Judge Kevin Newsom

The New York Times is reporting that the President will nominate Kevin Newsom, the former Solicitor General of Alabama, for a seat on the Eleventh Circuit.  This is wonderful news. I met Kevin nearly twenty years ago when we were at the same firm (and shared the same office suite). He is an outstanding lawyer and a person of incredible integrity. (And wrote a terrific article in Yale Law Journal on the incorporation of the Bill of Rights). If we didn’t live in such a polarized age, he would be confirmed unanimously by the Senate. I will do what I can to make that happen.


Why Write About Bushrod Washington?

Before I unleash the barrage of details about Justice Washington, I want to explain the themes that are motivating me to write this book.

  1. I’ve never written about the Founders. A biography of Washington is a fresh way of doing that for a few reasons. First, there will have to be a lot of George Washington in this book. Second, Washington was a delegate at the Virginia ratifying convention in 1788. Third, he knew and corresponded with all the usual suspects (Jefferson, Madison, Lafayette, to name just three).
  2. I’ve never written about the Marshall Court.  This book will, of course, talk a lot about that.
  3. I’ve never written about slavery from the perspective of a slaveowner. This is a more complex point that I will need to wrestle with for some time. Washington’s relationship with slavery was tortured.  He may have fathered a child with a slave. He was the first president of the American Colonization Society, which supported gradual abolition and deportation to Africa. He ruled in favor of slaves from the bench and carried out George Washington’s wishes to free his slaves. On the other hand, he later brought slaves back to Mount Vernon and sold some in a way that broke up families. Even worse, he defended this conduct is a particularly nasty way.
  4. I’ve never really written about Corfield v. Coryell and the Fourteenth Amendment. In my Bingham book, I noted that Bingham was not a big fan of Washington’s opinion defining the privileges and immunities of national citizenship. Many other members of the Thirty-Ninth Congress, though, were very keen about the opinion, and I need to grapple with that.

Carol Sanger Replies to Leslie Griffin: Doctrinal Recalcitrance and Lay Practices

I am grateful to Leslie Griffin for discussing so candidly the Roman Catholic Church in the culture of abortion in the United States. Griffin explains how many Catholic Americans have learned not to talk about abortion, and how Church hierarchy has influenced Catholic politicians to legislate against it.  (It was not for nothing that the constitutional challenge to contraception bans for married couples arose in Connecticut.)  Each presidential cycle, bishops and priests in dioceses around the U.S. announce that Roman Catholic candidates who support legal abortion—Biden, Kaine, Kerry—should be barred from communion, and some have extended the ban to voters who would vote for such candidates.  Such orders from on high show the tremendous power of the Roman Catholic hierarchy over officials, would-be officials, and some parishioners.  (It is not only theology that does this work but non-canonical texts as well: every time I look for a copy of Naomi Wolf’s 1995 New Republic essay Our Bodies, Our Souls (feminists losing their souls through “Chardonnay abortions”), it conveniently pops up on the Priests for Life website.)

Yet, says Griffin, this outsized influence has left much of the laity out in the cold.  She points out that the distinction between the beliefs and practices of rank-and-file believers versus those in religious and economic hierarchies is especially crucial now.  Hobby-Lobby taught us that closely-held companies can have a religion. Faith-based exceptions are now the latest legislative tactic to end run the exercise of protected right of choosing abortion (or getting a marriage license, for that matter.)  And just a few days ago, President Trump expanded that holding through his new executive order, “Promoting Free Speech and Religious Liberty.”  This means that what Griffin calls the “almost-unreflective defense of the hierarchy over the laity” has now become federal policy.

I want to respond to three aspects of Griffin’s post that directly concern religion.  The first is to provide three more data points as to the divergence between Catholic abortion doctrine and Catholic abortion practices.  The Guttmacher Institute’s latest figures (2014) show that 24% of aborting women identified themselves as Catholic.  Guttmacher further reports that “by their early 20s, some 79% of never-married women—and 89% of never-married Catholic women—have had sex.”  Finally,  American women of reproductive age (15–44)—“including 99% of all sexually experienced women and 98% of those who identify themselves as Catholic—have used a method of contraception other than natural family planning at some point.”  This suggests that whatever the moral burden they may carry, Catholic women in the U.S. have the same sexual practices and use the same reproductive strategies as the rest of the population.

The doctrinal rigidity (or integrity, depending on your point of view) of Roman Catholic officials has its costs.  Take an example from Germany, where following reunification, all women seeking an abortion in Germany are required to receive counseling from centers of their choice as a condition of consent.  Roman Catholic women often sought counseling at centers run directly by the Catholic Church or by church-related charities.  In 1995, however, Pope John Paul II ordered the Catholic Bishops to withdraw from abortion counseling services on the ground that even counseling against abortion made the Church complicit in the practice; counselors had no veto power and once counseled, women could do whatever they wanted.  Several German bishops protested “in order to be able by goal directed counseling to save many unborn babies from being killed and to support women in difficult living situations with all the means available,” but in the end, they agreed to “bow to Rome.”

Second, I note that the Roman Catholic is no longer the sole religious entity who now vigorously participates in the politics of abortion.  It is now joined by Evangelical Christian leadership.  I have not studied the differences between the doctrines of the two faiths, nor how they work together, nor how they solidified their political roles.  In this regard, I found Robert Wuthnow’s Rough Country: How Texas Became America’s Most Powerful Bible Belt State very powerful but I would love scholars like Leslie Griffin to explore the issues she raises across America’s religions; there were a heck of a lot of religious types standing behind the President when he signed that Executive Order in the Rose Garden, each one pleased they would be able to throw more weight around in the hierarchy/hoi polloi split.

Finally, a word about the alleged optimism I express in About Abortion, for example, reminding us that “both abortion and religious freedom wind up being [near intractable] discussions about morality,” Griffin suggests my call for more talk by women about abortion is a “conversation even more difficult than Sanger imagines.”  She also observes a “very optimistic tone in regard to the decision in Whole Woman’s Health, stating that maybe “in a country that is full of pro-lifers on the Court and off, any Court victory for abortion rights is a big win.”  While this is not Griffin’s main point, she offers the occasion to address it and so I shall, in part because Leslie is not the only one who has noted a perhaps too cheerful disposition. I have taken it on the chin for a phrase in the final paragraph of About Abortion—“as abortion becomes less stigmatized, as it will in time ….”  Says who? asked one audience member. Aren’t you awfully cheerful about the state of abortion law?

I acknowledge that because I want things to be better for women exercising the abortion right.  Thus when Justice Gorsuch is asked about his opinion of Roe v. Wade and he replies that he accepts the case as the “law of the land,” I hope that he will, like the majority in Casey, regard the principle of stare decisis as determinative.  (I say “hope” rather than “would bet the house on” because I know that prior decisions are sometimes overruled;  the dissenters in Casey would have no doctrinal trouble overruling Roe.)  I over-invest in any thin reed that blows toward societal progress on the matter?  After reading her critique, which underscores that practicing Catholics have nothing less than their souls officially at stake, I accept—but do not abandon—the difficulty of my proposal.

To be clear, I am not a Pollyanna by nature; I am, for example, extremely pessimistic about the state of the planet.  But with regard to how abortion is practiced and regulated,  there are signs both of resistance and of progress.  Whole Women’s Health and its requirement of evidence-based proofs that something is good for women’s health is a huge step in righting the terrible path wrought by deference to legislative purpose as stated in the statute itself.  Tennessee and other states have voluntarily withdrawn regulations modeled on Texas’s following the decision in Whole Women’s Health.

The laity now has expanded sources for understanding church doctrine beyond parish priests.  The organization Catholics for Choice now offers on-line lectures called “The Secret History of Sex, Choice and Catholics” with theologians and other scholars explaining official doctrine over time.

My point is not to dispute doctrine as it rigidified under Cardinal Ratzinger (later Pope Benedict) in his role as Prefect of the Congregation for the Doctrine of the Faith but simply to emphasize that it has not always been thus.  Grievous sin has been a mutable category.  Recall that even Pope Paul VI authorized Belgian nuns working in the then Belgian Congo to use birth control pills in the face of rape in the 1960s.  I think the laity might find comfort—perhaps fortitude—in these shifts and exceptions.  Morals, like official Roman Catholic doctrine, are fluid.  People are persuaded by argumentation that something—same-sex relationships, for example—are acceptable even though just one generation ago were the very essence of immorality, or like smoking—once regarded as pleasurable and even sensuous; think of the cinematic lighting of another’s cigarette—is now shameful and its practitioners are left to the freezing sidewalk.

My last example comes from Rome. In 2016 Pope Francis urged priests to absolve parishioners who have committed the sin of abortion on the ground that “there is no sin that God’s mercy cannot reach and wipe away when it finds a repentant heart….” In response, some pro-choice advocates have said, “Thank you so very much, but absolution requires an acknowledgment of wrong doing, and women who terminate unwanted pregnancies are not doing anything wrong.”  My personal view is that Francis’s position is better for Catholic women who terminate unwanted pregnancies that the prior regime of official condemnation or private withdrawal from a religious community. As Griffin says, progress is going to be hard but it is not impossible.


Our Unconstitutional Reapportionment Process

I thought I would post the Introduction of the paper that I’m now writing. I’ve taken out the footnotes to make this short enough for a long post, though I’m happy to share those if asked. Hopefully the draft will be complete by August.

Determining how many members each state is entitled to in the House of Representatives is among the most routine constitutional tasks. Every ten years, a census is conducted under the auspices of the Commerce Department. When the census is complete, the Department enters the state and national population information into a mathematical formula that was fixed by Congress in 1941, and the formula generates a representative total for each state. These state tallies are sent to the President and are certified by him without any congressional action or any exercise of administrative discretion. Though the counting method in the census and the allocation formula for representatives were the subject of unsuccessful court cases in the 1990s, the ministerial nature of the modern reapportionment process is taken almost entirely for granted.

This Article argues instead that the current mechanical system for redistributing congressional representatives violates Section Two of the Fourteenth Amendment. Section Two provides that if the right to vote in federal or many state elections is “denied” or “in any way abridged” by a state for a broad class of presumptively eligible voters, then that state’s delegation in the House of Representatives shall be reduced in proportion to the amount of disenfranchisement. Consistent with this requirement, the first census taken after the Fourteenth Amendment was ratified tried to ascertain the number of people who fell within Section Two’s definition. The resulting data was then forwarded to Congress and was discussed in floor debates as part of the reapportionment legislation enacted in 1871.

Under present law, by contrast, the Commerce Department is barred from considering Section Two in assessing how many representatives each state should get. While the census can ask Americans about their voting eligibility and behavior, the formula that Congress created to delegate its reapportionment authority does not include a Section Two variable. The current state regulations of voting rights may not require the imposition of any representation penalty, but the imposition of such a penalty cannot be precluded no matter what the facts are. It is axiomatic that Congress cannot erase a constitutional requirement through ordinary legislation, but that is exactly what the reapportionment statutes do given that Section Two of the Fourteenth Amendment says a representation penalty is mandatory if the suffrage rights of a sufficient percentage of the relevant population within a state are “in any way abridged.”

My claim that the reapportionment law in place since World War II is unconstitutional may seem unbelievable, but that reaction might fade after learning that the same point was made in the civil rights era. In the early 1960s, there was growing interest in Congress’s failure to enforce Section Two of the Fourteenth Amendment against the flagrant exclusion of African-Americans in the South. Indeed, there was a specific demand from the 1963 March on Washington led by Martin Luther King Jr. for the “[e]nforcement of the Fourteenth Amendment—reducing Congressional representation of states where citizens are disfranchised.” As part of this brief renaissance, a handful of scholars observed that the automatic system of ascertaining that representation violated Section Two and litigation was filed in the District of Columbia seeking a declaratory judgment that would invalidate the reapportionment statutes. Following the enactment of the Voting Rights Act in 1965, however, academic interest in the Section Two issue evaporated and the litigation was dismissed on prudential grounds pending “appraisal of the effectiveness of the new Voting Rights Act.”

Though the Voting Rights Act and its subsequent amendments did not fix the constitutional flaw in the reapportionment process, the Supreme Court’s 2013 holding in Shelby County v. Holder that the Act’s preclearance requirement cannot be applied to the jurisdictions that were designated by Congress makes that flaw more visible. After decades of neglect, it is time to treat Section Two of the Fourteenth Amendment with respect. Congress must revise the reapportionment statutes and at least permit the Commerce Department to take Section Two into account. If Congress takes no action, then a state with standing to contest the result of the next reapportionment should raise a Section Two objection and the Supreme Court should hold the reapportionment void.

Part I explores the history of congressional reapportionment and describes the contemporary process. Part II discusses Section Two of the Fourteenth Amendment, how that provision was applied when Congress conducted the first reapportionment after ratification, and the short-lived revival of interest in Section Two’s role in that process during the 1960s. Part III explains why the current reapportionment framework is at odds with Section Two and why a judicial declaration to that effect is proper.


The “Shock and Awe” Response to Hillbilly Elegy: Pondering the Role of Race

In my prior posts about Hillbilly Elegy (here and here), I’ve noted some reasons for my struggle to understand the overwhelmingly positive response to J.D. Vance’s 2016 memoir.  Actually, positive is too general a descriptor.  There is often what I call a “shock and awe” character to the response, a “there are actually people like Vance and his family out there in America” response.  Who knew?  And who knew male seahorses gestate the offspring?  Who knew the Okavango River flows inland?  Who knew the Dutch are the tallest people in the world, excepting some small African tribes?  But I digress …

It’s not clear if this initial incredulity regards (1) the white socioeconomic disadvantage and dysfunction from whence Vance comes or (2) his meteoric rise from Appalachia to Yale Law School and on to Peter Thiel’s Mithril Capital.  I’ve already opined on why we should not be surprised by the former, so in this post I’ll say more about the latter.

First, however, to illustrate just how over the top the media response to Hillbilly Elegy has been, let me quote a few reviews.  Bloomberg identified the book as “the most popular choice for best book of 2016.”  Ok, well, popularity doesn’t necessarily equate to quality, but the venerable New York Times, my own media polestar, called the book a “a compassionate, discerning sociological analysis of the white underclass.”  I’ve already explained why I don’t see it as discerning.  As for compassionate?  Maybe in the vein of Bush’s “compassionate conservatism,” but that doesn’t seem to be a thing any more–if ever it was.  I assume that The Economist reviewer would agree with me on the (lack of) compassion point because he concludes that Vance is a “conservative in the oldest and best sense.”  It’s perhaps not surprising, then, that this reviewer opines that “you will not read a more important book this year.”  In short, the reviewer falls hook, line and sinker for Vance’s tough love, personal responsibility prescription, calling it a “bracing tonic.”

One reason I am surprised by the glowing reviews (especially among left-leaning outlets) and the “millions sold” is that I would not have expected 21C Americans–particularly among the chattering classes (and I know a shocking number of law professors who have read this book)–to be so interested in a story of white class migration.  I thought Horatio Alger characters were a creature of history, that American dream, up-by-your-bootstraps narratives were yesterday’s news.  Didn’t our attraction to such delusional thinking fade once we discovered/identified/named white privilege?

In the world in which I live and work, white privilege is often referenced as if a magic bullet, a miraculous cure-all that permits people with white skin to achieve any and all that their hearts desire.  I often hear phrases like “white people’s problems” and “you’re white, you’ll be alright” tossed about casually.  At a minimum, whiteness greases the proverbial skids on the road to success, though we often treat it as much more potent than that.

Broadly speaking, the academy is highly attuned to structural racism and bias based on race/ethnicity–and appropriately so, in my opinion.  Peggy McIntosh tells us that the invisible knapsack of white privilege means that whites “can be pretty sure of renting or purchasing housing in an area which [they] can afford and in which [they] would want to live.”  (“[W]hich they can afford” is a rather important qualifier, no?)  Bernie Sanders told us during the 2016 primary:

When you’re white, you don’t know what it’s like to be living in a ghetto.  You don’t know what it’s like to be poor.

But this isn’t accurate, and surely–somewhere in the deep recesses of our memories and minds–we are aware of this inaccuracy, this failure to see or acknowledge white poverty.  Yet it seems to have taken Hillbilly Elegy‘s publication to surface that reality, however opaquely.  Still, how many of you have made the connection between what (I hope) you know about the existence of white poverty and the economic landscape depicted in this bestseller?

A majority of those experiencing poverty self-identify as white.  Yet like the academy, the media very often conflate our racism problem with our poverty/inequality problem.  See here and here.  The suggestion is often that black people are poor because they’re black, and of course there’s truth to that.  Trina Jones expresses the phenomenon eloquently:

Somehow . . . race and class become mutually reinforcing. Blacks are poor because they are Black and Blackness gets constructed as poor. That is, poverty becomes a constitutive element of Blackness. Blacks are not only lazy [and] intellectually and morally inferior, they are also poor.

So if we have conflated blackness with dependency, have we conflated whiteness with affluence, well-being, and independence/agency?  Arguably, yes.  And if we have done that, where does that leave low-income, low-education whites?  (This is a H/YUUUGE topic, of which I barely scratch the surface in this post).  If they slump or find themselves downwardly mobile or otherwise fail, we look away, ignoring or “forgetting” them (consider the headlines here and here).  If, like Vance, they ultimately succeed–if they become like “us”–we often discount that success by attributing it to their white privilege.

Given that tendency, isn’t it interesting that we’re so captivated by Vance’s story?  (Further illustrating that intrigue, did you know the movie rights to Hillbilly Elegy have been purchased and Ron Howard will be involved in making the film.  I can’t help wonder/worry what combination of “Beverly Hillbillies,” “Dukes of Hazard,” “Honey Boo Boo” “Duck Dynasty” “Deliverance” and ???? will get depicted.  Plus, who’s going to play J.D.?  Sorry, digressing again).

Furthermore, would we feel the same about Hillbilly Elegy if Vance were our colleague?  (Btw, even friends and acquaintances who liked the book are telling me they are tired of seeing and hearing Vance on CNN; guessing it’s a good thing I don’t watch TV.)  What would it be like to have Vance on your law faculty?  Would that just be too awkward given how different he is from “us”?  What if he showed up, fresh out of Ohio State, as our law student?  (that’s a topic for a future post).  Maybe we relish Vance’s story, his success as a token and at a distance, but we can probably imagine what it would feel like to have him around in the flesh, too close for comfort.  We know he wouldn’t really fit in.  And maybe part of the reason legal academics (of all people) and other elites seem to savor the story is that Yale Law School is the ultimate icing on the educational cake.  Maybe we are attached to that “up by the bootstraps” narrative after all.  Maybe Vance affirms our desire to be engaged in–and to be the products of–a meritocratic enterprise.

And that brings me to another “race” question:  Would the Black/African American equivalent of Hillbilly Elegy have spent so many weeks on the New York Times bestseller list?   Or could/would such a hypothetical book–in an era when the Obamas’ autobiographies have been valued much more highly than prior U.S. presidents–leave Hillbilly Elegy in the dust?  Maybe so.  In fact, we may already have our answer to that question in Dreams from my Father:  A Story of Race and Inheritance.   

Oh, and for the record, I love that book.  Really love it, as reflected in some of my ponderings about it in 2009.  Barack Obama is not only a much finer writer than Vance, I found his reflections more thoughtful, mature, nuanced (and maybe he had a better editor because I don’t recall him going on and on and on).  But I admit that familiarity breeds contempt, and Obama told me a story and introduced me to a world I didn’t already know.  Sadly, I can’t say the same about Vance.


Carol Sanger Replies to David Cohen: The Risks Providers Take for Us

About Abortion focused on women—as patients, as decision makers, as the gatekeepers of human existence, to borrow from Rayna Rapp’s arresting phrase. Yet as David Cohen points out, everything I wrote about women in About Abortion has a parallel, often more aggressive application to abortion doctors (or “providers” as we call them to lower the rhetorical heat by staying as far away from “abortionists” as possible). Cohen’s post prompted me to think harder at how crime and punishment work for abortion medical professionals when compared with their patients.

Stand outside any number of abortion clinics across the United States and you will see a variety of “Don’t Kill Your Baby” signs, supposedly aimed at getting women not to commit murder but to go home and presumably adjust to the motherhood they didn’t want.  But the real murderers, by anti-abortion lights, are not the women but the doctors and nurses who make abortions actually happen.  We see this in pre-Roe criminal abortion laws, the doctor was charged criminally but not the woman.  But why wasn’t she charged? One might think that as with any contract killing, she who commissions the killing is just as guilty as he who pulls the trigger.   This is how it works normally under our criminal justice system.

There are two kinds of reasons why doctors and not patients are prosecuted under criminal abortion laws, which, by the way, are just itching to come back under Vice President Pence and his state counterparts.   The first reason is that abortion providers are thought to be more culpable than pregnant women, who for the most part, have a single abortion.  Doctors do it over and over again. Thus we get phrases like “abortion mills.” But murder is murder. You might get a longer sentence for being a serial murderer, as abortion providers would be considered, I suppose, but you don’t get absolved because you only paid for the hitman to do it.

This leads to the second set of reasons we leave women out.  The traditional reason is that women do not consent freely to abortion: they are under the power of two categories of opportunistic men who lead them to abortion. The first are doctors for the purpose of getting rich; the second are impregnating men for the purpose of keeping the benefits of sex with women by avoiding the liabilities of fatherhood.   On these accounts, women are not perpetrators but victims themselves.  Due to the shortfalls in their moral and intellectual reasoning, women are but dupes.

But women understand very well what they are doing when they consent to abortion: they want to terminate an unwanted pregnancy.  I would like then, to modestly propose that the criminal law should recognize this agency (should Roe be overturned) and follow it where it leads, which under criminal abortion statutes is to arrest, prosecution, and conviction.   There is something coherent about this; just as it would be coherent and worthy of respect if pro-life advocates also opposed the death penalty.  I suggest that this proposal surfaces what may be a  more telling reason why women will continue go unprosecuted under a criminal abortion regime: no one wants to see their mom, neighbor, cousin, librarian or babysitter taken down to the hoosegow. Keeping aborting women out of jail is a way of maintaining abortion as the open secret that it is.

And what about the darling of anti-abortion supporters, the convicted doctor, Kermit Gosnell, “a sociopath who also happened to be a doctor,” in Cohen’s words, who killed a woman patient and several born babies in his shoddy offices.  Gosnell was rightly convicted of murder but the story didn’t end there.  He became the demon poster child in support of even more stringent laws regulating abortion providers.  He was regarded less as an exception to abortion practice than as proof of the criminal essence of all of it.  Cohen introduces Gosnell to show in part how naturally (and opportunistically)  pro-life legislators can deploy true crime to tarnish the valiant but beleaguered practitioners who make it possible for pregnant women to exercise their right to choose.

One final point about the narrative of abortion’s lurking criminality.  The argument that a procedure that is a crime can’t at the same time be medical treatment operates as an intensifier to Khiara Bridges’s demonstration of how abortion is also lifted out of the medical realm through its exclusion from Medicaid under the Hyde Amendment.   Cohen and Bridges show that pro-life forces come at abortion from sorts of all angles to make sure it is not normalized as medical treatment.

That was my take on crime, but a quick summary of punishment.  In About Abortion, I explain how legislators up against Roe’s essential holding that abortion cannot be criminalized have legislated as close that line as possible. In this way, complying with the ever inventive variety of abortion regulations—burying fetal remains,  having to hole up in a motel while the waiting period ticks by,  rejecting (or not) the invitation to look at the image of one’s unborn child– operates as a non-criminal form of punishment  for pregnant women.   Cohen turns our attention to the non-criminal punishments for abortion providers.   In Living in the Crosshairs, he and co-author Krysten Connon bring us into the daily world  of doctors and other healthcare providers who are brave and resilient (mostly) and resourceful,  faced as they are by dogged opposition.   Abortion providers are targeted, harassed, and reviled as a matter of politics, law, and within their own profession to boot.   Making them live within the crosshairs is punishment as well as harassment, and an extremely difficult way to proceed with one’s profession day after day after day.  Thanks then to Cohen for helping us understand this.  And to Amelia Bonow  and Gloria Steinem who by expressing gratitude to their abortion providers remind us where additional thanks is due.


“THE JUDGE: 26 Machiavellian Lessons” coming this Fall

Ronald Collins & David Skover, The Judge: 26 Machiavellian Lessons (Oxford University Press, October 3, 2017).

The Judge is in a league of its own. For all the countless books and articles written on the politics of judging, no work has ever taken that point seriously, at least not the way the authors do. The Judge breaks into the world of judicial decision-making with bold strides and throws down a provocative conceptual gauntlet. The authors’ thesis is at once shocking and sobering. By cutting to the quick of the matter with Machiavellian acumen and fervor, they level a powerful pox on the houses of liberals and conservatives alike. Combining a sophisticated knowledge of the Supreme Court with a resourceful understanding of Machiavelli’s Prince, Collins and Skover’s The Judge is certain to redefine the entire “law is politics” debate. It will spark needed controversy in the short run and prompt informed thought in the long run. The light from this book is also likely to cast a long shadow for decades to come.

David M. O’Brien, Leone Reaves & George W. Spicer Professor of Politics, Woodrow Wilson Department of Politics, University of Virginia & Author of Storm Center: The Supreme Court in American Politics (Norton, 10th ed.)

∇ ∇ ∇ ∇    ∇ ∇ ∇ ∇

This inspired tract is Machiavellian in a profound sense. If, as Rousseau and Spinoza alleged, Machiavelli wrote The Prince to expose the true ways of power, Collins and Skover perform a similar service: The Judge ingeniously delineates how the pursuit of power lurks within the rarefied realm of appellate judging. Moreover, it delves even deeper: its Machiavellian examination of our judicial history illuminates how John Marshall established an autonomous realm of authority (a state as it were) for the judiciary. In so doing, the great Chief Justice is revealed to be of that most rarefied breed, a true modern “prince,” a state-maker in black robes. This unique work is astute and compelling; it is also carefully executed and buttressed by impressive scholarship. In any variety of instructive ways, The Judge will challenge political theorists, legal scholars, and judges alike.

Alissa Ardito, Ph.D., J.D. & author of Machiavelli and the Modern State (Cambridge University Press)


Inaugural Junior Faculty Forum for Law and Stem

I thought some readers would be interested in a new Junior Faculty Forum.  The details are below:

The Northwestern, Penn, and Stanford Law Schools are pleased to announce the creation of a new Junior Faculty Forum dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).

The forum will be held each fall, rotating among Northwestern, Penn, and Stanford. The inaugural forum will be held at Penn Law in Philadelphia on October 6-7, 2017. The forum is currently seeking submissions from junior faculty interested in presenting papers at the forum. The deadline for submissions is Friday, June 9.

Twelve to twenty young scholars will be chosen on a blind basis from among those submitting papers to present. One or more senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests.

The goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa. Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

The Forum invites submissions on any topic related to the intersection of law and any STEM field. Potential topics include (but are not limited to):

  •   Artificial intelligence
  •   Assisted reproduction
  •   Autonomous vehicles
  •   Bitcoin and other blockchain technologies
  •   Computational law
  •   Customized medicine
  •   Epigenetics
  •   Genomics: Human and Non-Human
  •   Machine learning and predictive analytics
  •   Nanotechnology
  •   Neuroscience
  •   Online security and privacy
  •   Regulation of online platforms
  •   Robotics
  •   Smart contracting and automated analysis of legal texts
  •   Stem cell research
  •   Synthetic biology

A jury of accomplished scholars with expertise in the particular topic will select the papers to be presented. Suggestions of possible commentators are also welcome.  There is no publication commitment, nor is previously published work eligible for presentation. Northwestern, Penn, and Stanford will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: To be eligible, an author must be teaching at a U.S. university in a tenured or tenure-track position and must have been teaching at either of those ranks for no more than seven years. American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for no more than seven years and that they earned their last degree after 2007.  Jointly authored submissions are accepted so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years. Given the novelty of this Forum, the organizers reserve the right to accept submissions in exceptional cases that fall outside the strict eligibility criteria. Papers that will be published prior to the meeting in October 6-7, 2017, are not eligible. Authors may submit more than one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to CTIC with the subject line “Law-STEM Junior Faculty Forum.” The deadline for submission is Friday, June 9, 2017. Please remove all references to the author(s) in the paper. Please include in the text of the email a cover note listing your name, the title of your paper, and the general topic under which your paper falls. Any questions about the submission procedure should be directed both to Professor Christopher Yoo and the email account for the Forum conference coordinator at ctic@law.upenn.edu.

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to David Schwartz at the Northwestern University School of Law, Christopher Yoo at the University of Pennsylvania Law School, or Mark Lemley at the Stanford Law School.


Direct Taxes and the Border Adjustment Tax

Former Solicitor General Ted Olson has an op-ed in The Washington Post arguing that a border-adjustment tax would be subject to the state apportionment requirement of the Constitution’s Direct Tax Clause. I see no prospect that a border-adjustment tax will be enacted, but if one is I think that Olson’s argument is without merit.

Let’s start with a point that is missing from the op-ed. The term “direct taxes” in the Constitution is largely a euphemism for “taxes on slaves.” Supporters of slavery in the Constitutional Convention faced a dilemma–suppose Congress were to tax slaves at a very high rate? Would that not give Congress the power (in practice) to abolish slavery? The solution was to say that direct taxes had to be apportioned among the states, which meant that even states with no slaves would have to pay a slave tax.  This was a strong disincentive for such a tax, which was never enacted.

When the Supreme Court first interpreted the Direct Tax Clause in 1795, Justice Patterson (who was a member of the Convention) explained this point in his separate opinion. The import of this history is that the Court never (despite many invitations) applied the Direct Tax Clause from 1795 to 1895. (To the extent that Congress did, it was only for taxes on land.)  In 1895, the Court deviated from this deferential posture and held that the income tax was a direct tax, but that was overruled by the Sixteenth Amendment. Since then, no other tax has been deemed direct.

In the face of this original understanding and overwhelming precedent, Olson musters very little in response. He simply tries to define a border-adjustment tax as direct from first principles. Maybe if given the chance he could say more (an op-ed is, after all, a very limited forum), but I doubt it.


FAN 150 (First Amendment News) Trend Ends: ACLU’s 2017 Action Plan Stands “Up for Free Speech”

Throughout our history, the ACLU has stood up for freedom of speech and the right to dissent.  From providing know-your-rights materials, to sending trained legal officers to protests, to bringing critical lawsuits defending free speech, the ACLU is on the ground across the country ensuring that people’s voices can be heard. — 2017 Workplan

After a two year hiatus, the American Civil Liberties Union has reaffirmed its long-standing commitment to free-speech rights, this in its 2017 workplan. The group’s latest workplan contains a section on safeguarding free-speech rights. The 2017 “ACLU Strategy for Defending the Constitution” includes a segment entitled “Standing Up for Free Speech and Protestor Rights.” This portion of the work plan was part of an eight-page mailer sent out to ACLU members. The 2016 and 2015 workplans, by contrast, omitted any mention of protecting First Amendment free-expression rights.

“From Standing Rock to the Women’s March, from airport protests of the Muslim ban to Black Lives Matter marches across the country,” the workplan states, “we are experiencing historic levels of protest.  The whole point of lifting up your voice is making sure your elected officials hear you.”

Anthony Romero, ACLU Executive Director

“The response to these powerful displays of democracy in action? Legislators in at least 15 states have proposed new laws to criminalize and penalize protest activities. Some of these have been dressed up as bills having to do with obstruction or public safety, but at their core they have one intent and effect — and that is to suppress dissent.”

“. . . The ACLU will fight in statehouses against any bill that violates the First Amendment, and for any that become law, we stand ready to go to court.  We’re confident the courts will see these bills for what they are: unlawful infringements of people’s right to speak out.”

“We’ve also seen a troubling trend of companies attempting to squelch the freedom of speech of the people who disagree with their practices.  Take the residents of Uniontown, Alabama for example. When four residents of Uniontown — a poor, predominately black town with a median per capita  income of $8,000 — decided to fight the hazardous coal ash that Georgia-based Green Group Holdings keeps in a landfill in their community, they were sued for defamation by the company to the tune of $30 million.”

“No one should face a multimillion-dollar federal lawsuit just for organizing and speaking out for the health and well-being of their community. The ACLU took up the case and won a critical victory on behalf of the residents of Uniontown when the court dismissed the case. . . .”

Woman Convicted for Laughing During Congressional Hearing

One horselaugh is worth ten thousand syllogisms.” — H.L. Mencken

Ms. Desiree Fairooz

According to Ryan J. Reilly writing in the Huffington Post,  a “U.S. Capitol Police officer . . . decided to arrest an activist because she briefly laughed during Attorney General Jeff Sessions’ confirmation hearing in January . . . . [P]rosecutors persisted this week in pursuing charges against the 61-year-old woman the rookie had taken into custody. . . .”

“Desiree Fairooz, [a librarian and 61-year-old] activist affiliated with the group Code Pink, . . . laughed when Sen. Richard Shelby (R-Ala.) said that Sessions’ record of ‘treating all Americans equally under the law is clear and well-documented.’ Fairooz was seated in the back of the room, and her laugh did not interrupt Shelby’s introductory speech. But, according to the government, the laugh amounted to willful “disorderly and disruptive conduct” intended to “impede, disrupt, and disturb the orderly conduct” of congressional proceedings. The government also charged her with a separate misdemeanor for allegedly parading, demonstrating or picketing within a Capitol, evidently for her actions after she was being escorted from the room. . . .”

**** Ben Mathis-Lilley writing in Slate has just reported that a “jury in Washington has convicted a 61-year-old protester named Desiree Fairooz of disorderly conduct and “parading or demonstrating on Capitol grounds” because she laughed out loud during Attorney General Jeff Sessions’ confirmation hearing. Fairooz could be sentenced to up to a year in prison. . . .”

Press Advisory, CODEPINK Members Stand Trial for Intervening at Jeff Session Confirmation Hearing, May 1, 2017

James Bovard, Arresting someone for laughing may sound funny, but it’s no joke, Washington Post, May 3, 2017 (“It isn’t the first time federal cops have attempted to enforce the difference between licit and illicit laughter, though, and unfortunately, it might not be the last. Laughing got me tossed out of the press box at the Supreme Court in March 1995. I was on assignment for Playboy, covering arguments in a case involving an Arkansas woman who had sold a small amount of illegal drugs to a government informant and was later the target of a no-knock police raid. Then, too, some laughter was okay, and some wasn’t: When then-Chief Justice William Rehnquist mocked one lawyer’s assertion, everyone in the house responded with a polite chuckle.”)

Christopher Mele, Is It a Crime to Laugh at a Congressional Hearing? A Jury Will Decide, New York Times, May 3, 2017 (“Two other activists, Tighe Barry and Lenny Bianchi, dressed as Ku Klux Klan members with white hoods and robes, stood up before the hearing started and were also charged.All three pleaded not guilty to the charges, rejecting a plea deal and demanding a trial. If she is convicted on both charges, Ms. Fairooz said she faces up to 12 months in prison.”)

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