Wednesday, October 15, 2014

Daily Read (and Videos): James Risen on James Risen

With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterlingthe situation of James Risen is in limbo.  In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source. 

19484530Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT.  As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).

Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others.  The segment explains and situates the controversy, including its current status under President Obama.  It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted." 

The entire segment is definitely worth watching:

 

 

 

Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:

AMY GOODMAN: So, you’re covering the very people who could put you in jail.

JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.

A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here).  One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.

For ConLawProfs teaching First Amendment, these "sources" could be well-used.

October 15, 2014 in Books, Cases and Case Materials, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, International, Privacy, Recent Cases, Speech, State Secrets, Theory, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, September 19, 2014

Ornstein on Statutory Interpretation and Halbig

Norm Ornstein reviews Second Circuit Chief Judge Robert Katzmann's new book, Judging Statutes, over at The Atlantic. Along the way, Ornstein says why courts should use legislative intent in interpreting ambiguous statutory language--like the Affordable Care Act's language that led to Halbig v. Burwell.

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According to Ornstein, Judge Katzmann is "the clearest heir to both Corwin and Hand" because of his "judicial temperament, keen mind, and respect for the law and politics." In his new book, Judge Katzmann sets out a case for using legislative intent in statutory interpretation. He draws on some of his own cases to illustrate "the ways in which dutiful judges can come to opposite conclusions." Still, as Ornstein writes, "in most controversial cases, there are clear ways to look at legislative history, the words of a bill's architects or managers, and the overall body of the law to divine the plain purpose."

As to Halbig, recall that a three-judge panel of the D.C. Circuit ruled that the IRS exceeded its authority under the Affordable Care Act in extending tax credits to individuals who purchased health insurance on a federally operated exchange. According to the court, that was because the ACA provides for tax credits for purchasers on state exchanges, but not federally operated exchanges. The Fourth Circuit issued a ruling the same day upholding the credits.

The D.C. Circuit used a narrow textualist approach; the Fourth Circuit used a broader textual approach and legislative intent. The D.C. Circuit case is now going en banc.

September 19, 2014 in Books, Cases and Case Materials, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 10, 2014

Fellowships at the United States Supreme Court and at Princeton

Two fellowships worth considering.

640px-Jan_van_Eyck_059First, the annual Supreme Court Fellows program has a fast-approaching deadline of November 14, 2014.  There are four positions, one of which is at the Supreme Court.  More information is here.  Professor Stacie Strong has a brief discussion of the program published in Judges' Journal, available on ssrn.

Second, Princeton University’s Program in Law and Public Affairs (LAPA) awards six fellowships (one reserved for an early career fellow on humanities-realted subjects) for "research and writing on law-related subjects of empirical, interpretive, doctrinal and/or normative significance."  The deadline is November 3, 2014 and more information is here.

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September 10, 2014 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 1, 2014

Daily Read: Zephyr Teachout on (Anti-) Corruption

In her new book, Corruption from Harvard University Press, ConLawProf Zephyr Teachout argues that campaign finance reform is constitutional and that the anti-corruption principle is one that originalists should embrace rather than disparage.

CorruptionHere's a bit from the publisher's description:

When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.

For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.

Teachout has argued her position in op-eds in the Washington Post and in Politico after the Court's decision last term in McCutcheon v. FEC, (more of our McCutcheon discussion is here, here, here, and here). 

Teachout wuAdditionally, Teachout - - - along with Tim Wu, also a law professor - - -  is running for state wide office in New York.  Teachout is running for Governor against the incumbent Andrew Cuomo and Wu is running for Lieutenant Governor in next week's primary election.  (Teachout prevailed in lawsuits brought by the Cuomo campaign challenging her eligibility based on residency).   Interestingly, the New York Times endorsed Wu, but did not endorse either Teachout or Cuomo in the Governor's race, citing Teachout's lack of demonstrated "breadth of interests and experience needed to govern a big and diverse state" and Cuomo's  failure to keep his "most important promise" of addressing "corruption."  The primary is September 9.

September 1, 2014 in Books, Campaign Finance, Current Affairs, First Amendment, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, June 2, 2014

Court Denies Certiorari in James Risen's "Reporter's Privilege" Case

The United States Supreme Court denied certiorari in the closely watched case of Risen v. United States (13-1009).

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NYT Reporter James Risen via

Recall our analysis of the sharply divided Fourth Circuit panel opinion in United States v. Sterling, with James Risen as Intervernor, that declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source. 

 

June 2, 2014 in Books, Criminal Procedure, First Amendment, Speech, State Secrets, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, May 23, 2014

Daily Read: Lithwick on Murphy on Scalia

Scalia bookDahlia Lithwick highlights the problematics of religion in her review in The Atlantic of the new biography of Justice Antonin Scalia, Scalia: A Court of One, by Bruce Allen Murphy. 

Lithwick highlights the Supreme Court's recent decision in Town of Greece v. Galloway upholding the constitutionality of  Christian prayers at a town board meeting and the upcoming decision in Hobby Lobby on the claims of a for-profit corporation to an exemption from the federal requirement that employer insurance coverage include contraception benefits. 

She is very complimentary of the biography:

In Bruce Allen Murphy, Scalia has met a timely and unintimidated biographer ready to probe. A professor of civil rights at Lafayette College, Murphy refuses to be daunted by the silence that surrounds most discussions about religion and the Court. In his view, understanding one of the most dazzling and polarizing jurists on the Supreme Court entails, above all, examining the inevitably murky relationship between judicial decision making and religious devotion.

Indeed, she writes

Murphy does not shrink from adjudicating Scalia’s dueling public claims: that separating faith from public life is impossible and, at the same time, that he himself has done just that on the Court.

From Lithwick's review, A Court of One is  a must-read this summer. But Lithwick's review is also a must-read; she conjectures that "Murphy misses the moral of his own story."

May 23, 2014 in Books, Courts and Judging, First Amendment, Interpretation, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

Daily Video: Glenn Greenwald on Colbert Report

Promoting his new book, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State,

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Glenn Greenwald appeared on The Colbert Report.

Here's a video excerpt, worth a watch:

Continued here:

 

May 13, 2014 in Books, Current Affairs, First Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

Daily Read: Sheryll Cashin's "Place Not Race"

CashinConLawProf Sheryll Cashin's new book, Place Not Race: A New Vision of Opportunity in America is just out. In it, Cashin looks at the demise of affirmative action presaged by Supreme Court cases such as this Term's Schuette and last Term's Fisher v. UT, and argues that substituting "place" for "race" in diversity admissions "will better amend the structural disadvantages endured by many children of color, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders."

Here's a bit from a longer excerpt on abc:

Race-based affirmative action buys some diversity for a relative few, but not serious inclusion. It doesn’t help to build a movement to attack underlying systems of inequality that are eating away at the soul of our nation. Among other transformations, we need corporations that share more profits with workers and pay them equitably. We need a financial system that doesn’t exploit average people. We need governments that invest wisely in pre-K-12 education and the nonselective higher education that at least half of high school graduates attend. We also need government that does not over-incarcerate high school dropouts of all colors.

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Cashin contends that "race" is both over-inclusive and under-inclusive, an analysis that will be familiar to anyone in the affirmative action cases employing strict scrutiny.  But Cashin's slant is different.  For Cashin, it isn't necessarily that we are post-racial.  Instead, "given our nation’s failure to live up to Brown, we have an obligation to acknowledge and ameliorate the injustices of segregation—a moral imperative more important than diversity itself."

An interesting read for anyone considering affirmative action, race, and equality.

May 8, 2014 in Affirmative Action, Books, Equal Protection, Fourteenth Amendment, Race, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, April 4, 2014

Daily Read: E-Book by Collins and Skover on McCutcheon and Campaign Finance

WMS-210x315Published on the same day that the Court rendered its 5-4 decision in McCutcheon v. Federal Election CommissionWhen Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment is an ebook by ConLawProfs Ron Collins and David Skover.

A taste of the authors' analysis is apparent in their "foreward" to the SCOTUSblog symposium on the case, "It's all forward now."  They write that in "the past eight years, since Chief Justice John Roberts and Justice Samuel Alito have been on the Court, the Justices have handed down six First Amendment campaign finance opinions" all of which have declared a campaign finance regulation unconstitutional under the First Amendment, and five of which were 5-4 decisions. They also provide some "takeaways" from the opinion. 

The book will certainly be a must-read for anyone interested in campaign finance and the First Amendment.

April 4, 2014 in Books, Campaign Finance, First Amendment, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, March 27, 2014

Daily Read: Capital in the 21st Century

9780674430006In a review in this week's New Yorker, John Cassidy makes the case that the new book by Thomas Piketty, Capital in the Twenty-First Century, is one that "nobody interested in a defining issue of our era can afford to ignore."

This defining issue is economic inequality.  Piketty's book, translated from the French and published by Harvard University Press, is an examination of the phenomenon as well as a proposal for remediation. 

The proposal is a "wealth tax."  Perhaps that's a "political nonstarter" as Cassidy suggests and as Piketty seemingly acknowledges.  But perhaps it's not.

 

March 27, 2014 in Books, Current Affairs, Equal Protection, History, International, Scholarship | Permalink | Comments (2) | TrackBack (0)

Tuesday, January 7, 2014

Daily Read: The Cointelpro Revelations

A new book, The Burglary: The Discovery of J. Edgar Hoover's Secret FBI by  Betty Medsger tells the "never-before-told full story of the 1971 history-changing break-in of the FBI offices in Media, Pennsylvania"  that made clear the "shocking truth"  that J. Edgar Hoover was spying on Americans and which led to the Ciontelpro scandal.

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The NYT report compares the 1971 incident to contemporary events:

"Unlike Mr. Snowden, who downloaded hundreds of thousands of digital N.S.A. files onto computer hard drives, the Media burglars did their work the 20th-century way: they cased the F.B.I. office for months, wore gloves as they packed the papers into suitcases, and loaded the suitcases into getaway cars. When the operation was over, they dispersed. Some remained committed to antiwar causes, while others, like John and Bonnie Raines, decided that the risky burglary would be their final act of protest against the Vietnam War and other government actions before they moved on with their lives."

The NYT video, part of its "retro report" series is definitely worth a watch.

On NPR, one important aspect is how Betty Medsger obtained and accessed the information:

"I think most striking in the Media files at first was a statement that had to do with the philosophy, the policy of the FBI," Medsger says. "And it was a document that instructed agents to enhance paranoia, to make people feel there's an FBI agent behind every mailbox."

The NPR segment is definitely worth a listen:

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January 7, 2014 in Books, Current Affairs, Executive Authority, Foreign Affairs, History, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, December 20, 2013

Catharine MacKinnon Awarded Ruth Bader Ginsburg Award for Lifetime Achievement from AALS Section on Women in Legal Education

Professor Catharine MacKinnon, author of the books Feminism Unmodified and Toward a Feminist Theory of the State, as well as Are Women Human? has been announced as the recipient of the Ruth Bader Ginsburg Lifetime Achievement Award.  There will be an event January 3, 2014 at the AALS Conference in NYC .

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More from Feminist Law Professors here.

For those unfamilar with MacKinnon's recent work, this video from a 2011 talk at U Chicago Law School "Trafficking, Prostitution and Inequality" provides a good introduction.

 

 

December 20, 2013 in Books, Gender, News, Scholarship, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 18, 2013

Daily Read: Originalism and the Good Constitution

In their defense of originalism, Originalism and the Good Constitution (Harvard U Press 2013),  John McGinnis and Michael Rappaport emphasize the "supermajoritarian" nature of the US Constitution. 

9780674725072For many, any "supermajoritarian" thesis is defective given the composition of those considered within the polis at the time of the drafting of the Constitution.  McGinnis and Rappaport take this on.  As they write in their article with the same name of their book, published in Georgetown Law Journal in 2010, the "exclusion of most African-Americans from the constitutional enactment process was an enormous failure of the supermajoritarian process."  But, they argue, "this failure was corrected through the enactment of the Reconstruction Amendments," or even if not "fully resolved," the Reconstruction Amendments "came close enough to render further judicial correction inadvisable." 

As for women of all races, they recognize that this was also a "serious defect."  But again, this problem has been substantially corrected: "In 1920, the nation passed another supermajoritarian correction to a supermajoritarian failure: the Nineteenth Amendment guaranteed women the right to vote, assuring that women from that time forward could fully participate in the constitutional amendment process."

Here's more discussion over at LibertyLaw.

December 18, 2013 in Books, Theory | Permalink | Comments (0) | TrackBack (0)

Saturday, December 14, 2013

Federal District Judge Finds Portions of Utah's Criminalization of Polygamy Unconstitutional

In a 91 page  opinion  in Brown v. Buhman,  federal district judge Clark Waddoups has concluded that Utah's anti-bigamy statute is partially unconstitutional. 

Sister wivesThe statute, Utah Code Ann. § 76-7-101, provides:

  •             (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
  •             (2) Bigamy is a felony of the third degree.
  •             (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.

The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book ) and are represented by Professor  Jonathan Turley,  who blogs about the case here.


The judge's scholarly opinion includes a discussion of Edward Said's groundbreaking book Orientalism as a critique of the well-known passage in the United States Supreme Court’s 1879 decision in Reynolds v. United States upholding the criminalization of polygamy by reasoning, in part, that "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people."

Judge Waddoups considers both the due process challenge (applying Washington v. Glucksberg) and the free exercise challenge (applying Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah). 

In the due process analysis, the judge specifically found

 there is no “fundamental right” to polygamy under Glucksberg. To phrase it with a “careful description” of the asserted right [citations omitted],  no “fundamental right” exists to have official State recognition or legitimation of individuals’ “purported” polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State. The fundamental right or liberty interest that was under consideration in Glucksberg is instructive for the analysis of whether the asserted right to polygamy is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”

The judge also found that the criminalization of what it called the "religious cohabitation" portion of the statute did not rise to the level of a fundamental right, extensively discussing Lawrence v. Texas and the Tenth Circuit's limiting interpretation of Lawrence. 

However, the judge did find that "the cohabitation prong does not survive rational basis review under the substantive due process analysis."  This analysis implicitly imported a type of equal protection analysis, with the judge concluding:

Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.

Complementing this conclusion regarding discriminatory enforcement, the judge's free exercise of religion analysis concludes that while the Utah statute may be facially neutral, the cohabitation prong is not "operationally neutral" and not of general applicability.  The judge therefore applied strict scrutiny to the cohabitation prong and easily concluded the statute failed.

As an alternative free exercise analysis, the judge reasoned that the cohabitation prong also merited strict scrutiny because it involved a "hybrid rights" analysis under Employment Division, Department of Human Resources of Oregon v. Smith (1990), given the claims of due process, but also claims that the judge did not extensively analyzes such as free association, free speech, establishment, and equal protection.  

Thus, the judge concluded the cohabitation prong of the statute is "unconstitutional on numerous grounds."  However, the court explicitly narrowed the constructions of  “marry” and “purports to marry" in the statute, so that the Utah statute continues to "remain in force as prohibiting bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage."  Not surprisingly then, the judge's opinion does not cite the Supreme Court's opinion last term in United States v. Windsor involving DOMA and same-sex marriage, in which Justice Scalia, dissenting, invoked the effect the decision would have on polygamy. [I've previously discussed the similarities of same-sex marriage and polygamy claims here].

Given the district judge's narrowing construction and the clear constitutional issues with the Utah statute's breadth, it might be possible that the state does not appeal.

 

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December 14, 2013 in Books, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, December 9, 2013

Avery and McLaughlin on the Filibuster and Influencing the Judiciary

Michael Avery and Danielle McLaughlin, authors of The Federalist Society: How Conservatives Took the Law Back from Liberals, write over at the ACS Blog that the Democrats' recent move to invoke the nuclear option now gives them a chance to respond to a decades-long movement by conservatives and the Federalist Society to fill the federal bench with conservative judges.

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In our book, we analyze how these judges and others have responded to the arguments of Federalist Society members to move the law to the right in a variety of substantive areas. . . .

We hope the recent Senate Rules change will become an important step in restoring balance to the federal bench.  We acknowledge that this rule change might eventually come back to haunt Senate Democrats.  Either way, it was past time for the president and the Democrats in the Senate to realize that they have to play hardball with respect to judicial appointments.

December 9, 2013 in Books, Interpretation, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, December 5, 2013

Seventh Circuit Rejects First Amendment Claim of Guidance Counselor's Termination for Writing Sexually Explicit Book

Her FaultIn its opinion in Craig v. Rich Township High School District 227, the Seventh Circuit upheld the ability to terminate a high school guidance counselor for writing and self-publishing a book entitled  It's Her Fault.

The book is one of relationship advice for women, based on Carig's experience of counseling and his determination that women's emotionality disadvantages them in their quest to have a relationship with a man.  But as the Seventh Circuit panel noted, Craig's book uses "sexually explicit terminology throughout" and includes advice to women on "the wonderful world of submissiveness," as well as delving into "a comparative analysis of the female genitalia of various races."   Craig's book referenced his employment as a guidance counselor at the school, citing his interactions with women when “coach[ing] girls basketball, work[ing] in an office where I am the only male counselor, and [being] responsible for roughly 425 high school students a year, about half of whom are females.”

Craig's First Amendment challenge to his termination was dismissed by the federal district judge in Illinois because it failed to address a matter of public concern as required by Pickering v. Board of Education (1968).  The Seventh Circuit disagreed, concluding

Viewed as a whole, “It’s Her Fault” addresses adult relationship dynamics, a subject that interests a significant segment of the public. The proliferation of advice columns dealing with precisely this topic is a testament to its newsworthiness.

Nevertheless, the Seventh Circuit panel affirmed the district judge's dismissal, finding that the public employer's interest in promoting efficient and effective public service outweighed the interests of the public employee speaking on a matter of public concern.  Craig argued that his speech occurred outside his employment and was unrelated to it, but the Seventh Circuit concluded that Craig took deliberate steps to link his book to his employment.  As to the effect on the employer's interests, the panel looked at the classic First Amendment employee cases of Rankin and Connick, as well as Seventh Circuit precedent.   The court reasoned:

Defendants reasonably expected that some students would be apprehensive about asking Craig for help given his views on women. For example, Craig asserts that women do not succeed in relationships because of their tendency to “act based on emotion alone instead of emotion plus intellect.” Is it unreasonable to think a female Rich Cen‐ tral student who learned that Craig believed women are not inclined to rational thought may decide against visiting his office for career or other advice? We think not. Nor would it be unreasonable to believe a high school girl would keep her relationship problems to herself knowing that Craig stressed in his book the importance of a woman’s sexual “submissiveness” to her male partner. These portions of “It’s Her Fault” addressed subjects inextricably related to issues for which a female high school student may seek the advice of her guidance counselor. Defendants reasonably concluded that some of these students, knowing Craig’s views on these topics, would decline to ask for his help.

It concluded that the school's interests in "protecting the integrity of counseling services at Rich Central dwarfed Craig’s interest in publishing" his book, “It’s Her Fault.”  It stated that although  "Craig’s book touched on a matter of public concern, his view of relationships is not the sort of topic of expression that Defendants would require a compelling reason to restrict." 

 

December 5, 2013 in Books, Family, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 4, 2013

Magliocca Talks John Bingham

Gerard Magliocca (Indiana) appeared recently on Your Weekly Constitutional, a pod-cast and radio show affiliated with James Madison's Montpelier, to discuss his new book American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. Magliocca talks about John Bingham and the creation of the Fourteenth Amendment in this terrific hour-long segment with YWC host Stewart Harris.

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December 4, 2013 in Books, Fourteenth Amendment, History, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 3, 2013

Conservative Constitutionalism's Surprising Talking Points

Ever since the Supreme Court upheld the Affordable Care Act's individual mandate in NFIB, we've been treated to a new and surprising argument by constitutional conservatives.  That argument is in favor of judicial activism.  Yes, that's right: after years of railing against activist judges, conservatives now claim that the federal courts aren't activist enough, in particular, in checking out-of-control exercises of legislative power.

In a series of new books this fall, and reviews in the WSJ here and here (h/t Jon Gutek), constitutional conservatives argue that government regulation has gone wild, and that the courts have not properly checked this growth.  Exhibit A: the Supreme Court's ruling upholding the individual mandate in NFIB.

For example, Randy Barnett, reviewing Clark M. Neily III's Terms of Engagement, argues that Chief Justice Roberts rewrote the individual mandate as a tax, using a "saving construction" as an exercise in judicial restraint in order to uphold a law validly enacted by the legislature.  George Melloan, reviewing Josh Blackman's Unprecedented and Ken Cuccinelli's The Last Line of Defense, similarly argued that Chief Justice Roberts saved the mandate by "call[ing] the act's penalty for noncompliance . . . a 'tax' and waved the ACA through."  

But this turns history on its head.  The government always defended the individual mandate under both its Commerce Clause authority and its taxing power.  It argued the tax point explicitly to the Supreme Court, starting at page 52 of its brief.  It's hardly novel, then, let alone a rewrite of the Act, that the Court upheld the individual mandate under the taxing power.  Indeed, it's exactly what the government argued.  This may not be how constitutional conservatives read the Act's mandate, but it's how all three branches of government did.  The Court's ruling on the taxing power wasn't a reach to defer to the legislature.  Indeed, it wasn't a reach at all.

Barnett's argument that the courts aren't activist enough also ignores the startling activism of the Roberts Court.  Remember, the Court rejected the individual mandate under the Commerce Clause, even as it upheld it under the taxing power.  The Court also limited the Medicaid expansion component of the ACA.  We could go on and on with examples of how this Court overturned state and federal legislative acts, but this one is undoubtedly the biggest: the Court last summer rejected the coverage formula for preclearance under the Voting Rights Act--a provision enacted by a breathtaking bipartisan majority in Congress and signed by a Republican president (no big government types, these).  Given the history, it's hard to argue that this wasn't a supremely activist ruling.  This Court has demonstrated its appetite for activism.  But it's apparently not activist enough.  

Barnett goes on to argue that judicial activism in the name of legislative restraint is necessary because voters don't know enough to hold their elected representatives accountable:

In practice, the claim that laws and administrative regulations reflect the will of the public is often a fiction.  In the economic sphere, regulations are more commonly the product of pressure from politically connected and well-established companies at the expense of upstart entrepreneurs.  Because voters know little about these laws and their impact, they can't hold their representatives accountable for enacting them, and the few affected individuals can hardly influence a general election.

This seems a remarkable claim, given the political backlash to the ACA, or Obamacare, and, as Melloan notes, the political blows that Obamacare supporters suffered in the 2008 mid-terms and beyond.  Voters apparently knew how to hold Obamacare supporters accountable.  But the claim is also ironic: the very problem that Barnett describes only gets worse with more money in politics--a result that the activist Supreme Court ensured when it overturned congressional regulation of corporate campaign expenditures in Citizens United.  

These constitutional conservative talking points fall apart on their own terms.  And that's not even getting to the merits.

December 3, 2013 in Books, Congressional Authority, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Thursday, November 7, 2013

Daily Read: Representing Justice

If you haven't yet read - - - or looked at - - - Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (Yale University Press, 2011) RepJusticeby Judith Resnik and Dennis Curtis, the 2014 Order of the Coif biennial award to a book of the “highest order of legal scholarship” should convince you this book is not to be missed.

We previously discussed the book here in the context of Judith Resnik's presention for a celebration of Justice Ginsburg's equality jurisprudence.  

You can also access a slide show of some of the book's many images in a NYT article here.

 

 

November 7, 2013 in Books, History, Theory | Permalink | Comments (0) | TrackBack (0)

Friday, November 1, 2013

Weekend Read: The Circle by Dave Eggers

Circle-290Dave Eggers' new novel, The Circle, is a thought-provoking read for anyone working on surveillance, state secrets, corporate governance, privacy, or First Amendment issues as broadly defined.  There are have been some questions raised, as in the review in Wired, whether the book is technologically sophisticated - - - I'd say it's not - - - or whether it works as literature - - - again, I'd lean towards not.  I also think there are some gender and sexual politics that merit further analysis and mar the novel.    But even with these faults, it is one of those books that gives expression to the way one sees daily life in our connected age.

Margaret Atwood has a terrific review of the book in New York Review of Books that gives a good overview of the themes, laced with literary references that the novel itself lacks. Discussing the book over at the New Yorker Blog, Betsy Morais contextualizes the novel, including some of the criticisms and analogues. There's a good rundown of reviews and the divisions about the book in The Atlantic "Wire." 

The book lingers after it is read because it raises interesting questions about the relationships between corporate power and government, as well as our complicity in this internet and social age.  And it's a quick read - - - especially electronically.

 

UPDATE: And here's the NYT Sunday Book Review by Ellen Ullman, who concludes the novel "adds little to the debate" : "Books and tweets and blogs are already debating the issues Eggers raises: the tyranny of transparency, personhood defined as perpetual presence in social networks, our strange drive to display ourselves, the voracious information appetites of Google and Facebook, our lives under the constant surveillance of our own government."

November 1, 2013 in Books, First Amendment, Interpretation, Privacy, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)