10

George H.W. Bush on the Bill of Rights

George_H._W._Bush,_President_of_the_United_States,_official_portraitIn my draft article on the Bill of Rights, I make a big deal about the sesquicentennial of the ratification of the first set of amendments in December 1941.  Now that I’m working on a book, I’ve been looking at the bicentennial in 1991.  One notable part of that celebration was a speech by President Bush 41 marking the occasion at Montpelier, James Madison’s estate in Virginia.

What I find interesting about this speech is that it gives a Reagan Revolution/1980s conservative take on the Bill of Rights that you don’t see elsewhere.  (This is also the only presidential address in recent decades that focuses on the Bill of Rights.)  Consider this passage:

[The Framers] gave us not a declaration of rights but a Bill of Rights, not a piece of propaganda but a set of legally enforceable constraints on government.  Most important, they drafted a Bill of Rights that reflected the higher nature and the aspirations of the American people, a bill that grew out of the American character, not one grafted onto it for the sake of some abstract theory.

There’s a lesson in this for today’s writers of national constitutions and international treaties, some of whom are with us today.  Today, one often hears the concept of rights attached to specific social services or material standards of living.  The framers, however, did not elevate acquisition of even the most vital goods and services to the status of rights.  They trusted people to make the most of their liberty and to respond to the challenge of assuming responsibility for themselves, their families, their communities, and their government.  And they understood that paternalism is just a sugar-coated tyranny.

Another insight from Bush’s speech is the way in which he discussed the Second and Third Amendments:  “The protections of personal rights, the safeguard against arbitrary actions of the military against private property, and the guarantee of the right to keep and bear arms have enhanced the public’s respect for our law enforcement and military authorities.”  He also talks at some length about the Takings Clause, the Tenth Amendment, and property rights.  You can find the whole thing here.

 

0

Best Practices Panel Report for LSAC

In May 2014, the United States Department of Justice (“DOJ”) and the California Department of Fair Employment and Housing (“DFEH”) entered into a consent decree with the Law School Admission Council (“LSAC”) regarding their practices regarding test accommodation requests on the LSAT.  Under this consent decree, they agreed to stop flagging test scores taken under conditions of accommodation, created a $7.73 million compensation fund for previous test takers not granted accommodations, agreed to some streamlined changes in their accommodation process, and agreed to implement additional best practices recommended by a five-person panel of experts.

DOJ/DFEH chose two members of the expert panel, LSAC chose two members and those four members chose the fifth member from a list created by DOJ/DFEH. The panel of experts issued its report on January 26, 2015. Those recommendations automatically go into effect unless one of the parties notifies the other parties that it plans to challenge some of these recommendations.

This executive summary summarizes the panel’s recommendations. The recommendations were fully supported by 4 of 5 panel members, including one panel member chosen by LSAC.

As one of the five panel members, I hope you agree that our recommendations are sound and appropriate, and should be implemented as soon as possible.  You might want to consider speaking to a member of the LSAC Board or LSAC Executive Director Daniel Bernstine about your support for our recommendations.

 

 

 

0

Facebook’s new Legacy Contact Option

I’ve now signed up for a Legacy Contact through Facebook, and I’ve designated trusted contacts to have access to my Google accounts through Google’s Inactive Account Manager when I no longer have access.  I think about these issues a lot: for the past few years, I’ve been working with the Uniform Law Commission on making it easier for fiduciaries to access the digital assets of the account holders for whom they are fiduciaries, and for account holders to plan on what will happen to their digital assets when they die.  Delaware has already enacted the legislation, and various states are considering it.  A few other states have non-comprehensive legislation.  So, in the absence of state laws – or even with state laws –  the problem is how to plan for your online life when you can no longer manage it.  Today, Facebook joined Google in prompting people to start making plans.  The options on Facebook are still somewhat limited — your Contact doesn’t have complete control over your page, and may not be able to delete it — but this is   a really positive development.

Setting up a Contact is quite easy from the Facebook Settings page, and more instructions are here.  I’ve also written quite a lot about this issue (as have many others!).

 

1

Certiorari Denials

Over on Balkinization, I wrote a post suggesting that the Justices adopt a practice of publicly noting the votes on each certiorari petition.  Since then, I’ve done some research that adds some context to that issue.

It appears that no Justice publicly dissented from a certiorari decision until 1950.  Justice Frankfurter was the first to do so, and he argued that noting dissents from every denial would be unwise because that would not convey any useful information.  In any given case, there could be many reasons for refusing to grant certiorari, thus doing so without an explanation would not tell you much, if anything.  In 1976, Justice Stevens argued (in what was in effect a concurrence to a cert denial), that noting cert dissents was a bad idea because it would breach the confidentiality of those discussions and thus hurt their quality.

I’m not persuaded by either of these explanations.  Sure a vote for or against certiorari (without more) is ambiguous, but does it really tell us nothing helpful?  And would the Justices really discuss the petitions differently if the votes were disclosed?  Now they might vote differently, but I’m not sure that the way they vote now is better in any meaningful way.

Now it is true that disclosure of this information may not be as high a priority as, say, getting oral arguments televised.  Fair enough.  But I still think (in a tentative way) that disclosure of certiorari votes would be a better practice.

1

FAN 47 (First Amendment News) Anniversary Issue: Returning “Home” — Looking Back on Fox v. Washington (1915)

Anniversary: It was a year ago (February 10, 2014 to be precise) that I posted my first FAN column on Concurring Opinions. Now, 46-plus posts later (there were also a number of non-scheduled posts), I think the endeavor well worth the time to spread the First Amendment word — the serious and silly, the admirable and objectionable, the high and low, the liberal and conservative, and everything in between and beyond. Thanks to Dan Solove (our blog publisher) for inviting me onboard. Dan’s respect for the integrity of the work product and his encouragement to take it to “the next level” have made the adventure all the more challenging and exciting. Thanks also to all those who so kindly directed First Amendment news my way. In the coming year I hope to improve on what works while testing out a few new ways of how to look at our free speech world. — RKLC      

Screen Shot 2015-02-05 at 12.17.49 AM

“The agitator is the mostly roundly abused and at the same time most necessary individual in society.” Jay Fox 

Colony of Home (credit: Justin Wadland, Trying Home (2014))

Colony of Home (credit: Justin Wadland, Trying Home (2014))

Ponder this creed: HOME is where freedom resides. That ideal was as much a personal hope as it was a political ideal for some who long ago traveled through Puget Sound to a cove in the Pacific Northwest. They toiled first to buy nearby land (26 acres) and then to build on it — not just log cabins but a commune of anarchists, radical feminists, artists, and free-thinking women and men dedicated to a way of living very much counter to the conventions of late 19th century America.

It began in 1896 when a group of free-spirt types, known as “Homeites,” set out to establish the utopian colony of Home. Things started out well in this idyllic community as more and more families came and pitched in to make Home their home. As they invested more and more of their lives into that experiment in freedom, their lifestyles drew more and more attention beyond the borders of their beloved Home. And that proved to be a problem — one with realpolitik consequences.

“In 1902, after charges of violation of the Comstock Act resulting from an article advocating free-love published in the local anarchist newspaper Discontent: Mother of Progress, Home’s post office was closed by postal inspectors and moved two miles to the smaller town of Lakebay.” (Source here). But that did not stop their counter-culture ways. True to their libertine life styles, some “Homeites” took to nude sun tanning in the woods of the Key Peninsula, near Tacoma in Washington State.

It was too good to last: In short time, four individuals were arrested for indecent exposure. Incensed by their arrests, on July 11, 1911 Jay Fox (1870-1961), the editor of The Agitator, published an essay entitled “The Nudes and the Prudes.” In it Fox — an independent-minded man devoted to halting “the crimes of capitalism” — urged boycotts of the businesses of those who railed against nude bathing.

Note: “The Agitator” bold text above is a copy of the original banner of Jay Fox’s publication.

According to Washington State historian and librarian Mary M. Carr, “The Agitator made its first appearance on November 18, 1910, although in his editorial Fox proclaimed that it appeared on November 11, the 25th [sic] anniversary of the execution of the Haymarket martyrs. (Actually, he was four days late for the 23d anniversary.) In its subtitle, The Agitator defined itself as an ‘Advocate of the Modem School, Industrial Unionism, and Individual Freedom.’ Fox declared that it would ‘stand for freedom first, last and all the time,’ and would promote the right of every person to express his opinions. He hoped to popularize knowledge so that common toilers, as well as the ‘rich and privileged class’ cou1d be ‘uplifted to philosophy and science.'”

“It is only by agitation that the laws of the land are made better. It is only by agitation that reforms have been broughtabout in the world. Show me a country where there is the most tyranny and I’ll show you the country where there is no free speech. This country was settled on that right, the right of free expression.”Jay Fox (January 11, 1912)

Not surprisingly, Fox’s passionate opposition to the prudish ways of those in power did not sit well with Washington State’s bluenose establishment. Hence, he was prosecuted  under a Washington statute that prohibited printing or circulating publications that encouraged a commission of a crime. Fox was tried and convicted in 1912 and received a two month sentence, which the Washington Supreme Court declined to set aside in State v. Fox, 71 Wash. 185 (1912). Review was then sought in the United States Supreme Court.

The lawyers Read More

0

Grant Gilmore’s Resurrection . . . with a little help from Philip Bobbitt

 Grant was a magician in an age of bureaucrats. — Anthony Kronman (1982)

Grant Gilmore

Grant Gilmore

The Ages of American Law has been reissued with a new foreword and a new final chapter by Columbia Law School Professor Philip Bobbitt. More about that soon, but first a few words about the man recently reincarnated.

Grant Gilmore died on May 24, 1982 — the same date of Benjamin Cardozo’s birth (May 24, 1870). G.G. died in his sleep; he was 72.

Gilmore was a Yale man (AB, 1931, PhD, 1936 & L.L.B, 1942) bred in the Boston suburbs. He began his academic career teaching French at Yale, but he tired of it and so ventured into law. He taught at Yale Law School, University of Chicago Law School, the College of Law (now Moritz College of Law) at Ohio State University, and finally at Vermont Law School. His books included:

Though he was picked by the executors of the Oliver Wendell Holmes papers to do the definite biography of Justice Holmes (very strange!), it never came to pass. And he never published his PhD dissertation — Stephane Mallarme: A Biography and Interpretation (1936). By way of an interesting aside: In 1959 Professor Arthur Corbin privately recommended Gilmore to serve as an advisor for the drafting of The Restatement (2nd) of Contracts (also strange). As fate had it, that, too, never came to pass and Gilmore never became a “restater.”

By the time he died, the complex and cantankerous Gilmore had made his mark on the law, and a notable though peculiar mark it was. For all his fame and infamy, no gravestone marked his memory. His scattered ashes were his final consideration, illusory as that may seem.

Ironically, this bold and blazing scholar left his papers to the Harvard Law School — the same institution that held firmly to the conviction that “inspiration should be distrusted,” or so Gilmore put it in 1963, albeit with a critical cutting edge.

∇ ∇ ∇

Philip Bobbitt

Philip Bobbitt

And now, like the Phoenix of old, he returns to find new life. Or at least that part of him arising from The Ages of American Lawwhich has just been republished in Kindle form. Here, as Professor Bobbitt recounts it, is how it came to pass: “In late 2011, I was approached by an editor at Yale University Press, who was considering a revised edition of Grant Gilmore’s classic, The Ages of American Law. I responded that I would be pleased if the Press would publish, as a Foreword to such an edition, my 1975 essay in the Yale Law Journal introducing one of Gilmore’s lectures, ‘The Age of Anxiety,’ which he reworked to form Chapter 4 of the book. After reading that essay,” adds Bobbitt, “the editor proposed that it be published as a ‘historical document with a preface to provide context’ and that I should also draft a new section bringing it up to date, as apparently some readers wished in the classes in which the book is taught.”

41seNslJYSL._BO2,204,203,200_PIsitb-sticker-v3-big,TopRight,0,-55_SX278_SY278_PIkin4,BottomRight,1,22_AA300_SH20_OU01_That is how Bobbitt’s fascinating foreword begins. But there is much more, about Robert Cover, the famed Storrs Lectures (Oct. 1974), and young Philip Bobbitt’s role in it all. (Gilmore thanked Bobbitt in the acknowledgements to Ages. It was, after all, Bobbitt who had drafted the “Editors’ Introduction” to Gilmore’s “The Age of Anxiety” essay published in 1975 in the Yale Law Journal).

Bonus: There is a new 50-age chapter (#6) added to Ages: it is by Bobbitt and is titled “The Age of Consent,” which first appeared last year in the Yale Law Journal.

* * * *

 Book Review of The Ages of American Law, Mark Tushnet, American Journal of Legal History (1977).

→ Ellen A. Peters, “Grant Gilmore and the Illusion of Certainty,” Yale Law Journal (1982)

5

Charge of the Light Brigade

If you were the lawyer given the task of defending the same-sex marriage bans in the Supreme Court, how would you approach the oral argument given that you are certain to lose?  In almost every other case there is at least the possibility (however slim) of winning.  Here, though, the Court’s treatment of the certiorari petitions and the stay requests makes the final outcome clear enough.

Do you treat the argument as a ceremony and perform your part?  Do you go down guns blazing?  Do you find some way to protest?  (It would be possible, for example, to imagine someone just saying “We stand on our brief” and sitting down.  I wonder if that’s ever happened in the Supreme Court.)  It’s an odd situation.

9

Chief Justice Roy Moore is a Clown

I suppose this goes without saying, but his so-called order to the probate judges of Alabama that they should not issue marriage licenses to same-sex couples is absurd.  I hope that any couple that could not marry today (as ordered by the Federal District Court and not stayed by any other federal court) sues him and the relevant probate judge for damages under Section 1983 (preferably before the same federal district judges that issued the same-sex marriage opinion).

Personally, I think that the Supreme Court should have granted certiorari in the Fall and stayed all of the lower court opinions until ruling on the merits.  At this point, though, the train has left the station.  (Go read Justice Thomas’s dissent from the stay denial today to see what that looks like.)  Why stay a ruling that you know you will affirm in June, I suppose.

1

FAN 46.1 (First Amendment News) The Court’s 2014-15 Free Expression Docket & Other News

The next FAN posting (#47, this Wednesday) will be an anniversary issue dedicated entirely to an account of Fox v. Washington (1915), a First Amendment opinion authored by Justice Oliver Wendell Holmes for a unanimous Court. Given that, I thought I’d offer a few news items, including an update of the Court’s Free Expression Docket.

______________________________________________________________________________

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

The Court’s next Conference is on February 20, 2015.

Review Granted

  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) (to be 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. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Kagan v. City of New Orleans (see Cato amicus brief  of Ilya Shapiro & Eugene Volokh)
  6. Friedrichs v. California Teachers Association, et al.
  7. ProtectMarriage.com-Yes on 8 v. Bowen

Review Denied

  1. Pregnancy Care Center of New York v. City of New York 
  2. City of Indianapolis, Indiana v. Annex Books, Inc.
  3. Ashley Furniture Industries, Inc. v. United States 
  4. Mehanna v. United States
  5. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  6. Vermont Right to Life Committee, et al v. Sorrell

New Scholarly Articles Read More

0

The Legacy of Ruth Bader Ginsburg

Edited by esteemed civil procedure scholar Scott Dodson, the newly released book “The Legacy of Ruth Bader Ginsburg” is a significant contribution. The release is beautifully timed: the public is rightfully taken with Justice Ginsburg’s insights. Hopefully, I will have Professor Dodson back to the blog to talk about the book in detail but for now here is a description.

Ruth Bader Ginsburg is a legal icon. In more than fifty years as a lawyer, professor, appellate judge, and associate justice of the U.S. Supreme Court, Ginsburg has influenced the law and society in real and permanent ways. Her impact on the law cannot be overstated. Yet no book on Ginsburg’s legacy exists. This book fills that gaping void by chronicling and evaluating the remarkable achievements Ginsburg has made over the past half century. Including chapters written by prominent court watchers and leading scholars from law, political science, and history, it offers diverse perspectives on an array of doctrinal areas and on different time periods in Ginsburg’s career. Together, these perspectives document the impressive – and continuing – legacy of one of the most important figures in modern law.

The book’s contributors include Nina Totenberg of NPR fame, Chief Judge Robert Katzmann (Second Circuit), Reva Siegel (Yale) and Neil Siegel (Duke), Lani Guinier (Harvard), Herma Hill Kay (Berkeley), Dahlia Lithwick (Slate), Aziz Huq (Chicago), Cary Franklin (Texas), and Tom Goldstein (SCOTUSblog), among others. Jacket reviews are by Trevor Morrison (NYU) and Ginsburg’s two biographers, Wendy Williams (Georgetown) and Jane De Hart (UCSB). Readers can download a free e-copy of the Preface, Table of Contents, and Coda from SSRN.

The book’s already gotten some good press. My co-blogger and First Amendment guru Ron Collins has a write up of the book on SCOTUSblog (along with some other recommended books). Civil rights scholar Nancy Leong of Denver University School of Law has a podcast interview of Scott Dodson on the book for her inaugural episode of RightsCast. Above the Law’s David Lat has been Tweeting about it. And Justice Ginsburg herself mentioned it to a huge crowd at the AALS Conference earlier this month and said that she would make sure it was available for purchase in the Supreme Court gift shop.