Author: Ronald K.L. Collins

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Journal of Legal Education — Interview with Judge Harry T. Edwards on Legal Scholarship

Judge Harry T. Edwards

Judge Harry T. Edwards

The latest issue of the Journal of Legal Education is out and contains, among other things, my question-and-answer interview with Judge Harry T. Edwards on the topic of legal scholarship. The interview is prefaced with a short biographical profile of the Judge and closes with a bibliography of all his published works.

Among other things, the interview contains the Judge’s responses to some of those who have commented on his writings on legal scholarship (17 articles), including Judge Richard Posner, Dean Erwin Chemerinsky, and Professors Michael Dorf,  Lee Petherbridge, Pierre Schlag, and David L. Schwartz.

Here are a few excerpts [brackets added]:

  • [The only African-American] When I entered the University of Michigan Law School in 1962, I was the only African American in my class. I graduated very high in my law school class, earning a number of honors for academic achievement. Nevertheless, when I finished law school, many major law firms to which I applied for jobs rejected me. I was told quite frankly by some of the hiring partners that, despite my strong academic record, the firms would not hire a Negro. It was only when my white mentor, Michigan law Professor Russell Smith, pressed on my behalf that I received a job offer from a major Chicago law firm.
  • [Best kind of legal writing] In my view, “legal writing” at its best is precise, carefully reasoned, and well-supported (by both facts and governing principles). It should not be meandering, pointless, frivolous, or pedantic.
  • [Addressing law’s purpose] There are still law professors who express disdain for the practice of law, and offer no concrete proposals for reform. In my view, this is unacceptable. In constructing a vision of legal education, I agree with Professor J.B. White, who once wrote that, in order for legal academic work “to be of value to the law it is essential that the work in question express interest in, and respect for, the possibilities of what lawyers . . . do.” This means that a good body of legal scholarship must address law’s purpose of serving society. Not all legal scholarship, but a good body of it.
  • [Abstract scholarship] There is certainly value in some abstract scholarship. I have never doubted this. But it should not be preferred over other forms of scholarship. In order for legal scholarship to be relevant outside the legal academy, law professors should balance abstract scholarship with scholarly works that are of interest and use to lawyers, legislators, judges, and regulators who serve society through legal arguments, decision-making, regulatory initiatives, and enforcement actions. In other words, law schools, law reviews, and legal scholars should do a better job in producing scholarship that is of interest and use to wider audiences in society.
  • [Theory-laden articles] Law review editors have come to understand the law schools’ preferences for obscure philosophical and theory-laden material, in part because they have received so many articles of this stripe in recent years. And the law reviews have accommodated these forms of scholarship, largely without protest.
  • [Blogs] The worry that I have with law blogs (as with many Internet sites that purport to report and comment on the news) is that they sometimes report and comment too quickly on judicial decisions. As a result, blogs do not always capture the important nuances of an opinion or the precedent that underlies the decision.
  • [Gulf between academy & the profession] Unless law schools ensure that their faculties reflect a real balance of talent—i.e., including professors with strengths in both concrete and abstract scholarship and teaching—the current gulf between the profession and the academy will continue to grow and become even more distressing.
  • [Hitting a nerve] The reactions from the bench, bar, and academy [concerning my article “The Growing Disjunction Between Legal Education and the Legal Profession“] were more than anything I ever anticipated. One of my former colleagues at the University of Michigan Law School, who will remain unnamed, sent me a funny and poignant letter which said something like: “Obviously, you hit a nerve. And what is so amusing is that the members of the academy cannot simply dismiss your critique because you are a member of the academy and know what goes on in our ranks.”
  •       → There is more, much more, to our interview, so go here for the entire exchange. ←  

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The Tragedy & Lost Legacy of James M. Landis — Book Review by Duncan Farthing-Nichol

The current issue of the Journal of Legal Education has a fascinating book review by Duncan Farthing-Nichol of Justin O’Brien’s The Triumph, Tragedy and Lost Legacy of James M Landis: A Life on Fire (Oxford: Hart Publishing, 2014, pp. 187, $52.00 (cloth). Here is how the review opens:

Dean James Landis (1889-1964)

Dean James Landis (1889-1964)

In The Triumph, Tragedy and Lost Legacy of James M Landis, Justin O’Brien asks why Harvard Law School has so far neglected to hang its portrait of James M. Landis (11). The library’s walls bow under the weight of history; Harvard’s twentieth-century deans gaze down en masse from the south end. But Landis, dean from 1937 to 1946, is not among them.1 Professor O’Brien traces the omission to Landis’ 1963 conviction for tax avoidance, a crime for which Landis was sentenced to thirty days in jail. The school, according to O’Brien, has let the conviction overshadow Landis’ vital role in shaping law and government. O’Brien reminds readers that Landis wrote and administered the Securities Act of 1933 and the Securities Exchange Act of 1934—the first serious efforts at federal securities regulation—and, in 1938, developed the most persuasive contemporary theory of government by administrative agency. The University of New South Wales professor also contends that Landis introduced social responsibility to legal education, an achievement that elevated law from a mere technical discipline to a means of seeking justice. Harvard, O’Brien concludes, should hang its Landis portrait.

I agree, but on somewhat different grounds. O’Brien lays a compelling case for Landis’ impact on administrative thought and practice. He moves too quickly, however, in naming Landis a transformative figure in legal education. Landis spoke in ambitious terms: He aimed for a legal education that transcended technique, reflected the rise of public law, and respected the new experts (economists, sociologists, and other specialists). He sought to instill a desire for justice in his students. Yet Landis did relatively little to institutionalize that vision, acting more as a caretaker than a reformer. If Harvard should hang Landis’ portrait, it is for his ideas and his story, rather than his deeds. . . . [read more here]

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FAN 96 (First Amendment News) Animal Rights Group Claims First Amendment Right to Lift Park Service Closure of Yellowstone Park During Bison Capture

Upcoming: FAC 7 (First Amendment Conversations) — Richard Hasen discusses his new book Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016) . . . and more.  Stay tuned.

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Plaintiffs have a continuing right of access under the First Amendment . . . to view the bison culling activiies that occur on public land, including Yellowstone National Park. — Complaint in Ketcham v. U.S. National Park Service (Jan. 26, 2016)

Last week Jamie M. Woolsey, Professor Alan. K. Chen, and Stefanie Wilson filed a complaint in a Wyoming federal district court on “behalf of journalist Christopher Ketcham and wild bison advocate Stephany Seay, who are seeking access to Yellowstone Park’s controversial bison trapping operations that lead to the slaughter of hundreds of bison. The lawsuit argues that the First Amendment guarantees citizens and journalists reasonable, non-disruptive access to the publicly funded national park.”

This is how their complaint seeking injunctive and declaratory relief begins:

I love this land and the buffalo and will not part with it . . .  These soldiers cut down my timber, they kill my buffalo and when I see that, my heart feels like bursting. —  Satanta-Kiowa Chief

According to an Animal Legal Defense Fund press release, “the National Park Service is scheduled to capture and facilitate the killing of up to 900 bison inside Yellowstone Park starting on February 15, 2016. During the capture and kill operation, the Park Service closes parts of the park to public access. ‘It’s ironic that to benefit Montana ranchers grazing their cattle—an invasive species—Yellowstone Park has agreed to facilitate the capture and killing of 900 American bison, an iconic, native species,’ said law professor and ALDF attorney Justin Marceau. . . .”

bison2“‘If the First Amendment right of access is to mean anything,’ Marceau went on to say, ‘it means that citizens and journalists should have reasonable, non-disruptive access to their publicly-funded national park to observe and memorialize one of the most controversial uses of national park land imaginable.'”

“‘Denying access to the park during this controversial publicly-funded wildlife slaughter campaign is very similar to the intent of Ag-Gag laws,’ said ALDF Executive Director Stephen Wells. ‘Such laws ‘gag’ would-be whistleblowers, journalists and activists by making it illegal to record and disseminate photos or footage taken in agricultural operations. ALDF has successfully proven Ag-Gag laws are unconstitutional under the First Amendment and we are confident we will do the same in this case.’ . . .”

The complaint alleges that “from the late 1990s until 2006, Defendants regularly allowed the public and the media to view the herding, trapping, sorting, and shipping of bison from the catwalks over the pens withint the [National Park].”

Jamie Woolsey, lead counsel for Plaintiffs

Jamie Woolsey, lead counsel for Plaintiffs

According to an Associated Press story, “Yellowstone spokeswoman Sandra Snell-Dobert said the restrictions are meant to protect park workers and the public. Moving and sorting bison can be dangerous, particularly within the narrow confines of the corrals, Snell-Dobert said. The lawsuit says such safety claims are exaggerated and that access to the corrals was routinely allowed until 2006, with no reports of anyone being injured.”

“‘It’s about public safety, but also about trying to reduce stress on the animal,’ Snell-Dobert said in a statement, adding that a large exclusion zone is necessary so that bison will feel comfortable enough to wander toward capture pens as they graze.”

→ Nature World News reports that the “driving force behind the large-scale bison cull is to reduce potential conflicts between the park and Montana landowners, as bison often travel outside of the park for food during the winter. Unfortunately, the arrival of bison instills fear in landowners that the bison will transmit a highly-infectious disease known as brucellosis to their cattle – even though there have been no such recorded instances to date.”

→ Hearing: February 3, 2016, District Court in Casper, Wyoming before Judge Scott Skavdahl. Professor Alan Chen will argue on behalf of the Plaintiffs in support of their motion for a preliminary injunction.

→ Related item: Steven Schwinn, “Park Service Inauguration Regs Don’t Violate Free Speech,” Constitutional Law Prof Blog, Jan. 28, 2016

NY Post Attacks Commission’s Ethics Rule Read More

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FAC 6 (First Amendment Conversations) Powell Law Clerk David O. Stewart Discusses the Origins of Central Hudson’s 4-Prong Test

[T]he Central Hudson test is susceptible to a wide variety of interpretations . . . . Martin Redish (2001)

After a period of much controversy, the Court in 1980 in Central Hudson articulated a general test for determining the constitutionality of regulations of commercial speech. Although the test has subsequently been interpreted from radically different perspectives, and although it has been attacked by numerous Justices, it has nevertheless remained the dominant test. — Robert Post (2000)

Before Sorrell v. IMS Health Inc. (2011) and 44 Liquormart, Inc. v. Rhode Island (1996), there was Central Hudson Gas & Electric v. Public Service Commission (1980).

When it comes to commercial speech and the First Amendment, Central Hudson was the coin of the realm in its day. Recall, the vote was 8-1 with Justice Lewis Powell writing the majority opinion (joined by Justices Stewart, White, Marshall, and Chief Justice Burger), with separate concurrences by Justice Brennan, Blackmun, and Stevens. Justice William Rehnquist wrote a lone dissent.

David O. Stewart, former Powell law clerk

David O. Stewart

Recall as well that Telford Taylor (counsel for the prosecution at the Nuremberg Trials) argued the case on behalf of the Appellants and Burt Neuborne filed an amicus brief on behalf of the Long Island Lighting Co. supporting the Appellants.

Justice Powell was virtually silent during oral arguments. Justices Byron White, John Paul Stevens, Potter Stewart, William Rehnquist, and Harry Blackmun asked the lion’s share of the questions. Even so, the Chief Justice assigned the opinion to Justice Powell.

Central Hudson was the case where the famed four-prong test was announced. Recently, I had occasion to look through the Powell papers archived at the Washington and Lee School of Law library. In browsing through those papers, I came upon a batch of memos and draft opinions concerning the Central Hudson case.

Much to my surprise, a good friend of mine, David O. Stewart, played a major role as the law clerk responsible for drafting Justice Powell’s Central Hudson majority opinion. In that regard, I asked David if he would answer a few questions about the case and his involvement in it. He kindly agreed; his responses are set out below. Read More

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FAN 95 (First Amendment News) “Fifty Shades of Grey” too Blue for Idaho?

Coming tomorrow: FAC 6 (First Amendment Conversations) Powell Law Clerk David O. Stewart Discusses the Origins of Central Hudson’s 4-Prong Test

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new-scenes-from-fifty-shades-of-greyThe Associated Press reported that a “movie theater is suing the Idaho State Police for threatening to revoke the theater’s liquor license because it served alcohol while showing ‘Fifty Shades of Grey.'”

“Village Cinema in Meridian, just west of Boise, has a liquor license and lets people drink alcohol in a restaurant or while watching movies in a designated 21-and-older VIP area, The Idaho Statesman reported. But state law prohibits places that are licensed to serve alcohol from showing movies that depict sexual acts.”

“Idaho police say a waitress at the theater served beer and rum to two undercover detectives watching the risque ‘Fifty Shades’ in the VIP seating last February. . . .”

“Idaho State Police later told Meridian Cinemas that it served alcohol while showing “Fifty Shades” from Feb. 13 to 18 and on Feb. 26, and attempted to revoke the theater’s liquor license.”

Counsel for Plaintiff: Jeremy Chou

→ Plaintiff’s complaint here. Among other things, Plaintiff’s counsel relies on the following precedent:

The Court decided 44 Liquormart on May 13, 1996.  The incidents in question here occurred in 1997. Thus, at the time that the Officials warned the Center’s management that hosting LSO’s art exhibition might subject the Center to sanctions, it was clearly established that liquor regulations could not be used to impose restrictions on speech that would otherwise be prohibited under the First Amendment. Thus, LSO’s right was “clearly established.” — LSO, Ltd. v. Stroh (9th Cir., 2000)

Michael Deeds, “Idaho theater lawsuit should spank stupid alcohol law,” Idaho Stateman, Jan. 22, 2016

 Eugene Volokh, “Idaho trying to revoke theater’s liquor license for showing ‘Fifty Shades of Grey’,The Volokh Conspiracy, Jan. 26, 2016

Missouri State lawmakers consider mandatory First Amendment classes

This from ABC News: “JEFFERSON CITY, Mo. The House committee on higher education considered a bill in Jefferson City Tuesday morning that would boost First Amendment education for Missouri students.

If passed, the legislation would require all college students to take a freedom of speech course before receiving a diploma.

The bill’s sponsor, Rep. Dean Dohrman, says last year’s protests on the MU campus was the main influence for this proposed legislation. . . .” (see Associated Press story here)

See also: Erik Wemple, “Mizzou professor Melissa Click charged with third-degree assault in quad clash,” Washington Post, Jan. 25, 2016

→ Jim Suhr, “Mizzou Chancellor Says He’s Not Going To Rush To Fire Melissa Click,” Huffington Post, Jan. 26, 2016

Campus Free-Speech Watch Read More

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Journal of Legal Ed Symposium: Ferguson & Its Impact on Legal Education

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The latest issue of the Journal of Legal Education (vol. 65, #2) is out. And here is the table of contents. (Go to this link for PDF files of each article). Beyond the Ferguson symposium, there is an essay on modern criminal procedure along with three book reviews.

* * * *

Reverse Broken Windows by  Christopher R. Green

At the Lectern

A Reader’s Guide to Pre-Modern Procedure by David L. Noll

Book Reviews

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FAN 94.2 (First Amendment News) Buckley v. Valeo: 40th Anniversary — Cato & Center for Competitive Politics to Host Event

United States Supreme Court

BUCKLEY v. VALEO (1976)

No. 75-436

Argued: November 10, 1975    Decided: January 30, 1976

The event is titled “The Past and Future of Buckley v. Valeo” and is being presented by the Cato Institute and the Center for Competitive Politics. It will take place on Tuesday, January 26th at Hayek Auditorium at the Cato Institute in Washington, D.C. (1000 Massachusetts Ave, NW).

Should Buckley be considered a First Amendment failure? Or did it embrace inevitable compromises that were both worse and better than everyone desired? How does Buckley affect the law and American politics and campaigning today? Does the decision have a future?” Those and related questions will be discussed at the upcoming event.

Introduction (9:00 a.m.)

Bradley Smith, Center for Competitive Politics

The Impact of Buckley on Campaigns and Elections (9:15-10:15)

Jeffrey Milyo, University of Missouri
Jay Goodliffe, Brigham Young University
Interviewer: Wendy KaminerThe Atlantic

Why the Buckley Decision Matters (10:15-11:15)

Bradley Smith, Center for Competitive Politics
Floyd Abrams, Cahill Gordon & Reindel LLP
Interviewer: Matea GoldWashington Post

What is Living and What Is Dead in Buckley v. Valeo? (11:30-12:30) 

John Samples, Cato Institute
Jan Baran, Wiley Rein LLP
James Bopp, The Bopp Law Firm
Interviewer: David SavageLos Angeles Times

Lunch

To register to attend this event, click here and then submit the form on the page that opens, or e-mail events@cato.org, fax (202) 371-0841, or call (202) 789-5229 by 9:00AM on Monday, January 25, 2016.

Audio of oral arguments in Buckley here.

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FAN 94.1 (First Amendment News) Tenured LSU Prof. Sues — University Claims Her Profanity Constituted Sexual Harassment

Update: The Foundation for Individual Rights in Education (FIRE) is sponsoring Buchanan’s lawsuit, the eleventh in FIRE’s undefeated national Stand Up For Speech Litigation Project.

The case is Buchanan v. Alexander (U.S. Dist. Ct., MD, LA). The action was brought yesterday in a federal district court in Louisiana. Here is how the complaint opens:

Plaintiff Teresa Buchanan, a tenured professor, was fired from Louisiana State University (“LSU”) in June 2015 on the asserted ground that her occasional use of profanity constituted “sexual harassment” under LSU policies. Despite the fact that Professor Buchanan had a distinguished record of scholarship after nineteen years at LSU and had recently been recommended for a promotion, and notwithstanding the fact that the language in question was integrated into her pedagogical approach and was not directed at – nor did it disparage – any student, LSU terminated her employment. It did so under LSU policies that define “sexual harassment” without regard for First Amendment protections governing free speech and academic freedom. LSU’s flawed policies mirror a “blueprint” for campus anti-harassment policies promulgated by the U.S. Departments of Education and Justice, which unlawfully equates all speech of a “sexual nature” with sexual harassment. Under this approach, speakers may be punished – up to and including expulsion or termination – if a listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably.

Prof. Teresa Buchanan

Prof. Teresa Buchanan

The complaint alleges that on December 20, 2013, Defendant notified Professor Buchanan that she would not be teaching in the spring semester due to complaints from students about “inappropriate comments” she allegedly made during instruction, and because a superintendent of schools for a parish where LSU placed student teachers had complained that Professor Buchanan had made “negative and inappropriate comments” about parish teachers and criticized the superintendent at a recent meeting. Andrew did not disclose the identities of the student complainants or the nature of their complaints.

In May of 2014 Plaintiff received a memorandum from one of the Defendants that in part stated: “Beyond your sexually oriented comments, your reported communication style with students, faculty, and outside administrators has been found to be inappropriate, as you often use profanity in your communication.”

→ LSU’s sexual harassment policy defines sexual harassment as “unwelcome verbal, visual, or physical behavior of a sexual nature.” It includes quid pro quo harassment and hostile environment harassment, which “has the purpose or effect of unreasonably interfering with an individual’s academic, work, team or organization performance or creating an intimidating, hostile or offensive working environment.”

→ Alleged Violation of the ADA: The May Memorandum also informed Plaintiff that the Office of Human Resource Management had determined that she had violated the Americans with Disabilities Act by disclosing a student’s medical condition to the student’s entire class. The Office inexplicably made this determination despite the fact that the student had herself referred to her condition in class on several occasions.

→ Objectionable Language: The so-called profanity included her use of the word  “pussy” in discussing with student teachers how parents might use the word and other profanity as part of their everyday language. Her objectionable language also included her joking about stereotypical lesbian clothing to demonstrate sexual stereotyping. Additionally, it was alleged that she sometimes used sexually explicit ‘jokes’ in her teaching methodologies.

Professor Buchanan was dismissed from LSU on June 19, 2015.

→ Causes of action alleged by Plaintiff are:

  1. An as-applied violation of her rights to free speech under the First and Fourteenth Amendments
  2. An as-applied violation of her due process rights under the Fourteenth Amendment
  3. A facial challenge of the school policies as violative of her  First and Fourteenth Amendments rights
  4. A request for declaratory and injunctive relief.

Counsel for the Plaintiff are: Robert Corn-Revere, Ronald London, and Lisa Zycherman

→ Professor Buchanan’s own account of her  case

→ LSU Response: Ernest G. Ballard 3rd, a spokesman for Louisiana State, told the Chronicle of Higher Education: “We take our responsibility to protect students from abusive behavior very seriously, and we will vigorously defend our students’ rights to a harassment-free educational environment.”

→ Related New Stories 

  1. Peter Schmidt, “Fired LSU Professor’s Lawsuit Challenges Federal Title IX Guidance,” Chronicle of Higher Education, Jan. 21, 2016
  2. Charles Lussier, “LSU professor fired for using salty language in classroom claims she’s ‘witch hunt’ victim, plans suit,” The Advocate, June 27, 2015
  3. Ryan Buxon, “Fired LSU Professor Teresa Buchanan Says She Still Doesn’t Know What She Did Wrong,” Huffington Post, July 8, 2015 (video interview with Professor Buchanan)
  4. Colleen Flaherty, “Fired for Being Profane,” Inside Higher Ed, (AAUP alleges violations of academic freedom, due process in new report about tenured professor who was terminated by Louisiana State U for using inappropriate language) (see also here)
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FAN 94 (First Amendment News) Brooklyn Law School to Host Symposium: “Free Speech Under Fire — The Future of the First Amendment”

It may well be the First Amendment conference of the year. On Friday, February 26th, the Brooklyn Law School will host an all-day symposium titled “Free Speech Under Fire: The Future of the First Amendment.” Twenty noted First Amendment persona — lawyers, professors, activists and others — are slated to participate in the upcoming program.

Screen Shot 2016-01-19 at 9.03.03 AM

Description: For free speech, it may be the best of times, yet the worst of times. The Roberts Supreme Court may be the most speech-protective Court in a generation, extending free speech protection on a number of fronts and rebuffing claims by government and its allies to limit such protections. Yet these free speech rulings have drawn fire from critics, on and off the Court, who contend that the decisions are inconsistent with the democratic and egalitarian purposes of the First Amendment. Meanwhile, at home and abroad, censorship and suppression of speech seems more the rule than the exception. The Symposium will bring together many of the nation’s leading First Amendment advocates and scholars to address these pressing issues as they play out in the areas of hate speech, money and speech, corporate and commercial speech, and surveillance and speech.

Participants

  1. Floyd Abrams, Partner, Cahill Gordon & Reindel LLP
  2. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
  3. Sahar F. Aziz, Associate Professor of Law, Texas A&M University School of Law
  4. Miriam H. Baer, Professor of Law, Brooklyn Law School
  5. Robert Corn-Revere, Partner, Davis Wright Tremaine, LLP
  6. Joel M. Gora, Professor of Law, Brooklyn Law School
  7. Richard L. Hasen, Chancellor’s Professor of Law and Political Science, UC Irvine School of Law
  8. Susan N. Herman, Centennial Professor of Law, Brooklyn Law School; President, ACLU
  9. Jamil N. Jaffer, Adjunct Professor and Director, Homeland and National Security Law Program, George Mason University School of Law
  10. Beryl Jones-Woodin, Professor of Law, Brooklyn Law School
  11. Greg Lukianoff, President and CEO, Foundation for Individual Rights in Education (FIRE)
  12. Hon. Andrew P. Napolitano, Distinguished Visiting Professor of Law, Brooklyn Law School; Senior Judicial Analyst, Fox News
  13. Burt Neuborne, Norman Dorsen Professor of Civil Liberties, NYU School of Law
  14. Tamara R. Piety, Phyllis Hurley Frey Professor of Law, University of Tulsa College of Law
  15. K. Sabeel Rahman, Assistant Professor of Law, Brooklyn Law School
  16. Stephen R. Shapiro, National Legal Director, ACLU
  17. Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School
  18. Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School
  19. Nelson W. Tebbe, Professor of Law, Brooklyn Law School
  20. Jeremy Waldron, University Professor, NYU School of Law

→ RSVP by Wednesday, February 24: www.brooklaw.edu/freespeech-symposium

Sponsored by the Journal of Law and Policy 

More from Brooklyn Law — Upcoming Conference on Buckley v. Valeo 

James L. Buckley (1923-)

James L. Buckley (1923-)

On Tuesday, January 26th, the Brooklyn Law School will host an event titled “A Landmark Decision Turns 40: A Conversation on Buckley v. Valeo.” The event will take place at the Subtonic Center (10th floor), 250 Joralemon Street, Brooklyn and is scheduled for 12:30-1:45.

Description: January 30 marks the 40th anniversary of the U.S. Supreme Court’s landmark decision in Buckley v. Valeo, the Court’s first major ruling on the clash between campaign finance regulations and First Amendment rights. For the last 40 years, the Court’s decision has provided the constitutional framework for the law governing the financing of our politics and the doctrinal platform for the more recent Citizens United case. Both rulings have been harshly criticized as well as staunchly defended over the years.

Introductory Remarks 

  • Nicholas W. Allard, President, Joseph Crea Dean, and Professor of Law, Brooklyn Law School

Commentators 

  1. James L. Buckley (age 92), former conservative U.S. Senator from New York and later a U.S. Circuit Court Judge, who was the lead plaintiff
  2. Ira Glasser, the long-time Executive Director of the liberal American Civil Liberties Union, who played a key role in organizing the lawsuit’s “strange bedfellows” coalition
  3. Professor Joel M. Gora, one of the attorneys who argued the case in the Supreme Court

Co-sponsored by the Brooklyn Law School Federalist Society & the Brooklyn Law School ACLU

What Does it Take to Assert a First Amendment Right? — Heffernan v. City of Paterson Read More

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FAN 93.2 (First Amendment News) SCOTUS Denies Review in Federal Contractors’ Political Contributions Case

In its orders for today, the Supreme Court declined to review Miller v. Federal Election CommissionThe issue in the case was whether the ban on political contributions by federal contractors in 52 U.S.C. § 30119, as applied to individuals such as petitioner and the other plaintiffs, is sufficiently tailored to meet the requirements of the Equal Protection component of the Fifth Amendment and the First Amendment to the Constitution.

* * *

Oral Arguments: Today the Justices will hear oral arguments in Heffernan v. City of PatersonThe issue in the case is whether the First Amendment prohibits the government from demoting an employee based on a supervisor’s perception that the employee supports a political candidate.

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. Paterson, N.J. (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. Paterson, N.J. (see Howard Wasserman SCOTUSblog commentary here)

Review Denied

  1. Miller v. Federal Election Commission
  2. Sun-Times Media, LLC v. Dahlstrom
  3. Rubin v. Padilla
  4. Hines v. Alldredge
  5. Yamada v. Snipes
  6. Center for Competitive Politics v. Harris
  7. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Town of Mocksville v. Hunter
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Electronic Arts, Inc. v. Davis
  6. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority (relisted)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court’s next Conference is scheduled for Friday, January 22, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.