Saturday, February 14, 2009
The vigorous Valentine's Day media (and commercial) attention to relationships prompted me to reread Christine Littleton's classic article, Reconstructing Sexual Equality, 75 California Law Review 1279-1337 (1987). More than twenty years ago, Littleton, a Professor of Law at UCLA, Littleton sought to resolve the then-current (and still vexing) sameness-difference problem in equality jurisprudence. Her solution was an argument that difference should neither be eradicated nor accommodated, but rendered "costless." Eradication seemed to her impossible, and accommodation was faulty because it could be used to recreate inequality. Instead, equality should be "acceptance."
Littleton's acceptance model has not been accepted as constitutional doctrine. Yet it remains worth contemplating. Today, many persons are both mothers and soldiers, but Littleton argued that making gender difference less costly might mean " requiring the government to pay mothers the same low wages and generous benefits as most soldiers."
She added that it could also mean "encouraging the use of motherhood as an unofficial prerequisite for governmental office." In light of our last election, this is quite an interesting notion to contemplate. Littleton continued that if motherhood were "a paying occupation with continuing status perks, many more men might be induced to stay home and raise their children. Alternatively, but less likely, making difference costless could mean ceasing to pay combat troops."
In part, her argument is also a solution to the equal protection "intent" problem. As she wrote:
For example, in Personnel Administrator v. Feeney [442 U.S. 256 (1979)], the Supreme Court upheld Massachusetts' lifetime veteran's preference against an equal protection challenge, reasoning that Massachusetts had not intended that preference to lock women into lower-level and dead-end civil service positions, regardless of this obvious effect. Under an equality as acceptance model, a state's failure to provide equal preference for the gendered female complement to military service would be evidence of intentional discrimination. Thus, even without additional constitutional or statutory enactment, a change in the Court's underlying model of equality could alter the result in actual cases.
The Court's model of equality may have changed since 1987, but it does not seem any closer to making differences "costless" in the manner Littleton suggested it should.
Friday, February 13, 2009
The U.S. District Court for the District of Columbia twice this week signaled its frustration with the Obama administration's refusal to refine its position on the definition of "enemy combatant" in detainee cases before the court.
The administration filed a Response on February 9 urging the court not yet to address the definition of "enemy combatant." (Thanks to SCOTUSBlog for the administration's Response.) The administration claimed that any movement would be premature given President Obama's order to review the disposition of all detainees at Guantanamo. (See my previous post here.) Moreover, the administration argued, the definition of "enemy combatant" could only be determined in the context of specific facts of specific cases at the merits stage.
Judge Bates on February 11 rejected the administration's invitation to defer indefinitely and ordered the administration to file any refinement to its position on the definition of "enemy combatant" by March 13, 2009. He specifically rejected the administration's proposal to define "enemy combatant" only in the context of specific cases:
the definition of the central legal term "enemy combatant" is not a moving target, varying from case to case, and the Court intends to rule on that definition before the parties reach a critical point in these proceedings.
(Emphasis in original.)
Judge Walton followed suit just yesterday in a related set of cases. But Judge Walton's order requires the administration to recommend a plan for resolving the definition in a February 18 hearing. (There are other significant questions in this case: Whether the administration may detain an enemy combatant indefinitely without showing a prospective threat; whether the administration may detain an enemy combatant for the purpose of interrogation, not "incapacitation of a potential combatant"; and whether a detainee's habeas rights "'can be honored if the detainee is never informed of the factual basis of his detention' are all 'important' issues that 'must be addressed by the Court at some point.'")
In language reflecting the court's growing frustration, Judge Walton wrote,
So, while the Court will, of course, provide the respondents with an opportunity to convince it of the virtue of their seemingly preferred approach, the Court also expects the respondents to be prepared to recommend a format and schedule for resolving the issue of the appropriateness of the definition of the term "enemy combatants" previously propounded by the respondents in a generalized and expedient manner if the Court decides to address the issue in that fashion.
These cases have lingered for far too long.
It's not obvious why either of the administration's two stated reasons for delay should cause these cases to drag on any longer. With regard to the second: As Judge Bates made clear in his order, the administration's proposal to define "enemy combatant" on a case-by-case basis is contrary to ordinary process; this looks arbitrary and unfair. And with regard to the first: The administration must surely be close to a definition of "enemy combatant" for the purpose of its review--isn't this the very first thing the review group would do?--and this definition should simply carry over into the administration's litigation position. The review group can later decide to release these detainees or to try them in regular Article III courts (and thus moot these cases); but in the meantime, the administration should keep these cases moving forward.
In the wake of the Obama administration's assertion of state secrets in Mohamed v. Jeppesen Dataplan, Inc., the Ninth Circuit case on extraordinary rendition (more here, and see Glenn Greenwald's excellent analysis at Salon.com), legislation has been re-introduced in the Senate and the House to curb administration assertions of the state secret privilege and to guide the courts in ruling in those cases. I haven't been able to track down the bills, but the Senate bill from the last Congress is here.
According to Senator Leahy's press release, the legislation will set uniform procedures for federal courts considering the state secret privilege, require judges to review evidence upon which the privilege is based (and not just rely upon government affidavits), and establish other procedures to promote the responsible use of the privilege.
The Report accompanying last Congress's Senate bill makes for good reading on the Senate Judiciary Committee's views on state secrets and separation of powers. The (Democratic majority) Report:
Courts and scholars have debated the origins of the privilege and whether it is a "mere" common law rule or whether it also has some foundation in the Constitution, notwithstanding the lack of explicit textual or historical support for such a view. Regardless of whether the privilege has any constitutional dimension, however, there is widespread agreement that Congress has constitutional authority to regulate the privilege, based on its Article III powers to set rules of procedure and evidence for the Federal courts, its Article I powers related to national security and foreign affairs, and the Necessary and Proper Clause. Article II is not the only relevant part of the Constitution. Even if the state secrets privilege were in some respect "rooted" in our constitutional structure, there is no bar to Congress, using its own authorities rooted in the Constitution, exercising concurrent authority over the protection of state secrets or providing rules for implementation of the privilege.
The Republican minority argued that the bill was unnecessary (because the privilege was infrequently invoked) and even potentially harmful to national security.
As you may have heard, yesterday marked the 100th anniversary of the founding of the NAACP. The NAACP has a far reaching legacy in Constitutional Law. Of course, the most obvious example is the litigation leading to Brown v. Board of Education and the reversal of the "separate but equal" doctrine. However, the NAACP also left its mark in cases such as Shelley v. Kraemer and Loving v. Virginia. Additionally, the organization was active in lobbying for the 1964 Civil Rights Act. Finally, as a plaintiff, iin cases such as NAACP v. Alabama and NAACP v. Button, the NAACP expanded the boundaries of the First Amendment freedoms of political expression and association.
As Constitutional Law professors, it is incumbent upon us to take a moment to reflect on the constitutional legacy of this organization.
It's time for the Teaching Assistant. Here are a few stories that you might be interested in this week.
The Washington Post reports that the Obama Administration will expand the scope and duties of the National Security Council. According to the article, "New NSC directorates will deal with such department-spanning 21st-century issues as cybersecurity, energy, climate change, nation-building and infrastructure."
A pending lawsuit is attempting to force courts to reconsider the "soft-money" limits on campaign expeditures imposed by the McCain-Feingold Act.
Here are two stories on abortion: First, the Chicago Tribute reports that twelve states - are proposing laws that would mandate ultrasounds prior to an abortion procedure. The proposals range from requiring that a woman be offered an ultrasound, requiring that an ultrasound be performed without requiring the woman to view the image, requiring that the ultrasound be performed "in a way the pregnant woman may view the[ images]," and finally, requiring that the woman actually view the images. As I've frequently written in this space, such laws could run afoul of the Casey standard depending on the level of the requirement imposed by the legislation. Critique of these laws can be found here.
Second, Glamour magazine (yes, a fashion magazine has a link to Con Law, I promise) ran a surprisingly insightful piece about women's abortion experiences. Rather than focusing on the legal aspect, the magazine interviewed a number of women about their abortion experiences. It's a wide ranging piece with a number of different women with different reactions. The piece is helpful to professors and students of Constitutional Law, as it is easy to get lost in the legal discussion and to forget that real people are impacted -daily - by these laws.
That's all for this week. See you next time!
Yesterday's Wall Street Journal ran two pieces - here and here - about the difficulty of citizens challenging Hillary Clinton's salary through the Emoulients Clause or Barack Obama's eligibility through the Natural Born Citizen Clause. The argument can be summarized as follows - according to the courts, a citizen will never be found to have standing in any such cases, so taken to the extreme, California Governor Arnold Schwartzenegger could become President despite the Constitutional violation, because no one would be able to object.
I belive that both pieces greatly overstate the potentional danger for several reasons. First, the piece ignores the political reality. Because everyone in the nation knows that our President must be a citizen, would there really be a groundswell of support for a person that would ultimately be unable to serve? It seems highly unlikely.
Second, the Court suggested in Richardson that the CIA's compliance with the Constitution could be best monitored through the political process. Assume for the moment that a person pretended to be a citizen, was elected, and was later discovered to be a non-citizen. What would prevent Congress from impeaching that person immediately? Since impeachable offenses can be broadly defined, this certainly seems possible.
Third, there is a legal reason why the plaintiffs in cases such as Berg v. Obama lost - they could not prove that they had suffered an injury. In cases such as this, it may appear that a person could never demonstrate an injury. I don't beleive this is so. In the cases that have been litigated on the eligibility of John McCain and Barack Obama, it appears that the courts declined to find an injury because it was at least plausible - and indeed, fairly certain - that both Obama and McCain were United States citizens. However, in the case of someone like Schwartzenegger, a Court would not be able to rest on such arguments as comfortably, and would have to work harder to prove that the person was not truly injured. Indeed, this scenario would be different than the generalized taxpayer grievance. It's not about the payment of taxes but about something that goes to the fundation of our democracy.
Finally, the articles overlook a very important point. It's an open secret that judges freqently use justiciability doctrines to avoid hearing knotty cases on the merits. Any federal court could have resolved the "Obama's not a citizen issue" by looking at the evidence and ruling on the issue. However, politically, a court might not have wanted to get involved in the political fray, as a ruling either way might have stoked the fringe elements. It is not farfetched to think that a court looked at the evidence, saw that the case had very little chance to prevail, and simply dismissed it before ruling on the merits.
In short, the standing issue could be far more complicated than we anticipate. With the right plaintiff, on the right facts, courts could be more open to a challenge.
Thursday, February 12, 2009
Feeling the creative urge? Or the need to write something that is not footnoted?
Or thinking of a creative assignment for students?
The literary magazine New Millennium is having a writing competition for works centered on Obama - - - poetry, fiction, or creative nonfiction - - - 2,500 words or less. (Really, that's two thousand five hundred words; not twenty-five thousand).
There is an entry fee, as there tends to be in creative writing competitions. There is also a monetary award. Deadline is March 1, 2009. More information here.
Thirty-three law professors, former state supreme court justices, and practitioners proposed four significant changes to Supreme Court operations, Law.com reports. (Thanks to reader Darren Elliott for the tip.) The group sent the proposals to the House and Senate Judiciary Committees in the form of draft legislation. (This is the latest in a series of proposals for Supreme Court reform. See Supreme Court 2.0 in the ABA Journal, October 2008, for more.)
1. Membership rotation. Thirty members of the group recommended biennial Supreme Court appointments to ensure justice rotation and regular change in composition of the Court. The nine most junior justices would hear cases; the Court itself would figure out what to do with senior justices when the number exceeds nine.
2. Retirement. The group proposed that the Chief and the Judicial Conference would actively promote the retirement of justices who can no longer perform duties.
3. Term Limit for Chief. The group proposed a seven-year term limit for the Chief.
4. Docket. Nineteen members proposed that a group of appellate judges would set a substantial number of cases for the Court to hear on their merits. The Court could add to, but not subtract from, this number.
Wednesday, February 11, 2009
The Obama administration maintained course on the Bush administration claims of state secrets in Mohamed v. Jeppesen Dataplan, Inc., a closely watched case at the Ninth Circuit. The NYT reports here.
The case involves an Ethiopian's claims against a Boeing subsidiary for its role in the Bush administration extraordinary rendition program. The Bush administration pressed for dismissal, arguing (rather ambitiously) that the state secret doctrine prevented the case from going forward, particularly: that any discussion of the case in court would threaten national security.
There was widespread anticipation that the Obama administration would change course, especially given the administration's stated emphasis on government openness and AG Holder's commitment to review every pending case in which the Bush administration asserted state secrets. (See here.)
But it didn't.
Instead, a lawyer representing the administration told the panel that the administration would maintain the Bush administration position--a decision "thoroughly vetted with the appropriate officials within the new administration."
Case documents are here (many thanks to the ACLU). I'll update with developments.
Judge Gladys Kessler (D.D.C.) yesterday denied Guantanamo detainees' motion for a preliminary injunction to halt the government's techniques in force-feeding them during their hunger strike. The detainees claimed that the government's use of a restraint chair and a nasal feeding tube amounted to torture. They filed a habeas petition and the motion for preliminary injunction at issue here.
On the first prong of the preliminary injunction analysis--the likelihood of success on the merits--Judge Kessler ruled that the court lacked jurisdiction under the Military Commission Act.
The MCA stripped federal courts of jurisdiction over detainees' habeas claims, but the Supreme Court last summer In Boumediene v. Bush overturned a portion of the MCA--Section 2241(e)(1), which denied federal court jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants--and ruled that the privilege of habeas extended to detainees at Guantanamo.
But the Court in Boumediene left open the constitutionality of Section 2241(e)(2), which denies jurisdiction as to "any other action against the United States . . . relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of a detained alien determined to be an enemy combatant.
Judge Kessler ruled that the detainees' habeas case here was more in the nature of a Section 2241(e)(2) case, because the detainees sought relief from certain treatment at Guantanamo (and not general release). Judge Kessler ruled that the Court in Boumediene did not overturn Section 2241(e)(2), that Section 2241(e)(2) strips the court of jurisdiction to hear the petitioners' claims, and that the petitioners' likelihood of success is therefore quite low. Judge Kessler:
Petitioners seek an injunction to alter the conditions under which they are force-fed and provided medical treatment. The relief they seek clearly falls under Section 2241(e)(2). . . . Boumediene struck down as unconstitutional Section 2241(e)(1), which denied detainees the right to habeas corpus review in federal court. In doing so, the Supreme Court, in clear and direct language, refused to address "the reach of the writ with respect to claims of unlawful conditions of treatment or confinement."
See pages 10 to 16 of the opinion for more.
Three D.C. judges have now ruled that Boumediene did not overturn Section 2241(e)(2). I posted on one of those cases here.
Tuesday, February 10, 2009
With the economic crisis looming and debates about a Presidential/Congressional "fix," I've been returning to a conversation between Franches Fox Piven and ConLaw Prof Steve Loffredo, 11 NYC Law Review 1-21 (2007), which I moderated with constitutional law students in attendance. Here are some excerpts:
RR: We have recently discussed, as a class, San Antonio Independent School District v. Rodriguez [411 US 1 (1973)] . . . . At one time, I considered this opinion one of the top five worst Supreme Court opinions--now there are many more. I have always thought that if the case had been decided differently, law and social change could have proceeded in a very different way. However, lately, I have been thinking that is perhaps too optimistic. So I guess I would like to open it up and ask for your thoughts.
Professor Frances Fox Piven: Well, it is much too optimistic. The optimism flows from a certain way of thinking about social progress that begins with principles. If we all accept the principle that extreme need should be eliminated in this world; if we can get that principle out there, then extreme need will be eliminated. Or if we can somehow make it a law that extreme need should be eliminated, then some kind of action will follow. Principles sometimes do affect social life; but they affect social life when they become the inspiration of social forces, of movements, of real political formations that exert pressure. . . .
Professor Stephen Loffredo: I will start by saying that the San Antonio decision was enormously disappointing; it was one of the worst cases not only because the court endorses unequal treatment of poor people in an area that is sort of one of the core concerns of government, which is education, but because we know, in our society, education is really the motor of mobility. So, to the extent that education is the motor of economic mobility, it is the pathway out of poverty. . . . I agree with Professor Piven that if your goal is to alter capitalism, to make it more humane, all indications are that the tool for such change is not the American judiciary. The American judiciary has been very, very good to capitalism. And I am not just talking about the Lochner period but really throughout our history.
Embedded in your question is part of the other answer you gave, which is whether principle or principle in the judicial context can precipitate substantial movement forward--progressive change through judicial decree? The answer is no. As Professor Piven said, you need active social movements. That is really the only way that substantial, progressive social change has happened.
The questions now seem to be whether there exists any "social movement," and if so, whether the two non-judicial branches are responsive to it. And if there is some response, what the judiciary might do when it is called upon to "say what the law is."
The NYT reported yesterday on states' complaints about requirements under the federal Adam Walsh Child Protection and Safety Act and on sex offenders' claims that the registration requirements violate constitutional rights.
But officials in many states complain about the law's cost and, in some instances, contend their laws are more effective than the federal one. The states also suggest that the federal requirements violate their right to set their own policies and therefore may be unconstitutional [under the Tenth Amendment], at least in part. . . .
Other lawsuits have challenged the requirement that adults whose crimes were committed before the law's passage appear on public registries for longer than they had been led to expect. Some lawyers say that amounts to changing an offender's penalty after the fact, a potential [violation of the Ex Post Facto and Due Process Clauses].
The Tenth Amendment claim has not gained traction in the courts; in fact, it's been uniformly rejected. Courts--all district courts, as far as I can tell--have held that the Act does not require state officers to do anything more than they already do under state laws; thus there's no commandeering.
But the Ex Post Facto and Due Process arguments have gained some small measure of traction. For example, the Seventh Circuit ruled just over a month ago in late 2008 in U.S. v. Dixon that a conviction for failing to register ran afoul of both clauses, where the defendant's failure to register occurred before the Act took effect (i.e., within a reasonable period after the date he was required to register under the Act). But the court in that same case also held that another conviction did not violate the clauses, where this second defendant admitted to not registering a full five months after the date he was required to register under the Act. Timing quite obviously matters.
Commerce Clause claims have gained more traction and divided the courts. The Eighth Circuit--the most recent circuit court to rule--in U.S. v. Howell held that the registration requirements did not exceed Congressional authority under the Commerce Clause and the Necessary and Proper Clause. (The Howell court specifically augmented the Commerce Clause with the Necessary and Proper Clause in its holding, distinguishing other cases that ruled the Act exceeded Commerce Clause authority (alone).)
Other claims are based on the right to travel and the nondelegation doctrine; these claims haven't gone anywhere.
Monday, February 9, 2009
Earlier today, Senator Patrick Leahy (D-VT), stated that he would like to form a "Truth and Reconcilation" commission to investigate the abuses of power that occurred in the Justice Department and the White House in the previous administration. This evening, during his first prime time press conference, President Obama was asked what he thought of the idea. Though he was careful to state that he wanted to "look forward, not backward," he also had this to say:
[M]y administration is going to operate in a way that leaves no doubt that we do not torture, that we abide by the Geneva Conventions, and that we observe our traditions of rule of law and due process as we are vigorously going after terrorists that can do us harm . . .
My view is also that nobody is above the law and if there are clear instances of wrongdoing that people should be prosecuted just like any ordinary citizen . . .
The idea of holding even those at the highest echelons of power accountable is of course, not new. "The government of the United States has been emphatically termed a government of laws, and not of men.” Shades of Marbury, no? This can only become more interesting as it develops.
Professor Ellen Katz (Michigan) recently posted her excellent article Withdrawal: The Roberts Court and the Retreat from Election Law on ssrn. The piece is also forthcoming in the Minnesota Law Review. This symposium article--part of the Minn. L. Rev. symposium Law & Politics in the 21st Century--is a thoughtful examination of the most recent election law cases at the Court and an argument that the Roberts Court "avoid[s] active federal engagement with the state-created rules regulating democratic participation; and . . . assumes and demands an electorate that is both legally literate and diligent." The piece is also a wonderful addition to Katz's significant body of scholarship on voting rights and election law. I highly recommend it.
Katz uses four cases from the Court's October 07 Term to illustrate her points: New York State Board of Elections v. Lopez Torres (upholding New York's party convention system of selecting candidates); Washington State Grange v. Washington State Republican Party (upholding Washington's primary law allowing candidates to self-designate party affiliation); Crawford v. Marion County Election Board (upholding Indiana's voter-ID law); and Riley v. Kennedy (holding that Alabama's 1985 law mandating elections to fill vacancies in Mobile never gained "force or effect" for purposes of Section 5 of the VRA, and therefore Alabama's reinstatement of its prior practice of gubernatorial appointment did not require VRA preclearance).
As to Lopez Torres and Crawford Katz argues that the Roberts Court stepped back from considering the broader political context and on-the-street reality in these cases and instead "came close to embracing empty formalism." Katz contrasts Lopez Torres with a former era's Bullock v. Carter, in which Chief Justice Burger examined filing fee requirements "in a realistic light" and based upon their "real and appreciable impact." She argues that "Bullock was not an outlier on this point." As to Crawford, Katz argues "[t]he approach gives States license to structure electoral processes to impose barriers to participation, subject only to the most limited constraint that they not be legally impossible to traverse. Reality no longer has anything to do with it."
Next Katz aligns Washington State Grange with the 2001 Easley v. Cromartie. The Court in that case declined to apply strict scrutiny to an oddly shaped district and a claim of racial gerrymandering. But the Court also set out a roadmap for states to avoid racial gerrymandering claims. In contrast to some predictions, this "effectively brought to a close the racial redistricting disputes about which the Justices obsessed in the 1990s." Like Cromartie, Katz argues, Washington State Grange provided advice to states that will, like the detailed advice in Cromartie, end these claims in federal court.
Finally, Katz compares Riley with the 1999 Lopez v. Monterey County to show how the Roberts Court has backed away from intrusion into state law and policymaking under the VRA. Katz:
Absent from Justice Ginsburg's majority opinion [in Riley] is Lopez's reflexive acceptance of Section 5's "federal intrusion" into state sovereignty. In its place is remarkable concern about the very federalism costs the Court in Lopez so willingly tolerated. In particular, Justice Ginsburg worried that mandating preclearance in Riley would interfere too greatly with the power of the Alabama Supreme Court, and, by extension, with state supreme courts more generally.
Katz shows how these cases represent the Roberts Court's reluctance to interfere with state election policies and, in this reluctance, new demands for voter literacy and voter diligence. She concludes:
The election decisions from the 2007 Term anticipate that private individuals will play an increasingly crucial role within election law. While such assistance [for voters] hardly signals the wholesale privatization of election administration, it reveals an implicit delegation of power. As the Court retreats from its longstanding role as the primary guardian of voting rights, private individuals and organizations are emerging as the most likely replacement.
I highly recommend this.
Sunday, February 8, 2009
Yale Law School is hosting the 2009 Federalist Society National Student Symposium, “Separation of Powers,” on February 27th and 28th, 2009; registration information here.
Here's the program:
Is the Separation of Powers Principle Exportable? (Friday, February 27, 6:45 p.m.)
Moderator: Judge José A. Cabranes, U.S. Court of Appeals for the Second Circuit
Professor Steven G. Calabresi, Northwestern Law School
Professor Oona Hathaway, UC Berkeley School of Law
Confirmation Battles & Presidential Nominations (Sat., February 28, 9:00 a.m.)
Moderator: Judge Sonia Sotomayor, U.S. Court of Appeals for the Second Circuit
Ms. Nan Aron, Alliance for Justice
Ms. Rachel Brand, WilmerHale, former Deputy Assistant Attorney General, Office of Legal Policy
Professor Stephen L. Carter, Yale Law School
Professor John O. McGinnis, Northwestern Law School
Medellin v. Texas (Debate) (Saturday, February 28, 11:00 a.m.)
Moderator: Judge Brett M. Kavanaugh, U.S. Court of Appeals for the D.C. Circuit
The Hon. R. (Ted) Edward Cruz, Morgan, Lewis & Bockius LLP, former Solicitor General of Texas
Dean Harold Hongju Koh, Yale Law School
The Administrative State & the Constitution (Saturday, February 28, 2:00 p.m.)
Moderator: Professor Jonathan R. Macey, Yale Law School
Professor Cynthia R. Farina, Cornell Law School
Professor John Harrison, University of Virginia Law School
Professor Gary S. Lawson, Boston University Law School
Professor Thomas W. Merrill, Yale Law School
War Powers and the Executive (Saturday, February 28, 4:00 p.m.)
Moderator: Judge Debra Ann Livingston, U.S. Court of Appeals for the Second Circuit
Ambassador John Bolton (former U.S. Ambassador to the United Nations)
Professor Martin S.Lederman, Georgetown University Law Center (tentative)
Professor Michael Paulsen, University of St. Thomas Law School
Professor Christopher Schroeder, Duke Law School