Ninth Circuit Rules on Free Speech Issue in Schools

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Category: Civil Rights, Constitutional Law, Education & Law, First Amendment, Public, Race & Law
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clip_image002Late last month, in Dariano v. Morgan Hill Unified School District, the Ninth Circuit held that the Principal of Live Oak High School properly exercised the school’s rights when he offered students wearing T-shirts bearing the American Flag on Cinco de Mayo the choice to either turn their shirts inside out or go home for the day.  The Principal’s action came on the heels of threats of violence from Mexican-American students earlier in the day and the occurrence of a slight physical altercation on Cinco de Mayo 2009.  The students were not disciplined in any way for their decisions to go home rather than turn their shirts inside out.

The court rested its decision on the First Amendment challenge made by the students on the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District, 393 U.S. 503.  In Dariano, the Ninth Circuit applied Tinker to find that the school could restrict student speech based upon officials’ reasonable belief that the T-shirts would cause a “material and substantial” disruption in school activities.  The Ninth Circuit distinguished the facts of Dariano from those of Tinker by finding that in Tinker, there was no threat of disruption from the wearing of the armbands, whereas there were actual threats of violence throughout the day at Live Oak High School. Read more »

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State Legislation on the “Sea of Japan” / “East Sea”

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Category: Constitutional Law, International Law & Diplomacy, Public
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600px-Sea_of_Japan_naming_disputeRecently certain Korean American groups have begun lobbying for state legislation requiring public school textbooks to explain that the “Sea of Japan” is also called the “East Sea.” Japan prefers and uses the former, while South Korea the latter. Bills on this issue are currently at varying stages of adoption in Virginia, New Jersey, and New York, and are part of a broader campaign to raise public awareness about Japan’s colonial and wartime behavior. In this post, I want to address briefly the constitutionality of this legislation under the doctrine of foreign affairs preemption. My view is that the legislation is likely permissible and not preempted.

I’ll begin with the key features of foreign affairs preemption. In American Insurance Association v. Garamendi, the Supreme Court explained that the constitutionality of a state action carrying more than “incidental” foreign policy consequences hinges on whether the action conflicts with federal foreign policy. In the presence of a clear conflict, the state law is invalid. Absent such a conflict, constitutionality depends primarily on the strength of the state interest at stake, as judged “by standards of traditional practice.” This means that non-conflicting state action is likely to be permissible if it falls within a traditional competence of state governments. Read more »

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AWA Meets SCOTUS

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Category: Constitutional Law, Criminal Law & Process, Public
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This week the Supreme Court heard oral argument for a case very similar to the issue Appellate Writing & Advocacy students from last semester argued in briefs and before coaches, roommates, professors – anyone that would care to listen. Though the audio has yet to be released, I was eager to review the transcript released on Wednesday. Navarette v. California asks whether police can (and if so, under what circumstances) initiate an investigatory stop of a vehicle pursuant to a sparse anonymous tip. The case is different than most situations regarding anonymous tips for a variety of reasons, but most relevant is the nature and seriousness of the danger of drunk driving. It’s hard to separate the arguments I advanced as a student in Professor Greipp’s AWA course, but luckily, many of my and my fellow classmates’ arguments were voiced on Tuesday in the great hall. Read more »

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Beyond the Cold, a Forecast for Legal Issues in 2014

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Category: Constitutional Law, Marquette Law School, Public
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Welcome to the New Year, fellow Marquette Law students and faculty! I am pleased and proud to be writing to you as the student blogger of the month for January. I’ll hopefully contribute something useful to you all over these 31 days and nights as we venture into the great unknown that is 2014.

It seems apt to talk about the years ahead and behind as we mark the beginning of the former and the closing of the latter. For 2014, the economy appears to be finally heating up, and 2014 looks to be more like a Ferrari than a Fiat, and that is something to celebrate. There are exciting issues heading to or being considered by the Supreme Court, including recess appointments, contraceptive mandates for religious non-profits, and gun rights. Even the Circuit Courts are getting a lot of attention as we see splits forming in the handling of bulk collection of phone call data by the NSA. Congress actually closed out 2013 in the spirit of cooperation by passing a budget sans major tantrums on the Senate floor. I’ll be graduating this calendar year, marking the end of my formal education, and my cell phone contract is up, so there’s that. I wish us all luck and success in the coming year as students look for summer placements and graduating 3L’s look for permanent positions.  Read more »

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Wisconsin and the Repeal of Prohibition

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Category: Constitutional Law, Legal History, Milwaukee, Political Processes & Rhetoric, Public, Wisconsin Law & Legal System
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prohibition_ends_at_lastThis past December 5 marked the 80th anniversary of the repeal of Prohibition, America’s experiment in the creation of an alcohol-free society.

Prohibition officially ended in 1933 with the ratification of the 21st Amendment to the United States Constitution. The new Amendment repealed the earlier 18th Amendment, which had made the sale and consumption of alcoholic beverages illegal in the United States.

The repeal of Prohibition is an event that has been celebrated daily in Wisconsin for the past eight decades.

Somewhat remarkably, Wisconsin, long associated with the production of alcoholic spirits, did actually vote for Prohibition. On January 17, 1919, in the wake of intense anti-German sentiment throughout the United States and in the aftermath of World War I, in which the U.S. government had used its war powers to sharply curtail the production of alcoholic beverages, the Wisconsin legislature approved the 18th Amendment by a majority vote. However, in “defense” of the legislature, Wisconsin’s approval did not come until after the Prohibition Amendment had already been ratified by the requisite number of states to bring it into law. Read more »

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The Diplomacy Powers of Congress

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Category: Constitutional Law, International Law & Diplomacy, Public
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I’ve written on this before, so I’ll keep it short: The Michigan Law Review just published my article on the extent to which Congress has constitutional authority to engage in international diplomacy. If you’re interested, it’s available here.

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Remembering a Classic Work of Constitutional History

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Category: Constitutional Law, Legal History, Public
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November 2013 marks the centennial of Charles Beard’s An Economic Interpretation of the Constitution of the United States, arguably the most important book written on the United States Constitution other than the Federalist Papers. Few works of historical scholarship have ever so dramatically transformed the scholarly (if not the public) debate over the meaning of a major American event.

At the time of the publication of An Economic Interpretation, the Indiana-born Beard was a 39-year-old Associate Professor of Political Science at Columbia University, the school from which he had received his Ph.D. in 1904. As his title suggested, his new book argued that the framers of the United States Constitution of 1787 had been motivated, not exclusively by nationalistic or democratic concerns, but by the desire to protect the property rights of wealthy Americans, especially those (including themselves) who had invested in federal bonds and had speculated in western lands. Read more »

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The Gender Binary

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Category: Constitutional Law, Family Law, Human Rights, Public
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Gender_signsWestern society has traditionally assumed a gender binary, classifying sex and gender as “male” or “female.” This binary is reflected in many aspects of our legal system. However in recent decades, the gender binary, and related assumptions about the fixed nature and unambiguous meaning of sex and gender, has been challenged by transsexual, transgendered and intersex people seeking legal recognition of their sex and/or gender identity and protection from discrimination based thereon.

In the US, the majority of states now permit alteration of sex on birth certificates for transsexual persons (whether sex-reassignment surgery is required varies from state to state), although a handful of states still take a “fixed from birth” approach to legal sex. The legal landscape in relation to marriage for transsexual people is similarly inconsistent and in flux.

Challenging the fixed nature of sex/gender is an important development, but in most jurisdictions, the gender binary has been kept legally intact. More recently, some jurisdictions are grappling with the question of “other-gendered” and “other-sexed” persons (the terms are not synonymous – the Norrie case, below, was framed as an issue of biological sex, not gender identity.) The issue has come to a head in Australia, where special leave to appeal to the High Court has been granted in a case involving a person who wishes to be recognized as legally genderless. Read more »

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Lincoln’s Anti-Slavery Gettysburg Address

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Category: Constitutional Law, Legal History, Public
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As Professor Mazzie has noted, today, November 19, 2013—the day that I am writing this—is the 150th anniversary of Abraham Lincoln’s brief but iconic Gettysburg Address. Rereading its text earlier today, I was reminded how committed the speech was to the cause of emancipation. Although most of the Union dead at Gettysburg were there to save the Union, not to abolish slavery, it was clear that the emancipation of African-American slaves was very much on Lincoln’s mind when he penned the famous words.

The references to slavery are admittedly somewhat oblique, and the word ‘slavery” is never used. However, the phrase “a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal,” which is prominently featured as the second half of the Address’ opening sentence, clearly refers to the famous, and then not yet fully realized, words of the slaveholder Thomas Jefferson’s Declaration of Independence. In the middle section of the work, Lincoln subtly indicates that the nation for which the Gettysburg dead made the final sacrifice was not the United States of 1860 reunited, but that unrealized nation of the Declaration, committed to liberty and equality. Read more »

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Data on the Foreign Travel of Wisconsin’s Federal Legislators

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Category: Constitutional Law, International Law & Diplomacy, Public
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It’s common to hear of federal legislators traveling abroad on official business to meet with foreign leaders. Because this practice has a variety of significant implications for the execution of U.S. foreign relations, I decided to look into the extent to which Wisconsin’s representatives and senators have been involved over the last five years. My sources were WikiLeaks cables and public reports on publicly and privately financed foreign travel. While it’s not always easy to identify the purpose of any given trip, detailed accounts are often contained in State Department cables, which you can access by performing keyword searches on WikiLeaks’s website. My findings are below. As you’ll notice, Wisconsin’s legislators traveled abroad, if at all, only in 2009–not a single representative or senator reported foreign travel on public funds from 2010-present. I wasn’t able to obtain information on privately-funded travel for the last four years, so it’s possible that some travel still occurred during the period, but the drop-off in publicly-funded travel is striking. And a little bizarre. Perhaps it’s pure coincidence. Or maybe it’s a response to fiscal austerity? I don’t know.   Read more »

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Lewd and Lascivious Behavior Laws: A Milwaukee Story

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Category: Civil Rights, Constitutional Law, Criminal Law & Process, Milwaukee, Public, Wisconsin Criminal Law & Process, Wisconsin Law & Legal System
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The Accused

Lee Erickson’s bio attests to his national prominence. Among other things, he served on the Choral Panel of the National Endowment of the Arts and as dean of the American Guild of Organists. But in Milwaukee, he is best known as the conductor of the chorus of the Milwaukee Symphony Orchestra (MSO). Erickson was appointed associate director of the MSO Chorus in 1978, and he has served as the chorus’s director since 1994. By all accounts, the group has flourished under his leadership. The MSO website quotes music director Edo de Waart as saying: “The MSO has the good fortune of having a first-class volunteer chorus. With a chorus of this caliber, the options for performing great works in the repertoire are immense.” Frequent guest conductor Nicholas McGegan has called the chorus “a real gem,” and Tom Strini of the ThirdCoast Digest referred to it as “the jewel in Milwaukee’s cultural crown.”

If you type Erickson’s name into the Google search box, however, these achievements aren’t among the first results that appear on your screen.

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US Treasury and IRS Recognize Same-Sex Marriages for Federal Tax Purposes

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Category: Constitutional Law, Public, Tax Law
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accounting-calculatorYesterday the U.S. Department of the Treasury and the Internal Revenue Service (IRS) announced that legally married same-sex couples will be recognized and treated as married for all federal tax purposes. As long as the couple is legally married it does not matter if they live in a jurisdiction that does not recognize same-sex marriages. The announcement comes just months after the Supreme Court’s decision in United States v. Windsor, which held that a key provision of the Defense of Marriage Act (DOMA) violated principles of equal protection under the Due Process Clause of the Fifth Amendment. The ruling gives married same-sex couples the freedom to move throughout the United States without having to worry about federal tax implications. However, the ruling does not apply to couples in domestic partnerships or civil unions.

Yesterday’s “ruling applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA, and claiming the earned income tax credit or child tax credit.” IR-2013-72. The ruling is to be applied retroactively so married same-sex couples have the opportunity to file or amend federal tax returns for the 2010, 2011, and 2012 tax years. Before amending returns, couples will want to determine if their combined income will subject them to the “marriage penalty” which could place them in a higher tax rate bracket.

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