Category Archives: legal history

b e r k e s l a w The Fighting 14th!

The Fighting 14th!

It is a simple fact of American public life that both sides of the political aisle seek to use the Supreme Court of the United States (“SCOTUS”) to push and/or protect political agendas. To suggest otherwise requires one or some combination of naivete, terminal partisanship or simple ignorance. Both sides accuse the other of wanting a Court which is more “activist,” meaning more legislative than deliberative. I think both sides are in fact correct; they just justify it differently.

Generally, when the GOP (and some “Libertarians”) want the SCOTUS to uphold this or strike down that, they use certain code phrases like “states rights,” or “original intent,” and/or “interpreting the Constitution rather making laws.”  In other words, such view holds, we need only discern the “framer’s intent,” and apply it to a controversy being heard more than 230 years later, i.e., when the quill has been replaced by the texting iPhone.

Democrats (and some “Progressives”), on the other hand, tend to view the Constitution as an organic and evolving set of bedrock principles. The “militias” of yore, for example, are not the AK-47 in the garages of today.  The SCOTUS is supposed to interpret the Constitution, all right, but in a way that permits and even requires consideration of changing times and morays. And, unlike an emphasis on “states rights,” the more (big “D”) Democratic view of things tends to be more trusting of the Federal Government to protect citizens from capricious differences between one state or another.

Applied in history, one not be more imaginative than to think of slavery. Those who favored the “peculiar institution” — i.e., the enslavement and ownership of one human being by another — then also favored the theory of “states rights,” including the right of a state to decide that slavery was just peachy keen, thanks for asking.  A federalist (pardon the expression) view of the same question held that in matters central to the notion of national governance, federal law was necessary to restrain the lesser instincts of some of the constituent parts. As you no doubt recall, some 620,000 American soldier boys died in an attempt to resolve that conflict. Politics is a nasty business.

Fast forward, and now we have cases like the currently raging SCOTUS battle over the future of the Affordable Health Care for America Act (“ACA” or “Obamacare”). The GOP will tell you, “leave it up to the States” (yeah, like Massachusetts), which is code for “dump the whole thing, leave 30 million Americans uninsured, and 10′s of millions more at risk of either being under or completely uninsured the moment the insurance companies are unshackled.”  So long as we have ours, right?  The Democrats, on the other hand, reply with “are you kidding, we cannot stand alone among civilized nations in denying universal health care, and there is no way we can have such coverage in one place, and not in another.”  They say potato, you say potatto. They say “framer’s intent,” you say “14th Amendment.” And you win.

Yup, I just gave you the knockout punch, your snappy retort next time confronted by that terrible phrase, “framer’s intent.” And here’s why (and it’s just one reason among many): The 14th Amendment (Amendment XIV) to the United States Constitution — the so-called “Equal Protection Clause — was not even adopted until July 9, 1868, as one of the Reconstruction Amendments. That’s right, the 14th came into being a full 81 years after the Constitution was signed, and I can guarantee you that by that time, every “Framer” was long already pushing up daisies, tobacco plants, or what have you.  In other words, it’s hard for the GOP to argue that they are merely “interpreting the framers’ intent,” when nary a “framer” was around to draft and/or ratify your raison d’être for the Federal Government’s right AND responsibility to craft laws needed for the national good.  And how’s this for context?  Far from being a “founding document,” the 14th was a Constitutional Amendment enacted to give “full force and effect” to the Reconstruction efforts being resisted by the defeated South, tooth and nail.  Go ahead, try to say that in the same sentence as an “original intent.”

So fere’s a look at my beloved 14th:

AMENDMENT XIV

SECTION 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

“The equal protection of the laws.” How much more elegant and simple can you get?  ”No state shall make or enforce any law which shall abridge . . . [or] deprive. . ..” Yet, on health care in particular, every GOP presidential candidate has demanded the opposite. The childish one-upmanship displayed by those 8 debating automatons as to who was going to do greater violence to Obamacare in less time surely has to rank as one of the most embarrassing spectacles in U.S. political history, but it was more than that: It was a preview of the grand farce that awaits this nation if we lose the debate on national health insurance.  American lives are literally at stake. The Equal Protection Clause is at stake.

The point is that we, as a nation, cannot stand divided. We cannot have universal health care offered in one place, and not another. For that matter, we cannot — at least not under the 14th Amendment — grant reproductive rights in one state, and not another, or equal access to marriage, or unmolested access to the ballot box, or leave unprotected any other matter of universal, national significance to the caprice of the individual states.  We did that with slavery, and look how that turned out. We cannot grant unto one that which we deny another, or this country’s future has indeed passed. There are times when the Nation must prevail over those who would act out of naked self-interest, yet cloak such interests in the dark guise of “states rights.”  Fight!  Organize! Vote!  LONG LIVE THE 14TH!

2 Comments

  1. tabata wrote:

    I like your fantastic web site. Just what I was searching for!
    Best regards

    Sunday, April 1, 2012 at 12:42 am | Permalink
  2. David Berke wrote:

    What a wonderful compliment, thank you. Please tell others, and be well. David

    Sunday, April 1, 2012 at 12:51 pm | Permalink

Post a Comment

Your email is never published nor shared. Required fields are marked *
*
*


*



Services – Berkeslaw

Services

Product / Service #1

Whatever your company is most known for should go right here, whether that’s bratwurst or baseball caps or vampire bat removal.

Product / Service #2

What’s another popular item you have for sale or trade? Talk about it here in glowing, memorable terms so site visitors have to have it.

Product / Service #3

Don’t think of this product or service as your third favorite, think of it as the bronze medalist in an Olympic medals sweep of great products/services.

Talk more about your products here.

Tell prospective customers more about your company and the services you offer here.  Replace this image with one more fitting to your business.

Talk more about your products here.

Tell prospective customers more about your company and the services you offer here.  Replace this image with one more fitting to your business.

Next Steps…

This is should be a prospective customer’s number one call to action, e.g., requesting a quote or perusing your product catalog.

Portfolio – Berkeslaw

Portfolio

Product / Service Categories

Project Name

Talk about this portfolio piece–who you did it for and why, plus what the results were (potential customers love to hear about real-world results). Discuss any unique facets of the project–was it accomplished under an impossible deadline?–and show how your business went above and beyond to make the impossible happen.

Product / Service Categories

Project Name

Talk about this portfolio piece–who you did it for and why, plus what the results were (potential customers love to hear about real-world results). Discuss any unique facets of the project–was it accomplished under an impossible deadline?–and show how your business went above and beyond to make the impossible happen.

b e r k e s l a w On How We Rule

On How We Rule

When arguing politics disguised as “Constitutional interpretation,” many on either side of the divide fall into this same trap: Those SCOTUS decisions we like were the product of “strict constructionism,” while those we dislike we decry as “judicial activism.”  The “law” was drafted by humans, enforced by humans, and interpreted by humans.  A decision of the Supreme Court thus thus can be no more the product of pure, unmitigated rational thought than the process by which the law in question was first created.  In other words, if interpreting the Constitution was that simple, a monkey could do it.

Here are the words of one legendary Justice on the matter:

At the constitutional level where we work, 90 percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.

Justice William O. Douglas

Post a Comment

Your email is never published nor shared. Required fields are marked *
*
*


*


b e r k e s l a w Grimace and Bear It

Grimace and Bear It

The Second Amendment to the Constitution of the United States

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

With the horror of the massacre in Sandy Hook Elementary School still searing raw in the collective consciousness, there may actually be developing some consensus to do something about the carnage routinely occurring in the streets, schools and homes of America.  Maybe.  Between the extremes — both self-evidently untenable — there must be available some action (or actions) that we can take to reduce the shocking flow of gun-related homicides.  Indelicately stated, if there was something that we could have done that might have saved the life of even one of those precious children in Newtown, would we not have deemed it sufficient cause to act?

The gun lobbyists and “right to bear arms” absolutists love to argue that the Second Amendment was intended to protect the citizenry’s right to defend themselves against their own government.  Take a deep breath: They are absolutely correct.  Better still, the Second Amendment was also enacted to secure the ancient right of a free person to arm and protect themselves, their families and property.  These are not “negotiating points.”

But here’s the kicker, folks: Even the Supreme Court of the United States (“SCOTUS”), no friend to the “gun control” faction, has recognized that the rights granted by the Second Amendment are not “unlimited.”  Do I need to say that again?  Surely not.  Indeed,  from the pen of no less a personage than Justice Anton Scalia, writing for the majority in District of Columbia v. Heller554 U.S. 570 (2008), comes the following passage (worth repeating in its entirety despite its length) regarding the boundaries of the Second Amendment:

“Like most rights, the right secured by the Second Amendment is not unlimited.  From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [citations omitted]  For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. [citations omitted].  Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms.  Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179.  We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [citations omitted].  It may be objected that if weapons that are most useful in military service —M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause.  But as we have said, the conception of the militia at the time of theSecond Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.  It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large.  Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks.  But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.” Id., at pp. 54-56.
Little mentioned, but there it is: According to the SCOTUS, there is a limitation of great significance besides those relating to “felons and the mentally ill,” and in addition to (the currently eroding) prohibition against the “carrying of firearms in sensitive places such as schools and government buildings. . ..”  The additional limitation?  The Second Amendment does not contemplate the right of the American people to drag around “dangerous and unusual weapons.”  Indeed, Scalia recognized that the right of citizens to rise up today and grab a musket in the fight against “Federal tyranny” would do little good in any confrontation involving the power of the State and its modern military muscle.  And to this inequity, remarkably enough, what of Scalia’s response?  Essentially, too damn bad.
Writes Scalia:
“But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right [to bear arms].”
Stop the presses, folks, the SCOTUS has spoken.  Thus, the “right to bear arms” may not be abridged, even though the exercise of that “right” may no longer be up to the historic task of overthrowing those heathen Feds.  And, unless I am missing something, isn’t that effectively the exact same thing that the “gun control” lobby is arguing?  Justice Scalia seems to have clearly recognized that the Second Amendment cannot be read as permitting an “arm’s race” between individual Americans and the Federal Government.  As Scalia points out, “no amount of small arms could be useful against modern-day bombers and tanks,” not to mention the White House’s access to subs, WMD and nuclear weapons.  So, unlikely as it may seem, the battle has been joined, and framed by a very conservative Supreme Court: We cannot ban all personal weapons but, by golly, we should try to ban a great many of those currently available.
That’s where the conversation begins, then, I think.  We cannot rid ourselves of all guns, so we must find a line and draw it firmly.  We can start by allowing those weapons powerful enough to take down Bambi, and then prohibit anything that would be of no real use against a tank. And no “slippery slope” arguments, please, they were already considered dumb before the end of first year law school.  You know the drill, “if they take away your 40 round drum ‘sweetsweeper,’ next thing you know they’ll be taking away your slingshots.”  If you hear someone make such a “slippery slope” argument, ignore them.  If you find yourself making one, stop, and call me for help.  They are the refuge of the intellectually impaired.  We CAN draw a line.  We MUST draw a line.  And if the life-blood of fewer babies spills onto the linoleum as a consequence, those were lines well worth drawing.  Let get our pencils out, and start, straight away.

Post a Comment

Your email is never published nor shared. Required fields are marked *
*
*


*


Frequently Asked Questions (FAQ) – Berkeslaw

Frequently Asked Questions (FAQ)

This is where you should answer the most common questions prospective customers might have. It’s a good idea to cover things like your return policy, product warranty info, shipping and returns, etc. Check out the examples below.


What’s your return policy?

Return any of our products–no questions asked–within 30 days of purchase. We even pay return shipping.


Do you ship oversees and to P.O. boxes?

Yes, we’ll ship your package anywhere that can accept deliveries.


Do you have customer service?

Of course! Our friendly and knowledgeable customer services reps are available to answer your questions 24/7/365.

Disclaimer – Berkeslaw

Disclaimer

Disclaimer

Thank you for visiting my blog (the “Blog”); however you got here, I am honored that you took the time to stop by and review the materials presented, and the services offered. Please be advised that what you read and see here has been prepared, or is being presented, for general informational purposes only to those who visit the Blog in order to learn more about my law firm, Berkeslaw (the “Firm”), and the services we offer. Nothing contained, printed, stated and/or archived herein, including any and all of the articles, tweets and comments posted, is not, nor can it be construed as constituting, “legal advice” of any kind or nature, and is not to be acted on as such. The materials on my blog may not be current, and its contents are subject to change without notice. The opinions expressed herein are my own, and are just that: Opinions.

Terms of Use


By your use and visitation of this site, you hereby acknowledge and agree that the Blog, and the information contained and/or transmitted herein, and/or your receipt of same, does not create, nor is it intended to create, an “attorney-client relationship.” Under no circumstances should you rely upon your transmission of an e-mail using my Blog to create an attorney-client relationship, or have any such expectation. Visitors to the Blog should not act upon any information contained herein in this without first consulting legal counsel of their own directly. If you have questions about the law, or a particular legal issue or problem, please feel free to make an appointment to speak with me, but it is essential for your own protection that you understand that nothing you read or review in this Blog is being provided in the course, conduct or context of an attorney-client relationship. Different countries, States, counties, cities, districts, and the like, all may have different laws, rules and regulations, and those may and do change from time to time, so notice is hereby given that nothing contained on this Blog is intended to constitute legal advice, or should it be used or understood as a substitute for obtaining legal advice from an attorney licensed in the appropriate jurisdiction.

Links To Other Sites


This Blog may from time to time include links to other Internet sites whose content, views, opinions and other materials are beyond my control. My firm is not responsible for the content of any such sites, and a link to such sites does not necessarily mean or imply my endorsement of the information, material, products or services contained on or accessible therein. You hereby acknowledge and agree that should you decide to link to other Internet sites, your use of such sites, and your use of any information, material, products and services offered by such sites, necessarily occur at your own risk.

Content

Please be advised that all of the content found on this Blog is provided “as is.” No representations of any kind are made that the content will be timely, factually accurate, error-free, and/or free of viruses or other harmful electronic elements. Moreover, you should not expect, nor is any representation herein made, that any alleged errors or defects will be corrected. The video and its content, the blog posts, tweets and other materials that appear on this Blog, and the opinions stated therein, are all my own (unless otherwise specified), and they may, from time to time, be considered controversial, inappropriate or offensive to some of those who visit. As individual tastes and opinions vary and change, please be advised that all content on this Blog is intended only for the purposes of information and/or to stimulate discussion or interest, and under no circumstances is my intent to alarm, dismay or offend anyone. The Firm makes no representations, express or implied, with respect to the timeliness, accuracy or completeness of any of the contents of this Blog, and expressly disclaims any liability or warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or non-infringement. Your sole remedy for any dissatisfaction with any of the content of this Blog is to refrain from using it.

Privacy


The Firm has a deep and abiding respect for your privacy. If you contact us voluntarily regarding our services, we may collect the following categories of personal information: name, company name, title, email address, telephone and facsimile numbers, and mailing address.
 We do not sell, trade or rent personal information submitted by visitors to companies, mailing lists or organizations outside of this Firm.  However, please be advised that in no event are any “comments” that you submit, or information that you provide in response to the Blog, considered confidential attorney-client communications, protected by the attorney-client privilege. They are not thus privileged, and you should be aware of this fact when submitting anything to or on the Blog.

Contact Us – Berkeslaw

Contact Us

Contact Us

For any questions and/or concerns you may have, or to set up an appointment
to meet either by telephone or in person, please contact the Firm as follows:

David Berke (State Bar #123007)
B E R K E S L A W
7162 Beverly Blvd
Los Angeles, CA 90036

Telephone: (323) 879-9115
Cell Phone: (310) 251-0700

email: [email protected]
Twitter: @berkeslaw

Please note that the Firm does not employ a fax machine, believing it to be obsolete technology. Rather than pass along ink costs to you, the consumer, we ask that you “go green” and email documents instead.

If you really are serious about reaching me, then please make certain that you always favor email over voice-mail when leaving messages. I may just be out for a moment, walking Butters, but I will have my Blackberry with me. If I am out for coffee with a client, then I will have an iPad.  In other words, emails are checked obsessively, while voice-mail messages invariable disappear into a cosmic black hole. Even the voice-mail on my cell phone is deactivated, for goodness’ sakes. Finally, for all of you zealous attorneys out there — you know who you are — notice is hereby given that this blog may not be used for the purposes of providing ex parte notice, as the blog is not intended for the purposes of day-to-day litigation, and it is thus not necessarily reviewed regularly.

Please Let Us Know How We Can Help

Blog – Berkeslaw

Recent Posts

About Us – Berkeslaw

About Us

About the Firm

Hello, my name is David Berke, and I have been a Los Angeles lawyer for the past 27 years.  I began my legal education at Osgoode Hall in Toronto (Canada’s finest law school, in my home town), before completing my degree at UCLA in 1985. I first joined a marquee New York law firm, before making my way to a Westside law firm specializing in entertainment litigation. During my 5 years at the firm, I had the good fortune of learning my craft under the tutelage of two great lawyers, one, a brilliant law firm manager, and the other, one of the finest trial attorneys in the country, and someone I count among the best people I know. In 1989, however, I made the decision to open up my own law practice, a scary enough choice, but one made for a very specific reason.  Thus, the only true ambition I really ever had in life was to be the father of a family and, as I watched my colleagues miss innumerable milestones, vacations, and sometimes even the most modest family outings, I knew that big firm practice was incompatible with the type of parenting I wanted to experience and enjoy.

So, with in-house jobs becoming more scarce all the time, my only real option was to open my own practice.  Unlike others similarly situated, however, I opted not to design my practice around high volume fields traditional to solo practitioners such as plaintiff’s personal injury or worker’s compensation. Instead, I choose a rather unconventional approach, whereby I essentially conduct a big firm practice by myself, favoring the maintenance of a few cases (from small to large, depending on the circumstances)  which command – and receive –  a greater degree of my personal attention. As such, I have often taken on very large matters for very prominent clients, but invariably for the purpose of keeping my clients out of the spotlight rather than place them in it. In this fashion, therefore, you might say that I am one of the best known lawyers in Los Angeles that you’ve never heard of, because I would rather focus on my clients’ needs than make a “name” for myself, and/or a spectacle of those I serve.

Please do not imagine, however, that my practice is somehow limited to the representation of well known entertainment figures; far from it.  I have a wide range of legal experience involving contractual and business disputes of all kinds, as well as defamation, copyright, trademark (and other IP), employment matters, plaintiff’s class actions, and still others.  There are also occasions where I am called upon to bring my litigation experience to bear to assist in cases which lie outside my traditional areas of expertise, such as probate, family law, and elder law.

As circumstances require, I will take my cases either to trial or arbitration, historically with great success.  Nonetheless, the economies of the day, combined with my natural inclinations and my ethical compass, move me instinctively towards finding alternative means of resolving disputes, as opposed to churning my cases for legal fees. I want my clients to win, and so they do, but “winning” these days more often than not means arriving at a result that is satisfying, preserves dignity, and permits my clients to proceed with their lives with litigation far in their rear view mirrors as quickly and efficiently as possible.

As stated above, there is a legal maxim which holds, “for every wrong there is a remedy.” I want to be that remedy. Call or email me and let’s see what we can do to help.

About firm – Berkeslaw

About firm

About the Firm

Hello, my name is David Berke, and I have been a Los Angeles lawyer for the past 27 years.  I began my legal education at Osgoode Hall in Toronto (Canada’s finest law school, in my home town), before completing my degree at UCLA in 1985. I first joined a marquee New York law firm, before making my way to a Westside law firm specializing in entertainment litigation. During my 5 years at the firm, I had the good fortune of learning my craft under the tutelage of two great lawyers, one, a brilliant law firm manager, and the other, one of the finest trial attorneys in the country, and someone I count among the best people I know. In 1989, however, I made the decision to open up my own law practice, a scary enough choice, but one made for a very specific reason.  Thus, the only true ambition I really ever had in life was to be the father of a family and, as I watched my colleagues miss innumerable milestones, vacations, and sometimes even the most modest family outings, I knew that big firm practice was incompatible with the type of parenting I wanted to experience and enjoy.

So, with in-house jobs becoming more scarce all the time, my only real option was to open my own practice.  Unlike others similarly situated, however, I opted not to design my practice around high volume fields traditional to solo practitioners such as plaintiff’s personal injury or worker’s compensation. Instead, I choose a rather unconventional approach, whereby I essentially conduct a big firm practice by myself, favoring the maintenance of a few cases (from small to large, depending on the circumstances)  which command – and receive –  a greater degree of my personal attention. As such, I have often taken on very large matters for very prominent clients, but invariably for the purpose of keeping my clients out of the spotlight rather than place them in it. In this fashion, therefore, you might say that I am one of the best known lawyers in Los Angeles that you’ve never heard of, because I would rather focus on my clients’ needs than make a “name” for myself, and/or a spectacle of those I serve.

Please do not imagine, however, that my practice is somehow limited to the representation of well known entertainment figures; far from it.  I have a wide range of legal experience involving contractual and business disputes of all kinds, as well as defamation, copyright, trademark (and other IP), employment matters, plaintiff’s class actions, and still others.  There are also occasions where I am called upon to bring my litigation experience to bear to assist in cases which lie outside my traditional areas of expertise, such as probate, family law, and elder law.

As circumstances require, I will take my cases either to trial or arbitration, historically with great success.  Nonetheless, the economies of the day, combined with my natural inclinations and my ethical compass, move me instinctively towards finding alternative means of resolving disputes, as opposed to churning my cases for legal fees. I want my clients to win, and so they do, but “winning” these days more often than not means arriving at a result that is satisfying, preserves dignity, and permits my clients to proceed with their lives with litigation far in their rear view mirrors as quickly and efficiently as possible.

As stated above, there is a legal maxim which holds, “for every wrong there is a remedy.” I want to be that remedy. Call or email me and let’s see what we can do to help.