Monday, September 30, 2013

What the Best Law Teachers Do

Michael Hunter Schwartz, Gerald F. Hess, and Sophie M. Sparrow recently published an outstanding 9780674049147 volume, What the Best Law Teachers Do (Harvard).  As the title says, the book is a compilation of the best practices of the best teachers in our field.  It should be at the top of the reading list of any law professor.

 

RobsonWe're thrilled at the ConLawProfBlog that our own Ruthann Robson is one of just 26 professors featured in the book.  (Other con-law-familiar names include Julie Nice and Heather Gerkin.)  Prof. Robson is profiled throughout the book, on everything from class prep to engaging students to providing feedback and evaluation--offering plenty of best-practices for any con law prof.  Check it out.

September 30, 2013 in Books, News, Scholarship, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, September 5, 2013

Michigan State Professor Removed From Teaching Responsibilities After Political "Rant"

As reported in The Detroit News this afternoon, a Michigan State University creative writing professor and novelist, William S. Penn, has been relieved of his teaching duties by administration for his anti-conservative and anti-Republican remarks made during class.  

Penn is a highly regarded writer and professor whose work often centers on his Native American/Anglo identity.  For example, his 1996 creative nonfiction book, All My Sins are Relatives, won a North American Indian prose award. 

A person in the classroom taped Penn and  Campus Reform, a project of the conservative Leadership Institute, produced the video below:

  

Given the current constructions of the Supreme Court's 2006 decision in Garcetti v. Ceballos,  Penn will have a difficult time showing he is speaking as a citizen rather than as a government employee and thus entitled to First Amendment protection.   Indeed,  the Sixth Circuit in Evans-Marshall v. Board of Education of Tipp City, which we discussed when it was decided in 2010, upheld the termination of a high school creative writing teacher who assigned Ray Bradbury's Fahrenheit 451. To explore that book’s theme of government censorship, she also developed an assignment based on the American Library Association's "banned books."

However, when the Sixth Circuit rejected the "academic freedom" argument of Evans-Marshall, it  opined that such a concept is limited to universities and does not extend to high schools.   As a university professor, Penn may have a better chance at making an academic freedom argument.

This could make a terrific in class exercise for ConLawProfs teaching First Amendment.

UPDATE: Take a look at the new Ninth Circuit opinion regarding academic freedom and Garcetti.  This would substantially improve Penn's position if adopted by the Sixth Circuit.

UPDATE 2: Statement of the MSU AAUP Chapter in support of academic freedom (and further fact intvestigation). 

UPDATE 3: Listen to an interview with ConLawProf Mae Kuykendall of MSU about the incident.

September 5, 2013 in Books, First Amendment, Fourteenth Amendment, News, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Daily Read: Interview with the Authors of Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America

EnemiesWithin3D

Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America is the just released book that lots of people who have an interest in surveillance and its constitutionality are talking about.

The authors, Matt Apuzzo and Adam Goldman, two AP reporters who won a Pulitzer Prize for their reporting on the New York City Police Department's surveillance of Muslims, gave an interview to "The Gothamist" and it's definitely worth a read.  For example, the authors say that some police officials essentially said "Hey look we have to think differently about activities that would be protected by the First and Fourth Amendments because they could actually be precursors to terrorism."   As one author responds: "That's just an incredible thing, when you think about the fact that a municipal police department is taking it upon itself [to decide] that constitutionally-protected speech is a warning sign for terrorism."

The authors state that their book is well-sourced, and indeed, the book has a companion website with maps and documents.

The authors will be appearing with Don Borelli, Former FBI Assistant Special Agent in Charge of the New York Joint Terrorism Task Force, at the Brennan Center for Justice in NYC on September 16, 2013.  Info and rsvp here.

 

September 5, 2013 in Books, Current Affairs, First Amendment, Fourth Amendment, Race, Religion | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 27, 2013

Daily Read: Ellis and Jones on the 50th Anniversary of the March on Washington for Jobs and Freedom

Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.

476px-Dr._Martin_Luther_King_Jr._at_a_civil_rights_march_on_Washington_D.C._in_1963Here are two that should not be missed.

Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington."  Ellis states, "the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done."   Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the cover of apathy, spurred by the myth of post-racialism and the supposed fear of constitutional overreach."

And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor.  However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material."  Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General.  The NPR story has a link to the FBI archive on King. 

RR
[image via]

 

August 27, 2013 in Affirmative Action, Books, Current Affairs, Executive Authority, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Scholarship, Theory, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 21, 2013

Robson on Rehm on Dressing Constitutionally

ConLawProfBlog's own Prof. Ruthann Robson (CUNY) recently appeared on NPR's The Diane Rehm Show to talk about her fascinating new book Dressing Constitutionally (Cambridge) with Steve Roberts.  The Show's page, linked here, contains the audio, a transcript, a summary, a selection from the book, and many comments.

DressingConstitutionally

We previously posted on Dressing Constitutionally here; we posted on the "I (heart) Boobies!" case, featured the Show's page, here.  We'll post our own conversation with Prof. Robson soon.

SDS

August 21, 2013 in Books, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 13, 2013

Robson's Dressing Constitutionally

ConLawProf's own Ruthann Robson (CUNY) just published her fascinating new book Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes (Cambridge, also available at amazon.com).  NPR's All Things Considered has a segment here; the Feminist Law Professors blog covered it here; and Robson's SSRN page for the Introduction and Table of Contents is here.

Dressing Constitutionally

We'll post an interview with Robson soon.  In the meantime, take a look at Robson's book blog, dressingconstitutionally.com.  And here's the abstract from SSRN:

The intertwining of our clothes and our Constitution raise fundamental questions of Robson hierarchy, sexuality, and democracy.  From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices.  In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations.  Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality.  At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies.  Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade.  The regulation of what we wear -- or don't -- is ubiquitous.

SDS

August 13, 2013 in Books, Gender, News, Scholarship, Sexuality, Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, July 22, 2013

Divided Fourth Circuit Rejects Reporters' Privilege to Protect Sources

In its opinion in United States v. Sterling, with James Risen as Intervernor, a sharply divided Fourth Circuit panel 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.

State_of_War_James_RisenThe underlying controversy involves James Risen's book, State of War: The Secret History of the CIA and the Bush Administration  and the prosecution of former CIA agent Jeffrey Sterling for various crimes related to his revealtions of classified information.   As Chief Fourth Circuit Judge William Traxler, writing for the panel majority on this issue, describes it,

Chapter 9 of the book, entitled “A Rogue Operation,” reveals details about Classified Program No. 1. J.S.A. 219-32. In the book, Risen entitled the program “Operation Merlin” and described it as a “failed attempt by the CIA to have a former Russian scientist provide flawed nuclear weapon blueprints to Iran.” J.A. 722. Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.

While the opinion involves two other issues, involving the suppression of the testimony of two other government witnesses and the withholding of the identities of several covert CIA operatives under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 - - - issues on which Chief Judge Traxler wrote a concurring and dissenting opinion - - - the nonexistence of a reporters' privilege is the most central from a constitutional perspective.   The majority opinion was unequivocal:

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

The majority reasoned that this result was mandated by the United States Supreme Court's 1972 opinion in Branzburg v. Hayes.  It did not credit the argument that Justice Powell’s concurring opinion in Branzburg made Branzburg's holding less clear.  Instead, it rejected Risen's contention that Powell's concurrence "should instead be interpreted as a tacit endorsement of Justice Stewart’s dissenting opinion, which argued in favor of recognizing a First Amendment privilege in criminal cases that could be overcome only if the government carries the heavy burden of establishing a compelling interest or need."  The majority stated that just as in Branzburg, Risen has

“direct information . . . concerning the commission of serious crimes.” Branzburg, 408 U.S. at 709. Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government  to protect national security, but who is charged with having endangered it instead.

That the crime is the leak itself does not seem to be noteworthy.  The majority likewise rejected the notion that there was any common law privilege.

For Judge Robert Gregory, dissenting, principles of a free press as expressed in the First Amendment should include a reporter's privilege, that should then be evaluated under a balancing test:

Protecting the reporter’s privilege ensures the informed public discussion of important moral, legal, and strategic issues. Public debate helps our government act in accordance with our Constitution and our values. Given the unprecedented volume of information available in the digital age – including information considered classified – it is important for journalists to have the ability to elicit and convey to the public an informed narrative filled with detail and context. Such reporting is critical to the way our citizens obtain information about what is being done in their name by the government.

For Judge Gregory, Justice Powell's concurring opinion modifies the holding of Branzburg.  Recognizing that the "full import of Justice Powell’s concurrence continues to be debated," Judge Gregory notes that appellate courts have subsequently hewed closer to Justice Powell’s concurrence – and Justice Stewart’s dissent – than to the majority opinion, and a number of courts have since recognized a qualified reporter’s privilege, often utilizing a three-part balancing test."  He thus finds it "sad" that the majority "departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters."  Judge Gregory would also recognize a "common law privilege protecting a reporter’s sources pursuant to Federal Rule of Evidence 501."

While there are statutory proposals and provisions aplenty, the continuing confusion over the meaning of Branzburg and the existence of a reporter's First Amendment or even common right to retain confidentiality of sources does call for resolution.  The Fourt Circuit's divided opinion squarely presents the issue for the Supreme Court .

RR

July 22, 2013 in Books, Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Opinion Analysis, Speech, State Secrets | Permalink | Comments (0) | TrackBack (0)

Friday, May 31, 2013

Daily Read: Angela Onwuachi-Willig on Inter-Racial Love and Marriage

While for many Conlawprofs Loving v. Virginia is the "face" of love and marriage across racial divides, looking both backward and forward from the 1967 case can add depth to teaching and scholarship about the issue.  9780300166828(And if it seems not to be an issue any longer, a quick look at the "controversy" caused by a cereal advertisement featuring an interracial couple and their child is worth considering).

Professor Angela Onwuachi-Willig's new book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family, just published by Yale University Press, provides that depth.

Her exploration focuses on Rhinelander v. Rhinelander, a case that did not involve a constitutional issue, except to the extent that racial categorizations always implicate issues of constitutionalism and equality. As Onwuachi-Willig describes in a piece in the UC Davis Law Review,

Alice Beatrice Jones was a working-class woman, who met Leonard Kip Rhinelander, a wealthy white male descendant of the Huguenots and heir to millions of dollars, in the fall of 1921. . . . [They married in a private ceremony and] Just two weeks later, on November 26, 1924, Leonard filed for annulment of his marriage to Alice. He argued that Alice had lied to him about her race. Leonard claimed that Alice had committed fraud that made their marriage void by telling him that she was white and by failing to inform him that she was of “colored blood.”

Rather than litigate her whiteness as many expected, she argued that he knew her racial status. 

 The trial of the Rhinelanders proved to be shocking on many fronts. It involved racy love letters, tales of pre-marital lust and sex, and the exhibition of Alice’s breasts, legs, and arms in the courtroom to prove that Leonard, who had seen her naked before marriage, would have known that she was colored at the time of their nuptials. What was most scandalous about the Rhinelander case, however,  was the trial’s end. The jury returned a verdict for Alice, determining that Leonard knew her racial background before marriage yet married her anyway. 

Onwuachi-Willig's book also provides contemporary arguments that current law fails to protect interracial couples, especially given the privileges that continue to be accorded on the basis of marriage.

As we wait for both Fisher v. UT and the same-sex marriage cases of Perry and Windsor, or as we contemplate their meanings once the opinions are rendered, Onwuachi-Willig's book is an important and pleasurable read.

RR

 

May 31, 2013 in Books, Family, Fourteenth Amendment, Gender, History, Race, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 15, 2013

Daily Read: First Amendment Institutions by Paul Horwitz

ConLawProf Paul Horwitz's new book, First Amendment Institutions seeks to develop the conversation about reorienting First Amendment doctrine towards institutionalism. 

Horwitz

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.

RR

May 15, 2013 in Books, Establishment Clause, First Amendment, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, May 6, 2013

Daily Read: New Book "The Price of Justice" Discusses the Caperton Case

9780805094718

The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal is the centerpiece of the new book, The Price of Justice: A True Story of Greed and Corruption by Laurence Leamer.  Recall that the Court in Caperton ruled that due process required judicial recusal of a West Virginia Supreme Court of Appeals judge, Justice Brent Benjamin, in a case involving Massey Coal because of the contributions by Massey Coal to Justice Benjamin's campaign.

The starred review from Publisher's Weekly describes the book as

the riveting and compulsively readable tale of the epic battle between Don Blankenship, the man who essentially ran the West Virginia coal industry through his company Massey Energy, and two seemingly ordinary attorneys: Bruce Stanley and David Fawcett. The centerpiece of the story is a West Virginia mine owner whom Blankenship purposefully bankrupted, and on whose behalf Stanley and Fawcett won (in 2002) a $50 million dollar verdict that is still unpaid. In hopes of having the ruling overturned by the West Virginia Supreme Court, Blankenship sought to “buy” a seat on the court by contributing over $3 million to the successful campaign of a conservative judicial candidate. However, the U.S. Supreme Court eventually found that Blankenship’s contributions were too much to allow the new West Virginia justice to hear the case. Leamer has produced a Shakespearean tale of greed, corporate irresponsibility, and personal hubris on the one hand, and idealism, commitment to justice, and personal sacrifice on the other. Blankenship is a villain for all time, and Stanley and Fawcett are lawyers who bring honor to their profession.

A good addition to that summer reading list for anyone interested in constitutional law and anyone who might like a reminder that lawyers can, indeed, be heroic.

RR

May 6, 2013 in Books, Campaign Finance, Cases and Case Materials, Courts and Judging, Due Process (Substantive), Elections and Voting, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, April 18, 2013

Daily Read: Spindelman on Carpenter on Lawrence

Integral to the same-sex marriage cases of Perry and Windsor argued before the Court last month is the 2003 case of Lawrence v. Texas.  Although the Court's opinion specifically excluded marriage in its caveat paragraph, the declaration that sodomy laws were unconstitutional under the Due Process Clause is generally considered a linchpin of recognizing any constitutional right to same-sex marriage under the Equal Protection Clause. 

Spindelman_marcProfessor Marc Spindelman (pictured) reviews Professor Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas in a trenchant essay entitled Tyrone Gardner's Lawrence v. Texas appearing in Michigan Law Review.  Spindelman acknowledges the contribution of the book even as he uses it as a springboard to reach different conclusions about the potential of the case to achieve equality or civil rights.  Spindelman focuses on Tyrone Gardner, who along with John Geddes Lawrence was arrested for sodomy, as a lens for exploring the reach of Lawrence v. Texas.  

Refering to Gardner, Spindeleman asks, "How could Lawrence v. Texas, this great victory for lesbian and gay civil rights, have done and meant so very little to the life of one of the two men most central to it?"  Spindelman's answers explore the status-quo bias and moral conservatism of Lawrence, connecting the case to affirmative action decisions as well as to the "Obamacare" case, Nat’l Fed’n of Indep. Bus. v. Sebelius.

Every ConLawProf teaching Lawrence v. Texas would do well to read Spindelman's essay. 

RR

April 18, 2013 in Books, Due Process (Substantive), Equal Protection, Gender, History, Race, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 17, 2013

Daily Read: Resnik on Equality's Frontiers

What do our visual images of justice tell us?  Judith Resnik with her co-author Dennis E. Curtis, provide ample, exciting and complex answers to that question in their marvelous book, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms, published in 2011.

Resnik's 2013 essay, Equality’s Frontiers: Courts Opening and Closing, adapted from remarks at an event celebrating Justice Ginsburg’s gender-equality jurisprudence and drawing on the book, is a brief but evocative look at how justice and equality are - - - and were - - - portrayed.  Two images Resnik includes and analyzes from WPA murals in courthouses are particularly salient.

First, there is an image of Justice as Protector and Avenger in a South Carolina courtroom.

Resnik figure 1aa
Not particularly remarkable, one might think, until one reads about the objections to "justice" looking like a “barefooted mulatto woman wearing bright-hued clothing.”

Second, there is an image in a Idaho courthouse:

Resnik figure 2a

Should this be removed as offensive?  Or displayed as an accurate part of the history of justice and equality?  Resnik shares the decisions of state officials, ultimately made in consultation with Native tribes.

Resnik contends that such images, including these from courthouses in South Carolina and Idaho,

make a first point—that courts were one of equality’s frontiers. The conflicts about what could or could not be shown on courthouse walls mirrored conflicts about what rights people had in court.

A terrific read - - - and look - - - as well as a reminder of the richness of the Representing Justice book.

RR
[images via]

April 17, 2013 in Books, Equal Protection, History, Profiles in Con Law Teaching, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 9, 2013

Daily Read: Two Very Different Clarks by Alexander Wohl

Justice Tom C. Clark and his son, Ramsey Clark, are the focus of Alexander Wohl's new book, Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy.

WohfatThe senior Clark, appointed by Harry Truman, resigned from the Court at age 67 because Lyndon Johnson appointed the junior Clark as Attorney General.  While we understand the conflict, the scenario causes most contemporary readers to pause.  Indeed, it is difficult to imagine a current sitting Justice making such a sacrifice for his child's career.  Especially since the father and son seemed to have very different politics.

Wohl uses the men's careers to illuminate not merely the personal dyamics, but the constitutional and political changes.  Consider this:

As a young government lawyer, Tom Clark was a key figure in enforcing the relocation of Japanese Americans, and as Attorney General he was vilified by civil liberties advocates for the Cold War policies he implemented, even as he promoted a progressive strategy on civil rights. Ramsey began his career to the ideological left of his father, was intimately involved in enforcement of civil rights laws during the turbulent 1960s, as Attorney General fought to expand protections of individual rights, and as a private attorney represented clients on the farthest reaches of the individual rights–government power spectrum.

This new book promises to be an engaging read.

RR

April 9, 2013 in Books, Congressional Authority, Race | Permalink | Comments (0) | TrackBack (0)

Monday, March 25, 2013

Daily Read: Not The Marrying Kind by Nicola Barker

9781137348036BarkerThe critique of marriage as a legal institution may seem a bit churlish as the same-sex marriage cases go to the United States Supreme Court this week.  It may seem as if there is universal agreement that marriage is "good" and the only question is whether governments can exclude same-sex couples from this "good."

Yet there is certainly a different way to conceptualize the issue.  In Not the Marrying Kind, U.K. Law Professor Nicola Barker engages the issues from several perspectives.  Importantly, her discussions do not portray the lesbian or larger LGBT communities as monolithically desiring marriage, but rather as critically engaged in questions of formal equality. She is scrupulous about presenting the complexities of opinions, theories, and strategies across several continents. Barker's book is a treat even readers who have been following these developments for years or are suffering from same-sex marriage fatigue.

I review Barker's book, as well as several other books on same-sex and opposite-sex marriage in an essay "Is Marriage Good for Women?" in this month's Women's Review of Books.

Barker's book is the best of the lot and essential reading for anyone seriously engaged in thinking about same-sex marriage.

RR

March 25, 2013 in Books, Comparative Constitutionalism, Current Affairs, Family, Gender, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 6, 2013

Daily Read: On Hugo Chavez

The United States edition of Rory Carroll's Comandante: Hugo Chavez's Venezuela will be released March 7 and it makes timely reading as Americans struggle to understand the legacy of Chavez including Venezuelan constitutional law.  (Interestingly, the South African edition is subtitled  "Inside the Revolutionary Court of Hugo Chavez.")

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Carroll is a reporter for The Guardian and the reviews of the British edition stress the fine reporting and indicate this is a book worth reading.  For example, in Literary Review: "Rory Carroll has written a well-considered and painfully fair epitaph for the Chávez regime" and in The Independent: "Rory Carroll is well positioned to provide a verdict. In good reporter fashion, he diligently tracks down his sources, turning up a colourful cast of red-shirted Chavista loyalists, bitter political opponents, and the everyday Venezuelans in between."  

RR

March 6, 2013 in Books, Comparative Constitutionalism, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 5, 2013

More O'Connor on Fresh Air Promoting her Book

Wednesday, February 27, 2013

Daily Read: William Faulkner and the Voting Rights Act

424px-William_Faulkner_01_KMJAs the Court - - - and the country - - - consider the Voting Rights Act (VRA) and the constitutionality of the preclearance provision at issue in Shelby County v. Holder ConLawProfs might find useful the insights of  Andrew Cohen, Atiba Ellis, Adam Sewer (on CJ Roberts), Adam Winkler or numerous others.  But the observations of William Faulkner (pictured), Nobel Prize in Literature recipient who placed Yoknapatawpha County, Mississippi on our (fictional) maps are also pertinent according to Joel Heller's excellent article, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 40 Hofstra Law Review 929 (2012), and available on ssrn.

Joel Heller argues that pronouncements that 'The South has changed' fail to take into account the "ongoing burden of memory that Faulkner portrays so powerfully."  Heller contends that the VRA's section 5 preclearance provision "does not punish the sons for the sins of the father, but keeps in check the uncertain consequences of a current ongoing consciousness of those sins."  Heller uses Faulkner to effectively discuss various attitudes short of intentional discrimination that might nevertheless have racially discriminatory results.  These include lawmakers shame and denial of the past accompanied by a devotion to the "things have changed" mantra that would prevent perceptions of racially problematic actions.  Additionally, "local control" possesses a nostalgic power, even as the era being evoked was one of white supremacy.

While Faulkner did not live to see the VRA Act become law, Joel Heller's engaging article is definitely worth a read as the Court considers Congressional power to remedy discrimination in the Old/New South.

RR
[image of William Faulkner via]

February 27, 2013 in Books, Congressional Authority, Elections and Voting, Fifteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2013

Daily Read: Dimock on Torture, Music, and Literature

Peter Dimock's just published book, George Anderson: Notes for a Love Song in Imperial Time, is a novelistic intervention in contemporary anguish about the legality of torture. 

9781564788016In a starred review, Publishers Weekly explains,

The novel takes the form of a letter from Theo Fales, editor and memoir ghostwriter for former CIA operatives, to David Kallen, a government official who directed Special Forces trainers to torture him before signing a document that led to the legalization of torture by the George W. Bush administration. Fales attempts to teach Kallen a method he devised as a, "means by which every person rids the self of its inordinate attachment to empire and creates reciprocity."

It's a brief but challenging book, interweaving music and literature to interrogate the roles of lawyers and journalists regarding the use of torture.   It is worth a read by anyone exploring how the constitutionality of "enhanced interrogation" should be decided.

RR

 

February 25, 2013 in Books, Due Process (Substantive), Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 19, 2013

Daily Read: Heins on Academic Freedom

The First Amendment's relationship to what we call "academic freedom" can be fraught (here's one recent example), but in her compelling new book, Priests of Our Democracy Marjorie Heins provides doctrinal, historical, and political links between our understandings.  Subtitled The Supreme Court, Academic Freedom, and the Anti-Communist Purges, the book takes as it centerpiece Keyishian v. Board of Regents (1967), a case that is oft-cited and just as often omitted from casebooks. 

Heins can be viewed takling about her book in a series of videos, available here; an excerpt from The Chronicle of Higher Education is available here.

9780814790519_Full
For ConLawProfs not teaching Keyishian - - - and this book will make you wonder why you are not - - - Heins' book illuminates important First Amendment doctrine and politics.  Her history develops the parties, the lawyers, and the institutions involved in Keyishian with fascinating detail and readable prose.  Her discussion of the larger anti-Communist "purges" is sharp and solid; it leads to considerations of the post 9/11 landscape.

And for ConLawProfs writing in the area, Heins' volume is an absolutely essential read. 

RR

February 19, 2013 in Books, First Amendment, History, Scholarship, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Friday, February 15, 2013

Daily Read: Sean Wilson's The Flexible Constitution

Sean Wilson (pictured) Wilsonprovides a compelling view of constitutional interpretation in his new book, The Flexible Constitution.  His work is often Dworkian in tone, although Wilson distinguishes himself from Dworkin's interest in moral reasoning.  Instead, Wilson writes that constitutional law problems are what "Wittgenstein described as aesthetical judgments - i.e. judgments that a connosseur would make" and Wilson stresses culture much more than morality.  (p. 83).

 

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Worth a special read is the book's Appendix, "The Philosophical Investigation," which provides a Wittigensteinian interrogation of the meaning of "the original meaning of the Constitution."  This would be a terrific exercise for a Constitutional Interpretation or Jurisprudence seminar.

RR

February 15, 2013 in Books, Interpretation, Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)