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Arizona State Legislature v. Arizona Ind. Redistricting Comm’n

I was planning to write a post on how the Constitution uses the word “legislature,” but after reading Chief Justice Hughes’ opinion for the Court in Smiley v. Holm, 285 U.S. 355 (1932), I think that is unnecessary.  Hughes does a good job of laying out the arguments in the context of Article One, Section Four.  Let me summarize the case and then explain why Smiley‘s holding should be extended in Arizona State Legislature (the congressional redistricting case that the Supreme Court just decided to hear).

After the 1930 Census, the Minnesota Legislature passed a congressional redistricting plan that was vetoed by the Governor.  One branch of the legislature then passed a resolution ordering the Secretary of State to implement the plan in spite of the veto.  A suit was filed challenging this plan as unlawful, and the counterargument was that Article One, Section Four gave the Legislature exclusive authority over congressional districting.  The Supreme Court held that the Legislature’s position was without merit.  In part, this was because longstanding practice in the states was that governors could veto in congressional redistricting legislation.  The Court also said that there was “no suggestion in the federal constitutional provision of an attempt to endow the legislature of the state with power to enact laws in any manner other than that in which the constitution of the state has provided that laws shall be enacted.”

The Arizona case can be distinguished from Holm in two ways.  First, there is no longstanding practice for states to remove by constitutional amendment the power of the legislature to undertake congressional redistricting.  Second, one could say that the dictum just quoted assumes that the legislature will play a role in redistricting by referring to laws that are being enacted.  If the state constitution gives that power exclusively to a special commission, then law is not being enacted in the ordinary way.  On the other hand, the dictum can be read broadly to mean “whatever the State Constitution says on this question is consistent with the Federal Constitution.”  Here the Arizona Constitution is provided that no laws on congressional redistricting shall be enacted.  End of story.

Why do I think that the latter interpretation is better?  Mainly on structural grounds.  The remedy for partisan gerrymandering cannot be placed within the authority of the institution that does the gerrymandering.   In practice, there is no judicial review of partisan gerrymandering claims and Congress will not act.  Thus, the only plausible remedy is through an initiative or referendum in states that permit them.  There is the argument that a state can limit partisan gerrymandering in its constitution while still letting the legislature draw district lines.  Perhaps the Arizona referendum goes too far by cutting out the Legislature entirely.  The problem is that state constitutional provisions on partisan gerrymandering (such as in Florida) have not led to any meaningful relief, so I’m not sure this option is real.

This will be a fascinating case if the Court reaches the merits.  I must admit that my thoughts on this issue have changed as I’ve worked through the materials.  At first I was sure that the Arizona amendment was constitutional.  Now I have doubts, though I still think on balance that this amendment is constitutional.

 

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“If you don’t like what’s being said, change the conversation.”

deathanddeclineAt high holiday services in my conservative Jewish synagogue, I reflected on the omnipresence of narratives of decline in my professional and religious life. Apparently, the approved sermon topic at many conservative pulpits this year was how to rescue the shrinking conservative movement.  The Pew Report’s stark figures on that decline, illustrated to the right, suggested the theme of the sermon (at least in my congregation): reaching out to new revenue sources applicants potential converts congregants.  As the rabbi stated, unless we find more congregants (and soon!) by opening the doors & working to engage new audiences, we will wither on the vine.

This sermon was explicitly delivered as a recruiting pitch, and I found it familiar.  Doesn’t the claim — “we’ve learned our lesson, we’re now going to innovate” — sound exactly like a thousand Law Dean speeches?   Here’s a summary of one, by an especially skillful and media-savvy Dean: Read More

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Concealing Campus Sexual Assault: An Empirical Examination

On October 1 of every year, higher education institutions across the country are required to publish reports containing crime data for the previous calender year. So, it seemed appropriate today that I would post a draft of my article about whether universities are giving accurate information in those reports regarding sexual assault. The draft is available here and this is the abstract:

This study tests whether there is substantial undercounting of sexual assault by universities. It compares the sexual assault data submitted by universities while being audited for Clery Act violations with the data from years before and after such audits. If schools report higher rates of sexual assault during times of higher regulatory scrutiny (audits), then that result would support the conclusion that universities are failing to accurately tally incidents of sexual assault during other time periods. The study finds that university reports of sexual assault increase by approximately 44% during the audit period. However, after the audit is completed, the reported sexual assault rates drop to levels statistically indistinguishable from the pre-audit time frame. The results are consistent with the hypothesis that the ordinary practice of universities is to undercount incidents of rape. Only during periods in which schools are audited do they appear to offer a more complete picture of sexual assault levels on campus. Further, the data indicate that the audits have no long-term effect on the reported levels of sexual assault as those crime rates return to previous levels after the audit is completed. This last finding is supported even in instances when fines are issued for non-compliance. The results of the study point toward two broader conclusions directly relevant to policymaking in this area. First, greater financial and personnel resources should be allocated commensurate with the severity of the problem and not based solely on university reports of sexual assault levels. Second, the frequency of auditing should be increased and statutorily-capped fines should be raised in order to deter transgressors from continuing to undercount sexual violence. The Campus Accountability and Safety Act, presently before Congress, provides an important step in that direction.

I will be continuing to post about sexual assault at universities and the findings of the study over the next week or two.

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FAN 34.2 (First Amendment News) — Court agrees to hear judicial campaign solicitation case

The case is Williams-Yulee v. The Florida Bar. This morning the Court agreed to review the case.

Lanell Williams-Yulee

Lanell Williams-Yulee

The issue is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. In a per curium opinion, a divided Florida Supreme Court denied the First Amendment challenge. (See here re video and transcript of oral arguments in Florida Supreme Court.)

petition for certiorari was filed by Andrew PincusCharles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

Facts – Here is how Judge Chris Helinger, a referee for the Florida State Bar described the key facts in the case: “The Florida Bar alleges that on or about September 2009, the Respondent became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the Respondent signed a campaign fundraising letter wherein the Respondent personally solicited campaign contributions. The Respondent admits that she reviewed and approved the September 4, 2009 letter. The Respondent further testified that prior to approving the letter she reviewed Canon 7C(1) of the Code of Judicial Conduct regarding solicitation of funds. However, the Respondent testified that she interpreted the Canon to only apply if there was another candidate in the race. At the time the solicitation letter was sent no other candidate had been announced. Canon 7C(1) states that the prohibition of personal solicitation of campaign funds apply to any candidate for ‘judicial office that is filled by public election between competing candidates.’” In that regard, the Florida Supreme Court noted: “[T]he referee found that the Respondent misrepresented the fact that there was no incumbent in the judicial race for which she was running. Further, the referee found that the Respondent’s misrepresentation [which she claims was the result of a good faith mistake based on a misunderstanding of the Canon] was published in a newspaper article on November 3, 2009.”  (Source: here)

Offending Mass-Mail Solicitation Letter

LANELL WILLIAMS-YULEE

_____________________________________________

Bringing Diversity to the Judicial Bench

Elect Lanell Williams-Yulee For County Court Judge Group 10 and Campaign Fundraiser

Dear Friend:

I have served as a public servant for this community as Public Defender as well as a Prosecutor for the past 18 years. Having been involved in various civic activities such as “The Great American Teach In,” Inns Of Court, Pro Bono Attorney, Metropolitan Ministries outreach program, as well as a mentor for various young men and women residing within Hillsborough County, I have long worked for positive change in Tampa. With the support of my family, I now feel that the time has come for me to seek elected office. I want to bring fresh ideas and positive solutions to the Judicial bench. I am certain that I can uphold the Laws, Statutes, Ordinances as prescribed by the Constitution of the State of Florida as well as the Constitution of the United States Of America.

I am confident that I can serve as a positive attribute to the Thirteenth Judicial Circuit by running for County Court Judge, Group 10. To succeed in this effort, I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. I ask for your support In meeting the primary election fund raiser goals. Thank you in advance for your support.

Sincerely,
/s/
Lanell Williams-Yulee, Esq.

(Source: here)

 →See YouTube video of TV political ad here.

State Judicial Elections

As Professor Richard Briffault has observed: “The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states.” Consistent with the American Bar Association’s Model Code of Judicial Conduct, states such as Florida have enacted laws or rules barring judicial candidates from personally soliciting campaign contributions.

Andrew Pincus, counsel for Petitioner

Andrew Pincus, counsel for Petitioner

Conflicts in Lower Courts 

↓ On the one hand, the Third and Seventh Circuits along with the high courts of Arkansas,Oregon, and now Florida have ruled that such solicitation bars do not run afoul of the First Amendment.

↑ On the other hand, the SixthEighthNinth, and Eleventh Circuits have ruled otherwise. (Note the irony: Florida is in the Eleventh Circuit.)

Differing Rules for Sitting Judges vs Judicial Candidates? In light of the above, counsel for the Petitioner notes: “It is not in fact certain that that the Seventh Circuit or the supreme courts of Arkansas and Oregon would align with the Florida Supreme Court in this case. Unlike here [those cases] involved solicitations by sitting judges. In the Ninth Circuit’s view, the constitutional balance may differ in cases involving incumbent candidates as compared with ‘non-judge candidates.’ [citations omitted] But we are skeptical of any constitutional distinction between incumbents and non-incumbents, which would subject competitors in a single election to different First Amendment rules.”

First Amendment Arguments Read More

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What is a Legislature?

One of the cases that the Supreme Court agreed today to hear presents the question of whether a state can by referendum create a commission to do congressional redistricting.  (Arizona State Legislature v. Arizona Indep. Redistricting).  Assuming that the Arizona Legislature has standing to bring this appeal, the merits of the case are quite important and interesting.  The constitutional issue is whether Article One, Section Four means that only the state legislature or its agent can do redistricting (not a commission created by a referendum). I will post something long about this case when I have time, though my conclusion is that the Arizona commission is constitutional.

UPDATE:  I should add that I think this is a close question, for reasons that I’ll explain in my next post.

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FAN 34.1 (First Amendment News) — 1-A Salons and Floyd Abrams Institute join to host dialogues on free expression

PRESS RELEASE

abrams-logoThe First Amendment Salon is pleased to announce that it has formed an association with the Floyd Abrams Institute for Free Expression at Yale Law School.

The Abrams Institute is administered by the Yale Information Society Project, directed by Yale Law Professor Jack Balkin. The Institute is both practical and scholarly. It includes a clinic for Yale Law students to engage in litigation, draft model legislation, and give advice to lawmakers and policy makers on issues of media freedom and informational access. It promotes scholarship and law reform on emerging questions concerning both traditional and new media. And it holds scholarly conferences and events at Yale on various First Amendment issues.

“I’m delighted,” Floyd Abrams commented, “that the Abrams Institute and the First Amendment Salon will be working together to explore areas in which there is continuing conflict as to the degree and nature of First Amendment protection. The First Amendment Salon has already played a major role in doing so and I’m hopeful that together we can  increase still more the impact of debates about the First Amendment in today’s American society.”

The co-chairs of the Salon are Ronald Collins (University of Washington Law School), Lee Levine (Levine Sullivan Koch & Schulz) and David Skover (Seattle University Law School). The members of its advisory board are:

Unknown“The idea behind the salon,” Levine explained, “is to engage members of the First Amendment community – lawyers, academics, journalists, and activists – in an ongoing discussion about some of the key free speech issues of our times. We thus welcome this unique association with such a distinguished Institute committed to the same mission.”

The Salon hosts a regular series of no-charge, 90-minute discussions concerning contemporary Supreme Court cases, books, articles, legal briefs, memoranda or timely topics. The by-invitation discussions take place at the offices of Levine Sullivan Koch & Schulz in Washington, D.C., and New York as well as at the Abrams Institute in New Haven. The salons are privately video cast to the respective venues so as to allow for an exchange of views by people in different locales.

“Part of our mission is to bridge the gap between First Amendment legal scholars and practitioners. This association represents an important step in that direction,” Ron Collins said.

Previous featured participants in First Amendment Salons have included: Floyd Abrams, Erin Murphy (Bancroft), Steven R. Shapiro (ACLU), David Skover, Paul M. Smith, and Nadine Strossen.

The next salon is set for November 5th in N.Y.C. with a videocast to the Abrams Institute in New Haven. It will feature an exchange between Steven Shiffrin (Cornell Law School) and Robert Corn-Revere on the topic: “What’s Wrong with the First Amendment?” The dialogue will be moderated by Ashley Messenger (NPR associate counsel).

“The marketplace of ideas finds a welcome home in these salons,” said David Skover. “As a graduate of Yale Law School (1978), I am excited that my Alma Mater is engaged in the future of the First Amendment Salon,” he added.

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A Plea Bargaining Strike

I am seldom shocked these days, but the article in this week’s New Yorker about Kalief Browder is astonishing.  Browder is arrested for theft.  He does not receive bail.  He is imprisoned for three years on Rikers Island without trial.  Then the prosecutor dismisses the case (because the alleged victim moved to another country).  How this could go on without a successful Sixth Amendment claim is beyond me.  (Browder is now suing for damages).  The New York criminal justice system (at least in the City) should be deeply ashamed.

This leads me to ask a broader question about the constitutional guarantee of a “speedy trial.”  Nobody would be surprised to learn that trials are much less speedy now than they were in 1791 or 1868.  Some of that is unavoidable, but I wonder to what extent this constitutional right is ripe for rediscovery.  Consider that this is a right that protects defendants.  If the state cannot get its case together in a timely way, then the charges must be dismissed.  Moreover, if a state or local criminal justice system is underfunded such that trials cannot happen quickly, then the charges must be dismissed.  At least that could be how the Sixth Amendment is applied.  My sense, though, is that courts rarely find that a defendant’s speedy trial right is violated.  (I can tell a good story about the related right to a “public trial” from my clerking days, but I’ll save that for another post.)  An originalist could have a field day with this subject.

This brings me to my last thought.  People often complain about the use of plea bargaining and its abuses.  Imagine for a moment that there was a plea bargaining strike.  Under any reasonable interpretation of the Sixth Amendment, most of the striking defendants should go free.  Why?  Because the current criminal justice could not handle so many trials–the delays and backlog would be enormous.  That suggests the existence of a significant right/remedy gap.

stairway-to-heaven-1319562-m-720x340
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FAN 34 (First Amendment News) Hybrid PACS — yet another case goes to High Court

I am posting this column a few days early since I will be traveling this week, but next week I’ll return to the scheduled Wednesday postings.

* * * *

Contributions earmarked solely for use in independent expenditures by “hybrid” political committees that engage in both independent expenditures and direct contributions to candidates appears destined to be a coming campaign-finance law battleground. — Judge Edith Brown Clement (2014)

Dan Backer

Dan Backer

The cases seem endless — that is, all those campaign cases that are finding their way to courts. One gets dizzy just drying to keep up with all of them as they are listed weekly on Professor Rick Hasen’s Election Law blog.

Recall, last week I posted a story about a campaign finance case that James Bopp, Jr. filed with the Supreme Court on Friday. Before the digital ink on that case could dry, voila, a new campaign finance case found its way to the Court only moments ago.

The case: Stop This Insanity Inc Employee Leadership Fund et al v FEC.  

The two issues in the case are: (1) Whether a political committee that makes highly restricted direct contributions has a First Amendment right to engage in unrestricted non-contribution activities through a separate and segregated non-contribution account, and (2) Whether the First Amendment forbids a government from restricting political speech based on the disclosure interest—an interest in providing the electorate with information about the sources of election-related spending—including when a more narrowly tailored remedy is available.

→ The man principally behind the case is a mild-mannered and quiet sort of guy, Dan Backer. He is no big time K street lawyer. No, his professional credentials are much more modest. He is the founder and principal attorney for DB Capitol Strategies, a campaign finance and political law firm in Alexandria Virginia. More importantly (and as David Skover and I noted in our book When Money Speaks), he was one of the driving forces behind the successful litigation of McCutcheon v. FEC (2014). When his team lost that case in the D.C. Circuit (in an opinion by Judge Janice Rogers Brown), it did not stop him — he took the case to the Supreme Court where Erin Murphy successfully argued the case for the Petitioner.

And now, Backer and a new team are at it again, in yet another campaign finance case — and again challenging a ruling by Judge Brown and her colleagues on the D.C. Circuit.

Lower Court ruling — “‘You can’t always get what you want'” 

→ Court of Appeals decision (D.C. Cir., Aug, 5, 2014), per Judge Janice Rogers Brown (joined by Judges Thomas Griffith and David Sentelle). Here is how Judge Brown began her opinion:

“The iconic musician Mick Jagger famously mused, ‘You can’t always get what you want. But if you try sometimes, well, you just might find, you get what you need.’ The Rolling Stones, You Can’t Always Get What You Want, on Let It Bleed (Decca Records 1969). Here, Stop This Insanity Inc. (STII)—a grassroots organization—wants to remove the congressionally-imposed binds on solicitation by separate segregated funds, a type of political action committee connected to a parent corporation. What it needs, however, it already has—an unrestrained vehicle, in the form of that parent corporation, which can engage in unlimited political spending. Because this less-obsolete and less-onerous alternative exists, we decline Stop This Insanity’s invitation for us to tinker with what has become a statutory artifact.”

And here is how she ended it, albeit with musical flare:

“STII is already capable of sweeping solicitation. And yet, it wants a vehicle capable of soliciting without transparency. The Court has endorsed disclosure as “a particularly effective means of arming the voting public with information,” McCutcheon, 134 S. Ct. at 1460, and the Appellants’ approach would stifle the Government’s ability to achieve that endeavor. Our Constitution does not compel such a result.IIIWe may never know why the Appellants wish to do things the hard way. The Constitution, however, does not guarantee a right to be obstinate. Try as it might, STII will get no satisfaction.”

Tillman Breckenridge

Tillman Breckenridge

The players

 Counsel of record on Cert. PetitionTillman J. Breckenridge.

 Other Counsel in the Case: The petition was filed by Tillman Breckenridge and Tara Brennan of the Reed Smith law firm, working in conjunction with the William & Mary Law School Appellate and Supreme Court Clinic, and Dan Backer.

→ Counsel for the FEC in Court of Appeals: Erin Chlopak, Acting Assistant General Counsel, Federal Election Commission.

The initial advisory opinion request to the FEC and court filing were done by Steven Hoersting and Dan Backer.

Circuit Split

In his cert. petition, Mr. Breckenridge maintains that “the D.C. and Second Circuits directly conflict with the Fifth and Tenth Circuits on whether hybrid PACs can be prohibited.” The cases to which he refers are:

  1. Stop This Insanity Inc Employee Leadership Fund et al v FEC (D.C. Cir., 2014)
  2. Vermont Right to Life Comm., Inc. v. Sorrell (2nd Cir., 2014)
  3. Catholic Leadership Coal. of Tex. v. Reisman (5th Cir., 2014)
  4. Republican Party of N.M. v. King (10th Cir., 2013)

 → Will such differences in the Circuits be enough to prompt four of the Justices to review the enmeshment issue and/or the discourse one? Here is Professor Rick Hasen’s prediction: “I give this a reasonable chance of a cert. grant, given the circuit split (though not on the disclosure issues, but on the coordination/enmeshment issue.”

On a related matter: Federal judge rules donor disclosure required for political documentary

This from the JURIST website (Sept. 23, 2014):

The US District Court for the District of Colorado denied on Monday a request by Citizens United for a preliminary injunction to allow the conservative organization to air a political documentary without disclosing the film’s advertising donors as required by state law. The documentary, Rocky Mountain Heist, which the group hopes to air before November’s elections, “concerns various Colorado advocacy groups and their impact on Colorado government and public policy.” Citizens United argued, on First Amendment grounds, that its organization should be considered a “press entity,” entitled to the same exemptions as traditional media outlets, which are not required to disclose their donors. Otherwise, the group argued, it would be the victim of “viewpoint-based discrimination.” The court disagreed stating that people should be able to “discern the private interests behind speech when determining how much weight to afford it.” Citizens United intends [press release] to appeal this ruling to the US Court of Appeals for the Tenth Circuit.

Supreme Court: Results of Sept. 29th Conference Read More

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Should More Land Use Professors be Libertarians? Part II

In my previous post, I asked why more land use/local government law professors do not identify as libertarians, considering the role many of us have played in exposing the dysfunctional workings of local government.

If there is an obvious argument in favor of the status quo in land use/local government regulation, it is that all the alternatives seem worse. Let us consider some of the candidates:

The Market

 An unimpeded free market in land use development would apparently be the worst of all worlds, as there would be no way to prevent open space from being gobbled up by new housing, roads and schools becoming impossibly congested, or a refinery locating next to a single-family home (or, perhaps more likely, a landowner threatening to build a refinery in order to extort his neighbor, a common scenario in pre-zoning Chicago).  In a densely populated society, we need some way of ensuring that landowners consider the impact of their land use on neighbors.   The good people of Oregon realized this after an ill-advised ballot initiative a few years ago effectively wiped out zoning, and suddenly a single landowner could, for example, subdivide his parcel into 100 lots for single-family homes with no regard for the impact the development would have on local services or infrastructure. The ballot initiative was repealed by a subsequent initiative a few years later.

In my previous post, I mentioned Houston as a possible alternative to most places’ current system of land use regulation. Houston is often touted for its lack of zoning, and corresponding low home prices. I should point out, however, that Houston is not quite a free-market paradise. Houston has a full complement of land use laws, including subdivision regulations (to prevent downtown-houston-at-night-1430683-sthe aforementioned 100 lot problem) billboard regulations, and the like. The city even enforces restrictions contained in private covenants.   As my friend and Houstonian Matt Festa points out, Houston has a quirky city charter that prohibits zoning without a voter initiative, so the city does lots of land use regulation but simply calls it something other than zoning.  And, while I’m on the subject, does anyone really think the reason Houston has lower land prices than San Jose is because of zoning? Read More

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Iconic or Scandalous: Olivia Pope and Annalise Keating – Black Women Lawyers on Prime Time TV

Welcome to the second decade of the twenty-first century, there are now two black women lawyers on Thursday prime time television thanks to screen writer, director and producer Shonda Rhimes. Rhimes, an increasingly powerful player in the broadcast world, first garnered widespread acclaim in 2005 as the creator and executive director of the long-running medical drama Grey’s Anatomy and its spin-off, Private Practice (2007-2013). In 2010 she entered the legal terrain with Scandal, about a high-powered Washington, D.C. political fixer who is having an affair with the married President of the United States. The fixer, Olivia Pope, is a well-educated and well-connected lawyer who runs a crisis management firm, Pope and Associates. Scandal started its fourth season on Thursday.

By the way, Olivia Pope, played by Kerry Washington, and Shonda Rhimes, the producer, are black women. So unsurprisingly a flurry of anticipatory articles and posts appeared when ABC announced Rhimes’ latest production, How to Get Away with Murder, which also aired Thursday immediately after Scandal. Annalise Keating (played by Viola Davis) is a tenured black woman law professor who also runs her own law firm. (Isn’t this a no, no under the ABA rules?) But anticipation quickly turned into controversy when New York Times television critic, Alessandra Stanley, started her article about the new show with: “When Shonda Rhimes writes her autobiography, it should be called ‘How to Get Away With Being an Angry Black Woman.’” Oops, so perhaps we have not progressed that far in race relations after all.

Stanley’s column set-off a firestorm on the internet. One of the most interesting critiques of Stanley’s troubling discussion of Rhimes and black women actors was posted by Margaret Lyons on Vulture.com.  Even Rhimes sent a few tweets.  The result was an apology from the Times’ Public Editor  and the obligatory “non-apology” from Stanley.

This much discussed controversy, however, is not the subject of my post. I am more concerned about the content of Scandal and How to Get Away with Murder than with how the executive producer and female actors are described by critics. As I celebrate the emergence of Kerry Washington and Viola Davis, as lawyers in starring roles on prime time television, I worry, not about whether these shows are breaking old well-worn stereotypes about black women as angry and sexually permissive, but rather whether my students will see these fictional women lawyers as legal icons to be emulated.
Read More