Results tagged “Constitutional Law”

December 12, 2013

Levitt2.jpgBy Associate Professor Justin Levitt

This op-ed originally appeared on Pacific Standard.

Precisely 13 years ago, five Supreme Court justices cast the final and most important vote of the 2000 election, ending a Florida recount and effectively installing George W. Bush as the 43rd President of the United States.

Today, Bush v. Gore hits adolescence. We should be paying far more attention to this troubled teen.

The chaos of the winter of 2000 has slipped from the national consciousness. My students have no idea what a "hanging chad" is, or that such a thing was ever meaningful. More recent constitutional crises have left the combat in Tallahassee stale and distant. Much of America has, it seems, finally taken Justice Scalia's frequently quoted advice on the election: "Get over it."

But ignoring the Bush v. Gore bar mitzvah would be a grave mistake. In some ways, the need to remember--and to let that memory spur us to action--is greater now than ever before.

Read the complete piece.

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November 18, 2013

kmacfarlane.jpgBy Katherine A. Macfarlane '06, Guest Alumni Blogger
Teaching Fellow and Assistant Professor of Professional Practice, LSU Law Center

On October 31, 2013, the Second Circuit took the unusual step of removing Southern District of New York Judge Shira Scheindlin from two high-profile stop-and-frisk cases: Ligon v. City of New York and Floyd v. City of New York. Ligon is a Section 1983 class action challenging the NYPD's trespass arrest policy, or "Operation Clean Halls," a program through which NYPD officers patrol private apartment buildings across New York City. Judge Scheindlin oversaw Ligon since its filing in March 2012. Floyd, also a Section 1983 class action, challenged the NYPD's street-level stop-and-frisk practices, arguing that they amounted to racial profiling. Floyd was filed in January 2008, and immediately assigned to Judge Scheindlin.

The Floyd trial began in March and lasted nine weeks. Thirteen days before the Floyd trial began, the Floyd plaintiffs withdrew all claims for damages, and as a result, Floyd was tried to Judge Scheindlin, not to a jury. Floyd was decided in an August 12, 2013 order spanning 193 pages. Therein, the judge granted a sweeping injunction against the NYPD that ordered changes to NYPD policies and activities, appointed a monitor to oversee stop-and-frisk practices, required a "community-based joint remedial process to be conducted by a court-appointed facilitator," and ordered that one precinct in each of New York City's boroughs place body-worn cameras on their police officers. On the same date, Judge Scheindlin entered a similar decision in Ligon, ordering changes to the NYPD's trespass arrest policies, oversight by the same monitor appointed in Floyd, and revision of NYPD training materials and programs. In its October 31 order, in addition to removing Judge Scheindlin from Floyd and Ligon, the Second Circuit stayed the orders in Floyd and Ligon pending appeal.

But why was Judge Scheindlin removed? In its October 31 order, the Second Circuit found that Judge Scheindlin violated the Code of Conduct for United States Judges due to the appearance of partiality created by her "improper application" of the Southern District's "related cases rule," as well as "by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court."

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October 21, 2013

By Professor Karl Manheim and Adjunct Professors John S. Caragozian and Donald Warner

This op-ed originally appeared in the Oct. 21 edition of the Los Angeles Daily Journal.

A case has reached the 9th U.S. Circuit Court of Appeals that may further determine the fate of the initiative process in California. In Vivid Entertainment v. Fielding, No. 13-56445 (9th Cir. filed Aug. 20, 2013), the court is being asked whether an initiative will be invalidated, even after its constitutionality has been upheld at trial, because executive officials have abandoned its defense.

Vivid follows on the heels of Hollingsworth v. Perry, decided by the Supreme Court in June. In Hollingsworth, same-sex California couples challenged voter-approved Proposition 8, which had banned same-sex marriage. The U. S. district court ruled that Prop. 8 was unconstitutional, and state officials refused to appeal. Accordingly, Prop. 8's official proponents -- who had successfully intervened as defendants at trial -- appealed. The 9th Circuit affirmed the district court's ruling of unconstitutionality, and the proponents petitioned for certiorari.

The Supreme Court held that Prop. 8 proponents lacked Article III standing and dismissed the appeal. Chief Justice John Roberts' majority opinion stated that only state "officials" may represent the state's interests in defending a voter-enacted initiative. Although the California Supreme Court earlier had held that Prop. 8's official proponents were authorized by state law to represent the state's interests, Roberts characterized the proponents as mere "bystanders" for Article III purposes.

Vivid challenges another voter-passed initiative, and elected officials are again refusing to defend it. Measure B, which was passed by Los Angeles County voters, requires, inter alia, condom use by actors in adult films made in the county. Vivid's plaintiffs -- movie producers and actors -- sued the county in U. S. district court, claiming that Measure B was an unconstitutional restriction on expression.

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October 15, 2013

vairo2013.jpgBy Professor Georgene Vairo

On October 1-2, the ABA TIPS Asbestos Litigation Task Force held its second round of hearings at Loyola Law School, Los Angeles. The Task Force was created to study the current state of asbestos litigation and consider ways in which fairness for both claimants and defendants can be achieved. The L.A. hearing, as well as an earlier hearing in Washington, D.C., revealed deep divisions among plaintiffs' attorneys and defendant attorneys on what needs to be done to deal with current aspects of what the U.S. Supreme Court once described as an "elephantine mass." Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999).

A 1991 Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 (Mar. 1991) sets forth the challenge: "[This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015."

We are only two years away from that date, and the asbestos litigation has morphed significantly and shows no sign of abating any time soon. Back in 1991, the Judicial Conference report identified numerous problems: growing dockets in state and federal courts; delays in getting to trial; long trials with complex issues being litigated over and over; transaction costs that dwarfed any recovery. Additionally, "the exhaustion of assets threatens and distorts the process; and future claimants may lose altogether." One piece of "good news" is that the federal MDL that was established in the same year is near completion of the resolution of most of the cases filed in the federal courts.

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October 7, 2013

levinson.jpgBy Associate Clinical Professor Jessica Levinson

This piece appears in Pacific Standard.

Shaun McCutcheon wants to make political donations to federal candidates. Allow me to clarify; McCutcheon wants to make a LOT of political donations to federal candidates. The Republican National Committee, among others, wants him to be able to do so. So what's the problem?

Currently, McCutcheon can give $2,600 per election directly to a federal candidate, a total of $48,600 per election to all federal candidates, and $74,600 per election to federal political party committees and political action committees, or PACs, that give money to federal candidates. Put another away, McCutcheon (and other individuals) are subject to a $123,200 per election aggregate contribution limit with respect to candidates, political parties, and PACs. McCutcheon, a general contractor living in Alabama, would like to change that. The result is the latest and greatest campaign finance question to hit the high court since Citizens United.

In the early 1970s, in the wake of the Watergate scandals that lead to the resignation of President Nixon, Congress implemented the nation's first comprehensive campaign finance law. The law limited how much could be given to and spent by candidates, how much could be spent by independent groups and organizations, required that certain donations and expenditures be disclosed to the public, and created a system of public campaign financing for presidential candidates.

In 1976, in a decision that remains the bedrock of campaign finance law, Buckley v. Valeo, the U.S. Supreme Court essentially accepted half of Congress' attempt to regulate money in politics. The court upheld limits on contributions, disclosure provisions and the public financing program. However, the court struck down limits on spending by candidates and independent organizations. In the court's patchwork opinion it upheld the limits on the total amount of contributions that donors could give to candidates, political party, and other political committees, finding that those limits were a way to prevent the evasion of the direct limits on contributions from individuals to candidates. The court's analysis is less than satisfying on this point. In the almost 40 years since that decision much has changed regarding campaign finance laws. Money now flows relatively freely, and in some cases in undisclosed amounts, through our political system. But the aggregate limits on contributions have stood.

Now the Supreme Court appears poised to change that and the only question for McCutcheon is how big his likely win will be. In order to determine the size and scope of McCutcheon's potential victory, we need to look at the current state of the law.

Back in 1976 the court applied one test to determine if contribution limits were constitutional, and another, more stringent, test to determine if expenditure limits were constitutional. First off, justices found that limits on the ability to give political donations present only a marginal restriction on First Amendment rights. The test to determine whether those limits are constitutional requires two steps. First, the restriction must serve a sufficient governmental interest, such as preventing corruption or the appearance of corruption, in order to justify the burden on speech and associational rightsSecond, the law must be well tailored to serve that goal (specifically, according to the court the limits must be "closely drawn.")

But what about expenditure limits? The court also held that when it comes to limits on spending, the applicable test is more stringent because those limits present a severe, rather than merely a marginal, restriction on First Amendment rights. So in the case of spending limits the government must show that its interest in implementing the restriction is compelling (as opposed to sufficiently important) and that the restriction is narrowly tailored to serve that interest (as opposed to being closely drawn to serve that purpose).

These court-created tests, and the less-than-clear terms like "closely drawn" and "narrowly tailored," may sound like overly formal hair splitting. And it some ways they are. But whether and how we can limit the influence of money in our electoral and political systems hangs on that hair splitting. The court has long held that contribution limits can be upheld because they help to reduce corruption or the appearance of corruption. But what exactly is the court's definition of corruption? Well, it has varied with almost every new Supreme Court decision in this area of the law, including the now-famous 2010 Citizens United decision. One of the main reasons that McCutcheon's argument has legs is that ever since Citizens United the court has defined corruption very narrowly as quid pro quo, which is Latin for "this for that." A broader definition of corruption could include concepts like undue influence and preferential access. The narrower the definition of corruption, the less likely a court is to find that a restriction serves to prevent it. McCutcheon argues, in a nutshell, that the government lacks a sufficient interest when it comes to aggregate contribution limits because in a world of narrowly defined corruption, it's not there. And if that's the case, McCutcheon is arguing that the court was wrong in Buckley when it upheld the limit on aggregate contribution limits.

McCutcheon also argues that the court should apply the second test, the one that is more difficult to satisfy, to the aggregate contribution limits.

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August 16, 2013

Thumbnail image for Levitt2.jpgBy Associate Professor Justin Levitt

The following essay is part of a SCOTUSBlog online symposium on McCutcheon v. Federal Election Commission.

Photographs purport to show objective facts. But whether they illuminate or distort our understanding of the world depends entirely on choices -- of lens, of frame -- that the photographer has made. Much of constitutional law is the same: the choice of lens and frame drives the Supreme Court's understanding of our rights and obligations. Without recognizing this truth, it is virtually impossible to understand the Court's campaign finance jurisprudence.

McCutcheon v. Federal Election Commission offers a dizzying fight over lens and frame. The briefs presented to the Court zoom from micro to macro and back, often within sentences of the same brief. The basic structure of the reason for the fight, at least, is clear. McCutcheon is about aggregate caps on contributions to federal candidates, party committees, and PACs that donate to candidates and parties. There are limits on what I can give to any individual federal candidate. And then there are limits on what I can give to all federal candidates, total. The same is true for parties and PACs. This case is about the totals.

From the flattest perspective, this case has already been decided. This case challenges aggregate limits. Buckley v. Valeo (1976), the progenitor of the modern campaign finance regime, upheld a system of aggregate limits. Easy. How to view aggregate limits

Much too easy. Buckley's 294 pages cover the entirety of the landmark Federal Election Campaign Act. It gave aggregate limits six sentences. Two of the six were devoted to describing the limits. One noted that the issue had "not been separately addressed at length by the parties." Three more disposed of the substance. This Court is unlikely to believe that its focus is confined by those three sentences. (Similarly, granting cert. to revisit these three sentences provides little reason to believe that the Court is interested in revisiting Buckley entirely.)

Another shallow lens simply looks to conventional wisdom, and the caricature of a relentlessly deregulatory Court. Citizens United looms, larger than life. Like Citizens United, the legislation challenged in McCutcheon also constrains campaign-related cash. And like Citizens United, the challenge has been brought in part by James Bopp, who has a remarkable record before the Court. Easy.

How to view aggregate limits

And also, too easy. Most of the Court's recent deregulatory decisions have involved expenditures: money that I spend to create and distribute a message, like a movie about Hillary Clinton. The Court has been far less eager to strike down restrictions on contributions: money that I give to a candidate to spend on her campaign as he or she pleases.

This distinction between expenditures and contributions creates an odd policy environment. But through Buckley's rights-based frame, it has its own - quite stable - logic.

Buckley, in essence, decided that my interest in speaking vigorously about politics is at the core of the First Amendment's protections. And no government interest presented in the case was sufficiently strong to override that right. In contrast, any speech interest in giving money to a candidate is derivative; any associative interest is easily promoted in other ways. And there is a real danger that politicians will do legislative favors for me if I agree to give them suitcases of cash.

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August 14, 2013

gilliam.jpgBy James Gilliam, Guest Alumni Blogger

Eric Holder's recent announcement at the American Bar Association's Annual Meeting that he is taking steps as Attorney General to tackle the bloated federal mass incarceration crisis comes at a crucial, and welcome, time. Indeed, preventing the use of the most severe federal drug penalties for people convicted of low-level drug offenses represents an important first step toward a fairer criminal justice system and will begin to curb the overcrowding issue that most every prison in the United States faces.

Now is the time for California -- a state the United States Supreme Court already ordered to reduce its prison population -- to follow Holder's lead. As in the rest of the nation, far too many people are locked up in California for far too long -- people we don't need to keep behind bars to ensure public safety. Rather than base our criminal justice system on knee-jerk, one-size-fits-all reactions like incarcerating people for offenses that could be better dealt with through substance abuse treatment, it is time for California to shift toward solutions that will create safety for California families and communities, while enabling those who have paid their debts to become productive citizens. There's no question that attempting to re-integrate into society is much easier to do without the lifelong barriers that follow a felony conviction, including obstacles to housing, employment, and even public support.

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July 29, 2013

By James Gilliam, Guest Alumni Blogger


Twenty years ago, I attended my first gay Pride celebration in my hometown of Nashville, Tenn. It marked the beginning of my advocacy on behalf of the LGBTQ community -- and has informed all that I have done since. This is the work that drives me.

Over the past two decades, the tools I've used to enact change have evolved as I have continued my education. I began my career in the LGBTQ movement as the director of the organization that produced the Pride event in Nashville. But I soon learned the power of the law. City officials tried, time and again, to block the celebration. They increased the number of costly, off-duty police officers we had to hire to provide security. They demanded, the morning of the event one year, that we display documents proving that our tents were flame retardant. Every year but one, they refused to close the main street for our parade. When necessary, we threatened a lawsuit; and each time, our celebration proceeded.

I wanted to wield the power of the law for good. So I came here, to Loyola Law School, on a public interest scholarship. When I graduated a decade ago, many states still considered gays and lesbians criminals. Just months later, while I was studying for the bar exam, I witnessed the law serving as an agent of justice: In Lawrence v. Texas, the U.S. Supreme Court held that Texas's law -- which criminalized sexual acts between same-sex partners, but not partners of the opposite sex -- was unconstitutional.

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December 13, 2012

By Associate Professor Kevin LappLapp_SJ.jpg

On December 6, 2012, California Attorney General Kamala Harris declared that local law enforcement agencies in the state are free to decide whether they will comply with immigration detainers issued by the federal government. This was a big announcement for at least two reasons: (1) immigration detainers are a key component of immigration enforcement programs such as Secure Communities, which ostensibly target for deportation non-citizens who have committed serious crimes, and (2) California is the nation's most populous state, with the largest non-citizen population and the nation's largest criminal justice system.

An immigration detainer is a piece of paper from immigration officials purporting to command a jailor to hold a specific individual for up to 48 hours after the individual would otherwise have been released. The purpose behind the extra detention is to allow Immigration and Customs Enforcement (ICE) to evaluate the detainee's immigration status or take the individual into custody itself. Since 2009, the United States has issued approximately 250,000 immigration detainers a year.

State and local law enforcement officials across the country regularly comply with immigration detainers, holding individuals at their own cost until ICE takes them into custody or releases the hold. Some believe that compliance is mandatory, as a glance at the form would suggest. Near the top, it states in bold and all caps, "MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS." Later, the form quotes from a regulation, 8 C.F.R. 287.7, that the law enforcement agency "shall maintain custody of an alien" once DHS issues a detainer.

But there has been a growing trend against compliance. Santa Clara and San Francisco County (as well as Chicago, Washington, D.C. and New York City) have chosen not to honor at least some immigration detainers. These localities have taken AG Harris's position that the detainers are requests, not commands. They have also objected to the fact that the states and localities must bear the cost of the extended detention, often for individuals arrested for petty offenses who pose no risk to the community.

In the last two months, Los Angeles County has gone from an area of total compliance to limited compliance. In October, Los Angeles Police Department Chief Charlie Beck said that his department (the nation's second largest) would soon refuse to honor certain immigration detainers. Chief Beck made it clear that his decision was a reaction to the federal government's heavy-handed approach toward non-citizens, which despite claims to the contrary, targets both dangerous criminals and those suspected of petty offenses. In California, for example, more than half of the people deported pursuant to Secure Communities since 2009 had no criminal history or only misdemeanor convictions. Chief Beck also linked this concern to public safety, asserting that "we need to build trust in [Hispanic] communities and we need to build cooperation." Beck's plan is to refuse immigration detainers for those arrested for certain non-violent misdemeanors (the plan must be approved by a civilian board before it goes into effect).

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December 7, 2012

NeJaime2.jpgBy Professor Doug NeJaime

The U.S. Supreme Court has decided to hear two cases implicating marriage for same-sex couples. The first, United States v. Windsor, raises the question of whether Section 3 of the federal Defense of Marriage Act (DOMA), which denies federal recognition to same-sex couples' marriages, is unconstitutional. The second, Hollingsworth v. Perry, involves the constitutionality of California's Proposition 8, the state constitutional amendment banning marriage for same-sex couples. That the Court has taken these two cases suggests that it may approach the significant issue raised by the Second Circuit in Windsor -- but avoided by the Ninth Circuit in Perry -- regarding the level of scrutiny to be afforded sexual orientation classifications for equal protection purposes. If sexual orientation classifications merit heightened scrutiny, as the Second Circuit held, all laws that discriminate against lesbians and gay men -- including state marriage prohibitions -- would be suspect. Of course, the combination of Windsor and Perry also suggests that some Justices may believe there is a material distinction between a federal law denying recognition to same-sex couples' valid state-law marriages and a state law preventing same-sex couples from marrying. In other words, the Supreme Court may, on one hand, be poised to issue definitive rulings in favor of sexual orientation equality or, on the other hand, be prepared to split the difference. At the same time, the Supreme Court could simply approach both issues by employing the lowest level of constitutional scrutiny and yet still find both the federal and state laws unconstitutional.

Professor NeJaime recently wrote about the possible Supreme Court review of same-sex marriage laws on Jurist.

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November 20, 2012

Clark Blog.jpgBy Professor Brietta Clark

BloggingBallot.jpgSince election night people have been preoccupied with what the post-election polling reveals about America's electorate, particularly its shifting values and priorities and what this will mean for future elections. A recurring theme among commentators is that growing diversity played an important role for Democratic wins in the Presidential and Congressional races. According to a report by the Pew Research Center, Obama received the support of African Americans, Latinos, and Asian Americans by a wide margin. Women also played a prominent role in this election: they not only supported Obama by a wide margin, but were also instrumental in Democratic wins in the House and Senate. And a Gallup survey showed that voters who identify as gay, lesbian, or bisexual overwhelmingly supported President Obama.

Read the complete post on Professor Clark's Health Care Justice Blog.

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November 16, 2012

NeJaime2.jpgBy Associate Professor Doug NeJaime

On November 7, 2012, voters in Maine, Maryland, and Washington became the first in the country to approve same-sex marriage at the ballot box, ending a long-running streak of popular votes against marriage equality. On the same day, voters in Minnesota rejected a constitutional amendment that would have prohibited marriage for same-sex couples — something California voters failed to do four years ago. Now that the popular vote has swung the other way, it is not simply the political calculus that has changed but the legal landscape as well. For opponents of same-sex marriage, their streak at the ballot box has supported their arguments against judicial intervention in favor of marriage equality. With these recent results, it becomes increasingly difficult to paint the judiciary — and the US Supreme Court in particular — as an overreaching, out-of-touch institution on the question of same-sex marriage. This new dynamic comes just as the Supreme Court prepares to consider the issue. The Court will soon announce whether it will review cases striking down the federal Defense of Marriage Act (DOMA) and California's Proposition 8.

The entire piece is available on Jurist's Forum. Read the complete piece.

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November 7, 2012

Caplan2.jpgBy Associate Professor Aaron Caplan

Barack Obama's election -- and now re-election -- signal America's willingness to select as its leader a member of a historically reviled minority group. The group I refer to, of course, is constitutional law professors.

BloggingBallot.jpgThe President's familiarity with America's constitutional history crept into his Tuesday night victory speech, but perhaps at a frequency that only dogs or fellow con law professors could hear. Consciously or unconsciously, he echoed sentiments from a case studied in most First Amendment courses, Terminiello v. City of Chicago (1949). Terminiello was one of a series of important decisions involving civil rights and freedom of speech that arose from Chicago's tumultuous racial and ethnic tensions of the mid-20th century. As a proud Chicagoan, President Obama would certainly be familiar with this line of cases, which also includes Hansberry v. Lee (1940) (segregated housing), Beauharnais v. Illinois (1952) (hate speech), Gregory v. Chicago (1969) (civil rights demonstration), Organization for a Better Austin v. Keefe (1971) (protests relating to segregated housing), and Collin v. Smith (1978) (neo-Nazi parade).

In Terminiello, an angry crowd demonstrated outside an auditorium where a demagogue delivered a reactionary and anti-Semitic political speech. To avoid a riot, police arrested the speaker for disorderly conduct. At trial, the jury was instructed that a defendant's behavior "may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm."

The Supreme Court reversed the conviction. In its most widely-quoted passage, Justice William O. Douglas's majority opinion relied on a bit of verbal jujitsu to declare that the vices identified in the jury instructions were actually virtues: "[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

Justice Douglas's opinion in Terminiello echoed in this passage of the President's victory speech in Chicago:

Democracy in a nation of 300 million can be noisy and messy and complicated. We have our own opinions. Each of us has deeply held beliefs. And when we go through tough times, when we make big decisions as a country, it necessarily stirs passions, stirs up controversy. That won't change after tonight, and it shouldn't. These arguments we have are a mark of our liberty.

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October 30, 2012

NeJaime2.jpgBy Associate Professor Doug NeJaime

On November 6, voters in Maine, Maryland, and Washington will decide whether to allow same-sex couples to marry. In 2010, Maine voters repealed the marriage equality law that lawmakers had passed and the governor had signed. This time Mainers will be the first in the country to affirmatively vote on same-sex marriage. In Maryland and Washington, voters are being asked whether to approve or reject the marriage equality laws state lawmakers passed earlier this year. In all three states, recent polls suggest that marriage equality may win.

BloggingBallotCheck12b.jpgOf course, this would mark a game-changing moment in the political battle for same-sex marriage. But it would also significantly impact the legal battle raging in the courts. Currently, the U.S. Supreme Court is considering whether to weigh in on both the federal Defense of Marriage Act (DOMA) and California's Proposition 8, the state constitutional ban on same-sex marriage. Advocates at the leading LGBT legal organizations warned against the federal challenge to Proposition 8, worried about its uncertain fate at the Court. Throughout the litigation, they have worked - along with the City and County of San Francisco and prominent constitutional law professors - to frame the case as one about the unique situation in California. The Ninth Circuit agreed, finding that California, which allowed same-sex couples to marry before taking that right away and which provides a comprehensive domestic partnership system with the state-law rights and benefits of marriage for same-sex couples, did not have a legitimate interest in restricting marriage. Under the Ninth Circuit's holding, determinations regarding the constitutionality of other states' marriage bans require additional litigation. LGBT movement advocates, therefore, are hoping the Justices will pass on the invitation to review the Ninth Circuit's decision.

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October 23, 2012

Caplan2.jpgBy Associate Professor Aaron Caplan

Every year, my constitutional law students study Personnel Administrator of Massachusetts v. Feeney (1979), which involved a Massachusetts program giving veterans an employment preference when applying for state jobs. Since at that time veterans were overwhelmingly male, the law effectively locked females out of state jobs. The U.S. Supreme Court upheld the program, explaining that the state would not be discriminating by enacting a law that disporportionately harmed women -- unless the state chose that law "because of," and not merely "in spite of" its disparate impact.


I do not know whether Massachusetts still has a veterans preference, but according to presidential candidate Mitt Romney, he did his part to find state employment for women while he was governor of that state. As he told the story during the Oct. 16 debate:

As I was serving as governor of my state ... I had the chance to pull together a cabinet and all the applicants seemed to be men.

And I went to my staff, and I said, “How come all the people for these jobs are all men?” They said, “Well, these are the people that have the qualifications.” And I said, “Well, gosh, can’t we find some women that are also qualified?”

And we took a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet.

I went to a number of women’s groups and said, “Can you help us find folks,” and they brought us whole binders full of women.

I was proud of the fact that after I staffed my Cabinet and my senior staff, that the University of New York in Albany did a survey of all 50 states, and concluded that mine had more women in senior leadership positions than any other state in America.

Now one of the reasons I was able to get so many good women to be part of that team was because of our recruiting effort. But number two, because I recognized that if you’re going to have women in the workforce that sometimes you need to be more flexible. My chief of staff, for instance, had two kids that were still in school. She said, I can’t be here until 7 or 8 o’clock at night. I need to be able to get home at 5 o’clock so I can be there for making dinner for my kids and being with them when they get home from school. So we said fine. Let’s have a flexible schedule so you can have hours that work for you.

According to the Boston Phoenix, women's groups assembled the resumes of qualified women in advance of the election, so Governor Romney may not have instigated the idea as he described. But as an article on Slate points out, Romney at least took the trouble to look through the binders, and hired quite a few women from those resumes.

There's a name for what Governor Romney described in the debate: affirmative action. An all-male list of finalists may signal something faulty about your search. Absence of women on the list of qualified applicants may tell you more about your assumptions about job qualifications than tells you about the capabilities of women. The obligation to reconsider institutional arrangements goes beyond the recruitment phase. The nature of workplace may need to change so that nontraditional workers can succeed once they are hired. Most of my students think this sounds pretty good. And a presidential nominee would not be boasting about his history of affirmative action it unless he thought it would generate mainstream support.

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October 9, 2012

westfaulcon2.jpgProfessor Kimberly West-Faulcon submitted an amicus curiae brief on behalf of the respondents in Fisher v. Univ. of TX at Austin.

In it, she wrote:

This brief explains how social science research undermines the common misconception that black applicants must be receiving "preferential" treatment and that the magnitude of the so-called "preference" is large on the basis of a casual numerical comparison of the average test scores of black admits as compared to white admits. It also explains that "the gap" in black-white group average scores on traditional mental tests, while still in existence, has been narrowing for several decades. The brief describes the relevance of contemporary research finding that theoretically-improved and updated versions of such tests have been shown to narrow the black-white average score gap presumably because they are based on more theoretically robust and more outcome predictive theories of intelligence. Such research calls into question petitioner's allegation that UT's minimal consideration of race as a factor in admissions violates her Fourteenth Amendment constitutional rights because she is Caucasian.

Read the complete brief.

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April 26, 2012

Levenson2.jpgLaurie Levenson, Professor of Law, William M. Rains Fellow and David W. Burcham Chair in Ethical Advocacy, wrote the following article titled, "Supreme Court's Rulings on Ineffective Assistance at Plea Bargaining Stage Call for New Efforts by Not Only Defense Counsel but Also Prosecutors and Judges," that was published in Bloomberg's Criminal Law Reporter on Wed. April 25, 2012.

"It is a big year for U.S. Supreme Court cases. Health care, affirmative action, GPS devices, stripsearches--the court selected many of the hot-button issues to decide this term. Among the most important cases are Missouri v. Frye, 2012 BL 67235 (U.S. 3/21/2012), and Lafler v. Cooper, BL 67236 (U.S. 3/21/2012). In these opinions, the court recognized that plea bargaining lies at the heart of the way that the current criminal justice system operates. Thus, the court's decision to set standards for defense counsel's assistance during plea bargaining has the potential to dramatically affect how plea bargaining is handled in this country."

Read the full article.

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March 5, 2012

In a new essay, Constitutional Change, Courts, and Social Movements, to be published in the Michigan Law Review, Professor Doug NeJaime reviews Jack Balkin's influential new book, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press 2011). Balkin is the Knight Professor of Constitutional Law at Yale Law School and is one of the most influential constitutional scholars in the country. In the review, NeJaime argues that by situating courts as important actors in the process of constitutional and social change, Balkin's analysis redeems courts in a field - constitutional theory - that has largely turned away from courts as undemocratic, incapable, and inherently conservative. Ultimately, NeJaime takes his work on law and social movements to Balkin's account of constitutional change, arguing that attention to the way in which social movement lawyers deploy court-based tactics suggests that Balkin's account of courts is more realistic than the pessimistic accounts that have dominated constitutional scholarship recently. While Balkin focuses on social movements' relationship to courts, he does not borrow explicitly from the extensive literature on social movements in sociology. Accordingly, NeJaime suggests a research agenda that uses the theoretical frameworks and empirical insights from social movement theory to develop a more dynamic, context-specific, and contingent account of courts in the process of social change. In the end, NeJaime argues, social movement theory would help constitutional scholars specify both the possibilities and limitations of courts and court-centered tactics.


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March 5, 2012

Clark Blog.jpgBy Professor Brietta Clark

[Recently], the U.S. Supreme Court issued an odd decision in the case of Douglas v. Independent Living Center. Douglas is the consolidation of three suits challenging cuts in California's Medicaid (Medi-Cal) reimbursement for a wide range of health care services. The Ninth Circuit affirmed lower court decisions halting the cuts because they were found to violate a provision of the Medicaid Act that requires rates be sufficient to ensure equal access to quality care. This provision, 42 USC 1396a(a)(30(A), is commonly known as the "Equal Access" or "30A" Requirement. The Supreme Court did not take up the issue of whether the cuts actually violated this requirement.

Read the complete piece on Professor Brietta Clark's Health Care Justice Blog.

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February 22, 2012

Caplan2.jpgBy Associate Professor Aaron Caplan

When can the government punish liars? The question is being debated today in the Supreme Court, as it hears oral arguments in United States v. Alvarez. In this case from Southern California, the defendant said during a public meeting that he had received the Congressional Medal of Honor. He hadn't. The government prosecuted under the Stolen Valor Act of 2005, which makes it a federal crime for any person to "falsely represent himself or herself, verbally or in writing, to have been awarded any [military] decoration or medal" -- even if no medals or related documents are counterfeited, and even if no one is financially harmed or suffers other personal injuries as a result of the false statement. It would be constitutionally acceptable for the government to prosecute someone who told this or any other lie as part of a scheme to defraud others. But in this case, the defendant's bogus boasts were not used to cheat anyone, but only to scratch some inner itch within his own personality. As it happens, his lies were quickly and publicly exposed, and he was ostracized by his community. Alvarez's behavior was certainly undesirable, but may he be sent to prison simply because society considers his lies morally objectionable?

I previously wrote about Alvarez for the American Constitution Society blog in 2010 when the Court of Appeals for the Ninth Circuit ruled 2-1 that the law was unconstitutional. Last fall, I asked nine students in my First Amendment class to sit as their own Supreme Court, applying existing free speech precedents to this novel situation. As a teacher, I was hoping that the class would be evenly divided to allow a lively classroom debate. There was plenty of debate, but in the end my justices reached a strong majority position -- by an 8 to 1 margin -- that the law was unconstitutional. They reasoned that the Stolen Valor Act punishes speech that does not fall into any of the narrowly defined categories of less-protected speech where the government is allowed to punish based on content. False statements that are part of a scheme to defraud are one proscribable category. False statements that damage another person's reputation (defamatory speech) are another. But my students overwhelmingly rejected the idea that these and similar categories were merely examples of a broader category of false statements in general. These students saw a great danger in allowing the government to decide what counts as the truth, unless such a judgment is required to redress an identifiable harm to others that the speech caused. Governmental action against speech is not justified merely because the speech is offensive to many (or most) people. They noted the historically-proven risk that such laws could be used against the government's political opponents, and argued that the truthfulness of Alvarez's speech should be judged in the marketplace of ideas -- which it was -- and not in a criminal courtroom.

A few months after our in-class exercise, the Court of Appeals for the Tenth Circuit issued a 3-0 decision in United States v. Strandlof that disagreed with the Ninth Circuit decision in Alvarez. My dissenting student was elated that his position was now supported by four out of the six federal appeals court judges who had considered the case. We will learn later this year whether the U.S. Supreme Court will dare to disagree with the collective judgment of a majority of my Loyola students.

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