Tuesday, April 17, 2018

Daily Read: Curing the Inequality of Privacy Protections

Whose privacy counts? Whose privacy should count?

While these questions could be asked across many doctrines, one intersection occurs in the origins of privacy, including the tort remedies for its invasion. In his article Privacy's Double Standards, available on ssrn and forthcoming in Washington Law Review, Professor Scott Skinner-Thompson argues for the necessity of equal protection standards in privacy protection torts. Centered on the tort of public disclosure of private facts, Skinner-Thompson rightly observes that it has been applied unevenly, with privileged and celebrity plaintiffs prevailing (think: Hulk Hogan v. Gawker) when more marginalized plaintiffs (such as victims of revenge porn) have not, noting that this is perhaps not surprising given the origins of the tort in "Brahman society." Skinner-Thompson discusses these cases and numerous others to support this observation (and provides a nice appendix of his research methodology).

Edgar_Degas_-_Mrs_Jeantaud_in_the_Mirror_-_Google_Art_ProjectYet rather than simply detail the disparities evinced in the cases, Skinner-Thomson argues that just as the First Amendment has shaped the doctrines of torts, so too should constitutional equality principles be applied to the inequalities in tort remedies for invasions of privacy. He argues that "to better comply with constitutional equality principles, the substance of privacy tort law must be relaxed so as to ensure that individuals in marginalized communities are able to bring claims on the same terms as privileged individuals."

His specific recommendations for reshaping the tort doctrine of public disclosure of private facts:

  • All plaintiffs, and not just well-known ones, should be able to prevail in public disclosure tort claims" even if they have shared the information at issue (for example, their HIV status, sexual orientation, or intimate photographs) within certain confines."
  • All plaintiffs should be able to prevail in public disclosure tort claims even if the defendant has not shared the information with the world at large (for less well-known plaintiffs, the interest of the world can be limited, but, for example, disclosure of one's sexual orientation to one's small community church can be equally devastating).

As Skinner-Thompson makes clear, he is not arguing that a privacy tort plaintiff  " will be able to successfully bring an equal protection challenge to the way the public disclosure tort is operating," but it is to argue that this tort could be  - - - and should be - - - inflected with equal protection concerns.  

[image: Edgar Degas, Mrs Jeantaud in the Mirror, circa 1875 via]

April 17, 2018 in Equal Protection, First Amendment, Privacy, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0)

Tuesday, March 27, 2018

Daily Read: Janet Calvo on DACA and State Professional Licensing

Who needs a professional license? In California, anyone wishing to be an accountant, acupuncturist, cosmetologist, court reporter, bedding salesperson, landscape architect, pharmacist, teacher, real estate agent, pest control operator, or teacher, among many others. Yet the type of immigration status that should be a prerequisite for obtaining a state professional license has not been consistent, at least until California did implement a remedy. And in New York, with a different array of immigration regulations for professional licensing, a different type of remedy was eventually decided upon.

Delia_Boccardo_make-upIn her article Professional Licensing and Teacher Certification for Non-Citizens: Federalism, Equal Protection and a State’s Socio-Economic Interests, in Columbia Journal of Race and Law, Professor Janet Calvo analyzes the intersection of Equal Protection doctrine and the Tenth Amendment to argue that states have the constitutional responsibility as well as the constitutional power to remove immigration barriers to state licensing requirements. Distinguishing among categories of immigration status raises equal protection concerns and, as the Second Circuit has held, constitutional violations. Additionally, licensing is a traditional state function which Congress can regulate to some extent but not totally commandeer.

As Calvo argues, California and New York each took a unique path to solving the licensing issue, yet taken together, they offer a map to other states, organizations, and communities seeking to address similar problems.

 

March 27, 2018 in Equal Protection, Federalism, Fourteenth Amendment, Profiles in Con Law Teaching, Tenth Amendment, Theory | Permalink | Comments (0)

Wednesday, January 17, 2018

Daily Read: Was Marbury v. Madison Right? Justice Kennedy Wants to Know

The United States Supreme Court heard oral arguments in Dalmazzi v. United States in which the complicated issue is whether 10 U.S.C. § 973(b)(2)(A)(ii), the so-called dual-officeholding ban, prohibits military officers from holding or exercising the functions of a “civil office” requiring a presidential nomination and Senate confirmation “except as otherwise authorized by law.”  The case is made more complicated by the threshold issue of whether the Court has power to review the case.  Amy Howe has a good discussion of the oral argument on SCOTUSblog.

A notable highlight of the argument was when Justice Kennedy asked ConLawProf Stephen Vladeck, arguing for the petitioners, whether Chief Justice John Marshall was correct in  Marbury v. Madison.

Lossy-page1-762px-Chief_Justice_Marshall_(NYPL_Hades-256630-EM14964).tiffJUSTICE KENNEDY:  Do you think Marbury versus Madison is right?

(Laughter.)

JUSTICE KENNEDY:  Particularly as to the interpretation with such exceptions as Congress may make.

VLADECK: So, I will confess, Justice Kennedy, that I may perhaps belong in the school of scholars who thinks that Chief Justice Marshall read both the statute and the Constitution to reach the constitutional questions he wanted to reach. I'm not sure that he nevertheless didn't end up with the right -- with the wrong answer. And, again, I think, for purposes of the question presented in this case on this Court's jurisdiction, the more relevant case is not Marbury but [Ex Parte] Bollman [1807].

And if I may, Mr. Chief Justice, I'd like to reserve my time.

 

 

ConLawProfs and ConLaw students engaging with Marbury v. Madison could not ask for a more current example of the continuing relevance of the case.  And for enhanced learning, try the CALI Lesson on the case or these ideas.

January 17, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Oral Argument Analysis, Profiles in Con Law Teaching, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Friday, April 21, 2017

Ninth Circuit Upholds Berkeley Ordinance Requiring Cell Phone Retail Disclosures

In its opinion in CTIA - The Wireless Ass'n v. City of Berkeley, a panel of the Ninth Circuit rejected First Amendment and preemption challenges to an ordinance requiring retailers to provide notices to consumers about their cell phone purchase.  The notice, to be on a poster or handout, with the seal of the city, must read:

The City of Berkeley requires that you be provided the following notice:

To assure safety, the Federal Government requires that cell phones meet radiofrequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.

As the notice implies, the FCC disclosures required to be included with the phone are similar if more extensive. 

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Affirming the district judge, the divided Ninth Circuit panel found that the required notice did not violate the First Amendment. As a compelled disclosure in a commercial context, the choice of standards was between the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985). Writing for the majority, Judge William Fletcher found that the Zauderer test was appropriate, despite the fact that the disclosure did not involve "consumer deception."  Judge Fletcher agreed with "sister circuits that under Zauderer the prevention of consumer deception is not the only governmental interest that may permissibly be furthered by compelled commercial speech," citing the D.C. Circuit's en banc opinion in American Meat Institute v. U.S. Department of Agriculture. Judge Fletcher's opinion reasoned that the Zauderer's language that the disclosure be “uncontroversial” should not be over-emphasized:

Given that the purpose of the compelled disclosure is to provide accurate factual information to the consumer, we agree that any compelled disclosure must be “purely factual.” However, “uncontroversial” in this context refers to the factual accuracy of the compelled disclosure, not to its subjective impact on the audience. This is clear from Zauderer itself.

Applying the deferential Zauderer standard, the court again confronted whether the disclosure was "purely factual" as well as being reasonably related to a substantial governmental interest.  Judge Fletcher's opinion concluded the mandated notice was "literally true," based on FCC findings.  The court rejected CTIA's argument that while it might be "literally true," the statement was "inflammatory and misleading." Judge Fletcher analyzed the compelled notice sentence by sentence, finding it true. For example, CTIA objected to the phrase “RF radiation,” but  Judge Fletcher's opinion noted this is "precisely the phrase the FCC has used, beginning in 1996, to refer to radio-frequency emissions from cell phones," and that the city could not be faulted for using the technically correct term that the FCC itself uses.

It was on this point that the brief partial dissent by Judge Michelle Friedland differed.  For Judge Friedland, consumers would not read the disclosure "sentences in isolation the way the majority does."  She argues that taken as a whole,"the most natural reading of the disclosure warns that carrying a cell phone in one’s pocket is unsafe," and that "Berkeley has not attempted to argue, let alone to prove, that message is true."  She accuses the city of  "crying wolf" and advises the city if it "wants consumers to listen to its warnings, it should stay quiet until it is prepared to present evidence of a wolf."

In addition to the First Amendment claim, CTIA argued that the mandated disclosure was preempted by federal regulations.  The court noted procedural problems regarding when the argument was advanced.  Nevertheless, the court clearly concluded:

Berkeley’s compelled disclosure does no more than to alert consumers to the safety disclosures that the FCC requires, and to direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure. Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.

But surely it is the First Amendment issues that are central to the case. The panel essentially divides on the limit to government mandated disclosures to consumers, an issue that vexed the DC Circuit not only in the American Meat Institute case mentioned above, but also in National Association of Manufacturers v. SEC (conflict minerals) and in R.J. Reynolds Tobacco Co. v. FDA (cigarette labeling), both of which held the labeling requirements violated the First Amendment.  One measure of the importance of the issue is the attorneys who argued CTIA in the Ninth Circuit: Theodore Olsen for the trade association of CTIA and Lawrence Lessig for the City of Berkeley.  The Ninth Circuit's majority opinion is careful and well-reasoned, but as the divided panel evinces, there are fundamental disputes about warning labels.

April 21, 2017 in Federalism, First Amendment, Opinion Analysis, Preemption, Profiles in Con Law Teaching, Recent Cases, Speech | Permalink | Comments (0)

Thursday, January 26, 2017

Daily Read: Resources on Presidential Power

There's a new handy guide collecting resources that will come in handy for ConLawProfs, students, lawyers, and the general public.

In conjunction with the course, Presidential Power, to be offered at University of Washington School of Law by Professors Kathryn Watts and Sanne Knudsen, law librarian Mary Whisner has developed an excellent "Readings and resources concerning presidential power" library guide available here.

Some of the guide tracks the course, and is thus in development, but the "Books about Presidential Power" section is a great place to start understanding the legal, historical, and political dimensions of the issues.  The "Useful Reference" portion is a good overview, with a handy link to the Federal Register feed.

Additionally, here are two PBS "crash course" videos - - - from 2015 - - - that are also worth a watch:

 

 

 

 

January 26, 2017 in Executive Authority, Executive Privilege, Profiles in Con Law Teaching, Scholarship, Teaching Tips | Permalink | Comments (0)

Wednesday, January 25, 2017

Daily Read: Press and the First Amendment

In their op-ed in The New York Times, "Don’t Expect the First Amendment to Protect the Media," ConLawProfs Ronnell Anderson Jones and Sonja West argue that while it may be "comforting" to think that the "Constitution serves as a reliable stronghold against Mr. Trump’s assault on the press," the that is not true.  Instead, "legal protections for press freedom are far feebler" than assumed and have been "weakening in recent years." 

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Ronell Anderson Jones

They contend there is little recourse in the courts.  As they state:

The Supreme Court has not decided a major press case in more than a decade, in part because it has declined to do so, and in part because media companies, inferring the court’s relative lack of interest, have decided not to waste their resources pressing cases. Several justices have spoken negatively of the press in opinions or speeches. Lower courts have likewise become less favorable to the press, showing more willingness than in the past to second-guess the editorial judgment of journalists.

Much of the ""freedom" of "the press" in the First Amendment is supported by "customs and traditions," which the new President seems "keen to destroy." 

West profile
Sonja West

Their prescription? 

We cannot simply sit back and expect that the First Amendment will rush in to preserve the press, and with it our right to know. Like so much of our democracy, the freedom of the press is only as strong as we, the public, demand it to be.

How "the public" should make such demands is seemingly the question of the moment.

January 25, 2017 in Current Affairs, First Amendment, Profiles in Con Law Teaching, Speech | Permalink | Comments (0)

Monday, July 11, 2016

Daily Read: Black Lives Matter, Respectability Politics, and News Reporting

In a just-published article, Black Lives Matter and Respectability Politics in Local News Accounts of Officer-Involved Civilian Deaths: An Early Empirical Assessment, 2016 Wisconsin Law Review 541, ConLawProf Osagie K. Obasogie (pictured below) and UC Hastings law student Zachary Newman present a compelling discussion of how news media - - - and by extension the general public - - - engage in the politics of respectability with regard to allegations of police misconduct, focusing on the conduct or character of the victim. 

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The authors argue that although " sustained media attention to Black Lives Matter may lead some to conclude that journalists have become more sensitive to how respectability politics can lead to inaccurate reporting and encourage more balanced descriptions of these events, our qualitative assessment of the selected data suggests that journalists’ reporting of these incidents continues to reflect a troubling respectability politics that minimizes the lives lost and overstates the legitimacy of police use of deadly force."

In looking at news reports from 2013 until July 2015, the authors conclude that

overall, as a qualitative matter, there is a notable discursive consistency across pre– and post–Black Lives Matter reporting on officer-involved killings, suggesting that the movement’s concerns over race and respectability are not reflected in journalists’ accounts. This overall finding is empirically supported by three persistent themes throughout the data: (1) a strong commitment to colorblindness in discussing the race of the parties involved, (2) the dominance of the police perspective in reporting these incidents, and (3) continued use of criminalizing language unrelated to the incident itself to characterize the victim’s respectability.

The authors insights could be extended to more recent events, including those of this past week, which will be sure to still be on the minds of law students in our classes and  this article could be a great introductory reading for 1L students.

Additionally, more must-read discussions of respectability politics including the events of the last week is over at Race and the Law Prof Blog, including Atiba Ellis's, On Respectability, the Dallas Shootings, #BlackLivesMatter, and Reasoned Discourse which links to that blog's online symposium on Respectability Politics.

July 11, 2016 in Current Affairs, Equal Protection, Fourteenth Amendment, Interpretation, News, Profiles in Con Law Teaching, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (4)

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.

 

Greene_dennis

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).

Marc-poirier-176x220

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]  149 [updated]  LINKS TO ALL THE BRIEFS ARE AVAILABLE ON THE ABA WEBSITE HERE.

 76  77 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.

58 66 67 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)

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.

Hong-yen-chang-portrait
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) law.columbia.edu.

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.

Hanna_Full

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).

Taslitz

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).

 

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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

 

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.

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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)