Friday, April 9, 2010

Johnsen Withdraws Her Nomination to Lead the OLC

Professor Dawn Johnsen (Indiana) on Friday withdrew her nomination to lead the Justice Department's Office of Legal Counsel.  The NYT reports here.

We've posted on Johnsen's nomination most recently here and here; we posted on her article What's a President to Do: Interpreting the Constitution in the Wake of Bush Administration Abuses here.

Johnsen's nomination was held up by Republicans concerned that she was too liberal.  President Obama declined to appoint her as one of his 15 recent recess appointments, because, according to the story, the White House felt this would have undermined its efforts to keep the office above politics. 


April 9, 2010 in News | Permalink | Comments (0) | TrackBack (0)

The Constitution and the Long War

The Peter Jennings Project for Journalists and the Constitution at the National Constitution Center last month hosted a discussion titled "The Constitution and the Long War" between General Jack Keane, retired four-star general and former vice chief of staff of the Army, Professor Bruce Ackerman (Yale), and U.S. Army Brigadier General H.R. McMaster.  The audio is here, under podcasts.



The discussion kicks off with the question whether the global struggle against terrorism is a "war"--and the constitutional implications of the answer.  Ackerman defends his view throughout that this is not a war--that it is a state of emergency--and gives his proposal (starting around 44.00, and again around 1:09.00 in the audio) that this emergency requires structural changes in the constitutional system to authorize the appropriate use of power to address it.  Ackerman argues particularly for a federal statute that would regulate a state of emergency and authorize, e.g., arrests with less than probable cause and detention of individuals engaged in terrorist acts.  This is also the thesis of his 2006 book Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism.


April 9, 2010 in Congressional Authority, Current Affairs, Executive Authority, News, Scholarship, War Powers | Permalink | Comments (3) | TrackBack (0)

Stevens' Anomaly: Rethinking Equal Protection and Affirmative Action

With Justice Stevens' announced retirement, it is a fitting time to consider his contribution to constitutional law, doctrinally, theoretically, and pedagogically. 

One of Stevens' contributions in the equal protection area is his famous "anomaly."  Dissenting in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), Stevens wrote:

the Court may find that its new "consistency" approach to race-based classifications is difficult to square with its insistence upon rigidly separate categories for discrimination against different classes of individuals. For example, as the law currently stands, the Court will apply "intermediate scrutiny" to cases of invidious gender discrimination and "strict scrutiny" to cases of invidious race discrimination, while applying the same standard for benign classifications as for invidious ones. If this remains the law, then today's lecture about "consistency" will produce the anomalous result that the Government can more easily enact affirmative-action programs to remedy discrimination against women than it can enact affirmative-action programs to remedy discrimination against African Americans - even though the primary purpose of the Equal Protection Clause was to end discrimination against the former slaves. When a court becomes preoccupied with abstract standards, it risks sacrificing common sense at the altar of formal consistency.

In other words, the combination of the "tiers" of scrutiny for equal protection with affirmative action doctrine allows the government to more easily assist those groups who the judiciary has deemed the least deserving of judicial protection. 

While Stevens was not alone in realizing this consequence, the clear discussion in his dissenting opinion in Adarand has been exceedingly useful in the classroom, not to mention formulating exam hypotheticals.


April 9, 2010 in Affirmative Action, Current Affairs, Equal Protection, Fourteenth Amendment, Gender, Interpretation, Race, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Stevens Announces Retirement


Justice Stevens' announcement of his retirement has been long anticipated.  This morning, CJ Roberts announced the retirement at the end of the present term.   As the NYT phrases it, the resignation of the "leader of the liberals" on the Court will engender a "confirmation battle" this summer over the new nominee.


April 9, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, April 8, 2010

How Democratic is the Constitution?

Loyola University (Chicago) School of Law is organizing a constitutional law colloquium titled How Democratic is the Constitution? on Friday and Saturday, November 5 and 6, 2010, at the Philip H. Corboy Law Center in Chicago.

Organizers Professors Alexander Tsesis and Michael Zimmer invite abstract submissions of 150 to 200 words from constitutional law professors interested in contributing to the current debates under the broad rubric of this topic.  The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.

The submission deadline is May 31, 2010; submit topics, abstracts, papers, questions, and comments to Program Administrator Carrie Bird at

Organizers look to bring together constitutional law scholars at all stages of their professional development to discuss projects, developments, and future work.  They hope to schedule presentations for all who submit and to group presenters by subject for intensive discussions and critique.


April 8, 2010 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Shesol on SCOTUSblog

Jeff Shesol will be on SCOTUSblog tomorrow (Friday, 4/9) at 2:00 p.m. Eastern for a half-hour live chat about his new book, Supreme Power: Franklin Roosevelt v. the Supreme Court.  We posted on Shesol's book here; his web-site is here.


April 8, 2010 in History, Scholarship | Permalink | Comments (0) | TrackBack (0)

Hate Speech (Song) Controversy in South Africa

A song of struggle against Apartheid or a song inciting racial violence?  That's the question being debated in the courts and in the press of South Africa.   In late March, the South Gauteng High Court reportedly ruled

that the famous "kill the boer" or "shoot the boer" is now illegal. The song that many believe lead to the murders of farmers in recent weeks as Julius Malema incited hatred against white people and "Boers" is now officially illegal and seen as hate speech. This comes after Willem Harmse, a Delmas businessman got a interdict against Mahomed Vawda from singing the "kill the boer" song. 

[The opinion is not yet available in printed form].  Then there was a reported inderdict regarding Malema (portrayed in the video below) also banning his singing of the song.  [The opinion is not yet available in printed form.]  According to BBC reports, the African National Congress, ANC, first disapproved the determination regarding the song, but has since called for a cessation of singing the song given acts of violence. 

The matter could be headed for South Africa's Constitutional Court.  South African ConLawProf Pierre deVos has a trenchant analysis of the constitutional arguments here and here.


April 8, 2010 in Cases and Case Materials, Comparative Constitutionalism, Current Affairs, History, International, Music, Race | Permalink | Comments (0) | TrackBack (0)

Women and the Supreme Court Bar: Panel at Georgetown

Justice Ginsburg, Karlan_Pamela Pamela Karlan (widely mentioned as a potential SCOTUS nominee and pictured right), Patricia Millett and Virginia Seitz will discuss Supreme Court practice and "take on the issue of gender diversity in the Supreme Court Bar, addressing obstacles to fuller participation by women and ways to increase the number of women lawyers in Supreme Court practice."

The panel is moderated by Pamela Harris, Executive Director, Georgetown Law Supreme Court Institute.

More information on today's event here.


April 8, 2010 in Conferences, Current Affairs, Gender, News, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 7, 2010

The State Constitutionality of Med Mal Damage Caps

The Georgia Supreme Court last month in Atlanta Oculoplastic Surgery v. Nestlehutt overturned the state medical malpractice noneconomic damage cap provision under the state constitutional right to trial by jury.  The provision limited noneconomic damages to $350,000.00, but the jury in the case awarded plaintiffs $900,000.00 for pain and suffering and another $250,000.00 for loss of consortium (in addition to $115,000.00 in economic damages for medical expenses).  Defendants challenged the award under the damage cap, but the court overturned the cap and ruled for the plaintiffs.

The court ruled that "at the time of the adoption of our Constitution in 1798, there did exist in the common law right to a jury trial for claims involving the negligence of a health care provider, with an attendant right to the award of the full measure of damages, including noneconomic damages, as determined by the jury."  (Slip Op. at 9-10.)  The damage cap violates this right, the court wrote, because it "clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function."  (Slip Op. at 10.) 

The ruling puts Georgia at odds with a half-dozen other states in which noneconomic damage caps have been upheld against state constitutional jury trial claims.  The Georgia court distinguished those rulings, however, writing that those states had less comprehensive constitutional jury trial provisions or that the courts in those states employed "unpersuasive reasoning reaching the opposite result."  (Slip Op. at 15, n. 8.)

The ruling may be a warning to those who advocate "tort reform" in medical malpractice: State constitutional rights and values may create a barrier to damage caps.  Here, the state constitutional right was to a jury trial, but the plaintiff also raised plausible state constitutional claims under separation-of-powers principles and equal protection.  (The court declined to address those claims, because it overturned the statute under the right to a jury trial.)  In other states, plaintiffs have challenged damage caps under state constitutional "open courts" provisions, which derive from the Magna Carta and guarantee that courts will be open, free, and available.  (See my article here for more on open courts and equal access to justice.)  Success has been spotty under these theories in the several states, but together these cases and state constitutional provisions offer a healthy reminder that access to the courts, with all that that entails, stands as an important countervailing state constitutional value against tort reform.


April 7, 2010 in Fundamental Rights, Recent Cases, State Constitutional Law | Permalink | Comments (4) | TrackBack (0)

Tuesday, April 6, 2010

Right To Intimate Association in Eleventh Circuit

Senior Judge Phyllis Kravitch (pictured left) authored a unanimous opinion for a panel of the Eleventh Circuit PKravitch Court of Appeals (h/t How Appealing) affirming summary judgment against a claim of a firefighter who was demoted because of his extramarital affair with another employee in a Fire Department in which such liaisons seemed rather common. 

What makes the relatively brief opinion in Starling v. Board County Commissioners of Palm Beach County interesting, however, is that the Eleventh Circuit assumed "arguendo" that there was a intimate right of association under the First Amendment.  The court ultimately found that this right was outweighed in the public employment context, applying the balancing test of Pickering v. Board of Education.   For analytic precedent, Starling cites the notorious Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1 1997) (en banc) in which the court upheld the withdrawal of an employment offer to Robin Joy Shahar from the Attorney General of Georgia, Michael Bowers [of Bowers v. Hardwick] because Shahar married her female partner.  Yet as Judge Tjoflat's concurring opinion in Shahar made clear, an intimate association claim partakes of both substantive due process and First Amendment doctrine. 

Thus, for practitioners, students, and theorists thinking about fundamental rights to sexuality under the due process clause, Starling may provide further support for first amendment grounding.


April 6, 2010 in Cases and Case Materials, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Privacy, Recent Cases, Sexuality | Permalink | Comments (0) | TrackBack (0)

Presidential Succession Conference at Fordham Law

"The Adequacy of the Presidential Succession System in the 21st Century: Filling the Gaps and Clarifying the Ambiguities in Constitutional and Extraconstitutional Arrangements" is the title of a Conference to be held at Fordham Law on April 16 and 17, 2010.  

The Twenty-Fifth Amendment proposed by Congress in 1965 250px-Gerald_Ford and later ratified has been invoked several times, perhaps most famously in the case of Gerald Ford (pictured right).   Yet ambiguities remain.  The Conference will address topics such issues as presidential invocation of the inability provision of the Twenty-Fifth Amendment to temporarily step down during moments of political crisis?; analysis of the constitutionality of the current Succession Act, which puts members of Congress in the line of succession; recommendations for handling a double vacancy in the Presidency and Vice Presidency and the constitutionality of current proposals for dealing with such a dilemma; important gaps and conflicts at various stages of transition (for example, disability or death prior to election or inauguration and potential conflict of interests arising in confirmation hearings of an appointed Vice President); as well as the constitutionality of informal—extra-constitutional and extra-statutory—arrangements between Presidents and their Vice Presidents, members of their cabinet and members of Congress.

Speakers include Birch Bayh, former Senator of Indiana and so-called father of the Twenty-Fifth Amendment, Akhil Amar, and Rose McDermott.

More information and registration available here.


April 6, 2010 in Conferences, Executive Authority, History, Interpretation | Permalink | Comments (0) | TrackBack (0)

Monday, April 5, 2010

Shapiro Offers to Debate Healthcare Anytime, Anywhere

Ilya Shaprio (Cato Institute) offers to debate the constitutionality of health care reform anytime, anywhere--just pay his travel expenses:

Shaprio claims to make his offer because he's heard that some groups have had a hard time finding anyone to make the constitutional case against health care reform.  This seems surprising--see our coverage of opponents, on constitutional grounds (Tenth Amendment, Commerce Clause, and other grounds), here, here, and here.


April 5, 2010 in Commerce Clause, Federalism, News, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Just Books at the Brennan Center and Wills's Bomb Power

The Brennan Center for Justice at NYU Law launched a new feature called Just Books.  The site contains book reviews of books related to constitutional law, author interviews, links, and the like.


One of the author interviews now on the site is with Garry Wills, author most recently of Bomb Power: The Modern Presidency and the National Security State


Here's a short excerpt from the interview that also summarizes the thesis of the book:

Wills:  After most wars, emergency powers are recanted, sometimes by the Supreme Court, which, for example, essentially said "well, it was understandable you broke the law, suspended habeas corpus, or interned Japanese Americans."  But after World War II, in the national security area, the state of emergency continued.  And the emergency power not only continued, they increased on the model of the Manhattan Project.

Most people don't remember the Manhattan Project as illegal through and through.  Yet it was.  It broke the Constitution, statutes, the military chain of command.  It used unauthorized monies.  It spied on American citizens and foreigners.  It set out to kill Werner Heisenberg in Europe.  It did all the things the CIA later do, and nobody recanted that.

We went from the emergency of the war to the emergency of the Cold War, and now into the emergency of the War on Terrorism.


April 5, 2010 in Scholarship, War Powers | Permalink | Comments (1) | TrackBack (0)