Here at the faculty lounge we're putting together a blog symposium on Go Set a Watchman. Faculty lounge blogger Steve Lubet's essay, "Reconstructing Atticus Finch," in the Michigan Law Review back in 1999 was part of the movement to question Atticus' ideas when he was seen as a heroic figure by so many. Now that Watchman has moved the story forward two decades to the post-Brown v. Board of Education struggle over civil rights, we see Atticus in a very different light -- as a supporter of the White Citizens Council and as a critic of the NAACP and the Supreme Court. And we also see Scout (now known as Jean Louise) in a new light, too -- as someone at odds with her father and his world. They had a clash of visions of constitutional law; Jean Louise had a theory appropriate for the Atomic Age (what a quaint throw-back to 1950s, dialog, isn't it?).
We want to post some of our readers' thoughts on this and are casting the net broadly for takes on Watchman, as well as reassessments of Mockingbird. Given that our focus here in the faculty lounge is on law, we're particularly interested in assessment of the legal ideas on display in Harper Lee's work, but we welcome assessments from others vantages, such as literature, history, and race.
Steven Lubet, as our resident expert on Harper Lee, will be providing commentary at the conclusion of the symposium.
If you're interested in participating, please send a brief proposal to Al Brophy, email@example.com. In keeping with the faculty lounge's blog format, there will be no footnotes, but hyperlinks are welcome. Posts should be in the range of 500-1500 words and we're hoping to have the symposium run July 27 to August 1.
The connections across time of the physical space of the old Mt. Zion church where the South Carolina Black Convention was held in 1865 and the modern A.M.E. churches at Mother Emanuel and Mt. Zion in Charleston that I discussed in my prior post have led me to think about how the voices from that convention 150 years ago still speak to us. I previously quoted from the convention documents, but after the shooting at Mother Emanuel I re-read the document and was struck by the following:
“. . . we have been deprived of our natural rights, which are founded in the laws of our nature, which consist of personal liberty, the right to be free in our persons, and the right of personal security and protection against injuries to our bodies or good name.”
What would the participants that week in 1865 meeting in Mt. Zion have thought about the June 18th killings? How frustrated would they have been that security from racial violence remains, 150 year later, so fragile and elusive even in the very congregation that some of the leaders and members attended? If those authors were correct (and surely they were) that the “right of personal security and protection” is essential to liberty and equality, then the promise of the Fourteenth Amendment remains a promise unfulfilled. It is unfulfilled when police departments fail to protect African-American and other communities of color from violence; it is unfulfilled when police officers wrongly perceive black men and women as "threats" and needlessly resort to violence; it is unfulfilled when victims of domestic violence cannot depend on state agencies to protect them from abusers; it is unfulfilled when a culture of violence clothes itself in rights only to perpetuate itself on the innocent.
The Cumberland Law Review is doggedly searching for articles, insights, and ideas that implicate a subject that we believe our journal is uniquely situated (and arguably obligated) to explore: a sort of retrospective of the Voting Rights Act of 1965. Our host city, Birmingham, Alabama, is one of the more prominent characters in our national recollection of the Civil Rights era and the 20th century ills that necessitated legislation such as the VRA and the Civil Rights Act.
In light of the VRA’s 50th anniversary and recent SCOTUS decisions (from Shelby Co. to Ala. Legislative Black Caucus), we think it appropriate to devote enough space in one of our forthcoming editions to an articles symposium on point. As of now, though, the quantity and quality of articles we’ve received along this vein have been underwhelming, so we’re casting a wide net in soliciting contributions.
If you have the time or interest in submitting or pitching articles, or just touching base with thoughts and suggestions re: other people to reach out to, please reach out to either Walker Mason Beauchamp, Editor-in-Chief, Cumberland Law Review firstname.lastname@example.org, 205-821-5800 or our Articles Editor, Stewart Alvis. Stewart J. Alvis, Acquisitions Editor, Cumberland Law Review email@example.com
The editors are also publishing work related to civil rights and legal history more broadly, including some never-before published papers of Judge Horton (who presided over the Scottsboro case) and also a short essay from me on graduation addresses at Howard College (a predecessor of Samford University) in Marion, Alabama, before the Civil War. This is a companion to longer articles I've published on graduation and literary addresses at the University of Alabama and at UNC. There are fewer addresses available for Howard College in this era, so I'm going to focus on the ways that the addresses linked economic progress, law, and slavery. I think this will allow us to see in a small compass some central tendencies of southern thought in the decade before Civil War.
I just learned that William Cohen, the C. Wendell and Edith M. Carlsmith Professor of Law Emeritus at Stanford Law School, died last month at age 81. He clerked for Justice Douglas, and taught at Minnesota, UCLA, and then Stanford from 1970-99. He taught Torts, Constitutional Law, and Federal Courts with an exceptional combination of scholarly depth, practical wisdom and good humor. Obit here.
At the request of the organizers, I'm passing on the following:
The Food and Drug Law Journal is pleased to announce a forthcoming symposium—Constitutional Challenges to the Regulation of Food, Drugs, Medical Devices, Cosmetics, and Tobacco Products—to be held at the Georgetown University Law Center (GULC) on Friday, October 30, 2015, and co-sponsored by the Food and Drug Law Institute and GULC's O’Neill Institute for National and Global Health Law.
In a column online at the New York Times, Adam Liptak discusses the different ways in which the Supreme Court might rule in favor of same-sex marriage—a narrow decision requiring states to recognize same-sex marriages performed in other states, a broad decision recognizing a right to same-sex marriage on the grounds that same-sex marriage bans discriminate on the basis of sexual orientation and deny same-sex couples a fundamental right, or a middle of the road decision.
To what extent might the justices be influenced by their concerns about the implications of a right to same-sex marriage for a right to polygamous marriage? If traditional ideas about marriage are not sufficient to justify a ban on same-sex marriage, are they sufficient to justify a ban on polygamous marriage, especially since polygamy bans arose out of anti-Mormon animus?
Having set the stage in prior posts (here and here), I want to delve a bit into texts from the Civil War/Reconstruction black public sphere. The first I will highlight is the National Convention of Colored Men, held in Syracuse in October 1864.
The Black Convention Movement of the nineteenth century is an important and undervalued source of public debate in the black public sphere. The movement itself arose as part of the abolitionist movement, and a number of important conventions had been held in the north prior to the war. (The Colored Conventions Project at the University of Delaware has a wonderful resource webpage for these conventions here.) Both because it was held as the war’s end was in sight, and because of the issues addressed, the Syracuse Convention of 1864 can be seen as the first Reconstruction black convention. In the ensuing five years many more—local, state, and national—would follow (including the Colored National Labor Union Convention of 1869, pictured to the right), in part as an extension of the civil society movement the Syracuse Convention aided by founding the National Equal Rights League at Syracuse. These leagues, along with Union Leagues, were critical focal points for early Reconstruction black activism and community-building.
In my last post I introduced the idea of “black originalism.” Before delving more into some of the materials I am looking at, I want highlight what are likely to be some key points that frame the project. Some of these might be described as methodological, others normative. But in either event from what I have looked at so far, I think these provide a bit of the framework for the project (subject to ongoing revisions, of course!).
First, Black Originalism as a project should prioritize the Reconstruction Amendments and their implementation. A common theme of black writers and speakers from the 1860s is that the antebellum United States—not just the South, but the entire country—contained important parallels to British America, with the Civil War being a second Revolution. As activist and lawyer John Rock said, “the John Brown of the second Revolution is but the Crispus Attucks of the first.” Reconstruction was a second founding, and should be treated as such. This will be a markedly different view than is usually taken by originalists, who tend to privilege the founding and see Reconstruction as a restoration to a more correct (more perfect?) constitution without slavery.
In prior posts I wrote about two speeches/dialogues from 1865: Henry Garnett’s speech and sermon in the House (here and here), and the exchange between William Sherman and Garrison Frazier in Savannah. As I mentioned, these are two sources that I am looking at in my project of exploring African-American writings, speeches, and actions from the period to help think about the possible meanings of the Reconstruction Amendments. I'll now take a break from my 150-year anniversary posts to give an overview of the project.
By the 1860s African Americans had built a well-established discourse and activist community in the North. It developed with the abolitionist movement, but it also functioned as a support network for building African-American civil society in the Jim Crow culture of the North. With the end of slavery, southern black communities immediately engaged in public discussions and debates about the meaning and implementation of freedom and citizenship. And with Reconstruction, black representation in local, state, and national government was brief but substantial. The ideas discussed and advanced within the black public sphere provide an important source for how freedom and citizenship were being thought about at the time by the people for whom it meant the most. And while historians have been exploring black history from this period for a number of years, very little of this has made its way into legal or constitutional analysis.
The main exception to this has been the use of African-American sources in the Second Amendment cases, Heller and McDonald, relying in part on work by scholars (Akhil Amar, Robert Cottrol & Raymond Diamond, and others), and in Justice Thomas’s opinions on affirmative action (e.g. Grutter). Both the majority opinion and Justice Thomas’s concurrence in McDonald cite black newspapers and black conventions to support an individual rights reading of the amendment as incorporated through the Fourteenth Amendment. I don’t know about you, but this struck me as odd.
Ruth Bader Ginsburg is a legal icon. In more than four decades as a lawyer, professor, appellate judge, and associate justice of the U.S. Supreme Court, Ginsburg has influenced the law and society in real and permanent ways. This book chronicles and evaluates the remarkable achievements Ruth Bader Ginsburg has made over the past half century. Including chapters written by prominent court watchers and leading scholars from law, political science, and history, it offers diverse perspectives on an array of doctrinal areas and on different time periods in Ginsburg's career. Together, these perspectives document the impressive legacy of one of the most important figures in modern law.
The contributors are Nina Totenberg, Herma Hill Kay, Linda K. Kerber, Reva B. Siegel, Neil S. Siegel, Joan C. Williams, Stephen B. Cohen, Cary Franklin, Lisa Griffin, Aziz Z. Huq, Scott Dodson, Paul Schiff Berman, Deborah Jones Merritt, Robert A. Katzmann, Lani Guinier, Tom Goldstein, and Dahlia Lithwick. The table of contents is here.
I signed up to guest at Prawfs this month and - what do you know - I haven't managed to get much momentum going. Today, though, I posted some thoughts and questions about how we might think about the recent extension of Second Amendment rights in the context of existing race disparities in formal, and informal, policing. If you're interested, check it out here.
One of the many fascinating threads from the Constitutional Law panel at AALS on Griswold was the connection between the contraception cases and poverty law. Cary Franklin spoke about the under-remembered aspect of Griswold as a poverty law case. Griswold, after all, involved a birth control clinic: it was not just about access to birth control, but about the ability of poor women to access birth control. Prior to the Griswold decision in 1965, Connecticut and other states selectively enforced birth control laws against clinics, leaving wealthier women and couples free to violate the law with the help of their doctors. Although the Court downplayed this aspect of the case, Franklin argued that the case should be read in the context of its time, when the Court was repeatedly challenging barriers to access for the poor to basic rights and social inclusion, including the rights to vote (Harper, 1966), to counsel in criminal cases (Gideon, 1963), to court transcripts (Griffin, 1956), and to travel (Shapiro, 1969). It also occurred, I would add, in a time of increased federal legislative and administrative commitment to access to medical care for the poor (Medicaid, Community Health Centers) and to programs that supported child-rearing such as Head Start.
Also on the panel, Melissa Murray discussed the forgotten contraception case of Trubek v. Ullman. Trubek was a parallel case to Poe v. Ullman and Doe v. Ullman, where the Court punted the topic to its future self by holding the challenges non-justiciable. While Poe and Doe presented claims for contraceptive rights within traditional marriages, Trubek presented contraception as a component of a professional woman’s control over child bearing decisions and ability to work with her husband to balance work and family obligations. Louise Trubek and her husband David were students at Yale Law School, and they made these issues central to their complaint, which the Connecticut Supreme Court had noted. As Murray pointed out, the combined nature of liberty and equality claims was more fully apparent in Trubek than in either Poe or Griswold.
Although Trubek did not, on its face, involve issues of poverty, for scholars and practitioners of poverty law it most certainly did: Louise Trubek (now a Professor Emerita at Wisconsin Law School) has long been a leader in the field of poverty and public interest law (the casebook she co-authored with Julie Nice helped many of us teach Poverty Law through the post-welfare reform years of the 1990s and early 2000s). As Trubek herself discusses, the Connecticut litigation was specifically aimed at opening birth control clinics to serve the poor. For women in poverty, the ability to plan child-bearing greatly increases their chances to escape poverty through paid labor. The life-long social justice concerns that inspired Louise and David Trubek to join the litigation epitomized the intersection between gender and class justice that Cary Franklin argues has been lost from the popular history of Griswold. By recovering this history, we may be reminded just how intertwined are the problems of class and gender freedom and equality, and how the de-emphasis of class discourse in constitutional law has inhibited gains in freedom and equality for women generally.
This is my first visit to the Lounge, and I want to thank Al and Dan and the crew for inviting me to post. As the outgoing chair of the AALS Section on Legal History, I thought I would begin with some shameless promotion of the fantastic panel on women’s legal history we have at AALS this coming Saturday afternoon. This is a joint program with the Section on Women in Legal Education (chaired by my friend and colleague, Kirsten Davis), and is co-sponsored by the Section on Constitutional Law. Many readers will know already that the highlight of the panel (and of the conference) is a conversation with Justice Ginsburg, hosted by Wendy Williams. Justice Ginsburg has been called the “Thurgood Marshall” of women’s rights, and while that moniker elides important differences in history, context, personality, etc., it certainly captures the significance of her role. I will reserve a future post to explore some thoughts on what is said at the AALS program, but it is particularly fitting to have the Justice at this joint program since, in addition to her pivotal role in the modern history of women’s rights, she was also a founder of the Section for Women in Legal Education and a trailblazer for women in our profession, as this paper by Herma Hill Kay, this year’s recipient of the Women in Legal Education section’s Ruth Bader Ginsburg Lifetime Achievement Award, sets out so well. As I discuss below the fold, Justice Ginsburg’s work sets the stage for the full program on the field of women’s legal history.
The Public Law Group of the University of Ottawa Faculty of Law and The Younger Comparativists Committee of the American Society of Comparative Law invite paper proposals for a workshop on “Politics and the Constitution.”
The Public Law Group of the University of Ottawa Faculty of Law and the Younger Comparativists Committee of the American Society of Comparative Law invite emerging scholars to submit paper proposals for a full-day workshop on comparative public law. The workshop will be held at the University of Ottawa on Friday, July 10, 2015. The papers will be published in a special issue of the Review of Constitutional Studies (all papers will be subject to the normal peer-review process).
The theme of the workshop is “Politics and the Constitution.” Possible topics might include the interaction between law and politics in domestic constitutional law, the role of political actors in implementing constitutional law, constitutional amendment processes, including referenda and initiatives, the politics of judicial appointment processes, and the constitutional regulation of elections, including laws governing election expenses.
Customers discriminate. They discriminate in whom they buy from, how much they are willing to pay for what they buy, and how they evaluate those with whom they do business—among other things. Anti-discrimination norms in contemporary U.S. society are strong, as reflected by legal constraints on discrimination by employers, providers of public accommodation and so on. But there seems to be an exemption for customers. Why?
One of their proposals might require bundling of purchases as a response to discrimination (such as requiring the purchase of tickets to women's sports teams at the same time customers purchase tickets to men's sports teams.). This leads me to ask if this is really more about redistribution of wealth than about prohibiting/punishing customer discrimination. And if that is the case, perhaps we should just redistribute property outright? A second thought here -- and this likely the only time in my life I have found myself in agreement with Robert Bork; savor this because the moment is unlikely to recur -- but I think we allow customer discrimination because of the core ideology in our country that permits individuals to make choices about how to spend money, whom to associate with, and in what ways.
UPDATES (11/9/14): NPR reports that Hickox's boyfriend has withdrawn from nursing school and that the two will move out of the state after Nov. 10. Alas, in so reporting, NPR claims that Maine had "sought a court order to require [Hickox] to stay indoors." Apparently NPR doesn't read TFL (or court petitions). Meanwhile, I found this recent JAMA news report about what we do and don't know about Ebola enlightening. Both links via Ross Silverman on Twitter (@phlu). Finally, thanks to Christian Turner for plugging the post on the latest episode of the always interesting Oral Argument podcast.
The case I mentioned in my last post, Maine Department of Health and Human Services v. Kaci Hickox is no more. Hickox and public health officials agreed to stipulate to a final court order imposing on Hickox the terms that the court had imposed on her in an earlier, temporary order. Until Nov. 10, when the 21-day incubation period for Ebola ends, Hickox will submit to "direct active monitoring" and coordinate her travel with Maine public health authorities to ensure that such monitoring occurs uninterrupted. She has since said that she will not venture into town or other public places, although she is free to do so.
Below is a detailed account of the case, which suggests the following lessons:
As Hickox herself described it, the result of her case is a “compromise,” reflecting neither what Hickox nor what Maine initially wanted.
That compromise was achieved by the parties availing themselves of the legal process, not through Hickox’s civil disobedience.
The compromise is not easily described, as it has been, as a victory of science-based federal policy over fear-based state demagoguery. By the time the parties got to court, and perhaps even before then, what Maine requested was consistent with U.S. CDC Guidance, albeit a strict application of it. What Hickox had initially offered to do, by contrast, fell below even the most relaxed application of those guidelines, although by the time the parties reached court, she had agreed to comply with that minimum.
The compromise applies only to Hickox, and was based on a stipulation by the parties to agree to the terms that the court had temporarily imposed after reviewing a limited evidentiary record. Additional evidence and legal arguments that the state might have raised in the now-cancelled two-day hearing could have resulted in a different outcome.
A substantially different outcome, however, would have been unlikely under Maine’s public health statute. Indeed, it is not clear that Maine’s public health statute allows public health authorities to compel asymptomatic people at-risk of developing Ebola to do anything, including comply with minimum CDC recommendations.
“Quarantine” is a charged, but ambiguous, term. It allows us to talk past one another, to shorthand and needlessly politicize a much-needed debate about appropriate policy, and to miss the fact that the CDC Guidance in some cases recommends what could be fairly described as a "quarantine" for people like Hickox and requires it for asymptomatic people with stronger exposure to Ebola (but who are still probably less likely to get sick than not).
It’s not clear who has bragging rights to Ebola policy "grounded in science," or what that policy looks like.
This is a troubling series of news reports about deception and defiance on the part of some healthcare workers (HCWs) in response to what they believe to be unscientific, unfair, and unconstitutional public health measures:
Gavin Macgregor-Skinner, an epidemiologist and Global Projects Manager for the Elizabeth R. Griffin Foundation, who has led teams of doctors to treat Ebola in West Africa, reported that he "can't tell them [his doctors] to tell the truth [to U.S. officials]" on Monday's "CNN Newsroom."
“At the moment these people are so valuable . . . I have to ensure they come back here, they get the rest needed. I can't tell them to tell the truth at the moment because we're seeing so much irrational behavior,” he stated. “I've come back numerous times between the U.S. and West Africa. If I come back now and say ‘I've been in contact with Ebola patients,’ I'm going to be locked in my house for 21 days,” Macgregor-Skinner said as his reason for not being truthful with officials, he added, “when I'm back here in the US, I am visiting US hospitals everyday helping them get prepared for Ebola. You take me out for three weeks, who’s going to replace me and help now US hospitals get ready? Those gaps can't be filled.”
He argued that teams of doctors and nurses could be trusted with the responsibility of monitoring themselves, stating, “When I bring my team back we are talking each day on video conferencing, FaceTime, Skype, text messaging, supporting each other. As soon as I feel sick I’m going to stay at home and call for help, but I’m not going to go to a Redskins game here in Washington D.C. That's irresponsible, but I need to get back to these hospitals and help them be prepared.
The city’s first Ebola patient initially lied to authorities about his travels around the city following his return from treating disease victims in Africa, law-enforcement sources said. Dr. Craig Spencer at first told officials that he isolated himself in his Harlem apartment — and didn’t admit he rode the subways, dined out and went bowling until cops looked at his MetroCard the sources said. “He told the authorities that he self-quarantined. Detectives then reviewed his credit-card statement and MetroCard and found that he went over here, over there, up and down and all around,” a source said. Spencer finally ’fessed up when a cop “got on the phone and had to relay questions to him through the Health Department,” a source said. Officials then retraced Spencer’s steps, which included dining at The Meatball Shop in Greenwich Village and bowling at The Gutter in Brooklyn.
UPDATE11PM, 10/30: A spokesperson for the NYC healh department has now disputed the above story, which cites anonymous police officer sources, in a statement provided to CNBC. The spokesperson said: "Dr. Spencer cooperated fully with the Health Department to establish a timeline of his movements in the days following his return to New York from Guinea, providing his MetroCard, credit cards and cellphone." . . . When CNBC asked again if Spencer had at first lied to authorities or otherwise mislead them about his movements in the city, Lewin replied: "Please refer to the statement I just sent. As this states, Dr. Spencer cooperated fully with the Health Department."
Kaci Hickox, the Ebola nurse who was forcibly held in an isolation tent in New Jersey for three days, says she will not obey instructions to remain at home in Maine for 21 days. "I don't plan on sticking to the guidelines," Hickox tells TODAY's Matt Lauer. "I am not going to sit around and be bullied by politicians and forced to stay in my home when I am not a risk to the American public."
Maine health officials have said they expect her to agree to be quarantined at her home for a 21-day period. The Bangor Daily News reports. But Hickox, who agreed to stay home for two days, tells TODAY she will pursue legal action if Maine forces her into continued isolation. "If the restrictions placed on me by the state of Maine are not lifted by Thursday morning, I will go to court to fight for my freedom," she says.
On the evolving Hickox situation, it's unclear whether — as Hickox herself has suggested — she is already under a mandatory home quarantine order, which she is threatening to defy by leaving her house on Thursday morning and (unless it's been lifted) suing, or whether — as her attorneys say — she is currently under no such quarantine order and is free to leave her house at any time (but is choosing to rest for a couple of days). In any case, Maine has clearly said that it is prepared to get a court order to enforce (or impose) a quarantine order.
Bumping to front to remind interested readers of 9/15/14 deadline.
The U.S. Feminist Judgments Project seeks contributors of revised opinions and commentary for an edited collection entitled Feminist Judgments: Rewritten Opinions of the United States Supreme Court. This edited volume is a collaborative project among feminist law professors and others to rewrite, from a feminist perspective, key Supreme Court decisions relevant to gender issues. Editors Kathy Stanchi, Linda Berger and Bridget Crawford seek prospective authors for 20 to 25 rewritten Supreme Court opinions covering a range of topics including reproductive rights, equal protection, the state’s use of criminal power, privacy, the family, women’s political participation, Title IX, employment discrimination and substantive due process. The editors also seek authors for commentaries of 1,500 to 2,500 words to put into context each of the rewritten cases.
The U.S. Feminist Judgments project was inspired by the successful collection and publication in Britain of Feminist Judgments:From Theory to Practice, edited by Rosemary Hunter, Clare McGlynn, and Erika Rackley. This volume, which included feminist versions of twenty-three key British decisions from the Court of Appeal and House of Lords, was published in 2010 and has been very well received. Like the sister project in Britain, the U.S. Feminist Judgments Project endeavors to pioneer “a new form of critical socio-legal scholarship” that illustrates how cases could have been decided differently had a feminist method been employed. We believe that U.S. Supreme Court law is ripe for this kind of scholarly treatment.
Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten opinions should fill out an application here.
Applications are due by September 15, 2014 at 5:00 p.m. eastern. Editors will notify accepted authors and commentators by October 7, 2014. First drafts of rewritten opinions will be due on February 1, 2015. First drafts of comments on the rewritten opinions will be due on March 15, 2015. The editors are in the process of identifying a publisher; publication of the final volume is anticipated for late 2015.
A list of cases tentatively scheduled for rewriting is available here.