Category: General Law

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The Judiciary Dinner

Here is a curious fact that I thought I’d discuss briefly on Super Bowl Sunday.  For decades, one of the biggest events on Washington’s social calendar was the Judiciary Dinner, which was held at the White House for the Supreme Court Justices.  One of the most dramatic of these dinners occurred in January 1937 by Franklin D. Roosevelt right before he would announce his Court-packing plan.  (By all accounts, FDR enjoyed himself immensely.)

At some point this tradition ended, though I don’t know exactly when.  In general, social contacts between the Justices and the White House have declined sharply over the past fifty years.  This is still the custom that a new President pays a social call on the Supreme Court (President Obama did this in 2009), but that’s about all of the interaction that there is.

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Originalism and Same-Sex Marriage

A while back I wrote some posts stating that one day we would see originalist justifications for the inevitable Supreme Court decision holding that same-sex marriage cannot be prohibited by a state.  Turns out those justifications have already begun to appear, as there a lively discussion on Volokh ongoing about the issue.

“Originalism” is now the legal equivalent of “organic produce.”  We know that it’s better than non-originalism and non-organic, but we have no idea what the difference between them is.

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Andrew Sullivan

I wanted to note Andrew Sullivan’s retirement from blogging, which he announced yesterday.  I am a blogger because my CoOp colleagues gave me a chance in 2009.  I wanted to become a blogger because of Andrew Sullivan.  As a loyal reader for years and a Dish subscriber, I thank him and wish him well in whatever he does next.  Sometimes I feel burned out as a part-time blogger for six years.  He’s been doing it full-time for fifteen years, so its totally understandable that he would want to step away.

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Prosecuting Prosecutors for Perjury? 9th Circuit panel comes down hard on lying prosecutors issue

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Updated: 1-28-15: 2:10 PM, ET

Writing in the New York Observer, Sidney Powell began her column this way: “What will it take to produce honest and ethical conduct from our state and federal prosecutors? The Ninth Circuit has a suggestion. Perhaps a perjury prosecution will do it. In fact, that is exactly what should happen when prosecutors affirmatively lie. This case, Baca v. Adams, involves a clear violation of the Supreme Court’s decision in Napue, which holds that prosecutors cannot put on perjured testimony, much less lie themselves. Unfortunately, as I’ve documented elsewhere, it happens far too often, when it should never happen at all.” I urge readers to take a look at Sidney Powell’s column, which is both informative and powerful.

Even more so is the video of the exchange between Judges Alex Kozinski, Kim McLane Wardlaw, William Fletcher and  California Supervising Deputy Attorney General Kevin Vienna.

Early on in his opening remarks (16 minutes into video), Mr, Vienna stated: “A number of things happened that should have not happened, and we’re not here to defend them.” But he defend them he did, albeit guardedly. It was downhill from there. Things got even worse when Judge Kozinski and his colleagues weighed on the matter of prosecutorial perjury.

The clip is too extraordinary to quote — you really must see it. So, click on the video and watch how Mr. Vienna attempted to make the case for the State as the Judges dug deeper into the issue of proctorial perjury.

Over at Hercules and the Umpire, Judge Richard G. Kopf adds a few comments.

UPDATE: This from John Roemer writing in the Daily Journal (Jan. 27, 2015):

“Misconduct by Riverside County prosecutors has forced the reversal of a 1998 murder­for­hire conviction in a case that raised the ire of Circuit Judge Alex Kozinski and led to his demand that Attorney General Kamala D. Harris fix the situation.”

“Riverside County’s new district attorney, Mike Hestrin, said Monday in a media statement, ‘While we do not concede the prosecutorial misconduct was intentional or malicious … I am requesting that Mr. Baca’s murder case be returned to Riverside County to allow a retrial unmarred by even the appearance of impropriety or unfairness.'”

“. . . [Judge] Kozinski sought to pressure the state officials to resolve the case without having a federal court decide Baca’s appeal. ‘It will look terrible when we write it up and name names,’ he predicted.”

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45 FAN (First Amendment News) — Neuborne & Corn-Revere debate judicial campaign solicitation case

Burt Neuborne

Burt Neuborne

A libertarian and a liberal walk into a bar; the libertarian orders a shot of Kentucky Knob Creek while the liberal orders a glass of Napa Valley Merlot. True, they both like alcohol, but one prefers it with kick. If the metaphor holds true, Professor Burt Neuborne is the Merlot man and First Amendment lawyer Robert Corn-Revere is the strengthened spirits man.

The two seasoned First Amendment experts recently debated one another in a National Constitution Center podcast titled “Should elected judges be allowed to ask for donations?” Amicus briefs were submitted by both men in the Williams-Yulee v. The Florida Bar case (Neuborne et al here and Corn-Revere here). The friendly and illuminating podcast was moderated by Jeffrey Rosen, the President and CEO of the Center. Here are a few excerpts of that exchange:

This is kind of a mutual admiration society, although we are on different sides in this case.  — BN

Neuborne: “They were very careful in the White case to say that judicial elections may well be different because of the nature of what a judge does. . . . [O]nce [a] judge is elected, [he or she ] is expected to be absolutely impartial and not to tilt toward his political supporters and not to engage in the kind of behavior that we expect, and indeed want, congressional people to do. If you are elected as a congressman, you made promises to the electorate; you made pledges that you’re going to carry out certain policies. . . . Promises by a judge would make it very difficult for people who are appearing before that judge to think that the judge was in any way impartial. . . . We don’ t want the judge to lock himself or herself into a position that interferes with the mandate of judicial impartiality.”

“. . . You have to let judges raises enough money to be able to have a real campaign. . . . They have to be allowed to raise a significant amount of money and do real real elections. But the question is, how do they do it? Are they going to raise the money in a way that gives rise to an assumption . . . . that they are somehow bound to the people who gave them the money? . . . . The question is, in order to stop that from happening, can the States . . . . say that the judge can’t personally ask for money, people who support him can ask for money, but he can’t or she can’t personally ask of money, because that would threaten the integrity and impartiality of the process . . .”

Robert Corn-Revere

Robert Corn-Revere

Corn-Revere: “Once you make the choice to use popular elections certain things follow from that, and none of them are very easily addressed. . . . [When] you make judges into [political] candidates [who] are asking for people’s votes, they are not above the political fray. . . . [T]he judges . . . have to be able to talk about issues and have to be able to raise a certain amount of money. The question is whether or not having a direct fundraising appeal [actually] undermines that interest [in impartiality] . . . [In all of this, once judges run for office,]  then First Amendment [principles] override [the] kinds of restrictions the State seeks to impose [here].”

The question before the Court was: are these restrictions effective? . . . The opponents argued once you . . . allow judges to send a thank you note in response to individual contributions . . . and also to instruct their committees about who to approach, the additional ban on direct solicitations is ineffective . . . JR

Neuborne:  “. . . The argument is that the Florida statute is so honeycombed with exceptions that it doesn’t really advance the interests it is said to advance. . . . The question is: Is there something special about personal solicitation — which either puts more pressure on a lawyer [who might appear before the judge], or puts pressure on a litigant, or makes the public think that the judge would be more disappointed if you don’t respond to a personal solicitation or more grateful if you did respond to a personal solicitation — than this kind of backdoor solicitation by a proxy? I think reasonable people can differ over that. . . . I would argue that the stakes here are so high . . . that I would defer to Florida’s judgment that they want to have a risk averse prophylaxis . . . .”

Corn-Revere: “. . . . I think Burt’s summary of the problems of [with Florida’s law] was so succinct and so persuasive that I can’t believe we’re on different sides of the case. . . The difficulty is [that the Florida canon] only prohibits candidates from saying ‘please,’ it is does not prohibit them from saying ‘thank you.’ Hell, they can even host a barbecue for everyone who contributed to their campaign. If you look at the specific goals that [the Florida canon] seeks to address — first, preventing quid pro quo corruption . . .  — [and if you consider what it permits candidates for judicial election to do,] nothing in [the canon] addresses [that] quid pro quo corruption issue. The second interest — promoting impartiality and bias — again, once . . . you’re part of the political fray, you’re going to face those problems. The only issue . . . that [the canon] even attempts to address is the protection against coercion . . . . [But in this case there was no such problem with that.]”

“My view of the First Amendment is that it works in the opposite way [from what Burt suggested]; that it is the government’s burden   to demonstrate not only that there is a sufficient interest in restricting speech in any given instance, . . . but it also has to demonstrate that the means that it has chosen are narrowly tailored to address that interest and do in fact address that interest. That’s where I think [Florida’s canon] falls down.”

There is much more, and I urge everyone to hear the entire podcast, which you can find here.

 Aside: On February 3rd The New Press will release Professor Neuborne’s Madison’s Music: On Reading the First Amendment 

→ See also Jacob Gershman, “First Amendment Rights of Judges in the Spotlight,” WSJ, Jan. 27, 2015 (“In California, the state’s highest court has decided that judges there will no longer be allowed to belong to nonprofit youth organizations that discriminate on the basis of race, sex, sexual orientation or other criteria, effectively barring membership to the Boy Scouts of America.”)

Mary Beth & John Tinker file amicus brief in Supreme Court in 1- case 

Mary Beth Tinker

Mary Beth Tinker

“The need to prevent disruption of the school environment cannot justify restricting students who engage in peaceful symbolic speech simply because others may take boisterous exception.” — Amicus brief on behalf of Mary Beth & John Tinker.

* * * *

The case is Dariano v. Morgan Hill Unified School DistrictThe issue in the case is whether the Ninth Circuit erred (opinion here) by allowing school officials to prevent students from engaging in silent, passive expression of opinion because other students might react negatively to the message, thereby incorporating a heckler’s veto into the free speech rights of students, contrary to Tinker v. Des Moines Independent Community School District (1969).

The American Freedom Law Center is representing the petitioner with Robert Jospeh Muise as counsel of record.

Mary Beth Tinker and her brother John have filed an amicus brief in the Court with Robert Corn-Revere as counsel of record. Eugene Volokh and Ronald G. London and Lisa Beth Zycherman are also listed as counsel for amici curiae.’

Adam Liptak

Adam Liptak

Liptak Speaks at Cornell Law School

New York Times Supreme Court correspondent Adam Liptak recently spoke at Cornell Law School to give the Frank Irvine Endowed Lecture. The title of his remarks was “A New Deal for the First Amendment?”

As reported in the Cornell Chronicle, “Liptak mentioned another possible consideration in applying the law: If judging is, as he phrased it, “weighing competing interests” and “putting a thumb on the scale” in favor of marginalized speech, then should a deciding factor in applying the First Amendment be the relative power of the speaker? Though Liptak did not have an answer to this question, an audience member raised the possibility that a power-based consideration could lead to influential organizations, like major newspapers, being censored.”

Liptak was also quoted as saying: “‘I practiced First Amendment law for 14 years, and I drank the Kool-Aid,” he said, describing his previous faith in the amendment. ‘Over the years, many important decisions have been made using it, including allowing protestors near funerals and decriminalizing flag burning.’ However, he added, ‘there is something troubling we should think about: economic regulations being struck down on the basis of free speech.'”

Chemerinsky reviews three new First Amendment books  Read More

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LBJ Discusses the Supreme Court

80px-Lbj2I’ve posted before about Lyndon Johnson’s blunt tactics with respect to the Supreme Court (talking Justice Arthur Goldberg into leaving to become UN Ambassador, making Ramsey Clark AG to get Tom Clark off the Court, etc.)  In 1968, Chief Justice Warren attempted to retire, and I’ve recently come across the tapes on which LBJ discussed the vacancy and the subsequent unsuccessful nomination of Justice Fortas as his successor.  (LBJ, like Richard Nixon, also had White House tapes.)  If you’re interested, here is the link.  You get to hear LBJ . . . well . . . being LBJ.

 

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Vanderbilt Law Review, Volume 68, Number 1

The Vanderbilt Law Review is pleased to announce the publication of our January 2015 issue:

ARTICLES

Norman D. Bishara, Kenneth J. Martin, & Randall S. Thomas, An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants, 68 Vand. L. Rev. 1 (2015).

Amanda Frost, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?, 68 Vand. L. Rev. 53 (2015).

Randy J. Kozel, Original Meaning and the Precedent Fallback, 68 Vand. L. Rev. 105 (2015).

BOOK REVIEW

Edward L. Rubin, Statutory Interpretations and the Therapy of the Obvious, 68 Vand. L. Rev. 159 (2015).

NOTES

Daniel J. Hay, Baptizing O’Brien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct, 68 Vand. L. Rev. 177 (2015).

Mary C. Nicoletta, Proposed Legal Constraints on Private Student Lenders, 68 Vand. L. Rev. 225 (2015).

Jean Xiao, Heuristics, Biases, and Consumer Litigation Funding at the Bargaining Table, 68 Vand. L. Rev. 261 (2015).

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Netanyahu’s Address to a Joint Session is Not Unconstitutional

There have been some thoughtful posts recently (by Michael Ramsey and David Bernstein) arguing that PM Netanyahu’s upcoming speech to a Joint Session of Congress without presidential approval violates the Executive Branch’s exclusive prerogative “to receive ambassadors” and conduct foreign policy.  I respectfully dissent.

Prime Minister Netanyahu cannot enter the United States unless the State Department gives him a visa.  Thus, the President has the means of preventing this speech.  If he does not, then I submit that he is giving a constitutionally adequate sanction.  A more difficult case would arise if Congress issues the invitation after the foreign leader is here or if it invited a foreign ambassador who is based here.  In that case, I think the standard would be whether Congress is considering legislation related to the speech.  Here a new bill imposing sanctions on Iran is under active consideration, and if Congress wants to hear from Netanyahu or anybody else with something useful to say about that, I think that they can.  This is true even if the real purpose of inviting the leader or ambassador is to embarrass the President.

Now is this invitation is a good idea?  Ask a foreign policy expert.

 

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ROUNDUP: Law and Humanities 01.23.15

Austin Sarat, Matthew Anderson, and Cathrine O. Frank are the editors of an excellent publication, Law and the Humanities: An Introduction (Cambridge, 2014).  Included are a valuable chapter on the origins of the discipline by the three editors, “Three tales of two texts: an introduction to law and the humanities,” by Kathryn Abrams, a section on Ideas of Justice from the biblical to the postmodern by leading scholars in the field, and other important overviews of the movement. A worthwhile purchase for those interested. Contributors include Richard Sherwin, Christine Farley, Penny Pether, Jay Mootz, Ravit Reichman, and Desmond Manderson. The hardcover is a bit pricey at a list price of $155, but the paperback is $38, and the ebook is priced at $30.

Upcoming law and humanities conferences include the Association for the Study of Law, Culture, and the Humanities, which holds its annual meeting this year at Georgetown University Law Centre on March 6-7. Here’s the program.  In addition, the annual meeting of the Law and Society Association will be in Seattle at the Westin Seattle, from May 28 through the 31. This year’s theme is Law’s Promise and Law’s Pathos in the Global North and the Global South.