February 19, 2011
Can Congress Regulate Supreme Court Ethics?
At least one representative thinks so. Chris Murphy is suggesting legislation that would:
apply the Judicial Conference's Code of Conduct, which applies to all other federal judges, to Supreme Court justices. This would allow the public to access more timely and detailed information when an outside group wants to have a justice participate in a conference, such as the funders of the conference;
require the justices to simply publicly disclose their reasoning behind a recusal when they withdraw from a case;
require the Court to develop a process for parties to a case before the Court to request a decision from the Court, or a panel of the Court, regarding the potential conflict of interest of a particular Justice.
According to the Congressperson's press release, Murphy is prompted by the actions of Justices Scalia and Thomas in relation to "Charles and David Koch, billionaire brothers who operate a Kansas-based energy company."
The press release does not mention the controversy which swirled around Justice Alito last year regarding an American Spectator event.
February 18, 2011
Ediberto Román on Citizenship's Constitutional Dimensions
In Citizenship and its Exclusions: A Classical, Constitutional, and Critical Race Critique, Professor Ediberto Román offers a highly readable and trenchant discussion of historical and contemporary citizenship.
Román begins by discussing the cases of three "terrorists": John Walker Lindh, Yaser Esam Hamdi, and Jose Padilla. He argues that while they were all U.S. citizens, they were "treated in dramatically different
Lindh, a Caucasian, was not treated as a terrorist and was characterized as merely a misguided young man. Hamdi, an Arab American, was effectively forced to renounce his American citizenship and was expatriated to the land of his parents, even though he was born and raised in the United States. Padilla, of Puerto Rican descent, was immediately treated as an enemy combatant and terrorist, with the limited rights associated with such labels. The stark differences in their treatment illustrate the dichotomous and confounding nature of citizenship, particularly when applied to favored versus disfavored groups.
Román thus argues that citizenship is "confounding," but he helpfully considers both dejure citizenship and defacto citizenship, exploring how formal and informal citizenship both contradict and reinforce each other. His last chapter, “A New Vision of Citizenship,” articulates a coherent vision of constitutional citizenship that values inclusion rather than exclusion.
Román will be speaking about the book tonight at Books & Books in Miami, Florida.
February 17, 2011
Lawrence in Louisiana: Lawsuit Challenges Sex Offender Registration Scheme
In the landmark case of Lawrence v. Texas, the United States Supreme Court held a statute criminalizing sodomy violated due process as guaranteed by the Fourteenth Amendment. The opinion specifically noted that the case did not involve commercial sex.
But may a state constitutionally punish commercial sex involving sodomy more severely than commercial sex generally?
The complaint in Doe v. Jindal contrasts two types of commercial sex offenses: the "Crime Against Nature by Solicitation" statute criminalizes solicitation of "unnatural carnal copulation for compensation;" the general prostitution statute criminalizes solicitation of "indiscriminate sexual intercourse" for compensation. Because of the broad definition of "sexual intercourse," the general prostitution statute actually includes any act punishable by the more narrow "unnatural carnal copulation" statute.
However, the punishment for two statutes is not identical, even after recent amendments. Additionally, only convictions under one of these statutes requires registration as a sex offender. According to the complaint, Louisiana is the only state that requires sex offender registration for any solicitation offense.
The complaint alleges that this statutory scheme is a denial of equal protection, due process, and the Eighth Amendment. While due process may be the most obvious claim after Lawrence, recall O'Connor's concurring opinion in Lawrence on equal protection grounds and recall Powell's concurring opinion in Bowers v. Hardwick (the case Lawrence overruled) raising the specter of the Eighth Amendment.
February 16, 2011
Father Chief Justice: A Constitutional Play
Actor, playwright, and Con Law Prof Paul Baier (LSU) will take his play "Father Chief Justice" Edward Douglass White and the Constitution to Washington, D.C., on Tuesday, March 8, 2011. (He previously staged it, to great acclaim, at the AALS Annual Conference.)
Here are the details:
"Father Chief Justice" Edward Douglass White and the Constitution
Tuesday, March 8, 2011, 2:00 to 3:30 p.m.
Coolidge Auditorium, Jefferson Building, Library of Congress, 101 Independence Ave, SE, Washington, DC
RSVP firstname.lastname@example.org or call Tynesha Adams at 202.707.5065
Check out the announcement for more information and a list of cast members (notable, all).
February 15, 2011
New York Chief Judge Calls for Equal Access, Civil Counsel
New York Chief Judge Lippman today delivered the State of the Judiciary address--a speech dominated by calls for open courts and access to justice. (Click on the link for the 2011 State of the Judiciary web-cast.)
We posted on Chief Judge Lippman's address on the same issues earlier this month at CUNY here.
Chief Judge Lippman focused on dramatically increased legal needs of the poor in a struggling economy and in a resource-strained judiciary. Drawing parallels to the right to counsel for indigent criminal defendants in Gideon v. Wainwright, he called for counsel in all civil cases in which fundamental human needs are at issue, including home foreclosures.
Chief Judge Lippman's comments come in the wake of the November 2010 report of the New York Task Force to Expand Access to Civil Legal Services in New York, which reported on unmet legal needs and made recommendations to expand access to justice in civil cases involving fundamental human needs.
We posted on the Maryland Commission on Access to Justice report also calling for civil counsel in cases involving basic human needs here.
February 14, 2011
Constitutional Right to Same-Sex "Divorce"
Jurisdictions that do not recognize same-sex marriages or civil unions have nevertheless been sites of petitions for divorce or dissolution of a legal status granted in another jurisdiction. In an article forthcoming in California Western International Law Journal, Professor L. Lynn Hogue argues that such a denial is unconstitutional.
Hogue's article is entitled The Constitutional Obligation To Adjudicate Petitions for Same-Sex Divorce and the Dissolution of Civil Unions and Analogous Same- Sex Relationships: Prolegomenon to a Brief, and is available on ssrn here. He bases his argument on what he terms a "trifecta" of three cases: Williams v. North Carolina, 317 U.S. 287 (1942), which considers the validity of migratory divorce, Boddie v. Connecticut, 401 U.S. 371 (1971), holding unconstitutional a mandatory filing fee for divorce, and Hughes v. Fetter, 341 U.S. 609 (1951), a less well known case discussing the Full Faith and Credit Clause. Hogue concludes that this "trifecta," which he amplifies with a host of other cases, must prevail over Congress' Defense of Marriage Act and state jurisdictional rules.
It's a succinct argument suitable for Valentine's Day reading.
February 13, 2011
Kent Announces 2011 Palmer Prize Competition
ITT Chicago-Kent College of Law announced that it would accept entries for the Roy C. Palmer Civil Liberty Prize, a $10,000 prize designed to encourage and reward public debate among scholars on current issues affecting the rights of individuals and the responsibilities of governments throughout the world.
Eligible books and articles should focus on the tension between civil liberties and national security. The deadline is July 1, 2011.
Articles or books submitted to the competition must be in draft form or have been published within one year prior to the July 1 deadline. As a condition of accepting the award, the winner will present his or her work at Chicago-Kent. All reasonable expenses will be paid.
Profs. Gabriella Blum and Philip B. Heymann (both of Harvard) won last year's prize for their book Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism (MIT Press 2010). Other past winners include David D. Cole and Jules L. Lobel for their book Less Safe, Less Free: Why America is Losing the War on Terror (The New Press 2007), Harold H. Bruff for Bad Advice: The President's Lawyers in the War on Terrorism (University Press of Kansas 2008), and Scott M. Matheson, Jr., for Presidential Constitutionalism in Perilous Times (Harvard University Press 2009).
Eligible books and articles should be submitted to Tasha Kincade, assistant to Dean Harold J. Krent, at email@example.com or Chicago-Kent College of Law, 565 West Adams Street, Chicago, Illinois 60661-3691.
Roy Palmer, a lawyer and real estate developer, is a 1962 honors graduate of Chicago-Kent and a member of its board of overseers. He and his wife Susan are active in numerous civic, social, and philanthropic organizations and are the recipients of the 1997 Outstanding Indivudal Philanthropist Award of the National Society of Fundraising Executives.
Nonviolent Revolution: India, Egypt and West Virginia Weekend
Recent events in Egypt are a meaningful reminder of the power of broad-based, nonviolent movements from the history of other nations, such as India. Earlier this month, we explored the presidential election process under the Egyptian Constitution here and its requirements for presidential succession here. Mubarak has since resigned. The Constitution of Egypt is now suspended, with promises of a new constitution.
As legal scholars contemplate the uprising in Egypt with an eye toward the possibility of further popular uprisings in the Middle East, they might also be looking to earlier nonviolent freedom movements. Nearly 81 years ago this week, the All-India Congress Committee authorized a nationwide campaign of civil disobedience aimed a loosening the grip of British colonial rule. Mahatma Gandhi launched the Civil Disobedience Movement in India in March of 1930 by leading the historic Dandi Salt March, also known as the Salt Satyagraha. (Satyagragha translates as “truth seeking” or “asking for truth.”) The Salt March was a pivotal moment in India’s long campaign for independence, because as Gandhi marched from village to village and ultimately to the sea where he and his fellow marchers made salt without paying the reviled British salt tax, a nationalist fervor swept the country.
Professor of Law at WVU Charles R. DiSalvo does just that in a brief chronicle of Gandhi as a practicing attorney in the article “Gandhi: The Transformation of a South African Lawyer, 1897-1898,” in Rethinking Gandhi and Nonviolent Relationality: Global Perspectives (Degjani Ganguly & John Docker, eds. 2008). In it, DiSalvo theorizes that “the experiences Gandhi underwent during the time he practiced law in South Africa transformed his vision of law as an engine of social change. . . ., [and] that this transformation, during which Gandhi lost faith in an ultimately corrupt legal system, constituted a key pre-condition for his eventual embrace of nonviolence.” Id. Overall, “Gandhi’s experience with the law in 1897 and 1898 in particular constitutes a microcosm that foreshadows and helps explain his transformation from business lawyer to civil rights attorney to civil disobedient.” Id. at 100.
DiSalvo traces Gandhi’s legal experiences beginning with his rather common transaction work for Indian business interests in the colony of Natal (now the province of KwaZulu-Natal, South Africa). But after the imposition of a series of legislative acts by the colonial legislature that intended to weaken the influence of Indian merchants, Gandhi was persuaded to “organize [the merchants’] resistance to the European assault on their rights.” Id. at 101. The worst of the laws was the Dealers’ Licenses Act (“DLA”), which required every wholesale and retail business in the colony to obtain a government permit. The Act empowered local “Licensing Officers to deny permits to those who could not maintain their books in English,” and for other “imprecisely drawn grounds,” all of which served as handy pretexts for racial discrimination by local European officials. Unsurprisingly, the essentially standard-less requirements, further compounded by the prohibition of a direct appeal to the courts, lead to racially-motivated crackdown on Indian businesses throughout the colony.
As an advocate for these targeted interests, Gandhi first “relied almost exclusively on petitioning – incessant, persistent, unrelenting petitioning.” Id. at 102. This failed. But, turning to litigation, Gandhi found some success in as-applied challenges to the arbitrary reviewing process of the permitting. Grounded in basic notions of due process – specifically, fair notice – Gandhi was able to convince the colonial Supreme Court to reverse a few licensure denials. But his clever statutory interpretations would only get his Indian clients so far, as the despised anti-Indian Acts remained on the books. In the end,
Gandhi’s recognition of the judiciary’s limitations as a tool for social change marked an early but key turning point in his transformation from lawyer to civil disobedient. While the courts might address procedural irregularities, they could not be counted on to attack basic, underlying norms and the power establishment of which they themselves were a part. The courts would not turn on themselves. The law would not free Gandhi’s people – at least not in the manner he expected it would in 1898.
Id. at 112.
DiSalvo asks of Gandhi, “Is this the end? Does he give up on the law entirely?” His conclusion is subtle, yet powerful:
Gandhi’s frustration with the courts led him to abandon litigation as a tool for social change and contributed to his decision to embrace nonviolent civil disobedience. . . . It is rejection of litigation. It is not a rejection of law. His rejection of litigation is a stage in his developing understanding of the law as much deeper, more expansive and more filled with promise than litigation. In the remainder of his life, he comes to see and believe in the deep underlying structure of the law. It is to this that his nonviolent disobedience appeals. A civil disobedient who willingly subjects himself to the punishment of the system, as Gandhi did, believes in the grand structure of the law, in the rule of law.
Id. at 113.
DiSalvo is presently completing a full legnth book on Ghandi's life as a lawyer. Meanwhile, DiSalvo's interview with Australian Broadcasting Comany from several months ago is a treat; listen to it here.
Of course, it remains to be seen whether distinct comparisons between the Indian experience and recent events in Egypt will prove pertinent. Nevertheless, understanding the intersection of law and the history of nonviolent freedom movements can’t be a bad place to start.
with J. Zak Ritchie
(image: Gandhi in Johannesburg, 1905, via)