4

The Long-Discredited Challenge to the Impartiality of Minority Judges

Recent challenges to the impartiality of a federal judge based on the judge’s racial identity harken back to a period when accusations of this nature occurred with some frequency. This issue of race and judicial neutrality, and its ultimate resolution more than thirty years ago in a little known case, Pennsylvania v. Local Union 542, International Union of Operating Engineers, should be understood within historical context.  Read More

2

Remedies for Violating the Religious Test Oath Ban

Article Six of the Constitution provides: “[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” A federal statute that imposed such a requirement would, of course, be struck down as unconstitutional.

Suppose, though, that President X were to announce in the Rose Garden:  “My Administration will not appoint any Muslims to any office or public Trust under the United States.”  Other than impeachment, would there be any remedy for the Muslims in that case, some of whom would certainly have standing?  The President would enjoy absolute immunity from a tort damage suit under Supreme Court precedent.  In theory a court could reinstate a federal official fired because of his or her faith, but someone who was simply not considered could not obtain any equitable relief (I would think), although again in theory a court could order some sort of remedial hiring.  What is the right answer here?

2

Can Art Change the Law?

This is one question posed in Richard Primus’ new piece in the Atlantic on the musical “Hamilton.” (In the interests of full disclosure, Richard is my friend and was my c0-clerk). Part of his point is that the popularity of “Hamilton” and its casting could make originalist arguments more accessible to minorities that may have previously dismissed those views as the product of white slaveholders.  Another possibility is that a jump in Hamilton’s profile could give his arguments in the Federalist or elsewhere greater weight as compared to, say, someone like Jefferson.

It is hard to think of a work of popular culture with a greater impact on popular views of our history than “Hamilton.”  The closest comparison is “Birth of a Nation,” the racist celebration of the Ku Klux Klan that is considered one of the classics of silent cinema (in terms of its technique). Some think that “Birth of a Nation,” which came out in 1916, played a significant role in the revival of the KKK in the 1920s, which led to some substantial legal and political changes.  I’ve never seen “Birth of a Nation,” but now I’m thinking that I should to probe this comparison further.

 

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FAN 111.1 (First Amendment News) Court Denies Review in Defamation Case — Larry Tribe Counsel for Petitioner

Earlier today the Supreme Court denied review in Scholz v. Delp in which Harvard Law Professor Laurence Tribe was counsel for the Petitioner. The issue in the case was whether the First Amendment creates a categorical presumption that statements about a person’s motive in committing suicide are matters of “opinion” rather than “fact” and thus cannot be the basis of a defamation action.

Professor Laurence Tribe

Professor Laurence Tribe

Professor Tribe filed a cert. petition on behalf of Petitioner Donald Thomas Scholz. Professor Tribe began his brief by stating:

“This case presents the fundamental question of whether the First Amendment creates a categorical presumption exempting from defamation actions statements about a person’s motive in committing suicide, on the basis that such statements are generally matters of ‘opinion’ rather than ‘fact.’ The Massachusetts SJC held that the First Amendment does create such a presumption and that, as a result, Petitioner Scholz – the producer, primary songwriter, and lead musician in the rock band ‘Boston’ – cannot proceed with his defamation actions against the Boston Herald, two of its reporters, and its principal source, for falsely accusing Mr. Scholz of causing the suicide of the band’s lead singer, Brad Delp.”

“The SJC deepened a significant conflict among many state and federal courts as to whether statements about the cause of a particular suicide, and about motive more generally, are categorically exempt from claims of defamation. It also departed from this Court’s core holding in Milkovich v. Lorain Journal Co. (1990), that there is no need to create a special First Amendment privilege for statements that can be labeled opinion. This Court emphasized that creating such a privilege would tilt the balance too far against the important interest in protecting personal reputation against unjustified invasion. And it explained that existing First Amendment limits on defamation actions suffice to protect freedom of expression.”

 The the three arguments advanced by Professor Tribe in his cert. petition were:

  1. “This Court Should Grant Review to Resolve a Deep and Abiding Conflict among Courts as to Whether Statements about Motive Generally, and about Motive for Suicide Specifically, are Categorically Exempt From Defamation Claims”
  2. “This Court Should Grant Review Because the SJC’s Ruling Conflicts with Malkovich by Creating a First Amendment Exemption from DefamationActions Not PreviouslyRecognized by this Court,” and
  3. “This Court Should Grant Review Because of the Importance of the Question Presented.”

Professor Tribe closed his brief by stating:

“These sensational stories also can cause severe harm to those falsely accused of causing the suicide. In instances, like the one in this case, where a friend or family member is blamed for a suicide, the reputational and emotional toll exacted from the person wrongly accused can be particularly significant. “Suicide exacts a heavy toll on those left behind as well. Loved ones, friends, classmates, neighbors, teachers, faith leaders, and colleagues all feel the effect of these deaths.” This heavy toll is dramatically compounded when friends or loved ones are falsely blamed for contributing to the suicide. But the SJC’s decision below shields from suit those who propound such false stories no matter how reckless they are in doing so. And, to compound the harm further, the SJC, far from resting its judgment on Massachusetts law, wrongly blames the First Amendment for that travesty of justice.”

Today the Court declined to hear the case.

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Introducing Holning Lau

Lau Headshot copyI am delighted to welcome Holning Lau, Professor of Law and Associate Dean for Faculty Development at the University of North Carolina School of Law, who will be blogging with us this month.  Professor Lau’s current research examines international and comparative approaches to issues of gender and sexuality. He is working on projects that focus on the European Union (supported by the European Union’s Horizon 2020 Programme), Hong Kong (supported by a grant from the University of Hong Kong), and South Africa (supported by competitive grants from UNC). He is also putting final touches on an essay that draws on his own experiences with fatherhood to examine public policy proposals concerning parenting, including proposals for the United States to adopt Nordic-style laws that govern workplace parental leaves.

Prior to joining the faculty at UNC, Prof. Lau was an Associate Professor and Co-Director of the LGBT Rights Fellowship Program at Hofstra University School of Law. Before that, he was a Fellow at UCLA’s Williams Institute. He has also held visiting fellowships at the University of Hong Kong’s Centre for Comparative and Public Law.

His selected publications include:

You can find his Google Scholar page here, and his SSRN page here.

11

Is Fraud an Impeachable Offense?

The fraud litigation currently pending against Donald Trump poses this question:  Is a civil judgment of fraud for private conduct a high crime and misdemeanor under the Constitution?  My tentative answer is yes, if the fraud were especially egregious.

One thought is that the answer is no because only official misconduct should lead to impeachment.  But this cannot be correct.  Consider the example of Dennis Hastert.  Suppose he had become President.  (He was third-in-line to the succession after all.)  If after that the news of his sexual abuse of students came out, then I would think that he could have been impeached for that alone.

Perhaps the only private conduct that can lead to impeachment is a crime. But I think not. Civil liability for something like wrongful death could be impeachable–consider something like what Ted Kennedy did at Chappaquiddick (if that were unknown to the voters). Fraud is an intentional tort that requires proof by clear and convincing evidence.  If the damages from that fraud were substantial (including punitive damages), then I don’t see why that couldn’t rise to such a level that would warrant impeachment.   What do you think?

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FAN (First Amendment News, Special Series #4) Apple Hires Encryption Specialists to Beef Up Security

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Encryption industry legend Jon Callas is reportedly one of many security specialists that Apple will be employing, and it would appear that Apple is taking a proactive approach to scaling up their security in response to its clash with the FBI earlier this year. (ITPRO)

According to a story in ITPRO, “Apple has hired encryption industry legend Jon Callas in a bid to strengthen security in the wake of its privacy battle with the FBI.Callas is perhaps best known for co-founding PGP – or ‘Pretty Good Privacy’ – and has been an expert on security and encryption for decades.In addition to developing the OpenPGP standard, he also established Silent Circle and Blackphone, makers of secure communication tools and hardware.This is in fact the third time that Callas has been employed by Apple. He first joined the company in 1995, working on encryption. He also worked on OSX’s security from 2009 to 2011.Callas is reportedly one of many security specialists that Apple will be employing, and it would appear that Apple is taking a proactive approach to scaling up their security in response to its clash with the FBI earlier this year.”

(News story by Jane McCallion, Joe Curtis, Rene Millman, Aaron Lee, Adam Shepherd, Caroline Preece, & Clare Hopping)

See also Apple rehires the man who build Blackphone to help create unhackable iPhone, TechWorm, May 26, 2016

Interest in Proposed Legislation Diminishes

“Draft legislation that Senators Richard Burr and Dianne Feinstein, the Republican and Democratic leaders of the Intelligence Committee, had circulated weeks ago likely will not be introduced this year and, even if it were, would stand no chance of advancing . . . sources said.” — Apple vs FBI: Support for encryption fizzles out, Reuters, May 27, 2016

____________________

If you have yet to register for the Newseum Institute’s  June 15th event concerning the Apple-FBI encryption controversy, there is still time to do so. Information concerning the upcoming event is set out below:

Date:  June 15th, 2016

Time: 3:00 p.m.

Location: Newseum: 555 Pennsylvania Ave NW, Washington, DC 20001

Register here (free but limited seating):

http://www.newseum.org/events-programs/rsvp1/

The event will be webcast live on the Newseum Institute’s site.

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“PEAR” v. THE UNITED STATES

The issues involved in the Apple cell phone controversy will be argued in front of a mock U.S. Supreme Court held at the Newseum as “Pear v. the United States.”

Experts in First Amendment law, cyber security, civil liberties and national security issues will make up the eight-member High Court, and legal teams will represent “Pear” and the government. The oral argument, supported by written briefs, will focus on those issues likely to reach the actual high court, from the power of the government to “compel speech” to the privacy expectations of millions of mobile phone users.

The Justices hearing the case at the Newseum:

  • As Chief Justice: Floyd Abrams, renowned First Amendment lawyer and author; and Visiting Lecturer at the Yale Law School.
  • Harvey Rishikof, most recently dean of faculty at the National War College at the National Defense University and chair of the American Bar Association Standing Committee on Law and National Security
  • Nadine Strossen, former president of the American Civil Liberties Union; the John Marshall Harlan II Professor of Law at New York Law School
  • Linda Greenhouse, the Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School; long-time U.S. Supreme Court correspondent for The New York Times
  • Lee Levine, renowned media lawyer; adjunct Professor of Law at the Georgetown University Law Center
  • Stewart Baker,national security law and policy expert and former Assistant Secretary for Policy at the U.S. Department of Homeland Security
  • Stephen Vladeck, Professor of Law at American University Washington College of Law; nationally recognized expert on the role of the federal courts in the war on terrorism
  • The Hon. Robert S. Lasnik, senior judge for the Western District of Washington at the U.S. District Court

Lawyers arguing the case:

  • For PearRobert Corn-Revere has extensive experience in First Amendment law and communications, media and information technology law.
    • Co-counsel is Nan Mooney, writer and former law clerk to Chief Judge James Baker of the U.S. Court of Appeals for the Armed Forces.
  • For the U.S. governmentJoseph DeMarco, who served from 1997 to 2007 as an Assistant United States Attorney for the Southern District of New York, specializes in issues involving information privacy and security, theft of intellectual property, computer intrusions, on-line fraud and the lawful use of new technology.
    • Co-counsel is Jeffrey Barnum, a lawyer and legal scholar specializing in criminal law and First Amendment law who argued United States v. Alaa Mohammad Ali before the U.S. Court of Appeals for the Armed Forces while in law school.

Each side will have 35 minutes to argue its position before the Court and an additional five minutes for follow-up comments. Following the session, there will be an opportunity for audience members to ask questions of the lawyers and court members.

→ The program is organized on behalf of the Newseum Institute by the University of Washington Law School’s Harold S. Shefelman Scholar Ronald Collins and by Nan Mooney.

Scholarship and Mid-Career Self-Assessments: A Brief Reflection on Simkovic’s What Can We Learn from Credit Markets?

Chris J. Walker has written a very helpful series of posts for young professors on “how to become a voice in one’s field.” The last addressed one of the hardest issues: “Am I Asking the Right Questions?” Academic freedom at a professional school comes with serious responsibilities: to choose field(s), to apply methodology well, and to try to establish the importance of one’s findings among one’s peers and (increasingly) among educated publics, as an engaged academic. Both Walker and Michael Rich offer wise perspectives on the dilemmas that inevitably come up during thoughtful reflection on these responsibilities, focusing on a process of discernment.

I also think that we can learn a great deal from the content of successful scholars’ inquiry. Usually, researchers only undertake this type of self-reflection when applying for jobs and preparing research agendas (a mostly private process), or at the end of a career (when a long list of accomplishments may seem too daunting to be relatable to younger peers). But winners of the ALI Young Scholars Medal appear to get invited to give a public talk on their work at an earlier stage of inquiry. Mike Simkovic (whose work I’ve previously praised here) gave such an address in May.

The talk is focused on the questions that led Simkovic to research credit markets. His work helped explain some puzzling aspects of personal finance–for example, why harsh restrictions on bankruptcy imposed in the mid-2000s did not lead to a cheapening of credit. His findings are revealing: consolidation in the credit card industry, as well as confusing contractual terms, helped dominant firms keep the resulting profits, rather than compete them away. As of 2016, even The Economist has caught up to this challenge to laissez-faire orthodoxy–but at the time it was made, complacent assumptions about market efficiency were dominant.

From that inquiry, Simkovic describes a chain of puzzles that led him to challenge widely held preconceptions in corporate, education finance, and tax law. It’s an engaging documentation of a particularly fruitful and insightful trajectory in inquiry.

I recently proposed a paper to the MLA’s annual conference entitled “Beyond the False Certainties of Impact Factors, Altmetrics, and Download Counts: Qualitative & Narrative Accounts of Scholarship.” It arose out of my dissatisfaction with the metricization of accomplishment. As citation counts proliferate, accumulating the ersatz currency of reputational quantifications threatens to overwhelm the real purpose of research–just as financialization has all too often undermined the productive functions of the economy.

Traditional modes of assessment (including tenure letters and festschrift tributes) are an alternative form of evaluation. And an essay like Simkovic’s is an example of a type of self-evaluation that should become more popular among scholars at certain career milestones (like tenure, appointment to full professor or senior lecturer, and, say, every 5 or 10 years thenceforward.) We need better, more narrative, mid-career assessments of the depth and breadth of scholarly contributions. Such qualitative modes of evaluation can complement the quantification-driven metrics now ascendant in the academy.

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UC Davis Law Review, Issue 49:5 (June 2016)

Articles

Against Administrative Judges
Kent Barnett

Collaboration Theory: A Theory of the Charitable Tax-Exempt Nonprofit Corporation
Eric C. Chaffee

FERC’s Expansive Authority to Transform the Electric Grid
Joel B. Eisen

The Unresolved Interpretive Ambiguity of Patent Claims
Oskar Liivak

Innovation Law and Policy: Preserving the Future of Personalized Medicine
Rachel E. Sachs

Response

The Relationships Between Speech and Conduct
Jane R. Bambauer

Notes

No Paper? No Problem: Ushering in Electronic Wills Through California’s “Harmless Error” Provision
Gökalp Y. Gürer

Warning Third Parties of Genetic Risks in the Era of Personalized Medicine
Kanu Song

lawreview.law.ucdavis.edu

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FAN 111 (First Amendment News) Flying Dog Brewery Launches First Amendment Society

L-R: Jim Caruso, Alan Gora & Ilya Shapiro

L-R: Jim Caruso, Alan Gora & Ilya Shapiro

Free beer was being served as the audience gathered yesterday for a press conference at the National Press Club in Washington, D.C. to hear Jim Caruso (CEO of Flying Dog Brewery), Alan Gura (a DC-based constitutional law litigator), and Erin Weston (senior Director of Communications for Flying Dog). The three were there to discuss their First Amendment victory in Flying Dog Brewery v. Michigan Control Commission (6th Cir., 2015). More importantly, they were there to formally launch a new free-speech initiative. Ms. Weston will oversee the initiative.

The “First Amendment Society” is a non-profit initiative started by Flying Dog. The seed money for the campaign came from the damages award the brewery received from its victory in the Sixth Circuit.

Dean Lucy Dalglish

Dean Lucy Dalglish

One component of the initiative will be a First Amendment scholarship program done in conjunction with the  Philip Merrill College of Journalism at the University of Maryland, of which Lucy Dalglish (former executive director of the Reporters Committee for Freedom of the Press) is dean. Dalglish was present at yesterday’s press conference

Another component of the initiative will involve a a partnership with a public library. Staring next week, the Frederick County Public Library will host a series of lectures focusing on banned books and the First Amendment. The first three of those events will be held at 6:00 p.m. on the following dates:

  1. June 8Garrett Epps will discuss Whitman’s Leaves of Grass
  2. July 13: Michelle Markey Butler  will discuss Harry Potter and the Sorcerer’s Stone
  3. August 10: Ronald Collins, “The Poem that Howled Against Censorship: The Story of the Attempt to Ban a Book of Poems”
L-R: Jim Caruso, Erin Weston & Robert Corn-Revere

L-R: Jim Caruso, Erin Weston & Robert Corn-Revere

Moved to action by the Michigan Liquor Control Commission’s attempt to ban the company’s “Raging Bitch” beer from being sold within the state, Jim Caruso tagged the experience as “an outrageous violation of our First Amendment rights.” It was that experience that prompted him to launch the First Amendment Society. In the course of the press conference, Caruso was emphatic that “this is not a marketing tactic.” Alan Gura, the lawyer who successfully argued the case, echoed that point as he discussed the merits of the case and why it was important to litigate it.

Some of those present at the press conference were Robert Corn-Revere, Walter Olson, Nico PerrinoIlya Shapiro, and Bryan Thomas Hissing, Community Services Coordinator for the Frederick County Public Library

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