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January|February 2005
Identity Crisis By Andy Latack
Parliament of Dunces By James B. Goodno
The Fall of New Rome By Geoffrey Gagnon
The King of Plots By Aaron Dalton
The Prudent Jurist By William H. Simon
Cases & Controversies

Cases & Controversies


Prayer Bears

DENNIS BLACKHAWK WAS TRAINED BY ELDERS OF THE OGALA LAKOTA TRIBE in South Dakota, who taught him about the spiritual powers of black bears. Lakota Indians believe the bears protect the earth. As a young man, Blackhawk was visited by repeated dreams of black bears and he set about acquiring a pair of his own to use in religious ceremonies. He bought and raised Timber and Tundra, declawed them, and hosted many groups of American Indians eager to worship with the animals in Pennsylvania, where he lived.

Blackhawk's practice went well until the Pennsylvania Game Commission demanded that he pay $200 each year to keep the animals, a fee Blackhawk deemed beyond his means. Under the state's game and wildlife code, circuses, zoos, and individuals preparing wildlife for release are sometimes exempted from the fees, but officials told Blackhawk that he did not qualify for a bye. Things got worse for the bears when vandals set them free and Tundra bit a state official.

When the state tried to confiscate and euthanize the bears, Blackhawk sued the commission and won. The Third Circuit agreed with a trial court last summer that by forcing Blackhawk to pay the fee, the commission had violated his right to freely exercise his religion. According to the federal court, the state couldn't waive the requirement for zoo owners and impose it on animal owners who, like Blackhawk, have religious agendas. To Blackhawk's relief, if no one else's, Timber and Tundra are now safely back home.

Driving on Thin Ice

PAUL MINNIG LIVED ACROSS BEAVER DAM LAKE from his neighborhood tavern. So it stood to reason that after a heavy night of drinking, the lake would be his most direct route home. But one January evening, Minnig got carried away and was spotted chasing snowmobiles and ice fishermen who were also on the Wisconsin ice. When the cops arrived, they found Minnig stranded in the middle of the lake, drunk and with a flat tire.

The state took him to court for drunk driving, but the trial court threw out the charges. Drunk driving laws didn't matter, the judge reasoned, because traffic laws don't apply to lakes. Not so, found a Wisconsin appeals court in September. Drunk driving laws apply to both roads and "premises held out to the public for use of their motor vehicles." The trial judge had found that the lake was no such place, but the appellate panel disagreed, arguing that "premises" ought to be read broadly, and that a public surface like Beaver Dam Lake, which is traversed by many, should count.

Furthermore, the court reasoned that the dangers posed by drunk driving were heightened on a thoroughfare like Beaver Dam. "Frozen lakes do not contain established driving lanes for motorists," the court wrote. "This makes recreational users of lakes particularly vulnerable to accidents caused by impaired drivers." Minnig will just have to find a new shortcut.

(Green)Carded at the Bar

EMILY MAW CAME TO THE UNITED STATES WITH A GOAL: She wanted to set innocent American prisoners free. So she left her home in Bristol, England, enrolled at Tulane Law School in Louisiana, and planned to work at death penalty clinic in New Orleans when she graduated. Maw was one of a handful of foreign volunteers who staffed post-conviction clinics in the state. But while Maw was at school, the Louisiana State Bar changed its rules to prevent visitors from sitting for its bar exam. It offered no explanation for its decision to become the only state in the country with such an exclusion.

The Louisiana Supreme Court upheld the bar's decision in 2003, the year Maw graduated. But she was not deterred. She sat for the bar in Mississippi. Then Maw and five others in similar situations brought their cases to federal courts. Some critics of the policy have speculated that the change was designed precisely to stymie anti-death-penalty advocates like Maw. Now the Fifth Circuit Court of Appeals will decide whether they should be allowed to work as lawyers in Louisiana.

So far, two district judges have disagreed about whether the Louisiana court's decision was discriminatory. One found that the state had a rational basis for excluding temporary residents, since foreign lawyers were more likely to return to their countries of origin, leaving clients in the lurch. The other countered that the policy was arbitrary, since foreign lawyers were no more likely to abandon their clients than lawyers from other states. To Maw, perhaps predictably, the state's argument was not compelling. "Nobody's going to go through the bloody hassle of taking the bar and making their life here and then flit off," she said.

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