Sunday, September 23, 2018
The student chapter of the American Constitution Society at Barry University School of Law and Texas A&M University School of Law are hosting the Fourth Annual Constitutional Law Scholars Forum at the Dwayne O. Andreas School of Law Campus, 6441 East Colonial Drive, Orlando, FL 32807.
The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea to 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, 2018.
There are no conference fees and meals are provided.
Email proposals to Professor Eang Ngov, firstname.lastname@example.org, with “Constitutional Law Scholars Forum” in the subject line. Submissions should include a short abstract (300 words maximum) and biography (150 words maximum).
Professor Eang Ngov, email@example.com, office (321) 206 -5677, cell phone (571) 643-2691
Professor Meg Penrose, firstname.lastname@example.org
Thursday, September 20, 2018
Over at "First Amendment News" (FAN) by Ron Collins, a symposium of 15 women scholars on the current state of the First Amendment. In her forward, Kellye Testy comments on the "relative lack of women’s visibility in First Amendment jurisprudence," by noting that what “counts” as First Amendment scholarship is subject to a sexist lens and that protecting "free speech" can be a male preoccupation given that "men who have had “free speech” want to keep speaking," but "women’s speech has been restrained, both as a matter of formal law and of social practices, including violence."
A number of the contributions focus on free speech in the "Trump-era" or in the "internet-era" or both, including my own.
Here's the list of authors and titles, all accessible here:
Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder”
Mary Anne Franks, “The Free Speech Fraternity”
Sarah C. Haan, “Facebook and the Identity Business”
Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech”
Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’”
Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place”
Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories”
Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency”
Helen Norton, “Taking Listeners’ First Amendment Interests Seriously”
Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra”
Ruthann Robson, “The Cyber Company Town”
Kelli Sager& Selina MacLaren, “First Amendment Rights of Access”
Sonja West, “President Trump and the Press Clause: A Cautionary Tale”
Wednesday, September 12, 2018
The UNLV William S. Boyd School of Law is calling for presenters and commenters for this exciting symposium, Dignity, Tradition, & Constitutional Due Process: Competing Judicial Paradigms, March 14-15, 2019, in Las Vegas.
The Court's determination regarding which paradigm to apply [a "deeply rooted" historical paradigm, or a "dignity" paradigm] depends, of course, on which receives at least five affirmative votes in any given appeal. Until his recent retirement, Justice Anthony Kennedy usually was the deciding vote. The probable confirmation of Hon. Brett Kavanaugh to Kennedy's seat may portend severely limited use of the dignity paradigm, if not its effective demise.
Our symposium . . . explores which of these two seemingly irreconcilable standards is correct, or whether there are one or more alternative approaches the courts should use.
Tuesday, August 28, 2018
The American Constitution Society is pleased to announce a call for papers for a workshop on public law to be held the afternoon of Thursday, January 3, 2019, at the 2019 AALS Annual Meeting in New Orleans. A committee composed to ACS's Board of Academic Advisors will select approximately 10 papers, and each selected author will have the opportunity to discuss his/her paper, as well as the paper of another author, in depth with two experienced scholars from the ACS network, which includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler.
Papers can be on any field related to public law, including but not limited to: constitutional law, administrative law, antidiscrimination law, criminal law, environmental law, family law, federal courts, financial regulation, public international law, society welfare law, and workplace law.
The deadline for submissions is 11:50 p.m. on October 19, 2018. Submissions should be works that will not be published as of January 1, 2019.
Submissions should be emailed in Microsoft Word or PDF format to email@example.com. Please indicate in the subject line "Submission for ACS Junior Scholars Public Law Workshop" and include the author's name, school, and contact information in a cover email. The cover email should also identify the field(s) in which the paper falls.
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, 2018, are eligible to participate. Co-authored submissions are permissible, but each of the coauthors must be individually eligible to participate in the workshop.
Authors are limited to one submission each. Selections will be made by November 16, 2018. Authors must arrange their own travel to the AALS Annual Meeting.
Inquiries may be sent to Kara Stein, at firstname.lastname@example.org.
Wednesday, August 22, 2018
Check out Justin Driver's (U. Chicago) expansive, meticulous, and engrossing new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. The title speaks for itself, but here's from the intro:
At its core, this book argues that the public school has served as the single most significant site of constitutional interpretation within the nation's history. No other arena of constitutional decisionmaking--not churches, not hotels, not hospitals, not restaurants, not police stations, not military bases, not automobiles, not even homes--comes close to matching the cultural import of the Supreme Court's jurisprudence governing public schools.
That's because of "the importance of that venue for shaping attitudes toward the nation's governing document." Still, "[i]n recent decades . . . such sentiments appear more often in the Court's dissenting opinions than in its majority opinions."
Driver tells us what to do about that.
Saturday, August 18, 2018
Thursday, August 16, 2018
Wednesday, August 8, 2018
Check out William Baude's (U. Chicago) piece Constitutional Liquidation, forthcoming in the Stanford Law Review. Baude explores James Madison's idea that the Constitution's meaning could be "liquidated" and settled by practice. From the abstract:
Constitutional liquidation has three key elements. First, there had to be a textual indeterminacy. . . . Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and "the public sanction"--a real or imputed popular ratification.
Baude says that liquidation "provides a structured way for understanding . . . departmentalism," "could provide a salutary improvement over the modern doctrine of stare decisis," "is consistent with the core arguments for adhering to tradition," and "is less susceptible to some of the key criticisms against the more capacious use of historical practice."
Wednesday, August 1, 2018
Check out Prof. Michael Morley's new piece, Prophylactic Redistricting? Congress's Section 5 Power and the New Equal Protection Right to Vote, in the William & Mary Law Review.
Morley argues that traditional remedial features of Section 2 of the Voting Rights Act are getting squeezed from two sides: (1) Boerne and reduced congressional authority to enforce the Fourteenth and Fifteenth Amendments mean that the Court will likely give a narrower reading to Section 2 (focusing only on intentional discrimination); and (2) the Court's shift to a "pro-equality" (and away from a "pro-vote") approach to the right to vote mean that courts will likely say that any legislative expansions of the franchise have to be shared equally by all. Here's what to do about it:
Courts may apply section 2 more aggressively to defendant jurisdictions or officials that have a recent history of engaging in intentional racial discrimination concerning the right to vote. They should also be more willing to allow prophylactic applications of section 2 in circumstances where direct evidence of constitutional violations (that is, intentional discrimination) would be impracticable or impossible to uncover. Finally, remedies under section 2 should not be broader than necessary to achieve its important prophylactic purposes. Section 2 runs a risk: the more it deviates from the mandates of the Court's developing conception of equal protection, and does so in a race-conscious manner that almost invariably inures to the benefit of a particular political party, the greater skepticism it will trigger in the courts. It places courts in the difficult position of reshaping both the rules of elections and the shape of electoral districts to attempt to replicate what a fair electoral outcome in the absence of past and present society discrimination would look like. Such awesome power demands careful use.
Monday, July 2, 2018
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.
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.
Friday, June 29, 2018
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.
Wednesday, May 2, 2018
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.
McKenchie'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.
Tuesday, April 17, 2018
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).
Yet 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]
Monday, March 26, 2018
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.
Wednesday, January 31, 2018
Wednesday, January 17, 2018
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.
Monday, January 15, 2018
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.")
Yet 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."
Thursday, January 11, 2018
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.
Friday, January 5, 2018
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.
Brilmayer 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.
Wednesday, January 3, 2018
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
It 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:
Many mostly Democrat States refused to hand over data from the 2016 Election to the Commission On Voter Fraud. They fought hard that the Commission not see their records or methods because they know that many people are voting illegally. System is rigged, must go to Voter I.D.— Donald J. Trump (@realDonaldTrump) January 4, 2018
As Americans, you need identification, sometimes in a very strong and accurate form, for almost everything you do.....except when it comes to the most important thing, VOTING for the people that run your country. Push hard for Voter Identification!— Donald J. Trump (@realDonaldTrump) January 4, 2018