Friday, December 25, 2009

"Pay Czar" Debate

ConLawProf's Steven Schwinn (pictured below) is participating in an online debate/discussion with Michael W. McConnell and Martin Flaherty as part of one of the Federalist Society online debates.


 Steve Schwinn has this to say in his opening comments:

Let me start with a few comments about the unfortunate label "czar."  These "czar" positions have proliferated in recent administrations and, as we know, have drawn heavy criticism most recently in the Obama administration.  While some of these positions raise serious separation-of-powers and Appointments Clause issues, many, even most, do not.  Importantly—and thankfully—their constitutionality does not turn on their label alone.  Instead, it turns on their functions, their duties, and their processes of appointment.

The debate continues and is ongoing here.


December 25, 2009 in Appointment and Removal Powers, Current Affairs, Executive Authority, Nondelegation Doctrine, Separation of Powers, Theory | Permalink | Comments (0) | TrackBack (0)

Grading Constitutional Law Exams

Happy grading!

Others may say "happy holidays," but for those of us teaching constitutional law or other law school courses - - - especially if we are teaching in large sections - - - it's the time of year when jolly sentiments can seem far away. 

More than six years ago I published an article in which I estimated that I had "spent over four thousand hours (almost six months of days and nights, or a year of long summer days) hunched over student work during my teaching career."   While Blue Books have been replaced by typed documents via Secure Exam (or some other software),

Jan 015

what hasn't changed is this:

Grading law school exams has been declared a “deadening intimacy with ignorance and mental fog” which saps a professor's pedagogical and scholarly energies. It is a “terrible occupation,” a “cloud,” a task which we accomplish with less efficiency and more distaste as our teaching career advances. Professorial engagement with Blue Books, in which most law student exams continue to be written, is deemed tedious and boring, leading to a “corrosive negativity” regarding the intellectual abilities of our students as well as a destructive influence upon our own character. In short, grading, especially of final examinations, is universally disparaged.

(footnotes omitted).  But perhaps it isn't so awful?  Maybe?  I entitled the article, The Zen of Grading (available on ssrn here) and explored grading as a honorable and even wonderful "practice."   There are no prescriptions (it's zen after all), but lots of riddles and introspection.  Many law professors, con law and otherwise, who grade essay exams and papers at the end of the semester, have written me to say they find it comforting.  At least one knows one isn't the only one "grading, grading, grading," especially when it can seem as if other colleagues (those multiple choice-givers!) are working on scholarship or perhaps even - aghast - socializing, indulging in holiday cheer, or vacationing.

For those who prefer humor to comfort, the amusing A Guide to Grading Exams by Daniel Solove (GWU Law School) is a treat!  Saying more will spoil the surprise if you haven't already seen this, but it's definitely worth looking at the full color illustrations and diagrams, although again, there are no prescriptions here. 

More great links about grading are available on Feminist Law Professors for amusement and commiseration.

Now, get back to those exams!

UPDATE: And with any luck, you are not a prof who "messed up" the exam this semester.


December 25, 2009 in Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, December 24, 2009

Senate Votes on Constitutionality of Health Insurance Mandate

Just before this morning's vote on the health reform package, the Senate voted 39-60 against a point of order raised by Senator Ensign that the health insurance mandate exceeds congressional authority under Article I, Section 8, and violates the Fifth Amendment.

Senators Ensign and Hatch yesterday raised the constitutional objectionson the floor (beginning on page S13721 of the December 22, 2009, Congressional Record); Senator Leahy defended the constitutionality of the mandate (beginning on page S13751 of the December 22, 2009, Congressional Record).

The constitutional arguments are by now familiar.  Ensign and Hatch argued that the mandate amounts to a regulation of inactivity by requiring the purchase of insurance; this exceeds congressional authority under the Commerce Clause (which permits Congress to regulate interstate commerce).  They read David Rivkin and Lee Casey's WSJ op-ed, their Washington Post op-ed, and Randy Barnett, Nathaniel Stewart, and Todd Gaziano's Heritage Foundation piece into the record.  Leahy argued that the mandate is well within congressional Commerce Clause authority as defined by the Court in Gonzales v. Raich, among other authorities--that health insurance, and, by extension, the mandate, has a substantial effect on interstate commerce.  Leahy read Erwin Chemerinsky's LA Times op-ed into the record.

The debate is an excellent example of the Constitution outside the courts--a good supplement to your Spring Term classes on congressional authority.

We've previously covered the constitutional debates here, here, and here.


December 24, 2009 in Congressional Authority, Federalism, Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 23, 2009

Times: Undo Iqbal, Restore Access

The New York Times yesterday ran an editorial urging Congress to overturn Ashcroft v. Iqbal, the case that came down last spring and effectively heightened the pleading standard for plaintiffs in federal court.  (Thanks to Con Law Prof Blog editor Ruthann Robson for the heads up.)  We most recently covered the issue here.

The Times is right in framing the issue as an access question.  As we've written here and here, lower courts have used Iqbal to dismiss hundreds of complaints for failure to meet the pleading standard set in the case.  (We of course don't know exactly how many of these cases might also have been dismissed under the pre-Iqbal plain-statement standard.  But the rash of dismissals in the wake of Iqbal, and citing Iqbal, suggests that this case is responsible, as the Times writes, for curtailing access to the courts.)

Congress can undo the effects of Iqbal and return the pleading standard to the pre-Iqbal level.  Senator Specter introduced legislation here; Representative Jerrold Nadler introduced legislation here.  We looked more carefully at the legislation here.


December 23, 2009 in Congressional Authority, Equal Protection, Fourteenth Amendment, Fundamental Rights, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 22, 2009

Update: Pregancy Policy for Army, Comments by Major General Cucolo

UPDATE: For a comment posted by Task Force Marne PAO from Cucolo see comments to previous post  here.

The "anti-pregnancy" policy announced by Major General Cucolo (pictured) previously discussed here, has caused quite a stir.  


A Department Defense briefing, December 22, 2009, available from the Federal News Service (and on Lexis), is headlined:

Defense Department Conference Call With Major General Tony Cucolo, U.S. Army, Commander, 3rd Infantry Division Via Teleconference From Iraq;

Subject: Pregnancy Provision In His Recent General Order

Cucolo specifically addressed the matter of court-martial for pregnancy:

Now, I regret that the term court-martial was bandied about or mentioned by one of the earliest written reports on this.  I think what they did was, they probably read the general order number one and saw the words there.
This is -- this aspect of general order number one is a good order and discipline issue.  And I believe that I can handle violations of this aspect with lesser degrees of punishment.
So no, I do not -- I have not ever considered court-martial for this.  I do not ever see myself putting a soldier in jail for this.  I have had four soldiers.  I have had to deal with four cases.  In each case, they received a written reprimand, a letter of reprimand.
Now, I had two choices with that written letter of reprimand.  I could have put it in their official file, which may or may not have impacted their career.  But it would stay in their file, be seen at promotion boards, things like that.
Or I could put it in their local file, which is local disciplinary action, stays in the unit for a finite period of time and does not follow them when they're transferred.
In the four cases I had, they got local letters of reprimand. The obviously you say -- you know, I mean, I hold the men accountable too.
So there should have been four males punished.  There were three males punished.  And the reason there weren't four is because one female soldier did not want to say the name of the father, and I dropped it.  I did not pursue it.

Responding to criticisms that the policy treats men and women differently, Cucolo had this to say:

The men stay in combat, and the women are sent home because they're pregnant, but both receive the same punishment, unless there are other circumstances.  Both receive the same punishment.
. . . .

I am the one responsible and accountable for these 22,000 soldiers.  The National Organization for Women is not.  Critics are not.  I appreciate -- I will listen to critics, and they add thought. But they actually don't have to do anything.  I have to accomplish a very complex mission, very complex.

We are on the Kurd-Arab faultline up here.  We are -- we are moving units, relocating things.  It's a very dynamic atmosphere.  And I am most concerned about the health, welfare, morale, well-being and fighting ability of every single one of my soldiers.  And I'm going to do what it takes to maintain our strength and bring as many home as I can.

I owe that to the American -- I believe the American people expect me to do everything I can to keep every one of the soldiers -- that their money, their taxpayer dollars, trained and got ready for this -- in the fight.


December 22, 2009 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, News, Privacy, Reproductive Rights, War Powers | Permalink | Comments (1) | TrackBack (0)

DHS Extends REAL ID Compliance Deadline, Advocates Reforms

Department of Homeland Security Secretary Janet Napolitano last week extended the December 31 deadline for states to materially comply with the REAL ID Act.  The Secretary left in place, however, the May 10, 2011, deadline for full compliance with the Act.

The REAL ID Act (Division B, Title II, starting page 81), signed by President Bush in May 2005, requires state-issued identification to meet certain federal requirements if they are to be used for federal purposes, like airline screening.  The Electronic Privacy Information Center has good background information here

States balked, arguing that the requirements amounted to an unfunded mandate and insufficiently protected privacy.  Most recently, the National Governors Association wrote Secretary Napolitano stating that at least 36 states could not materially comply by the December 31 deadline and asking for an extension.

In granting the extension, Secretary Napolitano also pushed for repeal of the REAL ID Act, reform of the requirements, and enhanced privacy measures in pending legislation in both the Senate and House.  (The Secretary advocated repeal of the REAL ID Act as early as last spring.)


December 22, 2009 in Congressional Authority, Federalism, News | Permalink | Comments (0) | TrackBack (0)

Sunday, December 20, 2009

Don't Ask, Don't Get Pregnant?: Military Policy for Iraq Bans Pregnancy or Impregnanting

398px-ArmyCombatShirt Stars and Stripes, The Independent News Source for the U.S. Military Community, is reporting that a policy which went into effect in early November, and just reported, restricts the reproductive rights of military and civilian personnel:

The rule governs all those serving under Maj. Gen. Anthony Cucolo III, who commands Multi-National Division-North, including Balad, Kirkuk, Tikrit, Mosul and Samarra. According to the order, it is “applicable to all United States military personnel, and to all civilians, serving with, employed by, or accompanying” the military in northern Iraq, with few exceptions.

Someone would violate the policy by “becoming pregnant, or impregnating a soldier, while assigned to the Task Force Marne (Area of Operations), resulting in the redeployment of the pregnant soldier,” according to the order.

The General Order, Number 1 applicable to Iraq (download here) already prohibits, in subsection q “sexual contact of any kind with Iraqi nationals, foreign nationals, or local nationals who are not members of collation forces,” and in subsection r “cohabitation, residing, or spending the night in living quarters of any kind with a member of the opposite sex,” although excepting “lawfully married spouses” and “situations of military exigency.”

The pregnancy policy seems to have no exceptions.


December 20, 2009 in Current Affairs, Family, Fundamental Rights, Gender, News, Privacy, Reproductive Rights, War Powers | Permalink | Comments (2) | TrackBack (0)