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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

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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.

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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.

 

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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)

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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)

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FAN 93 (First Amendment News) “What’s Wrong with the First Amendment?” — Steve Shiffrin Book Coming This Summer

The main problem with the First Amendment . . . is that it overprotects speech. 

[T]he First Amendment, as now interpreted, in many ways is profoundly unjust. Silence in the face of that injustice is out of place no matter how invisible that injustice might be to academics, journalists, and citizens who have been raised in a culture that worships the First Amendment.

Steven Shiffrin

That’s right, you read it correctly. Too much free speech protection, a bad thing? Who would have thought it possible?

Yes, you can turn the clock back to the time of Walter Berns and his book Freedom, Virtue and the First Amendment (1957) to find plenty of arguments about why protecting too much free speech is a bad thing. And then there was Father Francis Canavan’s book Freedom of Expression: Purpose as Limit (1984); he, too, had serious reservations about overprotecting speech. David Lowenthal took such criticism to a new level in his book No Liberty for License: The Forgotten Logic of the First Amendment (1997). In that book Professor Lowenthal argued: “[T]he First Amendment, intended as a bulwark of the republic, has become a prime agent of its destruction. For the past three decades and more, the Supreme Court itself has led the nation away from the moderate freedom that the common good requires and generations of liberals have advocated.”

Shiffrin (on left) with First Amendment lawyer Robert Corn-Revere

Shiffrin (on right) with First Amendment lawyer Robert Corn-Revere (ACLU lawyer & law prof. Joel Gora in background) 

Same gospel, different preachers? Hardly! That’s because Berns, Canavan and Lowenthal are all conservative, quite conservative in fact. But Steven Shiffrin, conservative? Never! The emeritus Cornell law professor turned criminal defense lawyer is nothing if not liberal. And he has long flown the First Amendment banner with great pride and vigor in works such as The First Amendment, Democracy, and Romance (1990) and in Dissent, Injustice, and the Meanings of America (1999). Back in the late 1970s, he even once represented me (as co-counsel) in a state taxpayer challenge to a city ordinance banning the opening of any new bookstores.

So what gives? Has he veered over to the dark side? No, for as he sees it the problem is exactly the opposite — many of the new defenders of the First Amendment have forced it over to that side.  He said as much in his 2014 Melville Nimmer lecture at UCLA Law School. In other words, free-speech exceptionalism is an endangered idea; the days of First Amendment celebration are winding down. Simply consider the following from his next book, What’s Wrong with the First Amendment(Cambridge University Press, June-July, 2016):

I have been teaching classes in the First Amendment for nearly forty years. Students love the First Amendment. Like the overwhelming majority of their fellow citizens, they not only celebrate its protection of a basic human right; they celebrate its role as a part of their identity as Americans.

There was a time when those celebrations were justified, but I believe we have come to a point when it is thinkable that the First Amendment does more harm than good. . . . Free speech doctrine downplays the harm that speech can cause. Indeed, its most problematic assumption is that free speech is considered to be so valuable that it almost always outweighs other values with which it comes into conflict. Of course, free speech is ordinarily valuable, but there is no good reason to assume that it invariably should outweigh other values. Nor is that assumption harmless.

Shiffrin finds such First Amendment harms in the following areas:

  • privacy-invading speech
  • emotional distress
  • pre-trial publicity
  • racist speech
  • pornography
  • animal cruelty
  • violent video games
  • certain forms of commercial advertising, and
  • political speech by wealthy corporations.

Mindful of such matters, Shiffrin admonishes: “A commitment to freedom of speech need not commit us to this unwholesome path. Other Western countries, for example, have not taken this course despite their own commitments to the free speech principle.” There is, of course, more, much more. But we will have to wait for the book to come out before venturing there.

Judge Steve Shiffrin’s thesis as you will (and there will be more of that, to be sure, in the days ahead). But my sense is that this book could well mark a tipping point in the liberal ethos once wed to the First Amendment. That ethos has been in flux owing to the thinking of scholars such as C. Edwin Baker, Owen Fiss, Burt Neuborne, Tamara Piety, and Robert Post, among others.

Stay tuned — more to come in early summer.

Related Posts

FAC 4: “Steve Shiffrin, the Dissenter at the First Amendment Table,” May 12, 2014

→ FAN 40: “Steve Shiffrin & Bob Corn-Revere debate ‘What’s Wrong with the First Amendment?,'” Nov. 12, 2014

Seana Shiffrin, Speech Matters: On Lying, Morality, and the Law (Princeton University Press, 2014)

Competition in the Marketplace of Ideas

This year could well be the year of robust competition in the marketplace of free-speech ideas, what with the forthcoming publication of Floyd Abrams’s Why the First Amendment Matters (Yale University Press) and Robert Corn-Revere’s The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma (Cambridge University Press).

512N0oiVlWL._SX331_BO1,204,203,200_Other Forthcoming Books

  1. Mary Katharine Ham & Guy Benson End of Discussion: How the Left’s Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (Crown Forum, July 12, 2016)
  2. Joanna Williams, Academic Freedom in an Age of Conformity: Confronting the Fear of Knowledge (Palgrave Macmillan, July, 2016)
  3. Katharine Gelber, Free Speech After 9/11 (Oxford University Press, June 2016)
  4. Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (Yale University Press, May 24, 2016)

9th Circuit Uses Heightened Scrutiny in Commercial Speech Case Read More

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More on the Natural-Born Citizen Clause

I want to make some additional observations on Ted Cruz’s eligibility to serve as President.

The op-ed in today’s Washington Post that concludes Cruz is not eligible is unpersuasive.  First, the piece presumes that we must use an originalist approach in resolving the issue without defending that assumption.  Second, even accepting that assumption as valid, the analysis is still flawed.  The author asserts that Blackstone held that natural-born meant “born within the country.”  She then says that those who take a different view “rely on three radical 18th-century British statutes” that were “revolutionary” departures from his view.

I’m confused about what work “radical” does in this passage.  Something is either a statute or it is not.  And these statutes were part of the background law when the Constitution was ratified.  To me, “radical” is the author’s way of saying “Please ignore these laws because they undercut my conclusion.”  This is not, I submit, a great argument. Parliament, after all, was free to alter the common law.

 

One final suggestion.  The Framers were quite hypocritical in imposing a limitation on future generations that they refused to apply to themselves.  If they really felt that there was a prospect of some foreign-born Manchurian Candidate becoming President, why were they so certain that did not apply to anyone who was a citizen before 1788?

UPDATE:  I deleted the part of the post about the fact that the Clause did not matter until long after the Founding because it was not well-written and was just confusing people.

 

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Delaware’s Latest Show of Corporate Savvy

corp_logo_180x175Delaware continues to be the savviest seller in the world of corporate charters and related services, thanks to a combination of judicial vision and legislative elegance supported by all the state’s leadership and citizens alike.  The most recent example appears in the intersection of two technical corners–strike suit merger litigation and forum selection bylaws.

As detailed in this Wall Street Journal article of Wednesday, Delaware’s Chancery Court, led by Vice Chancellor Travis Laster, has been cracking down on frivolous shareholder suits challenging mergers.  The cases tend to be settled quickly based on corporate governance promises. Most of the cash that changes hands goes to plaintiffs’ lawyers while defense lawyers and boards seem to accept paying this “merger tax” as an investment in the certainty that that there will be no future litigation.

The WSJ piece suggests that the Chancellors’ crackdown may simply lead plaintiffs’ lawyers to file such suits in other forums.  But this overlooks one of the most important developments in recent Delaware corporate law, with which the savvy Delaware judges are keenly attuned.  If plaintiffs’ lawyers start filing increasing numbers of suits outside the Chancery Court,  more and more boards would unilaterally adopt bylaws barring such cases from any forum but Delaware.

The Delaware legislature recently authorized boards to do just that and courts elsewhere are bound to respect such arrangements and transfer any filed cases over to Delaware (as the Oregon Supreme Court did at year end in Roberts v. Triquint Semiconductor, Inc.).

True, in the past, Delaware boards and defense lawyers settle the frivolous cases and may find value in the finality. To that extent, the Chancellors’ crackdown on settlements may lead them to prefer litigating in courts more willing to give a rubber stamp, perhaps states eager to compete with Delaware in the corporate chartering and services business.

Except the Delaware judges are signaling a new world where boards need not fear these suits and crave their settlement as much as in the past.  If so, that makes Delaware more attractive and favors its selection for forum.  That increases board incentives to adopt Delaware forum bylaws.

A clearly virtuous effect of this combination of legislative, judicial, and directorial innovation is to make the merits matter more.  For Delaware, it is yet another way to cement the state’s deserved reputation as an attractive place to be incorporated.  And it does so primarily in the name of quality corporate law administration, rather than being either pro-management or pro-shareholder.

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What is the Best Constitution in the World?

Consider this a poll.  There are many folks who are critical of the American Constitution.  If you are in this camp, I’m wondering what you would call the best global constitution. (Mind you, I don’t mean what country is governed best, as that could be largely unrelated to its constitution.)  Is it Germany? Canada? Britain?  Someplace else.  And feel free to explain why.

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Using Secret Materials for Interpretation

Greetings from the AALS! I wanted to post about something that I’m thinking about in relation to a paper idea.

Many Supreme Court opinions are ambiguous or susceptible to different readings.  The Justices discuss the issues in confidence until the decision comes down, and then decades later the papers from those deliberations become available.  What a wonderful resource, you would think, in understanding what a particular opinion is supposed to mean.

Except courts don’t use those materials.  In other words, it is seen as inappropriate to cite the “work product” of the Court to ascertain the meaning of a decision.  This, of course, is unlike the interpretation of statutes, which often look to legislative history.  Ah, you might say, legislation is different.  Those discussions are public, and that makes them fair game in a way that confidential deliberations are not.

Except that when courts interpret the Constitution, they do use the secret deliberations of the Framers in construing that text.  Why is that appropriate when citing the Court’s work product is not?  (I’m talking about lawyers and courts.  Historians can cite anything they want.)  What is the principled distinction between these two?

Granted, the work product of the Court may often be unhelpful in shedding light on a decision.  But right now you can’t use them even if they were helpful.  Do decisions always speak for themselves?

Two last thoughts.  One is that the first case that extensively cited the deliberations of the convention was Dred Scott, which suggests that perhaps that practice should be reexamined.  Second, there is one case where the Justices do cite extrinsic materials to construe a case–Brown.  The Court has cited the briefs in Brown to determine what Brown, which tells you something about Brown’s place in the constitutional canon.

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AALS, Professor Dan Markel, and the Scholarly Tradition

This week is the annual law professor conference in New York City. The AALS conference is always a wonderful ritual of learning, discussion, and friendship. Indeed, it was the one time of the year that guaranteed a lunch, dinner, or chat with brilliant criminal law theorist and incredible friend Dan Markel. When Dan was murdered in the summer of 2014, I wrote this post for Forbes about his life’s lessons. For colleagues who are going to AALS this year, CoOp will be having a Markelfest in his honor tomorrow night. I wish that I could be there to celebrate Dan and his passion for scholarship and the world of ideas. We miss you, Dan.