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Introducing Guest Blogger Nancy E. Dowd

dowd-nancyI am delighted to welcome Professor Nancy E. Dowd who will be joining us for a guest visit this month.  Professor Dowd holds the David H. Levin Chair in Family Law at the University of Florida, Levin College of Law.  Professor Dowd’s research focuses on social justice issues connected to family law, and therefore touches on not only family law but also juvenile law, constitutional law, race and gender analysis, and social change theories. She is currently engaged in research and writing about a developmental model of equality and focusing on the life course of African American boys from birth to age 18.  Two of Professor Dowd’s most recent books focus on the radical reform needed in the juvenile justice system.  Justice for Kids: Keeping Kids Out of the Juvenile Justice System (NYU Press 2011) brings together activists and scholars to articulate ways to keep kids out of the juvenile justice system, by diversion into other more helpful and supportive resolutions.  A New Juvenile Justice System: Total Reform for a Broken System (NYU Press 2015) articulates the vision of a new youth justice system focused on child well being and public safety. Her other recent book is The Man Question: Male Privilege and Subordination (NYU Press 2010), in which she explores masculinities theories as a means to expand gender analysis and also incorporate other hierarchies that affect gender, particularly race and class.

Professor Dowd served as the Director of the Center on Children and Families at the University of Florida, Levin College of Law until 2015, and in that role focused on issues of juvenile justice, social justice, non-traditional families, gay and lesbian rights, and collaboration with the Center for the Study of Race and Race Relations on issues of race and families. While director, she was also involved with successful grants that established the Intimate Partner Violence Assistance Clinic led by Professor Teresa Drake, a groundbreaking collaboration between law and medicine to establish a cutting edge clinic. That work has exposed the importance of trauma informed scholarship and service, and feeds back into Professor Dowd’s current scholarship as well.

Her other recent publications include:

  • A Developmental Equality Model for the Best Interests of Children, in Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-Being (Elaine E. Sutherland & Lesley Anne Barnes Macfarlane, eds., Cambridge University Press, forthcoming 2016)
  • Collaborative Law at Divorce in the United States, in “Le ragioni degli altri”. Mediazione e famiglia tra conflitto e dialogo: una prospettiva comparatistica ed interdisciplinare (“The reasons of the others.” Mediation and family between conflict and dialogue: a comparative and interdisciplinary perspective) (Elena Urso ed. 2014).
  • Unfinished Equality: The Case of Black Boys, 2 Ind. J.L. & Soc. Equality 36 (2013)
  • What Men? The Essentialist Error of The “End of Men,” 93 B.U. L. Rev. 1203
  • Asking the Man Question: Masculinities Analysis and Feminist Theory, in Exploring Masculinities: Feminist Legal Theory Reflections (Michael Thomson & Martha Fineman eds., Ashgate 2013)
  • Sperm, Testosterone, Masculinities, and Fatherhood, 13 Nev. L.J. 101 (2013)
  • Fatherhood and Equality: Reconfiguring Masculinities, XLV Suffolk U. L. Rev. 1049 (2012)
  • Masculinities and Law: Feminist Legal Theory Meets Masculinities Theory (with Nancy Levit & Ann McGinley), in Masculinities and Law: A Multidimensional Approach (Frank Rudy Cooper & Ann McGinley eds., New York University Press, 2012)

You can find her ssrn page here

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Vanderbilt Law Review, Volume 69, Number 3

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

ARTICLES

Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 Vand. L. Rev. 585 (2016)

Elizabeth Pollman, Constitutionalizing Corporate Law, 69 Vand. L. Rev. 639 (2016)

Robert J. Rhee, Intrafirm Monitoring of Executive Compensation, 69 Vand. L. Rev. 695 (2016)

NOTES

Calvin Cohen, How to Assert State Sovereign Immunity Under the Federal Rules of Civil Procedure, 69 Vand. L. Rev. 761 (2016)

Margaret Dodson, Bruton on Balance: Standardizing Redacted Codefendant Confessions Through Federal Rule of Evidence 403, 69 Vand. L. Rev. 803 (2016)

Matt J. Gornick, Finding “Tapia Error”: How Circuit Courts Have Misread Tapia v. United States and Shortchanged the Penological Goals of the Sentencing Reform Act, 69 Vand. L. Rev. 845 (2016)

Laura K. McKenzie, The Right to Domain Silent: Rebalancing Tort Incentives to Keep Pace with Information Availability for Criminal Suspects and Arrestees, 69 Vand. L. Rev. 875 (2016)

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UC Davis Law Review, Issue 49:4 (April 2016)

Lecture

Information Fiduciaries and the First Amendment
Jack M. Balkin

Articles

The Pendulum Swings: Reconsidering Corporate Criminal Prosecution
David M. Uhlmann

Predatory Management Buyouts
Iman Anabtawi

Bankrupt Rivers
Rhett Larson & Kelly Kennedy

Safe Harbors, Sure Shipwrecks
Susan C. Morse

Arctic Energy Cooperation
Hari M. Osofsky, Jessica Shadian & Sara L. Fechtelkotter

Essay

Navigating the Uber Economy
Benjamin Means & Joseph A. Seiner

Note

Definitional Avoidance: Arbitration’s Common-Law Meaning and the Federal Arbitration Act
Niall Mackay Roberts

lawreview.law.ucdavis.edu

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FAN 106.1 (First Amendment News) Sheriff Dart Petitions Court — Contests Posner Opinion in “Adult Services” Ad Case

Michael F. Williams, lead counsel for Sheriff Dart)

Michael F. Williams (lead counsel for Sheriff Dart)

Cook County’s Sheriff Thomas Dart is back on the legal news with a cert. petition filed today in the Supreme Court (Dart v. Backpage.com). The Sheriff is being represented by Michael F. Williams (counsel of record) of Kirkland and Ellis. Also on the brief are Anita Alvarez (Cook County State’s Attorney), Paul A. Castiglione, Sisavanh B. Baker, and Jill V. Ferrara (Assistant State’s Attorneys). In other words, Cook County is spending some big money to contest Judge Richard A. Posner’s ruling in Backpage.com v. Dart (7th Cir., Nov. 30, 2015).

First the factsBackpage.com is the second largest online classified advertising website in the U.S., after Craigslist. Users post more than six million ads monthly in various categories, including buy/sell/trade, automotive, real estate, jobs, dating and adult. Users provide all content for their ads; Backpage.com hosts the forum for their speech. Sheriff Dart wanted to eliminate online classified advertising of “adult” or “escort” services. And why? As the Sheriff saw it, such ads were little more than solicitations for prostitution. He also argued that these ads facilitate human trafficking and the exploitation of children. Last June the Sheriff sent letters to the CEOs of Visa and Mastercard to “request” that they “cease and desist” allowing their credit cards “to be used to place ads on websites like Backpage.com, which we have objectively found to promote prostitution and facilitate online sex trafficking.” It worked; the companies blocked the transactions. On August 21, 2015, a federal district court denied Backpage.com’s motion for a preliminary injunction, though it had previously granted a TRO in the case.

Back page appealed and prevailed.

Sheriff Thomas Dart

Sheriff Thomas Dart

The 7th Circuit Ruling: In true Posnerian form, the Judge’s opinion was blunt (“The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation”), skeptical of dubious claims (“[A]s explained in an amicus curiae brief filed by the Cato Institute, Reason Foundation, and DKT Liberty Project, citing voluminous governmental and academic studies, there are no reliable statistics on which Sheriff Dart could base a judgment that sex trafficking has been increasing in the United States”), and not prudish in its discussion of adult sex (“One ad in the category “dom & fetish” is for the services of a “professional dominatrix”— a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually. See What It’s Actually Like Being A Dominatrix” [link omitted]).

Moreover, Posner was not one to blindly accept convenient rationalizations made by counsel on appeal: “At oral argument Dart’s attorney reminded us that ‘nowhere in Sheriff Dart’s letter does it say that he thought that they [the credit card companies] were accomplices to a crime.’ But the letter implies that they are—and it was the letter that prompted the credit card companies to abandon Backpage. They are unlikely to reconsider on the basis of a lawyer’s statement at oral argument, months after the initial threat.”

And then there was the no-nonsense injunction Judge Posner issued in the case:

Sheriff Dart, his office, and all employees, agents, or others who are acting or have acted for or on behalf of him, shall take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being provided to Backpage.com.

Sheriff Dart shall immediately upon receipt of this order transmit a copy electronically to Visa and MasterCard and all other recipients of his June 29, 2015, letter (includ- ing therefore the directors of and investors in Visa and MasterCard), as well as to the Chief Inspector of the United States Postal Service.

Backpage.com shall not be required to post a security bond.

 The Cert. Petition

 Counsel for Sheriff Dart advance two main arguments:

  1. “The Injunction Entered by The Seventh Circuit in This Case Impermissibly Restrains Petitioner’s Own Rights to Speak About Matters of Public Concern,” and
  2. “The Seventh Circuit Erred, in Conflict With Decisions of Other Federal Circuit Courts, in Holding the Mere Threat of Government Action, Without More, Could Establish an Unlawful Prior Restraint”

In the Sheriff’s cert. petition, Mr. Williams argues:

Ultimately, the Seventh Circuit directed the entry of an injunction against Sheriff Dart because credit card companies, voluntarily and independent of any supposed threat by the Sheriff, decided to cut ties with Backpage. The injunction restrains the Sheriff’s own protected speech on matters of public concern, and the injunction interferes with the Sheriff’s efforts to administer important policies on behalf of the people of Cook County. The court erred, in conflict with rulings by this Court and other federal court of appeals, in entering the injunction. The Sheriff respectfully asks this Court to grant the petition for writ of certiorari in order to address the important First Amendment issues raised here.

Robert Corn-Revere was lead counsel for Backpage in the Seventh Circuit.

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Federal Trade Secret Law

I just wanted to note that Congress has passed a new federal trade secret remedy, which the President intends to sign into law.  Who says that nothing gets done in Washington.  (Though I doubt that this is a good move.)  The Act does not preempt state trade secret law, so it remains to be seen how much of a role the new federal remedy will have.

stairway-to-heaven-1319562-m-720x340
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FAN 106 (First Amendment News) The Heffernan Case, the Chief Justice’s Curious Vote, the Significance of Justice Scalia’s Absence, & the Importance of Motive

Officer Jeffrey Heffernan (Courtesy of Jeffrey Heffernan)

Officer Jeffrey Heffernan (Courtesy of Jeffrey Heffernan)

Yesterday the Court handed down Heffernan v. City of PatersonIt was the 43rd First Amendment free expression opinion handed down by the Roberts Court (count includes per curiams). It was Justice Stephen Breyer’s fifth majority opinion while serving on that Court. That puts Justice Breyer tied with Justices Anthony Kennedy and Antonin Scalia, but still way behind the Chief Justice (15 majority/plurality opinions).

The Roberts Court & Government Employee Speech 

Heffernan  was the seventh case heard by the Roberts Court involving a First Amendment employee speech claim (initials = those of author of majority opinion):

  1. ™ Garcetti v. Ceballos (2006) [5-4, per AK] [government employee speech]
  2. ™ Locke v. Karass (2009) [9-0, per SB] [government employee unions]
  3. Knox v. Service Employees International Union [7-2, per SA] [government employee unions]
  4. Lane v. Franks (2014) [9-0 per SS] [government employee speech]
  5. Harris v. Quinn (2014) [5-4, per SA] [employee unions]
  6. Friedrichs v. California Teachers Association, et al  [4-4, per curiam] [employee unions]
  7. Heffernan v. City of Paterson (2016) [6-2, per SB] [government employee speech]

Note that while Chief Justice Roberts was in the majority in all of these cases, he never assigned an opinion to himself. The case was argued a month before Justice Antonin Scalia died, which means that if the Chief Justice were indeed in the majority, he probably assigned the opinion to Justice Breyer at that time. But consider in this regard what is set out below.

The Significance of a Scalia Vote?

Notably, Chief Justice Roberts voted to sustain the First Amendment claim in this government employee speech. This is significant given what he said in oral argument:

Well, but the ­­ the First Amendment talks about abridging freedom of speech, and I thought the case came to us on the proposition that he wasn’t engaging in speech at all. That he was not engaging in association, he was not engaging in trying to convey a message, he was just picking up a sign for his mother. And if that’s the basis on which the case comes to us, I’m not sure how he can say his freedom of speech has been abridged. . . . My point is that maybe this shouldn’t be a constitutional violation if there are adequate remedies to address what may ormay not be a First Amendment issue.

This point was echoed by Justice Antonin Scalia in oral arguments: “He wasn’t associating with anybody any more than he was speaking. He was doing neither one.”

Those are notable points, ones that can be said to go to the core of the issue in the case. Justice Clarence (joined by Justice Samuel Alito) spoke to this very point in his Heffernan dissent:

Heffernan must allege more than an injury from an unconstitutional policy. He must establish that this policy infringed his constitutional rights to speak freely and peaceably assemble. Even if the majority is correct that demoting Heffernan for a politically motivated reason was beyond the scope of the City’s power, the City never invaded Heffernan’s right to speak or assemble. . . . Heffernan admits that he was not engaged in constitutionally protected activity. Accordingly, . . . he cannot allege that his employer interfered with conduct protected by the First Amendment. 

If one were to stop the jurisprudential frame there, it adds up to four votes (Roberts, Scalia, Thomas & Alito) against the First Amendment claim. But, following Justice Scalia’s death, the tally blossomed into a six votes to sustain that claim. Think of it: after oral arguments the vote may have been 5-4, with the Chief on the dissenters’ side. That means that Ginsburg would have been the senior Justice and assigned the opinion to Breyer.  Following Justice Scalia’s death the vote would have then been 5-3.

The Significance of Government Motive & the Insignificance of Individual Intention

What made Heffernan a peculiar case (“it’s like a law school hypothetical” said Justice Alito in oral arguments) is the fact that the Petitioner Jefferey Heffernan never claimed that he intended to convey any message when he delivered a campaign sign for his mother. Fate being what it was, police officer Heffernan was demoted for his perceived political activity. That is, he never sought to convey any political message and thus, he argued, it was wrong for him to be disciplined for doing so.  That point proved determinative when the case was before the Third Circuit.  There Judge Thomas Vanaskie, writing for a unanimous panel, declared:

[W]e conclude that Heffernan has failed to raise a genuine dispute of material fact on this point. Heffernan himself confirmed that regardless of what others may have perceived, he did not have any affiliation with the campaign other than the cursory contact necessary for him to pick up the sign for his mother. Consequently, the record is insufficient to allow a jury to return a verdict in Heffernan’s favor on his claim of retaliation based on the actual exercise of his right to freedom of association.

Against that backdrop, consider what Justice Ruth Bader Ginsburg said in oral arguments in an exchange with Thomas Goldstein (one of the counsel for the Respondent City):

Justice Ginsburg: ­­I thought –­ and unlike Justice Scalia — that the thrust of the FirstAmendment is operating on government. It saysgovernment, thou shalt not ­­ thou shalt not act on thebasis of someone’s expression, speech or belief.

Mr. Goldstein: Well, essentially all of the rights, individual rights in the Constitution, otherthan the antislavery provision, requires State action.They all talk about what the government can’t do.  But the government ­­. . . 

Justice Ginsburg: Yes, so here, thegovernment acted. No question they demoted the person. This was a detective, and they put him back on the beat.So the government acted. Why did they act? Because they thought that this person was engaging in politicalactivity.

Mr. Goldstein:. . . You described this in First Amendment terms, that if this was a speech case, which it used to be, rather than an association case, he would lose. It is well settled in this Court’s precedents that the threshold inquiry under Pickering is did the individual engage in the constitutionally protected activity?

Judging from the outcome in the case, the Ginsburg line of thinking won the day. Consider the following statement from Justice Breyer’s majority opinion:

We note that a rule of law finding liability in these circumstances tracks the language of the First Amendment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Government acted upon a constitu- tionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s rea- son for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And Heffernan was directly harmed, namely, demoted, through application of that policy.

Motive matters. Hence (and to echo a point Justice Hans Linde made decades ago), the constitutional wrong is in the impermissible making of a law, or as in this case in the impermissible motive in government action. Or to quote from a 1981 article by Justice Linde (for whom I once clerked):

If government acts without a basis in valid law, the court need not find facts or weigh circumstances in the individual case. When a constitutional prohibition is addressed to lawmakers, as the First Amendment is, the role that it assigns to courts is the censorship of laws, not participation in government censorship of private expression.

* * Additional Commentary * * 

Campaign Finance Case Readied for en banc Hearing in DC Circuit Read More

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John Quincy Adams

John_Quincy_AdamsI want to give a big thumbs-up to the new biography of John Quincy Adams by John Traub entitled “John Quincy Adams: A Militant Spirit.” Part of the book is a superb diplomatic history of the United States, as Adams was our Ambassador in Holland, Prussia, Russia (during Napoleon’s invasion), and Britain, along with serving for eight years as Secretary of State.  The discussion of Adams’ tenure in Congress, where he became the leader of the anti-slavery forces, is also riveting and well worth your time.  I came away with a more positive impression of Adams.

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FAN 105.1 (First Amendment News) Court rules 6-2 in favor of 1-A Claim in Government Employee Speech Case

Today the Court handed down its ruling in Heffernan v. City of PatersonThe vote was 6-2 with Justice Stephen Breyer writing for the majority and Justice Clarence Thomas (joined by Justice Samuel Alito) writing in dissent.

Mark Frost was the counsel of record for the Petitioner (joined by Professors Stuart Banner and Eugene Volokh)

→ Victor A. Afanador was the counsel of record for the Respondents (joined by Thomas Goldstein)

Here is how Justice Breyer framed the issue in the case and its resolution:

In this case a government official demoted an employee because the official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor. The question is whether the official’s factual mistake makes a critical legal difference. Even though the employee had not in fact engaged in protected political activity, did his demotion “deprive” him of a “right . . . secured by the Constitution”? 42 U. S. C. §1983. We hold that it did.”

The majority, however, limited the reach of its ruling:

“We now relax an assumption underlying our decision. We have assumed that the policy that Heffernan’s em- ployers implemented violated the Constitution. There is some evidence in the record, however, suggest- ing that Heffernan’s employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign. See Brief for United States as Amicus Curiae 27–28. Whether that policy existed, whether Heffernan’s supervisors were indeed following it, and whether it com- plies with constitutional standards, see Civil Service Comm’n, 413 U. S., at 564, are all matters for the lower courts to decide in the first instance.”

Even so, Justice Thomas took exception:

“If the facts are as Heffernan has alleged, the City’s demotion of him may be misguided or wrong. But, be- cause Heffernan concedes that he did not exercise his First Amendment rights, he has no cause of action under §1983. I respectfully dissent.”

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. City of Paterson (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 of Cases Already Argued

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Pending Petitions*

  1. POM Wonderful, LLC v. FTC
  2. Scholz v. Delp

Review Denied

  1. Cressman v. Thompson
  2. Justice v. Hosemann 
  3. Electronic Arts, Inc. v. Davis
  4. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  5. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  6. Town of Mocksville v. Hunter
  7. Miller v. Federal Election Commission
  8. Sun-Times Media, LLC v. Dahlstrom
  9. Rubin v. Padilla
  10. Hines v. Alldredge
  11. Yamada v. Snipes
  12. Center for Competitive Politics v. Harris
  13. Building Industry Association of Washington v. Utter (amicus brief)

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):  Cert. denied

Freedom of Information Case

 The Court’s next Conference is on May 12, 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.

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Please Pay Me My Blackmail

I’m fascinated by the lawsuit filed against Dennis Hastert by one of his alleged sexual abuse victims for breach of contract. In essence, the suit says that Hastert agreed to pay him around $3 million in compensation but only paid 1/2 of that (due to the feds catching on to the former Speaker’s attempt to structure his payments to avoid detection.)  Now the plaintiff wants the other half.

I don’t how this suit can succeed (though the point of this is probably just to make clear what Hastert allegedly did).  If this is understood as a payment of blackmail, then the contract cannot be enforced as a matter of public policy.  How can it not be construed that way?  If Hastert had refused to pay, what would the plaintiff have done?  Nothing?

Granted, if the allegations against Hastert are true, then he’s an awful, awful human being.  And perhaps blackmail should not be unlawful in circumstances such as this.  But it is, and thus I don’t think that a failure to pay can be converted into a contract action.

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Why No Rearguments?

Two months after Justice Scalia’s death, we can see a pattern emerging on how the Court is treating cases on which they are divided 4-4.  First, they are making an effort to find a majority through compromise, which is fine as far as it goes.  Second, when that proves impossible, they affirm by an equally divided Court.

What the Court is not doing is putting over cases for another argument next Term.  Sometimes a delay of a year or more might simply be intolerable for the parties to the litigation or for some other reason. Perhaps the Court is also reluctant to put cases over during this Term–they might be more willing to do that in the Fall since a new Justice will surely be in place by next Spring.  And I can also see that the 4 Justices who think they will lose when a new argument occurs may prefer a draw.  Still, I would think that there should be at least one 4-4 case that merits reargument.