Governor Andrew Cuomo named Professor Jenny Rivera, who has been a member of the CUNY Law faculty since 1997, to the New York Court of Appeals. She graduated from NYU Law, with an LLM from Columbia, practiced public interest law, and clerked for Judge Sotomayor on the SDNY before joining academia.
The Library of Virginia has a wonderful blog ("Out of the Box") where archivists tell the stories of people, places, and things found among the
library’s collections. This week, the blog told the story of Jane Webb, a mixed-race
free woman who, in 1704, offered to serve 7 years as an indentured servant with
the owner of her enslaved lover in consideration for her lover’s freedom and
permission to marry. In addition, Webb promised to let the owner (Thomas Savage) “have all the children
that should be bornd [sic] upon her body” during the period of servitude. The owner agreed, and (remarkably) a
written contract was executed between Savage and Webb. At the conclusion of the 7 years, however,
Savage refused to release either Webb’s husband or their children; Savage
claimed that the agreement entitled him to all of Webb’s children, for a period
of time exceeding her indenture. Over
the next 16 years, Webb and Savage battled in successive court cases in
which each of them claimed the right to Webb’s children and her (now)
husband. In one of the cases, Savage claimed that Webb’s poverty rendered her unfit to care for her children
(as “they may be induced to take ill courses”). Ultimately, Savage (and his heirs) succeeded: Webb’s case
was dismissed in 1727, and, despite her efforts, her children and husband
remained bound to Savage.
The case is an interesting on a number of legal/academic fronts (property,
evidence, labor, children & the law, etc.) – I’m most interested in Webb’s
attempt to bind herself and her unborn children in exchange for her betrothed. Scholars of slavery in the U.S. have
wrestled insufficiently with what can be called “voluntary” servitude and enslavement.
For free blacks during this era, a web (no pun intended) of hostile legislation
threatened to plunge them into perpetual slavery for even minor infractions;
faced with the prospects of familial separation and geographic exile (if
trafficked further South), free blacks throughout the South petitioned legislatures
and courts requesting enslavement.
Through this mechanism, free blacks transformed themselves into property
– and their petitions provide critical insight into the role of law, race,
labor, family, and limits of “freedom” in the lives of the nominally free. Can slavery ever be voluntary? If yes, what are the implications for our Thirteenth Amendment jurisprudence and courts' refusals to enforce personal service agreements? I look forward to your thoughts on this.
The deadline for applying for a U.S. Supreme Court
Fellowship is November 30 (apply here).
Over the past forty years, law professors have been well
represented among the Fellows contributing to the work of the Supreme Court, the Federal
Judicial Ctr., the Administrative Office of the U.S. Courts, and
(more recently) the U.S. Sentencing Commission. This is a great
opportunity for a sabbatical/leave year for profs whose scholarship would
benefit from the experience.
two years ago to the day, Chief Judge Royce Lamberth of the D.C. District Court
shocked the human embryonic stem cell (hESC) research community by preliminarily
enjoining NIH funding of that research, on the grounds that plaintiffs were
likely to succeed on the merits of their argument that hESC research violates
the so-called Dickey-Wicker Amendment (on which more below). Today, the D.C.
Circuit affirmed Chief Judge Lamberth’s (reluctant) grant of summary judgment
for the government, a holding that he had been essentially forced into by an
earlier panel of the D.C. Circuit. (My co-guest blogger covers the other big
decision coming out of the D.C. Circuit today, below.) Since it is extremely
unlikely that the D.C. Circuit will review the decision en banc or that the
U.S. Supreme Court will accept cert., today’s decision effectively ends
litigation that caused utter chaos to erupt in labs all over the country in the
wake of the preliminary injunction, and continued to cause significant
uncertainty even after the D.C. Circuit quickly stayed that preliminary
injunction. Congress could, of course, act to clarify the ambiguity in
Dickey-Wicker. But this seems highly unlikely given the current partisan split
between the House and the Senate. Indeed, the draft HHS appropriation bill that
passed the subcommittee, on
which I blogged previously, contains Dickey-Wicker’s familiar language, to
the letter. The ambiguity regarding the legality of federal funding of hESC
research seems, then, to have reached its low water mark during the past couple
of years, and should stay that way…at least until November.
For those of you who are close observers of this litigation:
as you were (or skip to the section on today's opinions, below). For the uninitiated-but-interested: Some background. Federal
policy regarding funding for hESC research has, since the beginning of this
research in 1998,
been extremely contentious, wrapped up as it is with ethical, political and diverse religious
positions on the moral status of human embryos and other aspects of “abortion
politics.” An embryonic stem cell line is so called because the line is derived
from an embryo (really, a five-day or so blastocyst), and this process
necessarily destroys that embryo. Despite that — or because of it — the funding
policies under the Clinton, Bush and Obama administrations have been remarkably
similar. In this
article, published in September 2009 — one month after the litigation that
no one thought would have legs had commenced — political scientist James
Fossett and I analyzed these extent to which the Obama Administration’s
guidelines for funding hESC research, then just announced by NIH, were likely
to achieve two of their stated goals: (1) expanding NIH support for hESC
research after what had been widely perceived by the science community as strict
limits on it during the Bush Administration, and (2) ameliorating the patchwork
of state and private regulatory standards that had come to govern this research
in the absence of federal funding.
Today the D.C. Circuit ruled 2-1 against the FDA, finding that proposed graphic warnings on cigarette packages were unconstitutional. According to the FDA, graphic images showing the harmful health consequences to smoking would essentially drive users to quit - and stop underage smokers from starting in the first place. Per the Wall Street Journal, the images "include pictures of diseased lungs, a body on an autopsy table and a man blowing cigarette smoke out of a tracheostomy hole in his neck that will be combined with stronger wording such as smoking can kill you.” Also on the package would be a phone number of the National Cancer Center Institution's quit-smoking telephone line (1-800-QUIT-NOW).
According to the majority, the case involves novel questions of the scope of governmental authority to force a manufacturer to go beyond factual statements and disclosures, undermining its business interests and bearing the costs of "making every single pack of cigarettes in the country a mini-billboard for the government's anti-smoking message." The court devoted a good deal of time to settling on the appropriate level of scrutiny for such a regulation of commercial speech, but landed on the intermediate (under which the government must state a substantial interest justifying the regulation on commercial speech and also show the regulation directly advances that goal).
Here, the FDA's express goal/substantial interest was preventing consumers from smoking. Personally, I don't smoke: never have, never will. But I'd think that seeing pictures graphically showing the consequences of doing so upon picking up a pack of cigarettes would certainly make a person think twice about purchasing it. Yet causation is a knotty thing to prove. And the FDA, according to the court, failed to show the graphics would directly cause a decrease in smoking rates: thinking about quitting (or not buying) is not tantamount to following through on the thought, and large graphics were not proven more effective than existing labels. Speculation about the greater results is, as so often is the case, not enough.
So what evidence would have convinced the majority? The only thing I can think of is some sort of focus-group or similar research study as to the effect of graphics v. words on the human brain, tracked over the long term for links to behavioral choices. It might also necessitate testing a difference between types of graphics, the nature of the behavior under study (i.e. habitual, occasional, socially pressured, health v. other risks, etc.), the demographics of the target consumers (are pictures more effective on older or younger, educated or less-educated users) .... the variables are seemingly infinite. Intermediate scrutiny seems perhaps the most difficult of the three levels to grapple with when it comes to predicting how to marshal sufficient evidence in a given case - or before a given court.
I put it to you: what evidence and proof of causation/relationship would you expect to see in this kind of intermediate scrutiny case? Does it make a difference that the issue involves an affirmative obligation rather than a negative bar? How much does cost matter? More fundamentally, is intermediate scrutiny for commercial speech the right standard here when there is already broad recognition of the dangers associated with smoking and the effects of express warning labels? What makes graphics different? It's been said that a picture is worth a thousand words. It seems that the old adage is now the question of the day, at least for the FDA.
Full text of the decision here. Note the dissent's construction of the effect of graphics and the additional role of conveying health hazards as independent from decreasing smoking rates.
I will leave it to the constitutional scholars among us to comment on the decision itself. I only have one question to ask: Who out there predicted that the opinion upholding the mandate would have Chief Justice Roberts as the swing vote?
Folks looking for summer reading suggestions may wish to add to their list David Dorsen's recent biography of Judge Henry Friendly, entitled Henry Friendly, Greatest Judge of His Era. You'll find a description here, reviews here, here, and here, and an interview with the author here.
The book was published in March. If you've read the book, please share your thoughts with others in the "comments."
Judge Louis Pollak, a huge figure in both legal academia and the federal judiciary, passed away yesterday. He was 89. Judge Pollak received his LLB from Yale and went on to clerk for Justice Wiley Rutledge on the U.S. Supreme Court. He worked at the State Department as well as Paul, Weiss and he assisted Thurgood Marshall in preparing both briefs and oral argument in Brown v. Board of Education. In 1955 he joined the Yale Law faculty and served as dean from 1966-70. He served as dean of Penn Law from 1975-78. In 1978, he was appointed to federal bench as a judge in the Eastern District of Pennsylvania.
I will particularly miss Judge Pollak with whom I came to have a very warm relationship here at Drexel. Judge Pollak served as the Chair of the Board of Visitors at Drexel Law during our first two years and played a signficant role in important law school decisionmaking during his final years. Feisty to the end, Judge Pollak published an article in the very first issue of the Drexel Law Review attacking the US News rankings.
The MSU Law Review Symposium on "Gender and the Legal Profession's Pipeline to Power" is in full swing of today. I'll be live blogging and tweeting (@ProfBCrawford #genderandlegalprof) throughout the day. Here's the morning's line-up:
Panel 1--Gender, Race and the Judiciary
Moderator: Linda Greenhouse
Renee Newman Knake (MSU), Rethinking Gender Equality in the Legal Profession's Pipeline to Power
Keith Bybee (Syracuse), The Limits of Debate or What We Talk About When We Talk About Gender Imbalance on the Bench
Sally Kenney (Newcomb College, Tulane), Gender at Work: The First Women on State Supreme Courts
Angela Onwuachi-Willig (Iowa) and Amber Fricke (Iowa), The Inexorable Zero: Female Judges of Color [unintentionally omitted from initial post; updated 4/14/12--BJC]
Panel 2--Gender Equality: From the Boardroom to the Electorate
Moderator: Winona Singel (MSU)
Doug Branson (Pitt), Diversity in Corporate Governance
Christine Corcos (LSU), Toward Cognatic Primogeniture: The Rise of Equal Rights of Succession in the Modern European Constitutional Monarchy
Erika Falk (Communications, John Hopkins), Unnatural, Incompetent, and Unviable: Press Portrayals of Women Candidates for President
Panel 3--The Roots of Gender Inequality in the U.S. and Abroad
Moderator: Melanie Jacobs (MSU)
Jen Mullins (American), Reactions to Lose: Investigating Lack of DiPersistent Gender Disparity in Student Note Publication
Dara Purvis (Illinois), Gendered Self-Evaluation of Female Law Students
Abigail Rury (Iowa), All Things Being Equal, Women versity Among the Recent Appointments to the Iowa Supreme Court.
Law professors like to harp on the importance of professionalism. They also emphasize the dangers of social media and email. Unfortunately, Chief U.S. District Judge Richard Cebull of the District of Montana graduated before at least some of these warnings. Or perhaps he was doing too many crossword puzzles in class.
Judge Cebull forwarded the following email (the first part written by him):
"Normally I don't send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.
"A little boy said to his mother; 'Mommy, how come I'm black and you're white?' His mother replied, 'Don't even go there Barack! From what I can remember about that party, you're lucky you don't bark!'"
The email was sent from his judicial account, according to the Great Falls Tribune. The judge's response after being confronted with the email?
"The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan. I didn't send it as racist, although that's what it is. I sent it out because it's anti-Obama."
Imagine what the email would have said if we weren't a post-racial society.
Duke law dean David Levi, who served as Chief United States District Judge for the Eastern District of California prior to his appointment as dean in 2007, has an article in yesterday’s National Law Journal on Chief Judge John Roll of the District of Arizona. Judge Roll was shot and killed as he stood in line to see Congresswoman Gabrielle Giffords in a shopping center parking lot in Tucson a year ago. Levi uses the instance as an example of the informal relations between judges and legislators, which he argues is “the every day job of making democracy work.”
I'm late to the fan club of Downton Abbey, the English TV costume-drama that initially premiered in the U.K. in September 2010. Later this month, the show will begin its second season here in the U.S. under the "PBS-Masterpiece Classic" label. I couldn't help but think that actor Hugh Bonneville might be a good candidate for a leading role in a film about the Supreme Court.
The September 29, 2011 issue of the New York Review of Books included this interview with Judge Richard Posner. Eric Segall (Georgia State) conducted the interview, which ran under the headline, "The Court: A Talk with Richard Posner." Here is an excerpt:
EJS: Hasn’t the nomination process become a total farce? At her confirmation hearing, Justice Sonia Sotomayor said repeatedly that she would decide hard cases based on the law, and John Roberts made the infamous analogy to the judge as an umpire.
RP: I have made fun of Roberts about the umpire thing but I don’t blame either of them because the confirmation hearings are not for real. At my confirmation hearing back in 1981, when confirmations were much less controversial (and of course court of appeals nominees don’t get the same scrutiny as Supreme Court justices, though they are getting much more than they did when I was confirmed), Strom Thurmond, the chairman of the Judiciary Committee, asked me, “Do you agree that judges should just apply the law; they shouldn’t make the law?” I said that was usually the case but some cases are indeterminate and to decide them the judge may have to create some law. Sometime later I received the printed report of the confirmation hearing, and my answer—my nuanced answer—had been changed (without notice to me) to yes, judges should just apply the law and not make the law.
EJS: You told the truth. Why can’t they now?
As I said, judicial appointments were less controversial in those days. * * *
EJS: I think you wrote to me that the nominees should have to answer questions about specific issues and that we should do away with the hearings altogether.
RP: The senators do a very poor job at judicial confirmation hearings. It is amazing to me that no senator took Roberts up on his umpire remark. Fifteen of them were sitting there and they let the remark pass unchallenged. I think the problem is that they are given questions to ask by their staff. They read the questions to the nominee but since they don’t really know what is going on they can’t ask a follow-up question.
EJS: How could Justice Thomas get confirmed after he said under oath that he had never discussed Roe v. Wade with anyone is his life?
RP: The problem is that if the nominee says, “I’d be lying to you if I said I didn’t have a preliminary judgment,” he is accusing his predecessors of having lied, right? It is very tricky. The problem is that we have a political system in which the definition of a gaffe is telling the truth.
Judge Posner has a knack for telling the truth, even when it is not very attractive. It's a great interview.
Goodwin Liu, the University of California Berkeley law professor whose nomination to the 9th circuit languished due to Republican opposition, was confirmed as the newest member of the California Supreme Court on Wednesday. In many ways, Governor Brown's appointment achieved the same goal that Senate Republicans sought to prevent: it set up Liu with the experience necessary to make him a credible Democratic nominee to the United States Supreme Court. In addition, it wil give him a big voice in the development of law in America's most populous state - he will be one of seven voices on the Cal Supremes (rather than one of - how many...29?... members of the Ninth Circuit.)
Now he just needs Obama to get another shot at appointing a justice.
The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such as publication and citation rates for the years 2004-06, when Sotomayor was on the Second Circuit Court of Appeals, we compare her performance to that of her colleagues on the federal appeals courts. Sotomayor matches up well. She might turn out to be more of a force on the Court than the naysayers predicted.
I have a couple of reactions when I first read a draft of this paper -- one was that I'm not entirely convinced that publication rates and number of published pages are so much measures of quality as measures of ego-centrism. (I would also imagine that length of opinions is strongly correlated with circuit -- I'd imagine that the DC Circuit opinions are, on average, much longer than, say, the Fourth Circuit. Of course the authors take circuit into account towards the end of the paper.) To put this point into the context of legal academics -- how much weight would we give to an evaluation of a faculty candidate based on the number of pages she produced? Maybe some, but I think we'd be a lot more concerned with an assessment of quality. My second reaction was that I really need to perform a thorough parallel study for some of my antebellum judges to see how their "reputations" travel.
For those of you who may have missed it, check out Judge Martin Sheehan's decision in Kissel v Schwartz in Kentucky. The decision is extremely short and certainly worth a read for a quick dose of humor.
As I mentioned, I am teaching a Supreme Court seminar this Fall. For one assignment, students write a cert pool memo on a pending petition, and then conference in groups of nine to decide the petitions. As one of these petitions, I selected an interesting Establishment Clause petition.
Might a witness's post on a judge's Facebook page, wishing the judge a happy birthday, constitute an ex parte communication? The South Dakota Supreme Court addressed that issue in an opinion handed down this week. You'll find the opinion here.