Wednesday, January 31, 2018

Check it Out: Frost on Nationwide Injunctions

Wednesday, January 17, 2018

CFP: Junior Scholars

Call for submissions for Junior Scholars (1-7 years) from Yale/Stanford/Harvard Junior Faculty Forum to be held June 13-14, 2018, Harvard Law School

deadline: March 1, 2018

Yale, Stanford, and Harvard Law Schools are soliciting submissions for the 19th session of the Yale/Stanford/Harvard Junior Faculty Forum, to be held at Harvard Law School on June 13-14, 2018. Twelve to twenty junior scholars (with one to seven years in teaching) will be chosen, through a blind selection process, to present their work at the Forum. One or more senior scholars will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. The goal of the Forum is to promote in-depth discussion about particular papers and more general reflections on broader methodological issues, as well as to foster a stronger sense of community among American legal scholars, particularly by strengthening ties between new and veteran professors.

TOPICS: Each year the Forum invites submissions on selected topics in public and private law, legal theory, and law and humanities topics, alternating loosely between public law and humanities subjects in one year, and private law and dispute resolution in the next. For the upcoming 2018 meeting, the topics will cover these areas of the law:

  • - Administrative Law
  • - Constitutional Law—theoretical foundations
  • - Constitutional Law—historical foundations
  • - Criminal Law
  • - Critical Legal Studies
  • - Environmental Law
  • - Family Law
  • - Jurisprudence and Philosophy
  • - Law and Humanities
  • - Legislation and Statutory Interpretation
  • - Public International Law
  • - Race/Gender Studies/Antidiscrimination
  • - Workplace Law and Social Welfare Policy

A jury of accomplished scholars, not necessarily from Yale, Stanford, or Harvard, will choose the papers to be presented. There is no publication commitment. Yale, Stanford, or Harvard will pay presenters' and commentators' travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: Authors who teach at a U.S. law school in a tenured or tenure-track position and have not have been teaching at either of those ranks for a total of more than seven years are eligible to submit their work. American citizens or permanent residents teaching abroad are also eligible provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for fewer than seven years and that they earned their last degree after 2008. International scholars are not eligible for this forum, but are invited to submit to the Stanford International Junior Faculty Forum. We accept co-authored submissions, but each of the coauthors must be individually eligible to participate in the JFF. Papers that will be published prior to the Forum are not eligible. There is no limit on the number of submissions by any individual author. Junior faculty from Yale, Stanford, and Harvard are not eligible. 


Electronic submissions should be sent to Rebecca Tushnet, rtushnet AT with the subject line “Junior Faculty Forum.” The deadline for submissions is March 1, 2018. Remove all references to the author(s) in the paper. Please include in the text of the email and also as a separate attachment a cover letter listing your name, the title of your paper, your contact email and address through June 2018, and which topic your paper falls under. Each paper may only be considered under one topic. Any questions about the submission procedure should be directed both to Rebecca Tushnet and her assistant, Andrew Matthiesen, amattjiesen AT

January 17, 2018 in Conferences, Scholarship | Permalink | Comments (0)

Monday, January 15, 2018

Daily Read: MLK and Affirmative Action

For Martin Luther King day, a good read is Professor David B. Oppenheimer's article Dr. King’s Dream of Affirmative Action, available on ssrn

Oppenheimer mentions the plans of the President and Attorney General Sessions to challenge affirmative action policies in higher education as a form of discrimination against white people and predicts that they will eventually use  Dr. King’s “I Have A Dream” speech as evidence that Dr. King would be supporting their position if he were still alive.  The President's Proclamation for MLK Day does not mention affirmative action (or civil rights), but does allude to King's most famous speech by including the arguably "color-blind" rejecting judgment based on "color of their skin" in favor of "content of their character." (The Proclamation states "Dr. King advocated for the world we still demand — where the sacred rights of all Americans are protected, rural and urban communities are prosperous from coast to coast, and our limits and our opportunities are defined not by the color of our skin, but by the content of our character.")

Martin_Luther_King_Jr_NYWTS_4Yet as Professor Oppenheimer argues it is simplistic - - - and incorrect - - - to conclude that Martin Luther King's political theorizing can be reduced to a convenient "color-blind" position. Oppenheimer writes:

While I have found no instance of Rev. Dr. Martin Luther King, Jr. ever using the term “affirmative action,” forty-eight years after his assassination his name is often invoked in the affirmative action debate by opponents of race-based affirmative action, who cite Dr. King’s “I have a dream” speech as evidence that he supported “color-blind” policies, and thus presumably would have opposed race-conscious affirmative action. But when we examine the historical record it is clear that while Dr. King dreamed of a time when racism – and thus race – would be irrelevant, he was a supporter of both of these forms of affirmative action. On the one hand, he spent much of the last six years of his life actively promoting what we would describe today as race-conscious affirmative action, including the use of racial quotas in employment. Specifically, from 1962-68 Dr. King orchestrated and implemented “Operation Breadbasket,” a civil rights boycott campaign that demanded employment quotas for Black American workers based on their numbers in a workforce, neighborhood or city. Yet on the other hand, with regard to class-based affirmative action, Dr. King supported a massive war on poverty.  In advocating for special benefits for poor Americans he sometimes used color-blind language and pointed out that it would benefit poor whites as well as poor Blacks, while at other times he justified it as an example of the kind of reparations to which Black Americans were entitled under the equitable remedy of restitution for unpaid wages.

In his discussion of the constitutional law doctrine and theory surrounding affirmative action, Oppenheimer includes the United States Supreme Court's reaction to organized efforts to mandate affirmative action in Hughes v. Superior Court for Contra Costa County (1948) in which the Court stated:

that the picketing here involved, and upon which the judgment of contempt is based, was for the attainment of an unlawful objective, viz.: not to induce Lucky [grocery store] not to discriminate against, but, rather, expressly to compel Lucky to discriminate arbitrarily in favor of, one race as against all others in the hiring of a portion of its clerks; and that therefore the injunction was properly issued and the judgment of contempt should stand. With this position, upon the record here, we must agree.

Oppenheimer writes that while the Supreme Court was willing to affirm the legitimacy of protesting discrimination, but unwilling to give any approval to demands for proportional hiring, the demands for "proportional hiring nonetheless persisted, and would become a critical part of Dr. King’s campaign for racial justice in the last six years of his life."

It seems pretty clear that MLK supported what is now known as  "affirmative action."



January 15, 2018 in Current Affairs, Equal Protection, First Amendment, Fourteenth Amendment, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0)

Thursday, January 11, 2018

Daily Read: Amicus Brief Supporting Summer Zervos Right to Sue Donald Trump

Recall the lawsuit by Summer Zervos against Donald Trump for defamation.  It's filed in New York state court and Trump has argued that Clinton v. Jones, the 1997 case in which the United States Supreme Court held that President Clinton was not immune from being sued, should not apply to state court proceedings.

In an amicus brief filed in Zervos v. Trump, and available on ssrn, three law professors who submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court,now argue that the rule should apply to state court as well. The professors - - - Stephen Burbank, Richard Parker, and Lucas Powe,  Jr. - - - argue that a President should be amenable to suit in state as well as federal court, with appropriate docket-management accommodations made in light of the demands on a President's time and attention. 

At issue is footnote 13 of Clinton v. Jones which might be read to distinguish state court proceedings from the federal one involved in Clinton:

Because the Supremacy Clause makes federal law “the supreme Law of the Land,” Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” Art. II, §3, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here. Cf ., e.g. , Hancock v. Train , 426 U.S. 167, 178 -179 (1976); Mayo v. United States , 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988) (“[A]bsent explicit congressional consent no state may command federal officials . . . to take action in derogation of their . . . federal responsibilities”).  

The amicus brief contends that the footnote is best read as limited to the problem of direct control of presidential activities by a state court.  That, they argue, is not the Zervos suit, since Zervos' lawsuit has nothing to do with the president's duties.  They conclude that the best reading of the Constitution, the requirements of federalism and the rule of law, and the Supreme Court's decision in Clinton v. Jones direct that state courts be permitted to entertain suits against sitting Presidents for conduct arising from their pre-Presidential conduct, just as federal courts can.

Judge Jennifer Schecter has yet to issue a ruling.

January 11, 2018 in Courts and Judging, Current Affairs, Executive Authority, Executive Privilege, Federalism, Scholarship | Permalink | Comments (0)

Friday, January 5, 2018

Daily Read: Marijuana, Federalism, and Preemption

In a Memorandum on January 4, Attorney General Jeff Sessions has rescinded previous Department of Justice instructions to United States Attorneys relating to enforcement of federal laws criminalizing marijuana as "unnecessary" in favor of a well-established rule of general guided discretion.  The DOJ press release describes it as a "return to the rule of law," but it arguably makes the legal rules more subject to discretion and even more unclear.  The legalization of marijuana by states while the federal government maintains marijuana on its schedule of controlled substances pertinent to criminal laws presents complicated problems of federalism and preemption. 

An excellent primer on these issues is Lea Brilmayer's article A General Theory of Preemption: With Comments on State Decriminalization of Marijuana, appearing in a recent symposium on Marijuana and Federalism in Boston College Law Review.

Marijuana_plantBrilmayer does provide some background on the marijuana controversies, including a discussion of the Supreme Court's failure to provide clear answers on the state-federal conflicts regarding marijuana.  But, as her title indicates, marijuana is an example rather than a primary focus.  She explains the principles and open questions in the doctrines of vertical and horizontal preemption, then uses concrete examples involving marijuana.  Her ultimate conclusion is that there is a weak case for preemption in the marijuana decriminalization context.

 This is a terrific introduction for understanding the issues surrounding the issues raised by the Sessions memo regarding state marijuana decriminalization.  At 35 pages, with accessible hypotheticals, this could be a great assignment for Constitutional Law classes this semester.


January 5, 2018 in Congressional Authority, Criminal Procedure, Federalism, Preemption, Scholarship, Supremacy Clause, Teaching Tips | Permalink | Comments (0)

Wednesday, January 3, 2018

Daily Read: The Meme of Voter Fraud

With the termination by Executive Order of the Presidential Advisory Commission on Election Integrity, also known as the "voter fraud commission," it's a good time to (re)read Atiba Ellis's article from 2014, The Meme of Voter Fraud.

Professor Ellis argues that "meme theory" offers a useful methodology to analyze the origins, evolution, and persistence of voter fraud rhetoric. For Ellis, a "meme" is not only a cute internet cat photo with changing words, but an "idea that spreads from person to person within a culture and replicates along with other ideas to form an ideology or worldview." The meme of "voter fraud" on his account is the latest iteration of the ideology that some people are deemed “unworthy” of the vote.

Ellis addressed the relevancy of the meme of voter fraud as it was being deployed by Trump shortly after the 2016 election (and which led to the creation of the commission).  Ellis wrote that the problem with Trump's use of the voter fraud meme is that

2674975700000578-2985770-image-m-45_1425868236814It seeks to rig our thinking about democracy. Because a meme persuades through appeal and not logic, makes facts completely irrelevant when the story is too good. This doesn’t matter much with cat videos, but Mr. Trump’s rigged election meme are dangerous because they detach us from facts as our basis for making real-world decisions.

To believe that millions of certain voters are illegitimate simply because someone says so is to trade in an ideology of exclusion. America did this for the majority of its history with the effect of excluding women, African Americans, and naturalized immigrants in favor of property-holding white men.

While the termination of the presidential commission might be seen as a rejection of the voter fraud meme, the official Statement of the Press Secretary is less than a disavowal:

Despite substantial evidence of voter fraud, many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry. Rather than engage in endless legal battles at taxpayer expense, today President Donald J. Trump signed an executive order to dissolve the Commission, and he has asked the Department of Homeland Security to review its initial findings and determine next courses of action.

This claim of "substantial evidence" seems to indicate that meme persists.

UPDATE: The President's tweets, which arguably have the status of official statements, confirm that the meme of voter fraud has not been abandoned:


January 3, 2018 in Current Affairs, Elections and Voting, Executive Authority, Fifteenth Amendment, Fourteenth Amendment, Race, Scholarship | Permalink | Comments (0)

Tuesday, January 2, 2018

Daily Read: Judicial "Supremacy" and Comparative Constitutional Law

While our recent attention has been focused on the character and the lack of  gender diversity of those who occupy judicial positions, the question of the role of the judiciary in a constitutional democracy is broader.  In an article entitled Judicial Review and Sexual Freedom published over a decade ago, I discussed the common conceptions that judicial review was the United States' most renowned legal export while exploring the ways in which it remained contested in the area of basic sexual equality. In his forthcoming article in Tulane Law Review, Judicial Supremacy in Comparative Constitutional Law, Manoj Mate "challenges the prevailing conception of judicial supremacy in comparative constitutional law as informed by U.S. and western models of constitutionalism, and argues for reconceptualizing judicial supremacy in a way that captures the broader range of institutional roles courts play globally." 

Mate seeks to reorient the discussion from "interpretative supremacy" ("the degree to which constitutional courts serve as the exclusive and final interpreter of the Constitution, or decisional supremacy") to "institutional supremacy" (the role of courts  in judicial review of constitutional amendments, entrenching constitutional norms and principles, and even structuring government and litigation).

140px-Emblem_of_the_Supreme_Court_of_India.svgMate takes as his central example the Supreme Court of India - - - which has one woman out of its 25 judges  - - - and  discusses in detail the cases and circumstances which lead to the present situation in which "India remains the only constitutional system in the world in which the Chief Justice of India (and the collegium of justices) enjoy primacy in judicial appointments."  The Supreme Court of India has also played a determining role in curbing government corruption and managing public interest litigation. 

Mate interestingly argues that the "supremacy of the Indian Supreme Court is not purely a product of the assertion of political power by political regimes who construct judicial review to advance political or partisan agendas and goals," but instead has operated in the particular conditions of India as a powerful force "for protecting constitutionalism and optimizing governance." In short, judicial review has not operated as anti-democratic but as staunchly democratic.

Mate concludes that India's "more pragmatic model of judicial supremacy" can be a model "for newer constitutional democracies across the globe." But Mate's article opens with a statement from Presidential advisor Stephen Miller in reference to judicial decisions regarding the constitutionality of the presidential travel ban as examples of judges taking "power for themselves that belongs squarely in the hands of the president of the United States."  When criticism of the judicial role is heightened, it does seem fitting that judges must act pragmatically to protect democracy.


[Supreme Court of India building via]

January 2, 2018 in Comparative Constitutionalism, Courts and Judging, International, Interpretation, Scholarship | Permalink | Comments (1)

Monday, January 1, 2018

Daily Read: Reconstructing the (Male) Voice of Authority

 Recall that Chief Justice Roberts' 2017 year-end report on the judiciary included an announcement of a working group to address the "depth of sexual harassment" in the judicial workplace. One might hope that the working group also addresses the seeming backtracking of the commitment to diversify the federal bench with regards to gender, as well as other disproportionately underrepresented people. Perhaps this new working group will re-examine the plethora of gender bias in the courts reports - - - and responses to them - - - from previous decades. (For a good discussion and survey see, Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)).

While not focusing on judicial diversity or sexual harassment specifically, Professor Susie Salmon (University of Arizona College of Law) argues that the problem of women's persistent inequality in the legal profession is rooted in classical notions of what it means to be a judge and advocate. In her article Reconstructing the Voice of Authority, 51 Akron Law Review 143 (2017), Salmon begins by quoting famous feminist classicist Mary Beard who has written tellingly about the mythic Penelope, the first woman in recorded Western history to be told to be quiet (and by her son). Salmon argues

1024px-Penelope_(the_faithful_wife_of_Odysseus) _from_Rome _Hadrianic_copy_of_Greek_work_from_5th_century_BC _Ny_Carlsberg_Glyptotek _Copenhagen_(12948415925)until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior—that is, a male—these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students—and later lawyers—develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric—values inherited from a culture that silenced women’s voices in the public sphere—exacerbates the problem.

idely used term tha

Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)
idely used term tha

Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)
myriad of definitions

Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)
myriad of definitions

Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)

Her concentration on moot court comes two decades after Mairi N. Morrison, May It Please Whose Court?: How Moot Court Perpetuates Gender Bias in the “Real World” of Practice, 6 UCLA WOMEN’S L.J. 49 (1995), and essentially asks why things have not changed.

Perhaps it is because there is a continued effort to police women's voices. As Salmon states:

And, as modern  moot- court wisdom would have it, the voice of authority is still a deep and  resonant one. No lesser authorities than U.S. Supreme Court Justice  Antonin Scalia and noted legal-writing expert Bryan Garner advise advocates to spend time on efforts to lower their vocal pitch, opining that  “a high and shrill tone does not inspire confidence.” Scalia and Garner hardly stand alone; advice about lowering vocal register pervades books  and articles on effective oral advocacy. Even those oral-advocacy experts who explicitly acknowledge the sexism that may underlie the  connection between low voices and authority nonetheless counsel advocates to speak in the lower end of their vocal range.

Salmon's article ends with a "menu of solutions" particular to moot court, but they could easily be translated to issues of sexual harassment as well as judicial diversity and constitutional equality.
[image: "Penelope (the faithful wife of Odysseus)" 5th C. BCE via]


January 1, 2018 in Courts and Judging, Current Affairs, Gender, Scholarship, Teaching Tips | Permalink | Comments (0)

Monday, December 11, 2017

Bray on Nationwide Injunctions

Check out Prof. Samuel L. Bray's piece, Multiple Chancellors: Reforming the National Injunction, in the Harvard Law Review. Bray argues that the national injunction--issued in key cases challenging policies of the Trump Administration and, earlier, the Obama Administration--is a recent development in equity that comes with negative consequences, including more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices in the federal courts. Bray offers a "single clear rule" for injunctions: the "plaintiff-protective injunction," which enjoins the defendant's conduct only as to the plaintiff.

December 11, 2017 in Courts and Judging, Jurisdiction of Federal Courts, News, Scholarship | Permalink | Comments (0)

Wednesday, December 6, 2017

American Constitution Society Releases its Inaugural Supreme Court Review

The American Constitution Society released its inaugural Supreme Court Review this week. This outstanding volume includes critical essays from top constitutional thinkers on the Court's 2016 Term, taking on the key cases and issues and putting them into a broader historical and doctrinal perspective. Check it out.

Dean Erwin Chemerinsky wrote the Foreword. Contributors include Samuel R. Bagenstos, Amanda Frost, Brianne J. Gorod, Richard L. Hasen, Ira C. Lupu and Robert W. Tuttle, Steve Sanders, and Stephen I. Vladeck. I had the honor and privilege to edit it.

ACS Review Cover

December 6, 2017 in News, Scholarship | Permalink | Comments (0)

Tuesday, October 17, 2017

Daily Read: SCOTUS and Mistakes of Fact

In a report for Pro Publica, Ryan Gabrielson discusses the underlying truth claims in some recent United States Supreme Court opinions and finds them inaccurate.

Perhaps most worrisome is from Chief Justice Roberts's opinion for the Court in the 2013 closely divided case declaring a provision of the Voting Rights Act unconstitutional, Shelby County v. Holder. Gabrielson writes that Chief Justice Roberts

called the “extraordinary and unprecedented” requirements of the Voting Rights Act outdated and unfair.

To illustrate his point, Roberts constructed a chart and published it in the body of the opinion. It compared voter registration rates for whites and blacks from 1965 and 2004 in the six southern states subject to special oversight. Roberts assembled his chart from data in congressional reports produced when lawmakers last renewed the act. The data displayed clearly that registration gaps between blacks and whites had shrunk dramatically.

But some of the numbers Roberts included in his chart were wrong.

Additionally, Gabrielson notes that Roberts's chart "did not use generally accepted definitions of race."

Roberts, whose recent dismissal of statistical reality in the oral argument in another voting case, Gill v. Whitford, attracted attention,  is not the only Justice to be highlighted in the Pro Publica article and not only for nonlegal matters.  Justice Kennedy, writing in another closely divided case, United States v. Windsor, also in 2013, inaccurately discussed the number of states that prohibited marriage between cousins. Kennedy wrote:

 “most States permit first cousins to marry, but a handful — such as Iowa and Washington ... prohibit the practice.” Kennedy listed only the two states’ marriage statutes as sources.

The primary elements of his statement are false. Half the states prohibit marriages between first cousins, Iowa and Washington among them.

Whether or not such inaccuracies are central to judicial reasoning is certainly debatable.  Whether or such inaccuracies sully judicial reputation is less so.


October 17, 2017 in Courts and Judging, Recent Cases, Scholarship, Supreme Court (US) | Permalink | Comments (0)

Thursday, September 28, 2017

Call for Papers: ACS Con Law Scholars Forum

The American Constitution Society, Barry University Law School Student Chapter, and Texas A&M University School of Law are soliciting paper proposals for the Third Annual Constitutional Law Scholars Forum, March 2, 2018, in Orlando.

The deadline is December 1, 2017. Send a short (300 word) abstract and short (150 word) bio to Prof. Eang Ngov,, with "Constitutional Law Scholars Forum" in the subject line.

Here's the call. Prof. Ngov and Prof. Meg Penrose,, are the organizers.

September 28, 2017 in Conferences, News, Scholarship | Permalink | Comments (0)

Tuesday, September 26, 2017

Paper Call: ACS Junior Scholars Public Law Workshop

The American Constitution Society is calling for papers for a workshop on public law on January 4, 2018, at the 2018 AALS Annual Meeting in San Diego.

Here's the call.

This is an excellent opportunity. The ACS Board of Academic Advisors will select 10 papers, and each author will have a chance to discuss her or his work with two experienced scholars.

The deadline is October 18, 2017; submissions should be works that have not been published as of January 1, 2018. Tenure-track and tenured faculty, or faculty with similar status, who have been full-time law teachers for 10 years or less as of December 31, 2017, are eligible.

Inquiries? Send to

September 26, 2017 in Conferences, News, Scholarship | Permalink | Comments (0)

Thursday, August 3, 2017

Call for Papers: ACS Junior Scholars Public Law Workshop

The American Constitution Society for Law & Policy is accepting paper proposals for a workshop on public law on January 4, 2018, at the 2018 AALS Annual Meeting in San Diego.

A committee of ACS's Board of Academic Advisors will select 10 papers. Selected authors will present his or her paper and discuss it with two experienced scholars.

Papers can be in any field related to public law. Tenure-track and tenured faculty, or faculty with similar status, who have been full-time law teachers for 10 years or less as of December 31, 2017, are eligible. (Co-authored submissions are permissible, but each coauthor must qualify.)

Please send proposals to on or before October 18, 2017.

Check out the call on the ACS web-site for more information.

August 3, 2017 in Conferences, News, Scholarship | Permalink | Comments (0)

Friday, July 21, 2017

Daily Read: Can the President Pardon Himself?

Given recent reporting that raises the specter of a Presidential self-pardon, a few sources are worth considering.

First, there is the Constitutional text itself, which is not surprisingly inconclusive on this issue. Article II §2 begins by declaring that the President "shall be commander in chief of the Army and Navy of the United States" and ends by stating "and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."  What's clear is the exclusion of impeachment.  What's unclear is whether this power would extend to a self-pardon. 

Second, although there has never been a case of Presidential self-pardon in the United States, the possibility was contemplated with regards to President Richard Nixon.  An Office of Legal Counsel Opinion, Memorandum Opinion for the Deputy Attorney General, offered a succinct answer to the "question whether the President can pardon himself":

Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.

The Memo does raise several other possibilities, including one under the 25th Amendment involving the Vice-President, as well as the legislative actions.  The Memo, by Mary Lawton, was dated August 5, 1974; Nixon resigned a few days later.  A month later, President Gerald Ford issued a Proclamation with a full pardon to Nixon.

Third, a 1996 law review note article by now-Professor Brian Kalt of Michigan State University College of Law, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, springboards from the possibility that President George Bush, who had pardoned several people implicated in the Iran-Contra controversy would also pardon himself as he left office.  Kalt concludes that "the intent of the Framers, the words and themes of the Constitution they created, and the wisdom of the judges that have interpreted it all point to the same conclusion: Presidents cannot pardon themselves." 

The bedrock principle that "no one can be a judge in his own case" is the foundation of the Kalt article and its sources as well as the OLC memo, as well as providing a rationale for even the possibility not being excluded in the Constitutional text. 



 [image via]

July 21, 2017 in Courts and Judging, Current Affairs, Executive Authority, History, Interpretation, Scholarship | Permalink | Comments (2)

Tuesday, June 13, 2017

CFP: National Conference of Constitutional Law Scholars

Here's the announcement:


National Conference of Constitutional Law Scholars

The Rehnquist Center is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 16-17, 2018. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Adrian Vermeule will deliver a keynote address. Distinguished commentators for 2018 include:

  • Jamal Greene
  • Aziz Huq
  • Pamela Karlan
  • Frank Michelman
  • Cristina Rodriguez
  • Reva Siegel
  • Robin West

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by September 15, 2017. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by October 15, 2017. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Please send all submissions or related questions to Andrew Coan ( For logistical questions or to register for the conference, please contact Bernadette Wilkinson ( The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches.

Conference Organizers :
Andrew Coan, Arizona; David Schwartz, Wisconsin; Brad Snyder, Georgetown


The Rehnquist Center

The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

June 13, 2017 in Conferences, Scholarship | Permalink | Comments (0)

Monday, June 12, 2017

Daily Read: On the 50th Anniversary of Loving, A Look at its Portrayal in Film

 In Loving v. Virginia, decided June 12, 1967, the United States Supreme Court unanimously held that the Virginia statute criminalizing marriage between White and (most)non-White persons violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment.  The case has become an iconic one, not only because it explicitly states that the Virginia law was "obviously an endorsement of the doctrine of White Supremacy," but also because it identifies the "freedom to marry" as "one of the vital personal rights essential to the orderly pursuit of happiness by free men." 

Creighton Law Review hosted a symposium for the 50th anniversary of the case and the issue is just published.


Among the terrific articles is one that considers the Hollywood film, released last year, as well as the previous documentary.  In the important contribution Filmic Contributions to the Long Arc of the Law: Loving and the Narrative Individualization of Systemic Injustice, Alanna Doherty argues that the film, and to a lesser extent the documentary "repackages the Lovings’ historic civil rights struggle against wider systemic oppression as a personal victory won by triumphant individuals through the power of love."  This individualization through narrative, she argues, obscures the collective and civil rights struggle that is the ground of the action the film portrays. Likewise, the "White Supremacy" of the state is attributed to a few rogue individuals. Doherty argues that such individualization is not only limited, but also accounts for the post-Loving developments in equality doctrine regarding affirmative action:

Both Loving (the film) and Fisher [v. University of Texas at Austin] (the case) present their stories of individualized racial harm at the cost of avoiding meaningful recognition of systemic injustice. While in Loving this may seem positive due to the nature of the decision, and although in Fisher the court ultimately upheld the admissions policy, harmful ideological work is still being done to our socio-legal consciousness. In Fisher, the Court set injurious legal precedent in how it evaluates affirmative action programs—under intense scrutiny and with such little deference that fewer, if any, will pass constitutional muster. And because law is an embodiment of social practices interacting with cultural conceptions in noetic space, a trend in cinematic and legal narratives to shirk responsibility for holding oppressive institutions accountable only furthers a reciprocity with cultural ideology that moves the law away from helping those most vulnerable under it.

[footnotes omitted].

And yet, even as Loving (the film) is subject to critique as being limited, sentimental, and nostalgic, Doherty ultimately contends that the film has legal relevance given our fraught political landscape:

perhaps the cultural and legal imagining that needs to be done in the noetic space of 2017 is one grounded in the inspiring recognition of triumphant small-scale love. Maybe what Loving truly contributes to such a tumultuous cultural moment is the notion that not only must we continue to commit to fights we should not have to fight, but that if we want to take care of each other even when the law fails us, we must decide to keep loving.



June 12, 2017 in Affirmative Action, Conferences, Due Process (Substantive), Equal Protection, Family, Federalism, Film, Fourteenth Amendment, Fundamental Rights, History, Race, Scholarship, Supreme Court (US) | Permalink | Comments (2)

Thursday, May 4, 2017

Examining President Trump's First 100 Days

Check out the Illinois Law Review's outstanding, mile-wide and mile-deep on-line symposium Examining Trump's First 100 Days in Office: His Plan, Promises, and Pursuit of Making America Great Again.

A very impressive group of thirty-one authors write on topics ranging from governance issues (the judiciary, federalism, administrative law) to every hot area of domestic and foreign policy.

May 4, 2017 in Conferences, News, Scholarship | Permalink | Comments (0)

Wednesday, April 19, 2017

SCOTUS Finds Colorado Criminal Fee Refund Scheme Violates Due Process

The United States Supreme Court's opinion in Nelson v. Colorado opened with this seemingly simple question:

When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction?

Writing for the six Justice majority, Justice Ginsburg provided an equally simple response: "Our answer is yes."

The statutory scheme, Colorado's Compensation for Certain Exonerated Persons, provided the "exclusive process" for seeking a refund of costs, fees, and restitution according to the Colorado Supreme Court.  However, recovery under this Exoneration Act applied "only to a defendant who has served all or part of a term of incarceration pursuant to a felony conviction, and whose conviction has been overturned for reasons other than insufficiency of evidence or legal error unrelated to actual innocence."  The petitioners in the case were not within this category: one was convicted, had her conviction reversed, and was acquitted on retrial; the other was convicted, had one conviction reversed on appeal and another conviction vacated on postconviction review, and the state elected not to retry.  The first petitioner was assessed more than $8,000 in costs, fees, and restitution and had $702.10 deducted from her inmate account while she was in jail; the second petitioner was assessed more than $4,000 in costs, fees, and restitution and paid the state $1977.75.

Justice Ginsburg's concise opinion articulates and applies the well-established balancing test for procedural due process from Matthews v. Eldridge (1976), under which a court evaluates a court evaluates (A) the private interest affected; (B) the risk of erroneous deprivation of that interest through the procedures used; and (C) the governmental interest at stake. 

A_debtor_in_Fleet_Street_Prison_THSThe Court rejected Colorado's claim that the petitioners' had no private interest in regaining the money given that the convictions were "in place" when the funds were taken. Justice Ginsburg concluded that it makes no difference whether the initial court or a reviewing court adjudged the petitioners not guilty.  To rule otherwise would be inconsistent with the presumption of innocence notion fundamental to "our criminal law."  As to the risk of erroneous deprivation, Justice Ginsburg made clear that the risk was high and stressed that the petitioners were seeking refund rather than "compensation for temporary deprivation" of those funds such as interest.  Finally, Justice Ginsburg's opinion for the Court found that Colorado has "no interest in withholding" the money "to which the State currently has zero claim of right."

Justice Alito, writing in a concurring opinion only for himself, contended that the correct standard was not Matthews v. Eldridge, but Medina v. California (1992) as Colorado had argued.  For Alito, Medina was the correct standard because the refund obligation was part of the criminal process, especially pertinent with reference to restitution. Nevertheless, Alito concluded that even under Medina, stressing an historical inquiry, the Colorado statute failed due process: placing a heavy burden on criminal defendants, providing no opportunity for misdemeanor convictions, and excluding all but claims for actual innocence.  

Justice Thomas, also writing only for himself, issued a dissenting opinion, arguing that the issue is whether the petitioners can show a "substantive" entitlement to a return of the money they paid.  He concludes that they have no "substantive" right because once the petitioners paid the money - - - however wrongly - - - it became public funds to which they had no entitlement. Thus, because the "Due Process Clause confers no substantive rights," the petitioners have no right to a refund, despite the "intuitive and rhetorical appeal" of such a claim.

While the statute was amended to include vacated convictions effective September 2017, such an amendment may not be comprehensive enough to save the statutory scheme.  While the Court does not discuss the widespread problem of carceral debt, there is a burgeoning scholarship on this issue.

[image: "A debtor in Fleet Street Prison, London" by Thomas Hosmer Shepherd, circa first half of the 19th century, via].

April 19, 2017 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Opinion Analysis, Procedural Due Process, Scholarship, Supreme Court (US) | Permalink | Comments (0)

Thursday, February 23, 2017

Call for Papers: European Junior Faculty Forum

The WZB Berlin Social Science Center, the European University Institute, and the London School for Economics and Political Science invite submissions for the Inaugural Annual European Junior Faculty Forum for Public Law and Jurisprudence, to be held at WZB Berlin Social Science Center on June 28 and 29, 2017.

Authors may be invited to publish in Global Constitutionalism.

Check out the web-site and call for papers. Submission deadline--including a CV, abstract, and draft article--is April 15, 2017.

February 23, 2017 in Conferences, News, Scholarship | Permalink | Comments (0)