Author Archive for ronald-collins
posted by Ronald K.L. Collins
Free speech zone – It is shorthand for holding two contradictory opinions while believing in both of them. Incongruous logic, to be sure. And yet, that is the mindset that too many public college administrators impose on students in an attempt to make them believe that the best way to honor the First Amendment is by abridging it. They do so by restricting student speech to tiny “free speech zones” and by strictly controlling access thereto.
Such Orwellian doublethink is dystopian in principle and destructive in practice. Worse still, though many such policies are patently unconstitutional, an unfortunate number of university lawyers defend them until legally contested or fought out in court, whereupon taxpayers flip a hefty bill for their unconstitutional actions. Nonetheless, no one holds these public servants to account for their transgressions.
Cases in point: As late as 2012, the University of Cincinnati’s policy limited all “demonstrations, pickets, and rallies” to a “Free Speech Area” comprising just 0.1% of the university’s 137-acre West Campus. Much the same logic informed a Texas Tech University rule that once confined First Amendment activities to a single 20 foot-diameter gazebo – this for a campus of 28,000 students! Both policies were unconstitutional, but they were abandoned only after lawyers representing students took action.
Such examples are hardly past tense. Take Southeastern Louisiana University’s policy. It limits student speech to two hours every seven days and designates three areas of campus for assembly. The policy likewise requires a full week’s advance notice for assemblies and obliges all applicants to provide their birth date and Social Security number. Finally, consider the free speech policy of Modesto Junior College (MJC) in California. It limits speakers to one “little cement area.”
Against that backdrop, MJC’s Orwellian rules are being tested in a federal court. The case involves Robert Van Tuinen, a MJC student. Mr. Van Tuinen started to distribute copies of the Constitution on Constitution Day. But his non-obstructive civic-minded acts were deemed unlawful. Why? Because they were outside the ordained little portion of the school’s East Campus. Moreover, he had not complied with the school’s strict five-day prior application policy. As stated in the complaint contesting the rule, the MJC policy also “limits all individuals and student groups to using the free speech zone for no more than eight hours each semester. Given the size of the student body, the free speech ‘allowance’ amounts to scarcely more than two-and-half minutes per student, per semester.” Mind you, these rules were designed or approved or enforced and/or defended by lawyers acting on behalf of the College.
Though the College may regulate the “time, place, and manner” of campus speech, its policies are well beyond the pale of that tenet of law. The MJC policy unduly abridges student rights by confining them to tiny areas; it likewise constitutes an impermissible prior restraint; as applied, the policy is also unconstitutionally overbroad in regulating time, place, and manner; and finally, the rule is unduly vague insofar as it has no meaningful criteria to determine whose “free speech zone” applications are granted or denied.
posted by Ronald K.L. Collins
McCutcheon v. Federal Election Commission is one of the most important cases to be decided this term. The case involves a constitutional challenge to aggregate limits on contributions to federal candidates and political committees. This issue was left untouched in Citizens United v. Federal Elections Commission (2010). And as with so many of the cases in campaign finance area, the McCutcheon case brings the Court and bar back to the seminal ruling in this area — Buckley v. Valeo (1976). The eight-member Burger Court (Justice John Paul Stevens did not participate) produced a per curiam opinion along with five separate opinions (totaling 294 pages) in which the Justices dissented and concurred in part.
Thanks to the fact that several of the Justices who participated in Buckley kept conference notes that have now become public, we have somewhat of an idea of their ex officio views about the matter. The case involved a First Amendment challenge to provisions of the Federal Election Campaign Act of 1971 and its 1974 amendments.
Select portions of the Justices’ conference notes from FEC v. National Conservative Political Action Committee (1985) are likewise available for public scrutiny. That case also involved a First Amendment challenge, this time to the Presidential Election Campaign Fund Act. Here again, the Court was badly divided.
In what follows I offer a selection of snippets from the Justices’ conference notes from the two cases. These quotes may well be of some interest to those who are following the McCutcheon case. The conference notes quoted below are from The Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (Oxford University Press, 2001), which was edited by Professor Del Dickson of the University of San Diego Department of Political Science and International Relations.
* * * * *
The following are selected excerpts from the Justices’ conference notes in Buckley v. Valeo, which was argued on November 10, 1975:
Chief Justice Warren Burger: “I have serious doubts about whether these limits [$1,000 individual limits on spending “relative to a clearly identified candidate”] are constitutional. . . This is pure speech.”
“The disclosure provisions are the heart of the whole thing for me. I think these provisions are constitutional and highly desirable.
Justice William Brennan: “I would sustain the contribution limits. . . . I won’t vote on expenditure limitations today.”
Justice Potter Stewart: “On contributions, I was predisposed to say that the statute is constitutional at first, but the more I get into this the more doubtful I became.”
“The expenditure limitations are wholly unconstitutional.”
“I see no First Amendment problems in political committees.”
posted by Ronald K.L. Collins
What makes Alex Kozinski tick? That is the question that many have asked ever since the Romanian-born lad, who once considered himself a Communist, tasted the “forbidden luxuries” of bubble gum and bananas while in Vienna. It was at that pinpoint in time that he became “an instant capitalist.” Fast forward four decades or so and Kozinski, now the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, continues to baffle folks on all sides of the ideological divide. “I disagree with the liberals on the bench half of the time,” he chuckles, “and the conservatives the other half” is how he put it in a 2006 Reason magazine interview.
Ever the maverick, always the wit, and unvaryingly brainy, the trimmed jurist (he’s lost weight) is just as comfortable listening to a rough version of “Gloria” by Jim Morrison and the Doors as he is with taking in Beethoven’s Violin Concerto in D (recorded by Jascha Heifetz with the Boston Symphony Orchestra).
Make no mistake: Alex Kozinski is an acquired taste. Like anchovies, his flavor is bold – a true delight to uninhibited types, a true displeasure to staid types. Dating Game pick, Anthony Kennedy law clerk (while on the Ninth Circuit) and thereafter clerk to Warren Burger, assistant White House Counsel to President Reagan, Special Counsel of the Merit Systems Protection Board, chief judge on the Court of Federal Claims, and now circuit judge, he relishes a lively give-and-take during oral arguments and likewise welcomes the thrill of an exhilarating bungie jump. In other words, he likes to mix it up.
So who is this all-American with an accent who enjoys complex judicial work almost as much as a savory corned-beef sandwich at Attman’s Deli in Baltimore? Who is this man who flies his fanciful flag when others shy away into the quiet of the dark? Some answers to such questions can be found in a recent Reason magazine interview with the Chief Judge. Entitled “Judge Alex Kozinski: From Communist Romania to the 9th Circuit Court of Appeals,” the transcribed and video Las Vegas exchange with Matt Welch is quite revealing. At times serious, at times humorous, and at other times surprising, the interview exemplifies the kind of diverse brand of thinking and speaking that is quintessentially Kozinski.
With the kind permission of the folks at Reason, I am happy to share a few snippets of the recent interview with the Judge, who, by the way, is also my good-hearted friend . . . notwithstanding our sometimes different takes on life, law, and rock-n-roll. With that said, here’s Alex:
On tyranny: “[O]ne time I [said] something that sounded somewhat critical of the government, and my father almost lost his job over it. . . . There was a newspaper called Free Romania, and I was seven years old. [People in my father’s office asked:] ‘Do you know how to read?’ And I said, ‘Oh, yes.’ And they said, ‘Can you read [the paper] here?’ And I said, ‘Well, why is it called Free Romania? All those people are in prison.”
On Communism: While Communism may seem good on paper, it is really “a prescription for oppression. It [is] a prescription to give people power over other people that are not subject to lawful control or lawful checks . . . . [I]t inevitably leads to corruption [and] it inevitably leads to oppression.”
posted by Ronald K.L. Collins
We live by ideas. Even in this digital data era, we the heirs of the Guttenberg legacy still derive many of our new ideas from the printed page. Mindful of that, I have selected a variety of books that may be of some interest to the readers of this blog. To that end, I have highlighted 21 new or forthcoming books (including two of my own) and organized them under 11 topical categories. Consider them, read them, purchase them, or just browse the list below. More books, more profiles, coming.
— Marjorie Heins, Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge (New York University Press, February 2013)
“In the early 1950s, New York City’s teachers and professors became the targets of massive investigations into their political beliefs and associations. Those who refused to cooperate in the questioning were fired. Some had undoubtedly been communists, and the Communist Party-USA certainly made its share of mistakes, but there was never evidence that the accused teachers had abused their trust. Some were among the most brilliant, popular, and dedicated educators in the city. Priests of Our Democracy tells of the teachers and professors who resisted the witch hunt, those who collaborated, and those whose battles led to landmark Supreme Court decisions. It traces the political fortunes of academic freedom beginning in the late 19th century, both on campus and in the courts. Combining political and legal history with wrenching personal stories, the book details how the anti-communist excesses of the 1950s inspired the Supreme Court to recognize the vital role of teachers and professors in American democracy. The crushing of dissent in the 1950s impoverished political discourse in ways that are still being felt, and First Amendment academic freedom, a product of that period, is in peril today.” —Publisher’s blurb
— Joshua Karton, The Culture of International Arbitration and The Evolution of Contract Law (Oxford University Press, June 2013)
“This unique study investigates a theory of international arbitration culture alongside the publicly available arbitral awards, in order to make predictions about the contract law principles that international arbitrators are likely to favor. Drawing on interviews with prestigious practitioners in a range of jurisdictions, as well as case studies, conference papers, and unpublished awards, it presents a comparative analysis of arbitral and judicial responses to contractual principles. Part I presents the divergence in outcomes between national court litigation and international arbitration in relation to substantive law determinations, conducting in-depth case studies in two areas: the suspension of performance in response to non-performance, and the admissibility of extrinsic evidence to interpret contracts. Part II accounts for the conclusions of Part I with a comprehensive theory of arbitral decision-making, grounded in evidence gathered first-hand from arbitrators themselves.” —Publisher’s blurb
— Josh Blackman, Unprecedented: The Supreme Challenge to Obamacare (Public Affairs Books, summer, 2013)
“Unprecedented is the first book that explores the story of the legal challenge to the Patient Protection and Affordable Care Act—pejoratively known as “Obamacare”—from its inception all the way to the Supreme Court’s landmark decision in NFIB v. Sebelius. Unprecedented charts the journey of this challenge from its conception, where a small group of academics and Beltway attorneys created up a legal strategy—Congress could not regulate a person’s decision not to purchase health insurance. After its endorsement by leading Republican politicians, and buoyed by the rise of the Tea Party and its focus on the Constitution, this idea turned into a nationwide constitutional movement. Unprecedented explores how this case transformed the way we look at the Constitution, the Supreme Court, and the law, with a focus on the people and organizations that laid the groundwork for this challenge, and made the unexpected outcome a reality.” — JB blurb
— Nathaniel Persily, Gillian Metzger and Trevor Morrison, editors, The Health Care Case: The Supreme Court’s Decision & its Implications (Oxford University Press, May 2013)
“The book is divided into the following four topical sections: Part I: Reflections on the Supreme Court’s Decision; Part II: Lines of Argument: Commerce, Taxing and Spending, Necessary and Proper, and Due Process; Part III: The Important Role of the Chief Justice; and Part IV: The Decision’s Implications. Twenty contributors: Jonathan Adler, Samuel Bagenstos, Jack Balkin, Randy Barnett, Andrea Campbell, Richard Epstein, Charles Fried, Abbe Gluck, Michael Graetz, Jamal Greene, Linda Greenhouse, Timothy Jost, Andrew Koppelman, Jerry Mashaw, Sara Rosenbaum, Neil Siegel, Ilya Somin, Ted Ruger, Robert Weiner, John Witt, and the editors.” — NP blurb
posted by Ronald K.L. Collins
In a world where contract law, as typically taught, has one foot in the quicksand of the past, Lawrence Cunningham’s Contracts in the Real World is a most welcome and liberating alternative. Just consider the domain of what is commonly offered up:
* sales of “Blackacre” circa the 18th and 19th centuries,
* sailing ships destined for Liverpool circa 1864,
* carloads of Mason green fruit jars circa 1899,
* a promise to pay ₤100 to anyone who contracted the flu after using a “Carbolic Smoke Ball,” circa late 19th century,
* a 12-word “contract of sale” penned on the back of a “counter check,” circa early 1950s,
* a material breach case about a dispute over the brand of pipe (Reading or Cohoes) to be used in the construction of a home (circa early 1920s),
* representations made in 1959 in connection with a grocery “chain” begun in 1922 (by 2010 the “chain” was down to a lone store in Green Bay, Wisc.),
* promises re an option to buy a ranch, circa 1960s, and
* a 1965 contract involving the 78 year-old actress Shirley MacLaine (co-star of the 1960 movie The Apartment).
One need not be wed to Henry Ford’s maxim that “history is bunk” to appreciate that much of what is presented in contracts casebooks is past tense, past perfect, and past its time. While such an approach to teaching contracts may be a boon to slothful professors averse to updating their class notes, it does little to prepare today’s law students for the challenges facing them in the 2012 marketplace of digital deals.
Given the yester-world of many contracts casebooks, it is refreshing to have a book that brings modernity onto the stage of legal education. While Professor Cunningham pays due deference to the canonical cases (e.g., Lawrence v. Fox, N.Y., 1859), he does so in ways that reveal their contemporary relevance (e.g., as in how that precedent applied to a 2005 Wal-Mart dispute). Moreover, what is so stimulating about his book is that Cunningham highlights the law relevant to current business dealings of everyone from Bernard Madoff and Donald Trump to Lady Gaga and Paris Hilton, and 50 Cent, too. There is even a case involving a dispute over the rights to the HBO TV series The Sopranos.
Likewise, Cunningham both identifies and understands the real-world contexts of modern contract law involving everything from electronic transactions and confidentiality of information, to agreements re season tickets subscriptions for sports events, to entertainment contracts, to Amazon’s provider contracts, to any variety of contemporary non-disclosure agreements, et cetera.
In all of these ways and many others, Contracts in the Real World stands alone as a work that ushers the law of contracts into our times.
At the risk of sounding unduly laudatory, this book was a joy to read. Both stylistically and substantively, it is a work of admirable achievement without a real rival. When one offers such acclaim, there is a corresponding obligation to justify it. Hence, permit me to explain my evaluation, at least in summary fashion. Read the rest of this post »
BOOK REVIEW: A New (Scientific) Look at the SG and the Court (reviewing Black and Owens’s The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions)
posted by Ronald K.L. Collins
Ryan C. Black & Ryan J. Owens, The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions (Cambridge University Press, 2012)
I think a strong Solicitor General can have a very considerable influence on the Court.
– Erwin Griswold
Recently the Justices asked the Solicitor General’s office for its views on two cases, one concerning the Clean Water Act, and the other concerning the immunity of a foreign government’s central bank when the U.S. seeks to seize its assets. Though standard fare, the request reminds us of the importance that of SG’s office in our system of justice. To understand the workings of the Court, it is important to understand the workings of the SG’s office and how the two interact. Or as Lincoln Caplan put it in his The Tenth Justice: The Solicitor General and the Rule of Law (1987): “The relationship between the Supreme Court and the SG’s office has long been more intimate than anyone at either place likes to acknowledge.” Indeed. Thankfully, some of that intimacy is subject to scrutiny, as a forthcoming book on the subject reveals.
A newly released book is sure to be of interest to Court watchers. I refer to The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions (Cambridge University Press, 2012) by political science professors Ryan C. Black (Michigan State University) and Ryan J. Owens (University of Wisconsin, Madison). Both have written extensively, and continue to do so, on the Court, its workings, and on constitutional law generally. As their book and other works make clear, different SG’s approach their job quite differently and what they do can sometimes shape the resulting law announced by a majority of the Court. (See Michael McConnell, “The Rule of Law and the Solicitor General,” 21 Loy. L.A. L. Rev. 1105 (1988), and Steven Calabresi, “The President, the Supreme Court & the Constitution,” 61 L. & Contemp. Probs. 66 (1998).)
“Learned in the law”
The Office of the Solicitor General (OSG) is a curious institution. On the one hand, the SG is the lawyer for the Executive Branch, yet on the other hand the SG enjoys chambers at the Supreme Court as if he or she were a “tenth justice.” Though the SG is independent of the Court, the Justices are frequently dependent on the SG’s counsel. Not surprisingly, then, federal law (28 U.S.C. § 505) requires that the SG, and no other, be “learned in the law.”
The SG’s influence can hardly be denied. As David O. Stewart has observed: “The Justices have relied on the SG to screen unworthy petitions for certiorari and to provide a complete statement of the relevant law. And they have granted a disproportionately high proportion of the SG’s petitions for certiorari, invited his views on cases ion which the government was not a party and tended to rule in his favor.” (Book Review, ABAJ, Nov. 1, 1987, at 136.) So, exactly, how influential is the OSG when it comes to what the Court does or does not do? Professors Black and Owens answer that question by way of a remarkable illustration offered up in the first chapter of their nine-chapter book. This illustration, about which more will be said momentarily, sets the stage for a rigorous and detailed examination, replete with charts, of the work of the OSG and how it helps shape Supreme Court law. Their work-product derives largely from, among other things, cert pool memos, private docket sheets, and other archival data collected by them and other scholars. The result is a remarkable, as their discussion of National Organization of Women v. Scheidler (1994) illustrates.
posted by Ronald K.L. Collins
In contemporary law, his name ranks among the greats. He is Judge Richard A. Posner. Among many others, Posner’s works have in more recent times caught the attention of Justice Stephen Breyer, who not infrequently draws on or refers to the Seventh Circuit jurist’s writings. See e.g., Dorsey v. United States (2012), Mayo Collaborative Servs. v. Prometheus Labs., Inc. (2012), Golan v. Holder (2012, dissenting), McDonald v. City of Chicago (2010, dissenting), Bilski v. Kappos (2010, concurring), Merck & Co. v. Reynolds (2010), and Chambers v. United States (2009).
Whatever the extent of his popularity at the Supreme Court, Judge Posner is one of the few federal jurists to be openly critical of the Court, and in a judicial opinion no less. Consider, for example, a 1996 antitrust opinion in which then Chief Judge Posner took a few analytical and rhetorical swipes at the Court’s ruling in Albrecht v. Herald Co. (1968). Therein, Posner argued that the Albrecht opinion was rife with “infirmities” and suffered from “its increasingly wobbly, moth-eaten foundations.” The Supreme Court agreed and quoted Posner approvingly, and then reversed its holding in Albrecht! See State Oil Co. v. Kahn (1997). Admittedly, such judicial behavior – both at the circuit and Supreme Court levels – is an anomaly. Still, there is precedent, and its bears the Posner name.
Beyond Judge Posner’s many erudite (and sometimes controversial) judicial opinions, the Chicago-based jurist has published scores of scholarly articles and some 40 books on a variety of subjects. Coming this January, Judge Posner returns to one of his favorite topics: judging judges, including the work of Supreme Court Justices. Before saying anything more about his next book on this subject, permit me to flag a new article he has published entitled “The Rise and Fall of Judicial Restraint,” 100 Cal. L. Rev. 519 (2012). Here is an abstract of that article:
Judicial self-restraint, once a rallying cry for judges and law professors, has fallen on evil days. It is rarely invoked or advocated. This Essay traces the rise and fall of its best-known variant—restraint in invalidating legislative action as unconstitutional—as advocated by the “School of Thayer,” consisting of James Bradley Thayer and the influential judges and law professors who claimed to be his followers. The Essay argues, among other things, that both the strength and the weakness of the School was an acknowledged absence of a theory of how to decide a constitutional case. The rise of constitutional theory created an unbearable tension between Thayer’s claim that judges should uphold a statute unless its invalidity was clear beyond doubt (as it would very rarely be), and constitutional theories that claimed to dispel doubt and yield certifiably right answers in all cases.
Among Thayer’s most noted followers, Posner includes Justices Oliver Wendell Holmes, Louis Brandeis, and Felix Frankfurter along with Supreme Court scholar Alexander Bickel. (Re Bickel, see here for a recent online Symposium on the 50th anniversary of the publication of his The Least Dangerous Branch.)
Against that backdrop, we come to Judge Posner’s next book: The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press, January 2013, $49.95). Judge Posner is a co-author, the two others being Lee Epstein (professor of law and political science, University of Southern California) and William M. Landes (professor emeritus of law and economics, University of Chicago Law School).
posted by Ronald K.L. Collins
Free Speech: A Very Short Introduction by Nigel Warburton. Oxford University Press, 2009, pp. 115. Paper: $11.95.
What do you get with freedom? Excesses! Exploitation! And what does one say to that? A small price to pay. . . Without free communication . . . we don’t have a free society.
– Hugh Hefner
Shortly before he became the darling of liberals, Justice Oliver Wendell Holmes first defended and then cabined the principle of free expression: “The First Amendment,” he wrote, “prohibit[s] legislation against free speech.” But then, as he continued his thought, he stressed the obvious: it was not “intended to give immunity for every possible use of language.” It’s an old saw, one Holmes invoked in his cramped opinion in Frohwerk v. United States (1919). “A little breath” of the wrong kind of expression, he added, “would be enough to kindle a flame.” Result: First Amendment claim denied.
To defend freedom, one must be a risk-taker. To recast it in metaphoric vernacular, one must be willing to let a few fires burn. In the end, those who would protect free speech must be prepared to defend its excesses. For example, under our federal and state constitutions, some kinds of hurtful, disruptive, and hateful speech are protected. So, too, is blasphemous speech as well as many kinds of generally offensive speech, “worthless” and “mindless” speech, and even certain kinds of sexual expression, even when lewd and exploitative.
Like it or not, that is the creed of modern America’s law of free speech. It is a creed of libertarian-like toleration, one grounded in an idea that not even Voltaire ever expressly defended, if only because he never said “I despise what you say, but will defend to the death your right to say it.” (Apparently, Evelyn Beatrice Hall coined the phrase in a 1906 work on Voltaire.)
But Nigel Warburton, a philosopher at the Open University based in the U.K., appears willing to openly champion what old Voltaire never did. “Freedom of speech is worth defending vigorously,” he writes in Free Speech: A Very Short Introduction, “even when you hate what is being spoken.” So just how far is he prepared to go? Metaphorically put, how many fires will he let burn in the name of this beloved principle?
posted by Ronald K.L. Collins
Thirty or so years ago I had the honor of working with Robert Maynard Hutchins (then at the Center for the Study of Democratic Institutions) to help organize a two-day conference on constitutional law. Hutchins knew all of the luminaries of the day and invited notables such as Charles Black, Henry Steele Commager, Max Lerner, Louis Pollak, Ruth Bader Ginsburg, Laurence Tribe, Jesse Choper, and Charles Wyzanski. He turned to me, then a recent law graduate, to help identify some of the “up and coming players” in constitutional law – people who would “make a name for themselves and leave a mark on the law.” Happily, I obliged him and recommended, among others, Steve Shiffrin (UCLA) and C. Edwin Baker (Oregon). Oh, there was one other person I recommended; he was then an associate professor at the University of Michigan – Lee Carroll Bollinger.
Back then, in a cogent essay entitled “Elitism, The Masses & the Idea of Self-Government” (published in Constitutional Government in America), Professor Bollinger expressed concern about the “‘central meaning of the First Amendment,’” particularly as it pertained to broadcast regulation. Since then he has revisited that general concern, in one way or another, in a variety of thoughtful works such as The Tolerant Society (1986), Images of a Free Press (1991), and Eternally Vigilant (2002) co-edited with Geoffrey R. Stone. Now, with the recent publication of Uninhibited, Robust and Wide-Open, Lee Bollinger (president of Columbia) returns, yet again, to the grand optimism expressed by Justice William Brennan in New York Times Co. v. Sullivan (1964), from which the title of his latest book derives.
The book is the eighth installment in Oxford’s Inalienable Rights Series edited by Professor Stone. Bollinger is a sensible pick given his background as an esteemed First Amendment scholar and as a university president whose toleration has been tested by both campus free speech protestors (see NYT, Oct. 22, ‘06) and by critics outraged by his willingness to allow Iran’s president to speak at Columbia (see WSJ, Sept. 24, ‘07). He also serves as a director of the Washington Post Company. All in all, Bollinger brings both idealism and pragmatism to his project. As the book’s title suggests, his hope is to infuse the spirit of the former into the realities of the latter. Professor Bollinger thus invites his readers and the courts to reconsider and recast some of their notions of First Amendment law.