Monday, July 2, 2018

Daily Read: SCOTUS Justice Retirements and Political Goals

 In a recently updated and forthcoming article, Do Justices Time Their Retirements Politically? An Empirical Analysis of the Timing and Outcomes of Supreme Court Retirements in the Modern Era, by Christine Kexel Chabot (pictured) of Loyola-Chicago, she set out to explore whether or not Justices timed their retirements for political effect. 

Christine_chabotWith Kennedy's announced retirement, her empirical research of past retirements is quite relevant. She concludes:

Justices’ political retirement goals have often turned out to be wishful thinking. Some Justices found that they were relatively far removed from ideologies of party leaders (and potential successors) by the time they retired, and Justices who timed their retirements politically had limited success in obtaining like-minded replacements.

A fascinating read.

July 2, 2018 in Scholarship, Supreme Court (US) | Permalink | Comments (0)

Friday, June 29, 2018

Check it Out: Rosenthal Measures How Originalist are Originalists

Check out Prof. Lawrence Rosenthal's (Chapman) piece, An Empirical Inquiry into the Use of Originalism: Fourth Amendment Jurisprudence During the Career of Justice Scalia. Rosenthal finds

that originalism played a small role in Fourth Amendment jurisprudence during the study period . . . . Despite Justice Scalia's professed commitment to originalism, he voted on originalist grounds in only 18.63% of cases. The Court's other professed originalist, Justice Clarence Thomas, voted on originalist grounds in only 15.71% of cases. . . . Voting patterns were not markedly different for justices who do not profess fealty to originalism.

June 29, 2018 in Interpretation, News, Scholarship | Permalink | Comments (0)

Wednesday, May 2, 2018

Daily Read: The President and Defamation on Twitter by McKechnie

Apropos of the defamation complaint filed by Stephanie Clifford a/k/a Stormy Daniels which we discussed here, an excellent read is the article @POTUS: Rethinking Presidential Immunity in the Time of Twitter by Professor Douglas McKenchnie  (United States Air Force Academy; pictured) published in the University of Miami Law Review.

Douglas_McKechnieMcKenchie's article, published in 2017, considers the President's use of Twitter.  McKenchie argues that malicious defamation falls outside the “outer perimeter” of official presidential duties and thus presidential immunity is inapplicable. 

This addresses a broader issue than whether a sitting president can be sued, but uses a number of doctrines - - -  presidential immunity; immunity for executive branch officials; the constitutional implications of defamation; and the Fifth and Fourteenth Amendments’ prohibition on government action motivated by animus - - - to support its conclusion.

Worth a read.

May 2, 2018 in Equal Protection, Executive Privilege, First Amendment, Scholarship, Theory | Permalink | Comments (0)

Tuesday, April 17, 2018

Daily Read: Curing the Inequality of Privacy Protections

Whose privacy counts? Whose privacy should count?

While these questions could be asked across many doctrines, one intersection occurs in the origins of privacy, including the tort remedies for its invasion. In his article Privacy's Double Standards, available on ssrn and forthcoming in Washington Law Review, Professor Scott Skinner-Thompson argues for the necessity of equal protection standards in privacy protection torts. Centered on the tort of public disclosure of private facts, Skinner-Thompson rightly observes that it has been applied unevenly, with privileged and celebrity plaintiffs prevailing (think: Hulk Hogan v. Gawker) when more marginalized plaintiffs (such as victims of revenge porn) have not, noting that this is perhaps not surprising given the origins of the tort in "Brahman society." Skinner-Thompson discusses these cases and numerous others to support this observation (and provides a nice appendix of his research methodology).

Edgar_Degas_-_Mrs_Jeantaud_in_the_Mirror_-_Google_Art_ProjectYet rather than simply detail the disparities evinced in the cases, Skinner-Thomson argues that just as the First Amendment has shaped the doctrines of torts, so too should constitutional equality principles be applied to the inequalities in tort remedies for invasions of privacy. He argues that "to better comply with constitutional equality principles, the substance of privacy tort law must be relaxed so as to ensure that individuals in marginalized communities are able to bring claims on the same terms as privileged individuals."

His specific recommendations for reshaping the tort doctrine of public disclosure of private facts:

  • All plaintiffs, and not just well-known ones, should be able to prevail in public disclosure tort claims" even if they have shared the information at issue (for example, their HIV status, sexual orientation, or intimate photographs) within certain confines."
  • All plaintiffs should be able to prevail in public disclosure tort claims even if the defendant has not shared the information with the world at large (for less well-known plaintiffs, the interest of the world can be limited, but, for example, disclosure of one's sexual orientation to one's small community church can be equally devastating).

As Skinner-Thompson makes clear, he is not arguing that a privacy tort plaintiff  " will be able to successfully bring an equal protection challenge to the way the public disclosure tort is operating," but it is to argue that this tort could be  - - - and should be - - - inflected with equal protection concerns.  

[image: Edgar Degas, Mrs Jeantaud in the Mirror, circa 1875 via]

April 17, 2018 in Equal Protection, First Amendment, Privacy, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0)

Monday, March 26, 2018

Check it Out: Schmidt on Student Protests, from Lunch Counters to Guns

Check out Chris Schmidt's piece in the Washington Post earlier this month on student activism, from the lunch-counter sit-ins to gun control.

Prof. Schmidt also recently published The Sit-Ins: Protest and Legal Change in the Civil Rights Era with the University of Chicago Press.

March 26, 2018 in News, Scholarship, Second Amendment, Speech | Permalink | Comments (0)

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. 


PAPER SUBMISSION PROCEDURE:

Electronic submissions should be sent to Rebecca Tushnet, rtushnet AT law.harvard.edu 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 law.harvard.edu.

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.

  1600px-Supreme_Court_of_India_-_200705

[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.

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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)
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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, engov.barry.edu, with "Constitutional Law Scholars Forum" in the subject line.

Here's the call. Prof. Ngov and Prof. Meg Penrose, megpenrose@law.tamu.edu, 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 kstein@acslaw.org.

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 juniorscholarsworkshop@acslaw.org 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. 

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