One more principle: Nondiscrimination

posted by Brett Frischmann

There is one principle that I would add to the five that Marvin examines in the article:  nondiscrimination.  It seems to me that across public and private, physical and virtual ”space” contexts (and judicial opinions), one persistent principle is that nondiscriminatory approaches to sustaining spaces, platforms, … infrastructures are presumptively legit and normatively attractive — whether government efforts to “sustain” involve public provisioning, subsidization or regulation.

I recognize that this might seem to tread too close to the negative liberty / anti-censorship model, but in my view, it helps connect the anti-censorship model with the pro-architecture model.  We should worry when government micro-manages speech and chooses winners and losers, but macro-managing/structuring the speech environment is unavoidable.  A nondiscrimination principle guides the latter (macro-management) to avoid the former (micro-management).

This sixth principle is implicit is the other five that Marvin discusses.  It’s not articulated as a stand-alone principle, uniform across situations, or even defined completely.  Nonetheless, nondiscrimination of *some* sort is part of the spatial analysis for each principle. For example, in the paper, when Marvin discusses designated public spaces, he says that government can designate spaces–so long as it does so in a nondiscriminatory way. The nondiscrimination principle here is limited: government cannot discriminate based on the limited notion of “content.”  Another example is limited public forums where government cannot discriminate on viewpoint, but can set aside a forum for particular speakers based on the expected content (say students / educational content).  There are other examples that Marvin explores in the paper.  In my view, there is something fundamental about nondiscrimnation and the functional role that it plays that warrants further attention.

Frankly, the idea of a nondiscrimination principle connects with my own ideas about the First Amendment being aimed at sustaining infrastructure commons and the many different types of spillovers from speech–or more broadly, sustaining a spillover-rich cultural environment;  I explored those ideas in an essay and I expand on them in the book.   It is important to make clear that government support for infrastructure commons — whether by direct provisioning or by common carrier style regulation — lessens pressure on both governments and markets to pick winners and losers in the speech marketplace/environment, and as Marvin argues, that is something that is and ought to be fundamental or core in any FA model.

  February 6, 2012 at 8:39 am  Tags: First Amendment, free speech, Supreme Court  Posted in: First Amendment, Symposium (First Amendment Architecture), Uncategorized   Print This Post   One Comment

Thoughts on Ammori’s Free Speech Architecture and the Golan decision

posted by Brett Frischmann

Thank you to Marvin for an excellent article to read and discuss, and thank you Concurring Opinions for providing a public forum for our discussion.

In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in this and various other contexts and develops a theory to support the exceptions. But I’ll leave those thoughts aside for now and perhaps explore them in another post. And I’ll leave it to the First Amendment scholars to debate Marvin’s claim about what is the standard model for the First Amendment.

Instead, I would like to point out how a similar (maybe the same) problem can be seen in the Supreme Court’s most recent copyright opinion. In Golan v. Holder , Justice Ginsburg marginalizes the public domain in a startlingly fashion. Since it is a copyright case, the “model” is flipped around: government is empowered to grant exclusive rights (and restrict some speakers’ freedom) and any restrictions on the government’s power to do so is limited to narrow exceptions, i.e., the idea-expression distinction and fair use. A central argument in the case was that the public domain itself is another restriction. The public domain is not expressly mentioned in the IP Clause of the Constitution, but arguably, it is implicit throughout (Progress in Science and the Useful Arts, Limited Times). Besides, the public domain is inescapably part of the reality that we stand on the shoulders of generations of giants. Most copyright scholars believed that Congress could not grant copyright to works in the public domain (and probably thought that the issue raised in the case – involving restoration for foreign works that had not been granted copyright protection in the U.S — presented an exceptional situation that might be dealt with as such). But the Court declined to rule narrowly and firmly rejected the argument that “the Constitution renders the public domain largely untouchable by Congress.” In the end, Congress appears to have incredibly broad latitude to exercise its power, limited only by the need to preserve the “traditional contours.”

Of course, it is much more troublesome that the Supreme Court (rather than scholars interpreting Supreme Court cases) has adopted a flawed conceptual model that marginalizes basic public infrastructure. We’re stuck with it.

  February 3, 2012 at 4:38 pm  Tags: First Amendment, free speech, Intellectual Property, Supreme Court  Posted in: First Amendment, Intellectual Property, Uncategorized   Print This Post   No Comments

Landscape of the Amici Supporting Florida’s Medicaid Brief

posted by Nicole Huberfeld

Reporting results for its monthly Health Tracking Poll published today, the Kaiser Family Foundation introduced the summary of its findings thus:  “As the Supreme Court prepares to hear legal challenges to the health reform law in March, most Americans expect the Justices to base their ruling on their own ideological views rather than their interpretation of the law…. Other key findings include:  The public doubts the Supreme Court renders judgments based solely on the law. Three-quarters (75%) say they think that, in general, Justices let their own ideological views influence their decisions while 17 percent say they usually decide cases based on legal analysis without regard to politics and ideology….”  Notable for a term that has the potential to render a few blockbuster cases.  (The public’s opinion of the Court is worthy of its own conversation, but it’s best left for another post.) 

It is not just the general public that believes politics will win out; amici supporting the states seem to be appealing to ideology.  In reading all of the amicus briefs supporting Petitioners’ claim that the Medicaid expansion is unconstitutionally coercive, several themes reflecting this strategy emerge, such as:

• Rejection or non-acceptance of New Deal era programs and precedents (the foundation of spending programs such as Medicare and Medicaid).
• Asking the Court to invent a coercion doctrine to limit the power to spend and/or seeking a return to U.S. v. Butler, the 1936 decision that articulated a Hamiltonian understanding of the power to spend as a separate enumerated power but that also declared the provision of the act at issue to be unconstitutional as infringing on states’ rights.  (One brief even seeks reversal of Butler’s adoption of the Hamiltonian view in favor of the Madisonian view that the power to spend only supports the other enumerated powers.)
• Eschewing precedent - paragraphs unfold with no cites (the Texas brief is a good example).  Citations that do exist are often to concurrences, dissents, scholarship, or think-tank reports.  Justice Kennedy’s concurrences and dissents are well represented. 
• Providing a limited picture of the Medicaid Act and the expansion by failing to account for prior mandatory modifications to the program as well as the statutory architecture of the program (which contains both mandatory and optional elements). 
• An assertion that states cannot leave Medicaid because the federal government somehow improperly taxes state citizens, therefore states cannot tax their populations enough to pay for a state-based Medicaid equivalent. (This reflects an argument articulated by Professor Lynn Baker in her spending power articles, though it is not always attributed.) 
• Hyperbolic analogies (such as characterizing states as drug addicts).

 A couple of additional thoughts come to mind in reading the amicus briefs:

• State dependence on federal funding speaks to state behavior, not federal.  
• Coercion is too nebulous and perverse to be a coherent constitutional doctrine. This is illuminated by the amicus briefs, which essentially assert that the more money the federal government offers, the less control it should be able to exercise over either the money or the states.
• The Court has no standard by which to judge whether the federal government offers too much money to states.  Too much money relative to what?  If healthcare is expensive, then in a cooperative federalism arrangement the federal government must offer sufficient money to encourage a state to implement a program that will be costly.  The sum of money speaks to the nature of the program, but it does not dictate whether the federal government may permissibly offer the money to the states. 
• The tax argument is a distraction that denies the existence and purpose of the 16th Amendment as well as long-standing reliance on redistributive tax policy.

Despite the Medicaid expansion being the surprise question before the Court for many observers, it may dictate the outcome of the case.  The Court could dodge the Commerce Clause question by virtue of the Anti-Injunction Act but still limit congressional authority by adopting the anti-federal spending position of the states and their amici.  An additional theme - that Medicaid is essential to the minimum coverage provision – could make it so that Medicaid is the downfall of PPACA rather than the individual mandate.  Such a result would fly in the face of severability jurisprudence; but, much about this litigation is unprecedented.

  January 27, 2012 at 12:35 am  Tags: Constitutional Law, federalism, health care, Supreme Court  Posted in: Constitutional Law, Health Law, Supreme Court   Print This Post   4 Comments

Getting the Facts Right

posted by Nicole Huberfeld

For those of you following the Medicaid expansion issue before the Court: Sara Rosenbaum and Katherine Hayes, experts on the Medicaid program and health policy at GW, have posted a thoughtful response on the Health Affairs blog to the states’ misleading discription of the Medicaid program (which I also mentioned in my initial impressions of the states’ merits brief).  Briefs supporting the states’ coercion position were just filed, and I will post initial impressions of the amici soon.

  January 19, 2012 at 11:37 am  Tags: federalism, health care, Supreme Court  Posted in: Constitutional Law, Health Law, Supreme Court   Print This Post   No Comments

Initial impressions of the states’ brief in Fl. v. HHS

posted by Nicole Huberfeld

Is the sky falling?  According to Florida et al., which filed their brief regarding PPACA’s Medicaid expansion today, the answer is a resounding yes.  In many respects, this brief rehashes the coercion arguments made in the district court and Eleventh Circuit.  The states continue to argue that they cannot afford the Medicaid expansion that will occur in 2014 (which I discussed on this blog here, here, and here), even though the federal government will pay 100% of the cost initially; and, they cannot afford not to participate in Medicaid because the costs of their medical welfare populations would be too high.  Thus, the states claim to be coerced into accepting this “onerous” new condition on federal funds.  Again, these arguments are not new. 

One aspect of the brief that was new was the inclusion of the severability arguments through describing the Medicaid expansion within the context of the universal insurance aspirations of PPACA (see especially fn. 18).   The states essentially contend that the minimum coverage requirement (“individual mandate”) gives impoverished Americans no option but to be in Medicaid, which in turn makes it so that the states cannot opt out of Medicaid.  The states further assert that this was Congress’s plan – to coerce the states by giving the poor no other options for obtaining minimum insurance coverage.  The fallacious assumptions underlying this argument are too numerous to unpack at this late hour, but at least two thoughts can start the job: first, New York v. U.S. does not require the federal government to offer alternatives to conditional spending programs (unlike, say, when it exercises commerce authority – the insurance exchanges in PPACA, which are a point of contrast in the brief, are an exercise of Commerce Clause authority, and states can either create them with some federal funding or reject them and the federal government will create the exchanges in the states that choose not to act — all of this fits neatly within the New York architecture).  Second, suffice it to say that the impoverished are not seeking private insurance alternatives to Medicaid.

Medicaid’s history is skewed by the brief more greatly than it was at lower court levels.  For example, the brief ignores the fact that Medicaid has always contained mandatory elements; these mandatory elements were one of the major defining features of the program as it was amended from Kerr-Mills, its predecessor program.  The brief also misrepresents the existence of mandatory eligibility and coverage standards and how they serve the aspirations of the program.  Likewise, the brief either misunderstands or misrepresents the minimum essential coverage requirement, which is actually more flexible for states than the mandatory coverage provisions for other Medicaid populations.  Additionally, the brief appears to misunderstand the statutory clarification that Medicaid provides both care and service (Congress here was responding to lower federal courts that had misconstrued certain language in the Medicaid Act).

Also, decisions such as Arlington, Dole, and Pennhurst that have required clear notice of conditions on spending are cited in the brief to support the states’ position that they have not voluntarily agreed to this condition on spending.  Before this point, the states have not argued that any other Dole element was violated, but the states now seem to indicate that these conditions were not unambiguous and thus the ‘contract’ with the federal government is unconstitutional.  In addition, the states offer a limiting principle that adopting their view of the coercion theory does not threaten other federal spending programs because Medicaid is by far the largest federal spending program (echoes of the federal government’s argument that nothing else is like healthcare).

Bottom line, the states want the Court to revive Butler and to expand the theory of coercion that the Court merely acknowledged in Dole and Steward Machine by relying heavily on Justice Kennedy’s concurrences and dissents that have expressed an interest in such an expansion.  The question is whether a majority of the Court is interested in a new limitation on Congress’s power to spend.

  January 11, 2012 at 12:36 am  Tags: Constitutional Law, federalism, health care, Supreme Court  Posted in: Constitutional Law, Health Law, Supreme Court   Print This Post   One Comment

Stanford Law Review Online: How to Reach the Constitutional Question in the Health Care Cases

posted by Stanford Law Review

In a Note just published by the Stanford Law Review Online, Daniel J. Hemel discusses a jurisdictional issue that might delay a ruling by the Supreme Court on the constitutionality of the Patient Protection and Affordable Care Act, and a novel way in which the Solicitor General could bypass that hurdle. In How to Reach the Constitutional Question in the Health Care Cases, he writes:

Although the Supreme Court has agreed to hear three suits challenging the 2010 health care reform legislation, it is not at all clear that the Court will resolve the constitutional questions at stake in those cases. Rather, the Justices may decide that a Reconstruction-era statute, the Tax Anti-Injunction Act (TA-IA), requires them to defer a ruling on the merits of the constitutional challenges until 2015 at the earliest. . . . Fortunately (at least for those who favor a quick resolution to the constitutional questions at stake in the health care litigation), there is a way for the Solicitor General to bypass the TA-IA bar—even if one agrees with the interpretation of the TA-IA adopted by the Fourth Circuit and Judge Kavanaugh. Specifically, the Solicitor General can initiate an action against one or more of the fourteen states that have announced their intention to resist enforcement of the health care law, and he can bring this action directly in the Supreme Court under the Court’s original jurisdiction. Such an action would be a suit for the purpose of facilitating—not restraining—the enforcement of the health care law. Thus, it would open up an avenue to an immediate adjudication of the constitutional challenges.

Read the full Note, How to Reach the Constitutional Question in the Health Care Cases by Daniel J. Hemel, at the Stanford Law Review Online.

  January 9, 2012 at 12:52 pm  Tags: academia, Constitutional Law, Current Events, health care law, jurisdiction, PPACA, Supreme Court, Tax Anti-Injunction Act  Posted in: Constitutional Law, Courts, Current Events, Health Law, Law Rev (Stanford), Tax   Print This Post   One Comment

The inter-branch turmoil continues

posted by Nicole Huberfeld

After the Supreme Court heard oral arguments in Douglas v. ILC, the Secretary of HHS approved some of California’s deep cuts in Medicaid reimbursement.   The Court requested additional briefing regarding the impact of the rate reduction approval, and the United States responded that the case was not moot because the grant of certiorari was based upon the Supremacy Clause question, not a determination as to the actual sufficiency of the state’s Medicaid payment rates.  As soon as the rate reductions were approved by HHS, the California Hospital Association, the California Medical Association, and other Medi-Cal providers filed additional claims for injunctive relief.  

Yesterday, U.S. District Court Judge Christina Snyder issued an injunction against California preventing the implementation of the HHS-approved rate reductions because they would cause irreparable harm to hospitals’ skilled nursing units (among other problems).  The new injunction keeps the issues in Douglas alive, whether as a matter of payment rate adequacy or as a matter of private enforcement of state violations of the Supremacy Clause.  Thus, even though HHS approved Medi-Cal rate reductions, the conflicts in Douglas have not been resolved. 

There is also a fascinating real-time separation of powers quandry in this case, which is highlighted by the injunction that was just issued.  Federal courts perceive states’ failure to abide by the mandate of the Equal Access provision, but HHS, whose job it is to ensure state compliance, turns a blind eye to state decisions that will limit access to medical care.  In the meantime, Congress does not modify the Equal Access provision to contain stronger language or a clearer private right of action, it merely relies on implied private enforcement actions (see the amicus brief of Members of Congress).  And HHS has issued paltry draft regulations to facilitate enforcement of the Equal Access provision, but the draft regulations do not guide CMS’s enforcement efforts so much as they provide some standards for states to self-report with little federal oversight.  It seems that federal courts are acting because the legislative branch either can’t or won’t, and because the executive branch either can’t or won’t ensure that this federal law is followed.  This makes the Obama Adminstration’s deference to state decisions all the stranger in Douglas, and courts’ patience with Equal Access litigation a bit more understandable.  It also helps to explain the sort of underlying tone of confusion at oral arguments.  The Court is left with the unenviable task of cutting this Gordian knot of inter-branch disfunction.

  December 30, 2011 at 3:11 pm  Tags: Constitutional Law, health care, Supreme Court  Posted in: Constitutional Law, Health Law, Supreme Court   Print This Post   2 Comments

The other healthcare case with constitutional implications

posted by Nicole Huberfeld

Another Medicaid case this term also involves constitutional challenges – Douglas v. Independent Living Center of Southern California.  That certiorari was granted is notable unto itself, as no circuit split existed, the Acting Solicitor General had recommended that the Court deny the petition, and the Court does not seem to relish hearing healthcare cases.  The conflict in Douglas is whether California violated the Medicaid Act by enacting 10% reimbursement rate reductions, but this is not the question before the Court.  The Court will consider whether the plaintiffs (a group of Medicaid providers and enrollees) may privately enforce the Medicaid Act against the state by claiming the state has violated the Supremacy Clause.  Depending upon the timing of the opinion, Douglas may give us hints as to how the Court will decide Florida v. HHS,  even though the United States has taken notably different positions in the two cases (about which I have written more here.)

Medicaid was intended to mainstream the poor into American medicine.  The Medicaid Act thus informs states that they must pay healthcare providers “sufficient[ly]” to ensure the same access to medicine for Medicaid enrollees as others in the geographic region enjoy.  This “Equal Access” provision is a pillar of Medicaid, and it has been a source of litigation against states that pay providers too little.  In fact, before Gonzaga, lower federal courts were in agreement that the Equal Access provision was enforceable via section 1983.  Through this litigation, the circuits developed varying methods for deciding sufficiency of payment, as the Centers for Medicare and Medicaid Services (CMS) has not enforced the Equal Access provision vigorously against the states.  Despite the lack of agency action, ”sufficiency” is key to Medicaid’s success; if states do not pay enough for the medical services they buy, Medicaid enrollees will be forced into substandard care or will not be able to find caregivers at all, and the program would be undermined.  Due to Gonzaga, and because CMS infamously does not monitor the states, Medicaid providers and enrollees have sought to enjoin states from violating the Medicaid Act under the Supremacy Clause.

California argued that the Medicaid Act does not include private actions, thus the plaintiffs could not seek an injunction because the statute fails to meet the “unambiguous conditions” element of the Dole test for conditional spending.  This argument speaks to clear statement advocates on the Court (such as Justices Alito, Scalia, and Thomas), because it claims that states do not have clear notice of Medicaid enforcement actions in federal court.  To the surprise of many, the United States’ amicus brief not only supported California but also urged that no private right of action exists for beneficiaries of federal spending programs (generally) to enforce federal standards against states.  The Acting Solicitor General’s brief thus took a much bolder position than was expected.  Remarkably, members of Congress and ex-administrators of the Department of Health and Human Services strongly disagreed with the SG’s position.  In fact, the ex-administrators, which represent both sides of the aisle, insist that CMS relies heavily on private enforcement to police the states.

Douglas may lead the Court to articulate a default rule that ends implied private rights of action under the Supremacy Clause, but Medicaid is a flawed vehicle for such a sweeping, federalism-based decision.  [More after the jump.]

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  December 21, 2011 at 12:15 pm  Tags: Constitutional Law, federalism, health care, Supreme Court  Posted in: Constitutional Law, Health Law, Supreme Court   Print This Post   No Comments

Reviewing The Oral Argument in Hosanna-Tabor (Part Three)

posted by Leslie Griffin

JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?

Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.

Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:

If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.

Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.

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  October 11, 2011 at 9:59 pm  Tags: Constitutional Law, discrimination, First Amendment, Supreme Court  Posted in: Constitutional Law, Employment Law, First Amendment, Religion, Uncategorized   Print This Post   3 Comments

Reviewing The Oral Argument in Hosanna-Tabor (Part Two)

posted by Leslie Griffin

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.

Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese of Lansing, which has a cert. petition pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”

Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly Weishuhn] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and — and called the police and had them come interview a student without any communication with — with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it’s really quite different.”

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  October 10, 2011 at 4:07 pm  Tags: Civil Rights, Constitutional Law, discrimination, First Amendment, Supreme Court  Posted in: Constitutional Law, Employment Law, First Amendment, Religion, Uncategorized   Print This Post   No Comments

Reviewing the Oral Argument in Hosanna-Tabor (Part One)

posted by Leslie Griffin

Lost in the muddled oral argument of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC was the case’s central question: Are religious groups entitled to disobey the law?

The contested issue in Hosanna-Tabor is whether Lutheran elementary schoolteacher Cheryl Perich can sue her former employer, Hosanna-Tabor Evangelical Lutheran Church and School, for retaliation under the Americans With Disabilities Act. The school fired Perich after she threatened to report the school’s disabilities discrimination against her to the EEOC. The specific legal question is whether the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers, applies to schoolteacher Perich because the church considers her to be a minister.

Justice Sonia Sotomayor identified the important legal issue early in the oral argument when she asked the church’s lawyer, University of Virginia Professor Douglas Laycock, “doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious?” That is what the ministerial exception is all about: at what point do religious organizations have to obey the law?

Justice Sotomayor was concerned about “a church whose religious beliefs centered around sexually exploiting women and children,” which Laycock did not defend. But how can courts determine which laws must be obeyed and which may be flouted? In the past, lower courts have held that Baptist churches’ religious, Scripture-based belief that men are heads of households and therefore entitled to higher pay than women did not allow them to violate the equal pay laws; that the Shiloh True Light Church of Christ’s religious belief in children’s vocational training did not permit it to violate the child labor laws; and that the Quaker tradition of hospitality to the stranger did not allow Quakers to ignore the alien worker requirements of the immigration laws. Those cases focused on how strong the government’s interest was in enforcing the laws. The courts concluded that the government’s interest in enforcing the equal pay, child labor and immigration laws was strong enough to overcome important religious beliefs.

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  October 9, 2011 at 8:18 am  Tags: Constitutional Law, First Amendment, Supreme Court  Posted in: Constitutional Law, First Amendment, Religion, Supreme Court, Uncategorized   Print This Post   4 Comments

Vanderbilt Law Review En Banc Golan Roundtable

posted by Vanderbilt Law Review

Vanderbilt Law Review En Banc is pleased to present our current Roundtable on Golan v. Holder, which is to be argued at the Supreme Court on October 5, 2011. In Golan, the Court will consider whether Congress may constitutionally confer copyright on works that have fallen into the public domain. Congress created a new class of “restored” works in 1996 in order to fulfill its obligations under the Berne Convention, an international copyright treaty. Professor Tyler T. Ochoa introduces the case, discusses the history of the Berne Convention, and analyzes how the Court’s decision will affect the idea of the public domain. Professor Daniel Gervais takes a closer look at the Berne Convention. He argues that Berne is a flexible document and that Congress provided greater protection to restored works than is actually required by the treaty. Dale Nelson, Senior Intellectual Property Counsel at Warner Bros., questions whether restoration has had as significant an effect on the public domain as its detractors believe. She argues that the benefits of restoring foreign works to copyright greatly outweigh the burdens to users. Professor David Olson looks at Golan’s constitutional questions from a perspective not emphasized in the parties’ briefs. He argues that, because restoration is in violation of the Progress Clause, the Government can assert no legitimate interest to support its claim that restoration does not unconstitutionally restrict the Petitioners’ First Amendment speech rights. Finally, Professor Elizabeth Townsend Gard takes a detailed look at the mechanics of the statute enacting copyright restoration. In her view, the statute does not achieve the Government’s stated interests and transgresses the traditional contours of copyright. She provides several recommendations for statutory amendments that would make determination of public domain status a more manageable exercise.

Tyler T. Ochoa, Is the Copyright Public Domain Irrevocable? An Introduction to Golan v. Holder, 64 Vand. L. Rev. En Banc 123 (2011).

Daniel Gervais, Golan v. Holder: A Look at the Constraints Imposed by the Berne Convention, 64 Vand. L. Rev. En Banc 147 (2011).

Dale Nelson, Golan Restoration: Small Burden, Big Gains, 64 Vand. L. Rev. En Banc 165 (2011).

David S. Olson, A Legitimate Interest in Promoting the Progress of Science: Constitutional Constraints on Copyright Laws, 64 Vand. L. Rev. En Banc 185 (2011).

Elizabeth Townsend Gard, In the Trenches with § 104A: An Evaluation of the Parties’ Arguments in Golan v. Holder as It Heads to the Supreme Court, 64 Vand. L. Rev. En Banc 199 (2011).

  October 3, 2011 at 3:17 pm  Tags: copyright, First Amendment, Supreme Court  Posted in: Law Rev (Vanderbilt)   Print This Post   No Comments

Lack of Civil Gideon and Unauthorized Practice of Law Rules — Are They Consistent?

posted by Richard Zorza

The recent focus on Civil Gideon triggered by the pending US Supreme Court case, Turner v. Rogers (please track the Turner Symposium here on Concurring Opinions, when the decision comes down), has set me thinking about the relationship between Civil Gideon and our current unauthorized practice of law (UPL) rules. By UPL rules, I mean the current sets of laws that generally fence off large areas of legal activity, making it unlawful for anyone without a law degree to provide services in those areas in any context at all.  I do not mean the general concept that legal services of different kinds can be regulated.

Here’s my question:  In the end, isn’t a ruling that there is no right to civil Gideon assistance in a case really the same as a ruling, at least in significant stake state deprivation cases, that the case is simple enough that people can do it on their own – even if technically the court is more likely to use a balancing test saying that the case is easy enough that it is unfair to make the state pay for counsel.  See, e.g. Lassiter v. Dept of Social Services, 452 U.S. 18, 33 (1981) (analyzing, in Part III, limited impact on the outcome on the specific facts, of lack of counsel); Turner v. Rogers, Transcript of Oral Argument, at 20-21, (Associate Justice Alito questioning petitioner’s counsel Seth Waxman as to whether it would be sufficient if the Court were to require judicial engagement when determining the issue of whether defendants are in civil contempt for having “willfully” refused to pay, except in harder cases — “And then if you run into some of these complicated legal problems or arguably complicated legal problems that you referred to, maybe in particular cases there would be need for the appointment of counsel.”)

Insofar as the Court denies a right to counsel for matters that are too simple, wouldn’t that also eliminate any basis for UPL rules?  After all, the premise of UPL rules is that a matter is too complex to be handled by non-attorneys. The main other argument for ULP rules is that there is a need for the activity to be regulated as to the “character” of the person helping and the quality of the service, but that is really a different matter, that could be taken care of in many ways other than requiring a legal education and the passing of the bar exam — see below.)

Put another way, where is the justification for the legal system to say, in any important matter that triggers due process concerns, that it is OK to require that a lawyer, and only a lawyer be allowed to help, and then to refuse to make one available?  Either the case is simple enough for non-lawyers to help, in which case the UPL prohibitions make no sense (and are arguably unconstitutional in such circumstances), or it is too complicated for a non-lawyer.  If it is too complicated, there must be help from a lawyer, and one should be provided to those unable to pay.  Indeed Professor Tribe points out the unconstitutionality of requiring the use of a legal path, and then making it financially impossible, Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that if state prescribes only one method of dissolving marriage – judicial divorce, it can not deny the route to those who can not afford it; here the state is requiring that help must come from an admitted lawyer, and then refusing to provide one to the indigent.)

Any claimed middle group of cases — that a case is complicated enough that you can not allow non-lawyers to help, but simple enough that people can not do it on their own, just makes no ultimate sense.  I suppose one could assert that there is so much easier for a self-represented litigant to handle their own case than for a non-lawyer to help them that you can require people to handle their own cases.  But the only reason I could think of for this would be that the process of drawing out what someone else’s actual problem is, is so difficult that you need a law degree to do it. But we all know that the skill of drawing out from someone what their problem is, is hardly taught in law school at all — more likely in social work school.

As to the skill of legal “issue spotting,” that would be just as much needed by the self-represented as by any helper, and if needed in a case, should move it into the category of those needing counsel. Remember too, at least in this country, the structure of UPL rules cannot be justified as preventing unregulated commercial exploitation of the vulnerable.

In this country those rules reach to any activity that is substantively considered the practice of law, regardless of the relationship between the helper and the helped, regardless of whether provided by a non-profit or one in business, and regardless of whether money changes hands.  So the rigor and comprehensiveness of ULP rules can not be justified in such ethical and protective terms, but only in skill terms.  There are, of course, legitimate concerns about the ethics and quality of services provided by non-lawyers (as by lawyers), but there are many regulatory ways of taking care of this.  Abolishing or modifying the rules governing UPL is not the same as having no consumer protection regime.  Such an appropriate protective regime might potentially include registration, an insurance requirement, a complaint mechanism, and/or limitation to certain activities, including possibly to non-profit practice. Moreover, getting the line right would make it easier for appropriate consumer protection enforcement.

You could also argue, I suppose, that UPL rules do no harm, because, after all, you can always represent yourself, and a lawyer is denied only in cases where it would make no difference.  But surely that is a matter for the person providing or receiving the help to decide, and, to the extent we might be talking about associational or commercial relationships, that relationship can only be reasonably, not unreasonably, regulated.  (Indeed the prohibition, particularly in the associational non-commercial contest, might raise First Amendment questions.  It may well be that these First Amendment implications and the over and under inclusiveness of the current structure of UPL are what might doom the current bright line between lawyers and non-lawyers and between legal practice and non-regulated activities.)

In the end, I would hope that this insight — if it is that — will help us all focus more comprehensively on the whole access issue with its many components, and on the need not to focus on battles about small parts of it.

Final Note:  Although I have focused this early pre-post on the possible UPL implications of Turner, this is, of course, just one aspect of the much larger conversation we are anticipating once Turner comes down.

  June 5, 2011 at 6:06 pm  Tags: Civil Gideon, Supreme Court, Unautorized Practice of Law  Posted in: Civil Rights, Constitutional Law, Symposium (Turner v. Rogers), Uncategorized   Print This Post   One Comment

A Tale of Two Writs

posted by Jonathan Hafetz

Yesterday’s New York Times editorial, “A Right without a Remedy,” finally shines a spotlight on what anyone familiar with the Guantanamo detainee habeas corpus litigation already knows: the steady erosion of the Supreme Court’s 2008 decision in Boumediene v. Bush, and the open disdain for that decision exhibited by several D.C. Circuit judges, most notably A. Raymond Randolph.

The upshot is that we now have two very different conceptions of habeas corpus at Guantanamo: one as a meaningful judicial check on executive power; the other as a legal proceeding in which the judiciary remains powerless to remedy unlawful executive action.

In Boumediene, the Supreme Court held that Congress’s effort to strip Guantanamo detainees of the right to habeas corpus violated the Constitution’s Suspension Clause and ordered the district courts to conduct prompt hearings into whether the petitioners were being lawfully held. Since then, district courts in Washington, D.C., have issued merits decisions in 59 habeas cases, finding no legal basis for the detention in 38 of them.

The D.C. Circuit, however, has taken increasingly narrow view of district court’s power to inquire into the government’s evidence, reversing or vacating and remanding habeas grants in three cases and affirming habeas denials in four of six cases (the other two denials were vacated and remanded). To date, the Circuit has not affirmed a district court grant of habeas nor outright reversed a district court denial.  Along the way, Randolph, along with Circuit Judge Janice Rogers Brown, have suggested that the government might satisfy its burden merely under a “some evidence” standard, as opposed to the higher, preponderance of the evidence standard the Department of Justice is advocating.

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  March 2, 2011 at 11:10 am  Tags: Constitutional Law, Supreme Court  Posted in: Uncategorized   Print This Post   No Comments

The Supreme Court on School Interrogations and Parental (Dis)empowerment

posted by Craig Livermore

The Supreme Court has in the past several weeks granted certiorari in two cases involving the rights of juveniles in police interrogations in the school setting.  In Greene v. Camreta, the Ninth Circuit Court of Appeals ruled that the interrogation of a juvenile by police authorities in the school setting in the absence of a warrant, court order, exigent circumstances, or parental consent, was an unconstitutional seizure under the Fourth Amendment of the United States Constitution.  In the Matter of J.D.B., the Supreme Court of North Carolina held that a 13 year old burglary suspect who was interrogated by police officials in his school without parental notification and consent, was not in custody, and thus he was not entitled to have Miranda warnings read to him.   By agreeing to hear both J.D.B. and Greene in this term, the Supreme Court is undoubtedly seeking to clarify the legal standards surrounding the increasing law enforcement presence in public schools.   However, on a broader level, the Court is also entering into the societal discussion regarding the role of the public school in American democracy.  As it is increasingly accepted that the school is becoming the central societal institution, the lack of parental notification for the interrogations in Greene and Camreta is of particular concern.  The marginalization of parental involvement in such issues of morality and law may stem from a growing suspicion regarding the rearing abilities of parents.  If the Supreme Court does not elevate the right of parental involvement in school interrogations to Constitutional concern, then it will be throwing judicial weight to society’s growing cynicism toward the ability of parents, especially in challenging urban contexts, to manifest parental responsibility.

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  November 24, 2010 at 5:42 pm  Tags: Education, Education and Police, Education Reform, Parental Responsibility, School Interrogations, Schools Searches, Supreme Court  Posted in: Uncategorized   Print This Post   No Comments

Republicans Come Out of Hiding

posted by Brandon Bartels

After weeks of virtual silence, Republicans are stepping up their public attacks on Supreme Court nominee Elena Kagan. And they are using some rather strange arguments. The new line of attack is that Kagan is incapable of being impartial because of her political/policy role in the Clinton administration. Senate Minority Leader Mitch McConnell, who on Sunday would not rule out a filibuster of Kagan, is leading the charge with a new narrative that Kagan is more of a “political operative” than a lawyerly type. McConnell cites memos that Kagan wrote about campaign finance reform while she worked for Clinton. Quoting McConnell from the Senate floor:

In other words, these memos and notes reveal a woman whose approach to the law was as a political advocate — the very opposite of what the American people expect in a judge.

Sen. McConnell’s logic would cast nearly every justice who ever served on the Court as an “advocate” seemingly incapable of being impartial. What Sen. McConnell — and frankly all senators, both Republican and Democrat — apparently needs to remember is that lawyers are supposed to be zealous advocates for their clients’ interests. While Kagan’s role in the Clinton White House was as a policy adviser and not as a lawyer, the role she played parallels the manner in which a lawyer represents a client. As Obama spokesman Ben LaBolt notes, Kagan simply gave Clinton advice “that reflected the president’s well-established views.” She worked to advance Pres. Clinton’s agenda, just like a lawyer works to advance his/her client’s interests. Most Supreme Court justices were lawyers who represented clients before they entered the judging profession.  They worked to advance their clients’ interests.

It is clear that Sen. McConnell and fellow Republicans are trying to dig up new criticisms of Kagan in the run-up to the confirmation hearings. But this line of attack is weak and would cast doubt on all of the sitting justices. Chief Justice Roberts and Justice Scalia worked to advance the interests of Republican presidents before they were judges. Justice Breyer was special counsel to the Senate Judiciary Committee, where he worked with then Chairman Sen. Ted Kennedy. And Justice Ginsburg worked to advance women’s rights as an ACLU litigator. All were simply doing their jobs — being advocates for their clients/bosses. Beyond these examples, several former justices, of course, served in explicitly political capacities, e.g., Justice O’Connor was a state legislator, some justices were senators prior to service on the Court, and Chief Justice Taft was president before joining the Court.

Photo credits:  Stephen Crowley/The New York Times

  June 25, 2010 at 9:02 am  Tags: Elena Kagan, Mitch McConnell, Supreme Court  Posted in: Politics, Supreme Court   Print This Post   3 Comments

Return of the Necessary and Proper Clause (Just in Time for Health Care)

posted by Robert Schapiro

The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.  U.S. Const. Art. I, § 8.

The big news last week concerning the fate of the federal health care legislation was not the entrance of new plaintiffs into the litigation challenging the statute or the government’s filing its opposition brief in the suit brought by Virginia.  The big news was United States v. Comstock and the continuing resurgence of the Necessary and Proper Clause of the Constitution (quoted above).

The constitutional challenges focus on the so-called individual mandate, taking effect in 2014, which will require that most people either own health insurance or pay a penalty.  Legally, the arguments against the legislation lack merit.  As I have argued elsewhere, under contemporary Commerce Clause doctrine, Congress can impose the individual mandate as part of its comprehensive regulation of the interstate market in health insurance.  Further, the provision is structured as a tax on those who fail to purchase insurance, thus falling within Congress’s even broader taxing authority.

Rhetorically, however, the opponents’ arguments may have some appeal.  How, the critics insist, can Congress’s constitutional authority to regulate interstate commerce extend to regulating the non-commercial activity of doing nothing (i.e., not buying insurance)?  Doing nothing is not commerce, the law’s opponents proclaim.  Can you make a federal case out of taking a nap?

The answer to this rhetoric comes from the Court’s great rhetorician, Justice Antonin Scalia.

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  May 27, 2010 at 3:43 pm  Tags: Constitutional Law, federalism, health care, Supreme Court  Posted in: Constitutional Law, Current Events, Health Law, Legal Theory, Politics, Supreme Court, Uncategorized   Print This Post   22 Comments

Courting Kennedy

posted by Darren Hutchinson

[Note: This essay is cross-published on the blog Dissenting Justice.]

President Obama and other supporters of Elena Kagan have argued that she has the capacity to form coalitions with conservatives, especially Justice Anthony Kennedy — the Supreme Court’s lone swing vote. There are a number of underlying assumptions to this argument, including that Kennedy’s opinions are malleable on a significant number of issues and that a colleague on the bench can push him on those malleable questions.

There is certainly some legitimacy to these assumptions. Political scientists who research the Court have found that ideological moderates are among the most malleable members of the bench. Furthermore, Sandra Day O’Connor and David Souter most likely influenced Kennedy in the influential case Planned Parenthood v. Casey, which upheld Roe v. Wade– even as it opened the door to far more intrusive regulations of abortion. These observations, however, do not demonstrate that Kagan or any other future justice can wield influence upon Kennedy (or other conservatives).

First, it is unclear whether Kagan herself is a progressive or a political moderate, like Kennedy or O’Connor. Her academic writings just do not provide enough insight to place her definitively within a particular judicial camp.

Furthermore, supporters of the idea that Kagan can move Kennedy discount the substantial role that other factors play in shaping judicial opinion. The positions held by the Executive, Congress, social movements and voters all impact judicial decisionmaking, and according to the academic literature in this area, moderates are more susceptible to these external influences than others. Viewed in this light, Kennedy’s vote to uphold Roe could reflect the fact that a majority of voters believe in the right to terminate a pregnancy. Similarly, his vote against “partial-birth” abortion could relate to the fact that a majority of voters oppose late-term abortion.

Of course, Kennedy’s own ideology, Court precedent, the facts of each case, arguments of legal counsel, and debates with other justices likely influence Kennedy’s opinions as well. But the assertion that Kagan can serve as a consensus builder fails to acknowledge the host of other factors outside of debates with colleagues that substantially impact judicial opinion.

People who believe that Obama should appoint someone who can “flip” Kennedy have a limited understanding of the dynamics of judicial decisionmaking. They reduce it to an intellectual exercise where the “best argument” combined with grace and warmth dictate outcomes. Also, as Dalia Lithwick argues, liberal advocates of a Kennedy pal affirm a myth that “conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room.” Both camps, however, are motivated by ideology and external political factors. This reality makes the search for someone who can sway Kennedy a bizarre calculation for a nominee to the Supreme Court.

Note: Other legal commentators have made similar arguments. See:

Is Kennedy Easily Manipulated

Asking “Who can sway Kennedy?” is no way to pick Justice Stevens’ replacement.

  May 11, 2010 at 10:11 am  Tags: anthony kennedy, Elena Kagan, political science, Supreme Court  Posted in: Uncategorized   Print This Post   No Comments

Me, Justice Stevens, and the Dublin Marathon

posted by Spencer Waller

Here is a sentence I never expected to write. So there I was on Monday in the middle of running the Dublin Marathon when I decided to listen on my Ipod to a C-Span podcast interview with Justice Stevens. I had traveled to Dublin to run the actual Dublin marathon and to co-host Antitrust Marathon IV: Marathon with Authority, a round table discussion co-hosted with the British Institute of International and Comparative Law and the Irish Competition Authority.

Around Mile 11, I was hurting and turned from a combination of Irish rock and random songs to some pod casts. After some short New York Times and NPR pod casts, I remembered that I had downloaded a series of C-Span interviews with the current Justices and Sandra Day O’Connor.

I have a special fondness for Justice Stevens. We are both Chicagoans, Cub Fans, and Northwestern Law grads. More improbably, we even had the same antitrust professor (James Rahl) at Northwestern, albeit about 35 years apart. That plus the fact he was primarily an antitrust litigator before going on the bench was enough to get me to devote the next 30 some minutes, and about 3 miles, to the Stevens interview.

A lot of it was a fluffy discussion of his chambers and personal history. But mixed among the fluff and the questions for non-lawyers (What is certiorari?), there were a handful of interesting tidbits. Justice Stevens talked about the reasons and impact of not participating in the cert pool, the importance of writing his own first drafts, and his interest in having the court hear a few more cases than its current docket. There are no smoking guns or shocking revelations, but Justice Stevens does mention the need for Justices from diverse legal backgrounds, such as veterans and litigators, as an important mix for the Court to have on the bench. Justice Stevens is of course both and as far as I know the only current Justice to actually have made his living as a litigator.

The main thing I came away with was the genuine niceness of the good Justice which was my impression from the only time I ever met him. In 1993, I taught in a summer program in Innsbruck, Austria where Justice Stevens was lecturing. Instead of staying for the three days as promised, he stayed and lectured the entire week and interacted warmly with the students and the rest of the faculty. At one point, a student asked him to sign the packet of course materials which he did after class. Because he did not want to play favorites, he then stayed and patiently signed for more than a hundred students.

In the pod cast interview, Stevens demurred on picking a most important or favorite case. But when asked about a most memorable experience, he didn’t hesitate and proudly mentioned throwing out the first pitch at Wrigley Field before a Cubs game at the age of 85.

With that, I grinned, quickened my pace a bit, and headed up the next of an endless series of hills on my way around Dublin on a surprisingly warm and sunny late October day.

I have not listened to the rest of the interviews. But if anyone else has, please post if there are particularly revealing or interesting moments.

  October 28, 2009 at 2:15 pm  Tags: Antitrust, baseball, Chicago Cubs, Dublin, John Paul Stevens, marathon, Supreme Court, Wrigley Field  Posted in: Antitrust, Interviews, Supreme Court   Print This Post   6 Comments

In Favor of Wise Latinas

posted by Kaimipono D. Wenger

It is time to stop privileging gender and race in Supreme Court nominations. History shows a very clear and disturbing pattern of decisionmaking along gender and racial lines.

Don’t believe me? Just look at the numbers, and you will see an existing, overwhelming pattern of decisionmaking based on race and gender. Here goes: For 180 years, every single person to sit on the Court was a white male. The list of Supreme Court justices between 1789 and 1967 is an unbroken chain of nearly 100 white men.

Since 1967, we’ve seen a total of two women and two Black men on the court. That is, four of the fifteen Justices since 1967 (27%) have been women or Black men, while eleven of the fifteen (73%) have been white men.

Supreme Court history has been one of total domination by white men for 180 years, followed by a period of token representation for other groups, but always a large controlling majority of white men. Not bad for a demographic group which currently makes up only 1/3 of the U.S. population! Read the rest of this post »

  July 15, 2009 at 12:06 pm  Tags: Sotomayor, Supreme Court  Posted in: Supreme Court   Print This Post   25 Comments