4

Of Synchronicity and Supreme Law

I want to flag a wonderful new paper by Sai Prakash that examines the time limits that accompanying the enactment of statutes, the ratification of treaties, and the proposal and ratification of constitutional amendments. My interest in this topic stems from my research on the status of the Equal Rights Amendment, which is discussed in the paper. I don’t agree with all of the conclusions he reachs, but it’s well worth your time.  Here’s the Abstract:

The Constitution identifies three forms of supreme federal law — the Constitution, laws, and treaties — and specifies, to some extent, procedures for their adoption. Yet it says rather little about questions of timing and the making of those laws. In particular, it does not directly address whether the chambers must act on bills in close proximity to each other, whether amendments may be proposed across eras or ratified across centuries, or whether the President may finalize a treaty decades after the Senate consents to its ratification. This essay is the first to offer a comprehensive account of existing lawmaking practices as they relate to time. It also considers how those timing practices have evolved in often fascinating ways. Finally the essay argues that the Constitution imposes a requirement of synchronicity across these three forms of federal lawmaking. In particular, bills must be perfected into law within a congressional session, a rule immanent in the Constitution’s incorporation of the concept of a “session.” For constitutional amendments, the limits are more complicated. With respect to the proposal of amendments, both chambers of Congress must pass the proposal within one session. Moreover, once Congress sends amendments to the states, those proposals lapse if they are not ratified within a reasonable period. Finally, treaties are similarly constrained by a requirement of synchronicity. In particular, the President must make treaties within a reasonable time after Senate consent to their ratification. These are controversial assertions because if they were widely accepted, it would have far-reaching (and, in some cases, disturbing) implications for how our institutions currently fashion and refashion Supreme Law.

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FAN 176 (First Amendment News) Arizona State University to Host Major Conference on “Free Speech and Intellectual Diversity”

As you can see from the two news items mentioned below, the Sandra Day O’Connor College of Law at Arizona State University continues to make its presence known (and in big ways) in the First Amendment community.  Recall that last October the Law School co-hosted, with New York University Law School, an impressive conference to commemorate the 100th anniversary of Judge Learned Hand’s opinion in  Masses Publishing Co. v. Patten (1917).

And the folks at the SDOC College of Law are doing it again as they partner with the School of Civic and Economic Thought and Leadership and the Walter Cronkite School of Journalism and Mass Communication to host a major conference on free speech:

Free & Open to the Public

Register at: scetl.asu.edu

Questions: email scetlevents@asu.edu or call (480) 965-0155

FRIDAY PROGRAM

Date: February 23, 2018

Location: ASU Tempe Campus, New Student Pavilion

Robert Post (Yale Daily News)

Opening Keynote Lecture

  • Robert Post
    Former Dean, Yale Law School
    “The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University”

Panel: “Why Do Students Need Free Speech on Campus?”

Moderator: Nicole Taylor, Deputy Vice President, Dean of Students, ASU Tempe Campus

Panelists:

  • Zachary Wood, Williams College
  • Matthew Foldi, University of Chicago
  • and Students for Free Expression Gabriel Sandler, Arizona State University
    Téa Francesca Price, Arizona State University

Professor Harvey Mansfield (Harvard Gazette)

Panel: “Free Inquiry and the Philosophy of Higher Education”

Moderator: Daniel Cullen, Professor, Rhodes College

Panelists:

  • Jim Stoner, Louisiana State University
  • Harvey Mansfield, Harvard University
  • Norma Thompson, Yale University

Professor Richard Garnett

Panel: “Intellectual Diversity and Higher Education: A Crisis?”

Moderator: Cristine Legare, Associate Professor, University of Texas, Austin

Panelists:

  • Joshua Dunn, University of Colorado, Colorado Springs
  • Neil Gross, Colby College
  • Richard Garnett, University of Notre Dame, Law School

Plenary Address

  • Jeremy Waldron, University Professor, New York University Heckling in a University Setting      “Heckling in a University Setting”

SATURDAY PROGRAM

Date: February 24, 2018

Location: ASU Downtown Campus, Sandra Day O’Connor College of Law, BCLS 544

Heather McDonald

Panel: Negotiating Controversial Speakers on Campus

Moderator: Stefanie Lindquist, Deputy Provost, Academic Affairs and Professor, ASU

Panelists

  • Heather MacDonald, Manhattan Institute
  • Bret Weinstein, Evergreen College
    Ulrich Baer, Professor, New York University

Professor James Weinstein

Panel: Freedom of Speech and Thought on Campus: What Role for the First Amendment?

Moderator: James Weinstein, Dan Cracchiolo Chair in Constitutional Law, Sandra Day O’Connor College of Law, ASU

Panelists

  • Azhar Majeed, Vice President, FIRE
  • Donald Downs, University of Wisconsin, Madison
  • Laura Beth Nielsen, Northwestern University, and American Bar Foundation

Professor Larry Alexander

Panel: State Legislative Remedies to Free Speech Challenges on Campus: Are They Consistent with Academic Freedom?

Moderator: Mike Liburdi, General Counsel, AZ Governor Doug Ducey, and adjunct Professor, Sandra Day O’Connor College of Law

  • Eugene Volokh, UCLA School of Law
  • James Manley, Goldwater Institute
  • Larry Alexander, University of San Diego School of Law

Read More

24

The Second Amendment and the Bill of Rights

One thought that follows from my talk the other day at the National Archives is the role that the Second Amendment plays in our understanding of the Bill of Rights.

Until the last few decades, my research shows that people did not talk much about the Second Amendment when they discussed the Bill of Rights. This is not true now, of course. I wonder to what extent support for the right to bear arms protects the Bill of Rights from the erosion of support that we see in other American ideals. Granted, even without the Second Amendment the Bill of Rights would have a lot to offer for those who own or enjoy guns, but perhaps that would not be enough for some.

More broadly, I’ve been thinking lately about how support for one part of the Bill of Rights shapes other parts. The answer is some, but how much?

1

New Op-ed by Donna Lenhoff: Major reforms needed to make the “Me Too Movement” viable

Over the past few months, the #MeToo movement has exposed an epidemic of sexual harassment and retaliation in the workplace. But without substantial reforms to our legal system, that movement may be all for naught.

So begins an important new op-ed in today’s Washington Post.  The piece is titled: The #MeToo movement will be in vain if we don’t make these changes.

Donna Lenhoff

The author is Donna Lenhoff (more about her in a moment). This op-ed brings to the forefront legal issues central to the success of the “Me Too Movement.”

“What has become all too clear,” writes Lenhoff, “is that [Title VII and the mechanisms for enforcing it] — designed decades ago to redress and deter harassment and retaliation — are woefully inadequate, for four significant reasons.”

  1. First, while the threat of large damages can be effective in getting management to take preventive action, under Title VII, pain-and-suffering and punitive damages combined are capped. . . “
  2. “Second, many companies insist that harassment settlements be confidential. . . .”
  3. “Third, the agencies that enforce Title VII have never had the necessary resources . .  .”
  4. “Fourth, private litigation is quite rare considering the prevalence of workplace harassment. . . .”

There is more, much more, but you’ll have to read the entire op-ed. Suffice it to say that Lenhoff’s no-nonsense brand of progressive thinking is needed if real change is to occur.

Meanwhile, here is some info about Donna Lenhoff:

Lenhoff has worked for strong enforcement of laws against workplace discrimination from both inside and outside the federal government.  She served as Senior Civil Rights Advisor in the U.S. Labor Department’s Office of Federal Contract Compliance Programs during the Obama Administration, where she was responsible for updating 35+-year-old sex-discrimination regulations. 

As a staff attorney at the then-Women’s Legal Defense Fund, she was the first person to testify in Congress about sexual harassment. 

She lobbied for EEOC Guidelines on harassment and oversaw women’s groups’ amicus briefs in every major Supreme Court case involving harassment from 1978 to 2000. 

Lenhoff also lobbied for legislative changes to strengthen civil-rights and labor laws that help workers, including the 1991 Civil Rights Act, and led the coalition that advocated for the Family and Medical Leave Act of 1993. 

0

FAN 175.1 (First Amendment News) More from FIRE — New Podcast Series Charts History of Free Speech

“The podcast provides an engaging and inspiring history of free speech that is accessible to anyone interested in a topic that is fundamental to every human being and society. If you want to understand what’s at stake and know about the battles that our predecessors were engaged in the fight for free speech there can be no better place to start than with Jacob Mchangama’s podcast.”  Flemming Rose 

The folks at FIRE (Foundation for Individual Rights in Education) are on fire when it comes to almost anything having to do with free speech. They

And now, they have just released the first installment (an introduction) to an incredible podcast series on the history of free speech. It is titled: 

The series is spearheaded by Jacob Mchangama, a Danish lawyer, human-rights expert, and social commentator and the founder and director of Justitia, a Copenhagen think tank focusing on human rights and the rule of law. For six years he served as chief legal counsel at CEPOS. This year Mchangama is a Visiting Fellow at FIRE.

Why have kings, emperors, and governments killed and imprisoned people to shut them up? And why have countless people risked death and imprisonment to express their beliefs? Jacob Mchangama guides you through the history of free speech from the trial of Socrates to the Great Firewall.

Jacob Mchangama

Description

A prologue introduces the background of the podcast series and is being released today. The first official episode will be aired on February 1st. Subsequent episodes will be released on a bi-weekly basis.

Each episode focuses on a particular historical era or theme, providing listeners with a deeper understanding of how, where and why free speech has developed over time.

The first episode takes listeners back to ancient Athens focusing on the trial of Socrates and the crucial role that equal and uninhibited speech played in the world’s first democracy.

“We mustn’t allow free speech to fade into a feel-good slogan. It is an unintuitive principle with a rationale that many don’t appreciate and a history that many don’t know. Mchangama’s lucid history of free speech fills that gap and deepens our understanding of this precious concept” Steven Pinker 

The following episodes will visit places and eras such as Ancient Rome, Central Asia’s Golden Age, the Abbasid Caliphate, The Renaissance, Enlightenment and beyond.

The podcast will also feature “Expert Opinions,” interviews with leading historians and experts.

You can follow the podcast on the website (www.freespeechhistory.com), Facebook (www.facebook.com/freespeechhistory) and on Twitter (@CAPD_freespeech).

Disclosure: I work on FIRE’s online First Amendment Library and am also working with them on a forthcoming e-coursebook on free speech (stay tuned!).

0

FAN 175 (First Amendment News) Seattle University Law School to host Conference on Artificial Intelligence — includes panel on Robotic Speech

Be sure to have Alexa, or Echo, or Seri, or your Google Mini save the date for an important upcoming conference on artificial intelligence. On Saturday, February 17, 2018, from 9 am to 5 pm, Seattle University Law School will host a conference titled:

Singularity: Artificial Intelligence & the Law    (Casey Commons, Seattle University)

Welcome Remarks from Dean Annette Clark

Keynote Speaker: Ryan Calo, University of Washington School of Law

Panel 1, Robotic Speech and the First Amendment: David Skover, Seattle University School of Law; Helen Norton, University of Colorado Law School; Bruce Johnson, Partner, Davis Wright Tremaine. (This panel will discuss the issues raised in the forthcoming Collins & Skover book Robotica: Speech Rights & Artificial Intelligence (Cambridge University Press, May 2018), and will be moderated by Seattle University Law Professor Gregory Silverman.)

Panel 2, Accountability for the Actions of Robots: Ryan Calo, University of Washington School of Law; Elizabeth Joh, UC-Davis School of Law (This panel will focus on Professor Calo’s research into the liability consequences when robots cause harm; a third panelist confirmation is still pending.)

Panel 3, Ethical Considerations in Artificial Intelligence: Justin Tiehen, University of Puget Sound; Ariela Tubert, University of Puget Sound; Mark Van Hollebeke, Director of Privacy, Microsoft. (This panel features will consider discreet issues in AI with an emphasis on the ethical issues in evaluating new technologies, including where ethical and legal considerations intersect.)

Cato to host panel on Janus v. American Federation Read More

0

Second Annual Regional Health Law Works-in-Progress Retreat at Seton Hall Law School

Seton Hall Law School’s Center for Health & Pharmaceutical Law & Policy is pleased to announce the Second Annual Regional Health Law Works-in-Progress Retreat, which will be held on February 9, 2018, at Seton Hall Law School in Newark, New Jersey, from 9:30-5:00.  The purpose of the retreat is to give regional health law scholars an opportunity to share their work and exchange ideas in a friendly, informal setting.

This year’s retreat will consist of an in-depth discussion of the following papers:

Leo Beletsky (Northeastern): Expanding and Improving Substance Use Treatment to Respond to the Opioid Crisis: 21st Century Cures Act and its Street-Level Impact
Commentators: Christina Ho (Rutgers); John Jacobi (Seton Hall)

Ximena Benavides Reverditto (Yale) Opioids Overprescribing: A Social, Legal, and Political Analysis of Physicians’ Role in the Opiod Crisis
Commentators: Linda Fentiman (Pace); Gwendolyn Roberts Majette (Cleveland Marshall)

Myrisha Lewis (Howard): Halted Innovation: The Expansion of Federal Jurisdiction over the Human Body and Medical Practice
Commentators: Gaia Bernstein (Seton Hall); Lewis Grossman (American)

Barbara Noah (Western New England): Rational Patient Apathy
Commentators: Marsha Garrison (Brooklyn); Robert S. Olick (SUNY Upstate)

Govind Persad (Johns Hopkins): Adequacy and Equality in Health Insurance Benefit Design
Commentators: Rob Field (Drexel); Jennifer Herbst (Quinnipiac)

Kristin Underhill (Columbia): Perceptions of Protection under Nondiscrimination Laws
Commentators: Craig Konnoth (Colorado); Brian Sheppard (Seton Hall)

REGISTRATION
The retreat is open to anyone with an academic appointment in health law (including professors, fellows, and visitors) in any institution of higher education in the Northeast.  If you are interested in attending, please RSVP to Carl Coleman via email here by February 2.

Draft papers will be circulated by the last week of January, and all attendees will be expected to have read the papers before the retreat.

10

The Travel Ban Case as a Per Curiam Opinion

There will be plenty of time to assess the arguments in the travel ban case that the Supreme Court will take up this Spring. Right now, I want to make a point about how the majority might style its opinion.

One thing we can say for certain is that IF the Court rules against the Trump Administration, the President will throw a tantrum. Knowing that is likely, you wonder if the majority in that scenario will choose to write its opinion as per curiam. There are two main reasons for leaving a lengthy appellate opinion unsigned. One is that the decision is genuinely the joint product of many members of the Court, thus no single person is truly the author. The other, as a judge explained to me long ago, is that in some cases involving the Mafia or other organized criminals judges would sometimes leave the opinion unsigned to avoid becoming targets. The latter might be something that the Justices in the majority will consider, unfortunately.