• November 4, 2014

    by Caroline Cox

    Justice Watch, the blog for Alliance for Justice, explains why a Republican-controlled Senate does not necessarily doom the judicial confirmation process for Obama-nominated judges.

    Jeffrey Rosen has a less optimistic view, and argues in The New Republic that the death of a justice during a Republican Congress would lead to disaster.

    Russel Berman reports in The Atlantic that a challenge to the filibuster survived a recent Supreme Court challenge.

    At SCOTUSblog, Amy Howe discusses Zivotofsky v. Kerry, the Jerusalem passport case, and what yesterday’s oral argument signals about how the Supreme Court will decide the case.

    Irin Carmon of MSNBC reports on the numerous ballot measures that challenge reproductive rights throughout the country.

  • November 3, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law. Follow Professor Ellis on Twitter @atibaellis

    The debate over voter identification laws in this election season has shown once again that the voter fraud debate has shaped the right to vote over the last decade.  Recently, voter identification laws in Wisconsin, North Carolina and Texas – passed on the belief that the integrity of elections must be defended against the imminent threat of voters who will impersonate other voters and otherwise commit fraud—has spurred substantial litigation and, most recently, generated a hotly contested denial of a stay of the Texas voter ID law over a scathing dissent from Justice Ruth Bader Ginsburg. 

    Scholars like Lorraine Minnite, Richard Hasen, Justin Levitt and others, have shown that this voter fraud claim is a myth. Yet, right-leaning pundits like Hans von Spakofsky and Mona Charen have argued that voter fraud will likely occur in the 2014 election. Thus, some pundits, politicians and grassroots organizations like True the Vote see rampant voter fraud as real and looming, despite all research to the contrary.

    This voter fraud claim is often seen as partisan-motivated propaganda or a means perpetuating racial subordination – some call it the return of Jim Crow. Yet, as I argue in an article recently published in the Catholic University Law Review, these claims must be connected to the long saga of voter suppression in the United States. In The Meme of Voter Fraud (also available here), I explain that the voter fraud myth is the latest step in the evolution of the American ideology of exclusion – the belief that “unworthy” citizens should be excluded from the electorate. 

    A meme (an idea based on evolutionary theory) is any idea, belief, concept or behavior that spreads and replicates in the culture. Memes replicate through, among other ways, the sharing of narratives, teaching, or posting on the Internet (think cat videos!). Memes are appealing because they play into a person’s experiences, and on some level people identify with them. This fact prompts a person to share the idea, and the most attractive memes spread virally. As a meme spreads, people often modify it to attract a broader audience.  The new recipients will in turn transform the meme again and replicate it, causing it to evolve (and the changes that fail cause that particular meme to die off). A meme’s appeal and its ability to meet our psychological needs – for instance, for political or social power – causes people to spread memes, not the truth or falsity of the meme.

    People can connect one meme with other memes to develop a complex set of ideas – an ideology – which we use to view the world. And, as scholar J.M. Balkin has observed, ideologies that spur us to action to subjugate the rights of others inevitably result in injustice. Memes can enable power plays, and those most invested in maintaining that power maintain the meme to this end, despite any oppression that might occur.

  • November 3, 2014

    by Caroline Cox

    Geoffrey R. Stone, the former ACS Board Chair and current co-chair of the Board of Advisors for the ACS Chicago Lawyer Chapter, explains in The Daily Beast the importance of Senate elections for the courts.

    Shailia Dewan reports in The New York Times on the judicial race in Montana in which record amounts of money are being spent.

    In Slate’s “Amicus” podcast, Dahlia Lithwick looks at judicial elections, state voter ID laws, and the voting problems expected in the upcoming election.

    The Brennan Center for Justice provides stories of voting in Texas, a state with one of the strictest voter ID laws in the country.

    Jenée Desmond-Harris provides a list in Vox of ways voters’ rights could be violated on Election Day and how voters can respond. 

  • October 31, 2014
    Guest Post

    by Paul J. Larkin, Jr., Senior Legal Research Fellow, Center for Legal and Judicial Studies, The Heritage Foundation.

    On November 5, 2014, the Supreme Court will hear oral argument in a case technically captioned as Yates v. United States, but colloquially known as The Fish Case. The facts of the case are, in a word, bizarre; the government’s theory, even more so. The problem is two-fold: This is a real case, not a law school hypothetical, and the government persuaded the Eleventh Circuit Court of Appeals to rule in its favor. The Eleventh Circuit held that the Sarbanes-Oxley Act -- a statute designed to prevent corporate fraud and accounting shenanigans from sinking large corporations -- makes it a crime for a fisherman to engage in a catch-and-release program.

    In 2007, John Yates was the captain of the Miss Katie, a commercial fishing boat working in the Gulf of Mexico. John Jones, a federally deputized Florida Fish and Game Wildlife Commission officer, was patrolling offshore. He saw the Miss Katie, boarded it to conduct a safety inspection, and found some undersized red grouper. He told Yates to put the grouper aside for reinspection when he returned to port, but Yates decided retroactively to adopt a “catch-and-release” program.  Yates threw the undersized fish overboard, and replaced them with fish that were large enough to be caught.  Bad move.

  • October 31, 2014

    by Caroline Cox

    Happy Halloween from ACS! Here is your daily roundup of legal news from around the web:

    Ed Pilkington discusses in The Guardian the troubling story of a “born and raised” Texan who will not be allowed to participate in the upcoming elections because of a Texas voter ID law. “What’s happening here is that the state of Texas is using tax dollars consciously to suppress their own voters. It’s absolutely about intimidation,” explains Abbie Kamin of the Campaign Legal Center in the story.

    In Slate, John Paul Rollert looks at how Justice Sonia Sotomayor pushes the other Supreme Court justices past their comfort zones.

    Ronald J. Sheehy argues in Salon that the Supreme Court has created a system in which the impact of institutional racism is ignored.

    The New York Review of Books features a story from Jed S. Rakoff on the problem of plea bargaining in the U.S. criminal justice system.

    Nina Totenberg questions in NPR the claim of the Justice Department that it can cut off internet or cable and then pose as repairmen to search a home.