion did not command a majority) and was good enough to reference and link to this article of mine on religion and the Roberts Court from a few years ago.
Time’s Up for the Endorsement Test?
Last month, the Supreme Court agreed to consider an important Establishment Clause case from Maryland, The American Legion v. American Humanist Association. The case, which presents a challenge to a Maryland cemetery’s use of a 40-foot cross as a public war memorial, gives the Court a chance to clarify its views on the constitutionality of state-sponsored religious displays. In particular, the case provides an opportunity for the Court to do away with the so-called “endorsement test,” which holds that a display violates the Constitution if a hypothetical, reasonable observer would see it as an endorsement of religion. Conservatives have criticized the endorsement test for decades, and with a new majority on the Court, they may finally have the votes to discard it. American Legion could turn out to be one of the most significant Establishment Clause cases in a long time.
American Legion is also the subject of a recent “Legal Spirits” episode Marc and I recorded. But you have already listened to that. Right?
Even though the issues do not line up exactly, Lady Hale’s opinion addresses many of the difficult questions that arise in the American context as well: whether denying services in connection with gay weddings is equivalent to denying services to gay persons; whether one should attribute certain kinds of commercial speech to the vendor or the customer; and whether the state’s interest in ending discrimination in public places overrides the religious convictions of persons who operate small businesses. The fight over these issues is still in its early stages, in Britain and America. This decision may provide guidance for the way forward.
Readers can find my post here.
I’m very pleased to be at The King’s College tomorrow in Manhattan, where I’ll be giving a response to Professor David Tubbs’s Constitution Day Lecture: “The Burdens of Constitutional Memory: Slavery, Segregation, and the Supreme Court.” The event is free though RSVP is requested. Hope to see any of the Center’s local readers and followers there!
Kevin Walsh and I have this year’s Supreme Court roundup at First Things: Kennedy’s Last Term. In the piece we cover some of the major decisions of the last term, including First Amendment cases (Masterpiece, NIFLA, Janus), cases concerning what we call “the influence of social, technological, and moral change on Supreme Court doctrine” (Wayfair, Carpenter, Murphy v. NCAA), and political gerrymandering/judicial limits cases (Gill, Benisek), as well as a short comment on Trump v. Hawaii.
What, then, should we expect from the post-Kennedy Court? Perhaps more of the same. There was not a single 5–4 decision this term in which Justice Kennedy joined with the more liberal wing of the Court. That has never before happened on the Roberts Court. And there were fourteen 5–4 cases in which Kennedy joined with the four more conservative justices to form a majority, including First Amendment cases such as Janus and NIFLA, separation of powers cases like Trump v.Hawaii, political process cases involving political and racial gerrymandering, and a range of statutory interpretation and business cases. This record suggests that, should Judge Brett Kavanaugh be confirmed, we ought to expect a fair amount of continuity rather than radical change.
But in other major areas—areas that happen not to have been addressed this term—the change may be more substantial. Consider, for example, the constitutional law of abortion. Here, Kennedy’s replacement might make a difference, particularly if there is a possibility that a Justice Kavanaugh might join with four colleagues in ending the regime of constitutional abortion law initiated by Roe v. Wade.
Social conservatives have been disappointed before. The Court’s first major abortion case after Justice Kennedy joined the Court was the 1989 decision Webster v. Reproductive Health Services, where it seemed there might be five votes to overrule Roe. Chief Justice William Rehnquist wrote an opinion for four justices that purported to “modify and narrow” Roe, but Reagan-nominated Justice Sandra Day O’Connor went her own way, introducing the “undue burden” standard that has remained the law until today. Scalia, meanwhile, lamented that this missed opportunity to reverse Roe meant that “the mansion of constitutional abortion law, constructed overnight in Roe, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.” Scalia was farseeing. Four years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, Kennedy joined with O’Connor and Justice David Souter to preserve what they called “the central holding” of Roe.
We are guardedly optimistic that Kavanaugh’s confirmation will eventually result in the rejection of Roe v. Wade. But nobody should expect a quick or complete demolition of constitutional abortion rights. Caution is in order because of both internal Court dynamics and external pressure on the institution.
The shift on the new Court should be measured not by the distance between Kennedy and Kavanaugh, but between Kennedy and Roberts. On a multi-member Court, the views of the median justice matter most in the close cases implicating the culture wars. And Roberts cares deeply about public perceptions of the Court’s legitimacy. The same concerns that motivate Roberts to embrace minimalism more broadly, as in the cases this term about partisan gerrymandering and sales taxes, will likely mean even greater caution in these hotter and angrier areas of constitutional law.
Neither should we forget that the result of overruling the Roe/Casey regime is no panacea. It would simply lift restrictions on state legislation. But that is hardly always desirable. We can surely expect some, perhaps many, states to follow the lead of Massachusetts, where legislators passed a NASTY (Negating Archaic Stereotypes Targeting Young) Women Act that repealed abortion restrictions that might in theory have come back into force if Roe/Casey were overturned. New York’s governor has made extensive abortion rights a rallying cry of his campaign for reelection.
Just as the damage done by Roe/Casey is not exclusively legal, neither will it be undone by legal means alone. The Court and dominant cultural opinion shape each other, and the arrow of influence runs in both directions. However much “the mansion of constitutional abortion law” may be dismantled, the constitutional rot at its foundation is the result of powerful cultural forces. Let us not put our trust in judges any more than princes, not only because they are fallible, but also because judges are meant to judge, not to save us from ourselves.
Between 1994 and 2008, multiple reports about the cardinal’s transgressions with adult seminary students were made to American bishops, the pope’s representative in Washington and, finally, Pope Benedict XVI. Two New Jersey dioceses secretly paid settlements, in 2005 and 2007, to two men … for allegations against the archbishop.
This is indeed “a spiritual crisis” that cuts deeper with every revelation. It is a “crisis” that goes much deeper than the episcopate seems competent or willing to handle.
The Catholic laity must assume far greater responsibility for the conduct of their bishops and priests, and the hierarchy must give them the tools to do so. Below, we outline a series of lay-led initiatives, ranging from least to most radical, for a project of reform. Most importantly, we recommend that the laity have a greater role in the appointment and removal of diocesan bishops.
The unfolding story of Cardinal McCarrick’s decades of sexual predation is both dismal and familiar. But those disclosures are not the most dismaying part of the current crisis. What makes the McCarrick matter different is the unbelievable lameness of his fellow bishops’ excuses for their repeated failure to challenge him. Loyal Catholics have been driven to the conclusion that their Church’s hierarchy is utterly compromised. It has proven itself unfit to perform the urgent task of dealing with the rot that it has allowed to fester in its own ranks. The bishops— “good” and “bad” alike—have betrayed the faithful.
In addition to sexual abuse, there are two problems here. One problem is the continuing influence of “bad” bishops, willing to use their power to protect abusers, to promote them, and to marginalize those who would denounce them. The other problem is the silence (or at least the shrugging of the shoulders) of “good” bishops, unwilling to condemn the corrupt practices of their peers. This silence is not always intentional complicity, but it is close enough—a distinction with no real difference.
The American Church, it seems, has its own version of the Deep State, committed to obstructing genuine reform and to punishing those who question its authority.
For the Church to respond to this threat, the laity must now do what the bishops ought to have done years—decades—ago.
We are not talking only about the investigation and correction of priests and bishops who are guilty of sexual abuse. The Church has always had such priests, and canon law structures—though under-enforced—have long been in place to correct them. Clerical sexual abuse is the primary problem, but it is not the only one.
It’s always difficult to predict how a nominee would rule in cases once on the Court. The best evidence is the way he has ruled as a lower court judge—and even that evidence is imperfect, since lower court judges have a greater duty than Supreme Court Justices to follow the Court’s precedents. Although he has been on the DC Circuit for a dozen years, Kavanaugh has written only two opinions on the merits in church-state cases, one on establishment and the other on free exercise. (He has written one opinion dismissing an Establishment Clause challenge on standing grounds and joined a few church-state opinions other judges have written, but those opinions are less probative). On the basis of those two opinions, I think Justice Kavanaugh would likely be a centrist conservative in the middle of the Court—a Justice remarkably like the one he would replace.
You can read the whole essay here.
Judge Brett Kavanaugh’s scholarly writing repeatedly raises the now well-known umpire analogy and emphasizes the aspiration to judicial “neutrality.” I focus here on law reviews, and in particular some of his later pieces on statutory and constitutional rights interpretation, leaving the earlier separation of powers pieces to others.
For example, in his review essay, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (reviewing CJ. Robert Katzmann’s book on statutory interpretation), he wrote: “The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges.” Likewise, in Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017), Kavanaugh said this: “I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case.” And he has a third short piece, The Judge As Umpire: Ten Principles, in a recent issue of the Catholic University Law Review.
It’s a metaphor that has been used and criticized before. Perhaps the most prominent relatively recent example is in the confirmation hearings of CJ. John Roberts, who was also fond of the metaphor. But I think Judge Kavanaugh means something fairly specific by it, and that it has more concrete implications for the way in which he believes the prevailing methods of statutory and constitutional interpretation are flawed and should change.
Kavanaugh’s primary objection in this area does not involve the issue of textualism and purposivism. He is quite clear that he is a textualist, and he notes in his review essay that CJ. Katzmann also claims to be a textualist. Instead, his objection concerns the binary of clarity and ambiguity. He raises two problems (previously discussed by Professor Ward Farnsworth): (1) how clear must the text be to be deemed clear? 80% clear? 50% clear? Less? More? (2) how does a judge know what level of clarity a text actually has achieved? Because these threshold issues are indeterminate, the interpreting judge has too few rules for getting to the point where he can determine which of the two binaries–clear or ambiguous–to settle on. Kavanaugh argues that in consequence a judge’s predisposition toward textualism or purposivism does the work here. It orients the judge either toward or against finding ambiguity, and then it’s off and running with the substantive canons of interpretation.
Kavanaugh offers a solution this threshold issue: rather than forcing the judge to choose one of the two binaries from the get-go, he argues that the judge should offer her “best reading of the statute,” guided by some semantic canons and context. There are some problems with this proposal, in my view, primary among which is that I am uncertain that this sort of approach solves the issue of predisposition toward textualism or purposivism. An example: Kavanaugh does not care for the semantic canon, eiusdem generis, which holds that the last general term in a sequence should be interpreted in light of previous, more specific terms (“dogs, pigs, sheep, and other animals” should be read to include pigs and horses but not amoebas and tapirs). Kavanaugh says that “other animals” should instead mean any or all other animals, and to apply eiusdem generis allows a judge to, as Justice Kagan put it, take it upon herself to find the “common denominator.” But I’m not sure I agree on the merits, and at the very least I think this example illustrates some problems with Kavanaugh’s “best reading of the statute” approach, one which he agrees must make use of context.
The point of this post, though, is to connect his substantive comments to his larger umpire analogy. The trouble with the current binary regime of clarity/ambiguity is that it is does not offer judges sufficiently clear, basic rules for interpreting statutes. It does not stimulate judges to aspire to neutrality. It instead stimulates the opposite: a smuggling in, under the pretense of simply “finding” clarity/ambiguity, of the judge’s predispositions toward textualism or purposivism. And judges are also seen to be doing that smuggling by the general public.
Kavanaugh makes a parallel criticism of constitutional interpretation. Here, one of his primary targets is the tiers of scrutiny in the evaluation of individual rights as against government interests. The problem with the 1950s-era invention of the tiers of scrutiny (substantial burdens, compelling interests, rational bases, narrow tailoring, etc.) is that they are, at best, “rather indeterminate,” and at worst, “empty of real, determinate, objective meaning.” They offer no, or very little, transparent guidance to the judicial interpreter. At best, they are “mood-setters.” And the mood that they set is the mood the judge happens to be in about the right at issue. So that judges applying these standards are invited to smuggle in other reasons for ruling as they do. And they are seen to do so by all of the rest of us, since it is in the nature of the tiers to push judges in this direction.
Or consider the issue of exceptions to certain constitutional rights–the right to free speech, for example, or the right to keep and bear arms. Is it any surprise, says Kavanaugh, that the tiers of scrutiny can offer no help in resolving when to find such exceptions? Worse still, is it any surprise that when judges apply the tiers of scrutiny purportedly to find exceptions to constitutional rights, they are doing so in ways that are, and appear to be, non-neutral–non umpire-like? There are other judges who have made similar claims about the tiers (see, most recently, Justice Thomas’s dissent in Whole Woman’s Health v. Hellerstedt). But one can see a critical unity in Kavanaugh’s objections to the prevailing methods of statutory and constitutional interpretation: both suffer from the same problems and need similar correctives.
Unlike in the statutory interpretation context, Kavanaugh does not offer a developed solution to this problem. But perhaps the most interesting part of his argument (to me, at least) is his view that it would be preferable to rely on historical and traditional limits on particular rights to find exceptions than to rely on the tiers of scrutiny to do so. He says: “At the moment, I do not have a solution to this concern. Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike zone for these “exceptions” cases.” And his Second Amendment dissent in Heller v. DC (DC Cir 2011) suggested just such an approach. He also raised “history and tradition,” together with “precedent,” as important for his judicial method in his acceptance last night.
We’ll have to wait and see if and how these threads come together if he is confirmed.
To our readers, Mark and I wish you a happy Fourth of July!

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