Saturday, November 8, 2008

Foreshadowing an Executive Order?

The Obama-Biden Transition Project does not discriminate on the basis of race, color, religion, sex, age, national origin, veteran status, sexual orientation, gender identity, disability, or any other basis of discrimination prohibited by law.

From the Obama-Biden Transition "apply for a job" page here (at the bottom).  Perhaps an Obama E.O. might include "gender identity" as a ground of discrimination?


November 8, 2008 in Affirmative Action, Executive Authority, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Saturday Evening Review: Lochner Update

Ngugi I'm always on the look-out for fresh approaches to Lochner and its many "ghosts" as a way to engage students in what often appears as a relatively brief case in the Casebooks, albeit surrounded by lots of editorial notes extolling Lochner's importance.

Forgetting Lochner In The Journey From Plan To Market: The Framing Effect Of The Market Rhetoric In Market-Oriented Reforms, by Joel M. Ngugi of the University of Washington, appearing at 56 Buffalo L. Rev. 1 (2008) (available on Westlaw and Lexis), is an application of Lochner to development.  Ngugi may not be a ConLawProf (he teaches in the areas of Business Law and International Law), but I think he has some important perspectives to add to any ConLawProf's repertoire.

He argues:

Market as such a construct is deployed in Law and Development discourse as a rhetorical device, metaphor, or strategy that is used to institute or superintend the institution of a Lochnerian approach to law and policy making. The concept of the Market in Law and Development is used as a strategy to “forget” the lessons of Lochner. The Article, therefore, demonstrates how (and why) the framing of the economic development discourse as a movement from “Plan” to “Market”  has had a powerful impact in shaping and influencing available policy prescriptions, some of which simply “naturalize” problematic and contested aspects of reforms taking place in developing countries.

Id. at 6.   Ngugi relies on and extends Julie Cohen's work regarding the rejuvenation of Lochnerian models in cyberspace into the arena of development.  While Ngugi's major thrust is so-called developing nations, in the last few months we've seen a type of "development discourse" being applied in the United States.  Yet, there is still a disparity between nations.  As Ngugi explains:

The recent attack by Paul Krugman on U.S. orthodox economists presents a good example. In his attack, Krugman accuses Washington policy makers and New York bankers of double-sidedness in prescribing economic solutions to the economic slowdown in the United States as compared to the developing world: "When it comes to the U.S. economy, everyone--including people who imagine that they have rejected Keynesianism in favor of some doctrine more congenial to the free market faithful--practice views the current slowdown in terms of the intellectual framework John Maynard Keynes created 65 years ago. In particular, everyone thinks that during a slump what we need is more spending."  There is no doubt that the economic recovery plans advocated for the United States are based on the “Market model.” Government intervention is, however, urged to encourage more spending by cutting interest rates, lowering  taxes, increase government spending, and so forth.... [yet]  even now, using the same Market model and conception, orthodox economists who call for more spending to help the United States recover from the slowdown can, at the same time, call for the opposite strategy in Argentina and Japan.

Id. at 81-82.    Ngugi's  article makes excellent reading as an update of Lochner in these current economic times.  He does an excellent job of discussing economics in an accessible yet sophisticated manner, incorporating the views of a variety of economic theorists.  He also provides this tidbit, traceable to Polish graffiti:

We wanted democracy, but we ended up with the bond market.

This could make an interesting reflection portion of a ConLaw exam.


November 8, 2008 in Comparative Constitutionalism, Fourteenth Amendment, History, Interpretation, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Zieve on Preemption

Allison Zieve, a staff attorney at Public Citizen and counsel in some of the recent preemption cases at the Court, posted a review of the Court's preemption cases on the ACSBlog.  Zieve reviews the preemption issues in the recent cases and argues that there is a complementary relationship (not a conflict) between federal regulation and state tort claims.  This is well worth a look. 

I've also posted on the most recent preemption issues here


November 8, 2008 in Preemption | Permalink | Comments (0) | TrackBack (0)

Latest on the Uighurs

The government filed a reply brief in the D.C. Circuit in the case of the Chinese Muslims detained--but determined not to be enemy combatants--at Guantanamo.  (Thanks to SCOTUSblog for the link to the reply.)  I've posted previously on this here, here, and here.

The government's arguments in large measure reply to arguments in an amicus brief on behalf of the Uighurs filed by law professors.  (Thanks to the Center for Constitutional Rights for the link to this brief.)

The law professors distinguish Shaughnessy v. Mezei:

The lesson of Mezei, then, is that aliens who come to our shores on their own, who seek to enter for the first time, and who fall under some specific ground such as the security-related grounds of inadmissibility invoked in Mezei and Knauff, may be denied "admission" to the United States under our immigration laws and may be detained in conjunction wtih that denial.  But the case does not stand for the proposition that aliens who are forced into the custody of the United States against their will, and whose detention has been found unlawful, cannot be granted release from detention in the United States.

Law professors also argue that the government's separation-of-powers argument--that the political branches, not the courts, have constitutional authority over immigration, an "area where foreign policy and national security intersect"--was decided (against the government) in Clark v. Martinez, a case involving aliens who had never been granted admission to the U.S.

The government's reply brief addresses the Mezei argument on pages 6 to 13 (brief page numbers); it addresses Clark on pages 20 to 21 (brief page numbers); it addresses separation-of-powers more generally in previous filings (linked in my previous posts, above).  The government maintains that it can detain the Uighurs indefinitely, even if they're not enemy combatants, based on the political branches' plenary authority over immigration under the Constitution.   

The government's reply is the last scheduled brief in the case.  Oral argument is scheduled for November 24. 


November 8, 2008 in Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Friday, November 7, 2008

The Teaching Assistant

Hello Fellow Law Profs!  Even in a week like this one, we still have to teach.  So, here are some of the other legal stories you might have missed.

Executive Branch - Despite this week's election, George W. Bush remains President of the United States for the time being.  On the domestic front, as my co-bloggers and I have reported, there is always a chance that a "lame duck" administration will try to pass as many regulations in its final days as possible.  True to that adage, the Bush administration been passing "midnight regulations" at a breakneck pace.  The American Consititution Society has a detailed article listing some of the most relevant regulations passed at this time.   

In the foreign policy arena, ScotusBlog reports that Judge Thomas Hogan of the United States District Court for the District of Columbia has entered a case management order that will apply to approximately 113 cases filed by Guantanamo Bay detainees.  Click on the link for full analysis and a link to the order.  This should be an interesting supplement to your discussion of Hamdi, Hamdan, and Boumediene.


For some reason, preemption seems to be the hot topic of this term.  Rick Hills of PrawfsBlawg reports that a judge in the Southern District of New York ruled that New York City fuel regulations for taxicabs were preempted by federal standards.  The issue?  New York City regulations would require all cabs licensed by the city to use vehicles with a fuel efficiency standard greater than thirty miles to the gallon.  In a well reasoned opinion, the court rejected each of the city's arguments and found that there was preemption.  The full opinion is here.  

ACS blog also discusses preemption.  A post by Allison Zieve, counsel in last term's Riegel v. Medtronic, provides an astute analysis of this term's preemption cases - Altria v. Good and Wyeth v. Levine.  Her discussion of these cases should be enlightening for you and your students.

Equal Protection/Fundamental Rights

FindLaw has some facts that your students might find interesting as you discuss equal protection:  The FBI reports that while hate crimes were down overall in 2007, the number of hate crimes based on sexual orientation actually increased.  Overall, roughly half of all hate crimes are based on race, followed by religion and sexual orientation.  The FBI statistics can be found here

That's all for this week.  See you next time!



November 7, 2008 | Permalink | Comments (0) | TrackBack (0)

Rahn on the Bailout

Richard W. Rahn, senior fellow at CATO, published an op-ed in the Washington Times this week arguing that the federal bank bailout is unconstitutional.  The arguments aren't new--and we've covered the issue here--but Rahn goes further: He ties the bailout to other "excesses" in our constitutional history, then to rights and to "living constitutionalism" in an argument for some unnamed version of originalism.  Rahn:

There have always been political pressures on the courts to read nonexistent things into the Constitution.  After President Franklin Roosevelt attempted to pack the Court to obtain approval for his "New Deal" excesses, the Court did not allow much of the new regulation and reinterpreted the commerce clause far beyond the original text.  This abuse of the commerce clause over the last 75 years is the source of many of today's economic problems.

In recent years, as the court's makeup has changed, there has been a slow drift back toward interpreting the Constitution on the basis of the original text and/or what appears to be original intent.  Those who are unhappy with this decision, rather than following proper procedures to amend the Constitution, now argue that judges should be appointed who will interpret the Constitution in light of "today's circumstances" and their own preferences and outcomes.  Advocates of the "living constitution" frequently advocate the addition of "active rights," such as the right to a home, free medical care, etc., as contrasted with "passive rights," such as freedom of speech, religion, press, assembly, the right to bear arms, etc.

"Active rights" force one person to provide for, or subsidize, another person, unlike "passive rights" which do not diminish another's liberty.  If you think the "government" should pay for your medical insurance, you are advocating that some other person should pay your bills. . . .

America's founding fathers clearly understood the dangers of "active rights," which is why they kept them out of the Constitution.  The American Republic can correct the occasional abuse of the Constitution, such as the bank bailout legislation, but it may not survive the wholesale ignoring of the original text by allowing judges to suddenly create "active rights." . . .

Earlier in the piece Rahn argues that the bailout will become a political problem (for supporters) and that the courts will rule the bailout unconstitutional.  But, he claims, the "Republic will carry on," because the political branches will then know that this kind of action is "impermissible."  (Ask your students how they'd plead a case in federal court challenging the constitutionality of the bailout.  What barriers do they face?  Can they get over them?)

I recommend the piece for your students.  Ask them to sort out Rahn's line of argument to see whether his reductio ad absurdum holds water: The bailout is an example of a constitutional excess; the bailout, as a constitutional excess, is perfectly consistent with other historical excesses and supported by the "living constitutionalism" school of interpretation; "living constitutionalism" gave us "active rights," which lack textual support in the Constitution (and thus, like the bailout, are unconstitutional); and therefore to avoid excesses like the bailout we must adopt some unnamed version of originalism.  Does this follow? 


November 7, 2008 in Congressional Authority, Interpretation, Jurisdiction of Federal Courts, News, Spending Clause | Permalink | Comments (0) | TrackBack (0)

More Post-Election News . . .

My wonderful co-bloggers have already posted about some of the post-election issues.  Here are a few more matters in which you may be interested:

1.   Now that the Senator from Illinois is the President from Illinois, what happens?  Well, the governor of Illinois is apparently preparing to fill the vacancy.  It's worth reminding your students that this procedure is required by both Article I and the Seventeeth Amendment.

2. Despite the distressing news about ballot initiatives denying or revoking the right of same sex couples to marry, advocates of women's rights had a slightly better Tuesday.  The South Dakota measure I wrote about last week was soundly defeated, as was another restrictive initiative in Colorado.  (The Colorado act would have also blocked stem cell research.) Significantly, California voters rejected an initiative that would have imposed greater limitations on minors seeking abortions.  This was the third time the measure had appeared on the ballot, and the third time in which it failed.

3.  Colorado voters rejected a ballot measure to end affirmative action in that state.

4.  Michigan passed an initiative to allow the use of medical marijuana.  The interesting question here is how - if at all - would the Court's ruling in Gonzalez v. Raich affect such laws.  The answer is unclear.  Advocates insist that Raich will not interfere with state laws.   For his part, the man who will take the oath of office on Jan. 20 says that he does not believe that prosecuting medical marijuana is a good use of federal resources.  So, this will be an interesting issue to watch.

5.  The final issue from Tuesday is: what will happen to Senator Ted Stevens?  He has been convicted of felony violations of ethical rules, but should he be expelled from the Senate?  According to Rick Hasen at the Election Law Blog, "It Is Complicated."  His post is here.

We'll continue to keep you posted on any further activity.


November 7, 2008 | Permalink | Comments (0) | TrackBack (0)

The Dawn of a New Administration

Yes, he did - Barack Obama will become the 44th President of the United States.  Well, what now?  And what will this mean for constitutional law?  Here are a few thoughts on how the executive, the legislature, and most important, the federal judiciary will be shaped under an Obama Administration.   (By the way, not only are Barack Obama and Joe Biden that rare team - two lawyers on the ticket - they are also both former Constitutional Law professors.  Shall the press prepare to have their questions answered with questions?)

The Exectutive

Who is likely to fill key legal positions influencing the Constitution in the Obama administration?  According to the ABA Journal, the leading candidates Attorney General are former Deputy Attorney General Eric Holder and Massachusetts governor Deval Patrick.  There is also talk that President Elect Obama could make history by appointing the nation's first female Solicitor General.  According to the ABA Journal, Kathleen Sullivan, former dean at Stanford Law, is being closely considered. reports that Elena Kagan, current dean at Harvard Law, is also being mentioned.  ( also reminds us that former Solicitors General are likely candidates to become Supreme Court justices - like this gentleman did. AmLawDaily has a list of others being considered for the post.

The Legislature

While not a member of the executive branch, the president certainly has the ability - and soome would say, the duty - to craft a legislative agenda.  What are some of the Constitutional Law issues that President Obama will consider?  While he might not have his agenda set in stone, there is no shortage of suggestions.  First, members of Congress believe he should end the war in Iraq post haste.  Second, the ACLU suggests that he close Guantanamo Bay immediately.  Finally, Delegate Eleanor Holmes Norton hopes that at long last, the District of Columbia will receive full voting privileges in the House of Representatives. 

(By the way, in case you wondered, changes in the composition of the House and Senate Judiciary Committees are unlikely.)

The Judiciary

Of course, Constitutional Law professors (and their students) are most interested in what will happen with the Supreme Court.  Of course, the first question is who will be the most likely justice to retire?  At 88 years of age, the most speculation centers on Justice Stevens.  (There is some speculation, though, that Justice Souter may also be willing to depart the bench soon.)  The second question is who is the most likely sucessor to any retiring justice?  The ABA Journal's recent cover story on this topic suggests four names:  Seventh Circuit Judge Diane Wood, Second Circuit Judge Sonia Sotomayor, WilmerHale partner Seth Waxman, and (again), Dean Elena Kagan. 

The final question is this:  what happens if one of the justices retires?  That depends upon which justice retires.  If either Justice Stevens or Justice Souter retires, it is unlikely the Court's current 5-4 deadlock on critical issues will be broken.  However, if Justice Kennedy should retire, that vacancy will have more of an opportunity to shift the direction of the Court.  Justice Kennedy seems to have replaced Justice O'Connor as the perrenial swing vote on the major issues.  Therefore, if he is replaced, many of the cases on the court *might* be decided differently.  (I say might because though I am a legal realist, I maintain the judges first and foremost are guided by the law, rather than politics.)

One more note:  In all the excitement about the Supreme Court, don't forget that President Elect Obama will also be able to influence the lower federal courts.  The Legal Times' Blog reports that there are forty current vacancies on the federal bench, with approximately 20 more expected before the inaugaration.  As we all know, the Supreme Court denies cert in most cases.  Therefore, the federal appellate courts are de facto courts of last resort on many issues.  Thus, changes in their composition warrant our attention as well.


Post-script:  If you want an excellent discussion of academic pieces about the law of presidential transition, see this piece by Paul Horwitz at PrawfsBlawg.         

November 7, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 6, 2008

Federal Circuit on Affirmative Action

The Federal Circuit ruled on Tuesday that the Defense Department's affirmative action program, designed to remedy the effects of prior discrimination in DoD contracting, violates equal protection (via the Fifth Amendment's Due Process clause).  Many thanks to Professor Dennis Crouch (U. Missouri Law) for the tip.

The program, codified at 10 U.S.C. sec. 2323, sets a goal that five percent of federal defense contracting dollars for each fiscal year be awarded to businesses owned and controlled by "socially and economically disadvantaged individuals"--including, by presumption, Black Americans, Asian Americans, Hispanic Americans, and Native Americans--and it requires the DoD to provide certain assistance to these business to help achieve the five percent goal. 

In the case, Rothe v. DoD, plaintiff Rothe, owned by a Caucasian female, bid $5.57 milliion for an Air Force communication services contract.  Another company, ICT, owned by a Korean-American couple and certified as a socially and economically disadvantaged business, bid $5.57 million.  ICT won the contract, however, because the DoD bumped Rothe's bid to $6.1 million under a portion of the program that required the DoD to artificially bump the bid of a non-disadvantaged bidder when competing with a disadvantaged bidder.  (This portion of the program has since been relaxed.)

Rothe lodged an as-applied and a facial challenge.  And after a complicated procedural history, including several remands back to the district court, the Federal Circuit ruled that the program--the whole thing, on its face--violated equal protection under the Fifth Amendment.

The core of the ruling is that the studies upon which Congress relied in finding prior discrimination were flawed.  More particularly: The studies purporting to measure the disparity between actual and expected contracts for firms owned by socially and economically disadvantaged individuals adopted a faulty benchmark, because they failed to control for firm size and relative capacity. 

Is there anything to suggest that size and capacity of socially and economically disadvantaged firms might be different than size and capacity of other firms?  No.  And even the court acknowledged one problem in so assuming: "And we reocognize that a minority-owned firm's capacity and qualifications may themselves be affected by discrimination."  In other words, it might be discrimination that leads to lower size and capacity that, in turn, leads to fewer contracts for disadvantaged firms.  But according to the court this possibility doesn't outweigh the significant methodological problems--especially the benchmark problem--in the studies.

This is an excellent case study in how one circuit rolls up its sleeves and digs deep into the dirt of Congressional findings to strictly scrutinize a race-based program under the familiar tests and lessons of City of Richmond v. Croson, Wygant v. Jackson Board of Education, and Adarand Constructors v. Pena.  Take a look especially at pages 29 to 37 of the opinion for more.

This is also an area to watch.  We'll update you on developments in the case and in the program.


November 6, 2008 in Affirmative Action, Equal Protection, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 5, 2008

What I Saw in Indiana

In the wake of President-Elect Obama's victory--and because of the sheer magnitude of his win--we risk losing sight of the many voting problems yesterday reminiscent of those that we saw in the much closer elections in 2004 and 2000.  Because no state's election on Tuesday--and certainly not Tuesday's overall election results--turned on voting problems, there seems to be little reason to focus on them now.

But these problems persist, and we should not lose sight of them.  We've blogged on them leading up to the election here, here, and here; and I had a front seat for them yesterday in East Chicago, Indiana.

I monitored the polls yesterday in precinct E.C. 21, a blue-collar and lower-income, almost exclusively Black and Hispanic, and overwhelmingly Democratic neighborhood.  (Disclosure: I volunteered for this duty with the Obama campaign.)  The Chicago ABC affiliate covered our precinct here.  (Watch the clip after the story on the gubernatorial race.  Some of the footage late in the clip is stock footage, not from our site.)

Over 80% of registered voters in E.C. 21 voted yesterday--reflecting the record turnout state wide--and, for the most part, we saw few problems.  (No long lines, no persistently failing or broken machines, although these problems plagued other precincts in Indiana.)

But there was one recurring issue: A number of registered voters failed to appear on the voter rolls, and the county election commission had no record of them. 

I discovered the problem after the precinct inspector called the county election commission to help a voter whose name did not appear on our precinct's roll.  The commission told the inspector that the voter wasn't registered to vote. 

But my internet search of the Indiana Secretary of State's public voter records at the library attached to the polling place revealed that she was, in fact, registered, but in a different precinct.  She went to her correct precinct and voted. 

Yes, that's right: My internet (internet!) search of public records produced better information than the county commission.  And if we relied on the commission's information alone, this voter--and as many as a dozen others in our precinct on Tuesday--would have been denied their vote.

A dozen voters doesn't sound like much.  But consider that Indiana has 5,364 precincts.  If each precinct refused a dozen voters, 64,368 voters would have been denied.

According to the latest numbers at the NYT, with 99.9 percent of Indiana precincts reporting, Obama received 1,367,264 votes; McCain received 1,341,101 votes.  This is a difference of 26,163.

We don't know why the county election commission would have had stale information.  But this may provide a clue: The commission hired unskilled and apparently untrained high school students to staff their (inadequate and frequently tied-up) phone lines on Tuesday.  These were undoubtedly public-spirited youth volunteering their time for a good cause, but at least some of them lacked the guidance and training necessary for this critical election day task. 

This is the kind of problem that we might easily let slip in an election (like Tuesday's) with a clear and overwhelming winner, where these numbers wouldn't have turned the national election result. 

But this is also the kind of problem that could have impacted a closer election.

The Court ignored exactly this kind of practical, real-life, on-the-ground problem in a different context in last term's Crawford v. Marion County (upholding Indiana's voter-i.d. law against a facial Equal Protection/Harper challenge).  The Court there glossed over the significant practical problems that certain voters have in complying with the law and with filing a provisional ballot (as a backup).  To be sure, part of the reason is that the plaintiffs failed to build a solid record; but part of the reason is that the Court plain ignored them.  (Dissenting justices didn't.)  So I wonder: How much should these practical, real-life issues influence the constitutional doctrine in a meaningful way?  My experience yesterday suggests: Much more than they do.


November 5, 2008 in Equal Protection, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Post-Election News on State Constitutional Matters

Our pre-election discussion of state constitutional law provisions here is in need of a post-election update. 


The National Conference of Legislatures ballot update site here remains one of the better sites for full information on the state constitutional provisions and includes the post-election results.  A brief report with a survey of highlights from the NY Times is available here

The sexuality initiatives all passed.  In Arizona, Proposition 102 will amend the state constitution to provide that only a union of one man and one woman shall be valid or recognized as a marriage in this state.  In Florida, Amendment 2 will also amend the state constitution in a similar manner with the additional provision that no other legal union will be treated similar to marriage, thus prohibiting civil unions or domestic partnerships. 

In California, Proposition 8 was hard fought and may not be over yet.  California's Proposition 8 would change the California Constitution to eliminate the right of same-sex marriage as found by the California Supreme Court in In Re Marriage Cases, 183 P.3d 384 (Cal. 2008), by defining marriage as limited to one man and one woman.  The California Secretary of State reports the Proposition passed. 

However, the National Center for Lesbian Rights and other organizations have filed suit.  The press release is here and a pdf of the petition is here.  Basically, the theoretical argument is a representation-reinforcement one: the role of the court is to protect minorities who are subject to discrimination by majorities:

“A major purpose of the constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the legislature can initiate such revisions to the constitution,” added Elizabeth Gill, a staff attorney with the ACLU of Northern California.

In addition to theory, there is precedent:

This would not be the first time the court has struck down an improper voter initiative. In 1990, the court stuck down an initiative that would have added a provision to the California Constitution stating that the “Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.” That measure was invalid because it improperly attempted to strip California’s courts of their role as independent interpreters of the state’s constitution.

The case is Raven v. Deukmejian, 52 Cal.3d 336, 276 Cal.Rptr. 326 (1990), in which the California Supreme Court held Proposition 115 § 3 - - - which provided that certain enumerated criminal defendants' rights would be construed consistently with the United States Constitution and that criminal and juvenile defendants would not be afforded greater rights than that afforded by the federal Constitution - - - was impermissible under the initiative process.

Litigation to watch!  And an interesting classroom discussion.


November 5, 2008 in Family, Federalism, History, Recent Cases, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Monday, November 3, 2008

More Abortion Cases in the News

Just last week, I wrote about a challenge to an Oklahoma abortion law.  Abortion remains in the forefront this week in two states.

Richmond Medical Center v. Herring - In 2003, the State of Virginia passed a law called the "Partial Birth Infanticide Act."  Professor Sherry Colb of Findlaw explains that at the time the law was passed, Steinberg v. Carhart had been decided, so "the prospects for such laws . . . were not good."  The law was enjoined, and the Fourth Circuit upheld the injunction.  Virginia filed a petition for certiorari.  However, after the Court's decision in Gonzalez v. Carhart, the Court directed the Fourth Circuit to reconsider the case. 

A panel heard the case in May 2008.  (Its decision can be found here.)  Two of the judges again held that the law was unconstitutional.  The primary reason was that the law placed "an undue burden on a woman's constitutional right to choose an abortion in the second trimester, because the Act effectively prohibits the standard D&E procedure.   The panel majority distinguished the federal statute at issue in Gonzales v. Carhart.  While both acts required anatomical landmarks, the Virginia statute had no scienter requirement.  Moreover, while the federal statute distinguished the act of delivery from the act causing fetal demise, the Virginia act did not.

Professor Colb reports that last week, the Fourth Circuit sat en banc to hear arguments in the case.  Professor Colb's analysis of the case is worth reading for many reasons.  First, she provides an excellent overview of the legal framework governing the abortion issue.  Second, she explains in great detail why later term abortions are necessary in some cases, and explains and rebuts some of the compelling arguments against the practice.  You may want to use the piece to supplement your discussion of either of the Carhart cases.

South Dakota Iniative 11 - Controversial proposals aimed at limiting - or even outlawing - abortion are not new in South Dakota.  However, an initiative on the ballot tomorrow states that a woman will only be able to obtain an abortion when rape or incest is alleged if she: identifies the rapist (or incestous party), submits to a DNA test (ostensibly to prove it is the rapist's child), and the procedure takes place in the first twenty weeks of the pregnancy.

There is so much that is troubling about this law, one hardly knows where to begin.  The law, as proposed, seems to be premised on the assumption that the rapist is the proverbial "stranger in  the bushes."  But what if the rapist is a family member, a friend, an ex-boyfriend, or even a husband?  Of course, in a perfect world, all sexual assaults would be reported, but that is not the case.  The Rape, Abuse, and Incest National Network states that only sixty percent of all sexual assaults are reported.    Moreover, according to RAINN, only six percent of rapists are ever incarcerated.  With statistics like these, it is difficult to understand why placing such an onerous requirement on an innocent party is necessary.  As the South Dakota section of the American College of Obstetricians and Gynegologists states in opposition to the ban:

Uncaring, unrealistic treatment of sexual assault victims.

This ban cruelly puts too many obstacles on women who are victims of rape or incest. It mandates a lengthy, cumbersome process that is unworkable, especially for sexual assault victims who choose to undergo a medical rather than a surgical abortion. In fact, it mandates that the medical community take on a law enforcement role by forcing doctors to report rape or incest to authorities – even against an adult patient’s wishes.

This brings me to my second point.  The proponents of the law seem to believe that this measure will result in the "demise of Roe v. Wade."  They may be overestimating their position.  As written, for the reasons stated above, not to mention the incredible affront to personal dignity that such a law would entail, I believe the Court would have little trouble applying Casey to find that this law is a "substantial obstacle" and an undue burden on a woman seeking an abortion in these circumstances.  The law requires identification of the rapist, as well as a DNA test.  What happens if the rapist flees and is never caught?  The law is unclear in this respect as well as others, as noted by its major opponent.  In light of the uncertainty, it seems that women are unreasonably and unduly prevented from exercising a right unless they acquiese to increasingly intrusive demands.  Moreover, what if a woman wants a medical abortion?  Would the law force her to wait until she has to undergo a surgicial procedure.  If so, unduly forcing a woman to wait without good medical reason would likely seem to violate Casey as well.   

While the proponents may be hoping that the Court will find there is no exception to the Roe rule for rape and incest, that is unlikely.  While Roe only mentions the health of the mother, a woman's psychological health would surely be important.  Moreover, even if the Court were to rule that states could create limitations on abortion even in cases of rape or incest, based on Casey's statements regarding the decision to have an abortion in difficult circumstances, such as domestic violence, the limitations here likely go too far.  The Supreme Court recognized the impact of violence on women's lives in Casey, and it is therefore likely that they will follow that path in any future challenges. In fact, the facts here are arguably stronger than those in Casey in that Casey pre-supposed consenual sex.  In the end, the proponents of the bill could be on precipitous legal footing.

I'll try to report back on this after the election results come in.


November 3, 2008 in Abortion, Due Process (Substantive), Gender, Privacy | Permalink | Comments (0) | TrackBack (0)

Oral Argument in Wyeth v. Levine

The Supreme Court heard oral arguments today in Wyeth v. Levine, the case involving drug manufacturer Wyeth's federal preemption defense against a state tort claim.  SCOTUSwiki has an excellent overview here.  (Thank you.)  I've posted on related issues here and here.

The issue in the case is whether FDA's drug labelling requirement preempts--by conflict preemption--a state tort claim against a drug manufacturer for failure to warn of the dangers of its drug.  (The Federal Food, Drug, and Cosmetic Act has no express preemption provision, making this case different than last term's Riegel v. Medtronic, in which the Court held that federal law expressly preempted state claims against manufacturers of FDA-approved medical devices.)

The Constitutional and Administrative Law Scholar's amicus brief has a good argument (argument II, running from pages 18 to 26 of the brief, not the pdf).  This is well worth a look.

The oral argument transcript provides some nice back-and-forth (as you'd expect); look at the respondent's argument, starting on page 24, for exchanges that home in on the issues particularly well.  Much of the oral argument focused on whether Wyeth had new information about the drug--information that the FDA did not consider in its original action directing Wyeth's label (whether acquired before or after the original FDA action).  In other words:  Did Wyeth sit on information about the drug's harmful effects--even as the FDA failed to consider that information--and take advantage of the FDA's more lenient labelling requirement?  It did, respondent argues, and therefore the FDA labelling requirement does not preempt state tort claims for failure to warn. 

Wyeth's brief is here; Levine's brief is here; the government's amicus brief (supporting Wyeth and preemption) is here.


November 3, 2008 in Preemption, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Ratio Juris Posts Bibliography on Constitutionalism

Patrick O'Donnell at Ratio Juris just posted a bibliography for constitutionalism.  O'Donnell's list includes English-language books going back over a century on constitutional development, law, and theory here in the U.S. and abroad.  This is an excellent resource; many thanks to O'Donnell for compiling it.

The post also includes links to several key blogs on constitutionalism (including our own Con Law Prof Blog).


November 3, 2008 in History, Interpretation, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Sunday, November 2, 2008

The Sunday Reader: Murphy on Standing

Professor Richard Murphy (Wm. Mitchell) recently posted an article on ssrn criticizing standing doctrine and proposing a quite sensible and practical fix.  There's much to appreciate in Murphy's Abandoning Standing: Trading a Rule of Access for a Rule of Deference, and I highly recommend it for profs and students alike.

Murphy's thesis is that the Court should abandon its no-generalized-grievances rule under its constitutional standing doctrine (a "rule of access") and replace it with judicial deference on the merits (a "rule of deference").  He starts by surveying the Court's leading cases on generalized grievances, with particular attention to the "2007 troika" ('06 Term): Lance v. Coffman; Massachusetts v. EPA; and Hein v. Freedom From Religion Foundation, Inc.  He concludes (like several others) that the doctrine is incoherent, and that these recent cases haven't done much to clarify.  Moreover, restrictive generalized standing is now just one vote short of gaining a majority.  Murphy:

After touring the 2007 troika, it is plain to see that the substance of the debate over constitutional standing to pursue generalized grievances has not evolved very far in recent decades.  One four-justice faction of the Court [Roberts, Scalia, Thomas, Alito] favors a restrictive approach to standing that invokes the bar on generalized grievances in the name of separation of powers. . . .

The other four-justice faction [Stevens, Souter, Ginsburg, Breyer] favors a permissive approach to standing that allows the federal courts to resolve generalized grievances so long as they are "concrete" rather than "abstract." . . .

Excluding Justice Kennedy's swing vote from the picture, neither faction is likely to enlist the support of any one from the other side.  With the arrival of Chief Justice Roberts and Justice Alito, however, restrictive standing has become much stronger very quickly as a matter of the Court's internal electorate.  It is one vote away from solid control of the Court for some indefinite period of time.  Massachusetts v. EPA provides a potent example of what such control might mean.  Had restrictive standing attracted just one more vote in that case, the Court would have ruled that Massachusetts lacked constitutional standing because catastrophic global warming hurts everyone.

Murphy next turns to criticizing the generalized standing rule.  He argues that the rule lacks textual and historical support, and that the separation-of-powers justification simply doesn't withstand any serious scrutiny.  On this last point, his brief sketch of the back-and-forth arguments on separation of powers (pp. 32-35) is well worth a look: It's a clear and concise review of the important points on both sides of this debate--an excellent quick reference for students (and profs) on these issues.  Here's the punchline:

[The] separation-of-powers theory failed to justify restrictive standing's limits on access to the courts because: (a) it is anti-majoritarian; (b) it undermines the rule of law; and (c) the generalized/particularized dichotomy upon which it rests is indeterminate and easy to manipulate.

Murphy then turns to developing his own theory, which replaces the generalized grievance rule with judicial deference on the merits.  As Murphy readily writes, this approach has roots in Louis Jaffe's work nearly 50 years ago.  Murphy:

This Article submits that Professor Jaffe's half-century-old solution to the standing conundrum is basically correct:  Federal courts can, consistent with Article III limitations, resolve public actions, but, in doing so, they should uphold the legality of actions taken by political branch officials so long as these actions fall within the space where reasonable jurists could conclude they are legal.  More specifically, in the public-action context, a court should uphold an agency's action so long as it comports with a reasonable construction of any relevant law . . . and is based on reasonable factual and policy determinations.

In short, Murphy argues that Article III courts should hear generalized grievances--or "public actions," as he defines that term--but defer to the political branches on the merits.

The strongest case for Murphy's solution is its application to Massachusetts v. EPA and Hein v. Freedom from Religion Foundation, Inc.  As applied to the former, Murphy argues that this approach would have saved countless time and resources in litigating the injury question--Was it "particularized"?--and allowed the Court to get to the merits.  And a deferential approach "should not have altered the form or outcome of the Court's merits analysis."

As applied to the latter, Murphy argues that his approach would have allowed the Court to get to the merits of the Establishment Clause question--Do the President's Faith-Based and Community Initiatives violate the Establishment Clause?--and thus "elucidated that constitutional provision instead of immunizing the government from its force."

This article provides some wonderful material--and very well packaged--for lessons on standing.  As mentioned, the section on separation of powers may be particularly useful for students struggling to understand the relevance of separation-of-powers principles to standing.  And Murphy's two case examples illustrating how his proposal would impact cases are quite helpful both to see the shortcomings of standing doctrine and to contextualize his proposal for change. 

This is a thoughtful article on an always timely and important problem.  Murphy's analysis and proposal offer much to prof and student alike.  I highly recommend this.


November 2, 2008 in Jurisdiction of Federal Courts, Scholarship, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)