Wednesday, September 18, 2013

Sixth Circuit Rejects Secular For-Profit Company's Claim Challenging ACA Under RFRA

The Sixth Circuit's succinct and unanimous opinion in Autocam Corporation v. Sebelius sided with the Third Circuit's July opinion in Conestoga Wood Specialties and against the en banc Tenth Circuit's June majority opinion in Hobby Lobby on the issue of whether a for-profit secular business has a free exercise of religion right (as a person) under RFRA, the Religious Freedom Restoration Act.  There is some intertwining of the First Amendment free exercise of religion claim, but the Autocam decision rests on RFRA.

Autocam, like Conestoga Wood and Hobby Lobby, and its owners, argue that the regulations under the Patient Protection and Affordable Care Act of 2010 (“ACA”) requiring employers cover contraceptive methods for their employees - - - often called the contraceptive mandate - - - infringes on their religious rights.  Autocam, like the others, is a large corporation.  And a quick look at Autocam's "mission" on its website indicates no expression of a religious purpose, but only providing superior products. 

Autocam

 

The Sixth Circuit interestingly found that while Autocam as a corporation had standing to assert its claims, the Kennedy family as members (owners?) of a "closely held corporation" did not have shareholder standing:  "Generally, shareholders of a corporation cannot bring claims intended to redress injuries to a corporation, even when the corporation is closely held."  The Kennedys argued that this rule should not apply in RFRA claims, but the court found nothing in RFRA to support their view.  Further, the court rejected their claims they were individually harmed or that a "pass through" theory could be applied.

As to the merits of the corporation's assertion of personhood under RFRA, the court found that RFRA did not support such an interpretation, and moreover, "Reading the term “person” in the manner suggested by Autocam would lead to a significant expansion of the scope of the rights the Free Exercise Clause"  protected prior to Employment Division v.  Smith and the enactment of RFRA. 

By affirming the denial of the preliminary injunction by the district judge, the Sixth Circuit panel has entered the fray of a circuit split on the issue.   With its unamious opinion, it does tilt the "count" toward a nonrecognition of religious rights of secular for proft corporations (recall that the en banc Tenth Circuit opinion was closely divided and the Third Circuit panel opinion was also split; additionally earlier this month a senior district judge in the Tenth Circuit applied applied Hobby Lobby to a for-profit nursing home chain.)  However, the Sixth Circuit opinion adds little new to the analysis of this issue increasingly ripe for Supreme Court review.

September 18, 2013 in Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Medical Decisions, Opinion Analysis, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 17, 2013

U.K. Controversy Over Criminal Defendant Wearing Niqab

May a defendant in a crminal case wear a niqab, a full face veil, to testify?  That's the question a UK judge answered largely in the negative, although making some accomodations in his opinion in Queen v. D. 

Recall that the U.K. does not have a First Amendment free exercise of religion- - - as Judge Murphy explains in his opinion:

The jurisdiction of England and Wales is essentially (though not formally) a secular democracy. I recognise that the jurisdiction is in the rather odd position that part of it (England) has an established church, while the other part (Wales) does not. But in neither part does the church interfere with the working of the courts.

Indeed, as a BBC analysis notes about the case in "The Crown Court at Blackfriars,"  "faith has long been part of the fabric of the state - so much so that the court at the heart of the veil case is named after a medieval religious order." 

Nevertheless, the UK is bound by the European Convention on Human Rights, including Article 9, section 2 of which provides:

Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

The judge balanced the freedom to manifest religion against the interests of public order (and fair trial), finding that the defendant must remove her niqab in order to testify, although she need not testify in open court and her image would not be disseminated.

For further analysis of the case, see Dressing Constitutionally Blog here.

September 17, 2013 in Comparative Constitutionalism, First Amendment, Religion | Permalink | Comments (0) | TrackBack (0)

The Constitution: Now There's an App for That

The Senate Committee on Rules and Administration, the Library of Congress, and the Government Printing Office celebrated Constitution Day today by launching a new app and web publication that bring analysis and interpretation ofconstitutional case law by LOC experts to your computer or mobile device--free.

CONAN-512-w-bug1 (2)

The app is based on 100-year-old The Constitution of the United States of America: Analysis and Interpretation (or the Constitution Annotated), a bound and regularly updated publication with analysis of constitutional cases by the Congressional Research Service in the LOC.  

The new Constitution Annotated app is available for the iOS platform and allows users to read the entire document; browse by section – such as by article of or amendment to the Constitution; view and navigate content from a table of cases and index; and search all text. The app can be downloaded for free from iTunes.  A direct link is here.

The Constitution Annotated web publication will be available on GPO's Federal Digital System (FDsys) as a digitally-signed, searchable PDF that includes a linked table of contents, a linked table of cases, a linked index and GPO’s Seal of Authenticity on every page.

The new Constitution Annotated and a suite of constitutional resources can be viewed here.  The page features links to the app stores, an interactive table listing recent cases of high interest, a bibliography of Constitution-related primary documents in American history and tips for searching the Constitution Annotated on GPO's website.

September 17, 2013 in News | Permalink | Comments (0) | TrackBack (0)

Daily Pic: Mary Beth Tinker on Tour

Mbt-2Mary Beth Tinker - - - of Tinker v. Des Moines Independent Community School District (1969) - - - is going "on tour" to promote "to promote youth voices, free speech and a free press" and the First Amendment.  On the Tinker Tour blog, Mary Beth Tinker writes, "I made a difference with just a simple, black armband. Can you imagine what a shy 13-year-old could do today with all of the extraordinary speech tools available? We look forward to encouraging her — and sharing real-life stories about how students are keeping the First Amendment alive today."  (italics and bold in original).

The iconic photo of Mary Beth Tinker shows her and her brother holding the black armbands they wore to school that were at issue in Tinker:

MaryBethTinkerArmband
For a recent controversy involving students' First Amendment rights to wear expressive items to school, see our recent post regarding the en banc Third Circuit's decision on students' First Amendment rights to wear breast cancer awareness bracelets to school.

September 17, 2013 in Current Affairs, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, September 15, 2013

Teaching and Learning the Irony of Marbury v. Madison: 1L Performance Pieces

Teaching and learning Marbury v. Madison (1803) can be challenging.  As Steven Schwinn has highlighted, I've presented at AALS on innovative ways to use powerpoint using Marbury as an example.  And I've also authored the CALI Lesson on Marbury v. Madison, which stresses understanding the case's historical importance and recognizing its use in contemporary constitutional litigation.

Marbury v. Madison is not only iconic, it's ironic. One way to have students "own" the irony is to have them create a single powerpoint slide that represents the meaning of the case's ironies. This is no easy task. In The Ironies of Marbury v. Madison and Marshall's Judicial Statesmanship, 37 J. Marshall L. Rev. 391(2004), Con Law Prof Samuel Olken explained the various levels of irony in the decision, but the central one on which we focus in class is Marshall's solidifying the (greater) power of judicial review to declare an act of Congress unconstitutional by refusing the power of jurisdiction granted by Congress to issue a writ of mandamus to Marbury.

But students are not limited to powerpoint slides; they can use any creative way to portray their point. 

This year, two students, Daniel McCarey and Chloe Serinsky submitted a composition and posted it on You Tube where it will join the ranks of other takes on Marbury, from a serious talking head version to the explicit language rap version that we also discussed.

Their version is indebted to Alanis Morissette's song "Ironic" and arguably uses irony in a more correct (if more legal scholarly) sense.

  

They've posted their lyrics on the You Tube site.  The description of judicial power as having "more juice" is nice, isn't it?  But I do love this:

Statute in the left hand
Constitution in the right
Judicial review was the power
To strike that statute outta sight

A different group of five other students also took a musical tack.  Collaborating, 1L students Alexandra De Leon, Alexandria Nedd, Carolina Garcia, Steffi Romano, and Vincce Chan, submitted a power point slide with the music from Drake's song

Started from the Bottom Instrumental


and their rewritten lyrics for a composition now entitled "From the Congressional Dream to the Judicial Machine." Here's a sample:

Congress just wants credit where it’s due
You say it’s written in the constitution…says who?

Extending the Supremacy Clause was Marshall's mission
Refusing Section thirteen to keep the appellate and not the original jurisdiction
Declining more power, but acquiring Judicial greatness
Marshall limited Legislative power by striking down the excess

 Oh how ironic,
Refusing power made the Supreme Court iconic ...

 

September 15, 2013 in Cases and Case Materials, History, Interpretation, Jurisdiction of Federal Courts, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)

Daily Read: The New Yorker on Justice Ginsburg, Fisher, and Footnote 4

450px-Milk_glassOver at the New Yorker blog, Lincoln Caplan's piece, "Justice Ginsburg and Footnote Four" analyzes Ginsburg's discussion last week at the National Constitution Center, arguing that one of her statements "deserves more attention than it has gotten."

Ginsburg stated that her dissent last term in Fisher v.  University of Texas Austin, regarding judicial review of  affirmative-action plans of colleges and universities, "was inspired by a 1938 ruling not mentioned in the dissent—actually, by one of its footnotes."  That most famous footnote - - - footnote four - - -of United States v. Carolene Products, is for many (including Caplan) the foundation of "a coherent justification for unelected justices to overturn legal decisions of elected officials when the fairness of the Constitution, and of democracy, is at stake."  

Recall that the 1938 case of  Carolene Products involved a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream).   It may be that this case was also on Ginsburg's mind during the oral arguments of another one of last term's cases:  In her questioning of Paul Clement, who represented BLAG, in United States v. Windsor about the constitutionality of DOMA, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage."   As we noted at the time, Ginsburg's allusion would have special resonance for those who recalled Carolene Products.

 

September 15, 2013 in Affirmative Action, Courts and Judging, Fifth Amendment, Food and Drink, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Daily Pic: Information Dominance Center

Screen Shot 2013-09-15 at 9.58.53 AM
via 

The image is from an architectural brochure linked in Glenn Greenwald's article this morning in The Guardian, "Inside the mind of NSA chief Gen. Keith Alexander," subtitled "A lavish Star Trek room he had built as part of his 'Information Dominance Center' is endlessly revealing."

Worth a look - - - and read - - - for anyone working on national security, state secrets, or surveillance issues. 

 

September 15, 2013 in Current Affairs, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, September 12, 2013

Illinois Supreme Court Strikes (Old) Ban on Aggravated Use of Weapons

The Illinois Supreme Court ruled today in Illinois v. Aguilar that a state law banning the aggravated unlawful use of weapons, or AUUW, violated the Second Amendment.  At the same time, the court upheld state law banning possession of a firearm, or UPF, by a person under 18 years of age.  

The ruling overturns the conviction of the criminal defendant in the case under the AUUW, but upholds the conviction under the UPF.  

But the ruling is limited to the state's old (and defunct) AUUW and doesn't affect current law.  That's because Aguilar was convicted under the state's old AUUW.  The Seventh Circuit already struck that law as violating the Second Amendment (and later denied en banc review) in Moore v. Madigan.  The state has since amended the law to allow for concealed carry of firearms with a permit and with certain restrictions.  Thus today's ruling only affects Aguilar; it doesn't say anything about the state's current law.

Illinois's old AUUW--the one Aguilar was convicted under--says:

(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; [and]

(3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense . . . .

The court, following the Seventh Circuit in Moore, held that the Second Amendment includes a right to keep and bear arms outside the home for individual self-defense, and that the "comprehensive," "categorical[]" ban in the old AUUW law "amounts to a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court."  The court said, "In no other context would we permit this, and we will not permit it here either.

At the same time, the court upheld the state's UPF law.  (That law was not changed in the wake of Moore.)  It says:

A person commits the offense of unlawful possession of firearms or firearm ammunition when:

(a) He is under 18 years of age and has in his possession any firearm of a size which may be concealed upon the person . . . .

The court said that the Second Amendment doesn't protect a juvenile's right to possess a firearm--that the UPF restriction falls into the category of allowable "longstanding prohibitions on the possession of firearms" that the Supreme Court carved out in Heller.  The court said that laws banning possession of firearms by minors have been around for a long time (even if many colonies permitted or even required minors to own and possess firearms for purposes of militia service, as Aguilar argued).

September 12, 2013 in Cases and Case Materials, Due Process (Substantive), News, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

First Amendment Challenge to Vanity License Plate Denial

Michigan, like most states, has a vanity license plate program under which residents can apply for a "personalized" letter or number combination rather than being randomly assigned one, upon the payment of an additional fee.   Under M.C.L. § 257.803b(1), the secretary of state "shall not issue a letter combination that might carry a connotation offensive to good taste and decency."

In the complaint filed in Matwyuk v. Johnson, the plaintiff, represented by the ACLU of Michigan, alleges that the secretary of state's office denied his application for "INFIDEL" (or some variation) because it was "offensive to good taste and decency."   The plaintiff claims the "offensive to good taste and decency" provision on its face and as applied violates the First Amendment as overbroad and the Due Process Clause of the Fourteenth Amendment as vague.

Matwyuk's factual allegations are especially compelling:

Mr. Matwyuk is a retired U.S. Army sergeant who was deployed as an American soldier in Iraq during the height of hostilities in that country. He and his fellow troops were constantly under attack by insurgent extremists whose word for the American soldiers was “infidel.” Seeking to reclaim or reappropriate this term as a source of American pride and patriotism, Sergeant Matwyuk and other soldiers came to embrace their identity as “infidels.” He and other American veterans proudly refer to themselves as “infidels” as a reminder of the bond they share as survivors of a bloody war in a hostile part of the world.

To honor the sacrifices of his fellow soldiers and to express his pride and patriotism as a veteran of the war in Iraq, Sergeant Matwyuk wishes to obtain a personalized Michigan license plate that reads “INFIDEL" . . . . 

Screen Shot 2013-09-12 at 5.22.31 PM

 

Unlike other license plate cases involving compelled speech in the usual license plate design or speciality license plate design schemes, here the issue is the very letters and numbers that individualize the identification of the license plate.  Nevertheless, some of the same doctrines will be at issue, including the license plate being a "forum" that the government has opened for speech.  Additionally, doctrines regarding interpretations of "decency" - - - as opposed to the established meanings of obscenity - - - will also be at issue.  These doctrines tend to support the plaintiff's case.

September 12, 2013 in First Amendment, Fourteenth Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

In Memoriam: Penny Pether

ConLawProf Penelope (Penny) Pether authored terrific work on comparative constitutional law and government power, including her piece Comparative Constitutional Epics which we discussed here.  Known as one of the leading lights of the discipline loosely described as "law and literature,"   her work was uniquely devoted to constitutional theory and to comparative constitutional doctrine.

In addition to being a incisive scholar, she was a generous, smart, humorous, and honest colleague with a keen devotation to pedagogy.

Here's a video of her speaking about student-centered learning:

 

 

She will be deeply missed.

For additional information, including memorial details, see Louis J. Sirico, Jr.'s post on Legal Skills Prof Blog and Mark Wojick's post on Legal Writing Prof Blog.

 

September 12, 2013 in Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 11, 2013

Court Denies Preliminary Injunction Against Meat Labeling Rules

Judge Ketanji Brown Jackson (D.D.C.) today denied the American Meat Institute's motion for a preliminary injunction against new meat labeling rules of the Agriculatural Marketing Service.  The AMI argued in American Meat Institute v. USDA that the new country-of-origin, or COOL, rules violated the First Amendment, the Agriculture Marketing Act, and the Administrative Procedures Act.  When the AMI sought a preliminary injunction, Judge Jackson ruled that it failed to demonstrate a likelihood of success on any of the claims.

The AMS's COOL rule, final and published in May 2013, requires meat labels that designate the country where the animal was born, raised, and slaughtered, in three categories: Category A, "Born, raised, and slaughtered in the United States"; Category B, "Born in Country X, raised and slaughtered in the United States"; Category C, "Born and raised in Country X, slaughtered in the United States"; and Category D, "Product of Country X."  In so designating, the 2013 rule does not allow "commingling of muscle cut covered commodities of different origins"--that is, it doesn't allow meat from different countries to be commingled in the same labeled package.  (The 2009 rule did allow commingling, but the AMS changed it in 2013 in order to comply with a WTO ruling and to "let[] consumers benefit from mor especific labels.") 

The AMI alleged that the 2013 COOL rule violated free speech, but Judge Jackson disagreed.  The court wrote that Zauderer rationality rule applied (and not the Central Hudson intemediate scrutiny test), because the COOL rule is a disclosure requirement that deals with only "purely factual and uncontroversial" disclosures about where the animal was born, raised, and slaughtered, and because the 2013 rule targeted "deceptive speech" insofar as the earlier rule would have caused confusion about the origin of commingled meat.

The court held that Zauderer's rationality was easily met here: "there is clearly a reasonable relationship between the government's interest in preventing consumer confusion about the origins of muscle cut meat, on the one hand, and the required disclosure of specific production step information, on the other."

The ruling comes on the heels of two cases from the D.C. Circuit addressing when Zauderer or Central Hudson applies.  In one, R.J. Reynolds Tobacco Co. v. FDA, the D.C. Circuit held that Central Hudson applied to FDA regs requiring certain textual warnings and graphic pictures on cigarette packages, because the pictures weren't designed to correct consumer confusion or otherwise correct deceptive speech.  But in the other, Spirit Airlines v. USDOT, the D.C. Circuit held that Zauderer applied to a DOT rule requiring that the total cost of airfare, inclusive of tax, be the most prominent price displayed on airline advertisements and travel websites.  The court said that DOT's regs required factual information and was directed at possibly misleading commercial speech.

September 11, 2013 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Justice Ginsburg at the National Constitution Center

The National Constitution Center today posted a candid and wide-ranging 90-minute conversation between Justice Ruth Bader Ginsburg and Center President and CEO Jeffrey Rosen.  The Center posted the interview in five parts on Vimeo; here's Part I:

 

September 11, 2013 in News | Permalink | Comments (0) | TrackBack (0)

District Judge: For Profit Nursing Home Chains Have Free Exercise of Religion Rights

Relying on the Tenth Circuit's decision in Hobby Lobby v. Sebelius, Senior Judge Wiley Daniel enjoined the enforcement of the ACA's preventative health mandate regarding certain contraceptive methods for employees in his opinion in Briscoe v. Sebelius.

As the judge states, Briscoe is an Evangelical Christian and owns Continuum Health Partnerships, Inc., Continuum Health Management, LLC, and Mountain States Health Properties, LLC. Briscoe’s secular, for-profit companies manage and operate senior care assisted living centers and skilled nursing facilities. Briscoe is the sole member and manager of Continuum Health Management, LLC and Mountain States Health Properties, LLC. Briscoe is also the lone shareholder of Continuum Health Partnerships, Inc.

Given the precedent of Hobby Lobby, the district judge spent little analysis on the underlying issues, but did analyze the requirements for a preliminary injunction.   This included finding that the 200 persons employed by the plaintiff companies were much less than the "millions of others" persons exempted under other provisions.

 

September 11, 2013 in Congressional Authority, First Amendment, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Daily Write: Citing a Secret Court Ruling

As a companion to today's "daily read" on  a "secret ruling on secret motion in secret hearing,"  we offer the unofficial "Blue Book" citation, courtesy of a ConLawProf Blog reader who hopes to remain anonymous:

Screen Shot 2013-09-11 at 9.59.09 PM

 

September 11, 2013 in Games, State Secrets | Permalink | Comments (0) | TrackBack (0)

Daily Read: An Example of a Secret Ruling

As the headline in the Miami Herald article proclaims, "Guantánamo judge makes secret ruling on secret motion in secret hearing."  

Released today, on the twelfth anniversary of September 11 tragedy, is a transcript of an August  hearing relating to the September 11 co-conspirators.  It's worth a read - - - or perhaps "a look" would be more accurate.

 Here's a snippet:

Screen Shot 2013-09-11 at 7.26.08 PM
However, it does become clear that the Prosecution sought to prevent "something" from discovery by defense counsel and that the judge decided in favor of defense counsel representing the September 11 co-conspirators. 


September 11, 2013 in Courts and Judging, Current Affairs, State Secrets | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 10, 2013

Tenth Circuit Upholds Utah's Sexual Solicitation Statute

Sexual solicitation statutes suffer from challenges based upon overbreadth and vagueness.  In its opinion in Bushco, Inc. v. Shurtleff, a panel of the Tenth Circuit upheld amendments to Utah's statute, reversing the district judge on the unconstitutionality of one of the provisions.

 

Kaufmann Solicitations of Folly
"Beauty Directed by Prudence Rejects with Scorn the Solicitations of Folly" circa 1780
The “Sex Solicitation Amendments,”  House Bill 121 amended Utah Code Ann. § 76-10-1313 by adding two new provisions: § 1313(1)(c) and § 1313(2):

 

1. A person is guilty of sexual solicitation when the person: ... .

c. with intent to engage in sexual activity for a fee or to pay another person to commit any sexual activity for a fee engages in, offers or agrees to engage in, or requests or directs another to engage in any of the following acts:
    i. exposure of a person’s genitals, the buttocks, the anus, the pubic area, or the female breast below the top of the areola;
    ii. masturbation;
    iii. touching of a person’s genitals, the buttocks, the anus, the pubic area, or the female breast; or
    iv. any act of lewdness.

2. An intent to engage in sexual activity for a fee may be inferred from a person’s engaging in, offering or agreeing to engage in, or requesting or directing another to engage in any of the acts described in Subsection (1)(c) under the totality of the existing circumstances.

The Tenth Circuit, like the trial judge, rejected the First Amendment challenges, applied the test for expressive conduct from the 1968 case of United States v. O'Brien, and found that all the O'Brien prongs were satisfied.  It did note, however, an as-applied challenge to overbreadth was possible.

On the vagueness claim, the panel found that § 1313(1)(c) was not unconstitutionally vague, again affirming the district judge.  However, the Tenth Circuit panel disagreed with the trial judge's conclusion that the subsequent provision - - - § 1313(2) - - - was unconstitutionally vague.  Instead, the Tenth Circuit panel found that the language "under the totality of the existing circumstances" would constrain a police officer's discretion rather than encouraging arbitrary and discriminatory enforcement as the district judge had reasoned.

The Tenth Circuit's opinion demonstrates how difficult it is to prevail on a challenge to a sex solicitation challenge.  Interestingly, it was Bushco, Inc, an escort service company, that appealed from its partial victory in the district court, with the State Attorney filing a cross-appeal.

 [image via]

September 10, 2013 in Due Process (Substantive), First Amendment, Opinion Analysis, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, September 9, 2013

CFP: Law and Society 2014 Annual Meeting on Theme of Inequalities

It's the 50th anniversary of the Law and Society Association, known for its terrific annual meetings.

The 2014 meeting will be in Minneapolis May 29 - June 1 with the theme

Law and Inequalities: Global and Local. 

The deadline for submissions is earlier than usual: October 15, 2013.  More information is here.

  Screen Shot 2013-09-09 at 7.45.28 PM

An especially attractive feature of Law and Society annual meetings are the Collaborative Research Networks (CRN).  Below is a CFP from the Feminist Legal Theory Collaborative Research Network: Note the impending deadline of September 18, 2013.

Within Law & Society, the Feminist Legal Theory CRN seeks to bring together scholars across a range of fields who are interested in feminist legal theory. There is no pre-set theme to which papers must conform. We would be especially happy to see proposals that fit in with the LSA conference theme, which is the role of law and legal institutions in sustaining, creating, interrogating, and ameliorating inequalities.  We welcome proposals that would permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN or the Gender, Sexuality and the Law CRN. Also, because the LSA meeting attracts scholars from other disciplines, we welcome multidisciplinary proposals.

 If you would like to present a paper as part of a CRN panel, please submit a 400-500 word abstract, with your name and a title, on the Feminist Legal Theory CRN TWEN page. 

More details after the jump.

Continue reading

September 9, 2013 | Permalink | Comments (0) | TrackBack (0)

Saturday, September 7, 2013

CFP: LBJ's Great Society at 50, MAPOC Legal Scholarship Conference

From an announcement:

19th Annual Mid-Atlantic People of Color
Legal Scholarship Conference 2014
Hosted by the University of Baltimore School of Law
Baltimore, MD
January 23-25, 2014

–      Conference Theme & Call for Papers –

President Lyndon B. Johnson’s Great Society and Beyond:
The Historical and Contemporary Implications of Progressive Action and Human Fulfillment
Honoring and Critiquing the 50th Anniversary of Johnson’s Vision



496px-LBJ_National_Portrait_GalleryIn May 1964, President Lyndon Baines Johnson unveiled his revolutionary plans for the Great Society.  As he explained it, Americans “have the opportunity to move not only toward the rich society and the powerful society, but upward to the Great Society. . . .  The Great Society rests on abundance and liberty for all. It demands an end to poverty and racial injustice.”

According to Doris Kearns Goodwin, who wrote Lyndon Johnson and the American Dream, Johnson’s Great Society would be based on “progressive action” and the “possibilities for human fulfillment.”  This action and fulfillment meant that regaining control of our society required us to end policies that threatened and degraded humanity.

Johnson’s Great Society reforms, included the Voting Rights Act of 1965, Medicare, Medicaid, Equal Opportunity Act, Elementary and Secondary Education Act, Social Security expansion, the Earned Income Tax Credit, the Higher Education Act, Head Start, the Civil Rights Act of 1964, the Housing and Urban Development Act of 1965, and the Open Housing Act of 1968.  These laws extended and expanded the Bill of Rights and continued and expanded the programs initiated in Roosevelt’s New Deal of the 1930s and Truman’s Fair Deal in the late 1940s and early 1050s.  As a result of LBJ’s programs, America’s official poverty rate declined throughout the 1960s, reaching a low of 11.2 percent in 1974, down from 19 percent in 1964, and most recently settling at 15.1 percent in 2010.  According to Dylan Matthews, who wrote Poverty in the 50 Years Since ‘The Other America,’ in Five Charts, Johnson’s Great Society programs, which included the War on Poverty, “made a real and lasting difference.”  Moreover, according to Demos, an estimated 40 million Americans avoided official poverty due to such programs as food stamps and Medicaid.

Unfortunately, what is also true is that the Vietnam War, which Johnson escalated and only at the end of his administration moved to end, crippled his domestic economic policies and undermined his goals for true racial equality.   Despite the War on Poverty and dramatic changes in Civil Rights, racially concentrated poverty remains with us.  Since the Johnson years, America has weathered the recessions of the 1980s and early 1990s, the late ‘90s dot com bubble, our current recession, the national security encroachment on civil liberties, the rise and fall of the Occupy Movement, the waning of the Arab Spring, and two middle east wars since 9-11.

It is clear that Johnson’s Great Society programs have saved millions of Americans from the depth of official poverty.  It also true that Johnson’s vision, to which he was truly committed, staggered and failed when the civil rights movement dovetailed with political marginalization, economic inequality, pervasive racial discrimination, and imperialist policies.  The Moynihan Report, the Watts Riots and urban unrests, and the emotional and financial suck of Vietnam prevented Johnson from deeply redressing America’s lingering poverty.

At MAPOC 2014, we intend to explore the furthest implications of President Johnson’s domestic and foreign policies, especially the impact of these policies on progressive action and human fulfillment, as we collectively explore and analyze the contemporary implications of Johnson’s Great Society.  From these implications, the conference planning committee is seeking papers and panel proposals on the following substantive but not exhaustive subjects:

-- A Hand Up:  The Meaningful Tension Between Formal Equality and Substantive Outcomes under the Civil Rights Act of 1964
-- Beyond Legislative Bogs and Dangerous Political Animals:  President Obama’s Legislative Agenda and the Limits of Second-Term Progressivism
--  Endangered Citizens?: Rights and Remedies after State v. Zimmerman
-- Equality, Choice, and Happiness:  the Rise and Fall of DOMA
-- Guns or Butter:  Social Welfare Programs, Modern Problems of Central Banks, Debt Slavery, and Foreign Policies
-- Medicare, Healthcare, and Welfare:  the Poor, the Elderly, and the Needy
-- Moynihan and the Contemporary (In)Stability of the Black Family
-- Racial (Dis)Harmony Then and Today
-- Voting Rights:  Shelby County v. Holder and the Promise of One Citizen, One Vote

Paper submissions must include a working title, bios, abstract, and contact information.
Panel proposals must also include the foregoing information for each of the panel’s participants, and the organizer’s contact information, all of which must be submitted together only by the organizer.
Submit Papers and Panel Proposals by September 30, 2013 to: Reginald Leamon Robinson, Howard University, Conference Chair and Founder, MAPOC 2014: light_warrior@verizon.net.

[image: LBJ, National Portrait Gallery, via]

September 7, 2013 in Conferences, Elections and Voting, Equal Protection, Family, Federalism, Fundamental Rights, Gender, Race, Recent Cases, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Opinion Protects Academic Freedom Under First Amendment

In its opinion in Demers v. Austin, a panel of the Ninth Circuit this week explicitly ruled that First Amendment claims concerning "teaching and writing on academic matters by teachers employed by the state" are not governed by the Court's decision in Garcetti v. Ceballos.  Decided in 2006, Garcetti denied First Amendment protections to a prosecutor who testified for the defense regarding his misgivings about the veracity of an affidavit used to obtain a search warrant and then suffered adverse employment actions.  Garcetti has made First Amendment claims arising from a course of employment exceedingly difficult to sustain, a situation the Court seems disinclined to revisit.

The Ninth Circuit held that rather than being subject to an analysis under Garcetti, "teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968)."

Under Pickering, the employee's speech must be a matter of "public concern."  Professor Demers' speech, for which he alleged he was retaliated against, consisted (at least in part) of a two page pamphlet, "The 7-Step Plan for Making the Edward R. Murrow School of Communication Financially Independent." 

Murrow_challengeofideas_desk
Named for the famous journalist (pictured above), the school as part of the Washington State University system, was in flux;  Demers distributed the plan while he was a on the Murrow School’s “Structure Committee,” which was actively debating the issues.  The Ninth Circuit stated:

protected academic writing is not confined to scholarship. Much academic writing is, of course, scholarship. But academics, in the course of their academic duties, also write memoranda, reports, and other documents addressed to such things as a budget, curriculum, departmental structure, and faculty hiring. Depending on its scope and character, such writing may well address matters of public concern under Pickering.

Because Demers' pamphlet "made broad proposals to change the direction and focus of the School," rather than voicing "personal complaints," and because Demers' widely disseminated the document (including sending it to newspapers [as in Pickering] and posting it on his website), the panel found it was a matter of public concern.

Nevertheless, Demers was entitled to scant relief because the Ninth Circuit panel also held that the Defendants were entitled to qualified immunity: the Defendants certainly reasonably could have believed that their conduct was lawful “in light of clearly established law and the information [that they] possessed.”  Indeed, because the panel acknowledged it was breaking new ground, it could not have held otherwise.  But the panel did note that qualified immunity did not preclude injunctive relief.

This is an important opinion recognizing academic freedom under the First Amendment.  At a relatively brief 26 pages, it is nevertheless closely reasoned both doctrinally and in its application. 

And its sure to be at issue should the disciplining of the professor for a  political "rant" we discussed earlier this week be litigated.

 [image via]

September 7, 2013 in Current Affairs, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, September 6, 2013

The Syria Resolution's Last Whereas

Garrett Epps writes over at The Atlantic that the Senate's Syria Resolution contains a huge give-away to the President: congressional recognition of inherent executive authority to use the military to defend the national security interests of the United States--independent of any AUMF.

The give-away comes in the last "Whereas" of the Senate's Syria Resolution.  It reads:

Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States . . . .

Epps writes,

The only problem is it's not true, and it represents a two-century high-water mark in claims of executive power.  Having been consulted by the president, Congress is poised to respond by throwing back at him not only the current decision but sweeping new powers he didn't have before.

Lawfare has some terrific analysis on the Senate resolution and related issues, including Jack Goldsmith's analysis of that final "Whereas" (quoted in Epps's piece).

SDS

September 6, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)