Monday, March 16, 2015
Over at Jotwell, First Amendment scholar Lyrissa Barnett Lidsky discusses Amy Gajda's just-published book The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.
Professor Lidsky provides the provocative thesis of Gajda's book: it's the fault of quasi-journalists and paparazzi that the First Amendment is losing its luster, or at least its ability to protect what might be called "real journalists."
Lidsky's last paragraph provides a terrific insight - - - as we wait for the United States Supreme Court's opinion in Williams-Yulee v. The Forida Bar - - - linking how elected state judges might feel about the press given their own experiences.
Although she never makes the point explicitly, Gajda’s book is fundamentally an exercise in legal realism. Even though the scope of constitutional rights is not supposed to vary with the winds of public opinion, The First Amendment Bubble documents that the scope of press rights has changed as judges have perceived changes in the press. As she amply and comprehensively demonstrates, trial court judges seem more hostile to the media and more favorable to privacy claimants than their appellate brethren. This hostility may reflect the fact that trial judges, especially state judges, are more likely to have been elected to their positions than their appellate brethren and are thus more likely to be alert to shifts in public opinion. Perhaps the starting point, then, for changing judicial opinions is changing public opinion. To do this, journalists must change their slipshod and sensationalist practices. Let’s hope they can.
Looks like a terrific read, especially for those who might not agree that journalists have lost their integrity any more than lawyers (or judges) may have.
Sunday, March 8, 2015
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.
Krotoszynski 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."
Tuesday, February 3, 2015
Check out William Baude's (U. Chicago) NYT op-ed, The Supreme Court's Secret Decisions, on the many and important under-the-radar decisions that the Supreme Court makes in its orders docket and through summary reversals. Baude calls these the "shadow docket," and argues for more transparency.
Baude's op-ed is a condensed version of his recently posted Foreward: The Supreme Court's Shadow Docket, forthcoming in the NYU Journal of Law & Liberty.
Thursday, January 15, 2015
On Tuesday, January 20, the United States Supreme Court will hear arguments in the closely-watched case of Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule prohibiting the personal solicitation of campaign contributions in a judicial election. Our discussion of the grant of certiorari is here.
Vanderbilt Law Review has published its "Roundtable" symposium about the pending case. It includes:
The Absent Amicus: “With Friends Like These . . .”
Robert M. O’Neil · 68 Vand. L. Rev. En Banc 1 (2015).
Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar
Ruthann Robson · 68 Vand. L. Rev. En Banc 15 (2015).
Much Ado About Nothing: The Irrelevance of Williams-Yulee v. The Florida Bar on the Conduct of Judicial Elections
Chris W. Bonneau & Shane M. Redman · 68 Vand. L. Rev. En Banc 31 (2015).
Williams-Yulee and the Inherent Value of Incremental Gains in Judicial Impartiality
David W. Earley & Matthew J. Menendez · 68 Vand. L. Rev. En Banc 43 (2015).
Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. The Florida Bar
Stephen J. Ware · 68 Vand. L. Rev. En Banc 59 (2015).
The Jekyll and Hyde of First Amendment Limits on the Regulation of Judicial Campaign Speech
Charles Gardner Geyh · 68 Vand. L. Rev. En Banc 83 (2015).
What Do Judges Do All Day? In Defense of Florida’s Flat Ban on the Personal Solicitation of Campaign Contributions From Attorneys by Candidates for Judicial Office
Burt Neuborne · 68 Vand. L. Rev. En Banc 99 (2015).
Williams-Yulee v. The Florida Bar, the First Amendment, and the Continuing Campaign to Delegitimize Judicial Elections
Michael E. DeBow & Brannon P. Denning · 68 Vand. L. Rev. En Banc 113 (2015).
January 15, 2015 in Courts and Judging, Due Process (Substantive), Elections and Voting, First Amendment, Fourteenth Amendment, Scholarship, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Friday, December 12, 2014
With the publication of the more than 500 page "Executive Summary" of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (searchable document here), the subject of torture is dominating many public discussions.
A few items worth a look (or second look):
In French, Justice Scalia's interview with Le Journal du matin de la RTS (videos and report) published today. One need only be marginally fluent in French to understand the headline: "La torture pas anticonstitutionnelle", dit le doyen de la Cour suprême US. (h/t Prof Darren Rosenblum).
The French report will not surprise anyone familiar with Justice Scalia's discussion of torture from the 2008 "60 Minutes" interview discussed and excerpted here.
And while Justice Scalia contended that defining torture is going to be a "nice trick," LawProf David Luban's 2014 book Torture, Power, and Law offers very explicit definitions, even as it argues that these definitions can erode as torture becomes "normalized," seemingly giving credence to Scalia's point.
December 12, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Executive Authority, Foreign Affairs, International, Interpretation, News, Scholarship, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)
Monday, December 1, 2014
The student chapter of the American Constitution Society at Barry University School of Law (Orlando) will host its First Annual Constitutional Law Scholars Forum on Friday, March 20, 2015. Here's the formal announcement..
The hosts invite scholarly proposals on constitutional law at any stage of pre-publication development, from an early idea to editing. Hosts also invite proposals on innovative approaches to teaching con law.
Proposals are due by January 15, 2015, to Ms. Fran Ruhl, Program Administrator, at firstname.lastname@example.org, with "Constitutional Law Scholars Forum" in the subject line.
Thursday, November 20, 2014
November 20, as President Obama acknowledged again this year, is "Transgender Day of Remembrance." While the commemoration often focuses on violence against trans* people, it also provokes consideration of legal remedies to end discrimination.
In her article posted on ssrn, From Jack to Jill: Gender Expression as Protected Speech in the Modern Schoolhouse, Professor Danielle Weatherby (pictured) takes up the issue of differential treatment in schools. Weatherby argues that the First Amendment has an important role to play in protecting gender expression:
With the majority of states and municipalities having enacted strong anti-bullying and anti-discrimination laws, and the judiciary on the cusp of deciding “the great bathroom debate,” the impetus toward carving out new protections for transgender students is finally underway. Nonetheless, litigants on both sides of the debate are left confused, with little practical guidance directing their conduct.
Some litigants have advanced the innovative “gender expression as protected speech” argument in limited circumstances, such as challenges to a school’s decree that a transgender girl student could not wear female apparel and accessories; an employer’s refusal to allow a female employee, who was required to wear a pants uniform at work, wear a skirt; and even an employer’s policy requiring a transgender woman to use the men’s restroom until she proved through documentation that she had undergone sexual reassignment surgery. Yet, no transgender student has advanced the argument that her use of the girls’ restroom, like her feminine dress, feminine preferences, and feminine mannerisms, constitutes symbolic expression deserving of protection under the First Amendment.
[manuscript at 50; footnotes omitted].
An individual’s conduct in using a restroom designated as either “male” or “female” or “man” or “women” expresses that individual’s belief that she belongs in that designated category of persons. By choosing to enter a facility labeled for a specific gender group, that individual is effectively stating her association with that gender. Although no words may ever be uttered, there is a strong mental association between the designation affixed to a restroom door and the fact that only those individuals identifying with that designation would enter and use that facility. Therefore, since a transgender student’s selection of a particular restroom is “sufficiently imbued with elements of communication,” the conduct is expressive and sends a particularized message about the student’s gender identity.
[manuscript at 55].
Weatherby cautions that schools should not yield to the "heckler's veto" and should protect the First Amendment rights of trans* students to expression. Ultimately, her argument is that such protection will eradicate the resort to violence.
Friday, November 7, 2014
Friday, October 24, 2014
The AALS Annual Meeting will be held January 2-5, 2015, and will feature a number of programs of interest to ConLawProfs, including:
- Perspectives on Federal Power Under the Reconstruction Amendments (Section on Constitutional Law)
- Liberty-Equality: Gender, Sexuality, and Reproduction- Griswold v. Connecticut Then and Now (Section on Constitutional Law, Co-Sponsored by Sections on Legal History and Women in Legal Education)
- Religious Beliefs and Political Agendas: What Role Should Faith Play in the Public Square (Section on Jewish Law, Co-Sponsored by Section on Islamic Law)
- Engendering Equality: A Conversation with The Honorable Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States, and New Voices in Women's Legal History (Joint Program of Sections on Legal History and Women in Legal Education, Co-Sponsored by Section on Constitutional Law)
- Transgender Equality: Prisons, Workplace, and Academic Institutions (Section on Sexual Orientation and Gender Identity Issues)
- Voter Suppression, the 2014 Elections and Beyond (Section on Civil Rights)
- The Future of Marriage (Section on Family and Juvenile Law)
- The Voting Rights Act at 50 (Section on Election Law)
- How (Not to) Provide Statutory Accommodations for Religion (Section on Law and Religion)
- Congressional Dysfunction and Executive Lawmaking During the Obama Administration (AALS Academic Symposium)
- Legislation/Regulation and the Core Curriculum (Section on Legislation & Law of the Political Process)
- Designing a Regulatory System for the Age of Decentralized Virtual Currencies (AALS Crosscutting Program)
- Competition Policy in Health Care (Section on Antitrust and Economic Regulation, Co-Sponsored by the Section on Law, Medicine and Health Care)
- The Rising Bar to Federal Courts: Beyond Pleading and Discovery (Section on Civil Procedure)
- After Bay Mills: The Longevity of Tribal Sovereign Immunity (Section on Indian Nations and Indigenous Peoples)
- The Role of History in the Federal Courts Canon (Section on Federal Courts)
- The Future of the Federal Housing System (Joint Program of Sections on Financial Institutions and Consumer Financial Services and Real Estate Transactions)
- Net Neutrality: Where does the FCC go from here? (Section on Mass Communications Law)
- Anita F. Hill, Supreme Court Confirmation Hearings, and a Screening of the Film "Anita" (AALS Crosscutting Program)
- The Fifty Years War: Can Legislation Ameliorate Poverty? (AALS Crosscutting Program)
- Richard Posner and Stanley Fish: Revising Interpretation (Section on Law and Interpretation)
Thursday, October 23, 2014
The Constitutional Accountability Center is examining Chief Justice John Roberts's first decade in office in a series of posts and articles called Roberts at 10. Here's the intro.
Brianne Gorod, the CAC's appellate counsel, posted most recently on Chief Justice Roberts and federal power, in particular, NFIB. Here's her conclusion:
[I]t is nonetheless clear that the Chief Justice is concerned about the scope of federal power and, in particular, the breadth of the federal regulatory state . . . . And while Chief Justice Roberts may not have the same appetite to change the law in these areas as Chief Justice Rehnquist had, it also seems clear that Chief Justice John Roberts's views on the Commerce Clause and the Spending Clause aren't exactly what Judge Roberts presented them to be at his confirmation hearing in 2005. Just how different they are . . . remains to be seen. But supporters of the Affordable Care Act shouldn't give Chief Justice Roberts too much credit for his decision in NFIB. It's complicated.
Thursday, October 9, 2014
The 19th Mid-Atlantic People of Color Conference (MAPOC)
Call for Panel and Paper Proposals
deadline: October 15, 2014
The New Color Lines: What Will It Mean to Be an American?
Hosted by West Virginia University College of Law
January 29-31, 2015
The call is after the jump:
Wednesday, October 8, 2014
Villanova Law Review Symposium to Honor Professor Penelope J. Pether
October 24, 2014
- Christopher Tomlins, Professor of Law, University of California-Berkeley School of Law: "A Fierce and Critical Faith: A Remembrance of Penny Pether"
- Marianne Constable, Professor, University of California-Berkeley: "Be True to What You Said on Paper: Pether on U.S. Publication Practices, Precedent, and the Positivism of Law and Language"
- Nan Seuffert, Professor of Law, Wollongong University School of Law: "A Seat at the National Table: Pether's Culinary Jurisprudence"
- Joseph Pugliese, Professor, Macquarie University: "The Open in the Case: Guantanamo's Regime of Indefinite Detention and the Disintegration of Adnan Latif's Corporeal Hexis Through Administrative Practices of Torture"
- Kunal Parker, Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law: "Representing Interdisciplinarity"
- Mark Sanders, Professor of Comparative Literature, New York University: "Consequences of Reform: Penny Pether on Rape Law in Illinois and Australia"
- Peter Goodrich, Professor of Law, Cardozo School of Law: "On Foreign Ground: Friendship and the Force of Law"
More information here
Prof. Lou Sirico (Villanova) turns the counterfactual historical method on its head in his recently posted The Constitutional Convention: Drafting to Charter Future History. The result, argues Sirico: The Founders wrote and ratified the Constitution with an eye toward managing counterfactual futures.
Sirico looks at five areas--the debates surrounding the Ex Post Facto Clause, the authority to define international law, slavery, territorial expansion, and the decision not to include the word "national" in the text--to argue that the drafters sought to achieve, or avoid, certain futures.
For example, in forbidding ex post facto laws, the deputies were forbidding laws that the international community would have deemed illegitimate. Arguably, they attempted to prevent future Congresses from enacting laws that would have marked the new nation as lawless.
Sirico says that the counterfactual-future method suggests certain lessons on how we understand--and interpret and use--the document. Check it out.
Monday, September 22, 2014
A call that should be of interest to many ConLawProfs:
Policing, Protesting, and Perceptions:
A Critical Examination of the Events in Ferguson
at the University of Missouri
Here are some details on the call for works-in-progress:
The University of Missouri Law Review is issuing a call for proposals for an upcoming Works-in-Progress conference, which will be held on Thursday, February 26, 2015 in conjunction with the Missouri Law Review’s Symposium, which will take place the following day Friday, February 27, 2015. The symposium, "Policing, Protesting, and Perceptions: A Critical Examination of the Events in Ferguson," focuses on a number of issues that arose from the events in Ferguson, Missouri this past August following the shooting of Michael Brown, and will include a number of invited panelists. Marc Mauer, the Executive Director of The Sentencing Project, will deliver the keynote address. On Thursday, February 26, 2015, the Missouri Law Review will host several works-in-progress panels related to the subject matter of the symposium.
If you interested, we would ask that you submit a presentation proposal. Presentation proposals should be no more than one page in length. The topic of the presentation can include analyses that are practical, theoretical or interdisciplinary in nature relating to what transpired in Ferguson, MO. Proposals from scholars outside the United States are also welcome, although prospective attendees should note that there is no funding available to assist participants with their travel expenses. Proposals for the works-in-progress will be accepted until November 15, 2014. Those interested may submit proposals and direct questions to Professor S. David Mitchell (MitchellSD AT missouri.edu). Decisions regarding accepted proposals will be made by December 1, 2014.
Wednesday, September 17, 2014
This year's MacArthur Fellowships included some well known advocates for social justices whose work involves constitutional law.
Mary Bonauto (pictured below) is one of the 21 people selected as a 2014 MacArthur Fellow for her work as a "civil rights lawyer."
Here's the beginning of the announcement:
Mary L. Bonauto is a civil rights lawyer whose powerful arguments and long-term legal strategies have led to historic strides in the effort to achieve marriage equality for same-sex couples across the United States. The Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD) since 1990, much of her early work focused on adoption and parenting, censorship, hate crimes, and discrimination in jobs and public accommodations.
More description as well as a video on the MacArthur site here.
LawProf Sarah Deer (pictured below) is another of the 21 recepients.
Here's the beginning of the announcement:
Sarah Deer is a legal scholar and advocate leveraging her deep understanding of tribal and federal law to develop policies and legislation that empower tribal nations to protect Native American women from the pervasive and intractable problem of sexual and domestic violence.
More description as well as a video on the MacArthur site here.
Tuesday, September 16, 2014
From the editors of Richmond Journal Law and the Public Interest:
The Richmond Journal of Law & the Public Interest is seeking submissions for the Spring Issue of our 2014-2015 volume. We welcome high quality and well cited submissions from academics, judges, and established practitioners who would like to take part in the conversation of the evolution of law and its impact on citizens.
We currently have four total openings for articles for our Spring Issue. As a Journal that centers in large part on the Public Interest, we are seeking at least one article that touches upon current Constitutional Issue(s) and the effects that the issue(s) may have on the National Public Interest. For a sense of what we are seeking for our general issues, feel free to visit here.
If you would like to submit an article for review and possibly publication, or if you have any questions at all, please do not hesitate to contact our Lead Articles Editors, Rich Forzani and Hillary Wallace, at rich.forzaniATrichmond.edu and hillary.wallaceATrichmond.edu.
Wednesday, September 10, 2014
Two fellowships worth considering.
First, the annual Supreme Court Fellows program has a fast-approaching deadline of November 14, 2014. There are four positions, one of which is at the Supreme Court. More information is here. Professor Stacie Strong has a brief discussion of the program published in Judges' Journal, available on ssrn.
Second, Princeton University’s Program in Law and Public Affairs (LAPA) awards six fellowships (one reserved for an early career fellow on humanities-realted subjects) for "research and writing on law-related subjects of empirical, interpretive, doctrinal and/or normative significance." The deadline is November 3, 2014 and more information is here.
Thursday, September 4, 2014
The Seventh Circuit heard oral arguments in Baskin v. Bogan and Wolf v. Walker just last week. Today, the court issued its unanimous opinion affirming the district court findings that the same-sex marriage bans in Indiana and Wisconsin are unconstitutional.
The Seventh Circuit panel enjoined the states from enforcing the laws and did not issue a stay.
Judge Richard Posner (pictured right) who is perhaps the most well-known judge not on the United States Supreme Court and who attracted attention with his comments at the oral argument, perhaps not surprisingly wrote the 40 page opinion.
Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful.
The panel's decision is based entirely on equal protection doctrine under the Fourteenth Amendment. Here's Judge Posner introducing the concept that
comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.
However, Judge Posner's analysis draws heavily on his work in law and economics, implying that cost-benefit analysis deserves more attention that the "conventional approach" - - - which "doesn’t purport to balance the costs and benefits of the challenged discriminatory law" - - - gives it. For Posner:
Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.
Judges Williams and Hamilton apparently agreed.
If the cases go en banc or to the Supreme Court, it will be interesting to see if any of the law and economics rationales are prominent.
Monday, September 1, 2014
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.
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).
Additionally, 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.
Wednesday, August 20, 2014
The University of the District of Columbia Law Review just issued its symposium edition on the right to counsel in civil cases, or Civil Gideon. The full list of articles and links to the full texts are here. John Pollock, staff attorney at the Public Justice Center in Baltimore and coordinator of the National Coalition for the Civil Right to Counsel, wrote the introduction, with a background on the Civil Gideon movement and updates on progress; a direct link to Pollock's article is here.