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UC Davis Law Review, Issue 50:4 (April 2017)

Articles

Who Counts for One Person, One Vote?
Nathaniel Persily

The Interaction of the Pregnancy Discrimination Act and the Americans with Disabilities Act After Young v. UPS
Deborah A. Widiss

Stitches for Snitches: Lawyers as Whistleblowers
Dennis J. Ventry, Jr.

Water and Taxes
Dave Owen

McDonnell and Anti-Corruption’s Last Stand
Jacob Eisler

Performative Privacy
Scott Skinner-Thompson

The First Amendment Right to a Remedy
Benjamin Plener Cover

Note

Trust and Antitrust: State-Based Restrictions in Telemedicine
Wynter K. Miller

lawreview.law.ucdavis.edu

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Hillbilly Elegy as Rorschach Test

I have already made clear in a prior post some of the reasons I am not a  fan of Hillbilly Elegy: A Memoir of a Family and Culture in Crisis, J.D. Vance’s best selling 2016 memoir:  I think Vance is using his personal narrative to advance a neo-con agenda (and I will freely admit I don’t trust anyone who would work with Peter Thiel).  Further, I don’t think the book lives up the hype.

But lots of folks I know and respect do seem to like the book, and they have been willing to defend it.  Following are my recollections of some of the conversations I have had about Hillbilly Elegy, most of them initiated by my friends and acquaintances rather than by me–for whatever that’s worth.

Family, Luck and the Luck of Family.  When I opine that I see Vance takes too much credit for his success (which is not to say he deserves no credit) and focuses too much on the staple of conservative politics, “personal responsibility,” several friends have disagreed.  One said “No, he doesn’t take credit.  He says he got lucky by virtue of his stalwart grandparents who loved him” and kept him between the ditches (the latter part being my hillbilly paraphrase of what my friend actually said, which I don’t recall verbatim).  Ok.  Fair enough.  Yes, he appropriately gives his grandparents lots of well-deserved credit, and I relate to that.  I would never have made it to college or beyond without my mom and other key folks in my community who encouraged me and expected great things.  But family and friends as cheerleaders will not, alone, get you through college or graduate school–especially when they have never been there themselves and can rarely help you set appropriate goals.

It’s Really Complicated.  When I told another friend that I think Vance takes too much credit for his success, she (a Harvard educated lawyer) said, “Oh no. What he is saying is that it’s all very complicated.”  Well, I can hardly argue with that.  Of course it’s complicated!  But this is sorta’ like Donal Trump saying health care reform is complicated or the North Korea situation is complicated.  Are you kidding me?  The fact that the world didn’t know it was “complicated” before J.D. Vance published Hillbilly Elegy is, frankly, embarrassing.  (In this vein, read Alec MacGillis’s excellent piece in The Atlantic).  People living below, at, or hovering above the poverty line have very difficult lives–even if they are white (and I hope to return to the matter of whiteness in a dedicated way in a subsequent post).  Reports of what are now being called “Deaths of Despair” among low-education whites came out as early as 2013, such as here; among these is Case and Deaton’s high profile study in the fall of 2015.  We should know that these folks exist and that when they are able to escape the bonds of the low-income, low-education world, it pretty much requires a harmonic convergence–a small, multi-faceted miracle–every time.  It takes some combination of family support, mentoring, lucky breaks (which can include stable grandparents, like J.D.’s), sheer native ability, perseverance, grit and–yes–hard work.

Oh, I would argue that it takes “the state”!  Vance talks only vaguely of Pell Grants, government-backed student loans, or work study–or any other way that his family received any benefit from government policies, be they the EITC or food stamps or  … How about his public university degree from Ohio State?  the GI Bill?  In the last chapter, which is his policy recommendations chapter, he does refer opaquely to his grandparents’ Social Security, so there’s that.  Maybe I overlooked the structural stuff.  But for the most part, as Sarah Jones highlighted in her New Republic review, Vance writes as if the state is not an actor, either by omission or commission.  Really?  Can it be that the state was irrelevant to Vance’s class migration?  that all the state did for him is permit him to become a Marine and thereby bootcamp some discipline into him?  Is this absence of government what so many across the political spectrum find so appealing about Hillbilly Elegy?  Further, is it possible that the state can or should play little or no role in the plight of those left behind?

Memoir vs. Policy Manual.  When I told another acquaintance–a childhood  immigrant from Poland, a relatively recent University of Michigan law graduate–that I found Vance’s dalliance in policy matters annoying and regressive, she said she hadn’t really noticed, had skimmed over those parts.   She then allowed that the book probably worked better as a memoir than as a policy document.  I agreed.  But I was also somewhat puzzled that this white class migrant (her father was a truck driver, just like mine, and she, like Vance, had served in the military) had  been so taken with Vance’s narrative, his version of events.  Her own journey didn’t sound terribly different to his (though I assume the absence of extreme parental dysfunction and addiction)   That journey had, however, taken place in a major American city rather than a corner of Appalachia, which may have sufficiently differentiated it from her own to make Hillbilly Elegy interesting in her eyes.

Window into Another World.  A well educated, thoughtful and sage (yoga instructor, no less!) friend from an “old money” family back East asked me what I thought about Hillbilly Elegy.  Her book group was about to discuss it, and she said she felt the book was providing her insights into the value of relationships and people whom she would previously have dismissed as uncouth at best.  Specifically, she said that if she had met Vance’s cursing, gun-toting grandmother, she would have been entirely  disdainful–until she read the book, that is.  Hillbilly Elegy had helped her to see the value in Vance’s Mamaw.  I said, “fair enough, but read what I have written about the book,” and I passed along a partially written review.  It is self-serving to report, but my friend came back with, “yes, I can see your reflections on your upbringing are more mature and thoughtful than Vance’s. Nevertheless, I did benefit from Hillbilly Elegy as a window into another world.”  And this brings to the last of the exchanges that I will share …

Is Vance Seasoned enough to be publishing a “Memoir”?  As I have previously mentioned, not many written reviews of Hillbilly Elegy have been anything other than glowing.  In addition to the Sarah Jones review I have already cited and quoted, I have read very little negative commentary about the book.  Some of the few “bad” reviews I have seen were in the Daily Yonder, an online publication/blog of the Center for Rural Affairs (I know you are chuckling, but this is a serious outlet for rural perspectives and rural news).  They published three reviews, none of which was very flattering, and  two of which called out the inappropriateness (and perhaps even absurdity) of someone publishing a “memoir” at the age of 31.  One, Jim Branscome, a former managing director of Standard & Poor’s and a former staff member of the Appalachian Regional Commission, quotes Vance’s own book introduction.

I find the existence of the book you hold in your hands somewhat absurd.

Branscome then summarily agrees with the statement.  In another review, Charles L. Baker, a native of Eastern Kentucky and retired CEO of Presbyterian Child Welfare Agency, expands on that notion:

J.D. Vance lacks the maturity to see the blind spots that trouble his book… The culture he blames for spreading failure gave him some of the values that helped him succeed.  And the government he says institutionalized poverty in Appalachia helped him find a way into the middle class.

Baker’s review–like that of Sarah Jones–reminds us that Hillbilly Elegy is not just the story of Vance’s escape from Appalachia, it is the story of the multitudes left behind.  (This, of course, is why CNN regularly brings Vance on to educate the viewing public about the supposedly quintessential Trump voters).  The book’s importance is as much or more in what it says about the failures of Vance’s people as it is about Vance’s “phoenix from the ashes” success.  Don’t doubt, though, that both aspects of the book have made it especially popular among conservatives and libertarians.  Vance gets to be the poster child for Reagan’s vision of the potency of personal responsibility.  Yet many of us who have trod that path are less likely to “lean into our own understanding,” much less take so much credit for our own success without also acknowledging the many structural handicaps that hold back our communities and families of origin.

As for Vance’s maturity, I acknowledge that a childhood and youth like J.D. Vance’s will prematurely age a person.  It’s an exhausting way to live, and that which doesn’t kill you will not only make you stronger, it will often result in what I shall call premature maturity.  Nevertheless, Vance, a few years out of Yale Law, is surely nowhere close to maxing out on wisdom.  I wonder how the decades to come might lead him to reflect differently not only on his own journey, but also on what his people need, on the array of factors that are holding them back, keeping them down. (You may have heard that, in recent months, Vance has moved back to Ohio where he will be using some of the fruits of his labor to start a foundation; I anticipate a run for public office in his near future.)

I am thinking it is no coincidence that the few naysayers about Hillbilly Elegy that I have managed to identify are mostly from the region, and some of us are class migrants.  (Other important reviews of Hillbilly Elegy from those in the region are here and here; Jedediah Purdy, who grew up in Appalachia and teaches at Duke Law reviews the book here, though he is more descriptive than critical). We see a greater role for the state in places like Appalachia and the Ozarks and, like Vance, we have first-hand knowledge of the milieu.  We see the structural barriers to not only getting to Yale Law School (and few from any place or milieu even aspire to that), but the ones that keep kids from getting through high school or enrolled in community college or securing a decent blue-collar living.

In the 2016 election cycle, Democrats seem to have neglected these people and what government can (and should?) do for them.  Indeed, Hillary Clinton hardly showed up in rural America.  If liberals think Hillbilly Elegy represents some “gospel truth” about low-income, low-education whites, they may well continue down the current path of self-destruction, failing to prioritize races in rural places with large white working class populations (read more here and here).

In closing this post, let me return to Sarah Jones of the New Republic, because I can’t sum up my feelings about the election of 2016 and what working class whites need and deserve any better than she did (emphasis added):

By electing Trump, my community has condemned itself to further suffering. … Our schools will get poorer and our children hungrier. It will be one catastrophic tragedy out of the many a Trump presidency will generate. So yes, be angry with the white working class’s political choices. I certainly am; home will never feel like home again.

But don’t emulate Vance in your rage. Give the white working class the progressive populism it needs to survive, and invest in the areas the Democratic Party has neglected. Remember that bootstraps are for people with boots. And elegies are no use to the living.

I’ll be returning soon with more thoughts on other important issues that Hillbilly Elegy brings to the fore.

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Steve Bright

Yesterday the Supreme Court heard oral argument in McWilliams v. Dunn, a capital punishment case. The case was argued for petitioner by Steven Bright, the director of the Southern Center for Human Rights. Bright recently announced that he will retire as the Director after more than thirty years of advocacy against the death penalty.

I took a class from Steve Bright when I was a law student, and he is a remarkable man. While I do not believe that the death penalty is unconstitutional under all circumstances, his work and example did convince me that many capital sentences are unconstitutional and that the use of that sentence should be reserved for a handful of cases (far fewer than what is done now). So I just wanted to take a moment to salute him and wish him well in whatever he does next.

 

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FAN 149 (First Amendment News) On hate speech: Will Howard Dean publicly debate Eugene Volokh?

Suggestion: Howard Dean should debate Eugene Volokh at the Newseum, or at the National Constitutional Center, and/or on air — say, on CNN’s The Lead with Jake Tapper or Fox’s Tucker Carlson Tonight or on MSNBC’s Morning Joe or elsewhere. Here is why I suggest this.  

Howard Dean

The Berkeley controversy began with a back-and-forth over cancelling and then postponing Ann Coulter’s speech at the very campus known for launching its own free-speech movement.

Then Ms. Coulter ratcheted it up a bit more with this tweet: “I’m speaking at Berkeley on April 27th, as I was invited to do and have a contract to do.”

Most recently, a First Amendment lawsuit was filed as this controversy continues to prompt ideological posturing.

Earlier, and on a related from, Steven Greenhouse weighed in with a tweet: “Free Speech Defenders Don’t Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building.”

Now onto the reason why I suggest a Dean-Volokh on-air debate.

Apparently, Greenhouse’s tweet got Howard Dean’s juices flowing, so he took to Twitter:

Not to let such an assertion pass uncontested, Professor Eugene Volokh added this to the mix:

“This leads me to repeat what I’ve said before: There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans. As the Supreme Court noted in Christian Legal Society v. Martinez (2010), the First Amendment’s tradition of ‘protect[ing] the freedom to express ‘the thought that we hate’ ‘ includes the right to express even ‘discriminatory’ viewpoints. (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)”

Professor Eugene Volokh (credit: UCLA Magazine)

“To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. . . . ”

And then this:

To which Volokh replied: , No, Gov. Dean, Chaplinsky v. New Hampshire does not recognize a ‘hate speech’ exception, The Volokh Conspiracy, Aril 22, 2017. Here are a few excerpts:

“I’m pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a ‘fighting words’ exception to the First Amendment — personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected. But that has little to do with ‘hate speech’ as most people tend to use the phrase: (1) Such personal insults are constitutionally unprotected entirely without regard to whether they are bigoted. (2) Bigoted expressions of opinion that don’t involve such personally addressed face-to-face insults are constitutionally protected. (3) Indeed, statutes that target only bigoted ‘fighting words’ for special punishments are constitutionally unprotected, even if they are limited to such personally addressed face-to-face insults, see R.A.V. v. City of St. Paul (1992).”

Then on MSNBC, Mr. Dean countered: “Okay, several things to think about. One, the United States has the most far-reaching protections on speech of any country in the world. Two, it’s not absolute. Three, there are three Supreme Court cases you ned to know about. One, the most recent, is a John Roberts opinion that said that the Phelps people . . . had the right to picket horrible offensive [things] with signs [at] military funerals. Two, in 2002, . . . the Supreme Court . . . said that cross-buring was illegal because it could incite violence. And three, [the] Chaplinsky case in 1942 said speech was not permitted if it included fighting words that were likely to incite violence. So, this is not a clear-cut [case] . . . . Ann Coulter has used wrods that you cannot use on television to describe Jews, Blacks, gays, Muslims and Hispanics — I think there is a case to be made that invokes the Chaplinsky decision, which is fighting words, likely to incite violence. And I think Berkeley is with its rights to make the decision that it puts there campus in danger if they have her there.”

“I’ll be the first to admit, it’s a close call, it’s a close call,” he added.

*  * * *  *  *

↑→ For a refutation, see Jim Geraghty, Howard Dean’s First AmendmentNational Review, April 24, 2017

Related: Marc Randazza, Dear Berkeley: Even Ann Coulter deserves free speech, CNN, April 24, 2017

Did anti-Trump protestors violate his First Amendment rights?

(credit: Politico)

This from Politico’s Kenneth Vogel: “President Donald Trump’s lawyers argued in a Thursday court filing that protesters “have no right” to “express dissenting views” at his campaign rallies because such protests infringed on his First Amendment rights.The filing comes in a case brought by three protesters who allege they were roughed up and ejected from a March 2016 Trump campaign rally in Louisville, Kentucky, by Trump supporters who were incited by the then-candidate’s calls from the stage to ‘get ’em out of here!’ Lawyers for Trump’s campaign have argued that his calls to remove the protesters were protected by the First Amendment. But the federal district court judge hearing the case issued a ruling late last month questioning that argument, as well as the claim that Trump didn’t intend for his supporters to use force.”

“Of course, protesters have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose,” Trump’s lawyers told Newsweek.

 Defendants’ motion to certify an interlocutory appeal in Nwanguma et al v. Donald Trump, President of the United States (Dist. Ct.,, W.D., KY, 2017).

 R. Kent Westberry is counsel for Donald Trump, both as President and individually.

“The Trump Defendants request that the Court certify the following issues:

  1. Whether the First Amendment protects Mr. Trump’s campaign speech as a matter of law, or whether the speech falls within the narrow category of expression that can be subject to censorship for ‘inciting a riot’
  2. Whether the First Amendment precludes holding a speaker liable for negligently causing others to engage in violence.”

Susan Seager, a noted media lawyer,  commented on the claims made by President Trump’s lawyer:

President Trump makes an argument already rejected by the court.  The court ruled that the anti-Trump protesters did have a right to attend the rally since they obtained tickets and were allowed to enter by organizers.  The court said they were not trespassers. Once inside, the protesters did have a First Amendment right to peacefully protest. Organizers had the right to eject them, but not violently.

 Related: Noah Feldman, Trump Lawyers Get Creative With First Amendment, BloombergView, April 24, 2017

Justice Department targets Assange . . . & other leakers  Read More

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On Donald Trump, J.D. Vance, and the white working class

Thanks for the opportunity to guest blog here at Concurring Opinions. Though I am a law professor on a law faculty, I plan to spend much of the time and space afforded by this blogging invitation to write more about politics and culture than about “law” in a narrow sense. Indeed, a great deal of my scholarship over the past decade has drawn heavily on politics and culture, and I’ve even had the opportunity to engage in some political punditry post-Election 2016.  I plan to write some posts about rurality, yes, but I’m also going to write a series of posts about low-income, low-education whites, a population with which we as a nation have a newfound fascination following the election of Donald Trump, who drew considerable support from this demographic segment. I hope readers will provide some feedback on these musings, as I am engaged in ongoing, more substantial writing about this population as a critical race project, exploring what is at the particular intersection of white skin privilege with socioeconomic disadvantage and distress.

I’m going to begin with some musings on J.D. Vance’s Hillbilly Elegy: A Memoir of a Family and Culture in Crisis (HarperCollins 2016), a book that has been widely reviewed—and nearly as universally praised—since its publication early last summer. If you think you’ve read all you need to know (or all you can stand!) about this bestseller, bear with me.  I’m not going to join the resounding chorus of praise you’ve you already consumed regarding Hillbilly Elegy.  Further, what I find interesting about the book is less its content than the elite, coastal reaction to it. (Yes, fellow law professors, when I say “elite,” I’m talking about us, you and me, along with the media and other privileged institutions of the narrating classes/interest public.)

Let me preface my comments by outing myself as a class migrant and a hillbilly. Vance grew up in Appalachia; I grew up in the Arkansas Ozarks, both high and/or persistent poverty white regions. I’m a first generation college graduate (and, as a law graduate, a first generation professional), and I’m not sure if Vance also is, given that his mother was a nurse.  Nevertheless, we’ve both migrated from being low-income, low-status whites to being higher status whites, largely by virtue of access to and consumption of a great deal of higher education.

Shortly after Hillbilly Elegy was published, one of my former law professors asked me, only partly tongue in cheek, if I had written the book—then quickly added, maybe “you should have written it.” (This makes for an interesting reminder that I was apparently not class passing very effectively back in law school). You get the idea: my own life story shares many similarities with Vance’s (though I’m two decades older, and upward mobility for po’ folk has declined over the 20 years that separate me from J.D.), sans the elite law degree (my J.D. is from the University of Arkansas, Vance’s from Yale).  This latter distinction may be quite significant in any number of regards, and I hope to return to that point in a subsequent post.

While I have reflected on my own class migration in some law review articles (here and here), I did not reach for the brass ring of a popular press book contract. So, alas, J.D. Vance is a millionaire, best-selling author who appears regularly on television as everyone’s  favorite “white trash ‘splainer” and I continue to toil away in the obscurity of my Ivory Tower.  All of this means, among other things, that if you think I’m too hard on Hillbilly Elegy, you can write it off as sour grapes.

Let me begin, though, by telling you what I liked about Hillbilly Elegy. First and foremost, before I started reading it, I loved the fact that someone had written a book about this milieu—my people, too, I assumed—and that the media outlets I consume (mostly liberal, all elite) were paying attention to it. I sent lots of affirming Tweets, cheering on the new book.  Second, once I finally started reading the book, I found that the memoir parts (as opposed to the social science blurbs and policy suggestions) of the book rang authentic, so much so that I found myself both laughing and crying at the tales of Mamaw and Papaw. I, too, grew up in a family of straight-talking folks who often expressed themselves in colorful language, delivered at high volume, sometimes with guns. Many of the vignettes resonated strongly with me based on my own hillbilly upbringing.

Third, I thought Vance provided an occasional insight into his people, who seem closely akin to “my people.”  For example, Vance talked about their attitudes toward Obama, noting, among other things, that “[h]is accent—clean, perfect, neutral—is foreign; his credentials are so impressive they’re frightening…he conducts himself with the confidence that comes from knowing that the modern American meritocracy was meant for him.” With this passage Vance contrasts the knowledge in his Ohio community—a realization that hit at about the time “Obama came on the scene”—that “the modern American meritocracy was not built for them.” (p. 191).  Ah, yes, meritocracy, shmeritocracy.  Guinier refers to The Tyranny of Meritocracy, a title that speaks volumes.  “Meritocracy” has actually come to be for only a select few, and they are not by and large the children of Appalachia and the Ozarks.  Read more here.

My read is that Vance is opining that the disaffection of the white working class is not so much about race as the mainstream media seem to have concluded. It is more about a growing sense that working class whites’ prospects are declining, and this has happened more dramatically as elites have come to dominate both the Democratic and Republican parties.  I also give Vance credit for calling our attention to white working class distrust of the mainstream media—even before the election made it an undeniable force. Indeed, Vance notes–months before the election of 2016–the significance among hillbillies of Alex Jones and others who perpetuate what we now call “fake news.” (p. 192)

Yet contrary to many reviewers’ opinions, I did not find Hillbilly Elegy especially well written—even acknowledging that it would take extraordinary skill to write about a life permeated by such sensitive and stigmatized matters, e.g., domestic violence, drug abuse, gun toting grandmothers. Nevertheless, a much stronger memoir of a low-income, dysfunctional white family and the author’s escape from it is Pulitzer Prize winning journalist Rick Bragg’s All Over But the Shoutin’ (1998). A much more compassionate depiction and far more incisive commentary about this milieu can be found in Joe Bageant’s Deer Hunting with Jesus: Dispatches from America’s Class War (2007). Among tales of class migration, Alfred Lubrano’s Limbo: Blue-Collar Roots, White-Collar Dreams (2005) is superb. I don’t recall those books garnering nearly as much media attention as Hillbilly Elegy, but that may be because the one thing Vance got most “right” was his timing.

So why have so many reviewers been complimentary of Vance’s writing? I have two theories. First, reviewers may be surprised that anyone who grew up with so much childhood and adolescent trauma—in Appalachia no less—is capable of writing a solid sentence, let alone a solid paragraph.  (Yes, I’m suggesting a best selling memoir should require more than that).  Alternatively, reviewers may give any graduate of Yale Law School a free pass—that is, Vance may enjoy a presumption that he is a good writer because he earned a law degree at Yale. Vance does in the book’s latter chapters acknowledge the extraordinariness of his elite education and the doors it opens (chapters 12-13).

Hillbilly Elegy is also made less readable by Vance’s distracting practice of peppering policy prescriptions (e.g., food stamps (SNAP) are bad because poor white folks abuse them (p. 139); unregulated payday lending is good because it gives poor folks choices (p. 185)) awkwardly amidst his first-person narrative. Sometimes these are accompanied by social science or other evidence to bolster a point, or to explain the psychology of a phenomenon he has experienced by virtue of his traumatic upbringing. Sarah Jones, writing in the New Republic, called the book mostly “a list of myths about welfare queens repackaged as a primer on the white working class.” (Indeed, I recently published an essay arguing that our nation increasingly views these two populations similarly, showing no more sympathy (or empathy) for poor whites than for poor blacks.) Even more problematic, to my mind, is Vance’s use of those myths to advance a regressive policy agenda.

In my next post, I’ll return with a more substantive critique of Hillbilly Elegy–and, implicitly, a commentary on the book’s fans.

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Announcing Supreme Court Opinions

I’ve been listening to audio on oyez.org of the public announcements in famous recent Supreme Court opinions. (I was in the Court for the announcement of City of Boerne v. Flores, by sheer happenstance.) While these statements are interesting historical artifacts and do convey the personalities of the Justices to some extent, I’m left to wonder why the Court still goes through this old-fashioned exercise. Today every merits opinion is posted on the Court’s website for immediate download.  This is how opinions are released by federal circuit courts and by most state supreme courts. They do not convene an open session to announce decisions. (Maybe some state supreme court also does an oral announcement–I’d be curious if anyone knows.)

I can think of two reasons that might support continuing the announcement tradition.  One is that the Justices are helping the journalists who cover the Court by summarizing opinions being issued. How much they are helped by what gets said is another question. Second, the oral tradition allows dissenting Justices to emphasize their disagreement by making a statement to that effect from the bench.  Does this add anything to the written dissent?  I would say no.

Of course, announcing opinions orally usually does no harm, though I can think of some instances in which a Justice said something impolitic while announcing a dissent (Justice McReynolds did this once in comparing the federal government’s partial repudiation of the gold standard with Nero’s debasement of the currency, which then led people to think he was calling FDR a Nero.)

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Introducing Guest Blogger, Lisa Pruitt

 

Concurring Opinions is delighted to introduce Professor Lisa Pruitt, Martin Luther King, Jr. Professor of Law at UC Davis School of Law. Her interests include Law and Rural Livelihoods, Feminist Jurisprudence, the Legal Profession, and Torts.  Pruitt’s career spans the globe, literally and figuratively. Before joining the UC Davis law faculty in 1999, she worked abroad for almost a decade in settings ranging from international organizations to private practice.

Pruitt’s recent scholarship is closer to home as she writes about the intersection of law with rural livelihoods, principally in the domestic context.  Her work considers a range of ways in which rural places are distinct from what has become the implicit urban norm in legal scholarship. Pruitt reveals, for example, how the economic, spatial, and social features of rural locales profoundly shape the lives of residents, including the junctures at which they encounter the law. Her work considers how rural spatiality inflects dimensions of gender, race, and ethnicity. Among this work is a recent focus on low-income whites as a critical race project, exploring the paradoxical intersection of white-skin privilege with socioeconomic deprivation.  In the wake of the 2016 election, Pruitt’s work on both rural livelihoods and the white working class has attracted media attention.

A full list of recent publications is here.  Selected recent publications include a contribution on Planned Parenthood of Southeastern Pennsylvania v. Casey in U.S. Feminist Judgments, as well as:

Protecting People, Protecting Places: What Environmental Litigation Conceals and Reveals about Rurality, 47 Journal of Rural Studies 326-36 (2016) (co-authored with Linda T. Sobczynski) (special issue on Rural Dimensions of Environmental Injustice).

Welfare Queens and White Trash, 25 Southern California Interdisciplinary Law Journal 289 (2016) (“Reframing the Welfare Queen” symposium).

The False Choice between Race and Class and Other Affirmative Action Myths, 63 Buffalo L. Rev. 981 (2015).

Who’s Afraid of White Class Migrants? On Denial, Discrediting and Disdain (and Toward a Richer Conception of Diversity), 31 Columbia Journal of Gender and Law 196 (2015).

Welcome, Lisa!

 

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Harlan Fiske Stone

One person who probably deserves a new biography is Chief Justice Harlan Fiske Stone. I just finished reading Alpheus Mason’s book on the Justice, which was written in 1956.  It’s a thorough and engaging account, but there are a couple of problems with the book.  First, it is a rather fawning account–the subtitle might as well have been “He Was Fabulous.” Second, the story is quite dated, as you might expect from a book written sixty years ago. Race is largely absent from the narrative, as is as any discussion of Stone’s decision to join Holmes’ opinion in Buck v. Bell. Stone also made the unfortunate decision (when he was Attorney General) to name J. Edgar Hoover as the FBI Director, which the book talks about relatively briefly.

Stone is a near-great Justice.  He isn’t in the first rank because his opinions aren’t that quotable. But his contributions after the “switch-in-time,” especially Carolone Products and Darby, remain vital texts for understanding judicial review.  Someone should tell his story again.

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Vanderbilt Law Review, Volume 70, Number 3

The Vanderbilt Law Review is pleased to announce the publication of our April 2017 issue:

ARTICLES

Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777 (2017)

Fred O. Smith, Jr., Undemocratic Restraint, 70 Vand. L. Rev. 845 (2017)

Abbye Atkinson, Consumer Bankruptcy, Nondischargeability, and Penal Debt, 70 Vand. L. Rev. 917 (2017)

ESSAY

Timothy Meyer, Saving the Political Consensus in Favor of Free Trade, 70 Vand. L. Rev. 985 (2017)

NOTES

Clinton M. Barker, Substantial Guidance Without Substantive Guides: Resolving the Requirements of Moore v. Texas and Hall v. Florida, 70 Vand. L. Rev. 1027 (2017)

Laura E. Dolbow, A Distinction Without a Difference: Convergence in Claim Construction Standards, 70 Vand. L. Rev. 1071 (2017)

Benjamin Raker, Reading Remedially: What Does King v. Burwell Teach Us About Modern Statutory Interpretation, and Can It Help Solve the Problems of CERCLA § 113(h)?, 70 Vand. L. Rev. 1143 (2017)

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Tax Returns and Ballot Access

I want to weigh in on the debate over whether states can constitutionally insist that presidential candidates must make some of their tax returns public in order to get on the ballot.  My tentative conclusion is that this would be unlawful under the Equal Protection Clause.

Let’s start with some basic principles. U.S. Term Limits v. Thornton that a state cannot impose upon congressional candidates substantive requirements for ballot access beyond the three that are in Article One of the Constitution. While Article Two’s text on the qualifications for the Presidency parallels the Article One requirements at issue in Thornton, state legislatures have more discretion over presidential elections because they can appoint electors in any manner that does not otherwise violate the Constitution (for example, a state legislature can just directly choose electors without holding any popular election). As a result, when it comes to presidential candidates and tax returns, the issue reduces (in my mind) to whether there is rational basis that connections the mandatory release of a tax return with ballot access.

I think the answer is no.  Here are my reasons.  First, it’s clear that these proposed statutes are directed at one man–Donald Trump. They will apply to all presidential candidates, but we all know that they might as well be called the “Make it Harder For Donald Trump to be Reelected” Act. This raises a red flag. Second, I have a hard time understanding the link between compulsory tax return release and ballot access. States have many procedural ballot access requirements (get signatures from voters, get them from certain places, pay a fee, etc.), that are, if modest, plausibly related to ether defraying the costs of election administration or establishing whether someone is a viable candidate. Requiring the release of tax returns has nothing to do with these things. What, then, is the rational basis for such a law, especially given that tax return disclosure does implicate privacy rights.  (I can’t, for example, get the President’s old tax returns through a FOIA request.)

Will this ever be litigated? I don’t know. Arguably the only states that might enact such a law are the ones that the President has no chance of winning next time. So he might just choose not to release his returns anyway. Or by 2020 his returns might be quite simple (“I earned my salary as President plus some money from passive investments.”) and thus releasing them will be no big deal.