Constitutional Law Prof Blog

Commentary by Sherrilyn Ifill

Sherrilyn Infill, ConLawProf at the University of Maryland School of Law and author of On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-first Century, has two recent commentaries worth reading.

In her just published and provocatively titled commentary, "What the U.S. Supreme Court Did to Us This Year"  Ifill begins by noting the confirmation by the Senate Judiciary Committee of Elena Kagan and notes:

Kagan will join a court whose conservative majority has aggressively taken and decided cases that are transforming the constitutional landscape in ways that will have far-reaching effects. Some Supreme Court analysts have rated the court's actions in the just-concluded term as unremarkable. But for average Americans and for minority communities, the 2009-2010 term of the court is a significant one.

She then discusses Sixth Amendment cases, Citizens United v. Federal Elections Commission and McDonald v. City of Chicago as disappointments, and also focuses on the role of Justice Clarence Thomas.

In a different commentary, Infill has something to say about the Shirley Sherrod controversy, making an interesting link to the Sonia Sotomayor confirmation process.

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In Memoriam: Rhonda Copelon

ConLawProf, constitutional law litigator, and Vice-President of the Center for Constitutional Rights, Rhonda Copelon (pictured below) died yesterday, May 6, 2010.

She argued Harris v. McRae, was a founding member of CUNY School of Law, and in recent years concentrated on international women's human rights. 

Video interviews, more about her work, and a photo slide show is available here.

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SALT: The Society of American Law Teachers New Blog

 

SALTLAW is the new blog of SALT, Society of American Law Teachers, self-described as a "community of progressive law teachers working for justice, diversity and academic excellence."

SALT  is known for its  teaching conferences, its  activism on behalf of social justice issues including those in constitutional law, and its members, including those featured on the blog: Angela Harris (pictured left) and Rhonda Copelon (pictured right). 

The blog announcement makes clear that the "blog is not a forum for the expression of SALT’s positions, but a place where our members can publish commentary on emerging issues in law, politics, and education or where they can develop arguments about policies and problems that are persistent or seem intractable.  The SALT Board has no list of topics that should be addressed or any agenda that it has set for this blog."

Instead, the plan is a "year-long schedule of regular and guest contributors who will add voice to progressive issues" and will "include both legal and non-legal issues"  ranging from "conversations about the economic crisis to questions about U.S. torture policies to discussions about the lack of diversity in baseball management to the development of a hip-hop theory of justice."

The roster of planned bloggers is an impressive one featuring many ConLawProfs.   

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Larry Tribe, Legal Services for the Poor, and Sharon Browne

ConLaw Prof Larry Tribe (pictured left) of Harvard Law School  "will join the Justice Department next week as a senior and counselor focusing on expanding poor people's access to legal services" according to the Washington Post and announced by Harvard Law School. 

The WaPo article notes, "The announcement comes a week after senior leaders at the department appeared at a Washington conference to draw attention to the large caseloads handled by public defenders and other challenges in providing legal services to low-income defendants."

Thus, it seems Tribe's efforts will be directed at the criminal justice system.

Meanwhile, on the civil side, Sharon Browne has been nominated to be the Director of the Legal Services Corporation - - - a choice objectionable to many civil rights and progressive legal organizations who support civil legal services for the poor.  According to the Alliance for Justice,  Senate Minority Leader Mitch McConnell (R-KY) proposed that Sharon Browne, a senior attorney at the Pacific Legal Foundation ("PLF"), be nominated to fill a vacancy on the Legal Services Corporation ("LSC") Board of Directors, and Obama  sent that nomination to the Senate for confirmation or rejection.   In addition to her work at PLF, the Alliance for Justice objects to Browne because in 1992, "Browne was one in a group of plaintiffs who filed a lawsuit, Brosterhous v. State Bar of California,challenging the State Bar's use of attorneys' dues money to advocate for providing adequate legal services for the poor in the legislature."

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Gormley on Starr and Clinton

ConLawProf (and Interim Dean) Ken Gormley (pictured right) of Duquesne University Law School has just published THE DEATH OF AMERICAN VIRTUE: Clinton vs. Starr.

The review in the NYT notes that "unlike some other commentators, Gormley allows for the possibility that even the most rabid-seeming players might have acted out of honorable considerations."  Based on an interview with the federal district judge hearing the original sexual harassment lawsuit, Gormley also reveals that she contemplated finding Clinton in criminal contempt, which would have ended Clinton's political career in a "nanosecond."  Yet the tenor of the 800 page book, at least according to the NYT review, is that the Clinton impeachment was all so unnecessary (quoting Starr) and diversionary.

The political relevance of Gormley's book is obvious.  But it also seems an essential sequel to Clinton v. Jones, in which the Court unanimously rejected Clinton's constitutional arguments to stay the trial until after his presidency had ended.

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Schwinn in Jordan

ConLawProf Blog's own Steven Schwinn is in Amman, Jordan this week with his colleague Mark Wojcik, both from John Marshall School of Law.  

 As Legal Writing Prof Blog notes, they'll be leading a one-week ABA Workshop on Teaching Essential Legal Skills -- Legal Writing and Analysis. Their audience is law professors from Egypt, Iraq, Jordan, Lebanon, Saudi Arabia, and other countries in the Middle East. 

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Supreme Court Database

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.

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Torture and Academic Freedom

The controversy over John Yoo's professorship at UC-Berkeley School of Law (Boalt Hall) continues. 

The PBS News Hour aired a segment yesterday, available as mp3 audio, streaming video and transcript here.

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The Constitutional "Gay Agenda": Robson's Saturday Evening Review

The Matthew Shepard Hate Crimes Act, ENDA, the repeal of "Don't Ask, Don't Tell" in the military, same-sex marriage and DOMA - - - these are often considered the "gay agenda."  Indeed, President Obama's anticipated speech tonight at a Human Rights Campaign dinner in Washington, DC, is expected to cover many of these issues, although according to preliminary reports, Obama's message will be one of patience and temperance, disappointing many activists.

(Update: These preliminary reports were confirmed after the speech, NYT here, WaPo here; the text of the speech is on whitehouse.gov here).

Yet not all "activists" would agree that the conventionally described "gay agenda" should be the goals of any LGBT legal reform movement.  Libby Adler (pictured below) ConLaw Prof at Northeastern University School of Law, argues that the ongoing "culture war,"  "while a fundraising boon and a media draw, compels a particular type of participation and a particular reform agenda, eclipsing reform possibilities that might be preferable in the long run." 

In her article, The Gay Agenda, 16 Mich. J. Gender & L. 147 (2009), available in draft form on ssrn here,  Adler not only seeks to transcend the "culture wars," but argues that goals of "formal equality" between "gay and straight people," need to be replaced by goals enabling law "to create the best possible conditions against which a broad array of people can make choices."  In the context of the application of Loving to same-sex marriage arguments, Adler writes:

Formal equality has its merits, but it is not incontrovertible that formal equality is the highest value that law reformers could be pursuing at all times.  For one thing, the very term formal equality exists in opposition to substantive equality, and—as any student of affirmative action or workplace accommodations for working mothers will report—these goals can conflict.  A formal equality agenda can eclipse or even undermine other potentially worthy goals.  .  . . [t]he benefits of formal equality stand counterpoised to the costs associated with the pursuit of formal equality.  While the attainment of formal equality has undeniable fairness appeal, the pursuit takes place in the context of a culture war which is waged in normalization and rights discourses.

Instead, Adler posits several law reform agendas.  As a central example, she uses homeless adolescents.  By combining critical theory and real lives, Professor Adler demonstrates a methodology to assist the rethinking of "the gay agenda" as well as equality.

This is a thought-provoking and necessary article, worth reading (if you haven't already done so) and assigning.

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JUDICIAL VALUES: SHOULD JUDGES JUST APPLY THE LAW - OR SHOULD THEY BRING THEIR OWN VALUES TO THE TASK?: Forum

The questioning on "judicial values," phrased as "should judges just apply the law or should they bring their own values to the task" is not a uniquely American one.  Indeed, this is the topic on a forum to be held at The Law School of University of Sydney, Australia, August 27, details here.  

The participants include Justice Michael Kirby (former High Court Justice) and Professor Reg Graycar (University of Sydney), who were most recently discussed on Constitutional Law Prof Blog here and here, as well Professor Justin Malbon of Monash University and Bernhard Schlink.

 Schlink, of course, is the author of the bestselling novel The Reader,  which is about a young man's affair with an older woman who is put on trial for her role in the Nazi regime.  The book was made into a popular movie in 2008.  

Schlink is not just a bestselling author, but also a Professor of Constitutional and Administrative Law and the Philosophy of Law at Berlin's Humboldt University, who was previously a justice of the Constitutional Law Court in Bonn, Germany. 

The forum event is being held in conjunction with the Sydney Writers Festival and hosted by Damien Carrick of the Australian Radio National’s "The Law Report."  The publicity frames the discussion this way:

The [Australian] High Court attracted enormous criticism after the Mabo and Wik decisions [relating to Aboriginal land claims] for changing the law to suit the personal values of the (unelected) judges. Judges during the Nazi and South African apartheid eras were criticised for merely applying the law, and were accused of being accomplices to those grotesque regimes. Should judges apply their “judicial values” to their judicial tasks?

Schlink's most recent book is Guilt About the Past, a series of six essays based on his 2008 Weidenfeld lectures at Oxford University and being published by an Australian University Press.

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DOMA is unconstitutional says Larry Tribe

Quoting Larry Tribe, Con Law Prof, Huffington Post reports that Tribe has stated:

"I certainly agree (a) that Section 3 of DOMA is unconstitutional, at least as applied to couples like those who are currently challenging it in federal court here in Massachusetts.... I'm not at all reluctant to have it known that I think the equality component of the Fifth Amendment's Due Process Clause forbids the federal government to deny same-sex spouses benefits identical to those that it would grant to opposite-sex spouses when the spouses are "married" under the law of their state -- that is, when the spouses were married and reside in states where the law forbids a distinction between same-sex and opposite-sex marriage and rejects the DOMA definition of 'marriage.'"

The HuffPo piece by Emma Ruby-Sachs notes that Tribe "hired Obama as a research assistant in his first year of law school."   The implication is that Obama is influenced by his former conlawprof?  One might also look at Professor Obama's 1996 Con Law exam "feedback" regarding a lesbian issue, discussed here. 

The DOJ has until June 29 to decide whether or not to defend the DOMA challenge, discussed here.  The federal government's stance on the lawsuit is being closely watched.  Obama is being criticized for not keeping his campaign promises to LGBT Americans.  Obama's most recent statement on LGBT issues, blogged here, is also being criticized as insufficient as well as too radical. 

DOMA was signed by then-President Bill Clinton in 1996 (pictured below).

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Obama's Constitutional Law Exam and Feedback

Interested in a Constitutional Law III examination and feedback from 1996?   What about if the Professor was the now-President Barak Obama?

The first question on the exam involves a lesbian seeking to obtain IVF despite a law that the "state legislature passed a law last year, titled the “Preservation of Family Values Act” (PFVA), that, inter alia, prohibits any doctor or health care professional, whether in private practice or employed by the state, from providing infertility services to any unmarried person within the State of Wazoo."  The question asks students to address both equal protection and substantive due process claims.

The second question involves an African-American mayor considering two affirmative action policies - one regarding city contracts and the other involving  the hiring of firefighters and the civil service examination.   This question specifically asks students to argue both sides, provide a considered conclusion, and to "feel free to present to the Mayor any broader policy issues or theories of racial justice that are raised by his plan and/or the referendum."

The full exam is here.  The feedback, here, is twelve pages and in the form of a discussion rather than a checklist or model answer.   It was an open book examination and students had six hours, although as the instructions assert: "The exam is designed, however, to be completed in approximately three hours. Feel free to use the extra three hours as you wish (anxiously flipping through the casebook for that one last citation, or heading over to the gym for a good workout - your choice)."

Thanks to Alana Chazan, class of 2009 CUNY School of Law, for these documents, which are from the NYT blog from July 2008 here, along with other exams and syllabi and comments from conlawprofs.  And yes, it did make me look for the exam I gave and the feedback from 1996, although I am about to admit defeat unless I can find a floppy disk reader!

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Lesbian (Gay) Supreme Court Nominee Possibility

“To start with, we need a lesbian on the Supreme Court.”

Or so I once said, in an interview: “It was the summer of 1992, the last summer of the Reagan-Bush regime, although the demise of that era was far from certain. I was being interviewed by a gay and lesbian magazine for a feature article about the Supreme Court. I was staying in Provincetown, a place renowned for its lesbian/gay culture, surrounded by lesbians of every ilk. . . . when the interviewer  asked me a general question about changing the United States Supreme Court, I replied that we should start with the appointment of a lesbian.  My proposal, glib as a Provincetown summer, implicitly asserts lesbianism would be a relevant quality of a United States Supreme Court Justice.”

The specter of a lesbian Supreme Court Justice raises an issue that has troubled lesbian and political theory, the issue of identity politics.  The rest of the article, The Specter of a Lesbian Supreme Court Justice: Problems of Identity in Lesbian Legal Theorizing, 5 St. Thomas Law Review 433 - 458 (1993), analyzes identity politics circa 1992.

Now, seventeen years later, identity politics remains an issue and at least two lesbians are thought to be contenders for the Court. The story has been buzzing around for a while,  it makes its appearance on Politico here:

Either Kathleen Sullivan or Pamela Karlan, both law professors at Stanford, could become the first “openly gay” Supreme Court justice.

Sullivan is former dean at Stanford and teaches Constitutional Law.

Karlan is a former clerk to Justice Blackmun and Director of Stanford's Supreme Court Litigation Clinic.

POLTICO also reports that ”in response to questions from POLITICO in recent days, White House aides declined to say whether sexual orientation was among the diversity factors the president planned to consider either with respect to a Supreme Court nominee, or judicial nominees more generally."

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Michael McConnell Resigns Tenth Circuit to Return to Academia

According to both Wall Street Journal Blog and Wikipedia(!), Michael McConnell is resigning his seat on the Tenth Circuit to direct the Stanford Constitutional Law Center. at Stanford Law School. 

Appointed to the Circuit by George W Bush is 2002, McConnell was frequently mentioned as a possible nominee for the United States Supreme Court.

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Mary Dunlap and the Constitutional Rights of Sexual Minorities: Robson's Saturday Evening Review

[U]nder a system that permits individualized sex identification, the past exercises of the legal power to enforce a male/female order might be discovered to have played a primary role in retarding the progress of creativity and diversity among human beings in their relationships to each other, to institutions and to the environment.  While such discoveries now seem far distant from the horizons of the United States Constitution, perhaps tomorrow's journeys into extraterrestrial space, or earth creatures' own ventures into the technology of cloning and test-tube productions of new life forms, or even today's silent mutations, will rapidly and vividly bring the nascent potentials of individual sex definition, free of the present paradigm of two sexes, into focus in the constitutional galaxy.

Mary Dunlap, The Constitutional Rights of Sexual Minorities: A Crisis of the Male/Female Dichotomy, 30 Hastings L. J. 1131, 1148-49 (1979).

Turning to the work of Mary Dunlap (1949 - 2003), the pioneering law professor and litigator, seems appropriate the day after the Iowa Supreme Court's opinion in Varum v. Brien (our most recent post here) and as the California Supreme Court continues to deliberate on the constitutional challenge to Proposition 8 (our most recent post here).   Dunlap did not live to see the United States Supreme Court overturn Bowers v. Hardwick, a case she called a "grievous loss," and it is difficult not to wonder what she would think about post-Lawrence developments, especially in the area of state constitutional opinions finding same-sex marriage prohibitions unconstitutional.  It is easy, of course, to assume she would have been overjoyed.  However, it is also possible to imagine the ways in which she might criticize constitutional doctrine for continuing to reify the "present paradigm of two sexes" or to regulate sexual freedom.

Indeed, the entire volume of the Hastings Law Journal issue in which Dunlap's piece appears invites reflection.  Published in March 1979, it is entitled "Sexual Preference and Gender Identity: A Symposium," with a full page dedication to Harvey Milk, 1930 - 1978, complete with a large photo of the murdered San Francisco Board of Supervisors member.  The volume opens with the classic article by another pioneering law professor - - - Rhonda Rivera, entitled "Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States," and also includes an article by constitutional scholar David A.J. Richards (now at NYU), entitled "Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution." 

While many of the specific doctrinal issues discussed in these articles may seem dated, the theoretical perspectives and constitutional arguments remain current.   These articles from 1979 can be difficult to find in electronic copy, but are worth a trip to a law library's shelves. 

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ConLaw Prof named new Dean at William & Mary

According to a press release, Davison M. Douglas, a Con Law Prof at William & Mary Law School since 1990, has been named Dean.

 

Douglas' areas of constitutional specialties include race, religions, and elections.  Perhaps his best known work is the legal-historical account, Jim Crow Moves North: The Battle over Northern School Segregation, 1865-1954 (Cambridge University Press 2005).

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Center for Constitutional Rights names LawProf new Legal Director

The Center for Constitutional Rights in a press release today announced that Bill Quigley, Director of the Law Clinic and the Gillis Long Poverty Law Center at Loyola University New Orleans, is the new legal director of CCR:

The Center for Constitutional Rights (CCR) is thrilled to announce human rights lawyer Bill Quigley of New Orleans will begin as its next Legal Director in May. Bill has been an extraordinary public interest lawyer for over 30 years, and has served as counsel on issues including post-Katrina social justice, public housing, voting rights, the death penalty, living wage, civil liberties, educational reform, constitutional rights, human rights work in Haiti, and civil disobedience. Bill has been an essential mainstay to social justice work in New Orleans before and after Katrina.

      

CCR has lately been best known for its representation of Guantanamo detainees.  An interesting profile of this work was published by Adam Liptak in the New York Times in 2004.

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Popular Constitutionalism?

In a provocative piece in the Jan/Feb issue of The ATLANTIC, entitled The Founders' Great Mistake, ConLaw Prof Garrett Epps of University of Baltimore School of Law says,

as Bush leaves the White House, it’s worth asking why he was able to behave so badly for so long without being stopped by the Constitution’s famous “checks and balances.” Some of the problems with the Bush administration, in fact, have their source not in Bush’s leadership style but in the constitutional design of the presidency. Unless these problems are fixed, it will only be a matter of time before another hot-rodder gets hold of the keys and damages the country further.

Bottom line?  Epp argues that Article II needs an overhaul.  He has some specific suggestions, including abolishing the electoral college and addressing the "unitary" executive. 

These suggestions might be the basis of an in-class exercise, either asking students to react to Epps' specific suggestions or to "brainstorm" suggestions of their own.  His piece also has an accessible, if necessarily somewhat superficial, history.  And, of course, it can serve to remind students that the very issues they are studying are also being discussed in the "popular media."

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(Another) ConLawProf in Obama Administration

ConLawProf Marty Lederman, of Georgetown, has joined the Office of Legal Counsel. Here's the mention from thinkprogress:

Over the past few years, Lederman’s legal blogging at Balkanization has provided invaluable insight and strength to critics of key Bush policies, including torture and warrantless wiretapping. Lederman wrote passionately against the Bush administration’s efforts to legalize the use of torture . . . . Lederman described the mission of the OLC in a Jan. 2005 blog post. “OLC’s proper role is not to distinguish, for Executive Branch officials, among different forms of unlawful conduct, so as to identify those that are subject to the highest criminal sanctions, on the one hand, and those that are ‘merely’ prohibited, but without severe sanction, on the other. … OLC’s proper role, instead, is to inform the Executive Branch as to what conduct is lawful.”

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Cass Sunstein Post in Obama Administration

As The Chicago Tribune reported here, Obama is expected to name Cass Sunstein to head the Office of Information and Regulatory Affairs.  The Chicago Tribune story continues:

Sunstein brings a measure of star power to the post, as a leading constitutional scholar and the Felix Frankfurter professor of law at Harvard. He joined the Harvard faculty this year after many years at the University of Chicago, where he is still a visiting professor. He and Obama taught there.

Along with economist Richard Thaler, Sunstein is co-author of "Nudge: Improving Decisions about Health, Wealth, and Happiness." It examines how setting up thoughtful "choice architecture" can encourage people to make beneficial choices without restricting their freedom to choose.

One of the better posts I've seen on the subject is by Ezra Klein at The American Prospect blog here.  Klein has a nice discussion of the Office of Information and Regulatory Affairs, including its history,  arguing that " OIRA is important! It's just also boring."  He concludes:

Sunstein can do real good there [at OIRA].  But why would he want it? He's shown a taste for celebrity, and OIRA very much does not provide that.

It's worth remembering that Sunstein has recently achieved great fame for Nudge, a book which basically argues that we need to apply the insights of behavioral economics to the construction of regulation. And Director of the Office of Information and Regulatory Affairs is the ultimate staging ground for those ideas. Reagan understood that OIRA was the central clearinghouse where you could affect the whole of the regulatory state all at once. He wanted to virtually shut it down. Sunstein wants to "nudge" it.

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