November 27, 2009
VMI Update: Gender and the Virginia Military Institute
Of the 1,500 cadets on the campus of the Virginia Military Institute (VMI) this fall, only 126 are women - - - a dozen years after the United States Supreme Court, in its landmark opinion United States v. Virginia, ordered VMI to change its male only admission policy.
According to a report in The Roanoke Times in August:
A copy of the complaint -- obtained by The Roanoke Times through a Freedom of Information Act request -- sheds little light on the complainant's identity. Large portions of the document were redacted. Among the few readable sentences: "The language and terminology that is used and considered acceptable by VMI in the barracks reflects a climate and culture that is derogatory and discriminatory toward the women that are required as cadets to live in the barracks." And: "A male VMI graduate is almost always given preferential treatment."
According to a report November 22 in The Baltimore Sun, the "ongoing investigation of a sex discrimination complaint at the small, state-supported school" has "taken nearly a year and a half — three times longer than usual."
VMI issued a statement on its website here.
For those thinking about a forthcoming constitutional law exam, this might be worth a look.
(with thanks for the tip to Jen Hogg, CUNY School of Law, class of 2012)
November 24, 2009
Holiday Travel?: Time to Catch Up on Some Constitutional "Listening"
When was the last time you listened to a reading of The United States Constitution?
If you can't recall, and you are one of the 38.4 million people traveling by car in the US over the Thanksgiving holiday, perhaps your trip might be the perfect time to hear the Constitution read aloud.
Or if not the Constitution, what about the Articles of Confederation? Or the Declaration of Independence?
If your travel-time is extended, you might be interested in the 21 hours of The Federalist Papers - - - or the 19 hours of The Anti-Federalist Papers. Or perhaps A Treatise of Human Nature by David Hume (almost 14 hours) or John Locke’s Two Treatises on Civil Government (11 hours).
What about Aristotle’s Politics? Plato’s Republic? Alexis de Tocqueville's Democracy in America (both volumes)? Or Discourse on the Origin and Basis of Inequality Among Men, by Jean-Jacques Rousseau, available in both English and French?
All of these and more are available for free download on LibriVox. With its motto of "acoustical liberation of books in the public domain," the site provides a wide range of materials. Browsing is possible, but somewhat cumbersome. If you cannot find your favorite classic, LibriVox accepts volunteer readers.
Movement Grows to Undo Iqbal, (Re)Open Access to Federal Courts
With the introduction last week of a bill in the House to overturn Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the movement among plaintiffs' and open-courts advocates to re-set the pleading standard in federal courts is gaining momentum. The American Association for Justice, which is leading a broad coalition in support of the bill, released this statement last week.
A 5-4 Supreme Court ruled last term in Iqbalthat allegations in an ex-detainee's complaint against former AG Ashcroft and FBI Director Mueller for constitutional torts while in custody after 9/11 were too conclusory to withstand a motion to dismiss. The Court, applying its new pleading principles set in Twombley, ruled that Iqbal had to plead more than "bare assertions amount[ing] to nothing more than a 'formulaic recitation of the elements' of a constitutional discrimination claim"--that he had to plead a "plausible" claim for relief that the courts could evaluate based on "judicial experience and common sense."
The standards effectively heightened the 50-year-old notice pleading standard set in Conley v. Gibson. That case held that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
Soon after Iqbal came down last spring, defendants' "Iqbal motions" proliferated in federal court, and numerous complaints were dismissed for failure to meet the new heightened pleading standard.
This past summer, Senator Specter introduced legislation (aptly titled the "Notice Pleading Restoration Act") to re-set the pleading standard at the old level under Conley v. Gibson. The House Judiciary Committee held a hearing last month here. And most recently--just last week--Rep. Jerrold Nadler introduced legislation (the "Open Access to Courts Act") in the House. Unlike Specter's bill, which sets the standard as that "set forth . . . in Conley v. Gibson," Nadler's bill includes specific language from Conley v. Gibson:
A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.
The American Association for Justice coalition last month wrote to the Senate Judiciary Committee couching its claims in constitutional terms:
The new standards substantially hamper access to the courts for people who are harmed by illegal conduct, undermine the fundamental right to a jury trial, and infringe the rights of civil plaintiffs to due process of law, fundamental fairness and their day in court.
November 23, 2009
Panel Debates Constitutional Right to Health Care in Prisons
The American Constitution Society (Chicago Lawyer Chapter and John Marshall Law School Student Chapter) and the ACLU hosted a panel discussion on health care in prisons last week titled Health Care Behind Bars: Are Inmates' Health Care Needs Being Met? The panel featured Judge Easterbrook (7th Cir.), Dr. Michael Puisis (Cermak Health Services), and Benjamin Wolf (ACLU) in a lively discussion about the constitutional rights to health care of prisoners.
The recording is here.
Prisoners, by virtue of their incarceration and dependency on the state, have a right to health care under the Eighth Amendment. The Court wrote in Estelle v. Gamble:
These elementary [Eighth Amendment] principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical "torture or a lingering death" . . . the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. . . . The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common-law view that "[i]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself."
The panel conversation at one point (around 40:00 in the recording) turned to the nature of negative (not positive) rights in our constitutional tradition and the state's obligations to provide care and protection (or not) to those in its custody (or not) under DeShaney v. Winnebago.
The discussion added a dimension to my own lessons on DeShaney and Castle Rock v. Gonzales. Perhaps you can use it, too.
Former Detainees' Habeas Claims Moot
Former Guantanamo detainees cannot maintain their habeas claims against the U.S. government, Judge Richard Leon (D.D.C.) ruled in a set of opinions released today (all duplicates of the linked opinion). Judge Leon ruled the claims moot.
Former detainees, all apparently in custody in other countries, argued that they were constructively held by the U.S. government and that they suffered collateral consequences of custody at Guantanamo. Judge Leon ruled that former detainees were not under constructive U.S. custody, that collateral consequences were "based on the discretionary decisions of" someone other than the U.S. government, and that the court couldn't do anything about another country's detention anyway.
The ruling dismisses the former detainees' claims for release and their recently added claim that their transfer was unlawful under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
November 22, 2009
Epstein on Easterbrook's Incorporation Case
Richard Epstein (Chicago, Hoover Institution, and NYU) recently posted on SSRN a critique of Judge Easterbrook's decision in NRA v. City of Chicago, the Seventh Circuit case rejecting Second Amendment incorporation. (The case is now at the Supreme Court, captioned McDonald v. City of Chicago.) Epstein's essay, NRA v. City of Chicago: Does the Second Amendment Bind Frank Easterbrook?, is a fine deconstruction of Judge Easterbrook's opinion with thoughts about the appropriate role of an appellate court judge in an area where aged Supreme Court precedents, still on the books, are long overdue for reconsideration.
Epstein compares Judge Easterbrook's short, direct opinion with Judge O'Scannlain's much lengthier, more historically grounded analysis in Nordyke v. King, the Ninth Circuit case that ruled the Second Amendment incorporated against the states. Easterbrook was motivated by judicial restraint and the circuit court's role in (not) making constitutional law; he therefore passed on the substantive incorporation question, leaving that to the Supreme Court. O'Scannlain, in contrast, engaged the incorporation question, reviewing the history and dodging The Slaughterhouse Cases, U.S. v. Cruikshank, and Presser v. Illinois on his way to ruling the Second Amendment incorporated against the states. Epstein:
Easterbrook's approach emphasized the imperative need for lower court deference to the Supreme Court's explicit Reconstruction Era holdings that the Second Amendment does not bind the states . . . . On balance it appears that Easterbrook is against incorporation on a variety of historical and federalism grounds, none of which are likely to prevail when the Supreme Court addresses the issue of incorporation when it hears the case later in the 2009 October Term.
How would Epstein have had Easterbrook rule? Epstein:
The better approach by far is to take your best shot on the issue, and leave it for the Supreme Court to decide whether you have misspoken.
Ironically, Judge Easterbrook should have followed the Posner strategy in Khanby first announcing that he would deny incorporation, and then offering his complete analysis of the case on the merits. Half measures don't work. The Supreme Court would have been ideally positioned to decide this case if Judge Easterbrook had decided to join issue by taking on Judge O'Scannlain's decision in Nordyke. The lesson of NRA is to beware of a half-hearted commitment to judicial restraint.