Monday, October 1, 2012
And although Toobin sees Citizens United as a triumph of Roberts’s partisan agenda, the facts related in “The Oath” can be read differently — to depict a rookie chief justice, nervous about moving doctrine too fast, reluctantly hustled along by an impatient conservative bloc.
[image: Roberts being sworn in by Stevens, with Jane Roberts, via]
Friday, September 28, 2012
Finally, at the end of Justice O’Connor’s opinion [in Grutter] upholding the law school’s racial preferences, she wrote that, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” How does Justice O’Connor know what the state of racial affairs know what the state of racial affairs will be in this country in 25 years and what authorizes her to put a sunset provision on the holding of this case? A legislator voting for an unpopular piece of legislation might wish to place her vote in the context of a statement suggesting that a time may come when her vote will change or become necessary. But given the historical and political complexity of the affirmative action debate, for Justice O’Connor to suggest that she has some special awareness as to when race-bases measures ay no longer be necessary, and to identify that time 25 years in advance, is judicial hubris and an inappropriate and arbitrary exercise of judicial power. In fact, it is not “judicial” at all.
It's from Eric Segall's book, Supreme Myths: Why the Supreme Court is Not a Court and Its Justices Are Not Judges (2012).
It is a sentiment with which others, including perhaps the now-retired Justice O'Connor, might agree, albeit in more gentle language.
Segall's chapter on "Affirmative Action" is a good review of the cases and controversies that have led to Fisher. His critical perspective on affirmative action would counsel the Court to defer to the university's use of racial criteria.
Segall's overall thesis - - - captured by the book's subtitle - - - provides a somewhat daunting view of the relevance of constitutional litigation in the Supreme Court, but Segall's book is ultimately an optimistic and engaging read.
Friday, September 21, 2012
Political Science Prof Alec Ewald reviews Pamela Brandwein's book, Rethinking the Judicial Settlement of Reconstruction in Law & Politics Book Review here.
Brandwein (pictured), a political science professor, has written a "bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history," according to Ewald.
It's Brandwein's focus on the state action doctrine that will most interest conlawprofs. Here is Ewald's ultimate assessment:
The total disenfranchisement of southern blacks after 1891 had many causes, but “[a] ‘closed’ doctrine of state action, one that shut the door on federal efforts to protect black rights, was not among them” (p.183). When we talk about the state-action doctrine, we are talking about a messy thing rather than a bright line. But the cases themselves, and particularly those all-too-quotable lines from the Civil Rights Cases, can seduce us into thinking the Court of the early 1880s drew a sharp boundary around all non-governmental action and declared it completely off-limits for the federal government. Brandwein shows it wasn’t so.
A good review can tell us whether or not the book is worth our time. Ewald demonstrates that Brandwein's book is a necessary one for anyone teaching or writing on state action.
Monday, September 17, 2012
Jeffrey Toobin's much-anticipated The Oath: The Obama White House and the Supreme Court comes out on Tuesday. Early reviews are excellent; here are links to a handful.
- Jeffrey Rosen has a thorough and balanced review in the Washington Post. Rosen calls Toobin "Woodward's successor as the chronicler of behind-the-scenes details from the Supreme Court," and says The Oath "is a page-turner." Toobin writes that the big scoop in the book is that Chief Justice Roberts's first draft of Citizens United was limited, saying only that the Bipartisan Campaign Reform Act didn't apply to Citizens United's movie critical of Hillary Rodham Clinton (and not that the BCRA was unconstitutional, as the Court eventually ruled). (Toobin also writes of that other big event involving Chief Justice Roberts: his switch in the ACA case.)
- Terry Gross has a wonderful interview with Toobin on Fresh Air. The NPR link also has a link to excerpts from the book.
- Kirkus Review calls the book "a skillful probing of the often-discordant relationship between the president and the Supreme Court" and "[s]hrewd and elucidating."
- The Huffington Post review focuses on Chief Justice Roberts's ACA switch.
- Politico's Playbook has a couple excerpts.
Tuesday, May 29, 2012
His own op-ed, for example, argues that the Constitution itself is responsible for current political pathologies. He singles out the Electoral College and the composition of the Senate for special note, both of which result in states such as New York, California, and Texas being diminished.
This incorrect equality amongst states is also highlighted by Kevin Bleyer in his new book, Me The People. To be sure, Bleyer is a comedy writer, but as he argues in the recent excerpt in Salon, "despite what the original Constitution of the United States says about the qualifications for statehood and the guarantee of representation," there are just some states that don't deserve their status. One rationale for such disrespect: there are "more Americans in prison than in Nebraska."
For his part, Sandy Levinson focuses on Article V as "the worst single part of the Constitution" because it has made the US Constitution "among the most difficult to amend of any in the world." He argues that the "near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about."
Yet amending the Constitution - - - by repealing an Amendment - - - was a topic in a debate among Republican hopefuls for one of Missouri's two seats in the United States Senate. The Amendment in question is the Seventeenth Amendment; "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures." Recall that prior to the Seventeenth Amendment, Article I §3 controlled: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . . ." So, basically, the Seventeenth Amendment required direct election of Senators.
As the St. Louis Beacon reports, Senate hopeful (and current US Representative) Todd Akin thought a repeal of the Seventeenth Amendment might shift the balance back towards "states rights." The other candidates were less interested in the issue. Their respective statements are available on YouTube, linked at the St Louis Beacon article. And there are certainly more scholarly discussions, including one between Todd J. Zywicki and Ilya Somin hosted by the Federalist Society last year.
For those participating in summer institutes for undergraduates or comparative law programs, there is much fodder here.
[image: 17th Amendment as ratified via]
Sunday, May 20, 2012
If you missed the first installment, Hilary Mantel's bestselling and Man Booker Prize winner, Wolf Hall, the second in the trilogy can nevertheless be started post-haste. It's the just-released Bringing Up The Bodies. Stellar reviews appear in the NYT, and LA Times. Novelist and intellectual Margaret Atwood, in The Guardian, noted that although this volume centers on the fall of Anne Boleyn, like its predecessor, it's really about "the deep, dark, labyrinthine, but strangely objective mind of Thomas Cromwell."
As Atwood wrote:
The historical Cromwell is an opaque figure, which is most likely why Mantel is interested in him: the less is truly known, the more room for a novelist. Cromwell rose from obscure and violent origins through a life abroad – sometime soldier, sometime merchant – to become England's top go-to man, the prime maker-and-breaker of fortunes and spines, secretly hated and despised, especially by aristocrats. He played Beria to Henry VIII's tyrannical Stalin: he did the dirty work and attended the beheadings, while Henry went hunting.
But what Atwood doesn't mention is that Thomas Cromwell (pictured above in the famous Hans Hoblein portrait which is discussed in Mantel's novels) is a lawyer. A consumate lawyer. In many ways, Cromwell is witness, and perhaps midwife, to the rise of English law, although law will not be sufficient to save him (presumably in volume III of the trilogy).
While some ConLawProfs find novels a guilty pleasure (or even not pleasurable!), the legal machinations and historical resonances of Bringing Up The Bodies make this novel a great summer read that could inform teaching and scholarship.
And for those who prefer to listen to books, the audiobook is available, with a sample (and a great description of Cromwell starting after about a minute, and including the description of the painting) here:
[Portrait of Thomas Cromwell by Hans Holbein, circa 1533, via]
Sunday, May 13, 2012
Ronald K.L. Collins and Sam Chaltain take the title of their book - - - WE MUST NOT BE AFRAID TO BE FREE - - - from Justice Black's dissent in In re Anastaplo, 366 U.S. 82 (1961). Con Law Prof George Anastaplo had argued for admission to the Illinois bar, despite his refusal to answer the questions of the state Committee on Character and Fitness pertaining to his membership in the Communist Party.
Collins and Chaltain devote their first chapter to Anastaplo, providing the "back story" and the doctrine. Subsequent chapters also promise similar engagements with well-known and lesser-known free speech cases. Harvard Law Review, in its "Recent Publications" segment, lauds the book: it " skillfully blends history and doctrine, furnishing the reader with an introduction to core free speech cases through vivid and real-life accounts of the parties, judges, and attorneys involved," providing " a deeply engaging work of scholarship for general readers and students of the law alike."
Published by Oxford University Press, this is a must-have for every ConLaw Prof teaching or writing about the First Amendment. The book has been out for a year, but ConLawProfs behind in their reading should put the book on this summer's reading list. As a terrific teaser, or refresher, an hour-plus long video of Collins and Chaltain discussing the book last year at The Thomas Jefferson Center for the Protection of Free Expression is available on C-Span here.
Sunday, May 6, 2012
The book of the week is definitely Robert Caro's fourth (and next to last) volume of the biography of Lyndon Baines Johnson, the 36th United States president. In over 700 pages, Caro discusses and documents five tumultuous years in the life of LBJ - - - and in the nation's life - - - roughly from 1960 until 1964.
It's a period that includes the assination of JFK with LBJ assuming the presidency. LBJ's oath of office, observed by Jackie Kennedy, is captured in an iconic photograph (right via). Caro's details of the event are based in part on interviews with the photographer.
The NYT Sunday book review has a front page review by the United State's 42nd president, Bill Clinton. In a passage that might give some pause given Clinton's own problems, Clinton writes:
As Caro shows in this and his preceding volumes, power ultimately reveals character. For L.B.J., becoming president freed him to embrace parts of his past that, for political or other reasons, had remained under wraps. Suddenly there was no longer a reason to dissociate himself from the poverty and failure of his childhood. Power released the source of Johnson’s humanity.
NPR also has a terrific review as well as an excellent interview by Steve Inskeep with Caro, stressing his writing process. Inskeep provides more insight and his own observations, including critiques of Caro's work, in an essay in The Washington Post. C-Span will air a two-part interview with Caro.
Caro vows to finish the final volume of the biography, which will cover the period until LBJ's death in 1973. It will undoubtedly include LBJ's nomination and the Senate's confirmation of Thurgood Marshall to the United States Supreme Court.
Sunday, April 29, 2012
In Law and Politics Book Review, Tom S. Clark reviews a timely book, American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power by Stephen M. Engel. Clark writes that "Engel’s argument is essentially that the terms of constitutional political debate have evolved over the past 220-plus years and that the nature of political confrontations with the Court bears witness to those patterns."
Clark compliments Engels' historical and descriptive narrative,noting that his "knowledge of the content and nature of political attacks on the Court throughout American history is impressive." He finds Engels' explanatory theory of the "displacement of civic republicanism with liberal pluralism" provocative. But he wonders whether "the story is not that politics changed and as a consequence the Court has become “safe” from attacks on its legitimacy. Instead, the story could be that the Court has strategically taken steps to build a strong reputation among the public (the real source of power in American politics) and thereby cornered the politicians into a position where they can no longer actively threaten the Court, for fear of political reprisal from the public."
Yet Clark's own suggestion that the Court has solidified its power beyond approach might be vulnerable. The most recent example is public criticism of Scalia's conduct in the oral arguments in Arizona v. United States. There has also been a resurgence of interest in the question of whether Supreme Court Justices (and all federal judges) are guaranteed life tenure by the Constitution.
And in today's NYT "Sunday Review" prominent literary figure E.L. Doctorow essentially argues that the United States has become unexceptional: "indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries of the world." Notable, Doctorow's essay begins and ends by focusing on the Supreme Court, with a healthy dose of Court-blaming in the middle. Definitely worth a read for the way in which the Court is being implicated in political rhetoric.
Situating the current rhetoric in the history that Engels and Clark provide adds necessary depth to our contemporary understandings.
Tuesday, March 13, 2012
A good place to start might be any one of the books by the most prolific Justice, William O. Douglas, with fifty-one books. Then one might try one of Justice Joseph Story's thirty-three books. Then one could read a a book by William Howard Taft, best remembered as President, but also Chief Justice, who wrote thirty-one books.
Professor Ronald Collins has lost of suggestions in a terrific posting at SCOTUSblog discussing Supreme Court Justices as authors. Collins provides a great overview with some noteworthy books highlighted (including a section on constitutional law), as well as organized by Justice.
This bibliography of 351 books is a great resource!
Thursday, November 10, 2011
The Court's unanimous opinion in Clinton v. Jones (1997), involving the postponement of the civil case by Paula Jones against then-President Clinton, is excerpted in most Constitutional Law casebooks, usually right after United States v. Nixon (1974), involving the subpoena duces tecum seeking Watergate material from then-President Richard Nixon.
The statement in the Clinton v. Jones opinion, authored by Justice Stevens, that the Jones litigation was "highly unlikely to occupy any substantial amount of petitioner’s time," seemed to have been proven false by subsequent events. In his new book, Five Chiefs, Justice Stevens, defends his statement:
[T]he Court had been confronted with the question whether either the Constitution or respect for the office of the president required a federal district court to defer the trial of a damages claim against President Clinton until after the end of his term. In a unanimous opinion that Bill [Rehnquist] assigned to me, we upheld the decisions of the lower courts denying the request for a stay of the trial. Among the arguments that we rejected was a claim that permitting the trial to proceed would violate the doctrine of separation of powers.
While I am not aware of any significant scholarly criticism of the legal analysis in my opinion, numerous commentators have rather enthusiastically suggested that only the village idiot could have authored one statement that I made. In my response to the argument that the burdens of the litigation would impair the president’s ability to discharge his official duties, I declare: "If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency. As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time.” Clinton later gave deposition testimony that triggered his impeachment, which, in turn, obviously occupied a huge amount of his time. These events, it is argued, proved my comments to have been ludicrous.
That appraisal depends on a failure to recognize both the difference between the trial proceedings and the unforeseen impeachment. A postponement of the trial would not necessarily have justified a postponement of the president’s deposition. Indeed, as the president’s lawyers stated at oral argument, a delay in the trial would have increased the need for depositions because of the risk that key witnesses’ memories might fade. Given that case (Clinton v. Jones ) was settled, we will never know just how much time a trial would have consumed. We did know that our ruling did not give rise to the predicted avalanche of litigation. And the impeachment proceedings were certainly not a part of “the case at hand” referred to in our opinion.
Still the reaction to my words illustrates that an author is seldom the best judge of how readers will react to his work.
Note however that Court did not simply uphold "the decisions of the lower courts denying the request for a stay of the trial," as Stevens states. Instead, as Stevens' opinion for the Court stated:
we are persuaded that it was an abuse of discretion for the District Court to defer the trial until after the President leaves office. Such a lengthy and categorical stay takes no account whatever of the respondent's interest in bringing the case to trial. The complaint was filed within the statutory limitations period--albeit near the end of that period--and delaying trial would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.
Here's a quick overview of the case and developments from WaPo.
Monday, October 24, 2011
Did Robert Bork, as a law professor, write a “75 page” brief to Presidential Candidate Barry Goldwater arguing that the bill that would become the 1964 Civil Rights Act was unconstitutional?
Bork (pictured left) the controversial conservative and rejected Supreme Court nominee, has reappeared on the political scene as the co-chair of the legal advisory team of potential GOP Presidential candidate Mitt Romney. He has recently also made news for opining that women are no longer discriminated against and do not need constitutional attention.
Bork has also long been famous for his argument that the 1964 Civil Rights Act, including Title VII, is unconstitutional. Rand Paul has also made this argument, although at least one commentator distinguishes Rand Paul’s position from Goldwater’s based upon Goldwater’s “constitutional concerns” rooted in the “75 page brief” Bork sent to Goldwater as well as future Chief Justice William Rehnquist’s concerns.
When internet references to the “75 page” memo or brief mention a source, they cite to Richard Perlstein’s Before the Storm: Barry Goldwater. Speaking on C-Span (written transcript provided), Perlstein in 2001 discussed Goldwater’s agonizing over the 1964 Civil Rights Bill which was resolved by the influence of Rehnquist’s statements and Bork’s 75 page memo against the Act. In Perlstein’s book, he sources the Bork brief to James Perry, [A Report in Depth on] Barry Goldwater: A New Look at A Presidential Candidate. Perry’s “Report in Depth” is a “Newsbook” peppered with photographs, published by the National Observer in 1964. In the chapter “Men Around Goldwater,” the author names Bork as a “Goldwater favorite” and one of a number of law professors to whom “the Goldwater idea men went for advice” on the 1964 Civil Rights Bill. Perry wrote:
The Goldwater staff asked for an objective, legal analysis by Professor Bork of the civil-rights bill. They received a 75-page critique, which was used (along with other analyses) in preparing Mr. Goldwater’s statement against the bill.
Scholars wishing to read the “75-page critique” by Bork sent to Goldwater - - - or to Goldwater’s staff - - - will have a difficult time obtaining it, as I learned when I asked faculty law librarians. The memo is not in the seven volumes of Bork nomination materials compiled by Roy Mersky and J. Myron Jacobstein in their series of Supreme Court Nominees. The Mersky and Jacobstein Volume 14-F, however, does include Bork’s notorious piece for The New Republic, “Civil Rights—A Challenge,” (August 31, 1963), arguing that the Act would be a “loss of liberty,” as well as the New Republic Editors’ reply and Bork’s rejoinder (here). It is apparently not in the Goldwater papers at the Arizona Historical Foundation at Arizona State University or in the papers of Dean Burch, also at ASU, the Chair of the RNC in 1964. As for the papers of Robert Bork, there may be some at the Library of Congress, although apparently Bork retains the authority to grant access.
Does the “75 page” memo still exist - - - perhaps a Xerox of a carbon copy - - - in someone’s files? Did it ever?
Almost a half-century has passed. It is not that a missing document is nefarious (indeed, it sometimes seems a wonder that anything is preserved) or that Bork should be assumed not to have changed his opinions (indeed, he has recently stated that the “transition to a non-discriminatory society was much easier” than he thought it would be). But page-number precise references to a document that is not available is intriguing.
So, if you have a copy or have read a copy of that "75 page" memo, I’d love to hear from you.
[image: Robert Bork, 2007, via]
October 24, 2011 in Books, Commerce Clause, Congressional Authority, Courts and Judging, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Gender, History, Profiles in Con Law Teaching, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)
Monday, September 26, 2011
It's banned books week again.
This year one of the "top ten" books being challenged, according to the American Library Association, is Nickel and Dimed: On (Not) Getting by in America, by Barbara Ehrenreich, with the reasons given as "drugs, inaccurate, offensive language, political viewpoint, religious viewpoint."
Ehrenreich's more recent book, Bright-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America, caused a bit of a stir as we discussed here, but the decade old Nickel and Dimed has recently become more controversial. The objections seem to be to Ehrenreich's unpopular view of capitalism. Ehrenreich's "update" on her book argues that things have gotten worse.
Banning Sherman Alexie's National Book Award winning novel, The Absolutely True Diary of a Part-Time Indian, on the list again this year, is understandable in the context of the history of banning books for sexual language. A bit less understandable, but still within some interpretations of the sexual, is the number one book on this year's list yet again, And Tango Makes Three, a children's book based on the true story of two penguins in the Central Park Zoo who come together to raise a chick. The problem, presumably, is that the penguins are both male.
Yet the banning of Ehrenreich's Nickel and Dimed seems exceedingly problematical under the First Amendment. While "obscenity" has a special (and devalued) position within First Amendment doctrine, first-person reporting that casts capitalism in an unfavorable light would seem to be the type of political speech that Americans most highly valued, in doctrine as well as practice.
Wednesday, June 29, 2011
Today's vote in the Greek Parliament regarding "austerity measures" is important to Greece's continued membership within the European Union (EU), although precisely how important is subject to debate. Also subject to debate, and much protest in Greece, is whether such "austerity measures" will work. Gavin Hewitt, whose coverage and analysis for the BBC has been excellent, notes with understatement today, "Greek democracy is under strain."
This may be a good day to reread Antione de Saint-Exupéry's The Little Prince. Not only is it Saint-Exupéry's birthday (he was born in 1900 in Lyons, France), but his best known work, The Little Prince may be relevant to discussions of constitutional democracy and the European Union.
For example, Professor Mattias Kumm, in To Be A European Citizen? The Absence Of Constitutional Patriotism and The Constitutional Treaty, 11 Columbia Journal of European Law 481 (2005), discusses the ill-fated Constitutional Treaty of 2004 when it seemed as if it would be ratified. His theorizing about constitutional patriotism necessary to support the European Union (or even the Eurozone) still resonates. As does the use of The Little Prince to discuss the withdrawal of nations from the EU:
The king was the sole inhabitant of asteroid 325. When the little prince arrived he was happy to see the little prince (Aha! A Subject!). “Clad in royal purple and ermine” and “seated on a throne at the same simple and majestic” he claimed to have absolute authority, though it was unclear over what and from where his authority derived. His air of authority sparked the curiosity of the little prince.
“Sire over what do you rule?”
“Over everything,” said the king, with magnificent simplicity.
The king made a gesture that took in his planet, the other planet, and all the stars.
“And the stars obey you?”
“Certainly they do,” the king said. “They obey instantly. I do not permit insubordination.”
The Little Prince then asks the king to order the sun to set, because he desired to see a sunset. At this point, the king starts to provide deeper insights into the nature of his authority.
“If I ordered a general to fly from one flower to another like a butterfly, or to write a tragic drama, or to change himself into a sea bird, and if the general did not carry out the order that he had received, which one of us would be wrong?”
“Accepted authority rests first of all on reason. If you ordered your people to go and throw themselves in the sea, they would rise up in revolution. I have the right to require obedience, because my orders are reasonable.”
“Then my sunset?” the little Prince reminded him ...
“You shall have your sunset. I shall command it. But, according to my science of government, I shall have to wait until conditions are favorable.”
When asked when that would be, the King consults a bulky almanac before informing the Prince that this evening favorable conditions would occur at twenty minutes to eight.
At this point, the little Prince was beginning to lose interest and wanted to leave. The king, however, refused to let him go because he was proud to have a subject. The little prince turns to the king and says:
“If Your Majesty wishes to be promptly obeyed he should be able to give me a reasonable order. He should be able, for example, to order me to be gone by the end of one minute. It seems to me conditions are favorable ...”
He then leaves, not without noticing the king's “magnificent air of authority.”
[image of The Little Prince in Greek translation via]
Friday, June 17, 2011
ConLawProf Diane Mazur's recent book published by Oxford University Press, A More Perfect Military: How the Constitution Can Make Our Military Stronger argues that the military has become unmoored from constitutional constraints. The Court, she argues, has not only engaged in military deference, but in military exceptionalism.
In an interview about the book, Mazur states "the military is most healthy when it respects constitutional values. Unfortunately, since the end of the Vietnam draft, our civilian branches of government–the President, Congress, and the courts–have been trying to distance the military from the Constitution. They assume that constitutional values get in the way of military effectiveness, but that’s not true."
Much of her book concerns the constitutional concerns of equality: how should the military deal with sexual minorities and with women within its ranks? She provides concrete examples, but argues that the Court - - - in cases such as the unanimous opinion in Rumsfeld v. FAIR (the Solomon Amendment case) - - - has impeded the military from diversifying.
Sunday, June 12, 2011
ConLawProf Kenji Yoshino's recent book, A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice, is a delectable addition for ConLaw summer reading lists.
As the subtitle indicates, Yoshino not only discusses a select group of Shakespeare's plays, but then connects them to our contemporary notions of justice and to current events.
Here's a brief snippet, courtesy NYU Law, of Yoshino discussing one of Shakespeare's less popular dramas, Titus Andronicus: (click to start)
In a review, Eric Posner criticizes the book for trying - - - and failing - - - to illuminate current events through Shakespeare, but I suspect that many readers will disagree. Yoshino's opens Shakespearean texts to contemporary meanings, making important connections for current constitutional law debates.
It seems summer would be much more rewarding if one eshewed the "con law" bestsellers in favor of Shakespeare in the park (or on the beach) with Yoshino's book.
After reading Heyman on Holmes as Mr. Hyde, one may be in need of a terrific primary source for Holmes' views on free speech. Look no further than The Fundamental Holmes: A Free Speech Chronicle and Reader – Selections from the Opinions, Books, Articles, Speeches, Letters and Other Writings by and about Oliver Wendell Holmes, Jr., edited by Ronald K. L. Collins.
Paul Weizer's review in Law & Politics Book Review observes:
The main aim of this book is to explore the life of Holmes and the events which led to his free speech jurisprudence. This is done through a careful examination of the personal correspondence, public speeches and judicial opinions of Holmes. This book is billed as the first complete collection of works by Justice Holmes on matters related to free speech. However, it is more than just that. By providing letters and speeches, in addition to the traditional judicial opinions found elsewhere, Collins helps to provide a sense of the man and a view of the Justice.
Weizer does fault the book for having commentary "so thorough" that "often times it is unnecessary to read" the actual passages from Holmes. Weizer also wonders about the intended audience for the book. But for scholars citing Holmes' opinions, the book seems an invaluable resource for further contextualizations of the opinions and access to other primary sources.
Wednesday, May 25, 2011
The successful filibuster last week of President Obama's nomination of Goodwin Liu (Boalt Hall) to the Ninth Circuit was hardly based on a principled dispute about constitutional interpretation. Stated reasons for opposition (and thus for the filibuster) ranged from Liu's alleged position on affirmative action to his opposition to President Bush's nominations of then-Judges Roberts and Alito to the Supreme Court. (The reasons for opposition are well known; here's the floor debate in the Congressional Record, more or less hitting the highlights.) Most of the reasons were based on selective reading and misinterpretations of Liu's work (although Liu did oppose the nominations of Chief Justice Roberts and Justice Alito). Con Law Prof Geof Stone (U. Chicago) summed it up in yesterday's Chicago Tribune, writing that the filibuster was merely "partisanship run amok."
Constitutional interpretation played a bit part in opposition to the Liu nomination--but only a bit part. And for good reason: Liu's interpretive method, constitutional fidelity, is hardly controversial. It's reflected in different ways in opinions authored by Justices ranging from Ginsburg to Scalia. It looks an awful lot like Justice Breyer's pragmatic approach, as described most recently in Making our Democracy Work. And it has strong theoretical roots, going back to work like Philip Bobbitt's classic, Constitutional Fate.
Here's what Liu wrote (or co-wrote, with two other prominent con law scholars) in Keeping Faith with the Constitution:
To be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution's meaning and democratic legitimacy over time. Original understandings are an important source of constitutional meaning, but so too are the other sources that judges, elected officials, and everyday citizens regularly invoke: the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.
Keeping Faith, at 2.
Compare that with Justice Breyer's pragmatism:
Modern American judges working in this tradition, like most judges, use textual language, history, context, relevant traditions, precedent, purposes, and consequences in their efforts to properly interpret an ambiguous text. But when faced with open-ended language and a difficult interpretive question, they rely heavily on purposes and related consequences. In doing so, judges must avoid interpretations that are either too rigid or too freewheeling. They must remain truthful to the text and "reconstruct" past solutions "imaginatively" as applied to present circumstances, at the same time projecting the purposes (or values) that inspired those past solutions to help resolve the present problem. The judges must seek an interpretation that helps the textual provision work well now to achieve its basic statutory or constitutional objectives.
Making our Democracy Work, at 80-81. These are just short excerpts, to be sure, and Justice Breyer may have his detractors, but Liu's similarities throughout Keeping the Faith with this sitting Supreme Court Justice suggest that his approach is hardly outside the mainstream.
Monday, February 28, 2011
Here are a few that you might not want to miss.
Food Fight, March 1, 6.30 pm, organized by the law review at City University of New York School of Law, raising First Amendment issues such as "veggie libel laws" and campaign finance.
Rehabiliating Lochner: Defending Individual Rights against Progressive Reform, March 1 [and subsequent dates] sponsored by The Federalist Society. David Bernsetin will be speaking about his forthcoming book at various venues throughout the month.
Marlee Kline Lecture in Social Justice, March 3, 5.30 pm, organized by the Faculty of Law at University of British Columbia, Vancouver, Canada, delivered by Ruthann Robson.
Citizens United and Corporate Speech, March 4, 8.30 am, hosted by The John Marshall Law Review and Steven Schwinn at the John Marshall Law School in Chicago, featuring a keynote by Thomas E. Mann of the Brookings Institute and panelists such as Geoffrey Stone, Atiba Ellis, and Monica Youn, director of the Brennan Center for Justice at New York University School of Law.
Writing a Brandeis Biography, March 7, 3pm, at the Oklahoma University College of Law, by Melvin Urofsky, author of notable biography of Justice Louis Brandeis. Urlovsky will also speak at a Faculty Colloquim at noon on "“Dissent As Form of Constitutional Dialogue."
Justice Clarence Thomas: 20 Years, March 11, 9.30am, at the Detroit Athletic Club, hosted by the University of Detroit Mercy Law Review. The morning panel is devoted to individual liberties and the afternoon panel focuses on governmental powers.
Moral Imagination in Judging, March 11, noon, at Washburn University School of Law, by Susan Bandes (pictured right) delivering the annual Foulstein Siefkin Lecture, organized by the Washburn Law Journal.
Boundaries and Enemies, 2011 Conference of The Association for the Study of Law, Culture and the Humanities, March 11 - 12, at University of Nevada, Las Vegas – William S. Boyd School of Law, organized by the association. Two packed days of panels and events.
Official Wrongdoing and the Civil Liability of the Federal Government and Officers, March 18, 9am, organized by the law journal at the University of St. Thomas School of Law, Minneapolis. The afternoon panel is entitled "Constitutional Claims: Bivens Suits."
Perspectives on Prerogative, March 24-26, The LeFrak Forum and the Symposium on Science, Reason, & Modern Democracy, Department of Political Science, Michigan State University, will "examine an especially troubling form of executive power: "prerogative" or "extra-legal" or "extra-constitutional" power."
Other events for which there is some information include two at Chapman University School of Law: Randy Barnett on March 8 discussing the constitutionality of the Patient Protection and Affordable Care Act, and Eugene Volokh on March 16 on "The Mechanisms of the Slippery Slope," and at Loyola Law School- New Orleans, on March 11 at noon, Calvin Johnson and Steven Willis on the constitutionality of the Patient Protection and Affordable Care Act, moderated by Cynthia Lepow.
and in April .......
Constitutional Law Symposium: Debating the Living Constitution, April 2, 8.30 am - 12.30 pm, organized by the Center for Constitutional Law at Drake University College of Law, Iowa, featuring speakers such as Rebecca Brown of USC School of Law.
Friday, February 4, 2011
Hillary Clinton, speaking as US Secretary of State, condemned violence against members of the press in Egypt, noting that "freedom of the press" is one of the pillars of an "open and inclusive society."
Meanwhile, in the United States itself, a complaint in federal court has been filed this week against former president Jimmy Carter and Simon & Schuster, the publisher of Carter's book, Palestine: Peace Not Apartheid. The cause of action is noteworthy: consumer protection statutes in New York prohibiting deceptive acts in the conduct of business and trade. The complaint alleges:
5. Plaintiffs wish to be clear about what this lawsuit is not about. It is not in any way an attempt to challenge Defendant JIMMY CARTER's right to write a book, or Defendant SIMON & SCHUSTER's right to publish a book which serves as a forum for Carter to put forward his virulently ant-Israeli bias or any other agenda he or his financial backers wish to put forward. Nor do Plaintiffs challenge his right to use falsehood, misrepresentations and omissions, misleading statements, or outright lies, all of which characterize this book, to further his agenda. Indeed, Plaintiffs fully recognize that, such an agenda from Defendant JIMMY CARTER should come as no surprise, given his well known bias against Israel and the interests of Israel's sworn enemies who have given millions of dollars to support the Carter Center and Defendant JIMMY CARTER's work.
6. Rather, Plaintiffs bring this action to challenge Defendants' actions in deceiving the public by promoting and selling this Book as a factually accurate account in all regards of the events its purports to depict, rather than truthfully and accurately promoting and selling it as the anti-Israel screed that it is, intentionally presenting untrue and inaccurate accounts of historically recorded events, as witnesses to and participants in such events pointedly have come forward to declare. This lawsuit challenges the Defendants actions in attempting to capitalize on Carter's status as a former President of the United States to mislead unsuspecting members of the reading public who thought they could trust their former President to tell the truth.
7. The Plaintiffs are members of the reading public who thought they could trust a former President of the United States and a well-established book publisher to tell the truth and who paid to get the truth from the Defendants, but were deceived when they learned that the Book is characterized instead by falsehoods, misrepresentations, misleading statements,omissions of material facts, and outright lies designed to mislead and misstate the facts concerning the important subject it purports to address and the underlying historical record.
The Complaint then proceeds to list specific instances of facts as portrayed in the book and seeks to refute those facts. A representative from Simon and Schuster, via the Washington Post, characterized the complaint as "a chilling attack on free speech that we intend to defend vigorously.”
North of the US Border, the Supreme Court of Canada considered the companion cases of Canadian Broadcasting Corporation v. Canada (Attorney General), 2011 SCC 2, and Canadian Broadcasting Corporation v. Canada, 2011 SCC 3, which involve "the interrelationship of freedom of the press, the open court principle and the fair administration of justice." At issue in the Attorney General appeal was the constitutionality of rules prohibiting broadcasting recordings of hearings and on conducting interviews, filming and taking photographs in court; the other appeal involved a prohibition on broadcasting of a video recording tendered in evidence at trial. A good discussion of the cases is available from our colleagues at the Canada Supreme Court blog. In both cases, the Supreme Court of Canada upheld the constitutionality of the banning of the press:
The right to freedom of expression is just as fundamental in our society as the open court principle. It fosters democratic discourse, truth finding and self‑fulfilment. Freedom of the press has always been an embodiment of freedom of expression. It is also the main vehicle for informing the public about court proceedings. In this sense, freedom of the press is essential to the open court principle. Nevertheless, it is sometimes necessary to harmonize the exercise of freedom of the press with the open court principle to ensure that the administration of justice is fair. . . . . this Court must determine whether certain rules are consistent with the delicate balance between this right, this principle and this objective, all of which are essential in a free and democratic society.
This balancing is familiar to US scholars as the First Amendment/ Sixth Amendment conflicts in landmark cases such as Sheppard v. Maxwell.
The continuing controversy surrounding Wikileaks tests commitment to freedom of the press in many nations. The Guardian of the UK, which has published much of the Wikileaks material, is an excellent source of updates and information. In a comment today, journalist Clay Shirkey notes the ways in which Wikileaks "freedom of the press" is a transnational phenomenon, not bound by specific national laws, and presumably constitutional norms. Both The Guardian and the New York Times have published books about the newspapers dealings with Wikileaks: The Guardian book is Wikileaks: Inside Julian Assange's War on Secrecy, and is available as an ebook and forthcoming in paperback. The NYT book, Open Secrets: Wikileaks, War, and American Diplomacy, is available only as an ebook. The NYT Magazine published an adapted introduction to Open Secrets by journalist Bill Keller.
ConLawProfs teaching freedom of the press this semester should be able to use any - - - or all - - - of these situations to foster a great class discussion or a more focused class project.
February 4, 2011 in Books, Cases and Case Materials, Comparative Constitutionalism, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fundamental Rights, International, Speech, State Secrets, Teaching Tips, Theory, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)