Thursday, May 23, 2019

Does the Superseding Assange Indictment Implicate the First Amendment?

As anticipated, the Department of Justice has filed a superseding indictment  against WikiLeaks founder, Julian Assange.

The 18 count indictment charges 17 violations of the Espionage Act, 18 U.S.C. §793, as well as one count of conspiracy to commit computer intrusion. The factual recitations revolve around Chelsea Manning occurring in 2010; other highly publicized allegations involving President Trump and Hillary Clinton do not make an appearance (and their names are not mentioned in the indictment).

848px-JAssangeThe charges of unauthorized obtaining and receiving of "National Defense Information" (counts 1-8) and unauthorized disclosure of that same national defense information (counts 9-17) raise First Amendment issues. 

The argument is — quite simply — that Assange has done nothing different than other journalists who have published government information and should be covered by the same constitutional protections afforded the New York Times in The New York Times v. United States (1971), "The Pentagon Papers" Case. 

In Assange's situation, the issue is not prior restraint but criminal liability, but certainly the same principles apply as we previously discussed. (Also consider the documentary on Daniel Ellsburg).

This issue has been brewing for a while. A good primer on the intersection between the Espionage Act and First Amendment protections of a free press, is Stephen Vladeck's 2007 article, Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press, 1 Harvard Law & Policy Review 219, available here.

 

[image via]

 

May 23, 2019 in First Amendment, Foreign Affairs, News, Scholarship, Speech, State Secrets | Permalink | Comments (0)

Thursday, April 25, 2019

Call for Proposals: Loyola Chicago Health Law Symposium

The Beazley Institute for Health Law and Policy at Loyola University Chicago School of Law and the Annals of Health Law & Life Sciences invite original submissions for presentations at the Thirteenth Annual Health Law Symposium: Addressing the Health Care Needs of Justice-Involved Populations, at Loyola Chicago, on Friday, November 15, 2019.

The full call is here.

The call specifically includes "constitutional issues relating to the medical treatment [or lack thereof] of justice-involved populations."

Proposals (1,000 words or less) are due by June 15, 2019, to health-law@luc.edu.

April 25, 2019 in Conferences, News, Scholarship | Permalink | Comments (0)

Tuesday, April 9, 2019

Brooklyn Law Review to Host Symposium on Incitement

The Brooklyn Law Review will host a symposium titled Incitement at 100--and 50--and Today: Free Speech and Violence in the Modern World on Friday, April 12, at Brooklyn Law School. Very impressive line up. RSVP at the link by April 10.

April 9, 2019 in Conferences, First Amendment, News, Scholarship, Speech | Permalink | Comments (0)

Tuesday, February 19, 2019

UNLV Symposium: Dignity, Tradition, & Constitutional Due Process

Check out this exciting symposium next month at UNLV: Dignity, Tradition, & Constitutional Due Process: Competing Judicial Paradigms. The two-day event runs from March 14 to 15. The event is free, but you have to register. (Click the link above.)

The line-up is truly impressive; here are the presenters and their presentations.

Questions? Contact Prof. Peter B. Bayer.

February 19, 2019 in Conferences, News, Scholarship | Permalink | Comments (0)

Wednesday, January 2, 2019

Daily Read: Can the Senate's Composition Change by Statute?

In a column at The Atlantic, "The Path to Give California 12 Senators, and Vermont Just One," subtitled "Maybe the two-senators-per-state rule isn’t as permanent as it seems," Political Science Professor Eric Orts agrees with many others that the Senate is essentially anti-democratic and that the time has come to change the 2 senators from every state rule. 

Orts recognizes that the 2 Senators per state rule is doubly-demanded by the text of the Constitution: Not only does Article I §3 provide that "The Senate of the United States shall be composed of two Senators from each State," but Article V respecting the amendment process specifically provides "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Orts proposes that a way around these Constitutional commands — at least "arguably"— is through Congressional action. Orts contends that Congress could pass a law restructuring Senate representation like this:

Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.

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Congressional power to do so, he seems to contend, would be grounded most obviously in the Reconstruction Amendments. He cites Equal Protection Clause cases such as Reynolds v. Sims (1964) and Bush v. Gore (2000), and argues that although 

the Court trimmed a portion of the Voting Rights Act in Shelby County v. Holder in 2013, Chief Justice John Roberts, in his majority opinion, reaffirmed the authority of Congress to regulate in this field and endorsed a forward-looking orientation. “The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command," he wrote. “The Amendment is not designed to punish for the past; its purpose is to ensure a better future.”

Thus, inherent in Orts's argument is not simply that the Senate does not adequately represent the population of the United States but that this inadequacy is racialized. As he notes, under the current configuration it is states with small predominantly white populations that benefit: "in California, 38 percent of citizens are white. In Texas, that figure is 43 percent," while in the two smallest states, "Vermont is 94 percent white, and Wyoming is 86 percent white." 

Indeed, Orts states that  his proposal

corrects a heavy, unjustified bias favoring white citizens in the Senate. It doesn’t go too far to describe the current Senate apportionment as a vehicle entrenching white supremacy.

Would the Supreme Court uphold such a statute? Orts suggests that the Court could "stay out of the mix" by deferring to Congress or invoking the political question doctrine.

Would Congress ever pass such a statute? Orts admits that it is unlikely in large part because a more democratic Senate is a more Democratic party Senate. But, he ends, "who knows" what 2020 will bring.

[image: United States Capitol by C. E. Loven after photograph of drawing by Thomas U. Walter, via]

January 2, 2019 in Congressional Authority, Courts and Judging, Equal Protection, Federalism, Race, Reconstruction Era Amendments, Scholarship, Seventeenth Amendment | Permalink | Comments (0)

Tuesday, December 11, 2018

Call for Papers: Michigan Junior Scholars Conference

Michigan Law posted this announcement and call for papers for its Fifth Annual Junior Scholars Conference.

Submissions (600-word abstract, plus a CV) are due by January 12, 2019. From the call:

The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from postdoctoral researchers, lecturers, fellows, SJD/PhD candidates, and assistant professors (pre-tenure) who have not held an academic position for more than four years are welcomed.

 

December 11, 2018 in Conferences, News, Scholarship | Permalink | Comments (0)

Monday, October 29, 2018

Daily Read: Posse Comitatus and the Constitution

The reported announcement that the United States is sending "5,200 troops, military helicopters and giant spools of razor wire to the Mexican border in the coming days to brace for the arrival of Central American migrants President Trump is calling 'an invasion," raises the question of Presidential authority under the Constitution.

A good read is by Ohio State University/Mortiz College of Law Professor Dakota S. Rudesill, The Land and Naval Forces Clause, 86 University of Cincinnati Law Review 391 (2018), available on ssrn.

Rudesill.2Professor Rudesill (pictured) asks "What is the constitutional textual basis for key statutes that constrain the national security apparatus and condition the President’s ability to direct it – statutes that are neither spending limitations, nor war declarations or authorizations for the use of military force (AUMFs), nor militia laws?"

He notes that there are a series of such statutory frameworks, including the Posse Comitatus Act and its relatives which generally operates  as a default ban on active duty federal armed forces engaging in law enforcement. He argues that the best textual footing for such statutes is Article I, Section 8, Clause 14 of the Constitution. This clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” 

Rudesill concludes:

The statutory frameworks at the heart of the national security legal regime that find textual grounding in the Forces Clause are important to the republic at any moment. There are constant and enduring operational pressures and political incentives for the Executive Branch to disregard the law and its liberty/security balancing work. These statutory frameworks are of special importance, however, in a time of chronic national insecurity: war without end against transnational terrorist networks and within cyberspace, and the alarm and constant engagement of the military and intelligence apparatus they engender. These statutory frameworks safeguard liberty in the atmosphere of uncertainty and fear that national insecurity, together with dysfunctional government and volatile politics, produces. Such anxiety was not, of course, unknown to the Framers . . . .

He contends that Courts could take up the issues, but also Congress has an important role:

Congress’s authority to govern and regulate the land and naval forces and control their Commander in Chief is contingent. The Forces Clause does not stipulate a one-way ratchet toward greater liberty protections. Congress could choose not to use the Forces Clause’s authority – it could acquiesce to harsh presidential discipline of the military, authoritarian employment of it against the people, or reckless use of it abroad. Congress could use the Clause’s authority to weaken FISA, the Posse Comitatus Act, and other liberty-protecting laws. Or, Congress could choose to use the Clause’s authority actively – and more explicitly and consistently – to balance liberty and security considerations in a manner that protects both. The Clause’s potential, like the republic’s fate, ultimately resides with Congress and the love of liberty among the people the Article I branch represents, governs, and protects.

An interesting read as the composition of Congress is at issue in the midterm election.

October 29, 2018 in Congressional Authority, Executive Authority, Scholarship | Permalink | Comments (0)

Tuesday, October 23, 2018

CFP: Kavanaugh Nomination

CFP from Journal of Civil Rights and Economic Development at St. John's University School of Law.

JCRED

An America Divided: The Kavanaugh Nomination

The nomination and subsequent appointment of Brett Kavanaugh to the Supreme Court of the United States have sparked turmoil, outrage, and even more conflict to an already extremely divided America. Many agree, on the right and left, that the Senate hearings featuring Dr. Blasey Ford and Judge Brett Kavanaugh were historic, shocking and yet also affirming of deep-seated beliefs and fears. The hearings and subsequent events have revealed fundamental disagreement about fair and effective treatment of sexual violence survivors, about due process for those accused of sexual violence and about our collective expectations of the role, the demeanor, temperament and moral conduct of judges. . . .

We welcome full-length traditional law review articles with a maximum of 75 pages, as well as shorter essays and commentaries with a minimum of 10 pages. Authors will be selected based on brief abstracts of their articles, essays or commentaries. We aim to ensure an array of perspectives, methodologies and expertise.

SUBMISSION DEADLINES:
Abstract Deadline: November 12, 2018
Selected Authors Notification Date: November 30, 2018
Final Manuscript Submission Deadline:
January 15, 2019

full call and submission details here

 

 

October 23, 2018 in Conferences, Gender, Interpretation, Scholarship, Supreme Court (US) | Permalink | Comments (0)

Saturday, October 13, 2018

CFP: Women and the Law

 

2019 Detroit Mercy Law Review Symposium: Women and the Law

Call for Papers and Presentations

Deadline: November 9, 2018

The Law Review at University of Detroit Mercy School of Law will be hosting its 103rd annual symposium: Women and the Law.

Call for Proposals

The Detroit Mercy Law Review is accepting proposals for the 2019 Symposium: Women and the Law. The Detroit Mercy Law Review Symposium will take place on Friday, March 8, 2019 (International Women’s Day) in Detroit, Michigan. Possible topics include, but are not limited to: the history of women in the law, how women have impacted the law, how the law impacts women today, how future legal decisions could affect women’s rights (e.g. if Roe v. Wade, 410 U.S. 113 (1973) were to be overturned), what challenges women still face in the legal profession, the role of gender in the law, and any other topic regarding women and the law.

Proposals should be approximately 250-500 words, double-spaced, and detail the proposed topic and presentation.

Submission Procedure

The deadline to submit proposals is Friday, November 9, 2018 at 5PM EST. All proposals should be submitted to Samantha Buck, Symposium Director, at bucksl AT udmercy.edu. Please indicate whether your proposal is for a presentation only or if you would also like to publish an article with the Detroit Mercy Law Review on your presentation topic. If you are interested in submitting an article, it will be due to the Law Review on Friday, March 15, 2019. Please submit a current CV or resume along with your proposal. We will notify chosen speakers by November 30, 2018. Preference will be given to those willing to submit an article for publication.

October 13, 2018 in Conferences, Gender, Scholarship | Permalink | Comments (0)

Sunday, September 23, 2018

CFP: ACS Constitutional Law Scholars

Screen Shot 2018-09-23 at 11.55.53 AM

The student chapter of the American Constitution Society at Barry University School of Law and Texas A&M University School of Law are hosting the Fourth Annual Constitutional Law Scholars Forum at the Dwayne O. Andreas School of Law Campus, 6441 East Colonial Drive, Orlando, FL 32807. 

The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea to the editing stage.  The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment.  (The Forum is not accepting proposals from students at this time.)

 

The deadline to submit proposals is December 1, 2018.

 There are no conference fees and meals are provided.

 

Abstract Submissions:

Email proposals to Professor Eang Ngov, engov@barry.edu, with “Constitutional Law Scholars Forum” in the subject line.  Submissions should include a short abstract (300 words maximum) and biography (150 words maximum).

Conference Organizers: 

Professor Eang Ngov, engov@barry.edu, office (321) 206 -5677, cell phone (571) 643-2691

Professor Meg Penrose, megpenrose@law.tamu.edu

September 23, 2018 in Conferences, Scholarship | Permalink | Comments (0)

Thursday, September 20, 2018

Daily Read: Some Women Legal Scholars on the First Amendment

Over at "First Amendment News" (FAN) by Ron Collins, a symposium of 15 women scholars on the current state of the First Amendment. In her forward, Kellye Testy comments on the "relative lack of women’s visibility in First Amendment jurisprudence," by noting that what “counts” as First Amendment scholarship is subject to a sexist lens and that  protecting "free speech" can be a male preoccupation given that "men who have had “free speech” want to keep speaking," but  "women’s speech has been restrained, both as a matter of formal law and of social practices, including violence."

A number of the contributions focus on free speech in the "Trump-era" or in the "internet-era" or both, including my own.

Here's the list of authors and titles, all accessible here:

Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder”

Mary Anne Franks, “The Free Speech Fraternity”

Sarah C. Haan, “Facebook and the Identity Business”

Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech”

Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’”

Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place”

Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories”

Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency”

Helen Norton, “Taking Listeners’ First Amendment Interests Seriously”

Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra”

Ruthann Robson, “The Cyber Company Town”

Kelli Sager& Selina MacLaren, “First Amendment Rights of Access”

Sonja West, “President Trump and the Press Clause: A Cautionary Tale”

September 20, 2018 in First Amendment, Gender, Scholarship | Permalink | Comments (0)

Wednesday, September 12, 2018

Call for Participation: UNLV Symposium on Dignity, Tradition, and Constitutional Due Process

The UNLV William S. Boyd School of Law is calling for presenters and commenters for this exciting symposium, Dignity, Tradition, & Constitutional Due Process: Competing Judicial Paradigms, March 14-15, 2019, in Las Vegas.

The Court's determination regarding which paradigm to apply [a "deeply rooted" historical paradigm, or a "dignity" paradigm] depends, of course, on which receives at least five affirmative votes in any given appeal. Until his recent retirement, Justice Anthony Kennedy usually was the deciding vote. The probable confirmation of Hon. Brett Kavanaugh to Kennedy's seat may portend severely limited use of the dignity paradigm, if not its effective demise.

Our symposium . . . explores which of these two seemingly irreconcilable standards is correct, or whether there are one or more alternative approaches the courts should use.

Here's the full call; proposals are due by October 8, 2018, to Professor Peter B. Bayer, peter.bayer@unlv.edu.

September 12, 2018 in Conferences, News, Scholarship | Permalink | Comments (0)

Tuesday, August 28, 2018

ACS Call for Papers: Junior Scholars Public Law Workshop at the AALS

The American Constitution Society is calling for papers for its Junior Scholars Public Law Workshop at the 2019 AALS Conference. The official call for papers is here; here are the details:

The American Constitution Society is pleased to announce a call for papers for a workshop on public law to be held the afternoon of Thursday, January 3, 2019, at the 2019 AALS Annual Meeting in New Orleans. A committee composed to ACS's Board of Academic Advisors will select approximately 10 papers, and each selected author will have the opportunity to discuss his/her paper, as well as the paper of another author, in depth with two experienced scholars from the ACS network, which includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler.

Papers can be on any field related to public law, including but not limited to: constitutional law, administrative law, antidiscrimination law, criminal law, environmental law, family law, federal courts, financial regulation, public international law, society welfare law, and workplace law.

The deadline for submissions is 11:50 p.m. on October 19, 2018. Submissions should be works that will not be published as of January 1, 2019.

Submissions should be emailed in Microsoft Word or PDF format to juniorscholarsworkshop@acslaw.org. Please indicate in the subject line "Submission for ACS Junior Scholars Public Law Workshop" and include the author's name, school, and contact information in a cover email. The cover email should also identify the field(s) in which the paper falls.

Tenure-track and tenured faculty, or faculty with similar status, who have been full-time law teachers for 10 years or less as of December 31, 2018, are eligible to participate. Co-authored submissions are permissible, but each of the coauthors must be individually eligible to participate in the workshop.

Authors are limited to one submission each. Selections will be made by November 16, 2018. Authors must arrange their own travel to the AALS Annual Meeting.

Inquiries may be sent to Kara Stein, at kstein@acslaw.org.

 

August 28, 2018 in News, Scholarship | Permalink | Comments (0)

Wednesday, August 22, 2018

Check it Out: Driver on Public Education, Con Law, and the American Mind

Check out Justin Driver's (U. Chicago) expansive, meticulous, and engrossing new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. The title speaks for itself, but here's from the intro:

At its core, this book argues that the public school has served as the single most significant site of constitutional interpretation within the nation's history. No other arena of constitutional decisionmaking--not churches, not hotels, not hospitals, not restaurants, not police stations, not military bases, not automobiles, not even homes--comes close to matching the cultural import of the Supreme Court's jurisprudence governing public schools.

That's because of "the importance of that venue for shaping attitudes toward the nation's governing document." Still, "[i]n recent decades . . . such sentiments appear more often in the Court's dissenting opinions than in its majority opinions."

Driver tells us what to do about that.

 

August 22, 2018 in Books, News, Scholarship | Permalink | Comments (0)

Saturday, August 18, 2018

Check it Out: Chicago-Kent Symposium on the Court and American Politics

Check out Chicago-Kent Law Review's outstanding symposium issue, The Supreme Court and American Politics, edited by Profs. Christopher Schmidt and Carolyn Shapiro.

August 18, 2018 in Courts and Judging, News, Scholarship | Permalink | Comments (0)

Thursday, August 16, 2018

Check it Out: Notre Dame Law Review's Symposium on Qualified Immunity

Check out the Notre Dame Law Review's symposium issue, The Future of Qualified Immunity.

August 16, 2018 in News, Scholarship | Permalink | Comments (0)

Wednesday, August 8, 2018

Check it Out: Baude on Madison's Constitutional Liquidation

Check out William Baude's (U. Chicago) piece Constitutional Liquidation, forthcoming in the Stanford Law Review. Baude explores James Madison's idea that the Constitution's meaning could be "liquidated" and settled by practice. From the abstract:

Constitutional liquidation has three key elements. First, there had to be a textual indeterminacy. . . . Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and "the public sanction"--a real or imputed popular ratification.

Baude says that liquidation "provides a structured way for understanding . . . departmentalism," "could provide a salutary improvement over the modern doctrine of stare decisis," "is consistent with the core arguments for adhering to tradition," and "is less susceptible to some of the key criticisms against the more capacious use of historical practice."

August 8, 2018 in Interpretation, News, Scholarship | Permalink | Comments (0)

Wednesday, August 1, 2018

Check it Out: Morley on Prophylactic Redistricting

Check out Prof. Michael Morley's new piece, Prophylactic Redistricting? Congress's Section 5 Power and the New Equal Protection Right to Vote, in the William & Mary Law Review.

Morley argues that traditional remedial features of Section 2 of the Voting Rights Act are getting squeezed from two sides: (1) Boerne and reduced congressional authority to enforce the Fourteenth and Fifteenth Amendments mean that the Court will likely give a narrower reading to Section 2 (focusing only on intentional discrimination); and (2) the Court's shift to a "pro-equality" (and away from a "pro-vote") approach to the right to vote mean that courts will likely say that any legislative expansions of the franchise have to be shared equally by all. Here's what to do about it:

Courts may apply section 2 more aggressively to defendant jurisdictions or officials that have a recent history of engaging in intentional racial discrimination concerning the right to vote. They should also be more willing to allow prophylactic applications of section 2 in circumstances where direct evidence of constitutional violations (that is, intentional discrimination) would be impracticable or impossible to uncover. Finally, remedies under section 2 should not be broader than necessary to achieve its important prophylactic purposes. Section 2 runs a risk: the more it deviates from the mandates of the Court's developing conception of equal protection, and does so in a race-conscious manner that almost invariably inures to the benefit of a particular political party, the greater skepticism it will trigger in the courts. It places courts in the difficult position of reshaping both the rules of elections and the shape of electoral districts to attempt to replicate what a fair electoral outcome in the absence of past and present society discrimination would look like. Such awesome power demands careful use.

August 1, 2018 in Congressional Authority, Elections and Voting, Fundamental Rights, News, Scholarship | Permalink | Comments (0)

Monday, July 2, 2018

Daily Read: SCOTUS Justice Retirements and Political Goals

 In a recently updated and forthcoming article, Do Justices Time Their Retirements Politically? An Empirical Analysis of the Timing and Outcomes of Supreme Court Retirements in the Modern Era, by Christine Kexel Chabot (pictured) of Loyola-Chicago, she set out to explore whether or not Justices timed their retirements for political effect. 

Christine_chabotWith Kennedy's announced retirement, her empirical research of past retirements is quite relevant. She concludes:

Justices’ political retirement goals have often turned out to be wishful thinking. Some Justices found that they were relatively far removed from ideologies of party leaders (and potential successors) by the time they retired, and Justices who timed their retirements politically had limited success in obtaining like-minded replacements.

A fascinating read.

July 2, 2018 in Scholarship, Supreme Court (US) | Permalink | Comments (0)

Friday, June 29, 2018

Check it Out: Rosenthal Measures How Originalist are Originalists

Check out Prof. Lawrence Rosenthal's (Chapman) piece, An Empirical Inquiry into the Use of Originalism: Fourth Amendment Jurisprudence During the Career of Justice Scalia. Rosenthal finds

that originalism played a small role in Fourth Amendment jurisprudence during the study period . . . . Despite Justice Scalia's professed commitment to originalism, he voted on originalist grounds in only 18.63% of cases. The Court's other professed originalist, Justice Clarence Thomas, voted on originalist grounds in only 15.71% of cases. . . . Voting patterns were not markedly different for justices who do not profess fealty to originalism.

June 29, 2018 in Interpretation, News, Scholarship | Permalink | Comments (0)