SBM Blog

Citizens United Redux?

A story in the ABA Journal, "Citizens Dis-United: Justices May Take Another Look at Campaign Finance Case," explores the possible implications of a stay granted in a challenge to a Montana statute that bans corporate spending in state elections. Justice Ginsburg, joined by Justice Stephen G. Breyer, wrote:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.”  Id., at ___ (slip op., at 42).  A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.  Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.

In an intriguing piece on how the Court's pending decisions may play in the Presidential campaign, ScotusBlog's Tom Goldstein speculates that while a grant of cert is a distinct possibility, a reversal of Citizens United is not likely, at least for the foreseeable future:

In truth, the odds that Montana can prevail in this case on that or any other strategy are very, very low.  I don’t doubt that three members of the Court (the current Justices who dissented in Citizens United) will vote for the state, probably joined by Justice Kagan.  But finding a fifth vote among the members of the majority that decided Citizens United and previous campaign finance decisions strikes me as extremely unlikely.  The majority views this line of cases as reflecting a basic, foundational point about democracy:  that there is a right to participate in electoral campaigns to persuade voters.  The handwriting is on the wall that Montana’s law is going to be declared unconstitutional.

But that does not make the state’s effort wasted and the case an empty exercise.  This is one battle in a far wider war for both sides.  Because a constitutional amendment is unlikely to be adopted, the relationship between campaign finance law and the First Amendment is destined to be unsettled (in the sense that a shifting Supreme Court majority could reverse course) for at least the next century.  The dissenters likely view the case, at the least, as an opportunity to lay the foundation for what they hope will be the eventual overruling of the current body of campaign finance law at some point years down the road.

Former Wayne Law Dean on Legal Education "Crisis"

Hastings Law School dean and former Wayne Law dean Frank Wu was interviewed by National Law Journal about his announcement that Hastings plans to cut back admissions by 20% over the next three years. With a 7% decline in applications, Hastings is ahead of the 15% average decline in applications nationally, and has just completed aggressive staffing changes and tuition increases to put the public law school's finances on an even keel in the face of dramatically declining state revenues.  Nevertheless, Dean Wu is not resing easy:

I'll say what most law deans won't: Legal education is in crisis. We're at a crossroads, and unless we collectively reboot this thing, we're in real trouble. Every law school should be thinking about this.

Miller Canfield Lawyer To Be Serenaded By Bernadette Peters

Miller Canfield's Mark J. Bennett, along with his co-authors of "New ASTM Standard May Serve as a Safe Harbor for Emerging Building Energy Labeling, Transactional Disclosure, and Benchmarking Regulations," will receive a Burton Award for Legal Achievement on June 11 at the Library of Congress.  The award is presented to partners and counsel in law firms who have written outstanding articles which are clear, concise, and comprehensive. John Paul Stevens will be there too, to pick up a Book of the Year Award.  And for entertainment? The incomparable Bernadette Peters.  Award winners in other categories have yet to be announced.  Last year, Cooley Law School's Joe Kimble won a Burton legal writing award, for the second time.

HT: International Law Prof Blog

Breaking: Daniel C. Brubaker named Chief Commissioner of the Michigan Supreme Court

Daniel C. Brubaker has been named Chief Commissioner of the Michigan Supreme Court, and will oversee the work of the high court's permanent legal staff. The high court's legal staff reviews applications for appeals and provides research and recommendations to the high court.

Mr. Brubaker has served for nine years with the Supreme Court Commissioners Office, after spending 11 years focusing on family, labor, and local government law at Mika, Meyers, Becket & Jones P.L.C. in Grand Rapids. He earned his bachelors degree from Albion College in 1987, and his law degree from the University of Michigan Law School in 1992.

Read more about Daniel C. Brubaker's appointment

Posted by Samantha Meinke

Michigan Law Firm Name Pronunciation: Piece of Cake

Let's face it. We in the Midwest are just not that complicated -- "Miller Canfield," "Honigman," "Warner Norcross," "Dickinson Wright," "Dykema," "Clark Hill," "Varnum," "Plunkett Cooney," "Butzel Long," "Bodman," "Foster Swift." What you see is what you get. But Georgetown Law thinks that its law students might have trouble with the pronunciation of Big Law firm names, and so has produced this online law firm name pronunciation guide to the non-Michigan territory of the big law firm universe. So helpful. We were really curious about how to pronounce "Kirkland Ellis," "Mayer Brown," and "Jenner Block."

Even At Yale Law School, Gender Differences Still Drive The Conversation

The point of paying attention to what's going on at Yale Law School is Yale's persistent recognition at the top of the academic law school heap. So what's going on with women law students at Yale? This just-released study (PDF), "Yale Law Women SpeakU," highlights gender differences in class participation and assertiveness in seeking references and recommendations. The relative reticence of the women law students has not decreased, and in some respects has increased, compared to the same study conducted a decade ago. Reticence appears to disadvantage women law students in participation on law review and in climbing the partner track. To the extent that Big Law culture values an assertive style, the Yale data may explain the relatively slow gains in leadership roles that women have been able to achieve in the Big Law firm world. If assertiveness and aggressive style are necessary to provide excellence in legal services and to market one's abilities then by all means, women should be taught in law school how to acquire the necessary skills and style. But, on the other hand, what if the assertion that greater assertiveness by women lawyers is important to success is just like the insistence two decades ago that women must dress like men in the courtroom to be successful -- an empty assumption whose basic purpose is to perpetuate the status quo (a status quo that looks increasingly vulnerable in its own right)?

Diversifying the profession can't just be about gender and racial equity. Surely we can be a profession that embraces a variety of styles in service delivery. Which brings us to the best-selling new book, Quiet: The Power of Introverts, by Susan Cain. Judith Warner's review of the book describes its premise:

Many of the self-avowed introverts she meets in the course of this book, which combines on-the-scenes reporting with a wide range of social science research and a fair bit of “quiet power” cheerleading, ape extroversion. Though some fake it well enough to make it, going along to get along in a country that rewards the out­going, something precious, the author says, is lost in this masquerade. Unchecked extroversion — a personality trait Cain ties to ebullience, excitability, dominance, risk-taking, thick skin, boldness and a tendency toward quick thinking and thoughtless action — has actually, she argues, come to pose a real menace of late. The outsize reward-seeking tendencies of the hopelessly ­outer-directed helped bring us the bank meltdown of 2008 as well as disasters like Enron, she claims. With our economy now in ruins, Cain writes, it’s time to establish “a greater balance of power” between those who rush to speak and do and those who sit back and think. Introverts — who, according to Cain, can count among their many virtues the fact that “they’re relatively immune to the lures of wealth and fame” — must learn to “embrace the power of quiet.” And extroverts should learn to sit down and shut up.

Introverts may be an odd audience for a book about power and leadership — concepts that necessarily involve the tiring and unappealing prospect of having power over, and leadership of, other people. Jonathan Rauch, a contributing editor at National Journal, tapped into the inherent humor of this contradiction some years ago, when he wrote a much-read meditation in The Atlantic on introversion. Rauch dreamed about the dawning of an “Introverts’ Rights movement,” the slogan of which might someday be “Please shush.” He got the tone just right: “Remember, someone you know, respect and interact with every day is an introvert, and you are probably driving this person nuts.”

Maybe those quiet women (and men) law students at Yale (and elsewhere) are on to something. Let's start listening.

LSAT Watch: How Much Does The President of LSAC Make?

As the number of folks taking the LSAT is going down, the cost of taking the LSAT is going up.  15% more or less, to $160. That has prompted critics like Brian Tamanaha at Balkinization to pounce, and to inform us, among other things, how big the reserves of the Legal Services Corporation (LSAC) are ($170M), and how much the LSAC president made in 2009. Answer: $624,000. If a law degree is required for the job, at least it's one more high-paying job available, eventually, to a law school grad.

Michigan's Indian Casino Case Before U.S. Supreme Court: Analysis Of Oral Argument

ScotusBlog's Kevin Russell says he thinks the Court is searching for a middle ground in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, in which a landowner in Wayland, Michigan has challenged the government's taking of land in trust for a casino now operating in Wayland. The outcome, Russell says, may hinge on how the Court resolves this question posed by Justice Kennedy:

The government takes the position [that] . . . it can basically moot [a landowner’s] action by turning this into a quiet title action just by taking title. . . . And the Respondent on the other hand says, oh, well, this is an APA action, we can — we can wait forever, at least for 6 years.  Is there some midway position that the government can’t moot the case too soon, that it must wait a reasonable time?

Russell thinks that an all-or-nothing resolution may not be in the cards.  Instead, he says:

I would not be surprised to see a majority coalesce around the compromise position advocated most strongly by Justice Breyer – and seemingly not raised in any significant way in the briefs – that (1) an APA suit commenced before the land is taken into trust is not a quiet title action within the meaning of the Quiet Title Act (and therefore, is not barred by that Act’s reservation of sovereign immunity for trust lands); and (2) the suit retains that character, and can go forward, even after the land is taken into trust.

The alternative approach, advocated by the Tribe and the government, would be to say that the solution to the problem of premature mooting of the APA claim is to require the plaintiff to seek a preliminary injunction barring the transfer while the case is in litigation (which the landowner here did) and appeal the denial of any such injunction (which the landowner here did not).

Portrait of Conrad Mallett, Jr. Joins Predecessors in Hall of Justice

Former Chief Justice Conrad Mallett, Jr., now head of Detroit's Sinai Grace hospital, returned to Lansing on Wednesday for the presentation of his official portrait by the Michigan Supreme Court Historical Society. Former Governor James Blanchard, who appointed Mallett to the Court in December 1990 to fill the vacancy created by the resignation of Dennis Archer, spoke at the ceremony. Mallett was subsequently re-elected to a two-year term and eight-year term, and In 1997 became the Court's first black chief justice. The portrait was painted by Simmie Knox, whose other notable portraits include Thurgood Marshall, Bill Clinton, and Muhammad Ali.

We All Come From Somewhere

In recognition of the Supreme Court oral argument in Arizona v. U.S., Reuters has this nifty guide to the family heritage of each Justice.  (Lest our headline be criticized for being politically incorrect, may we point out that the indigenous peoples of the Americas are thought to have migrated from Asia across what is now the Bering Straits.)