Wednesday, November 30, 2016

Call for Papers: Separation of Powers: A Global Constitutional Dialogue

Check out the call for papers for an exciting Symposium on The Separation of Powers: A Global Constitutional Dialogue on May 22, 2017, at the University of Milan.

The topic is inspired by Professor Giovanni Bognetti's (U. Milan) book, La Separazione dei Poteri.

The conveners are Prof. Richard Albert (Boston College), Dr. Antonia Baraggia (U. Milan), Prof. Cristina Fasone (U. Rome), and Prof. Luca Pietro Vanoni (U. Milan).

The Call for Papers is here; proposals are due by January 15, 2017, to separationofpowersmay22@gmail.com. The full-day Symposium will be held entirely in English.

November 30, 2016 in Conferences, News, Scholarship | Permalink | Comments (0)

Wednesday, November 16, 2016

CFP: Loving v Virginia Symposium

CALL FOR SUBMISSIONS

50 YEARS OF LOVING:

SEEKING JUSTICE THROUGH LOVE AND RELATIONSHIPS

Symposium, March 23-24, 2017

Creighton School of Law, Omaha, Nebraska

The Creighton Law Review, Creighton’s 2040 Initiative, and the Werner Institute invite you to contribute to the Law Review’s June 2017 issue and/or to attend the 50 Years of Loving symposium hosted by the 2040 Initiative and the Werner Institute at the Creighton School of Law. The symposium will explore how the 1967 U.S. Supreme Court decision of Loving v. Virginia has influenced U.S society institutionally, demographically, and relationally.

Race in the United States has historically been socially constructed through interlocking cultural narratives, including law, and cultural practice, including institutions. Racism is a social system enacted and perpetuated by the interactions and relationships of individual people. Exploring the disruptive effects of the interracial “mixing” protected by Loving v. Virginia offers an opportunity to deepen understanding of systemic racism and to develop systems-based strategies for continuing the struggle for social justice. At a time when the demographics of the U.S. are shifting away from a white majority, deconstructing systemic racism is an essential project.

Loving v. Virginia, 388 U.S. 1 (1967), ended legal prohibitions against interracial marriage in the U.S. By eliminating of longstanding legal sanctions against “miscegenation,” Loving disrupted the pre-existing social system. Loving rejected racial separation and hierarchy and endorsed relationships across previously uncrossable racial lines. Since Loving, the number of interracial marriages has grown significantly: “Nearly 15 percent, or one in seven, of all new marriages in 2008 were between people of different races or ethnicities.”*

The effects of these marriages extend beyond those who are themselves married. “[M]ore than a third of all adults surveyed reported having a family member whose spouse is of a different race or ethnicity – up from less than a quarter in 2005.”* Since Loving, the proportion of the U.S. population with multiple racial heritages has grown dramatically. Moreover, the children born as a result of Loving also have disrupted the social construction of race itself, with more people self-identifying as of more than one race, biracial, multiracial, or mixed.

The Law Review seeks submissions exploring these issues – to range from reflections (up to 1000 words) and essays (approximately 2500-3000 words) to articles (no more than 7000 words, not including references and footnotes). Draft abstracts of up to one page and queries may be addressed to Research Editor Sean Nakamoto at seannakamoto@creighton.edu no later than January 15, 2017. Final submissions will be March 20, 2017. There will be an opportunity at the symposium for selected authors to discuss their submissions at the 50 Years of Loving symposium at Creighton University in March, 2017.**

Authors are also encouraged to join the moderated online discussion on the effects of the Loving decision on our society hosted by the 2040 Initiative and ADRHub at http://blogs.creighton.edu/creighton2040/50-years-of-loving-moderated-online-discussion. Selected excerpts from this discussion will also be featured in the June 2017 Creighton Law Review edition. Discussion entries should respond to the following question: From the perspective of your academic discipline or professional institution, what are the questions, issues, or tensions that have arisen out of 50 Years of Loving?

 

*john a. powell, Racing to Justice (2012)

** Contact Amanda Guidero at AmandaGuidero  AT  creighton.edu for more information on the symposium and opportunities to present your work.

November 16, 2016 in Conferences, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Race, Scholarship, Theory | Permalink | Comments (0)

Monday, October 24, 2016

State Court Judges Politically Biased in Election Disputes

Profs. Joanna Shepherd and Michael S. Kang (both of Emory), in cooperation with the American Constitution Society, recently published a comprehensive empirical study of state-court decisions in election cases. The result: State court judges are politically biased in these cases and thus favor their own party's interests in election disputes.

The study provides yet one more reason not to elect judges, especially in partisan elections.

The study, Partisan Justice: How Campaign Money Politicizes Judicial Decisionmaking in Election Cases, forthcoming in the Stanford Law Review, is based on data from over 500 election cases from all 50 states from 2005 to 2014, including over 2,500 votes from more than 400 judges in state supreme courts.

The upshot:

Analyzing a new dataset of cases from 2005 to 2014, this study finds that judicial decisions are systematically biased by these types of campaign finance and re-election influences to help their party's candidates win office and favor their party's interests in election disputes.

The study finds that judicial partisanship is significantly responsive to political considerations that have grown more important in today's judicial politics. Judicial partisanship in election cases increases, and elected judges become more likely to favor their own party, as party campaign-finance contributions increase.

But "[t]his influence of campaign money largely disappears for lame-duck judges without re-election to worry about."

October 24, 2016 in Campaign Finance, Courts and Judging, News, Scholarship | Permalink | Comments (0)

Tuesday, October 18, 2016

Brennan Center on Secret Laws

The Brennan Center released a new report, The New Era of Secret Law. Here's from the introduction:

Most of all, there is scant public understanding of the depth and scope of the problem. OLC opinions and FISA Court opinions are the only two manifestations of secret law that regularly make headlines. But OLC and the FISA Court are not the only government entities that make law. Moreover, the factor driving secrecy in OLC and FISA Court opinions--namely, a dramatic increase in the scope of national security activities and authorities--is a potent force throughout much of government. How common is security-driven secret law, and where else is it occurring?

Solving the problem of secret law raises its own set of questions. Are there cases in which disclosure of rules or legal interpretations, even with sensitive facts redacted, could harm national security? How great is that risk, and how does it compare with the harms of secret law? What procedural and substantive reforms could help ensure that the public's interests in both transparency of laws and the security of the nation are best served?

This report attempts to shed light on these questions, beginning with the foundational inquiry into what secret law is.

October 18, 2016 in News, Scholarship | Permalink | Comments (1)

Saturday, September 3, 2016

CFP: ACS Junior Scholars Workshop at AALS

American Constitution Society

Junior Scholars Public Law Workshop

(to be held at AALS Meeting January 2017)

 

deadline for submission: 11:59 p.m. on October 15, 2016 

 

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from the call:
 
To further its mission of promoting the vitality of the U.S. Constitution and the fundamental values it expresses-- individual rights and liberties, genuine equality, access to justice, democracy and the rule of law—the American Constitution for Law & Policy (ACS) is pleased to announce a call for papers for a workshop on public law to be held the afternoon of January 5, 2017 at the 2017 AALS Annual Meeting in San Francisco. A committee composed of members of ACS’s Board of Academic Advisors will select 10 papers and each selected author will have the opportunity to discuss his/her paper in depth with two experienced scholars.

Papers can be in any field related to public law, including but not limited to: constitutional law, administrative law, antidiscrimination law, criminal law, environmental law, family law, federal courts, financial regulation, public international law, social welfare law, and workplace law.

More submission details at the ACS website here.

September 3, 2016 in Conferences, Scholarship | Permalink | Comments (0)

Monday, August 29, 2016

CFP: Dark Money and Judicial Elections Symposium at U Arkansas at Little Rock

The University of Arkansas at Little Rock Law Review

call for papers for its 2017 Symposium:

“Dark Money and Related Issues: New Factors in the Debate on Judicial Appointment versus Election,”

to be held on February 16th and 17th, 2017.

Deadline for submissions of article proposals is Oct. 7, 2016.

 

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From the call:

Elections leave open the possibility for the corrupting influence of dark money. “Dark money” controversy figured prominently in the last Arkansas judicial elections, so much so that the Arkansas Supreme Court and General Assembly have studied the issue of campaign financing, and the Arkansas Bar Association created the Task Force on Maintaining a Fair and Impartial Judiciary, which issued a report in June recommending appointment of judges and other reforms. Judicial appointment, however, is not without its critics, who contend among other arguments that appointment is undemocratic, and that appointed judges lack authority and legitimacy and are less accountable.

The broad goal of this symposium is to debate the strengths and weaknesses of judicial election systems versus judicial appointment systems, with an eye toward the best solution for Arkansas. Topics of interest include, for example, whether an appointment process would be appropriate for all appellate judges or only Supreme Court Justices; the most effective and bipartisan types of appointment processes; issues surrounding recusal from cases involving contributors; and reforms to protect the election process from the influence of “dark money.” We anticipate panels comprising a mix of academics, judges, and legislators, both Arkansans and out-of-state speakers and contributors.

More submission details at the law review website here.

August 29, 2016 in Campaign Finance, Courts and Judging, First Amendment, Scholarship, Speech | Permalink | Comments (0)

Thursday, August 18, 2016

CFP: Feminist Legal Theory at Law and Society in Mexico City

The Feminist Legal Theory Collaborative Research Network of Law & Society is a great group and Law & Society is always terrific.  Here's the call:

 

Call for Papers – Friday September 16th Deadline

The Feminist Legal Theory Collaborative Research Network

Seeks submissions for the

Law and Society Association Annual Meeting

Mexico City, Mexico, at the Sheraton Maria Isabel, June 20 – 23, 2017

Dear friends and colleagues,

We invite you to participate in the panels sponsored by the Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting in 2017. The Feminist Legal Theory CRN seeks to bring together law and society scholars across a range of fields who are interested in feminist legal theory. Information about the Law and Society meeting is available at http://www.lawandsociety.org.

2017Mex_375This year’s meeting is unique in that it brings us to the Global South, and invites us to explore the theme Walls, Borders, and Bridges: Law and Society in an Inter-Connected World. We are especially interested in proposals that explore the application of feminist legal theory to this theme, broadly construed. This might include papers that explore feminist legal theory in comparative or transnational contexts, as well as in relation to the impacts of globalism and other intersections within particular locations, relationships, institutions, and identities. We are also interested in papers that will permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN, and welcome multidisciplinary proposals.

Our goal is to stimulate focused discussion of papers on which scholars are currently working. Thus, while you may submit papers that are closer to publication, we are particularly eager to receive proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide.

The Planning Committee will assign individual papers to panels based on subject. Panels will use the LSA format, which requires four papers. We will also assign a chair, and one or two commentators/discussants for each panel, to provide feedback on the papers and promote discussion. For panels with two commentators/discussants, one may be asked to also chair.

As a condition of participating as a panelist, you must also agree to serve as a chair and/or commentator/discussant for another panel or participant. We will of course take into account expertise and topic preferences to the degree possible.

The duties of chairs are to organize the panel logistically; including registering it online with the LSA, and moderating the panel. Chairs will develop a 100-250 word description for the session and submit the session proposal to LSA before their anticipated deadline of October 19. This will ensure that each panelist can submit their proposal, using the panel number assigned.

The duties of commentator/discussants are to read the papers assigned to them and to prepare a short commentary about the papers that discusses them individually and (to the extent relevant) collectively, identifying ways that they relate to one another.

If you would like to present a paper as part of a CRN panel, please email:

  • An 1000 word abstract or summary,
  • Your name and a title, and
  • A list of your areas of interest and expertise within feminist legal theory

to the CRN Planning Committee at 2017lsacrn@gmail.com. (Please do not send submissions to individual committee members.)

Note that LSA is imposing a requirement that your summary be at least 1,000 words long. Although a shorter summary will suffice for our purposes, you will be required to upload a 1,000 word summary in advance of LSA’s anticipated deadline of October 19. If you are already planning a LSA session with at least four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let the Committee know.

In addition to these panels, we may try to use some of the other formats that the LSA provides: the “author meets readers” format, salon, or roundtable discussion. If you have an idea that you think would work well in one of these formats, please let us know. Please note that for roundtables, organizers are now required to provide a 500-word summary of the topic and the contributions they expect the proposed participants to make. Please also note that LSA rules limit you to participating only once as a paper panelist or roundtable participant.

Please submit all proposals by Friday, September 16 to the email provided above. This will permit us to organize panels and submit them prior to the LSA’s anticipated deadline of October 19. In the past, we have accommodated as many panelists as possible, but have been unable to accept all proposals. If we are unable to accept your proposal for the CRN, we will notify you by early October so that you can submit an independent proposal to LSA.

We hope you’ll join us in Mexico City to share and discuss the scholarship in which we are all engaged and connect with others doing work on feminist legal theory.

Best,

2017 LSA Feminist Legal Theory CRN Planning Committee

Aziza Ahmed & Elizabeth MacDowell (co-chairs)

 

August 18, 2016 in Comparative Constitutionalism, Conferences, Gender, Scholarship, Theory | Permalink | Comments (0)

Monday, August 15, 2016

ACS Calls for Papers at Junior Scholars Public Law Workshop at AALS

This year the American Constitution Society is doing something new at the AALS annual meeting in San Francisco: a public law workshop for junior-ish scholars (legal academics with 10 years or less in full-time teaching).

The announcement explains: "A committee composed of members of ACS’s Board of Academic Advisors will select 10 papers and each selected author will have the opportunity to discuss his/her paper in depth with two experienced scholars, from a group that includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler."

It's the afternoon of January 5th in San Francisco. Submissions are due October 15th. More information is available here.

August 15, 2016 in Conferences, News, Scholarship | Permalink | Comments (0)

Monday, August 1, 2016

Daily Pedagogy: Maintaining Scholarship While Teaching

It's August and ConLawProfs in the North America are thinking about classes for the Fall semester.  So, it's a good time to focus on pedagogy, as we'll be doing this month.

Yet if August brings the joys of contemplating going back in the classroom, it also brings the panic of impending deadlines, even if those deadlines are self-imposed.  The legal academy has a tradition - - - and often incentives  of "summer scholarship," although these may be fading given other pressures. 

One way to address the annual August anxieties is to reject the idea of a stark separation between "summer" and the "academic year," and look for synergies between scholarship and teaching that enliven both. I've tried to do this in an essay, Enhancing Reciprocal Synergies Between Teaching and Scholarship, published in the Journal of Legal Education last year and available - - - for now - - - on the once-open source ssrn. 

IMG_2295The article discusses the types of synergies that exist between teaching and scholarship for the legal academic  - - - the professional, methodological, theoretical and doctrinal - - - which are easily adaptable to other academics.  As is the overall suggestion that we should try to "pay attention" to the synergies between teaching and scholarship rather than viewing them as discrete, or even conflicting.

The article closes with a discussion of three "habits" of paying attention aimed at enhancing the reciprocal synergies between teaching and scholarship:  letting the subconscious work, commemorating one's thoughts & ideas, and engaging  - - - or not - - - in "daily practice."

August 1, 2016 in Scholarship, Teaching Tips | 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)

Tuesday, April 5, 2016

O'Neill on Roberts's Thayerian Justice

Check out Prof. Tim O'Neill's (John Marshall) excellent piece in the Cal. Law Review on Chief Justice Roberts's approach to deference in the Obamacare case, NFIB v. Sebelius: Harlan on My Mind: Chief Justice Roberts and the Affordable Care Act.

O'Neill notes that "Chief Justice Roberts has never been shy about finding acts of Congress to be unconstitutional," but that he nevertheless extolled the virtues of deference to the legislature and ultimately upheld the individual mandate in NFIB. O'Neill asks: Where did this "newly minted Thayerian justice" come from?

This essay will attempt to answer that question. It will begin by further examining Posner's article and the reasons he provided for the death of Thayerian review. It will then turn to an examination of one justice in particular whom Chief Justice Roberts has cited as his model: the younger Justice John Marshall Harlan, perhaps the last justice on the Court who exhibited Thayer-like restraint. It will conclude by contending that when faced with the most important case of his judicial career, Roberts took a Thayer-like approach that might have been similar to the approach his judicial model, Justice Harlan, would have taken. Thayer-like restraint may be dead, but it appears to have come back to life for at least one decision on June 28, 2012.

April 5, 2016 in Cases and Case Materials, Congressional Authority, News, Scholarship | Permalink | Comments (0)

Thursday, March 17, 2016

Starger's Citation Maps

Check out Prof. Colin Starger's (U. Balt., U. Balt. Sup. Ct. Mapping Project) nifty new online Supreme Court citation network tool. This site, which Starger produced in collaboration with Free Law Project, allows you to map Supreme Court case citations against Spaeth data on the decision direction (liberal-conservative) in The Supreme Court Database, with links to the decisions and a ton more information. Starger already posted a bevy of maps, but you can create your own, too. Here's a sample, mapping from Buckley to McCutcheon:

 

March 17, 2016 in Campaign Finance, News, Scholarship | Permalink | Comments (0)

Monday, February 22, 2016

Loyola's Colloquium 2016

Loyola University Chicago just announced the dates for its very popular--and very good--annual Constitutional Law Colloquium: November 4 and 5, 2016. Mark your calendars! Click here for more info.

February 22, 2016 in Conferences, News, Scholarship | Permalink | Comments (0)

Thursday, February 18, 2016

Symposium: Does Quebec Need a Written Constitution?

Check out this symposium on March 31, 2016, at Yale:  Does Quebec Need a Written Constitution? Organizers have assembled a terrific line-up, with a key-note by Jean Charest, 29th Premier of Quebec (2003-2012).

February 18, 2016 in Conferences, News, Scholarship | Permalink | Comments (0)

Tuesday, February 16, 2016

Morley on Injunctive Relief in Election, Voting, and Constitutional Cases

Check out Prof. Michael T. Morley's (Barry) just-posted and timely piece, De Facto Class Actions? Injunctive Relief in Election Law, Voting Rights, and Constitutional Cases.

Morley provides a framework for courts deciding whether to award plaintiff-oriented injunction (limited to the plaintiff in the case) or defendant oriented injunction (applying more broadly, to the defendant's actions anywhere) in these kinds of cases:

First the court should assess whether granting the requested relief solely to the individual plaintiffs would create unconstitutional disparities concerning fundamental rights in violation of Equal Protection principles, although this seldom, if ever, should be the case. Second, after confirming that limiting relief solely to the individual plaintiffs would be constitutional, the court should then determine whether such a Plaintiff-Oriented Injunction would be proper under the challenged statute or regulation itself by applying traditional severability principles. If the challenged provision can be applied coherently, and the entity that enacted the provision still would have intended for it to be enforced, even with the plaintiffs excluded from its scope, then a Plaintiff-Oriented injunction would be the proper remedy. Otherwise, a Defendant-Oriented Injunction is required.

February 16, 2016 in Courts and Judging, Elections and Voting, Jurisdiction of Federal Courts, News, Scholarship | Permalink | Comments (0)

Monday, February 15, 2016

Daily Read: Justin Pidot on 4-4 Decisions of the United States Supreme Court

It's rare that the Justices of the United States Supreme Court are equally divided, in part because of there are usually 9 Justices. 

But after the death of Justice Antonin Scalia, it's quite possible that there will be a number of  4-4 equally divided votes between the 8 Justices remaining on the United States Supreme Court.

LawProf Justin Pidot's article just posted to ssrn, Tie Votes in the Supreme Court, couldn't be more timely.  Pidot analyzes "the 164 ties in the Supreme Court between 1925 and 2015," arguing that most of these cases have not been controversial "in part because few of them involved particularly contentious cases in the eye of the public."  As Pidot notes, the practice is that when the Justices are evenly divided, the lower court opinion is affirmed:

The most common form of the affirmance by equal division is both unattributed and non- explanatory, with the order indicating only the justice recused (of course, if the Court is experiencing a vacancy, and this is the cause of the equal division, no such comment is made). This is the form of 149 of the 164 cases in the dataset.

As an example, Pidot cites Flores-Villar v. United States (2011), a case involving a gender differential in citizenship/ immigration treating unmarried mothers and fathers differently.  It was Justice Kagan's recusal that created the tie.

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LawProf Justin Pidot

Pidot's argument is that a 4-4 affirmance brings disrepute on the Court, especially given that the vast majority of evenly divided splits are those in which the Court is exercising discretionary jurisdiction.  Pidot contends that the 4-4 affirmance is a "relic" of the past that the Court should abandon in favor of "DIG" - a dismissal of the writ as improvidently granted.  The advantage of the DIG over the affirmance by an equally divided Court might become muddied, however, if DIG simply replaces the explicit albeit non-precedential affirmance given that the lower court opinion will remain essentially undisturbed.

However, with the Justices now presumably divided in some major cases under consideration - - - Friedrichs v. California Teachers and the contraception mandate cases Zubik v. Burwell ( a follow-up to the 5-4  Burwell v. Hobby Lobby) - - - it is an opportune time for the Court to consider its 4-4 processes.

 

 

 

 

February 15, 2016 in Courts and Judging, Scholarship, Supreme Court (US) | Permalink | Comments (1)

Wednesday, February 10, 2016

Wadhia on Prosecutorial Discretion in Immigration

Check out the ACSBlog, where Prof. Shoba Sivaprasad Wadhia (Penn State) writes about her new book, Beyond Deportation: The Role of Prosecutorial Direscretion in Immigration Cases. With the Court's review of DAPA looming, Prof. Wadhia writes, "As law students and scholars grapple with the wave of headlines or latest litigation question faced by the courts on the question of prosecutorial discretion, my hope is that they gain a better understanding of the historical role of and legal foundation for prosecutorial discretion in immigration cases and the extent to which compassion has served as the foundation for how such decisions are made."

 

February 10, 2016 in Executive Authority, News, Scholarship, Separation of Powers | Permalink | Comments (0)

Sunday, February 7, 2016

Feminist Judgments and Feminist Tax Judgments

The volume U.S. Feminist Judgments is forthcoming from Cambridge University Press, including 24 rewritten opinions and commentary, most of which will be of great interest to ConLawProfs.  The editors have posted the Table of Contents and Introduction on ssrn here.

Stay Tuned for an announcement of a forthcoming conference!

And if you are interested in ConLaw and Tax from a feminist perspective, consider the Call for Contributions for a new volume.

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[More on artist Soraida Martinez here]

February 7, 2016 in Gender, Scholarship, Supreme Court (US), Theory | Permalink | Comments (0)

Sunday, January 31, 2016

Daily Read: Kermit Roosevelt on Posner's Latest Book

In the Sunday New York Times Book Review, ConLawProf Kermit Roosevelt reviews Richard Posner's new book, Divergent Paths: The Academy and the Judiciary.    

Roosevelt begins by provocatively asking whether we could dare to even "invent" a character like Richard Posner if he did not exist, flatteringly describing Posner as "arguably America’s greatest living judge."   (A judgment that many might find more than a bit arguable.) 

9780674286030As to the book, Roosevelt has a few criticisms.  Although it is "a valuable contribution to debates over the future of federal courts and law schools alike," its "list of judicial problems and possible academic solutions is long enough to be overwhelming: It includes 55 problems and 48 solutions."  Moreover, some of the criticisms are "overstated."  As to legal scholarship, Roosevelt takes Posner to task for his judgment about the correctness of the now-reviled decision in Korematsu v. United States, upholding a Japanese internment conviction during World War II, and notes that legal scholarship has shown that the government not only over-reacted but was less than candid with the Court.

While Roosevelt has high praise for the book, it does not seem like a must-read. Instead, read Roosevelt's review.

January 31, 2016 in Books, Courts and Judging, History, Interpretation, Race, Scholarship | Permalink | Comments (0)

Monday, January 18, 2016

Daily Read: Taunya Banks on MLK and Education

On this Martin Luther King Day, the 2016 Presidential Proclamation  includes attention to the continuing quest for educational equality:

Today, we celebrate the long arc of progress for which Dr. King and so many other leaders fought to bend toward a brighter day.  It is our mission to fulfill his vision of a Nation devoted to rejecting bigotry in all its forms; to rising above cynicism and the belief that we cannot change; and to cherishing dignity and opportunity not only for our own daughters and sons, but also for our neighbors' children.

We have made great advances since Dr. King's time, yet injustice remains in many corners of our country.  In too many communities, the cycle of poverty persists and students attend schools without adequate resources -- some that serve as a pipeline to prison for young people of color.  Children still go to bed hungry, and the sick go without sufficient treatment in neighborhoods across America.  To put up blinders to these realities or to intimate that they are inherent to a Nation as large and diverse as ours would do a disservice to those who fought so hard to ensure ours was a country dedicated to the proposition that all people are created equal.

It's worth (re)reading Professor Taunya Lovell Banks' 2013 article, The Unfinished Journey - Education, Equality and Martin Luther King, Jr. Revisited, 58 Villanova Law Review 471, available on ssrn, arguing that educational equality includes economic equality. 

LAW-BanksDelivered as a MLK Day Lecture at Villanova, Professor Banks remarks have continued resonance as the United States Supreme Court deliberates Fisher II regarding affirmative action in higher education:

As our experience with Brown [v. Board of Education] has taught us, law is an imperfect vehicle for bringing about massive social change. In 1963, Dr. King, in his often quoted Letter from a Birmingham Jail, wrote about the “interrelatedness of all communities and states.” The same year he wrote in his book Strength to Love that: “True integration will be achieved by true neighbors who are willingly obedient to unenforceable obligations.” I contend that we as Americans have an unenforceable obligation to provide quality education for all of our children and not handicap some children so that others can become more competitive. We must do this by public will, not solely through law.
As I said earlier, our efforts to bring about educational equality should be multi-directional, and lawyers have a role to play. As part of this battle some lawyers and academics must recommit to convincing state courts to define more broadly their guarantees of a free public education. We must convince state courts that education is a fundamental right. Others must work with state legislatures to get them to commit, in words and funds, to the achievement of a twenty-first century notion of educational equality. More importantly, we all must work to get Americans throughout the nation to recommit to a strong public education system throughout the country.

[footnotes omitted; emphasis added]. 

 

January 18, 2016 in Current Affairs, Equal Protection, Federalism, Fundamental Rights, Race, Scholarship, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)