December 2015

  • December 31, 2015

    by Jeremy Leaming

    Our blog owes much to those who provide us intellectually inspiring and thought-provoking pieces throughout the year on myriad constitutional and legal policy concerns. And 2015 was no different. We have many to thank in the ACS network, such as Elise Boddie, Erwin Chemerinsky, Adam Winkler, Atiba Ellis, Ann Hodges, Charlotte Garden, Nkechi Taifa, Steve Sanders, and so many others. Until our website is refreshed – and that is an ACS goal – it can be daunting and likely frustrating to make it through 53 landing-pages worth of guest posts.

    So what follows is a sampling of guest posts, symposia and blog interviews from 2015. Enjoy, and thanks to all who took time to provide material for ACSblog, and to those who read.

    Fair House Acting under attack, and before a right-wing Supreme Court, see Professor Valerie Schneider’s Jan. 20 post.

    Rutgers law professor Elise C. Boddie on MLK’s “arc of the moral universe,” and the ongoing attacks on civil rights laws, such as the Voting Rights Act, and the Fair Housing Act. (And in the indispensable Give Us the Ballot, which The New York Times’ recognized as a 2015 notable, The Nation’s Ari Berman looks at the history behind the landmark Voting Rights Act of 1965 and the modern day efforts to crush gains from the law.)

    Another must-read of 2015, ACS President Caroline Fredrickson’s book, Under The Bus: How Working Women Are Being Run Over. In this post for ACSblog, Fredrickson delves into why she wrote the book, and its importance to any discussion of labor law and policy.

    National Women’ Law Center’s Kelli Garcia on the harmful effects of attacks on abortion rights, especially, and not surprisingly, for women in abject poverty.

    In our symposium on racial inequalities in the criminal justice system, the Equal Justice Initiative’s Jennifer Taylor examined the prevalent and pernicious racial discrimination of the jury selection system. Also in that symposium, The Sentencing Project’s Nazgol Ghandnoosh explored the three sources of racial discrimination in criminal sentencing.

    In our symposium on King v. Burwell, the 2015 high-profile legal challenge from the nation’s rabid right-wing to a significant provision of the Affordable Care Act, University of Chicago law school professor David Strauss explains how “wrong” that challenge was.

    University of Indiana law school professor Steve Sanders takes on Gov. Mike Pence’s anti-gay politics behind the defense of a so-called religious liberty law. Also see, UCI Law’s Erwin Chemerinsky on the same matter, in which he concludes, “Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else.”

    Open Society Foundation’s Nkechi Taifa on racial inequalities in the criminal justice system and some rare bipartisan concern.

    GW Law’s Alan B. Morrison on Judge Andrew Hanen’s wobbly, but troubling ruling against the Obama administration’s immigration reform efforts.

    One that The New York TimesAdam Liptak noted, a piece from Georgia State University College of Law professor Eric J. Segall on oral argument in Obergefell v. Hodges, the Supreme Court case that would, later in the summer, become a landmark equality victory. The Segall piece was part of ACSblog’s symposium on marriage equality. (Also see Chemerinsky’s thoughts on the case from the symposium.)

    Seattle law school professor Charlotte Garden takes a look at another Supreme Court case that challenges, again, longstanding labor rights of public sector teachers.  

    Racial inequalities throughout the nation remain, depressingly and fatally, dominant. WVU law school professor Atiba R. Ellis provided ACSblog numerous posts on those inequalities and why police murders that disproportionately target black men and women continue unabated, but are not being ignored – witness the work of Black Lives Matter. Ellis’s May 2015 post looks at the “Baltimore Uprising.”

    Richmond School of Law professor Ann C. Hodges on the right-wing attack on public sector labor rights in the case before the Supreme Court, Friedrichs v. Calif. Teachers Association. Also see Hodges’ ACS Issue Brief, released in late November, about Friedrichs.

    Georgetown law professor Lisa Heinzerling on the outcome of the statutory, separation of powers challenge to the health care reform law, and its impact on environmental regulations.

    In the ACSblog symposium regarding the 50th anniversary of the landmark civil rights law, the Voting Rights Act, UNC law school professor Gene Nichol looks at Chief Justice John Roberts’ out-of-touch and seriously harmful understanding of racial discrimination in voting. (Also see, WVU law professor Atiba Ellis’ piece, “Racial Majoritarian Tyranny and the Voting Rights Act of 1965.”)

    The Civil Rights Movement lost a leading figure with the death of Julian Bond. UNC law professor and civil rights leader Theodore M. Shaw provided a moving tribute.

    Kentucky county clerk Kim Davis refused to recognize marriage equality following the high court’s landmark opinion in Obergefell v. Hodges, making her an instant hero of right-wing politicians. Retired Montana Supreme Court Justice James C. Nelson, however, had a different take. For ACSblog he blasted Davis for flouting her duties to uphold constitutional principles, and for flaunting her bigotry.

    OSF’s Nkechi Taifa again provided commentary for ACSblog on the criminal justice system's continual reliance on lengthy prison sentences that disproportionately destroy black lives.

    For ACSblog’s 2015 Constitution Day Symposium, WVU law professor Atiba Ellis examined our nation’s failure to address persistent violence against black lives and communities and the constitutional failure to end that violence.

    In an interview with ACSblog, recent law school graduate Jarrett Adams discussed his arduous and very personal journey through a justice system that still disproportionately harms and destroys black lives.

  • December 23, 2015
    Guest Post

    by Kimberly West-Faulcon, Professor of Law, Loyola Law School in Los Angeles. Professor West-Faulcon holds the endowed James P. Bradley Chair in Constitutional Law at Loyola Law School, and is  author of an amicus brief filed in Fisher v. Texas. Follow on her on Twitter and Facebook.  

    Supreme Court Associate Justice Antonin Scalia’s remarks earlier this month during oral arguments in Fisher v. Univ. of Texas at Austin that African Americans may be better off in “slower track” colleges were an articulation of the counterintuitive and fully debunked theory that Black and Latino students would benefit if the Supreme Court were to rule that racial affirmative action violates the 14th Amendment Equal Protection Clause.  By the way, among the major debunkers of the so-called “mismatch hypothesis” are former Harvard and Princeton presidents and authors of the book The Shape of the River—Derek Bok and William Bowen.  Bok and Bowen’s findings contradict Scalia’s observations about the benefits of affirmative action for students of color.  How Supreme Court Justice Anthony Kennedy—the notorious “swing vote” on the current Supreme Court—reacts to Scalia’s accurate but stark articulation of the mismatch hypothesis will likely dictate the future of racial affirmative action by colleges and universities.  However, Kennedy’s rejection of the idea that Blacks are “ill-matched” to elite schools will not be enough for the University of Texas to pull out a victory in the Fisher case.  Kennedy will also have to reject another common theory long-invoked by critics of racial affirmative action policies—the theory that racial affirmative action is “classist.” 

    In specific terms, education writer Richard Kahlenberg’s charges (in a brief filed in the case) that the University of Texas considers race in a manner that is “classist” has a key similarity to Justice Scalia’s remarks—both focus on a purported negative attribute of Black students instead of either the details of UT Austin’s admissions policy, particularly its very restrained consideration of race, or the fact that, due to her less-than-stellar high school grades and SAT score, Abigail Fisher has a weak constitutional claim.  Instead, Kahlenberg encourages the Court to view 90 percent of Black students at top colleges as financially privileged enough to be considered “wealthy.”  Completely ignoring the very real “racial wealth gap” in this nation, the brief Kahlenberg submitted to the Supreme Court goes so far as to state: “a poor white student from a trailer park might add more diversity than a wealthy African American graduate of a prep school.”  This proposition is racially divisive, contrary to research findings of the educational benefits of “diversity within diversity,” and based on data that is either very weak or irrelevant.

    First, Kahlenberg’s brief claims that “nine in ten black students are middle and upper class”—interestingly, for support of this claim, he relies on a study by the former presidents of Princeton and Harvard Universities who disagree with Kahlenberg on the propriety of racial affirmative action. However, Bok and Bowen report income datanot wealth data—that 71 percent of African Americans had “family income over $22,000” and that 15 percent had family income above $70,000.  Adding 71 percent and 15 percent (86 percent) is what seems to get Kahlenberg to the “roughly nine in ten” figure.  This move completely ignores the critical fact that income and wealth are very different measures and that passing the threshold of $22,000 annual income does not make a Black family wealthy.

    Second, another weakness in Kahlenberg’s  assertion of Black “affluence” is that it relies on a study by minority mismatch expert Richard Sander based on a small sample size—“a total of 61 black respondents at elite schools” and a 2011 study by Sander in which Sander himself points out that being “upper-middle-class” “means something different” when you are Black “than what it means when applied to whites or Asians” because African Americans “have much lower wealth at a given level of income” and “middles-class blacks are much more likely to live in segregated neighborhoods with high poverty rates.” 

  • December 23, 2015

    by Jeremy Leaming

    University of Chicago law school professor Geoffrey Stone details a history of fear unsettling free speech rights in a piece for The Huffington Post. While a few law professors have recently argued that some restrictions on the First Amendment are needed in the face of terrorist threats, Stone writes:

    Given our grim history in periods of perceived or real crisis, and given how long it has taken us to attain the wisdom and insight we have gained through painful national experience, this is definitely not the time to turn back the clock and to revert to long discredited doctrines that served us so poorly in the past.

    Reuben Guttman, a leading litigator and founding partner of Guttman, Buschner & Brooks, looks at how increasingly public lives are shaping litigation. In a piece for The Global Legal Post, he writes:

    These days, trial lawyers comb through electronic databases reviewing emails that have not been filtered through drafting and editing. It is an age where we say what is on our mind, press a button and transmit information with typos, wit, and sometimes wisdom, but always with stream of consciousness.

    Will the Roberts Court, which has built a jurisprudence track record of advancing corporate America’s interests, further restrict legal means to challenge corporate malfeasance? Public Justice’s Chairman Arthur Bryant in a piece for The National Law Journal writes that recent oral argument in three cases suggest that “for three reasons, the court may be unlikely to issue the far-reaching decisions the corporations are seeking – and class action practitioners fear.”

  • December 22, 2015

    by Jim Thompson

    Next month, the Supreme Court will decide whether to grant certiorari to a case challenging an Obama administration policy that will allow millions of undocumented immigrants to stay and work in the United States; however, the most important issue in the case is whether states can use courts rather than the political process to undermine a president’s policies, say Amanda Frost and Stephen I. Vladeck state in The New York Times.

    Elsewhere in The New York Times, Jessica Silver-Greenberg and Michel Corkery criticize debt collectors for using courts to invoke arbitration and deny court access to consumers. Of this unethical trend, Peter Holland, a lawyer who ran the Consumer Protection Clinic at the University of Maryland’s law school, says, “It’s beyond hypocritical that the companies can use arbitration to avoid being held accountable in court, all the while using the courts to collect from consumers.”

    Staff reporters at The Chicago Tribune provide commentary on a Texas grand jury’s decision not to indict any law enforcement officials in the death of Sandra Bland.

    Virginia Attorney General Mark R. Herring (D) plans to announce that the Old Dominion State will no longer recognize concealed carry handgun permits from 25 other states that have reciprocity agreements with the commonwealth, reports Jenna Portnoy in The Washington Post.

  • December 21, 2015

    by Jim Thompson

    At Jacobin, Lichi D’Amelio interviews former Rikers Island employee Mary Buser about her time at “one of the most horrifying scenes of American ‘criminal justice.’” Buser notes that the facility is primarily a place for pre-trial detainees who wait for their "day in court" in jail because they cannot afford bail, a reality disproportionately experienced by the poor.

    On Sunday, New York Gov. Andrew Cuomo announced that he will pardon thousands of individuals who were convicted of non-violent crimes as teenagers but have since led law-abiding lives, report Jesse McKinley and James C. McKinley, Jr. in The New York Times.

    In Washington Monthly, Alan Morrison explains how government inaction and a flawed justice system cost one man his freedom, and likely, his right to stay in the United States. 

    At STAT, Karen Weintraub talks with ACS Board member Reuben A. Guttman about his career prosecuting pharmaceutical fraud and defending consumers against unethical drug companies.