Wednesday, October 11, 2017
In an open letter to Chief Justice Roberts, the President of the American Sociological Association, Eduardo Bonilla-Silva, responded to the Roberts's comment during the Gill v. Whitford oral argument that social science data regarding partisan gerrymandering was "sociological gobbledygook."
After noting that during the oral argument "Justices Kagan and Sotomayor subsequently expressed concern about your statement and spoke to the value of social science measures," President Bonilla-Silva continued:
In an era when facts are often dismissed as “fake news,” we are particularly concerned about a person of your stature suggesting to the public that scientific measurement is not valid or reliable and that expertise should not be trusted. What you call “gobbledygook” is rigorous and empirical. The following are just a few examples of the contributions of sociological research to American society that our members offered in response to your comment:
- Clear evidence that separate is not equal
- Early algorithms for detecting credit card fraud
- Mapped connections between racism and physiologic stress response
- Network analysis to identify and thwart terror structures and capture terrorists
- Pay grades and reward systems that improve retention among enlisted soldiers
- Modern public opinion polling
- Evidence of gender discrimination in the workplace
- Understanding of the family factors that impact outcomes for children
- Guidance for police in defusing high-risk encounters
- Strategies for combatting the public health challenge of drug abuse
Should you be interested in enhancing your education in this area, we would be glad to put together a group of nationally and internationally renowned sociologists to meet with you and your staff. Given the important ways in which sociological data can and has informed thoughtful decision-making from the bench, such time would be well spent.
Indeed, during the oral argument Chief Justice Roberts did comment that his "goobledygook" perspective might be attributable to "simply my educational background."
There has not yet been a reported response from the Chief Justice.
Wednesday, October 4, 2017
Trying to get up to speed on the law of redistricting and gerrymandering after the oral argument in Gill v. Whitford?
A terrific source is the Congressional Research Service Report, Congressional Redistricting Law: Background and Recent Court Rulings, by L. Paige Whitaker, from March 2017.
Like all CRS reports, this one is relatively brief (23 pages) and written for an intelligent but not necessarily fully conversant audience. The discussion of partisan gerrymandering on pages 13-16 provides an excellent background to Whitford, including a discussion of Vieth v. Jubelirer (2004) and Justice Kennedy's pivotal role:
The deciding vote in Vieth, Justice Kennedy, concluded that while the claims presented in that case were not justiciable, he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.” Further, Justice Kennedy observed, that while the appellants in this case had relied on the Equal Protection Clause as the source of their substantive right and basis for relief, the complaint also alleged a violation of their First Amendment rights. According to Justice Kennedy, the First Amendment may be a more relevant constitutional provision in future cases that claim unconstitutional partisan gerrymandering because such claims “involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” In contrast, Justice Kennedy noted, an analysis under the Equal Protection Clause emphasizes the permissibility of a redistricting plan’s classifications. When race is involved, Justice Kennedy reasoned, examining such classifications is appropriate because classifying by race “is almost never permissible.” However, when the issue before a court is whether a generally permissible classification—political party association—has been used for an impermissible purpose, the question turns on whether the classification imposed an unlawful burden, Justice Kennedy maintained. Therefore, he concluded that an analysis under the First Amendment “may offer a sounder and more prudential basis for intervention” by concentrating on whether a redistricting plan “burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association.”
[footnotes omitted]. The CRS Report also has a great discussion of the three-judge court decision in Gill v. Whitaker.
In general, the report "analyzes key Supreme Court and lower court redistricting decisions addressing four general topics":
(1) the constitutional requirement of population equality among districts;
(2) the intersection between the Voting Rights Act and the Equal Protection Clause; (although the Report was produced before the Court's decision in Cooper v. Harris it discusses the then-pending case);
(3) the justiciability of partisan gerrymandering; and
(4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.
An objective and great resource for anyone working on these issues in constitutional law.
Friday, June 23, 2017
In its en banc opinion in Retail Digital Network v. Prieto, the Ninth Circuit rejected a First Amendment challenge to a California prohibition of alcohol manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products.
Plaintiff Retail Digital Network, RDN, installed and operated seven foot digital screen displays in liquor stores for the purpose of running advertisements for liquor products such as Moët Hennessy; the retail stores would would receive a portion of RDN's revenue. However, after originally participating in the advertising, Moët Hennessy withdrew, worried that the state would enforce California Business and Professions Code §25503(f)-(h) regarding such advertising arrangements.
The Ninth Circuit had upheld the provision more than thirty years ago in Actmedia, Inc. v. Stroh (1986), applying Central Hudson & Electric Corporation v. Public Service Commission of New York (1980). RDN argued, however, that Actmedia needed to be reconsidered, and contended that IMS v. Sorrell (2011) changed Central Hudson's commercial speech standard from "intermediate scrutiny" to "heightened scrutiny."
The en banc Ninth Circuit, with the exception of Chief Judge Sidney Thomas in a lone dissent, rejected the argument that Sorrell changed the commercial speech standard of Central Hudson. The court's opinion has an excellent rehearsal of the doctrinal relevance of Sorrell after Central Hudson, including arguments derived from Sorrell itself and a discussion of sister-circuit cases. In short, the court finds that Central Hudson "continues to set the standard for assessing restrictions on commercial speech."
Applying Central Hudson, the court does depart in one aspect from its previous application in the thirty-year old precedent of Actmedia. The court found that even assuming "promoting temperance" is a substantial government interest under Central Hudson, the state statute could not be said to "directly and substantially advance that interest" as required by Central Hudson.
However, the court agreed that the statute "directly and materially advances the State's interest in maintaining a triple-tiered market system" for wines and liquor and "because there is a sufficient fit between that interest and the legislative scheme." This "triple-tiered" distribution scheme was adopted by California after the repeal of the Eighteenth Amendment to "prevent the resurgence of tied-houses." Tied-houses were retailers and saloons controlled by larger interests.
ConLawProfs looking for a good case to discuss commercial speech after Sorell might find RDN worth a look. As for whether the United States Supreme Court will take a look at RDN to clarify the commercial speech standard, RDN might also prove interesting.
Thursday, January 26, 2017
There's a new handy guide collecting resources that will come in handy for ConLawProfs, students, lawyers, and the general public.
In conjunction with the course, Presidential Power, to be offered at University of Washington School of Law by Professors Kathryn Watts and Sanne Knudsen, law librarian Mary Whisner has developed an excellent "Readings and resources concerning presidential power" library guide available here.
Some of the guide tracks the course, and is thus in development, but the "Books about Presidential Power" section is a great place to start understanding the legal, historical, and political dimensions of the issues. The "Useful Reference" portion is a good overview, with a handy link to the Federal Register feed.
Additionally, here are two PBS "crash course" videos - - - from 2015 - - - that are also worth a watch:
Thursday, December 1, 2016
It's time again for Constitutional Law final exam. In previous posts, such as here, we've discussed the common strategy of using current controversies as exam material, and have highlighted the best practices regarding final exam drafting, including the baseline that the exam question must include ALL the specific material and explanations that a student would need to answer the question and not rely upon extraneous information that not all students might share.
This end-of-semester, the President-Elect has provided ample fodder for exam material.
A good place to start would be the ACLU Report entitled The Trump Memos, a 27 page discussion of issues of immigration, creation of a Muslim "database," torture, libel, mass surveillance, and abortion. Embedded in many of these issues are constitutional structural considerations involving federalism (e.g., sanctuary cities) and separation of powers (building "the wall).
For First Amendment issues, augmenting the ACLU's libel discussion with the ABA section article about Trump as a "libel bully" provides lots of material. There is also the recent "flag-burning" tweet, though this may be too simple given the precedent, although it could be combined with the lesser known doctrine regarding denaturalization, as we discuss here.
Lesser known doctrine that may not have been covered this semester (but presumably would be covered next semester) includes the Emoluments Clause, given Trump's many possible conflicts, as we've mentioned here and here. Additionally, some argue that the "election" is not "over": recounts are occurring and there are calls for the Electoral College to select the popular vote winner as President. The problems with the voting and the election could also provide exam material; there are also interesting equal protection voting cases such as the recent Ninth Circuit en banc case.
While Trump looms large on the constitutional landscape, there are also some interesting cases before the United States Supreme Court, in which the issues are more focused.
Monday, September 19, 2016
The official trailer for the movie, Loving, based on Loving v. Virginia (1967) and due to be released November 4, is available:
The film has already received some positive reviews including from audiences at the Cannes Film Festival.
The case is always a popular read with ConLaw students and the film will certainly only accentuate that interest.
The trailer includes reference to the United States Supreme Court case, but it is best offered to students as a supplement on the course website rather than as precious minutes of class time.
Monday, August 1, 2016
It's August and ConLawProfs in the North America are thinking about classes for the Fall semester. So, it's a good time to focus on pedagogy, as we'll be doing this month.
Yet if August brings the joys of contemplating going back in the classroom, it also brings the panic of impending deadlines, even if those deadlines are self-imposed. The legal academy has a tradition - - - and often incentives of "summer scholarship," although these may be fading given other pressures.
One way to address the annual August anxieties is to reject the idea of a stark separation between "summer" and the "academic year," and look for synergies between scholarship and teaching that enliven both. I've tried to do this in an essay, Enhancing Reciprocal Synergies Between Teaching and Scholarship, published in the Journal of Legal Education last year and available - - - for now - - - on the once-open source ssrn.
The article discusses the types of synergies that exist between teaching and scholarship for the legal academic - - - the professional, methodological, theoretical and doctrinal - - - which are easily adaptable to other academics. As is the overall suggestion that we should try to "pay attention" to the synergies between teaching and scholarship rather than viewing them as discrete, or even conflicting.
The article closes with a discussion of three "habits" of paying attention aimed at enhancing the reciprocal synergies between teaching and scholarship: letting the subconscious work, commemorating one's thoughts & ideas, and engaging - - - or not - - - in "daily practice."
Tuesday, September 29, 2015
Worth a watch:
A dialogue between ConLawProfs Erwin Chemerinsky & Eugene Volokh on the topic of "THE FIRST AMENDMENT & THE ROBERTS COURT," moderated by Kelli Sager, and sponsored by The First Amendment Salon, spearheaded by ConLawProf Ron Collins and in association with the Floyd Abrams Institute for Freedom of Expression at Yale Law School.
Chemerinsky and Volokh agree with each other more than might be anticipated.
Monday, September 28, 2015
Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage. Recall that the complaint challenged the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.
The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine. The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce." Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:
We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.
The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause. The Ninth Circuit panel concluded:
[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.
The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously. The Ninth Circuit applied the lowest form of rational basis scrutiny - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.
The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech" was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."
Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.
The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors. But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.
Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility. Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.
September 28, 2015 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US), Teaching Tips | Permalink | Comments (0)
Thursday, January 29, 2015
Recall our discussion last August about the decision of the University of Illinois at Urbana-Champaign officials to rescind the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin based on his "tweets" on the subject of Gaza.
Salaita has now filed a 39 page complaint in federal court. The first count of the complaint alleges the First Amendment violation:
In sending "tweets" regarding Israel and Palestine, from his personal Twitter account from his home in Virginia in the summer of 2014, Plaintiff acted in his capacity as a citizen, and not pursuant to any official university duties. His tweets never impeded his performance of his duties as a faculty member, or the regular operation of the University. The subject matter of the tweets-Israel and Palestine-is a matter of public concern, and Professor Salaita's comments about the conflict were made in an effort to contribute to the public debate. Such conduct is protected by the First Amendment of the United States Constitution.
Plaintiff’s protected speech, and the viewpoint he expressed in those tweets, though greatly distorted and misconstrued by Defendants, was a motivating factor in defendant's decision not to recommend Professor Salaita’s appointment in the rejection of Professor Salaita 's appointment to the University faculty.
The second count alleges a procedural due process violation. Most of the other counts allege state law violations including promissory estoppel, breach of contract, intentional infliction of emotional distress, and an interesting "spoilation of evidence" against Chancellor Phyllis Wise for allegedly destroying a two page document given to her by a donor.
ConLawProfs teaching First Amendment this summer might find the complaint makes for a good in-class discussion or problem.
Wednesday, January 7, 2015
Ron Collins has a moving and instructive obituary for Al Bendich, who as a new lawyer represented Lawrence Ferlinghetti against obscenity charges for publishing Allen Ginsburg's now-classic HOWL and later representing well-known comedian Lenny Bruce against similar charges.
Collins is adamant about recalling the lawyers in First Amendment cases - - - and not merely the judges - - - and the career of Bendich is a reminder of the importance of litigators.
UPDATE: The New York Times Obituary of January 13, 2015, with quotes from Collins as well as others is here.
Friday, January 2, 2015
Cyrus Favier, over at ars technica, surveys the candidates of current litigation- - - five! - - -that might bring the issues of the constitutionality of NSA surveillance to the United States Supreme Court.
Favier looks at the dueling opinions in Klayman v. Obama and ACLU v. Clapper, as well as lesser known cases winding their ways through the courts. And as he implies, regardless of the status of these particular cases, there are plenty more percolating:
Case name: N/A
Moreover, the Court's unanimous recent opinion in Riley v. California finding a cell phone search requires a warrant and the continuing uncertainty over the 1979 "pen register" case Smith v. Maryland gives some credence to the speculation.
ConLawProfs looking for something accessible yet substantively provocative for the first day of classes should take a look at Favier's article.
Wednesday, December 17, 2014
Check out ConLawProfBlog's own Prof. Ruthann Robson's (CUNY) piece about her innovative and engaging approach to teaching the Religion Clauses in the Fall 2014 Law Teacher. (Robson's piece begins on page 49.) In it, Robson gives a step-by-step for a replicable, pervasive method that promises huge pedagogical payoffs--exactly the kind of thing we need more of in the Con Law world.
Robson, a leader in innovative and effective teaching who was featured in What the Best Law Teachers Do (Harvard), starts her First Amendment class by requiring students to develop and adopt a role in one of three categories: a recognized religion, a quasi-religion, and a non-religion. Robson then conducts her Religion Clause classes with her students in role, for example: "What do you think of this outcome, Student X, as a Rastafarian?"
The approach comes with distinct benefits and allows the class better to critically assess and analyze Religion Clause cases. Robson: "This role pervasiveness often illuminates the subjectivity of the Court's recitation of facts, as well as the reasoning, doctrine, theoretical perspectives, and the invocations of history."
Robson uses role pervasiveness for problems, too, assigning students to traditional legal roles (attorneys, judges, clerks, and the like) while still maintaining their assigned religion.
For example, Student Y, as a Sikh, now also takes on the role of a law clerk to a judge considering the constitutionality of the seventeen foot "Latin cross" at the National September 11 museum. Or Student Z, as a Secular Humanist, is writing an opinion as an administrative law judge in a sexual orientation discrimination case against a baker who refused to make a wedding cake for a same-sex couple.
This not only enhances students' understanding of the Religion Clauses, but it also allows Robson to explore issues of professional identity.
Check it out; give it a try; tell us how it works for you.
Thursday, December 11, 2014
Writing exam questions that engage with current controversies can themselves cause controversy.
Or that seems to be what happened at one law school when the ConLawProf sought to incorporate the Ferguson protests into a First Amendment exam hypothetical. Reportedly, this was the question:
"Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision."
This seems like a plausible query, if a bit sparse on facts as related (depending on what students should be expected to know from what was covered in class). The controversy sparks in part from the exam's role assignment to work for the prosecutor. (As the report states: "But it's quite another thing to ask students to advocate for an extremist point that is shared by only the worst people in an exam setting. You don't give your students an exam where they have to defend Holocaust deniers or ISIS terrorists. It's inappropriate and not a fair measure of their understanding of law.")
However, the question's task (at least as I'm reading it) is to objectively discuss the merits. Would such a charge contravene the First Amendment? The issue calls for the articulation of the clear and present danger "test" as the professor's explanation of the question in the report attests. It also would call for an application of cases, depending on which cases were covered, such as Brandenburg v. Ohio (involving the Ku Klux Klan) and Hess v. Indiana (involving an anti-war protester). And, it seems to me that the prosecutor would have a very difficult time surmounting a First Amendment challenge to a charge, making an assignment to the prosecution side the more difficult one.
This should not make ConLawProfs shy away from using "controversial" material on exams, but to use them with care, with as much understanding of our students as possible, having listened to the concerns they bring forward in class discussions. Indeed, the report does suggest that the controversy is simply not this exam. There seem to be other issues including the lack of diversity at the law school. A lack of diversity could mean that a small number of students would be emotionally involved with the question in ways that other students would not. The same report contains a reaction from the dean and the professor, with an accommodation that this question will be disregarded in the grading of the exam.
Meanwhile, as has been widely reported, at least one law school is allowing some students to postpone final exams because of the controversies regarding the grand juries non-indictment in the killings of Michael Brown in Ferguson and Eric Garner in Staten Island.
(h/t Leis Rodriguez)
Tuesday, September 2, 2014
Now that classes have begun, it's a good time for lawprofs to think about how we teach and interact with our students.
Published in the on-line "Footnote Forum" of City University of New York's law review, Professor Gabriel Arkles(pictured) has some very specific things to say about the trans* and gender non-comforming students in our classes. In his essay, Improving Law School for Trans* and Gender Nonconforming Students: Suggestions for Faculty, Arkles provides details of practices that "need improvement" and often specific suggestions for change. Here's one of special note for ConLawProfs:
Practice in need of change: In discussing Equal Protection doctrine, a constitutional law professor says, “But is sex really an immutable characteristic? Don’t some people get ‘sex changes’?” The class laughs, and the professor moves on.
This comment makes trans* people into the butt of a joke, assumes that no trans* people are in the room, gives no substantive attention to trans* issues in constitutional law, and plays into myths about trans* healthcare.
Arkles' essay is a thought-provoking and must-read this semester.
Monday, August 18, 2014
CALI has been updating its lessons this summer, including its Constitutional Law lessons.
There is an entirely new one "Marriage and Same-Sex Marriage in Constitutional Law" covering the basic constitutional issues and arguments in marriage with an emphasis on same-sex marriage litigation. It emphasizes understanding the Supreme Court's 2013 decisions in Hollingsworth v. Perry and United States v. Windsor, involving the constitutionality of California's Proposition 8 and the federal Defense of Marriage Act (DOMA), respectively. The last section includes questions concerning the arguments in the issue of state bans on same-sex marriage that will be reaching the Court soon.
Other ConLaw Lessons of interest:
Thursday, May 15, 2014
Can a tenured professor, serving as a dean (or executive director) of the university's school of public health be terminated for publicly criticizing the university's restructuring plans?
This does not involve the new Kansas social media policy for academics, but the question that arose at the University of Saskatchewan this week; there's a good overview and links to the letter itself in this article from the Globe & Mail.
For Americans the situation seems close to the famous letter to the editor protected by the First Amendment in Pickering v. Board of Education. But recall Mr. Pickering was merely a teacher while Professor Buckingham at University of Saskatchewan was a dean charged with implementing the very policies he was criticizing, a situation akin to the one the Sixth Circuit confronted in Dixon v. University of Toledowhen considering a university human resources officer who made public statements inconsistent with the university's anti-discrimination policy that she had to enforce.
In recognition of this distinction, it seems now Buckingham has only been relieved of his duties as an administrator and may return to campus, seemingly complete with tenure.
Canadian ConLawProf Michael Plaxton (at the University of Saskatchewan) has a nuanced discussion in the Globe and Mail today.
Prompted by an incident last September involving the tweet of a journalism professor at the University of Kansas linking the NRA's Second Amendment advocacy to a gun shooting that left thirteen people dead - - - and the university's strong reaction to it - - - the Kansas Board of Regents engaged in a reconsideration of its "social media" policy.
An amended policy has finally been adopted.
It includes suggestions of a workgroup emphasizing academic freedom and the First Amendment.
Additionally, the new policy also attempts to digest the current state of First Amendment law:
3. The United States Supreme Court has held that public employers generally have authority to discipline their employees for speech in a number of circumstances, including but not limited to speech that:
i. is directed to inciting or producing imminent violence or other breach of the peace and is likely to incite or produce such action;
ii. when made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interests of the employer;
iii. discloses without lawful authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data; or
iv. subject to the balancing analysis required by the following paragraph, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the employer, or otherwise adversely affects the employer's ability to efficiently provide services.
In determining whether an employee’s communication is actionable under subparagraph iv, the interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern.
While the policy may be a fair attempt to articulate Garcetti v. Ceballos, such an articulation does little to clarify the rights of publicly employed academics to speak - - - on social media or otherwise - - - about controversial issues. The current case before the United States Supreme Court, Lane v. Franks, is not likely to address the broader issues.
Returning to the journalism professor's tweet, now that there is an amended policy, is it any more clear that he could (or could not) be disciplined? Or will the policy merely chill speech?
Thursday, May 1, 2014
Grading, marking, and giving feedback on student exams, papers, and projects can be wearing, which perhaps explains why professors can succumb to the temptation to bemoan student "bloopers" and mistakes.
But at the end of this semester, a mistake in Justice Scalia's dissent in EPA v. EME Homer City Generation provides some perspective.
From the original opinion, here's the passage in Justice Scalia's dissent:
[Section] D. Plus Ça Change:
EPA’s Continuing Quest for Cost-Benefit Authority
The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Respondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is not for EPA or this Court to determine.
This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmaking—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect. . . .
And from the current opinion, here's the corrected passage:
[Section] D. Our Precedent
The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Respondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is for Congress, not this Court, to determine.
This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmaking—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect.
Justice Scalia misidentified the party that argued on behalf of considering costs in Whitman v. American Trucking - - - an opinion that Justice Scalia authored in 2001 - - - and reversed it. Indeed, the EPA opposed considering costs in Whitman v. American Trucking.
Why the mistake? Blame law clerks or sloppiness. Recite "to err is human." Or perhaps the mistake simply fit with the dissent's "shadow argument" (the EPA has been on a quest to expand its authority, as conveyed in the subtitle to the section) and so the actual fact became misremembered or overlooked.
But whatever the possible explanations, it's a good reminder for professors as we read "mistakes" by students who are, afterall, students, and do not have law clerks, proofreaders, years of experience, the highest position in the legal field, or the ability to correct mistakes after the final version of the exam or paper is submitted.
Thursday, February 20, 2014
Largely reversing a district judge's opinion that had found various provisions of Pennyslvania's Funeral Director Law unconstitutional on various grounds, the Third Circuit opinion in Heffner v. Murphy upholds the law except for its restriction on the use of trade names as violative of the First Amendment.
One key to the panel's decision is that it surmised that the district judge's conclusions regarding the constitutionality of Pennsylvania's Funeral Director Law (FDL), enacted in 1952, "stem from a view that certain provisions of the FDL are antiquated in light of how funeral homes now operate." But, the Third Circuit stated, that is not a "constitutional flaw."
The challenged statutory provisions included ones that:
(1) permit warrantless inspections of funeral establishments by the Board;
(2) limit the number of establishments in which a funeral director may possess an ownership interest;
(3) restrict the capacity of unlicensed individuals and certain entities to hold ownership interests in a funeral establishment;
(4) restrict the number of funeral establishments in which a funeral director may practice his or her profession;
(5) require every funeral establishment to have a licensed full-time supervisor;
(6) require funeral establishments to have a “preparation room”;
(7) prohibit the service of food in a funeral establishment;
(8) prohibit the use of trade names by funeral homes;
(9) govern the trusting of monies advanced pursuant to pre-need contracts for merchandise; and
(10) prohibit the payment of commissions to agents or employees.
The constitutional provisions invoked - - - and found valid by the district judge - - - included the Fourth Amendment, the "dormant" commerce clause, substantive due process, the contract clause, and the First Amendment, with some provisions argued as violating more than one constitutional requirement.
In affirming the district judge's finding that the trade names prohibition violated the First Amendment, the Third Circuit applied the established four part test from Central Hudson Gas & Electric Corp. v. Public Service Commission regarding commercial speech and found:
The restrictions on commercial speech here are so flawed that they cannot withstand First Amendment scrutiny. Indeed, the District Court correctly identified the pivotal problem concerning the FDL’s proscription at Central Hudson’s third step: by allowing funeral homes to operate under predecessors’ names, the State remains exposed to many of the same threats that it purports to remedy through its ban on the use of trade names. A funeral director operating a home that has been established in the community, and known under his or her predecessor’s name, does not rely on his or her own personal reputation to attract business; rather, the predecessor’s name and reputation is determinative. Nor does a funeral home operating under a former owner’s name provide transparency or insight into changes in staffing that the Board insists is the legitimate interest that the State’s regulation seeks to further.
ConLawProfs looking for a good review or even a possible exam question, might well take a look at the case. It also seems that the Pennsylvania legislature might well take a look at its statutory scheme, which though largely constitutional, does seem outdated.
February 20, 2014 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Dormant Commerce Clause, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)