Category: General Law

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AALS?

My springboard today is a post about the AALS (Am. Assn of Law Schools) asking whether law schools really need the AALS and perhaps that law schools can cut from their budget their annual fee to it. My accounting supports this view.

First, my own use of the AALS, then an accounting if its pursuits. The central themes in the AALS annual meetings are never about anything relevant to my scholarship, bankruptcy and securities, and they are at an inconvenient time of the year for me, so I miss most annual conferences. As a new teacher, however, I recall obtaining some value from going to one of the AALS new teacher conferences.

From my glance at the central themes of the 15 meetings at the AALS website (appended below) I restate their focus as dealing with a changing world and producing desirable legal change with a constant underscoring of the centrality of diversity.

Deal with change, produce desirable change, and maintain pluralism? If those were truly the central themes of the conferences, I should be elated. It sounds exactly right, no? Why are we all so jaded about the AALS?

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Cognitive Biases, the Legal Academy, and the Judiciary

It’s a pleasure to be here at Concurring Opinions.  I would like to thank Dan, Sarah, and Ron for inviting me.  During my visit, I hope to talk a bit about my core research areas of land use and local government law (including why you, who are statistically unlikely to be interested in either land use or local government law, should be interested), but also about other issues such as the current state of the legal academy and the legal profession, often using land use or local government law to examine these broader issues.

On Cognitive Biases

On that last note, Slate.com recently ran a great piece by Katy Waldman regarding how the human brain processes information, observing that people have a predilection to believe factual claims that we find easy to process.  Waldman synthesizes the results of several interesting studies, including one eye-opening study that identifies three persistent cognitive biases that humans possess.  As Waldman summarizes these biases: “First, we reflexively attribute people’s behavior to their character rather than their circumstances.” Second, “we learn more easily when knowledge is arranged hierarchically, so in a pinch we may be inclined to accept fixed status and gender roles.” And third, “we tend to assume that persisting and long-standing states are good and desirable, which stirs our faith in the status quo absent any kind of deep reflection.” The studygreen-lizard-1427838-s attributes these biases to the basic human need, rooted in the primitive recesses of our lizard brain (pictured), to manage uncertainty and risk.

While Waldman argues that there is some relationship between these biases and conservative political beliefs, what struck me about these findings is how well the biases describe judicial behavior.

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The Supreme Court and the Bill of Rights

As part of the research for my next book, I want to correct something that I said earlier.  I’ve written that the Supreme Court did not call the first set of amendments a bill of rights until 1893.  Turns out that is not quite right.  It was 1897.

For eighteenth and nineteenth century Americans, a bill of rights was something that you put at the beginning of a constitution and that declared general principles in the style of the Virginia Declaration of Rights (for example, “All men are by nature equally free and independent . . .”).  Since the constitutional amendments ratified in 1791 did not look like that, hardly anybody called it a bill of rights.  Justice Story (riding circuit) said in the 1830s that the first set of amendments were “in the nature of a bill of rights,” and a few people did use that lukewarm formulation after that.  In 1893, the Supreme Court repeated this for the first time, but there was a difference between “a bill of rights” and “in the nature [meaning just sort] of a bill of rights.”  I had not picked up on that distinction until recently.

Thus, the first Supreme Court decision that used the modern terminology was Robertson v. Baldwin, an 1897 case which said that “[t]he law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the Bill of Rights . . . “

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Originalism and Irrationality

A thought that occurred to me as I was reading Judge Posner’s opinion on same-sex marriage concerns the relationship between originalism and rational basis review.  Here are my questions:

1.  What is the originalist basis for saying that any irrational law is unconstitutional?  Are there Founding-era cases or authorities that support that proposition?  How about cases from the late 1860s?

2.  If not, then rational basis review must be an exception to originalism.  After all, a court undertaking that inquiry does not ask whether a law was rational given the perspective of 1787, 1791, 1868, etc.  Instead, judges are asked to decide whether a law is rational now.  How is that exception justified?

 

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CJ Katzmann speaks at NYU Law on new statutory interpretation book

Dean Trevor Morrison and Chief Judge Robert Katzmann

Dean Trevor Morrison and Chief Judge Robert Katzmann at N.Y.U. Law School

Robert A. Katzmann, Chief Judge of the Second Circuit, visited New York University Law School last evening to speak on his new book Judging Statutes (Oxford University Press, 2014).

The book grew out of a Madison Lecture Katzmann delivered at the Law School on October 18, 2011. Adam Liptak, of the New York Times, heard the lecture and urged the Judge to expand it into a book.

The format for the well-attended event was an interview by Dean Trevor Morrison followed by questions from the audience. Dean Morrison asked a series of questions concerning statutory interpretation — questions ranging from the importance of presidential signing statements to discerning congressional intent of omnibus legislation covering a vast array of topics sans much, if any, legislative record.

Supreme Court Justice Sonia Sotomayor was among those attending the event at which the Chief Judge autographed books.

 Chief Judge Katzmann was also recently interviewed by Brian Lamb on C-SPAN.

→ On Tuesday September 23rd, the Chief Judge will speak at Georgetown Law School. Here is the schedule for that upcoming event:

4:30 – 5:00 p.m.
  Conversation


  • William M. Treanor, Dean, Georgetown University Law Center
  • Robert A. Katzmann, Chief Judge, U.S. Court of Appeals for the 2nd Circuit

5:00 – 5:30 p.m.
 Panel Discussion

  • M. Douglass Bellis, Senior Counsel, Office of the Legislative Counsel, U.S. House of Representatives
  • Adam Liptak, Supreme Court Correspondent, The New York Times
  • David Vladeck, Professor, Georgetown University Law Center

Remarks
: 

  • David S. Mao, Law Librarian of Congress

 See also Jeffrey Toobin, “Will Textualism Kill Obamacare?,” The New Yorker, Sept. 3, 2014.

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FAN 30. 3 (First Amendment News) Senate votes to begin debate on proposed amendment to First Amendment

This from Susan Ferrechio  writing in the Washington Examiner:

“The Senate voted Monday to begin debate on an amendment to the U.S. Constitution that would grant Congress and the states the power to imagesregulate campaign finance.The measure cleared a procedural hurdle by a vote of 79-18. It was authored by Democrats, who had anticipated it would be blocked by GOP opposition. But Republicans voted to move ahead with debate, turning what was supposed to be a Democratic messaging bill against the Democrats.”

 This from Ramsey Cox writing for The Hill:

“The Senate on Monday advanced a constitutional amendment meant to reverse two recent Supreme Court decisions on campaign spending.Republicans are likely to vote against the amendment when it comes up for a final vote, but by allowing it to proceed, ensured that it will tie up the Senate for most of the week.More than 20 Republicans joined Democrats in the 79-18 vote advancing the amendment, well over the 60 votes that were needed. The amendment is almost certain to fail, as it would need to win two-thirds support to pass the Senate, and then would still need to move through the House and be ratified by two-thirds of the states.”

“‘We should have debate on this important amendment,’ Sen. Chuck Grassley (R-Iowa) said before voting for cloture. ‘The majority should be made to answer why they want to silence critics.’ Senate Majority Leader Harry Reid (D-Nev.) said he would gladly debate the issue for as long as Republicans require because the amendment is necessary to keep ‘dark money’ out of politics.”

→ This from Burgess Everett writing for Politico:

“Several Senate Republicans joined Democrats on Monday to advance a constitutional amendment that would give Congress and the states greater power to regulate campaign finance. But the bipartisanship ends there. Many of the Republicans only voted for the bill to foul up Democrats’ pre-election messaging schedule, freezing precious Senate floor time for a measure that ultimately has no chance of securing the two-thirds support necessary in both the House and Senate to amend the Constitution. The legislation needed 60 votes to advance and Democrats took a cynical view of the 79-18 tally.”

“Ahead of the vote, [Senator Bernie] Sanders and other pro-reform Democrats like [Senators] Al Franken of Minnesota, Amy Klobuchar of Minnesota and Tom Udall of New Mexico held a rally on the Capitol grounds with amendment supporters and supporting groups like People for the American Way, Common Cause and Public Citizen. The crowd was a solid mix of reporters and demonstrators with signs reading “Democracy is not for sale.”

For commentary, see:

→ Tom Udall & Bernie Sanders, “The Threat to American Democracy,” Politico, Sept. 7, 2014

→ Geoffrey Stone, “The Rift in the ACLU Over Free Speech,” Huffington Post, Sept, 8, 2014 (see also here re ACLU controversy)

 

 

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FAN 30.2 (First Amendment News) This evening: vote on proposed amendment to First Amendment

Since a vote re a proposed amendment to the First Amendment has been scheduled for 6 p.m. ET this evening, I am reposting an earlier FAN column on this topic.

The First Amendment never needs defending when it comes to popular speech. . . . I would hope that all of us in this chamber champion liberty … but when I hear some talk about cutting back on our First Amendment rights, you can see why people would wonder. — Senator Patrick Leahy, June 26, 2006

Text of First Amendment on stone tablet facing Pennsylvania Avenue -- the Newseum, Washington, D.C.

Text of First Amendment on stone tablet facing Pennsylvania Avenue — the Newseum, Washington, D.C.

That was the mindset of the man who on June 3rd will preside over a Senate Judiciary Committee hearing on a constitutional amendment to “rein in massive campaign spending.” Essentially, he takes exception to the proposition that spending money (or lots of it) on elections is protected speech, much as his opponents took exception eight years ago to the proposition that desecrating the flag was speech, let alone protected speech. In that regard, it is well to remember that the same Justice John Paul Stevens who recently testified before the Senate in favor of aconstitutional amendment to overrule Buckley v. Valeo and its progeny was also the one who dissented from the First Amendment holding in the flag desecration cases (Texas v. Johnson andUnited States v. Eichman). Thereafter, the campaign to pass a constitutional amendment to overrule those cases nearly succeeded (see below).

Text of Proposed Constitutional Amendment

I respect my colleagues’ fidelity to the First Amendment, but no amendment is absolute.                                                                                              – Senator Chuck Schumer (D-NY) (May 2014)

The proposed constitutional amendment (S.J. 19) set out below was introduced by Senator Tom Udall (D-NM) and co-sponsofed by Senators Michael Bennet (D-CO) and Jon Tester (D-MT) along with 38 others (no Republican co-sponsors):

SECTION 1. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on— (1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.

SECTION 2. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, each State shall have power to regulate the raising and spending of money and in-kind equivalents with respect to State elections, including through setting limits on— (1) the amount of contributions to candidates for nomination for election to, or for election to, State office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.

SECTION 3. Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.

SECTION 4. Congress and the States shall have power to implement and enforce this article by appropriate legislation.

Question:  Given the gravity of amending the First Amendment for the first time in our history, it would be well to know who exactly drafted the Udall amendment. If staffers, which one(s)? And did any law professor(s) help in the drafting?

→ Other proposed amendments can be found here.

* * * * *

[This proposed amendment is ] an all-out assault on the right to free speech, a right which undergirds all others in our democracy. — Senator Mitch McConnell, May 15, 2014

A Constitutional amendment requires a two-thirds vote of the House and Senate and ratification by 38 states, so it has scant chance of passing any time soon. – WSJ Editorial, May 6, 2014

Historical First? — Liberal Push for Amendment to Amend First Amendment Read More

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ROUNDUP: Law and Humanities 09.08.14

I’d like to alert those of you planning to attend the AALS Annual Meeting in January 2015 to three law and film events taking place during that time. The AALS Film Committee is sponsoring two law and film nights during the meeting. The first, on January 2, at 7:30 p.m. (the first night of the conference), will be a screening of the classic Judgment at Nuremberg, directed by Stanley Kramer, written by Abby Mann, and starring a whole host of great actors, including Spencer Tracy as the thoughtful Chief Judge Dan Haywood, Marlene Dietrich as widowed Mrs. Bertholt, lost in denial, a young William Shatner (in his pre Captain Kirk days), Richard Widmark as the passionate prosecutor Colonel Lawson, Burt Lancaster as Dr. Ernst Janning and Werner Klemperer, two of the German judges accused of war crimes, Judy Garland as Irene Hoffman, a witness nearly overcome by the story she has to tell, and Maximilian Schell as Hans Rolfe, the defense attorney for the judges, who challenges both the prosecutors and the system of justice at every turn. Rolfe poses the ultimate question: in such a high profile trial, in which the stakes include the future of a nation, can these defendants ever get justice? The film dramatizes some of the famous “Nuremberg Trials” held after World War II, in particular those in which judges rather than political and military figures were defendants.

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Scottish Independence

120px-Scottish_Flag_-_detailNext week Scotland will vote on independence.  No matter the outcome, the result will be more federalism in Great Britain.  Even if Scotland votes nae, that vote will still probably be close.  And much like what happened in Canada with Quebec, Parliament will have to give Scotland more autonomy to prevent a future vote from going the other way.  (Indeed, a proposal of this sort is already being floated to sway undecided voters.)  If Scotland votes aye, then one would expect Wales to demand and get more autonomy to stay in the Union, though Wales is a less viable independent states.

One curiosity about the upcoming vote is that Britain is due to hold a general election next year.  If Scotland votes aye on independence, then would it still get to vote in that election?  It will probably take more than a year to finalize Scottish secession, but it would be weird if a departing part of the country gets to form a new government.  (And then, I guess you’d have to have a new election as soon as all of the Scottish MPs leave.)  Of course, Parliament could simply postpone the election (something that cannot be done under our Constitution), but that creates its own difficulties.

One last thought.  At what point will a federal Britain need an English Parliament as distinct from Westminster?  In other words, right now there is no English provincial government–there are only national, Scottish, Welsh, and local ones.  How long is that sustainable if Scotland and Wales get more power within Britain?

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FAN 30.1 (First Amendment News) Six former ACLU leaders contest group’s 1st Amendment position on campaign finance — ACLU’s Legislative Director responds

→ The history of campaign finance regulation demonstrates the need to erect sturdy safeguards for free speech. — ACLU amicus brief, Citizens United v. FEC, July 29, 2009

→ Any rule that requires the government to determine what political speech is legitimate and how much political speech is appropriate is difficult to reconcile with the First Amendment. Our system of free expression is built on the premise that the people get to decide what speech they want to hear; it is not the role of the government to make that decision for them. — ACLU 2012 Statement

Below is a September 4, 2014 letter signed by six former leaders of the ACLU and presented to the chairman and members of the Senate Judiciary Committee. While the footnotes have been omitted, the full text with notes can be found here. Finally, note that a September 8, 2014 vote has been scheduled in the Senate concerning a proposal to amend the First Amendment.  

→ Following the statement below is a response from Ms. Laura W. Murphy, Director of the Washington Legislative Office of the ACLU.

ENTER THE DISSENTERS

Dear Chairman Leahy, Ranking Member Grassley, Subcommittee Chairman Durbin, and Subcommittee Ranking Member Cruz:

UnknownThis summer, some have taken to citing a June 2014 letter from the ACLU to bolster opposition to a constitutional amendment that would change the way Congress can regulate election spending.[fn] While, as present and former leaders of the ACLU, we take no position in this letter on whether a constitutional amendment is the most appropriate way to pursue campaign finance reform, we believe that the current leadership of the National ACLU has endorsed a deeply contested and incorrect reading of the First Amendment as a rigid deregulatory straitjacket that threatens the integrity of American democracy. [Bold type above & italicized bracketed text below  = added]

[Here is the ACLU position as stated on its website:  “Unfortunately, legitimate concern over the influence of ‘big money’ in politics has led some to propose a constitutional amendment to reverse the decision. The ACLU will firmly oppose any constitutional amendment that would limit the free speech clause of the First Amendment.”

→ And there is this statement by Laura W. Murphy, director, ACLU Washington Legislative Office (June 2012): “If there is one thing we absolutely should not be doing, it’s tinkering with our founding document to prevent groups like the ACLU (or even billionaires like Sheldon Adelson) from speaking freely about the central issues in our democracy. Doing so will fatally undermine the First Amendment, diminish the deterrent factor of a durable Constitution and give comfort to those who would use the amendment process to limit basic civil liberties and rights. It will literally ‘break’ the Constitution.”]

In 1998, some of us signed the enclosed letter circulated by every then-living retired leader of the ACLU, protesting the ACLU’s erroneous insistence that the First Amendment makes it impossible to regulate massive campaign spending by the richest 1/10 of 1% of the American electorate. [fn] Things have only gotten worse since 1998. The passage of 16 years means that fewer 20th century ACLU leaders are left to sign this letter. More importantly, over the past 16 years, using the ACLU’s erroneous reading of the First Amendment as a fig leaf, five justices have added huge multi-national corporations to the list of unlimited campaign spenders, [fn] and authorized wealthy individuals to contribute virtually unlimited sums to party leaders in a never-ending search for wealth-driven political influence. [fn] Under the ACLU’s erroneous reading of the First Amendment, it is no exaggeration to label today’s version of American democracy as “one dollar-one vote.” We reiterate the substance of the 1998 letter, and add the following additional comments in light of the unfortunate events of the last 16 years.

John Shattuck, one of the signers of letter

John Shattuck, one of the signers of letter

Our campaign finance system, already in dreadful shape in 1998, has only gotten worse. Today, American democracy is almost irretrievably broken because it is dominated by self-interested, wealthy interests. We believe that reform of our campaign finance system is the only way to fulfill Lincoln’s hope that government of the people, by the people, and for the people shall not perish from the earth. The 2012 federal election cycle was the most expensive in our history, with a combined price tag of $6.3 billion. Most of the money came from the top 1% of the economic tree. Indeed, even within the 1%, the top 10% of the 1% exercised overwhelming independent groups, including super PACs, collectively spent $1 billion.[fn] It is the supremely wealthy that provide the bulk of that money. And because of loopholes in the reporting statutes, we don’t even know who many of them are.

Super PACs, in particular, have become a mechanism for the wealthy to exert even greater influence over our elections and our elected officials. Only 1,578 donors, each of whom gave at least $50,000, were responsible for more than $760 million — or 89.3% — of all donations to super PACs in 2012.[fn] Thus, a microscopic percentage of the population is funding a significant percentage of the political spending in this country.

Equally, many likely 2016 presidential candidates have made pilgrimages to wealthy independent spenders hoping to bolster their electoral chances.[fn]  Such opportunities for candidates to, as many outlets put it, “kiss the ring” of a major political donor rightfully cause the public to question whether candidates are tailoring their views to the highest bidder.

We believe that the Supreme Court’s campaign finance decisions from Buckley [fn] to Citizens United to McCutcheon are based on three fallacies. Read More