September 09, 2011
Julie Nice on CLS v. Martinez, the First Amendment, and Equality
The intersections of constitutional protections for liberty, equality, free speech, and free exercise of religion can make for convoluted and contentious cases. Christian Legal Society (CLS) v. Martinez, decided by the Court in 2010, is a prime example, with the additional factual setting at a law school heightening the interest for legal scholars.
In How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38 Hastings Const. L.Q. 631 (2011), Professor Julie Nice, University of San Francisco School of Law, pictured left, argues that the case illuminates several different doctrinal and theoretical controversies, ultimately making liberty more robust because it refuses the conflation of identity and ideology.
The article is further discussed as my selection for the Jotwell Equality section; it's the best essay I've read on constitutional equality in the last year. It's essential reading for every ConLawProf.
September 9, 2011 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Profiles in Con Law Teaching, Religion, Scholarship, Sexual Orientation, Sexuality, Speech, Supreme Court (US), Theory | Permalink | Comments (1) | TrackBack
August 31, 2011
Goodwin Liu to be on California Supreme Court
Goodwin Liu will be sworn in an as associate justice of the California Supreme Court on Thursday, at noon PST.
He has been a ConLawProf at UC-Berkeley (Boalt Hall) since 2003 and clerked for Justice Ruth Bader Ginsburg.
June 17, 2011
A More Constitutional Military
ConLawProf Diane Mazur's recent book published by Oxford University Press, A More Perfect Military: How the Constitution Can Make Our Military Stronger argues that the military has become unmoored from constitutional constraints. The Court, she argues, has not only engaged in military deference, but in military exceptionalism.
In an interview about the book, Mazur states "the military is most healthy when it respects constitutional values. Unfortunately, since the end of the Vietnam draft, our civilian branches of government–the President, Congress, and the courts–have been trying to distance the military from the Constitution. They assume that constitutional values get in the way of military effectiveness, but that’s not true."
Much of her book concerns the constitutional concerns of equality: how should the military deal with sexual minorities and with women within its ranks? She provides concrete examples, but argues that the Court - - - in cases such as the unanimous opinion in Rumsfeld v. FAIR (the Solomon Amendment case) - - - has impeded the military from diversifying.
June 12, 2011
Shakespeare for Lawyers: Yoshino on Justice and Elizabethan Drama
ConLawProf Kenji Yoshino's recent book, A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice, is a delectable addition for ConLaw summer reading lists.
As the subtitle indicates, Yoshino not only discusses a select group of Shakespeare's plays, but then connects them to our contemporary notions of justice and to current events.
Here's a brief snippet, courtesy NYU Law, of Yoshino discussing one of Shakespeare's less popular dramas, Titus Andronicus: (click to start)
In a review, Eric Posner criticizes the book for trying - - - and failing - - - to illuminate current events through Shakespeare, but I suspect that many readers will disagree. Yoshino's opens Shakespearean texts to contemporary meanings, making important connections for current constitutional law debates.
It seems summer would be much more rewarding if one eshewed the "con law" bestsellers in favor of Shakespeare in the park (or on the beach) with Yoshino's book.
June 11, 2011
The NYT obituary notes that after representing persons "blacklisted because of their refusal to answer questions before the House Un-American Activities Committee," "Mr. Redlich began teaching constitutional and tax law at N.Y.U." and started to "work without compensation on a series of appeals for death row inmates at Sing Sing."
June 10, 2011
Professor Steve Gey
Steve Gey was a notable First Amendment scholar; some of his work is available on ssrn. He taught at FSU since 1985. He will surely be missed by his colleagues, friends, students, and family.
March 03, 2011
Libby Adler's Rights Critique, Law Reform, and Responses
Harvard Civil Rights - Civil Liberties Journal has held an online forum on Professor Libby Adler’s piece (available on the forum) entitled “Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform."
Adler, author of The Gay Agenda, here argues for a "critical approach to law reform agenda setting," with a methodology that
rests on a distinction between reconstruction and decisionism. Decisionism, according to my usage, consists of making difficult choices about which law reform initiatives to undertake based on broadly informed distributional hypotheses and cost-benefit calculations and then acting on the best information one can get with the best judgment one can muster, always prepared to bear the costs of one’s choices. Each law reform achievement, should it materialize, rather than being a step along a path in the direction of a lodestar such as formal equality, will—one hopes—effectuate a positive distributive impact for marginalized persons while imposing bearable costs. As a theoretic matter, the achievement is likely to be generalizable only to a limited extent, if at all. In other words, it will not necessarily further any overarching theoretic objective
Twelve invited commentators respond to Libby Adler's advocation of “decisionism" including Angela Harris, Art Leonard, Aziza Ahmad, Francisco Valdes, Katherine Franke, Nancy Polikoff, Darren Rosenblum, Sarah Valentine, and Anthony Varona.
Adler's piece and the comments demonstrate that the problem of "rights" in constitutional law remain a persistent issue, as well as the problems of "equality" and "identity."
This forum could be an excellent basis for discussion in a constitutional law seminar or a jurisprudence class.
A "live" Colloquium will be held on March 9, 2011 at 5-7p.m. at Harvard Law School in Austin North.
February 13, 2011
Nonviolent Revolution: India, Egypt and West Virginia Weekend
Recent events in Egypt are a meaningful reminder of the power of broad-based, nonviolent movements from the history of other nations, such as India. Earlier this month, we explored the presidential election process under the Egyptian Constitution here and its requirements for presidential succession here. Mubarak has since resigned. The Constitution of Egypt is now suspended, with promises of a new constitution.
As legal scholars contemplate the uprising in Egypt with an eye toward the possibility of further popular uprisings in the Middle East, they might also be looking to earlier nonviolent freedom movements. Nearly 81 years ago this week, the All-India Congress Committee authorized a nationwide campaign of civil disobedience aimed a loosening the grip of British colonial rule. Mahatma Gandhi launched the Civil Disobedience Movement in India in March of 1930 by leading the historic Dandi Salt March, also known as the Salt Satyagraha. (Satyagragha translates as “truth seeking” or “asking for truth.”) The Salt March was a pivotal moment in India’s long campaign for independence, because as Gandhi marched from village to village and ultimately to the sea where he and his fellow marchers made salt without paying the reviled British salt tax, a nationalist fervor swept the country.
Professor of Law at WVU Charles R. DiSalvo does just that in a brief chronicle of Gandhi as a practicing attorney in the article “Gandhi: The Transformation of a South African Lawyer, 1897-1898,” in Rethinking Gandhi and Nonviolent Relationality: Global Perspectives (Degjani Ganguly & John Docker, eds. 2008). In it, DiSalvo theorizes that “the experiences Gandhi underwent during the time he practiced law in South Africa transformed his vision of law as an engine of social change. . . ., [and] that this transformation, during which Gandhi lost faith in an ultimately corrupt legal system, constituted a key pre-condition for his eventual embrace of nonviolence.” Id. Overall, “Gandhi’s experience with the law in 1897 and 1898 in particular constitutes a microcosm that foreshadows and helps explain his transformation from business lawyer to civil rights attorney to civil disobedient.” Id. at 100.
DiSalvo traces Gandhi’s legal experiences beginning with his rather common transaction work for Indian business interests in the colony of Natal (now the province of KwaZulu-Natal, South Africa). But after the imposition of a series of legislative acts by the colonial legislature that intended to weaken the influence of Indian merchants, Gandhi was persuaded to “organize [the merchants’] resistance to the European assault on their rights.” Id. at 101. The worst of the laws was the Dealers’ Licenses Act (“DLA”), which required every wholesale and retail business in the colony to obtain a government permit. The Act empowered local “Licensing Officers to deny permits to those who could not maintain their books in English,” and for other “imprecisely drawn grounds,” all of which served as handy pretexts for racial discrimination by local European officials. Unsurprisingly, the essentially standard-less requirements, further compounded by the prohibition of a direct appeal to the courts, lead to racially-motivated crackdown on Indian businesses throughout the colony.
As an advocate for these targeted interests, Gandhi first “relied almost exclusively on petitioning – incessant, persistent, unrelenting petitioning.” Id. at 102. This failed. But, turning to litigation, Gandhi found some success in as-applied challenges to the arbitrary reviewing process of the permitting. Grounded in basic notions of due process – specifically, fair notice – Gandhi was able to convince the colonial Supreme Court to reverse a few licensure denials. But his clever statutory interpretations would only get his Indian clients so far, as the despised anti-Indian Acts remained on the books. In the end,
Gandhi’s recognition of the judiciary’s limitations as a tool for social change marked an early but key turning point in his transformation from lawyer to civil disobedient. While the courts might address procedural irregularities, they could not be counted on to attack basic, underlying norms and the power establishment of which they themselves were a part. The courts would not turn on themselves. The law would not free Gandhi’s people – at least not in the manner he expected it would in 1898.
Id. at 112.
DiSalvo asks of Gandhi, “Is this the end? Does he give up on the law entirely?” His conclusion is subtle, yet powerful:
Gandhi’s frustration with the courts led him to abandon litigation as a tool for social change and contributed to his decision to embrace nonviolent civil disobedience. . . . It is rejection of litigation. It is not a rejection of law. His rejection of litigation is a stage in his developing understanding of the law as much deeper, more expansive and more filled with promise than litigation. In the remainder of his life, he comes to see and believe in the deep underlying structure of the law. It is to this that his nonviolent disobedience appeals. A civil disobedient who willingly subjects himself to the punishment of the system, as Gandhi did, believes in the grand structure of the law, in the rule of law.
Id. at 113.
DiSalvo is presently completing a full legnth book on Ghandi's life as a lawyer. Meanwhile, DiSalvo's interview with Australian Broadcasting Comany from several months ago is a treat; listen to it here.
Of course, it remains to be seen whether distinct comparisons between the Indian experience and recent events in Egypt will prove pertinent. Nevertheless, understanding the intersection of law and the history of nonviolent freedom movements can’t be a bad place to start.
with J. Zak Ritchie
(image: Gandhi in Johannesburg, 1905, via)
February 05, 2011
Constitutional Law as Anchor: Lutie Lytle
"I like constitutional law because the anchor of my race is grounded on the constitution. It is the certificate of our liberty and our equality before the law. Our citizenship is based on it, and hence I love it."
So said Lutie Lytle (pictured). She was born in 1875 and was among the first African Americans to earn a law degree when she graduated from Central Tennessee Law School in 1898. She returned to Central Tennessee to teach law and newspaper accounts "claimed that she was the only woman law instructor in the world." She reportedly taught criminal procedure, evidence, and domestic relations during her brief time in academia. She later moved to New York and was active in the National Bar Association. Although information about Lytle's career and life is regrettably sparse, a solid scholarly resource is J. Clay Smith, Jr.'s, Emancipation: The Making of the Black Lawyer, 1844-1944 (1993).
(H/T Judith Scully)
January 28, 2011
Onwuachi-Willig Among 9 Finalists for Iowa Supreme Court
The Judicial Nominating Commission in Iowa, the subject of a recent unsuccessful lawsuit regarding its composition, has sifted through the 60 applicants and sent 9 candidates for the 3 vacancies to the Governor.
There is one woman, one racial minority, and one law professor - - - and then there are 8 other candidates.
Angela Onwuachi-Willig, Professor of Law at the University of Iowa College of Law (pictured left) is also the youngest candidate, at age 37, according to The Des Moines Register.
Onwuachi-Willig is a prolific scholar on race, class, and feminism, including their constitutional aspects. One of Onwuachi-Willig's most influential articles is Just Another Brother on the Supreme Court?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity in which she argues that Thomas' ideology is deeply grounded in black conservative thought, which has a "raced" history and foundation that are distinct from white conservatism. She seeks to explain Justice Thomas's jurisprudence from a black, conservative perspective in cases concerning education and desegregation, affirmative action, and crime.
The current vacancies on the Iowa Supreme Court occurred when three Iowa Supreme Court justices stood for retention last November and were not retained by the voters of Iowa. This result is widely assumed to be attributable to the campaign against the judges based upon the Iowa Supreme Court's unanimous opinion in Varum v. Brien holding that a denial of same-sex marriage is unconstitutional under the state constitution.
September 14, 2010
Con Law Chair at JMLS
The John Marshall Law School (Chicago) is soliciting applications for a new visiting chair in Constitutional Law.
The Chair honors Edward T. Lee and his son, Noble W. Lee, for their many years of service to the law school, their contributions to legal education, and their shared passion for constitutional law. From the announcement:
Pioneers in American legal education, Edward T. and Noble W. Lee held strongly to the belief that it is critical to the health of our democratic society that the study of law be open to all segments of society, irrespective of race, religion, sex, national origin, or economic status. As a consequence, from its earliest years, the principles of access and opportunity in legal education have been deeply ingrained in the school's culture and mission.
The Chair appointment begins in August 2011 and runs for up to two years. The incumbent will write, teach, and speak; details are negotiable.
Applications are due November 1. Click here for more information.
August 13, 2010
Constitutional Law Position at Brooklyn College, CUNY
Position Announcement: Herb Kurz Endowed Chair in Constitutional Law and Civil Liberties at Brooklyn College, City University of New York (pictured left).
Brooklyn College invites applications for the Herb Kurz Endowed Chair in Constitutional Law and Civil Liberties. Research and writing in any of the following areas is of particular interest: Congress’ commerce-clause powers over the economy and other sectors of national life; executive power during wartime; freedom of speech; the rights of criminal suspects and prisoners; equal protection and due process for people of color, women, and LGBT communities; the rights and standing of immigrants and migrant communities; the role of international law, particularly human rights law, in constitutional interpretation. This position is at the Associate or Full Professor level. Candidates should have a PhD in political science or any related discipline in the humanities and social sciences and/or a Juris Doctor, and a distinguished record of teaching, scholarship, and leadership in the field of constitutional law.
Position listing here.RR
July 23, 2010
Commentary by Sherrilyn Ifill
Sherrilyn Infill, ConLawProf at the University of Maryland School of Law and author of On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-first Century, has two recent commentaries worth reading.
In her just published and provocatively titled commentary, "What the U.S. Supreme Court Did to Us This Year" Ifill begins by noting the confirmation by the Senate Judiciary Committee of Elena Kagan and notes:
Kagan will join a court whose conservative majority has aggressively taken and decided cases that are transforming the constitutional landscape in ways that will have far-reaching effects. Some Supreme Court analysts have rated the court's actions in the just-concluded term as unremarkable. But for average Americans and for minority communities, the 2009-2010 term of the court is a significant one.
In a different commentary, Infill has something to say about the Shirley Sherrod controversy, making an interesting link to the Sonia Sotomayor confirmation process.
May 07, 2010
In Memoriam: Rhonda Copelon
ConLawProf, constitutional law litigator, and Vice-President of the Center for Constitutional Rights, Rhonda Copelon (pictured below) died yesterday, May 6, 2010.
Video interviews, more about her work, and a photo slide show is available here.
April 02, 2010
SALT: The Society of American Law Teachers New Blog
SALTLAW is the new blog of SALT, Society of American Law Teachers, self-described as a "community of progressive law teachers working for justice, diversity and academic excellence."
SALT is known for its teaching conferences, its activism on behalf of social justice issues including those in constitutional law, and its members, including those featured on the blog: Angela Harris (pictured left) and Rhonda Copelon (pictured right).
The blog announcement makes clear that the "blog is not a forum for the expression of SALT’s positions, but a place where our members can publish commentary on emerging issues in law, politics, and education or where they can develop arguments about policies and problems that are persistent or seem intractable. The SALT Board has no list of topics that should be addressed or any agenda that it has set for this blog."
Instead, the plan is a "year-long schedule of regular and guest contributors who will add voice to progressive issues" and will "include both legal and non-legal issues" ranging from "conversations about the economic crisis to questions about U.S. torture policies to discussions about the lack of diversity in baseball management to the development of a hip-hop theory of justice."
The roster of planned bloggers is an impressive one featuring many ConLawProfs.
February 26, 2010
Larry Tribe, Legal Services for the Poor, and Sharon Browne
ConLaw Prof Larry Tribe (pictured left) of Harvard Law School "will join the Justice Department next week as a senior and counselor focusing on expanding poor people's access to legal services" according to the Washington Post and announced by Harvard Law School.
The WaPo article notes, "The announcement comes a week after senior leaders at the department appeared at a Washington conference to draw attention to the large caseloads handled by public defenders and other challenges in providing legal services to low-income defendants."
Thus, it seems Tribe's efforts will be directed at the criminal justice system.
Meanwhile, on the civil side, Sharon Browne has been nominated to be the Director of the Legal Services Corporation - - - a choice objectionable to many civil rights and progressive legal organizations who support civil legal services for the poor. According to the Alliance for Justice, Senate Minority Leader Mitch McConnell (R-KY) proposed that Sharon Browne, a senior attorney at the Pacific Legal Foundation ("PLF"), be nominated to fill a vacancy on the Legal Services Corporation ("LSC") Board of Directors, and Obama sent that nomination to the Senate for confirmation or rejection. In addition to her work at PLF, the Alliance for Justice objects to Browne because in 1992, "Browne was one in a group of plaintiffs who filed a lawsuit, Brosterhous v. State Bar of California,challenging the State Bar's use of attorneys' dues money to advocate for providing adequate legal services for the poor in the legislature."
Gormley on Starr and Clinton
The review in the NYT notes that "unlike some other commentators, Gormley allows for the possibility that even the most rabid-seeming players might have acted out of honorable considerations." Based on an interview with the federal district judge hearing the original sexual harassment lawsuit, Gormley also reveals that she contemplated finding Clinton in criminal contempt, which would have ended Clinton's political career in a "nanosecond." Yet the tenor of the 800 page book, at least according to the NYT review, is that the Clinton impeachment was all so unnecessary (quoting Starr) and diversionary.
The political relevance of Gormley's book is obvious. But it also seems an essential sequel to Clinton v. Jones, in which the Court unanimously rejected Clinton's constitutional arguments to stay the trial until after his presidency had ended.
February 26, 2010 in Books, Cases and Case Materials, Executive Privilege, History, Profiles in Con Law Teaching, Scholarship, Separation of Powers, Teaching Tips | Permalink | Comments (0) | TrackBack
January 24, 2010
Schwinn in Jordan
As Legal Writing Prof Blog notes, they'll be leading a one-week ABA Workshop on Teaching Essential Legal Skills -- Legal Writing and Analysis. Their audience is law professors from Egypt, Iraq, Jordan, Lebanon, Saudi Arabia, and other countries in the Middle East.
January 07, 2010
Supreme Court Database
Lee Epstein's presentation this morning on the panel "American Constitutional Law and the New Supreme Court" at the AALS Annual Meeting in New Orleans highlighted the Supreme Court Database, now available online. The database has an excellent tutorial which enhances the goal of accessibility (especially for those of us who may not have been stellar in that long-ago statistics course).
According to its own description, the database "contains over two hundred pieces of information about each case decided by the Court between the 1953 and 2008 terms. Examples include the identity of the court whose decision the Supreme Court reviewed, the parties to the suit, the legal provisions considered in the case, and the votes of the Justices."
During her presentation, Northwestern University School of Law Professor Lee Epstein used the database to empirically test some oft-voiced propositions, such as Justice Kennedy being a judicial supremacist or Justice Alito's replacement of Justice O'Connor being a negative consequence for criminal defendants. By doing several different types of data analysis, Epstein was able to provide the empirical interpretation of the propositions.
While it certainly does not substitute for a close reading of opinions (and of course, is not intended to do so), the Supreme Court Database is a great addition to scholarship and teaching. And much easier to tailor to one's own interests than the (still essential) Supreme Court Compendium and much easier to use than the previous software.
October 21, 2009
Torture and Academic Freedom
The controversy over John Yoo's professorship at UC-Berkeley School of Law (Boalt Hall) continues.
The PBS News Hour aired a segment yesterday, available as mp3 audio, streaming video and transcript here.