March 2008 - Posts

• Congressional Activities: Week of 3/31/08

  Here is a comprehensive list of the House and Senate schedule and hearings. The following links are to the daily calendars for the House and Senate. Here is the weekly House whip information (majority/minority) and the Senate floor schedule. Of note: On Thursday, the Senate Committee on Judiciary will consider whether to statutorily define the state secrets privilege, five federal judicial nominations and a nomination for Assistant Attorney General. Tuesday, April 1, 2008 Senate Committee on Judiciary (Human Rights and the Law Subcommittee) hearings to examine rape as a weapon of war, focusing on accountability for sexual violence in conflict. House Committee on Judiciary (Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law) joint hearing on “Paying With Their Lives: The Status of Compensation for 9/11 Health Effects.” House Armed Services Committee (House Terrorism, Unconventional Threats and Capabilities Subcommittee) will meet to hear testimony on the Holistic Approaches to Cybersecurity Enabling Network Centric Operations Wednesday, April 2, 2008 Senate Committee on Judiciary oversight hearings to examine the Department of Homeland Security. Senate Committee on Appropriations (Labor, Health and Human Services, Education, and Related Agencies Subcommittee) hearings to examine National Labor Relations Board Representation elections and initial collective bargaining agreements, focusing on safeguarding workers' rights. Senate Committee on Commerce, Science, and Transportation business meeting to consider S.J.Res. 28, disapproving the rule submitted by the Federal Communications Commission with respect to broadcast media ownership. Thursday, April 3, 2008 Senate Committee on Foreign Relations hearings to examine Iraq 2012, focusing on what can it look like and how to get there. Senate Committee on Banking, Housing, and Urban Affairs hearings to examine turmoil in U.S. credit markets, focusing on the recent actions of federal financing regulators. Senate Committee on Judiciary business meeting to consider S. 2136, to address the treatment of primary mortgages in bankruptcy, S. 2133, to authorize bankruptcy courts to take certain actions with respect to mortgage loans in bankruptcy, S. 2041, to amend the False Claims Act, S. 2533, to enact a safe, fair, and responsible state secrets privilege Act, S. 702, to authorize the Attorney General to award grants to State courts to develop and implement State courts interpreter programs, and the nominations of Catharina Haynes, of Texas, to be United States Circuit Judge for the Fifth Circuit, and Rebecca A. Gregory, to be United States Attorney for the Eastern District of Texas. Senate Committee on Judiciary hearings to examine the nominations of Mark S. Davis, to be United States District Judge for the Eastern District of Virginia, David Gregory Kays, to be United States District Judge for the Western District of Missouri, David J. Novak, to be United States District Judge for the Eastern District of Virginia, Stephen N. Limbaugh, Jr., to be United States District Judge for the Eastern District of Missouri, and Elisebeth C. Cook, of Virginia, to be an Assistant Attorney General. House Appropriations Committee (Commerce, Justice, Science Subcommittee) hearing: Attorney General. House Appropriations Committee (Select Intelligence Oversight Panel) hearing on the Comprehensive National Cybersecurity Initiative. House Appropriations Committee (Commerce, Justice, Science Subcommittee) hearing: Legal Services Corporation. Posted Mar 31 2008, 03:10 PM by ACSBlog: The Blog of the American Constitution Society Filed under: News And Announcements

• Sup. Ct. on Water, Religious Monuments, Payroll Deducations, and the "Speech or Debate" Clause

  SCOTUSBlog has full coverage of the Supreme Court's decision in a water boundaries case, its refusal to grant certiorari in a "speech or debate" clause case arising from the FBI's search of a Congressional office, and its grants of certiorari regarding a religious sect that wants to add a 10 Commandment-like monument to a public park and a First Amendment challenge to an Idaho law that prohibits local governments from allowing employee payroll deductions to pay for political activities by labor unions. This CRS Report further delves into the Constitution's "speech or debate" clause Posted Mar 31 2008, 02:03 PM by ACSBlog: The Blog of the American Constitution Society Filed under: Judiciary

• 60 Minutes: "Nightmare at Guantanamo Bay"

  60 Minutes reports on Murat Kuranz, in what CBS describes as "a rare look inside [America's] clandestine system of justice, where the government's own secret files reveal that an innocent man lost his liberty, his dignity, his identity, and ultimately five years of his life." The former detainee claims he "was held underwater, shocked, and suspended from the ceiling."   Posted Mar 30 2008, 08:49 PM by ACSBlog: The Blog of the American Constitution Society Filed under: Separation Of Powers

• Plagiarism-Detector Passes the Test: Judge Says Students' Rights Not Violated

  A federal judge in Alexandria ruled this month that a commercial plagiarism-detection tool called Turnitin does not violate the copyright of students who are required to submit their papers through the service. Four high school students had sued iParadigms, which operates Turnitin, arguing that the company included their papers in the system without their permission. The judge ruled that although the company stores digital copies of their essays in a database, the archiving is fair use of the papers and provides "a substantial public benefit.” The decision has implications for other digital archiving services, such as Google Library, which scans and indexes books online. Posted Mar 30 2008, 01:22 PM by ACSBlog: The Blog of the American Constitution Society Filed under: IP and Tech Law

• $100 Million Tip for Starbucks Baristas

  A California judge ruled that Starbucks must pay its California baristas $86 million, plus interest, for violating of the state’s tip-pooling law by using some of the employees’ tips, received from tip jars, to pay shift supervisors. Posted Mar 30 2008, 07:22 AM by ACSBlog: The Blog of the American Constitution Society Filed under: Economic, Workplace, and Environmental Regulation

• 2nd Circuit Adopts Ministerial Exception

  The Second Circuit formally adopted the “ministerial exception” to Title VII, holding that civil rights laws cannot govern church employment relationships with ministers without violating the free exercise clause of the First Amendment. The court unanimously dismissed a lawsuit brought by an African-American Catholic priest against his Bishop and Diocese claiming that canon law had been misapplied for racially motivated reasons. Posted Mar 29 2008, 01:22 PM by ACSBlog: The Blog of the American Constitution Society Filed under: Religion Clauses

• Supreme Court Round-up

  Two Decisions: The Supreme Court issued two decisions this week in Medellin v. Texas and Hall Street v. Mattel. The Medellin opinion, written by Chief Justice Roberts (with Justice Stevens concurring and Justices Breyer, Souter, and Ginsburg dissenting), attracted significant commentary. As Edward Lazarus described, it pitted the Court's states' rights advocates against advocates for greater presidential power and internationalists against those disdainful of international law. The Court held that rulings by the International Court of Justice require additional congressional action before being binding on the states, and that a presidential order to the states to give effect to the treaty has no legal effect. The Hall opinion, written by Justice Souter (with Justices Stevens, Kennedy, and Breyer dissenting), held that parties cannot contractually agree to expand judicial review beyond that allowed by the Federal Arbitration Act, in this case, to errors of law. Seven Arguments: The High Court heard argument in seven cases this week (transcripts available here). The cases included a jurisdictional question of whether U.S. courts can hear habeas appeals from American citizens held by U.S. coalition-led forces in Iraq, the level of competency necessary for self-representation in a criminal trial, and whether the Voting Rights Act was violated by the appointment of a county official instead of holding a special election. SCOTUSBlog has more here. Cert.: The Supreme Court granted certiorari in two cases this week. In U.S. v. Hayes, the Court will examine what the relationship between the offender and victim must be to qualify as a "misdemeanor crime of domestic violence." In Pearson v. Callahan, the Court will examine whether police may enter a home without a warrant immediately after an undercover informant bought drugs inside and whether qualified immunity was properly denied to the police officers involved. Triple Play: Litigator (and frequent ACS program participant) Tom Goldstein scored a "triple play" this week when he worked on three cases argued before the U.S. Supreme Court on the same day. Posted Mar 29 2008, 07:16 AM by ACSBlog: The Blog of the American Constitution Society Filed under: Judiciary

• Week in Review: March 21-March 28, 2008

  Stories: Daniel Conkle, Professor of Law at Indiana University School of Law – Bloomington , explored the establishment clause and religious expression in governmental settings. “Is public reason counterproductive?” by Eduardo M. Peñalver, Associate Professor of Law at Cornell Law School. A look at federal privacy law in the wake of revelations of snooping in politicians' passport files. A discussion of “living constitutionalism.” An overview of this week’s Supreme Court arguments. Articles from the latest issue of the Harvard Law & Policy Review, the official journal of ACS. Posted Mar 28 2008, 03:00 PM by ACSBlog: The Blog of the American Constitution Society Filed under: News And Announcements

• Editing the Congressional Record

  John Wonderlich at the Open House Project makes an interesting point in that the Congressional Record isn't always all that accurate, even though corrections, by rule, should be limited to typographical and grammatical errors. Posted Mar 28 2008, 02:04 PM by ACSBlog: The Blog of the American Constitution Society Filed under: Judiciary

• Former Gov. Siegelman Freed While Questions Raised About Political Prosecution

  "Former Gov. Don Siegelman, who has spent the past nine months behind bars, will be freed from prison today after a court ruled there were substantial questions about his conviction in a government corruption case, his lawyer said. . . . The ruling came the same day the U.S. House Judiciary Committee announced it wanted Siegelman to testify before Congress about the possible role of politics in his prosecution," the Birmingham News reported. The Judiciary Committee is investigating allegations that partisans in the Justice Department pursued cases against Democrats for political reasons, and Siegelman's is one of several cases under scrutiny. Siegelman has maintained that Republicans out to derail his political career were behind his prosecution. Rep. Artur Davis, D-Birmingham, is a member of the judiciary panel and said Thursday that he would have preferred the committee call former White House political adviser Karl Rove instead of Siegelman. An Alabama woman has alleged that Rove personally contacted federal prosecutors about Siegelman's case, which Rove has denied. The ruling is available here. Posted Mar 28 2008, 10:22 AM by ACSBlog: The Blog of the American Constitution Society Filed under: Separation Of Powers, News And Announcements

• The Cost of Wiretapping

  Wired explores the FBI's budget for making old telephone switches wiretap friendly, including the rates the government pays to have a phone tapped for 30 days. Posted Mar 28 2008, 10:16 AM by ACSBlog: The Blog of the American Constitution Society Filed under: Separation Of Powers

• What is Living Constitutionalism?

  In a recent blogpost, Professor Jack Balkin explains "living constitutionalism" as a model where "successive generations may not reject the Constitution's text and principles, but they may decide how best to honor, implement, and apply them through constitutional constructions and doctrinal implementations." He contrasts living constitutionalism with originalism: Living constitutionalism is primarily a theory about what makes the process that produces changing interpretations of the Constitution legitimate. It is not primarily a theory that offers advice to judges about how to decide particular cases, for the general sort of advice it offers– keep up with the times, and adapt to changing conditions– is probably unnecessary in any event. Papers from a symposium hosted by ACS last year, including one by Professor Balkin, further explore the issue of "Keeping Faith with the Constitution in Changing Times." Posted Mar 27 2008, 08:47 AM by ACSBlog: The Blog of the American Constitution Society Filed under: Constitutional Interpretation and Change

• Latest Issue of ACS's Law Journal Now Available

  The latest edition of the Harvard Law & Policy Review, the official journal of the American Constitution Society, is now available. This issue includes discussions on progressive visions of the corporation, ensuring access to quality education, the reshaping of the global warming debate, liberty in a democratic society, and articles from two symposia on housing policy and health care, plus several short essays. Links to the articles are below the fold. Progressive Visions of the Corporation Reclaiming Corporate Law in a New Gilded Age, by Kent Greenfield Understanding the "Corporate" in Corporate Social Responsibility, by Aaron K. Chatterji and Barak D. Richman Ensuring Access to Quality Education "History Will Be Heard": An Appraisal of the Seattle/Louisville Decision, by Goodwin Liu Education for Liberation, by James Forman, Jr. Reshaping the Global Warming Debate Fast, Clean, & Cheap: Cutting Global Warming's Gordian Knot, by Michael Shellenberger, Ted Nordaus, Jeff Navin, and Teryn Norris Micro-Motives and State and Local Climate Change Initiatives, by Kristen H. Engel and Barak Y. Orbach Liberty in a Democratic Society Things that We Would Like to Take for Granted: Minimum Standards for the Legal Framework of a Free and Democratic Society, by Joseph William Singer Other Essays Public (Self)-Service: Illegal Trading on Confidential Congressional Information, by Andrew George Election Day Registration: Giving All Americans a Fair Chance to Vote, by Brooke Lierman Hijacking the Privilege: Balancing Fairness and Security When Warrantless Wiretapping Threatens Attorney-Client Communications, by William Wetmore Symposium: Housing Policy in America Using Local and State Legislation to Preserve and Expand the Ability of Fair Housing Organizations to Prosecute the Discrimination They Uncover, by Craig Gurian Mixed-Income Housing as Pre-Commitment Strategy, by Jeff Leslie End Residential Racial Segregation: Build Communities that Look Like America, by Florence Wagman Roisman Symposium: Improving Health Care in America The Path to Universal Health Coverage for Children in Illinois, by John M. Bouman Affordable Health Insurance for All, by Karen Davis & Christine Haran Health Care Reform '07: Fixing Compromised Care with a Compromise Solution, by Peter Harbage & Hilary Haycock Protecting Patient Privacy in the Information Age, by David B. Kendall Recent Cases Lies, Damn Lies, and Voter IDs: The Fraud of Voter Fraud, by David Schultz Text, Purpose, and the Second Amendment, by Christopher M. Egleson What Do Lawyers Know About Lethal Injection?, by Ty Alper Substantive Detention Law Matters: The Big Questions About Guantanamo the Supreme Court Should Answer, by Justin Florence Student Note Safeguarding National Environmental Regulation in a Liberalized World: Beyond the Trade Promotion Act of 2002, by Neil Gormley Short Essays and Book Reviews What We Talk About When We Talk About God, by Ryan Spear Popular Metadoctrinalism: The Next Frontier?, by Micah W. J. Smith Taking the Gloves off of Homeland Security: Rethinking the Federalism Framework for Responding to Domestic Emergencies, by E. L. Gaston When Public Defenders Strike: Exploring How Public Defenders Can Utilize the Lessons of Public Choice Theory To Become Effective Political Actors, by Brandon Buskey Posted Mar 27 2008, 06:03 AM by ACSBlog: The Blog of the American Constitution Society Filed under: ACS Publications

• Paper: "The Establishment Clause and Religious Expression in Governmental Settings"

  Papers written for "The Religion Clauses in the 21st Century" Symposium are now available. In this blogpost, Daniel Conkle, Professor of Law at Indiana University School of Law--Bloomington, introduces his paper, "The Establishment Clause and Religious Expression in Governmental Settings: Four Variables in Search of a Standard." In his controversial but controlling opinion in Van Orden v. Perry, Justice Breyer rejected an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Texas State Capital. Breyer argued that existing Establishment Clause formulations, including the Lemon and endorsement tests, were inadequate to resolve the case, so he relied instead on “legal judgment,” an approach informed by doctrinal and policy considerations but not controlled by any formal test. In this Essay, I suggest that Justice Breyer may have been right in Van Orden–if not in his result, then at least in approaching the question as he did. More generally, I suggest that the search for a clear-cut doctrinal test or rule for religious expression in governmental settings, complete with yes-or-no check-off points, may be a mistaken or futile venture. There simply are too many constitutional values at work, and too many relevant variables. In lieu of a categorical test or rule, I explore the possibility of a multivariable standard for resolving Establishment Clause questions in this context. Under this approach, the Supreme Court would consider four constitutional variables, which I link to a range of relevant and intersecting constitutional values. The variables address such factors as governmental coercion or aggressiveness, the nature and specificity of the religious expression, tradition, and the extent to which the expression is governmentally–as opposed to privately–crafted or sponsored. I explain and elaborate by applying the multivariable standard to easy cases, not-so-easy cases, and hard cases, including not only Van Orden but also the unresolved controversy over the “under God” language in the Pledge of Allegiance. Posted Mar 26 2008, 01:33 PM by ACSBlog: The Blog of the American Constitution Society Filed under: Religion Clauses, ACS Publications

• New OSI Fellowship

  The Open Society Institute announced a new fellowship program to "enable outstanding individuals from around the world to pursue projects that will inspire meaningful debate and shape public policy." OSI will award $2 million in 2008 to people working in the following areas: national security and open society; citizenship, membership and marginalization; strategies and tools for advocacy and citizen engagement; understanding authoritarianism; and areas of emerging interest. Guidelines for applying to the fellowship are available here. Posted Mar 26 2008, 01:31 PM by ACSBlog: The Blog of the American Constitution Society Filed under: News And Announcements