Sunday, December 29, 2013
Can a movie be tortious consistent with the First Amendment? That's the question raised by the complaint in DeGroat v. Cooper filed this week in federal court concerning the movie "Out of the Furnace."
The fictional movie directed by Scott Cooper (a defendant in the lawsuit) stars actor Christian Bale (pictured right) as Russell Blaze, who, when his younger brother "mysteriously disappears" and law enforcement seems inadequate and slow, takes the "law into his own hands" to find his missing brother.
The plot may seem prosaic, but importantly, the action is set in the Ramapo moutains of northern New Jersey amongst a particular group of people some of whom possess a particular surname that coincides with the plaintiffs. As a paragraph from the complaint alleges:
[in the movie] the young man becomes involved in an underground bare-knuckle fight ring leading to his murder by a violent and evil character, Harlan De Groat, who is the chief of a gang of “inbreds” living in the Ramapo Mountains in New Jersey. Harlan DeGroat, portrayed by Woody Harrelson, is the head of a criminal gang that is identified as the Jackson Whites; which gang is described as a community of “inbreds” that inhabits the Ramapo Mountains in New Jersey. Another gang member is identified as Dwight Van Dunk. The community is depicted as lawless, drug- addicted, impoverished and violent; and the members appear to be of some sort of racially mixed heritage.
As the complaint also states, the plaintiffs "are members of the Ramapough Lunaape Nation, a Native American ethnic group recognized as a tribe by the States of New Jersey and New York," and the "Ramapough Lunaape people were referred to locally as 'Jackson Whites,' a derogatory term with various origins ascribed to it, none of them complimentary." Moreover, "DeGroat and Van Dunk are well known common surnames among the Ramapough Lunaape Nation, and have been for two hundred years or so."
The claims for relief include defamation, false light, and negligent infliction of emotional distress.
The response by Cooper and "Relativity Media," will surely include a First Amendment defense.
Among the cases that will be important is Time, Inc, v. Hill, decided by the Supreme Court in 1967, involving Time's discussion of a play "The Desperate Hours" in which the Time magazine article stated that the play related to a tragedy suffered by Hill and his family. The Court ruled against James Hill - - - who was represented by future US President Richard Nixon - - - reversing the jury verdict in the family's favor while discussing the relationships between "fictionalization" and the First Amendment.
To the extent it is based in fact, an interesting comparison is journalist Ben McGrath's 2010 article, "Strangers on the Mountain" published in The New Yorker. McGarth's piece centered upon the Ramapo Mountains, the people who live there, including the DeGroat family and so-called "Jackson Whites" and "Rampaough Indians," and a variety of legal issues, including criminal and environmental.
Yet it would seem that "Out of the Furnace" has a strong First Amendment claim unless the film loses its fictional patina, a prospect that seems unlikely.
Tuesday, December 10, 2013
The struggles that follow the victory of formal equality and universal franchise may not be as filled with drama and moral clarity as those that came before, but they are no less important.
A full transcript of Obama's speech is in the Washington Post here.
Video (and transcript) from BBC here.
Nelson Mandela's autobiography Long Walk to Freedom remains the best read about Mandela.
And worth (re)reading on this anniversary of Mandela's signing the South Africa Constitution in 1996, volumes such as The Post-apartheid Constitutions : Perspectives on South Africa's basic law by Penelope Andrews and Stephen Ellman and Constitutional Rights in Two Worlds by Mark Kende.
Wednesday, December 4, 2013
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.
Thursday, November 7, 2013
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) by 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.
Sunday, September 15, 2013
Teaching and learning Marbury v. Madison (1803) can be challenging. As Steven Schwinn has highlighted, I've presented at AALS on innovative ways to use powerpoint using Marbury as an example. And I've also authored the CALI Lesson on Marbury v. Madison, which stresses understanding the case's historical importance and recognizing its use in contemporary constitutional litigation.
Marbury v. Madison is not only iconic, it's ironic. One way to have students "own" the irony is to have them create a single powerpoint slide that represents the meaning of the case's ironies. This is no easy task. In The Ironies of Marbury v. Madison and Marshall's Judicial Statesmanship, 37 J. Marshall L. Rev. 391(2004), Con Law Prof Samuel Olken explained the various levels of irony in the decision, but the central one on which we focus in class is Marshall's solidifying the (greater) power of judicial review to declare an act of Congress unconstitutional by refusing the power of jurisdiction granted by Congress to issue a writ of mandamus to Marbury.
But students are not limited to powerpoint slides; they can use any creative way to portray their point.
This year, two students, Daniel McCarey and Chloe Serinsky submitted a composition and posted it on You Tube where it will join the ranks of other takes on Marbury, from a serious talking head version to the explicit language rap version that we also discussed.
Their version is indebted to Alanis Morissette's song "Ironic" and arguably uses irony in a more correct (if more legal scholarly) sense.
They've posted their lyrics on the You Tube site. The description of judicial power as having "more juice" is nice, isn't it? But I do love this:
Statute in the left hand
Constitution in the right
Judicial review was the power
To strike that statute outta sight
A different group of five other students also took a musical tack. Collaborating, 1L students Alexandra De Leon, Alexandria Nedd, Carolina Garcia, Steffi Romano, and Vincce Chan, submitted a power point slide with the music from Drake's song
and their rewritten lyrics for a composition now entitled "From the Congressional Dream to the Judicial Machine." Here's a sample:
Congress just wants credit where it’s due
You say it’s written in the constitution…says who?
Extending the Supremacy Clause was Marshall's
Refusing Section thirteen to keep the appellate and not the original jurisdiction
Declining more power, but acquiring Judicial greatness
Marshall limited Legislative power by striking down the excess
Oh how ironic,
Refusing power made the Supreme Court iconic ...
Tuesday, August 27, 2013
The Feminism and Legal Theory Project at 30: A Workshop on Sex and Reproduction: From Privacy and Choice to Resilience and Opportunity?
EMORY UNIVERSITY SCHOOL OF LAW
November 15-16, 2013
more information here
Friday, November, 15th
3-4 pm RECEPTION IN MACMILLAN LAW LIBRARY (location TBA)
Celebrating the formal opening of the Catherine G. Roraback (pictured in watercolor left) Archive at Emory Law School .The workshop will be dedicated to Katie and her pioneering work on behalf of reproductive rights and justice.
Amy Kesselman (SUNY New Paltz), Vanessa King (Emory University School of Law)
4:30 - 6:30 pm History of Sex and Reproduction
Bleeding Across Time: First Principles of US Population Policy | Rickie Solinger
Women versus Connecticut: Insights from the Pre-Roe Abortion Battles | Amy Kesselman (SUNY New Paltz)
Sex, Drugs, Rock and Roe: Ammi Rogers and the Legal History of Anti-Abortion Norms | Lolita Buckner Inniss (Hamilton College, Cleveland Marshall College of Law)
6:30 - 8 pm DINNER
Saturday, November 16th
8:30 - 9:00 am CONTINENTAL BREAKFAST
9:00 - 11:30 am Discourses Surrounding Sex and Reproduction Issues: Law, Religion and Medicine
Medical, Scientific, and Public Health Evidence in Supreme Court Jurisprudence: Reimagining the Feminist Health Movement | Aziza Ahmed (Northeastern University School of Law)
Abortion Law and Medical Practices | Sheelagh McGuinness (School of Law, University of Birmingham) and Michael Thomson (School of Law, University of Leeds)
The Role of 'Nature' in Debates about Sex and Reproduction | Sean Coyle (School of Law, University of Birmingham)
Abortion Liberalization Policies around the World: Hidden Differences in the Diffusion Process | Elizabeth Heger Boyle (University of Minnesota), Minzee Kim (Ewha Women's University, South Korea), and Wesley Longhofer (Goizueta Business School, Emory University)
(University of Florida)
11:30 am - 12:30 pm LUNCH
12:30 - 2:45 pm Feminist Discourses: Sex, Reproduction and Choice
Infertility, Adoption, Alternative Reproduction, and Contemporary Legal Theory | April L. Cherry (Cleveland-Marshall School of Law)
Reproductive Rights and the Right to Reproduce: Is there a Place for the Non-Marital Mother? | Twila L. Perry (Rutgers University School of Law-Newark)
Choices Under the Shadow of Population Policy: Compuslory motherhood Challenged and Remade in Taiwan (1970s-2000s) | Chao-ju Chen (National Taiwan University)
Testing Sex: Non-invasive Prenatal Genetic Testing and Sex Selection | Rachel Rebouche (University of Florida, Levin College of Law)
3:00 - 5:15 pm Regulating Sex and Reproduction
Markets and Motives for Sex and Reproduction | Mary Ann Case (University of Chicago Law School)
A Fiduciary Theory of Health Entitlements | Margaux Hall (Columbia Law School)
Schrodinger's Child: Identity and Non-Identity in Reproductive Decision-Making | Jennifer S. Hendricks (University of Colorado Law School)
Procreative Pluralism | Kimberley Mutcherson (Rutgers Law School, Camden)
Friday, July 19, 2013
Justice John Paul Stevens in the New York Review of Books writes a thoughtful "dissent" in the Court's ruling in Shelby County around his review of Gary May's outstanding book Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Basic). Justice Stevens's piece is mostly an indictment of Chief Justice Roberts's majority opinion in Shelby County, based on some of May's study of voting discrimination; but he also has quite kind things to say (and justifiably so) about May's excellent history. (Our posts on Shelby County itself are collected here.)
Justice Stevens writes that May takes a longer, more detailed view of the history of voting than Chief Justice Roberts did in Shelby County--a view that Justice Ginsburg also took in her dissent in that case. He notes that Chief Justice Roberts didn't even mention anything before 1890 in his opinion, and glossed over significant details since.
And Justice Stevens takes on Chief Justice Roberts's new-found doctrine of "equal state sovereignty"--a doctrine that drove a good part of the result. Justice Stevens says that unequal treatment of states is woven right in to the fabric of the Constitution itself. In particular, the three-fifths clause gave southern states a "slave bonus" in political power, giving those states disproportionate representation and even leading to the election of Thomas Jefferson over John Adams in 1800. If the original text of the Constitution itself can treat states so dramatically differently, why this new doctrine of equal state sovereignty? (We posted on this new doctrine here.) (It can be no answer that the Reconstruction Amendments abolished the three-fifths counting system, for the Reconstruction Amendments themselves were specifically designed to give Congress power over the states, and led to dramatically different treatment of the states. It similarly can be no answer that the Tenth and Eleventh Amendments protect state sovereignty (even if they do), because the Reconstruction Amendments came after them. As last-in-time, they at least inform the meaning of the earlier amendments, even if they don't do away with them entirely.)
July 19, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, Fifteenth Amendment, History, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Friday, May 31, 2013
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. (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.
Thursday, May 16, 2013
Prof. Alex Tsesis (Loyola Chicago) joined me on Thursday for a talk on his book For Liberty and Equality: The Life and Times of the Declaration of Independence (Oxford 2012). This was a terrific read; I highly recommend it.
But first listen to him talk about it. Here's the audio of our chat (about 20 minutes):
Monday, April 29, 2013
Speaking to the Chicago Tribune editorial board, retired Justice Sandra Day O'Connor reportedly stated that the Court took the case of Bush v. Gore
"and decided it at a time when it was still a big election issue. Maybe the court should have said, 'We're not going to take it, goodbye.'"
The case, she said, "stirred up the public" and "gave the court a less-than-perfect reputation."
"Obviously the court did reach a decision and thought it had to reach a decision," she said. "It turned out the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day."
This falls far short of a statement that O'Connor regretted her decision in the infamous Bush v. Gore, as some have concluded.
Thursday, April 18, 2013
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.
Professor 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.
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
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.
Second, there is an image in a Idaho courthouse:
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.
Monday, April 15, 2013
The oral arguments in Adoptive Couple v. Baby Girl, on certiorari to the South Carolina Supreme Court will be held on April 16. The case, also known as “Baby Veronica,” is an emotional struggle over custody of a small child.On one view, the Court’s task is a relatively simple one of statutory interpretation, including the definition of “parent” in the Indian Child Welfare Act, ICWA. The petitioners, the adoptive couple, articulate the questions presented as:
(1) Whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.
(2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.
The questions presented by the respondent birth father, a registered member of the Cherokee Nation, and by the respondent Cherokee Nation, and by the United States as amicus curiae supporting the respondent, all likewise focus on ICWA, albeit with a different persuasive cadence. These articulations stress the positive acts of the biological father. For example, as the biological father phrases the parenting definition question:
Whether an Indian child’s biological father who has expressly acknowledged that he is the child’s father and has established that he is the father through DNA testing is the child’s “parent” within the meaning [of ICWA].
The Brief of the United States as amicus curiae, supporting the respondent father and tribe has a similar issue statement, asking whether the state courts properly applied ICWA
to award custody of an Indian child to her biological father over an adoptive couple, where the father acknowledged and established his paternity and no remedial measures had been taken to avoid termination of his parental rights.
However, the case is not merely one of statutory interpretation, but raises important, if not always obvious, constitutional issues.
First, Congressional intervention in child welfare must rely on a particularly enumerated power of Congress, the usual one being the Spending Clause. For Native Americans, however, Congressional power is often labeled “plenary,” although it is grounded most specifically in the Indian Commerce Clause, Art. I §3 cl. 8. ICWA was intended to prevent the removal of Native children from their parents - - - as well as their tribes - - - a history that many of the amicus briefs discuss in depth.
Second, and relatedly, this Congressional power over Native children raises federalism issues, especially given that child custody and adoption are generally within the state’s police powers. In the case of Baby Veronica, the South Carolina Supreme Court affirmed the trial judge’s application of ICWA to deny the adoption and award custody to the Native father. Yet the very existence of ICWA arguably intrudes upon state police powers.
Third, and most stealthily, the case may present issues of due process and equal protection. In the brief on behalf of Baby Veronica through her Guardian ad Litem authored by Paul Clement, the arguably “erroneous interpretation” of ICWA “raises serious constitutional issues.” In this argument, the best interests of the child standard - - - the usual touchstone in child adoption and custody - - - aspires to a constitutional right of the child. Moreover, the state court’s decision violated the baby’s equal protection and due process rights.
For example, the brief analogizes to the equal protection case of Palmore v. Sidoti:
In Palmore, this Court struck down the use of racial classifications to remove a child from an appropriate custody placement. This case is no different. Baby Girl’s Indian blood quantum was the sole reason the lower court ordered her removed from the loving, stable home she had lived in since birth and placed with a biological father whose failure to timely care for her extinguished any parental rights he might otherwise have had under state law or the Constitution.
Less successfully, the brief attempts to articulate a liberty interest of the child:
And “to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.” Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).
Yet ultimately, the brief argues that there is an (unconstitutional) racial classification if ICWA is applied too broadly. Clement argues that ICWA should be interpreted to limit "its application to adoption and custody proceedings involving children who are either domiciled on a reservation or have some other tribal connection beyond biology."
These limitations are crucial to preserving the Act’s constitutionality, ensuring that the Act’s differential treatment of Indians operates only to promote tribal sovereignty and the unique interests of Indians as tribal citizens, and not as invidious racial discrimination that arbitrarily trumps Baby Girl’s liberty interests. [ICWA's] definition of parent, properly interpreted, avoids these difficulties by declining to give an unwed Indian father rights based on biology alone that no non-Indian unwed father enjoys.
Moreover, ICWA's constitutional interpretation rests upon limiting its "application to children in the pre-existing custody of an Indian parent or other circumstances in which there is a distinct connection to tribal interests."
Clement - - who so recently represented BLAG supporting the constitutionality of DOMA in United States v. Windsor - - - here has quite a different view of equality and federal power.
While it is unlikely that these constitutional arguments assume center stage, they may infuse the statutory interpretation of ICWA so squarely before the Court.
[image circa 1890 via]
April 15, 2013 in Congressional Authority, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fundamental Rights, History, Interpretation, Race, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, April 1, 2013
Can a judge - - - a Supreme Court Justice - - - be a practitioner of "popular constitutionalism"? Was Justice Felix Frankfurter such a judge?
Snyder's view of popular constitutionalism may be a broader than some, but his linking of judicial restraint with popular constitutionalism, especially when situated in the New Deal era, is sound. Snyder concentrates on three of the most important and oft-criticized constitutional moments of Frankfurter's judicial career – the flag salute cases of Minersville School Dist. v. Gobitis (1940), reversed a mere three years later in West Virginia Bd. of Educ. v. Barnette (1943); Brown v. Board of Education and its progeny; and Baker v. Carr (1962).
Snyder concludes: "Frankfurter’s judicial reputation suffered at the hands of scholars intent on preserving the Warren Court’s legacy of protecting civil rights and civil liberties. Frankfurter’s Baker [v. Carr] dissent, however, has proven to be just as prophetic as some of Holmes’s and Brandeis’s dissents because it revealed the ugly underside of the Warren Court’s legacy – judicial supremacy."
While others have certainly noted the vacillations of progressive and conservative judicial activism, Snyder's article calls for a renewed evaluation of Frankfurter and perhaps of popular constitutionalism.
Friday, March 22, 2013
The Obama Administration has given us just a glimpse of its legal analysis authorizing its use of drone attacks on U.S. citizens in a foreign country outside the zone of active hostilities. And that mere glimpse contains a telling, and deeply troubling, reference to an earlier episode, Nixon's bombing of Cambodia, writes Professor Mary Dudziak (Emory), author of War Time: An Idea, Its History, Its Consequences, in the NYT.
Dudziak points to a citation to a 1970 speech by Department of State Legal Adviser John R. Stevenson in the recently released "white paper" setting out the administration's legal justification for drone attacks. In that speech, Stevenson argued that the U.S. had authority to take military action in Cambodia in self-defense against North Vietnamese attacks from that country. Dudziak explains:
Since 1965, "the territory of Cambodia has been used by North Vietnam as a base of military operations," [Stevenson] told the New York City Bar Association. "It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia. However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia."
But there was a problem:
In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier. (It is not clear whether Mr. Stevenson knew this.) So the Obama administration's lawyers have cited a statement that was patently false.
Here's the full paragraph from page 4 of the white paper:
The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless the hostilities become sufficiently intense and protracted in the new location. That does not appear to be the rule of the historical practice, for example, even in a traditional international conflict [i.e., a conflict between nations]. See John R. Stevenson, Legal Adviser, Department of State, United States Military Action in Cambodia: Questions of International Law, Address before the Hammarskjold Forum of the Association of the Bar of the City of New York (May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23, 28-30 (Richard A. Falk, ed. 1972) (arguing that in an international armed conflict, if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state). Particularly in a non-international armed conflict, where terrorist organizations may move their base of operations from one country to another, the determination of whether a particular operation would be part of an ongoing armed conflict would require consideration of the particular facts and circumstances in each case, including the fact that transnational non-state organizations such as al-Qa'ida have no single site serving as their base of operations. [Citation omitted.]
Dudziak argues that the citation to Nixon's bombing of Cambodia illustrates a problem, instead of providing a precedent:
The Cambodia bombing, far from providing a valuable precedent for today's counterterrorism campaign, illustrates the trouble with secrecy: It doesn't work. If Nixon had gone to Congress or announced the plan publicly, the historian Jeffrey P. Kimball has written, "there would have been an uproad." But disclosure was ultimately forced upon him when he decided to send ground troops into Cambodia. A new wave of giant antiwar protests erupted, and Nixon's ability to take further aggressive action became infeasible.
She writes that we expect more, and deserve more, of President Obama.
Wednesday, March 13, 2013
The controversies surrounding the Court's impending decision in Shelby County v. Holder regarding the constitutionality of the Voting Rights Act's "preclearance" provision (section 5) have been exacerbated by Justice Scalia's remarks about "racial entitlement." Seemingly, at issue for the Justices - - - originalist and otherwise - - - is the meaning of the enforcement clauses of the Fifteenth and Fourteenth Amendments: "The Congress shall have power to enforce this article by appropriate legislation."
In a provocative new article, A Structural Theory of Elections, available in draft on ssrn, ConLawProf Franita Tolson (pictured) seeks to redirect our attention to section 2 of the Fourteenth Amendment:
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Tolson's attention is not to the language that first introduced gender into the Constitution ("male inhabitants") or to the change in counting those male inhabitants ("excluding Indians") or to the subsequent change in voting age, but to the broad ability of Congress to change the apportionment for voting rights violations. She argues that this previously under-emphasized language makes the Court's "congruence and proportionality" standard for evaluating Congressional power inapplicable in the voting and election contexts.
Tolson's article is a closely reasoned and excellently researched argument for the broad enforcement powers of Congress intended by the Framers of the Fourteenth and Fifteenth Amendments. She ultimately contends "that requiring preclearance of all electoral changes instituted by select jurisdictions under section 5 of the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and is thus consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments."
Tolson's article is certainly worth a read for anyone considering the issues at the heart of Shelby County v. Holder.
Tuesday, March 12, 2013
ssrn author page.
As his obituary in The Telegraph described him, Robin Cooke
strove to give reality to his country's commitment to biculturalism embedded in the Treaty of Waitangi, resolving Maori land claims cases and earning the highest respect from Maori elders. Following the New Zealand Bill of Rights Act (1990) he exercised a steadying hand on the legal tiller, which ensured relative social stability during reforms that culminated in the abolition of the appeals from New Zealand to the Privy Council and the establishment of a newly-created supreme court.
The Lord Cooke Project at Victoria University of Wellington (New Zealand/Aortearoa), spearheaded by law profs Joel Colón-Ríos and John Prebble has a goal to upload all of Lord Cooke’s published and unpublished papers and make them more widely accessible.
ConLawProfs doing comparative constitutional law will be interested in Cooke's work, particularly his writings about the constitutional arrangements in colonial (especially white settler) societies with both the indigenous populations and with the colonial power. Cooke also wrote widely on the development of the common law and the ssrn page now includes his four papers from the prestigious Hamlyn Lectures. This is a terrific contribution since published Hamyln lectures are usually burdened with a hefty pricetag.
The Telegraph obituary also mentions that Cooke authored an article "disagreeing with the creation of a Supreme Court for the United Kingdom on the ground that the present system worked perfectly well." It would be interesting to contemplate Lord Cooke's opinions about the current UK Supreme Court, including its struggle for gender diversity.
Thanks to the work by Colón-Ríos and Prebbles, consulting and citing Lord Robin Cooke's work is now much easier.
Monday, March 11, 2013
Professor Peter Irons (UCSD Emeritus, and founder and Director Emeritus, Earl Warren Bill of Rights Project, UCSD) calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu in his recent piece Unfinished Business: The Case for Supreme Court Repudiation of the Japanese American Internment Cases.
The Supreme Court in those cases upheld convictions of Japanese Americans for violations of the military curfew and exclusion orders issued by President Franklin D. Roosevelt on February 19, 1943.
Irons initiated and served as counsel to Fred Korematsu and Gordon Hirabayashi in their 1983 coram nobis actions, which led to the vacation of their wartime convictions. Irons also wrote Justice at War: The Story of the Japanese American Internment Cases and edited Justice Delayed: The Record of the Japanese American Internment Cases.
Irons now calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu, an unprecedented act, but one that Irons says is appropriate here:
This essay presents the case for the Supreme Court to . . . formally repudiat[e] its decisions in the Japanese American internment cases, issuing a public statement acknowledging that these decisions were based upon numerous and knowing acts of governmental misconduct before the Court, and were thus wrongly decided. These acts of misconduct, documented and discussed herein, were committed by several high-ranking military and civilian officials (including the Solicitor General of the United States) before and during the pendancy of the internment cases before the Supreme Court. Consequently, the Court was forced to rely in making its decisions on records and arguments that were fabricated and fraudulent. Sadly, the Court's unquestioning acceptance of these tainted records, and its upholding of the criminal convictions of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu, has left a stain on the Court's integrity that requires the long overdue correction of public repudiation and apology, as both the legislative and executive branches of the federal government--to their credit--have now done.
Irons explains why Hirabayashi, Yasui, and Korematsu couldn't get the Supreme Court's rulings overturned, and thus why his efforts are now necessary:
Admittedly, a public repudiation of the Japanese American internment cases would be unprecedented, considering that the cases are technically moot, since the Solicitor General of the United States at the time, Charles Fried, did not ask the Court to review the decisions of the federal judges who vacated the convictions, pursuant to writs of error coram nobis that were filed in all three cases in 1983 and decided in opinions issued in 1984, 1986, and 1987. The government's decision to forego appeals to the Supreme Court left the victorious coram nobis petitioners in a classic Catch-22 situation: hoping to persuade the Supreme Court to finally and unequivocally reverse and repudiate the decisions in their cases, they were unable--as prevailing parties in the lower courts--to bring appeals to the Court.
Irons argues that the Court "has both the inherent power and duty to correct its tainted records through a public repudiation of the wartime decisions."
This is a piece in the finest tradition of making academic work relevant to the real world--what Irons does so well. It's a persuasive piece of history, scholarship, and activism by somebody who helped make--and continues to make--that story. Highly recommended.
[Image: Gordon Hirabayashi, Minoru Yasui, Fred Korematsu]
Thursday, March 7, 2013
Linda Greenhouse's NYT "Opinionator" column is almost always worth a read.
But yesterday's column entitled "A Big New Power" is a must-read for anyone considering the Court's pending opinion in Shelby County v. Holder and the controversy surrounding Scalia's remarks during the oral argument.
Years from now, when the Supreme Court has come to its senses, justices then sitting will look back on the spring of 2013 in bewilderment. On what basis, they will wonder, did five conservative justices, professed believers in judicial restraint, reach out to grab the authority that the framers of the post-Civil War 14th and 15th Amendments had vested in Congress nearly a century and a half earlier “to enforce, by appropriate legislation” the right to equal protection and the right to vote.
Greenhouse admits she is forecasting the outcome, but her column makes that outcome seem less palatable.
Tuesday, March 5, 2013
O'Connor is promoting her new book, Out of Order: Stories from the History of the Supreme Court, reviewed in the NYT yesterday.
Update: more O'Connor here.