Category: General Law

0

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

Unknown4

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

10

The Supreme Court and IP

I would like to dissent from a recent trend that I see in IP. Two recent certiorari petitions (still pending) are asking the Court to get involved in doctrines that they have left alone for decades–the right of publicity and design patents.  These petitions are supported by many scholars that I respect, but I submit that they are making a mistake in asking for this sort of intervention.

While there are significant First Amendment issues raised by the right of publicity, I see no indication that publicity law is working poorly and needs help for the Justices.  Moreover, I see no reason to think that the Justices will actually be helpful in an area of law that they know nothing about.  Design patent, I think, is the same story, though there the argument for Supreme Court action is even weaker given the absence of any constitutional concerns.

I’m not against asking the Supreme Court to decide IP cases.  Far from it.  With respect to utility patents, there was (and still is) a need to rein in the Federal Circuit’s errors and excesses.  In the two areas that I’m highlighted, I think the Court will just mess things up and should stick with “Do No Harm.”

8

Bingham on Natural-Born Citizenship

I learned recently that there is an Internet meme that John Bingham took a view that means Barack Obama is not eligible to be President.  This argument suffers from the flaw of being wrong, so let’s discuss.

For starters, it’s worth noting that the Natural Born Clause was never addressed during Bingham’s career in Congress.  Thus, he never gave a speech about the Clause or thought much about it.  In some speeches on other citizenship issues, though, Bingham said that someone born here to parents not bearing allegiance to another country was a native-born citizen.  Aha!  President Obama’s father was a Kenyan citizen, so he did bear allegiance to another nation. This means Obama, despite being born here, is not natural born.

Well, no.  What Bingham meant by allegiance (note he did not say that both parents must be American citizens) was the common-law understanding that birth made you a citizen unless:  (1) your parent was a foreign diplomat; or (2) your parent was a foreign soldier who was occupying American territory.  Diplomats and soldiers bear allegiance to a foreign sovereign in a manner that is very different from the average person.  (Slavery was the exception to the common law rule and Bingham strongly condemned that exception.)

Accordingly, Bingham did not say anything that undercuts the President’s eligibility (or Ted Cruz’s, for that matter).  Nice try.

 

3

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)
3

Happy Birthday John Bingham!

96px-BinghamFacingForwardToday is the 201st anniversary of John Bingham’s birth.  This is an excellent time to announce that my biography of him is coming out in paperback and is now available for pre-order.

I’ve reflected further on Bingham’s life since writing the book and wanted to share my thoughts.  The book concentrated on explaining the development of Bingham’s thinking to help those seeking to understand Section One of the Fourteenth Amendment.  I also wanted to show that Bingham was the central figure in shaping America’s policy during Reconstruction, in contrast to the orthodox view that Thaddeus Stevens was the dominant figure.

I think, though, I did not fully capture how innovative Bingham was.  Part of the problem with his Reconstruction policy was that it was far ahead of its time.  He emphasized individual rights (including the incorporation of what he called the Bill of Rights), voting rights, and the power of textual limitations on racism.  These things eventually came to pass, but not in his era.  When we say that a scientist, an artist, or an author is ahead of her time, that is a compliment.  For a politician, it’s a criticism.  Bingham was unable to see that Stevens was right in focusing attention on addressing economic inequality in the South. Perhaps that strategy could not have succeeded, but then again Bingham’s also did not in his time.

In this presidential election cycle filled with many dispiriting statements, I want to repeat a quote from Bingham that closed the book and best expresses his creed:

When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken, where the holy Temple of Freedom, the foundations of which our fathers laid amidst prayers, and sacrifices, and battles and tears, shall be complete, lifting its head-stone of beauty above the towers of watch and war, then conscious of duty performed, and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands–come.

0

Take Care Tea Leaves

The most interesting aspect of the Court’s certiorari grant in the immigration case yesterday was its decision to add a Question Presented on the constitutionality of the President’s Executive Order.  It strikes me that this is an ominous development if you think that the Order should be upheld.

I think it’s very unlikely that the Court will reach the merits of the claim that the President is violating the Take Care Clause with his immigration/deportation policy.  (Though Justice Thomas might write a separate opinion about this).  But adding this question gives the Court room to execute Chief Justice Roberts’ bread-and-butter play–reading the relevant statutes to avoid a constitutional question by saying that the Order was not authorized by Congress.

0

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

0

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.

 

7

FAN 93.1 (First Amendment News) Ira Glasser on Free Speech & “Trendy Liberals”

The following comments were sent to me by Ira Glasser in response to the lead item in FAN 93: “What’s Wrong with the First Amendment?” — Steven Shiffrin’s Book Coming This Summer (Jan. 13, 2016). Among other things, Mr. Glasser was the executive director of the American Civil Liberties Union from 1978 to 2001. I asked Mr. Glasser if he would share his comments with our readers; he kindly agreed.

One additional point: FAN’s mission is both to share news and (from time to time) to provide a forum for spirited and informed dialogue. It is in that spirit that Mr. Glasser’s comments are offered up for your consideration. — RKLC    

 * * * *

Ira Glasser

Ira Glasser

Thanks for your preview of Professor Steven Shiffrin’s forthcoming book, What’s Wrong with the First Amendment (Cambridge University Press, summer 2016).

That we have a deconstruction of the First Amendment from the “liberal” side of the political spectrum should come as no surprise: The Venn diagram of “liberals” and “civil libertarians” has always had a smaller overlap, a smaller common ground than widely assumed. In general, they have been distinct sets of beliefs, often inaccurately conflated in the warm bath of political labels.

Most liberals have always favored one exception or another to their support of free speech, and most Americans, including most people who regard themselves as conservative, have always vigorously supported free speech, as long as it was theirs, or that of folks whose views they supported.

What those who supported the First Amendment rights of the self-styled neo-Nazis in Skokie (despite hating everything they said or represented) understood is that there was no way to support the ordinances used to restrict their speech without also inviting and legitimizing the use of similar, even identical ordinances by Southern towns against Martin Luther King, Jr. and his colleagues or against anti-Vietnam war protesters in Manhattan. In fact, such ordinances were so used against both.

Those “liberals” who now question whether the First Amendment should apply to speech they hate, or which causes them “emotional distress,” seem to believe that because they are clever enough to imagine doctrinal distinctions between certain speech content that such distinctions can hold true in the real world in which such decisions are politically made, and by “politically” I include the judiciary.

Sample Current Headlines 

Is the Left Killing Free Speech?” (Radio West, Dec. 18, 2015)

Freedom of Speech More Unwelcome Among Liberal Students, Faculty” (Daily Caller, Nov. 22, 2015)

Why Do Liberals Hate Free Speech?” (Washington University Political Review, Oct. 12, 2015)

The Anti-Free-Speech Movement at UCLA” (The Atlantic, Oct. 15, 2015)

The critical question about such distinctions is always who decides? Smart people can always make analytic distinctions inside their heads, and construct defensible justifications for their distinctions. But who shall decide how to apply them in the real world? It will always be the government. So who, in fact, will decide?

Prof. Steven Shiffrin

Prof. Steven Shiffrin

Law professors intoxicated by their own cleverness seem always either to ignore that question or implicitly assume it will be them, or people like them, when in fact it will most often, or often enough, be people like Joe McCarthy, Richard Nixon, Ronald Reagan, Dick Cheney, Rudy Giuliani and Jesse Helms.

What causes Professor Shiffrin emotional distress may be one thing, but what causes Richard Nixon or Rudy Giuliani emotional distress will be, and actually has been, quite different. And it will be they, not Professor Shiffrin, who will be in a position to decide which speech to permit, and which to prohibit under that vague and necessarily subjective standard.  And ditto many, if not most, judges.

Not to mention the tendency of free speech believers whose support for free speech when they are not in office is often much diminished once they have political power. Take John Adams, for example, and even Thomas Jefferson, both of whom proved to be better civil libertarians and free speech advocates when they were not president than when they were.

Not to mention either the parade of presidents of both parties who have without exception supported and maintained the growth of legalized secrecy – promiscuously overbroad classified information – as a way of preventing free speech and democratic debate by selectively removing information essential to that debate, and then criminalizing its disclosure (e.g., Daniel Ellsberg, Edward Snowden). I have not seen many law professors or judges construct a First Amendment theory to remedy that problem.

As you say, we will have to await Professor Shiffrin’s book before we have answers. But I will not be surprised if he, implicitly if not explicitly, rests his thesis on the premise that wise folks like him will make and enforce the additional legal distinctions he favors between presumptively beneficial and presumptively harmful speech.

Nor will I be surprised if Professor Shiffrin’s book does not adequately come to grips with the problem of how such “balancing” standards as he may recommend, establishing new limits on speech, will be interpreted and enforced by those who have political power against those who do not.

Broadening standards for restricting speech, and proposing new criteria to balance against the right to freedom of speech that does not take such considerations into account is a conceit that in practice will endanger freedom of speech and the dissent it is intended to protect. As the pamphleteers of the founding generation knew, rights, including rights of dissent, are always fragile and vulnerable, while power is voracious, relentless, ever expanding. And given more grounds to restrict speech, power will take them. If that is at the heart of Professor Shiffrin’s theory, it will not be the first time such a conceit lies at the foundation of a theory of benevolent censorship: it goes back to Plato.

This theory continues to gain ground among liberals. As for the ACLU, despite its continued strong advocacy of free speech in areas like national security, I note in passing that in the areas where speech comes into conflict with other causes the ACLU justly supports (like equality rights and anti-discrimination on the basis of skin color, gender and sexual orientation), its vigorous advocacy for content-neutral free speech rights has diminished as the organization has transformed itself incrementally but to a significant extent from a uniquely civil liberties group to a trendy liberal interest group – not the same thing.

See also

 FAN 49: “ACLU “2015 Workplan” sets out narrow range of First Amendment Activities” (Feb. 25, 2015), and FAN 50: “ACLU’s 2015 Workplan & the First Amendment — Anthony Romero Responds” (March 4, 2015)

Wendy Kaminer, “The American Liberal Liberties Union,” Wall St. Journal, May 23, 2007

 Aryeh Neier, Defending My Enemy: American Nazis, the Skokie Case & the risks of Freedom (1979)

 David Goldberger, “Skokie: The First Amendment under Attack by Its Friends,” Mercer Law Review (1978)

0

Vanderbilt Law Review, Volume 69, Number 1

The Vanderbilt Law Review is pleased to announce the publication of our January 2016 issue:

ARTICLES

Rebecca Haw Allensworth, The Commensurability Myth in Antitrust, 69 Vand. L. Rev. 1 (2016)

Avlana K. Eisenberg, Incarceration Incentives in the Decarceration Era, 69 Vand. L. Rev. 71 (2016)

Emily Hammond & David B. Spence, The Regulatory Contract in the Marketplace, 69 Vand. L. Rev. 141 (2016)

NOTES

Samiyyah R. Ali, The Great Balancing Act: The Effect of the America Invents Act on the Division of Power Between the Patent and Trademark Office and the Federal Circuit, 69 Vand. L. Rev. 217 (2016)

Kelsey Craig, The Price of Silence: How the Griffin Roadblock and Protection Against Adverse Inference Condemn the Criminal Defendant, 69 Vand. L. Rev. 249 (2016)