Friday, February 26, 2010
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."
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 (0)
Sunday, January 24, 2010
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.
Thursday, January 7, 2010
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.
Wednesday, October 21, 2009
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.
Saturday, October 10, 2009
The Matthew Shepard Hate Crimes Act, ENDA, the repeal of "Don't Ask, Don't Tell" in the military, same-sex marriage and DOMA - - - these are often considered the "gay agenda." Indeed, President Obama's anticipated speech tonight at a Human Rights Campaign dinner in Washington, DC, is expected to cover many of these issues, although according to preliminary reports, Obama's message will be one of patience and temperance, disappointing many activists.
Yet not all "activists" would agree that the conventionally described "gay agenda" should be the goals of any LGBT legal reform movement. Libby Adler (pictured below) ConLaw Prof at Northeastern University School of Law, argues that the ongoing "culture war," "while a fundraising boon and a media draw, compels a particular type of participation and a particular reform agenda, eclipsing reform possibilities that might be preferable in the long run."
In her article, The Gay Agenda, 16 Mich. J. Gender & L. 147 (2009), available in draft form on ssrn here, Adler not only seeks to transcend the "culture wars," but argues that goals of "formal equality" between "gay and straight people," need to be replaced by goals enabling law "to create the best possible conditions against which a broad array of people can make choices." In the context of the application of Loving to same-sex marriage arguments, Adler writes:
Formal equality has its merits, but it is not incontrovertible that formal equality is the highest value that law reformers could be pursuing at all times. For one thing, the very term formal equality exists in opposition to substantive equality, and—as any student of affirmative action or workplace accommodations for working mothers will report—these goals can conflict. A formal equality agenda can eclipse or even undermine other potentially worthy goals. . . . [t]he benefits of formal equality stand counterpoised to the costs associated with the pursuit of formal equality. While the attainment of formal equality has undeniable fairness appeal, the pursuit takes place in the context of a culture war which is waged in normalization and rights discourses.
Instead, Adler posits several law reform agendas. As a central example, she uses homeless adolescents. By combining critical theory and real lives, Professor Adler demonstrates a methodology to assist the rethinking of "the gay agenda" as well as equality.
This is a thought-provoking and necessary article, worth reading (if you haven't already done so) and assigning.
October 10, 2009 in Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Profiles in Con Law Teaching, Scholarship, Sexual Orientation, Sexuality, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Sunday, July 19, 2009
JUDICIAL VALUES: SHOULD JUDGES JUST APPLY THE LAW - OR SHOULD THEY BRING THEIR OWN VALUES TO THE TASK?: Forum
The questioning on "judicial values," phrased as "should judges just apply the law or should they bring their own values to the task" is not a uniquely American one. Indeed, this is the topic on a forum to be held at The Law School of University of Sydney, Australia, August 27, details here.
Schlink, of course, is the author of the bestselling novel The Reader, which is about a young man's affair with an older woman who is put on trial for her role in the Nazi regime. The book was made into a popular movie in 2008.
Schlink is not just a bestselling author, but also a Professor of Constitutional and Administrative Law and the Philosophy of Law at Berlin's Humboldt University, who was previously a justice of the Constitutional Law Court in Bonn, Germany.
The forum event is being held in conjunction with the Sydney Writers Festival and hosted by Damien Carrick of the Australian Radio National’s "The Law Report." The publicity frames the discussion this way:
Schlink's most recent book is Guilt About the Past, a series of six essays based on his 2008 Weidenfeld lectures at Oxford University and being published by an Australian University Press.
July 19, 2009 in Books, Comparative Constitutionalism, Conferences, Current Affairs, History, International, Interpretation, Profiles in Con Law Teaching, Theory | Permalink | Comments (0) | TrackBack (0)
Friday, June 5, 2009
Quoting Larry Tribe, Con Law Prof, Huffington Post reports that Tribe has stated:
The HuffPo piece by Emma Ruby-Sachs notes that Tribe "hired Obama as a research assistant in his first year of law school." The implication is that Obama is influenced by his former conlawprof? One might also look at Professor Obama's 1996 Con Law exam "feedback" regarding a lesbian issue, discussed here.
The DOJ has until June 29 to decide whether or not to defend the DOMA challenge, discussed here. The federal government's stance on the lawsuit is being closely watched. Obama is being criticized for not keeping his campaign promises to LGBT Americans. Obama's most recent statement on LGBT issues, blogged here, is also being criticized as insufficient as well as too radical.
DOMA was signed by then-President Bill Clinton in 1996 (pictured below).
Friday, May 8, 2009
Interested in a Constitutional Law III examination and feedback from 1996? What about if the Professor was the now-President Barak Obama?
The first question on the exam involves a lesbian seeking to obtain IVF despite a law that the "state legislature passed a law last year, titled the “Preservation of Family Values Act” (PFVA), that, inter alia, prohibits any doctor or health care professional, whether in private practice or employed by the state, from providing infertility services to any unmarried person within the State of Wazoo." The question asks students to address both equal protection and substantive due process claims.
The second question involves an African-American mayor considering two affirmative action policies - one regarding city contracts and the other involving the hiring of firefighters and the civil service examination. This question specifically asks students to argue both sides, provide a considered conclusion, and to "feel free to present to the Mayor any broader policy issues or theories of racial justice that are raised by his plan and/or the referendum."
The full exam is here. The feedback, here, is twelve pages and in the form of a discussion rather than a checklist or model answer. It was an open book examination and students had six hours, although as the instructions assert: "The exam is designed, however, to be completed in approximately three hours. Feel free to use the extra three hours as you wish (anxiously flipping through the casebook for that one last citation, or heading over to the gym for a good workout - your choice)."
Thanks to Alana Chazan, class of 2009 CUNY School of Law, for these documents, which are from the NYT blog from July 2008 here, along with other exams and syllabi and comments from conlawprofs. And yes, it did make me look for the exam I gave and the feedback from 1996, although I am about to admit defeat unless I can find a floppy disk reader!
Tuesday, May 5, 2009
Or so I once said, in an interview: “It was the summer of 1992, the last summer of the Reagan-Bush regime, although the demise of that era was far from certain. I was being interviewed by a gay and lesbian magazine for a feature article about the Supreme Court. I was staying in Provincetown, a place renowned for its lesbian/gay culture, surrounded by lesbians of every ilk. . . . when the interviewer asked me a general question about changing the United States Supreme Court, I replied that we should start with the appointment of a lesbian. My proposal, glib as a Provincetown summer, implicitly asserts lesbianism would be a relevant quality of a United States Supreme Court Justice.”
The specter of a lesbian Supreme Court Justice raises an issue that has troubled lesbian and political theory, the issue of identity politics. The rest of the article, The Specter of a Lesbian Supreme Court Justice: Problems of Identity in Lesbian Legal Theorizing, 5 St. Thomas Law Review 433 - 458 (1993), analyzes identity politics circa 1992.
Now, seventeen years later, identity politics remains an issue and at least two lesbians are thought to be contenders for the Court. The story has been buzzing around for a while, it makes its appearance on Politico here:
Sullivan is former dean at Stanford and teaches Constitutional Law.
Karlan is a former clerk to Justice Blackmun and Director of Stanford's Supreme Court Litigation Clinic.
POLTICO also reports that ”in response to questions from POLITICO in recent days, White House aides declined to say whether sexual orientation was among the diversity factors the president planned to consider either with respect to a Supreme Court nominee, or judicial nominees more generally."
Appointed to the Circuit by George W Bush is 2002, McConnell was frequently mentioned as a possible nominee for the United States Supreme Court.
Saturday, April 4, 2009
Mary Dunlap, The Constitutional Rights of Sexual Minorities: A Crisis of the Male/Female Dichotomy, 30 Hastings L. J. 1131, 1148-49 (1979).
Turning to the work of Mary Dunlap (1949 - 2003), the pioneering law professor and litigator, seems appropriate the day after the Iowa Supreme Court's opinion in Varum v. Brien (our most recent post here) and as the California Supreme Court continues to deliberate on the constitutional challenge to Proposition 8 (our most recent post here). Dunlap did not live to see the United States Supreme Court overturn Bowers v. Hardwick, a case she called a "grievous loss," and it is difficult not to wonder what she would think about post-Lawrence developments, especially in the area of state constitutional opinions finding same-sex marriage prohibitions unconstitutional. It is easy, of course, to assume she would have been overjoyed. However, it is also possible to imagine the ways in which she might criticize constitutional doctrine for continuing to reify the "present paradigm of two sexes" or to regulate sexual freedom.
Indeed, the entire volume of the Hastings Law Journal issue in which Dunlap's piece appears invites reflection. Published in March 1979, it is entitled "Sexual Preference and Gender Identity: A Symposium," with a full page dedication to Harvey Milk, 1930 - 1978, complete with a large photo of the murdered San Francisco Board of Supervisors member. The volume opens with the classic article by another pioneering law professor - - - Rhonda Rivera, entitled "Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States," and also includes an article by constitutional scholar David A.J. Richards (now at NYU), entitled "Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution."
While many of the specific doctrinal issues discussed in these articles may seem dated, the theoretical perspectives and constitutional arguments remain current. These articles from 1979 can be difficult to find in electronic copy, but are worth a trip to a law library's shelves.
April 4, 2009 in Fundamental Rights, Gender, Interpretation, Profiles in Con Law Teaching, Scholarship, Sexual Orientation, Sexuality, State Constitutional Law, Theory | Permalink | Comments (0) | TrackBack (0)
Friday, March 20, 2009
Douglas' areas of constitutional specialties include race, religions, and elections. Perhaps his best known work is the legal-historical account, Jim Crow Moves North: The Battle over Northern School Segregation, 1865-1954 (Cambridge University Press 2005).
Friday, February 20, 2009
The Center for Constitutional Rights in a press release today announced that Bill Quigley, Director of the Law Clinic and the Gillis Long Poverty Law Center at Loyola University New Orleans, is the new legal director of CCR:
The Center for Constitutional Rights (CCR) is thrilled to announce human rights lawyer Bill Quigley of New Orleans will begin as its next Legal Director in May. Bill has been an extraordinary public interest lawyer for over 30 years, and has served as counsel on issues including post-Katrina social justice, public housing, voting rights, the death penalty, living wage, civil liberties, educational reform, constitutional rights, human rights work in Haiti, and civil disobedience. Bill has been an essential mainstay to social justice work in New Orleans before and after Katrina.
Sunday, January 25, 2009
as Bush leaves the White House, it’s worth asking why he was able to behave so badly for so long without being stopped by the Constitution’s famous “checks and balances.” Some of the problems with the Bush administration, in fact, have their source not in Bush’s leadership style but in the constitutional design of the presidency. Unless these problems are fixed, it will only be a matter of time before another hot-rodder gets hold of the keys and damages the country further.
These suggestions might be the basis of an in-class exercise, either asking students to react to Epps' specific suggestions or to "brainstorm" suggestions of their own. His piece also has an accessible, if necessarily somewhat superficial, history. And, of course, it can serve to remind students that the very issues they are studying are also being discussed in the "popular media."
Tuesday, January 20, 2009
Over the past few years, Lederman’s legal blogging at Balkanization has provided invaluable insight and strength to critics of key Bush policies, including torture and warrantless wiretapping. Lederman wrote passionately against the Bush administration’s efforts to legalize the use of torture . . . . Lederman described the mission of the OLC in a Jan. 2005 blog post. “OLC’s proper role is not to distinguish, for Executive Branch officials, among different forms of unlawful conduct, so as to identify those that are subject to the highest criminal sanctions, on the one hand, and those that are ‘merely’ prohibited, but without severe sanction, on the other. … OLC’s proper role, instead, is to inform the Executive Branch as to what conduct is lawful.”
Sunday, January 11, 2009
As The Chicago Tribune reported here, Obama is expected to name Cass Sunstein to head the Office of Information and Regulatory Affairs. The Chicago Tribune story continues:
Sunstein brings a measure of star power to the post, as a leading constitutional scholar and the Felix Frankfurter professor of law at Harvard. He joined the Harvard faculty this year after many years at the University of Chicago, where he is still a visiting professor. He and Obama taught there.
Along with economist Richard Thaler, Sunstein is co-author of "Nudge: Improving Decisions about Health, Wealth, and Happiness." It examines how setting up thoughtful "choice architecture" can encourage people to make beneficial choices without restricting their freedom to choose.
One of the better posts I've seen on the subject is by Ezra Klein at The American Prospect blog here. Klein has a nice discussion of the Office of Information and Regulatory Affairs, including its history, arguing that " OIRA is important! It's just also boring." He concludes:
Sunstein can do real good there [at OIRA]. But why would he want it? He's shown a taste for celebrity, and OIRA very much does not provide that.
It's worth remembering that Sunstein has recently achieved great fame for Nudge, a book which basically argues that we need to apply the insights of behavioral economics to the construction of regulation. And Director of the Office of Information and Regulatory Affairs is the ultimate staging ground for those ideas. Reagan understood that OIRA was the central clearinghouse where you could affect the whole of the regulatory state all at once. He wanted to virtually shut it down. Sunstein wants to "nudge" it.
Wednesday, December 31, 2008
The PBS News Hour with Jim Leher had an interesting discussion today with Con Law profs Pam Karlan of Stanford University (oft-mentioned as a possible Obama judicial appointment) and Paul Cassell of University of Utah (a federal district judge from 2002-2007) predicting the impact of an Obama Administration on the federal judiciary.
Paul Cassell has this to say in part:
And I think the real concern is whether President Obama will bring back something like the Warren Court years, where it seemed like every few months there would be a new constitutional right that was discovered in the Constitution, a constitutional right that struck down acts of Congress or the views of the state legislatures, the views of the American people.
Cassell predicted that Obama appointees would have "more of an activist bent than you would have seen under a President McCain or you have seen in the last eight years from President Bush."
activism is one of those words that's a little complicated, because I think a lot of President Bush's appointments to the bench have been far more activist than the appointments of Democratic presidents.
I mean, if activism means striking down laws that were enacted by democratically elected, popularly elected legislators, then what do we say about conservatives on the Supreme Court, for example, who strike down the D.C. gun control act or conservative judges who refuse to enforce disability laws that Congress passed against state governments?
The full transcript is available here (but note that the pull quote under Cassell's photo is actually Karlan's statement).
Sunday, December 7, 2008
Has the American Constitution Society (ACS) replaced the Federalist Society in the Obama-era?
In a piece entitled Legal Organization May Become Influential Beyond Its Dreams in today's Washington Post, reporter Michael Fletcher writes that the new influence of ACS
is a remarkable turn for an organization born in the frustration that liberal legal thinkers shared over the Supreme Court's role in deciding George W. Bush's contested victory over Vice President Gore in 2000. Many of them saw in the high court's decision a need to counteract the growing influence of the conservative legal movement with a movement of their own.
While it is clear that ACS will achieve a new level of influence in the Obama administration, it remains to be seen how persuasive Obama will find any specific suggestions. On the campaign trail, his view of the law was often elusive. He has talked about the importance of judges having broad experience. But he has also praised the Supreme Court decision striking down the District of Columbia's handgun ban, a ruling that many progressive lawyers did not like. Obama also disagreed with the court's decision that the death penalty may not be applied to child rapists, a case in which the court's most conservative members dissented.
Friday, December 5, 2008
According to an article in the San Francisco Chronicle, the Berkeley City Council is considering a resolution that John Yoo, Berkeley School of Law (Boalt Hall) law professor, be charged with war crimes and that students at the law school not be required to take a class from him. The ABA Journal has the story here.
Yoo has been the subject of controversy for his role in the so-called "torture memos" from the White House in 2001-2003. The matter continues to be under investigation. According to a piece in The Public Record:
When these probes are complete it will likely spur the incoming administration of President-Elect Barack Obama to implement widespread reforms at the DOJ and the way interrogations against suspected terrorists are conducted by CIA and the military, said two people working on Obama’s transition team. While it’s unclear whether the investigations will lead to recommendations that individuals under scrutiny be prosecuted, the OPR investigation into a torture memo drafted by the DOJ’s Office of Legal Counsel is likely to recommend that the memo’s authors, Jay Bybee and John Yoo, be rebuked for the way in which they interpreted a law that formed the basis of the memo, said people involved in the probe, which is being conducted by the agency’s director H. Marshall Jarrett.
Bybee was the assistant attorney general at the OLC. He is now a federal judge on the United States Court of Appeals for the Ninth Circuit. Yoo was Bybee’s deputy. He is now a law professor at the University of California at Berkeley. Yoo was the principal author of the Aug. 1, 2002 memo and Bybee signed it. It was addressed to Alberto Gonzales, who was the White House counsel at the time.
The OPR investigation into the Aug. 1, 2002 torture memo was launched in late 2004 after the Abu Ghraib prison abuses were documented. Under Gonzales, the OPR has met some resistance in its attempt to obtain documents and interview officials, people familiar with the probe said, in explaining why the investigation is now in its fourth year.
In a letter released in February to Sen. Dick Durbin, who inquired about the probe, Jarrett said, "Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys."
The probe has centered on Yoo's use of an obscure health benefits statute from 2000 in defining torture. That statue became the basis for authorizing enhanced interrogation methods, the OPR official said.
Yoo and Bybee’s legal opinion stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture.