March 24, 2012
Saturday Evening Review: What Would Elizabeth Cady Stanton Say?
Feminist icon Elizabeth Cady Stanton (pictured right) is frequently portrayed as an anti-abortion. For example, bills such as The Susan B. Anthony and Frederick Douglass Act of 2011, H.R. 3541, and The Elizabeth Cady Stanton Pregnant and Parenting Students Services Act of 2005, S.1966, H.R. 4265, co-sponsored by 2012 Republican Presidential candidate Rick Santorum, sought to limit abortion and other reproductive rights in the name of Stanton (as well as anti-slavery hero Frederick Douglas). Stanton's supposed anti-abortion views are also frequently cited in Supreme Court briefs to defeat an argument that abortion is central to women's rights by noting that early feminists were against the practice.
But was Stanton actually anti-abortion?
Professor Tracy Thomas argues that Stanton is an unlikely - - - and inappropriate - - - poster woman for the contemporary anti-abortion movement in a new paper entitled Misappropriating Women’s History in the Law and Politics of Abortion. According to Professor Thomas, Stanton "did not talk about abortion per se" and "did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women." Instead,
Stanton turned this debate to her priority of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law.
Of course, Stanton was not one of the framers of the Fourteenth Amendment and indeed, she refused to support the Amendment given its exclusion of women. Nevertheless, Stanton's "originalist" views on the rights of women are often invoked and Tracy Thomas has provided vital historical sources, analysis, and arguments regarding Stanton's position.
Thomas' article is sure to provoke its own analysis and arguments, and equally sure to be an important contribution in contemporary debates regarding the legal regulation of abortion. It's a must-read for any scholar working on this controversial constitutional area.
[image of Elizabeth Cady Stanton circa 1880 via]
March 22, 2012
Generic Drug Claims Dismissed in Wake of PLIVA
The Supreme Court ruled last year in PLIVA v. Mensing that federal prescription drug laws preempt plaintiffs' state failure-to-warn claims against generic drug manufacturers, even as it ruled three years again in Wyeth v. Levine that similar federal laws do not preempt plaintiffs' state law claims against brand-name manufacturers.
The New York Times this week examined the impact of Mensing and, unsurprisingly, found that courts are routinely dismissing state law claims against generic manufacturers, and that many generic prescription drug users have no idea that they are waiving their claims against manufacturers simply by opting for a generic equivalent over a brand-name drug:
The Supreme Court ruling affects potentially millions of people: nearly 80 percent of prescriptions in the United States are filled by a generic, and most states permit pharmacists to dispense a generic in place of a brand name. More than 40 judges have dismissed cases against generic manufacturers since the Supreme Court ruled last June, including some who dismissed dozens of cases consolidated under one judge.
The article reminds readers that Congress could easily change the landscape and allow suits against generics to go forward. But it doesn't look like that'll happen anytime soon.
Right to Counsel Applies to Consideration of Plea Offers That Lapse or Are Rejected
In a pair of cases this week, Missouri v. Frye and Lafler v. Cooper, a sharply divided Supreme Court ruled that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. The rulings are a victory for defendants in criminal systems where upwards of 97% of all federal convictions and 94% of all state convictions are the result of guilty pleas.
Still, under the rulings, criminal defendants will have no easy time in showing that their attorneys are ineffective. That's because the Court requires them to show a reasonable probability that they would have accepted a lapsed plea, that the prosecutor wouldn't have revoked it, and that the court would have accepted it. They also have to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.
And even if a defendant can jump through these hoops, there's still the question of the remedy. Under Cooper, the trial court could simply reinstate the final conviction and sentence, leaving the defendant no better than he was before the Supreme Court's rulings.
Frye arose out of a defense attorney's failure to tell his client about the prosecution's plea offer. The defendant went on to enter an open plea and received a higher sentence than the offer. The Court ruled that the attorney's failure to share the plea offer constituted deficient performance, satisfying the first prong of the Strickland test. But the Court remanded the case to the state court to determine the state law questions whether there was a reasonable probability that the prosecutor wouldn't have revoked the offer and that the court would have accepted it. If the defendant can't show a reasonable probability, there's no prejudice under the second prong of the Strickland test.
Cooper arose out of a defendant's rejection of a plea offer based on his attorney's erroneous advice that the prosecution would be unable to convict him of the charged crime. The defendant was convicted after trial and sentenced to a term 3.5 times longer than the term in the plea offer. The parties agreed that counsel's performance was deficient under Strickland's first prong, and the Court ruled that the defendant's higher sentence at trial constituted prejudice. As a remedy, the Court ruled that the state must reoffer the plea. The trial court can then vacate the convictions and resentence pursuant to the plea, vacate only some of the convictions and resentence accordingly, or leave the convictions and sentences undisturbed.
The Court in both cases emphasized that criminal justice is largely a process of plea, not trial, and that the plea process, including consideration of plea offers, is a critical stage triggering the right to effective assistance of counsel. The dissent in both cases emphasized that there's no right to a plea offer, and that the defendants in both cases were convicted after a free and fair open plea (in Frye) and a fair trial (in Cooper).
Justice Kennedy wrote for himself and Justices Ginsburg, Breyer, Sotomayor, and Kagan in both cases. Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented in both.
State Courts and Constitutions
How many Justices are there on the Montana Supreme Court? Are the Justices on Idaho's highest court elected or appointed? Does the state bar play a role in nominating the Justices of Tennessee? What's the term of service on the Ohio Supreme Court? Which provision in the New Jersey Constitution governs the selection of Justices? How many states have a "Missouri plan" and what does that mean anyway?
An excellent resource from the Federalist Society, the State Courts Guide, can answer these questions and a host of other queries about the highest courts in each state. Clicking on individual states in the US map color-coded by types of judicial selection will lead to more detailed information about a state and pertinent links; here's Wyoming:
It would be great to also have the individual state information in a 50-state chart for ease of comparison, but perhaps that will be available in the 2.0 version.
Fifth Circuit Holds Immigration Housing Ordinance Unconstitutional
In its opinion in Villas at Parkside Partners v. City of Farmers Branch Texas, the Fifth Circuit affirmed the district judge's conclusion finding an ordinance unconstitutional pursuant to the Supremacy Clause, as preempted by federal law.
The ordinance, reproduced as a 15 page appendix to the majority opinion, is rather detailed, but essentially requires tenants to have licenses that demonstrated their citizenship or legal status. The Fifth Circuit placed emphasis on the ordinance's legislative history, including previous attempts to regulate immigrants and statements by city officials such as the ordinance was an effort to “help reduce the illegal immigrant population in Farmers Branch.” The majority also noted that the ordinance itself provided it was intended to regulate immigration, not housing. The Fifth Circuit therefore stated:
The conclusion that the Ordinance is not a local housing regulation, and instead determines which aliens may reside in Farmers Branch, necessarily compels our conclusion about preemption of the Ordinance as a regulation of immigration contrary to federal authority. Because we conclude that the sole purpose of the Ordinance is to target illegal aliens and effect their removal from the City, we also conclude that the Ordinance is an impermissible regulation of immigration posing an obstacle to federal control of immigration policy.
In its analysis, the panel majority extensively cited the Third Circuit's decision in Lozano v. City of Hazelton: although acknowledging that the entirety of the Third Circuit’s judgment has been vacated by the United States Supreme Court, "we nevertheless find Lozano’s reasoning instructive in this case because the Third Circuit was faced with a housing regulation squarely analogous to the one in the instant case, and the Supreme Court’s decision in [Chamber of Commerce v.] Whiting does not affect that reasoning."
Dissenting in part, Judge Jennifer Walker Elrod disagreed with this assessment, arguing that the ordinance is more nuanced than that and does regulate housing. Yet Judge Elrod's opinion concurs regarding the unconstitutionality of the "judicial review" portion of the ordinance "because it allows a state court to review whether the occupant is lawfully present, while giving the federal determination “a rebuttable presumption as to the individual’s immigration status” and making conclusive only those federal determinations that “would be given preclusive effect on the question." In other words, this allowed state courts to "revisit federal determinations of immigration status" and "opens the door for conflicting state-federal rulings on an immigrant’s lawful status," which certainly raises the possibility of conflict and therefore serves as an obstacle to federal law.
Next month, the United States Supreme Court will be hearing oral arguments on portions of Arizona's controversial SB1070, passed nearly two years ago. While SB1070 does not seek to regulate local housing, its holding of preemption could certainly effect the constitutionality of the ordinance of Farmers Branch, Texas.
March 21, 2012
Cardozo Conference on Ancient and Modern Constitutionalism
The Floersheimer Center for Constitutional Democracy at Cardozo Law is hosting a symposium on April 2 titled Constitutionalism, Ancient and Modern. Here's from the description:
The purpose of the symposium is to put the constitutionalism of the ancients on the agenda of contemporary constitutional scholars. Among the themes the symposium will explore are the challenges pre-modern constitutions pose to modern constitutionalism, the struggle for constitutional order and economic equality in Athens and Rome, religious sources of constitutionalism, direct versus representative lawmaking, and the relationship of constitutionalism to dictatorship and absolutism.
The line-up is terrific. John P. McCormack (Chicago Poli. Sci.) will deliver the keynote, Keep the Public Rich and the Citizens Poor: Economic Equality and Ancient Constitutionalism.
The symposium is free and open to the public. RSVP to firstname.lastname@example.org or 212.790.0200 x6700.
Reichle v. Howards: First Amendment Retaliatory Arrest, The Secret Service, and Oral Arguments in the United States Supreme Court
During oral arguments in the Supreme Court today, the First Amendment took a definite back seat. The case is Reichle v. Howards, on certiorari from the Tenth Circuit, and involved Howard's arrest by Secret Service agents at a mall in Colorado where then-VP Dick Cheney was appearing. Howard was taking his son to a piano recital at the mall and on his cell phone. Apparently, no fan of the VP, Howards stated into his cell phone, "I'm going to ask him [the Vice President] how many kids he's killed today."
This was overheard by the Secret Service agents and attracted their attention. Moreover, Mr. Howards did make good on his stated intentions: After dropping off his son at the recital,
Mr. Howards remained behind to visit with the Vice President. As Mr. Howards waited for his turn, he observed the Vice President interacting with the gathering crowd, greeting patrons, shaking hands, and posing for photographs with onlookers. He then approached the Vice President and informed him that his "policies in Iraq are disgusting." The Vice President responded, "Thank you." As he departed, Mr. Howards touched the Vice President's right shoulder . . .
Interestingly, Mr. Howards was not arrested then, but quite a while later when agent Reichele and Howards had an "interview" which escalated, with the agent becoming angry. The agent arrested Howards for assault on the Vice-President, based on the touching of the shoulder, which Howards has "lied" about saying he hadn't touched the VP.
No charges against Howards were brought, but Howards filed a Bivens action against the agents for violating his First, as well as his Fourth, Amendment rights. The agents claimed qualified immunity. While the district judge had denied qualified immunity to all agents, the Tenth Circuit held that only two agents, including Reichele, were not entitled to qualified immunity.
During the oral argument, the Fourth and First Amendment arguments were understandably intertwined, but the First Amendment was most often deemed irrelevant.
As Sean Gallagher, arguing for the Secret Service agents stated:
Virtually everyone that a Secret Service agent encounters when he is protecting the President or the Vice President can allege that they are engaged in free speech. So for Secret Service agents in particular, they -- they can legitimately evaluate what someone is saying in order to determine a particular threat level.
During the argument on behalf of Howards by David Lane, Justice Sotomayor stated:
You do understand that this case is inviting the questions the Chief Justice asked, which, and which has -- Justice Breyer and some of us are concerned about, which is what your adversary has described as First Amendment voicing is going to be a part of many, many arrests.
Near the end of his argument, Lane made a plea for the First Amendment to be recognized:
The issue simply is can we sacrifice the First Amendment. You know, does a litterbug lose their right to have First Amendment free speech?
Does a jaywalker lose their right to have First Amendment free speech because probable cause exists to believe they've committed some offense? And you'll have officers ostensibly enforcing litter laws and jaywalking laws and blocking the sidewalk laws, and the First Amendment is essentially evaded.
100 years of jurisprudence, courageous jurisprudence, many times by this Court, goes by the boards because somebody is a litterbug. I -- I just don't see that as the solution to this problem. And I also don't see that the Secret Service needs some enhanced protection from this Court when this has never been and is not now any kind of a serious problem.
The status quo is not healthy. It has worked for decades and it should continue to work. And if these agents get tagged in this case, maybe they deserved to get tagged in this case, because the First Amendment is extremely important. And I don't denigrate the -- the job of law enforcement or -- or these agents in any way. . . . .
The Justices, however, seemed more than willing to defer to the Secret Service agents, who have recently had the scope of their protective responsibilities widened by Congress.
March 20, 2012
Supreme Court in Coleman: The 11th Amendment Bars Suit Against State for FMLA Violation
The Supreme Court's divided opinion in Coleman v. Court of Appeals of Maryland, issued today, resuscitates the convoluted doctrine that resides at the intersection of the Eleventh Amendment and the Fourteenth Amendment. As Justice Scalia, concurring, phrased it:
The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the “congruence and proportionality” test make no sense.
The facts of the case are simple: Coleman was employed by the Court of Appeals of the State of Maryland and requested sick leave; he was informed he would be terminated if he did not resign. Coleman then sued in federal court, arguing that his employer violated the "self care" provision of the Family Medical Leave Act (FMLA).
The "family leave" provision of the FMLA was held applicable against the states in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), authored by CJ Rehnquist. But here the plurality distinguished the sex-role stereotyping that Congress found states had perpetrated regarding family leave. Instead, the self-care provision had a lack of "a pattern of state constitutional violations accompanied by a remedy drawn in narrow terms to address or prevent those violations."
The Eleventh Amendment, passed to overule Chisholm v. Georgia, has produced a tortured - -- and many argue essentially incorrect - - - doctrine allowing states to interpose sovereign immunity against civil rights suits by their own citizens.
This is complicated by Congressional power to abrogate a state’s 11th Amendment immunity pursuant to its §5 14th Amendment enforcement power in some circumstances. The Congressional intent to abrogate must be unmistakenly clear and the Congressional act must be a valid exercise of power under section 5 of 14th Amendment, meaning that there is congruence and proportionality in light of Supreme Court precedent and there must be a finding that states qua states need to be remedied.
In Coleman, Kennedy - - - writing for a plurality - - - held that the self-care provision was not a valid aborgation of the state's sovereign immunity. Note that the specific provision, not entire FMLA, is being subject to this requirement. Kennedy wrote that the "evidence did not suggest States had facially discriminatory self-care leave policies or that they administered neutralself-care leave policies in a discriminatory way. And there is scant evidence in the legislative history of a purported stereotype harbored by employers that women take selfcare leave more often than men."
Justice Ginsburg, joined by three other Justices, dissented and argued that even accepting the Court's view of the scope of Congress’ power under §5 of the 14th Amendment, the self-care provision "validly enforces the right to be free from gender discrimination in the workplace." Further, she argued that the plurality "gets it wrong in concluding that “[o]nly supposition and conjecture support the contentionthat the self-care provision is necessary to make the family- care provisions effective.”" Instead, self-care leave "is a key part of Congress’ endeavor to make it feasible for women to work and have families."
Ginsburg's argument did not prevail and thus states escape another provision of federal anti-discrimination law given the Court's interpretation of the Eleventh Amendment.
On the heels of Hosana-Tabor Evangelical Lutheran Church and School v. EEOC decided earlier this term, the Court has rendered another unfavorable opinion for employees dealing with health problems.
[image:Friedrich Friedländer, Der Doktor, circa 1870 via]
March 19, 2012
Sixth Circuit Upholds Cigarette Warning Requirements
A divided three-judge panel of the Sixth Circuit today rejected the plaintiffs' facial challenge of the warning requirements for cigarette packaging and cigarette advertising in the federal Family Smoking Prevention and Tobacco Control Act. The court ruled that the warning requirements did not violate the First Amendment on their face.
The case, Discount Tobacco City & Lottery, Inc. v. U.S., involved a facial challenge to the Act's graphic-warning provision, which mandates that the FDA "require color graphics depicting the negative health consequences of smoking" to accompany the textual warnings on cigarette packaging and advertising.
The court applied Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio rational-basis test and wrote,
Faced with the evidence that the current warnings ineffectively convey the risks of tobacco use and that most people do not understand the full risks, the Act's new warnings are reasoanbly related to promoting greater public understanding of the risks. A warning that is not noticed, read, or understood by consumers does not serve its function. The new warnings rationally address these problems by being larger and including graphics.
Op. at 76.
The Sixth Circuit's ruling is not directly at odds with the recent D.C. district court decision striking down the FDA's required warning labels under the First Amendment, R.J. Reynolds Tobacco Co. v. FDA. That's because today's ruling dealt only with a facial challenge to the Act, not to the FDA's rules. The court explained:
Moreover, the dissent's reliance on the recent D.C. district court opinion actually undercuts the dissent's conclusion that the Act's required warnings are facially unconstitutional. As the dissent acknowledges, the district court in the D.C. case examined the "government's proposed color graphics images"--namely, the final nine images the FDA settled on when it issued its Final Rule. The distinction drawn by the D.C. court between the graphic-warning requirements of the FDA's Rule and the graphic-warning requirements of the Act is a crucial one that the dissent's analysis glosses over. The flaw caused by ignoring this distinction is that the characteristic of the FDA-chosen images that the dissent finds objectionable--namely, that the images provoke a visceral response in the audience--is simply not in the statute. The dissent reads that characteristic as something required by the face of the statute when the statute on its face requires no such thing. The Act simply requires "color graphics depicting the negative health consequences of smoking."
Op. at 83.