Friday, April 25, 2014
As we explained when certiorari was granted in Lane v. Franks, the case involves a public employee's First Amendment rights in the context of retaliation and raising questions about the interpretation of Garcetti v. Ceballos. My preview of Monday's oral argument is at SCOTUSBlog here.
The Brief of Law Professors as Amici Curiae in Support of the Petitioner, the employee Edward Lane, available on ssrn, advances two basic arguments.
The first argument is essentially that the Eleventh Circuit's opinion was a clearly erroneous expansion of Garcetti to include Lane's subpoened testimony in a criminal trial. Here's an especially trenchant paragraph:
But the Garcetti Court took great pains to distinguish Mr. Ceballos from Mr. Pickering [in Pickering v. Board of Education (1968)], who spoke about what he observed and learned at his workplace and identified himself as a teacher in doing so, and Ms. Givhan [in Givhan v. Western Line Consolidated School District (1979)], who spoke to her own supervisors about what she observed at her workplace and did so while at work. Neither of these employees could have prevailed if any speech they would not have made but for their employment were excluded from the First Amendment’s protections. The sole fact distinguishing Mr. Ceballos from these other two defendants was that neither Mr. Pickering nor Ms. Givhan was required by their employment contracts to engage in the speech for which they were punished. Petitioner was not required by his job duties to testify in court, so his speech is as protected as Ms. Givhan’s and Mr. Pickering’s.
(emphasis in original). There are similar arguments in the merits briefs, but advancing this doctrinal clarity in the law professors' brief is not misplaced, given that the Eleventh Circuit's summary opinion had so little specific analysis.
Perhaps more common to an amicus brief are the policy arguments raised here regarding the importance of protecting testimony by public employees from retaliation by their government employers. The brief's "judicial integrity" argument seeks to draw an interesting parallel, arguing it is
crucial that public employees be able to speak freely and truthfully about government malfeasance so that the judicial process is not distorted. Distortion of the litigation process occurs when public employees do not feel free to testify in various legal proceedings for fear of losing their jobs. This Court expressed analogous concerns in Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), where the Court struck down as violative of the First Amendment a federally imposed restriction prohibit- ing Legal Services Corporation (“LSC”)-funded attorneys, as a condition of the receipt of federal funds, from challenging the legality or constitutionality of existing welfare laws. . . . No less than in Velazquez, “[t]he restriction imposed by the [lack of protection for public employee testimonial speech] threatens severe impairment of the judicial function.” Id. at 546.
The brief argues in favor of a bright line rule that testimony is "citizen speech" and thus protected by the First Amendment. Whether the line should be so bright might be a topic at oral argument given the arguments in the other briefs.
The named authors of the law professors brief, ConLawProfs Paul Secunda, Scott Bauries, and Sheldon Nahmod, and the signatories, provide a terrific model of "engaged scholarship" and advocacy, and all in approximately 25 pages.
Tuesday, April 15, 2014
Drew Cohen recently published A Constitution at a Crossroads: A Conversation with the Chief Justice of the Constitutional Court of South Africa in the Northwestern Journal of International Human Rights. The interview covers transformative constitutionalism (including judicial transformation and the role of judges) and current constitutional issues in South Africa, with some background and context for the uninitiated. It's a terrific piece on the current and future state of South African constitutionalism; it has some gems on comparative constitutionalism, as well.
Here's a clip of the Chief Justice's response to Cohen's question whether South African judges should be "umpires":
Given our background and our Constitution, judges do not have the luxury to sit back and pretend that we do not have serious challenges, which can be addressed through a passive justice system. I do not think we can afford to be the type of umpires Chief Justice Roberts had in mind.
Whatever we, as judges, do must facilitate nation-building so far as the case makes it possible by actively addressing the socioeconomic challenges that still confront certain sectors of the community as well as addressing the position of women in every sector of our society. Whereas that may not be feasible for judges in the U.S., it must [be the case] in South Africa. We have a different set of challenges that require judges to be somewhat proactive in the manner in which they approach their judicial responsibilities.
On the use of foreign law:
Once our jurisprudence gets settled, once it gets to the point that everyone can say that it is fairly well developed, there will be very little reason to rely as much as we used to on the jurisprudence of other countries. With that said, obviously, we will still need to have some regard to the latest developments in comparable jurisdictions. This is particularly true with regards to the area of socioeconomic rights and property law.
On closing the gap between reality and an aspirational Constitution:
What the Court can do, however, is interpret the Constitution in a manner so as to ensure that every official who has a constitutional responsibility to close that gap . . . are held accountable.
I think that the Court, however, has done fairly well in its efforts to close that gap. Look at our judgments dealing with socioeconomic rights[,] . . . health issues[,] . . . housing[,] . . . natural resources . . . .
On the next big issues:
The next major court battles will involve the agricultural sector. If you look at the agricultural sector then you will realize that a very large percentage of commercial farmers are still those from the previously advantaged group . . . . For the few [previously disadvantaged] that have received land through the government's redistribution system, it does not look like enough was done to empower them to be able to use the land productively. So, I think a lot needs to be done in the area of land redistribution but this must occur in a very, very slow and careful process.
Wednesday, April 9, 2014
Northwestern University Law School just wrapped up its 2013-2014 colloquium series on Constitutional Design in the Muslim World--an outstanding series of presentations convened by Profs. Erin Delaney and Kristen Stilt. The program's web-site contains a list of presenters with links to their papers, videos of presentations, links, and a blog. Check it out.
Monday, April 7, 2014
"The amount of data available to law enforcement creates a type of honey pot—a trap that lures and tempts government to use data without limits." What should the constitutional limits be? And what is their source? In a new article, Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding, available on ssrn (and forthcoming in Notre Dame Law Review) Law Prof Deven Desai (pictured) argues that constitutional protections for association - - - rooted in the Fourth Amendment as well as the First - - - is a method for disciplining governmental access to both forward and backward-looking surveillance in our current age of "data hoarding."
The mechanisms for information gathering have taken different forms at different times in history, but regardless of the precise method or when the acts occur, we can see the goal: suppression of association. Mail has been read, student speech and political actions watched, library records obtained, membership in the Communist Party scrutinized, a list of individuals to detain in case of a national security emergency created, a fifteen year program to gather information about “the Communist Party, the Ku Klux Klan, antiwar groups, civil rights groups, women’s rights groups, and gay rights groups” created, and civil rights leader Martin Luther King threatened depending on various perceived threats and surveillance programs. These practices now include the FBI’s gathering of publicly available information “directly,” through third parties, or if handed over “voluntarily” by third parties. The NSA’s recent activities map to the same behaviors that threaten and attack associational freedom. The NSA has targeted online activities of alleged Muslim radicalizers—those who offer troubling speeches—to secure information, such as about viewing pornography online, to discredit or embarrass the speakers. That tactic is not about law enforcement. Just as those in power have gone after the Democratic-Republican Societies, war protestors, civil rights activists, and others questioning the government, the tactic is about intimidation and suppression. One might try and argue that all this activity is only for national security and anti-terror investigations and thus permitted under current laws. But NSA activities have not been cabined to national security interests. The NSA is not allowed to spy on domestic targets. It has done so anyway. The NSA’s “Associational Tracking Program” has collected purely domestic communication information including from and to whom a call is made, the length of the call, and when the call is made, on a daily basis for later analysis by the NSA. This data has come directly from telecommunication providers such as Verizon, which complied with a court order. 165 In addition, the NSA has hacked telecommunication lines to gain access to communications and metadata passing through Google and Yahoo data centers.
Ultimately, Desai contends that "pervasive surveillance turns us into sheep." But the First Amendment has not been sufficient to protect against surveillance because a "mypoic" view of the First Amendment as requiring expressive speech misses the associational aspects at stake. Additionally, the associational aspects of the Fourth Amendment are often neglected, but should be considered "core."
Given the continuing revelations about widespread surveillance, Desai's intervention and suggested reorientation of doctrine is certainly worth a serious read.
Sunday, April 6, 2014
In her article "An Imminent Substantial Disruption: Towards a Uniform Standard for Balancing the Rights of Students to Speak and the Rights of Administrators to Discipline" (forthcoming in Dartmouth Law Journal; available in draft on ssrn), Allison Kort (pictured) revisits the problems and issues with the landmark 1969 First Amendment case of Tinker v. Des Moines Independent Community School District.
Kort argues that courts "frequently make an end run around Tinker by deferring to the school board on the “reasonableness” of the school’s action, or deciding these cases on the basis of the speech’s content," even as neither "students nor school officials enjoy clear awareness of students’ rights to free speech and expression, and students are subject to personal opinions of the school boards."
Certainly Kort's contention is demonstrated by cases such as B.H. v. Easton Area School District (the "I heart boobies bracelet" case) in which a divided Third Circuit en banc held the students had First Amendment rights and the United States Supreme Court denied certiorari. It's also illustrated by the Confederate flag wear cases, with the United States Supreme Court likewise recently denying certiorari. And Mary Beth Tinker, who is "on tour" encouraging students to exercise their First Amendment rights would undoubtedly agree that there needs to be more awareness.
Kort's solution is a revitalization of Tinker, so that courts actually apply Tinker (rather than its progeny - - - Fraser, Hazelwood, and Morse - - - that "chip away" at Tinker) and to apply the "substantial disruption" standard to mean a "imminent danger that a compelling state interest will be violated."
While not all school speech cases involve attire and grooming regulations, a substantial portion do. Kort's article will therefore be of special interest to advocates and scholars working in the continuing and contentious field of student dress codes and "dressing constitutionally."
Friday, April 4, 2014
Published on the same day that the Court rendered its 5-4 decision in McCutcheon v. Federal Election Commission, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment is an ebook by ConLawProfs Ron Collins and David Skover.
A taste of the authors' analysis is apparent in their "foreward" to the SCOTUSblog symposium on the case, "It's all forward now." They write that in "the past eight years, since Chief Justice John Roberts and Justice Samuel Alito have been on the Court, the Justices have handed down six First Amendment campaign finance opinions" all of which have declared a campaign finance regulation unconstitutional under the First Amendment, and five of which were 5-4 decisions. They also provide some "takeaways" from the opinion.
The book will certainly be a must-read for anyone interested in campaign finance and the First Amendment.
Monday, March 31, 2014
Loyola University Chicago School of Law has announced its Fifth Annual Constitutional Law Colloquium, set for November 7 and 8, 2014. This is an outstanding national colloquium--a terrific opportunity to present, discuss, and get feedback on your work--that just keeps getting better and better.
Registration is open until June 16, 2014. Organizers will select abstracts (150 to 200 words) on a rolling basis and hope to include all who submit. (Of course, you can attend without presenting.)
Here's the official announcement:
Loyola University Chicago School of Law is organizing a Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.
This is the Fifth Annual Loyola colloquium and brings together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. We hope to schedule presentations for all who submit. In this way, we will provide a forum for the vetting of ideas and invaluable opportunities for informed critiques. Presentations will be grouped by subject matter.
The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millenium Park, the Chicago Art Institute, and Chicago Symphony Center.
Participants are expected to pay their own travel expenses. Loyola will provide facilities and support.
There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.
There's more information at the Colloquium web-site, or contact the organizers or the Administrator:
Professor Barry Sullivan, Cooney & Conway Chair in Advocacy, email@example.com
Professor Alexander Tsesis, firstname.lastname@example.org
Professor Mike Zimmer, email@example.com
Program Administrator Heather Figus, ConstitutionLaw@luc.edu
Thursday, March 27, 2014
In a review in this week's New Yorker, John Cassidy makes the case that the new book by Thomas Piketty, Capital in the Twenty-First Century, is one that "nobody interested in a defining issue of our era can afford to ignore."
This defining issue is economic inequality. Piketty's book, translated from the French and published by Harvard University Press, is an examination of the phenomenon as well as a proposal for remediation.
The proposal is a "wealth tax." Perhaps that's a "political nonstarter" as Cassidy suggests and as Piketty seemingly acknowledges. But perhaps it's not.
Monday, February 24, 2014
The University of La Verne College of Law will host a symposium this Friday, February 28, titled Brown v. Board of Education at 60: Cause Lawyering for a New Generation. Conlaw Prof. F. Michael Higginbotham (U. Baltimore) will deliver the keynote. Registration and more information is here.
Sunday, February 9, 2014
Given that the extant constitutional rights have proven ills-suited toward recognizing the rights of homeless persons (even to have a blanket or to be fed), Professor Sara Rankin's article, "A Homeless Bill of Rights (Revolution)," available in draft on ssrn, is an important look at state constitional efforts. Rankin surveys current efforts to advance homeless bills of rights in nine states and Puerto Rico, concluding that such efforts are likely to have more of an incremental social impact than any immediate legal impact.
Homeless bills of rights present an important opportunity to impact American rights consciousness. The emergence of these new laws may encourage housed Americans to confront—and perhaps one day, overcome—our persistent, deeply-rooted biases against the homeless. Regardless of whether homeless advocates’ ideal provisions are enacted, enforced, or implemented in the near future, even modest versions of these new laws can stake an important claim in the movement building process. After all, the U.S. Declaration of Independence and the Bill of Rights remained dormant and aspirational for years after their enactment, but like all declarations of fundamental rights, these documents set crucial goals for society to achieve over time.
Certainly, however, such laws would counteract the increasing "ciminalization" of homelessness that she discusses:
Of 234 cities surveyed by the National Law Center on Homelessness and Poverty (NLCHP), 53 percent prohibited begging or panhandling in public places, 40 percent prohibited camping in public places, and 33 percent prohibited sitting or lying down in public places. These laws authorize police to perform “sweeps” to clear public areas of homeless people. Police sweeps often result in the confiscation and destruction of personal belongings, including identification, documentation, medications, and other property of sentimental value.
Rankin's article is an important read for anyone considering the constitutional parameters of addressing homelessness.
Sunday, January 26, 2014
Recall that in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.
Cohn notes that the judges' differing opinions rest from their differing interpretations of Smith v. Maryland. But Cohn goes further, providing a swift description the Fourth Amendment terrain, especially the Court's 2012 decision in United States v. Jones in which a 5-4 majority found that attachment of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy.
Cohn concludes that Judge Leon's opinion is better reasoned than Judge Pauley's, noting that while "Leon's detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones Court did not overrule Smith."
But she, like many others, thinks the issue is ultimately headed to the United States Supreme Court.
Unless, of course, President Obama acts quickly to revise the program.
Friday, January 24, 2014
In its overdue opinion in The Evergreen Association, Inc. d/b/a Expectant Mother Care Pregnancy Centers v. City of New York, a divided panel of the Second Circuit ruled that only one of the three major provisions of NYC's Local Law 17 seeking to mandate disclosures by pregnancy crisis centers was constitutional.
Recall that in July 2011, a federal district judge enjoined all of Local Law 17 finding that the disclosure provisions did not survive strict scrutiny under the First Amendment, and the Second Circuit heard oral arguments in the appeal 16 months ago. Meanwhile, the Fourth Circuit considered two similar laws seeking to compel disclosures by pregnancy crisis centers, issuing two en banc opinions in 2013. The en banc Fourth Circuit in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore reversed the granting of a preliminary injunction finding fault with the application of the summary judgment standard by the district judge. The en banc Fourth Circuit in Centro Tepeyac v. Montgomery County, 722 F.3d 184 (4th Cir. en banc), affirmed a finding that one of the mandated disclosures was constitutional and the other was not.
The underlying problem that the local laws intended to address is the existence of "crisis pregnancy centers" that arguably appear to be medical offices but are anti-abortion counseling centers. The solutions that the local laws proposed were various "disclosures" by the centers. In the case of Local Law 17, the disclosures were three:
- whether or not they have a licensed medical provider on staff (the “Status Disclosure”);
- whether or not they provide or provide referrals for abortion, emergency contraception, or prenatal care (the “Services Disclosure”);
- that “the New York City Department of Health and Mental Hygiene encourages women who are or who may be pregnant to consult with a licensed provider” (the “Government Message”)
The Second Circuit upheld only the first, the "Status Disclosure."
The Second Circuit's opinion declined to decide whether the disclosures merited strict scrutiny or the lesser standard of intermediate scrutiny, stating - - - not altogether convincingly - - - that its conclusions were the same under both standards.
The panel opinion did find that the government had a compelling interest for Local Law 17 and thus for all three disclosure provisions: protecting public health and protecting a woman's access to reproductive health care. But the panel found that only the status disclosure was "sufficiently tailored" to these interests. In finding that the status disclosure was narrowly tailored, this certainly met both strict and intermediate scrutiny standards.
As to the services disclosure, the panel considered the "context" of the mandated disclosure regarding whether the facility provides or provides referrals for abortion, emergency contraception, or prenatal care to be the "public debate over the morality and efficacy of contraception and abortion." Given this context of "public issues," the burden to justify the compelled speech is high. Not surprisingly, the panel found that the mandated services disclosure did not survive. However, the intermediate scrutiny analysis is less satisfying. Here's the entirety of the analysis:
Finally, we consider whether a different answer would obtain under intermediate scrutiny, which looks to whether the regulation at issue is not more extensive than necessary to serve a substantial governmental interest. While it is a closer question, we conclude that it would not, considering both the political nature of the speech and the fact that the Status Disclosure provides a more limited alternative regulation.
The panel's analysis on the government speech analysis is less explicit regarding the standard of review, emphasizing that the government message could be conveyed in many different ways.
In addition to the specific disclosures, the district judge had found that Local Law 17's definition of "pregnancy services centers" was unconstitutionally vague; a conclusion with which the Second Circuit panel majority disagreed. However, dissenting in part, one judge would have found all three provisions unconstitutional, arguing that the law is a "bureaucrat’s dream" containing "deliberately ambiguous set of standards guiding its application, thereby providing a blank check to New York City officials to harass or threaten legitimate activity."
The Second Circuit opinion largely agrees with the 2013 en banc Fourth Circuit's Centro Tepeyac v. Montgomery County, but the constitutional doctrine remains unclear. Given the complexities, and judicial decisions upholding other mandated disclosures in the reproductive rights realm, this remains a great subject for some scholarly intervention.
Monday, January 13, 2014
The United States Supreme Court in Zablocki v. Redhail (1978) held unconstitutional a Wisconsin state statute requiring judicial permission for a marriage license for any person who had a support order for a minor.
The opinion, authored by Justice Marshall, considers the case as one of equal protection and opines that
our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required.
The Court also states that more recent decisions "have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause," citing Griswold v. Connecticut.
Thus, although not as famous as Loving v. Virginia, Zablocki v. Redhail is also frequently cited in any argument that marriage is a fundamental right, notwithstanding the Court's qualification in Zablocki that "not every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny," but only ones that interfere directly and substantially with the right to marry.
In a new essay, Chronicle of a Debt Foretold: Zablocki v. Red Hail, by Tonya L. Brito, R. Kirk Anderson and Monica Wedgewood, forthcoming in The Poverty Law Canon and available on ssrn, the authors revive the importance of the wealth inequality relevance of the case and also reveal a racial aspect. Redhail, whose name is actually Roger Red Hail, is a Native American man, now in his late 50s, who still owes child support for the child he fathered when he was 16. Although the "child" is now in her 40s, he owes the money to state (with interest) and the state continues to garnish his wages.
There is a possibility that Red Hail's pending child support cases now under the jurisdiction of Milwaukee County would be transferred to the Oneida Tribal Judicial System.
The essay is a must-read for anyone considering the constitutional ramifications of equality or marriage.
January 13, 2014 in Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, History, Reproductive Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)
In brief, the answer it proposes is "no."
The report is authored by Peter Bergen, David Sterman, Emily Schneider, and Bailey Cahall. As Cyrus Farivar over at Ars Technica points out, the lead author Peter Bergen is well known as "a journalist and terrorism analyst who famously interviewed Osama bin Laden for CNN in 1997."
The report confirms federal District Judge Richard Leon's statement in his opinion in Klayman v. Obama that "the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature." (emphasis in original). Recall that Judge Leon issued a preliminary injunction against the surveillance, although he then stayed it.
Recall also that another federal district judge dismissed a complaint raising essentially the same issues a week later in American Civil Liberties Union v. Clapper.
With President Obama evaluating the NSA surevillance program including the Recommendations from President's NSA Surveillance Review Group and with the question of whether the NSA's surveillance extends to members of Congress being asked, this newest report deserves to be read closely. If there is a balance to be struck between security and liberty, the efficacy of the security measures are certainly relevant.
Friday, January 3, 2014
In his piece provocatively titled "Yes, Virginia, judges do read those law reviews, after all," Stephen Diamond discusses ConLawProf Nancy Leong's article, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream, 64 Fla. L. Rev. 305 (2012) available on ssrn, as used by concurring judge Andre Davis in United States v. Mubdi, 691 F. 3d 334 (4th Cir. 2012).
Diamond situates Leong's work in the general controversy about legal scholarship as well as more specifically in discussions about Nancy Leong (pictured) and her work. Leong's own worth-reading interventions over at Feminist Law Professors Blog are definitely worth a read. As is Diamond's post.
He writes: "Ironically, some of the very phrases cherry picked by the law school critics to undergird their view that Professor Leong was simply engaged in navel-gazing in “Open Road” were the ones relied on by Judge Davis in his opinion."
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.