Category: General Law

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2009 Judiciary Act: Part Two

This is my second post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here.

The professors’ second proposal deals with the possibility of Justices staying on the Court when they are no longer capable of performing their duties. This proposal specifies that Justices have a duty to retire when they are no longer able to perform fully the duties of the office held. Recognizing that a Justice might not easily know or admit that the time to retire has come, the proposal also places a duty on the Justice’s colleagues. When an Associate Justice is unable to perform the duties required of the office, the Chief Justice must advise the Associate Justice to retire; the Chief Justice must also report as much to the Judicial Conference. If the Chief Justice is unable to perform his or her duties on the Court, the Associate Justices must report the disability to the Judicial Conference. Upon receiving a report, the Judicial Conference convenes the most Senior Judges of the Courts of Appeals. If those judges determine that a Justice is no longer capable of serving, it must report that to the House Judiciary Committee.

The professors’ proposal responds to a striking aspect of the Constitution: there is no specific provision for removing a judge who is disabled. Article III provides for a judge to continue to serve during “good behavior.” I understand that provision, though, to mirror the impeachment clause (“all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors”). Disability would not, therefore, be an instance of bad behavior. Many state constitutions, by contrast, do provide for the removal of a judge on disability grounds.

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Location, Location, Location

Several recent legal news stories illustrate the intuition that entities’ (or individuals’) physical proximity to each other, without more, sends powerful messages.

For example, the Associated Press reports that Justice Stevens refuses to attend any swearings-in of justices at the White House because he views the ceremony’s mere physical location at a supposedly co-equal branch of government as signalling a lack of judicial independence. Similarly, the Foreign Intelligence Surveillance Court, according to the Washington Post, is moving to a new building of its own — in part because of concerns that the court’s physical location at the Department of Justice might communicate an inappropriate deference to the executive branch it is supposed to oversee.

Is Justice Stevens over-reacting? Probably not. Social science confirms that onlookers are often quick to draw significant conclusions based on individuals’ physical location with respect to others, as I’ve blogged elsewhere. For example, social psychologists have found that observers often form negative impressions of an individual who is simply seen near a person perceived as stigmatized. Observers rated job applicants who were viewed while seated next to an overweight person more negatively than those viewed while seated next to a person of average size. (Physical proximity alone was sufficient to create and reinforce negative associations, as those negative perceptions retained their hold even when the observers were instructed that the individuals seated next to each other did not know each other.)

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2009 Judiciary Act: Part One

A group of law professors has offered to Congress four proposals for a Judiciary Act of 2009 that would make some changes in the composition and duties of the Supreme Court. In a series of posts this week, I will address those four proposals and present also my own proposal for reform.

The first proposal the professors offer is for regular appointments to the Supreme Court. The professors who offer this (not all the professors in the group sign on to each of the individual proposals) say that when the Justices stay on the Court for extended periods, the Court’s “many policy decisions” do not “reflect the moral and political values” of the general public. Instead of term limits, which exist in other countries and in the state courts, the professors propose that, in addition to filling in vacancies when a Justice retires or resign, the President should appoint one new Justice during the first session of Congress after each federal election. The nine most junior Justices would then sit to hear cases. The remaining Justices would be designated Senior Justices. A Senior Justice would fill in where an active Justice is unable to participate in a case. Senior Justices would also play a role in decisions to grant or deny certiorari.

Leaving aside the questions of whether the Court makes policy decisions and whether it is desirable for the Justices to be updated on contemporary mores, I generally agree with the goal of the proposal. I think turnover is healthy. Roberts and Alito have brought some welcome energy to the Court. Oral argument is more interesting nowadays with new voices weighing in (and with Roberts increasing the time available to lawyers to argue their cases).

The big issue here, as the professors recognize, is how to put this plan in action. Article III specifies that the Justices “shall hold their offices during good behavior.” The question, then, becomes whether a Senior Justice is still holding the office to which the justice was originally confirmed. David Stras and Ryan Scott have identified the relevant concerns in the context of lower federal judges taking senior status.

The professors have three possible ways to avoid a constitutional problem. One is to for the Court itself, rather than Congress, to decide which nine Justices hear a case. The second is to give a monetary bonus to Justices who retire early. A third is to make life unpleasant by restoring circuit riding.

I have a better fix.

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Government’s Monumental Speech

Yesterday a unanimous Supreme Court ruled that a city did not violate the First Amendment’s free speech clause when it rejected a religious organization’s request to erect a monument commemorating the “Seven Aphorisms of Summum” (a series of statements that Summum adherents believe that God gave to Moses) in a city park that already featured a number of monuments, including a Ten Commandments monument donated to the city by the Fraternal Order of the Eagles.

Among the issues presented by this case was whether the city can claim its choice of monuments as its own expression – i.e., as government speech. In past cases, the Court has made clear that government’s own speech is “exempt from First Amendment scrutiny,” leaving the government generally free to adopt and deliver whatever message it chooses when it speaks on its own behalf. Those unhappy with their government’s expressive choices can appropriately seek redress through political accountability measures — like lobbying the government to change its position or voting for new government decisionmakers — rather than through First Amendment litigation.

Writing for eight members of the Court, Justice Alito concluded that “the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause. . . . Government decisionmakers select the monuments that portray what they view as appropriate for the place in question, taking into account such content-based factors as esthetics, history, and local culture. The monuments that are accepted, therefore, are meant to convey and have the effect of conveying a government message, and they thus constitute government speech.”

But this still leaves the question of how courts should, as a general matter, decide whether contested speech is actually the government’s. For this reason Justice Souter separately concurred to express his “qualms” about “accepting the position that public monuments are government speech categorically” and urged the Court to “go slow” in defining the bounds of government speech. Cautioning against a per se approach to government speech disputes, he suggested that courts should instead ask “whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech . . . .”

In an article in last year’s Boston University Law Review, I proposed a test that seeks to address the concerns of Justice Souter (and others) about an uncabined and undertheorized approach to goverment speech. I urge that a public entity seeking to claim the government speech defense should establish that the contested expression is governmental in origin both formally (i.e., that the government claimed the speech as its own when it authorized the communication) and functionally (i.e., that onlookers understand the speech to be the government’s at the time of its delivery). This approach identifies two points at which government must expose its expressive choices to the public — when it decides to express a certain idea and when it actually communicates that idea — and thus seeks to maximize prospects that members of the public will have the information necessary to hold their government accountable for its expressive choices if they so desire.

Under this framework, I agree that the city’s choice of monuments should be considered its own speech. Like other speakers, government may use its own property for its own expressive purposes and, indeed, such choices provide valuable information to the public about its government’s values. The city can — and, in my opinion, did — claim the speech as its own when it transparently took ownership of certain monuments and selected them for permanent display in its own park (the respondent urged that the city be required to enact an official resolution publicly adopting “the message” to be conveyed by its monuments; while I agree that this is especially transparent, I do not agree that this is the only means by which the city may claim speech as its own in a way that facilitates political accountability). And absent express indications to the contrary, onlookers generally understand a message to spring from the owner of the property on which it appears. For this reason, a city’s choice to honor Robert E. Lee but not Ulysses Grant in a city park remains transparently governmental expression, as does a mayor’s decision to display only art advocating racial equality for its observance of Dr. King’s birthday.

Note, however, that constitutional constraints other than the free speech clause may still limit governmental speech. For this reason, even if a government’s choice of monuments is government speech exempt from free speech clause scrutiny, that government may run afoul of the establishment clause if it uses its speech to celebrate majority but not minority religions. (The Summum plaintiffs, however, did not allege a federal establishment clause violation in their complaint.)

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Delaware Gets Tough on National Issues

Del State Seal.gifScholars often detect a strengthening of Delaware corporate law amid national crises that can ignite interest in having the federal government increasingly preempt state corporation law. Two recent cases may support that conjecture, allowing some surprising claims to withstand motions to dismiss:

(1) a claim against AIG’s directors asserting that they presided, with sustained and systemic neglect to control, over what was essentially a “criminal enterprise”; and

(2) a claim against Citigroup’s directors asserting that they committed waste in approving a lavish payout to a departing CEO who presided over the destruction of billions of dollars of wealth at the corporation.

The opinions coincide with rising public outage over executive compensation and strict federal laws capping executive compensation for scores of public companies, mostly banks, but also automobile companies and finance affiliates. They coincide with ongoing frustration over the government’s injection of more than $120 billion into AIG while it continues to report staggering losses reportedly exceeding $50 billion this quarter alone.

Calls will continue for federal legislation that limits corporate executive compensation, taking away Delaware corporation law’s role on the subject; calls may heat up for broader federal preemption of a wide range of state law, certainly in banking and insurance, and just possibly corporation law as well, at least for institutions of systemic significance.

Whether Delaware is really responding to those threats or simply taking the cases on the merits, the two opinions are of considerable interest, even though written merely by the trial court and merely addressing motions to dismiss.

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Half Full or Half Empty?

Fed Chair Ben Bernanke testified before Congress today on the state of the economy. Striking a tone alternatively grim and hopeful, his testimony posed challenges for those required to sum things up in a pithy takeaway. Whether 2010 is a long time to wait for a recovery thus depends on whom you ask: The New York Times leads gloomily with “Fed Chief Says Recovery May Wait Until 2010 Or Later” while the comparatively cheery Washington Post reports that “The U.S. recession could end this year, paving the way for a ‘year of recovery’ in 2010.”

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Apologize to Chimps Too!

Today, publisher Rupert Murdoch apologized for the recent New York Post cartoon that some viewed as racially offensive in its attribution of Congress’ stimulus bill to a chimp. “Today I want to personally apologize to any reader who felt offended, and even insulted,” Murdoch, said. “I can assure you — without a doubt — that the only intent of that cartoon was to mock a badly written piece of legislation.”

Let’s not let chimps get stuck with a reputation for making bad laws.

As Jane Goodall and Frans de Waal have documented chimpanzees are highly social creatures. Among other things, chimps have long-lasting familial ties and they live in communities governed by complex social norms. Chimps cooperate in hunting and maintain social order through sophisticated forms of communication. They adopt orphaned siblings. They use tools for a variety of purposes. They mourn death. They have phenomenal memories. They can learn to complete complex tasks. They have highly individualized personalities. They engage in diplomacy and other political behavior. They patrol the boundaries of their communities (and sometimes they engage in warfare with outsiders).

Chimp law works quite well.

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The End of Lawyers?

Or so says British lawyer and technology constultant Richard Susskind, whose new book “The End of Lawyers? Rethinking the Nature of Legal Services” is summarized by globeandmail.com as follows:

“In Mr. Susskind’s vision of the future, small law firms that dispense customized legal advice will be pushed out of business by technology-savvy and more nimble firms that dispense run-of-the-mill advice and legal documents through websites. Larger law firms will evolve into commercial enterprises with vast stables of legal, accounting and other experts geared to preventing and managing clients’ legal risks. These big firms will outsource basic legal services to cheaper quasi-legal experts and they will build retail kiosks or websites that allow clients to download regulatory expertise and draft legal documents any hour of the day.”

Seems this is already happening, at least in the U.S.

(hat tip to Laura Spitz)

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The Gift That Keeps On Giving

For those teaching Constitutional Law this semester, then-Governor Blagojevich’s Senate appointment of Roland Burris is a gift that keeps on giving (for Illinois citizens, not so much). The Washington Post is reporting that Senator Burris “has acknowledged trying to raise money for ousted Gov. Rod Blagojevich before being appointed to the Senate. According to a transcript posted on the Chicago Tribune’s Web site, Burris told reporters Monday night in Peoria that after the ex-governor’s brother called him, he talked to some friends about putting together a fundraiser.”

This offers a terrific opportunity to introduce students to the Constitution’s little-discussed Article I, section 5, clause 2, which provides simply that each House may “with the Concurrence of two thirds, expel a Member.” So long as two thirds of the Senate were to agree, expulsion could be premised on any reason — including, but not limited to, suspicion of a quid pro quo for the Senate seat — or even no reason at all, since the Constitution does not delineate permissible justifications for expulsion. In other words, members of Congress serve at the will of their colleagues –protected only by the supermajority’s extremely high political bar.

The more contentious constitutional question remains whether the Senate could have refused to seat Burris as an initial matter, citing the provision that “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.” For a reminder of some of the arguments pro and con, see here, here, and here.