Thursday, January 2, 2014
In his opinion granting a final injunction in Obergefell v. Kasich, federal Judge Timothy Black addressed a particular enforcement of Ohio's limitation of marriage to opposite sex couples. He also cited and relied upon an interesting conceptualization put forth by Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421 (2011), available on ssrn.
As the title indicates, Sanders argues that an individual who legally marries in his or her state of domicile, then migrates to another state, has a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of the marriage, as conceptually and doctrinally distinguishable from the constitutional “right to marry.”
Recall that the facts in Obergefell are especially sympathetic: one of the partners was a hospice patient and the relief requested regarded the martial status and surviving spouse to be recorded on the death certificate. As NPR reported, the couple "chartered a special medical jet to Maryland, where gay marriage is legal, and held a simple ceremony on the runway. And recall also that Judge Black's preliminary injunction opinion last July was one of the first after the Court decided United States v. Windsor, declaring section 3 of DOMA unconstitutional, and used Justice Scalia's dissent as part of the rationale for expanding Windsor.
Although Judge Black's preliminary injunction opinion certainly considered the effect of the out-of-state marriage, in the permanent injunction opinion, Judge Black constitutionalizes this conception:
In situations like those of Plaintiffs, however, where same-sex couples legally marry outside of Ohio and then reside in Ohio, a different right than the fundamental right to marry is also implicated: here, the constitutional due process right at issue is not the right to marry, but, instead, the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.
The footnote to this passage credits Steve Sanders article:
The concept of the right to remain married as a liberty interest protected by the Due Process Clause is eloquently advanced by Professor Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This judge acknowledges significant reliance upon Professor Sanders’s learned (and more extended) analysis of the fundamental right to remain married.
In the text of the opinion, Judge Black then quotes Sanders' article as stating, "In identifying the right to remain married as fundamental, Professor Sanders points out that the “[l]aw favors stability in legal relationships, vindication of justified expectations, and preventing casual evasion of legal duties and responsibilities.”
There is much talk about whether and when legal scholarship matters. In our new "Scholarship Matters" series, we'll continue to note incidents of scholarly influence on legal doctrine.
January 2, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Interpretation, Opinion Analysis, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Monday, December 30, 2013
The AALS Annual Meeting will be held January 2-5, 2014 in NYC.
The theme of the meeting is "Looking Forward: Legal Education in the 21st Century" and many events center on the current unsettled situation, which some call a "crisis," in legal education.
The full program features a number of panels with a constitutional law focus, including the program sponsored by the AALS Constitutional Law Section "The Importance of Constitutionalism" in 2 parts on Friday, and the AALS Academic Symposium "Comparative Constitutional Change: New Perspectives on Formal and Informal Amendment " in 4 parts on Sunday.
Although there are many panels that implicate constitutional issues, here's a list of panels of special interest, organized by time, with description and speakers:
Friday, January 3, 2014
8:30 am - 10: 15
The Importance of Constitutionalism: PART I
The Constitution, like the Roman god Janus, faces in two directions. One face is oriented towards the Supreme Court. The Court has long dominated how we think and talk about the Constitution. The other face of the Constitution is oriented towards ordinary citizens and towards politics. Studies of constitutionalism focus on the larger social and political structures within which the Constitution and the Supreme Court are embedded. The two panels will provide a snapshot of constitutionalism scholarship, with this first panel focused on ordinary citizens and how they help shape the meaning of the Constitution.
Moderator: M. Isabel Medina, Loyola University New Orleans College of Law
Kim Lane Scheppele, University of Pennsylvania Law School
David D. Cole, Georgetown University Law Center
Reva B. Siegel, Yale Law School
Rebecca E. Zietlow, University of Toledo College of Law
Ag-Gag Laws, Animals, Agriculture and Speech (Animal Law)
This session will examine the recent passage of laws in a number of states prohibiting undercover videos of agricultural facilities. These "ag-gag" laws, (a term coined by New York Times food writer, Mark Bittman), either make it a crime to tape animal cruelty or force photographers to turn over their images to law enforcement within 48 hours, making it very difficult (and illegal) to conduct an undercover investigation of any length and detail. This panel will discuss the constitutional, ethical and practical implications of these statutes as well as their potential impact on animal welfare.
Moderator: Susan J. Hankin, University of Maryland Francis King Carey School of Law
Tucker B. Culbertson, Syracuse University College of Law
Mr. Edward Greenberg, Esq., Edward C. Greenberg LLC
Sheila Rodriguez, Rutgers School of Law - Camden
10:30am - 12:15 pm
Stop And Frisk as a Policing Tactic: The Situation Post-Floyd (Hot Topic)
The widespread use of stop and frisk tactic by the NYPD has been the signature feature of recent policing efforts in America’s largest city, and has been a point of contention in the City for nearly two decades. These tactics are based on the proactive and intensive use of Terry stops. Over this time, stop and frisk has been credited by the city’s Police Commissioners and two Mayors with lowering the rate of violent crime. After 20 years of stop and frisk policing, New Yorkers have grown skeptical about the tactic and it has generated anger and protest in minority neighborhoods. The contentious debate over this police practice has moved center stage with the U.S. District Court decision in Floyd v. City of New York, a bench trial in which Judge Shira A. Scheindlin ruled that NYPD practices violate the Fourth and Fourteenth Amendments of the U.S. Constitution. This decision has had important political implications in the context of the recent Mayoral election and continues as a legal issue whose long-term outcome is unclear. This panel will consider the decision, its basis and its potential aftermath.
Bennett Capers, Brooklyn Law School
Jeffrey Fagan, Columbia University School of Law
Ms. Miriam Gohara, Federal Capital Habeas Project
Tom Tyler, Yale Law School
Standing in the Roberts Court (Federal Courts Section)
Issues of Article III standing loomed large over the Supreme Court’s October 2012 Term. The Court recently placed significant limits on the power of private litigants to challenge secret government surveillance programs (Clapper v. Amnesty International (2013)). And in the same-sex marriage cases, the Court had before it the power of a State to confer standing on private parties to defend state law (Hollingsworth v. Perry: Proposition 8), along with issues of legislative and executive standing (United States v. Windsor: Defense of Marriage Act). This program will explore the standing questions presented by those cases as well as other important standing rulings of the Roberts Court, such as the “special solicitude” purportedly given to states qua plaintiffs in Massachusetts v. EPA (2007). Do these cases portend a shift in the Court’s standing jurisprudence, or a continuation of prior practice?
Moderator: Gillian E. Metzger, Columbia University School of Law
Steven Calabresi, Northwestern University School of Law
Heather Elliott, The University of Alabama School of Law
Richard H. Fallon, Jr., Harvard Law School
Paul R Gugliuzza, Boston University School of Law
Vicki C. Jackson, Harvard Law School
Ann Woolhandler, University of Virginia School of Law
1:30 pm - 3:15 pm
Constitution-Making in Egypt and the Middle East: A Stalled Arab Spring or a Pathway to Democracy? (AALS Hot Topic/Bridge Program)
Recent legal events in Egypt and elsewhere in the Middle East have tempered the optimism that many legal observers felt after the Arab Spring. Drawing on that experience, the panel will offer new perspectives on the relationship between democratic revolution and constitutional foundation. Building on recent theoretical and empirical work by its participants, the panel will focus on several interrelated issues: the major risks involved in revolutionary change and in constitutional replacement; the proper design of the constitution-making process; the role of women in constitutional transitions; and the functions of domestic and international institutions in supervising democratic transitions. Panelists will highlight the ways in which recent events in Egypt and elsewhere in the Middle East challenge the conventional wisdom on what factors and actors contribute to a successful democratic transition.
Moderator: Kim Lane Scheppele, University of Pennsylvania Law School
Richard Albert, Boston College Law School
David E. Landau, Florida State University College of Law
William Partlett, Columbia University School of Law
Kristen A. Stilt, Northwestern University School of Law
Ozan O. Varol, Lewis and Clark Law School
The Right to Vote: From Reynolds v. Sims to Shelby County and Beyond (Legislation and Law of the Political Process)
Voting rights are at crossroads in the United States. Fifty years after the Supreme Court’s landmark decision in Reynolds v. Sims established the “one person, one vote” rule, there remains a fierce debate over the right to vote. Upon his reelection, President Obama called for us to “fix” the problems that many Americans still experience, subsequently creating a bipartisan commission to craft recommendations. And in 2013, the Supreme Court decided Shelby County v. Holder, striking down the Voting Rights Act’s coverage formula for preclearance.
This panel will explore the past, present, and future of the fundamental right to vote, from the “one person, one vote” doctrine, to the Voting Rights Act, to contemporary calls for election reform. Panelists will discuss the impact and implications of the decision in Shelby County, as well as the appropriate role of the federal courts in protecting the right to vote and promoting electoral competition. We will also discuss changes that Congress should consider to promote voting rights and the integrity of our democratic process. Should we continue to focus on race-conscious remedies like the Voting Rights Act? Or should we consider measures designed to improve participation and representation generally?
Moderator: Daniel P. Tokaji, The Ohio State University, Michael E. Moritz College of Law
Michael R. Dimino, Sr., Widener University School of Law
Derek T. Muller, Pepperdine University School of Law
Richard H. Pildes, New York University School of Law
Lori Ringhand, University of Georgia School of Law
Franita Tolson, Florida State University College of Law
The U.S. Supreme Court and the Press: Tensions and Trends (Mass Communication Law)
Fifty years ago, when the U.S. Supreme Court decided the landmark case of New York Times v. Sullivan, it signaled what many now see as a high-water mark in the protection of and appreciation for the role of a free press in our democracy. In the subsequent five decades, both the press and the Supreme Court have experienced significant change, and each has faced criticism for its treatment of the other.
This panel will investigate the complex dynamic between the U.S. Supreme Court and the media that reports on its work, considering trends in the Court’s depictions of the media and trends in the media’s depiction of the Court. Media scholars and members of the U.S. Supreme Court press corps will discuss the Supreme Court’s apparently declining perceptions of the press in its opinions and will compare and contrast the individual Justices’ views on the media. They will question the strengths and limitations of the Court’s current policies regarding the press; consider the as-yet rejected proposals to introduce cameras or social media in the courtroom; and investigate ways that the media could improve its coverage of the Court and enhance public knowledge of the institution and its work.
Moderator: RonNell Andersen Jones, Brigham Young University, J. Reuben Clark Law School
Keith J. Bybee, Syracuse University College of Law
Leslie Kendrick, University of Virginia School of Law
Mr. Adam Liptak, New York Times
Ms. Dahlia Lithwick, Slate Magazine
Mr. Anthony E. Mauro, National Law Journal
3:30 pm - 5:15 pm
The Importance of Constitutionalism: PART II
The Constitution, like the Roman god Janus, faces in two directions. One face is oriented towards the Supreme Court. The Court has long dominated how we think and talk about the Constitution. The other face of the Constitution is oriented towards ordinary citizens and towards politics. Studies of constitutionalism focus on the larger social and political structures within which the Constitution and the Supreme Court are embedded. The two panels will provide a snapshot of constitutionalism scholarship, with this second panel focused on whether the Constitution facilitates or undermines the goals set forth in the Preamble.
Moderator: Miguel Schor, Drake University School of Law
Randy E. Barnett, Georgetown University Law Center
Mark A. Graber, University of Maryland Francis King Carey School of Law
David S. Law, Washington University in St. Louis School of Law
Sanford Levinson, The University of Texas School of Law
Saturday, January 4, 2014
8:30 am - 10:15 am
The Cyber-surveillance Debate (AALS Hot Topic/Bridge Program)
Recent revelations about the scope of the National Security Administration’s cybersurveillance program have sparked considerable controversy both within and outside of the United States. Domestically, civil liberties advocates are concerned about the effect of cybersurveillance on individual rights. Internationally, the NSA program has been a point of contention with allies and is potentially inconsistent with international law.
This panel will provide an overview of the current controversies about cybersurveillance. Speakers will address a variety of questions that the NSA program has sparked: How can governments implement surveillance programs to achieve national security and law enforcement goals in ways that respect individual privacy? Has the program undermined U.S. foreign policy objectives? Has it affected digital commerce and international trade? What should intermediaries do when faced with requests for information about their users? How should states handle the data collected? This panel will provide an introduction to the U.S. and international laws relevant to cybersurveillance, the technological tools at issue, questions raised by the use of such tools in terms of individual rights, and the proposals currently on the table for regulation.
Moderator and Speaker: Molly Land, University of Connecticut School of Law
Anupam Chander, University of California at Davis School of Law
Anjali Dalal (Yale)
Woodrow Hartzog, Samford University, Cumberland School of Law
Gregory S. McNeal, Pepperdine University School of Law
10:30 am - 12:15 pm
Constitutional Conflict and Development: Perspectives from South Asia and Africa (Africa and Law and South Asian Studies Joint Program, Co-Sponsored by Sections on Comparative Law and Constitutional Law)
Recent times have brought extraordinary constitutional change in both Africa and South Asia. From the revolutions and constitution-building efforts in Tunisia, Libya and Egypt and the continued evolution of constitutional jurisprudence in South Africa, to efforts to stabilize legal processes through judicial review in Pakistan and expand the power of the central government in India, vast and profound constitutional changes are occurring in these regions.
This Joint Program will explore the constitutional conflict, development, change and evolution in these regions, and to assess, engage, critique and better understand constitutional changes and developments across the globe.
Moderator: Matthew H. Charity, Western New England University School of Law
Stephen J. Ellmann, New York Law School
Mr. Gedion Timothewos Hessebon, Central European University Department of Legal Studies
Manoj Mate, Whittier Law School
Dr. David Mednicoff, Ph.D., University of Massachusetts Amherst Center for Public Policy and Administration
Mr. Nathan Willis, Southern Cross University
Under the Parental Gaze in the 21st Century: Children Privacy Rights Against Their Parents (Defamation and Privacy, Co-Sponsored by Sections on Children and the Law and Family and Juvenile Law)
Electronic surveillance technology and social media have significantly changed childhood in the Twenty-First Century. The digitization and electronic monitoring of children have altered the parent-child relationship and have significant ramifications for children’s privacy. At the same time, privacy scholars’ discussion of children’s privacy has focused mainly on the privacy of children from third parties, such as companies that collect personal information on the Internet. Similarly, family law scholars have paid little attention to children’s privacy, limiting the discussion to medical decision-making, and particularly abortion decisions. Yet, few have explored whether children have a general right to privacy against their parents.
The panel will explore areas of tension involving privacy rights of children against their parents. Panelists will address, among other issues, the impact of parental electronic surveillance online and offline, such as GPS monitoring and use of software to monitor online surfing. It will also explore potential parental privacy threatening activities online, such as posting information on children on Facebook or intervening in the creation of a child online persona.
Moderator: Gaia Bernstein, Seton Hall University School of Law
Dr. Ayelet Blecher-Prigat, Sha'arei Mishpat The College of Legal Studies
Pamela Laufer-Ukeles, University of Dayton School of Law
Andrea M. Matwyshyn, The Wharton School University of Pennsylvania Legal Studies and Business Ethics Department
Paul Ohm, University of Colorado School of Law
Laura A. Rosenbury, Washington University in St. Louis School of Law
Emily Gold Waldman, Pace University School of Law
2:00 pm - 3:45 pm
Cooperating with Evil, Complicity with Sin (Law and Religion)
What does it mean for religious believers and groups to refrain from “cooperating with evil”? When does involvement with government action rise to condoning it? And who decides whether a religious objector is “participating” in and thereby "complicit" with religiously objectionable conduct? Such questions play a central role in the HHS contraceptive mandate debate but they arise in other controversies as well – ranging from religious objections to same-sex marriage to the conscience claims of pharmacists opposed to stocking or selling abortifacients.
Numerous doctrinal issues are relevant to a discussion of this problem. These include whether allegations of moral complicity satisfy the “substantial burden” requirement a RFRA or free exercise claimant must satisfy, and how courts should take attenuated causation questions into account if a substantial burden is found to exist. Other questions relate to the concern that an expansive conception of moral complicity may extend so broadly that general accommodation statutes (or constitutional interpretations) would become unacceptable in their scope and unmanageable in their operation. This panel will explore these and other problems arising from the relationship between conceptions of moral complicity and the evaluation of religious liberty claims under constitutional or statutory law.
Moderator: Alan E. Brownstein, University of California at Davis School of Law
Thomas C. Berg, University of St. Thomas School of Law
Jennifer Carr, University of Nevada, Las Vegas, William S. Boyd School of Law
Gregory A. Kalscheur, S.J., Boston College Law School
Martin S. Lederman, Georgetown University Law Center
4:00 - 5:45 pm
What Happens With the End of Al Qaeda? (National Security Law)
Given President Obama´s May 2013 address at the National Defense University, the Section discusses what changes would follow in the use of armed drones, military commissions, extraordinary rendition, etc., if the United States no longer relies on the 2001 Authorization for Use of Military Force. Speakers include reporters who cover the intelligence community and the Justice Department for major news outlets. Also joining the panel is Harold Koh, who upon retirement as the State Department´s legal advisor, provided a prelude to the President´s address.
Moderator: Afsheen J. Radsan, William Mitchell College of Law
Speaker: Ms. Carrie Johnson, National Public Radio
Harold Hongju Koh, Yale Law School
Greg Miller, The Washington Post
Eric Schmitt, New York Times
Sunday, January 5, 2014
Comparative Constitutional Change: New Perspectives on Formal and Informal Amendment (AALS Academic Symposium)
8:30 am - 10:15 am
Panel I: Constitutional Interpretation as Constitutional Change
Introductory Remarks: Richard Albert, Boston College Law School
Moderator: Professor Carlos L. Bernal-Pulido, Macquarie University Law School
James E. Fleming, Boston University School of Law
Professor Ran Hirschl, University of Toronto Faculty of Law
Samuel Issacharoff, New York University School of Law
10:30 am - 12:15 pm
Panel II: Structural Constitutional Change
Moderator: Professor Carlos L. Bernal-Pulido, Macquarie University Law School
Richard Albert, Boston College Law School
Stephen A. Gardbaum, University of California, Los Angeles School of Law
David E. Landau, Florida State University College of Law
Sanford Levinson, The University of Texas School of Law
1:30 pm - 2:45 pm
Panel III: The Forms and Limits of Unconstitutional Constitutional Amendments
Moderator: Dr. Joel Colon-Rios, Ph.D., Victoria University of Wellington
Rosalind Dixon, University of New South Wales
David E. Landau, Florida State University College of Law
Kim Lane Scheppele, University of Pennsylvania Law School
Mark V. Tushnet, Harvard Law School
3:00 pm - 5:00 pm
Panel IV: Difficulty and Rigidity in Constitutional Amendment
Moderator: Dr. Joel Colon-Rios, Ph.D., Victoria University of Wellington
Richard Albert, Boston College Law School
Thomas Ginsburg, The University of Chicago, The Law School
Vicki C. Jackson, Harvard Law School
Closing Remarks: Ozan O. Varol, Lewis and Clark Law School
Saturday, December 21, 2013
Robert J. Spitzer (SUNY Cortland) recently posted perhaps the most recent comparison of assertions of executive power in the Bush and Obama presidencies coming out of the political science world: Comparing the Constitutional Presidencies of George W. Bush and Barack Obama: War Powers, Signing Statements, Vetoes. As the title suggests, Spitzer compares the presidencies just in three dimensions. But his piece also briefly summarizes the political science literature comparing other dimensions. Here's Spitzer . . .
On war powers:
Nevertheless, in constitutional terms, Bush had the congressional authorization he needed [for the Iraq war]; Obama did not [for Libya]. Ironically, the grotesque scale of, and web of deception surrounding, the Iraqi war suggest that its precedential value for future presidents may be limited, whereas the presidential consequences of Obama's actions--another instance of an intervention without congressional approval, and the first instance of violation of the 60 day limit [in the War Powers Act]--are more likely to encourage future presidents tempted to engage in unilateral military actions.
On signing statements:
Presidents surely have interpretive latitude, especially when legislative language is vague or ambiguous, and therefore open to interpretation. This is nothing new. . . . What presidents may not do, Bush's unitary executive theory notwithstanding, is to rewrite legislation at the point at which a bill is presented for signature through signing statement in what some have called a de facto item veto. As James Pfiffner concluded, "Bush's systematic and expansive use of signing statements constitutes a direct threat to the separation of powers system in the United States." Obama has, to date, skirted, if not walked away from, this ambition, especially after the criticism of his 2009 signing statement of P.L 111-8 [directing that legislation that calls for congressional committee approval of spending decisions by federal agencies is to be treated as "advisory" and "not . . . dependent" on committee approval]. Contrary to the claim of some that Obama has assumed the mantle of a unitary president, his signing statement use to date has been comparable to, or less than that of any predecessor from Reagan on. And Bush II's signing statement use continues to keep him in a class by himself.
On protective return pocket vetoes:
Unlike the other powers discussed in this paper, the Bush and Obama protective returns were nearly identical in form, and both appeared to arise from the bowels of the "deep structure" of the executive bureaucracy rather than from top political aides seeking to expand executive authority. Here is one of the most important, if underappreciated, aspects of executive power accretion: secular bureaucratic power incrementalism. A day may come where a constitutional challenge or political flare-up may drag the protective return pocket veto into the intense lights of the legal or political stage, and where a full airing, and final disposition, of this arcane executive power grab may be vetted and resolved. Absent such a moment, however, the executive's "deep structure" will continue to advance the protective return for every subsequent chief executive.
Friday, December 20, 2013
Catharine MacKinnon Awarded Ruth Bader Ginsburg Award for Lifetime Achievement from AALS Section on Women in Legal Education
Professor Catharine MacKinnon, author of the books Feminism Unmodified and Toward a Feminist Theory of the State, as well as Are Women Human? has been announced as the recipient of the Ruth Bader Ginsburg Lifetime Achievement Award. There will be an event January 3, 2014 at the AALS Conference in NYC .
More from Feminist Law Professors here.
For those unfamilar with MacKinnon's recent work, this video from a 2011 talk at U Chicago Law School "Trafficking, Prostitution and Inequality" provides a good introduction.
Monday, December 9, 2013
Michael Avery and Danielle McLaughlin, authors of The Federalist Society: How Conservatives Took the Law Back from Liberals, write over at the ACS Blog that the Democrats' recent move to invoke the nuclear option now gives them a chance to respond to a decades-long movement by conservatives and the Federalist Society to fill the federal bench with conservative judges.
In our book, we analyze how these judges and others have responded to the arguments of Federalist Society members to move the law to the right in a variety of substantive areas. . . .
We hope the recent Senate Rules change will become an important step in restoring balance to the federal bench. We acknowledge that this rule change might eventually come back to haunt Senate Democrats. Either way, it was past time for the president and the Democrats in the Senate to realize that they have to play hardball with respect to judicial appointments.
Monday, November 25, 2013
Daily Read: Julie Goldscheid on the Constitutional and Social Problems of Violence Against "Women" (on this International Day for the Elimination of Violence Against Women)
The 25th of November is "International Day for the Elimination of Violence against Women" declared by the United Nations by a Resolution in 2000.
The resolution echoes earlier attention to the problem which it defines as including
any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.
The responsibility of governments to address private violence is one that is controversial in United States constitutional law, but so - - - and perhaps increasingly - - - is the framing of the issue with special attention to victims on the basis of gender. Isn't a focus on women violative of sex-equality, excluding not only men but transgender and gender nonconforming people?
Professor Julie Goldscheid (pictured) takes on this issue in her forthcoming article, Gender Neutrality, the “Violence Against Women” Frame, and Transformative Reform, available in draft on ssrn. Goldscheid uses framing theory to explain the benefits and disadvantages of the frame "violence against women." She discusses constitutional challenges against anti-violence legislation and regulations that codify the woman-specific lens, including one from West Virginia and California in which equal protection arguments were mounted. In West Virginia, the Supreme Court of Appeals in Men & Women Against Discrimination v. Family Protection Servs. Bd. ultimately upheld the special requirements for men. As Goldscheid describes it, the court
concluded that the rule authorizing particular rules for male victims and adult male children was “not unreasonable” given that the majority of domestic violence victims seeking shelter are women, and that the provision requiring training in historical attitudes toward women simply mandated gender-neutral instruction about the history of domestic violence and did not imply that all perpetrators are men or that women cannot be perpetrators.
To the contrary, in California the appellate court applied strict scrutiny under its state constitution to state sex-specific provisions in Woods v. Horton and found they were not justified by a compelling governmental interest and that gender-neutral alternatives were possible. However, the court did not find the state provisions unconstitutional, but, as Goldscheid explains,
the remedy was to reform the statutory provisions to provide funding to survivors regardless of gender. The court recognized that the vast majority of the programs funded under the programs already were provided on a gender-neutral basis. It also recognized that programs need not offer identical services to men and women, given the disparity in the number of women needing services. For example, the court recognized that a program might offer shelter for women, but only hotel vouchers for men.
These cases do not lead Goldscheid to advocate for a simplistic gender-neutral approach, but to argue for what she names a "modest shift" that "meets both descriptive and transformative goals, and that is sensitive to differences in context and usage."
Goldscheid's solution - - - discussed in her article - - - credits the power in naming and framing. It may be "modest," as she suggests, but it is certainly worth contemplating on this International Day for the Elimination of Violence against Women.
Monday, November 18, 2013
Daily Read: "Reassignment" by Toby Heytens (or was it so unusual that the Second Circuit reassigned the "Stop and Frisk" cases?)
As we discussed last week, in In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., the Second Circuit clarified its removal of Judge Shira Scheindlin and as to the removal of Judge Scheindlin, wrote that reassignment "while not an everyday occurrence, is not unusual in this Circuit" and in support cited nine cases from 1999 - 2011, and discussed that it occurs in other circuits.
Would that the panel had had Professor Toby Heytens' forthcoming article, simply entitled "Reassignment," available in draft on ssrn. Heytens discusses more than 650 reassignment cases and concludes that circuit courts have
exercised that power in pretty much every type of case imaginable: criminal cases and civil cases, federal question cases and diversity cases, “big” cases and “small” cases. Reassignment has been going on since 1958, but the pace seems to be quickening: more than 20% of the cases in my 55-year dataset were decided during the last five years, at a rate of a little more than one every two weeks during that span.
Although Heytens begins his article discussing a contentious 1996 case from the Second Circuit, involving District Judge Jack Weinstein of New York, he finds that it is another circuit that has by far the most reassignments. Guesses? It's the Seventh Circuit. Interestingly, the Seventh Circuit is the only one to have a circuit rule governing reassignments and thus allows for the circuit panel to simply cite the rule and not provide any rationale for the change. Depending upon one's point of view, this may have obscured the "removal" of Judge Scheindlin or it might have portrayed it as a normal procedure.
Although not focused on Scheindlin, here's what Heytens says about the possible differences:
On one hand, this may seem problematic, because it violates the intuition that public reason-giving is an important part of justifying the exercise of coercive judicial power.
On the other hand, reassignment underscores that there can be virtues in circumspection as well. Appellate court decisions have many audiences: not just the trial judges and the parties, but also other judges, future litigants, and other interested readers. Both the Seventh Circuit’s approach of ordering reassignment via an unexplained reference to a circuit rule that may not mean anything to most readers and the First Circuit’s approach of separating the reassignment order from the underlying opinion can be seen as ways of reducing the salience of the decision to order reassignment and thus make the decision feel less like a public scolding.
In the stop and frisk cases, the public scolding aspect of the Second Circuit's brief initial opinion predominated - - - at least in its reception by the public. Indeed, the revised opinion seemingly took pains to refute that interpretation.
In his conclusion, Heytens identifies the question of "whether more fine-grained methods of measuring judicial ideology reveal any interesting patterns about how appellate judges use reassignment" as one meriting further investigation. Certainly the reassignment of Judge Shira Scheindlin in the highly controversial stop and frisk cases will prove fertile ground. Moreover, the question of disciplining a judge's out-of-court activities, including those that might implicate the First Amendment, should also be added to the mix.
[image of circuit courts of appeal map via]
Thursday, October 24, 2013
As we discussed when we reported that Marc Nadon had been nominated to be the newest Justice on the Supreme Court of Canada, there existed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court.
Michael Plaxton and Carissima Mathen have made available on ssrn their excellent paper, Purposive Interpretation, Quebec, and the Supreme Court Act.
They set out the facts at the beginning of their discussion:
On 30 September 2013, the Prime Minister announced the nomination of Marc Nadon, a Federal Court of Appeal judge, to fill the seat vacated by Supreme Court Justice Morris Fish. The announcement was accompanied an unusual supporting document – an opinion by a former Supreme Court Justice, The Honourable Ian Binnie. Asked whether the Supreme Court Act permits the appointment of Federal Court judges, Binnie wrote a brief memorandum arguing that it does – a conclusion endorsed by another former Supreme Court Justice, Louise Charron, and Professor Peter Hogg. After Nadon was sworn in, a Toronto lawyer launched proceedings in Federal Court to contest the appointment. This prompted Nadon to decline to participate in court hearings until the issue is resolved. On October 22, in apparent response to these events, the federal government announced that it would introduce a “declaratory” change to the Supreme Court Act. It would also seek an advisory opinion from the Supreme Court of Canada as to whether Federal Court judges are qualified for appointment.
The Supreme Court of Canada action is now docketed here.As Plaxton and Mathen describe the "apparent interpretive problem raised by Justice Nadon’s appointment,"
Section 5 of the Supreme Court Act states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.
Ultimately, they conclude that the argument in favor of Nadon's eligibility privileges section 5 over section 6, with its purpose "to protect the authority and legitimacy of the Court in the eyes of Quebec citizens, advocates and jurists."
This controversy over eligiblity has certainly eclipsed the earlier concerns regarding Nadon's appointment contributing to the lack of gender balance and representation on the Court.
Friday, October 11, 2013
The Wayne Law Review (at Wayne State U. Law) is hosting a symposium today titled A Wave of Change: Celebrating the 50th Anniversary of Michigan's Constitution and the Evolution of State Constitutionalism.
This symposium seeks to evaluate the progress of state constitutions over the past 50 years. The symposium will also expose students, practitioners, academics, and the community to the unique and important qualities of state constitutions that are largely overlooked and undervalued.
Speakers will include national scholars on state constitutionalism as well as Michigan judges, practitioners, and community members.
Monday, September 30, 2013
Michael Hunter Schwartz, Gerald F. Hess, and Sophie M. Sparrow recently published an outstanding volume, What the Best Law Teachers Do (Harvard). As the title says, the book is a compilation of the best practices of the best teachers in our field. It should be at the top of the reading list of any law professor.
We're thrilled at the ConLawProfBlog that our own Ruthann Robson is one of just 26 professors featured in the book. (Other con-law-familiar names include Julie Nice and Heather Gerkin.) Prof. Robson is profiled throughout the book, on everything from class prep to engaging students to providing feedback and evaluation--offering plenty of best-practices for any con law prof. Check it out.
Wednesday, September 25, 2013
Monday, September 23, 2013
The folks at the Comparative Constitutions Project created an excellent new resource, Constitute, an on-line, searchable, and topic-tagged collection of the constitutions of the world. (H/t to Michael Huggins.) The site is quite user-friendly and offers a terrific and easy way to bring comparative constitutionalism into your classroom or to search for comparative provisions in world constitutions for your writing.
Constitute currently includes every constitution in force as of September this year, with plans to include a version of every available constitution written since 1789.
Saturday, September 7, 2013
From an announcement:
19th Annual Mid-Atlantic People of Color
Legal Scholarship Conference 2014
Hosted by the University of Baltimore School of Law
January 23-25, 2014
– Conference Theme & Call for Papers –
President Lyndon B. Johnson’s Great Society and Beyond:
The Historical and Contemporary Implications of Progressive Action and Human Fulfillment
Honoring and Critiquing the 50th Anniversary of Johnson’s Vision
In May 1964, President Lyndon Baines Johnson unveiled his revolutionary plans for the Great Society. As he explained it, Americans “have the opportunity to move not only toward the rich society and the powerful society, but upward to the Great Society. . . . The Great Society rests on abundance and liberty for all. It demands an end to poverty and racial injustice.”
According to Doris Kearns Goodwin, who wrote Lyndon Johnson and the American Dream, Johnson’s Great Society would be based on “progressive action” and the “possibilities for human fulfillment.” This action and fulfillment meant that regaining control of our society required us to end policies that threatened and degraded humanity.
Johnson’s Great Society reforms, included the Voting Rights Act of 1965, Medicare, Medicaid, Equal Opportunity Act, Elementary and Secondary Education Act, Social Security expansion, the Earned Income Tax Credit, the Higher Education Act, Head Start, the Civil Rights Act of 1964, the Housing and Urban Development Act of 1965, and the Open Housing Act of 1968. These laws extended and expanded the Bill of Rights and continued and expanded the programs initiated in Roosevelt’s New Deal of the 1930s and Truman’s Fair Deal in the late 1940s and early 1050s. As a result of LBJ’s programs, America’s official poverty rate declined throughout the 1960s, reaching a low of 11.2 percent in 1974, down from 19 percent in 1964, and most recently settling at 15.1 percent in 2010. According to Dylan Matthews, who wrote Poverty in the 50 Years Since ‘The Other America,’ in Five Charts, Johnson’s Great Society programs, which included the War on Poverty, “made a real and lasting difference.” Moreover, according to Demos, an estimated 40 million Americans avoided official poverty due to such programs as food stamps and Medicaid.
Unfortunately, what is also true is that the Vietnam War, which Johnson escalated and only at the end of his administration moved to end, crippled his domestic economic policies and undermined his goals for true racial equality. Despite the War on Poverty and dramatic changes in Civil Rights, racially concentrated poverty remains with us. Since the Johnson years, America has weathered the recessions of the 1980s and early 1990s, the late ‘90s dot com bubble, our current recession, the national security encroachment on civil liberties, the rise and fall of the Occupy Movement, the waning of the Arab Spring, and two middle east wars since 9-11.
It is clear that Johnson’s Great Society programs have saved millions of Americans from the depth of official poverty. It also true that Johnson’s vision, to which he was truly committed, staggered and failed when the civil rights movement dovetailed with political marginalization, economic inequality, pervasive racial discrimination, and imperialist policies. The Moynihan Report, the Watts Riots and urban unrests, and the emotional and financial suck of Vietnam prevented Johnson from deeply redressing America’s lingering poverty.
At MAPOC 2014, we intend to explore the furthest implications of President Johnson’s domestic and foreign policies, especially the impact of these policies on progressive action and human fulfillment, as we collectively explore and analyze the contemporary implications of Johnson’s Great Society. From these implications, the conference planning committee is seeking papers and panel proposals on the following substantive but not exhaustive subjects:
-- A Hand Up: The Meaningful Tension Between Formal Equality and Substantive Outcomes under the Civil Rights Act of 1964
-- Beyond Legislative Bogs and Dangerous Political Animals: President Obama’s Legislative Agenda and the Limits of Second-Term Progressivism
-- Endangered Citizens?: Rights and Remedies after State v. Zimmerman
-- Equality, Choice, and Happiness: the Rise and Fall of DOMA
-- Guns or Butter: Social Welfare Programs, Modern Problems of Central Banks, Debt Slavery, and Foreign Policies
-- Medicare, Healthcare, and Welfare: the Poor, the Elderly, and the Needy
-- Moynihan and the Contemporary (In)Stability of the Black Family
-- Racial (Dis)Harmony Then and Today
-- Voting Rights: Shelby County v. Holder and the Promise of One Citizen, One Vote
Paper submissions must include a working title, bios, abstract, and contact information.
Panel proposals must also include the foregoing information for each of the panel’s participants, and the organizer’s contact information, all of which must be submitted together only by the organizer.
Submit Papers and Panel Proposals by September 30, 2013 to: Reginald Leamon Robinson, Howard University, Conference Chair and Founder, MAPOC 2014: email@example.com.
[image: LBJ, National Portrait Gallery, via]
September 7, 2013 in Conferences, Elections and Voting, Equal Protection, Family, Federalism, Fundamental Rights, Gender, Race, Recent Cases, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)
Tuesday, August 27, 2013
The Feminism and Legal Theory Project at 30: A Workshop on Sex and Reproduction: From Privacy and Choice to Resilience and Opportunity?
EMORY UNIVERSITY SCHOOL OF LAW
November 15-16, 2013
more information here
Friday, November, 15th
3-4 pm RECEPTION IN MACMILLAN LAW LIBRARY (location TBA)
Celebrating the formal opening of the Catherine G. Roraback (pictured in watercolor left) Archive at Emory Law School .The workshop will be dedicated to Katie and her pioneering work on behalf of reproductive rights and justice.
Amy Kesselman (SUNY New Paltz), Vanessa King (Emory University School of Law)
4:30 - 6:30 pm History of Sex and Reproduction
Bleeding Across Time: First Principles of US Population Policy | Rickie Solinger
Women versus Connecticut: Insights from the Pre-Roe Abortion Battles | Amy Kesselman (SUNY New Paltz)
Sex, Drugs, Rock and Roe: Ammi Rogers and the Legal History of Anti-Abortion Norms | Lolita Buckner Inniss (Hamilton College, Cleveland Marshall College of Law)
6:30 - 8 pm DINNER
Saturday, November 16th
8:30 - 9:00 am CONTINENTAL BREAKFAST
9:00 - 11:30 am Discourses Surrounding Sex and Reproduction Issues: Law, Religion and Medicine
Medical, Scientific, and Public Health Evidence in Supreme Court Jurisprudence: Reimagining the Feminist Health Movement | Aziza Ahmed (Northeastern University School of Law)
Abortion Law and Medical Practices | Sheelagh McGuinness (School of Law, University of Birmingham) and Michael Thomson (School of Law, University of Leeds)
The Role of 'Nature' in Debates about Sex and Reproduction | Sean Coyle (School of Law, University of Birmingham)
Abortion Liberalization Policies around the World: Hidden Differences in the Diffusion Process | Elizabeth Heger Boyle (University of Minnesota), Minzee Kim (Ewha Women's University, South Korea), and Wesley Longhofer (Goizueta Business School, Emory University)
(University of Florida)
11:30 am - 12:30 pm LUNCH
12:30 - 2:45 pm Feminist Discourses: Sex, Reproduction and Choice
Infertility, Adoption, Alternative Reproduction, and Contemporary Legal Theory | April L. Cherry (Cleveland-Marshall School of Law)
Reproductive Rights and the Right to Reproduce: Is there a Place for the Non-Marital Mother? | Twila L. Perry (Rutgers University School of Law-Newark)
Choices Under the Shadow of Population Policy: Compuslory motherhood Challenged and Remade in Taiwan (1970s-2000s) | Chao-ju Chen (National Taiwan University)
Testing Sex: Non-invasive Prenatal Genetic Testing and Sex Selection | Rachel Rebouche (University of Florida, Levin College of Law)
3:00 - 5:15 pm Regulating Sex and Reproduction
Markets and Motives for Sex and Reproduction | Mary Ann Case (University of Chicago Law School)
A Fiduciary Theory of Health Entitlements | Margaux Hall (Columbia Law School)
Schrodinger's Child: Identity and Non-Identity in Reproductive Decision-Making | Jennifer S. Hendricks (University of Colorado Law School)
Procreative Pluralism | Kimberley Mutcherson (Rutgers Law School, Camden)
Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.
Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington." Ellis states, "the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done." Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the cover of apathy, spurred by the myth of post-racialism and the supposed fear of constitutional overreach."
And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor. However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material." Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General. The NPR story has a link to the FBI archive on King.
August 27, 2013 in Affirmative Action, Books, Current Affairs, Executive Authority, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Scholarship, Theory, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)
Wednesday, August 21, 2013
ConLawProfBlog's own Prof. Ruthann Robson (CUNY) recently appeared on NPR's The Diane Rehm Show to talk about her fascinating new book Dressing Constitutionally (Cambridge) with Steve Roberts. The Show's page, linked here, contains the audio, a transcript, a summary, a selection from the book, and many comments.
Tuesday, August 13, 2013
ConLawProf's own Ruthann Robson (CUNY) just published her fascinating new book Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes (Cambridge, also available at amazon.com). NPR's All Things Considered has a segment here; the Feminist Law Professors blog covered it here; and Robson's SSRN page for the Introduction and Table of Contents is here.
We'll post an interview with Robson soon. In the meantime, take a look at Robson's book blog, dressingconstitutionally.com. And here's the abstract from SSRN:
The intertwining of our clothes and our Constitution raise fundamental questions of hierarchy, sexuality, and democracy. From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices. In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations. Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality. At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies. Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade. The regulation of what we wear -- or don't -- is ubiquitous.
Thursday, July 11, 2013
Should a for-profit corporation have free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment as the en banc Tenth Circuit held in Hobby Lobby, Inc. v. Sebelius?
Hamilton ultimately contends that RFRA, at least as interpreted by the Tenth Circuit, is unconstitutional under the Establishment Clause in that it means that "large for-profit employers, who may not discriminate in hiring based on religion, can still coerce their employees into following their religious beliefs."
Hamilton's even larger argument, however, involves the relationship between religion and capitalism in our constitutional democracy. Assume, she argues, that Hobby Lobby and similar companies
assert that they don’t mind losing money from those who don’t share their religious beliefs. Or to put it another way, they really only want business from those who share their religious beliefs. That is the slippery slope on which the Tenth Circuit has set free exercise reasoning.
That isn’t capitalism, which, when working as it should, is driven by the quality of products and competition on price, regardless of the political or religious beliefs of the producer and purchaser. It is Balkanization, and a first step on the path to the religious wars we in the United States have avoided so far.
Yet perhaps the owners of Hobby Lobby is not anticipating that consumers will actually know that it is an entity with specific religious beliefs rather than simply a store selling sequins?
Whatever the beliefs of the owners of Hobby Lobby, however, Hamilton's column is a must read on the contentious issue of recognizing religious freedoms of for-profit companies.RR
Monday, July 8, 2013
It's summer in North America and that means scholarship-time for legal academics. No matter what the subject of your in-progress/forthcoming/almost finished article, take time to read a brief essay by Ronald Collins and Lisa Lerman, Disclosure, Scholarly Ethics, and the Future of Law Reviews: A Few Preliminary Thoughts By Ronald K.L. Collins & Lisa Lerman, 88 Wash. L. Rev. 321 (2103), available here.
They argue that your author's footnote might need a bit of expansion to disclose any direct or indirect compensation or involvement in your subject. Disclosure is not the norm in law reviews, especially when it comes to academics as opposed to practioners. The comparison is even more stark when it comes to the practices in other disciplines.
But their suggestion, if rare, is hardly new. Indeed, they quote from the AALS "Statement of Good Practices by Law Professors in the Discharge of their Ethical and Professional Responsibilities":
A law professor shall disclose the material facts relating to receipt of direct or indirect payment for, or any personal economic interest in, any covered activity that the professor undertakes in a professorial capacity . . . . Disclosure of material facts should include: (1) the conditions imposed or expected by the funding source on views expressed in any future covered activity and (2) the identity of any funding source, except where the professor has provided legal representation to a client in a matter external to legal scholarship under circumstances that require the identity to remain privileged under applicable law. If such a privilege prohibits disclosure the professor shall generally describe the interest represented.
And, perhaps less surprising perhaps, it's something Justice William O. Douglas recommended almost half of a century ago.
They provide some scintillating examples worth consideration. These might make you reflect not only on your own ethical responsbility to disclose, but perhaps also upon the missing disclosures in sources upon which you rely, as in the Second Amendment area which we discussed.
And it is certainly worth passing on to your school's law review editors.
Tuesday, July 2, 2013
Last Term's opinions - - - especially its opinions regarding the constitutionality of the VRA in Shelby, of DOMA and Prop 8 in Windsor and Perry, and of UT's affirmative action plan in Fisher - - - continue to spark debate and commentary. As well they should. But much of our discussions focus on individual Justices: Is Justice Kennedy the "first gay Justice?" Is Justice Alito really rude? Is Chief Justice Roberts playing a "long game?" And what about the tumblr "Notorious R.B.G.? Or @SCOTUS_Scalia, a twitter account?
In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity, available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms. Their first proposal:
Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.
They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."
Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals. Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge. Although who would have standing? And what about recusal?
[image DonkeyHotey via]
July 2, 2013 in Affirmative Action, Cases and Case Materials, Congressional Authority, Courts and Judging, Current Affairs, Elections and Voting, Equal Protection, Gender, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)