Finding a New Canon of Statutory Interpretation in an Old Case

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Yesterday, Professor Anita Krishnakumar gave an intriguing presentation on her latest paper entitled “The Hidden Legacy of Holy Trinity Church: The National Narrative Canon.”  A copy of her paper can be found here.  In her paper, Professor Krishnakumar explores the controversial, but not often discussed, portion of the famous Holy Trinity Church decision.  The well-known, and still somewhat controversial, portion of the decision finds the Court relying on the “spirit” of the statute instead of its plain language — with support from legislative history.  The more controversial section of the opinion argues that even setting aside traditional methods of statutory interpretation, the statute — which was essentially an anti-immigrant labor statute — could not be enforced against the employer church because the United States of America “is a Christian nation.”  Professor Krishnakumar argues that this methodology constitutes an interpretive canon for statutory interpretation: the national narrative canon.  She also points to other Supreme Court opinions that use a similar methodology where the Court not only uses traditional interpretive canons, but also this national narrative canon — relying on history and public norms — in deciding the cases.

Professor Krishnakumar warns that this newly-identified, but long extant, national narrative canon poses a threat to the perceived legitimacy of courts’ statutory interpretation because it often runs contrary to the text of the statute, produces bad policy, and can create an unfair exception for a particular entity.  While the national narrative canon has been used selectively, it will be interesting to see if the Supreme Court — and indeed other courts — moves more towards this public norms approach to statutory interpretation.  In this age of New Textualism, it strikes me as likely that — as seen with the cases Professor Krishnakumar analyzes — to the degree its used, the Court will couple the national narrative canon with another more traditional approach to statutory interpretation in reaching its decision.  In this regard, the Court will continue to make the national narrative canon less effective in terms of precedential value, seemingly serving more as dicta.  However, its potential effect  should not be understated, as these portions of the Court’s opinion can still have powerful effects in the political realm in ways which may run contrary to our society’s commitment to pluralism and diversity.

Facebook and Work Do Not Mix, Part Deux

Posted on Categories Labor & Employment Law, Speakers at Marquette1 Comment on Facebook and Work Do Not Mix, Part Deux

Facebook We were just discussing this issue on on the Marquette Faculty Law Blog last week and I gave my two cents in the comments section to that post.

Now, another example from the real world of how Facebook and work are interacting more and more (via Sky News):

Virgin Atlantic has fired 13 cabin crew after they posted comments on Facebook, calling passengers “chavs” and suggesting the planes were full of cockroaches.The airline said the employees’ behaviour was “totally inappropriate” and “brought the company into disrepute”.

It launched disciplinary action last week amid a row over a group created on Facebook, which has now been removed, about planes flying from Gatwick.

Claims that the airline’s jet engines were replaced four times in one year were made on the group’s discussion board.

Continue reading “Facebook and Work Do Not Mix, Part Deux”

Panel Discussion on the Fairness Doctrine, But Will It Matter?

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I had the pleasure of moderating a panel discussion on the potential for and desireability of a return of the Fairness Doctrine sponsored by the Marquette University Law School student chapter of the Federalist Society. The panelists were Chicago radio talk show host Guy Benson and local talk show host Charlie Sykes in “opposition” and Marquette Communications Professor Eric Ugland and local talker Joel McNally, who were in “favor” or, at least, not resolutely opposed.

The Fairness Doctrine was a set of FCC policies that required broadcast stations to address matters of public interest (an aspect that was not enforced) and that required some measure of even-handedness in addressing such issues. Those of us who are a little older will recall news broadcasts in which, usually at the tail end, someone was presented to give “equal time” in opposition to an earlier editorial view expressed by the station. This was, as middle-aged fans of Saturday Night Live will recall, the premise for Gilda Radner’s hard-of-hearing Emily Latilla, who was brought on to offer “responsible opposing view points.” (“What’s all this fuss I hear about an eagle rights amendment?”)

The Supreme Court upheld the doctrine over a constitutional challenge in the late ’60s, but it was abandoned during the latter years of the Reagan administration. Continue reading “Panel Discussion on the Fairness Doctrine, But Will It Matter?”

Legal and Other Obstacles to Community Rebuilding Efforts in New Orleans

Posted on Categories Legal Scholarship, Speakers at MarquetteLeave a comment» on Legal and Other Obstacles to Community Rebuilding Efforts in New Orleans

At yesterday’s faculty workshop, Professor John Lovett of Loyola-New Orleans gave an eye-opening presentation on his latest scholarship, entitled “The Winding Road to Recovery: Observations on Property Relations Three Years After Hurricane Katrina.” Professor Lovett detailed the devastation to single-family and multi-family housing in New Orleans. He then explained how different governmental programs — responsible for billions of dollars earmarked for rebuilding and repopulation efforts — have failed or had limited success. Continue reading “Legal and Other Obstacles to Community Rebuilding Efforts in New Orleans”

Tussle of the Titans: Secunda v. Carpenter

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There was a great debate this noon between our own Professor Paul Secunda and Dale Carpenter of Minnesota. The question before the house was the meaning of Lawrence v. Texas, a 2003 Supreme Court decision which struck down a state law prohibiting homosexual sodomy. Both Professors Secunda and Carpenter agree that the majority decision, written by Anthony Kennedy, was rather opaque (I regard this as kind), leaving us uncertain as to just what type of right it recognized and how similar claims might be assessed in the future.

In Professor Carpenter’s view, Lawrence should be read to recognize a fundamental right to sexual autonomy. State interference with this right should presumably be subject to strict scrutiny. Professor Secunda argues that Lawrence cannot be read in this way, but, instead, ought to be understood as a move away from strictly tiered scrutiny toward a balancing approach applying rational basis scrutiny with, I suppose, more or less “bite” depending upon the nature of the liberty interest infringed. It is my impression that the nature of this more “carniverous” form of review (I can’t help myself) would depend on some notion of what forms of human autonomy are most compelling and a regard for the need to protect discrete and insular minorities, a view that, for me, recalls John Hart Ely’s  masterwork Democracy and Distrust.

Both Professors Secunda and Carpenter argued forcefully for their positions. Continue reading “Tussle of the Titans: Secunda v. Carpenter”

What Do Reasonable Jurors Get to Decide After Scott v. Harris?

Posted on Categories Legal Scholarship, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on What Do Reasonable Jurors Get to Decide After Scott v. Harris?

This is my second post commenting on Dan Kahan’s talk last week about his paper, co-authored with David Hoffman and Donald Braman, entitled “Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism.” (It was originally one post but got long.) Scott v. Harris is the case involving the video of the police chase, a video the Supreme Court found so compelling that it ruled the denial of summary judgement to the defendant police officer was error. Kahan and his co-authors argue that Scott harmed the legitimacy of the justice system when it concluded that all reasonable people would view the video tape the same way. In fact, Kahan et al. demonstrate that a significant number of potential jurors disagree with the majority’s view.

On Friday, I tangled with the article’s proposed solution to the problem of denying those jurors their day in court. Today, I want to examine the decision itself–did the majority really rule that no reasonable juror could conclude that the force used in the case was excessive? That’s actually not the way it looks to me. Rather, it looks to me like, after a preliminary finding about dangerousness, the Scott majority pretty much threw the whole fact vs. law distinction out the window. Scott doesn’t just insult “unreasonable” jurors; even reasonable jurors get short shrift.

Continue reading “What Do Reasonable Jurors Get to Decide After Scott v. Harris?”

Imagining the Reasonable Jury

Posted on Categories Legal Scholarship, Speakers at Marquette, U.S. Supreme Court1 Comment on Imagining the Reasonable Jury

As has already been noted here, Dan Kahan dropped by the law school earlier this week and gave three fascinating presentations to the law school community. One, which Michael commented on earlier, was on his paper (co-authored with David Hoffman and Donald Braman) criticizing the Supreme Court’s decision in Scott v. Harris, entitled “Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism.”

In brief, Kahan and his co-authors argue that the Supreme Court went awry in Scott by refusing to credit the views of “an identifiable subcommunity” as being within the realm of those held by “reasonable jurors.” This refusal to credit such beliefs with reasonableness, they argue, is potentially destructive of the legitimacy of the justice system.

It’s a fascinating argument, backed by a novel empirical approach to assessing the views of “reasonable jurors” in a use of force case like Scott. But I’m left with a question about the theory, and a question about Scott: Today, I want to focus on the theory: How are judges to tell when the views of “an identifiable subcommunity” are at issue, making summary judgement less appropriate? Monday, I’ll focus on Scott: I’m not certain that the Scott holding is as Kahan et al. describe it, which way may mute their concern. Continue reading “Imagining the Reasonable Jury”

The Hierarchical-Communitarian Worldview

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One thing that most fascinated me about Dan Kahan’s findings (as reported in his Boden Lecture here on Monday) was the lack of people appearing in the quadrant (on his “group-grid” framework) that would be characterized as hierarchical and communitarian (the flip of that, also apparently lacking, would be individualistic egalitarians–more on that later). The gap is striking since hierarchical communitarians are heavily represented in history among philosophers and theologians. Plato and Aristotle would both be hierarchical communitarians, as would Aquinas (pictured above) and other of the Church fathers. Further afield, in China we’d find Confucius and his dialectics and in India, Manu and the dharma shastra.

In many ways, hierarchical communitarianism would appear to be the most realistic of the four possible configurations of beliefs. On the one hand, it recognizes that natural talents are unevenly distributed. Some people are more creative than others, some more intelligent, some have higher emotional quotients and a greater capacity to work with others, etc. Some among us need more guidance from outside, some are wiser. It also, again more realistically, recognizes our interdependence. On the normative side, hierarchical communitarians would celebrate that diversity and appreciate how it contributes to a rich, well-functioning and interesting community and would therefore encourage an awareness among others of the virtues of community and diversity. Continue reading “The Hierarchical-Communitarian Worldview”

Kahan on Law Enforcement in the Inner-City

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Yale Professor Dan Kahan delivered a terrific public lecture here yesterday on his theory of cultural cognition.  I am excited to see his program today with Milwaukee County District Attorney John Chisholm, moderated by Mike Gousha.  For more than a decade, Kahan has been one of the legal academy’s most original and thought-provoking writers on inner-city law enforcement.  It should be very interesting to hear him discuss the particular challenges facing Milwaukee with D.A. Chisholm, who has already initiated several intriguing new programs during his short time in office.

In preparation for the program, I have been reviewing a couple of Kahan’s classic law review articles on inner-city policing.  Continue reading “Kahan on Law Enforcement in the Inner-City”

When Police Officers Use Deadly Force, Can Judges Ever Be Trusted to Judge Them?

Posted on Categories Legal Scholarship, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on When Police Officers Use Deadly Force, Can Judges Ever Be Trusted to Judge Them?

That is the question that lurks behind a fascinating new paper by Dan Kahan, David Hoffman, and Donald Braman. The paper responds to Scott v. Harris, 127 S. Ct. 1769 (2007), in which the Supreme Court held that summary judgment was properly granted to a police officer in a § 1983 lawsuit challenging the officer’s decision to ram his police car into the car of a fleeing motorist. One of the paper’s authors, Dan Kahan (pictured at left), is visiting the Law School today to present the paper at a faculty workshop. (Dan will also be delivering the Boden Lecture here late this afternoon.) The paper begins by taking issue with a particular, case-specific assertion by the majority in Scott, but then opens up some much deeper questions about the roles of judge and jury in a culturally diverse democracy.

The majority in Scott relied on a videotape of the fleeing motorist, which purported to show that he was driving in such a dangerous manner as to justify the use of deadly force to stop him. The majority found the videotape sufficiently compelling that, in its view, no reasonable juror could find in favor of the motorist on his claim that the police officer had acted unreasonably in violation of the Fourth Amendment–thus, warranting a grant of summary judgment. Kahan and his coauthors, however, showed the same videotape to a diverse sample of 1,350 Americans, and found evidence of some disagreement with the majority’s view of the case. Thus, had the case been permitted to go to a jury, there is a statistically sound basis for expecting that one or more of the jurors would have had a considerably less positive view of the officer’s conduct than did the members of the Supreme Court.

Continue reading “When Police Officers Use Deadly Force, Can Judges Ever Be Trusted to Judge Them?”

Judge White Visits Her Alma Mater

Posted on Categories Milwaukee, Speakers at Marquette, Wisconsin Court SystemLeave a comment» on Judge White Visits Her Alma Mater

Yesterday’s On the Issues with Mike Gousha featured a conversation with Marquette Law School graduate and Milwaukee County Circuit Court Judge Maxine Aldridge White. Judge White’s journey from growing up in the Mississippi Delta as the daughter of a sharecropper to her current position on the bench is a compelling and inspiring one. Judge White reflected on her time at the Law School and how her experience here helped shape and influence her career. In particular, she pointed to the support and guidance provided her by Professor Phoebe Williams. Continue reading “Judge White Visits Her Alma Mater”

Marquette Law School in the Early Twentieth Century

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The second installment of the symposia celebrating the 100th anniversary of the founding of Marquette Law School was convened earlier today. The same panel of scholars from the first session returned to discuss the period from 1908 to 1940.  Joseph Ranney began by explaining how this time period saw the bureaucratization and professionalization of both legal education and the bar, and how these trends shaped the development of the Marquette Law School. In particular, Mr. Ranney noted the importance of the creation of the American Association of Law Schools, which sought to establish an accreditation process for law schools, and the transformation of law school faculties from exclusively part-time/adjunct professors to a combination of full-time and part-time/adjunct professors. Continue reading “Marquette Law School in the Early Twentieth Century”