Thursday, May 16, 2013
Prof. Alex Tsesis (Loyola Chicago) joined me on Thursday for a talk on his book For Liberty and Equality: The Life and Times of the Declaration of Independence (Oxford 2012). This was a terrific read; I highly recommend it.
But first listen to him talk about it. Here's the audio of our chat (about 20 minutes):
The Senate Judiciary Committee today unanimously approved Deputy Solicitor General Sri Srinivasan for a slot on the D.C. Circuit. WaPo reports here. We previously posted here, with links to backgrounds and profiles.
The Constitutional Court of Colombia issued a series of opinions beginning in 1995, analyzed in a 2004 law review article by Kate Haas, Who Will Make Room for the Intersexed?, that recognize a constitutional right of children, albeit limited, with regard to the surgery. A ground-breaking symposium issue of Cardozo Journal of Law & Gender in 2005 engages with many of the legal issues and proposed solutions, often recognizing the limits of constitutional remedies in the United States given that the surgeries are usually the result of private action.
But a complaint filed this week, M.C. v. Aaronson, by the Southern Poverty Center claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care). M.C., now 8 years old, brings the case through his adoptive parents.
The substantive due process claim is a relatively obvious one, building on established United States Supreme Court cases finding a right to be free of coerced medical procedures including Cruzan v. Director, Missouri Department of Health (1990). The right is a bit muddled, however, given that the highly discredited 1927 case of Buck v. Bell has never been actually overruled; the declaration that castration was as unconstitutional penalty for a crime in Skinner v. Oklahoma rested on equal protection grounds.
The procedural due process claim is more novel, contending that the minor was entitled to a pre-deprivation hearing before the surgery. Such a hearing would presumably be of the type that Erin Lloyd recommended for all minors (whether in state custody or not) in her article From the Hospital to the Courtroom: A Statutory Proposal for Recognizing and Protecting the Legal Rights of Intersex Children in the Cardozo Journal of Gender and Law Symposium issue.
An accompanying lawsuit filed in state court alleges medical malpractice and failure to obtain informed consent, raising the same underlying facts and many of the same issues, but under state law.
Southern Poverty Center has produced a video featuring the parents and outlining the facts of the case:
This is definitely a case to watch.
May 16, 2013 in Cases and Case Materials, Comparative Constitutionalism, Due Process (Substantive), Fourteenth Amendment, Gender, Medical Decisions, Procedural Due Process, Sexuality, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)
Wednesday, May 15, 2013
What if the reporters' confidential sources were unknown even to the reporter? Might this solve the problems that the Court struggled with more than 40 years ago in Branzburg v. Hayes?
The New Yorker has introduced a technological attempt to insulate the source and the reporter. As The New Yorker explains its new concept, called "Strongbox" :
as it’s set up, even we won’t be able to figure out where files sent to us come from. If anyone asks us, we won’t be able to tell them.
A fuller explanation in the article by Kevin Poulson begins: "Aaron Swartz was not yet a legend when, almost two years ago, I asked him to build an open-source, anonymous in-box.
Of course, the government's technological abilities have also progressed since the grand jury inquiry of Branzburg.
The ACLU and 19 other organizations sent a letter this week to Secretary of Defense Chuck Hagel opposing the military's force-feeding hunger-striking detainees at Guantanamo Bay. According to the ACLU, 29 detainees are currently being force-fed. We previously posted on a ruling by New York's high court upholding the practice of force-feeing in New York prisons.
The military's standard operating procedures (SOP) on fasting and force-feeding changed just recently (published on Al Jazeera), loosening protections against force-feeding. (The earlier SOP is here.) Most notably, the recent changes to the SOP charge the military commander of the base, not a medical doctor, with determining who is a hunger striker.
Here's the ACLU's legal case against force-feeding, from this week's coalition letter to Secretary Hagel:
Force-feeding as used in Guantanamo violates Common Article 3 of the four Geneva Conventions of 1949, which bar cruel, humiliating and degrading treatment. It also could violate the Detainee Treatment Act of 2005, which prohibits the "cruel, inhuman, or degrading treatment" of prisoners "regardless of nationality or physical location." Indeed, a 2006 joint report submitted by five independent human rights experts of the United Nations Human Rights Council (formerly the U.N. Commission on Human Rights) found that the method of force-feeding then used in Guantanamo, and which appears to remain in effect today, amounted to torture as defined in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994. The report asserted that doctors and other health professionals authorizing and participating in force-feeding prisoners were violating the right to health and other human rights, including those guaranteed by the International Covenant on Civil and Political Rights, which the United States ratified in 1992. Those concerns were reiterated this month by the Office of the UN High Commissioner for Human Rights, the Inter-American Commission on Human Rights, the United Nations Working Group on Arbitrary Detention, and three UN Special Rapporteurs.
While the letter focuses on cruel, inhuman, or degrading treatment, there may be other problems with force-feeding, too. For example, force-feeding may infringe on hunger-striking detainees' free speech. But First Amendment claims by hunger-strikers in regular detention in the U.S. have not been successful; Guantanamo Bay detainees would almost certainly face even steeper First Amendment challenges in the courts. There's also the right to refuse medical treatment. As Michael Dorf (DorfonLaw.org) argues at jurist.org, "five Justices in [Cruzan v. Dir. Missouri Dep''t of Health] did say that they thought that competent adults have the right to refuse forced feeding, even if death will result." But that runs up against Washington v. Harper, holding that prison officials could override a prisoner's objection to forcibly being administered medication, assuming it's in the prisoner's medical interest.
Anyway, as Dorf points out, some Guantanamo detainees might have a hard time even bringing a case. Judge Kessler (D.D.C) dismissed a detainee force-feeding case in 2009, based on the jurisdiction-stripping provision in the Military Commissions Act of 2006. That provision says,
Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The difference here is that some of the hunger-strikers now have been cleared for release--the U.S. just can't find a place to send them. Those detainees are not "determined by the United States to have been properly detained as an enemy combatant or [are] awaiting such determination," and are not barred by 2241(e)(2) from bringing suit.
May 15, 2013 in Courts and Judging, Current Affairs, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Medical Decisions, News, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)
Most ConLawProfs would agree that First Amendment doctrine suffers from incoherence, but fewer may agree that institutionalism is the solution, and even those who do favor institutionalism may differ on their selection of the institutions deserving deference.
But for anyone teaching or writing in the First Amendment, Horwitz's book deserves a place on a serious summer reading list. My longer review appears in Law and Politics Book Review.
Monday, May 13, 2013
The Supreme Court ruled today in Dan's City Used Cars, Inc. v. Pelkey that federal law does not preempt a plaintiff's state law claim against a towing company for the illegal sale of his car. The ruling affirms the New Hampshire Supreme Court's ruling in favor of the plaintiff and settles a split among state high courts on the question. Otherwise, the ruling doesn't break any new ground, and it's not a particular surprise.
The case arose when Dan's City towed Pelkey's car from his landlord's parking lot and later traded it away without compensating Pelkey. (Pelkey was suffering with a serious medical condition for which he was later hospitalized, and thus left his car in the parking lot during a snow--a towing offense under the landlord's rules.) Pelkey sued for wrongful sale (but not wrongful towing) under state law. The lower state court said that the Federal Aviation Administration Authorization Act, FAAAA, preempted Pelkey's suit and dismissed the case. (The FAAAA applies to motor carriers.) The New Hampshire Supreme Court reversed, and this appeal followed.
The FAAAA preemption clause says,
[A] State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.
In an opinion by Justice Ginsburg, the unanimous Supreme Court held that Pelkey's suit wasn't "with respect to the transportation of property," because it was based on the allegedly wrongful sale of his car after it was transported--that is, post-towing. The Court said that this result is consistent with congressional purposes is enacting the FAAAA preemption clause.