Saturday, May 5, 2012
The role of the "lower" federal courts in shaping constitutional doctrine as it is taught and theorized can be under-rated. Many ConLawProfs have strategies to combat SCOTUS-dominance in our classrooms given our understandings about how constitutional law is actually practiced. But often our discussions of "lower court" decisions are refracted through SCOTUS opinions as well as being very doctrinally focused.
In an important new article, Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System, forthcoming in American University Law Review, available on ssrn, Professor Doni Gewirtzman considers how constitutional law operates at the circuit court level. Gewirtzman argues that circuit courts - - - and indeed, individual judges - - - are parts of an interpretive system where constitutional law is made from both the top-down and from the bottom-up.
Using a "complex adaptive system” model, Gewirtzman considers how courts "balance their need for overall order and stability with demands for evolution and change," relying on both variation (the degree to which the system’s components differ from one another) and interdependence (the degree to which the system’s components affect one another) to manage those competing forces.
In so doing, Gewirtzman has some compelling insights about the circuit courts as "percolators" of constitutional law and some useful discussions of "outlier" judges and circuits. While Gewirtzman does discuss specific examples, the strength of the article is its attempt to provide a theoretical framework that makes constitutionalism in the circuit courts explicable apart from specific doctrine.
It's an article worth reading for any ConLawProf whose teaching and scholarship considers circuit courts - - - and perhaps even more important for ConLawProfs who have become exclusively focused on SCOTUS as the sole arbiter of US constitutional law.
Friday, April 27, 2012
On April 27 and 28, 2012, Yale Law School will host a conference on constitutional interpretation and change in conjunction with the publication of Professor Jack Balkin’s book, Living Originalism (Harvard University Press 2011), with many exciting panelists.
Not at the conference? Watch the live stream.
Saturday, March 17, 2012
Alli Orr Larsen's article, Confronting Supreme Court Fact Finding, forthcoming in Virginia Law Review and available on ssrn, takes as it starting point the generalized facts that many readers of Supreme Court constitutional opinions notice the Court claims to know - - - and that the majority and dissenting opinions may not agree upon. Larsen gives a few examples - - - "is a partial birth abortion ever medically necessary? Can you effectively discharge a locked gun in self-defense? Are African American children stigmatized by segregated schools?"
The article "collects 100 examples of factual authorities relied on in recent decisions of the U.S. Supreme Court that were found “in house” – i.e. that cannot be found in any of the party briefs, amici briefs, or the joint record." She shows that "of the 120 cases since 2000 that political scientists label the “most salient Supreme Court decisions” – largely measured by whether they appear on the front pages of newspapers– 58 percent of them contain at least one assertion of legislative fact supported by sources found 'in house.' " Some of these facts are historical, with obvious implications for original intent interpretative strategies. The most common, according to Larsen, are facts, including statistics, "to demonstrate the emerging significance of a question to society."
Larsen contends that the information revolution has changed the way the Court sources its fact:
The digital revolution has two palpable relevant effects: it increases the amount of factual information available for review (statistics, social science research, polling data can all be posted to the world for free by anyone now) and it also makes this information faster to obtain -- literally just fingertips and a Google search away.
Larsen argues that while there are certainly benefits to letting judges research freely in a new digital age in which more information is available, there are also troubling effects: the systematic introduction of bias; the possibility of mistake; and concerns about notice and legitimacy.
She also has some suggestions, including a more open process in which "when the Court contemplates a question of legislative fact, it would solicit opinions and evidence from all interested parties and encourage public participation much like the notice and comment process in administrative agencies."
One can only imagine the comments section of a newly enhanced Supreme Court website! And for conlawprofs who allow open internet access during class, it could be a terrific exercise to take a moment and allow students to "check" a legislative fact in a Supreme Court opinion assigned for that class.
Larsen's article is a great contribution to the problem of "legislative facts" and a forward-looking reality-check to constitutional adjudication in the information age.
Tuesday, January 17, 2012
What are constitutions if not plans for gardens?
From the CFP: "The theme for next year’s Critical Legal Conference is “Gardens of Justice”. Although the theme may be interpreted in different ways, it suggests thinking about law and justice as a physical as well as a social environment, created for specific purposes, at a certain distance from society and yet as an integral part of it. The theme also invites you to think about justice as a concrete metaphor rather than an abstract concept. Just like any ordinary garden, legal institutions affect both people working in them and people who are just passing through their arrangements."
Critical legal conference 2012
to be held in Stockholm, 14-16 September, 2012
deadline for submissions
streams, roundtables and workshops: 31 March 2012; individual papers: 31 May 2012
[image: Frederick Carl Frieseke's Femme dans un jardin, 1912 via]
Thursday, December 29, 2011
The Second Circuit rejected a First Amendment challenge to New York City's laws which seek to prevent so-called "pay-to-play" schemes that link campaign contributions to city contracts.
In a panel opinion rendered last week in Ognibene v. Parkes, authored by Judge Paul Crotty, a district judge sitting by designation, and with two concurring opinions, the Second Circuit upheld the law. The challenged provisions were those that
- limit campaign contributions by individuals and entities that have business dealings with the City (from the generally applicable limit of $4,950 to $400 for mayor, comptroller, and public advocate, with similar schemes and reductions for borough presidents and members of city council);
- exclude such contributions from matching with public funds under the public financing scheme; and
- expand the prohibition on corporate contributions to include partnerships, LLCs, and LLPs.
The district judge had upheld the city laws in 2009, but the Second Circuit now had to consider both Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011). Ultimately, the panel found that neither case altered the district judge's conclusion.
As to Citizens United, the panel opinion rejected the appellants' attempt - - - through "selective and misleading quotes" from Citizens United - - - to broaden Citizens United and obliterate the Supreme Court's "clear distinction between limits on expenditures and limits on contributions." (at 18). For the panel, Citizens United "confirmed the continued validity of contribution limits, noting that they most effectively address the legitimate governmental interest, identified by Buckley [v. Valeo], in preventing actual or perceived corruption."
More contentious, however, was the nature of the actual or perceived corruption required. As the panel opinion noted, although "Citizens United stated that mere influence or access to elected officials is insufficient to justify a ban on independent corporate expenditures, improper or undue influence presumably still qualifies as a form of corruption," citing Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011). Judge Debra Ann Livingston concurred separately to disagree with any notion that improper influence was a form of corruption that could be constitutionally addressed. However, the panel lauded the city's fact-finding about corruption and the perception of corruption, stating both that the city need not wait until the "dog" actually bit before enacting legislation (at 27) and that there were actual recent "scandals involving exchanges of money for favors," (at 31 n.15 citing news reports).
Having found the government interests sufficient, the panel opinion then analyzed whether the provisions were closely drawn. The panel opinion rejected the argument that the provisions were poorly tailored because they were not "indexed for inflation" and because they discriminated based upon viewpoint. The viewpoint argument was largely based upon the exclusion of nonprofits such as neighborhood associations from the city law, but the panel stated that appellants never specified the viewpoint, and that neighborhood associations (for example) did not have a unified viewpoint.
The panel also rejected the challenge to the matching funds provision, distinguishing Bennett, and found that the entity ban, including not only corporations but partnerships, was sufficiently closely drawn.
Judge Guido Calabresi's interesting concurring opinion merits a close and full read. Beginning with a Biblical passage, Calabresi states his disagreement with the Supreme Court's belief in the majority opinion in Citizens United that a government antidistortion interest (to "level the playing field") is inconsistent with the First Amendment. Instead, courts should recognize that interest in the same manner that they recognize the validity of noise ordinances:
If an external factor, such as wealth, allows some individuals to communicate their political views too powerfully, then persons who lack wealth may, for all intents and purposes, be excluded from the democratic dialogue. In much the same way that anti-noise ordinances help to prevent megaphone users from drowning out all others in the public square, contribution limits can serve to prevent the wealthiest donors from rendering all other donors irrelevant—from, in effect, silencing them.
Moreover, the problem with the loudness of the megaphone in the public square
is not just that it drowns out the voices of others, but also that it misrepresents, to an outside observer, the relative intensity of the speaker’s views. That is, even if the megaphone user cares little about the issue being discussed, his voice gets heard above all others, while the voices (and intensity of feelings) of those who care passionately about the issue (and shout their beliefs at the top of their lungs) seem small in comparison. The one speaker’s relative loudness— along with the other speakers’ relative softness—obscures the depth of each speaker’s views, thereby degrading the communicative value of everyone’s message.
Calabresi's opinion articulates some of the same criticisms of campaign financing that animate the Occupy Wall Street movement. He concludes by criticizing the Supreme Court's lack of deference to the legislature and essentially suggesting that the Court's activism (although he does not use that term) will be eventually ameliorated, whether through a "constitutional amendment or through changes in Supreme Court doctrine."
[image: "Charging Bull" on Wall Street]
December 29, 2011 in Campaign Finance, Current Affairs, Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis, Recent Cases, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 21, 2011
With Ron Paul reportedly becoming a "serious contender" in the presidential primary, there is renewed attention to his views on the Federal Reserve as "dishonest, immoral, and unconstitutional," encapsulated in his campaign slogan, "end the fed. "
An extended video, Fiat Empire, now about 6 years old, is a good introduction to the issues.
The argument supporting the unconstitutionality of the Federal Reserve can be summed up in the phrase "the poster child of unconstitutional private delegation," cited to John Hart Ely in Timothy Canova's article, Black Swans and Black Elephants in Plain Sight: An Empirical Review of Central Bank Independence, available on ssrn. Section 4 of the article is a great overview and argument regarding the Federal Reserve. (I assigned this section last semester in Constitutional Structures in conjunction with Free Enterprise Fund v. PCOAB which Canova also discusses, and showed a short clip from Fiat Empire; it was well-receoved by students.)
As Canova notes, concerns about the Federal Reserve arise both from the "populist libertarian right" and the "populist progressive left" : When "Representative Ron Paul, a Republican libertarian from Texas, introduced a bill to subject the Federal Reserve to an audit by the Government Accountability Office (GAO)" it was "cosponsored on the left by such Democratic and progressive Congressmen as Dennis Kucinich from Ohio and Alan Grayson from Florida."
Canova and others, including Joseph Stiglitz, Jeffrey Sachs, and Robert Reich have been named experts on a panel advising a United States Senator to "develop legislation to restructure the Fed and tighten rules on conflicts of interest, ensure that the Fed fulfills its full-employment mandate, increase transparency, protect consumers and reduce income inequality." That Senator is Bernie Sanders, Independent-Vt. And while Paul and Sanders may agree on some aspects of the Federal Reserve, they seem to be very far apart on health care reform.
Monday, November 14, 2011
An interesting segment on NPR's Morning Edition comparing Ayn Rand's economic thoughts to pronouncements of current politicians. Rand is the author of the novels Atlas Shrugged (1957) and The Fountainhead (1943).
The highlight is a 1959 interview with Rand by Mike Wallace, who asks about the United States' political direction of "the gradual growth of social, protective legislation, based on the principle that we are our brothers' keepers."
These programs are destroying individual liberties, Rand says, especially the freedom of producers, entrepreneurs, businessmen. The government has no right to take their property, she says.
"I imagine that you're talking now about taxes," Wallace says. "And you believe that there should be no right by the government to tax. You believe that there should be no such thing as unemployment compensation, regulation during times of stress."
"That's right," Rand replies. "I am opposed to all forms of control. I am for an absolute, laissez-faire, free, unregulated economy."
A video of the interview is available in 3 parts; here's part 1:
While the usual constitutional law link might be Lochner, Rand's interview could prompt an interesting discussion of Commerce Clause, Takings Clause, or Taxing Clause, or Campaign Finance cases - - - and of course the Affordable Care Act (last discussed here).
Friday, September 9, 2011
The intersections of constitutional protections for liberty, equality, free speech, and free exercise of religion can make for convoluted and contentious cases. Christian Legal Society (CLS) v. Martinez, decided by the Court in 2010, is a prime example, with the additional factual setting at a law school heightening the interest for legal scholars.
In How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38 Hastings Const. L.Q. 631 (2011), Professor Julie Nice, University of San Francisco School of Law, pictured left, argues that the case illuminates several different doctrinal and theoretical controversies, ultimately making liberty more robust because it refuses the conflation of identity and ideology.
The article is further discussed as my selection for the Jotwell Equality section; it's the best essay I've read on constitutional equality in the last year. It's essential reading for every ConLawProf.
September 9, 2011 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Profiles in Con Law Teaching, Religion, Scholarship, Sexual Orientation, Sexuality, Speech, Supreme Court (US), Theory | Permalink | Comments (1) | TrackBack (0)
Monday, June 27, 2011
Monday, June 13, 2011
As Adam Liptak points out in his NYT column, the use of dictionaries in United States Supreme Court opinions is "booming." Liptak refers to Justice Breyer's criticism of any reliance on dictionary definitions of the word "license" in his dissenting opinion in Chamber of Commerce v. Whiting last week, even as Breyer's opinion for the Court in Fowler v. United States, issued the same day, refered to the dictionary (albeit the OED) to determine the meaning of "prevent."
Liptak quotes Professor Jeffrey Kirchmeier of CUNY School of Law (pictured right) and Samuel Thumma for their recently published "study" in Marquette Law Review, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94 Marq. L. Rev. 77 (2010), available on ssrn and from the law review. The article by Kirchmeier and Thumma builds on their previous work, Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 BUFF. L. REV. 227 (1999) and Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 GREEN BAG 51 (2001) (both available on ssrn).
For originalists, resort to earlier dictionaries may seem to make sense - - - word usage changes, after all - - - but as Kirchmeier and Thumma point out, dictionaries were once devoted to prescriptive meanings rather than actual usage. Moreover, not all dictionaries are created equal, then or now. Kirchmeier and Thumma demonstrate that there is a great deal of randomness in dictionary choices by the Justices.
The 2010 article and the previous ones employ a mix of theoretical analysis and quantative analysis. However, the pieces also include amazing appendices. The 2010 article analyzes the approximately 300 words/phrases the Court cited a dictionary to define from the 2000-1 Term to the 2009-10 Term. It includes three appendices of cases from the United States Supreme Court: (1) words and phrases defined by the Court (Appendix A); (2) Justices citing to dictionaries, including their frequency of use and which dictionaries are used (Appendix B); and (3) dictionaries cited by the Court (Appendix C).
Ultimately, Kirchmeier and Thumma argue that the Court should clarify some standards for the use of dictionaries. Until then, Kirchmeier and Thumma provide excellent analysis - - - and useful fodder for scholarship and teaching.
Sunday, June 12, 2011
After reading Heyman on Holmes as Mr. Hyde, one may be in need of a terrific primary source for Holmes' views on free speech. Look no further than The Fundamental Holmes: A Free Speech Chronicle and Reader – Selections from the Opinions, Books, Articles, Speeches, Letters and Other Writings by and about Oliver Wendell Holmes, Jr., edited by Ronald K. L. Collins.
Paul Weizer's review in Law & Politics Book Review observes:
The main aim of this book is to explore the life of Holmes and the events which led to his free speech jurisprudence. This is done through a careful examination of the personal correspondence, public speeches and judicial opinions of Holmes. This book is billed as the first complete collection of works by Justice Holmes on matters related to free speech. However, it is more than just that. By providing letters and speeches, in addition to the traditional judicial opinions found elsewhere, Collins helps to provide a sense of the man and a view of the Justice.
Weizer does fault the book for having commentary "so thorough" that "often times it is unnecessary to read" the actual passages from Holmes. Weizer also wonders about the intended audience for the book. But for scholars citing Holmes' opinions, the book seems an invaluable resource for further contextualizations of the opinions and access to other primary sources.
Saturday, June 11, 2011
Professor Steven J. Heyman's article, The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, has just been published, 19 William & Mary Bill of Rights Journal 661-723 (2011), with a draft available on ssrn.
It is a must-read, especially for those intending to quote Justice Oliver Wendell Holmes (pictured left) in their scholarship this summer or in their future teaching. Heyman's article is an excellent exploration of Justice Holmes writings - - - both in Holmes' opinions and elsewhere - - - on First Amendment and democratic values.
Heyman argues that First Amendment jurisprudence has "Jekyll-and-Hyde quality." There is a deep divide between the Constitutional protection of "freedom of expression in order to promote basic liberal values such as individual self-fulfillment, democratic deliberation, and the search for truth," and on the other hand, protection for "racist hate speech, violent pornography, invasion of privacy, and other kinds of expression that undermine those fundamental values." Although Heyman does not extend the Jekyll and Hyde metaphor explicitly, what is clear is that Heyman conceptualizes Justice Holmes not as the more respectable Dr. Jekyll, but as the evil Mr. Hyde of Robert Louis Stevenson's famous novel.
Heyman analyzes Holmes' famous "marketplace of ideas" conceptualization of the First Amendment, noting Holmes' "deeply held Darwinian views about life and law." Id. at 690. Holmes' competitive notion of democracy, best expressed in Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting), has always seemed a bit at odds with another of Holmes' well known passages, his dissent in Lochner v. New York 198 US 45 (1905). Heyman views Holmes' as consistent:
Holmes understood social and political life in terms of group conflict, such as the struggle between workers and employers. He saw the constitutional order as a neutral framework for channeling such conflict and resolving it by lawful means. This is the view that animates the other judicial opinion for which he is best known—his dissent in Lochner v. New York. There he writes that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Instead, the Constitution establishes an arena within which groups with “fundamentally differing views” can struggle for dominance. “Every opinion tends to become a law,” and except in the most extreme cases, the courts should not interpret the Constitution to prevent “the natural outcome of a dominant opinion” or to interfere with “the right of a majority to embody their opinions in law.”
19 Wm.&Mary Bill Rts. J. at 684 (footnotes omitted). Heyman is most convincing regarding his critique of Holmes' worldview and its ultimate meanings for democracy. He elucidates the "broader problem with Holmes’s view" thusly:
Contrary to the impression that may be conveyed by the expression “free trade in ideas,” Holmes does not believe that free speech does or should involve an interaction between autonomous subjects. Instead, he sees speech as an activity in which the speaker treats
others as objects. This may involve an effort to dominate them, but it may simply involve
an effort to use them to achieve the speakers’ own ends.
Id. at 705. Yet Heyman's article is not limited to a historical critique of Holmes, but an analysis of how this Holmesian view continues to affect recent free speech cases, including Citizens United, in which the Holmesian world view of the majority is juxtaposed to the liberal humanist views of Justice Stevens' dissenting opinion.
Put this on your summer reading list!
[image: Oliver Wendell Holmes, circa 1924, via]
Monday, April 4, 2011
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)
Sunday, March 20, 2011
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 (0)
Saturday, March 12, 2011
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)
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.
Thursday, March 3, 2011
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.
Tuesday, March 1, 2011
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
Monday, February 28, 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.
Friday, February 4, 2011
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 (0)