Category: General Law

Books 03
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Does Scholarship Really Have an Impact? The Article that Revolutionized Privacy Law

Does scholarship really have an impact? For a long time, naysayers have attacked scholarship, especially scholarship about law. U.S. Supreme Court Chief Justice Roberts once remarked: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.” He noted that when the academy addresses legal issues at “a particularly abstract, philosophical level . . . they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.” Judge Harry Edwards also has attacked legal scholarship as largely irrelevant.

Critics are quick to point out that much legal scholarship is not cited much — and many articles are never even cited by anyone other than the authors themselves in subsequent works.

But I think that a lot can be learned from the story of one of the most influential law articles of all. That article was Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harvard Law Review 193 (1890).

Brandeis Right to Privacy 02

Warren and Brandeis discussed how journalism was becoming more sensationalistic: “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.” And they expressed concern about a new technology they called “instantaneous photograph[y.]” — the new smaller and cheaper cameras being marketed by the Eastman Kodak Company that made it possible for candid photos to be taken.

Read More

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Pregnancy as Disability

When I teach family law, I briefly discuss the Pregnancy Discrimination Act. The basic hypothetical that I use is: Ace Employer makes no accommodations for any disabilities (other than what is required under the Americans with Disabilities Act). Betty Employee, a truck driver who has to lift heavy packages, becomes pregnant and requests an accommodation. Must Ace make an exception to its “no accommodation” policy? In Young v. UPS, the Supreme Court responded to a variation of that basic hypothetical. What happens to Betty (AKA Peggy Young) when Ace Employer (AKA UPS) accommodates some, but not all, “disabilities”? Read more from June Carbone and me here.

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Justice Jackson’s Error

97px-RoberthjacksonA subject that came up in my Bill of Rights seminar this semester is the fallacy that the rights included in the First Amendment were the most important ones because    . . . well, they came first.  Of course, this is wrong.  The First Amendment proposed by Congress to the states concerned the structure of the House of Representatives.  Our First Amendment was third in that list.

I think that the “First Amendment was first” error was first made by Justice Robert Jackson, who was a brilliant writer but not the most careful one.  Dissenting in Everson v. Board of Education, Justice Jackson said that religious “freedom was first in the Bill of Rights because it was first in the forefathers’ minds; it was set forth in absolute terms, and its strength is its rigidity.”  I’m looking for other examples though.

 

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The Indiana Religious Freedom Restoration Act

My adopted home state is getting a lot of criticism for enacting a state version of RFRA.  I’m not sure why.

The concern is that the statute will authorize many businesses to refuse service to gays and lesbians.  As far as I know, though, no case construing the federal version of RFRA or the other state versions has held that this fact-pattern is covered.  Now is such an interpretation possible?  Yes.  Do some of the legislators who supported this statute in Indiana want that interpretation to be the law?  Probably.  My only point, though, is that there’s nothing special about Indiana’s statute as compared to the one enacted by Congress in 1993 or by many other states, and none of them (so far) authorize discrimination based on sexual orientation.

 

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FAN 53.1 (First Amendment News) U. Maryland Law to Host Conference: “The Impact of the First Amendment on American Business”

e5eb96fc377fcf9f7e18eb56d245dca1The 2015 Symposium (March 27th), “The Impact of the First Amendment on American Businesses,” will facilitate a discussion on the effects and consequences of First Amendment jurisprudence on businesses. The symposium will specifically cover the areas of commercial speech, religious exemptions for businesses, and rights of businesses to use technology appropriately. This event will be located at University of Maryland Francis King Carey School of Law, and is open to anyone interested in attending, including students, lawyers, and scholars.

Welcome and Introductory Remarks
Dean Donald TobinUniversity of Maryland Francis King Carey School of Law

Keynote Speaker 1
Travis LeBlanc, Federal Communications Commission

Panel 1: First Amendment and Commercial Speech Relating to Health

Jane Bambauer, University of Arizona School of Law
Adam Candeub, Michigan State University College of Law
Stephanie Greene, Boston College & Greene LLP
Kathleen Hoke, University of Maryland Francis King Carey School of Law
Wendy Wagner, University of Texas at Austin School of Law

Panel 2: First Amendment and Technology

Hillary Greene,  University of Connecticut School of Law
James Grimmelmann, University of Maryland Francis King Carey School of Law
Glenn Kaleta, Microsoft Corporation
Renee Knake, Michigan State University College of Law
Neil Richards, Washington University School of Law
Felix Wu, Yeshiva University Benjamin N. Cardozo School of Law

Panel 3: Religious Exemptions for Corporations

Caroline Corbin, University of Miami School of Law
Michelle Harner, University of Maryland Francis King Carey School of Law
Louise Melling, American Civil Liberties Union
Jennifer Taub, Vermont Law School
Nelson Tebbe, Brooklyn Law School

Keynote Speaker 2

Tamara PietyUniversity of Tulsa School of Law

Closing Remarks

Danielle CitronUniversity of Maryland Francis King Carey School of Law

For additional information, please contact Joella Roland, Executive Symposium & Manuscripts Editor, via email at JoellaRoland@UMaryland.edu.

ht: Neil Richards 

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Griswold and the Bill of Rights

93px-WilliamodouglasThis is the 50th anniversary of Griswold v. Connecticut, and I’ve been thinking about the case as part of my research on the Bill of Rights.  As I’ve mentioned in prior posts, Griswold is the only Supreme Court opinion that reads the first set of amendments holistically (“emanations” and “penumbras”), and Justice Douglas’s opinion makes some other statements about the Bill of Rights that have proved quite influential.

Let’s start with the holistic point.  When the Court was issuing its liberty of contract cases from the 1890s until the 1930s, here’s what was not said:  “The liberty of contract can be derived from various guarantees in the Bill of Rights.  The Takings Clause protects property from expropriation without just compensation.  The Second Amendment protects our right to contract to buy guns.  The Third Amendment protects the home from a coerced rental of a room to a soldier.  The Fourth Amendment protects papers (including contracts) from unreasonable searches and seizures.  And then there is the Ninth Amendment.”

Why did the Court not approach the liberty of contract in this way?  One reason is that there was no idea then that the first set of amendments should be read together or were special.  Second, none of these rights (except for Takings) applied to the states, thus to use them to support an unwritten right that would bind the states would have been odd.  The holistic reading in Griswold, in other words, was the product of the growth in the importance of the Bill of Rights by 1965 and the related success of incorporation.

Next, Griswold settled the longstanding debate about whether the Ninth Amendment was in the Bill of Rights.  You can find several Supreme Court opinions before this that define the Bill of Rights as the first eight amendments.  But Griswold says quite clearly that the Ninth is part of the holistic reading, and since then the Court has not revived the “first eight amendments” definition.

Finally, Griswold introduced the idea that rights or structural protections that predate the Bill of Rights must be really important because they are “older than the Bill of Rights.”  This trope has appeared in many opinions since 1965, though I’m still researching that point.

More on the Bill of Rights tomorrow . . .

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Stanton Biography

When I was working on my Bingham book, I remarked that we could use a new biography of Edwin M. Stanton, Lincoln’s principal Secretary of War and a leading figure during Reconstruction.  I learned the other days that a new biography of Stanton will come out next month.  I can’t vouch for this one yet (I’ve just pre-ordered), but Civil War buffs may find this irresistible.

UPDATE:  Unfortunately, I’ve now read this book and it’s quite terrible.  Sorry if you bought it based on my  initial post.

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FAN 53 (First Amendment News) Justice Sotomayor joins in discussion of Burt Neuborne’s New Book (“Madison’s Music”)

[My colleague Anthony Kennedy’s] approach to [the First Amendment], unlike some of my other colleagues,  is born on a very, very, almost fanatical belief that . . . the essence of democracy is no regulation of speech. Justice Sonia Sotomayor (March 13, 2015)

How could the pie get much sweeter? I mean, who among us is so fortunate as to have a sitting Supreme Court Justice travel to discuss a book we have just published?

Answer: Professor Burt Neuborne.

It is as rare as it is true — on March 13, 2015 Justice Sonia Sotomayor ventured to New York University Law School to join with Dean Trevor Morrison to discuss (for one hour or so) Neuborne’s Madison’s Music: On Reading the First Amendment (The New Press, 2015).  

Burt Neuborne, left, Sonia Sotomayor, & Trevor Morrison

Professor Burt Neuborne, left, Justice Sonia Sotomayor, & Dean Trevor Morrison

As it turned out, the pie did get sweeter when Justice Sotomayor first praised and then commented  on  Madison’s Music: “It’s a fun book for someone who’s not immersed in the law,” she said. “It’s so well written that I heard Burt’s voice in my head as I was reading it. I consider that the highest of compliments to an author.”

Later she asked: “You say that the focus of the First Amendment is democracy. You invite your thesis as a different way of interpreting the Constitution. So who decides what promotes democracy? People disagree about it all the time. How do you define democracy? Is it something like one person, one vote? What are its structures?”

Neuborne: “I’m sort of shocked that you asked that, because it’s clear that I define it,” he said jokingly, to audience laughter. “But Sotomayor prevailed with the wry rejoinder, ‘No, no, no, you forget, I do,’ “prompting an eruption of mirth and applause.”

“I don’t know what will be the final denouement of a judicial discussion about whether unlimited campaign spending is the best way to have a good democracy or a bad democracy,” Neuborne added. “But I would rather have judges asking that question among themselves than pretending to decide the case by deciding what seven words mean — ‘Congress shall make no law abridging speech’ — and having it be sort of automatic, without even thinking about the consequences for democracy.”

When Neuborne took issue with the Roberts Court’s campaign finance line of cases, Justice Sotomayor asked: “How does a Madisonian judge strike on balance [when it comes to those] laws?” To which Neuborne replied: “Great question.” He then proceeded to discuss cases going back to Buckley v. Valeo (1976) and up to the Court’s latest rulings in this area. He took pointed exception to the Court’s “narrow, bribery, quid quo pro definition of corruption.”

Speaking in a very animated way, Neuborne was equally critical of the Court’s notion (one that “I genuinely . . . don’t understand”) that “contributions can create a risk of corruption because you give the money directly to a candidate, but the unlimited spending of money, without coordination with the candidate, doesn’t create a risk of corruption . . . .” He thought that citizens and judges alike need to ask themselves: “What kind of democracy are we trying to protect here?”

Returning more directly to his answer to Justice Sotomayor’s question, Neuborne remarked: “Everybody’s political power should be equal in a democracy, and money shouldn’t corrupt that idea. . . . I think if they adopted a Madisonian reading of the First Amendment  we would change campaign financing regulation overnight.”

Neuborne on Justice Anthony Kennedy

[Justice Kennedy is] the most important First Amendment Judge that has ever sat on the Supreme Court. . . . 

Federal Judges Get Free Book

At the outset of his remarks Professor Neuborne thanked his publisher, The New Press, “a non-profit press that remembers the responsibility of a truly free press in placing new and challenging ideas before the public, and who has helped in making the book available both to every federal judge and in donating the books outside [here today] for you.” 

There is much more, about democracy, free speech, substantive due process, the Second, Third, and Ninth Amendments, media corporations, partisan gerrymandering, and the rule of unelected judges. See video of the event here.

I will be doing a Q&A with Professor Neuborne concerning his new book, the First Amendment, and other things that matter to those in the First Amendment community (divided as it is).

On Corporations: Point – Counterpoint 

 Adam Liptak, “First Amendment, ‘Patron Saint’ of Protesters, Is Embraced by Corporations,” NYT, March 23, 2015

Damon Root, “The New York Times, a Corporation, Worries That the First Amendment Is Now ‘Embraced by Corporations,'” Reason.com, March 24, 2015

Amanda Shanor

Amanda Shanor

“Adam Smith’s First Amendment” — DC Circuit Comes Under Fire

That is the title of a new essay by Robert Post and Amanda Shanor, one that appears in the Harvard Law Review Forum. What troubles the authors is the “recent and aggressive expansion of commercial speech doctrine,” one that they argue has resulted in a “striking turn in our constitutional order.”

The essay was prompted by a decision by the Court of Appeals for the District of Columbia in a case named Edwards v. District of Columbia (2014). (Ms Shanor, a Yale PhD in law candidate and a Yale Law School graduate, is a former law clerk to Judges Judith Rogers (2012-2013) and to Cornelia T.L. Pillard (2013-2014) of the Court of Appeals for the D.C. Circuit.) Read More

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The 800th Anniversary of Magna Carta

Next month marks the 800th anniversary of Magna Carta.  To celebrate that occasion, we will have three guest posts on April 15th by Renee Lerner (George Washington University Law School), Joyce Malcolm (George Mason University Law School), and Thomas McSweeney (William and Mary Law School).  We look forward to their posts.

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FAN 52.1 (First Amendment News) Court denies review in false political ads law case

This morning the Court released its latest order list. The Court denied cert in Arneson v. 281 Care Committee (see state’s cert. petition here). The Minnesota law challenged in the case provides:

A person is guilty of a gross misdemeanor who intentionally participates in the preparation, dissemination, or broadcast of paid political advertising or campaign material . . . with respect to the effect of a ballot question, that is designed or tends to . . . promote or defeat a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.

Applying a strict scrutiny standard of review, the Eight Circuit ruled that the law was not narrowly tailored to comply with First Amendment requirements, though the Eight Circuit panel also ruled that the state attorney general was immune from suit under the Eleventh Amendment.

 Tomorrow the Supreme Court will issue opinions in argued cases (see listing below) and may do so again on Wednesday.

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The next great First Amendment battleground, it turns out, is on the back of your car. — Adam Liptak (2009)

UnknownThis morning at 10:00 a.m. ET the Court is hearing oral arguments in the Texas license plate case, Walker v. Texas Division, Sons of Confederate Veterans, Inc. The case was argued by R. James George Jr. on behalf of the Respondent and by the state’s Solicitor General, Scott A. Keller. Some of the more notable amicus briefs were filed by:

See here re an earlier post re license plate cases breakdown of cases and sampling of scholarly literature.

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Friedrichs v. California Teachers Association, et al.
  6. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Arneson v. 281 Care Committee
  2. ProtectMarriage.com-Yes on 8 v. Bowen
  3. Kagan v. City of New Orleans
  4. Clayton v. Niska
  5. Pregnancy Care Center of New York v. City of New York 
  6. City of Indianapolis, Indiana v. Annex Books, Inc.
  7. Ashley Furniture Industries, Inc. v. United States 
  8. Mehanna v. United States
  9. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  10. Vermont Right to Life Committee, et al v. Sorrell