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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.

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FAN 148 (First Amendment News) Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Judge Learned Hand (credit: NY Rev. of Books)

Las Vegas Metropolitan Police Department’s (“Defendant” or “LVMPD”) violations of Plaintiff’s First Amendment right to freedom of expression, as well as his due process rights in terminating his employment based on an unconstitutionally vague social media policy.

This year marks the centennial anniversary of Judge Learned Hand’s seminal opinion in Masses Publishing Company v. Patten (S.D., NY, 1917).  Among others, New York Universally Law School is hosting a major program to commemorate the occasion. Below is a draft of the agenda and the participants scheduled to participate in the upcoming symposium.

A Decision for the Ages

A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Date:     Friday, October 20, 2017

Host:     New York University School of Law

I.       Historical and Cultural Background – 9:00-10:30

A.     The Artistic and Cultural Scene in 1917 as reflected in The Masses magazine: Amy Adler (NYU)

B.     The Political Situation and The Espionage Act of 1917: Geoffrey Stone (Chicago)

C.     The State of Free Speech Doctrine in 1917: David Rabban (Texas)

II.     The Masses case: Dramatis Personae and Decision – 10:45-12:15

A.     Learned Hand’s Jurisprudence: Ed Purcell (NYLS)

B.     The Role of Gilbert Roe, the Masses attorney: Eric Easton (Baltimore)

C.     The Decision: Vincent Blasi (Columbia)

D.     The Decision: Richard Posner (Chicago) (via videoconference)

Lunch – 12:30-1:30

III.    Aftermath of the Masses decision – 1:45-3:15

A.     Hand’s influence on Holmes and the Abrams dissent: Thomas Healy (Seton Hall)

B.     Hand’s influence on free speech theory and justifications: Mark Graber (Maryland)

C.     Hand’s subsequent free speech decisions: Paul Bender (ASU) (via videoconference)

IV.   A Debate: The Influence of Masses on Modern First Amendment Doctrine 3:30-5:00

A debate/discussion about the extent to which the Masses test has been incorporated into Brandenburg and other modern cases: Burt Neuborne (NYU); James Weinstein (ASU); Martha Field (Harvard)

Walking tour or Reception – 5:15-6:15

DinnerLocation TBD

President Lee Bollinger

In progress: Book to commemorate centennial anniversary of Schenck opinion 

Columbia’s Lee Bollinger and Chicago’s Geoffrey Stone are reuniting to edit another First Amendment-related book. Following their 2002 work entitled Eternally Vigilant: Free Speech in the Modern Era the forthcoming work is timed to coincide with the hundredth anniversary of Schenck v. United States (1919).

As in the prior volume, Bollinger and Stone will begin and end the book with a dialogue between themselves. The authors scheduled to be in the new volume, which will be published by Oxford University Press, include:

  • Floyd Abrams
  • Emily Bell
  • Mona Bicket
  • Vince Blasi
  • Sarah Cleveland
  • Heather Gerken
  • Tom Ginsburg
  • Jameel Jaffer
  • Larry Lessig
  • Catherine MacKinnon
  • Robert Post
  • Albie Sachs
  • Fred Schauer
  • David Strauss
  • Cass Sunstein
  • Laura Weinrig

Owen Fiss on Harry Kalven Read More

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FAN 147.1 (First Amendment News) Music is their medium; the name is their message — The Slants perform @ Flying Dog Brewery

Text of the First Amendment above door in Flying Dog Brewery

The beer was flowing / the crowd was roaring/ the free-speech lawyers were showing / as the First Amendment Society (Erin Weston, Executive Director) brought The Slants to the Flying Dog Brewery in Frederick, MD. for a performance during the band’s East Coast tour. Flying Dog’s CEO Jim Caruso introduced The Slants.

Recall, this is the Asian rock-dance band whose case (Lee v. Tam) was argued before the Court on January 18, 2017. The issue is whether the disparagement provision of the Lanham Act, which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.

The band, the amicus lawyer (Ilya Shapiro) & the brewer (Jim Caruso)

The Slants were in fine fighting form as they filtered their message through melodic modes mixed with razor-cut messages in Fight Back, one of the songs from their latest EP — The Band Who Must not be Named (In Music We Trust Records, 2017).

The Portland, Oregon synth-pop group melodiously veered through such free-speech anthems as their From the Heart:

Sorry if our note’s too sharp
Sorry if our voice’s too raw
Don’t make the pen a weapon
And censor our intelligence
Until our thoughts mean nothing at all

lead singer Ken Shima

Sorry if you take offense
You made up rules and played pretend
We know you fear change
It’s something so strange
But nothing’s gonna get in our way

There’s no room
For your backwards feelings
And backyard dealings
We’re never gonna settle
We’re never gonna settle

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart
No we won’t be complacent
Know it’s a rock n roll nation
We sing from the heart
We sing from the heart

Sorry if we try too hard
To take some power back for ours
The language of oppression
Will lose to education
Until the words can’t hurt us again

First Amendment guys Bob Corn-Revere & Ilya Shapiro

So sorry if you take offense
But silence will not make make amends
The system’s all wrong
And it won’t be long
Before the kids are singing our song

There’s no room
For your backwards feelings
And your backyard dealings
We’re never gonna settle
We’re never gonna settle 

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart
No we won’t be complacent
know it’s a rock n roll nation
We sing from the heart
We sing from the heart

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Symposium on Carol Sanger’s “About Abortion”: Introduction & Commentaries

What follows is an online symposium concerning Professor Carol Sanger’s latest book, About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017) (table of contents here). Links to the Introduction and Commentaries are set out below.

Related

Professor Carol Sanger