July 12, 2012
Constitutional Liability for Penn State?
The doctrine of DeShaney v. Winnebago is a harsh one. As the Fifth Circuit recently noted: "The law yesterday and today is bare and bald: No DeShaney special relationship exists between a public school and its students. Absent a special relationship, any analysis of the defendant’s conduct as deliberately indifferent to the rights of the student is, under DeShaney, irrelevant."
Yet today's Freeh Group Report may test the limits of DeShaney. The just released report, available on Larry Cata' Backer's Penn State Faculty Senate Blog, details the events at Penn State that eventually led to the arrest and convicton of coach Jerry Sandusky for sexual abuse of ten children. The focus would not necessarily be on the university officials "failure to report" but on the "special relationship" that university officials fostered.
[image: Penn State Nittany Lion mascot via]
April 20, 2012
Federal Cockfighting Prohibition Survives Commerce Clause and Equal Protection Challenge
The animal fighting statute provides "it shall be unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture" and defines an "animal fighting venture" as
any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment . . . .
The Fourth Circuit opinion in Gilbert, however, had "no difficulty concluding that Congress acted within the limitations established by the Commerce Clause in enacting the animal fighting statute." Writing for a unanimous panel, Judge Barbara Milano Keenan stated that there was "a substantial relation to interstate commerce," unlike the statutes invalidated in United States v. Lopez (1995) and United States v. Morrison (2000). Extensively discussing Congressional findings and legislative history, she concluded that "the link between animal fighting ventures and its effect on interstate commerce is not attenuated."
Rather, the link is direct, because animal fighting ventures are inherently commercial enterprises that often involve substantial interstate activity. Thus, in contrast to the statute at issue in Lopez, there is no need to "pile inference upon inference" in order to establish the link between animal fighting and interstate commerce.
In sum, our task is simply to determine, with a presumption of constitutionality in mind, whether there is a rational basis for concluding that the practice of animal fighting, when conducted for "purposes of sport, wagering or entertainment," substantially affects interstate commerce.
The opinion rejected the argument that a defendant required scienter regarding the affect on interstate commerce, an argument that was expanded in the companion case of Lawson.
In Lawson, the defendants/appellants added to the Commerce Clause argument an argument pursuant to the Fifth Amendment's equal protection component. The focus was on the varying scienter requirements depending upon state law. Under the animal fighting statute, if a defendant lives in a jurisdiction where gamefowl fighting is legal under the laws of that jurisdiction, the government must prove as an additional element of the offense that the defendant knew that at least one bird in the fighting venture traveled in interstate or foreign commerce. In contrast, if a defendant lives in a jurisdiction that prohibits gamefowl fighting, the government need only prove that the defendant sponsored or exhibited an animal in an animal fighting venture, irrespective whether the bird traveled in interstate or foreign commerce.
In an opinion again authored by Judge Keenan, the panel applied rational basis scrutiny and found that the classification amongst residents of various states was rationally related to a legitimate purpose. Although, as Judge Keenan noted, "cockfighting is illegal in all 50 States and the District of Columbia," it is legal in several United States territories such as Guam and Puerto Rico. The increased statutory burden for prosecutions in "states" (including territories) merely reflects "the decision of Congress to accommodate principles of federalism, a concern that unquestionably is a legitimate governmental interest."
Although not successful on the facial constitutional attack to the statute, the court did rule in Lawson that there were reversible errors in the trial. The panel concluded that the government has failed to demonstrate that a juror’s misconduct did not affect the verdict with respect to the violations of the animal fighting statute and vacated the defendants’ convictions for violating the animal fighting statute, while upholding other convictions.
These companion cases are carefully reasoned and nicely structured, with solid yet relatively concise analysis. They take the Commerce Clause and equal protection arguments seriously, even if they are ultimately rejected.
[image: "Cock-fighting Match" by John Kay, circa 1826, via]
April 14, 2011
Footnote of the Day: Baseball Poem
In acknowledgement of both baseball season and poem in your pocket day, Justice Harry Blackmun provides a pair of suitable footnotes.
Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise:
I knew a cove who'd never heard of Washington and Lee,
Of Caesar and Napoleon from the ancient jamboree,
But, bli'me, there are queerer things than anything like that,
For here's a cove who never heard of ‘Casey at the Bat’!
‘Ten million never heard of Keats, or Shelley, Burns or Poe;
But they know ‘the air was shattered by the force of Casey's blow’;
They never heard of Shakespeare, nor of Dickens, like as not,
But they know the somber drama from old Mudville's haunted lot.
‘He never heard of Casey! Am I dreaming? Is it true?
Is fame but windblown ashes when the summer day is through?
Does greatness fade so quickly and is grandeur doomed to die
That bloomed in early morning, ere the dusk rides down the sky
‘He Never Heard of Casey’ Grantland Rice, The Sportlight, New York Herald Tribune, June 1, 1926, p. 23.
‘These are the saddest of possible words,
‘Tinker to Evers to Chance.’
Trio of bear cubs, and fleeter than birds,
‘Tinker to Evers to Chance.’
Ruthlessly pricking our gonfalon bubble,
Making a Giant hit into a double-
Words that are weighty with nothing but trouble:
‘Tinker to Evers to Chance.“
Franklin Pierce Adams, Baseball's Sad Lexicon.
The case is Flood v. Kuhn, 407 U.S. 258, 296 (1972), the baseball antitrust case, in which Justice Blackmun quotes the poems in his footnotes to capture America’s fondness for baseball. Later in the opinion which included more about the history of baseball, Blackmun wrote: ""In view of all this," it was appropriate to say that "professional baseball is a business and engaged in interstate commerce," although it is an "exception and an anomaly" and thus exempt from anti-trust laws, even as "football, boxing, basketball, and, presumably, hockey and golf are not so exempt."
There are footnotes for "hockey" and "golf" but they contain case citations, not poems.
with J. Zak Ritchie
[image: statute of Casey at the Bat, via]
April 11, 2011
Footnote of the Day: Co-Ed Sports and VMI
Should there be co-ed football? Must there be?
Justice Scalia, dissenting in United States v. Virginia (VMI), 515 U.S. 515 (1996), objected to the Court's "sweeping" rejection of single-sex programs and argued that it seems there can not be any possible exceptions to the Court's broad rule. In footnote 8, he explained:
In this regard, I note that the Court--which I concede is under no obligation to do so--provides no example of a program that would pass muster under its reasoning today: not even, for example, a football or wrestling program. On the Court's theory, any woman ready, willing, and physically able to participate in such a program would, as a constitutional matter, be entitled to do so.
This would be a great class exercise for law schools at public universities with a large proportion of football devotees. For baseball afficiandos, there will be a footnote later this week.
Suggested by Professor Jessica Silbey
[Image from the Cleveland Plain Dealer, May 1, 2009 via]
June 17, 2010
The World Cup and Term Limits for High Court Justices
ConLawProf Mark Kende may be watching The World Cup, but he's thinking about comparative constitutional law, and more specifically, the appointment of high court justices.
In his Op-Ed in the Christian Science Monitor, Kende argues:
In South Africa, justices can serve up to 12 years. This is the equivalent of two full terms in the US Senate, so implementing term limits, which would appear to require a constitutional amendment, might be a good idea to ensure the president looks for the most qualified justice, not a relatively young one.
Adopting term limits for judges, as well as changing the entire selection process, would be as radical as when the US Soccer Federation reluctantly adopted FIFA standards for rules and calculating league standings. Then, that change was met with its fair share of resistance. But it led to the US hosting the 1994 World Cup, establishing a major soccer league, and strengthening its national teams to contender status on the eve of the 2010 World Cup in South Africa.
If that nation can be a showplace for America on the largest world sports stage of all, it could also serve as an example to an improved Supreme Court confirmation process.
Interestingly, South African ConLawProf Pierre de Vos, commenting on The World Cup closer at hand, has recently noted that there is some talk that the South African Constitutional Court Justices might move to a mandatory retirement age of 70 for justices. This would be more like the life-tenure American model, and quite like the Australian mandatory retirement age of 70 model.