Saturday, June 18, 2011

WJP Rule of Law Index 2011

The World Justice Project recently released its Rule of Law Index 2011, a report measuring adherence to the rule of law in 66 countries.  We posted on the 2010 report here.



In addition to its expanded coverage--up from 35 countries in the 2010 Index--the 2011 Index includes some methodological changes and new data on transition of power, civil conflict, freedom of assembly and association, due process in administrative proceedings, and criminal recidivism.  The four "universal principles," however, remain (predictably) unchanged from the 2010 Index:

  • The government and its officials and agents are accountable under the law.
  • The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.
  • The process by which the laws are enacted, administered and enforced is accessible, fair, and efficient.
  • Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

Here's the Index's summary on the United States:

The United States obtains high marks in most dimensions of the rule of law.  The country stands out for its well-functioning system of checks and balances and for its good results in guaranteeing civil liberties among its people including the rights of association, opinion and expression, religion, and petition.  The civil justice system is independent and free of undue influence, but it remains inaccessible to disadvantaged groups (ranking 21st).  Legal assistance is expensive or unavailable (ranking 52nd), and the gap between rich and poor individuals in terms of both actual use of and satisfaction with the civil court system remains significant.  In addition, there is a general perception that ethnic minorities and foreigners receive unequal treatment from the police and the courts.



June 18, 2011 in Comparative Constitutionalism, International, News | Permalink | Comments (0) | TrackBack (0)

Justice Thomas' Ethics

A NYT report highlights Justice Thomas' ethical stance regarding the Pin Point, Georgia museum.

As we previously discussed, Supreme Court Justices are not bound by the usual code of conduct for federal judges, although Congress presumably has power to declare otherwise.

ClarenceThomas And perhaps Congress should act.

In addition to the problems with the Pin Point Museum funded by a private donor which discusses Justice Thomas while not exactly honoring him, and the various reports regarding Thomas' wife, the NYT reports this:

Justice Thomas’s gift acceptances drew attention in 2004, when The Los Angeles Times reported that he had accumulated gifts totaling $42,200 in the previous six years — far more than any of the other justices.  Since 2004, Justice Thomas has never reported another gift. He has continued to disclose travel costs paid by schools and organizations he has visited for speeches and teaching, but he has not reported that any travel was provided by Mr. Crow [the funder of the Pin Point musuem].

Travel records for Mr. Crow’s planes and yacht, however, suggest that Justice Thomas may have used them in recent years.

The NYT article is worth reading in full.

(h/t Atiba Ellis).


June 18, 2011 in Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Friday, June 17, 2011

A More Constitutional Military

Books ConLawProf Diane Mazur's recent book published by Oxford University Press, A More Perfect Military: How the Constitution Can Make Our Military Stronger argues that the military has become unmoored from constitutional constraints.   The Court, she argues, has not only engaged in military deference, but in military exceptionalism.

In an interview about the book, Mazur states "the military is most healthy when it respects constitutional values.  Unfortunately, since the end of the Vietnam draft, our civilian branches of government–the President, Congress, and the courts–have been trying to distance the military from the Constitution.  They assume that constitutional values get in the way of military effectiveness, but that’s not true."

Much of her book concerns the constitutional concerns of equality: how should the military deal with sexual minorities and with women within its ranks?   She provides concrete examples, but argues that the Court - - - in cases such as the unanimous opinion in  Rumsfeld v. FAIR (the Solomon Amendment case) - - - has impeded the military from diversifying.


June 17, 2011 in Books, Fifth Amendment, Foreign Affairs, Gender, Profiles in Con Law Teaching, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

More on Justices' Interviews

NPR's Morning Edition aired a story this week on Bryan Garner's recently posted interviews with U.S. Supreme Court Justices on legal writing and oral advocacy.


If you haven't yet read the transcripts or heard the interviews, check out Nina Totenberg's piece first.


June 17, 2011 in Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Kenyan High Court Appointees

The Kenyan Judicial Service Commission this week selected five candidates to serve on the country's first Supreme Court.  But the Federation of Women Lawyers and five other women lobby groups moved to halt the appointments because they violate the new Constitution's requirements for gender balance.


Kenyans approved their new Constitution last August in order to rein in historically expansive and abusive presidential authority through separation of powers, checks and balances, and other progressive rights-protecting features.  Chapter 10 sets up an independent judiciary, including, under Article 163, a Supreme Court comprised of seven members (a Chief Justice, a Deputy Chief Justice, and five other judges) with exclusive original jurisdiction to hear disputes related to presidential elections and mandatory appellate jurisdiction over all cases involving the interpretation of application of the Constitution.  (The Court also has discretionary appellate jurisdiction over other matters.)

The President appointed Dr. Willy Mutunga as Chief Justice and Ms. Nancy Baraza as Deputy Chief Justice.  The JSC selected the five other judges--four men and one woman.

The Federation of Women Lawyers filed an application to halt the JSC-approved appointments, however, because they violate the Constitution.  In particular, the Federation argues that the appointments violate Article 27(8), which requires the State to "take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender."  The Federation also argues that the appointments violate Article 172(2)(b), which says that the JSC "shall be guided by . . . the promotion of gender equality."


June 17, 2011 in Comparative Constitutionalism, Equal Protection, International, News | Permalink | Comments (0) | TrackBack (0)

Thursday, June 16, 2011

Administration's Answers on Libya

The Obama administration yesterday released a 32-page report, United States Activities in Libya (link courtesy of Foreign Policy), detailing the government's operations in that country, the administration's legal authorization for those operations, and the administration's communications with Congress.  The report comes on the heels of a lawsuit by a bi-partisan group in the House and the White House's Letter from the President on the War Powers Resolution.

Here's what the administration had to say about its legal authority--"Legal Analysis and Administration Support for Bipartisan Resolution," on page 25 of the report:

Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actioins, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad.  The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision.  U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo.  U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.

This section goes on to reiterate the administration's strong support for the Senate resolution "that would confirm that both branches are united in their commitment to supporting the aspirations of the Libyan people for political reform and self-government."

House Speaker John Boehner told reporters this morning that the report "didn't answer the question in my letter as to whether the Office of Legal Counsel agrees" that the Libyan operations are consistent with the WPR and do not require further consultation. 

Speaker Boehner is right: the report didn't say what the OLC thought about this.  Instead, the OLC memo on Libyan operations concluded that the President had constitutional authority to direct the use of force in Libya to protect sufficiently weighty national interests and that the President did not have to obtain prior congressional approval under the Declaration of War Clause (that is, that the Libyan operation was not a "war").  For very similar reasons, the report yesterday concluded that the Libyan operation was not a "hostility" under the WPR.

The OLC memo emphasized that the WPR doesn't detract from the President's war powers, and that the President has powers outside those specifically listed in the WPR to deploy armed forces:

As demonstrated by U.S. military interventions in Somalia, Haiti, Bosnia, and Kosovo, among many other examples, "the President's power to deploy armed forces into situations of actual or indicated hostilities is not restricted to the three categories specifically marked out by the Resolution"--[(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by an attack on the U.S.].

Memo at 8, n. 1 (quoting Proposed Bosnia Deployment, 19 Op. O.L.C. at 335).  Thus the administration's position must be that the Libyan operation is neither a "war" (under the Declaration of War Clause) nor a "hostility" (under the WPR), for the same reasons, but that the President has constitutional authority to direct it. 

The administration's position on the WPR resolution may not be the clearest--and Speaker Boehner and others may reasonably disagree with it--but there it is.


June 16, 2011 in Congressional Authority, Executive Authority, News, War Powers | Permalink | Comments (1) | TrackBack (0)

House Judiciary Committee Passes Balanced Budget Amendment

The House Judiciary Committee yesterday passed the balanced budget amendment, H.J. Res. 1, by a vote of 20-12.  The move clears the way for full House consideration of the measure, but The Hill reports that some supporters say that's premature.


The proposed amendment doesn't just require a balanced budget; it does much more:

  • It limits total federal expenditures for any fiscal year to 1/5 of GDP (unless 2/3 of each House agree to a higher limit);
  • It requires a 3/5 majority of each House to increase the debt limit;
  • It requires that the President's budget proposal be balanced; and
  • It requires a 3/5 majority of each House for any tax increase.

The proposed amendment has an out whenever the U.S. is engaged in a military conflict and a threat to national security.

The proposed amendment needs a 2/3 vote in the full House, a 2/3 vote in the full Senate, and ratification by 3/4 of the States before it would take effect.  This seems, well, unlikely.


[Image: CBO,]

June 16, 2011 in Congressional Authority, News | Permalink | Comments (0) | TrackBack (0)

The Tenth Amendment, Standing, and Criminal Conviction: Bond v. US Opinion

In a unanimous opinion the Court reversed the Third Circuit and held that a defendant has standing to raise a Tenth Amendment claim. 

The case involves the criminal conviction of Carol Anne Bond for a violation of 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court. 

As we noted in our discussion of the oral argument, this is no ordinary criminal appeal is evinced by the appearance of  Michael R. Dreedben, as Deputy Solicitor General, Department of Justice, "on behalf of the Respondent, in support of the Petitioner.”   If this is a case in which even the United States - - - who after all, prosecuted Ms. Bond - - - agrees with the defendant, then why is this case in the United States Supreme Court?  The problem is the Third Circuit opinion, which held that Bond does not have standing to raise a Tenth Amendment challenge to the statute and the split amongst the circuits of the issue.  The third Circuit stated it was “persuaded by the reasoning advanced by the majority of our sister courts and conclude that a private party lacks standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties.”

The standing rules at issue - - - the prudential rules rather than the Article III standing rules - - - are distilled in a single sentence from Tennessee Elec. Power Co. v. TVA, 306 U. S. 118 (1939): "“As we have seen there is no objection to the Authority’s operations by the states, and, if this were not so,the appellants, absent the states or their officers, have no standing in this suit to raise any question underthe amendment.”   Id. at 144.   In Bond, the Court states that the "sentence from Tennessee Electric that we have quoted and discussed should be deemed neither controlling nor instructive on the issue of standing as that term is now defined and applied."

The Court further notes:

There is no basis to support the Government’s proposed distinction between different federalism arguments for purposes of prudential standing rules. The princi-ples of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amendment, both are expressed by it. Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, see New York, 505 U. S., at 155–159, and action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States. See United States v. Lopez, 514 U. S. 549, 564 (1995). The unconstitutional action can cause concomitant injury to persons in individual cases.

Ginsburg wrote "separately to make the following observation. Bond, like any other defendant, has a personal right not to be convicted under a constitutionally invalid law."

As Supreme Court opinions go, this one is relatively brief.  It clarifies standing doctrine without changing the landscape.


June 16, 2011 in Opinion Analysis, Standing, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Juvenile Rights and Miranda

The Court in a 5-4 opinion in J. D. B. v. North Carolina today remanded the case to the state court instructing that a suspect's age - - - 13 - - - can be considered for purposes of determing whether a suspect is "in custody" for Miranda purposes.  The  other facts in the case include police officers going to the suspect's middle school rather than his home and the suspect being in a room with school officials and law enforcement.  Writing for the Court, Justice Sotomayor states, "It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing noreason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis." 

Lexington_NC_police_statue The precise issue had been broached but ultimately left open by a previous case, Yarborough v. Alvarado, 541 U. S. 652 (2004) because that case was decided under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d)(1), standard requiring the decision to be  an unreasonable application of clearly established Federal law, as determined by the Court, before it would be subject to constitutional remedy.

Sotomayor, joined by Kennedy, Ginsburg, Breyer, and Kagan, held that so long as the child’s age was known to the officer, or would have been objectively apparent to a reasonable officer, including age in the custody analysis is consistent with the Miranda test’s objective nature. This does not mean that a child’s age will be a determinative, or even a significant, factor in every case, but it is a reality that courts cannot ignore.   Most of the arguments in the case concerned whether "age" was an objective or subjective consideration.  Any subjective consideration, of course, would not only undermine the supposedly objective nature of Miranda, but would also mark the beginning of a slippery slope into considerations of other factors, such as a suspect's mental capacities.  Sotomayor' opinion avers:

Though the State and the dissent worry about gradations among children of different ages, that concern cannot justify ignoring a child’s age altogether. Just as police officers are competent to account for other objective circumstances that are a matter of degreesuch as the length of questioning or the number of officerspresent, so too are they competent to evaluate the effect of relative age. . . . The same is true of judges, including those whose childhoods have long since passed.  In short,officers and judges need no imaginative powers, knowledge of devel-opmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult.

The Court also decided another Criminal Procedure case today: Davis v. United States.  Davis involved the good faith exception to the exclusionary rule and the Court ruled it was applicable. The problem in Davis was that the police officers relied in good faith on the constitutionality of the procedure that was later deemed unconstitutional.

However, JDB is a decision worth noting beyond the Criminal Procedure realm because of what it says about the Court's approach to children's rights.  For the majority, it seems evident that there are very real differences between children and adults and failing to recognize those differences results in a denial to minors of the "procedural safeguards" - - - constitutional rights - - -afforded adults.

[image: Police Officer and Child, Lexington, North Carolina, via]

June 16, 2011 in Criminal Procedure, Fifth Amendment, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Bloomsday and Free Speech

June 16th is referred to as Bloomsday; all of the events in James' Joyce Ulysses, featuring the characters Leopold and Molly Bloom, occur on June 16.  The event is celebrated in various ways, including this year tweeting the lengthy novel bit by bit, albeit abridged. 483px-Djuna_Barnes_-_Joyce

For free speech afficionados, the novel is best known for its attempted censorship.  In United States v. One Book Called “Ulysses,” 5 F. Supp. 182 (S.D.N.Y. 1933), affirmed by 72 F.2d 705 (2d Cir. 1934), the government brought a forfeiture case against  the book itself to ban its importation.  Professor Stephen Gillers extensively discusses the case in a 2007 article, A Tendency to Deprave and Corrupt: The Transformation of American Obscenity Law from Hicklin to Ulysses II, published at 85 Washington University Law Review 215, available on ssrn.

The opinion issued by respected and erudite federal district judge John Munro Woolsey was used as a preface in editions of the book for 50 years.  But as Gillers argues:

"The opinion is not recognizable as law. It proves why the law should mostly stay out of the censorship business. Twenty-five years later, Learned Hand, one of three judges who heard the government’s appeal from Woolsey’s decision, told his biographer, Gerald Gunther, that Woolsey thought himself “literary” and “That’s a very dangerous thing for a judge to be. I didn’t say it was a bad quality; I said it was a dangerous one . . . .”

For those interested in the British censorship of the novel, Carmelo Medina Casado’s article, Sifting through Censorship: The British Home Office "Ulysses" Files (1922-1936), in the James Joyce Quarterly 37 (3/4) 479-508 (2000) is a must read. 


[image: sketch of James Joyce by Djuana Barnes via]

June 16, 2011 in Cases and Case Materials, First Amendment, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 15, 2011

Lawmakers Sue President to Stop Military Operations in Libya

A bipartisan group of House lawmakers led by Rep. Dennis Kucinich (D., Ohio) today sued the President and Secretary of Defense to stop U.S. military operations in Libya.  The complaint in Kucinich v. Obama alleges that the President exceeded his authority under Article II, violated congressional power to declare war under Article I, violated the War Powers Resolution, and misused federal funds in violation of Articles I and II.  The Plaintiffs seek declaratory relief that the President's actions are unconstitutional and injunctive relief to stop the U.S. military operations in Libya.  Here's the press release.  We previously posted on constitutional issues involved in U.S. military efforts in Libya here, here, and here.


In related news, the White House today released a Letter from the President on the War Powers Resolution.  The Letter, which updates Congress on a variety of different engagements, sets out the administration's position on the Libyan campaign--that this isn't a "war."  Check it out:

As I reported on March 21, and at my direction, consistent with a request from the Arab League, and as authorized by the United Nations Security Council . . . U.S. military forces commenced operations on March 29, 2011, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya and to protect the people of Libya from the Qadhafi regime. . . .  By April 4 . . . the United States had transferred responsibility for the military operations in Libya to NATO and the U.S. involvement has assumed a supporting role in the coalition's efforts. . . .  With the exception of operations to rescue the crew of a U.S. aircraft on March 21, 2011, the United States has deployed no ground forces to Libya.

 Here's what the complaint says about some of these points, including the U.N. Security Council resolutions, which were a large part of the OLC's analysis on why the President had authority to wage the Libyan campaign:

74.  A U.S. resolution does not abrogate or change the obligation of President Obama to obtain a declaration of war under Article I, Section 8, Clause 11 of the Constitution. 

75.  The Obama administration has denied that the Libyan operations aare at a war and, on March 24, 2011, White House Spokesman Jay Carney stated that the administration had defined these combat operations as "a time-limited, scope-limits military action."

76.  "Time-limited, scope-limited" military actions are not referenced in the U.S. Constitution or the constitutional convention debates.


June 15, 2011 in Congressional Authority, Foreign Affairs, International, Interpretation, Jurisdiction of Federal Courts, Opinion Analysis, Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Jotwell Equality Section Launched: Kim Brooks on Mental Disability and Criminal Justice

 "Do Not Cease from Exploration: A Report at the Nexus of Mental Health and the Criminal Justice System," is the just published  "jot" by Dean Kim Brooks (pictured right) of Dalhousie University in Canada. 

Brooks And, as Dean Brooks notes, the piece she has selected, Judge Anne Derrick’s In the Matter of a Fatality Inquiry Regarding the Death of Howard Hyde, Report Pursuant to the Fatality Investigations Act (2010), "pushes at the boundaries of what most of us would consider scholarship."  However, Brooks contends that it is "the most interesting piece of scholarly work motivated by equality considerations that has crossed my desk in the last several months."  Indeed, Brooks argues that "the report’s 80 recommendations are essential ground for equality scholars with an interest in policy-relevant scholarship." 

With this selection, Brooks addresses aspects of equality that tend to be side-lined and in a form that is often neglected.  It's a fitting start for the new section on Equality from Jotwell: The Journal on Things We Like (Lots).   Brooks' co-editor of the Equality Section is Professor Sonia Lawrence, Director, Institute for Feminist Legal Studies York University – Osgoode Hall Law School.  They've assembled a crew of contributing editors (and I feel humbled to be included) from around the globe, so the work highlighted is sure to transcend the usual "equal protection doctrine revisionings" that have become ubiquitous in US scholarship.  The Equality "jots" will run monthly, but in the interim Jotwell has a great sections on Constitutional Law, Jurisprudence, and other areas of law.


June 15, 2011 in Courts and Judging, Criminal Procedure, Disability, Equal Protection, International, Scholarship, Weblogs | Permalink | Comments (0) | TrackBack (0)

Magna Carta Day

June 15th is the anniversary of the signing of the Magna Carta, in 1215 at Runneymeade, England.

The British Library site on the Magna Carta has a terrific "Magna Carta Viewer" with the original text, a Latin transcription, and an English translation. 


The most famous (and still in effect) provision is the ancestor of the US Constitution's due process clause:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

[image: Magna Carta from the United States National Archives via]

June 15, 2011 in Due Process (Substantive), History, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 14, 2011

D.C. District Enjoins Restrictions on Independent PACs

Judge Rosemary M. Collyer (D.D.C.) today granted a preliminary injunction in Carey v. FEC to enjoin the Federal Election Commission from enforcing campaign contribution restrictions on the National Defense Political Action Committee (NDPAC), an independent PAC.  Judge Collyer ruled that NDPAC's likelihood of success on the merits was high, because the limits violate the First Amendment under Citizens United v. FEC and the D.C. Circuit's rulings in EMILY's List v. FEC (2009) and v. FEC (2010).


NDPAC challenged the campaign contribution restrictions in 2 U.S.C. Secs. 441a(a)(1)(C) and 441a(a)(3).  Section 441a(a)(1)(C) says that no person shall make contributions "to any other political committee . . . in any calendar year which, in the aggregate, exceed $5,000."  Section 441a(a)(3) provides:

During the period which begins on January 1 of an odd-numbered year and ends on December 31 of the next even-numbered year, no individual may make contributions aggregating more than -

(A) $37,500, in the case of contributions to candidates and the authorized committees of candidates;

(B) $57,500, in the case of any other contributions, of which not more than $37,500 may be attributable to political committees which are not political committees of national political parties.

Neither provision distinguishes between independent PACs (on the one hand) and PACs that are associated with, or channel money to, a candidate or a party (on the other). 

NDPAC proposed to segregate its contributions into two accounts--one for its independent expenditures (which would not be subject to these limits) and one for funeling funds to candidates or parties (which would be subject to these limits).  The FEC balked and would have required that NDPAC establish a new separate PAC to handle its hard money contributions.

Judge Collyer ruled that the case was governed by Citizens United, EMILY's List, and  She applied strict scrutiny to the contribution limits and held that they did not serve a compelling government interest for independent PACs (because there's no concern over quid pro quo corruption with an independent PAC) and that in any event they weren't narrowly tailored (because NDPAC's preferred solution of separating its bank accounts was a less restrictive way to satisfy any government interest).  She held that NDPAC therefore has a strong likelihood of success on its claim that contribution limits for an independent PAC violate the First Amendment.

The extension of Citizens United to independent PACs, which do not raise the same kind of concerns about quid pro quo corruption that, say, candidate-affiliated PACs raise, is hardly a surprise.  The interesting part of this case, instead, is the court's preference for NDPAC's solution (separate bank accounts--one for hard money contributions and one for soft money contributions) over the FEC's apparently preferred solution (separate PACs--one for hard money contributions and one for soft money contributions).  Judge Collyer ruled that the FEC's solution was overly burdensome in light of NDPAC's simpler, easier solution.  The analysis, if unchanged beyond the preliminary injunction, only makes it easier for hybrid PACs to operate and to accept unlimited contributions for independent expenditures: they'd just need to set up a separate bank account.


[Image: Reforme des differents droits feodaux et de la dime. Le 11 aout 1789. Library of Congress]

June 14, 2011 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Speech | Permalink | Comments (0) | TrackBack (0)

Motion to Vacate Judgment based on Disqualification of Proposition 8 Judge, Vaughn Walker, Denied

United States District Judge James Ware, who assumed the case of Perry v. Schwarzenegger (now Perry v. Brown) after the retirement of Judge Vaughn Walker, has issued his opinion on the motion to vacate Walker's judgment that California's Proposition 8 is unconstitutional.  Walker issued his opinion after an extensive trial in January 2010.

JUDGE As expected given the clear state of the law, Judge Ware denied the motion.  As Judge Ware's opinion stated,  "The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself,"  citing, Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 660 (10th Cir. 2002); MacDraw, Inc. v. CIT Group Equip. Financing, Inc., 138 F.3d 33, 37 (2d Cir. 1998); Blank v. Sullivan & Cromwell, 418 F. Supp. 1, 4 (S.D.N.Y. 1975); Feminist Women’s Health Center v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995); United States v. Alabama, 828 F.2d 1532,1541-42 (11th Cir. 1987); In re City of Houston, 745 F.2d 925, 931 (5th Cir. 1984).

The question of personal bias based on identity rising to the level mandating recusal is a fraught one.  Indeed, it is usually persons who have not traditionally been members of the judiciary who are most likely to be perceived as biased.  Professor Reg Graycar's work, which we discussed here, provides extensive examples.  Judge Ware expressly acknowledges this situation: "it would not be reasonable to regard a fact as bringing a judge’s impartiality into question if doing so would institute a “double standard for minority judges” whereby the fact that a judge is gay, or black, or female would “raise doubts about [that judge’s] impartiality.”  (quoting United States v. Alabama, 828 F.2d at 1542).

Judge Ware ultimately concludes:

the presumption that “all people in same-sex relationships think alike” is an
unreasonable presumption, and one which has no place in legal reasoning. The presumption that
Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.

Judge Ware does not broach the subject of whether any judge would be impartial in the Proposition 8 case, given the arguments that the Defendant-Intervernors have advanced.  Specifically, in light of the Defendant-Intervernors' arguments that same-sex marriage is injurious to opposite-sex marriage, presumably anyone who had entered into an opposite-sex marriage - - - or who might be eligible to enter into an opposite-sex marriage - - - would be biased.

[image: A Judge, Wenzel Hollar, circa 1650)


June 14, 2011 in Courts and Judging, Family, Gender, News, Opinion Analysis, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)

Bankruptcy Judges in California Declare DOMA Unconstitutional

The United States Bankruptcy Court for the Central District of California has allowed a same-sex married couple to proceed with their federal bankruptcy action as a married couple, despite the federal Defense of Marriage Act (DOMA). 

Bankruptcy code


In an opinion signed by 20 bankruptcy judges (a vast majority of the bankruptcy judges in the district), the judges concluded:

The Debtors have demonstrated that DOMA violates their equal protection rights
afforded under the Fifth Amendment of the United States Constitution, either under
heightened scrutiny or under rational basis review. Debtors also have demonstrated
that there is no valid governmental basis for DOMA. In the end, the court finds that
DOMA violates the equal protection rights of the Debtors as recognized under the due
process clause of the Fifth Amendment.

The judges discuss Attorney General Holder's letter regarding the unconstitutionality of DOMA, but the opinion has its own equal protection analysis, discussing both heightened scrutiny and rational basis.

(h/t Sara Pearl Bird)
[image of bankruptcy code in USCA via]


June 14, 2011 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fifth Amendment, Fundamental Rights, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Defining Terrorism: Sudha Setty on the War on Terror

The War on Terror obviously requires a definition of "terror" and "terrorism."  Unlike the definitional challenges we discussed yesterday, it is difficult to imagine any Justices of the United States Supreme Court consulting a dictionary to elucidate "terrorism."   Yet perhaps they should.  For, as Professor Sudha Setty SUDHASETTY02 (pictured left) argues, the meaning of terrorism is far from clear and there is a "definitional creep" which results in loss of individual rights.

Setty's article, What's in a Name? How Nations Define Terrorism Ten Years After 9/11, forthcoming in University of Pennsylvania Journal of International Law, available on ssrn, compares the definitional quagmire in United States law, as well as in United Nations documents, and in Great Britain and India. 

Setty's article considers the challenges of relying on what she calls "an incomplete and piecemeal definition of terrorism" at the United Nations level in conjunction with the mandate for robust counterterrorism measures in United Nations member states.  The article then examines how the United States, United Kingdom, and India have developed their current legal definitions of terrorism, the application, and the underlying value judgments and policies.  

Without being exhaustive, Setty is comprehensive.  The discussion of the various statutory schemes is excellent and her own analysis cogent.  The comparative approach of the article should be of interest not only to ConLawProfs teaching or writing in the area of comparative constitutional law, but anyone working on US national security issues because of her illuminating comparisons, especially the work of Lord Carlile reviewing the British legislation.


June 14, 2011 in Comparative Constitutionalism, Executive Authority, Foreign Affairs, Fundamental Rights, Scholarship, State Secrets | Permalink | Comments (1) | TrackBack (0)

Monday, June 13, 2011

Dictionaries as Legal Authority?

As Adam Liptak points out in his NYT column, the use of dictionaries in United States Supreme Court opinions is "booming."  Liptak refers to Justice Breyer's criticism of any reliance on dictionary definitions of the word "license" in his dissenting opinion in Chamber of Commerce v. Whiting last week, even as Breyer's opinion for the Court in Fowler v. United States, issued the same day, refered to the dictionary (albeit the OED) to determine the meaning of "prevent."

JKirchmeier Liptak quotes Professor Jeffrey Kirchmeier of CUNY School of Law (pictured right) and Samuel Thumma for their recently published "study" in Marquette Law Review, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94 Marq. L. Rev. 77 (2010), available on ssrn and from the law review.   The article by Kirchmeier and Thumma builds on their previous work,  Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 BUFF. L. REV. 227 (1999) and  Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 GREEN BAG 51 (2001) (both available on ssrn).

For originalists, resort to earlier dictionaries may seem to make sense - - - word usage changes, after all - - - but as Kirchmeier and Thumma point out, dictionaries were once devoted to prescriptive meanings rather than actual usage.  Moreover, not all dictionaries are created equal, then or now.   Kirchmeier and Thumma demonstrate that there is a great deal of randomness in dictionary choices by the Justices.

The 2010 article and the previous ones employ a mix of theoretical analysis and quantative analysis.  However, the pieces also include amazing appendices.  The 2010 article analyzes the approximately 300 words/phrases the Court cited a dictionary to define from the 2000-1 Term to the 2009-10 Term.  It includes three appendices of cases from the United States Supreme Court: (1) words and phrases defined by the Court (Appendix A); (2) Justices citing to dictionaries, including their frequency of use and which dictionaries are used (Appendix B); and (3) dictionaries cited by the Court (Appendix C).

Ultimately, Kirchmeier and Thumma argue that the Court should clarify some standards for the use of dictionaries.  Until then, Kirchmeier and Thumma provide excellent analysis - - - and useful fodder for scholarship and teaching.


June 13, 2011 in Courts and Judging, Interpretation, Scholarship, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (1) | TrackBack (0)

Third Circuit En Banc, The Schoolhouse Gates, My Space, and the First Amendment: Opinions

Today, the Third Circuit en banc has rendered its  opinion in JS v. Blue Mountain Sch. Dist. and its opinion in Layshock v. Hermitage Sch. Dist., a year after the en banc oral arguments.  The cases involve two conflicting panel decisions rendered on the same day in February 2010. 

The en banc court has held that school discipline of the students in both cases violated the First Amendment. 

Both controversies involve students who, while off school premises, used a social networking site - - - - - - to malign their principals by creating false profiles.  Both students were suspended and brought First Amendment challenges.  In JS, 593 F.3d 286 (3d Cir. 2010), the Third Circuit panel had seemed quite worried about the potential for disruption  and was “sufficiently persuaded that the [my space] profile presented a reasonable possibility of a future disruption, which was preempted only by [the principal’s ] expeditious investigation of the profile, which secured its quick removal, and his swift punishment of its creators.”  The panel upheld the school action against the middle school student.  On the other hand, in Layshock, 593 F.3d 249 (3d Cir. 2010), which involved a high school student, the district judge had found there was no nexus between the profile of the principal and any school disruption; the school district did not appeal that portion of the ruling.

As we noted last year, it seemed that the two cases could both be affirmed only if the en banc court engaged in tortuous reasoning.  Instead, the en banc court applied the same principle in both cases - - - the out-of-school speech was protected by the First Amendment. Myspace

Thus, the en banc court reversed the decision in J.S.:  "Because J.S. was suspended from school for speech that indisputably caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school, the School District’s actions violated J.S.’s First Amendment free speech rights."  The en banc opinion carefully considered the substantial disruption requirement of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503(1969), found that it was not met, and that any exeception under Bethel School District v. Fraser, 478 U.S. 675 (1986) was not applicable. 

This opinion, joined by eight judges, occupies the middle ground.  Five judges concurred with the judgment, but would have held that out of school speech cannot constitutionally be subject to school discipline: "the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large."

Six judges dissented, arguing that the decision "severely undermines schools' authority to regulate students who “materially and substantially disrupt the work and discipline of the school,” citing Tinker.  The dissent agreed "with the majority‟s apparent adoption of the rule that off-campus student speech can rise to the level of a substantial disruption," it disagreed "with the Court's application of that rule to the facts of this case," and accused the majority of misconstruing the facts.  

The en banc decision in Layshock, affirming the panel, is substantially less divisive.  There is no dissenting opinion, and only two judges - - - Jordan and Vanaskie, both of whom were dissenting in J.S. - - - write separately to concur.  The point of their concurrence is explicitly stated:

Our Court today issues en banc decisions in two cases with similar fact patterns. In both the case presently before us and in J.S. v. Blue Mountain School District, No. 08-4138, we are asked whether school administrators can, consistent with the First Amendment, discipline students for speech that occurs off campus. Unlike the fractured decision in J.S., we have reached a united resolution in this case, but there remains an issue of high importance on which we are evidently not agreed and which I note now, lest there be any misperception that it has been resolved by either J.S. or our decision here. The issue is whether the Supreme Court‟s decision in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), can be applicable to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.

Despite this minority view that there is some room for school officials to discipline students for out-of-school speech without violating the students' First Amendment rights, it most likely would have to be a fairly extreme case that would warrant school discipline for out of school speech.   Myspace - - - or facebook - - - antics that insult principals do not seem sufficiently extreme.



June 13, 2011 in Cases and Case Materials, Courts and Judging, First Amendment, Opinion Analysis, Speech, Web/Tech | Permalink | Comments (2) | TrackBack (0)

Legislative Vote is not Protected Speech, Court Rules

The Supreme Court ruled today in Nevada Commission on Ethics v. Carrigan that a legislative vote is not protected speech under the First Amendment and that a state recusal statute therefore did not violate the Constitution.

The ruling leaves untouched the widespread practice in states and Congress to require legislators to recuse themselves from voting when they have a conflict of interest.  The Nevada law at issue here reached farther than most--perhaps any--other recusal law.  And so the ruling, unanimous on the core holding that recusal laws do not violate the First Amendment, gives wide latitude to states and Congress in their efforts to enact and enforce aggressive and expansive recusal laws.

The case involved Nevada's Ethics in Government Law, which requires public officials to recuse themselves from voting on, or advocating the passage of or failure of, "a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by . . . [h]is commitment in a private capacity to the interests of others."  Under the Law, such commitment includes, e.g., a member of the officer's household or the officer's relative and--at issue here--"[a]ny other commitment or relationship that is substantially similar."

Petitioner Michael Carrigan was an elected member of the Sparks City Council.  As a Commissioner, Carrigan voted to approve an application for a hotel and casino project, the "Lazy 8."  But, as it turned out, Carrigan's long-time friend and campaign manager, Carlos Vasquez, was a paid consultant for the Red Hawk Land Company, which proposed the Lazy 8 project and would benefit from it.  Thus the conflict.


Before the vote, Carrigan consulted with the City Attorney, who advised him that disclosing the relationship would satisfy his obligations under the Law and that he could go ahead and vote on the measure.  But after Carrigan voted, the Nevada Commission on Ethics initiated an investigation and found that Carrigan violated the Law. 

Carrigan sued in state court, arguing that the Law violate the First Amendment.  A divided Nevada Supreme Court agreed, applied strict scrutiny, and ruled the Law unconstitutionally overbroad.

The Supreme Court reversed.  In a unanimous opinion by Justice Scalia, the Court held that the Law did not violate the Speech Clause in the First Amendment.  All but Justice Alito joined Justice Scalia's opinion that Carrigan's legislative vote wasn't even protected speech; Justice Alito concurred in part and concurred in the judgment, but wrote that Carrigan's legislative vote was speech (but that the Law did not violate the First Amendment).

Justice Scalia wrote that early congressional recusal laws and rules--including laws and rules that were in place when Congress voted on the First Amendment--along with the absence of any objection to such laws on speech grounds suggest that recusal laws are consistent with the First Amendment.  Moreover, states have a long tradition of enacting recusal laws. 

Justice Scalia wrote that Carrigan's vote wasn't speech, because he was simply channeling the will of his constituents (and not engaging in an independent expressive act):

[A] legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal.  The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. . . .  In this respect, voting by a legislator is different from voting by a citizen.  While "a voter's franchise is a personal right," "[t]he procedures for voting in legislative assemblies . . . pertain to legislators not as individuals but as political representatives executing the legislative process.

Op. at 8.

Justice Alito concurred in the judgment, but disagreed that a legislative vote isn't speech.  Referencing Doe v. Reed (2010), holding that disclosure of signatures on referendum petitions does not violate the First Amendment, Justice Alito wrote,

Just as the act of signing a petition is not deprived of its expressive character when the signature is given legal consequences, the act of voting is not drained of its expressive content when the vote has a legal effect.  If an ordinary citizen casts a vote in a straw poll on an important proposal pending before a legislative body, that act indisputably constitutes a form of speech.  If a member of the legislative body chooses to vote in the same straw poll, the legislator's act is no less expressive than that of an ordinary citizen.  And if the legislator then votes on the measure in the legislative chamber, the expressive character of that vote is not eliminated simply because it may affect the outcome of the legislative process.

Op. at 3 (op. of Justice Alito).  But Justice Alito came to the same result as the others--that the recusal law did not violate the First Amendment--because of Justice Scalia's evidence from early Congresses and from state practices. 

Justice Kennedy concurred with Justice Scalia's opinion but wrote separately to warn that the Nevada Law could be applied to restrict or to chill protected speech and association.  But the problems he raised were not before the Court.


[Image: Sparks City Hall, City of Sparks web-site]

June 13, 2011 in Association, Cases and Case Materials, Elections and Voting, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)