Saturday, May 4, 2024
Thursday, May 2, 2024
Andrew Koppelman: The Supreme Court’s Gay Rights-Religious Liberty Contortions
The Supreme Court’s Gay Rights-Religious Liberty Contortions
33 PagesPosted: 23 Mar 2024
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
Wednesday, May 1, 2024
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.
Tuesday, April 30, 2024
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
Monday, April 22, 2024
Tampering with a witness, victim, or informant. 18 U.S.C. 1512
18 USC 1512(c)(2)
(c)Whoever
corruptly—
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.
Thursday, April 18, 2024
"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
Tuesday, April 16, 2024
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
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.
Monday, April 15, 2024
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 ProjectBy 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.
Sunday, April 14, 2024
The Indian Ocean Slave Trade - with Prof. Bernard Freamon
Bernard Freamon is author of Possessed by the Right Hand - a history to the present day of Islam and Slavery.
Stormy Daniels Trump trial: Why the legal arguments are stronger than I thought. by Mark Joseph Stern - SLATE
The elements of the offense with which Trump is charged - falsification of business records are HERE.
By Michael Joseph Stern - SLATE
When Manhattan District Attorney Alvin Bragg brought criminal charges against Donald Trump in 2023, I was highly skeptical of his decision. It seemed at the time that other indictments would soon follow, and that they would rest on far firmer legal ground than this one. Over the past year, though, I have realized that my initial doubts about Bragg’s indictment were misplaced. It now seems clear that Trump’s New York trial, slated to begin this week, will be the former president’s only criminal trial before the November election.
The other three strong indictments against him in other jurisdictions have unfortunately been delayed by a corrupt judge, a foot-dragging Supreme Court, and a district attorney’s questionable conduct in an already complex case. This, combined with Bragg’s excellent pretrial briefing, has substantially strengthened the case for this prosecution. It is important to American democracy that Trump be forced to defend at least some of his alleged criminal conduct before a jury of his peers in advance of Election Day. And there is no reason why this shouldn’t be the case in which he’s compelled to do it. I am now fully onboard.
Saturday, April 13, 2024
The NY Trump prosecution.- elements of the offense
A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.
New York Consolidated Laws, Penal Law - PEN § 175.10 Falsifying business records in the first degree
Current as of January 01, 2021 | Updated by FindLaw Staff
A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.
Falsifying business records in the first degree is a class E felony.
Tuesday, April 9, 2024
Trump is Not Immune from Prosecution - Jack Smith - Special Counsel
The United States Supreme Court will soon hear argument in a case in which it has granted a petition for review pre-trial. Case, No. 23-393 is United States v. Donald J., Trump, prosecution for charges arising from his role in the attempted obstruction of the lawful transfer of power after he lost the 2020 Presidential election.
On February 6, 2024, in his application to the Supreme Court for a stay of trial, posed two questions for the Court:
The questions presented are: I. Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts, i.e., those performed within the “‘outer perimeter’ of his official responsibility.” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)). II. Whether the Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7, and principles of double jeopardy foreclose the criminal prosecution of a President who has been impeached and acquitted by the U.S. Senate for the same and/or closely related conduct that underlies the criminal charges.
The Court granted the stay but reframed the questions presented as:
Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
In his Brief for the United States To this the Special Counsel Jack Smith has a plain answer:
I. A former President lacks immunity from federal criminal prosecution for official acts during his presidencyA. A claim of absolute criminal immunity for a
former President’s official acts violates
established separation-of-powers principles
B. History supports the conclusion that former
Presidents are subject to prosecution for official
acts.
The Court earlier this year declined a request by Smith to rule quickly on the issue. but the Court ordered that the District of Columbia Circuit Court of Appeals first rule on the issues. The Court did. This appeal by Trump followed. the delay i consequential. A decision is unlikely until the end of June, making trial and judgment before the November election doubtful. Should Trump be re-elected he could order dismissal of all charges by the Attorney General whom he appoints.
- GWC 4/11/24
Monday, April 8, 2024
After Courts: Democratizing Statutory Law by Ryan Doerfler, Samuel Moyn :: SSRN
The latest in a line of articles opposing judicial aggrandizement, the imperial judiciary, etc..
- GWC
After Courts: Democratizing Statutory Law
70 Pages Posted:
Date Written: April 7, 2024
Abstract
In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent massive power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every Term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rule-making and other processes) is, if anything, more menacing than its role in the rare instances when it deploys its heaviest weaponry of constitutional invalidation. Against progressive calls to reclaim the judiciary, this Article completes our proposal to disempower courts exercising lawmaking authority—including when they are interpreting statutes alone. Indeed, the same considerations that counsel the constitutional disempowerment of courts counsel their statutory disempowerment, and the allocation or reallocation of their authority over law to politically accountable agents. The heart of our Article offers a survey of court disempowerment strategies and tools, which are comparable to though not identical with the disempowerment mechanisms that have been proposed in the arena of constitutional reform. Such strategies and tools are appealing in the short term; but in the long term, a fuller rethinking our desirable institutional plan of legal interpretation beckons. Available and existing disempowerment strategies for courts are best conceived as early and partial versions of full-scale allocation of interpretive authority over law to “political” branches and openly political control.
Doerfler, Ryan and Moyn, Samuel, After Courts: Democratizing Statutory Law (April 7, 2024). Michigan Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=
History, Tradition, and the Designated Hitter Rule - Eric Segall // Dorf on Law
History, Tradition, and the Designated Hitter Rule //
By Eric Segall
****Professor Solum, along with Professor Randy Barnett, has also commented on the role of history and tradition in some of the Court's recent cases. These two well-known academic originalists wrote an article titled "Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition."
Their article begins by saying that "in three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court." Not surprisingly, these two originalists concluded the following about history and tradition (the article is sophisticated and provocative but is not the direct subject of this post, hence the leap to the conclusion):
In this Article, we have argued for an originalist approach to history and tradition. History and tradition are essential elements in the originalist toolkit: no originalist should leave home without them. But originalists should be wary of the use of history and tradition by non-originalists, whether they be Progressive or Conservative Constitutional Pluralists. An originalist embrace of history and tradition that is inconsistent with the original public meaning of the constitutional text would undermine originalism itself and sacrifice the rule of law, the separation of powers, and popular sovereignty on the altar of pragmatism and political expediency. Our message is simple: “Originalists, don’t go there!”
Not only should originalists not go there (a strong version of traditionalism) but no one else should either because a tradition-focused approach to constitutional interpretation provides little guidance to judges and lets them hide their implicit value judgments and ideologies behind centuries of disputed practices, customs, and traditions (or the absence thereof). How long does something have to last to be a tradition? How widespread does the tradition have to be? Is rejection of practices something judges should take strong notice of when examining the role of history and tradition? What if a long tradition is viewed as pernicious by large segments of minority populations? There are no good answers to any of these questions.
Here is a hypothetical to demonstrate these problems....
Friday, April 5, 2024
Demand the Impossible - One Lawyer's pursuit of equal justice for all
A conversation with legendary capital punishment defender Stephen Bright, with Robert Tsai - author of a biography of the passionate lawyer.
Thursday, April 4, 2024
Bishop Gumbleton, longtime soul of the US Catholic peace movement, dies | National Catholic Reporter
Bishop Thomas Gumbleton, the Detroit prelate who for many American Catholics defined faith-based social justice activism in the post-Vatican II church, died April 4. He was 94.
Described sometimes as the pastor of the Catholic peace and justice movement, Gumbleton lived in Detroit nearly his entire life, yet his influence was felt in far-flung places such as El Salvador, Haiti, Vietnam, Iran and Iraq.
He was a founding member of both Pax Christi USA, the national arm of the international Catholic peace movement, and Bread for the World, an advocacy organization seeking to end world hunger.
"To put it most succinctly, Tom lived out the peace of Christ in his complete being," said Johnny Zokovitch, Pax Christi USA's executive director, shortly after the bishop's death. "Everything that our movement strives to be was evident in Tom and how Tom lived."
Immaculate Heart of Mary Sr. Irene Therese Gumbleton, the last living of nine Gumbleton siblings, said her brother passed away at a hospital in Dearborn, Michigan, following physical decline over the past week. "It means a lot to us that we've lost him," she told NCR by phone. "I think the church is really going to miss him."
Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition by Lawrence B. Solum, Randy E. Barnett :: SSRN
Randy Barnett was the originator of the concept that nearly killed the affordable care act: that liberty prohibited compelling someone to buy insurance. Such an argument from history led to a profoundly harmful result. But John Roberts saved the day by finding the so-called individual mandate to be permissible under the taxing power.
Then in The Original Meaning of the 14th Amendment Barnett with Evan Bernick celebrated a letter by Justice Joseph Bradley to a District Judge embracing an understanding of the 14th Amendment that did NOT have the state action requirement. So a state's failure to protect rights was as actionable as an affirmative measure. The implications are profound and surprising from such a prominent conservative/libertarian voice. - GWC
Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition
62 Pages Posted: 27 Jan 2023 Last revised: 11 Oct 2023
Date Written: October 7, 2023
Abstract
In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.
These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?
Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play:
(1) as evidence of original meaning and purpose,
(2) as modalities of constitutional argument within a constitutional pluralism framework,
(3) as a novel constitutional theory, which we call “historical traditionalism,” and
(4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.
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