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This section contains the latest news and information related to constitutional law. This information includes individual lawyers as well as law firms and legal teams. Locate the latest updates from prominent law firms, private practice attorneys, and plaintiffs who have pending litigation in process.

Constitutional Law

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Iqbal and the plausibility test in constitutional cases
The Supreme Court's decision on May 18 in Ashcroft v. Iqbal is notable for its holding that the former attorney general and FBI director cannot be held liable for post 9/11 detention policies. But other aspects of this decision are relevant to civil litigators who sue government officials under 42 U.S.C. sec. 1983.


In 2007, the Supreme Court reshaped the pleading rules in Bell Atlantic v. Twombly, 550 U.S. 544, holding that a complaint satisfies the federal rules if it alleges a "plausible" (as opposed to a possible) claim for relief. Until the Courts of Appeal amplify this standard, application of this test will depend on the judge. As the Supreme Court tells us in Iqbal, "Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."


The plausibility standard under Iqbal in Section 1983 claims dooms the case against John Ashcroft and former FBI Director Robert Mueller. As a Pakistani Muslim, Iqbal sued these officials (among others) after he was detained in a post-9/11 sweep, claiming that he was brutalized in a detention center in New York City. Iqbal alleges that Ashcroft and Mueller are liable because they "knew of, condoned, and willfully and maliciously agreed to subject [him] to harsh conditions of confinement as a matter of policy, solely on account of [his] religion, race and/or national origin and for no legitimate penological interest." He further alleged in the complaint that Ashcroft was the "principal architect" of this policy and Mueller was "instrumental" in adopting and executing it.


Let's face it: allegations like this in constitutional claims are commonplace in drafting complaints against supervisory officials. Not anymore. While Twombly was a case involving the Sherman Act, the Supreme Court makes it clear that it applies in other contexts, including Section 1983 complaints. These complaints will have to be more specific to repel a motion to dismiss under Rule 12. Twombly is truly the law of the land.

But there's more. The plausibility standard under Twombly requires the trial court under Rule 12 to really think about whether the complaint can go forward. Who knows how this will shake out in routine civil rights cases involving employment discrimination or local police abuses. But the plausibility test kills Iqbal's case against Ashcroft and Mueller. As the Supreme Court applies the standard, it is not enough for the facts in the complaint to be consistent with a constitutional violation. It must be plausible. There is a difference. The Court says, "The plausibility standard is not akin to a 'probability requirement,' but it ask for more than a sheer possibility that a defendant has acted unlawfully."

Under this standard, in the context of the post-9/11 effort to prevent another terror attack, Iqbal's claim that Ashcroft and Mueller designated detainees "of high interest" because of their race, religion or national origin is not plausible in light of the other, obvious reason why these officials rounded up detainees, i.e., because the 9/11 hijackers were "Arab Muslims who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group."


The realities of the post-9/11 world doom Iqbal's case. The Court explains, "On the facts [Iqbal] alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegal present in the United States and who had potential connections to those who committed terrorist acts. As between that 'obvious alternative explanation' for the arrests, and the purposeful, invidious discrimination [Iqbal] asks us to infer, discrimination is not a plausible conclusion."


What makes this decision remarkable is that the Supreme Court found other reasons why the plaintiff was rounded up, all without the benefit of discovery. The Court takes judicial notice of what happened after 9/11, when the government was reacting to the terror attacks. Remember, this case comes before the Supreme Court in a Rule 12 posture, where the court has nothing but the complaint and no other evidence to assist it.


While it may be that there were other reasons for the government to round up Iqbal, I wonder if this kind of legal reasoning awaits more routine civil rights cases. Will district judges read a civil rights complaint and weigh other reasons for the plaintiff's mistreatment under the plausibility standard, dismissing the case if other "obvious" reasons explain that mistreatment? As the Court states in its decision, this is a context-specific test. It may be that plausibility is too high a burden for civil rights plaintiffs alleging serious misconduct by high-ranking officials like Ashcroft and Mueller. Or this reasoning could tempt trial courts to more readily dismiss more garden-variety civil rights cases. The Supreme Court doesn't say one way or the other.

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Gender stereotyping cuts both ways
The Second Circuit has reversed summary judgment in a reverse gender-discrimination case where the male plaintiff claims he was forced to resign because management applied an unfair stereotype in believing that he was guilty of sexual harassment.

The case is Sassaman v. Gamache, decided on May 22. The case is notable because it emphasizes that men accused of sexual harassment have rights also. So far as I can tell, this is an issue of first impression for the Second Circuit, and based on its failure to cite any cases from around the Circuits in support of its reasoning, this may be a case of first impression under Title VII.

Here's what happened: Sassaman worked for the Dutchess County Board of Elections and had a female supervisor, Brant. Sassaman and Brant got along, until Brant tried to initiate a one-time sexual encounter with Sassaman, who remembered the conversation differently, believing that Brant was trying to to seduce Brant. Things took a turn for the worse when Sassaman got into her email account when he suspected her of hacking into his email account. Then Brant complained that Sassaman was harassing and stalking her, and the sheriff's office investigated but found nothing. There was no internal investigation into the sexual harassment allegation at the Board of Elections, however. Sassaman then resigned after Gamache told him, "'I really don?t have any choice. Michelle [Brant] knows a lot of attorneys; I?m afraid she?ll sue me. And besides you probably did what she said you did because you?re male and nobody would believe you anyway.'?

Summary judgment is reversed. First, the Second Circuit (Cabranes, Hall and Feinberg) applies the age-old rule that gender stereotyping in the workplace violates Title VII. Sassaman has a prima facie case of discrimination because Gamache stereotyped him as a sexual harasser. Citing Back v. Hastings on Hudson School District, 365 F.3d 107 (2d Cir. 2004), the Court of Appeals reasons, "Gamache appears to have defended his decision to credit Brant's allegations of sexual harassment by pointing to the propensity of men, as a group, to sexually harassment. When employment decisions are based on invidious sex stereotypes, a reasonable jury could infer the existence of discriminatory intent."

The employer argued that Gamache did not break the law because it simply wanted to avoid a lawsuit by Brant. No dice, the Court of Appeals says. While employers who do not take sexual harassment claims seriously expose themselves to liability, that does not mean they can discriminate against the men accused of harassment. "In the course of investigating such claims, employers do not presume male employees to be 'guilty until proven innocent' based on invidious sex stereotypes."

Another reason the employer loses is that it did not investigate Brant's claims at all, instead taking her accusations at face value. While employers do have leeway in dealing with workplace problems, the Court of Appeals says, "Title VII suits often require a court or jury to consider whether a employer's response to an allegation of discrimination itself constitutes evidence of discrimination or liability for discrimination." Since management did not investigate Brant's claim and applied a stereotype in forcing Sassaman to resign, the jury can find in Sassaman's favor.

The Court emphasizes that management's failure to investigate a woman's sexual harassment claim is not enough by itself for the alleged harasser to sue under Title VII. "We hold only that where a plaintiff can point to evidence closely tied to an adverse employment action that could reasonably be interpreted as indicating that discrimination drove the decision, an arguably insufficient investigation may support an inference of discrimination."

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Did the Supreme Court wipe out supervisory liability in Section 1983 cases? It sure looks that way
For obvious reasons, the Supreme Court's decision last week in Ashcroft v. Iqbal, 2009 WL 1361536 (May 18, 2009), generated a lot of media attention since it got John Ashcroft and former FBI director Robert Mueller off the hook in a claim arising from detainee abuse in the post-9/11 environment. But tucked away in the decision is another holding that has serious consequences for routine Section 1983 claims.


Most of the Courts of Appeal have recognized some form of supervisory liability under Section 1983. Of course, under settled Supreme Court authority, Monell v. Department of Social Services, 436 U.S. 658 (1978), there is no respondeat superior liability in these cases. In other words, a supervisor is not guilty of civil rights violations solely by virtue of his position as supervisor. But at least in the Second Circuit, supervisors could still be held liable if they knew their subordinates were committing a civil rights violation and they looked the other way or ignored it. Here's the precise test the Court of Appeals has repeatedly set forth in these cases, as taken from Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995):



?It is well settled in this Circuit that ?personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under Section 1983.?? The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Id.

That language in Colon v. Coughlin has been cited frequently in the Second Circuit. Before the Supreme Court in Iqbal rejected the Complaint's allegations against Mueller and Ashcroft on grounds that the allegations were not plausible under the new standard outlined in Twombly v. Bell Atlantic, 550 U.S. 544 (2008), it paused to reject the Complaint's allegations that these defendants were liable because of their "knowledge and acquiescence in their subordinates' use of discriminatory criteria to make classification decisions among detainees."


Citing a few of its precedents which hold that constitutional discrimination claims require "discriminatory purpose," the Court breathes new life into Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979), which held that purposeful discrimination requires more than "intent as volition or intent as awareness of consequences" and that the decisionmaker must undertake a course of action "because of, not merely in spite of, the action's adverse effects upon an identifiable group." The Feeney precedent, together with Monell, means that supervisory liability cannot attach under Section 1983. In fact, the Supreme Court holds, "In a Section 1983 suit or a Bivens action -- where masters do not answer for the torts of their servants -- the term 'supervisory liability' is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct."


As the various circuit courts have long recognized some form of supervisory liability over the years, it is odd that the Supreme Court would reject that theory of liability in such a relatively cursory manner. Is supervisory liability under Section 1983 gone for good? It sure looks that way.


To really gain a sense of what happened to supervisory liability, read Justice Souter's dissent. This was a 5-4 decision, by the way. Souter points out that the government in this case actually conceded that Ashcroft and Mueller could be liable under some form of supervisory liability if the Complaint properly alleged facts that would implicate them (the government argued that the Complaint was deficient, and the Supreme Court agreed). Despite that concession, and the fact that none of the parties even briefed the issue of whether Section 1983, should recognize some form of supervisory liability, the Supreme Court resolved the issue anyway.


Making matters even more curious, the Supreme Court did not even have to rule on the legality of supervisory liability under Section 1983 because it also ruled against the plaintiff on a separate basis: that the Complaint did not allege a plausible claim against Ashcroft and Mueller. In chastising the majority for jumping the gun on this issue, Souter notes that the Second Circuit and other federal courts have long recognized this theory of liability but that the five Justice majority has effected a significant change in Section 1983 liability: "Lest there be any mistake, ... the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely."

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Despite nudity, jail's clothing exchange rule is legal
The Court of Appeals has granted summary judgment to an upstate New York county which requires jail inmates to remove their clothing in the presence of a corrections officer.

The case is Kelsey v. County of Schoharie, decided on May 22. At the Schoharie County Jail near Albany, N.Y., jail officials require certain male inmates to exchange their street clothes for jail clothing. Under the rules, officers cannot conduct a personal search or body inspection or observe the inmate taking a shower or getting dressed. However, while medical screening provides for a "visual analysis of the inmate," the written policy states that a "strip/strip frisk search" shall not be routinely conducted." While officers can search the inmate's bodily cavity if they think he is carrying contraband, the Sheriff testified that this has never actually happened. In addition, he testified, ?inmates are never instructed to squat, bend, turn, open their mouth, manipulate their body, or in any other manner expose themselves for a personal search or inspection? during the clothing exchange.

But the inmates say the practice is degrading. One said he had to disrobe in front of a male officer, although no one touched his body. An officer corroborated inmate testimony that the jail has deviated from its policy. "According to Officer Kenyon, inmates are required to stand in front of him and face him during the entire clothing exchange. He watches the inmates as they remove their clothing, the disrobing takes place in the 'holding cell where the inmate is at,' and there is no option to disrobe in private."

The district court denied the County's summary judgment motion, but the Court of Appeals reverses, with Judge Sotomayor dissenting from Judge Miner's decision. The majority finds that the written strip-search policy complies with Second Circuit precedent requiring individualized reasonable suspicion (as opposed to a blanket policy that applies to everyone) before officials conduct these intrusive searches. Despite evidence that inmates had to remove their clothing in the presence of officers -- an embarrassing circumstance, no doubt -- the Court of Appeals says this incidental burden is necessary to ensure proper functioning of the jail:


We conclude that the incidental observation of the body of an arrestee during a required clothing exchange, in the manner described by plaintiffs, is not an unreasonable search under the Fourth Amendment. Moreover, it seems to us that a clothing exchange observed by corrections officers under the circumstances described by plaintiffs is related to ?maintaining institutional
security and preserving internal order and discipline[,] essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.? Bell v. Wolfish, 441 U.S. 520, 546 (1979). The objectives served by a clothing exchange, according to Sheriff Bates, include assurance that each inmate has clothing that is clean and free of infestation; that inmates are clearly identifiable and distinguishable from visitors, staff and members of the public; and that a positive state of mind be instilled in each inmate.Judge Sotomayor dissents, accusing the majority of ignoring evidence favorable to the inmates (this was a summary judgment motion, after all) as well as Second Circuit precedent on strip searches. She adds, "insofar as the majority suggests that 'brief[]' exposure of one?s private parts does not implicate the Fourth Amendment, ... our precedent does not support the notion
that a search need be prolonged or thorough to be termed a 'strip search.'? She adds, "the majority seems to suggest that the disrobing procedure at issue in this case 'does not implicate the type of privacy protected by the Fourth Amendment' and is distinguishable from traditional strip searches of persons charged with misdemeanors because of the motives of the officers conducting the procedure. But the privacy interests protected by the Fourth Amendment do not become irrelevant merely because we use the nomenclature of 'clothing exchange' instead of 'strip search.'?

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Supreme Court strikes down NY law shielding corrections officers from suit
The Supreme Court has struck down as unconstitutional a New York law that requires all lawsuits against state corrections officers to be filed in the state Court of Claims rather than in federal court under the Civil Rights Act. The case is Haywood v. Drown, 2009 WL 1443136, decided on May 26.


Under state Corrections Law sec. 24, any lawsuits against state corrections officers have to be litigated in the Court of Claims, sort of a subset of the state court system, where judges and not juries reach a verdict and procedural rules unique to that court can trip up even the most experienced attorney. If an inmate wants to bring the case against a corrections officer, that attorney would probably turn down the case in the first instance, since unlike civil rights cases brought under 42 U.S.C. sec. 1983, the prevailing plaintiff cannot recover attorneys' fees from the government defendant, and the Court of Claims cannot award punitive damages, either. Since most inmates have no money, it's not worth it for an attorney to bring the case.


As the Supreme Court points out, New York enacted Section 24 of the Corrections Law because state lawmakers believed that most inmate lawsuits against corrections officers are frivolous. That law has been on the books for many years, but someone decided to challenge that law as unconstitutional because it circumvents national policy, as expressed in Section 1983, that civil rights cases can be handled in federal court as well as the state courts which usually have authority to hear civil rights cases.

By a 5-4 majority, the Supreme Court holds that Corrections Law sec. 24 is unconstitutional to the extent it prohibits Section 1983 claims against corrections officers in state and federal court. Under the Constitution's Supremacy Clause, federal law (such as Section 1983) is the law of the land, and it applies to all state courts. The only way that a state can exempt itself from a federal law is by proving that the contrary state law is a neutral rule of judicial administration. This means that a state cannot exempt itself from a federal law out of disagreement with the policies promoted by that law.

Justice Stevens writes that New York violates that rule because it "made the judgment that corrections officers should not be burdened with suits for damages arising out of conduct performed in the scope of their employment. Because it regards these suits as too numerous or too frivolous (or both), the State's longstanding policy has been to shield this narrow class of defendants from liability when sued for damages. The State's policy, whatever its merits, is contrary to Congress' judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages."


By the way, while Corrections Law sec. 24 is primarily associated with inmate lawsuits against officers, that law also prevents other plaintiffs from suing state corrections officers under Section 1983. These other plaintiffs include state employees who sued management over personnel practices. See, e.g., Gore v. Kulhman, 630 N.Y.S.2d 141 (3d Dept. 1995). While the Second Circuit carved out an exception for sexual harassment claims (on the basis that sexual harassment by a corrections officer is not within the scope of his employment), see Ierardi v. Sisco, 119 F.3d 183 (2d Cir. 1997), more routine employment cases were confined to the Court of Claims. That has now changed. Although the Supreme Court does not address this issue, I would assume that all civil rights lawsuits against state Corrections Officers can now be brought under Section 1983, and in federal court.
Judge Sotomayor and gender stereotyping: a case you may have overlooked
Judge Sonia Sotomayor's nomination to the Supreme Court has acquainted the rest of the world with the Second Circuit. A recent online piece about Judge Sotomayor's jurisprudence has acquainted me with a 2006 court ruling that many of us overlooked.

That article by Emily Bazelon is here. The case is Miller v. City of New York, 177 Fed. Appx. 195 (2d Cir. April 26, 2006). This decision reversed summary judgment in a gender discrimination claim. The reason many of us overlooked this decision was because it was an "unpublished" summary order. Most summary orders simply affirm the district court's ruling. This one reversed summary judgment, and it did so on an interesting legal issue that deserves more attention.

Miller sued under Title VII and Section 1983 after he was forced to resign because of a hostile work environment. He claimed the HWE was based on his gender because a supervisor "made his life at work miserable by claiming that Miller was not a 'real man' or a 'manly man' and by devising work assignments designed 'to toughen [Miller] up." In addition, plaintiff argued that his supervisor "made him perform 'active duty' work because he deviated from 'normal gender stereotypes' according to which men are expected to be muscular and macho."

In allowing this case to go to trial, the Court of Appeals (Sotomayor, Cabranes and Raggi) noted that gender stereotyping violates the civil rights laws under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Under that standard, Miller was the victim of stereotyping because management intended to "make a man" out of him and treated him differently because did not confirm to the macho stereotype. The Court of Appeals notes that Miller is "a small, non-muscular man with a disability." On the basis of this stereotype, Miller's supervisor gave him burdensome work assignments which seriously injured his health and forced him to resign. The hostile work environment claim goes to the trial, and summary judgment is reversed.

The Court of Appeals has discretion whether to publish its decisions or not. Published decisions go into the books that line the walls of law offices from coast to coast. Unpublished decisions are available on-line through Westlaw and Lexis. Since unpublished decisions are usually shorter than published decisions, they are also made available in print, though I doubt many lawyers are thumbing through unpublished rulings as they probably assume (correctly in most instances) that they simply resolve conventional legal issues without breaking ground and therefore deserve "summary" treatment. While unpublished decisons can be cited in legal briefs in limited instances, I think it's frowned upon to do so, and as the late Judge Broderick once wrote, "Use of such a citation may be as much a confession of weakness as a sign of strength," Chambers v. TRM Copy Centers Corp., 844 F.Supp. 183, 186 (S.D.N.Y. 1994), rev'd, 43 F.3d 29 (2d Cir. 1994).
All sorts of pretext revive age discrimination case
Without a smoking gun, you are going to need circumstantial evidence to win an employment discrimination case. That's accomplished by casting doubt about the employer's reason for terminating the plaintiff. We call it pretext. And sometimes it's nice to have the various methods of pretext in one case, for easy reference.

The case is Weiss v. JP Morgan, decided on June 5. Weiss claimed age discrimination. The district court granted summary judgment, and the Court of Appeals (Pooler, Hall and Sweet) reversed in an unpublished ruling.

After noting that evidence of pretext is often enough for the plaintiff to win at trial (see, Reeves v. Sanderson Plumbing, 530 U.S. 133, 149 (2000)), the Court of Appeals puts JP Morgan's reason for terminating Weiss on the table before it dissects that reason: after Weiss's sales team complained about his leadership, management decided that the team had lost confidence in Weiss. On its face, this reason is legal. But that's not how the pretext inquiry works. The question really is whether a jury could find that this reason was advanced in bad faith.

Citing DeMarco v. Holy Cross High Sch., 4 F.3d 166, 171 (2d Cir. 1993), the Court notes that "The pretext inquiry may also involve 'factual questions such as whether the asserted reason for the challenged action comports with the defendant?s policies and rules, whether the rule applied to the plaintiff has been applied uniformly, and whether the putative non-discriminatory purpose was stated only after the allegation of discrimination.'? The Court also reminds us that we should carefully scrutinize management's subjective reasons for terminating an older employee. Under Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 104-06 (2d Cir. 2001), without that skepticism, "(1) any defendant can respond to a discrimination charge with a claim of some subjective preference or prerogative and, if such assertions are accepted, prevail in virtually every case and (2) a discriminatory consideration such as age could play into the formation of subjective impressions.?

So, while Weiss's team complained about their compensation, management had reason to know that these people often complained about bonuses, and that Weiss was not responsible for the payouts in any event. One witness testified, "in our business everybody always believes that they don't get paid fairly because that's the ... nature of investment banking."

Another way to prove pretext is through evidence that the plaintiff's alleged performance deficiencies were not brought to his attention. This omission suggests that the problem was not that serious and it may even have been a red herring. That's what happened here. Management said that Weiss was fired because he did not cover accounts. But Weiss was not confronted about this problem. He also said that he could have covered accounts if management asked him to, and that he had done it before.

Weiss has even more pretext. Citing Byrnie v. Town of Cromwell, the Court of Appeals says that Weiss was fired "under the abrupt and unusual circumstances suggesting discrimination." First, Weiss was far more qualified for his position than his younger successor, McCann. A high ranking JP Morgan official once announced that Weiss was "the best in the world at what he does." McCann, however, had no prior supervisory experience in the industry, and his job interview did not cover his qualifications. Citing Ash v. Tyson Foods, 546 U.S. 454 (2006), the Court of Appeals notes that "a disparity in qualifications may point to discrimination."

Yet another reason why JP Morgan has offered pretextual reasons for Weiss's termination is that it offered "shifting explanations" for this decision. The Court of Appeals from time to time relies on this theory in holding for employment discrimination plaintiffs, see, Carlton v. Mystic Transportation, 202 F.3d 129, 137 (2d Cir. 2000) and EEOC v. Ethan Allen, 44 F.3d 116, 120 (2d Cir. 1994). Shifting explanations are present in this case as management at one point relied on the justification that Weiss's team needed "change" and his job was eliminated. Not only were these explanations false, but they were quite different from the reason invoked on the motion for summary judgment.

We're not done, though. The Court of Appeals further relies on the "deviation" theory of pretext, which means that if management's decision to terminate the employee deviates from its usual practice or procedures, the jury could find that it cut corners to reach that decision in order to push the employee out the door. That's the rule in Stern v. Columbia College, 131 F.3d 305, 313-14 (2d Cir. 1997). Evidence that management did not give Weiss a chance to improve his performance prior to termination cannot be explained away on a motion for summary judgment; the jury has to decide if departing from that practice in firing Weiss is additional evidence of discrimination.

Finally, there actually was some direct evidence in this case, though it's not really direct evidence of discrimination, but a "stray remark" which by itself is not enough to win. Someone in human resources said that Weiss was not the "positive energized leader" that his department "needs at this time." The Court of Appeals deems this an "oblique" comment. But in the context of all the pretext, this statement takes on a different light and it could be regarded as "a euphemism for youthful."
Churchillian tenacity can get you sanctioned
The Court of Appeals has upheld a $27,000 sanction against an upstate New York attorney who persisted in bringing meritless lawsuits against the state on a discredited legal theory.

The case is Gollomp v. Spitzer, decided on June 8. Gollomp brought a state court action arising from a property dispute. That case got dismissed. He then complained to then-Chief Judge Judith Kaye about corruption in the state judicial system based on his belief that the state court judge who ruled against him was mentally incapacitated and that someone had forged the judge's signature on a court order against him. When that effort failed, Gollomp brought a federal due process action, advancing 22 causes of action as detailed in nearly 500 paragraphs.

The Northern District of New York sanctioned Gollomp's lawyer, who over the years continued to sue the state in federal court despite clear authority under the Eleventh Amendment that the state cannot be sued for damages in federal court. The Northern District concluded that this attorney had not only ignored clear Eleventh Amendment authority in the past, but that he had misled the court about his disciplinary record.

The Court of Appeals affirms. In doing so, it holds that the Office of Court Administration is an arm of the state and that, therefore, lawsuits against OCA are in effect suits against New York. But, as the Supreme Court has long held that damages actions against the state are impermissible under the Eleventh Amendment, the Second Circuit has never squarely held that OCA is an arm of the state and therefore protected under the Eleventh Amendment from a suit like this.

Eleventh Amendment case law will not get too many people excited, but it's important for the reasons outlined in this case. Under the Eleventh Amendment, you have to bring certain suits against state officials in state court, not federal court, where many lawyers prefer to bring their civil rights cases. There is a multi-part test in determining whether an agency is really an arm of the state, but the central question is whether the state will end up paying out the damages award. If the state pays the damages, then the agency is an arm of the state.

The Second Circuit has held in two summary orders that OCA is an arm of the state. Various district courts in New York have held the same. But does this mean the law is clear and that Gollomp's lawyer threw caution to the wind? Summary orders are technically not binding on the lower courts, and district court rulings are not even binding on other district courts. On the other hand, how can OCA be anything other than an arm of the state? Other cases decided by the Second Circuit on "arm of the state" questions may have been someone more difficult calls, such as Woods v. Rondout Valley Central School District, 466 F.3d 232 (2d Cir. 2006) and Gorton v. Gettel, 554 F.3d 60 (2d Cir. 2009), which held that school districts and BOCES are not arms of the state even though they enforce state educational policy. The Court of Appeals does not tell us on what basis Gollomp's lawyer suggests OCA is not an arm of the state, but the Second Circuit deems this an easy question, probably because OCA has "arm of the state" written all over it.

In reviewing the litigation history of Gollomp's attorney, the Court of Appeals finds that he should known that suing OCA in federal court was a frivolous gesture, as he tried that tactic in the past and failed. In a footnote, Judge Cabranes writes,

The relentlessness of plaintiff?s counsel brings to mind the words of Winston Churchill, ?never give in, never give in?never, never, never, never?in nothing,
great or small, large or petty?never give in,? only without Churchill?s final caveat, ?except to convictions of honour and good sense.? Never give in! The Best of Winston Churchill?s Speeches 307.
The Court also finds that counsel proceeded in bad faith and that the complaint was incomprehensible in places. While the Court of Appeals notes that sanctioning attorneys is an "unpleasant task" and that the judges on this case were all practicing lawyers before they joined the bench, it has no choice but to find that the district court properly sanctioned this attorney. The Court concludes,

For over a decade, the judges of the United States District Court for the Northern District of New York?not to mention our judicial colleagues in the New York Court of Claims, the New York Supreme Court, and the Appellate Division of the Supreme Court?have patiently heard successive lawsuits in which plaintiff?s counsel have asserted the same stale claims against the State of New York. A private litigant forced to defend against similar claims year after year would certainly deserve some protection from the courts against future harassment. The State of New York deserves no less consideration.

Summary judgment reversed in Title VII retaliation claim
You win some and you lose some. In this Title VII retaliation case, the plaintiff wins a little, and he loses a little. Along the way, the Court of Appeals confirms that the definition of "adverse employment action" depends on what kind of case you are bringing.

The case is Cunningham v. New York State Department of Labor, a summary order issued on June 10. Among other things, Cunningham alleged that he was discriminated against because of his race. He also alleged that he was retaliated against for complaining about workplace discrimination, minority hiring practices and a prayer breakfast. The district court granted summary judgment. The Court of Appeals (Cabranes, Winter and Sack) revives the retaliation claim.

The discrimination claim fails because Cunningham cannot show an "adverse employment action." Under Title VII, you can't sue over routine workplace grievances. You can only sue over personnel decisions that materially or significantly affect the workplace. The Court of Appeals reminds us that "everyday workplace grievances, disappointments, and setbacks do not constitute adverse employment actions within the meaning of Title VII." Cunningham tries to get around this by pointing to a series of employment decisions that, taken together, constitute adverse employment action:

(1) ?unfounded charges of time abuse?; (2) reassignment from a fifth-floor office to a first-floor office, where plaintiff?s staff was located; (3) opposition by Hines to hiring plaintiff?s son in a summer job; (4) discontinuing a training conference organized by plaintiff; and (5) excluding plaintiff from a ?Welfare-to-Work? conference and from a decision to hire an outside consultant.

This is an interesting way around the strict "adverse employment action" test. Each of these events, by itself, is not enough. But are five of these events enough to prove "adverse employment action"? The Court of Appeals says no: "In this case, plaintiffs allegations are?each and together?nothing more than everyday workplace grievances. Because plaintiff?s allegations do not, as a matter of law, amount to a materially adverse change in the terms or conditions of his employment, we affirm summary judgment in favor of defendants on the Title VII discrimination claims."

But Cunningham wins his retaliation appeal. In Title VII retaliation cases, the adverse employment action test is more favorable to the plaintiff. Quoting from Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006), the Court of Appeals states that "In a retaliation claim, '[w]hether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff?s position, considering all the circumstances.'? The Court of Appeals adds, "a retaliation plaintiff must ?present evidence sufficient to create a genuine triable issue as to whether the reassignment to which he was subjected could well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination.'?

If you have a retaliation case, being dissuaded from speaking out again is enough to prove "adverse employment action" under Title VII even if the workplace decision that dissuaded you from speaking out again is not enough to bring a discriminatory treatment case. This may be confusing to non-lawyers, but not to the Court of Appeals. In this case, the trial court applied the wrong legal standard. While the trial court applied the "adverse employment action" standard for discrimination cases, it should have applied the "adverse employment action" test for retaliation cases. The case is returned to the trial court to take up this issue under the correct retaliation standard.
No due process claim for federal inmate typist
Inmates have some rights. Not a lot of rights, but some rights. In this case, though, the inmate who was fired from his job as a clerk typist had no rights at all. At least not under the due process clause.

The case is Johnson v. Rowley, decided on June 11. Johnson was a federal inmate at Otisville, where he worked as a typist for UNICOR, a government corporation that provides work for inmates. One night, after working overtime, he hung around to work on his "rusty" skills, and he sent his wife some examples of his work with different fonts and pitches to show off his progress. This extra work got Johnson fired for engaging in the unauthorized use of facility equipment. He sued under the due process clause.

In order to proceed under the due process clause, you need to show that the government deprived you of a property interest without fair process. A property interest is a legal term of art. Not everything is a property interest. Under Supreme Court precedent, property interests derive from state law, and they consist of "rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." In other words, the property interest must create a legitimate claim of entitlement for the plaintiff.

This legal standard knocks out a lot of due process claims, as unsuccessful plaintiffs try to turn various interests into property interests. Even at-will government employees in the free world do not have a property interest in their jobs. Johnson doesn't have a chance in this context. Even worse for Johnson, the Second Circuit has previously held that inmates in the state prison system do not have a property interest in a particular job assignment, see, Frazier v. Coughlin, 81 F.3d 313 (2d Cir. 1996). This legal principle is contrasted with civil service employees who work for the government -- those employees have a property interest in their jobs. The holding in Frazier is now extended to the principle that federal inmates have no property interest in any job assignment with UNICOR. In other words, Frazier's reasoning now applies in the federal context, consistent with court decisions from around the country on the same issue.
No mixed-motive test in age discrimination cases
It's clear that five justices on the Supreme Court do not like the mixed-motive analysis that a different Court in 1989 devised in Price Waterhouse v. Hopkins, 490 U.S. 228. The Court's aversion to Price Waterhouse is evident in Gross v. FBL Financial Services, decided on December 18.

The issue in Gross was whether plaintiffs in age discrimination cases are entitled to a "mixed-motive" instruction if they proffer evidence that age played a motivating role in the adverse decision, i.e., termination or demotion. Under the Price Waterhouse rule, once the plaintiff satisfies his burden in showing that age played at least a motivating factor in the decision, the employer has to prove that it would have made the same decision even without taking age into account. Price Waterhouse was bolstered a few years ago in Desert Palace v. Costa, 539 U.S. 90 (2003), when the Court held that circumstantial (and not just direct) evidence is enough to trigger the Price Waterhouse instruction.

The Price Waterhouse instruction helps plaintiffs at trial, as often more than one reason explains why an employer mistreats the plaintiff. The employer may have been motivated by both illegal (race or gender) reasons and also legal (insubordination) reasons. An illegal motivating factor among many legal reasons is all it takes to win, and while the employer may insist that the plaintiff was fired because of poor job performance, if the Price Waterhouse instruction is given to the jury, the employer has the difficult task of proving that it would have fired the plaintiff even without considering the illegal factor.

The two primary employment discrimination laws are Title VII of the Civil Rights Act of 1964 (prohibiting discrimination because of race, gender, national origin, religion and color) and the Age Discrimination in Employment Act of 1967. The statutes are nearly indistinguishable, and courts routinely apply Title VII standards in evaluating ADEA cases, and vice-versa. What the Supreme Court is telling us in Gross is that the statutes should sometimes interpreted differently. In a footnote, the Court reminds us that it has never definitively held that the well-known McDonnell-Douglas burden shifting scheme applicable under Title VII also applies to ADEA claims. (Notwithstanding that observation, the Courts of Appeal have always assumed otherwise).

A Price Waterhouse instruction is not appropriate in ADEA cases, the 5-4 Supreme Court majority says, because "unlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor." Rather, the ADEA requires that the plaintiff prove that he was discriminated "because of age." Writing for the majority, Justice Thomas perceives this distinction significant enough to limit the Price Waterhouse rule to Title VII cases. The Court interprets ADEA's "because of" language to mean that "age was the 'reason' that the employer decided to act."

The conservative majority on the Supreme Court does not shy away from distancing itself from precedents that it does not like. They do not care for Price Waterhouse, and they say so directly: "it is far from clear that the Court would have the same approach were it to consider the question today in the first instance." After summarizing Price Waterhouse's deficiencies and the fact that some Courts of Appeal have expressed frustration how that burden-shifting scheme applies in practice, the Court states that "even if Price Waterhouse was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims."

In dissent, Justice Stevens notes that Congress endorsed the Price Waterhouse mixed motive theory when it amended Title VII in 1991. He further argues that since Title VII and ADEA employ nearly identical language, Price Waterhouse should apply in ADEA claims also.
City of Rochester juvenile curfew is unconstitutional
There are many ways to skin the constitutional cat. And there are many ways to analyze crime statistics. All of this surfaced in a recent New York Court of Appeals ruling that struck down the City of Rochester curfew ordinance on constitutional grounds.

The case is Anonymous v. City of Rochester, decided on June 9. With a few exceptions (driving to and from work or school), the City prohibited minors from hanging around without a parent or guardian between the hours of 11:oo p.m. and 5:00 a.m., except that on Fridays and Saturdays they got an extra hour to themselves. The plaintiff challenged this law as a violation of the constitutional freedom of movement, which the Supreme Court recognized during the Warren Court years.

Over the dissent's objection that the highly deferential "rational basis" review governs these laws, the majority opts for "intermediate scrutiny" rather than "strict scrutiny." Under strict scrutiny, the government needs a narrowly-tailored and compelling reason to justify the restriction; few laws survive strict scrutiny. Since the government has more leeway in regulating the behavior of minors, the Court of Appeals applies intermediate scrutiny, which means the city's reason for the law must be substantially related to an important governmental interest. (The Court states the obvious in noting that curfew restrictions would be illegal as applied to adults).

Intermediate scrutiny is not as predictable as rational basis or strict scrutiny, so these cases can go either way. The Court of Appeals finds that the city's justification for the curfew -- to protect minors and prevent juvenile crime -- does not cut the mustard. While public officials emphasized that three minors were killed in the city, they were either not killed during curfew hours or were already subject to a curfew as supervised youthes under the PINS program. Nor does the majority accept the city's crime statistics. While minors are suspects or victims in about 10 percent of the crimes committed during curfew hours, these numbers "really highlight ... that minors are far more likely to commit or be victims of crime outside curfew hours," and that it's the adults and not the children who commit and are the victims of most of the violent crimes. And, while the city relies on studies from other cities about the effects of juvenile curfews, "without support from the City's own empirical data, we conclude that the justifications made by the the Mayor and the Chief of Police for the nighttime curfew, based primarily on opinions, are insufficient."

So that's how intermediate scrutiny works. The court has to think through the justifications and decide if they are substantially related to an important government interest. Who said the courts are not allowed to exercise independent judgment and second guess legislative judgments? The sticky business of intermediate scrutiny is highlighted in dissent, which interprets the statistics differently. As Judge Pigott sees it, it's no surprise that most crimes are committed in the daytime and by adults. More people are active in the daytime, and adults do more of everything than children, and that extends to criminal activity. Moreover, 45 percent of homicides occur during curfew hours. The dissent concludes, "I do not believe that it is the judiciary's place to decide that protecting even a small number of minors from crime is an unimportant objective. I would have thought that protecting children from becoming the victims or perpetrators of violent crime is one of the most important goals a municipality could try to achieve, especially in the wake of a series of nighttime murders or minors."
Botched trial "strategies" overturn criminal conviction
If a tree falls in the woods, does anyone hear it? If a habeas petition is granted but the inmate has already served his sentence, does it matter? The answer is yes.

The case is Wilson v. Mazzuca, decided on June 24. Wilson went to trial on a robbery charge. He was found guilty after a trial. But there were truckloads of problems with the trial, all of them the result of his lawyer's inexplicable strategies. The post-conviction proceedings took so long that Wilson actually served his 9.5 year sentence. But the habeas case is not moot. Wilson gets to clear his name.

What happened at trial? Many things. First, the prosecution's only witness did not show up for trial. When he finally testified, Wilson's lawyer asked him if he was afraid of Wilson. Bad question; the witness said yes, and that he was afraid of "reprisals." Now the jury thinks that Wilson is an intimidating man, precisely the kind of guy who would commit robbery.

Wilson's lawyer also made another mistake; in his opening statement, he attacked the reliability of the police investigation. Now, I don't try criminal cases, so I am not aware that this argument opens the door for the prosecution to show that the crime victim identified Wilson's photograph at the police station. Wilson's lawyer apparently did not know this, either. He learned the hard way when the prosecution asked the victim if he saw Wilson's "mug shot" at the station. This was bad. Mug shots imply guilt.

But it gets worse. The jury gets to see Wilson's photo as seen by the victim. The trial court said there was no way the jury would see the booking plate in the photo (it's the booking plate that makes the mug shot a mug shot). But Wilson's lawyer did not want a redacted photo. He insisted that the jury see the whole photo and nothing but the photo, booking plate and all. Not good for Wilson.

So what happens next? While cross-examining a police officer and detective, Wilson's lawyer "introduced an unredacted arrest report from Wilson's October 1994 arrest, which indicated that Wilson was arrested for 'attempted larceny (extortion), menacing with pipes ... and unlawfully entering a construction site." This was not the arrest report that resulted in this trial; Wilson was on trial for allegedly robbing someone in 1992. So what's going here? That's what the judge wanted to know. He asked Wilson if he really wanted to introduce this document, unredacted. Counsel said he wants it in. At this point, the jury has probably made up its mind. Wilson is vermin.

The judge was not sitting passive as Wilson's counsel was sending his client up the river. The judge put something remarkable on the record:

I am becoming increasingly disturbed and I?m going to put it right on the record, at some of the decisions apparently made by defense in this case and I?m not going to probe defense?s theories, I don?t know what defense has in mind, but I?m going to tell you right here and now, certain questions are being raised in my mind.


I understand that we have retained counsel. But so far, we have had an opening of the door on the investigation. We have had, although that I could see perhaps it was not anticipated but it happened, and it certainly should have been considered before the opening was made. That?s number one.

Number two, we had a questioning of the complaining witness as to why he didn?t come in which he elicited the answers, as much as I tried to delay it or prevent it, that he was afraid to come in, which was disastrous for the defendant.

Then we had the defense putting into evidence, the warrant and order and the ... supporting affirmation by the D.A., which again did not help the defendant.

Then we had several questions today that are going right into areas that I personally, as a defense lawyer, wouldn?t touch with a fifty foot pole.

I even found it necessary on my own motion, just a few minutes ago, to warn the jury not to draw too many conclusions from the mug book.

I have very serious problems with this case right now. The alarm bells are ringing in my head and I?m going right on the record. And the question concerns the representation of the defendant.

I?m sorry, there is no other way I can put it.


Wilson's lawyer forged ahead. He called a character witness for Wilson. The witness said that Wilson was a "role model for young adults." On cross-examination, the character witness admitted that she did not know that Wilson was convicted of drug dealing and that he was also convicted of a committing an armed shakedown at a construction site. And, oh yeah, the character witness did not know that Wilson was convicted of "snatching a gold chain and beating a woman in the face." Wilson's lawyer objected to this cross-examination, but the judge told counsel he should not have opened that door in the first place.

Let's wrap this up. The jury naturally found Wilson guilty. He exhausted his appeals in the state court system, and lost. He brought a habeas corpus action in federal court on the basis that he was denied effective assistance of counsel in violation of the Sixth Amendment. This is a difficult way to overturn a criminal conviction, but as you can imagine, the Court of Appeals (Cabranes, Walker and Raggi) agrees that Wilson got shafted. The Court of Appeals concludes, "none of the five errors identified by Wilson are justified by any strategy that [counsel] set forth at trial or at the July 13, 2005 [habeas corpus] hearing before Magistrate Judge Levy. The record indicates that defense counsel misinterpreted and misunderstood the law, failed to pay attention, acted recklessly, and did not appreciate the consequences of his decisions, even though in many cases he was explicitly warned of the risks by the trial court."

As the Court of Appeals thinks that counsel's deficient performance resulted in Wilson's conviction, particularly since the prosecution's relatively weak case rested entirely on an eyewitness identification made two years before trial, Wilson wins the habeas proceeding, and if the district attorney does not take active steps to re-try Wilson, then the conviction is overturned.
2d Circuit grants conscientious objector status to military doctor
The Court of Appeals holds that a military doctor is entitled to conscientious objector status, crediting his belief that American involvement in Iraq and Afghanistan prompted him to sincerely change his mind about the morality of war.

The case is Watson v. Geren, decided on June 25. Watson is a doctor who joined the army in 1998. In 2004-05, after much soul-searching and study, Watson determined that he is opposed to all war, the Iraq and Afghanistan Wars in particular. He decided that his beliefs are incompatible with working for the army. The decision highlights the extensive process comprising the application for conscientious objector status, as Watson had to detail his beliefs, including when he developed his opposition to war. The application mentioned that he marched in anti-war rallies. Here is what he wrote, in part:

Over the past eight plus years of my medical training, more than seven years since the signing of my contract with the Army, the single unifying theme of all my academic and professional endeavors has been the improvement of individuals? health and wellbeing.

The world and I both have since changed significantly from when I first entered this contractual relationship with the U.S. Army. As a form of retaliation and under the pretense of national security, the United States military has invaded and occupied a foreign country in an unprecedented pre-emptive war and I have become a doctor who now views war as an unacceptable lapse of reason, the ultimate act of futility and an entirely shameful human endeavor.

The tragedy of September 11, 2001 and our subsequent response in Afghanistan and Iraq have been profound catalysts for introspection, and constitute a radical turning point in my life. These ongoing events have led me to reconsider many of my views on life, God, religion, government, politics, and ultimately my role as a human being here and now on this small planet.

We live in a radically different world than we did before September 11, 2001 and our response with wars in Afghanistan and Iraq, and I am a changed person as a result. These ongoing wars, and the mass death and destruction resulting from them, have led me to more fully comprehend the immorality, cruelty and arbitrariness of violence in general, and particularly the futility of violent retaliation. They have led me to detest violence and reject it completely. These events, for me personally and my generation, are comparable to the massive loss of human life inflicted during the Vietnam War and its profound effect on the moral, ethical, and political beliefs of millions of young people at that time.

A significant part of my response to these horrific events was to learn more about violence, the causes of violence, and alternatives to violence. They also caused me to search deeply within myself and to question my beliefs about life, death, warfare, violence and God.


But it's not easy to get conscientious objector status. Watson's chain of command recommended that his application be rejected, claiming that Watson's statements were vague and that his primary objection is the wars in Iraq and Afghanistan. The decisionmaker rejected the application in a one-page ruling that he "did not present convincing evidence ... that the applicant?s stated beliefs warrant award of [conscientious objector] status."

The district court granted Watson's habeas corpus petition, and the Court of Appeals (Calabresi, Katzmann and McLaughlin) affirms, ruling that there was no basis in fact for the army's rejection of Watson's request, and that the government's rationales on appeal are not convincing.

The U.S. argued, among other things, that the timing of Watson's request -- his residency was ending and active duty was approaching -- was expedient, and that he merely offered a "grab bag of references to various political and religious figures" to justify his opposition to war (including Gandhi, the Dalai Lama and Dr. Martin Luther King, by the way). But timing alone is not enough to reject the application, the Second Circuit says, and Watson was not just opposed to the current wars but all wars in principle. It was those wars that made Watson change his mind about war, but his application did express philosophical opposition to war in general. The Court of Appeals also shot down the government's contemptuous argument that Watson offered a "grab bag" of intellectual sources for his newfound objection to war.

The government also held it against Watson that he had a good lawyer to help him complete the application. There is little case law in the area of testing the sincerity of a conscientious objection, but the Second Circuit does find a case from 1976 that holds "it is impermissible to allow any negative inference about an applicant?s sincerity to be drawn from his attempts to procure legal advice from whatever source.? Goldstein v. Middendorf, 535 F.2d 1339, 1344 (1st Cir. 1976).

As there was no reason to doubt Watson's sincerity in opposing war in principle, the government wrongly denied his conscientious objector application, and Watson wins the case.
Student strip search is illegal, but family gets no relief
The Supreme Court does not always know what to do with students' rights cases. The Court has sharply restricted First Amendment protections over the years, most recently in the Bong Hits for Jesus case, where the Court allowed a school principal to punish a student who unfurled the Bong Hits banner off-campus during a field trip. But this time around the Court strikes down a student's search and seizure under the Fourth Amendment, but with a catch.

The case is Safford Unified School District v. Redding, decided on June 25. The 13-year-old student was accused of bringing Ibuprofen into the school. She denied it (but admitted to some unrelated misconduct). School officials searched her belongings, including her backpack, but found nothing. Then a female administrative assistant and school nurse had the girl remove her shirt and pants and "was told to pull her bra out and to the side and shake it, thus exposing her breasts and pelvic area to some degree." Again, no pills.

As they say in law school, "what result?" There was much speculation over this case, partly because Justice Ginsburg suggested that male judges did not understand how a search like this could humiliate a young girl. But when the dust settled, the Court holds by an 8-1 vote that the search violates the Fourth Amendment. This was a strip search, Justice Souter writes, in what may be his last opinion before his retirement. The girl had an expectation of privacy in her underwear and bra, and the Court agrees this is particularly humiliating for an adolescent.

Under a precedent from 1985, the legal standard is that "the search as actually conducted [must] be reasonably related in scope to the circumstances which justified the interference in the first place." The school fails the legal test. Under the circumstances, the strip search was too intrusive. The principal knew the drugs in question were equal to two Advils. While, the Court says, any drug can be dangerous if taken in large quantities, the principal had no reason to suspect that students were passing around a lot of drugs. Nor did he have any reason to believe the girl had drugs in her undergarments. "Nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear." All things considered, the search was not justified. This case makes it difficult for public schools to strip-search students in the future.

But while the Court rules that the search was illegal, the individual defendants are immune from any damages claim. Why? Qualified immunity. This legal doctrine means that public officials cannot be sued for money damages if the state of the law was not clear at the time of the violation. We know the state of the law at the time of the violation by looking to court rulings in similar cases. You could see this coming. The Supreme Court's analysis of whether the search went too far cited few precedents on the subject. That's a tell-tale sign that the law was not clearly established. These cases do not come around very often, so the courts have had relatively few opportunities to outline the contours of student search and seizure rights. The primary Supreme Court case on student searches, New Jersey v T.L.O., 469 U.S. 325 (1985), has been interpreted zillions of ways in the lower federal courts, some of which are more deferential to school officials than others, and many of which are well-reasoned, according to Justice Souter. Under the circumstances, the Court cannot say the state of the law in this area was sufficiently clear that the defendants knew they were breaking the law in subjecting the girl to a strip search.

An astute reader points out, however, that the school district may still be held liable, however, because districts are not entitled to qualified immunity. The Supreme Court is sending the case back to the lower courts to determine whether the plaintiff can prevail against the district under Monell v. New York City Dept. of Social Servs., 436 U. S. 658 (1978), which holds that municipalities are liable for civil rights violations if they result from a policy or practice.

The lone dissenter is Justice Thomas, who thinks the courts are too intrusively second-guessing school officials in discipline cases and that it's time to revert to the common-law doctrine of in loco parentis, in which school authorities stand in for the parents when students are in the building. In any event, Justice Thomas thinks the search was legal even under existing legal standard governing student searches.
What did the Supreme Court do in the Ricci case?
The most controversial Supreme Court case of the year was handed down on June 29, re-working the rules governing employment discrimination cases. The case involving firefighter test scores in New Haven took on added significance because Ricci v. DeStefano arose from the Second Circuit, where future Supreme Court Justice Sonia Sotomayor was on the three-judge panel that ruled in favor of the City.

The case has touched a nerve. Those favoring the white firefighters argue that the City practiced reverse discrimination in rejecting promotional examinations which disparately impacted minority candidates. But the case actually became the perfect storm in which two competing legal principles collided.

Title VII of the Civil Rights Act of 1964 is the relevant law. The Supreme Court has long recognized two ways to win an employment discrimination case. The most common method is "disparate treatment," or McDonnell-Douglas cases, where the employer violates the statute in making employment decisions because of race. The other method (invoked less frequently) is "disparate impact," where an employment test or other selection criteria has a disparate impact on black candidates. Employers lose disparate impact cases unless the selection criteria is "job related for the position in question and consistent with business necessity."

In New Haven, white candidates had substantially outperformed black test-takers on the promotional exams. The City was faced with a dilemma. If the City did not certify the test results, the successful test-takers could sue for disparate treatment; after all, they could argue, they were eligible for promotions but the tests were thrown out for racial reasons, i.e., few minorities passed. On the other hand, the City was staring disparate impact liability in the face if it certified the test but could not show the tests were job-related and consistent with business necessity. This was a problem. After its Civil Service Board heard evidence on the test's validity from the consultant who created the test and experts who raised questions about the examination's fairness, the City decided against certifying the examinations in recognition that Title VII prohibits disparate impact.

But what about disparate treatment? The firefighters who passed the test claimed the test was essentially thrown out because of race. Technically, they were right. But disparate impact liability necessarily takes race into account in that the employer has to think twice when a substantial portion of the minority test-takers fail the test and the City may not be able to prove the test was valid or job-related. So we are going around in circles here.

After the Second Circuit affirmed the trial court's ruling in favor of the City, the Supreme Court took the case. This was before President Obama nominated Judge Sotomayor for the Supreme Court, which reverses the Court of Appeals and sets down new rules for this unique problem.

Justice Kennedy recognizes that it's a tough call. And he's not about to disparage the future Justice Sotomayor. Framing the issue, the Court asks "whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination." Neither side offers a satisfactory solution. The firefighters, for example, make the rigid argument that the employer cannot make race-based employment decisions even for the purposes of avoiding clear disparate impact liability. That approach undercuts Title VII's recognition that the law prohibits facially neutral selection rules which have a prohibited disparate impact. But the City does not offer a satisfactory solution, either. It argues that the employer's good faith belief that it was trying to avoid disparate impact liability is enough to throw out the tests. The problem with this approach is that, in codifying disparate impact liability in 1991, Congress did not outline any good-faith justifications for disparate treatment in this context.

The Supreme Court therefore devises a new rule: the employer may discard a selection criteria (such as a written examination) if it "has a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision." The Court borrows this standard from affirmative action cases decided under the Constitution's Equal Protection Clause. My guess is that no one offered up this legal standard to the Supreme Court for the purposes of resolving this case. But the Supreme Court can think for itself.

Under the standard, the Supreme Court finds that New Haven cannot show that it had a strong basis in evidence that that the test was deficient and that it was justified in avoiding disparate impact liability. By way of example, while the City was faced with a prima facie case of disparate impact liability in light of the large numbers of minorities who failed the test, it did not do enough to ensure that the test was truly deficient. Among other things, the Court says, "the City ... turned a blind eye to evidence that supported the exam's validity" in that it did not request the validation report prepared by the consultant who created the test.

This was a 5-4 case, with the usual line-up on each side. Supreme Court watchers know what I'm talking about. Kennedy, Roberts, Alito, Thomas and Scalia voted with the majority. The four dissenters signed on to Justice Ginsburg's dissent. She is the only current Justice who represented plaintiffs in employment discrimination cases. She proposes a different legal standard: "I would ... hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII's disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity." So, rather than apply the "strong basis in evidence" standard, the dissenters would apply a "good faith" defense. Obviously a more favorable legal standard for employers who want to diversify the workplace with qualified candidates.

As the dissent sees the case, this test had many problems. "Relying heavily on written tests to select fire officers is a questionable practice, to say the least." Leadership skills which include good interpersonal skills, the ability to make decisions under tremendous pressure and other skills are are more appropriately tested in other ways. (People say this about the written bar exam's ability to test good lawyering skills, by the way). Justice Ginsburg further suggests "it is unsurprising that most municipal employers do not evaluate their fire-officer candidates as New Haven does," and "nearly two-thirds of surveyed municipalities used assessment centers ('simulations of the real world of work') as part of their promotion processes." Moreover, the dissenters said, nearby Bridgeport "saw less skewed results after switching to a selection process that placed primary weight on an oral exam."

Politicos who will use the Ricci case to bash Judge Sotomayor should look elsewhere. The Supreme Court does this all the time: resolving a case by adopting a legal standard that few, if any, courts had previously employed. The Court did this in 1998 when it ironed out competing legal standards among the lower federal courts governing employer liability in sexual harassment cases. That the Court overruled a Second Circuit ruling that Judge Sotomayor had joined is no basis to question her legal acumen. As her colleagues on the Second Circuit had suggested when other judges on the Court of Appeals weighed in on the issue afterwards, the panel that ruled against the firefighters was applying Circuit precedent, without the benefit of any Supreme Court authority. As one Second Circuit panel cannot overrule Second Circuit precedent on the same issue, the panel that ruled against the firefighters arguably had no choice. At a minimum, without any definitive guidance from the Supreme Court on how to resolve this sticky issue, the fact that the Court ultimately rejected Judge Sotomayor's reasoning is a fact of life familiar to anyone who understands federal court practice.
Mundane case interpreting the 21st Amendment with interesting concurrence
Admit it. You had no idea that the federal courts are hearing cases under the Twenty First Amendment to the U.S. Constitution, the amendment that repealed prohibition. I wasn't aware of this either, but the Second Circuit just issued a ruling that analyzes the Twenty First in the context of out-of-state wine sales in New York. Kind of interesting, to be sure, but even more interesting is the concurring opinion.

The case is Arnold's Wines v. Boyle, decided on July 1. The case addresses two competing constitutional amendments. The Twenty First says that you cannot bring intoxicating liquors into a state in violation of the laws of that state. The Commerce Clause, however, says that Congress shall regulate interstate commerce. So the Twenty First -- which grants states authority to regulate interstate wine commerce -- is an exception to the Commerce Clause, which broadly grants all other interstate commerce authority to Congress. The Court of Appeals (Wesley, Calabresi and Walker) holds that New York can legally enforce a statutory scheme which prohibits out-of-state wine retailers from selling directly to New York consumers; the liquor must first pass through an entity licensed by the state.

This is an important issue to wine sellers and wine drinkers. But most people probably will not read the opinion. It's not a bad idea to read Judge Calabresi's concurring opinion, which raises interesting issues about how the Supreme Court has modified its interpretation of the Twenty First over the years in light of public attitudes toward alcohol consumption. In other words, the public debate over whether we have a living and evolving Constitution (on issues such as privacy, search and seizure and punishment under the Eighth Amendment) has not focused at all on the amendment that repealed prohibition.

As Judge Calabresi notes, the Supreme Court initially interpreted the Twenty First strictly. That amendment was enacted in 1933, the only time that one amendment repealed another (the Eighteenth Amendment made it illegal to manufacture or sell alcohol). Our focus is on Section 2, which allows states to regulate the importation of alcohol across state lines. Consistent with "evidence that the intent of section two was to give complete regulatory authority to the states over alcohol," "the Supreme Court 'made clear in the early years following adoption of the Twenty-first Amendment that by virtue of its provisions a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.' And, in this period, the Court upheld near-total control over domestic alcohol commerce by states, even to the point of opening the door to 'liquor-related political trade wars among the states.'?

So, early in the life of the Twenty First, the Supreme Court strictly interpreted that amendment, letting states do what they wanted. But that changed. In 1964, the Warren Court backed off a strict interpretation, and began to strike down certain state laws that regulated the sale of alcohol. A more conservative Court in the 1980's continued to lighten up when it came to the Twenty First.

After reviewing the evolving Twenty First amendment case law, as one of the eminent scholars on the federal courts, Judge Calabresi next asks why this is happening and what it all means. "It appears that the Supreme Court has increasingly 'updated' the Twenty-First Amendment, and it is this judicial process that I wish, briefly, to discuss." Judge Calabresi notes that "When the Twenty-First Amendment was first adopted and courts interpreted section two to authorize virtually limitless state regulation, the United States was a different place than it is today. Laws frequently regulated ?morals,? and alcohol was often viewed as immoral. And even setting 'morals' aside, the prevailing view of alcohol was that it was a unique product that posed unusual dangers, both directly as an intoxicant, and indirectly, as a stream of commerce that generated corruption and crime."

Those days are long behind us. We are forging ahead, as Justice Stevens noted in a case decided in the 1990's, stating, "[t]oday many Americans, particularly those members of the younger generations who make policy decisions, regard alcohol as an ordinary article of commerce, subject to substantially the same market and legal controls as other consumer products.? But, Justice Stevens went on, ?[t]hat was definitely not the view of the generations that made policy in 1919 when the Eighteenth Amendment was ratified or in 1933 when it was repealed by the Twenty-first Amendment.?

What do we do about the "seeming anachronistic legal provisions" that come before judges from time to time? Judges can interpret statutes more freely than constitutional provisions, because the constitution is much harder to amend than a statute. After outlining some of the thinking on this issue, Judge Calabresi (who wrote a book in 1982 entitled "A Common Law for the Age of Statutes"), concludes that the Supreme Court will have to deal with the problem of an evolving interpretation of an amendment, not the lower federal courts like the Second Circuit. "If the Supreme Court wishes further to meld the Twenty-First Amendment into the broad constitutional landscape, so be it. But unless and until it does, Judge Wesley?s analysis seems to me to be exactly right, and I gladly join his opinion."

The concurrence has an interesting footnote. In the context of discussing the use of history to interpret constitutional amendments, Judge Calabresi reveals a personal anecdote:

Distinguished jurists have, on occasion, been even more skeptical of court uses of history. I once suggested to Justice Felix Frankfurter that the clause in the Constitution requiring that the President be ?a natural born Citizen . . . of the United States? meant only that if a person was born out of wedlock (i.e. ?naturally born?) that person had to be a Citizen at birth to be eligible to be President. I did this jokingly, knowing that Frankfurter, like me, had been born abroad. I added, even more fancifully, that the clause was likely there to exclude from the Presidency the much admired, but also feared, Alexander Hamilton, who was said to be of ?illegitimate? birth. The scholar-justice immediately answered, ?I?ll buy that,? and then added?not in jest, I believe??and anyway it?s as good as most of what goes for history on this Court!?
Rarely does any judge write in the first person in discussing conversations like this. This anectode was not really necessary to Judge Calabresi's analysis, but of course it's interesting enough that it should be published somewhere, right? At the time of Judge Calabresi's conversation with Justice Frankfurter, Calabresi was not yet a judge; Justice Frankfurter was on the Supreme Court from 1939 through 1962. This conversation may even have happened when Calabresi was clerking for the Supreme Court in the late 1950's. It's been maybe 50 years that Justice Frankfurter had this conversation with Guido Calabresi. It's no longer under wraps, and it will be enshrined in the Federal Reporter, Third Series, forever.
Analysis: New obstacles to wartime challenges
Analysis It has never been easy to sue government officials for actions they take in wartime, and such challenges, when allowed,?fail more often than not.? One of the main problems has been that most of the information that is crucial to the case is in the goverment’s hands, and it is seldom eager to provide it [...]
The Week Ahead
The Court has recessed for the summer. It will return on Sept. 9 for a hearing on Citizens United v. FEC (08-205), in advance of the new Term. The 2009 Term opens on Monday, Oct. 5. The Court?s color-coded calendar with dates of its sittings and its Conferences can be downloaded here. On Monday,? the Legal [...]
Academic Round-Up
Ted Eisenberg (Cornell University Law School), Michael Heise (Cornell University Law School), and Martin Wells (Cornell University Department of Social Statistics) have posted “Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court’s Decision in Exxon Shipping Co. v. Baker” on SSRN, see here.? In this paper, the authors more or less reaffirm [...]
New challenge on ?state secrets?
Seeking to go forward with a legal challenge to the Bush Administration’s secret “rendition” program, lawyers for individuals claiming to have been tortured during that program urged a federal appeals court Monday to turn aside an Obama Administration move?to shut down the case altogether. In a brief?filed in the Ninth Circuit Court, the attorneys said that [...]
U.S.: Strong stand on pay-for-delay on drugs
UPDATE: The Justice Department brief is now linked. ——– Six times in recent years — as recently as two weeks ago — the Supreme Court has refused to hear claims that it is illegal for a drug maker holding a patent on a brand-name medicine to pay the maker of a generic version to keep that version [...]
Dueling appeals on terrorism policy
With a Justice Department case already at the Supreme Court on the government’s power to make it a crime to support a terrorist organization, lawyers for organizations and individuals on the other side of the controversy filed their own plea Tuesday, asking the Court to take a broader look at a key federal law if [...]
Reports on Judge Sotomayor?s Record
In anticipation of Judge Sonia Sotomayor’s confirmation hearings, which begin Monday, July 13 at 10 a.m., we’ve organized by subject matter the dozens of published reports and substantive blog posts about her judicial record. (Links are below the jump; PDFs of longer, more formal reports are noted with an asterisk.) If we’ve left out [...]
Let's face it: inmates have few rights
You knew that inmates have few rights, and I guess if the public had a chance to vote on the issue, inmates would have no rights at all. For the moment, inmates do have limited free speech rights. But they are not allowed to advocate work stoppages in jail.


The case is Pilgrim v. Luther, decided on July 6. Pilgrim was incarcerated at Sing Sing Correctional Facility when a search of his cell revealed three copies of a pamplet entitled, "Wake Up!" The pamphlet encouraged inmates to engage in work stoppages and other disruptive behavior at the prison. Pilgrim was punished for this.


A New York prison regulation (section 104.12, to be exact) prohibits inmates from leading or participating in work stoppages, sit-ins "or other actions which may be detrimental to the the order of the facility." In Daumutef v. O'Keefe, 98 F.3d 22 (2d Cir. 1996), the Court of Appeals held that, consistent with Supreme Court precedent which grants prison officials leeway in regulating expressive inmate behavior, section 104.12 does not violate the First Amendment as applied to inmates who circulated a petition asking for better prison conditions.


The Daumutef precedent applies here: Sing-Sing officials are allowed to punish Pilgrim for advocating work-stoppages. The Court of Appeals (Cabranes, Miner and Stein) notes that "The Supreme Court has held that 'in the prison context, an inmate does not retain those First Amendment rights that are inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'" As "work stoppages are deliberate disruptions of the regular order of the prison environment and are a species of [the kind of] 'organized union activity' [prohibited under Supreme Court precedent]," Pilgrim had no right under the First Amendment to advocate this, especially where "other less disruptive means of airing grievances are available."
Over 1000 law professors join letter endorsing Sotomayor
In a letter received today by the Senate Judiciary Committee, more than 1000 academics expressed their support for Judge Sonia Sotomayor’s confirmation to the Supreme Court. A number of signatories with diverse specialties and political leanings discussed via conference call Judge Sotomayor’s qualifications and strongly rebuked any characterization of her as a liberal ideologue. The professors [...]
Brennan Center for Justice on Judge Sotomayor?s Record in Constitutional Cases
A study by New York University Law School’s Brennan Center for Justice has analyzed 1,194 constitutional cases decided during Judge Sotomayor’s tenure on the Second Circuit and found her to be solidly in the mainstream of the bench. On the Second Circuit, Judge Sotomayor has voted with the majority in 98.2% of constitutional cases and [...]
Disabled doctor loses ADA claim
A doctor of osteopathic medicine lost his license when New York found him guilty of engaging in improper medical practices, including false statements in applying to work for hospitals and providing negligent and incompetent care. But he has a defense: he has a learning disability as well as Attention Deficit Hyperactivity Disorder and can work again if the State complied with the Americans With Disabilities Act. He loses the case.

The case is Harris v. Mills, decided on July 9. Dr. Harris argues that the State Education Department "wrongly denied him an 'understanding of the impact of [his] disabilities,'" which resulted in an "unfair" reinstatement hearing. But the Court of Appeals (Sack, Parker and Cote) disagrees, reasoning: "Harris thus alleges, at core, that if only the defendants would 'understand' the impact of his disabilities, they would be willing to overlook the actions that caused him to lose his license in the first place." This does not allege a legitimate reasonable accommodation claim under Title II of the ADA because "Harris would be entitled to a reinstatement of his license only if his disability is accommodated by the state's relaxation of its license qualifications." There are no preferences under Title II, only reasonable accommodations that create a level playing field for disabled plaintiffs.

Dr. Harris has another argument. He wants to be able to read to the Committee on Professions a written explanation of his case so that his case "would be more organized and clearly presented." This also fails to make out an ADA claim. The Court notes that while plaintiff "asks only for reasonable access to a hearing in which to make his case for resinstatment," in fact, he does not allege that he was denied this opportunity at the hearing because of his disability, and "it is not clear how such an accommodation would have helped Harris" since the complaint alleges that he has "difficulty with comprehending the written word" and "a related problem with written expression." Based on these admissions, any attempt to read to the Committee at the hearing would have frustrated his goals, not advanced them.
Witness list released for Judge Sotomayor?s confirmation hearing
Sen. Patrick Leahy has announced the list of witnesses to testify at Judge Sonia Sotomayor’s confirmation hearing on July 13 at 10 a.m. The Senator’s press release is available here. Among the witnesses invited by the Republican Minority of the Judiciary Committee is Frank Ricci, the petitioner in the Second Circuit case reversed by [...]
Live coverage of Sotomayor hearings
As-it-happens coverage of the Supreme Court nomination hearings for Judge Sonia Sotomayor before the Senate Judiciary Committee will occur on various broadcast or online outlets, beginning at 10 a.m. on Monday.? In addition, the Committee will provide its own live webcast, available at this link. The first day’s session is expected to be occupied largely by [...]
LiveBlog of Judge Sotomayor?s Confirmation Hearings
Beginning at 10 a.m. EDT, we will provide as-it-happens coverage of the Senate Judiciary Committee confirmation hearings for Judge Sonia Sotomayor. Readers do not need to refresh their browsers while in this window, but in the case of technical problems on this site, the LiveBlog can be followed here<a href=”http://www.coveritlive.com/mobile.php?option=com_mobile&task=viewaltcast&altcast_code=68c8136f0c” >Senate Judiciary Hearing for Judge [...]
Box Score: Calling ?balls and strikes? at Sotomayor?s confirmation hearing
As the New York Times highlighted this weekend, the image of the judge as umpire has become a dominant analogy in discussions of judicial restraint. Chief Justice John G. Roberts said in the opening remarks of his own confirmation hearings in 2005: ?”Judges are like umpires. Umpires don’t make the rules; they apply [...]
NPR and Live Blog coverage
Here’s NPR’s one-hour special on Judge Sotomayor’s first day of confirmation hearings. Our blog’s live coverage will begin at 9:30 a.m. EDT tomorrow.
Live Blog of Judge Sotomayor?s Confirmation Hearings?Day 2
Beginning at 9:30 a.m. EDT, we will provide as-it-happens coverage of the Senate Judiciary Committee confirmation hearings for Judge Sonia Sotomayor. Readers do not need to refresh their browsers while in this window, but in the case of technical problems on this site, the LiveBlog can be followed here Confirmation Hearing of Judge Sonia Sotomayor Day [...]
Schedule for Day 3 of Judge Sotomayor?s Confirmation Hearings
From the SJC Majority: “Tomorrow, the Committee will convene at 9:30 a.m. to conclude the first round of questions, with Senators Cornyn, Cardin, Coburn, Whitehouse, Klobuchar, Kaufman, Specter and Franken questioning Judge Sotomayor. Following the conclusion of the first round of questions, the Committee will break and move to closed session. The closed [...]
Live Blog of Judge Sotomayor?s Confirmation Hearings?Day 3
Beginning at 9:00 a.m. EDT, we will provide as-it-happens coverage of the Senate Judiciary Committee confirmation hearings for Judge Sonia Sotomayor. Readers do not need to refresh their browsers while in this window, but in the case of technical problems on this site, the LiveBlog can be followed here <a href=”http://www.coveritlive.com/mobile.php?option=com_mobile&task=viewaltcast&altcast_code=b3079888e6″ >Confirmation Hearing of Judge Sonia [...]
Sotomayor Confirmation Hearings: Foreign Authorities (Ancient and Modern)


By Bernadette A. Meyler, Professor of Law, Cornell University Law School

When Senator Tom Coburn today asserted -- after asking Judge Sonia Sotomayor whether states have the right to determine the definition of death -- that he did not actually expect her to answer, but simply to pay attention to the question in her deliberations, he seemed to be conceding the likelihood of her confirmation. If this is the case, his interventions can be read as having a purpose apart from determining whether or not Judge Sotomayor should sit on the Supreme Court. Instead, Senator Coburn rehearsed for the American public a set of hot-button issues raised by the Supreme Court's jurisprudence, including whether technological advances should affect the understanding of viability in the abortion context, whether there is a constitutional right to self-defense that underpins an individual right to bear arms, and whether American courts should cite foreign law.

The many rounds of debates about the citation of foreign law that have already occurred may render legal scholars somewhat fatigued with the topic, but it remains a point of public controversy. In her remarks, Judge Sotomayor lucidly and succinctly illuminated how much of the discussion consists in people talking past each other. As she emphasized, there is a public misunderstanding of what "using" foreign law means to most judges; rather than relying on foreign legal authority as a precedent or to influence the outcome of a case interpreting the U.S. Constitution or a statute, judges simply "use" foreign legal principles or decisions as helpful aids in thinking through domestic legal problems.

Had she been so inclined, Judge Sotomayor could perhaps have cited Senator Coburn's own opening remarks to illuminate the distinction. Towards the conclusion of his statement, after expressing concern about the justices' invocation of foreign authority, Senator Coburn explained that Aristotle defined law as "reason free from passion," and endorsed that view. Are we to deduce from this remark that Aristotle was an American, or is it more plausible to think that our legal system shares certain general principles with its foreign counterparts, whether ancient or modern?

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If They Held Confirmation Hearings in Heaven ...


By Rebecca Latham Brown, Newton Professor of Constitutional Law, USC Gould School of Law

Conservative Senator: Good Morning, Judge, and welcome to this hearing. I want to talk about my views on the Constitution and the role of the Supreme Court. Your statements and judicial opinions, and the fact that you were nominated by a Democratic President, make me worry that you do not share my views of the law and the Constitution. In other words, your views are activist and biased and do not reflect mainstream American values. What do you have so say for yourself?

Supreme Court Nominee: Thank you, Senator, for your kind words and insightful comments about the law. I think you might be surprised at the degree to which we do agree on the major issues of constitutional interpretation and judicial philosophy. I'm sure as we proceed to more specific questions we will find that we have a tremendous amount of common ground.

Senator: All right, let's get down to the nitty gritty. I believe that the Due Process Clause requires states to protect the fundamental right to own a gun. Therefore, the states cannot regulate the ownership of guns; It's all right there in the Due Process Clause. Anyone who thinks that the Heller decision is limited only to federal law simply does not understand the pivotal role the Due Process Clause plays in identifying the fundamental aspects of liberty that is the deeply rooted tradition of American law. How can you deny that?

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NCLR's Seaton Urges Senate Action On Hate Crimes Bill


By Liz Seaton, Director of Projects and Managing Attorney, National Center for Lesbian Rights (NCLR)


On April 22, Allen Ray Andrade was convicted of the murder in the first degree and as a hate crime under state law for killing Angie Zapata, 18, a transgender woman whom he savagely beat to death with a fire extinguisher in her home in Greeley, Colo. in July, 2008. I wrote then about the need for passage of the federal hate crimes bill.

At that time, Weld County Prosecutor Ken Buck, whose office ably prosecuted the case, joined in pressing for passage of a federal hate crimes law. On April 29, the House passed the federal hate crimes bill, which includes both sexual orientation and gender identity, by a vote of 249-175.

Today, July 15, the trial for the murder of Lateisha "Teish" Green, a 22-year-old African American transgender woman, continues in Syracuse, N.Y. Ms. Green was shot and killed on November 14, 2008, and the shooter, Dwight R. DeLee, was allegedly motivated by anti-LGBT bias and his belief that Lateisha was gay. The Onondaga County District Attorney has charged DeLee with second degree murder as a hate crime.

As the Transgender Legal Defense and Education Fund reports, "That Lateisha was, in fact, transgender highlights the unique nature of this prosecution, as well as the need for reform of New York State and federal hate crime laws. New York State law currently classifies it as a hate crime for an individual to target and attack a victim because of the victim's actual or perceived sexual orientation. While Lateisha was a transgender woman, Lateisha's murder is a hate crime because her attacker perceived her to be gay and targeted her for violence because of that perception. Neither New York State nor federal hate crime laws include gender identity or gender expression as protected hate crime categories."

Increased state-level investigations and prosecutions are a welcome development, but they do not replace the need for a federal law prohibiting these heinous crimes in the first place. The nature and frequency of violent acts motivated by anti-LGBT animus are extremely well-documented and this legislation is supported by a strong and diverse coalition.

In June, Attorney General Holder testified strongly in favor of the measure on behalf of the Department of Justice and the president.

With yet another murder trial for the killing of a transgender woman of color underway, Senate action is long overdue, and needed now.

 

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Sotomayor Confirmation Hearings: A Different Kind of Diversity


By Bernadette A. Meyler, Professor of Law, Cornell University Law School. See Professor Meyler's previous post on the Senate's Supreme Court Confirmation hearings here.

As Senator Sheldon Whitehouse of Rhode Island astutely observed, if confirmed, Judge Sonia Sotomayor will not only be the first Latina on the Supreme Court, but will also be the sole member of that body who has served as a district court judge.

Justice O'Connor, the first woman to be appointed to the Court, similarly brought a somewhat different legal background to her task than her colleagues. She had previously been both a state legislator and a state court judge, and commentators have often suggested that her experience in those state capacities helped shape her views on federalism and her respect for state sovereignty.

What, then, might be the implications of a Supreme Court Justice with district court experience?

One answer might serve to explain the conciseness of the Ricci v. DeStefano summary order that has been the subject of so much controversy, and about which Ricci himself is slated to testify. In that summary order, the three-judge panel affirmed the rationale of what it called the "thorough, thoughtful, and well-reasoned opinion of the [district] court below." During her confirmation hearing, Judge Sotomayor has emphasized the length and comprehensiveness of that district court opinion, and she has expressed respect for the efforts of the trial court. Judge Sotomayor's experience on the district court may have contributed to a view that, although the determinations of law below are not entitled to the same degree of deference as those of fact, it was not necessary to supplement or supersede the otherwise sufficient reasoning of the district court judge in the Ricci case.

Just as those in favor of a rigorous conception of federalism place significance on local determinations, and members of the founding generation feared fact-finding in the Supreme Court because it might contravene the independence of regional juries, we might see considerable value in granting more weight to the decisions of district courts. It is, after all, the district court judge who assesses all the evidence in person, and who is best positioned to evaluate the entirety of the circumstances of the case. Confirming someone who can appreciate the vantage point of the district court judge would certainly add another welcome element of diversity to the Supreme Court.

 

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Sotomayor Confirmation Hearings: Misplacing ?Judicial Activism?


By Paul M. Secunda, Associate Professor of Law, Marquette University Law School

During the second day of the Sonia Sotomayor confirmation hearings, a telling exchange occurred between the Judge and the Senate Judiciary Committee. The exchange concerned the recently decided employment discrimination case of Ricci v. DeStefano (U.S. June 29, 2009). As some readers of this blog undoubtedly know, the case established a new test for deciding when a municipality could lawfully throw out the results of a job promotion exam because of its disparate impact on a Title VII-protected group of individuals.

In a closely divided 5-4 opinion, which the usual suspects aligned on either side of the ledger, the Court held that the adverse impact of the test results in a New Haven firefighter promotion test that amounted to a prima facie case of disparate impact discrimination against black employees was not a defense to a disparate treatment case brought by white employees because the employer did not have a "strong basis in evidence" to believe that it would be liable for disparate impact discrimination. The majority came to this conclusion by importing into Title VII a color-blind standard from constitutional equal protection cases like Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007) (plurality opinion).

As Judge Sotomayor pointed out, the state of Title VII employment discrimination law at the time her Second Circuit Court of Appeals panel heard the case did not embrace the Supreme Court's eventual chosen test. Indeed, the law in this area of disparate impact cases was sufficiently established that the Second Circuit panel was able to enter a per curiam decision affirming the factually-oriented, district court decision.

Of course, the Republican Senators on the Judiciary Committee, including Senators Sessions and Hatch, sought to portray Judge Sotomayor as an activist for joining the panel's decision in this case and attacked her on that basis. Nothing, however, could be further from the truth. In fact, whereas Judge Sotomayor followed established precedent in this area of the law, there is a much better argument that it was the Supreme Court, which relied on case precedent from non-Title VII case law to come to its surprising conclusion, that had engaged in judicial activism to reach a desired outcome in favor of the white firefighters challenging the city's decision to throw out the initial exam test scores.

As my colleague Professor Michael Zimmer has ably demonstrated, Justice Kennedy, the author of the majority opinion in Ricci "takes an enormous leap from the first conclusion - that the City acted because it knew the ?statistical disparity based on race'-to his second - that it rejected the test ?solely because the higher scoring candidates were white . . . . [I]t [now] appears that an employer's conscious knowledge of the race of those affected by its decisions suffices to make out intentional disparate treatment discrimination. This appears to be a tremendous change in the law."

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Heritage Foundation Supreme Court Review Panel
The Heritage Foundation will host its annual “Scholars & Scribes Review the Rulings” event this Friday from 11am to 1pm. The 2-panel event will feature Michael Carvin, Miguel Estrada, and Neal Katyal as the “scholars” and Lyle Denniston, Quin Hillyer, and Juan Williams as the “scribes.” The panelists will react to the major decisions of [...]
Live Blog of Judge Sotomayor?s Confirmation Hearings?Day 4
Beginning at 9:00 a.m. EDT, we will provide as-it-happens coverage of the Senate Judiciary Committee confirmation hearings for Judge Sonia Sotomayor. Readers do not need to refresh their browsers while in this window, but in the case of technical problems on this site, the LiveBlog can be followed here Confirmation Hearing of Judge Sonia Sotomayor Day [...]
Personal Biography and Judging


Peggy Cooper Davis, John S.R. Shad Professor of Lawyering and Ethics, New York University School of Law

Many have expressed regret about the fact that prospective Justice Sonia Sotomayor has supported the fiction that judging is or ever could be a neutral and fully objective process. I share their concern and offer a distinction that might be helpful as we attempt to address this question more honestly.

A judge's personal biography and status can affect decisionmaking in two ways: 1) it can sensitize her to familiar perspectives, and 2) it can distance her from perspectives that are unfamiliar. We should embrace the first effect and guard against the second, for, as James Boyd White said most eloquently, our goal in litigation should be to assure that decisionmakers consider all that can fairly be said on each side of a controversy.

Given the make up of our judiciary, it is clear that we should welcome the addition of "wise Latinas." To deny this is to overlook the component of wisdom.

We must never forget the words of the great African American Federal District Judge Constance Baker Motley in response to a motion that she recuse herself in a discrimination case involving, as I recall, a woman of color. They were to this effect: There is no judge in this courthouse who does not have a race and a gender.


A second bite of the apple
Some realters sued Orange County (in upstate New York) over a tax assessment. They filed a lawsuit in state court claiming, among other things, that due process requires actual notice to property owners of a tax assessment, not newspaper notice. The case was dismissed as untimely, as the statute of limitations for those cases in state court is four months. So the plaintiffs filed a lawsuit in federal court, also claiming a due process violation under the Fourteenth Amendment. The Second Circuit says you can do this.

The case is Cloverleaf Realty v. County of Orange, decided on July 15. At first glance, you would think that the realters cannot file an essentially identical lawsuit in federal court after the claim was dismissed in state court on statute of limitations grounds. After all, the realters gave it their best shot in state court but lost the case because it was untimely. Why should they get a second bite at the apple on the basis that the federal claim has a longer statute of limitations?

The state court declaratory judgment suit had a four-month deadline. But a civil rights case in federal court carries a three-year statute of limitations. As the Second Circuit (Feinberg, Leval and Cabranes) puts it, "[t]he difficulty in this case arises from the circumstance that Cloverleaf's procedural due process claim was untimely under the law applied by the New York courts, but timely under the law applied by the federal courts." It is true that federal court must respect state court judgments. In 1981, the New York Court of Appeals issued Smith v. Russell Sage College, 54 N.Y.2d 185 (1981), which was interpreted to mean that dismissals based on statute of limitations represent judgments on the merits, which means you can't sue again in a different court. But in 1999, the New York Court of appeals issued Tanges v. Heidelberg N. Am., Inc., 93 N.Y.2d 48 (1999), which stated that "[t]he expiration of the time period prescribed in a Statute of Limitations does not extinguish the underlying right, but merely bars the remedy."

Cutting through the legal mumbo-jumbo, the Tanges decision means that a state court action dismissed as untimely does not prevent the plaintiff from suing in a different jurisdiction with a longer statute of limitations. Since the state court dismissal is not "on the merits," the plaintiff is free to try again in federal court if a longer statute of limitations applies. Since three years (federal court) is a lot longer than four months (state court), the plaintiffs get that second bite at the apple.
Quotes of the Day from Guant?namo Bay


By David Danzig, the Deputy Program Director at Human Rights First, is in Cuba to monitor the proceedings and report back on events as they unfold. His previous guest blog post on the proceedings is here.

Guant?namo Bay, July 15, 2009: As the Obama administration and Congress mull reinventing for the third time a legal system to try terrorism suspects, three hearings were held today at Guant?namo Bay in the military commission cases of Omar Khadr, Mohammed Kamin, and Ibrahim al Qosi.

The good news is that changes the Obama administration has asked for may help improve a process that has never operated in a way that folks familiar with the American legal system would recognize as justice. The bad news is that the system is so flawed that these changes cannot salvage it. Meanwhile, our normal federal criminal courts competently go about the business of trying international terrorism cases, to the tune of over one hundred, in the years shortly before and since 9/11. Go figure.

Most of the court time today was spent on motions that the government made seeking a 120-day delay in each of the cases. Doesn't it seem that something is fundamentally wrong with a system in which after six or seven years of holding a man in prison, the government has to ask for another four months to prepare?

Here are some tidbits from the proceedings I observed today.

* * * * * * * * *

"I will take a shower when you guys are ready to send me home," said Mohammed Kamin, a detainee who was captured on May 14, 2003, and has been held at Guant?namo since at least 2004. Kamin declined to attend his hearing today, saying he had no interest in participating in the military commission process and declining an offer for a shower before the hearing. (Kamin's remarks were reported to the court by a representative of the Staff Judge Advocate's office who spoke to the detainee through his "bean hole" - a waist-high slot in his cell that is used to deliver food.)

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2009 ACS National Convention Podcasts/Interviews: Justice at Stake?s Brandenburg on Judicial Elections

Following his participation in a panel discussion on judicial elections at the 2009 ACS National Convention, Bert Brandenburg, executive director of the Justice at Stake Campaign, talked with ACSblog about the potential impact of the recent Supreme Court decision in Caperton v. A.T. Massey on state judicial elections. In Caperton, the high court ruled that a West Virginia Supreme Court justice should have disqualified himself from hearing a case involving a campaign contributor. Watch Brandenburg's interview below or download a podcast here.


It?s Hard to Watch


David Kairys, a law professor at Temple University, is the author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer. Kairys' other books include a leading progressive critique of the law, The Politics of Law.

It's hard for me to watch the Sotomayor confirmation hearings, not only because of the Senators' generally unfocused, rambling questions. Conservatives and many of their most cherished values and ideas were just resoundingly defeated in an election. Congress is overwhelmingly Democratic, with 60 Democrats in control of the Senate, which will vote on the nomination. Yet, the hearings and the media coverage of them are dominated by conservatives and conservative ideas about law and justice, and a lack serious criticism of the last three decades of conservative dominance of the courts.

I am aware of and share the priority of getting Sonia Sotomayor seated on the Supreme Court. But there is a big gap of possibility between safely doing that and the surrender we're watching.

The senators of both parties and Judge Sotomayor often seem to be in a debate over who has the most passive vision of judging. Listening to them, one might think judges don't make decisions at all but simply write down legally required results, and have no apparent need for judgment or experience.

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October arguments, day by day
The Supreme Court on Thursday released the?oral argument calendar for the first sitting of the Term that opens on Monday, Oct. 5.? The Court will actually hear an argument before the Term opens — the Sept. 9 rehearing on constitutional questions in the campaign finance case of Citizens United v. Federal Election Commission (08-205). That [...]
Misunderstanding Judging: Foreign Law


By Howard M. Wasserman, Associate Professor of Law, Florida International University College of Law?

There is blame all around for the utter inanity of these hearings on the issue of the actual work of judging. An exchange yesterday between Sen. Coburn and Judge Sotomayor on the subject of using foreign and international is a case in point.

At one point, Coburn asked whether anything in the Constitution granted judges permission or power to rely on foreign and international law. Coburn asked the judge to "cite for me the authority either given in your oath or in the Constitution that allows you to utilize laws outside of the country."

The premise underlying these questions is silly. Of course neither the oath nor the Constitution says anything about utilizing laws outside of the country. But the Constitution also does not say anything about Originalism, Textualism, Living Constitutionalism, social science, canons of construction, precedent, interpretive methodology, history and purpose, or any other of the ordinary methods of judicial analysis. Article III vests the "judicial power" in the Courts of United States; enveloped within that term are all the tools by which judges interpret legal sources and find meaning, including resort to persuasive legal sources. The fact that nothing grants judges permission or power to use foreign law is meaningless, since nothing grants judges permission to look to state law (in federal cases) or to look at law review articles or to look at legislative history or to do anything that will help them interpret and determine applicable law. There is a nice question whether Congress could prohibit courts from relying on foreign or international law (Justice Scalia has emphatically said hell no; I argue the answer is different in constitutional and statutory cases). But absent a ban, judges don't need permission to do the ordinary work of judging.

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Has Sotomayor Really Adopted an ?Official Ideology? of Judging?


By Walter J. Kendall III, Professor of Law, The John Marshall Law School. This is Kendall's second blog on the Sotomayor confirmation hearings. His first is here.

Georgetown University Law Professor Louis Michael Seidman comments in today's New York Times that Judge Sonia Sotomayor adopted, during her confirmation hearings, the "official ideology" about judging. James R. Copland, of the Manhattan Institute, more or less says the same thing when he describes her remarks as "traditionalist."

I wonder if they are both mistaken.

I heard Judge Sotomayor say repeatedly that the policies and values underlying and supporting the legal text before the Court were key to understanding its meaning and reach. Coupled with her insistence on fully understanding the facts, especially so she could explain to the parties the why-and-how of her analysis and holding, suggests to me an approach that could be most like that of Justice Thurgood Marshall. As I wrote in a brief essay in the John Marshall Law Review, Justice Marshall "considered the gory details of trial records in the light of his own experience and saw things other Justices would overlook, misunderstand, or undervalue."

It sounded to me that Judge Sotomayor approached the facts in the same way with the same concern (dare I say empathy).

 

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Henderson wins the NRA .22 Caliber Championship

The rumors were true- SSG James Henderson with the Army Marksmanship Unit took top honors in the NRA .22 Caliber Championship today at Camp Perry. Here are your preliminary results:

NRA.22 Caliber Championship

  • 1st place: SSG James Henderson - 890-58x
  • 2nd place: Philip Hemphill - 888-47x
  • 3rd place: Robert Park - 888-43x
  • .22 Slow Fire Match Winner: SPC Christopher Jones - 196-8x

    .22 Timed Fire Match Winner: Jerry Chaney- 200-17x

    .22 Rapid Fire Match Winner: Brian Zins- 200-15x

    .22 National Match Course Winner: SSG James Henderson- 298-20x

    .22 Caliber Team Championship: Ultra Dot - 1132-35x

    .22 Caliber Two Member Team Championship: USAR Black- 558-10x

    To view a complete listing of preliminary results, visit the NRA's website.

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    Recap of Camp Perry's Volunteer Banquet

    2009 National Pistol Championship volunteers and sponsors on the shore of Lake Erie

    Many volunteers from the Pistol phase of the National Matches were honored at tonight's Volunteer Banquet. Nearly 110 volunteers provide essential support during the National Pistol Championships, but here is a list of volunteers that were recognized tonight according to their years of service:

    5 years of service:

  • Jim Frattaroli
  • Donald Hook
  • Ken Kelley
  • Mary Koshar
  • Terry Maisey
  • John McMullan
  • Gene Pitts
  • Steve Velimesis
  • 10 years of service:

  • William J. Fernekees

  • Friday's events at the National Matches

    With the .22 Caliber Championship in the past, competitors are now focused on today's event: the Center Fire Championship. The set up is the same as the other National Pistol Championships, with three relays firing four matches. The aggregate score of these matches (slow fire, timed fire, rapid fire, and the National Match course) will determine the ranking of the competitors.

    Today is the final day of the NRA Junior Pistol Camp, wrapping up with an air pistol match. Over on Petraca Range, members of the United States Team will complete a course of fire for the Mayleigh Cup, an International Postal Match.

    Other events for this evening include the Swap Meet, scheduled to begin at 6:30 on the tennis courts. This event allows competitors and others to exchange patches, pins, gear, and other memorabilia. At 7:00 p.m. in Building 5, the Pistol Committee will meet to discuss NRA competition programs and rules. All NRA members are encouraged to attend and contribute to the meeting.

    NRAblog will have more coverage for you as the day progresses, so bookmark NRAblog for quick access to the latest news and results from Camp Perry!

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    Camp Perry Vendor Profile: Gypsy Distributing

    Bill Boros has been bringing his Gypsy Distributing business to Commercial Row at Camp Perry for over 20 years.

    Gypsy Distributing has a wide range of products from gun holsters and bullets to gun cleaning and reloading supplies. However, Boros stated that his best selling products are his steel targets. Boros already sold out of his cat shaped steel targets and is starting to make new ones to sell soon.

    When asked what keeps him coming back to Camp Perry, Boros stated: ?I enjoy seeing familiar faces and people from over the years. I also get to see people who live all over the country, from California to New York.?

    Boros goes home every night since he lives nearby in Oregon, Ohio. Boros will only have Gypsy Distributing open until Sunday and then he will reopen when High Power Matches begin. Hurry and stop by Gypsy Distributing before Sunday if you will not be around during the High Power Matches!

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    Team USA competes in Mayleigh Cup at Camp Perry

    This morning on Petraca Range, the top 10 slow fire shooters from yesterday took to the firing line to compete in the Mayleigh Cup, an international postal match. At 50 meters, team members shot three stages of ten slow fire shots with .22 caliber pistols. The shooters scores were combined to determine the team score of 2662, a one point increase over the 2008 score of 2661.

    After the team had finished shooting and scores were totaled, Team Captain Frank Wukovits addressed the group. "Congratulations for giving us your best, and you did give us your best, as the score indicates," said Wukovits.

    The United States Team has won the Mayleigh Cup for the past six years, but the results for this year won't be ready for a few months as the competition is a postal match and all teams must submit their fired targets and scores. Team members for 2009 are:

  • Team Captain: Frank Wukovits
  • Team Adjutant: John Gordon
  • James Henderson
  • Robert Park
  • Ron Steinbrecher
  • John Zurek
  • John Ennis
  • Joseph Urish
  • Philip Hemphill
  • William Walker
  • Christopher Jones
  • Brian Zins
  • Alternate: Kevin Vacura
  • Alternate: James Lenardson
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    Final Thoughts on the Sotomayor Hearings


    By Howard M. Wasserman, Associate Professor of Law, Florida International University College of Law?

    In no particular order, some final thoughts on the Sotomayor hearings. Start with the obvious: There will not be a filibuster and she will be confirmed handily (65-67 votes).

    First, what are the chances that some GOP House member (likely a far-right backbencher looking to make a name for himself) argues that the House should impeach Justice Sotomayor? Might it happen just after she writes an opinion (probably within the next two years) that cites to foreign or international law or that supports an affirmative action program or that refuses to recuse from the non-Maloney Second Amendment incorporation case? This seems like the next step in the evolution of nasty confirmation politics. The hearings no longer provide any check on the President?s appointment authority; after Bork (and to a lesser extent Thomas), no nominee ever says anything beyond the sorts of bland platitudes we heard from Roberts and now Sotomayor; no one will say anything controversial (or meaningful) enough to give a critical mass of Senators (including Senators from the nominating President?s party) grounds to vote against her. And getting "tough" (or nasty) in questioning has become popularly counter-productive--as Republicans saw this week and as Democrats saw in 2005.

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    Jil Zurvalec joins the NRA Headquarters staff at Camp Perry

    Jil Zurvalec (pictured above) is enjoying her first year working at Camp Perry. She is the NRA Headquarters Secretary and is in charge of numerous responsibilities. Zurvalec answers phones, types memos, keeps a list of lost and found items, issues range access passes, issues golf carts, and updates Match Director bulletins for each phase.

    Zurvalec decided to become a first year employee at the National Matches because of the great things she heard from her two daughters, who work in Range Operations at Camp Perry. Zurvalec thought the job would be very interesting and she has found it to be so far.

    ?I am really enjoying my job and the people I have met from all over,? Zurvalec said.

    Zurvalec is a local resident, so she goes home every day to her family of five who keep her constantly busy. When not at Camp Perry, Zurvalec is a Teacher's Assistant for special education students at R.C. Waters Elementary School in Oak Harbor, Ohio.

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    Law Just Might Have Something to Do With Justice


    By Richard C. Schragger, Class of 1948 Professor of Scholarly Research in Law, University of Virginia School of Law

     

    A number of commentators have wondered why Judge Sotomayor has adopted what appears to be a conservative notion of judging. She seems to have embraced the idea (at least in these hearings) that personal experience should not affect a judge's decision, that "law" writ large controls all cases, and that judges simply call "balls and strikes" but do not make policy.?

    These ideas are not conservative, I submit; they are driven instead by the notion that it would be intolerable for unelected judges to act as legislators. The idea that the judge, acting properly, will arrive at a legal answer to a dispute (i.e., one dictated by law) is at the core of some prominent conceptions of the role of judges in a constitutional democracy. Thus, on the right we have Justice Scalia's constitution of rules, which always tells him the right answer. And on the left we have Ronald Dworkin's view that a judge of Herculean ability will arrive at the correct outcome even in hard cases. In neither account do judges exercise strong discretion -- they aren't making policy, they are "doing law." And that is important because both views are driven by a theory of democracy that requires judges to adhere to laws made by folks other than themselves.

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    Caspian Arms: National Pistol Championships Silver Sponsor

    Caspian Arms is one of the Silver Sponsors for the 2009 National Pistol Championships, but sponsoring the National Matches isn't new to this company. For the past 20 years, Caspian Arms has been providing sponsorship and attending Camp Perry each summer. For the 2009 Awards Ceremony, Caspian Arms generously gave 35 pistol slides to be awarded to this year's winners.

    We've been coming to Camp Perry for over 20 years and sponsoring the matches at some level since that time," said Sales Manager Gary Smith. "We're all in this together. The National Matches have been good to us and the shooters have been good to us."

    In addition to their sponsorship, Caspian Arms also has a retail store open on Commercial Row. The store sells apparel such as shirts and caps, along with components for building custom 1911 pistols. If you're at Camp Perry, please stop in to thank Caspian Arms for their continued support of the National Matches at Camp Perry!

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    NRA Center Fire Championship drawing to a close

    The last relay of shooters are currently completing their courses of fire for the NRA Center Fire Championship. In 2008, Philip Hemphill dominated the center fire category, winning the the Slow Fire, Timed Fire, Rapid Fire, and National Match Course events to become the 2008 Center Fire Champion. Can Hemphill hold on to his first place finish from 2008? James Henderson, Robert Park, Brian Zins and John Zurek are all shooting well today as evidenced by the Mayleigh Cup results, so Hemphill has some serious competition to contend with in order to defend his title.

    There's no word yet on who might be clinching the Championship this year, but check back with NRAblog later this afternoon for preliminary results from the NRA Center Fire Championship at Camp Perry.

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    Trapshooting at the National Veterans Wheelchair Games

    Here is another report by Vanessa Warner from the 2009 NVWG: 

    Sleep is a premium around here. Everyone is tired but nobody really seems to care. We are all exhausted because we are working hard and having fun. Some might say too much fun but I have never found an acceptable definition, which leads me to believe the expression was made up by people who are just jealous. 

    Trapshooting at the Spokane Gun Club was on the schedule for today. The first match wasn’t scheduled to start until 1pm but we were able to send the first squad to the line at 11:30, which put us well ahead of schedule. 

    Shooters were divided between master, novice and open classes but shot in mixed squads. The difference between open and novice was that the open class had competed last year and novice had never competed. Masters were experienced trap shooters. 

    As they arrived, competitors were paired with a volunteer who would stay with them for the rest of the day. Stasia and I did the squadding together and made sure that each five-person squad had at least one master to act as squad leader.

    After receiving their squadding the competitors and volunteers would proceed to the equipment area to receive their shotgun, ammunition, safety glasses and ear protection. Each shooter was also give a hat that was donated by Winchester Ammunition. Since most of the shooters showed up without a hat just about everyone one of them put it on immediately. Equipment distribution was followed by a safety briefing and basic instruction of trapshooting and then the competitors were sent to the line.

    Each competitor shot 50 clays, or at least tried to. Some did better than others. There were a number of novice shooters who put on an incredible display of either beginner’s luck or untapped talent and others who can at least say that they tried it. Some of the master shooters had better than average performances while others struggled for reasons unknown but can most likely be attributed to the fact that they were using PVA Shotguns and not their own.

    Any competitor who hit 25 or more clays was automatically eligible to shoot again. We gave them ample time to cool down before sending them back out to the line. The weather was perfect today, which was almost detrimental for the shooters. There was not a cloud in the sky, it was 92 degrees and there was a gentle breeze. The problem with this is that people in wheelchairs have a tendency to overheat more easily. This is a result of the fact that they are seated in chairs that tend to cover much of their backs and legs preventing the release of body heat. As a result they need a little extra time to cool down.

    Match Director and Associate Director of Sports and Recreation for PVA, Andy MacDonald was prepared for this. Water, ice and cool wet towels were on hand for anyone who needed or wanted them. In addition to some wonderful shade that was provided by both the clubhouse and the trees, there were also tents available for the competitors and volunteers to rest.

    Instead of being a range officer I was more like a range mom marching around making the shooters move to the shade so that they didn’t overheat while they waited to for their squad to be called to the line. I, like the rest of the volunteers, also stayed busy fetching bottles of water and cool towels or anything else that was needed.

    While we were waiting for the final squad to finish shooting we packed up the equipment, tents, coolers etc. and by the time they came off the line at 6:00 p.m. all we had to do was enter scores and hit the road. Andy runs a tight ship. The trapshoot was very well run and a pleasure to be involved with. I look forward to the day when PVA and the NRA can work together again.

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    The Detainee Dance at Guant?namo Bay


    By David Danzig, the Deputy Program Director at Human Rights First, is in Cuba to monitor the proceedings and report back on events as they unfold. His previous guest blog posts on the proceedings are here and here.

    Guant?namo Bay, July 16, 2009: At 1:40 PM the court room was prepared for motions to be heard against five men accused of plotting the 9/11 attacks, except that one of the detainees was talking with his attorney in such a loud tone that it was difficult for the proceedings to begin.

    Mustafa al Hawsawi, one of the five so-called "9/11" defendants, claimed that he had been misled about his role in the day's proceedings and said that he wished to leave before motions even began.

    Al Hawsawi's abrupt departure followed more than three hours of legal wrangling. At issue were questions regarding the detainees themselves. Did they have to attend their own hearings? If they refused, should the staff judge advocate use force to compel them to be in the court room?

    Like so many things at Guant?namo related to military commissions, this was unchartered territory where the officials in charge seemed, at times, to be unsure of the rules.There is no legal precedent to fall back on. This is the first time that the military commissions were dealing with these issues in a conspiracy case involving multiple defendants.

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    Video Available: ?The Constitution In 2020? Panel Discussion

    ACS hosted a panel discussion Tuesday at the National Press Club that focused on The Constitution In 2020, a new book released by Oxford University Press and edited by Yale Law School Professors Jack Balkin and Reva Siegel. The volume contains 27 essays about the future of the U.S. Constitution by leading scholars in the fields of constitutional and civil rights law. The ACS panel discussion took place as the Senate considered President Obama's first Supreme Court nominee, Judge Sonia Sotomayor. The panel featured Balkin, Siegel, Walter E. Dellinger III, and Mark Tushnet, and was introduced by ACS Executive Director Caroline Fredrickson. Click here to view video of the event. Individual interviews with Balkin and Siegel, also available as podcasts, are available here.


    Is Court Reporting For You?

     


    By Kat Sanders, a regular blogger on court reporter training at Court Reporter Schools. She welcomes your comments and questions at her email address: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

     

    It's not well known as a profession, but court reporting does have its share of takers. If you have come across people in this industry and are considering giving it a go, you need to know if you are suited to the work that's involved, if you have what it takes to make a success of it. Court reporting is a good career choice if you:

    ? Are dedicated, hardworking and willing to practice long and hard in order to be the best in the business.
    ? Are prepared to take a training program from either a regular or an online school.
    ? Are willing to put in long hours of practice before you become perfect and are able to take down transcripts without carrying or dropping words.
    ? Are willing to work long and odd hours in order to meet with deadlines and schedules.
    ? Are able to learn a few tricks and tips of the trade to help you improve your speed and accuracy
    ? Have a good head for names and exceptional memory power.

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    TARP Administrator Pushing Financial Consumer Protection Agency

    Elizabeth Warren, the administrator overseeing distribution of TARP funds, echoed parts of a speech she gave at the 2009 ACS National Convention on Rachel Maddow's show recently. Warren, the brain behind the Obama administration's proposal to create a Financial Consumer Protection Agency, spoke to Maddow about the plan in the brief clip below.

    "If you can't explain it so the person on the other side can understand it, you shouldn't sell it to them,"? Warren said. "The bottom line is you need to explain your products in a way that's clear to the customer ... so that the customer can compare one product to another. Now the reality is that's going to push down profits in that industry and leave more money in the hands of middle class families."?

    Visit msnbc.com for Breaking News, World News, and News about the Economy

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    Looking Back, Looking Ahead


    By Neil Siegel, Professor of Law & Political Science, Duke University

    Judge Sonia Sotomayor's conduct during her Senate confirmation hearing last week surprised and disappointed a number of progressive constitutionalists. I certainly did not expect her to channel Chief Justice John Roberts to the extent that she did. Nor did I expect Sen. Lindsey Graham (R-S.C.) to be the one to suggest that there is no "legal cookbook" in momentous cases and that justices decide them in part based on their broad vision of who we are as Americans. But before we judge the judge harshly (as I was at first tempted to do), we might pause to consider how we would have advised her had we been responsible for getting her through the process.

    I am probably not alone in wanting to imagine Supreme Court confirmation hearings as embodying a democratic moment in which intelligent adults who often disagree reasonably but irreconcilably debate the future course of constitutional law-as in part an educational moment in which the attentive portion of the public learns about the dynamic nature of constitutional law and the role of a justice in American society. But how I want to imagine the hearings has little to do with what the hearings are in fact about these days. Moreover, one treats others as adults at one's peril when one has little reason to believe that they will behave like adults.

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    2009 Youth Education Summit Scholarship Winners

    Youth Education Summit The 2009 Youth Education Summit is over, but participants will remember their experiences in Washington DC for a lifetime. Seven participants have another keepsake from the week-long event: a scholarship check to offset the cost of college tuition.

    Scholarship recipients are listed below:

    $2,500

  • Steven Johnson – Ponchatoula, La.
  • $1,500

  • Alyssa Ferrin – Phoenix, Ariz.
  • Chad Hart – Cedar Hills, Utah
  • Alec Janda – Chagrin Falls, Ohio
  • Adam Kroczaleski – Standish, Mich.
  • $750

  • Mark Edmonson – Ogden, Utah
  • Korbin Kiblinger – Redmond, Ore.
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    Range Change Day at Camp Perry
    Range Change heads down the road at Camp Perry

    Things are on the move here at Camp Perry. That's because we're in the middle of a Range Change. They are changing everything from target stations, to fields of fire, to platforms to vendors. Quite the job when you think about it.

    Tearing down the old and putting in the new might sound Range Change at NRA's Camp Perrylike a quick and easy task, but easy is one thing it is not. Joe and the gang have to move stations by hand, targets are moved by tractor, and firing lines are set anew. Moving from Pistol to Smallbore also mandates the removal of shooting benches and the establishing of new ready lines.

    The entire process takes two days -- so no scoring updates tomorrow. Instead, we'll introduce you to some of the new shooters, staff and what goes on behind the scenes here at Camp Perry.

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    Chicago ACS Leader Feinerman To Head Appellate Lawyers Group

    Gary S. Feinerman, a partner at Chicago's Sidley, Austin LLP, one of the nation's leading appellate attorneys, and a member of the ACS Chicago Lawyer Chapter Board of Advisors, was recently selected as the new president of the Illinois Appellate Lawyers Association.

    Outgoing ALA President Michael I. Rothstein told the Chicago Daily Law Journal, "Gary is one of the finest and most talented appellate lawyers in the country. He's accomplished at a relatively young age more than most appellate lawyers accomplish in an entire career." Feinerman, who has argued two cases before the U.S. Supreme Court, told the legal newspaper that beyond increasing ALA members, he would like to bolster the services provided to members, such as adding more Web seminars and making it easier to attend continuing legal education seminars. Illinois Attorney General Lisa Madigan also lauded Feinerman's appellate work saying, "Gary gets it. He sees the big picture as well as seeing all the details."

    read more


    Support the Blog and ACS

    We don't usually interrupt our serious discussion of constitutional law on ACSblog, but today, we're asking for your assistance. ACS's Spring Appeal is critical to helping fund many ACS resources, including ACSblog and we need your help to reach our $100,000 goal. We're very close - only $3,000 away - and your gift today can help put us over the top. As we hope you have noticed, ACSblog has made a number of design changes that allow us to offer more content and to greatly expand our network of writers and readers. Your generous support has made this possible, and we want to keep enhancing this product and building our network.

    Especially during difficult economic times, ACS relies on the generosity of individual members like you, and for your support we are truly grateful. To donate, please visit www.acslaw.org/donate or click here.

     


    Before the Juniors Reach Camp Perry

    Junior Shooting Range at Camp Perry Ohio For over a hundred years, Camp Perry has played host to the National Shooting Championships. And according to one local historian, one of the more popular event is the Junior Shooting Camp.

    Though their history doesn't go back as far as the National Championships, it does go back as far as our Smallbore Match Director HQ Moody.

    "It’s a great thing to see," said Moody. "Seventy-two kids, all lined up and ready to go. We teach them safety, we give them instructions, then open the doors and see what they've got."

    "It’s all about development," Moody explained. "With one instructor for every five kids, our Juniors will learn more about proper safety, discipline, and shooting techniques than probably anywhere else in the world. If they are serious about shooting, this is a great place to start."

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    Range Officer Training for Camp Perry's smallbore stage

    The safety of every competitive shooter depends on the shooter standing next to him. And, of course, the Range Safety Officers, or RSOs.

    While here at Camp Perry, the National Rifle Association does more than run the competition. There are demonstrations, award ceremonies, and certification seminars. That's where the Range Safety Officer comes into play.

    Today's RSO seminar started at daybreak and promises to end after sundown. During this time, they'll cover fragmentable ammunition, differences between indoor vs. outdoor ranges, perform a few hands on exercises, powder restrictions, and more.

    There's nothing we take more seriously then the safety of our shooters and our ranges. And that's why we send people like Steve (pictured above) into the field to hold seminars like this one.

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    Why the ACLU Opposes the Sessions Amendment


    By Christopher Anders, ACLU Senior Legislative Counsel

    This afternoon, the Senate passed Senator Jeff Sessions' (R-Ala.) amendment to the hate crimes provision in the National Defense Authorization Act (S. 1390). His dangerous, misguided, and unconstitutional amendment seeks to expand the scope of the federal death penalty, as well as extend it to include non-homicide crimes.

    The ACLU has several concerns with Sen. Sessions' amendment. First, capital punishment is an unreliable form of punishment that has the disturbingly frequent result of being imposed on the innocent. Second, expansion of the death penalty under the Sessions amendment would directly defy the precedent of the Supreme Court that has held repeatedly that the death penalty cannot be used in anything less than homicide cases. Third, the amendment seriously obstructs Americans' civil rights. The death penalty is always wrong.

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    U.S. Forest Service receives $25,000 NRA Public Range grant
    From our friends over at Friends of NRA: The United States Forest Service (USFS) in partnership with the Georgia Department of Natural Resources (DNR) recently received a $25,000 grant from the National Rifle Association Field Operations Public Range Fund to assist in the construction of a public shooting range in the Oconee National Forest on the Cedar Creek Wildlife Management Area.

    NRA Range Services Specialist John Joines along with NRA Southern Regional Director Al Hammond, NRA Georgia Field Representative Mike Cockerham, Georgia DNR Game Management Assistant Supervisor Rusty Garrison and USFS Wildlife Biologist Elizabeth Caldwell evaluated the range site and found an excellent opportunity to provide a public shooting facility on the National Forest. The NRA funds, along with matching Pittman-Robertson funds, will be used to complete the project.

    The Cedar Creek WMA range site has a large part of the earthwork completed and should only need erosion prevention along with the planting of grass and the construction of covered firing points with permanent shooting benches. The construction will also include restroom facilities and a parking area.

    The USFS applied for a grant and was approved by a special NRA Public Range Grant selection committee for the Cedar Creek WMA range project. According to the USFS the bidding process will start in October and the construction should begin soon after. The NRA applauds the efforts by the USFS and the Georgia DNR for the dedication to completing this project. This new range will provide opportunity for the public to enjoy a safe and secure location for the shooting sports in the middle Georgia area. The NRA looks forward to working with the USFS and Georgia DNR on future range projects.

    Learn more at Friends of NRA's homepage.
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    YHEC Spotlight: Hunting Wildlife Identification Challenge

    Wildlife identificationThis is our eighth and final feature on the events of the Youth Hunter Education Challenge (YHEC). This weekend, NRABlog will head to the NRA Whittington Center in Raton, New Mexico, to bring you all the action from the 2009 International YHEC, July 27-31. Read on about the Hunting Wildlife Identification Challenge!

    During this event, participants walk through a multiple-station field and/or woodland course designed to simulate actual wildlife and sign encounters.

    Participants will observe North American game animal tracks and mounted animals and must read and identify wildlife signs at various stations. Wildlife may be mounted or tanned hides, and tracks may be original or molds. Other wildlife signs may be real or reproduced.

    Thirty animals, tracks, or wildlife signs must be identified. Correct answers are worth 10 points; incorrect answers are worth zero for a maximum total of 300 points. Participants are allowed 90 seconds per station, and stations may not be revisited.

    Four achievement levels are possible based on the following scores:

  • Hunting Wildlife Identification Achiever: 10 correct answers out of 30 with a minimum of 100 points.
  • Hunting Wildlife Identification Scout: 17 correct answers out of 30 with a minimum of 170 points.
  • Hunting Wildlife Identification Expert: 24 correct answers out of 30 with a minimum of 240 points.
  • Hunting Wildlife Identification Master: 28 correct answers out of 30 with a minimum of 280 points.
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    Karen Wright attains rank of Double Distinguished Expert
    Thanks to Ann Marie Foster of NRA Women's Programs for the following: Congratulations Karen on obtaining “Double Distinguished Expert.”

    Karen completed the Distinguished Expert Rifle course of fire in May 2009 on a bench rest using a Thompson Center .22 rifle. She completed this course of fire at Open Range located in Crestwood, Kentucky. Karen previously obtained the honor of the first woman in the country to obtain Distinguished Expert in the pistol course of fire. Once again Karen is holding top honors as the first to obtain the “Double Distinguished Expert Rank.”  

    “I really enjoyed completing the courses of fire and improving my skills while obtaining the Distinguished Expert rank in both pistol and rifle," she said. "I hope to continue to improve my shooting skills competing in the Women On Target® Postal Match and promote the Woman On Target program wherever I can.

    Read more about what women have to gain from the marksmanship qualification program.
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    Ben Avery introduces Fall Airgun League

    The Ben Avery Shooting Facility is beginning to gear up for this year's exciting Fall Air Gun League.

    Starting on September 8, the league will meet every Thursday for eight weeks. Loaner guns will be available on a first come first serve basis to those that have pre-registered.

    Within the league there are seperate classes for Rifle and Pistol, which then split into awards for Male, Female, Junior, and Highest Over All.

    Each match will consist of three relays totaling 300 points with each relay consisting of 10 shots at 10 meters in 20 minute increments

    If you aren't too familiar with Air Guns but would still like to participate in the league, there will be an optional safety and introductory session on September 3rd in the Air Gun Range.

    To get more information on the Fall league or register, e-mail This e-mail address is being protected from spambots. You need JavaScript enabled to view it with the subject line “League Registration” or call (623) 236-7076.

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    On Display at Camp Perry - M42 Duster

    Camp Perry has more to offer than just a top-notch shooting facility. There's wildlife, a number of different fighting forces, and history.

    History comes to life as you head down the main entrance. As you make your way down to the firing range, you'll see several pieces of military hardware that played a significant role in the defense of America. One is the M42 Duster.

    Pictured above, the M42 Duster is a self propelled anti-aircraft gun from the 1950s. Weighing in a svelte 15 tons, this baby held five crewmen and traveled at speeds of up to 35 miles an hour. Combine that with the ability to fire 240 rounds from it's 40mm BOFORS AA guns a minute and you're talking about one scary example of mobile armaments.

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    High Court Decision Said to Prompt Major Shift on Civil Lawsuits

    One of the high court's "most consequential," but little noticed decisions from its latest term involved a lawsuit lodged against Bush administration officials over their treatment of Muslims detained following the Sept. 11 terrorist attacks. But, The New York Times' Adam Liptak reports that Ashcroft v. Iqbal was so consequential because it changes the way lawsuits can be filed, noting that the decision, "makes it easier for judges to dismiss civil lawsuits right after they are filed," and has already been cited "more than 500 times" since it was issued in mid-May. Tom Goldstein, founder of SCOTUSblog, told Liptak that "Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in federal courts."

    Liptak writes that for decades all a plaintiff had to do to lodge a lawsuit was file a complaint outlining a claim. But the high court in Iqbal, Liptak writes, "now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible."

    Stephen B. Burbank, a University of Pennsylvania Law School professor, told the newspaper that "It obviously licenses highly subjective judgments. This is a blank check for federal judges to get rid of cases they disfavor."

    In a guest post for ACSblog, Vermont Law School Professor Anthony F. Renzo wrote that "The most ominous import of the Iqbal decision, however, is that it provides a blueprint for like-minded lower federal court judges to justify denying access to the courts to future victims of constitutional torts seeking redress for injuries caused by high-ranking federal officials." Renzo's blog post analyzing Iqbal is here.

    Earlier this month, a panel of constitutional law experts, including Goldstein, explored a number of decisions from the high court's latest term at a national ACS event. Video of the discussion is here. Following the event, Goldstein talked with ACSblog about the high court's term, and the nomination of Judge Sonia Sotomayor to the Supreme Court. His interview is available here.

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    Bergstein & Ullrich prevail in student First Amendment appeal
    Under the Supreme Court's precedents, students in public school have limited First Amendment rights. Political speech gets the broadest protection under Tinker v. Des Moines School District, 393 U.S. 503 (1969), but these cases are harder to win when the student is accused to making violent statements. The legal standard is whether school authorities could have reasonably concluded the statement would materially and substantially disrupt the work and discipline of the school.

    The case is Cuff v. Valley Central School District, decided on July 21. Represented by Bergstein & Ullrich, LLP, the plaintiff was a 10-year-old student who was asked as part of a class assignment to describe his personality. Students did this by writing out their favorite things in the cartoon of an astronaut. In describing his wish, the student wrote in crayon that he wanted to "blow up the school with the teachers in it." The district court dismissed the Complaint under Rule 12. The Court of Appeals reverses and sends the back for discovery.

    Dismissal prior to discovery is premature, the Court of Appeals (Jacobs, Hall and Straub) concludes. Unlike the student speech cases which do not survive dismissal, "this case is before us at the pleading stage, and the particular facts pled do not compel" the conclusion that the student's speech would "foreseeably create a risk of substantial disruption" within the school environment. This is because "B.C. was, at the time of the infraction, a ten-year-old fifth-grade student; his apparent threat was made in crayon in direct response to a school assignment; he did not show the assignment to any classmates but rather handed it directly to his teacher; and B.C. had no other disciplinary history that would suggest a violent tendency. We cannot say, based on these facts, that it was reasonable as a matter of law to foresee a material and substantial disruption to the school environment, just as we cannot say that foreseeing such a risk was, as a matter of law, unreasonable."
    Upcoming Friends Events: July 23 - 25
    Yale Law Prof. Reva Siegel on Origins of ?The Constitution In 2020?

    The Constitution In 2020, edited by leading constitutional scholars Jack M. Balkin and Reva. B. Siegel, was born partly in response to sustained efforts to narrowly define the Constitution's reach. Yale Law School Professor Siegel, during a recent ACS panel discussion on the book, said documents from the Reagan administration's Justice Department called "The Constitution in 2000," were "a blueprint for change in constitutional law, but presenting this as a process of working the Constitution pure or clean." Siegel added that The Constitution In 2020 was intended to "engage in a grounded effort to state what our best understanding of the Constitution might be in a range of areas of law." Watch a YouTube clip of Seigel's comments below and view the entire panel discussion here.


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    Yale Law School Prof. Jack Balkin On ?Democratic Constitutionalism?

    In his opening remarks during a recent ACS panel discussion of the book, The Constitution in 2020, Yale Law School Professor Jack M. Balkin explained one of its themes, "democratic constitutionalism." Balkin said the concept encompasses two ideas. "The first idea is that all three branches of government ... all play a role in enforcing our Constitution," Balkin said. "And the second idea is that when you focus just on the courts, you tend to miss this feature. And you also tend to miss the way in which court decisions actually emerge from interactions between social movements and political movements; political branches, public opinion and the judiciary. That is, if you obsessively focus on the courts you actually miss most of what is actually going on when you understand how constitutional law is made." Watch a YouTube clip of Balkin's introduction below. Video of the entire event is here. Balkin edited The Constitution in 2020 with Yale Law School Professor Reva B. Siegel. Visit The Constitution in 2020 blog for more discussion on the book and constitutional interpretation.

     


    Camp Perry's Stat Office prepares for smallbore competition
    Things got a little crazy this afternoon once match officials posted squadding outside the Camp Perry Stat Office. For those who don’t know, squadding is simply the station where a competitor shoots. And that can be a big deal at any match.

    When word of the posting finally got out, competitors suddenly swarmed the outer office, as pictured above. “This is a really popular spot today,” Stat Director Dot Priesman told NRAblog. “It’s like a beehive!” The big deal about squadding is the waiting period: You don’t just step up to the line, shoot, and go home. You shoot, you wait, another competitor shoots, you wait, you shoot again, and onward into the afternoon. The trick is getting your tent as close to your station as possible. Then the wait is spent relaxing in the shade with a cool drink and your favorite chair. If your tent is not near your station, then you’re always worried about missing your turn. Which, at a national championship, can be a very bad thing.

    Early birds can pick up their packets in front of Building 950 at 9:00am on Wednesday. If you’re near by on Thursday, come on out to Camp Perry!

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    Amber Niblock-Shorter reports on YES Superlative Awards

    The 2009 Youth Education Summit was more than just fun and games. In giving speeches, listening to lectures, and experiencing the nation's capitol, the 45 high school students chosen to participate in the weeklong event had plenty to keep them busy.

    But NRA Field Operations' own Amber Niblock-Shorter, who was on hand to assist with the week's activities, reports that the kids (and grown-ups) always find time to fit in a little fun:

    Our Youth Education Summit (Y.E.S.) may be a seven-day scholarship vetting process for those who attend, but it is also a great opportunity for students to network with other students from around the nation. While being evaluated by staff and chaperones throughout the week on their conduct during the grueling group debates and individual speeches, students had the opportunity to evaluate each other as well. All 45 participants voted on their picks for the YES Class of 2009's Superlative Awards. 

    It was a close decision on many of the superlatives this year seeing as so many of the YES students were stand-outs on every level, but there was no debate on who took home the superlative of "Best Debater." Chad Hart of Cedar Hills, UT, used his strong speaking skills and quick wit during group debates, where he helped lead his team to victory on the topic of torture and the U.S. government. 

    Speaking of good speakers, the title of "Most Outstanding Speaker" went to Steven Johnson of Ponchatoula, LA. Upon receiving his award he was rallied by the YES class for a "Speech! Speech! Speech!" Johnson shined both in his individual speech on animal testing and during his group debate where he discussed the topic of open and closed borders.

    We also got a unique opportunity to meet the future of the NRA. The superlative for the "Future President of the NRA" went to Alec Janda of Chagrin Falls, OH, whose enthusiasm for the NRA and leadership qualities were always present during YES.

    "Mr. YES 2009" was awarded to Chase Zreet of Georgetown, TX, who was a driving force in keeping morale high amongst YES students throughout the week, exercising both humor and leadership to bring people together.

    Youth Education Summit
    Sarah May of Franlinton, N.C., took home the title of "Ms. YES 2009." May was one of four students chosen to participate in the "Laying of the Wreath" ceremony at the Tomb of the Unknown Soldier at Arlington National Cemetery. She also demonstrated her Junior ROTC-learned facing movements to students during Quantico day.

    This year's chaperones and staff said they were looking forward to working with Chris Bertke of Reynolds Station, KY in the coming years -- Bertke was the recipient of this year's "Most Likely to Chaperone A Future YES" award.

    While every student showed insurmountable growth during YES, the superlative of "Most Transformed Since Attending YES" went to Nicholas Coover of East Berlin, PA, who was one of three winners of the 2009 Pennsylvania State YES invited to attend this year's National YES.

    Superlatives recipients received a Friends of NRA shotgun shell coffee mug filled with goodies from the National Firearms Museum store including a 1 GB bullet-shaped USB drive, NRA lanyard and flashlight-whistle key chain, a copy of the Constitution and parchment-like paper poster of the Second Amendment, as well as an NRA bumper sticker and other goodies.

    Congratulations to all the YES Class of 2009 Superlative Winners!

    Stay tuned for even more coverage from this year's exciting Youth Education Summit.
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    College Nights at Camp Perry: July 23 & 26

    This year at Camp Perry there will be two informational NRA College Nights held during the Smallbore Matches for those interested in continuing their shooting development while in college.

    These events are designed for high school and junior high shooters as well as their families to learn about what the NRA can provide for in the world of collegiate shooting. NRA Collegiate & Schools Program National Manager, Victoria Croft, as well as various college and university rifle coaches will be on hand to speak about collegiate shooting programs and answer any questions shooters and their parents may have.

    Additionally, plenty of informational pamphlets and brochures will be available to take home and look through afterward.

    Both events will be held in the Hough Theater and are:

  • July 23 at 6:00 PM, immediately after the NRA Competitor Meeting.
  • July 26 at 6:00 PM, followed by the Army Marksmanship Unit Meeting.
  • If you are interested in pursuing the shooting sports in college, this is an opportunity not to be missed.
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    H.Q. Moody Tours the Firing Line at Camp Perry

    NRA's Match Director H.Q. Moody gives NRAblog a quick tour of the firing line at Camp Perry. Don't forget to check back later as the Smallbore competition begins.

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    Signing In and Welcome Bags for Smallbore

    As the clock ticked closer to the nine a.m. hour, a line instantly encircled Building 950. Competitors preparing for their 2009 Camp Perry smallbore experience gathered for a welcome bag filled with vital match information and a handful of swag.

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    NRA National Matches Platinum Sponsor: Springfield Armory

    As a Platinum Sponsor for the 2009 National Matches, Springfield Armory continues their tradition of supporting the shooting sports. Springfield has generously provided two 1911 GI .45 pistols as awards for the National Pistol Championships as well as cash and medallions for the NRA/Springfield M1A Match awards schedule.

    Mike Doy with Springfield Armory understands how providing sponsorship helps not only competitive shooting, but the firearms industry as a whole. "Sponsorship of the shooting sports is the future of our business. The more the shooting sports grow, the more that the business grows," Doy told NRAblog.

    In addition to their sponsorship, Springfield has a retail store on Commercial Row (pictured) where shooters can purchase items or simply relax. Springfield's building includes complimentary access to the internet, long distance calling, refreshments, and comfortable seating. Apparel, magazines, parts, signs, and memorabilia are all available for purchase as well.

    Stop by Springfield Armory to thank them for their support as a Platinum Sponsor for the 2009 National Matches at Camp Perry.

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    Harvard Law Prof. Mark Tushnet on Civic Discussion, Constitutional Law

    During the ACS panel discussion of The Constitution in 2020, Harvard Law School Professor Mark Tushnet noted policy discussions outside of courts as highly important to creating constitutional law. "Design of a national health care policy is a matter of constitutional significance, even if the courts have nothing to say about it," Tushnet said. "The discussions we have as citizens and our representatives have about what we're going to do about healthcare are ... of constitutional significance. They communicate something fundamental about our self-understanding as a nation and they can be as deeply embedded as anything in the written and judicially enforced Constitution." Watch a YouTube clip of Tushnet's comments below.

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    Walter E. Dellinger on ?Originalism?

    At the ACS panel discussion on The Constitution in 2020, former Acting Solicitor General Walter E. Dellinger III addressed the ongoing debate over "originalism" as a sound method of constitutional interpretation. Watch a YouTube clip of Dellinger's comments below. Video of the entire panel discussion is here.

     

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    Weather Turning as Practice Begins

    At 1:30 p.m. today, practice for those shooting Smallbore 3-Position is scheduled to begin. But as the weather turns, some fear a delay or outright cancellation. We'll keep you apprised as things progress.

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    NRA Match Director H.Q. Moody Explains Squadding at Camp Perry

    Camp Perry Match Director H.Q. Moody continues his tour of the Smallbore firing line.

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    The Earth is Not Flat: The Public Interest and the Google Book Search Settlement: A Reply to Grimmelmann


    By David Balto, Senior Fellow, Center for American Progress (i)

    Editor's Note: This substantial piece is a response to The Google Book Search Settlement: Ends, Means, and the Future of Books, an ACS Issue Brief by Professor James Grimmelmann. The complete reply is available below the fold.?

    In 2004, Google began working with large research libraries to digitize their book collections and to make the content searchable online. Not long after the project was announced, a collection of authors and publishers sued Google for copyright infringement. After almost three years of negotiations, Google and the plaintiffs announced in October 2008 that they had agreed to a proposed settlement.

    While some commentators have lauded the settlement, others have vociferously claimed that it poses competitive concerns and does not promote the public interest. As an advocate for consumer interests and a former antitrust enforcer, I took great interest in this debate early on and started to study the settlement. Over the last few months, I have learned much about Google Book Search, the ensuing litigation, the settlement, and the settlement's competitive implications. In doing so, I have come to the firm conclusion that the competition criticisms of the settlement are unfounded. The settlement is good for consumers and should be approved.

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    Smallbore Practice at Camp Perry

    Unless there's lightening in the air, rain does little to stop things here at Camp Perry. Watch as Smallbore practice commences.

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    Defending Justice Ginsburg

    In a recent letter to the editors of the Washington Post, Reva Siegel of Yale and Duke's Neil Siegel defended Justice Ruth Bader Ginsburg against a recently published op-ed allegedly mischaracterizing her beliefs:

    Michael Gerson's op-ed suggest[ed] that Supreme Court Justice Ruth Bader Ginsburg or her associates believe Medicaid should cover abortion services to control the population of "social undesirables," to use Mr. Gerson's term ["Justice Ginsburg in Context," July 17]. We find the claim incredible, as would anyone acquainted with Justice Ginsburg's work who is not out to damage her reputation.?

    Ms. Siegel is the co-editor of the recently released The Constitution in 2020. Mr. Siegel, who clerked for Justice Ginsburg, offered his insights in the latest ACSblog symposium "Sotomayor's Confirmation Hearings."


    Harvard Prof. Gates Says Arrest Highlights Need For More Study of Race, Criminal Law

    Cambridge police have dropped disorderly conduct charges against the preeminent Harvard scholar, Henry Louis Gates Jr., but plenty of discussion has emanated over the controversial arrest. Professor Gates, Harvard's leading scholar on African American history, told The Washington Post that he'd like a "one-on-one" with the officer who arrested him at his home in the early afternoon last week, after a neighbor called 911 to report that two black men appeared to be trying to forcibly enter the home. Gates, with the help of his driver was trying to open the front door, which was jammed. Gates also told The Post that he wanted an apology from the officer and that the incident would propel him to study racism in the criminal justice system. He concluded by telling The Post that he had no ill will toward the neighbor who called the police. "If she saw someone tomorrow that looked like they were breaking in, I would want her to call 911. I would want the police to come. What I would not want is to be presumed to be guilty. That's what the deal was. It didn't matter how I was dressed. It didn't matter how I talked. It didn't matter how I comported myself. That man was convinced that I was guilty."

    A statement issued by Harvard Law School Professor Charles Ogletree, who is representing Gates, is available here. Gates also talked with the Root here.

     

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    Camp Perry's Hough Theatre hosted big names

    During the National Matches, Camp Perry's Hough Theatre is used for awards ceremonies and special events. Built in 1937, Hough Theatre seats nearly 850 people and still contains many of its original elements including artwork, curtain pulleys, and rows of seating. It may be home to awards ceremonies today, but during World War II, Hough Theatre was the place to be at Camp Perry.

    Soldiers stationed at Camp Perry during World War II would flock to the Hough Theatre during their free time for special shows and performances from some of the top entertainers of that time. The United Service Organization (USO) would bring shows and performers including Bing Crosby, Loretta Young, and Marsha Hunt. In June of 1943, Bob Hope and his entourage broadcast live from Hough Theatre in front of hundreds of troops.

    In addition to hosting celebrities, Hough Theatre was also a place for soldiers to enjoy movies, concerts, and shows from local performers. Today the Hough Theatre is used to honor some of the top competitive shooters in the world, but over 70 years ago, it was used to honor and entertain the men and women supporting the war effort.

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