Thursday, November 20, 2014
This essay uses techniques advanced by the structuralist literary theorist Gérard Genette to examine the 1831 pamphlet The Confessions of Nat Turner. Like all documents generated in the course of master-class investigations of slave revolts, alleged or actual, The Confessions of Nat Turner raises obvious evidentiary quandaries: credibility, reliability, authenticity. Precisely what kind of historical source is this document. How should it be interrogated? What can it tell us? These questions become particularly important in light of controversies over the use of sources by historians of the Denmark Vesey conspiracy (Charleston 1822). Structuralist analysis suggests that The Confessions is a document containing at least two and likely three distinct texts, and that it is carefully composed to contain Nat Turner’s confession within a secure frame interpretive frame intended to guide the confession’s reception and to anticipate and deflect subversive readings of the Turner Rebellion.
Wednesday, November 19, 2014
This publication examines the broad implications the United States Supreme Court's holding in Burwell vs. Hobby Lobby et al. could have on medical care. The Court in Hobby Lobby held the company could sue for an exemption from the contraceptive mandate of the Affordable Care Act on grounds that it was a substantial burden on the company's exercise of religious freedom. The reasoning in Hobby Lobby could extend beyond insurance and parallels to debates over "conscience-based" refusals to prescribe or dispense contraceptives. There is concern that companies may use this same logic to discriminate in the name of religion against same-sex spouses with regard to benefit packages; employers may object to state-mandated coverage of in vitro fertilization; and physicians may be able to withhold information from a patient under a religion based moral objection. Evidence shows the most effective methods of contraception that will lead to fewer unintended pregnancies, and thus, fewer abortions is access to the most effective methods of contraception. Hobby Lobby may well be driving its female employees to less effective methods of contraception, leading to more unintended pregnancies and pregnancy terminations. By its own logic, Hobby Lobby may now become complicit in those additional abortions.
Tuesday, November 18, 2014
The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”
Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, particularly at the time of the founding or during the modern era. This Article examines both state and federal courts’ interpretations of constitutional rights from the late eighteenth through the early twentieth century. It demonstrates that courts during that time adopted originalist tests. These tests, however, proved so flexible that they allowed legislatures and courts great discretion in modifying civil jury trial. The civil jury was no longer valued as a law-nullifying institution, as it had been at the founding, but instead was considered a hindrance to the administration of justice. Courts were concerned to accommodate changed circumstances, such as growing docket pressure and expense of litigation, and emphasized the impossibility of maintaining every detail of original practice. Once the anchor of original jury practice was abandoned, the jury right seemed tethered to no definite meaning. The one exception was the jurisprudence of the U.S. Supreme Court under the Re-examination Clause of the Seventh Amendment, but even that strict historical test proved able to be circumvented. This history suggests problems with maintaining procedural rights more generally.
Monday, November 17, 2014
Over the past several decades, economic inequality has grown dramatically in the United States while inter-generational economic mobility has declined, which has challenged the very notion of the "American Dream." In fact, the United States is more economically unequal than most other industrialized countries. Further, there are dramatic and growing racial economic gaps in this country. Despite the Occupy Wall Street Movement, and the various spinoffs it has catalyzed, there has not been any sustained, widespread social movement to address economic inequality in the United States over the course of the past several decades. Furthermore, it is unlikely that a mass social movement will emerge and endure over a long period of time in the near future to address economic inequality and growing poverty. Greater economic equality in the United States is achievable only if policymakers make fundamental changes in certain key areas of public policy impacting education, the criminal justice system, taxation, and families' ability to invest financial and non-financial resources in their children, among other areas. Although it is unlikely that the legal system can serve as a primary tool to reduce economic inequality in any substantial way, there are a number of legal strategies and initiatives that lawyers and legal organizations, including law schools, could pursue in an effort to increase economic equality and security for many Americans on the margins, including for many persons of color.
Sunday, November 16, 2014
This paper is the text of the fourth annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, which will be delivered in November and subsequently published in the West Virginia Law Review. The article explores the burgeoning doctrine of “compelled commercial speech,” with special emphasis on recent decisions of the United States Court of Appeals for District of Columbia Circuit, including American Meat Institute (“AMI”) v. Department of Agriculture, an en banc decision upholding the mandated labeling of meat products; National Association of Manufacturers (“NAM”) v. SEC, which struck down features of SEC mandated reports about the origins of conflict minerals; and R.J. Reynolds Tobacco Co. v. FDA, which invalidated FDA mandated graphic cigarette warnings.
Commercial speech doctrine was established in order to protect what Central Hudson called the “informational function” of commercial communications. The object of the doctrine was explicitly to protect the capacity of an audience to receive information rather than to safeguard the autonomy of a commercial speaker. The informational function implies a constitutional asymmetry between restrictions on commercial speech and compelled disclosures of commercial speech. The former impair the distribution of information; the latter enhance it. The tendency of many judges to adjudicate compelled commercial speech cases in light of decisions like West Virginia State Board of Education v. Barnette, which defend the autonomy of speakers within public discourse, is deeply misplaced. The article defends the proposition that First Amendment jurisprudence is plural, not unitary.
The Court embraced the plurality of First Amendment jurisprudence in Zauderer v. Office of Disciplinary Counsel, which holds that factual commercial speech can be compelled if it is “reasonably related” to an appropriate government purpose. First Amendment rights of commercial speakers in such circumstances are deemed to be “minimal.” The article discusses the relationship between the Zauderer test for compelled commercial speech and the Central Hudson test for restrictions on commercial speech, which is the object of much unfocused discussion in AMI.
Compelled commercial speech, like government speech, is an effort to affect the content of public opinion. Both compelled commercial speech and government speech raise questions about how a democratic government may constitutionally influence the shape of a public opinion to which it is in theory responsive. The article seeks to explain certain doctrinal restrictions on compelled commercial speech in light of constitutional concerns that arise when government seeks to affect the content of public opinion. It offers an analysis of why government efforts to inform public opinion through the required disclosure of facts is constitutionally distinct from government efforts to shape public opinion through the required disclosure of opinions. The article explores how compelled disclosures of opinion may constitutionally be distinguished from compelled disclosures of fact, a distinction that lies at the heart of decisions like NAM and R.J. Reynolds. The article also discusses the kinds of state interests that may justify compelled commercial speech, which is the subject of great dispute in AMI.
Friday, November 14, 2014
The Obama Administration's contraceptive mandate implicates issues of complicity that run through many aspects of civil society, whether it is the police officer told to protect an abortion clinic or the tax exemption granted even to misogynist, homophobic, anti-semitic and racist religious groups such as the Westboro Baptist Church. How should the contraceptive mandate be framed, as a public health measure or as a turf dispute over the public space?
Thursday, November 13, 2014
The title of this post comes from this paper by Professor Amit K. Chhabra, the abstract of which states:
The April 2013 Boston Marathon attacks, together with Edward Snowden’s June 2013 release of documents revealing expansive U.S. governmental spying practices targeting U.S. citizens, remind us that terror and governmental surveillance lurk in our midst and at times appear inseparable. Small-scale strikes at the American heartland have occurred since the founding of our republic. In response, the Constitution sets forth a treason doctrine to address domestic threats where the underlying acts are construed as "levy[ing] [w]ar" against the United States or in "adhering to [its] enemies, giving them [a]id and [c]omfort." For better or worse, a fear of abuse allowed the doctrine to atrophy though repeated attempts have aimed to better equip the government in its ability to uncover subversion. In the wake of protests against the war in Vietnam and perceived leftist influence, for example, President Richard Nixon patronized domestic monitoring and surveillance. Congress formally authorized these activities in the Foreign Intelligence Surveillance Act of 1978 ("FISA") legislation. After the September 11, 2001 World Trade Center and Pentagon attacks ("9/11"), it further strengthened the Government’s surveillance tools by enacting the USA PATRIOT Act and issuing a joint resolution – the Authorization of Use of Military Force – ostensibly to legitimize the President’s planned use of military force at home and abroad in the so-called War on Terror.
Still, legislation in this regard has traditionally included a carve-out for the free exercise of civil liberties. In this vein – and in light of the PATRIOT Act and AUMF targeting threats to U.S. interests "both domestically and abroad" – we might expect our surveillance apparatus to be uniform and not dependent upon suspect categories of discrimination as alienage status. By example, Americans after the Boston Marathon attack did not first ask whether the perpetrators were citizens or aliens. Rather, they instinctively asked whether global terror was the real culprit behind the two known Chechen perpetrators, the Tsarnaev brothers. Only after it was determined that international terror organizations likely did not play a role, did attention then center on whether they were citizens, permanent residents, or alien non-residents. The outcome would determine whether the Federal Bureau of Investigation ("FBI") or National Security Agency ("NSA") could have more aggressively monitored – and potentially stopped them – even in the absence of a clear nexus with international terrorism. This is because FISA, as amended by the PATRIOT Act, prescribes an exemption to governmental investigations of citizens and permanent residents acting pursuant to the First Amendment’s protections for free expression; there is no comparable exclusion for aliens exercising such rights. Specifically, the FBI may apply for an investigation directed toward "obtain[ing] foreign intelligence information not concerning a U.S. person or protect[ing] against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution (sic.)." In relying on a limited definition of "U.S. person" including only a citizen or lawful permanent resident, FISA thus draws an alienage-based distinction with regard to the Foreign Intelligence Surveillance Court ("FISC")’s substantive ability to authorize monitoring. On the one hand, U.S. citizens and permanent residents ("U.S. Persons") are protected where their actions fall exclusively under the First Amendment’s guarantees of freedom of speech and press; to lose protection, their conduct must evidence completed, current or imminent criminality. Non-citizen, non-permanent residents ("Aliens") ostensibly do not receive these protections.
The plight of the Alien in the context of governmental surveillance is thus particularly fragile and leads to several lines of inquiry: are Aliens and U.S. Persons equally entitled to constitutional safeguards, in particular to due process and protections against unreasonable searches and seizures? Are First Amendment rights properly limited to U.S. Persons, or are they essential to an Alien’s liberty? Should Aliens expect such rights where American citizens themselves are confronted with imminent acts of terror in their own homeland? Does this answer change if the danger is not perceived as imminent? In the absence of a FISA amendment that eliminates separate monitoring standards for U.S. Persons and Aliens, cannot a Public Monitoring Defender at least minimize the potential for prosecutorial and judicial error by attending FISC proceedings on behalf of suspected targets? The Article concludes that such procedural safeguards are more effective at retaining America’s reputation as a beacon of liberty. Additionally, we should learn from our history of depriving civil liberties to blacks and Japanese-Americans on vague national security grounds; we should thus apply monitoring orders aggressively but equally to Aliens without succumbing to the easy temptation of depriving a vulnerable group of basic civil protections.
Tuesday, November 11, 2014
"Tinkering with Alito’s Code to Morse’s Limits: Why Alito’s Concurrence is Crucial to Preserving Tinker and Students’ Right to Free Speech"
The title of this post comes from this paper arguing that student free speech rights under the First Amendment have been receiving less protection than the standards articulated in Tinker v. Des Moines Independent School District. Here's the abstract:
The 2007 Supreme Court decision in Morse v. Frederick threatens the protection of student free speech that was articulated by the Court almost forty years earlier in Tinker v. Des Moines Independent Community School District, the decision in which the Court famously expressed that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
In Tinker, the Court applied the substantial disruption standard, essentially that school officials cannot restrict student speech because school officials disagree with it, but rather, that school officials can restrict content-based student speech only when it could be reasonably forecast that the speech would cause a substantial disruption to the school.
In Morse, the Court upheld the actions of a school principal in demanding students at a school event to take down a banner that read “BONG HiTS 4 JESUS,” and in suspending a student who refused. The Court ruled in favor of the school principal but not by applying Tinker’s substantial disruption standard. Rather, the Court found that school officials may restrict student speech that can reasonably be understood as promoting illegal drug use because protecting students from the dangers of illegal drug use is an important interest.
Although the opinion of the Court applies directly only to student speech encouraging illegal drug use, some lower courts are using the reasoning in Morse to analogize student speech encouraging illegal drug use to other areas of speech, thereby restricting speech that school officials believe students need to be protected from hearing. Thus, speech is restricted even when it would not be reasonable to think that it would cause a substantial disruption. The result is that speech is restricted essentially because school officials disagree with it, the very thing that the Court in Tinker tried to protect students from.
Justice Alito, joined by Justice Kennedy, wrote a concurring opinion in Morse precisely because of the concern that Morse would be read more broadly than applying only to student speech encouraging illegal drug use. This Note sets forth why courts should read Alito’s concurrence as controlling the limits to Morse, as well as other reasons why Morse should be read narrowly.
Friday, November 7, 2014
The Atlantic's Matt Ford explains that the 6th Cir.'s recent decision upholding same-sex marraige bans in Kentucky, Michigan, Ohio, and Tennessee will give SCOTUS another opportunity to consider the constitutionality of such bans. Because this decision created a split between circuits, the likelihood that we will hear arguments on the issue before the nation's highest court is considerable.
Federal judge says enough problems throughout criminal justice system to warrant reconsideration of death penalty
The title of this post comes from this recent paper by Professor Adam Lamparello, the abstract of which states:
Welcome: We’re Glad Georgia is On Your Mind.
Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year old child in the electric chair.
Georgia’s standard for determining intellectual disability -- beyond a reasonable doubt -- is itself intellectually disabled. In 1986, Georgia became the first state to ban executions of the intellectually disabled. It should also be the next state to eliminate a standard that, as a practical matter, ensures execution of the intellectually disabled.
Ultimately, the Georgia legislature must explain why it chooses to execute defendants like Warren Hill, and the Georgia courts must explain why they allow it to happen. Intellectually disabled defendants do not appreciate or understand why they are being executed. Their crimes may be unspeakable, but the punishment is never proportional. Until Georgia provides an answer that extends beyond platitudes and biblically inspired notions of justice, the fact will remain that executing Warren Hill is as heinous as the crimes he committed. The only acceptable answer should come from the Supreme Court, holding that Georgia’s beyond a reasonable doubt standard violates the Eighth Amendment.