Category: General Law

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Call for Papers–AALS Section on Law and Sports

The AALS Section on Law and Sports is pleased to announce the inaugural AALS Section on Law and Sports Award to recognize an individual that has made a substantial and significant contribution to scholarship, teaching, and/or service in the area of law relating to sports. Section members and other individuals are eligible for the award, but law schools, institutions, and organizations are not eligible to receive the award. A committee comprised of section members will consider all nominations and select a deserving recipient for recognition at the 2016 AALS Annual Meeting.

Please email nominations – and any supporting information – to Professor Dionne Koller at dkoller@ubalt.edu. In your nomination, please provide an explanation as to how the nominee meets the criteria for the award. Nominations are due by August 1, 2015.

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Guido on Law and Economics

Guido Calabresi has a new book coming out in January on Law and Economics.  While I’m not an unbiased source (as his former clerk), I have read a draft and think this will make a big splash.  Closer to the release date, it is my hope that CoOp will hold a Symposium on this book and see if we can host Guido’s first-ever blog post.

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More Questions About the Meaning of “Legislature”

The Justices are still considering the Arizona redistricting case that I’ve posted about several times, but a few other things occurred to me about that pending decision that I wanted to share.

1.  At oral argument, Justice Kagan pointed out that there are many state constitutional provisions that regulate the “time, place, and manner” of voting in congressional elections.  I’m not sure how many there are, but it would seem that all of them would be vulnerable under an analysis that says that only the state legislature may make those regulations subject to congressional preemption.  It would be useful to know (and the dissent may end up telling us) how many of these there are.

2.  If you take the legislative exclusivity argument seriously, doesn’t that mean that a state court interpretation of a voting regulation for congressional elections could raise a federal constitutional question?  In Bush v. Gore, Chief Justice Rehnquist’s concurrence argued that the Florida Supreme Court’s interpretation of state election law regarding the selection presidential electors was so flawed that “the Legislature” was not truly exercising its constitutional authority under Article II.  Couldn’t the same be true for a legislature under Article I?  (Yes, I know–it was a plurality opinion from Bush v. Gore.  Two strikes there.  But still.)

3.  If Arizona’s plan is unconstitutional, then California’s plan of open primaries adopted as part of the state constitution is probably also unconstitutional.  Oddly enough, the Legislature elected under that plan can cure the constitutional flaw by just enacting the same plan as a statute.  Right?

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FAN 57 (First Amendment News) Press Group & Others Await Ruling re Release of 1942 Grand Jury Transcripts in Chicago Tribune Case

PETITION FOR ORDER DIRECTING RELEASE OF TRANSCRIPTS OF CERTAIN TESTIMONY FROM AUGUST 1942 GRAND JURY INVESTIGATION OF THE CHICAGO TRIBUNE

UnknownThat is the caption in the petition titled In re Petition of Elliot Carlson, et al, which was filed on November 18, 2014 in the United States District Court for the Northern District of Illinois. The judging presiding over the case is Chief Judge Ruben Castillo. In addition to the lead petitioner, the other parties in the case are: the Reporters Committee for Freedom of the Press, the American Historical Association, the National Security Archive, the Naval Historical Foundation, the Naval Institute Press, the Organization of American Historians, and the Society for Military History.

Stanley Johnston & Jay Loy Maloney

Stanley Johnston & J. Loy Maloney of the Tribune

The controversy traces back to a June 7, 1942 front-page story the Chicago Tribune ran by its war correspondent Stanley Johnston. The piece was titled “Navy Had Word of Jap Plan to Strike at Sea.” Citing “reliable sources in naval intelligence,” the Johnston story reported that the U.S. Navy had detailed information concerning the Japanese military’s plan to attack U.S. forces at Midway several days in advance of that battle.

The government believed that the story was based on a classified Navy dispatch. More importantly, it believed that the story revealed a closely-held secret, namely, that the Navy had cracked the radio code used by the Japanese navy to encrypt communications. Outraged by the apparent “leak,” officials in the FDR Administration pressed for the prosecution of the reporter and his paper. Or as the editorial board of the Chicago Tribune put it in 2014: “The response was ferocious. President Franklin D. Roosevelt’s instinct was to have Marines occupy Tribune Tower. Navy Secretary Frank Knox insisted that U.S. Attorney General Francis Biddle prosecute Tribune journalists for hurting national security.”

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The Justice Department convened a grand jury in August of 1942 to investigate whether Johnston and his managing editor, J. Loy Maloney, along with the Tribune had violated the Espionage Act of 1917. On August 19, 1942, the grand jury declined to issue any indictments.

Tribune_The  CitadelJubilant over its victory, the Tribune ran a front-page cartoon the next day — the cartoon depicted the Tribune Tower as a citadel for press freedom.

It is against that backdrop that Elliot Carlson (a naval historian) and his fellow petitioners requested the release of the transcripts of the testimony of all 13 witnesses who testified before the grand jury in connection with the Tribune investigation. The transcripts are apparently stored at a National Archives repository in College Park, MD (enclosures to Serials 1 through 11 for File Number 146-7-23-25).

In his declaration to the court, Carlson maintained that “[r]eleasing the grand jury testimony will fill in important gaps in the existing historical record and will provide valuable perspective on the relationship between the government and the press during national security crises – a subject that has never been more relevant. Historians and writers still disagree would the details of the Tribune scandal . . . but the grand jury testimony could settle the dispute.”

Government Opposes Release of 1942 Transcripts

On December 24, 2014, the government filed its response in opposition to the release of the grand jury transcripts. Its opposition was based on three basic arguments:

  1. “No Statute or Rule Provides for Release of Grand Jury Information for Reasons of Historical Interest”
  2. “Second Circuit Law Recognizing Historical Significance as a Special Circumstance Justifying Disclosure Is Flawed and Contrary to the Weight of  Supreme Court Jurisprudence,” and
  3. “The Supreme Court’s Rulemaking Body Has Rejected an Amendment to Rule 6(e) Based on Historical Interest”

In their reply memorandum, the Petitioners advanced two main arguments:

  1. “Courts have discretion to order disclosure of historical grand jury material in appropriate circumstances pursuant to their inherent authority,” and
  2. “The Coalition has demonstrated that disclosure of the testimony from the 1942 Tribune grand jury investigation is a proper exercise of this Court’s discretion.”

Lawyer for Petitioners: Brendan J. Healey

 Lawyer for the Government: Elizabeth J. Shapiro (U.S. Department of Justice)

A ruling is expected sometime within the next two months.

→ See also Editorial, “Breaking the code on a Chicago mystery from WWII,” Chicago Tribune, November 21, 2014

For some historical background, see:

  1. Lloyd Wendt, Chicago Tribune: The Rise of a Great American Newspaper (1979), pp. 627-636
  2. Michael S. Sweeney & Patrick S. Washburn, “‘Aint Justice Wonderful': The Chicago Tribune’s Battle of Midway Story and the Government’s Attempt at an Espionage Act Indictment in 1942,” Journalism & Communication Monographs December 5, 2013 (updated 2014)
  3. Dina Green, “Communication Intelligence and the Freedom of the Press. The Chicago Tribune’s Battle of Midway Dispatch and the Breaking of the Japanese Naval Code,” Journal of Contemporary History (1981)

ht: Katie Townsend

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Muzzle Awards ‘Honor’ First Amendment Violators

This from a news report in The Daily Progress: “The administration of a major university, the mayor of Peoria, Illinois, and an Alabama circuit judge are among this year’s recipients of the Jefferson Muzzle awards, given to people or institutions accused of stifling freedom of speech in the United States. Thomas Jefferson Center for the Protection of Free Expression . . . gives out the awards each year.”

Those receiving the awards were:

  1. Peoria, Illinois Mayor Jim Ardis
  2. Bergen Community College (NJ)
  3. Mora Co., New Mexico Board of Commissioners
  4. Bedford Co., Pennsylvania District Attorney Bill Higgins
  5. Alabama Circuit Court Judge Claud D. Neilson
  6. The Indiana Department of Corrections
  7. Asnuntuck Community College (CT)
  8. The University of Illinois at Urbana–Champaign

NB: Links are to stories re the reasons for bestowing the awards.

Video of Balkin-Redish Exchange Posted  Read More

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The Great State Constitutional Opinions

Suppose you had to name the Top 5 constitutional decisions by a state court.  What would they be?  This could refer to readings of a state constitution or a state case on the Federal Constitution.  Here are some thoughts:

1.  Goodridge v. Dept. of Public Health (Mass. 2003).  This was not the first state case finding a right to same-sex marriage (that was in Hawaii), but this was the most important.

2.  Ives v. South Buffalo RR (N.Y. 1911).  This case invalidating the state worker’s compensation statute as a due process violation sparked outrage across the country and led to modifications in the Supreme Court’s jurisdiction.  (The case could not be reviewed by the Justices at the time.)

Other candidates?

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Magna Carta in America: Entrenched

Englishmen on both sides of the Atlantic treasured their rights derived from Magna Carta, but during the eighteenth century their manner of protecting them diverged.   That divergence has kept Magna Carta’s legacy more vibrant in American than in the land of its origins.

Sir Edward Coke’s defense of Magna Carta in the early 17th century and that articulated by William Blackstone in the late eighteenth clarify the evolving English stance. Coke insisted that judgments “given against any points of . . . Magna Carta . . . are adjudged void” while “any statute be made against it shall be void.” But elsewhere Coke conceded that Parliament could not “be confined, either for causes or persons within any bounds.” Americans embraced Coke’s first pronouncement. Promised the rights of Englishmen, they insisted these not be infringed by either Parliament or King. By 1765 when William Blackstone’s Commentaries on the Laws of England appeared, English opinion embraced Coke’s second statement. The Great Charter, Blackstone wrote, “protected every individual of the nation in the free enjoyment of his life, his liberty and his property, unless declared to be forfeited by the judgment of his peers or the law of the land.” The “law of the land” trumped Magna Carta. Parliament, Blackstone declared, could “do every thing that is not naturally impossible.” It could, by a simple majority, limit the use of juries or abolish the prohibition against double jeopardy.

Americans, determined to protect their “inalienable” rights even from the law of the land, entrenched them in a constitution extraordinarily difficult to amend. They relied upon a written constitution and courts, Englishmen relied on Parliament.

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The Disposition of Justice Souter’s Papers

I have received a letter from Justice Souter stating that his papers (in the New Hampshire Historical Society) will be available on the 50th anniversary of his death.  In other words, probably not while any of us are alive.

UPDATE:  For those of you emailing me, he did say “death” and not “retirement.”

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FAN 56.1 (First Amendment News) Constitutional & Criminal Law Experts File Brief Defending Gov. Rick Perry — First Amend. & Other Defenses Raised

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This morning an amicus brief was filed in the case of Ex Parte James Richard “Rick Perry” (App. Ct., 3rd Jud. Dist.); this is how it opens:

Amici are an ideologically diverse coalition of experts in the fields of constitutional and criminal law—including former judges, solicitors general, prosecutors, criminal defense lawyers, constitutional litigators, and professors on both sides of the aisle. They represent virtually the entire political spectrum and have no personal or political stake in this case. They submit this brief for one simple reason: They are committed to the rule of law, and do not wish to see the law tarnished or distorted for purely partisan political purposes.

Gov. Rick Perry

Gov. Rick Perry

The case, recall, involves Texas Governor Rick Perry and his threat to veto a bill if a state political official did not do what he asked. He then vetoed the bill. A grand jury thereafter indicted the Governor and charged him with two felonies.

One count alleged that the Governor violated Texas law when he vetoed a bill that would have funded the continued operation of the Public Integrity Unit of the Travis County District Attorney’s office.

The other count alleged that the Governor violated Texas law by “threatening” to use his veto powers if a government official did not resign her post (this in connection with his call  for the resignation of Travis County D.A. Rosemary Lehmberg, a Democrat, who had been convicted of drunk driving).

 See here re video of Gov. Perry’s Aug. 16, 2014 press conference

See here re Feb. 23, 2015 Defense’s objections to bill of particulars & amended indictment

Counsel for Gov. Perry on appeal: Tony BuzbeeDavid Botsford & Thomas R. Phillips (Appellant’s brief here)

Now, 18 noted constitutional and criminal law experts are rallying to Gov. Perry’s defense in an amicus brief filed  in a Texas appellate court by James C. Ho, Prerak Shah, Bradley G. Hubbard and Eugene Volokh. The brief in support of an application for a writ of habeas corpus makes two basic arguments:

  1. “Count I of the Indictment Should Be Dismissed, Because it is Both Unconstitutional and Barred by Legislative Immunity,”
  2. “Count II of the Indictment Should Be Dismissed, Because it Criminalizes Speech Protected by the First Amendment of the U.S. Constitution.”

The 18 who signed onto the amicus brief are:

  • Floyd Abrams (First Amendment lawyer)
  • Michael Barone (Resident Fellow at the American Enterprise Institute)
  • Ashutosh Bhagwat (UC Davis law professor)
  • Jeff Blackburn (Founder and Chief Counsel of the Innocence Project of Texas)
  • Paul Coggins (former U.S. Attorney for the Northern District of Texas)
  • Alan Dershowitz (Harvard law professor)
  • Raul A. Gonzalez (Former Justice, Texas Supreme Court)
  • James C. Ho (Former Texas Solicitor General & former Chief Counsel to U.S. Senate Subcommittee on the Constitution)
  • Daniel Lowenstein (Emeritus UCLA law professor)
  • Michael W. McConnell (Stanford law professor)
  • John T. Montford (Former District Attorney for Lubbock County, TX)
  • Michael Mukasey (Former U.S. Attorney General & former federal court judge)
  • Theodore B. Olson (Former Solicitor General of the United States)
  • Harriet O’Neill (Former Justice, Texas Supreme Court)
  • Nathaniel Persily (Stanford law professor)
  • Kenneth W. Starr (Former U.S. Solicitor General & former federal court appellate judge)
  • Johnny Sutton (Former U.S. Attorney for the Western District of Texas), and
  • Eugene Volokh (UCLA law professor)

The two statutes under which Gov. Perry was indicted are reminiscent of the old Soviet Union — you know, abuse of authority. The idea of indicting him because he threatened to veto spending unless a district attorney who was caught drinking and driving resigned, that’s not anything for a criminal indictment. That’s a political issue. – Alan Dershowitz (Aug. 18, 2014)

Free Speech Claims

James C. Ho (lead counsel)

James C. Ho (lead counsel)

The amicus brief argues that Count II of the indictment — that Gov.Perry violated the law by “threatening” to use his veto powers if a government official did not resign — violates his free speech rights under the Texas and U.S. Constitutions.  “[H]e has every right to do just that,” they contend.

Core Political Speech: “A political official,” they add, “has the right to threaten to perform an official act in order to persuade another government official to engage in some other official act. That is not a crime—it is core political speech. See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (‘What is a threat must be distinguished from what is constitutionally protected speech.’).”

Parade of Horribles: “The consequences of allowing Governor Perry to be prosecuted under this law would be both far-reaching and devastating. The prosecution’s theory of the case would criminalize a vast swath of constitutionally protected—and exceedingly common—political speech.”

Facially Invalid: “The vast amount of protected speech that would be deemed criminal under the prosecution’s theory reveals another fundamental problem with this Count: the statute is unconstitutionally overbroad and therefore facially invalid.”

Government Speech?: “[T]he speech of elected officials at issue here is simply not government speech as defined by the Garcetti line of cases. Indeed, common sense demands that it not be government speech. Does the special prosecutor truly believe that the Legislature could, with a veto-proof majority, prevent the Governor from saying anything at all on particular topics? Of course not—yet that is precisely what the Legislature could do if Governor Perry’s speech were deemed government speech.”

 After offering various other free speech challenges, the authors of the amicus brief point out that

Last year, President Obama threatened to issue various executive orders if Congressional Republicans refused to pass comprehensive immigration reform. . . . The President later followed through on that threat. To be sure, those executive actions are highly controversial and are currently the subject of litigation. But no one could seriously argue that President Obama’s political statements regarding those actions are unprotected by the First Amendment and subject to potential criminal prosecution. So too here.

Mincing no words, the brief urges: “This Court should announce—right now—that it is unconstitutional to prosecute Governor Perry for his protected political speech.”

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ROUNDUP: Law and Humanities 04.16.15

New Books

New books of interest to law and humanities folks include Robert P. Burns’  Kafka’s Law: “The Trial” and American Criminal Justice (University of Chicago Press, 2014).  Here’s a description from the publisher’s website.

The Trial is actually closer to reality than fantasy as far as the client’s perception of the system. It’s supposed to be a fantastic allegory, but it’s reality. It’s very important that lawyers read it and understand this.” Justice Anthony Kennedy famously offered this assessment of the Kafkaesque character of the American criminal justice system in 1993. While Kafka’s vision of the “Law” in The Trial appears at first glance to be the antithesis of modern American legal practice, might the characteristics of this strange and arbitrary system allow us to identify features of our own system that show signs of becoming similarly nightmarish?
If you’d like to keep up on new books in the legal area, check out the New Books in Law twitter feed: https://twitter.com/NewBooksLaw.

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The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury

d011337rFor Americans, both Magna Carta and trial by jury are enveloped in almost sacred myths. The myths of Magna Carta and jury trial are the more powerful for being deeply intertwined. These and similar myths encouraged Americans to accomplish great things, including independence from Britain and the successful establishment of a republic. The myths also have a dark side.

At the time of independence, many Americans believed they possessed and were in danger of losing an English inheritance that was unchanging and from ancient times, from “time immemorial.” The body of this inheritance was the fundamental laws of England, especially as expressed in Magna Carta.

To early Americans, Magna Carta not only symbolized the general idea of a government constrained by a formal charter, it described specific rights. The right Americans most often invoked in connection with the Great Charter was the right to trial by jury. Magna Carta and trial by jury became linked as part of the construction of an elaborate political view. The barons at Runnymede certainly did not intend to enshrine common-law trial by jury, which did not exist for criminal cases in 1215 and hardly for civil cases. In the language of Chapter 39 concerning “judgment of his peers,” the barons were trying to ensure that they would be tried by other barons, not by royal judges or ordinary juries. The link between Magna Carta and jury trial began in England in the late sixteenth century. During that era, antiquarians began to try to trace what they thought of as the ancient constitution of England, including institutions such as the jury, back to the Anglo-Saxon period or even earlier. In the view of antiquarians, Magna Carta was intended to preserve an ancient right to trial by jury. Edward Coke and other lawyers in the seventeenth century celebrated this invented link between Magna Carta and jury trial in their struggles against royal prerogative.

Americans of the colonial and revolutionary era also exalted the jury, as a means of furthering self-governance and nullifying despised British laws. In their enthusiasm for the jury, Americans put the translated words of Chapter 39 of Magna Carta directly into many of their new constitutions.

Over time, trial by jury proved to be a troublesome inheritance. After Americans had created representative republics, the self-governing and law-nullifying functions of the jury came to seem unnecessary at best and often harmful. Increasingly through the nineteenth century and beyond, American judges and legislators criticized the jury for its expense, delay, and unpredictability.

The story of the jury changing from a prized right of the people to a nuisance suggests the hazards of enshrining specific legal procedures in constitutions. England, without a written constitution specifying trial by jury, was able effectively to abolish the civil jury and to substitute a form of adjudication more suited to a commercial age: bench trial. The United States, hampered by jury rights in the federal and state constitutions, has had to resort to various inefficient manoeuvers to circumvent jury trial. Americans continue to pay for their invented inheritance.

Note:  The image is a four-dollar bill from Maryland, printed in July 1775, depicting the figure of “Liberty” handing a petition to “Britannia,” who is restrained by King George III, shown trampling Magna Carta (and, for good measure, setting fire to the port of Annapolis).