BookTalk

  • February 8, 2016
    BookTalk
    Vagrant Nation
    Police Power, Constitutional Change, and the Making of the 1960s
    By: 
    Risa L. Goluboff

    by Risa L. Goluboff, John Allan Love Professor of Law and Professor of History, University of Virginia School of Law

    Long before I finished writing Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, my new book about the rapid downfall of age-old vagrancy laws in the 1960s, I began talking about it with colleagues, lawyers, and friends. Each time I did, they pointed out connections to the present.

    The present each had in mind was very different, however. To poverty lawyers and scholars, my tale of the downfall of vagrancy laws—originally passed and long used to criminalize the status of being idle and poor—naturally led to questions about homeless policies today. To political activists who learned from my book that vagrancy laws had long been used against unpopular speakers—everyone from the Industrial Workers of the World to Communists to civil rights leaders and Vietnam War protestors—Occupy Wall Street seemed the natural endpoint. Scholars and activists focused on race and policing saw how stop-and-frisk in many respects had replaced the vagrancy arrests of those who seemed suspicious to the police. More generally, they reflected that the arbitrary and discriminatory policing I describe in the book is still (or once again) the subject of considerable controversy and social movement organizing today. Those interested in criminal law identified analogues to the vagrancy laws in the criminalization of certain people for their status—though now the most obvious examples are convicted sex offenders and undocumented immigrants rather than gay men, prostitutes, or poor people.

    My colleagues were all right. Much of the social, criminal, and political regulation that exists today has roots, analogues, echoes, or precursors in the single category of criminal law that made vagrancy illegal in every state in the nation for hundreds of years. Vagrancy laws that outlawed not only being idle and poor but also being immoral or dissolute, or wandering about with no apparent purpose, were eminently flexible. They could do, and did do, just about anything law enforcement authorities—or the powerful people in their communities—wanted them to do.

  • January 28, 2016
    BookTalk
    When Money Talks
    The High Price of "Free" Speech and the Selling of Democracy
    By: 
    Derek Cressman

    by Derek Cressman, a longtime reform advocate and architect of anti-Citizens United voter instruction measures in California, Colorado and Montana.

    Common sense tells us that if money is equivalent to political speech, then that speech is not free. But contemporary campaign finance jurisprudence presumes that paid advertisements, which can indeed disseminate political speech, deserve identical First Amendment protections as the free press. Supreme Court rulings such as Buckley v. Valeo, Citizens United v. FEC, and McCutcheon v. FEC have undone post-Watergate reforms to limit big money in politics and have given a small group of billionaires an outsized role in deciding who runs for office, who wins elections, and what issues dominate our political discourse.

    I wrote When Money Talks: The High Price of “Free” Speech and the Selling of Democracy in order to draw a bright line between paid speech (which is funded by the speaker and foisted on the listener unsolicited) and free speech (which is sought out and usually paid for by the listener when she buys a newspaper, for example). It’s an instruction manual intended to equip citizens with arguments and an assortment of tools to overturn Supreme Court rulings in Citizens United and related cases. It eschews legalese for plain talk, but includes plenty of arguments that lawyers, academics, and advocates will find provocative.

    Once the line is drawn between paid and free speech, some constitutional protections for paid speech remain – as Justice Stevens has eloquently explained. So while we may limit the amount of money anyone spends on paid speech, we may not ban it entirely and must justify the limits with a compelling public interest.

    Legal scholars have long debated the extent to which preventing corruption or promoting equality justify some restrictions on paid speech. I offer a third interest: the wisdom of the crowd. For both voters and legislators to make wise decisions about public policy, we need robust but also balanced information from opposing viewpoints.

  • January 27, 2016
    BookTalk
    Beyond Deportation
    The Role of Prosecutorial Discretion in Immigration CasesThe Role of Prosecutorial Discretion in Immigration Cases
    By: 
    Shoba Sivaprasad Wadhia (with a Foreword by Leon Wildes)

    by Shoba Sivaprasad Wadhia, author and Samuel Weiss Faculty Scholar at Penn State Law- University Park

    As a law student in summer 1998, I began working for a boutique immigration law firm in Washington D.C., and during my years there met noncitizens from all over the globe seeking refuge from persecution abroad; opportunities to continue research at an internationally renowned institution; and relief from deportation (removal) to remain with their families in the United States; among others. The most compelling cases I handled as lawyer involved prosecutorial discretion (PD), a powerful sword used by the immigration agency (now Department of Homeland Security or DHS) to shield certain people from deportation. I later spent six years with an advocacy organization committed to comprehensive immigration reform but also challenged by the sharp reaction to the terrorist attacks of September 11, 2001, which resulted in many immigration policies with far reaching consequences for Arab, Muslim and South Asian communities and with minimal attention to or understanding for the role of prosecutorial discretion in immigration cases. When I joined Penn State Law in 2008 to teach, train and write about immigration, the study of prosecutorial discretion emerged as a natural calling for my research and culminated into several law reviews and my first book: Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases.

    In the immigration context, prosecutorial discretion can be exercised at many different stages of enforcement, not just the charging stage. When DHS makes a decision not to detain a mother who legally qualifies for detention or chooses to stay a removal order for a middle aged man who has been ordered removed but serves as a primary caregiver to his United States citizen children, DHS is said to be exercising prosecutorial discretion favorably. The economic reasons for prosecutorial are pronounced as DHS has the resources to deport less than 4 percent of the entire undocumented population. The reasons for a prosecutorial discretion grant are not limited to resources as there are also humanitarian reasons for why DHS might wish to shield a person from deportation. The political factors that influence prosecutorial discretion are an important third reason we have this kind of discretion  -- Congress failed to move forward on a comprehensive immigration solution; advocates pushed the Executive Branch to use prosecutorial discretion; and now the U.S. Supreme Court has decided to address whether the administration’s own prosecutorial discretion exceeds legal boundaries if it turns out that the plaintiffs-states who have sued have the legal authority to do so.

    The role of prosecutorial discretion during the Obama administration is a fascinating one, but only one piece of a larger history that is discussed in my book. Published in 2015 by NYU Press, Beyond Deportation takes the reader through a rich history of prosecutorial discretion and profiles scores of noncitizens who have been processed for this kind of discretion for largely humanitarian reasons -- family, medical and other goals. One chapter describes the immigration case of the former Beatle John Lennon and the efforts undertaken by his attorney Leon Wildes to obtain public information about the agency’s deferred action program. The next chapter describes the relationship between the use prosecutorial discretion in the criminal justice system to that in the immigration system and the extent to which prosecutorial discretion in immigration law derives from criminal law. Another chapter chronicles my journey in seeking data through the Freedom of Information Act (FOIA) and highlights the need for transparency in immigration prosecutorial discretion.

  • January 15, 2016
    BookTalk
    Notorious RBG
    The Life and Times of Ruth Bader Ginsburg
    By: 
    Irin Carmon and Shana Knizhnik

    by Shana Knizhnik, co-author and founder of the Notorious RBG Tumblr

    In late June 2013, as in every June, the Supreme Court decided a number of high-stakes cases. A majority of the Court threatened the future of affirmative action, made it more difficult to seek redress for employment discrimination, and gutted the Voting Rights Act, one of the most important pieces of civil rights legislation in the history of the United States. In each of these cases, Justice Ruth Bader Ginsburg used her voice to stand up and speak out on behalf of the rights of the disenfranchised, dissenting from the bench to protest the actions of the majority. As an incoming second-year law student, I was appalled at what the court was doing. But amidst that anger, RBG’s words stood out as a shining beacon, exemplifying the egalitarian and inclusive values I knew were embodied in the Constitution. I took to the internet, and Notorious RBG was born on Tumblr.

    As it turns out, RBG has been speaking out for the marginalized for most of her life. In Notorious RBG: The Life and Times of Ruth Bader Ginsburg, reporter Irin Carmon and I explain how RBG has captured the imagination of so many—from t-shirts to embroidery, music videos to nail art—but also why. RBG’s popularity represents so much more than just a fascination with a cool grandma (although she certainly has that going for her). In a time where rights many Americans take for granted are on the chopping block, RBG refuses to back down from her life’s mission: the continued expansion of “We the People.” We believe that this book, like the Notorious RBG phenomenon itself, draws a broad, inter-generational audience into the important work of the Court.

  • January 13, 2016
    BookTalk
    Plutocrats United
    Campaign Money, the Supreme Court, and the Distortion of American Elections
    By: 
    Richard L. Hasen

    by Richard L. Hasen, Chancellor’s Professor of Law and Political Science, University of California, Irvine School of Law

    As I was working on my new book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections, a UC Irvine colleague asked me a key question: Who was I writing this book for? The answer I gave him, half-jokingly, was that I had written the book for a single person: Justice Elena Kagan.

    You see, before Justice Kagan joined the Supreme Court, she was Professor (and later Dean) Kagan, a progressive thinker to be sure but one who expressed some serious skepticism about a 1990 Supreme Court case, Austin v. Michigan Chamber of Commerce, which upheld the ability of the government to require business corporations to pay for their political expenditures out of a separate PAC fund. Professor Kagan queried whether Austin represented a government passing a campaign finance law to protect incumbents, and whether the Court was wrong in rejecting a First Amendment challenge to the law. The Supreme Court later overturned the Austin case in its notorious 2010 Citizens United case.

    The Kagan story ends with Kagan as Solicitor General of the United States defending the corporate PAC requirement in the Citizens United case, then losing that case, then getting an appointment to the Supreme Court despite misplaced conservative cries that she wanted to ban books, and now with Justice Kagan dissenting from the conservative Supreme Court’s deregulatory campaign finance decisions.

    In Plutocrats United, I argue for a fundamental rethinking of 40 years of campaign finance decisions, beginning with the 1976 case of Buckley v. Valeo. In Buckley, the Court held that the government might have an interest in limiting money in politics to stem corruption, but not to assure political equality, an interest the Buckley Court called “wholly foreign to the First Amendment.”