Friday, October 30, 2009
TRANSLATING EQUALITY: LANGUAGE, LAW & POETRY
Moderated by Professor Ruthann Robson
Friday, November 6, 2009
at 11 am
City University of New York School of Law
Jenny Rivera is Professor of Law and Director of the Center on Latino and Latina Rights and Equality (CLORE) at CUNY School of Law.
Her work has centered on a wide range of issues facing Latinos and Latinas, including language and gender discrimination and cultural barriers. Former Law Clerk to Supreme Court Justice Sonia Sotomayor, Professor Rivera was a frequent public commentator during last summer’s confirmation process.
Kimiko Hahn is a poet and Distinguished Professor in the English department at Queens College/CUNY. Her poetry collections include The Narrow Road to the Interior (W.W. Norton 2006) and The Artist’s Daughter (W.W. Norton 2002). As one biography phrases it, her work often explores "the intersections of conflicting identities. She frequently draws on, and even reinvents, classic forms and techniques used by women writers in Japan and China, including the zuihitsu, or pillow book, and nu shu, a nearly extinct script Chinese women used to correspond with one another."
Free and open to the public. RSVP required: firstname.lastname@example.org
Wednesday, October 28, 2009
A majority of participating judges on the Ninth Circuit voted yesterday to grant en banc review to Mohamed v. Jeppesen Dataplan, the three-judge panel ruling that rejected the Bush and Obama administrations' state secrets claim. Six judges, including Judge Bybee, did not participate.
The plaintiff in the case filed his complaint against the private company Jeppesen Dataplan for its role in his extraordinary rendition by the CIA. The Bush administration, and then the Obama administration, intervened and moved to dismiss the entire case on the complaint, claiming that the very subject matter of the case was a state secret. A three-judge panel of the Ninth Circuit rejected the claim, and the Obama administration sought review by the full Ninth Circuit. (I interviewed plaintiff's attorney Ben Wizner of the ACLU here. I posted on the administration's changes to the state secrets privilege here.)
The panel decision put the Ninth Circuit at odds with an earlier Fourth Circuit ruling on state secrets in an extraordinary rendition case against the government. In that case, El-Masri v. United States, the Fourth Circuit endorsed a sweeping state secrets privilege, and for the first time rooted the privilege in the Constitution (Article II and separation of powers principles). (Earlier state secrets cases went so far as to dismiss on the pleadings, but the courts have treated state secrets merely as an evidentiary privilege, not a constitutional doctrine.) The Ninth Circuit order raises the possibility that the full Ninth Circuit will also endorse this sweeping claim.
Tuesday, October 27, 2009
I spoke yesterday with Professor Gillian Metzger (Columbia) about her amicus brief in Free Enterprise Fund v. Public Co. Accounting Oversight Board, the case challenging Sarbanes-Oxley's new PCAOB, a body within the SEC, on Appointments Clause and separation of powers grounds. I just posted yesterday on Metzger's article on internal and external separation of powers; we spoke about that, as well. Finally, Metzger offered sound advice for academics contemplating filing amicus briefs.
I edited the interview into three parts; click the shaded blocks below:
You can download this file and forward to the times below for discussions on particular topics:
:34 to 1:30 for a description and background on the case
1:30 to 4:10 for a discussion of the significant jurisdictional barriers in the case
4:23 to 8:00 for a discussion of the constitutional claims in the case
8:30 to 13:30 and 18:00 to 20:43 for a discussion of the significance of the case and the sweeping claims
13:30 to 15:40 for a discussion of Metzger's brief
15:40 to End for a discussion on how the Court might rule in the case
Sunday, October 25, 2009
Professor Gillian Metzger (Columbia) recently posted her thoughtful piece, The Interdependent Relationship Between Internal and External Separation of Powers, on SSRN. The article explores the relationships between internal and external checks on the executive and starts an important conversation on how separation of powers doctrine might reinforce (not destabilize) internal checks. The argument is a novel addition to the literature on executive constraints and separation of powers, and it couldn't come at a more propitious time--just over a month before the Court will hear arguments in Free Enterprise Fund v. Public Co. Accounting Oversight Board, challenging Sarbanes-Oxley's new PCAOB, a body within the SEC, on Appointments Clause and separation of powers grounds. I highly recommend this.
Metzger sets her argument up against the Bush administration politicization of executive decisionmaking. A possible lesson from the Bush administration, she writes, is that internal constraints--checks on the executive within the executive branch itself, such as independent agencies, inspectors general, and the civil service system itself--were ineffective checks on executive overreaching. Gillian writes that that lesson, however, is "unduly pessimistic" and focuses too narrowly on internal constraints.
Instead, Metzger argues that we need more attention on connections between internal constraints and external constraints (those constraints on executive power imposed from the other branches) and separation of powers doctrine--how separation of powers considerations need not operate only to destabilize internal constraints, but how they might also operate to reinforce internal constraints. Metzger:
Notably, however, these [Appointments Clause] decisions generally treat internal constraints as given and focus their attention on determining if the specific constraints at issue represent constitutional violations because they intrude too far on presidential power. Less common, particularly in recent decisions, is judicial recognition of the potential constitutional benefits from internal controls, either in terms of guarding against aggrandized power from within or in reinforcing the ability of the other branches to do so.
Example? Metzger offers Boumediene v. Bush, an admittedly rare and special case:
[In Boumediene] the Court used its constitutional scrutiny to encourage the executive branch to adopt more robust internal constraints. Although it seems fair to say this was an intentional move on the Court's part, at a minimum Boumediene demonstrates that the Court's lack of attention to the separation of powers benefits of internal constraints is not universal. Yet Boumediene's express linkage of separation of powers doctrine and internal constraints remains a rarity, and reflects in part specific features of habeas jurisprudence, which has long required absence of adequate alternatives before a habeas claim will lie.
What might this look like outside of the special case of Boumediene? Metzger shows there are several options:
Courts could, as in Boumediene, identify a fairly specific set of internal constraints as necessary to avoid a constitutional violation. But they could also serve a reinforcing role simply by taking such constraints into account . . . as a factor that may support a finding of constitutionality or greater deference. They could even continue to rely primarily on administrative law doctrine, both as a means of reinforcing internal checks and more directly policing against undue agency politicization, and simply acknowledge more openly the constitutional separation of powers function that administrative law is then performing.
The Court could take this bait in Free Enterprise Fund and hold that the new PCAOB is supported by separation of powers considerations, not destabilized by them. Metzger and a colleague filed an amicus brief (pp. 24-28) in the case in which they gently push this argument.