April 04, 2011
Footnote of the Day: The Experience and History of Inequality
On the anniversary of the 1968 assassination of Martin Luther King, footnote 24 of Justice Thurgood Marshall’s concurring and dissenting opinion in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) is appropriate. Marshall's footnote is condensation of equal protection theory and an argument for judicial consideration of history and experience. It is also an illumination of footnote 4 of Carolene Products. Marshall (pictured) wrote:
No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide. The "political powerlessness" of a group may be relevant, San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973), but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates. Minors cannot vote and thus might be considered politically powerless to an extreme degree. Nonetheless, we see few statutes reflecting prejudice or indifference to minors, and I am not aware of any suggestion that legislation affecting them be viewed with the suspicion of heightened scrutiny. Similarly, immutability of the trait at issue may be relevant, but many immutable characteristics, such as height or blindness, are valid bases of governmental action and classifications under a variety of circumstances. See ante, at 442-443, n. 10. The political powerlessness of a group and the immutability of its defining trait are relevant insofar as they point to a social and cultural isolation that gives the majority little reason to respect or be concerned with that group's interests and needs. Statutes discriminating against the young have not been common nor need be feared because those who do vote and legislate were once themselves young, typically have children of their own, and certainly interact regularly with minors. Their social integration means that minors, unlike discrete and insular minorities, tend to be treated in legislative arenas with full concern and respect, despite their formal and complete exclusion from the electoral process. The discreteness and insularity warranting a "more searching judicial inquiry," United States v. Carolene Products Co., 304 U.S. 144, 153 , n. 4 (1938), must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.)
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 472-473 (1985) (Marshall, J. concurring and dissenting in part).
Marshall's discussion of the social integration of minors and the lack of prejudice against the young might be worth further discussion.
(Suggested by Ed Campanelli)
March 20, 2011
The Original Tea Party and Regulating Food: WV Weekend Features the Forthcoming Work of Alison Peck
The regulation of food and its consumption have always posed constitutional issues - - - recall the "wheat case" of Wickard v. Filburn (1942) - - - and for the last several years, public health advocates, now prominently joined by First Lady Michelle Obama, have highlighted the need for vigorous public policy solutions to the increasing costs of obesity in America. One of the most well-known policies aimed at adjusting Americans’ eating habits is the mandatory disclosure of nutritional information by restaurants. Leading the way on such mandates include several of America’s largest cities, including New York, where Mayor Bloomberg has successfully advocated for the posting of calorie information in many of the city’s eateries; this policy ultimately survived a constitutional challenge.
In West Virginia, the efforts to mandate caloric information have been less successful. During the 2009 Regular Session of the WV State Legislature, a bill was introduced and recommended for passage in the House of Delegates that would have required the posting of calorie counts of menu items in most restaurants throughout the state. The bill died before making it to the House floor, perhaps because of the efforts of former state senator and statewide restaurateur, Oshel Cragio. Craigo, who owns a popular fast-food chain of home-style breakfast restaurants named “Tudor’s Biscuit World,” buttered-up House committee members with free biscuit-style breakfast entrees on the morning in which the nutritional posting bill was being debated. Perhaps unsurprisingly, members chose the biscuits over the bill. However, a provision in the federal health care reform bill will likely require Cragio’s restaurants to post calorie counts.
Mandatory calorie disclosures typically provoke the anti-government sentiments often shared by members of the modern Tea Party, a movement we’ve covered here. The rhetoric often invokes an originalist imagining of Revolutionary-era politics as championing individual liberty against government policies.
Professor Alison Peck at the WVU College of Law challenges the symbolism used by modern day Tea Party by arguing that early-American political groups associated with the Founding Fathers actually had more in common with contemporary advocates of food-consumption regulation than with the small-government Tea Party activists of today.
Peck has posted an abstract of her article, Revisiting the Original “Tea Party”: The Historical Roots of Regulating Food Consumption in America, on ssrn here, but we've had a chance to read the entire draft manuscript. It's a stellar argument supporting her central assertion that “opponents of modern food-consumer regulation misapprehend Revolutionary history. . . .” Manuscript at 5.
Specifically, the "non-importation and non-consumption agreements suggest that the colonists considered private consumption decisions to be fair subjects of coordinated public action where those decisions had negative public consequences.” Id. at 7. Indeed, Peck argues that a close examination of those non-importation agreements and their context suggests that they arose, in principle, from many of the same forces driving food-consumer regulation today. These forces include shared public costs attributable to private consumption decisions; popular rhetoric linking private choices and public costs; sponsorship of restrictions by community leaders and elites; and collectively-enforced consequences for failure to conform. Id.
While the author admits the obvious difference between the modern regulations and the Revolution-era non-importation and non-consumption agreements—that the latter agreements had no force of law—Peck claims that the “disenfranchised colonists came as close as they could to replicating that effect: The increasingly coercive mechanisms of outing and ostracizing free riders, seizing and holding offending goods, and even using violence against offenders gradually served to raise the cost of non-compliance.” Id at 50. Indeed, Professor Peck believes that it was “likely that the colonists would have given their agreements the force of law if they had had the constitutional power to do so.” Id. Supporting this assertion, the author briefly discusses the imposition of the federal excise tax on whiskey in 1791—a tax that led to a brief but serious rebellion in the young nation.
Peck concludes by chiding the modern Tea Party for their claims that food-consumer regulation are “unprecedented or un-American,” as such regulatory forces are “far from novel.” Id. at 54. She writes:
The idea that a society may regulate individual consumption choices in the name of the collective good was expressed as early as the pre-Revolutionary non-consumption and non-importation agreements. Although those agreements were quasi-legal instruments organized and enforced by the colonists outside of formal legislative bodies, their purpose was equivalent: to force accountability for private consumption decisions that had shared social costs.
The powers of governments (federal, state, and local) and individual liberties has been an ongoing balancing act in US legal history. Peck's article will be an important contribution to our assessment of our understanding of that history.
with J. Zak Ritchie
[image: Mary Cassat, American artist, "Afternoon Tea Party," 1891, via]
March 20, 2011 in Commerce Clause, Congressional Authority, Current Affairs, Due Process (Substantive), Food and Drink, Fundamental Rights, History, Scholarship, State Constitutional Law, Theory | Permalink | Comments (0) | TrackBack
March 12, 2011
Democracy and Workers Rights: West Virginia Weekend
As the legislative battle in Wisconsin continued on Friday with the enactment of a bill which limited collective bargaining rights of most state employees, similar disputes are simmering across the country. Along with Wisconsin, Ohio, Iowa, and Idaho, among others, seem poised to join the growing group of state governments that are prohibiting at least some public employee collective bargaining. Also on Friday, the West Virginia House of Delegates passed a resolution supporting the public employee unions in Wisconsin. Despite this show of support, and unlike Wisconsin, which still allows collective bargaining in limited circumstances, West Virginia law does not extend collective bargaining rights to any public employees.
These controversies raise issues of democracy and dignity. WVU College of Law Professor Anne Marie Lofaso recently commented on a new federal proposal that would count a non-vote as a no-vote in elections regarding unionization by saying that such a process would run "counter to the spirit of democracy." Likewise, Lofaso uses notions of democracy and dignity as the basis of her theorizing about workers and unions. In Toward a Foundational Theory of Workers’ Rights: The Autonomous Dignified Worker, 76 UMKC L. Rev. 1, available on ssrn, Lofaso critiques the conventional free-market view of workers and then advocates “a novel theory of grounding workers’ rights in two values: autonomy as promoting an individuals’ freedom to become part author of his or her working life and dignity as promoting each individual as having equal moral worth.” Id. at 3. Indeed, “[t]he conflict between the property rights of capital and those of labor in market economics signals an incompatibility between the current capitalist conception of property rights and the human right to work.” Id. at 38.
Professor Lofaso writes:
[W]orker autonomy means employees who (1) know what issues affect their working lives and know how to resolve those issues according to their own interests; (2) have access to information relevant to making informed decisions; and (3) are free to effectively decide how to resolve those issues. Autonomous workers must, therefore, possess the power to effectuate these decisions. But workers who do not gather together may simply not have the power to control decisions affecting their working lives. Thus, worker autonomy often implies some level of industrial or worker autonomy—the need for meaningful employee participation at a variety of levels, a right to any information management would deem necessary to effect wise business decisions on behalf of property owners; state intervention to protect these worker rights to be free from coercive forces, all set in a pluralist industrial or other workplace framework.
Id. at 41-42. The author concludes with specific recommendations for the Congress, Executive, Supreme Court, and NLRB, to protect the rights of the autonomous and dignified worker. Id. at 57-64.
In her most recent piece, “What We Owe Our Coal Miners,” 5 Harv. L. & Pol’y Rev. ___ (forthcoming 2011), [UPDATE: NOW available on ssrn], Lofaso focuses on the work of coal mining, work that is closely identified with West Virginia. Indeed, the statute of a coal miner (pictured right) is on the grounds of the State Capitol Complex. Despite the valorization of coal miners, the workers themselves are often under-protected, as illustrated by last year's loss of life at the Upper Big Branch mine, owned by Massey Coal Company, of Caperton v. Massey Coal Company fame.
Lofaso advocates mandating the union model on the mining industry by demonstrating that “collective bargaining above the regulatory floor is likely to result in safer, healthier mines, and that the safety records of such mines will be better justified when based on informed, unforced, general agreement.” Id. at 702. Throughout the article, Professor Lofaso observes the power disparity between coal operators and their miners; examines the incentives for operators to circumvent mining regulations; identifies several market failures, such as inequality of bargaining power, irrationality in assessing risk, asymmetrical information, and monopsony; and, finally, advocates for “extending the union model to nonunion mines” in order to resolve many safety issues. Id. at 702-03.
In sum, Professor Lofaso writes:
Coal mine operators possess greater bargaining power than coal miners. The conditions resulting in this disparity of bargaining power are precisely those conditions that Congress intended to ameliorate when it passed the NLRA. A comparison between pre- and post-regulator fatality rates in coal mines strongly supports the conclusion that current regulations make coal mines safer. Those regulations raise the floor of rights on top of which unions bargain, thereby further addressing the disparity of bargaining power . . . making it more likely that unions will bargain for even better safety conditions than current regulations permit. . . . Accordingly, it makes sense for policy makers to consider bringing the union model into the nonunion coal mine.
Id. at 726. From the more “radical solution” of compelling union representation for all coal mines, id., Lofaso also advocates more modest proposals, “such as posting miners’ rights,” or “mandate[ing] bargaining over health and safety . . . regardless of whether the miners are union represented.” Id. at 724. Ultimately, Lofaso observes that “[d]angerous jobs in industries that the public perceives to be vital to its comfort and security may be here to stay, but that does not mean that the public shouldn’t demand that policy makers focus on questions of human life and dignity in the context of these crucial multi-billion dollar industries.” Id. at 727.
The Constitutional power of the federal government to mandate unionization or even worker safety has become contenstious, as has the legitimacy of state governments relationship towards unionization. Lofaso's work reminds readers - - - in West Virginia and elsewhere - - - that such arguments have real life consequences.
with J. Zak Ritchie
(image: The West Virginia Coal Miner, bronze statue by sculptor Burl Jones, photograph by Ken Thomas, via)
Pugliese on CIA Torture at Association for the Study of Law, Culture and the Humanities
The keynote lecture Friday evening at this year's conference of the Association for the Study of Law, Culture and the Humanities was Anatomies of Torture: CIA Black Sites and Redacted Bodies, delivered by Joseph Pugliese (pictured) of Macquarie University in Australia.
In his examination of the so-called "black sites," secret prisons located outside U.S. jurisdiction in which a range of state-sanctioned practices of torture have transpired, Pugliese focused on the death of a young Afghan man, Gul Rahman, who died on 20 November 2002, in the CIA black site prison known as the Salt Pit, located in northern Kabul, Afghanistan. While Rahman's body has never been recovered, Pugliese argues that Rahman is nominally buried within the Classified Response to the U.S. Department of Justice Office of Professional Responsibility Classified Report Dated July 29, 2009. This document, prepared by Counsel for Judge Jay S. Bybee, is a detailed repost to the accusation made by the Office of Professional Resposibility (OPR) that Bybee committed professional misconduct in light of Bybee’s memo (August 1, 2002) to Alberto Gonzales, Counsel to the President, which authorised some forms of torture.
Yet portions of the memos are redacted. Pugliese displayed the memos and examined the legal process that edits and censors a document of any secret or sensitive information through the application of a black marker over designated text. In the context of the CIA "black sites" and the Salt Pit in particular, Pugliese argues that the process of redaction must be seen as producing its own discursive black sites of silence, loss and death.
Pugliese's presentation was spell-binding and an excellent capstone to a conference in which the critical tools of humanities scholars and legal scholars were so often combined.
March 03, 2011
Libby Adler's Rights Critique, Law Reform, and Responses
Harvard Civil Rights - Civil Liberties Journal has held an online forum on Professor Libby Adler’s piece (available on the forum) entitled “Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform."
Adler, author of The Gay Agenda, here argues for a "critical approach to law reform agenda setting," with a methodology that
rests on a distinction between reconstruction and decisionism. Decisionism, according to my usage, consists of making difficult choices about which law reform initiatives to undertake based on broadly informed distributional hypotheses and cost-benefit calculations and then acting on the best information one can get with the best judgment one can muster, always prepared to bear the costs of one’s choices. Each law reform achievement, should it materialize, rather than being a step along a path in the direction of a lodestar such as formal equality, will—one hopes—effectuate a positive distributive impact for marginalized persons while imposing bearable costs. As a theoretic matter, the achievement is likely to be generalizable only to a limited extent, if at all. In other words, it will not necessarily further any overarching theoretic objective
Twelve invited commentators respond to Libby Adler's advocation of “decisionism" including Angela Harris, Art Leonard, Aziza Ahmad, Francisco Valdes, Katherine Franke, Nancy Polikoff, Darren Rosenblum, Sarah Valentine, and Anthony Varona.
Adler's piece and the comments demonstrate that the problem of "rights" in constitutional law remain a persistent issue, as well as the problems of "equality" and "identity."
This forum could be an excellent basis for discussion in a constitutional law seminar or a jurisprudence class.
A "live" Colloquium will be held on March 9, 2011 at 5-7p.m. at Harvard Law School in Austin North.
March 01, 2011
Does the Obama DOJ's Position on DOMA Create a Constitutional Crisis? Redux
The DOJ's decision not to defend the constitutionality of DOMA, but to continue to enforce DOMA, is being illustrated in a few examples, such as that of Karen Golinski, the lawyer who works for the Ninth Circuit Court of Appeals as the ABA Journal noted. An excellent overview by Aziz Huq over at Slate compares Golinski's situation to that of a few others who the DOJ decision might assist.
While the administration's DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.
- During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals.
- The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court.
- The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote.
- It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court.
- The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive.
- The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana.
- And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote. Solicitor General Kenneth Starr was recused in the case, so the lead counsel for the government in the case was Starr's deputy, a fellow by the name of John Roberts, now the chief justice of the United States.
Listen to broadcast here: 20110301_me_17
February 28, 2011
Events for March 2011
Here are a few that you might not want to miss.
Food Fight, March 1, 6.30 pm, organized by the law review at City University of New York School of Law, raising First Amendment issues such as "veggie libel laws" and campaign finance.
Rehabiliating Lochner: Defending Individual Rights against Progressive Reform, March 1 [and subsequent dates] sponsored by The Federalist Society. David Bernsetin will be speaking about his forthcoming book at various venues throughout the month.
Marlee Kline Lecture in Social Justice, March 3, 5.30 pm, organized by the Faculty of Law at University of British Columbia, Vancouver, Canada, delivered by Ruthann Robson.
Citizens United and Corporate Speech, March 4, 8.30 am, hosted by The John Marshall Law Review and Steven Schwinn at the John Marshall Law School in Chicago, featuring a keynote by Thomas E. Mann of the Brookings Institute and panelists such as Geoffrey Stone, Atiba Ellis, and Monica Youn, director of the Brennan Center for Justice at New York University School of Law.
Writing a Brandeis Biography, March 7, 3pm, at the Oklahoma University College of Law, by Melvin Urofsky, author of notable biography of Justice Louis Brandeis. Urlovsky will also speak at a Faculty Colloquim at noon on "“Dissent As Form of Constitutional Dialogue."
Justice Clarence Thomas: 20 Years, March 11, 9.30am, at the Detroit Athletic Club, hosted by the University of Detroit Mercy Law Review. The morning panel is devoted to individual liberties and the afternoon panel focuses on governmental powers.
Moral Imagination in Judging, March 11, noon, at Washburn University School of Law, by Susan Bandes (pictured right) delivering the annual Foulstein Siefkin Lecture, organized by the Washburn Law Journal.
Boundaries and Enemies, 2011 Conference of The Association for the Study of Law, Culture and the Humanities, March 11 - 12, at University of Nevada, Las Vegas – William S. Boyd School of Law, organized by the association. Two packed days of panels and events.
Official Wrongdoing and the Civil Liability of the Federal Government and Officers, March 18, 9am, organized by the law journal at the University of St. Thomas School of Law, Minneapolis. The afternoon panel is entitled "Constitutional Claims: Bivens Suits."
Perspectives on Prerogative, March 24-26, The LeFrak Forum and the Symposium on Science, Reason, & Modern Democracy, Department of Political Science, Michigan State University, will "examine an especially troubling form of executive power: "prerogative" or "extra-legal" or "extra-constitutional" power."
Other events for which there is some information include two at Chapman University School of Law: Randy Barnett on March 8 discussing the constitutionality of the Patient Protection and Affordable Care Act, and Eugene Volokh on March 16 on "The Mechanisms of the Slippery Slope," and at Loyola Law School- New Orleans, on March 11 at noon, Calvin Johnson and Steven Willis on the constitutionality of the Patient Protection and Affordable Care Act, moderated by Cynthia Lepow.
and in April .......
Constitutional Law Symposium: Debating the Living Constitution, April 2, 8.30 am - 12.30 pm, organized by the Center for Constitutional Law at Drake University College of Law, Iowa, featuring speakers such as Rebecca Brown of USC School of Law.
February 04, 2011
Freedom of the Press as a Universal Value? Clinton, Carter, Canada, and WikiLeaks
Hillary Clinton, speaking as US Secretary of State, condemned violence against members of the press in Egypt, noting that "freedom of the press" is one of the pillars of an "open and inclusive society."
Meanwhile, in the United States itself, a complaint in federal court has been filed this week against former president Jimmy Carter and Simon & Schuster, the publisher of Carter's book, Palestine: Peace Not Apartheid. The cause of action is noteworthy: consumer protection statutes in New York prohibiting deceptive acts in the conduct of business and trade. The complaint alleges:
5. Plaintiffs wish to be clear about what this lawsuit is not about. It is not in any way an attempt to challenge Defendant JIMMY CARTER's right to write a book, or Defendant SIMON & SCHUSTER's right to publish a book which serves as a forum for Carter to put forward his virulently ant-Israeli bias or any other agenda he or his financial backers wish to put forward. Nor do Plaintiffs challenge his right to use falsehood, misrepresentations and omissions, misleading statements, or outright lies, all of which characterize this book, to further his agenda. Indeed, Plaintiffs fully recognize that, such an agenda from Defendant JIMMY CARTER should come as no surprise, given his well known bias against Israel and the interests of Israel's sworn enemies who have given millions of dollars to support the Carter Center and Defendant JIMMY CARTER's work.
6. Rather, Plaintiffs bring this action to challenge Defendants' actions in deceiving the public by promoting and selling this Book as a factually accurate account in all regards of the events its purports to depict, rather than truthfully and accurately promoting and selling it as the anti-Israel screed that it is, intentionally presenting untrue and inaccurate accounts of historically recorded events, as witnesses to and participants in such events pointedly have come forward to declare. This lawsuit challenges the Defendants actions in attempting to capitalize on Carter's status as a former President of the United States to mislead unsuspecting members of the reading public who thought they could trust their former President to tell the truth.
7. The Plaintiffs are members of the reading public who thought they could trust a former President of the United States and a well-established book publisher to tell the truth and who paid to get the truth from the Defendants, but were deceived when they learned that the Book is characterized instead by falsehoods, misrepresentations, misleading statements,omissions of material facts, and outright lies designed to mislead and misstate the facts concerning the important subject it purports to address and the underlying historical record.
The Complaint then proceeds to list specific instances of facts as portrayed in the book and seeks to refute those facts. A representative from Simon and Schuster, via the Washington Post, characterized the complaint as "a chilling attack on free speech that we intend to defend vigorously.”
North of the US Border, the Supreme Court of Canada considered the companion cases of Canadian Broadcasting Corporation v. Canada (Attorney General), 2011 SCC 2, and Canadian Broadcasting Corporation v. Canada, 2011 SCC 3, which involve "the interrelationship of freedom of the press, the open court principle and the fair administration of justice." At issue in the Attorney General appeal was the constitutionality of rules prohibiting broadcasting recordings of hearings and on conducting interviews, filming and taking photographs in court; the other appeal involved a prohibition on broadcasting of a video recording tendered in evidence at trial. A good discussion of the cases is available from our colleagues at the Canada Supreme Court blog. In both cases, the Supreme Court of Canada upheld the constitutionality of the banning of the press:
The right to freedom of expression is just as fundamental in our society as the open court principle. It fosters democratic discourse, truth finding and self‑fulfilment. Freedom of the press has always been an embodiment of freedom of expression. It is also the main vehicle for informing the public about court proceedings. In this sense, freedom of the press is essential to the open court principle. Nevertheless, it is sometimes necessary to harmonize the exercise of freedom of the press with the open court principle to ensure that the administration of justice is fair. . . . . this Court must determine whether certain rules are consistent with the delicate balance between this right, this principle and this objective, all of which are essential in a free and democratic society.
This balancing is familiar to US scholars as the First Amendment/ Sixth Amendment conflicts in landmark cases such as Sheppard v. Maxwell.
The continuing controversy surrounding Wikileaks tests commitment to freedom of the press in many nations. The Guardian of the UK, which has published much of the Wikileaks material, is an excellent source of updates and information. In a comment today, journalist Clay Shirkey notes the ways in which Wikileaks "freedom of the press" is a transnational phenomenon, not bound by specific national laws, and presumably constitutional norms. Both The Guardian and the New York Times have published books about the newspapers dealings with Wikileaks: The Guardian book is Wikileaks: Inside Julian Assange's War on Secrecy, and is available as an ebook and forthcoming in paperback. The NYT book, Open Secrets: Wikileaks, War, and American Diplomacy, is available only as an ebook. The NYT Magazine published an adapted introduction to Open Secrets by journalist Bill Keller.
ConLawProfs teaching freedom of the press this semester should be able to use any - - - or all - - - of these situations to foster a great class discussion or a more focused class project.
February 4, 2011 in Books, Cases and Case Materials, Comparative Constitutionalism, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fundamental Rights, International, Speech, State Secrets, Teaching Tips, Theory, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack
January 23, 2011
Use of Foreign Law: Humor
The jurisprudential and political controversy regarding the use of "foreign" law by the United States Supreme Court has prompted some humor from The Onion:
WASHINGTON—The U.S. Supreme Court announced Monday that it would have to review two weeks' worth of procedure after determining it had mistakenly based its last three rulings on a copy of the Belgian constitution left in the justices' chambers. "When I presented my case on legal citizenship status under proposed changes to immigration law, I wondered why they said my argument was in direct opposition to the parliamentary rights of the Walloons," . . . . more here.
(H/T Laura Nixon)
January 16, 2011
Global Constitutionalism CFP
GLOBAL CONSTITUTIONALISM (Glob-Con), a new journal forthcoming in January 2012, has issued a Call for Papers.
Global Constitutionalism – World of Human Rights, Democracy and the Rule of Law (Glob-Con) seeks to promote a deeper understanding on the foundations, limitations and principles of political order and their dynamics over time on a global scale. The journal is interested in work that refers to constitutionalism as a template for empirical, conceptual or normative research on past, present and future political and legal practices, within and beyond the state.
Constitutionalism is understood here not as the study of a legal document, but as a reference frame for interdisciplinary research with a particular focus. Constitutionalism in a wide sense is associated with the study of the constitutive elements of legal and political practice that are central for the assessment of its legality or legitimacy. Constitutionalism does not presuppose the existence of a written constitution. It merely presupposes the interplay between social and institutional practices in which claims to legality and, therefore, legitimate authority, and democracy are central. Constitutionalism analyses the role of fundamental norms, the type of actors, and the institutions and procedures through which legal and political decisions are made. In a more narrow modern sense constitutionalism focuses on the basic ideas relating to justice (such as human rights), procedural fairness and participation (e.g. democracy) and the rule of law as they relate to institutional practices and policies in and beyond the state.
The Journal's editorial board includes Mathias Albert, Richard Bellamy, Seyla Benhabib, Armin V. Bogdandy, John Borrows, Jutta Brunnée, Michael Byers, Carlos Closa, Gordon Christie, Jean L. Cohen, Grainne de Burca, Avigail Eisenberg, Michelle Everson, Ezzedine Choukri Fishere, Rainer Forst, Friedrich Kratochwil, Jürgen Neyer, Konrad Ng, Nicholas G. Onuf, Robert Post, Susan Rose-Ackerman , Kim Rubenstein, Joanne Scott, Rainer, Schmalz-Bruns, Jo Shaw, Quentin Skinner, Boaventura de Sousa Santos, Stephen Toope, Neil Walker, Jeremy Webber, JHH Weiler and Michael Zürn. The Editors are Mattias Kumm, New York University, School of Law, USA; Anthony F. Lang Jr, University of St. Andrews, Scotland; Miguel Poiares Maduro, European University Institute, Florence, Italy; James Tully, University of Victoria, Canada (consulting editor); and Antje Wiener, University of Hamburg, Germany.
GlobCon will review articles up to 15,000 words (including notes and bibliography), although authors will be encouraged to reduce their papers to fewer than 12,000 words before publication. Brevity is encouraged and shorter papers will be advantaged in acceptance decisions. Please include a word count with submission, along with an abstract of approximately 200 words which is not repeated from the paper itself. Please include up to five keywords for the article. Authors should submit both a complete version of the manuscript and an anonymous version, stripped of all identifying references to the author(s) that can be sent to reviewers. The citation style of the submission should either be Chicago or Harvard Style. Please do not use endnotes.
Submissions via email to the journal’s managing assistant:
Sassan Gholiagha, firstname.lastname@example.org.
[image: David Teniers, Stilleben, c. 1645-1650 via].
December 06, 2010
Karlan on Judicial Activism
phrase “judicial activist” (or “activist judge”) is so frequently used that it has come to exemplify what George Orwell described in the 1946 essay “Politics and the English Language” as a term with “no meaning except in so far as it signifies ‘something not desirable.’”
Karlan also provides a bit of perspective Justice Roberts - - - Justice Owen Roberts - - - and the issue of legislators who abdicate their own responsibility to the Constitution.
The column packs a lot of important ideas into a easily readable and condensed form. ConLawProfs teaching undergraduate courses might find this column could be the solid basis for an assignment, either at the beginning of next semester or the close of this one. "Discuss."
September 27, 2010
Updating the ECPA (Electronic Communications Privacy Act)
The constitutional protection of "privacy" in the internet age is a subject of ongoing debate. As the NYT reports, Congress is considering "sweeping new regulations for the Internet," to include email, "Facebook" and "Skype" messaging.
Such revisions will, of course, be subject to challenge under the First and Fourth Amendments. Jim Dempsey, of the Center for Democracy and Technology, testified before the Judiciary Committee and stressed the Fourth Amendment aspects of privacy, as well as highlighting the disarray of the current state of the law.
Dempsey's appendix to his written testimony, discussing the current state of the law regarding protection for an email, demonstrates the doctrinal disorder:
ECPA, as interpreted by the Justice Department and the courts, provides a patchwork quilt of standards for governmental access to email. Under ECPA today, the status of a single email changes dramatically depending on where it is stored, how old it is, and even the district within which the government issues or serves its process.
Standards for access to the content of an email:
• Draft email stored on desktop computer – As an email is being drafted on a personʼs computer, that email is fully protected by the Fourth Amendment: the government must obtain a search warrant from a judge in order to seize the computer and the email.
• Draft email stored on gMail – However, if the person drafting the email uses a “cloud” service such as Googleʼs gMail, and stores a copy of the draft email with Google, intending to finish it and send it later, ECPA says that Google can be compelled to disclose the email with a mere subpoena. 18 U.S.C. 2703(b).
• Content of email in transit – After the person writing the email hits “send,” the email is again protected by the full warrant standard as it passes over the Internet. Most scholars and practitioners assume that the Fourth Amendment applies, but in any case the Wiretap Act requires a warrant to intercept an email in transit.
• Content of email in storage with service provider 180 days or less – Once the email reaches the inbox of the intended recipient, it falls out of the Wiretap Act and into the portion of ECPA known as the Stored Communications Act, 18 U.S.C. 2703(a). At least so long as the email is unopened, the service provider can be forced to disclose it to the government only with a warrant.
• Content of opened email in storage with service provider 180 days or less – The Justice Department argues that an email, once opened by the intended recipient, immediately loses the warrant protection and can be obtained from the service provider with a mere subpoena. (Under the same theory, the sender of an email immediately loses the warrant protection for all sent email stored with the senderʼs service provider.) The Ninth Circuit has rejected this argument. The question remains unsettled in the rest of the country. The Justice Department recently sought opened email in Colorado without a warrant; when the service provider resisted, the government withdrew its request, which means in effect that outside of the Ninth Circuit there may be one standard for service providers who comply with subpoenas and one for service providers who insist on a warrant.
• Content of email in storage with service provider more than 180 days – ECPA specifies that all email after 180 days loses the warrant protection and is available with a mere subpoena, issued without judicial approval.
Dempsey, written testimony at 15.
ConLawProfs looking for a provocative class discussion or exercise could attempt to elucidate the constitutional theory underpinnings of the current state of email protection, or make arguments regarding the government's attempts to include "Facebook" or "Skype," or the application to the military's "Don't Ask, Don't Tell" policy as construed by a judge who considered the military's use of private emails in her conclusion that the policy is unconstitutional.
September 27, 2010 in Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, Fundamental Rights, News, Privacy, Speech, Teaching Tips, Theory, Web/Tech | Permalink | Comments (0) | TrackBack
September 26, 2010
Miranda and Television: Anthony Franze, Justice Sotomayor, and the Roberts Court
Miranda warnings are a staple of "TV cop shows," and have become so ubiquitous that persons arrested in Canada, Australia, the U.K., and presumably other nations, reportedly protest when they do not receive their "Miranda warnings." The warnings are, of course, derived from the United States Supreme Court case of Miranda v. Arizona, decided in 1966. But are the protections about to be relegated to television, as one attorney has suggested, or perhaps to the bygone "television era"?
In an article just published in Harvard Law and Policy Review Online, Anthony Franze makes a compelling argument that Sotomayor's comment is incorrect, and indeed quotes Sotomayor's dissenting opinion in support of his position:
To borrow from Justice Sotomayor’s Berghuis dissent, the new rules “turn Miranda upside down,” reflect “a substantial retreat from the protections against compelled self-incrimination,” “ignore the important interests Miranda safeguards,” and “bode poorly for the fundamental principles that Miranda protects.”
Franze considers Berghuis, as well as Florida v. Powell and Maryland v. Shatzer, and concludes that these cases reaffirm that the Court will not overrule Miranda in a single, headline-grabbing decision. Rather, the case has been condemned to a death by a thousand cuts." As for the future, Franze sees Sotomayor as the Justice "who may turn out to be the most forceful, if unexpected, advocate for Miranda in Stevens’s absence," because although she joined the majorities in Powell and Shatzer," giving "early signals were that her years as a prosecutor and judge may have left her no friend of Miranda," it is " those practical experiences that may, as in her vigorous dissent in Berghuis, render her loath to place further limits on Miranda."
As for the newest Justice, Franze discusses Kagan's record, but notes that her views as Solicitor General do not necessarily predict her views as Supreme Court Justice.
There has certainly been much discussion about last term's Miranda cases, including an excellent article by Professor Kit Kinports, available on ssrn here, and commentary by our colleagues over at CrimProfBlog.
Franze's article adds to the literature, certainly, but it also serves as a great overview for ConLawProfs who may have not fully engaged with constitutional criminal procedure developments last term.
September 01, 2010
Federalism, Criminal Law and Immigration Conference
Karla McKanders (pictured left), University of Tennessee College of Law, and Jennifer Chacon (pictured right), University California Irvine School of Law, are among the speakers at the November 5, 2010 Symposium on Federalism to be held at Loyola Law New Orleans.
Bill Ong Hing (pictured below) University of San Francisco will deliver the keynote.
More information here.
August 18, 2010
The Nineteenth Amendment: Tennessee's Ratification Ninety Years Ago Today
Tennessee became the necessary 36th state to ratify the Nineteenth Amendment on August 18, 1920.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
The Amendment was made necessary by the Court's 1874 decision in Minor v. Happersett concluding that the Fourteenth Amendment did not extend citizenship rights to women.
The Amendment was first introduced in Congress in 1878, but the amendment eventually ratified by the required three-fourths of the states was introduced in 1919, with quick ratification by Illinois, Michigan, Kansas, New York and Ohio.
[image: Suffrage Parade, New York City, ca. 1912, via]
While the Nineteenth Amendment has not engendered much constitutional jurisprudence, ConLawProf Reva Siegel has argued that the Amendment could be the basis for Congressional power to address sex discrimination. Her 2002 article, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, available on ssrn, argues:
The debates over woman suffrage that began with the drafting of the Fourteenth Amendment and concluded with the ratification of the Nineteenth Amendment are plainly relevant to understanding how the guarantee of equal citizenship applies to women. At the founding and for generations thereafter, Americans believed women did not need the vote because they were represented in the state through male heads of household. By adopting the Nineteenth Amendment, Americans were breaking with traditional conceptions of the family that were rooted in coverture, as well as with understandings of federalism that placed family relations beyond the reach of the national government. The debates over the Nineteenth Amendment thus memorialize the nation's decision to repudiate traditional conceptions of the family that have shaped women's status in public as well as private law and that are inconsistent with equal citizenship in a democratic polity. If concepts of sex discrimination were informed by the experience and deliberative choices of past generations of Americans, equal protection doctrine would better recognize forms of discrimination historically directed at women; and the law of federalism would take a more critical approach to claims that the family is a local institution, beyond the reach of the national government.
Perhaps a robust Nineteenth Amendment jurisprudence is yet to come?
August 14, 2010
Social Security: Questions about its Constitutionality on its Diamond Anniversary
The Social Security Act of 1935, spear-headed by Franklin Delano Roosevelt, turns seventy-five today.
[image: President Roosevelt signing the Social Security Act, via].
But as Justice Cardozo said in 1937:
The Social Security Act (Act of August 14, 1935, c. 531, 49 Stat. 620, 42 U.S.C. c. 7, (Supp.)), is challenged once again.
Although the Court upheld the Act in the 1937 cases of Helvering v. Davis (which began with Cardozo's statement above) and in Steward Machine Company v. Collector of Internal Revenue Service, there are those who continue to argue it is unconstitutional, including Republican Congressperson John Shadegg.
In service of that conclusion, Shadegg has sponsored the Enumerated Powers bill, which provides:
Each Act of Congress shall contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that Act. The failure to comply with this section shall give rise to a point of order in either House of Congress. The availability of this point of order does not affect any other available relief.
Such a requirement does not seem problematic at first blush, although the Court could presumably find that Congress did not have power under the rational Congress articulated but nevertheless possessed authority pursuant to a different constitutional power.
August 08, 2010
Dworkin on Kagan
[image: Constitutional Oath, August 7, 2010, via]
Reflecting on the criticisms of the confirmation process, Dworkin agrees that the process seemed "pointless," but also notes that there is an important argument supporting a nonsubstantive - - - or at least non-detailed - - - confirmation process:
It is crucial to the role Supreme Court justices play in our constitutional system that they be free and able to reject popular opinion—to overrule the wishes of the majority in order to protect individual rights. The individual rights that need protection are often unpopular; it would compromise that crucial role were the public able to defeat a nominee because he or she proposed to defend such rights. It seems doubtful, for instance, that anyone who declared a concern to protect due process rights of suspected terrorists, or to better protect the rights of women to choose abortion, or to recognize a constitutional right to gay marriage could be nominated now or, if he were, escape a filibuster or outright defeat. So if nominees were as candid as Kagan proposed in 1995, and senators approved only those with very popular opinions, Americans might lose their traditional protection against majority selfishness, intolerance, or prejudice.
Dworkin's conclusion, however, seems a bit problematical. He argues for a "structural change in the Judiciary Committee’s procedures" that would "appoint special majority and minority counsel, who might be academic specialists in constitutional law, to conduct a major part of the hearings, as other congressional committees do in other investigations." This may have some limitations given that the US Supreme Court is not a "Constitutional Court" limited to constitutional issues as in some other constitutional democracies, but also has important powers regarding the interpretation of federal statutes, regulations, and policies. However, Dworkin supports his suggestion with his view of the place of constitutional discourse in our democracy:
But confirmation hearings remain the best and perhaps only opportunity to make constitutional law a matter of public interest and concern. That is a grand goal—it would improve our democracy in many ways—and we should miss no opportunity to pursue it.
Is it true that constitutional law is lacking as a "matter of public interest and concern" these days?
August 03, 2010
Birthright Citizenship, Fourteenth Amendment, and Constitutional InterpretationsThe Fourteenth Amendment begins, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
Some Senators want Congress to “reconsider” this provision which confers what has come to be called "birthright citizenship." In the words of Arizona Senator Jon Kyl:
“There is a constitutional provision in the 14th Amendment that has been interpreted to provide that, if you are born in the United States, you are a citizen no matter what. … And so the question is, if both parents are here illegally, should there be a reward for their illegal behavior?”
Kyl has suggested to fellow Senators that “we should hold some hearings and hear first from the constitutional experts to at least tell us what the state of the law on that proposition is.”
A good place to start might not be with a "constitutional expert," but with Brook Thomas’ new article in Law and Literature, entitled The Legal And Literary Complexities of U.S. Citizenship Around 1900. (It is available on westlaw and lexis, and in print, Law and Literature Jul 2010, Vol. 22, No. 2: 307–324).
Thomas (pictured above), an English professor, has long been considering citizenship in historical and literary contexts and is the author of several books on related subjects, but this essay is refreshingly brief. Thomas writes:
One year before he argued Homer Plessy's case before the Supreme Court, Albion W. Tourgée wrote, "Citizenship in the abstract is the most comprehensive, complex, difficult and important of human relations, and American citizenship is especially complex in its character and relations." This essay explores those complexities by cross-examining three Supreme Court cases decided within five years of one another--Plessy v. Ferguson (1836), U.S. v. Wong Kim Ark (1898), and Downes v. Bidwell (1901).
Thomas also turns to several novels from the period to illuminate the contexts of the cases.
Thomas notes that the politics of the debates of 1900 are very different from the politics of the debates of 2010, including those surrounding birthright citizenship, an issue “supposedly resolved by Wong Kim Ark.” Nevertheless, he argues
we cannot properly understand the complexities of our present debates without understanding the complexities of those in the past. I also suspect that our understanding would be enhanced if we turned to some recent works of literature.
Perhaps Professor Brook Thomas might be attempting to elucidate some of the complexities of the present debate by answering questions from Senator Kyl in a future hearing
July 30, 2010
The Inconsistent Tenth Amendment?
That was the original title of this Op-Ed, published in the Los Angeles Times today here.
July 10, 2010
Kagan on Mark Tushnet and Harold Koh: Post Confirmation Hearing Responses to Senators Questions
Supreme Court Nominee Elena Kagan has submitted her written responses to post-testimony "Questions Submitted for the Record" from Senators Jeff Sessions, Chuck Grassley, Jon Kyl, Lindsay Graham, John Cornyn, and Tom Coburn. These have been added to the materials from the Senate Judiciary Committee here.
Senator Tom Coburn was concerned with Kagan’s opinions of Mark Tushnet’s scholarship:
Q: You were dean of Harvard Law School when Professor Mark Tushnet was hired. Like you, Professor Tushnet also clerked for Justice Thurgood Marshall, and when he received an endowed chair position at Harvard, you introduced him and called him as “one of the world’s leading law scholars, particularly one of the world’s leading constitutional law scholars” and praised his “contributions to the world of scholarship.” In a 1981 law review article entitled “The Dilemmas of Liberal Constitutionalism, Professor Tushnet asserted that, if he were a judge, he “would decide what decision in a case was most likely to advance the cause of socialism.”
a. Is this one of Professor Tushnet’s “contributions to the world of scholarship?
Response: My introduction for Professor Tushnet was not intended to suggest my agreement with any particular aspect of his scholarship or any particular article. It was intended to recognize his general standing in the sphere of constitutional law scholarship.
b. How would you characterize such an approach to the law?
Response: If Professor Tushnet meant that a judge should decide cases based on her own policy views about the best result, then I would characterize that approach as contrary to the rule of law.
c. Would you endorse it? Why or why not?
Response: No. Judges should decide cases based on legal sources, not on policy or political views.
Coburn came back to Mark Tushnet a few questions later, regarding state action:
Professor Tushnet has recommended reconsidering the 1883 Civil Rights cases in which the Supreme Court held that the 14th Amendment prohibited only the abridgement of individual rights by the state, rather than by private individuals and institutions. The Supreme Court has stated: “It is state action of a particular character that is prohibited. … The wrongful act of an individual is simply a private wrong and if not sanctioned in some way by the state, or not done under state authority, the [individual’s] rights remain in full force.” Professor Tushnet stated:“The state-action doctrine contributes nothing but obfuscation to constitutional analysis. It works as a bogeyman because it appeals to a vague libertarian sense that Americans have about the proper relation between them and their government. It seems to suggest that there is a domain of freedom into which the Constitution doesn’t reach. We would be well rid of the doctrine.”
a. Do you agree with Professor Tushnet’s desire to be rid of the state action doctrine? Why or why not?
Response: No. The state-action doctrine has been repeatedly reaffirmed by the Supreme Court,and the decisions adopting and applying the state action doctrine are entitled to stare decisis effect. These decisions, indeed, function as a basic postulate of our constitutional system.
Coburn also asked, “Do you agree with the views of the Critical Legal Studies movement?” The simple response: “No.”
Senator John Cornyn discussed Professor Harold Hongju Koh's scholarship regarding "the difference between nationalists and transnationalists, whom, he says, 'hold sharply divergent attitudes toward transnational law,' and then asked:
As described by Professor Koh, are you a transnationalist or a nationalist? Have you ever previously expressed your position on this question? What did you say?
Response: I would not characterize myself using Professor Koh’s categories, which I do not find particularly helpful in thinking about the issues involving foreign or international law that are likely to come before the Court. I have never used these terms for any purpose.
Other interesting subjects of inquiry include Sessions asking questions regarding recusal, the Second and Eighth Amendments, and many of her memos as law clerk to Justice Thurgood Marshall; Grassley on Garcetti v. Ceballos regarding the First Amendment rights of government employees, and the relationship between the takings clause and the taxing power, Kyl on Kagan's opinion on Arizona SB 1070 and the (then-contemplated) federal lawsuit, and Coburn's concern with Kagan's "personal lack of pro bono legal services,” comparing her unfavorably to other recent nominees, including Harriet Miers.