Saturday, August 22, 2009
As many of us prepare for the start of a new semester, we are thinking about pedagogy in our courses and our institutions. One article on the "must read" list for any professor taking the pedagogical project seriously is Morrison Torrey's contribution to a recent Symposium in Harvard Civil Rights-Civil Liberties Law Review entitled Radical Proposals to Reform Legal Pedagogy. Torrey's "radical proposal" is the title of her article: Actually Begin To Satisfy ABA Standards 211(A) and 212(A): Eliminate Race And Sex Bias in Legal Education.
To this end, Professor Torrey (pictured above), has some concrete suggestions, including the physical space of the classroom itself:
Make classrooms welcoming. Every large, first-year classroom that I have ever been in has portraits of old, white men hanging on the walls. What exactly is the message being conveyed beyond the fact that “success” is for old, white men? What did the men in the portraits actually accomplish? Did they use the law to make the world a better place?
She also suggests that law schools
Require a first-year course that is centered on issues of subordination and privilege. All students, not just a self-selected few, must be exposed to critical exploration of equality and the role the law plays in challenging or perpetuating discrimination.
For those of us who teach Constitutional Law in the first year, certainly the ConLaw course might fulfill her prescription. Moreover, she writes that "all teachers should be encouraged to address race and gender issues in all of their classes," a suggestion that seems easy (and perhaps inevitable?) in Con Law.
Additionally, Professor Torrey has two suggestions worth considering as ConLaw Profs think about our teaching: eliminating the so-called "Socratic Method" for class "discussion" AND providing interim feedback.
Torrey's brief article, available at 43 Harv. C.R.-C.L. L. Rev. 615 (2008), could spur some reconsideration by experienced ConLaw Profs and provide some innovative ideas for new professors. Certainly, not everything Torrey recommends is within the power of individual professors, including eliminating grades or the sequencing of courses. However, the article - - - as well as the other articles in this Symposium issue - - - make worthwhile reading as we prepare to enter our classrooms again.
Friday, August 21, 2009
For example, there is a new lesson that might be appropriate to kick-off the semester on everyone's favorite case, Marbury v. Madison (full disclosure: I am the author), as well as many other topics to engage students in interactive learning throughout the course.
The CALI website has moved and is now at: http://www.cali.org. There is a Constitutional Law section, but depending upon a particular syllabus, topics in Federal Courts might also be relevant.
Thursday, August 20, 2009
In Skelos v. Paterson, available here, the Appellate Division, Second Department, succinctly stated the issue as "whether the Governor has the authority, acting entirely on his own, to
select and appoint an otherwise qualified individual to fill a vacancy
in the office of the Lieutenant-Governor." The court concluded that "the Governor simply does not have the authority to appoint a
lieutenant-governor, that his purported appointment of Mr. Ravitch
cannot be reconciled with an unambiguous and contrary provision in the
State Constitution, and that no considerations of the State's financial
difficulties or of political strife in the Senate allow us to find
authority for Mr. Ravitch's appointment where none exists." (Opinion at 9). This result is not surprising given the reports from the oral arguments, as in the New York Times yesterday here.
The court's state constitutional analysis was relatively brief:
Section 3 of article XIII of the State Constitution provides in pertinent part that "[t]he legislature shall provide for filling vacancies in office." Pursuant to that authority, the Legislature enacted Public Officers Law §§ 41, 42, and 43. Section 41 authorizes the Legislature to appoint a person "to fill" a vacancy in the office of Attorney General or Comptroller. Section 42 provides for the filling of vacancies in certain other offices, with a specific exception for the "offices of governor or lieutenant-governor" (Public Officers Law § 42). The Governor here relies entirely on Public Officers Law § 43 which, as a catch-all provision, reads in pertinent part: "If a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election." The plain language of this statute indicates that the vacancy in the elective office in question is to be "filled," not by a gubernatorial appointment, but "by an election," and that the Governor's appointee merely "execute[s] the duties [of the vacant office] . . . until the vacancy [is] . . . filled." Thus, Public Officers Law § 43 does not authorize the Governor to fill a vacancy, but only to appoint a person to execute the duties of the vacant office until the vacancy is filled by election. Public Officers Law § 43, therefore, provides no authority for the Governor's purported appointment of Mr. Ravitch to fill the office of lieutenant-governor. Moreover, the statute cannot be constitutionally applied even to support an appointment of Mr. Ravitch to execute the duties of the office of lieutenant-governor.
Article IV, section 6, of the Constitution provides that, where a vacancy occurs in the office of lieutenant-governor, "the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy." Thus, under the Constitution, until the vacancy in the office of the lieutenant-governor is filled, the temporary president of the Senate is charged with the responsibility of "perform[ing] all the duties of lieutenant-governor" (NY Const, art IV, § 6). "Executing" the duties of the lieutenant-governor, as provided in the statute, cannot mean something different from "performing" the duties of the lieutenant-governor, as provided in the Constitution. It could not have been within the contemplation of the drafters of the Constitution and the statute that, upon a vacancy in the office of the lieutenant-governor, there would be two caretakers—one, the temporary president of the Senate, who would "perform" the duties of the office, the other, an appointee of the Governor, who would "execute" the duties of the office.
In our view, therefore, Public Officers Law § 43 cannot be constitutionally applied with respect to a vacancy in the office of lieutenant-governor because it does not authorize the Governor to fill the vacancy and it would permit an appointee of the Governor to do what the Constitution mandates be done by the temporary president of the Senate.
The court gave Governor Paterson (pictured below) leave to appeal, and certified the question to the New York Court of Appeals (NY's highest court).
Thus, New York's state constitutional turmoil and political uncertainty enters a new phase.
Wednesday, August 19, 2009
The U.S. Institute of Peace and the Comparative Constitutions Project recently launched their new Comparative Constitutions blog, available at www.comparativeconstitutions.org. According to their announcement,
The blog will feature regular content covering new developments on comparative constitutional issues around the world. There will be regular coverage of and commentary on new articles, publications, and events on comparative constitutional themes, and contributors will provide insight into major developments around the world--from Afghanistan to Zimbabwe.
The Comparative Constitutions blog is part of a larger web-site project, ConstitutionMaking.org, which collects an impressive array of materials on comparative constitutionalism and constitutional design.
The blog is already quite active. Take a look.
Tuesday, August 18, 2009
House Judiciary Committee Chairman John Conyers intends to call on former Bush administration officials Karl Rove and Harriet Miers to testify publicly before the Committee this fall regarding the politicized firing of U.S. attorneys, reports Jason Leopold of The Public Record.
Conyers just last week released transcripts of Rove's and Mier's private interviews with the Committee, conducted in June and July, and related documents. The transcripts and documents, including scores of e-mails, provide an unprecedented look at the processes that led to the firings.
Conyers's call for public testimony, and Rove's and Mier's expected refusal, would reopen the dispute about Rove's and Mier's claimed immunity and the Committee's contempt case against them. (Recall that the Committee filed for contempt after Rove and Miers refused to comply with subpoenas. The parties agreed to stay the litigation "until at least the completion of the [private] interviews.") The agreement between the Committee and Rove and Miers starts on page 4 of Rove Exhibit 1.