Alito’s Inverted Flag Epitomizes the Ethics Crisis at the Court

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Credit...Haiyun Jiang for The New York Times

By Jesse Wegman

Thanks to Supreme Court Justice Samuel Alito’s neighbors, Jodi Kantor of The Times was able to report a shocking bit of news on Thursday: In January 2021, shortly after the deadly Capitol assault incited by Donald Trump, Alito’s front yard openly displayed an upside-down American flag — an unmistakable pro-Trump symbol used by those who believed the 2020 election was stolen.

But wait: It turns out this wasn’t Alito’s fault. “I had no involvement whatsoever in the flying of the flag,” he told The Times, explaining that the flag was “briefly placed” there by his wife, Martha-Ann, in an escalation of a neighborhood spat that included “objectionable and personally insulting language” on yard signs.

For a guy who earns his paycheck evaluating the quality of arguments, Justice Alito is remarkably bad at coming up with ones in his own defense. Even if he had no role in raising the flag, what stopped him from taking it down immediately and apologizing profusely for his wife’s intemperance? Doesn’t his failure to do so suggest tacit agreement if not outright support — not only for a violent insurrection based on a demonstrable lie but also for one of the litigants who was at that time before his court arguing over the election?

This disregard for the appearance of bias is in line with how Alito and Justice Clarence Thomas, in particular, have long approached their job and the enormous power they wield. (You may recall that Thomas’s wife, Ginni, cosplayed as a legal insurrectionist who tried to overturn the 2020 election.) That disregard extends to the institution of the Supreme Court and to the American people forced to live under its edicts. How are we expected to respect a court that has so little respect for us?

KEEP READING

It’s Time To Amend How We Amend The Constitution: Legal Scholars Call For Limited Constitutional Convention - Yale Journal on Regulation

It’s Time To Amend How We Amend The Constitution: Legal Scholars Call For Limited Constitutional Convention - Yale Journal on Regulation

Our Constitution is not and never was perfect. The Framers intended for it to undergo amendment as required to maintain the spirit of the Revolution and to prevent the recurrence of the weaknesses that saddled our government under the Articles of Confederation. Yet, amending the Constitution has become nearly impossible in our current political environment. Our “frozen” Constitution now ranks among the most difficult to alter the world over.

This status quo cannot persist if our constitutional order is going to withstand threats to its core principles–such as federalism, the separation of powers, and the sovereignty of the people–arising from modern developments. Built-up pressure to amend the Constitution has stressed other political institutions and actors: Congress arguably delegates too much of its legislative power to agencies–power that is then exercised with insufficient oversight; successive presidential administrations have increasingly turned to executive orders to fill in legislative gaps better suited for congressional attention; and the Supreme Court has swung from narrowly interpreting the Constitution to effectively amending it via pathbreaking decisions.

The undersigned call for a Constitutional Convention with a single agenda item: amending how we amend our Constitution

What Israel’s Netzarim Corridor in Gaza reveals about its postwar plans - The Washington Post

October 2023 - April 2024

What Israel’s Netzarim Corridor in Gaza reveals about its postwar plans - The Washington Post

Christian Supremacy - May 22, 2024 - - Fordham University

Christian Supremacy - May 22, 2024

A conversation with Magda Teter, John Connelly and Jeannine Hill Fletcher

Reckoning with the roots of anti-semitism and racism

RECENCY BIAS AND THE SUPREME COURT: THE PROBLEM IS THE INSTITUTION, NOT THE PEOPLE WHO SIT ON IT Eric J. Segall

 

RECENCY BIAS AND THE SUPREME COURT:THE PROBLEM IS THE INSTITUTION, NOT THEPEOPLE WHO SIT ON IT - Hofstra Law Review

By Eric J. Segall* [Georgia State]

You seem to consider the judges as ultimate arbiters of all constitutional questions; a very dangerous doctrine, indeed, and one which would place us under the despotism of an oligarchy. The constitution has erected no such single tribunal. –Thomas Jefferson

I. INTRODUCTION 

There is rampant and substantial despair on the political left (and maybe in the center as well) about the Supreme Court’s six-three conservative majority. In just a few years, the Court has decimated women’s reproductive freedoms, enlarged gun rights, essentially ended affirmative action, read the Free Exercise Clause broadly, deleted the  Establishment Clause from the Constitution, and is dramatically cutting back the ability of the administrative state to handle difficult national problems.  The dread is justified. 

This new ultra-conservative Court, after Senator Mitch McConnell’s norm-breaking manipulation of the confirmation process, led to President Biden’s Supreme Court reform commission, which has had no lasting effect and is now just a blip from the past. Additionally, the new “ethics code” the Justices signed on to has no enforcement mechanism and does not count as meaningful reform....

Skidmorizing Chevron: Cabining but Keeping Chevron, by Brittani Randall and Linda D. Jellum - Yale Journal on Regulation

This reasonable sounding approach to avoiding grave wreckage at the Supreme Court is not as moderate as the headline suggests.  In kisor - a case involving VA benefits, Neil Gorsuch took the occasion to launch a full scale attack on deference to agency determinations,  He urged that the Court go "directly back to Skidmore, liberating courts to decide cases based on their independent judgment and “follow [the] agency’s [view] only to the extent it is persuasive."

That's a prescription for judicial marauding through the Code of Federal Regulations.

- GWC

Skidmorizing Chevron: Cabining but Keeping Chevron, by Brittani Randall and Linda D. Jellum - Yale Journal on Regulation

By Brittani Randall is a law student at The University of Idaho College of Law, and Linda D. Jellum is a Professor of Law at The University of Idaho College of Law.

As the Supreme Court ponders what to do with Chevron in Loper Bright Enterprises v. Raimondo and Relentless Inc., et al. v. Department of Commerce, Idaho’s Simplot test might provide a way to keep but cabin deference.

In 1991, in J.R. Simplot Co. v. Idaho State Tax Comm’n, the Idaho Supreme Court crafted a unique approach to agency deference in a case involving conflicting tax statutes. In J.R. Simplot, the court extensively reviewed the federal and states’ approaches to agency deference. Chevron was at its height in federal court, but states were all over the map. Some—like Utah, Alaska, and Nevada—had rejected the “traditional rule giving great weight to an agency’s interpretation,” while others—like California, Colorado, and Kansas—had continued to invoke the traditional rule, even if they did not always follow it.

After carefully considering the reasons for deferring to agencies, the Idaho Supreme Court developed a four-step test that we will call the Simplot test. Spoiler alert: turns out, the Simplot test is no more than a Chevron/Skidmore mashup!

At Simplot step one, a court must determine whether the agency has in fact been delegated the power to administer the statute. Simplot’s first step is Chevron step zero, answering the question of whether this is the correct agency to interpret the relevant statute.

At Simplot step two, the court must determine whether the agency’s interpretation is reasonable. Simplot’s second step is also Chevron’s second step, answering the question of whether the agency’s interpretation is fair and sensible.

At Simplot step three, the court must determine whether the language at issue in the statute already expressly answers the precise question before the court, because the agency’s interpretation cannot contradict what the legislature has clearly expressed. Simplot’s third step is a textualized version of Chevron’s first step, answering the question of whether the legislature has already spoken to the precise question at issue. Oddly, the Idaho Supreme Court reversed the order of Chevron’s first and second steps without explanation.

But at step four is where things get interesting, and we find vestiges of Skidmore. If after determining that an agency with authority to administer the statute has made a reasonable interpretation of statutory language to answer a question not directly addressed in the statute, then the court moves to step four. At step four, the court must ask whether any of the five rationales used to justify deference are present. If some or all the rationales are missing, then their absence may present “cogent reasons” for the court to adopt an interpretation that differs from the agency’s interpretation. Here are the five rationales:

(1) deference is appropriate when deferring to an agency interpretation would protect important interests that have developed in reliance on a certain interpretation that has existed for many years;

(2) deference is appropriate when an agency interpretation is a “practical” interpretation of general language;

(3) deference is appropriate when the legislature does not alter the statutory text following an agency’s interpretation because a court may presume that by not altering the text, the legislature acquiesced in the agency’s interpretation;

(4) deference is appropriate when an agency interpretation is formulated contemporaneously with the passage of the statute at issue, because this timing may indicate that the agency had insight into the legislative intent behind the legislation;

(5) deference is appropriate when an agency interprets a statute in its area of responsibility because of the agency’s expertise.

These factors may sound familiar. In Skidmore v. Swift & Co., the Supreme Court held that an agency’s interpretation was entitled to deference when it was persuasive. The Court specifically identified three factors that made an agency’s interpretation persuasive: consistency, thoroughness, and validity. Importantly, the Court added a catch-all of persuasive factors: “all other factors which might persuade the court to defer to the agency’s interpretation.” All of the Simplot deference factors are reminiscent of Skidmore’s power-to-persuade factors, such as consistency of the interpretation, practicableness of the interpretation, legislative acquiescence to the interpretation,

The Constitution Is Not As Complicated As Originalists Want You to Think | Balls and Strikes

The Constitution Is Not As Complicated As Originalists Want You to Think | Balls and Strikes

BY JAY WILLIS  MAY 10, 2024

Editor’s Note: This week, we are working with our friends at Slate to talk about originalism: what it is, why it’s terrible and stupid, and what can be done about it before Republican judges use it to bury democracy under a mountain of half-baked Wikipedia citations. Here is Jay Willis on the most pernicious lie of originalism: that the only people capable of interpreting the Constitution are credentialed experts who, in a wild coincidence, happen to be champions of the conservative legal movement.

As a branding exercise, originalism has been a wild success. The concept, once fodder for obscure law review articles no one read, went mainstream in the 1980s, after the Supreme Court dealt the conservative legal movement a series of high-profile losses on issues like affirmative action and abortion rights. In 1985 Edwin Meese III, then the attorney general under President Ronald Reagan, outlined his grand vision of a “jurisprudence of original intention” in a speech before the American Bar Association. “Those who framed the Constitution chose their words carefully,” he said. “The language they chose meant something. It is incumbent upon the court to determine what that meaning was.”

D.C. Circuit Uphold Bannon Contempt Conviction

Former White House strategist Steve Bannon

bannon.pdf

GARCIA, Circuit Judge: In September 2021, the House Select Committee to Investigate the January 6th Attack on the United States Capitol issued a subpoena to appellant Stephen Bannon to testify and provide documents. Bannon did not comply—he knew what the subpoena required but did not appear or provide a single document. Bannon was later convicted of violating the contempt of Congress statute, 2 U.S.C. § 192, which criminalizes “willfully” failing to respond to a congressional subpoena. 

Bannon insists that “willfully” should be interpreted to require bad faith and argues that his noncompliance does not qualify because his lawyer advised him not to respond to the subpoena. This court, however, has squarely held that “willfully” in Section 192 means only that the defendant deliberately and intentionally refused to comply with a congressional subpoena, and that this exact “advice of counsel” defense is no defense at all. See Licavoli v. United States, 294 F.2d 207, 207 (D.C. Cir. 1961).

 As both this court and the Supreme Court have repeatedly explained, a contrary rule would contravene the text of the contempt statute and hamstring Congress’s investigatory authority. Because we have no basis to depart from that binding precedent, and because none of Bannon’s other challenges to his convictions have merit, we affirm. 

Supreme Court rulings on guns, abortion, Constitution: How originalism ate the law. SLATE

Supreme Court rulings on guns, abortion, Constitution: How originalism ate the law.

America is captive to a legal theory that dictates our laws on guns, abortion, and so much more. We need to act.

BY DAHLIA LITHWICK

The Never Trumpers Have Already Won | Samuel Moyn - The New Republic

The Never Trumpers Have Already Won | The New Republic

They’re not trying to save the GOP from a demagogue. They’re infiltrating the Democratic Party.

By Samuel Moyn

 

What causes people to draw ethical lines and purport to stand on principle? In February 2016, as it became clearer and clearer that Donald Trump was on track to win the nomination of the Republican Party for president, some of its elites took fright. The hashtag #NeverTrump “blew up” on social media, Robert P. Saldin and Steven M. Teles remark in their new book, when the host of The Apprentice won endorsements from the likes of New Jersey Governor Chris Christie, his beaten foe in the primaries, and Alabama Senator Jeff Sessions, his future attorney general. Suddenly the bad joke of the Republican primary was anything but funny.


Claiming to be torn between principle and loyalty to their party, Never Trumpers rose above the usual careerist opportunism and short-term gain, Saldin and Teles believe. Democracy itself was at stake. In the face of populism, an assortment of normally gray and straitlaced national security experts, political operatives, and “public intellectuals” (scare quotes for those unsure Jonah Goldberg and Kevin D. Williamson should count) felt called upon to go rogue. They could not shirk the grave responsibility of the moment: Sacrificing their influence in their own party, they resolved to criticize its leader from the outside in hopes of winning it back. Aiming to save the country from ruin, some even voted for Hillary Clinton.

We should pity these upstanding few, Saldin and Teles insist: Understanding them requires grasping how difficult a time 2016 was to be a principled conservative. And it is in part because the risks to their careers were so substantial that those who volunteered to defend basic values deserve our thanks. Even if the Never Trumpers failed in the short term—both in the Republican presidential primary and in the general election in November 2016—they may yet cast the die for the sustenance of American democracy for the future. Or at least this is how the principals in this drama, in interviews with Saldin and Teles, tell the tale of their righteous campaign for democracy itself.
****

It’s Time To Amend How We Amend The Constitution: Legal Scholars Call For Limited Constitutional Convention - Yale Journal on Regulation

It’s Time To Amend How We Amend The Constitution: Legal Scholars Call For Limited Constitutional Convention - Yale Journal on Regulation  April 22, 2024

Our Constitution is not and never was perfect. The Framers intended for it to undergo amendment as required to maintain the spirit of the Revolution and to prevent the recurrence of the weaknesses that saddled our government under the Articles of Confederation. Yet, amending the Constitution has become nearly impossible in our current political environment. Our “frozen” Constitution now ranks among the most difficult to alter the world over.

This status quo cannot persist if our constitutional order is going to withstand threats to its core principles–such as federalism, the separation of powers, and the sovereignty of the people–arising from modern developments. Built-up pressure to amend the Constitution has stressed other political institutions and actors: Congress arguably delegates too much of its legislative power to agencies–power that is then exercised with insufficient oversight; successive presidential administrations have increasingly turned to executive orders to fill in legislative gaps better suited for congressional attention; and the Supreme Court has swung from narrowly interpreting the Constitution to effectively amending it via pathbreaking decisions.

The undersigned call for a Constitutional Convention with a single agenda item: amending how we amend our Constitution.

This Convention would align with a well-defined pattern of Americans substantively amending the Constitution upon substantial and unanticipated changes to social, economic, and political conditions. Two examples of this pattern stand out. Following the Civil War, the Reconstruction Amendments updated the Constitution to expand our political community and afford greater legal protections. And, then, in the wake of the Gilded Age, the Progressive Movement ushered in a series of amendments to again enlarge our electorate, increase the government’s capacity to solve contemporary problems, and provide greater means of political accountability.

Though a hodge-podge of amendments have since been ratified, a decades-long failure to update the Constitution for modern realities has generated a substantial amount of “constitutional debt.” Akin to the sort of “tech debt” that occurs when computer engineers speedily fix an issue that will later require a more effective and resource-intensive solution, constitutional debt is the sum of poor attempts to address issues better suited for amendment.

Constitutional alterations via judicial decisions contribute to that debt. State and federal actors expanding their powers to their constitutional limits (if not further) further add to that debt. We the People taking anti-constitutional actions that undermine our political order also pile on to that debt.

Push has come to shove. We can no longer delay amending our Constitution to account for realities that do not comport with the assumptions underlying its original design. Here’s a short list of some out-of-date assumptions.

One, a system that appropriately balances the power wielded by small and large states. By 2040, when 70 percent of our population resides in the fifteen most populous states, that will surely no longer be the case.

Second, a system in which elected officials regard themselves as accountable to the whole of their community. Given our current electoral system, Senators and Representatives alike have far more interest in appealing to members of their respective parties and their donors more so than their community at large.

And, third, a system in which individuals identify with and advocate for their states. The nationalization of our news, among many other factors, has rendered this assumption quite inaccurate.

Advances in AI, changes brought on by climate change, and worsening income inequality all threaten to further distinguish our contemporary society from the society anticipated by our current Constitution.

This group of scholars pledges not to idly stand by during this critical moment. As academics, we are privileged and obligated to identify solutions to pressing problems. You can expect this group to release various proposals related to keeping our constitutional order running amid novel and complex problems. In particular, members of this group plan to release proposals for how to amend Article V, which contains the current means to amend the Constitution. We hope these proposals elicit widespread analysis. But for this conversation to really take off, we need a wide range of diverse stakeholders to lend their voices to this important and overdue conversation.

We do not think that adjustments to our constitutional order should come exclusively through this process. There are other means to catch up on our constitutional debt. For instance, we can and should explore means to increase civic education, pass legislation that safeguards access to the polls, and support local news. The severity and numerosity of threats facing our constitutional order merit exploration of all these strategies.

The administrative state is one area particularly ripe for an overhaul. The Administrative Procedure Act (APA), a compromise measure enacted in 1946, no longer furthers the values–accountability, transparency, and public participation–that fueled its passage. Decades of judge-made additions to the APA have further muddled the procedural obligations of agencies. And, yet, agencies have become responsible for an ever-increasing portion of our legal order–thousands of regulations are promulgated per year whereas Congress struggles to pass any legislation of substance.

This problematic state of affairs is all the more troubling given the Supreme Court will soon introduce even more uncertainty into the administrative state. Court observers anticipate that the Justices will dislodge a decades-old precedent upon which much of agency action has been authorized and legitimized. Regulation of AI, climate change, and other pressing challenges necessitates getting this core part of our governing system in order. Specifically, as our regulatory challenges become more scientifically and technologically complex it will be all the more important to know with some predictability the extent to which courts will defer to agency actions and interpretations.

Even if overdue fixes to the administrative state are finally made, some adjustments to our constitutional order should only come via amendment and, for those changes to occur, we will need to amend Article V. The Constitution was meant to empower the people to act as the ultimate sovereigns. Yet, many people rightfully feel that the Constitution limits our authority more so than protecting it. That’s a recipe for constitutional disorder–an outcome we must avoid.

Sincerely,

Kevin Frazier
Assistant Professor of Law
St. Thomas University College of Law

Lawrence Lessig
Roy L. Furman Professor of Law and Leadership
Harvard Law School

And dozens more

Resurrecting the Equal Protection Clause Through the Ku Klux Klan Act of 1871 by Thomas Nielsen :: SSRN

Resurrecting the Equal Protection Clause Through the Ku Klux Klan Act of 1871 by Thomas Nielsen :: SSRN

Resurrecting the Equal Protection Clause Through the Ku Klux Klan Act of 1871

Texas Journal on Civil Liberties and Civil Rights, Forthcoming

21 Pages Posted: 24 Apr 2024

Thomas Nielsen

Harvard University, Harvard Law School

Date Written: April 15, 2024

Abstract

In 1998, Justice Scalia defended the Supreme Court’s notoriously ahistorical approach to qualified immunity on the grounds that it was a corrective to the Court’s similarly ahistorical approach to interpreting § 1983 itself, as embodied in Monroe v. Pape. In more recent years, Justice Thomas has similarly floated the idea that the Court’s understanding of § 1983 is incorrect, and that whatever the Court does with qualified immunity should be accompanied by a reevaluation of Monroe. As the Court careens towards a wholesale reevaluation of its civil rights jurisprudence, this Essay seeks to put on the brakes, using the enactment debates of the Klan Act and the Fourteenth Amendment to provide historical evidence that the notion of “equal protection” was, in important respects, significantly broader than the Supreme Court has understood it.

This Essay first argues that the Equal Protection Clause was understood by its framers to remedy (1) discriminatory state laws; (2) discriminatory enforcement of neutral laws; and (3) private acts of racial violence that were not prosecuted by state authorities. It then considers three Klan Act provisions that are still in effect and uses the enactment debates during the Forty-Second Congress to show how each of these provisions sought to implement the Equal Protection Clause’s guarantees. The Essay first hypothesizes that Section 1 of the Klan Act –– what is now § 1983 –– was passed, inter alia, to remedy racially discriminatory state laws, as well as racially discriminatory enforcement of neutral laws by state officers. It then looks to Sections 2 and 6 of the Klan Act, which contained a damages action for private civil conspiracy and negligence in knowing about the existence of such a conspiracy and permitting it to occur, respectively. The Essay hypothesizes that these provisions worked together to allow recovery against private perpetrators of hate crimes in situations where states refused to enforce their own laws. In each section, the Essay addresses potential issues squaring the historical framework with more recent caselaw (especially involving the state action doctrine) and concludes that very little stands in the way of implementing it. Finally, using incarcerated individuals as a case study, the Essay explains how the historical framework might be useful to modern civil rights plaintiffs and attorneys bringing civil rights claims before originalist judges.

Keywords: civil rights law, constitutional law, statutory interpretation, prison litigation, civil rights litigation, section 1983, state action, reconstruction originalism, originalism

Suggested Citation:

Nielsen, Thomas, Resurrecting the Equal Protection Clause Through the Ku Klux Klan Act of 1871 (April 15, 2024). Texas Journal on Civil Liberties and Civil Rights, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4794913

Amicus With Dahlia Lithwick | Law, justice, and the courts: How Originalism Ate the Law: The Trick on Apple Podcasts

Amicus With Dahlia Lithwick | Law, justice, and the courts: How Originalism Ate the Law: The Trick on Apple Podcasts

Andrew Koppelman: The Supreme Court’s Gay Rights-Religious Liberty Contortions

The Supreme Court’s Gay Rights-Religious Liberty Contortions

Northwestern Public Law Research Paper No. 24-05

33 PagesPosted: 23 Mar 2024

Andrew Koppelman

Northwestern University School of Law

Date Written: March 21, 2024

Abstract

The Supreme Court has heard several cases in which conservative religious claimants objected to antidiscrimination laws requiring them to provide services to LGBT people. Each time it has disposed of the case in a way that let the religious claimant win, but established no clear doctrine. The Court misconstrued the record or misrepresented the challenged state law or both, and invented new doctrinal rules so extreme or obscure that they cannot possibly be applied consistently by lower courts. The pattern appears in four cases: Boy Scouts of America v. Dale, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Fulton v. Philadelphia, and 303 Creative v. Elenis. A fifth, Scardina v. Masterpiece, seems likely to repeat it. I describe the pattern and propose an explanation, arising from two difficulties characteristic of religious exemption cases: courts must worry about opening the floodgates to so many claims that the underlying statute’s purposes will be defeated, and courts have no legal basis for determining what is or is not a compelling interest.

Keywords: religious liberty, gay rights, Boy Scouts of America v. Dale, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Fulton v. Philadelphia, 303 Creative v. Elenis, Scardina v. Masterpiece

JEL Classification: K10, K30

Segall: The Roberts court: rule of lawlessness : Dorf on Law

https://www.dorfonlaw.org/2024/05/the-roberts-court-and-rule-of.html?s=09

D.C. Bar counsel: Disbar Jeffrey Clark

Donald Trump, after A.G. Barr quit, installed Jeffrey Clark who collaborated in Trump’s effort to hold on to power despite losing the election.  Today the D.C. Bar's Disciplinary Counsel  recommended disbarment: 

From the disciplinary counsel’s proposed finding of fact and conclusions:

It is not enough that the efforts of these lawyers ultimately failed. As a profession, we must do what we can to ensure that this conduct is never repeated. The way to accomplish that goal is to remove from the profession lawyers who betrayed their constitutional obligations and their country. It is important that other lawyers who might be tempted to engage in similar misconduct be aware that doing so will cost them their privilege to practice law. It is also important for the courts and the legal profession to state clearly that the ends do not justify the means; that process matters; and that this is a society of laws, not men.

Dov Waxman - Israel -Gaza -How to proceed

Dov Waxman of UCLA explains why, as a long time supporter of Palestinian rights, he cannot join today's campus encampments.

https://twitter.com/DovWaxman/status/1784372085374288137?t=w-ElDimCwhhzG8RLrL-jyg&s=19

Tampering with a witness, victim, or informant. 18 U.S.C. 1512

 

18 USC 1512(c)(2)

 

(c)Whoever corruptly—

(1)

alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

 Attorney Kenneth Chesebro pled guilty to submitting a fake slate of presidential electors.  Now Johnson faces the same array of charges.

"In Pursuit of Meaningful Civil Representation: Advocacy Strategy Propo" by Sophia T. Slater

"In Pursuit of Meaningful Civil Representation: Advocacy Strategy Propo" by Sophia T. Slater: 

Fordham Urban Law Journal

By Sophia T. Slater, Published on 04/01/24

INTRODUCTION “If we had had representation at the beginning, the eviction probably would not have happened.”1 Cristina Quiñones-Betancourt, a nonprofit attorney from the organization Mobilization for Justice, made this remark about a client who had been evicted after missing rent payments and was seeking to get back his apartment.2 Although Quiñones-Betancourt had a legal argument that her client’s Section 8 housing voucher should have counted toward the outstanding rent, an evicted person with a nonprofit legal attorney bearing an unmanageable caseload has an uphill battle squaring off with a well-represented landlord.3 The Legal Aid Society’s Chief Attorney of the Civil Practice, Adriene Holder, said the mechanism of legal aid is “extremely successful” when implemented, but explained the organization is “still turning away thousands of people because of the lack of capacity.”4 This situation in housing court is just one consequence of the general lack of a right to counsel for civil cases in the United States, which is producing progressively more dire outcomes. The impact of this lack of civil counsel is particularly disparate for those facing financial and racial barriers to legal assistance.5

 IN PURSUIT OF MEANINGFUL CIVIL REPRESENTATION: ADVOCACY STRATEGY PROPOSALS FOR AN INTEGRATED CIVIL GIDEON AND LEGAL EMPOWERMENT APPROACH Sophia T. Slater* Introduction ....................................................................................1274 

I. Factual Background .................................................................1276 

A. The Access to Civil Justice Crisis................................1276 

B. The Civil Right to Counsel (Or Lack Thereof) ............1277 

II. Existing Approaches ................................................................1278 

A. The Civil Gideon Approach .........................................1279 

B. The Legal Empowerment Approach ............................1281 

1. Upsolve, Inc. et al. v. James ...................................1282 2

. The Discriminatory Nature of Professional Regulation in the Practice of Law...........................1284 

III. Proposed Advocacy Strategies.................................................1286 

A. Litigation Strategy for a Civil Right to Counsel Based on the Right to a Jury Trial for Deportable Offenses...1286

 1. The Legal Standard of a Sufficiently Severe Penalty ....................................................................1287 2. Padilla v. Kentucky.................................................1289 

3. Right to a Jury Trial in Proceedings for Deportable Offenses..................................................................1290

i. Bado v. United States.......................................1291 

ii. People v. Suazo ................................................1293 

4. Applications to a Civil Right to Counsel................1295 

B. Gun Violence Intervention Program as a Model for Legal Empowerment Initiatives..............................................1296 

1. The Jacobi Medical Center’s SUV Program...........1297 

2. Applications to a Legal Empowerment Initiative ...1299 C. Why Both Approaches Must be Implemented Together........................................................................1302 Conclusion......................................................................................1303

Toward a New Constitutional Politics - LPE Project

Toward a New Constitutional Politics - LPE Project

By Aziz Rana (New York)

In recent years, the anti-democratic flaws of the U.S. Constitution have become increasingly apparent. Commentators now routinely worry over the system’s exaggerated checks on popular authority: the lopsided grant of power to certain states, an impassable constitutional amendment process, widespread voter disenfranchisement, and of course the dramatic control exercised by a tiny group of lifetime federal judges.

And yet, if you grew up in the United States around the turn of the twenty-first century, the dominant culture was that of almost religious textual devotion. Even Occupy Wall Street was launched on Constitution Day, September 17. One might well have assumed that the American constitutional system stood at the apex of liberal-democratic ideas. Given its manifest flaws, how did Americans come to idolize this document and what have been the political consequences of this reverence?

My new book, The Constitutional Bind, attempts to make sense of this striking tension in our collective life. It argues that the substance and implications of modern constitutional veneration have not been continuous since the founding. They are, instead, a distinctively twentieth century development. Over the past century, the text became constitutively joined to what Swedish sociologist Gunnar Myrdal in 1944 famously labeled the “American creed”—the idea that the U.S. stands for the promise of equal liberty for all. Such creedal constitutionalism was then further augmented by a series of additional commitments: civil libertarian values, market capitalism, constrained representative government with an empowered Supreme Court, and—crucially—the belief that these principles explained why the U.S. should direct the global order.

The Supreme Court wants to hand a victory to January 6 insurrectionists - Vox

Hostage

The Supreme Court wants to hand a victory to January 6 insurrectionists - Vox

By Ian Millhiser

The Supreme Court spent about an hour and a half on Tuesday morning arguing over whether to make it much harder for the Justice Department to prosecute hundreds of people who joined the January 6, 2021, attack on the US Capitol.

It appears, after Tuesday’s arguments, that a majority of the justices will side with the insurrectionists — though it is far from clear how those justices will justify such an outcome.

The case, known as Fischer v. United States, involved a federal law which provides that anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” commits a very serious federal felony and can be imprisoned for up to 20 years — although, as Solicitor General Elizabeth Prelogar pointed out during Tuesday’s argument, actual sentences against January 6 defendants convicted under this statute have been much shorter, normally ranging from a little less than one year to slightly over two years.

According to the Justice Department, more than 1,265 people have been arrested for playing some role in the attack on the Capitol. Approximately 330 of them have been charged under the obstruction statute at issue in Fischer. One of them is Donald Trump.

As a federal appeals court held in its decision in this case, the obstruction statute is pretty darn clear that it applies to an effort to obstruct any congressional proceeding intended to certify the result of a presidential election — like the proceeding that the January 6 rioters attacked. And very few of the justices seemed to agree with Jeffrey Green, the lawyer representing a January 6 defendant, who proposed one way to read the statute more narrowly.

Nevertheless, many of the justices expressed concerns that the law sweeps too broadly and that it must be narrowed to prevent people who engage in relatively benign activity from being prosecuted.

Justice Samuel Alito, for example, expressed uncharacteristic sympathy for hecklers who interrupt a Supreme Court hearing — suggesting that prosecuting them under a statute that can carry a 20-year sentence goes too far. Justice Neil Gorsuch expressed similar concerns about prosecuting someone who peacefully conducts a sit-in to delay a court hearing, or someone who pulls a fire alarm to disrupt an official proceeding.

NY State Bar Report on AI - Artificial Intelligence use

“The New York State Bar Association has adopted guidelines for lawyers to use artificial intelligence without running afoul of attorney ethics rules, as organizations and courts continue to weigh the benefits and pitfalls of AI in the legal sector. Lawyers should take precautions to safeguard sensitive client information and protect confidentiality, and should not rely solely on information generated by AI and generative AI tools in client matters, a state bar AI task force urged in a new Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence.” Read more comment by Reuters here.

Ten Recommendations by the New York State Bar Association Task force on AI:

Task Force Recommendations 

1. Adopt Guidelines: The Task Force recommends that NYSBA adopt the AI/Generative AI guidelines outlined in this report and commission a standing section or committee to oversee periodic updates to those guidelines. 

2. Focus on Education: The Task Force recommends that NYSBA prioritize education in addition to legislation, focusing on educating judges, lawyers, law students and regulators to understand the technology so that they can apply existing law to regulate it. 

3. Identify Risks for New Regulation: Legislatures and regulators should identify risks associated with the technology that are not addressed by existing laws, which will likely involve extensive hearings and studies involving experts in AI, and as needed, adopt regulations and legislation to address those risks. 

4. Examine the Function of the Law in AI Governance: The rapid advancement of AI prompts us to examine the function of the law as a governance tool. Some of the key functions of Page 10 of 85 the law in the AI context are: (i) expressing social values and reinforcing fundamental principles; (ii) protecting against risks to such values and principles; and (iii) stabilizing society and increasing legal certainty.

Toward a New Constitutional Politics - Aziz Rana - LPE Project

The treatment of the Constitution as scripture is a disabling feature in our law and politics.  Especially because the scripture is limited to the 1787 pre-industrial revolution first draft which sought to guarantee the disproportionate power of the slavers like Washington, Jefferson, and Madison, 

No one speaks of the drafters of the 13th, 14th, and 15th Amendments as founders.

- GWC

Toward a New Constitutional Politics - LPE Project

By Aziz Rana [Professor of law and government at Boston College.]

In recent years, the anti-democratic flaws of the U.S. Constitution have become increasingly apparent. Commentators now routinely worry over the system’s exaggerated checks on popular authority: the lopsided grant of power to certain states, an impassable constitutional amendment process, widespread voter disenfranchisement, and of course the dramatic control exercised by a tiny group of lifetime federal judges.

And yet, if you grew up in the United States around the turn of the twenty-first century, the dominant culture was that of almost religious textual devotion. Even Occupy Wall Street was launched on Constitution Day, September 17. One might well have assumed that the American constitutional system stood at the apex of liberal-democratic ideas. Given its manifest flaws, how did Americans come to idolize this document and what have been the political consequences of this reverence?

My new book, The Constitutional Bind, attempts to make sense of this striking tension in our collective life. It argues that the substance and implications of modern constitutional veneration have not been continuous since the founding. They are, instead, a distinctively twentieth century development.