Category: General Law


The Flawed Foundations of Article III Standing in Surveillance Cases (Part II)

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon

In my last post, I introduced the 1972 Supreme Court case of Laird v. Tatum, which has since served as a basis for subsequent courts to deny standing to plaintiffs seeking to challenge government surveillance programs. Here, I continue the exploration of Laird as unsound precedent for the high Article III bar currently facing surveillance plaintiffs.

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FAN 39 (First Amendment News) More license plate cases come to High Court

The next great First Amendment battleground, it turns out,

is on the back of your car. — Adam Liptak (2009)

North CarolinaThe Second, Fourth, Fifth, Sixth, Seventh, Eight, and Ninth Circuits have all rendered rulings in First Amendment speciality license plate cases. Now, two of these cases have found their way to the Court’s cert. docket — one out of North Carolina, the other out of Texas.  In both cases the First Amendment claim prevailed in the lower courts. As noted below, the Court has declined to review such claims in four different cases coming to it from the federal circuit courts. The latest challenges are:

 Berger v. American Civil Liberties Union of North Carolina

Issue: Whether the government speech doctrine permits the state of North Carolina to promote its “Choose Life” message through a specialty license plate program over which it exercises complete and effective control without also offering a pro-choice specialty plate.

Counsel: Scott W. Gaylord for Petitioners, Christopher A. Brook for Respondents

→ Walker v. Texas Division, Sons of Confederate Veterans

Issues:  (1) Whether the messages and images that appear on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality; and (2) whether Texas engaged in “viewpoint discrimination” by rejecting the license-plate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the Confederacy or the Confederate battle flag in a negative or critical light

Counsel: Jonathan F. Mitchell (S.G. of Texas for Petitioner), R. James George, Jr., for Respondents

See also: “Lawrence Walters comments on the First Amendment issues surrounding confederate flag license plates” (Fox News on YouTube)

Spectrum of Issues

  1. Government Speech or Private Speech?
  2. What kind of forum? — Traditional public, designated public, or non-public?
  3. Viewpoint Neutrality and Reasonableness?

Circuit Court Rulings 

First Amendment Claim Sustained

First Amendment Claim Denied

Related Cases  Read More


A Response to Piketty’s Capital from a Surprising Corner

Without referring to Thomas Piketty, Capital in the Twenty-First Century, the Harvard Business School, of all institutions, has recently published two studies that ultimately address the increasing economic inequality that plagues the United States and most of the developed world. Michael E. Porter and Jan V. Rivkin published the finding of the survey that the Harvard Business School did of its alumni. In short sum, the study concludes that “large and midsize firms have rallied strongly from the Great Recession, and highly skilled individuals are prospering. But middle and working-class citizens are struggling, as are small business. We argue that such a divergence is unsustainable. . . .” An Economy Doing Half Its Job: Findings of Harvard Business School’s 2013-14 Survey on U.S. Competitiveness (September 2014). Roger Martin, in the October issue of the Harvard Business Review, raises similar alarms: “In a democratic capitalist country, it is not sustainable to leave the members of the largest voting bloc out of the economic equation.” The Rise (and Likely Fall) of the Talent Economy, Harv. Bus. Rev. October 2014, pp. 41, 43.

Martin traces the shift from natural resources being the most valuable assets 100 years ago to the development of talent as the “asset” of greatest value. “By 2013 more than half the top 50 companies were talent based, including three of the four biggest: Apple, Microsoft, and Google.” As talent was becoming the most significant corporate value in the 1970’s, supply-side macroeconomic economists then argued that high income taxes created disincentives so that this talent would not be optimized. Given high tax rates for high incomes, talented people would slack off and not work as hard if so much of the resulting income went for taxes. With the Reagan Revolution, supply-side economics was the basis for the radical reduction in top tax rates. “The top marginal [income tax] rate plummeted from 70% in 1981, to 50% in 1982, to 38.5% in 1987, to 28% in 1988. Thus, in a mere seven years, $1 million earners saw the amount they kept after federal taxes increase from $340,000 to $725,000, while the $3.0 million that $10 million earners had been keeping grew to $7.2 million.” With the emergence of stock-based compensation, top executives focused on “managing the expectations of market participants, not on enhancing the real performance of the company.” The talent that was validated was in the ability short term to manipulate share value and that does not necessarily lead to the growth of the enterprise in the longer run. Thus manipulating the value of corporate stock does not lead to greater economic growth.

In addition to a tax system that creates incentives for top corporate executives to feather their own nests at the expense of the interests of the other stakeholders – shareholders and workers –, the emergence of hedge funds that rake off 2% of the value of the assets and 20% of the profits every year, provides extraordinarily high incomes to their managers. “[T]he top 25 hedge fund managers in 2010 raked in four times the earnings of all the CEOs of the Fortune 500 combined. The hedge fund industry, however, does not produce economic growth. “Essentially, the business of a hedge fund is to trade. . . . But trading doesn’t directly create value for anyone other than the hedge funds. One trader’s gain is simply another trader’s loss.” The tax system subsidizes hedge funds by not treating their earnings as earned income subject to the basic income tax rates but treat much of it as capital gains subject to lower tax rates

Putting together these two phenomena supports the conclusion that the personal gain of a small group of top corporate executives and hedge fund managers is a more important social policy than economic growth overall or even of return on the investment of capital itself. “Across the economy, the return on invested capital . . . peaked in 1979 and has been on a steady decline since the mid-1970s. It is currently below 2% and still dropping, as the minders of that capital, whether corporate executives or investment managers, extract ever more for their services.”

With little actual economic growth and the capture of so much income by top corporate and hedge fund managers, “inequality has rapidly increased, with the top 1% of the income distribution taking in as much as 80% (estimates vary) of the growth in GDP over the past 30 years.” Meanwhile “[r]eal wages for the 62% of the U.S. workforce classified as production and nonsupervisory workers have declined since the mid-1970s.

Martin attributes some job losses to the attempts by top managers to manipulate the price of corporate stock to increase their personal income by eliminating jobs, “the variable they can most easily squeeze in order to signal that they are addressing performance.”

Porter and Rivkin describe structural changes in the economy that pre-date the Great Recession. “Long-run growth rates in private-sector jobs started falling from historical levels about 2000 and remain low. The meager job creation that has occurred has been overwhelmingly in local industries, not those facing international competition. . . . Real hourly wages have stalled even among college-educated Americans; only those with advanced degrees have seen gains.”

When business expands, they do not do so by hiring new employees in the United States. “[B]usiness leaders in America are reluctant to hire full-time workers. When possible, they prefer to invest in technology to perform work, outsource activities to third parties [including off shore], or hire part-time workers.” For example, a story in the New York Times described the structure of Apple: “Apple employs 43,000 people in the United States and 20,000 overseas. Many more people work for Apple’s contractors: an additional 700,000 people engineer, build and assemble iPads, iPhones and Apple’s other products. But almost none of them work in the United States. Instead, they work for foreign companies in Asia, Europe and elsewhere.” Micro-economists would say that is as it should be because it no doubt is cost effective. From a macroeconomic point of view, aggregating the behavior of many enterprises leads to the hollowing out of our middle class work force and our middle class consumer economy. What is good for the Apples of this world, is not good for America.

Martin, Porter and Rivkin all agree that the present structure of our society, including our economy, is not sustainable. They do not, however, propose remedies. Porter and Rivken ask business to volunteer to be more proactive as to education generally and to educating their workers for the jobs that are allegedly available. While volunteerism is nice and may be of some help, it still seems grossly inadequate when what needs to be done is to redirect the structure and direction of our society and economy that does little for most people or the economy generally but creates tremendous incentives for corporate executives and hedge fund managers to capture almost all of the limited economic growth that results from these policies.

Could it be true that the Harvard Business School is proposing that we counterattack the class warfare the majority have suffered because of the extraordinary power of the small group at the top of the economic ladder? Is the Harvard Business School lining up with Occupy Wall Street?


Introducing Professor Mike Zimmer

Mike Zimmer3Mike Zimmer is a Professor of Law at Loyola University Chicago where he teaches labor and employment courses and constitutional law.

Zimmer was awarded the first “Paul Steven Miller Memorial Award for Scholarly Contributions to the Field of Labor and Employment Law” in 2011. His writing focuses on employment discrimination, constitutional law and international and comparative employment law. He is co-author of Cases and Materials on Employment Discrimination (8th ed. 2013), The Global Workplace: International & Comparative Employment Law: Cases & Materials (2nd ed. 2012) and numerous articles in leading law journals and he has presented at many conferences on labor and employment topics.  You can access many of Mike’s articles here.

Mike has had a peripatetic career in teaching. Having taught at the University of South Carolina and Wayne State, he was on the faculty at Seton Hall for 30 years before joining Loyola. He has visited at numerous schools including Northwestern, Illinois, Michigan State, Chicago-Kent and DePaul. Mike also has had a lot of experience teaching American and foreign law students abroad, including in Italy, France, the UK and China.

Welcome, Mike!




CJ Katzmann weighs in with new book on statutory interpretation

cover-197x300While there seems to be no end to books, articles, essays, blog posts and symposia on constitutional interpretation, relatively little attention is paid to the all-too-important issue of statutory interpretation. Well, that is changing with the advent of a new book by the Chief Judge of the Second Circuit Court of Appeals. The work is aptly titled Judging Statutes (Oxford University Press) and its author is Robert Katzmann. It is already drawing impressive attention as evidenced by the following:

Among other scholarly venues, there have already been programs on the book at the following places:

Of course, Judge Katzmann does not, by any measure, occupy this field alone. His chief scholarly rivals are Justice Antonin Scalia and Mr.  Bryan A. Garner, who two years ago published the much-noticed Reading Law: The Interpretation of Legal Texts. To be sure, the Chief Judge has a different interpretive take, though he approaches his subject with diplomacy, nuance, and a comprehensive knowledge of how the federal legislative process works. (Another leading book in this area is Legislation and Statutory Interpretation by William Eskridge, Philip Fricky and Elizabeth Garrett.)

Federal appeals judge Robert Katzmann’s new book [is attracting impressive attention]. Justices Ruth Bader Ginsburg and Sonia Sotomayor were in the front row of the audience on Tuesday at a Georgetown University Law Center event marking the Sept. 11 publication of Katzmann’s book Judging Statutes. . .  . The Justices’ presence signaled that, as Georgetown Law dean William Treanor put it, Katzmann’s book is ‘already having incredible influence, even as it is just being published.'” -- Tony Mauro

 In case you missed it, check out my Q & A interview with Chief Judge Katzmann over at SCOTUSblog.

(Full disclosure: I have known Robert Katzmann for many years.)

→ Coming soon: POSNER ON POSNER (a five-part Q & A series prefaced by an unconventional two-part biographical essay). 


The Flawed Foundations of Article III Standing in Surveillance Cases (Part I)

I’m grateful for the opportunity to be a Concurring Opinions guest blogger this month. My posts will largely concentrate on the history of Article III standing for plaintiffs seeking to challenge government surveillance programs, and the flawed foundations upon which our federal standing jurisprudence rests. 


Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon (Wikimedia Commons)

Plaintiffs seeking to challenge government surveillance programs have faced long odds in federal courts, due mainly to a line of Supreme Court cases that have set a very high bar to Article III standing in these cases. The origins of this jurisprudence can be directly traced to Laird v. Tatum, a 1972 case where the Supreme Court considered the question of who could sue the government over a surveillance program, holding in a 5-4 decision that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements. Federal courts have since relied upon Laird to deny standing to plaintiffs in surveillance cases, including the 2013 Supreme Court decision in Clapper v. Amnesty Int’l USA. But the facts behind Laird illuminate a number of important reasons why it is a weak basis for surveillance standing doctrine. It is therefore a worthwhile endeavor, I think, to reexamine Laird in a post-Snowden context in order to gain a deeper understanding of the Court’s flawed standing doctrine in surveillance cases.

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Poll Taxes and Voter IDs

The voter ID laws from Wisconsin and Texas are sure to reach the Supreme Court at some point, and so I’m trying to think through how the Twenty-Fourth Amendment (banning poll taxes in federal elections) might apply to these laws.

Let’s focus on folks who do not have an ID that a state considers valid.  (Maybe the person is elderly, for example, and never obtained a driver’s license.)  Suppose the state says that this person can get an ID for free, but to do so they have to go through some process.  If that process were onerous, then I think it fair to conclude that this would impose a poll tax.  The question is how burdensome is too burdensome.  Is the standard that if somebody could not vote as a result, then there is a violation?  Or do we judge this by some reasonableness standard?

One thing about the Twenty-Fourth Amendment that makes it different from other constitutional prohibitions is that it imposes a clear rule.  A $1 poll tax is just as unconstitutional as a $500 poll tax.  This may suggest that a conditional poll tax (in lieu of paying the fee for an ID, do this) should be assessed in a similar way black and white way.  In other words, a balancing test is not appropriate in this context.

Of course, this analysis does not cover a situation where someone has an ID and just forgets to bring it to the polls.  In that scenario, there is no poll tax and no constitutional violation–the issue falls under the Voting Rights Act.



FAN 38.1 (First Amendment News) FIRE bursts on out in NYC — Free speech celebration draws committed crowd

FlameandFIRE-390x195EXPLOSIVE. That is as good as any a word to describe the high energy level at the 15th Anniversary dinner of FIRE (Foundation for Individual Rights in Education), the group founded by Harvey Silvergate and  Alan Charles Kors in 1999. People were yelling “FIRE” in the crowded hall all evening long.

Some 280 people came together on Thursday evening last week at the Mandarin Oriental Hotel in NYC. They gathered to show their enthusiastic support for this non-partisan free speech group. Contrary to the mood of our times, liberals, conservatives and libertarians joined together in common cause to endorse FIRE’s campaign to contest unconstitutional campus speech codes.

Guests included Radley BalkoJoan BertinPaul BloomRobert Corn-Revere, Alan Dershowitz, Norman DorsenDonald DownsJoel Gora, Jonathan HaidtWendy Kaminer, Roger KimballMichael McConnellKirsten Powers, Lenore SkenazyNadine Strossen, Matt Welch, and Karen Gantz Zahler, among others.

Morgan Freeman

Morgan Freeman

Students speak out

Aided by film clips on two big screens (see video here), four student activists who challenged campus speech codes spoke of their experiences. They were: Merritt Burch, Morgan Freeman, Chris Lee, and Robert Van Tuinen.

Two Speakers: A First Amendment Lawyer & a Cognitive Scientist 

There were two speeches, which further fired up the audience. The first speech was by the noted First Amendment lawyer Floyd Abrams. His remarks were entitled “Free Speech is in Trouble on Campus.” Here is an excerpt:

[O]nly FIRE … would think of and then respond to the explosion of unconstitutional speech codes that limit student and faculty speech as it did just last month by threatening over 300 colleges with litigation challenging such rules. And only FIRE would do the detailed work of reading each speech code so it could announce that 58% of public colleges and universities are, right now, acting unconstitutionally in limiting sometimes discomforting but First Amendment protected speech, on campus, and then follow that up by actually commencing lawsuits in this area. .  . . FIRE, from the day it was created, has understood this and sought to expose it and deal with it. We are in the midst of an epidemic and FIRE is providing an antidote. 

→ Steven Pinker (the  noted experimental psychologist, cognitive scientist, linguist, and popular science author and Harvard professor) spoke after Abrams.  His remarks were titled “Three Reasons to Affirm Free Speech.” Here is an excerpt from his remarks:

Free speech is the only way to acquire knowledge about the world. Perhaps the greatest discovery in human history—one that is logically prior to every other discovery—is that all of our traditional sources of belief are in fact generators of error and should be dismissed as sources of knowledge. These include faith, revelation, dogma, authority, charisma, augury, prophesy, intuition, clairvoyance, conventional wisdom, and the warm glow of subjective certainty.

Greg Lukianoff — The FIRE Man

Greg Lukianoff

Greg Lukianoff

He is like no other — Lukianoff, FIRE’s president, is a man full of ideas, energy, and the smarts to make it all work. Author, pamphleteeractivist, and Stanford Law graduate, this 40-year-old who grew up in Danbury, CT is changing the world around him by bringing the First Amendment to the doorstep of college bureaucrats bent on squelching freedom of speech and conscience. And Lukianoff and FIRE are winning; they have prevailed (either by a court victory or a settlement) in every one of the challenges they have brought — and they are busily preparing many more. Beyond the courtroom, Lukianoff regularly takes his free-speech message to the pubic, either by testifing before Congress or appearing on the O’Reilly Factor, the CBS Evening News, or by publishing an op-ed in this or that newspaper. Regardless of one’s ideological stripes, he is always prepared to make a strong case for the First Amendment.

Meanwhile, Greg Lukianoff and his colleagues at FIRE have cases pending against the following six colleges:

  1. University of Hawaii at Hilo
  2. Western Michigan University
  3. Chicago State University
  4. Citrus College
  5. Iowa State University, and
  6. Ohio University

 Full disclosure: I attended as a guest of the Davis Wright Tremaine law firm, which works with FIRE in litigating campus speech code cases.


John Bingham and Thomas Jefferson

101px-John_Bingham_-_Brady-HandyI think I’ve come across an interesting inflection point in constitutional discourse (or what others might call an example of intergenerational synthesis.)

In 1871, John Bingham gave an address on the House floor in support of the Ku Klux Klan Act that offered a detailed explanation of his view that Section One of the Fourteenth Amendment extended the Bill of Rights to the States.  At one point, Bingham declared:  “Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.”

Here’s the problem:  I cannot find any evidence that Jefferson said this.  He was an advocate of a bill of rights after the Constitutional Convention, and many of the subjects that he wanted addressed were covered by the first set of amendments.  As far as I can tell, though, he never said that the first eight were a bill of rights.

What was going on?  Maybe Jefferson did say this and I can’t find the quote.  Maybe Bingham thought Jefferson said this but was mistaken.  Or maybe Bingham just made this up.  In any event, what I find fascinating about this is that many people today believe that Jefferson must have said something like this.  Why do they think that?  Partly because of the importance that we attach to the Bill of Rights.  It also may be that we think Jefferson said this because John Bingham told us so.  In so doing, though, Bingham was changing the Constitution’s meaning.


FAN 38 (First Amendment News) Abrams Institute to host conference on Net Neutrality

abrams-logoOn November 3rd, the Floyd Abrams Institute for Freedom of Expression will host a conference entitled Net Neutrality: From Debate to Policy Decisions. The conference will take place at the Century Association located at 7 West 43rd Street in New York City. The event starts with breakfast at 7:30 a.m. and ends promptly at 9:20 a.m. Here is a description:

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality. 

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality.

Panel speakers


A fee of $35 per person will be charged to cover the cost of the continental breakfast. Go here to register. The registration deadline is Thursday, October 30th.

 CLE Credit 

One and one half (1.5) CLE credit hours in Professional Practice (corporate) will be available for this program, which is transitional and non-transitional in nature. Preregistration is required for CLE credit.

* * * * 

 Related Articles

→ Upcoming AALS Panel Discussion

Petition to Watch 

At its Conference on October 31, 2014, the Court will consider the following free speech petition:

Issues: (1) Whether compelling a noncommercial pro-life speaker to declare it lacks a medical license passes strict scrutiny; and (2) whether a compelled speech law is unconstitutionally vague if the city can deem speakers as needing to comply, because of their “appearance,” without any ability for the speaker to know whether it must comply.
(Hat tip to Maureen Johnston)
Lithwick takes swipe at Roberts Court
Dahlia Lithwick

Dahlia Lithwick

In a new essay titled “The Courts’ Baffling New Math,” the ever feisty Dahlia Lithwick, the Supreme Court commentator for Slate, argues:

“The Supreme Court of the John Roberts era gets one thing very right: It’s one of the most free-speech-protective courts in modern history. There is no purveyor of semi-pornographic crush videos, no maker of rape-aspiring violent video games, no homophobic funeral protester, no anti-abortion clinic counselor, and no filthy-rich campaign contribution–seeker whose rights and privileges will not be treated by the Court with the utmost reverence and solicitude.”

Later in the same essay, Lithwick adds:

“This brings us back to the First Amendment, seemingly the only right that truly counts anymore in America. Why has the constitutional right to be heard all but overmastered the right to vote or legally terminate a pregnancy? Maybe the court is still capable of hearing even as it loses the ability to see? Or maybe the powerful voices of Fred Phelps, Shaun McCutcheon, and Anthony Elonis—the creatures who rightly are allowed to say and do horrible things in the name of free speech—count for more than the hundreds and thousands of voiceless voters and abortion-seekers who are seemingly not even important enough to name?”

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