The Problem with Justice Thomas’s Dignity Argument

Posted by:
Category: Constitutional Law, Judges & Judicial Process, Public, U.S. Supreme Court
Leave a Comment »

Justice Thomas, in his fervent dissent to the Supreme Court’s decision to invalidate same-sex marriage bans, has some interesting things to say about the concept of dignity. His view of human dignity is that it is innate and therefore inalienable: “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them.”

The punchline, of course, is that the majority’s reasoning, which relies heavily on a Constitutional reading that sees dignity at the heart of liberty and the Due Process Clause, is flawed – gays and lesbians are not deprived of dignity (and therefore liberty) by their inability to marry, because “the government cannot bestow dignity, and it cannot take it away.” Essentially, Justice Thomas says, as long as the state leaves me alone, my liberty and dignity are intact.

Justice Thomas’s invocation of slavery and internment to illustrate his qualms about the dignity argument arguably undermines the moral force of his point. Moreover, it rests on a narrow and theoretical concept of dignity.   Read more »

Print Friendly



Who Needs Words Anymore?

Posted by:
Category: Legal Writing, Public
Leave a Comment »

emoji press releaseMy worst fear has been realized: we can now stop writing in words.

Last week, Chevy issued a press release written entirely in emoji (except for its hashtag line #ChevyGoesEmoji). Emoji are the little graphics that appear all over the digital world. You’ve probably gotten emails or text messages that include them: a thumbs up sign; a little yellow smiley or angry or sad face; a dog; etc. I’ve done a screen capture of a portion of that release that you can see above. According to one journalist, the press release was “utterly incomprehensible.”

The press release introduced the 2016 Chevy Cruze and seemed to be an attempt to appeal to millennials—the younger generation generally born between the early 1980s to the early 2000s. While the company released its English translation the following day, those in media attempted to decipher the emoji version. Read more »

Print Friendly



Kettle Moraine Kids, Compared to the World

Posted by:
Category: Education & Law, Public
Leave a Comment »

You could expect students in the Kettle Moraine school district to do well. The communities served by the district in western Waukesha County are generally doing well economically, parents are involved and expect good results, and the school leaders and staff are talented professionals.

But what does “do well” mean? Compared to whom? Neighboring districts? Wisconsin? The nation?

How about the world?

Kettle Moraine has been an eager participant in a small, but growing movement that involves samples of 15-year-olds taking a test called the OECD Test for Schools. It yields comparisons of individual schools to students in nations around the world. The test also includes a set of questions that yield potentially insightful information for school leaders on the perspectives of students about the learning environment they find, both at school and elsewhere.

I was asked by editors of Education Next, a widely-followed national magazine and Web site, to write about Kettle Moraine’s involvement with the OECD Test.

The story can be found by clicking here and will be in  the issue of Education Next to be published in coming weeks.

And the answer  to the question of how Kettle Moraine kids are doing? The answer, in short, is quite well, but there’s room for improvement.

 

 

 

 

Print Friendly



Rodriguez v. United States: Supreme Court Says No to Prolonged Traffic Stops

Posted by:
Category: Constitutional Law, Criminal Law & Process, Public, U.S. Supreme Court
Leave a Comment »

Last week, the Supreme Court decided City of Los Angeles v. Patel, the fourth and final of its search-and-seizure cases this term. In Patel, the Court overturned a city ordinance requiring hotel operators to share information about their guests with the police.

Patel confirmed this as a good term for Fourth Amendment rights, joining Grady v. North Carolina (GPS tracking of sex offender counted as search for Fourth-Amendment purposes) and Rodriguez v. United States (police improperly extended traffic stop to conduct dog sniff of car). Less favorable, though, was Heien v. North Carolina (no suppression of evidence obtained after traffic stop that was based on officer’s reasonable mistake of law).

The remainder of this post will focus on Rodriguez, which strikes me as the most interesting of the Fourth-Amendment series. Broadly speaking, at issue was the extent to which the police can go on a fishing expedition when they pull over a driver for a traffic violation.   Read more »

Print Friendly



Ohio v. Clark: The Supreme Court’s Latest Pronouncement on the Confrontation Clause

Posted by:
Category: Constitutional Law, Criminal Law & Process, Public, U.S. Supreme Court
Leave a Comment »

By guaranteeing criminal defendants the right to confront their accusers, the Sixth Amendment limits the ability of the government to use hearsay evidence against defendants at trial. Importantly, though, the Confrontation Clause only limits the use of statements that are “testimonial” in nature. A pair of Supreme Court cases from 2006 clarified what makes a statement testimonial, but left an important question unanswered. Last week, the Court finally provided an answer (sort of) in Ohio v. Clark.

Clark featured an unusually unsympathetic defendant who was convicted of physically abusing his girlfriend’s two very young children.   Read more »

Print Friendly



Persuading People Who Don’t Want to Be Persuaded

Posted by:
Category: Legal Writing, Public
1 Comment »

I just finished a recent book by Steven D. Levitt and Stephen J. Dubner. If the names Levitt and Dubner sound familiar, it’s because you may have heard of their popular (and interesting) Freakonomics books (here and here). In the book I just finished, Think Like a Freak, Levitt and Dubner set out to teach readers how to “retrain [their] brain[s]” so that they, too, can “think like a freak.” The book defines what it means to “think like a freak” (it’s not a bad thing; it’s critical and curious thinking with a twist), and offers its step-by-step guide. But one chapters stuck out to me as particularly relevant to lawyers (and law students): How to Persuade People Who Don’t Want to Be Persuaded.

Now, the easy thought here is that this advice will apply to brief writing. And, yes, that’s true, but I think we can think of persuasion more broadly. Even a lawyer’s “objective” work has an element of persuasion to it. A demand letter must “persuade” its reader to comply; an internal office memo must “persuade” its reader that the analysis is the correct (or at least best) one.

So, what do Levitt and Dubner say?

First, we must “understand how hard persuasion will be—and why” (168). Read more »

Print Friendly



ObamaCare Upheld . . . Again

Posted by:
Category: Health Care, Judges & Judicial Process, Public, U.S. Supreme Court
Leave a Comment »

1024px-William_Hogarth_004Today the U.S. Supreme Court announced its decision in the widely anticipated case of King v. Burwell, ruling that the language of the statute authorizes tax credits for individuals who use health insurance exchanges set up by the federal government as opposed to the states.  The result of the ruling is that the Affordable Care Act continues to operate and that millions of previously uninsured Americans will continue to receive health insurance under ObamaCare.  Many observers had predicted an adverse ruling from the Court, and a period of uncertainty (if not chaos) if the use of federal health insurance exchanges was struck down.  Today’s ruling by the Court means that there will be no disruption in the workings of the Affordable Care Act.  Coupled with this week’s passage of “fast track authority” for a Pacific trade bill, the ruling also cements a record of legislative accomplishment for President Obama that will add to his legacy.

Somewhat surprisingly, the Court voted 6-3 in favor of the Administration’s proffered reading of the statute.  Some observers had predicted a narrower margin.  Chief Justice John Roberts wrote the opinion for the majority.  The Chief Justice’s opinion also was crucial in upholding the Affordable Care Act in the NFIB v. Sebelius case in 2012, and it therefore appears that future historians will inevitably evaluate John Roberts’ career as Chief Justice in light of his prominent role in the survival of ObamaCare. Read more »

Print Friendly



Law School and Public Policy Forum Offer Web Site on Future of Cultural Assets

Posted by:
Category: Marquette Law School, Milwaukee, Political Processes & Rhetoric, Public
1 Comment »

Set aside the hot subject of a new basketball arena for downtown Milwaukee – that’s a horse race that’s already far down the track – and we still face a lot of major policy questions about the future of the Milwaukee area’s cultural and recreational assets.

Museums, the zoo, parks, playgrounds, the convention center, cultural organizations– these are important assets to the community and keys to the overall quality of life of people living in and visiting the Milwaukee area.

What should do to keep them vibrant and how should we pay for what we do?

Marquette Law School and the Public Policy Forum, a non-partisan local research organization, are partnering in an effort to help educate people on the issues surrounding these important aspects of our community. The two institutions have created a Web-based tool for learning about the issues and developing your own thoughts on what should be done and how it might be financed. Read more »

Print Friendly



Legislative Diplomacy After Zivotofsky

Posted by:
Category: Constitutional Law, International Law & Diplomacy, Public
Leave a Comment »

The Supreme Court’s decision in Zivotofsky v. Kerry held that Congress violated the separation of powers by enacting a statute that purported to compel the President to issue statements that contradict his policy of strict neutrality on the status of Jerusalem. In a recent post, I analyzed a disagreement between the majority and the dissent on the significance of foreign perceptions of U.S. law. I’ve now written a second post on the case, this time exploring Zivotofsky‘s implications for the constitutionality of diplomatic communications between Congress and foreign governments. It’s available over at Lawfare.

 

Print Friendly



The Necessity of Revising

Posted by:
Category: Legal Writing, Public
1 Comment »

keep-calm-and-revise-11I had a student a couple of years ago who described herself as a “one-sit wonder.” That is, in all of her previous schooling, she was quite adept at pounding out a more than serviceable paper in one sitting. Once she arrived in law school, she realized that style of writing was probably not going to work. (And, to be fair, it probably shouldn’t work in any other setting, either, but I do realize that it’s the way most students do write.)

There’s rarely anyone who can pound out what should be considered “final copy” in one sitting. Really good writers realize that writing is a process; the point of that first draft is to give you something to revise. In the writing process, you should be leaving behind a trail of drafts, some of them quite rough, before you finally arrive at the polished final copy.

Why is it important—no, necessary—to revise? Read more »

Print Friendly



The Role of Foreign Perceptions in Zivotofsky v. Kerry

Posted by:
Category: Constitutional Law, International Law & Diplomacy, Public
1 Comment »

On Monday the Supreme Court issued a long-awaited and important decision in Zivotofsky v. Kerry. This was a case about the nature of the President’s power to recognize foreign borders, and it required the Court to address the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2002, which entitled U.S. citizens born in Jerusalem to have “Jerusalem, Israel” listed on their passports as the place of birth. While the statutory entitlement may seem rather mundane, it conflicted with the Executive Branch’s longstanding policy of strict neutrality on Jerusalem’s status by suggesting that the city is located within Israeli borders. Because the Executive policy dictated that passports list only “Jerusalem,” Presidents Bush and Obama refused to implement the statute. Thus the question: Who gets to decide whether the United States will recognize Jerusalem as Israeli territory–Congress or the President?

The Court sided with the President and declared the statute unconstitutional. I wrote a post addressing one of the interesting issues in the case over at Lawfare; it’s available here.

Print Friendly



Predicting King v. Burwell: This Term’s Most Consequential SCOTUS Case

Posted by:
Category: Health Care, Public, U.S. Supreme Court
1 Comment »

 

I am just going to come out and say it:  I have been a long-time proponent of universal, single-payer style heath care for our nation. I am a firm believer that private insurance companies should play no role whatsoever in the provision of health insurance for Americans. It is for this reason that I was so dismayed when President Obama proposed a health care reform regime with the existing private health insurance infrastructure (and Medicaid) as its foundation. I was even among those political wonks who wanted Congress to vote down the Affordable Care Act (ACA) once it became apparent that the ACA exchanges were not going to offer a “public option” to exchange participants. In the years since the law’s passage, I have become an ardent supporter of the law because it is moving our nation in the direction of universal health insurance coverage.

As a law student and constitutional law scholar, I am surprised that the Supreme Court opted to take King on appeal. By the time SCOTUS granted certiorari, the circuit split had been resolved by an en banc ruling of the DC Circuit. What is more troubling is that the petitioners do not appear, by any objective standard, to have standing to bring this suit. Standing is a concept that all first year law students are well acquainted with; it is equally obvious that the petitioners have suffered no judicially cognizable injury by operation of the IRS regulation interpreting the exchange subsidies as applicable to state-run and federally-run insurance exchanges. I have read the petitioners’ standing argument — it is so ridiculous that it does not bear recital here.

Even if one is able to get past the standing issue, an interpretation of the challenged statutory language that petitioners claim limits the availability of subsides to state-run insurance exchanges runs contrary to the canons of statutory interpretation. A comprehensive law that regulates the health insurance system of an entire nation and affects a good portion of our nation’s economy should not hinge on the meaning of a term that is ambiguous in isolation, but definite and decisive when taken in the context of the statute. The term “state,” as used in the ACA, has a broad meaning that encompasses “state” in the scholarly sense of a nation-state and the customized meaning of “state” as a sub-national unit of government.

There are many moral and political arguments that one can make in favor of upholding the decisions of the DC and Fourth Circuits. As a law student writing from a legal perspective, I put these arguments to the side. What is unfortunate for the four (or more) members of the Supreme Court who voted to take up this silly challenge is that the law (and precedent) is not on their side. I predict that the Supreme Court will uphold the decisions of the DC and Fourth Circuits on a 5-4 vote, with Chief Justice Roberts joining the court’s four moderate justices.

Print Friendly