Monday, September 7, 2015

In Memoriam: Dennis Greene

ConLawProf Dennis Greene of University of Dayton School of Law was perhaps best known for his entertainment law work and his pre-law career as co-founder of the group Sha-Na-Na.



Memorial information pending.

September 7, 2015 in Profiles in Con Law Teaching | Permalink | Comments (0)

Monday, August 3, 2015

In Memoriam: Marc Poirier

While known to many scholars and students because of his work on administrative and environmental law, Professor Marc Poirier of Seton Hall was a remarkable scholar on constitutional issues surrounding sexuality and gender.  One of Marc's latest pieces is Whiffs of Federalism” in Windsor v. United States: Power, Localism, and Kulturkampf, 85 Colo. L. Rev. 935 (2014).


Details about a memorial will follow.

UPDATE:  Memorial Service at Seton Hall Tuesday September 29, 2015. Details here.


August 3, 2015 in Profiles in Con Law Teaching, Scholarship, Sexuality | Permalink | Comments (0)

Thursday, April 16, 2015

Guide to the Amicus Briefs in Obergefell v. Hodges: The Same-Sex Marriage Cases

The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in  Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.    

 Recall that the Court certified two questions:

    1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

    2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? 

The case has attracted what seems to be a record number of amicus briefs.  As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92.  [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of  NFIB v. Sebelius attracted 136 amicus briefs.]

The count for Obergefell v. Hodges stands at  139. 147  [updated: 17 April 2015]

76 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.

58 66 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.

05 amicus briefs support neither party (but as described below, generally support Respondents).

According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.”  While such a brief “may be of considerable help to the Court,” an  “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

 An impressive number of the Amicus Briefs are authored or signed by law professors.  Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination.  Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.

Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives.  [Late additions appear below]Special thanks to City University of New York (CUNY)  School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.


Continue reading

April 16, 2015 in Courts and Judging, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Foreign Affairs, Fourteenth Amendment, Free Exercise Clause, Full Faith and Credit Clause, Fundamental Rights, Gender, History, Interpretation, Privacy, Profiles in Con Law Teaching, Race, Recent Cases, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US), Theory | Permalink | Comments (3) | TrackBack (0)

Wednesday, March 18, 2015

California Supreme Court on Citizenship and Bar Admission

In its opinion in In re Hong Yen Chang on Admission, the California Supreme Court granted posthumous admission to the bar and reversed its more than a century-old decision in In re Hong Yen Chang 84 Cal. 163 (1890). The case was brought by LawProf Gabriel "Jack" Chin and students at UC-Davis College of Law.

Although Chang had been naturalized and was a lawyer in New York, a combination of the notorious Chinese Exclusion Act, upheld by the United States Supreme Court in Chae Chan Ping v. United States (1889), which prohibited naturalization of Chinese persons and the California requirement that members of the bar be citizens, the 1890 California Supreme Court held that Chang was not a "bona fide" citizen and could thus not be a member of the bar.  In discussing the decision, the 2015 California Supreme Court stated:

Understanding the significance of our two-page decision denying Chang admission to the bar requires a candid reckoning with a sordid chapter of our state and national history.

Yet the court's opinion is not only of historic note.  In discussing the repudiation of the sordid chapter, the California Supreme Court wrote:

More than a century later, the legal and policy underpinnings of our 1890 decision have been discredited. In 1972, this court unanimously held it was “constitutionally indefensible” to forbid noncitizens to practice law, calling such a ban “the lingering vestige of a xenophobic attitude” that “should now be allowed to join those anachronistic classifications among the crumbled pedestals of history.” (Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 291.) One year later, the high court reached the same conclusion. (In re Griffiths (1973) 413 U.S. 717.) In 2013, our Legislature passed a law making undocumented immigrants eligible for admission to the State Bar. (Bus. & Prof. Code, § 6064, subd. (b).) We thereafter granted admission to an undocumented immigrant who had been brought to the United States as a child, put himself through college and law school, passed the California bar exam, and met the requirement of good moral character. (In re Garcia (2014) 58 Cal.4th 440, 466.) We said “the fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar, or prevent the individual from taking an oath promising faithfully to discharge the duty to support the Constitution and laws of the United States and California.” (Id. at p. 460.)

While California has allowed noncitizens to be attorneys as the court notes, the issue is pending in other states, including - - - perhaps paradoxically - - - New York.

portrait of Hong Yen Chang via UC Davis School of Law


March 18, 2015 in Courts and Judging, Current Affairs, International, Opinion Analysis, Profiles in Con Law Teaching, Race, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Sunday, March 8, 2015

Daily Read: The First Amendment and the Selma March

Over at the Los Angeles Times in an Op-Ed, ConLawProf Ronald J. Krotoszynski Jr. argues that present First Amendment doctrine would preclude the famous Selma march being commemorated on its 50th anniversary today.

640px-Selma_to_Montgomery_marches_-_historic_route_retouchedKrotoszynski contends that it would now be "impossible to obtain a federal court order permitting a five-day protest march on a 52-mile stretch of a major U.S. highway" and that under "contemporary legal doctrine, the Selma protests would have ended March 8, 1965."

He faults the reshaping of public forum doctrine and time, place or manner restrictions so that "protests" are now relegated to "designated speech zones."  He highlights the recent litigation regarding the First Amendment rights of protestors in Ferguson, which, although successful on behalf of the protestors, was a success that was both delayed and partial.

Krotoszynski's op-ed is an important reminder that while voting rights and equality are integral to the remembrance of Selma as President Obama elucidated in his speech,  "Selma's main lesson" might also be that "taking to the streets and other public spaces in protest is central to our democracy." 


March 8, 2015 in Association, Equal Protection, First Amendment, Fourteenth Amendment, History, Profiles in Con Law Teaching, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 1, 2014

Daily Read: Zephyr Teachout on (Anti-) Corruption

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

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

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

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

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

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

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

Thursday, August 14, 2014

ConLaw Profs Pen Letter Criticizing University of Illinois Rescission of Offer to Academic for Tweets

When University of Illinois at Urbana-Champaign officials decided to rescind the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin, they must have known there would be controversy.  Salaita himself has been no stranger to controversy while at Virginia Tech, but UI officials have focused on his recent tweets on the subject of Gaza.

While Salaita's area is not law, it's difficult not to be reminded of a similar situation involving Erwin Chemerinsky seven years ago.  The new law school at UC-Irvine offered him a position as Dean but then rescinded it after reading his newest op-ed, this one criticising a plan by then Attorney General Alberto Gonzales regarding death row appeals. 

There was much "outcry" over the Chemerinsky "rescission" (and of course Chemerinsky became Dean, a position he retains). 

There is also a good deal of "outcry" over Salaita.  Peter Schmidt has a good discussion of the Salaita controversy for The Chronicle of Higher Education, with a follow up article noting that 300 scholars have vowed to boycott events at the university unless it rescinds its rescission. 

Michael Dorf has a good discussion of the legal parameters of academic freedom raised by the incident over at Justia. 

Dorf and Katherine Franke have penned a five page Letter to the Chancellor of U of I from "scholars of free speech and constitutional law" discussing the First Amendment and urging the appointment be honored.  

Faculty members who would like to be signatories should contact Katherine Franke by email: kfranke (AT)

August 14, 2014 in First Amendment, Profiles in Con Law Teaching, Speech | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 29, 2014

In Memoriam: Cheryl Hanna

Vermont Law School has reported the death of ConLawProf Cheryl Hanna.  A memorial is scheduled for Friday.


Her scholarship was devoted to issues of domestic violence, sexuality, and gender.  Her essay, Gender As A Core Value in Teaching Constitutional Law, 36 Okla. City U. L. Rev. 513 (2011), available in draft on ssrn, reminds us that while it may seem as if there is " ample opportunity to discuss gender when teaching equal protection and reproductive right" in Constitutional Law courses, ConLawProfs need to do more to "keep gender alive" throughout the semester.  As she wrote:

Even in courses like constitutional law, it is easy to relegate gender to a few specific cases without ever asking the students to consider the more fundamental questions of how the Constitution affects women (and men) and how women (and men) affect the Constitution. But these are important questions to ask not just on Equal Protection and Women Day but throughout the entire course.

Cheryl Hanna's recent commentary on McCullen v. Coakley and Burwell v. Hobby Lobby Stores, Inc. for Vermont Public Radio can be heard here, and there is also a selection of her other commentaries, both law related and more personal.

July 29, 2014 in Gender, Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, June 5, 2014

Daily Video: Brenda Cossman on Canada's Parliamentary Responses to Bedford Decision

Recall that in Canada v. Bedford, the Supreme Court of Canada unanimously declared several provisions of Canada's criminal code regulating prostitution and sex work to be inconsistent with the Canadian Constitution's Charter of Rights and thus unconstitutional.  The Court suspended the declaration of invalidity for one year from its December 2013 decision to allow Parliament to act.

Parliament is acting, but not in the manner that some anticipated.

Here's University of Toronto Law Professor Brenda Cossman discussing the proposed law in a video for Canada's Globe & Mail:

Globe and Mail
full video here

 If Parliament does pass this legislation, it seems as if it will be swiftly challenged.  And perhaps the Canada Supreme Court will have a chance to reconsider whether giving Parliament a chance to correct the defects is the best way to proceed.


June 5, 2014 in Comparative Constitutionalism, Courts and Judging, Profiles in Con Law Teaching, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

In Memoriam: Andrew Taslitz

While primarily known as a criminal law scholar, Professor Andrew Taslitz's work was integral to constitutional law, regularly focused not only on issues of constitutional criminal procedure, the death penalty, and national security, but also on equality of race, class, and gender.

He is editor of a forthcoming volume to be published by the ABA entitled "Media Coverage in Criminal Justice Cases: What Prosecutors and Defenders Should and Should Not Say" that exemplifies his contributions to both the scholarly and practicing communities.

He is also one of the 26 law professors featured in What the Best Law Teachers Do (Harvard University Press, 2013).


There is an announcement and memorial page (including ways to contribute) from American University Washington College of Law, where he began teaching in 2012, after having been at Howard Law School for almost two decades.

Affectionately known far and wide as "Taz," he will be missed. 


February 10, 2014 in Criminal Procedure, Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

Sunday, January 26, 2014

In Memoriam: Randy Bezanson

The University of Iowa Dean has announced  the death of ConLawProf Randall (Randy) Bezanson (pictured).



Bezanson's contributions to constitutional law teaching and scholarship have been widely recognized.  His books include Art and the Freedom of Speech  and Too Much Free Speech?

There will be a memorial at University of Iowa; more information here.

January 26, 2014 in Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, January 23, 2014

Daily Read: Franita Tolson on the Voting Rights Act Amendment Act of 2014

As we discussed yesterday, bipartisan legislation has been introduced in Congress that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance, as a response the the Court's holding in Shelby v. Holder that section 4(b) of the VRA was unconstitutional. 

Over at HuffPo today, LawProf Franita Tolson (pictured below) has a column entitled "The Importance of Tunnel Vision in Fixing the VRA's Coverage Formula."



Tolson argues that while

there are some aspects of the legislation that may displease civil rights organizations, particularly the exemption of voter identification laws from coverage under the new formula, the proposal is a strong start to address the gaping hole in the preclearance regime created by the Court's decision in Shelby County.

But in some respects, she contends, the proposed legislation may go too far. 

She argues that the proposed amendments to section 3(c) of the VRA are "alarming because they place a bull's eye squarely on the back of section 3(c)" as well as section 2.  She notes that section 3(c) of the VRA is constitutional precisely "because its intentional discrimination requirement is identical to the constitutional standard for establishing violations of the Fourteenth and Fifteenth Amendments." 

She concludes that the "legislative focus should be limited to replacing the coverage formula and leaving section 3(c) alone."

Worth a read for anyone considering the proposed amendments to the VRA and the legacy of Shelby v. Holder.

January 23, 2014 in Congressional Authority, Elections and Voting, Equal Protection, Federalism, Profiles in Con Law Teaching, Race, Theory | Permalink | Comments (0) | TrackBack (0)

Saturday, January 18, 2014

Daily Read: Jonathan Hafetz on Obama's NSA Speech

In the provocatively titled "Is Obama Failing Constitutional Law?" and subtitled "Talking and tinkering may not be enough to make the old law professor’s surveillance program legal" Law Prof Jonathan Hafetz (pictured below) assesses President Obama's January 17 speech over at Politico.


Here's Hafetz on the "mixed bag" of Obama's proposed reforms to the FISA court:

 The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.

Worth a read, in addition to our take here and Cyrus Farivar over at Ars Technica.

January 18, 2014 in Criminal Procedure, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, News, Profiles in Con Law Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, January 3, 2014

Scholarship Matters: Stephen Diamond on Nancy Leong

Nancy-leong-fullbody2In his piece provocatively titled "Yes, Virginia, judges do read those law reviews, after all," Stephen Diamond discusses ConLawProf Nancy Leong's article, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream, 64 Fla. L. Rev. 305 (2012) available  on ssrn, as used by concurring judge Andre Davis in United States v. Mubdi, 691 F. 3d 334 (4th Cir. 2012). 

Diamond situates Leong's work in the general controversy about legal scholarship as well as more specifically in discussions about Nancy Leong (pictured) and her work.  Leong's own worth-reading interventions over at Feminist Law Professors Blog are definitely worth a read.  As is Diamond's post. 

He writes: "Ironically, some of the very phrases cherry picked by the law school critics to undergird their view that Professor Leong was simply engaged in navel-gazing in “Open Road” were the ones relied on by Judge Davis in his opinion."






January 3, 2014 in Criminal Procedure, Profiles in Con Law Teaching, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Monday, December 30, 2013

AALS Program 2014 Constitutional Law Programs

ManhattanThe AALS Annual Meeting will be held January 2-5, 2014 in NYC. 

The theme of the meeting is "Looking Forward: Legal Education in the 21st Century" and many events center on the current unsettled situation, which some call a "crisis," in legal education.

The full program features a number of panels with a constitutional law focus, including the program sponsored by the AALS Constitutional Law Section "The Importance of Constitutionalism" in 2 parts on Friday, and the AALS Academic Symposium "Comparative Constitutional Change: New Perspectives on Formal and Informal Amendment " in 4 parts on Sunday.

Although there are many panels that implicate constitutional issues, here's a list of panels of special interest, organized by time, with description and speakers:

Friday, January 3, 2014

8:30 am - 10: 15

The Importance of Constitutionalism: PART I

The Constitution, like the Roman god Janus, faces in two directions.  One face is oriented towards the Supreme Court.  The Court has long dominated how we think and talk about the Constitution.  The other face of the Constitution is oriented towards ordinary citizens and towards politics.  Studies of constitutionalism focus on the larger social and political structures within which the Constitution and the Supreme Court are embedded.   The two panels will provide a snapshot of constitutionalism scholarship, with this first panel focused on ordinary citizens and how they help shape the meaning of the Constitution.  

Moderator: M. Isabel Medina, Loyola University New Orleans College of Law
Kim Lane Scheppele, University of Pennsylvania Law School
David D. Cole, Georgetown University Law Center
Reva B. Siegel, Yale Law School
Rebecca E. Zietlow, University of Toledo College of Law


Ag-Gag Laws, Animals, Agriculture and Speech  (Animal Law)

This session will examine the recent passage of laws in a number of states prohibiting undercover videos of agricultural facilities.  These "ag-gag" laws, (a term coined by New York Times food writer, Mark Bittman), either make it a crime to tape animal cruelty or force photographers to turn over their images to law enforcement within 48 hours, making it very difficult (and illegal) to conduct an undercover investigation of any length and detail.  This panel will discuss the constitutional, ethical and practical implications of these statutes as well as their potential impact on animal welfare.

Moderator: Susan J. Hankin, University of Maryland Francis King Carey School of Law
Tucker B. Culbertson, Syracuse University College of Law
Mr. Edward Greenberg, Esq., Edward C. Greenberg LLC
Sheila Rodriguez, Rutgers School of Law - Camden

 10:30am - 12:15 pm

Stop And Frisk as a Policing Tactic: The Situation Post-Floyd (Hot Topic)

The widespread use of stop and frisk tactic by the NYPD has been the signature feature of recent policing efforts in America’s largest city, and has been a point of contention in the City for nearly two decades.  These tactics are based on the proactive and intensive use of Terry stops.  Over this time, stop and frisk has been credited by the city’s Police Commissioners and two Mayors with lowering the rate of violent crime. After 20 years of stop and frisk policing, New Yorkers have grown skeptical about the tactic and it has generated anger and protest in minority neighborhoods. The contentious debate over this police practice has moved center stage with the U.S. District Court decision in Floyd v. City of New York, a bench trial in which Judge Shira A. Scheindlin ruled that NYPD practices violate the Fourth and Fourteenth Amendments of the U.S. Constitution.  This decision has had important political implications in the context of the recent Mayoral election and continues as a legal issue whose long-term outcome is unclear.  This panel will consider the decision, its basis and its potential aftermath.

Bennett Capers, Brooklyn Law School
Jeffrey Fagan, Columbia University School of Law
Ms. Miriam Gohara, Federal Capital Habeas Project
Tom Tyler, Yale Law School

Standing in the Roberts Court (Federal Courts Section)

 Issues of Article III standing loomed large over the Supreme Court’s October 2012 Term.  The Court recently placed significant limits on the power of private litigants to challenge secret government surveillance programs (Clapper v. Amnesty International (2013)).  And in the same-sex marriage cases, the Court had before it the power of a State to confer standing on private parties to defend state law (Hollingsworth v. Perry: Proposition 8), along with issues of legislative and executive standing (United States v. Windsor: Defense of Marriage Act).  This program will explore the standing questions presented by those cases as well as other important standing rulings of the Roberts Court, such as the “special solicitude” purportedly given to states qua plaintiffs in Massachusetts v. EPA (2007). Do these cases portend a shift in the Court’s standing jurisprudence, or a continuation of prior practice?

Moderator: Gillian E. Metzger, Columbia University School of Law
Steven Calabresi, Northwestern University School of Law
Heather Elliott, The University of Alabama School of Law
Richard H. Fallon, Jr., Harvard Law School
Paul R Gugliuzza, Boston University School of Law
Vicki C. Jackson, Harvard Law School
Ann Woolhandler, University of Virginia School of Law


1:30 pm - 3:15 pm

Constitution-Making in Egypt and the Middle East: A Stalled Arab Spring or a Pathway to Democracy? (AALS Hot Topic/Bridge Program)

Recent legal events in Egypt and elsewhere in the Middle East have tempered the optimism that many legal observers felt after the Arab Spring.  Drawing on that experience, the panel will offer new perspectives on the relationship between democratic revolution and constitutional foundation. Building on recent theoretical and empirical work by its participants, the panel will focus on several interrelated issues: the major risks involved in revolutionary change and in constitutional replacement; the proper design of the constitution-making process; the role of women in constitutional transitions; and the functions of domestic and international institutions in supervising democratic transitions.  Panelists will highlight the ways in which recent events in Egypt and elsewhere in the Middle East challenge the conventional wisdom on what factors and actors contribute to a successful democratic transition.

 Moderator: Kim Lane Scheppele, University of Pennsylvania Law School
Richard Albert, Boston College Law School
David E. Landau, Florida State University College of Law
William Partlett, Columbia University School of Law
Kristen A. Stilt, Northwestern University School of Law
Ozan O. Varol, Lewis and Clark Law School


The Right to Vote: From Reynolds v. Sims to Shelby County and Beyond  (Legislation and Law of the Political Process)

Voting rights are at crossroads in the United States.  Fifty years after the Supreme Court’s landmark decision in Reynolds v. Sims established the “one person, one vote” rule, there remains a fierce debate over the right to vote.  Upon his reelection, President Obama called for us to “fix” the problems that many Americans still experience, subsequently creating a bipartisan commission to craft recommendations.  And in 2013, the Supreme Court decided Shelby County v. Holder, striking down the Voting Rights Act’s coverage formula for preclearance.
This panel will explore the past, present, and future of the fundamental right to vote, from the “one person, one vote” doctrine, to the Voting Rights Act, to contemporary calls for election reform.  Panelists will discuss the impact and implications of the decision in Shelby County, as well as the appropriate role of the federal courts in protecting the right to vote and promoting electoral competition.  We will also discuss changes that Congress should consider to promote voting rights and the integrity of our democratic process.  Should we continue to focus on race-conscious remedies like the Voting Rights Act?  Or should we consider measures designed to improve participation and representation generally?

Moderator: Daniel P. Tokaji, The Ohio State University, Michael E. Moritz College of Law
Michael R. Dimino, Sr., Widener University School of Law
Derek T. Muller, Pepperdine University School of Law
Richard H. Pildes, New York University School of Law
Lori Ringhand, University of Georgia School of Law
Franita Tolson, Florida State University College of Law


The U.S. Supreme Court and the Press: Tensions and Trends (Mass Communication Law)

Fifty years ago, when the U.S. Supreme Court decided the landmark case of New York Times v. Sullivan, it signaled what many now see as a high-water mark in the protection of and appreciation for the role of a free press in our democracy.   In the subsequent five decades, both the press and the Supreme Court have experienced significant change, and each has faced criticism for its treatment of the other.
This panel will investigate the complex dynamic between the U.S. Supreme Court and the media that reports on its work, considering trends in the Court’s depictions of the media and trends in the media’s depiction of the Court.  Media scholars and members of the U.S. Supreme Court press corps will discuss the Supreme Court’s apparently declining perceptions of the press in its opinions and will compare and contrast the individual Justices’ views on the media.  They will question the strengths and limitations of the Court’s current policies regarding the press; consider the as-yet rejected proposals to introduce cameras or social media in the courtroom; and investigate ways that the media could improve its coverage of the Court and enhance public knowledge of the institution and its work.

Moderator: RonNell Andersen Jones, Brigham Young University, J. Reuben Clark Law School
Keith J. Bybee, Syracuse University College of Law
Leslie Kendrick, University of Virginia School of Law
Mr. Adam Liptak, New York Times
Ms. Dahlia Lithwick, Slate Magazine
Mr. Anthony E. Mauro, National Law Journal

3:30 pm - 5:15 pm 

The Importance of Constitutionalism: PART II

 The Constitution, like the Roman god Janus, faces in two directions.  One face is oriented towards the Supreme Court.  The Court has long dominated how we think and talk about the Constitution.  The other face of the Constitution is oriented towards ordinary citizens and towards politics.  Studies of constitutionalism focus on the larger social and political structures within which the Constitution and the Supreme Court are embedded.   The two panels will provide a snapshot of constitutionalism scholarship, with this second panel focused on whether the Constitution facilitates or undermines the goals set forth in the Preamble. 

Moderator: Miguel Schor, Drake University School of Law
Randy E. Barnett, Georgetown University Law Center
Mark A. Graber, University of Maryland Francis King Carey School of Law
David S. Law, Washington University in St. Louis School of Law
Sanford Levinson, The University of Texas School of Law

Saturday, January 4, 2014

8:30 am - 10:15 am


The Cyber-surveillance Debate (AALS Hot Topic/Bridge Program)

Recent revelations about the scope of the National Security Administration’s cybersurveillance program have sparked considerable controversy both within and outside of the United States. Domestically, civil liberties advocates are concerned about the effect of cybersurveillance on individual rights. Internationally, the NSA program has been a point of contention with allies and is potentially inconsistent with international law.
This panel will provide an overview of the current controversies about cybersurveillance. Speakers will address a variety of questions that the NSA program has sparked: How can governments implement surveillance programs to achieve national security and law enforcement goals in ways that respect individual privacy? Has the program undermined U.S. foreign policy objectives? Has it affected digital commerce and international trade? What should intermediaries do when faced with requests for information about their users? How should states handle the data collected? This panel will provide an introduction to the U.S. and international laws relevant to cybersurveillance, the technological tools at issue, questions raised by the use of such tools in terms of individual rights, and the proposals currently on the table for regulation.

Moderator and Speaker: Molly Land, University of Connecticut School of Law
Anupam Chander, University of California at Davis School of Law
Anjali Dalal (Yale)
Woodrow Hartzog, Samford University, Cumberland School of Law
Gregory S. McNeal, Pepperdine University School of Law

10:30 am - 12:15 pm

Constitutional Conflict and Development: Perspectives from South Asia and Africa (Africa and Law and South Asian Studies Joint Program, Co-Sponsored by Sections on Comparative Law and Constitutional Law)

Recent times have brought extraordinary constitutional change in both Africa and South Asia.  From the revolutions and constitution-building efforts in Tunisia, Libya and Egypt and the continued evolution of constitutional jurisprudence in South Africa, to efforts to stabilize legal processes through judicial review in Pakistan and expand the power of the central government in India, vast and profound constitutional changes are occurring in these regions.
This Joint Program will explore the constitutional conflict, development, change and evolution in these regions, and to assess, engage, critique and better understand constitutional changes and developments across the globe. 

Moderator: Matthew H. Charity, Western New England University School of Law

Stephen J. Ellmann, New York Law School
Mr. Gedion Timothewos Hessebon, Central European University Department of Legal Studies
Manoj Mate, Whittier Law School
Dr. David Mednicoff, Ph.D., University of Massachusetts Amherst Center for Public Policy and Administration
Mr. Nathan Willis, Southern Cross University


Under the Parental Gaze in the 21st Century: Children Privacy Rights Against Their Parents (Defamation and Privacy, Co-Sponsored by Sections on Children and the Law and Family and Juvenile Law)

Electronic surveillance technology and social media have significantly changed childhood in the Twenty-First Century. The digitization and electronic monitoring of children have altered the parent-child relationship and have significant ramifications for children’s privacy. At the same time, privacy scholars’ discussion of children’s privacy has focused mainly on the privacy of children from third parties, such as companies that collect personal information on the Internet. Similarly, family law scholars have paid little attention to children’s privacy, limiting the discussion to medical decision-making, and particularly abortion decisions. Yet, few have explored whether children have a general right to privacy against their parents.
The panel will explore areas of tension involving privacy rights of children against their parents. Panelists will address, among other issues, the impact of parental electronic surveillance online and offline, such as GPS monitoring and use of software to monitor online surfing. It will also explore potential parental privacy threatening activities online, such as posting information on children on Facebook or intervening in the creation of a child online persona.

Moderator: Gaia Bernstein, Seton Hall University School of Law
Dr. Ayelet Blecher-Prigat, Sha'arei Mishpat The College of Legal Studies
Pamela Laufer-Ukeles, University of Dayton School of Law
Andrea M. Matwyshyn, The Wharton School University of Pennsylvania Legal Studies and Business Ethics Department
Paul Ohm, University of Colorado School of Law
Laura A. Rosenbury, Washington University in St. Louis School of Law
Emily Gold Waldman, Pace University School of Law


2:00 pm - 3:45 pm

Cooperating with Evil, Complicity with Sin (Law and Religion)

What does it mean for religious believers and groups to refrain from “cooperating with evil”? When does involvement with government action rise to condoning it? And who decides whether a religious objector is “participating” in and thereby "complicit" with religiously objectionable conduct? Such questions play a central role in the HHS contraceptive mandate debate but they arise in other controversies as well – ranging from religious objections to same-sex marriage to the conscience claims of pharmacists opposed to stocking or selling abortifacients.
Numerous doctrinal issues are relevant to a discussion of this problem. These include whether allegations of moral complicity satisfy the “substantial burden” requirement a RFRA or free exercise claimant must satisfy, and how courts should take attenuated causation questions into account if a substantial burden is found to exist. Other questions relate to the concern that an expansive conception of moral complicity may extend so broadly that general accommodation statutes (or constitutional interpretations) would become unacceptable in their scope and unmanageable in their operation.  This panel will explore these and other problems arising from the relationship between conceptions of moral complicity and the evaluation of religious liberty claims under constitutional or statutory law.

Moderator: Alan E. Brownstein, University of California at Davis School of Law
Thomas C. Berg, University of St. Thomas School of Law
Jennifer Carr, University of Nevada, Las Vegas, William S. Boyd School of Law
Gregory A. Kalscheur, S.J., Boston College Law School
Martin S. Lederman, Georgetown University Law Center

 4:00 - 5:45 pm

What Happens With the End of Al Qaeda? (National Security Law)

 Given President Obama´s May 2013 address at the National Defense University, the Section discusses what changes would follow in the use of armed drones, military commissions, extraordinary rendition, etc., if the United States no longer relies on the 2001 Authorization for Use of Military Force. Speakers include reporters who cover the intelligence community and the Justice Department for major news outlets. Also joining the panel is Harold Koh, who upon retirement as the State Department´s legal advisor, provided a prelude to the President´s address.

Moderator: Afsheen J. Radsan, William Mitchell College of Law
Speaker: Ms. Carrie Johnson, National Public Radio
Harold Hongju Koh, Yale Law School
Greg Miller, The Washington Post
Eric Schmitt, New York Times

 Sunday, January 5, 2014

Comparative Constitutional Change: New Perspectives on Formal and Informal Amendment  (AALS Academic Symposium)

8:30 am - 10:15 am

Panel I: Constitutional Interpretation as Constitutional Change


Introductory Remarks: Richard Albert, Boston College Law School
Moderator: Professor Carlos L. Bernal-Pulido, Macquarie University Law School
James E. Fleming, Boston University School of Law
Professor Ran Hirschl, University of Toronto Faculty of Law
Samuel Issacharoff, New York University School of Law

10:30 am - 12:15 pm

Panel II: Structural Constitutional Change

Moderator: Professor Carlos L. Bernal-Pulido, Macquarie University Law School
Richard Albert, Boston College Law School
Stephen A. Gardbaum, University of California, Los Angeles School of Law
David E. Landau, Florida State University College of Law
Sanford Levinson, The University of Texas School of Law

1:30 pm - 2:45 pm

Panel III: The Forms and Limits of Unconstitutional Constitutional Amendments

Moderator: Dr. Joel Colon-Rios, Ph.D., Victoria University of Wellington
Rosalind Dixon, University of New South Wales
David E. Landau, Florida State University College of Law
Kim Lane Scheppele, University of Pennsylvania Law School
Mark V. Tushnet, Harvard Law School

3:00 pm - 5:00 pm

Panel IV: Difficulty and Rigidity in Constitutional Amendment

Moderator: Dr. Joel Colon-Rios, Ph.D., Victoria University of Wellington
Richard Albert, Boston College Law School
Thomas Ginsburg, The University of Chicago, The Law School
Vicki C. Jackson, Harvard Law School
Closing Remarks: Ozan O. Varol, Lewis and Clark Law School

December 30, 2013 in Conferences, Current Affairs, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 12, 2013

In Memoriam: Penny Pether

ConLawProf Penelope (Penny) Pether authored terrific work on comparative constitutional law and government power, including her piece Comparative Constitutional Epics which we discussed here.  Known as one of the leading lights of the discipline loosely described as "law and literature,"   her work was uniquely devoted to constitutional theory and to comparative constitutional doctrine.

In addition to being a incisive scholar, she was a generous, smart, humorous, and honest colleague with a keen devotation to pedagogy.

Here's a video of her speaking about student-centered learning:



She will be deeply missed.

For additional information, including memorial details, see Louis J. Sirico, Jr.'s post on Legal Skills Prof Blog and Mark Wojick's post on Legal Writing Prof Blog.


September 12, 2013 in Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

Saturday, August 31, 2013

What The Best Law Teachers Do: Conference June 2014

The Institute for Law Teaching and Learning's Summer Conference hosted by Northwestern University School of Law, "What the Best Law Teachers Do," will be held June 25 - 27, 2014, in Chicago.


The conference flows from the book What the Best Law Teachers Do , published by Harvard University Press, that  introduces readers to twenty-six professors from law schools across the United States, featuring close-to-the ground accounts of exceptional educators in action. The Conference will feature interaction with these instructors and learning more about their passion and creativity in the classroom and beyond.

Confirmed presenters at this conference include Rory Bahadur (Washburn University School of Law), Cary Bricker (University of the Pacific, McGeorge School of Law), Roberto Corrada (University of Denver, Sturm College of Law), Meredith Duncan (University of Houston Law Center), Paula Franzese (Seton Hall University School of Law), Heather Gerken (Yale Law School), Nancy Knauer (Temple University, James E. Beasely School of Law), Andrew Leipold (University of Illinois College of Law), Julie Nice (University of San Francisco School of Law), Ruthann Robson (CUNY School of Law), Tina Stark (retired, formerly Boston University School of Law), and Andy Taslitz (American University Washington College of Law).

They teach a wide variety of courses across the curriculum including constitutional law.

The co-authors of What the Best Law Teachers Do, Sophie Sparrow, Gerry Hess, and Michael Hunter Schwartz, will provide a framework for the presentations and a global sense of the takeaway lessons from their study.


August 31, 2013 in Conferences, Profiles in Con Law Teaching, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 28, 2013

Daily Read: The importance of amicus briefs

An  ABA Journal article by Mark Walsh tells us that last Term, 2012-2013, was "another big one" for amicus curiae briefs at the United States Supreme Court: "Seventy of the 73 cases, or nearly 96 percent, that received full plenary review attracted at least one amicus brief at the merits stage."

The top amicus-attractors? 

The same-sex marriage cases of Windsor and Perry, with 96 and 80 respectively and the affirmative action case of Fisher, with 92.  

Shelby County v. Holder, the Voting Rights Act case, attracted 49 amicus briefs, including one from ConLawProf Patricia Broussard (second from right) and her students at FAMU College of Law, as pictured below.


Yet perhaps the most interesting aspect of the ABA Journal article is its chart displaying the citation rate of amicus briefs by Justice, with Sotomayor ranking at the highest end and Scalia and Alito at the lowest end.

Worth a look, especially for ConLawProfs writing, signing, or assigning amicus briefs.



August 28, 2013 in Affirmative Action, Cases and Case Materials, Current Affairs, Fifteenth Amendment, Fourteenth Amendment, Profiles in Con Law Teaching, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, July 11, 2013

Daily Read: Marci Hamilton on Hobby Lobby

Should a for-profit corporation have free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment as the en banc Tenth Circuit held in Hobby Lobby, Inc. v. Sebelius?

Marci-Hamilton_039-RET-flat-FINALConLawProf Marci Hamilton thinks not.  In her column over at Justia, Hamilton (pictured right) provides cogent arguments countering the majority's opinion. 

Hamilton ultimately contends that RFRA, at least as interpreted by the Tenth Circuit, is unconstitutional under the Establishment Clause in that it means that "large for-profit employers, who may not discriminate in hiring based on religion, can still coerce their employees into following their religious beliefs." 

Hamilton's even larger argument, however, involves the relationship between religion and capitalism in our constitutional democracy.  Assume, she argues, that Hobby Lobby and similar companies

assert that they don’t mind losing money from those who don’t share their religious beliefs.  Or to put it another way, they really only want business from those who share their religious beliefs.  That is the slippery slope on which the Tenth Circuit has set free exercise reasoning.

That isn’t capitalism, which, when working as it should, is driven by the quality of products and competition on price, regardless of the political or religious beliefs of the producer and purchaser.  It is Balkanization, and a first step on the path to the religious wars we in the United States have avoided so far.

Yet perhaps the owners of Hobby Lobby is not anticipating that consumers will actually know that it is an entity with specific religious beliefs rather than simply a store selling sequins?

Whatever the beliefs of the owners of Hobby Lobby, however, Hamilton's column is a must read on the contentious issue of recognizing religious freedoms of for-profit companies.


July 11, 2013 in Establishment Clause, First Amendment, Free Exercise Clause, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 8, 2013

What Will Your Next Author's Footnote Reveal? Or Not Reveal?

It's summer in North America and that means scholarship-time for legal academics.  No matter what the subject of your in-progress/forthcoming/almost finished article, take time to read a brief essay by Ronald Collins and Lisa Lerman, Disclosure, Scholarly Ethics, and the Future of Law Reviews: A Few Preliminary Thoughts By Ronald K.L. Collins & Lisa Lerman, 88 Wash. L. Rev. 321 (2103), available here.

They argue that your author's footnote might need a bit of expansion to disclose any direct or indirect compensation or involvement in your subject.  Disclosure is not the norm in law reviews, especially when it comes to academics as opposed to practioners.  The comparison is even more stark when it comes to the practices in other disciplines.  


Flower Still-Life with Curtain
by Adriaen van der Spelt

But their suggestion, if rare, is hardly new.  Indeed, they quote from the AALS "Statement of Good Practices by Law Professors in the Discharge of their Ethical and Professional Responsibilities":

A law professor shall disclose the material facts relating to receipt of direct or indirect payment for, or any personal economic interest in, any covered activity that the professor undertakes in a professorial capacity . . . . Disclosure of material facts should include: (1) the conditions imposed or expected by the funding source on views expressed in any future covered activity and (2) the identity of any funding source, except where the professor has provided legal representation to a client in a matter external to legal scholarship under circumstances that require the identity to remain privileged under applicable law. If such a privilege prohibits disclosure the professor shall generally describe the interest represented.  

And, perhaps less surprising perhaps, it's something Justice William O. Douglas recommended almost half of a century ago.

They provide some scintillating examples worth consideration.  These might make you reflect not only on your own ethical responsbility to disclose, but perhaps also upon the missing disclosures in sources upon which you rely, as in the Second Amendment area which we discussed.   

And it is certainly worth passing on to your school's law review editors.


July 8, 2013 in Current Affairs, First Amendment, Profiles in Con Law Teaching, Scholarship, Second Amendment | Permalink | Comments (0) | TrackBack (0)