Tuesday, April 5, 2016
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.
Thursday, March 17, 2016
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:
Monday, February 22, 2016
Thursday, February 18, 2016
Tuesday, February 16, 2016
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.
Monday, February 15, 2016
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.
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.
Wednesday, February 10, 2016
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."
Sunday, February 7, 2016
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.
[More on artist Soraida Martinez here]
Sunday, January 31, 2016
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.)
As 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.
Monday, January 18, 2016
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.
Delivered 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].
Tuesday, January 12, 2016
Check out Prof. Barry Sullivan (LUC) and Prof. Megan M. Canty (LUC, now Wayne State)'s outstanding and just-posted piece on oral arguments at the Supreme Court: Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958-60 and 2010-12.
Sullivan and Canty undertook their study after then-Judge John G. Roberts, Jr., suggested soon before his appointment as Chief that "one thing that has remained fairly constant [since 1980] has been the level of questioning" at oral argument.
That's wrong, according to Sullivan and Canty. They say that lots of things have changed at the Supreme Court over time, and questioning is certainly one of them. And not in a good way.
Their results paint an all-too-familiar picture (check out our review of Monday's oral arguments in the fair-share case), and it's not particularly flattering to the Court. "In the older cases, the nature and shape of oral argument reflected what might be taken to be the traditional purposes of oral argument, but the more recent cases suggest a different dynamic." This new dynamic includes justices using "an advocate's limited time to state their own views and to joke or argue with each other," more personally invested justices, and justices "act[ing] as if oral argument were simply an opportunity for them to say what they would like to say about a case."
In any event, the "new oral argument" is not about the lawyers, who may often seem to be props, bystanders, or straight-men in the well of the Court. Nor is it about the parties, whose interests are at stake, or about the public. Oral argument seems to be for the Justices, and only for the Justices--time to be used in whatever ways they may find appealing at the moment. Indeed, one might say that it seems to be "all about them." But what the Court hopes to achieve through oral argument remains unclear.
Thursday, January 7, 2016
The amicus brief of Anice MacAvoy, Janie Schulman, and Over 110 Other Women in the Legal Profession Who Have Exercised their Constitutional Right to an Abortion filed in Whole Woman's Health v. Cole, the abortion case before the United States Supreme Court regarding Texas's controversial HB2 statute, puts the emotions and stories of legal professionals whose abortions have played a positive role in their lives and careers.
Although the amicus does not cite the Court's most recent abortion decision, Gonzales v. Carhart (Carhart II), the import of the amicus is a challenge to some of the reasoning in that case. Specifically, Justice Kennedy writing for the majority in Carhart II stated that:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852–853 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05–380, pp. 22–24. Severe depression and loss of esteem can follow. See ibid.
The dissenting opinion of four Justices, authored by Justice Ginsburg, responded to this passage at length:
Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Ante, at 29. Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.
This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U. S. 412, 422–423 (1908) (“protective” legislation imposing hours-of-work limitations on women only held permissible in view of women’s “physical structure and a proper discharge of her maternal funct[ion]”); Bradwell v. State, 16Wall. 130, 141 (1873) (Bradley, J., concurring) (“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.”), with United States v. Virginia, 518 U. S. 515 , n. 12 (1996) (State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “[s]uch judgments have … impeded … women’s progress toward full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb, 430 U. S. 199, 207 (1977) (gender-based Social Security classification rejected because it rested on “archaic and overbroad generalizations” “such as assumptions as to [women’s] dependency” (internal quotation marks omitted)).
Though today’s majority may regard women’s feelings on the matter as “self-evident,” ante, at 29, this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped … on her own conception of her spiritual imperatives and her place in society.” Casey, 505 U. S., at 852. See also id., at 877 (plurality opinion) (“[M]eans chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”); supra, at 3–4.
The brief of the attorneys who have had abortions and are legal professionals clearly supports the view that women must be able to exercise reproductive free choice. The stories of the women attorneys gathered in the amicus brief is a testament to the positive aspects of abortions - - - rather than the regrets - - - that women attorneys have experienced.
January 7, 2016 in Abortion, Courts and Judging, Current Affairs, Equal Protection, Family, Fourteenth Amendment, Gender, Medical Decisions, Privacy, Recent Cases, Reproductive Rights, Scholarship | Permalink | Comments (0)
Tuesday, December 1, 2015
The right-to-a-remedy is a standard in our constitutional songbook, going back to Marbury v. Madison, even before. But what about rights against a remedy? While we might not think about such things often, they're there. And the Court in Shelby County elevated one of them to a higher level, with potentially devastating consequences to our system of constitutional remedies against the states.
Davis argues that the Court's newfangled "equal sovereignty" principle that contributed in Shelby County to the demise of Section 4 of the VRA (the coverage formula for preclearance) is a right against a remedy--but one of a different sort altogether. Davis says that "equal sovereignty" stands apart from other rights-against-remedies, because the Court neglected to consider any countervailing interests or factors, or whether there are other ways to respect "equal sovereignty"--in short, that the Court used "equal sovereignty" as a trump card on the right to a remedy (in Section 5 preclearance). Davis explains:
Rights against remedies are usually shaped by considered judgments about the whole remedial scheme. Due process, for instance, limited remedies that might "intimidate" regulated parties from seeking judicial review. [See Ex Parte Young.] . . . Equal sovereignty imposes a different kind of right, it appears. The Shelby County majority simply did not address Justice Ginsburg's argument that a bailout process adequately protected a state's equal sovereignty.
Thus, the Court treated Shelby County more like a third party claiming an equal protection right against reverse discrimination than as a recidivist jurisdiction with a history of voting wrongs. . . .
At a minimum, this newfound equal sovereignty right against remedies is unusual and troubling. Equal sovereignty requires the Court to strike down a constitutional remedy without considering whether that remedy is necessary to redress constitutional violations.
The result: "equal sovereignty" as a right-against-remedies "has the potential to undercut the system of constitutional remedies against states.
Tuesday, November 10, 2015
As the oral argument scheduled for December 9 for Fisher II approaches, organizations and individuals are filing amicus briefs for the Court's consideration. SALT - - - the Society of American Law Teachers - - - a progressive organization of law faculty that has long fought for diversity in legal education, has predictably filed an amicus brief supporting University of Texas's admissions program.
One of the more interesting aspects of the brief is its argument that race neutrality is essentially impossible: "race-blind holistic review is not only a contradiction in terms, it is infeasible." As the brief argues, "Put simply, because peoples’ lives are not “color blind,” neither can a holistic admissions policy be."
Consider a college application from an individual who lists youth leadership in his or her African Methodist Episcopal Church as an activity. Or consider an application from a first-generation Latina high-school senior whose personal essay discusses her immigrant parents’ experiences and how she learned to thrive in an English-dominated culture even though Spanish is the language spoken at home. If the reader is to conduct holistic review but cannot consider race, the reader is confronted with uncomfortable choices about how to handle these applications.
Moreover, if the reader cannot consider race, the reader would be confronted with an impossible task, because race affects assessments of individuals consciously or unconsciously, regardless of intentions and any mandate from this Court. . . .
Just as Dostoevsky’s polar bear will occupy the mind of anyone challenged not to think about it, so too will the admonition not to think about race generate an unspoken preoccupation with that subject.
Although the SALT amicus brief does not argue that race will then be only used negatively, that is perhaps a consequence of an elimination of racialized diversity as a positive value.
Monday, September 28, 2015
The Barry University Law School Student Chapter of the American Constitution Society is hosting its Second Annual Constitutional Law Scholars Forum, Friday, April 1, 2016, in Orlando.
The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea of the editing stage. The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment. (The Forum is not accepting proposals from students at this time.)
The deadline to submit proposals is December 1, 2015.
E-mail proposals to Ms. Fran Ruhl, Faculty Assistant, at firstname.lastname@example.org, and to Professor Eang Ngov at email@example.com, with "Constitutional Law Scholars Forum" in the subject line. Submissions should include a short abstract (300 words max) and biography (150 words max).
There are no conference fees, but participants have to pay their own travel expenses.
The Conference organizer is Professor Eang Ngov, firstname.lastname@example.org, tel. (312) 206-5677.
Friday, September 18, 2015
The question of whether the institution of chattel slavery is inherent in the Constitution is being debated in the popular press.
In an op-ed in the New York Times, Sean Wilentz argues that "the myth that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America’s racist past." He concludes
Far from a proslavery compact of “racist principles,” the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans. Without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865.
Over at the New Republic, Lawrence Goldstone argues Wilentz is absolutely wrong. Sure, the Constitution's framers avoided the word "slavery" in the document itself, just as in the debates they "almost always employed euphemisms such as 'this unique species of property, 'this unhappy class,' or 'such other persons.' " Goldstone concludes that perhaps it may be correct to say that "the Constitution didn’t specifically anoint slavery as a national institution," but nevertheless "in clause after clause it tried to make certain that slavery would endure as one."
To see such matters debated in the popular press, even in such abbreviated form, has been stimulating to many ConLaw students studying the issue in class.
Wednesday, September 16, 2015
Over at Jotwell, University of Victoria Professor of Law Val Napolean's contribution to the Equality section suggests that the novel Birdie be "approached as a Cree law text—as a performance of law with difficult questions expressed and examined through narrative."
Cases are law stories about something that has happened and that are publicly recorded in a particular way to be recalled in future collaborative legal reasoning through specific problems. In the same way, Birdie is a Cree law story placed in northern Alberta (near fictitious Little Loon First Nation) about a woman whose life is a personal chronicle of colonial law and history. But it is far more than this. It is also about Cree law that is undermined by colonization, but which has not disappeared . . . .
For US Con Law Profs teaching constitutional law, Napolean's discussion is an invitation to interrogate the stories that are told - - - or not told - - - in cases about Native peoples and justice.
Thursday, August 6, 2015
In an over 50 page decision in Salaita v. Kennedy, United States District Judge Harry D. Leinenweber largely denied the University of Illinois Defendants' Motion to Dismiss the compliant filed by Steven Salaita regarding his employment at the university. Recall that last August, University of Illinois at Urbana-Champaign officials rescinded the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin based on his "tweets" on the subject of Gaza. Recall also that in January, Salaita filed a nine count complaint including constitutional claims of First Amendment and procedural due process violations.
Judge Leinenweber's decision does grant the motion to dismiss with regard to a few state law claims, but allows the constitutional claims and the breach of contract and promissory estoppel claims to proceed. (ContractsLawProfs might be interested in the judge's analysis of the contract claim, including his conclusion that if this were not a contract it would "wreak havoc" on academic hiring and that the university is essentially seeking a "get-out-of-contract-free card.")
The judge's analysis of the procedural due process claim flows from the contract claim. The university argued that Salaita had no sufficient "property interest" to entitle him to due process because there was no contract. Having found a sufficient contract claim, the judge finds the procedural due process claim sufficiently pleaded.
On the First Amendment claim, the judge rejected the university's argument is that its action was not motivated by the content or viewpoint of Dr. Salaita’s tweets, and that even if it was, its interest in providing a disruption-free learning environment outweighs Dr. Salaita’s free speech interest under the balancing test in Pickering v. Board of Education (1968).
The first part of the argument is premature; summary judgment or trial will reveal the University’s actual motivation, but the facts viewed in Dr. Salaita’s favor amply support a claim that the University fired Dr. Salaita because of disagreement with his point of view. The University’s attempt to draw a line between the profanity and incivility in Dr. Salaita’s tweets and the views those tweets presented is unavailing; the Supreme Court did not draw such a line when it found Cohen’s “Fuck the Draft” jacket protected by the First Amendment. Cohen v. California (1971).
Additionally, the judge noted that even if he were to engage in Pickering balancing at this stage, the facts conflict as to whether actual disruption would have occurred.
Interestingly, the judge's rationale for granting the motion to dismiss as to the complaints counts six and seven rely on First Amendment grounds. In these counts, the complaint alleged tortious interference by unnamed donors who threatened to withdraw support should Salaita teach at the university. Judge Leinenweber concluded that the donor defendants had a First Amendment right to express their displeasure, even through a quid pro quo threat: "The First Amendment is a two-way street, protecting both Dr. Salaita’s speech and that of the donor Defendants."
Finally, Judge Leinenweber rejected the university's argument that its officials and itself were entitled to Eleventh Amendment immunity, noting that the difficult issue regarding whether the university board is an arm of the state is irrelevant since Saliata is requesting injunctive relief. The judge resolves the more perplexing state law immunity issue, under the Illinois Court of Claims Act, also in favor of Salaita.
In sum, this is an important victory for Professor Salaita as this closely-watched litigation continues.
Monday, August 3, 2015
While known to many scholars and students because of his work on administrative and environmental law, Professor Marc Poirier of Seton Hall was a remarkable scholar on constitutional issues surrounding sexuality and gender. One of Marc's latest pieces is Whiffs of Federalism” in Windsor v. United States: Power, Localism, and Kulturkampf, 85 Colo. L. Rev. 935 (2014).
Details about a memorial will follow.
UPDATE: Memorial Service at Seton Hall Tuesday September 29, 2015. Details here.
Monday, June 1, 2015