Saturday, January 30, 2010

Patricia Williams on Citizens United and Corporate Personhood

Professor Patricia J Williams, author of the groundbreaking essay "On Being the Object of Property," has a few things to say about corporations as persons in Citizens United v. FEC.


In a column forthcoming in The Nation, she provides this historical and nonconstitutional perspective:

In 1935 the great legal realist philosopher Felix S. Cohen wrote a wonderfully illuminating article called "Transcendental Nonsense," in which he debunked (at least for that generation) the notion of corporations as persons. Cohen challenged the reasoning of the Court of Appeals of New York when it asked "Where is the corporation?" in a decision about the proper venue for a suit lodged in the State of New York against the Susquehanna Coal Company, a Pennsylvania corporation. "Nobody has ever seen a corporation," Cohen pointed out. "What right have we to believe in corporations if we don't believe in angels? To be sure, some of us have seen corporate funds, corporate transactions, etc. (just as some of us have seen angelic deeds, angelic countenances, etc.). But this does not give us the assume that it travels about from State to State as mortal men travel."  Cohen denounced such thinking as essentially "supernatural."

More commentary on the opinion is collected here.


January 30, 2010 in Cases and Case Materials, Fourteenth Amendment, History, Interpretation | Permalink | Comments (2) | TrackBack (0)

Friday, January 29, 2010

Perry v. Schwarzenegger, Prop 8 Trial RECAP

Wednesday, January 27, 2010

Perry v. Schwarzenegger, Prop 8 Trial Evidence Ends

The trial proceedings of the Proposition 8 trial ended with the judge's compliments, familiar to anyone who has ever been involved in a federal trial, if slightly modified in this situation:

THE COURT:  Well, I want to extend my congratulations to the lawyers in the case for, obviously, a fascinating case.  Extremely well-presented on both sides. Obviously, there are some old hands in the courtroom in this proceeding.  But I have been particularly struck by the very fine work of many of the younger lawyers in the case, both here in the courtroom and, I'm sure, behind the scenes.

It really -- the old hands should take great pride and pleasure in the younger colleagues that you've worked with.  They have done a splendid job, and so you have much to be pleased with. And I would just like to take a moment to personally congratulate you and tell you what a good job you've all done.

After thank-you responses from Cooper, Boutrous, and Boies, the “proceedings” of the so-called “Proposition 8” trial were adjourned at twelve noon, on Wednesday January 27, 2010, after twelve (or eleven and a half) days and almost 3,000 pages of transcript, available here.

The  trial had resumed Monday (our last post here) with evidentiary questions and the plaintiffs’ concluding their case with the introduction and playing of videos of simulcasts from the Proposition 8 sponsors,, in which the well-known analogies of same-sex marriage to polygamy and bestiality were featured, as well as the less well-known analogy of same-sex marriage to the World Trade Center attacks.

Then the defendant-proponents presentation began.  (As a reminder, the defendants presenting are not the named defendants of the state of California, but the proponents of the Proposition 8 ballot initiative.) The Picture 3Kenneth Miller (pictured left) associate professor in Government at Claremont McKenna  College.  Miller, who also has a law school degree, is the author of Direct Democracy and the Courts, published last year by Cambridge University Press.  The book asks the very question that is at the heart of the litigation: "Who should have the last word on fundamental policy issues? This book analyzes the rise of two contenders – the people, through direct democracy, and the courts."   The cross examination of Miller by Boies was extensive, centering on Miller's knowledge of LGBT issues and how much such issues have played a part in Miller's work, as well as surfacing some of Miller's criticisms of initiative processes.  

By Tuesday, Blankenhorn the Proposition 8 proponents called their second and final witness, David Blankenhorn, (pictured right) the president Institute for American Values and author of Fatherless America. Blankenhorn's testimony on direct was directed to the issue of the universality of opposite sex marriage and the effect on marriage of allowing same-sex couples to marry.  The cross-examination, again by Boies, began late in the day and continued on Wednesday morning. By all accounts this was a rather testy cross-examination, with questions regarding Blankenhorn's qualifications, his knowledge of the literature, and the specificity of his conclusions regarding the effects on traditional marriage.

The closing arguments remain to be scheduled.


January 27, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, News, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 26, 2010

Sandra Day O'Connor on Judicial Campaign Spending

Sandra_day_oconnor_lg The Caperton v. Massey saga is cause for retired Justice O'Connor's concern over the Court's recent decision in Citizens United v. FEC.  According to a report in the Washington Post this evening by Robert Barnes,  O'Connor told law students at Georgetown:

    "In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon."

O'Connor, however, didn't necessarily limit her criticism to judicial campaigns.  Citizens United rejected precedents such as McConnell v. FEC, and Barnes quotes O'Connor as stating: "Since I was one of several authors" of the McConnell opinion, "if you want my legal opinion, you can go read it." The NYT has a similar report, adding that unlimited campaign spending might result in "mutually assured destruction."

Not necessarily related to campaign spending or judicial elections, O'Connor also stated that she doesn't worry about her decision in Bush v. Gore. 

However, in an op-ed in the Los Angeles Times, ConLawProf and now Dean at UC-Irvine School of Law Erwin Chemerinsky linked Bush v. Gore and Citizens United, characterizing both opinions as conservative judicial activism.


January 26, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Elections and Voting, News | Permalink | Comments (3) | TrackBack (0)

Justice Bertha Wilson

9780774817325 Bertha Wilson was the first woman appointed to the Supreme Court of Canada, sworn in on March 30, 1982, less than three weeks before the Charter of Rights and Freedoms became a centerpiece of Canadian Constitutional law.  Wilson's career on the Court before she retired in 1991 would engage with many constitutional controversies in Canada.

Justice Bertha Wilson: One Woman's Difference is an important new anthology, edited by Professor Kim Brooks of the Faculty of Law at McGill University. Brooks' introduction to the volume is available on ssrn. The collection provides perspectives on Bertha Wilson's judicial career and explicit interrogations of the relevance of gender to the judiciary.

For Americans - - - the third woman on our United States Supreme Court having been appointed last summer - - - the Canadian experience provides a much richer data base for making arguments about gender on the Supreme Court.  While Justice Bertha Wilson was appointed six months later than SCOTUS' first woman justice, Sandra Day O'Connor, the Supreme Court of Canada quickly surpassed SCOTUS in the number of women justices:  Madame Justice Claire L'Heuerux-Dube was appointed in 1987, with woman justices appointed in 1989, 1999, 2002, and two in 2004.  The Chief Justice of the Supreme Court of Canada is now the Madame Chief Justice Beverly McLachlin and four of the nine justices are women.   The ratio on Australia's High Court is similar.


January 26, 2010 in Books, Comparative Constitutionalism, Gender, History, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 25, 2010

Perry v. Schwarzenegger, Prop 8 Trial Resumes Today

The challengers to the constitutionality of California's Proposition 8 are expected to rest their case today after almost two weeks of trial. (Our last post, with previous trackbacks including a primer, is here).

Transcripts of the first nine days are here.  Great coverage from our colleague Steve Sanders at Sexual Orientation Prof Blog here.

Last week saw witnesses including:L_badgett

*    Jerry Sanders, Republican mayor of San Diego, whose testimony (reiterated in his HuffPo column) included discussions about his lesbian daughter who married her partner in Vermont last year;

*    M.V. Lee Badgett, (pictured left) Professor of Economic at Amherst, and author of When Gay People Get Married, whose testimony included the economics of marriage and whether same-sex marriage would have a harmful effect, including an economic effect on opposite-sex marriage.

*    Ryan Kendall, presently employed in law enforcement, testified regarding his family's hostility toward his sexuality. His testimony, admitted over defense objection, was that his family discovered his sexuality when he was 13, forced him to undergo "conversion therapy" to change his sexuality, and became increasingly hostile when the therapy was unsuccessful, causing him to feel suicidal. Segura

*    Gary Segura, Professor of Political Science and chair of Chicana/o Studies at Stanford, (pictured right) testified that GLBT people do not possess a meaningful degree of political power, including stating that religion was a major obstacle to GLBT political advancement and that President Obama was not a reliable ally of GLBT people. On cross-examination, the attorney defending Prop 8 played a video of Obama. Interestingly, at the end of Segura's testimony, Judge Walker reportedly asked Professor Segura whether losing elections or failures to get legislation passed denotes political powerlessness.

*    Hak-Shing William Tam, called by the challengers and cross-examined by Boise as an adverse witness, testified regarding his views of homosexuality, including its link to pedophilia and as destructive to Asian families, as reasons for his activism in favor of Prop. 8. Questioning from the proponents of Prop. 8 sought to distance Tam from

*    Gregory Herek, Professor of Psychology at UC-Davis, was the witness on Friday. He testified on direct that sexual orientation is not chosen and is stigmatized. The cross-examination of Hereck lasted more than five hours, with some discussion of Sigmund Freud's theories.

Also admitted were video depositions of Professors Katherine Young and Paul Nathanson, both at McGill University and co-authors of Legalizing Misandry: From Public Shame to Systemic Discrimination Against Men.  They were originally scheduled to be witnesses for the defendants of Proposition 8.   Transcript excerpts here and here, video excerpts here and here.

If, as expected, the Prop 8 challengers rest their case today, and however quickly the Prop 8 defense attorneys complete their case, a resolution is not expected soon.  Judge Walker is reportedly expected to schedule the closing arguments for several weeks after the trial concludes. 


January 25, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Sunday, January 24, 2010

Schwinn in Jordan

Jordan-flag ConLawProf Blog's own Steven Schwinn is in Amman, Jordan this week with his colleague Mark Wojcik, both from John Marshall School of Law.  

 As Legal Writing Prof Blog notes, they'll be leading a one-week ABA Workshop on Teaching Essential Legal Skills -- Legal Writing and Analysis. Their audience is law professors from Egypt, Iraq, Jordan, Lebanon, Saudi Arabia, and other countries in the Middle East. 


January 24, 2010 in Conferences, Foreign Affairs, Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)