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With Amici Like These...
No full textWelcome back to Making the Case! After a brief hiatus, Senator Whitehouse is back for a second season of his podcast, which uncovers the decades-long effort to capture and control our Supreme Court. During Trump 2.0, it’s more important than ever to shine a light on the nation’s highest court.
In this episode, Senator Whitehouse is joined by Professor Allison Orr Larsen and Professor Paul Collins, experts on amicus briefs and their (lacking) disclosure requirements
Why You Cannot Find a Swing Justice When You Really Need One
Get PDFFrom Richard Nixon’s 1972 appointment of swing Justice Lewis Powell until Donald Trump’s 2018 appointment of Brett Kavanaugh (to replace swing Justice Anthony Kennedy), the swing Justice ruled the roost. Sometimes voting with the Court’s conservatives and other times with its liberals, the swing Justice often cast the deciding vote and often embraced a sui generis middle ground. Those days now seem like a distant memory. An ideologically simpatico majority coalition drives the post-2018 Roberts Court (especially after Justice Amy Coney Barrett filled Justice Ruth Bader Ginsburg’s seat in 2020). In this Article, I will use the Court’s affirmative action in higher education cases to better understand why the swing Justice was pivotal from 1972 to 2018, why there are no swing Justices on the post-2018 Roberts Court, and why the swing Justice will not return. In so doing, I will connect the demise of the swing Justice to the simultaneous rise of party polarization and the conservative legal movement. I will also explain why this linkage of party and ideology did not begin until 2010 and how it is that this linkage could contribute to the eventual packing of the Court. Swing Justices may be critical to the survival of a nine Justice Court, but these “Super-Justices” cannot withstand the kryptonite of party polarization.
This abstract has been taken from the author\u27s introduction
Home Equity Theft: A Right Without a Just Remedy
Get PDFSeveral local governments throughout the country have confiscated homeowners’ real property for overdue real property taxes, sold those properties to investors at a discount, and pocketed millions of dollars in profits from the sales. The victims of such “home equity theft” are disproportionately elderly, African American homeowners in gentrified urban communities. One such victim, Geraldine Tyler, a vulnerable ninety-four-year-old African American woman living in a nursing home, claimed that the government’s taking of her property’s value violated the U.S. Constitution. In response, both a federal district court and a federal appellate court denied her claim, declaring that she lacked a cause of action. However, the U.S. Supreme Court in Tyler v. Hennepin County held that Ms. Tyler does have a cause of action, based on the Fifth Amendment’s Takings Clause, noting that the state’s enabling statute effected a “classic taking.”
This essay argues that the Tyler Court failed to provide Ms. Tyler with a just remedy as dictated by the U.S. Constitution, as well as by a fundamental principle of common law jurisprudence, which states that for every right, there is a remedy (hereinafter “the rights/remedy principle”)
Executive Watch: Zick on Executive Orders and Official Orthodoxies
Get PDFDuring his first term as president, Donald Trump signaled that he was not committed to pluralism and expressive liberty when it came to matters like patriotism, public protest, and other forms of dissent. During his second term, Trump has issued multiple executive orders that attempt to impose official orthodoxies or understandings regarding race, gender, patriotism, and other subjects.
As we have seen, these edicts are not merely symbolic. The executive orders call for agency actions and criminal investigations, and place hundreds of millions of dollars in federal funding at risk. The orders have affected what universities teach, which immigrants can migrate to or remain in the United States, which books students and soldiers can read, which version of American history is considered acceptable, which clients law firms can represent, who can serve in the U.S. military, and what kind of scientific research will be allowed.
This abstract has been taken from the author\u27s introductory paragraphs
Executive Watch: The Breadth and Depth of the Trump Administration\u27s Threat to the First Amendment
Get PDFGiven the Trump administration’s continued and varied assaults on the First Amendment, it is vital to monitor those attacks and then realize the gravity of the “sweeping and draconian sanctions ” imposed by unconstitutional executive fiat. Vigilance is especially important, as New York Times investigative reporter Michael S. Schmidt has noted, because “Mr. Trump has employed tactics including lawsuits, executive orders, regulations, dismissals from government jobs, withdrawal of security details and public intimidation to take on a wide range of individuals and institutions he views as having unfairly pursued him or sought to block his agenda.”
Mindful of such matters, this installment of “ Executive Watch ” by professor Timothy Zick provides the most comprehensive and informed account of the current threats facing us up to now
Timothy Zick on Public Protests and the Law
No full textKeith Whittington sits down with Timothy Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School and a leading expert on the First Amendment law surrounding protest activities. His first book was Speech Out of Doors: Preserving First Amendment Liberties in Public Places, which was published in 2009. His latest book was published by Cambridge University Press and is Managed Dissent: The Law of Public Protests. They discuss the law of public protests in general and the specific situation of protest activities on college campuses
Guardrails Needed for Social Science Research
Get PDFIn an article written for a legal audience, The Most Dangerous Branch of Science?: Reining in Rogue Research and Reckless Experimentation in Social Welfare, (Dwyer, 2022), I illustrated this phenomenon by describing what has happened in the child welfare world in recent decades. In the article, I recommend legal reforms to address the problems, including mandating a more robust IRB [institutional review board] review, broadening the concept of unethical research, treating policy experimentation as research subject to ethical rules, and authorizing lawsuits against those who purchase or conduct intentionally skewed studies that result in harmful policy innovations. I offer here a summary of the article’s main points...
This abstract has been taken from the author\u27s introductory paragraphs
Extraterritoriality’s Empire: How Self-Determination Limits Extraterritorial Lawmaking
No full textProf. Evan J. Criddle\u27s insightful discussion sheds light on the complexities of extraterritorial lawmaking and the role of self-determination in shaping international legal frameworks
Accidental \u3cem\u3eBrady\u3c/em\u3e Violations
Get PDFProsecutors are often seen as the villains of the criminal justice system. And the most villainous thing a prosecutor can do is to commit an intentional Brady violation by withholding favorable and material evidence from the defense. Not surprisingly, there is a wide literature criticizing prosecutors for flagrant misconduct.
But not all Brady violations are intentional. Prosecutors sometimes—perhaps often—commit accidental Brady violations by inadvertently failing to recognize favorable evidence. Because many prosecutors are inexperienced, overworked, and under-trained, they do not recognize exculpatory or impeachment evidence when it is in their files. Additionally, prosecutors also fail to disclose evidence that is in the hands of police, sheriffs, crime laboratories, and other government agencies. Because the criminal justice “system” is riddled with communication breakdowns, prosecutors are sometimes unaware of Brady evidence that they were obligated to disclose.
The breadth of the Brady doctrine and the dysfunction of the criminal justice system do not make Brady violations acceptable or harmless. To the contrary, Brady errors are serious violations of a defendant’s constitutional rights. To reduce future violations, however, we cannot simply condemn prosecutors for intentional misconduct. Instead, it is important to understand why accidental Brady violations occur. Drawing on nearly two-dozen recent cases, this article builds a typology of situations where accidental Brady violations occur, and it sets forth solutions for reducing accidental violations in the future
Ecosocialism, Degrowth, and Global South Thought: Critical Legal Transformations
Get PDFThis Article explores how Critical Legal Research (CLR) can help drive transformations of our ecological political economy towards true system change. CLR entails a critical legal theory–informed approach to legal and broader socio-legal research. After articulating the CLR framework, this Article explores its potential in the context of leading and intertwined bodies of theory for transformative change: ecosocialism, degrowth, and Global South and Indigenous thought. Next, this Article offers concrete avenues to help pursue such emancipatory change—i.e., specifically focusing on the popular conception of an “ecosocialist transition.” Ecosocialist transition strategies include non-reformist reforms, dual power, a radical just transition, and joining ecosocialism with a broader global movement of movements. As this Article contends, such ecosocialist transition strategies can be powerfully informed by CLR via embedding CLR within bottom-up forms of socio-legal praxis, such as radical movement lawyering. Ultimately, such CLR praxis constitutes an emerging and vital, yet still largely underutilized, dimension in the struggles to combat white patriarchal capitalism and to pursue ecologically viable and socially emancipatory futures