Thursday, August 21, 2014
In his 33 page opinion today in Brenner v. Scott, Judge Robert Hinkle of the Northern District of Florida found that Florida's same-sex marriage bans in the constitution as Article I §27 and Florida Statutes § 741.04(1) violated the Fourteenth Amendment.
Judge Hinkle first determined that the "right asserted by the plaintiffs is a fundamental right as that term is used in due-process and equal-protection jurisprudence," noting that almost every court that has addressed the issue since the Supreme Court’s 2013 decision in Windsor has said the answer is yes, and concluded that that "view is correct." Given that there is a fundamental right, he continued:
That leaves for analysis the second step, the application of strict scrutiny. A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest. A variety of justifications for banning same- sex marriages have been proffered by these defendants and in the many other cases that have plowed this ground since Windsor. The proffered justifications have all been uniformly found insufficient. Indeed, the states’ asserted interests would fail even intermediate scrutiny, and many courts have said they would fail rational- basis review as well. On these issues the circuit decisions in Bostic, Bishop, and Kitchen are particularly persuasive. All that has been said there is not repeated here.
Judge Hinkle did take the opportunity, however, to specifically discuss the procreation argument, finding that "Florida has never conditioned marriage on the desire or capacity to procreate."
Like other judges, Judge Hinkle used Justice Scalia's dissenting language from Lawrence v. Texas to note that moral disapproval in the marriage context is the same as moral disapproval in the sodomy context.
Judge Hinkle's opinion then analyzed the requirements for a preliminary injunction, finding them satisfied. But he also held that a stay was warranted; it would have been difficult to rule otherwise in light of the previous stays, including the one just yesterday by the United States Supreme Court.
August 21, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)
Wednesday, August 20, 2014
Judge Christopher R. Cooper (D.D.C.) earlier this week in Rufer v. FEC granted a plaintiff's motion to send its First Amendment challenge to the restriction on contributions to political parties to the en banc D.C. Circuit for consideration. But in the same ruling, Judge Cooper denied a motion to temporarily enjoin the law.
The seemingly mixed ruling means that the court sees the challenge as both including "substantial, non-frivolous constitutional claims that are not clearly foreclosed by Supreme Court precedent" (thus meeting the statutory standard for appointment of an en banc circuit court under FECA) and "in tension with forty years of Supreme Court jurisprudence upholding contribution limits to political parties" (thus failing the likely-to-succeed-on-the-merits standard for a preliminary injunction).
In plain language, the ruling seems to reflect the court's view that while current Supreme Court doctrine supports contribution limits to political parties, that's likely to change.
He's probably right.
But Judge Cooper's decision is not a ruling on the merits. It only sends the constitutional question to the en banc D.C. Circuit ("after developing an appropriate factual record"), thus fast-tracking it to the Supreme Court, and presages the likely end result with this Supreme Court: the federal limit on contributions to political parties will almost surely go down.
The case was brought by the national and state Republicans and Libertarians challenging the federal restriction on base contributions to political parties. The plaintiffs argued that they could segregate contributions for independent expenditures in separate accounts, and therefore avoid quid pro quo corruption or its appearance--the two government interests that the Court has said justify contribution limits to candidates and political parties. Judge Cooper said it better:
This case sits at the confluence of two currents of First Amendment jurisprudence concerning federal campaign finance: the constitutional permissibility of limiting contributions to federal candidates and political parties, and the constitutional impermissibility of limiting contributions to independent entities whose campaign expenditures are not coordinated with candidates or parties. Plaintiffs rest their challenge on the latter current; the FEC resists it on the former.
Judge Cooper ruled that the plaintiffs' free speech challenge to the contribution limits raised significant enough questions to justify sending the issue to the en banc D.C. Circuit, a procedure available under FECA designed to get important issues quickly before a full circuit court and ultimately the Supreme Court. But at the same time, Judge Cooper denied a plaintiff's motion for a preliminary injunction, ruling that well settled (for now) Supreme Court precedent meant that the plaintiffs couldn't show that they were likely to succeed on the merits.
Taken together, the two sides of this ruling mean that the court understands the current state of the law, but can also read the tea leaves--which say that the law's likely to change.
Judge Cooper's decision isn't a ruling on the merits. Still, it fast-tracks the case to the en banc D.C. Circuit and then, inevitably, to the Supreme Court. It also presages the likely result in this Supreme Court: contribution limits to political parties will almost surely go down.
Judge James E. Boasberg (D.D.C.) ruled earlier this week in Sikhs for Justice v. Singh that while Manmohan Singh enjoyed head-of-state immunity from suit in U.S. federal court for acts committed while he was Prime Minister of India, that immunity did not extend to acts he took earlier, when he was Finance Minister. They ruling means that the plaintiff's case against Singh for acts he took while Finance Minister can move forward, but that Singh is immune from suit for acts he took while Prime Minister.
Plaintiffs Sikhs for Justice alleged that Singh tortured and killed Indian Sikhs during his time as Prime Minister and before, when he was Finance Minister. The group filed suit in the D.C. District while Singh was Prime Minister, but Singh then left office (or, rather, got voted out). The government filed a Suggestion of Immunity, arguing that Singh enjoyed head-of-state immunity for acts he committed as Prime Minister. But it didn't state a position on immunity for acts before Singh became Prime Minister, when he was Finance Minister.
Judge Boasberg ruled that Singh wasn't immune for those acts. In a case of apparent first impression, Judge Boasberg said that "[w]hile Singh's alleged acts as Finance Minister are not 'private' per se, they did not occur in the course of his official duties as head of state; accordingly they are not encompassed within the purview of head-of-state immunity."
Judge Boasberg, however, adopted the government's position and granted immunity for acts taken while Singh was Prime Minister. Judge Boasberg also ruled that Singh enjoyed risidual immunity for those acts after he left office.
The upshot is that the plaintiff's case can proceed against Singh for acts he took as Finance Minister, but not for acts he took as Prime Minister, even after he left office.
The University of the District of Columbia Law Review just issued its symposium edition on the right to counsel in civil cases, or Civil Gideon. The full list of articles and links to the full texts are here. John Pollock, staff attorney at the Public Justice Center in Baltimore and coordinator of the National Coalition for the Civil Right to Counsel, wrote the introduction, with a background on the Civil Gideon movement and updates on progress; a direct link to Pollock's article is here.
In Bostic v. Schaefer in late July, a divided panel of the Fourth Circuit held that Virginia's ban on same-sex marriage was unconstitutional and in mid-August, a majority of the panel refused, without analysis, to grant a stay of its opinion.
Today, as widely anticipated, the United States Supreme Court did grant a stay in its Order in McQuigg v. Bostic. Here's the entire text:
The application for stay presented to The Chief Justice and by him referred to the Court is granted, and the issuance of the mandate of the United States Court of Appeals for the Fourth Circuit in case No. 14-1167, is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
The stay shall remain in effect "in the event the petition for certiorari is granted," an event many believe is quite likely.
This summer, the city of Ocala, Florida passed Ordinance 2014-44 , prohibiting the style of saggy pants on city property. Tonight, the city officials will reconsider the ordinance in light of threatened legal action.
Ocala is not the first municipality to try to ban the style. But these bans have constitutional issues. While First Amendment challenges of free expression have not been successful on the grounds that the style does not convey the necessary particularized message, challenges based on substantive due process do have merit.
The ordinances generally state as their purposes "decency" and "morals," but there is a problem prohibiting showing underwear. Here's the language from the Ocala ordinance:
It is unlawful for any person, while on city owned property, to knowingly or intentionally wear pants below the person's natural waistline in a manner that leaves the person's underwear or bare buttocks exposed. A person's underwear is "exposed" if, when measured vertically, more than two inches of it is visible. A person's bare buttocks is "exposed"person's intergluteal cleft is visible.
As a judge from another Florida city - - - Riveria Beach - - - held, such a ban violates basic liberty interests under the due process clause. As for the "intergluteal cleft" being visible, there are real questions whether that can constitutionally be included in "indecent exposure."
It is oft-stated that "saggy pants" are a foolish style. But fashions, of course, change. In a 1937 case, People v. O’Gorman, 274 N.Y. 284, 8 N.E.2d 862 (1937), New York’s highest court struck down a Yonkers ordinance that prohibited any person over the age of 16 from appearing in public “in a bathing costume” or “in other than customary street attire.” The defendants included a woman who wore “white sandals, no stockings, yellow short pants and a colored halter, with a yellow jacket over it and no hat” and a man who “had on white sneakers, white anklets, short socks, yellow trunks, short pants, a blue polo shirt, brown and white belt, no hat.” Maybe they looked “foolish” to their contemporaries, but as the court declared, the “Constitution still leaves some opportunity for people to be foolish if they so desire.”
Moreover, it's important to be attentive to the equal protection problems that the criminalization of saggy pants raises.
There is more discussion and analysis of saggy pants bans and the limits of criminalizing indecent exposue in Dressing Constitutionally (Cambridge University Press, 2013).
Tuesday, August 19, 2014
Can a city prohibit police officers from making monetary contributions to political campaigns, including contributions to their union's political action committee? The Third Circuit, in its opinion in Lodge No. 3, Fraternal Order of Police v. City of Philadelphia concludes that such a rule violates the First Amendment.
The history behind the prohibition is a fascinating one, which the court's opinion by Judge Thomas Hardiman discusses as great length because one "cannot understand" the prohibition without "reference to Philadelphia's efforts to combat patronage" given its unsavory history. As the court explains:
The nefarious relationship between Philadelphia’s Republican machine and its police force culminated in September 1917 with the scandal of the “Bloody Fifth” Ward, where officers beat an opposition candidate, terrorized his supporters, and killed a detective who attempted to intervene. The incident led to the arrest of the mayor and the conviction of six police officers, as well as public outcry for the insulation of the civic bureaucracy from politics. Amidst these calls for reform, in 1919 the Pennsylvania Assembly granted Philadelphia a new Charter, which enacted a series of reforms aimed at reducing corruption within government and the police department.
The present rule, adopted in 1951, prohibits political contributions by police officers as a method of combating corruption and promoting public confidence. The court analyzed the prohibition under United States v. National Treasury Employees Union (NTEU), 513 U.S. 454 (1995), requiring the government "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." The Third Circuit agreed with the district court, although not with much enthusiasm, that the recited harms were real. However, the Third Circuit disagreed with the district judge that the second prong was satisfied, holding that the regulation did not alleviate the harms in a sufficiently direct and material manner.
In part, the direct and material failure was based on the exclusive application to police officers:
The City also fails to persuade us why the contribution ban should apply only to the police, and not to the approximately 20,000 other individuals in its employ. The record shows that the Republican machine historically extracted political assessments from all civic employees: the practice was so pervasive that, in the early 20th century, the machine collected contributions from 94 percent of the city’s workforce. If the Charter ban’s purpose was to end such compulsory wage contributions, it is unclear why the City would enforce the ban only against the police. Moreover, the City has made no attempt to show that the Democratic Party’s recent dominance in Philadelphia politics was achieved through corruption.
As the court notes, the regulation also applied to firefighters, but the Philadelphia firefighters’ union "in a case remarkably similar to this one, successfully challenged the ban as an unconstitutional infringement on its members’ First Amendment rights" in 2003 and the city did not appeal. Moreover, the court notes that the city is "simultaneously condoning political activities by the police that have similar, if not more pernicious, implications" than the contribution bar.
The Third Circuit also relies on recent United States Supreme Court cases on campaign finance such as McCutcheon v. FEC and Citizens United v. FEC, gaining support for its conclusion that the regulation violates the First Amendment.
The opinion notes that the city has other ways to achieve its goals: "for example, the prohibition of automatic paycheck deductions, or greater enforcement of existing anti-solicitation measures." Even as it says it is "loath to disturb" a rule that has been in effect for decades given Philadelphia's history of corruption, the court makes clear that the rule has outlived its usefulness - - - and its constitutionality.
Monday, August 18, 2014
The Second Circuit ruled today in U.S. v. Erie County, New York that a lower court's order sealing compliance reports on the treatment of prisoners in Erie County violated the First Amendment. The ruling means that intervenor New York Civil Liberties Union will have access to the compliance reports.
This First Amendment dispute arose out of an earlier case brought by the United States against Erie County, New York, over the County's treatment of its prisoners. In particular, the government alleged that Erie County failed to protect inmates from harm, failed to provide them adequate mental health care or medical care, and failed to engage in adequate suicide prevention.
The district court approved a settlement in that earlier case that included the appointment of compliance consultants. Pursuant to the settlement, the consultants would file written reports with the court every six months on the County's progress, or not, in remedying the issues that led to the suit and settlement. The court dismissed the suit but retained jurisdiction until the terms of the settlement were fulfilled. The settlement agreement allowed either party to move to reopen the case at any time ("should issues requring [the] Court's intervention arise"), and either party could move for relief, or the court could issue relief itself. The County moved, and the court ordered, that the reports be sealed.
The NYCLU moved to intervene and unseal the compliance reports. The district court granted the motion to intervene, but denied the motion to unseal the reports, ruling that they were akin to settlement negotiation documents and therefore not subject to the First Amendment right of access to judicial documents. The NYCLU appealed.
The Second Circuit reversed and ruled that the reports were covered by the First Amendment right of access. The court held that both experience and logic suggest that the reports ought to be available to the public, and that the County's only reason for maintaining the seal--that they are part of a settlement agreement--didn't have any relevance here, because, after all, the case already settled.
Here's the court:
Erie County wishes to keep the reports which measure its progress, or regress, under seal and, therefore, out of public view. Yet every aspect of this litigation is public. The United States Department of Justice is a public agency, which brought a claim before a public court . . . arguing that a public government, Erie County, failed to meet constitutional requirements in operating two public institutions, the Erie County correctional facilities. And, critically, although a settlement is now in place, the public court retains jurisdiction over the dispute, and indeed may be moved, or move itself, to reinstate civil proceedings. In a case where every aspect and angle is public, Erie County seeks, nonetheless, to keep the compliance reports under the darkness of a seal. But the First Amendment does not countenance Erie County's position. Neither experience nor logic supports sealing the documents, and the District Court erred in concluding otherwise.
CALI has been updating its lessons this summer, including its Constitutional Law lessons.
There is an entirely new one "Marriage and Same-Sex Marriage in Constitutional Law" covering the basic constitutional issues and arguments in marriage with an emphasis on same-sex marriage litigation. It emphasizes understanding the Supreme Court's 2013 decisions in Hollingsworth v. Perry and United States v. Windsor, involving the constitutionality of California's Proposition 8 and the federal Defense of Marriage Act (DOMA), respectively. The last section includes questions concerning the arguments in the issue of state bans on same-sex marriage that will be reaching the Court soon.
Other ConLaw Lessons of interest:
Reversing the district judge's decision rendered more than 18 months ago which we discussed here, the Second Circuit's opinion in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene holds that the NYC regulation targeted at a certain circumcision practice is essentially one that as targeted at a certain religion and thus merits strict scrutiny under the First Amendment's Free Exercise Clause.
The NYC regulation, §181.21, amended the NYC Health Code, by requiring specific consent and a warning for "oral suction" circumcision. Agreeing with the district judge, the Second Circuit rejected the claim that the regulation violated compelled speech doctrine. However, the unanimous panel, in an opinion authored by Judge Debra Ann Livingston, disagreed with the district judge and found that the regulation was not a neutral and generally applicable law.
The opening of the court's opinion is telling:
In Judaism, the “bris milah,” or ritual circumcision of infants, which has been practiced for millennia, celebrates a covenant with God and“derives explicitly from a commandment . . . in the Hebrew Bible.” 11 Encyclopedia of Religion, “Rites of Passage: Jewish Rites,” at 7818 (2d ed. 2005). As part of this ritual circumcision, some Orthodox Jews, particularly Satmar, Bobov, Lubavitch, and other Hasidic groups, perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b’peh (“metzitzah b’peh” or “MBP”).
Relying on Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the court reaches the conclusion that the
Regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens. And at least at this preliminary stage, the Regulation is not generally applicable either, because it is underinclusive in relation to its asserted secular goals: the Regulation pertains to religious conduct associated with a small percentage of HSV infection cases among infants, while leaving secular conduct associated with a larger percentage of such infection unaddressed.
Indeed, the court held that the question of whether the NYC Regulation singles out a specific religious practice is "simpler to address" than was true in Lukumi "in light of the Department’s own admission that metzitzah b’peh 'prompted' § 181.21 and that metzitzah b’peh is 'the only presently known conduct' covered by the Regulation."
The court notes that "the conclusion that the Regulation is subject to strict scrutiny does not mean that § 181.21 is constitutionally deficient, for strict scrutiny is not invariably fatal in the context of free exercise claims."
The Department has asserted interests that are substantial and may prove, on analysis, to be compelling. And the means it has chosen to address these interests (means that fall short of outright prohibition of MBP and that may further the goal of informed parental consent) may be appropriately tailored, albeit intrusive on a longstanding religious ritual. Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.
The court remanded, but denied the request for a stay of the enforcement of the regulation. The district judge's original 93 page order and opinion was largely devoted to the empirical evidence regarding the health effects of the practice; it looks as if she will be hearing the evidence on those very issues, but applying a heightened standard.
Thursday, August 14, 2014
ConLaw Profs Pen Letter Criticizing University of Illinois Rescission of Offer to Academic for Tweets
When University of Illinois at Urbana-Champaign officials decided to rescind the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin, they must have known there would be controversy. Salaita himself has been no stranger to controversy while at Virginia Tech, but UI officials have focused on his recent tweets on the subject of Gaza.
While Salaita's area is not law, it's difficult not to be reminded of a similar situation involving Erwin Chemerinsky seven years ago. The new law school at UC-Irvine offered him a position as Dean but then rescinded it after reading his newest op-ed, this one criticising a plan by then Attorney General Alberto Gonzales regarding death row appeals.
There was much "outcry" over the Chemerinsky "rescission" (and of course Chemerinsky became Dean, a position he retains).
There is a good deal over Salaita. Peter Schmidt has a good discussion of the Salaita controversy for The Chronicle of Higher Education, with a follow up article noting that 300 scholars have vowed to boycott events at the university unless it rescinds its rescission.
Dorf and Katherine Franke have penned a five page Letter to the Chancellor of U of I from "scholars of free speech and constitutional law" discussing the First Amendment and urging the appointment be honored.
Faculty members who would like to be signatories should contact Katherine Franke by email: kfranke (AT) law.columbia.edu.
Wednesday, August 13, 2014
Judge Thomas D. Schroeder (M.D. N. Carolina) rejected the plaintiffs' motions for a preliminary injunction against portions of the North Carolina Voter Information Verification Act. But at the same time, Judge Schroeder rejected the state's motion to dismiss the case. The ruling means that the case will go forward, but the law will stay in place in the meantime. That'll give the plaintiffs a second bite at the apple, later, at trial; but the voting changes in the law will affect the upcoming fall elections.
Recall that North Carolina, a previously partially covered jurisdiction under Section 5 of the Voting Rights Act, moved swiftly to tighten its voting laws, and to impose new restrictions on voting in the state, right after the Supreme Court struck Section 5 in Shelby County. Plaintiffs immediately filed suit, challenging some of these restrictions under Section 2 of the VRA, and the Fourteenth, Fifteenth, and Twenty-Sixth Amendments. The United States filed its own case making similar arguments and asking the court for appointment of federal observers to monitor future elections in North Carolina under Section 3 of the VRA. The court consolidated the cases.
The plaintiffs, taken together, challenged these provisions: Reduction of early voting from 17 to 10 days; elimination of same-day registration during the early voting period; a prohibition on the counting of provisional ballots cast outside of a voter's correct voting precinct on Election Day; expansion of allowable poll observers and voter challenges; elimination of discretion of county boards of election to keep polls open an additional our on Election Day in "extraordinary circumstances"; and elimination of pre-registration of 16- and 17-year olds.
In a lengthy and detailed ruling, Judge Schroeder concluded that the plaintiffs stated a claim (and thus denied the defendant's motion to dismiss), but didn't demonstrate a strong enough likelihood of success (on their challenge to the same-day registration and out-of-precinct provisional voting claims) or irreparable harm (on the other claims) to qualify for a preliminary injunction:
The only election slated before trial is the November 2014 general election. As to [the Act's] reduction of early-voting days from 17 to ten, the parties acknowledge, and history demonstrates, that turnout for the fall election will likely be significantly lower than that in presidential years. The evidence presented, in light of the law's requirements for counties to provide the same number of aggregate voting hours as in the comparable previous election under prior law, fails to demonstrate that it is likely the State will have inadequate polling resources available to accommodate all voters for this election. The court expresses no view as to the effect of the reduction in early voting on other elections. As to the voter ID provisions, Plaintiffs only challenged the "soft rollout," which the court does not find will likely cause irreparable harm, and not the photo ID requirement, as to which the court also expresses no view.
Judge Schroeder also rejected the governments request for appointed observers.
Still, Judge Schroeder recognized the strength of the plaintiffs' claims in light of North Carolina's history, at one point writing, "Simply put, in light of the historical struggle for African-Americans' voting rights, North Carolinians have reason to be wary of changes to voting laws."
In his essay Justice Clarence Thomas's Korematsu Problem, forthcoming in Harvard Journal of Racial & Ethnic Justice and available on ssrn, ConLawProf Mark Kende suggests that Justice Thomas actually endorses one of the most reviled Supreme Court opinions, Korematsu v. United States (1944), in which the Court upheld the internment of citizens of Japanese ancestry even as it noted that race-based classifications deserved strict scrutiny.
Kende focuses on Thomas's dissents in Hamdi v. Rumsfeld (2004) and Johnson v. California (2005) to argue that Thomas's views are consistent with a Korematsu-approving jurisprudence in which government power to enact security concerns trumps color-blindness principles.
Worth a read as we consider executive power and questions of nationality and race in the news.
Without analysis, the Fourth Circuit today in Bostic v. Schaeffer entered its Order denying the stay of its opinion that Virginia's ban on same-sex marriage violates the Fourteenth Amendment.
Here's the text of the Order:
Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion.
Entered at the direction of Judge Floyd with the concurrence of Judge Gregory. Judge Niemeyer voted to grant the motion.
The 2-1 division of the panel is the same as the division in the opinion on the merits, which we analyzed here.
The saga will undoubtedly continue.
Tuesday, August 12, 2014
Kelly A. Behre's forthcoming article, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 Wm. & Mary J. Women & L. (forthcoming 2014), available at SSRN, is the topic of my piece for JOTWELL: Things We Like Lots in the Equality section. I think that
Behre’s article is worth reading for its “deep dig” into the reality, rhetoric, and social science of “fathers’ rights.” Gender equality in family law remains worthy of our attention. But Behre’s article is also worth reading for its applicability to issues involving “reverse discrimination,” “color-blindness,” or formal equality, in which similar empirical underpinnings promote continued subordination. Digging beneath the equality rhetoric does not only unearth profound differences in the meanings of equality, it may also surface a dirty study.
If nothing else, Behre's careful tracing of incorrect citations and descriptions will make one want to double-check those sources in one's latest writing.
Third Circuit: Attorney Advertising Rule Regarding Excerpts from Judicial Opinions Violates First Amendment
The New Jersey Supreme Court's Guideline 3 governing attorney advertising provides:
An attorney or law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.
The Third Circuit's opinion in Dwyer v. Cappell found this guideline violated the First Amendment's protection of commercial speech in a rather straightforward application of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). The court chose to analyze the regulation as one of mandated disclosure - - - the entire opinion must be provided - - - rather than one of prohibition, although the Guideline
bears characteristics of both categories. Yet we need not decide whether it is a restriction on speech or a disclosure requirement. This is because the Guideline is not reasonably related to preventing consumer deception and is unduly burdensome. Hence it is unconstitutional under even the less-stringent Zauderer standard of scrutiny.
The case arose because New Jersey attorney Andrew Dwyer, specializing in employee representation, ran afoul of Guideline 3 - - - which may have been specifically targeted at him - - - by using on his website language from judicial opinions in attorney fee award matters that duly assessed his competency. At bottom is the general concept of professional responsibility prohibiting judicial endorsement of attorneys, but in the context of fee award decisions, such assessment is explicitly required. One judge objected to the use of his comments in an opinion and Guideline 3 eventually resulted.
The Third Circuit implicitly rejected the notion that such excerpts were inherently misleading and noted that even if the excerpts were "potentially misleading to some persons," there is no explanation of how "Dwyer’s providing a complete judicial opinion somehow dispels this assumed threat of deception." Moreover, the Third Circuit found under Zauderer that the disclosure requirement was burdensome: accurately quoted material is not acceptable absent the full-length judicial opinion and even "a hyperlink to unquoted portions of the opinion fails the Guideline."
The Third Circuit's conclusion is well-founded in established First Amendment doctrine that robustly protects advertising, even by attorneys.
Monday, August 11, 2014
Inspired by the successful - - - and fun! - - - Feminist Judgments in the UK, the American version of Feminist Judgments is seeking contributors. [update: And be sure to check out the terrific Canadian version here, which was the inspiration for the UK version].
Here's the call:
The U.S. Feminist Judgments Project seeks contributors of revised opinions and commentary for an edited collection entitled Feminist Judgments: Rewritten Opinions of the United States Supreme Court. This edited volume is a collaborative project among feminist law professors and others to rewrite, from a feminist perspective, key Supreme Court decisions relevant to gender issues. Editors Kathy Stanchi, Linda Berger and Bridget Crawford seek prospective authors for 20 to 25 rewritten Supreme Court opinions covering a range of topics including reproductive rights, equal protection, the state’s use of criminal power, privacy, the family, women’s political participation, Title IX, employment discrimination and substantive due process.
The editors also seek authors for commentaries of 1,500 to 2,500 words to put into context each of the rewritten cases.
The U.S. Feminist Judgments project was inspired by the successful collection and publication in Britain of FeministJudgments: From Theory to Practice, edited by Rosemary Hunter, Clare McGlynn, and Erika Rackley. This volume, which included feminist versions of twenty-three key British decisions from the Court of Appeal and House of Lords, was published in 2010 and has been very well received.
Like the sister project in Britain, the U.S. Feminist Judgments Project endeavors to pioneer “a new form of critical socio-legal scholarship” that illustrates how cases could have been decided differently had afeminist method been employed. We believe that U.S. Supreme Court law is ripe for this kind of scholarly treatment.
Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten opinions should fill out an application here:
Applicants may indicate their preferences among the list of cases. Applicants also may suggest other cases for rewriting. The tentative cases were chosen with the input and advice of an Advisory Panel of distinguished U.S. scholars including Kathryn Abrams, Katharine Bartlett, Devon Carbado, Mary Anne Case, Erwin Chemerinsky, April Cherry, Kimberlé Crenshaw, Martha Fineman, Margaret Johnson, Sonia Katyal, Nancy Leong, Catharine MacKinnon, Rachel Moran, Melissa Murray, Angela Onwuachi-Willig, Nancy Polikoff, Dorothy Roberts, Dan Rodriguez, Susan Ross, Vicki Schultz, Dean Spade, Robin West, and Verna Williams.
Over at SLATE, Dahlia Lithwick argues that Justice Breyer is an underappreciated feminist:
Breyer is without a doubt the most ardent believer in government, systems, democracy, and in the American public. . . .
But Breyer is also a feminist . . . [and] Breyer, like David Souter and John Paul Stevens and William J. Brennan and many men before him, has been a staunch defender of women’s rights and freedoms for a long time, often without getting too much credit, especially from the ladies.
Worth a read.
Here's the call for what looks like an important conference:
Call for Papers
The staff of the Lincoln Memorial University Law Review invites submissions related to its Spring 2015 Symposium entitled “The Snowden Effect: The Impact of Spilling National Secrets.” The Symposium will be held on Friday, January 30, 2015 at the LMU-Duncan School of Law in downtown Knoxville, Tennessee.
The LMU Law Review’s goal for the Symposium is to facilitate discussion among scholars and practitioners regarding the implications of the national security disclosures by former government contractor Edward Snowden. Topics will include, but not necessarily be limited to: the protection of government sources and methods; Fourth Amendment and privacy issues; the effect of the Snowden disclosures and other such security leaks on U.S. foreign policy, particularly or relationships with our allies; surveillance state concerns; and the classification of government material.
The LMU Law Review will publish a dedicated symposium issue related to the Symposium’s theme. The Law Review welcomes submissions for this specially-themed issue, which will be comprised of several articles, notes, and essays bringing together leading experts on the theory, application, and scholarly analysis of these contemporary national security issues.
To be considered for publication in the symposium issue, please submit by October 15, 2014: (1) an abstract or a draft article; and (2) a curriculum vitae (CV). Participation in the Symposium is not a requirement for publication in the symposium issue. All materials should be submitted through the LMU Law Review’s website.
For more information contact the Editor in Chief of the law review at jacob.baggett (AT)lmunet.edu.
Thursday, August 7, 2014
Call for Presentations and Papers
Association of American Law Schools
AALS Workshop on Next Generation Issues on
Sex, Gender and the Law
June 24-26, 2015
Doubletree by Hilton at the Entrance to Universal Studios
Here's the CFP:
After more than forty years of formal sex equality under the law, this 2015 workshop will ask legal academics to look ahead to the future and identify, name, and analyze the next generation of legal issues, challenges, and questions that advocates for substantive gender equality must be prepared to consider. To this end, we seek paper and presentation proposals that not only pinpoint and examine future law-related concerns about gender equality but that also provide innovative new approaches to achieving equality for women and those who challenge gender norms in our society, with a particular attention to employment, violence against women, reproductive rights, women's poverty, and women in legal education.
Our hope is to build on the insights of the participants in the 2011 AALS Workshop on Women Rethinking Equality by exploring new and forward-looking ideas for scholarship, law reform, and advocacy that can bring about women's equality. An additional expectation is that each session will address the ways in which characteristics other than gender, including race, sexual orientation, immigration status, socioeconomic class, and disability, impact women's lives. We also anticipate that each session will analyze the institutional strengths and weaknesses of courts, legislatures, and administrative bodies for bringing about change and offer suggestions for legal reforms that can better meet women's needs. Our final goal is to provide a rich and supportive atmosphere to foster mentoring and networking among teachers and scholars who are interested in women's equality and the law.
The format of the workshop will involve plenary sessions, concurrent sessions drawn from this Call for Presentations and Papers, and a closing panel. The closing panel, also drawn from this Call, will consist of a brainstorming session to consider projects and proposals for proactive measures to bring about gender equality.
The concurrent sessions will feature presentations related to gender equality issues, with preference given to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women's poverty, and women in legal education. We will organize the presentations into panels based on the subject matter of the proposals. Each presentation will last for 15 minutes, followed by questions from the moderator and audience.
Interested faculty should submit a brief written description (no more than 1000 words) of the proposed presentation, along with his or her resume. Please e-mail these materials to firstname.lastname@example.org by September 15, 2014. We will notify selected speakers by November 1, 2014.
The final plenary session of the conference will consist of 10-12 five-minute presentations of ideas for future projects that will advance gender equality in the law. Each selected participant will be limited to five minutes to present his or her idea or project. The presentations will be followed by audience feedback and comments. Although we will grant preference to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women's poverty, and women in legal education for the concurrent sessions, we welcome proposals for this brainstorming session on any topic related to gender equality.
Interested faculty should submit a written description of the proposed presentation (no more than 1000 words), along with his or her resume. Please e-mail these materials to email@example.com by September 15, 2014. We will notify selected speakers by November 1, 2014.