Friday, January 28, 2011
It is not only law students who believe facebook and twitter are "fundamental rights." State Department Spokesperson P.J. Crowley, speaking to AlJezeera about the situation in Eqypt, described "social media" as a "fundamental right, as clear as walking into a town square."
The statement starts at 50 seconds.
The AlJazeera interviewer suggests that the rubber bullets and detentions might be worth more emphasis than "facebook and twitter."
Sunday, December 19, 2010
We've previously posted on the problems of marriage monopoly under constitutional federalism and the E-marriage solution proposed by Mae Kuykendall and Adam Candeub.
The topic will be under discussion at AALS this January on a "hot topics" panel scheduled for January 7, 2011 at 4.00 pm. Panelists include:
Mae Kuykendall, MSU College of Law, Moderator
Adam Candeub, MSU College of Law, Presentation of the E-Marriage Concept
Larry Ribstein, Illinois College of Law, Critical Analysis
Anita Bernstein, Brooklyn Law College, Commentary on Marriage Essentials
Monu Bedi, Stetson School of Law, The Military Context
Aviva Abramovsky, Syracuse College of Law, State Export of Other Legal Arrangements
June Carbone, UMKC School of Law, Redefining Law and Geography
Thursday, December 2, 2010
Perry v. Schwazenegger, in which a federal district judge found California's Proposition 8 unconstitutional, is on appeal to the Ninth Circuit, under an expedited schedule and including the issue of the standing of the proponents.
The three judge panel, pictured below, was announced by the Ninth Circuit Monday.
The proponents quickly filed a motion to disqualify Judge Reinhardt alleging:
Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the
ACLU of Southern California. As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.”
Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.
The motion relies on statutory grounds for disqualification and does not make a due process argument relying on Caperton v. Massey Coal Co.
Judge Reinhardt quickly issued an order denying the motion. The order in full provides:
Before: REINHARDT, Circuit Judge:
I have before me defendants-intervenors-appellants’ motion to disqualify myself from this appeal. I have not hesitated to recuse from cases in the past when doing so was warranted by the circumstances. See Khatib v. County of Orange, 622 F.3d 1074, 1074 (9th Cir. 2010); Mohamed v. Jeppesen Dataplan, Inc., 586 F.3d 1108, 1109 (9th Cir. 2009); Buono v. Kempthorne, 527 F.3d 758, 760 (9th Cir. 2008); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 913, 914 (9th Cir. 2003); Valeria v. Davis, 320 F.3d 1014, 1015 n.** (9th Cir. 2003); Alvarez-Machain v. United States, 284 F.3d 1039, 1039 n.1 (9th Cir. 2002); Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997).
Here, for reasons that I shall provide in a memorandum to be filed in due course, I am certain that “a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); see also Sao Paulo State of the Federated Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229, 233 (2002) (per curiam). I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED.
The Ninth Circuit announced in a press release that the panel has "given consent for live broadcast of the proceeding, which is scheduled to air on C-SPAN. In addition, the court will distribute a live audio/video feed from the courtroom to remote viewing locations across the country, including some of the nation’s top law schools."
The Ninth Circuit has also established a special website for the case.
December 2, 2010 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, News, Sexual Orientation, Sexuality, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 29, 2010
First Amendment Protects Michigan Assistant AG's "Political Campaign" Against University Student President?
UPDATE: The Michigan Assistant AG has been terminated.
UPDATE: The Michigan Assistant AG has apparently taken a "leave of absence."
The CNN report by Anderson Cooper is worth watching:
The blog "Chris Armstrong Watch," by the Assistant AG is entirely devoted to Chris Armstrong, the student body president. The Michigan student newspaper has quoted the statement of Michigan AG Mike Cox:
“All state employees have a right to free speech outside working hours,” Cox said in a statement yesterday, according to the Free Press. “But Mr. Shirvell’s immaturity and lack of judgment outside the office are clear.”
RR (h/t Steve Sanders)
Monday, September 27, 2010
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 (0)
Tuesday, September 14, 2010
Much of the discussion seems to be lifted directly from
Breyer's new book, Making Our Democracy Work, released today.
An exception is a discussion about the recent threatened Quran burning.
TERRY GROSS: The Florida preacher who threatened to burn the Quran, some people said well, that's his free speech right and then, but what about the rights of Muslims who would be offended to the core, outraged by that act? As a Supreme Court justice, I wonder how you looked at - if you're willing to talk about it - how you looked at that event and if there's the possibility that burning a sacred text of any religion would be considered a hate crime. Like, how do you balance all of the rights and positions involved in a situation like that?
Justice BREYER: Well, I don't look at those things that - issues and so forth -that might come up in the future, because if they do come up in the future, I'll have the issue in front of me and it will be very, very well briefed. They'll be lots written about it and I'll be able to form a more intelligent opinion. I would say that where you're talking about the freedom of speech and something like this preacher or anything like that, I would keep two cases in mind.
One is years ago, Justice Holmes said you cannot shout fire in a crowded theater because that could kill people. Very well. That sets limits to the freedom of speech. But the court also said where an American flag is being burned in protest, that the Constitution protects that because it is a purely symbolic action which is being done, despite how much people hate it, to express a point of view. So, we probably, were we to have such a case, we'd have to have a law in front of us, see what it says, see what the actions are. But I've given you an outline, which sort of sets boundaries.
Breyer makes a good interview subject, speaking in an accessible manner. Students will especially enjoy the interview.
Tuesday, September 7, 2010
In time for the new Court term, the incredibly useful and wonderful SCOTUSblog has revamped its look and its organization - - - in a new version it is calling "SCOTUSBlog 4.0."
The SCOTUS Wiki will be phased out, a smartphone version is available, the statistics are on the front "page", and the overall shift is "from a focus on news of the moment to also serving as an archival resource regarding all of the merits cases and the serious cert. petitions."
Monday, August 16, 2010
Mike Wirth, "designer, educator, and artist," has a great graphic illustrating the federal legislative process. It's more detailed than the usual illustrations and could make a handy webcourse graphic.
A section is below, the full graphic is available here.
Wirth's "infographic resume" is also worth a look, especially if you are contemplating your career.
Wednesday, July 28, 2010
A report issued today by the National Conference of State Legislatures compiles bills proposed, vetoed, and adopted by state legislatures regarding immigration-related issues. This is a great research tool for anyone doing scholarship or litigation in this area, as well as preparing for class.
Summaries of the enacted laws - - - one table organized by state and another table organized by subject matter - - - are available at the NCSL website here. (Note: the website warns that the "NCSL publication and PDF are registered with the NCSL copyright and may not be reproduced, uploaded or distributed in any way in its entirety" so only a link is provided).
There is a wealth of information in the pdf summaries and discussed on the website. The summaries are 70 plus pages, in table form, with a bit of information and the bill number (but no hyperlink to the actual bill text). There is also a helpful database search feature here which provides links to find the text and legislative history of bills.
The NCSL represents its members - - - state legislatures - - - as continuing to "lead the way" on immigration issues and entitles its findings "States Step Up to the Plate on Immigration." It acknowledges the controversy that Arizona SB1070 has provoked. It also notes that "state laws related to immigration have increased dramatically over the past decade," with 300 bills introduced (and 38 enacted) in 2005, and more than 1500 bills (and 222 enacted) in 2009.
Wednesday, July 21, 2010
Arizona District Judge Susan Bolton, in a brief order, has denied the request of the First Amendment Coalition of Arizona to "permit camera coverage and rebroadcast of the preliminary injunction and motion to dismiss hearings" scheduled for tomorrow, July 22.
Judge Bolton notes that while there is a Ninth Circuit pilot project, the District of Arizona has not yet taken part in that "experiment" and that decisions will be made by the Chief Judge of the District in consultation with the Chief Judge of the Ninth Circuit.
Recall that the Proposition 8 trial was similarly not allowed to be visually recorded, with the United States Supreme Court staying an order to broadcast the trial by a 5-4 decision. Perhaps the "Arizona Immigration Trial" will also be treated to a re-enactment as was the Proposition 8 trial. And perhaps there will be an opinion in the Arizona Immigration Trial (at least on the preliminary injunction) more speedily than in the Proposition 8 case, in which a decision is still pending.
Monday, July 19, 2010
The Washington Post has launched its feature "Top Secret America." The project consists of three days of investigative reporting articles, the first one today entitled "A hidden world, growing beyond control."
The project also includes a searchable online database detailing private contractors and specific locations. The Editorial explanation is worth reading; here is a bit of it:
The articles in this series and an online database at topsecretamerica.com depict the scope and complexity of the government's national security program through interactive maps and other graphics. Every data point on the Web site is substantiated by at least two public records.
Because of the nature of this project, we allowed government officials to see the Web site several months ago and asked them to tell us of any specific concerns. They offered none at that time. As the project evolved, we shared the Web site's revised capabilities. Again, we asked for specific concerns. One government body objected to certain data points on the site and explained why; we removed those items. Another agency objected that the entire Web site could pose a national security risk but declined to offer specific comments.
We made other public safety judgments about how much information to show on the Web site. For instance, we used the addresses of company headquarters buildings, information which, in most cases, is available on companies' own Web sites, but we limited the degree to which readers can use the zoom function on maps to pinpoint those or other locations.
The feature should be of interest to anyone working on state secrets doctrine and theory. The extent of private involvement also implicates the state action doctrine and the problems with holding actors constitutionally accountable. The Washington Post explanation above also implicates First Amendment concerns.
Wednesday, July 7, 2010
This panel discussion (evening of July 8 in NYC) should be of interest to ConLawProfs whose work includes notions of participatory democracy.
The fantasy of participation is a powerful one, postulating, as it does, the invitation and inclusion of everyone, everywhere. The Internet, we are told, makes this dream a reality, erasing borders and distinctions, smoothing out differences and hierarchies. We are all equal now, because we believe everyone’s voice can be heard. Political theorist Jodi Dean calls this “communicative capitalism,” an ideological formation that fetishizes speech, opinion, and participation.
With participation now a dominant paradigm, structuring social interaction, art, activism, the architecture of the city, and the economy, we are all integrated into participatory structures whether we want to be or not. How are artists and activists navigating the participation paradigm, mapping the limits of collaboration, and modeling participatory forms of critical engagement?
More information here.
If you can't make the presentation, there are a host of other events during the exhibit and you could (should!) add Professor Dean's website and books (especially Democracy and other Neo-Liberal Fantasies) to your summer reading list.
Friday, March 19, 2010
Wednesday, February 17, 2010
Have a constitutional law perspective on the best-picture nominee and blockbuster Avatar?
Consider this CFP from The Journal for the Study of Religion, Nature and Culture. (H/T Feminist Philosophers).
And among the Academy Award nominees for documentary film is The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers, suitable for viewing (or reviewing) while teaching New York Times v. United States. If a class trip to the local cinema is not possible, consider one of the compressed and evocative snippets available:
Monday, February 1, 2010
Sunday, January 31, 2010
The United States Supreme Court may have blocked the actual broadcast of the Proposition 8 trial, but the enterprising folks behind www.marriagetrial.com are re-enacting the trial, using the transcripts and the reports from bloggers and tweeters.
The "episodes" will be available on YouTube. Here is the trailer:RR
January 31, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Gender, Recent Cases, Reconstruction Era Amendments, Sexual Orientation, Sexuality, Teaching Tips, Television, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Thursday, January 7, 2010
Lee Epstein's presentation this morning on the panel "American Constitutional Law and the New Supreme Court" at the AALS Annual Meeting in New Orleans highlighted the Supreme Court Database, now available online. The database has an excellent tutorial which enhances the goal of accessibility (especially for those of us who may not have been stellar in that long-ago statistics course).
According to its own description, the database "contains over two hundred pieces of information about each case decided by the Court between the 1953 and 2008 terms. Examples include the identity of the court whose decision the Supreme Court reviewed, the parties to the suit, the legal provisions considered in the case, and the votes of the Justices."
During her presentation, Northwestern University School of Law Professor Lee Epstein used the database to empirically test some oft-voiced propositions, such as Justice Kennedy being a judicial supremacist or Justice Alito's replacement of Justice O'Connor being a negative consequence for criminal defendants. By doing several different types of data analysis, Epstein was able to provide the empirical interpretation of the propositions.
While it certainly does not substitute for a close reading of opinions (and of course, is not intended to do so), the Supreme Court Database is a great addition to scholarship and teaching. And much easier to tailor to one's own interests than the (still essential) Supreme Court Compendium and much easier to use than the previous software.
Friday, December 11, 2009
And full disclosure: I've been working on a few myself in conjunction with one of my wonderful research assistants, who found it a relaxing project (or at least she said she did). We finalized the 131 character hint with much laughter and fun; our hints tended toward the witty (or at least what we thought was witty).
The instructions, for both those who want to answer and those who want to "question," are here.
And here is one, especially for fans of old English rock bands and even older constitutional law cases.
RR (thanks Kate Watson, CUNY class of 2011).
Tuesday, November 17, 2009
Google's newest enhancement has the potential to change the way we research constitutional law.
Here's an announcement from the "Official Google Blog"
Starting today, we're enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the "Legal opinions and journals" radio button, and try the query separate but equal. Your search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptability of "separate but equal" facilities for citizens at two different points in the history of the U.S. But your results will also include opinions from cases that you might be less familiar with, but which have played an important role.
The blog entry also has this populist proclamation:
As we worked to build this feature, we were struck by how readable and accessible these opinions are. Court opinions don't just describe a decision but also present the reasons that support the decision. In doing so, they explain the intricacies of law in the context of real-life situations. And they often do it in language that is surprisingly straightforward, even for those of us outside the legal profession. In many cases, judges have gone quite a bit out of their way to make complex legal issues easy to follow. For example, in Korematsu v. United States, the Supreme Court justices present a fascinating and easy-to-follow debate on the legality of internment of natural born citizens based on their ancestry.
Tuesday, June 16, 2009
Could Long Island actually secede from New York?
Our previous post from May 14 is here. It seems the Daily Show has caught up with us. The segment from last night's show (in that typically offensive style) is here:
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
|Long Island Wants to Secede|