Category: General Law

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RBG revises opinion after professor flags error

How often does it happen that a law professor flags a factual error in a Supreme Court opinion and the Justice thereafter changes that opinion to correct the error? Answer: not that often.

So when it happens, some of us think that credit should be given. Okay? So, onto the story, albeit the brief version.

In a post on his Election Law Blog yesterday, Professor Rick Hasen wrote:

In Justice Ginsburg’s 6-page dissent in the Texas voter id case, she writes: “Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans’ Affairs.”

A few people have pointed me to material from Texas which seems to suggest that these cards would be acceptable as a form of military identification. Veterans ID cards do not expire, and therefore they seem to meet the Texas requirement: “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.” (my emphasis)

By way of an update, he added: The Texas Secretary of State’s office has responded via Twitter: “Veterans Affairs ID cards are an acceptable form of photo ID in TX.

In response, Justice Ginsburg revised her dissent, as noted by Lyle Denniston over at SCOTUSblog:

In ticking off her objections, Ginsburg wrote that Texas would not even accept “photo ID cards issued by the U.S. Department of Veterans’ Affairs.”  On Wednesday, the Justice conceded that that comment was incorrect.  That kind of ID card, she said through the Court’s public information office, is “an acceptable form of photo identification for voting in Texas.”  So she simply deleted the sentence, and reissued the opinion.  The Court also said that she had made “small stylistic changes” on two pages of her opinion, and that the corrected version could be read on the Court’s website.

Nothing groundbreaking, but noteworthy nonetheless. Meanwhile, kudos to Professor Hasen (and his tipsters) for helping to get the official record straight.

Re correcting the official record, see: Adam Liptak, “Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing,” New York Times, May 24, 2014 (“The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include ‘truly substantive changes in factual statements and legal reasoning,’ said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”).

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FAN 37 (First Amendment News) McCutcheon case produces flood of scholarly commentary — 40 works!

Before proceeding to the scholarly output on McCutcheon, here is where we stand this Term on First Amendment free expression cases:

Review Granted

  1. Elonis v. United States (to be argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar
  3. Reed v. Town of Gilbert

Review Pending

  1. Pregnancy Care Center of New York v. City of New York 
  2. Vermont Right to Life Committee, et al v. Sorrell
  3. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission

Review Denied

  1. City of Indianapolis, Indiana v. Annex Books, Inc.
  2. Ashley Furniture Industries, Inc. v. United States 
  3. Mehanna v. United States 

* * * *

Erin Murphy arguing in McCutcheon case

Erin Murphy arguing in McCutcheon case

The decision in McCutcheon v. Federal Election Commission (2014) is barley six months old and it has already produced an abundance of scholarly commentary, including books, symposia, and articles — no fewer than 40 such works. And all of this before the revered Harvard Law Review issue dedicated to the last Supreme Court term finds its way to print. Ditto for the equally acclaimed Supreme Court Review. How times have changed. The days of waiting are over; we live in a wired era. That’s the good news. The bad news, of course, is: who can possibly begin to read all of this?

That said, and for better or worse, below is a list of books (e-books and print ones) and articles and essays (in online companions and print journals) that either discuss McCutcheon in full or in part (e.g. Zephyr Teachout’s book) or issues very much related to the decision (e.g, Robert Post’s book). All were published after the decision came down on April 2, 2014. Browse them and see how many catch your eye.

5 Books

35 Scholarly Articles or Blog Posts  Read More

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FAN 36.3 (First Amendment News) A street named Carlin

Cardinal Carlin

Cardinal Carlin

UPDATED

Tomorrow New York City will rename a street to honor the late George Carlin, the famed comedian and inspiration for FCC v. Pacifica (1978), the infamous First Amendment case sustaining a broadcast ban on “7 dirty words.”

Although “George Carlin Way” will begin at Amsterdam and West 121st Street, because of construction the ceremony tomorrow will be one block away at Morningside Drive and West 121st Street.

 → This from Howard Wasserman: “The named block is actually not the block on which Carlin grew up, because the church there (where Carlin went to school) objected; the compromise was to move it across to Amsterdam Avenue.” [Source: go here]

  The dedication ceremony will begin at 1:00 PM.

Current line-up of speakers

The following speakers have yet to confirm:

220px-Seven_Dirty_Words_WBAIEvening Event

Tomorrow night at 7:30 PM, at Carolines on Broadway, there will be a very special night of laughter to pay tribute to the dean of counterculture comedians and to celebrate his newly minted status as a man of the streets. (I will be in NYC and plan to be at Carolines.)

Colin Quinn will host, with performances by Ted Alexandro, Kevin Bartini, Eddie Brill, Jim Norton, and special surprise guests.

For details, go here.

→ Hat tip to Josh Wheeler 

For a memorable passage from Justice William Brennan:

I find the Court’s misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety on the whole of the American people so misguided, that I am unable to remain silent.

→ Related News Item: November 4, 2014 marks the 50th anniversary of Lenny Bruce’s New York obscenity conviction, for which he was posthumously pardoned on December 23, 2003.

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FAN 36.2 (First Amendment News) Corn-Revere on the FCC & Redskins Controversy

Robert Corn-Revere

Robert Corn-Revere

In case you missed it, yesterday Robert Corn-Revere had an op-ed in the Wall Street Journal. The piece was titled, “Free-Speech Foes Call an Audible — Bringing the FCC into the ‘Redskins’ debate is an invitation for First Amendment mischief.”

Here is the petition to the Federal Communications Commission, the one that gave rise to the FCC controversy.

 Here is how Mr. Corn-Revere began his WSJ op-ed:

“However you may feel about the name of the National Football League franchise in Washington, D.C., do we really want the Federal Communications Commission to step into the Redskins controversy as the nation’s culture police?”

“That’s what George Washington University law professor John Banzhaf III is seeking by asking the FCC to deny the broadcast license of WWXX, the FM radio station in Washington licensed to team owner Dan Snyder. The petition, filed in September, asks the FCC to yank the broadcast license because the station “deliberately, repeatedly, and unnecessarily broadcasts the word ‘R*dskins’ during most of its broadcast day.”

“That’s right, in lieu of the team name, the petition uses ‘R*dskins.'”

“This is a publicity stunt, not a serious legal argument. It is well beyond the FCC’s statutory or constitutional authority to prohibit speech merely because some find it offensive. But the idea gained some political traction after a Sept. 30 meeting when several FCC commissioners said they would consider the issue. Such consideration should not take long if the FCC is serious about following the law.”

Corn-Revere, former chief counsel to former FCC Chairman James Quello, then proceeded to lay out his case as to why Professor Banzhaf’s petition should be denied. In the process, Corn-Revere drew on FCC precedents and experience with regulations of this general type. In the end, he predicted:

“Without even getting into the frailties of the petition’s legal arguments, it doesn’t take a seer to predict what would happen if the FCC started canceling broadcast licenses because some people in the audience may be offended by something they had heard or seen. It would be a national version of college ‘speech codes,’ which have devolved into an offended-ness sweepstakes.

“There is no doubt about the sincerity of those who object to the name Washington Redskins. But asking the FCC to silence broadcasters who disagree with them is not the solution.”

Note: Professor Banzhaf has accepted my invitation to respond. I will post it as soon as i can. Stay tuned. 

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Formal Bills of Rights vs. Instrumental Ones

Below the fold I will post the Introduction of my revised paper, which I’m tentatively calling “The Bill of Rights Reconsidered.”  (It’s not a great title, but it’s good enough for now.)  As some readers may recall, last year I drafted a paper that focused on how Franklin D. Roosevelt elevated the status of the Bill of Rights in the 1930s.  Once I decided to turn this project into a book, I realized that my draft was inadequate.  It noted that most people did not call the first set of amendments a bill of rights until the 1890s, but did not offer an explanation for that curious fact.  I also did not explain why the terminology starting changing around 1900.  Those were pretty significant holes, but now I think that I have got them covered.

A theme of the paper is that our understanding of a bill of rights moved from a formal definition in the eighteenth and nineteenth centuries to a practical one in the twentieth and twenty-first.  Alexander Hamilton anticipated this change in Federalist #84, which I think has been misread for a long time.  (More on that later this week.)

Read More

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William Jennings Bryan and the Bill of Rights

91px-W.J._Bryan_cropI’ve made an interesting discovery about the history of the Bill of Rights that I want to share.  In prior posts, I’ve noted that people did not start commonly calling the first set of amendments a bill of rights until around 1900.  One step in that direction was when Congress created a territorial government for the Philippines in 1902 and gave some of the guarantees of the first set of amendments to that colony (though the Act did not call this part of a bill of rights, the Supreme Court did in 1904).  More broadly, the Court’s cases on Puerto Rico and the Philippines define the bill of rights in the modern sense more often (though they did not speak to the importance of the bill of rights in the way that we do).

In observing all of this, my initial thought was that there might be a connection between the transformation of the bill of rights and colonialism.  The acquisition of colonies was controversial at the time, and extending basic rights could have been a way to satisfy critics and quell the rebellion that was ongoing in the Philippines.  But is there any evidence  that people cared about this issue then?

I think so.  A month after William Jennings Bryan was nominated for president by the Democratic Party in 1900, he gave his acceptance speech in Indianapolis.  (In those days, presidential candidates did not accept their nomination at the convention.)  Most of Bryan’s speech was an attack on imperialism, and he stated his line of attack this way:

There is no place in our system of government for the deposit of arbitrary and irresponsible power. That the leaders of a great party should claim for any president or congress the right to treat millions of people as mere “possessions” and deal with them unrestrained by the constitution or the bill of rights shows how far we have already departed from the ancient landmarks and indicates what may be expected if this nation deliberately enters upon a career of empire.

Why is this important?  As far as I can tell, this is the first time that any major presidential candidate said anything about the bill of rights as we understand that term.  Moreover, Bryan made the issue that Congress addressed two years later–colonies could not be governed without the protection of (at least part of) the bill of rights.  Bryan, in essence, made the definition of the first set of amendments as a bill of rights into a significant political issue.

 

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Vanderbilt Law Review, Volume 67, Number 5

The Vanderbilt Law Review is pleased to announce the publication of our October 2014 issue:

ARTICLES

Mehrsa Baradaran, Regulation by Hypothetical, 67 Vand. L. Rev. 1247 (2014).

Matthew R. Ginther et al., The Language of Mens Rea, 67 Vand. L. Rev. 1327 (2014).

Anna Su, Speech Beyond Borders: Extraterritoriality and the First Amendment, 67 Vand. L. Rev. 1373 (2014).

NOTES

Philip L. Lu, Trademarked for Death? A Licensee’s Trademark Rights After an Executory Contract Is Rejected in Bankruptcy, 67 Vand. L. Rev. 1431 (2014).

Courtney J. Mitchell, Keep Your Friends Close: A Framework for Addressing Rights to Social Media Contacts, 67 Vand. L. Rev. 1459 (2014).

Tom S. Xu, Confrontation and the Law of Evidence: Can the Language Conduit Theory Survive in the Wake of Crawford?, 67 Vand. L. Rev. 1497 (2014).

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“Unpublished” Supreme Court Orders

Supreme Court watchers are expressing some consternation about the Court’s willingness to take significant steps in recent cases (same-sex marriage, abortion, and voting rights) without explanation.  This is especially true with respect to granting or denying stays, though in the same-sex marriage cases that concern extends to the denial of certiorari.  What in blazes is going on here, they ask?  Doesn’t the Court owe us some explanation?

I wonder if the Justices should consider an option used in the circuit courts–an unpublished order–to provide more transparency in these situations.  One can understand why the Court would not want to use a published opinion to explain a decision about a stay (which is only a preliminary or tentative act) or the denial of certiorari (as that would set a precedent without the benefit of full briefing and argument).  I can, though, imagine doing so through an order that says “this may not be cited as precedent” if the Court felt an explanation was necessary.  Granted, people would still try to cite these orders (as a law clerk, I often saw attorneys citing unpublished orders), but a norm could develop that would make these statements non-binding.

Most of the discretionary actions that the Court takes would not warrant an explanation (certiorari denials, petitions for rehearing, original habeas petitions), but there is the occasional exception.  Right now only a dissenter can open a window into what goes on with respect to these important choices.  I’m not sure that is always good enough.

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The Leaked TPP: Some notes, and Criminal Copyright

Today Wikileaks released the latest leaked draft of the IP chapter of the Transpacific Partnership Agreement (TPP). The TPP is a plurilateral trade agreement being negotiated between select countries across the Pacific, and is the latest in a longish line of free trade agreements that address IP law in great detail.

Free trade agreement negotiations are subject to a surprising amount of secrecy, but select industry advisers have access to detailed US negotiating objectives. Today’s leaked text, dated May of 2014, allows public interest groups and the general public a chance to play catch-up to US industry advisers.

I suspect that the drafts are often leaked, or “pleaked“,  by negotiating partners seeking to activate US public interest groups more sympathetic to their negotiating positions than to the positions proffered by the US. The leaked text shows evidence that such pleaking can work: more controversial provisions from older leaked drafts, including one in direct conflict with the Supreme Court’s decision on first sale doctrine in Kirtsaeng, have been removed. And the repeated leaking raises the question of why the US doesn’t voluntarily open the process up earlier- if leaking is now so prevalent that we’re going to see what’s in the agreements anyway, why insist on the dirty haze of secrecy and keep the public one step behind?

A number of people at public interest organizations (KEI, Public Citizen) have criticized the leaked text’s patent provisions for blocking access to medicines. The text also contains extensive provisions on geographical indications, and public performance rights, each of which raise significant issues (especially performance rights in light of the controversial Ninth Circuit decision in Garcia- for more on this issue in the international context, see Jacob Victor’s just-released essay).

The leaked draft also contains language on trade secrets that could be read to require a private cause of action, and may end up being used to launder federal law in the current debates over whether the U.S. should create a federal trade secrets private cause of action.

But the portion of the draft I would like to highlight is its provisions on criminal copyright law. Criminal copyright is a large part of what got ACTA rejected in the EU. As many have noted, the United States does not have the greatest interface between its copyright law and free speech rights, thanks to Supreme Court decisions in Eldred and Golan. As a consequence, Congress has been able to legislate into existence criminal copyright law that impinges on free speech values both by defining a low level of infringement as criminal, and by employing enforcement tools (such as the seizure of websites) that restrict freedom of expression.

The leaked draft shows a fight between the US and Canada over the scope of criminal copyright infringement and enforcement. Canada wishes to clarify that countries may restrict the criminalization of infringement to truly commercial scale infringement (see fn 183), while the US, per our domestic statute (the NET Act), wishes to reach noncommercial acts. The US fought China on this exact issue at the WTO and lost, so has been using free trade agreements to try to raise the TRIPS standard. The TPP parties are evidently debating whether to include the following: “For greater certainty, “financial gain” does not obligate a Party to provide criminal procedures and penalties in cases of de minimis infringements.” My guess, given past FTA language, is that the US comes down strongly against this footnote.

The underlying standard for criminal copyright infringement matters because it brings with it a host of enforcement tools, and active involvement by the state, thus implicating privacy in addition to free speech.

And when the low standard gets exported from the US, it can result in unintended consequences abroad. In Colombia, which enacted its current criminal copyright law pursuant to its free trade agreement with the US, a graduate student was arrested for posting a fellow scholars’ academic paper online without permission. Annemarie Bridy points to this prosecution as the consequence of US trade policy. And while the EFF is optimistic that the student should be acquitted under Colombian law, the case shows that free-speech fears over criminal copyright enforcement are real.

Until enhanced criminal copyright law comes off the US trade agenda, free trade agreements will continue to face opposition from those concerned about free expression and privacy online.

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FAN 36.1 (First Amendment News) Skover to Speak on McCutcheon Case

By way of a shameless plug for my coauthor:

INFLUENTIAL VOICES  

David Skover

David Skover

Seattle University School of Law
is proud to present
Professor David Skover

SCOTUS Books-in-Brief: When Money Speaks: A New Venture in E-Publishing

Wednesday, October 29
Room C6, Sullivan Hall, 4:30 p.m.
Reception to follow

The event is open to all, but RSVPs are requested.

Professor Skover will speak about the creation of the SCOTUS Books-in-Brief imprint and his latest coauthored book, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment.

When Money Speaks analyzes the controversial U.S. Supreme Court decision in McCutcheon v. FEC, which struck aggregate limits on contributions to political candidates. It has been called “a brilliant discussion of campaign finance in America” and “the best book on the topic.”

The SCOTUS Books-in-Brief series provides readers with reliable, informative, and engaging narrative accounts of significant Supreme Court rulings shortly after they come down.

Introduction by Dean Annette E. Clark