Sunday, January 25, 2015
'Religion' as a Bundle of Legal Proxies: Reply to Micah Schwartzman
American legal tradition of giving religion special treatment is
justified, I have argued, because when interpreted at a sufficiently
high level of abstraction, religion serves as an indispensable legal
proxy for a plurality of important goods. Micah Schwartzman argues, in
response, that using religion as a legal proxy remains vulnerable to
charges of unfairness toward those with secular ethical and moral
convictions. I respond to Schwartzman’s critique in a new piece in the San Diego Law Review, available here.
Thursday, January 22, 2015
Holt v. Hobbs and Third Party Harms
Micah Schwartzman, Richard Schragger, and Nelson Tebbe
Wednesday, January 21, 2015
Why even the colorblind should embrace disparate impact law
On the surface, Inclusive Communities Project, which was argued today at the Supreme Court, is a statutory interpretation case. The question presented is straightforward: does the Fair Housing Act (FHA) authorize disparate impact claims? The statutory text is clearly ambiguous; the Justices spent a reasonable portion of the morning’s argument asking imponderable questions about phrases like “make unavailable” and “adversely affect.” (None of the major statutes courts understand to authorize disparate impact claims originally used the phrase “disparate impact,” which came later.) Justice Scalia in particular also vigorously pursued a (pretty strong) argument that when Congress went back and amended the statute to carve out certain exemptions from disparate impact claims under the FHA, it must have thought you can make disparate impact claims under the FHA; otherwise the exemptions make no sense. So far, so statutory.
Tuesday, January 20, 2015
A Golden Ticket for Mark Christeson
Every now and then, in the style of a papal dispensation, the Supreme Court sets aside the normal rules to give a measure of relief to somebody screwed by the system. Today's lucky golden ticket winner is Mark Christeson, a state death row inmate who sought to file a federal habeas petition but whose lawyers didn't get around to contacting him until six weeks after the one-year AEDPA deadline had passed. After the district court dismissed the petition as untimely, Christeson sought to substitute new counsel to argue that equitable tolling was warranted but the district court denied that application also. The Court of Appeals affirmed. Today, in a per curiam opinion the Supreme Court reversed, holding that substitution of counsel was warranted under the circumstances of the case (the original lawyers could not have been expected to argue equitable tolling where the delay was a result of their own error) so as to be able to pursue the equitable tolling claim. Even if Christeson wins on the equitable tolling argument, he might still lose on the merits of the habeas petition. So the golden ticket might serve only to delay the inevitable. But delay is no small victory in a capital case.
"Thinking About An Agenda for a New Supreme Court"
Beyond Intelligence Legalism
Last year, Margo Schlanger, the former Officer for Civil Rights and Civil Liberties at the U.S. Department of Homeland Security, published an important critique of "intelligence legalism," which she defines as "imposition of substantive rules given the status of law rather than policy; some limited court enforcement of those rules; and empowerment of lawyers." For Schlanger, such legalism "gives systematically insufficient weight to individual liberty."
Sunday, January 18, 2015
Eric Holder in American History
Mary L. Dudziak
Attorney General Eric Holder's statement on Friday that the administration would likely file an Amicus Brief in the same-sex marriage cases is an example of why I told New York Magazine that Holder is a member of the cabinet likely to be regarded by historians as consequential 20 years from now. Holder said that the government "will urge the Supreme Court to make marriage equality a reality for
all Americans. It is time for our nation to take another critical step
forward to ensure the fundamental equality of all Americans—no matter
who they are, where they come from, or whom they love." When historians look back, the rapid progress on marriage equality will be a striking feature of the early 21st century, and Holder's actions will not be forgotten.
Friday, January 16, 2015
Griffin on Zeisberg and the Defensive War Theory
Last October Jim Fleming of BU was kind enough to host me and Mariah Zeisberg for a conference on our recent books on presidential war powers. I've posted my conference paper to SSRN, commenting on similarities and differences between our books. The paper also independently includes a substantial critique of the "Hamiltonian" version of the defensive war theory, a key pillar of presidentialist approaches to war powers. That part of the paper is not meant to be a critique of Mariah's excellent book. It's just that reading her book reminded me that I could have said more about the defensive war theory in my own book Long Wars and the Constitution.
Thursday, January 15, 2015
Scott Hershovitz's "The End of Jurisprudence" is a terrific article. For the past four decades, he asserts, "jurisprudence has been dominated by the Hart-Dworkin debate," and it is time to move on.
Wednesday, January 14, 2015
Legal Scholarship: The "Star" Footnote
Mitt Romney and the Late Regime Politics of the Republican Party
Mitt Romney's announcement that he is likely to run for president would make some sense if Romney is correct that he is best able to unite an increasingly divided and factionalized party. This goal becomes increasingly important the later one goes in a political regime. But at this point in history it may be possible that no one, not even Romney, can manage his increasingly fractious party.
Tuesday, January 13, 2015
The Black Box Society: Interviews
The Black Box Society, is finally out! In addition to the interview Lawrence Joseph conducted here in the fall, I've been fortunate to complete some radio and magazine interviews on the book. They include:
Monday, January 12, 2015
After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession
My colleague Curt Bradley and I are writing the Supreme Court Review piece on NLRB v. Noel Canning. We view the decision as exemplifying the phenomenon of constructed constraint, and we use it as an opportunity both to critique the idea of constitutional “liquidation,” and to defend a version of the “historical gloss” approach to the separation of powers from the charge of blessing expansions of executive power by “adverse possession.”
Friday, January 09, 2015
Obfuscating what judges do
There is an illuminating piece by Stephen Stromberg in today's Washington Post on the utter disaster that will ensue if those supporting the challenge in Burwell prevail before the Supreme Court re the "state" as distinguished from "federal" exhanges. He notes not only that literally millions of people would lose their coverage in Republican states, but also that premiums would likely skyrocket and set up the "death spiral" of health insurance. The Republicans would get what they've been wishing for (and haven't achieved), which is a true trainwreck (for which they have no plausible solution whatsoever). But my purpose is not to rant about evil Republicans and their unceasing attempts to torpedo Obamacare (which I'd gladly see replaced by a Canadian single-payer system if that were politically feasible). Rather, I'm interested in the language that Stromberg, a member of the Post's editorial board, uses to describe the stance of the Supreme Corut:
Wednesday, January 07, 2015
"Popular Sovereignty, Self-Determination, and Secession" (Why Wilson may be more important than Lenin)