FAN 57.1 (First Amendment News) Court Denies Review in Military-Base Protest Case

Today the Supreme Court issued its orders list in which it denied review in Apel v. United States (#14-874).

Following United States v. Apel (2014), the issue in the latest Apel case was “whether in light of Flower v. United States it violates the First Amendment for a person who was previously barred from a military installation to be convicted under 18 U.S.C. § 1382 for peacefully protesting on a fully open public street, which has been designated as a public protest area, on federal property outside the closed military installation.” (See FAN 48, “Chemerinsky Petitions Court Again — Relies on Flower“).

Opinions in argued cases are expected to be released this Wednesday at 10:00 a.m. E.T.


[last updated: 4-27-15]

Review Granted & Cases Argued

  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. Friedrichs v. California Teachers Association, et al.
  4. Central Radio Co., Inc. v. City of Norfolk
  5. O’Keefe v. Chisholm

Review Denied

  1. Apel v. United States 
  2. Dariano v. Morgan Hill Unified School District
  3. The Bronx Household of Faith v. Board of Education of the City of New York 
  4. Arneson v. 281 Care Committee
  5. Kagan v. City of New Orleans
  6. ProtectMarriage.com-Yes on 8 v. Bowen
  7. Clayton v. Niska
  8. Pregnancy Care Center of New York v. City of New York 
  9. City of Indianapolis, Indiana v. Annex Books, Inc.
  10. Ashley Furniture Industries, Inc. v. United States 
  11. Mehanna v. United States
  12. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  13. Vermont Right to Life Committee, et al v. Sorrell

Walter Scott and The Child Support System

In the blizzard of publicity surrounding the murder of Walter Scott, the unarmed African-American who was shot in the back as he ran from a routine traffic stop, the media has somewhat belatedly discovered the criminalization of child support enforcement. What it has yet to address fully is the way that criminalization imposes child support terms on poor, often minority, men that can be much harsher than those imposed through the system that typically applies to middle class families.

Earlier this week, The New York Times discussed the way state-initiated child support enforcement, as it prioritizes extracting payment from poor men who cannot afford it, is a disastrous trap. The article focused on the experiences of Walter Scott, shot in the back after he was pulled over by police for a broken taillight. Scott ran because he feared being sent to jail for falling behind in his child support payments.   His death occurred, according to one source in the story, as part of a punitive system that imprisons men “’over and over again for child support debt simply because they’re poor.’”

Those fighting the excessive incarceration – and murder – of African-American men have highlighted the pointless criminalization of child support enforcement. In South Carolina, a state where African-Americans constitute 28% of the population, 70% of those who end up in jail because of child support issues are black.   While a system that sends poor men to jail for debts they cannot pay is unconscionable, so too is the establishment of many child support awards in the first place: they are arbitrary, unfair and at odds with the treatment of elite fathers and, often, of the parents’ own arrangements.

Child support today reflects a system that results in the treatment of poor fathers dramatically differently from wealthy fathers. Read More


Call for Papers–AALS Section on Law and Sports

The AALS Section on Law and Sports is pleased to announce the inaugural AALS Section on Law and Sports Award to recognize an individual that has made a substantial and significant contribution to scholarship, teaching, and/or service in the area of law relating to sports. Section members and other individuals are eligible for the award, but law schools, institutions, and organizations are not eligible to receive the award. A committee comprised of section members will consider all nominations and select a deserving recipient for recognition at the 2016 AALS Annual Meeting.

Please email nominations – and any supporting information – to Professor Dionne Koller at dkoller@ubalt.edu. In your nomination, please provide an explanation as to how the nominee meets the criteria for the award. Nominations are due by August 1, 2015.


Gobeille v. Liberty Mutual: An Opportunity for the Supreme Court to Correct the Problems of ERISA Preemption

The U.S. Supreme Court has asked the Solicitor General whether the Court should grant certiorari in Gobeille v. Liberty Mutual Insurance Company. If the Court hears Gobeille, the Court will confront an important choice for the future of preemption under the Employee Retirement Income Security Act of 1974 (ERISA). Gobeille can be decided incrementally, as an elaboration at the margins of the Court’s current ERISA preemption case law. However, Gobeille is also an opportunity for the Court to correct the fundamental problems of its current ERISA preemption jurisprudence. While incrementalism has its virtues, on balance, it would be better for the Court to use Gobeille to correct the basics of ERISA preemption.

The Court’s current ERISA preemption case law suffers from three fundamental shortcomings. First, unlike the lower courts and commentators, the Supreme Court has not acknowledged the tension between the Court’s seminal ERISA preemption decision in Shaw v. Delta Air Lines, Inc. and its subsequent decision in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. Second, per Travelers, the Court has read ERISA’s preemption clause, ERISA § 514(a), as nothing more than a codification of traditional, deferential preemption standards. This reading of § 514(a) is textually unpersuasive and renders ERISA §§ 514(b)(2)(A) and 514(b)(4) redundant. Section 514(a) is better read as establishing a presumption for preemption. Third, Travelers asserts that the presumption against ERISA preemption applies with particular force to state regulation of an area like health care “which historically has been a matter of local concern.” This judge-made rule also runs afoul of §§ 514(b)(2)(A) and 514(b)(4) which specifically exempt from ERISA preemption state banking, securities, insurance and criminal laws, but no other state laws.

The mischief caused by these three shortcomings manifests itself in Gobeille. Gobeille thus presents a problem and represents an opportunity. The Court could decide Gobeille as an incremental application of the Court’s existing ERISA preemption case law. Under this approach, the controlling issue for the high court to review will be the scope of “reporting” for ERISA preemption purposes. Notwithstanding the virtues of modest decision making, such judicial modesty in Gobeille will merely defer the Court’s confrontation with the fundamental problems of its ERISA preemption case law.

In a forthcoming article in the Cornell Law Review Online (available in draft on SSRN), I argue that it would be best for the Court to grant cert in Gobeille and use that decision to correct the underlying problems of ERISA preemption. Specifically, the Court should acknowledge the tension between Shaw and Travelers by reconsidering the statute afresh. As part of such reconsideration, the Court should construe ERISA § 514(a) as creating a presumption for preemption. Such a construction of § 514(a) respects the text of the statute without yielding to the potential indeterminacy of the statute’s broad language. Finally, the Court should jettison the notion that traditional areas of state law as defined by the Court are immune from ERISA’s more expansive than usual preemption and should instead acknowledge what the statute says: Per §§ 514(b)(2)(A) and 514(b)(4), the areas immunized from ERISA’s more stringent preemption are – and are only – state banking, securities, insurance, and criminal laws.

While the Court will understandably be tempted to decide Gobeille in a more modest fashion, there are situations which require fundamental reassessment of existing law. ERISA preemption is today such a situation and Gobeille would be a good vehicle for undertaking the necessary reassessment.


UC Davis Law Review, Issue 48:4 (April 2015)


Superstar Judges as Entrepreneurs: The Untold Story of Fraud-on-the-Market
Margaret V. Sachs

Breaking the Fever: A New Construct for Regulating Overtreatment
Isaac D. Buck

Digital Patent Infringement in an Era of 3D Printing
Timothy R. Holbrook & Lucas S. Osborn

Leaking and Legitimacy
Margaret B. Kwoka

Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation
Sidney A. Shapiro & Richard Murphy

Patents, Partnerships, and the Pre-Competitive Collaboration Myth in Pharmaceutical Innovation
Liza S. Vertinsky


FERC and USACE: The Necessity of Coordination in Implementation of the Hydropower Regulatory Efficiency Act
Shannon Morrissey



Guido on Law and Economics

Guido Calabresi has a new book coming out in January on Law and Economics.  While I’m not an unbiased source (as his former clerk), I have read a draft and think this will make a big splash.  Closer to the release date, it is my hope that CoOp will hold a Symposium on this book and see if we can host Guido’s first-ever blog post.


More Questions About the Meaning of “Legislature”

The Justices are still considering the Arizona redistricting case that I’ve posted about several times, but a few other things occurred to me about that pending decision that I wanted to share.

1.  At oral argument, Justice Kagan pointed out that there are many state constitutional provisions that regulate the “time, place, and manner” of voting in congressional elections.  I’m not sure how many there are, but it would seem that all of them would be vulnerable under an analysis that says that only the state legislature may make those regulations subject to congressional preemption.  It would be useful to know (and the dissent may end up telling us) how many of these there are.

2.  If you take the legislative exclusivity argument seriously, doesn’t that mean that a state court interpretation of a voting regulation for congressional elections could raise a federal constitutional question?  In Bush v. Gore, Chief Justice Rehnquist’s concurrence argued that the Florida Supreme Court’s interpretation of state election law regarding the selection presidential electors was so flawed that “the Legislature” was not truly exercising its constitutional authority under Article II.  Couldn’t the same be true for a legislature under Article I?  (Yes, I know–it was a plurality opinion from Bush v. Gore.  Two strikes there.  But still.)

3.  If Arizona’s plan is unconstitutional, then California’s plan of open primaries adopted as part of the state constitution is probably also unconstitutional.  Oddly enough, the Legislature elected under that plan can cure the constitutional flaw by just enacting the same plan as a statute.  Right?


FAN 57 (First Amendment News) Press Group & Others Await Ruling re Release of 1942 Grand Jury Transcripts in Chicago Tribune Case


UnknownThat is the caption in the petition titled In re Petition of Elliot Carlson, et al, which was filed on November 18, 2014 in the United States District Court for the Northern District of Illinois. The judging presiding over the case is Chief Judge Ruben Castillo. In addition to the lead petitioner, the other parties in the case are: the Reporters Committee for Freedom of the Press, the American Historical Association, the National Security Archive, the Naval Historical Foundation, the Naval Institute Press, the Organization of American Historians, and the Society for Military History.

Stanley Johnston & Jay Loy Maloney

Stanley Johnston & J. Loy Maloney of the Tribune

The controversy traces back to a June 7, 1942 front-page story the Chicago Tribune ran by its war correspondent Stanley Johnston. The piece was titled “Navy Had Word of Jap Plan to Strike at Sea.” Citing “reliable sources in naval intelligence,” the Johnston story reported that the U.S. Navy had detailed information concerning the Japanese military’s plan to attack U.S. forces at Midway several days in advance of that battle.

The government believed that the story was based on a classified Navy dispatch. More importantly, it believed that the story revealed a closely-held secret, namely, that the Navy had cracked the radio code used by the Japanese navy to encrypt communications. Outraged by the apparent “leak,” officials in the FDR Administration pressed for the prosecution of the reporter and his paper. Or as the editorial board of the Chicago Tribune put it in 2014: “The response was ferocious. President Franklin D. Roosevelt’s instinct was to have Marines occupy Tribune Tower. Navy Secretary Frank Knox insisted that U.S. Attorney General Francis Biddle prosecute Tribune journalists for hurting national security.”

Screen Shot 2015-04-14 at 12.08.46 PM

The Justice Department convened a grand jury in August of 1942 to investigate whether Johnston and his managing editor, J. Loy Maloney, along with the Tribune had violated the Espionage Act of 1917. On August 19, 1942, the grand jury declined to issue any indictments.

Tribune_The  CitadelJubilant over its victory, the Tribune ran a front-page cartoon the next day — the cartoon depicted the Tribune Tower as a citadel for press freedom.

It is against that backdrop that Elliot Carlson (a naval historian) and his fellow petitioners requested the release of the transcripts of the testimony of all 13 witnesses who testified before the grand jury in connection with the Tribune investigation. The transcripts are apparently stored at a National Archives repository in College Park, MD (enclosures to Serials 1 through 11 for File Number 146-7-23-25).

In his declaration to the court, Carlson maintained that “[r]eleasing the grand jury testimony will fill in important gaps in the existing historical record and will provide valuable perspective on the relationship between the government and the press during national security crises – a subject that has never been more relevant. Historians and writers still disagree would the details of the Tribune scandal . . . but the grand jury testimony could settle the dispute.”

Government Opposes Release of 1942 Transcripts

On December 24, 2014, the government filed its response in opposition to the release of the grand jury transcripts. Its opposition was based on three basic arguments:

  1. “No Statute or Rule Provides for Release of Grand Jury Information for Reasons of Historical Interest”
  2. “Second Circuit Law Recognizing Historical Significance as a Special Circumstance Justifying Disclosure Is Flawed and Contrary to the Weight of  Supreme Court Jurisprudence,” and
  3. “The Supreme Court’s Rulemaking Body Has Rejected an Amendment to Rule 6(e) Based on Historical Interest”

In their reply memorandum, the Petitioners advanced two main arguments:

  1. “Courts have discretion to order disclosure of historical grand jury material in appropriate circumstances pursuant to their inherent authority,” and
  2. “The Coalition has demonstrated that disclosure of the testimony from the 1942 Tribune grand jury investigation is a proper exercise of this Court’s discretion.”

Lawyer for Petitioners: Brendan J. Healey

 Lawyer for the Government: Elizabeth J. Shapiro (U.S. Department of Justice)

A ruling is expected sometime within the next two months.

→ See also Editorial, “Breaking the code on a Chicago mystery from WWII,” Chicago Tribune, November 21, 2014

For some historical background, see:

  1. Lloyd Wendt, Chicago Tribune: The Rise of a Great American Newspaper (1979), pp. 627-636
  2. Michael S. Sweeney & Patrick S. Washburn, “‘Aint Justice Wonderful': The Chicago Tribune’s Battle of Midway Story and the Government’s Attempt at an Espionage Act Indictment in 1942,” Journalism & Communication Monographs December 5, 2013 (updated 2014)
  3. Dina Green, “Communication Intelligence and the Freedom of the Press. The Chicago Tribune’s Battle of Midway Dispatch and the Breaking of the Japanese Naval Code,” Journal of Contemporary History (1981)

ht: Katie Townsend

*  *  *  *

Muzzle Awards ‘Honor’ First Amendment Violators

This from a news report in The Daily Progress: “The administration of a major university, the mayor of Peoria, Illinois, and an Alabama circuit judge are among this year’s recipients of the Jefferson Muzzle awards, given to people or institutions accused of stifling freedom of speech in the United States. Thomas Jefferson Center for the Protection of Free Expression . . . gives out the awards each year.”

Those receiving the awards were:

  1. Peoria, Illinois Mayor Jim Ardis
  2. Bergen Community College (NJ)
  3. Mora Co., New Mexico Board of Commissioners
  4. Bedford Co., Pennsylvania District Attorney Bill Higgins
  5. Alabama Circuit Court Judge Claud D. Neilson
  6. The Indiana Department of Corrections
  7. Asnuntuck Community College (CT)
  8. The University of Illinois at Urbana–Champaign

NB: Links are to stories re the reasons for bestowing the awards.

Video of Balkin-Redish Exchange Posted  Read More


The Great State Constitutional Opinions

Suppose you had to name the Top 5 constitutional decisions by a state court.  What would they be?  This could refer to readings of a state constitution or a state case on the Federal Constitution.  Here are some thoughts:

1.  Goodridge v. Dept. of Public Health (Mass. 2003).  This was not the first state case finding a right to same-sex marriage (that was in Hawaii), but this was the most important.

2.  Ives v. South Buffalo RR (N.Y. 1911).  This case invalidating the state worker’s compensation statute as a due process violation sparked outrage across the country and led to modifications in the Supreme Court’s jurisdiction.  (The case could not be reviewed by the Justices at the time.)

Other candidates?


University of Toronto Law Journal – Volume 65, Number 2, Spring 2015


University of Toronto Law Journal – Volume 65, Number 2, Spring 2015

The Mystery Of Privity: Grand Trunk Railway Company Of Canada v Robinson (1915)
Catharine MacMillan

The Importance Of Being Earnest: Two Notions Of Internalization
Daphna Lewinsohn-Zamir

Victim Impact Statements At Sentencing: Towards A Clearer Understanding Of Their Aims
Marie Manikis

Book Review
Neil Duxbury, Elements of Legislation, reviewed by Anver M Emon
Richard Ekins, The Nature of Legislative Intent, reviewed by Anver M Emon
Julie Cohen, Configuring the Networked Self: Law, Code and the Play of Everyday Practice, reviewed by David Lyon
Margaret Jane Radin, Boilerplate, the Fine Print, Vanishing Rights, and the Rule of Law, reviewed by Pascale Chapdelaine

Full text of the University of Toronto Law Journal is available online at UTLJ Online, Project Muse, JSTOR, HeinOnline, Westlaw, Westlaw-CARSWELL, LexisNexis and Quicklaw.