Category: General Law

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FAN 35.2 (First Amendment News) — Former NSA Director counsels against going after James Risen

Hey, I knew we were playing up against the line.

. . . I don’t understand the necessity to pursue Jim.

– General Michael Hayden

On Sunday October 12th, James Risen of the New York Times appeared on 60 Minutes. He was interviewed by Lesley Stahl. Below are some selected excerpts from that installment of the CBS news program.

Stahl:  Will you divulge your source?

James Risen on 60 Minutes with Lesley Stahl

James Risen on 60 Minutes with Lesley Stahl

Risen:  No, never; I’m not going to talk.

Stahl: Sometimes you get yourself in trouble.

Risen: [Chuckles] Yea, the government has been after me for a while now. . . .

Stahl: What was your first reaction when you realized that the New York Times was onto the NSA story?

General Michael Hayden: First reaction was this is not good news. . . . [The NSA surveillance practices] were warrantless but not unwarranted. It would have been irresponsible for NSA not to have done this in the immediate aftermath of the attacks of 9-11. . . . Hey, I knew we were playing up against the line. . . . Jim is going to go to jail, why? Because Jim wants to protect his sources. . . .

Stahl: What kept you from walking out [when your editors initially held back your story]? Read More

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UC Davis Law Review, Issue 47:5 (June 2014)

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Lectures

Leaving Home? Domicile, Family, and Gender
Susan Frelich Appleton

Town of Greece v. Galloway: Constitutional Challenges to State-Sponsored Prayers at Local Government Meetings
Alan Brownstein

Articles

Watching Me: The War on Crime, Privacy, and the State
Kimberly D. Bailey

Beyond the Judicial Fourth Amendment: The Prosecutor’s Role
Russell M. Gold

From Protest to Perry: How Litigation Shaped the LGBT Movement’s Agenda
Gwendolyn M. Leachman

Reasonable Accommodation as Professional Responsibility, Reasonable Accommodation as Professionalism
Alex B. Long

Blightened Scrutiny
Andrew Tutt

“Law and Counterrevolution: Charles Beard and the Origins of American Constitutionalism,” Papers Presented at the 2013 Annual Meeting of the American Society for Legal History

Fletcher v. Peck and Constitutional Development in the Early United States
Gerald Leonard

The Legal Counterrevolution: The Jurisprudence of Constitutional Reform in 1787
Aaron T. Knapp

Note

Undoing Hardship: Applying the Principles of Dodd-Frank to the Law Student Debt Crisis
Christopher Gorman

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UC Davis Law Review, Issue 47:4 (April 2014)

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Lecture

The First Amendment’s Firstness

Akhil Reed Amar

Festschrift Honoring Angela Harris

Honoring Angela Harris: A Review of “Gender, Violence, Race, and Criminal Justice”

Cynthia Lee

In Honor of Angela Harris: Finding Breathing Space, Embracing the Contradictions, and “Education Work”

Stephanie M. Wildman

Breaking Glass: Identity, Community and Epistemology in Theory, Law and Education

Francisco Valdes

Professor Angela P. Harris: A Life of Power at the Intersection: When the Equality Walk Matches the Equality Talk

Professor Emma Coleman Jordan

Articles

The Jury As Constitutional Identity

Andrew Guthrie Ferguson

The Mobile Health Revolution?

Nathan Cortez

Disability, Development, and Human Rights: A Mandate and Framework for International Financial Institutions

Michael Ashley Stein & Penelope J.S. Stein

The Knowledge/Embodiment Dichotomy

Kevin Emerson Collins

CEOs and Presidents

Tom C.W. Lin

Note

The TPP & Its Broken Promises

Kelly Volkar

 

 

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FAN 35.1 (First Amendment News) — Creative Freedom & the First Amendment

On Wednesday, October 22, Freedom House and the Motion Picture Association of America, in support of Free Speech Week, will host a discussion on Creative Freedom and the First Amendment. The event will be held in Washington, D.C.

image001Panelists

Using current on-screen examples, the discussion will focus on how movies and television shows in the United States are powerful instruments that inform and enlighten us, advancing debates on crucial social and cultural issues. The creative freedom the First Amendment protects is fundamental to the ability of storytellers to tell these stories through television and film in America.

 Free Speech Week is an annual, non-partisan national event celebrating the value of freedom of speech.

→ For more information about the Creative Freedom event, contact Ivory Zorich at ivory_zorich@mpaa.org

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FAN 35 (First Amendment News) Clear & Present Danger in the states — Holmes’s Legacy

Suppose that a code were made and expressed in language sanctioned by the assent of the courts.  – Oliver Wendell Holmes (1870)

Judge Oliver Wendell Holmes, Jr.

Judge Oliver Wendell Holmes

46 States & 209 statutes 

Incredibly, commentators have long overlooked one of Holmes’s greatest contributions to American law, namely his contribution to state statutory law. Today, 46 states have codified, in one form or another, Holmes’s clear-and-present-danger formula for either civil or criminal liability. This codification, found in 209 state statutes, is not limited to criminal advocacy cases. State lawmakers have tapped Holmes’s famous formula for any variety of purposes, including but not limited to the following categories of regulation:

  • Parental rights
  • Food and drug safety
  • Witness protection
  • Bullying in schools
  • Gun safety
  • Therapist and counselor privilege
  • Building safety
  • Environmental reports
  • Banking law
  • Involuntary commitment
  • State-municipal loans
  • Treatment of the elderly

Because this body of statutory does not concern free speech cases involving criminal advocacy, Schenck and its progeny leading to and beyond Brandenburg v. Ohio need not govern the interpretative meaning of the clear-and-present-danger formula. In other words, state courts are largely free, consistent with other legal constraints, to give such statutes whatever interpretative gloss they wish.

Re Freedom of Expression

Of the 209 state laws that currently employ the clear-and-present-danger language, 40 have done so in matters relating to freedom of expression and/or assembly. Examples of such laws include the following:

  • Regulation of the content of student newspapers
  • Regulation of speech advocating the overthrow of the government
  • Regulation of speech related to the incitement of riots
  • Criminal contempt with respect to publication of court proceedings
  • Regulation of criminal syndicalism
  • Regulation of reading materials of the mentally ill
  • Regulation of free assembly
  • Regulation of expression in public places where alcohol is served
  • Regulation of prison inmate correspondence

422 State Court Opinions Read More

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More on Redistricting

Another way of looking at the Arizona State Legislature case is that the Constitution should be read to limit the freedom of states to take decisions that affect the structure or composition of the national government.  This rationale is advanced in some of the cases that discuss different uses of the word “legislature,” so let’s explore some examples.

1.  The ratification and proposal of constitutional amendments.  Article Five provides that Congress gets to decide how a constitutional amendment is ratified (either through state legislatures or conventions).  Article Five also specifies that only state legislatures may petition Congress for a second constitutional convention.  In neither instance may a state choose another method (say, by giving the Governor a role, using the initiative process, etc.)  Why?  I suppose because these are national (rather than local) decisions and thus the nation gets to choose the means.

2.  The election of Senators prior to the Sixteenth Amendment.  Only state legislatures could pick senators.  A state could not write its constitution to use another method.  Senators, of course, are national officials.

3.  The creation of new states from existing states.  Article Four says that this cannot be done without the consent of the relevant state legislatures.  Creating new states, of course, has a profound effect on the national government.

Why do I bring these up?  You could say that congressional redistricting is an example of a state action that directly affects the composition of Congress.  As a result, the Constitution’s statement that this “shall be prescribed in each State by the Legislature thereof” does limit a state’s ability to use some other method like an independent body.  On the other hand, Article One, Section expressly gives Congress the power to override a state decision of this sort.  As a result, you could say that if Congress does not prohibit what a state does in this regard then the Constitution should not be read to impose an independent barrier.  in other words, there is no “Dormant Elections Clause.”

Just food for thought.

 

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LIFE IS GRAND IN SAVANNAH!

Thanks to Sarah and the rest of the Concurring Opinion Crew for inviting me back. It’s been two years since my last run here and lot’s have changed here in Savannah.  This past month in Savannah we have seen the grand opening of our building — re-purposed from an early 19th Century hospital to a stunning Law Library.  To help us open the books on the new space, we invited several thoughtful and wonderful people to join us in thinking about how you reintegrate spaces, with a heavy emphasis on how race, space and place emerge in new environments.  Our key note Al Brophy,and other wonderful contributors, Anthony Baker, Steve Clowney, Lia Epperson, Liz Glazer, Jamilla Jefferson-Jones, Adam Kirk, Kali Murray, Connie Pikerston, Marc Poirier, Amanda Reid, Jeff Schmidt, and others.  It was a great time and a great environment.  (I plan to blog separately about the great panels that were presented and their dialogue that ensued).

On the heels of the colloquium, the New York Times this week published an article looking at what it calls Savannah’s other side — the Black side that is rarely acknowledged or confronted in a city that is “stuck in its on gauzy antebellum bubble.”

A visitor could easily spend a week sauntering along the city’s haunting boulevards and leave without a clue about the essential role Georgia’s oldest African-American community has played here….Blame the Low Country blackout, at least partly, on the fact that in the pageant of cities primping with New South sheen and aura, Savannah has perhaps made a less than eager contestant. The city is so proud of its Southern charms and traditions — Gothic Revival homes, high-on-the-hog soul food, Spanish moss canopies shading picturesque squares — that the mere suggestion of cultural evolution is enough to make an old-timer drop his mint julep. Perhaps Savannah’s legendary singer/songwriter Johnny Mercer said it best when he crooned: “I know I’m old fashioned/But I don’t mind it/That’s how I want to be/As long as you agree/To stay old fashioned with me.”

Boy is that true.  Living in the south again, (and starting a law school in the south) has been a reminder that race and poverty are quintessentially (though not uniquely) southern, along side college football, seersucker suits, and sweet tea.  Where some see spanish moss in charming trees, others see ghosts of past racial conflict..  A law school in the south (particularly a new law school) has a chance to tell a bit of the other side — to be a progressive space of thought and engagement. That’s why I came back to the South and why I call Savannah home.   Like most homes, we still have lots of work to do.

I’m looking forward to sharing more about Savannah, Property, Poverty, Law and Literature, Tenure, the Academy, and maybe a little College Football depending on how season goes (so far not so well — at least last week anyway).

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Upcoming Talk in DC

I’ll be giving a talk on John Bingham to The Lincoln Group of the District of Columbia on Tuesday, December 16th.  If you are interested in attending, here is the information.

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34.4 (First Amendment News) Freedom of Expression Scholars Conference — Call for Papers

abrams-logoThe Abrams Institute for Freedom of Expression and the Information Society Project at Yale Law School invite applications for the third annual Freedom of Expression Scholars Conference.  The conference will be held on May 2-3, 2015, at Yale Law School.

 The conference brings scholars together to discuss their works-in-progress concerning freedom of speech, expression, press, association, petition, assembly, and related issues of knowledge and information policy.  The past two conferences were great successes, with many interesting conversations, dozens of papers presented, and upwards of 50 scholars attending. Diversity of views welcome.

The conference offers participants an opportunity to receive substantive feedback through group discussion. Unlike a traditional conference, authors do not give formal presentations of their work.   Rather, each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants.  This format permits substantive and lively discussion of ideas and writings that may be inchoate or not yet fully developed.

Because of the format of the conference, participants will be expected to read and be prepared to discuss at least one paper per session, and to attend the entire conference.  In the past, there have typically been eight sessions, running from Saturday morning through Sunday afternoon, with a welcome dinner on Friday evening for those already arrived in New Haven.

 Participation in the conference is by invitation only, but we welcome paper submissions–and applications to participate as a discussant–from a wide range of scholars.  Please feel free to share this call for submissions with any colleagues that may be interested.

Titles and abstracts of papers should be submitted electronically to jonathan.manes@yale.edu no later than February 20, 2015.

→ Those interested in participating as discussants or participants without submitting a paper should also contact jonathan.manes@yale.edu by February 20, 2015.

 Workshop versions of accepted papers will be due on April 3, 2014 so that they can be circulated to discussants and conference participants in advance.

The conference announcement is online here.  Information about prior conferences, including attendees and the titles of workshopped papers, is available here and here.  As before, we are expecting that scholars will ask their home institutions to cover travel expenses.

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Should More Land Use Professors Be Libertarians?: Part III (Final Post)

This is (hopefully) the last in a series of three posts. In the first, I asked why more land use professors are not libertarians, considering the strong leftist critique of local government. In the second, I suggested that one reason for the leftist commitment to local government (and specifically to local government land use control, albeit often in the guise of “regionalism”) is that the relevant libertarian alternatives – namely, the marketplace and the common law of nuisance – are far worse. Nevertheless, I conceded that this answer was unsatisfactory, considering that many leftists – myself included – betray a Tocquevillian optimism about local government that is difficult to square with the position that local governments are merely the least bad of all the alternatives. So I am left here, in this third post, with the hardest question: How can left-leaning local government scholars have any optimism about local government in light of the abusive local government practices we have witnessed (and documented)?

State Structuring of Local Governments

Alright, here goes… While there is no denying the manifold abuses of which local governments are guilty (see my initial post), the blame for these abuses really falls upon state governments, not local governments. The reason local governments act in the parochial fashion they do is because states have empowered and constrained local governments in such a way that effectively forces local governments to be parochial. In a variety of ways, states have facilitated and encouraged the proliferation of small local governments within metropolitan regions, each of which is thus coerced into a zero-sum competition with the others for scarce revenues. States have, at the same time, dumped all kinds of unfunded and underfunded mandates on local governments, which they must meet with whatever revenue they raise locally. Yet, there is one saving grace for local governments: states have given them an awesome power — the land use power. Is it any surprise that local governments use the biggest power states have given them to solve the biggest problem states have saddled them with –an ongoing obligation to provide costly services with limited funds? The local government abuses I mentioned in my initial post, including the “fiscalization” of land use, exclusion of undesirable land uses (and users), strategic annexation and incorporation efforts, and sprawl are thus not things local governments do because they are inherently corrupt; they do so because the state has structured local government law so as to make these abuses inevitable.   Read More