SBM Blog

Two Little Words Prompt John Paul Stevens To Speculate About The Future of Citizens United

Retired Justice John Paul Stevens is reading a lot into Justice Alito's famous mouthing of the words "not true" in response to President Obama's 2010 State of the Union remark that Citizens United "reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections." What Justice Alito really meant to say, Justice Stevens suggested to an audience yesterday at the University of Arkansas in Little Rock, was that “in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion.” In his remarks, Stevens endorsed the President's SOTU reading of the opinion, and said that the reasoning of the opinion extends to contributions by foreign corporations:

In that succinct comment, the former professor of constitutional law at the University of Chicago Law School made three important and accurate observations about the Supreme Court majority's opinion in Citizens United v. Federal Election Commission: first, it did reverse a century of law; second, it did authorize unlimited election-related expenditures by America's most powerful interests; and, third, the logic of the opinion extends to money spent by foreign entities. That is so because the Court placed such heavy emphasis on the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker's identity." Indeed, the oplnlon expressly stated, we find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers." Somewhat inconsistently, however, the Court also stated that it would not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation's political process."

Here's Stevens' speech (PDF). Of course, if you want the full extent of Stevens' thinking on Citizens United there's no better source than Justice Stevens' dissent in Citizens United.

SCOTUSblog, the NYT's The Caucus, and the Los Angeles Times' Politics Now all cover the speech.

1st Circuit Court of Appeals Finds Defense of Marriage Act Unconstitutional

Here's the opinion.

As Michigan Goes, So Goes Harvard, Etc.

Michigan's choice for law school commencement speaker this year, Attorney General Eric Holder, was also Harvard's. Not to mention the University of North Carolina's. Just curious, were the speeches identical? Paul Caron at TaxLawProf Blog has a list, but misses SBM's own Julie Fershtman, at Cooley.

Holder was not the only speaker holding down more than one commencement -- ABA President William Robinson spoke at both CIncinnati and Kentucky. Michigan Congressman Dave Camp was on tap at his alma mater, University of San Diego. Most offbeat speaker? Likely cartoonist Mike Peters at Washington University, although Al Franken may have given him a run for his money at Minnesota. (Having just read the transcript of Franken's address, I take that back. The Senator showed up, not the SNL alum.)

In Defense of the Language Elitists

In the New Yorker blog post "Inescapably, You’re Judged By Your Language," Ryan Bloom has a nice  smackdown of the descriptivists who rail against the elitism of language rules. Conclusion? Get over it:

For the individual looking for a higher education or trying to secure a decent job, what seems more humane: Admitting that, ugly, élitist, and unfair as it is, prescriptivism is currently the dialect of power and being able to manipulate that dialect can help you get ahead, or pretending that utopia is at hand, that everyone is a revolutionary, that linguistic anarchy will set you free? The choice to use our natural dialects whenever and wherever we please, to live in a world free of language-based racism and classism, may indeed be a worthy end for which to strive, but it’s also worth remembering that individuals don’t live in the end. They live now.

Not to mention, as Bloom points out, the descriptivists invariably do their railing in flawless, prescriptive English.

Michigan Law Schools At Ground Zero Of Legal Education Debate?

Just as Michigan was the epicenter of the debate about affirmative action in public education at the turn of the Millenium, Michigan now is assuming a central position in the ongoing debate about the future of legal education. In case you have any doubts, read this article from The Chronicle, "As Top Law Schools Trim Enrollments, the Biggest One Expands." The story details how Cooley Law School's new Tampa Bay campus is defying this year's trend of lower law school enrollments by enrolling twice as many students as originally projected. While the arguments about the cost/benefit of a legal education fly around the blogosphere, the new students interviewed for the story are not deterred by an average $110,000 debt.  A 1L with a real estate license explained:

"There's no doubt it's a risk," he says of his decision. "But let's face it, it's tough all over, and this seemed like a good opportunity for a switch."

He says he was reassured by references on Cooley's Web site to a report from the U.S. Bureau of Labor Statistics. It estimates unemployment among lawyers at 1.5 percent in 2010, "far below the national unemployment rate of 9.6%," according to the law school's summary. (Skeptics of Cooley's interpretation point out that it is unclear how many of the employed lawyers are working in fields that don't require a law degree.)

The law school went on to dismiss reports questioning the value of a legal education today as "anecdotal, unbalanced, and lacking in factual support."

A counterpoint of sorts is offered by former Wayne Law School dean and Michigan Law grad Frank Wu. Wu is now chancellor and dean of the University of California's Hastings College of the Law, who has announced plans to cut his school's enrollment by 20% over the next three years. " We need to reboot legal education," he told The Chronicle.

As The Chronicle story points out, Cooley accepts 80-90% of its applicant pool, and its avowed mission is based on inclusiveness and practical experience. Those goals are not unfamiliar to the University of Michigan Law School, at the other end of the selectivity index. Among its responses to the changing legal education market, Michigan Law has been positioning itself, successfully, as a leader in "law school transparency." In that regard, University of Michigan Law School senior assistant dean for admissions Sarah Zearfoss, talking in her blog about Michigan Law School's policy on making its data public, makes a salient point:

One thing I have learned in discussing these issues is that the data we on the inside think are interesting and significant may not be the data the observers on the outside think are interesting and significant.

Meanwhile, in East Lansing, the Michigan State University College of Law is establishing a national future-of-the-profession presence with symposia such as Lawyers As Conservators and programs like the 21^st Century Law Practice Program in London.  UDM Law has been a leader in clinical programs, and is tackling immediate, practical problems with creative collaborations such as the Urban Farming Symposium.  And at Wayne Law, whose new Damon Keith Center showcases the school's heritage of commitment to equal justice, Dean Robert Ackerman demonstrates the law school's futures orientation with his own blog, in which he tackles the lawyer employment question:

I would rather see the problem in simple economic terms — as a market failure.  Willing sellers of legal services have failed to attract the attention of potential buyers of these services.  Our profession is capable of addressing this market failure: by easing barriers to entry, by establishing law practice incubators (much as the medical profession provides residencies for newly-minted doctors), by better informing the public about the value and availability of legal services, by considering ways we can create marriages between consumers and providers of legal services.  Several law schools, including Wayne, have begun to think about the role we might play in this regard.  It is a challenging time for law schools and the legal profession, but not one without its opportunities.

Dewey Bankruptcy

The latest chapter in the long unwinding of the venerable global law firm Dewey & LeBoeuf is the filing of this bankruptcy petition on Monday.  WSJ Law Blog not only has details of the firm's expenses, but also informs us that Dewey's "opulent" Manhattan office was featured in the movie Michael Clayton.  New York Law Journal explains why Dewey's bankruptcy raises novel issues, in part because Dewey will be the only law firm ever in bankruptcy that has issued bonds to support its finances.

Hey, Barnes Foundation -- How Is That Broken Trust Thing Working Out?

The epic legal struggle that finally resulted in the breaking of philanthropist Albert Barnes' trust indenture of his beloved art collection and the subsequent move of the collection from a Philadelphia suburb into downtown Philly was chronicled in the documentary, The Art of the Steal. As a successful effort to turn an excruciating probate problem into entertainment, it is probably second only to dramatizations of Bleak House. This 2010 post from the Probate Lawyer Blog describes the controversy.

So what do the critics have to say about the success of the move? At least one critic, Tyler Green at Modern Art Notes, is not impressed:

Once the keepers of the Barnes found a way to pry the art away from its founder’s John Dewey-influenced vision of art-plus-installation-plus gardens-plus-education-program, a unified field,  they should have devoted themselves to a smart, respectful, thoughtful and new presentation of great art, a place in which the art was The Thing. Instead, they have placed the emphasis not on the art, but on a Thomas Kinkadeian reminder of how it used to be-ish. Think of the team that brought you the new Barnes as the Administrators of Light. [Renoir, Nude from the Back, 1917. Collection of the Barnes Foundation.]

The new Barnes is part of an accelerating trend: Over the last generation, governments, private funders, philanthropies and administrators have increasingly pushed art and art collections out of contexts in which access to aesthetics, history and cultural knowledge are primary and into ‘civic service’ as rainmakers for tourism or development. There has been little concurrent examination — least of all in Philadelphia — of how or if art should be made most accessible. Instead the question has been how to use art to serve other goals. That’s how we got the new Barnes. That’s how we got the $25 art museum admission fee. That’s how we got art museums renting their art to Las Vegas casinos. And that’s how great art is becoming a hobby for the leisure class, something available to an increasingly narrower socioeconomic band of Americans, an enterprise in which dollars matter more than ideas, engagement or discourse. The biggest success of the new Barnes is that it draws those lines more starkly than any other museum in America.

Art: Matisse, Seated Riffian, 1912, Barnes Foundation, Pennsylvania.

Defamation Case: When Wholly Truthful Is Just Half The Story

Eugene Volokh points out that defamation by half-truth cases are rare, but in his post about a recent such case, he urges us to think about the news story that brought it on before reading the judge's decision: 

WOMAN HURT BY GUNSHOT

Mrs. Ruth A. Nichols, 164 Eastview, was treated at St. Joseph Hospital for a bullet wound in her arm after a shooting at her home, police said.

A 40-year-old woman was held by police in connection with the shooting with a .22 rifle. Police said a shot was also fired at the suspect’s husband.

Officers said the incident took place Thursday night after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols.

Witnesses said the suspect first fired a shot at her husband and then at Mrs. Nichols, striking her in the arm, police reported.

No charges had been placed.

The omitted facts were that several people were sitting around in a living room talking when the shooting occurred. The judge decided the story could be libelous, if negligence were shown.  The story reminded Volokh of this famous hypothetical half-truth -- a first mate who, upset at his teetotaling captain, writes in the ship’s log, "Captain sober today."

Super-Sized Opinions

The Centers for Disease Control's revelation that burgers today are three times bigger and meals four times bigger than they were in the 1950s comes as something of a relief.  Our meals are four times bigger, but we're not!  It looks like we're only about 20% bigger.*  Clearly someone is watching out for us. As a lawyer I was naturally led to wonder whether judicial opinions have also become supersized. And sure enough, someone's done a study on it, revealing that the answer is a big fat yes. From "An Empirical Analysis of the Length of U.S. Supreme Court Decisions:"

Of particular note in the last one hundred or so years are two substantial and sudden changes in the median length. First, we observe a sharp decrease occurring over a three-year period starting in 1949, when the median length dropped from 3,064 words in 1948 to 2,129 words in 1951 -- a 30% decline. Indeed, the average size of majority opinions did not return to the 1948 level until nearly three decades later, in 1972. The second dramatic change, this one a substantial increase, occurred shortly after the start of the Burger Court. In 1969, the median length was 2,530 words. By 1974, just five years later, it had jumped by more than 80% to 4,656 words. Indeed, the change in opinion length over these few years is one of the starkest transitions in the entire data series and likely is what sparked interest and commentary on the increasing length of the Court's opinions.

*I am actually about 105% bigger than my peak weight in the 1950s, but that's a different story.

John Paul Stevens Speaks About Bush v. Gore, Takes on Gerrymandering

As Andrew Rosenthal points out in this New York Times blog, retired Justice John Paul Stevens has been anything but reticent about expressing his views since his retirement. In an address to the American Law Institute, Stevens added to his 35-page dissent in Bush v. Gore with observations like this one:

While the court's per curiam opinion is misleading in other respects, for example, its implicit suggestion that the failure to order a recount of the estimated 110,000 overvotes was error despite the lack of evidence or argument suggesting how one could tell which candidate the voter intended to support, the principal point I want to make this morning concerns the absence of any coherent rationale supporting the opinion's reliance on the equal protection clause.

The equal protection clause requires states to govern impartially and has particular force in protecting the right to vote. There must be a neutral justification for rules or practices that discriminate for or against individuals on the basis of identifiable characteristics, including groups of individuals that are defined by race, by political affiliation, or by their residence in a particular location. ...

My principal purpose in calling your attention to the court's reliance on the equal protection clause in Bush against Gore is to emphasize how that provision of our Constitution, properly construed, would invalidate an invidious form of political behavior that remains popular today. If a mere defect in the standards governing voting recount practices can violate the state's duty to govern impartially, surely it must follow that the intentional practice of drawing bizarre boundaries of electoral districts in order to enhance the political power of the dominant party is unconstitutional.

Stevens' connection of Bush v. Gore to gerrymandering caused Rick Hasen at Election Law Blog to wonder why Stevens did not make the same connection in his dissents in redistricting cases post-Bush v. Gore.  So far, no other substantive comment on any law blogs. Here's the transcript of the speech PDF.