June 2009

  • June 24, 2009

    Approximately 1,000 scholars, students, practitioners, policy-makers and judges descended on the historic Mayflower Renaissance Hotel in our nation's capital this weekend for the 2009 ACS National Convention. Videos of panels and featured remarks are being collected here.

    Sens. Amy Klobuchar (D-Minn.) and Sheldon Whitehouse (D-R.I.) kicked off the Convention with remarks on the value of experience for our judiciary. 

    The Convention's theme, "Keeping Faith with the Constitution," shares its name with a new ACS book by Profs. Goodwin Liu, Pamela Karlan and Chris Schroeder. In a panel on the book, Liu and Karlan were joined by highly esteemed experts in constitutional interpretation for discussion of the "constitutional fidelity," which they put forth in the book.

    Featured remarks by Elizabeth Warren included a robust defense of her proposal to create a Consumer Financial Protection Agency -- an idea recently embraced by the Obama administration.

  • June 24, 2009
    Guest Post

    By Nina Morrison, Staff Attorney, The Innocence Project

    In an already much-criticized decision, the U.S. Supreme Court ruled 5-4 last week that Innocence Project client William Osborne could not use the federal civil rights law to obtain DNA testing for the purpose of proving his innocence of the rape for which he was convicted and sent to prison in 1994. The decision was disappointing and surprising given the broad national consensus about DNA testing's unprecedented capabilities to exonerate the innocent. But the court ultimately decided that principles of finality and deference to state law trumped fundamental fairness, even where scientific proof of actual innocence is concerned.

    As a practical matter, the impact of the decision will fortunately be quite limited, at least in terms of the numbers of innocent prisoners affected. Most of our clients seeking DNA testing are able to get it through state court orders or the consent of prosecutors. The federal-court option that we sought in Osborne has been necessary only when a state has no procedure making DNA testing available, or when a defendant is for some reason excluded from applying for testing under state law (for example, some states limit their DNA testing laws to death row inmates, so that someone "only" serving life in prison cannot get testing). It is very likely that Osborne will close the federal courthouse doors to at least some innocent prisoners who cannot get testing under state law - some of whom may spend their lives in prison, or even be executed, as a result.

  • June 24, 2009

    Harvard Law Professor Elizabeth Warren, seized the opportunity of speaking at the 2009 ACS National Convention to make a major speech boosting her idea for a Consumer Financial Protection Agency, which the Obama administration recently endorsed. Warren, who the Wall Street Journal recently reported as having "emerged as an influential force in the administration's overhaul of financial regulations," is the head of the oversight committee responsible for the TARP bailout funds.

    The full speech, from which there is an excerpt below, is available here.

    Something as prosaic as a Consumer Financial Protection Agency is about keeping faith. A good agency with good rules can make the lives of 50 million American families that can't pay off their credit cards a little easier, and it can give them a fighting chance to pay off their debt. A good agency with good rules can give some hope to the tens of thousands of people that are currently trapped in payday loan hell. A good agency with good rules can give help homeowners build wealth instead of misery. A good agency can avert the next crisis before it builds into a storm that threatens all of us.

    A good agency with good rules may be boring, but it fulfills the basic promise of government to establish laws that work for American families. Thanks to the battles that were fought in the 1930's, we know that economic regulation keeps faith with the Constitution. The government has the power to write these rules so that the economy works for American families; it needs only the will.

  • June 24, 2009
    Arthur Miller, NYU School of Law's University Professor, led a panel discussion called "The Future of the Civil Jury System," at the 2009 ACS National Convention. Following the discussion, Miller talked with ACSblog about the state of the nation's civil jury system, which he called "one of the crowning achievements of the American legal system." Miller said that the founders believed that the jury was such an important buffer between the citizen and government that "they wrote it into the Constitution in the Sixth and Seventh Amendments." Miller says that lawyers need to become engaged in reinvigorating the civil jury system, which he said is not being used the way it once was. "But now we wake up in 2009 and discover that jury trials are disappearing," he said.

    Watch Miller's interview below or download a video podcast of it here.

  • June 24, 2009
    Guest Post


    By Peter M. Shane, author of Madison's Nightmare, law professor, edemocracy researcher. Follow Prof. Shane on Twitter: www.twitter.com/petermshane

    This post was intitially published here at Huffington Post.

    America's legal progressives are wondering how to re-engage the American public more generally in a serious discussion about the role of federal judges in interpreting the Constitution. This was a question much discussed, both formally and informally, at last week's superb annual convention of the American Constitution Society - a national organization of progressive lawyers, judges, law professors, law students, and policy makers.

    Public conversation about constitutional interpretation happens most noisily on the occasion of Supreme Court vacancies, but it has come to take on a predictably depressing character. As if to rival the "Less filling!" - "Tastes great!" debate, partisans of the right and left take to shouting, "Judicial Activism!" and "Living Constitution!" at one another. Unfortunately, this shorthand rarely frames any meaningful popular discussion.

    Debates framed by this figurative (and sometimes actual) shouting match are depressing, in part, because the labels are so obviously incomplete. "Judicial activism" is intended to stoke anxiety that our jurists are infusing their decisions with subjective judgment. They are striking down popularly enacted legislation based on mere personal preference. The attack thus implicitly imagines what plainly does not exist, namely, a Constitution that can be applied to difficult cases without some values-laden interpretation of the text.