Speech Rights of Public Employees: Contextualizing Garcetti

Since its recognition of the right of public employees to speak on matters of public concern in Pickering v. Board of Education, 391 U.S. 563 (1968), the Supreme Court has proven less than generous in protecting that right.  Of particular importance, the Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006), that if employees speak pursuant to their official work duties, they are not speaking as “citizens,” and their speech enjoys no First Amendment protection.  The holding thus substantially restricts constitutional safeguards for government whistleblowers.

Paul Secunda helpfully places Garcetti‘s formalism in a broader jurisprudential context in a new paper on SSRN, “Neoformalism and the Reemergence of the Rights/Privilege Distinction in Public Employment Law.”  

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Lubar Fund for Public Policy Announced

Marquette University Law School The University has announced today that Sheldon B. Lubar has made a $2 million gift to the Law School. Mr. Lubar is a much-admired business and civic leader: he is the founder and chairman of Lubar & Co., has been a presidential appointee with Senate confirmation, and has engaged deeply in seeking to improve this region. The gift, one of the largest in the history of the Law School, will create the Lubar Fund for Public Policy. The Lubar Fund will support public policy research and initiatives, including conferences and symposia; faculty research; curriculum development; and programs that enhance the teaching of public policy issues at Marquette Law School. The gift represents extraordinary confidence by a renowned business and civic leader in our public policy work at the Law School. Although that work began to be distinctly recognized with the appointment of Mike Gousha several years ago, it has been my sense—more than an intuition but still evolving into a full plan—that we are only scratching the surface here. I look forward to our effort to mine this field, for the betterment of the community, and am grateful to Shel Lubar for his support and confidence.

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Do Briefs Matter?

I suspect many lawyers have had the experience of briefing and arguing a case before an appellate court, and then receiving an opinion back from the court that seems like it was written for another case, with the court simply not engaging with the parties’ major arguments.  Although anecdotes along these lines abound, no rigorous studies are available to show us how common such judicial nonresponsiveness is.

Part of the problem is that researchers would have to read a large volume of briefs and opinions, and then painstakingly sort out exactly which arguments were addressed and how thoroughly.  Not only would the work be tedious and time-consuming, but it would also be subject to reliability concerns in light of the subjectivity in deciding whether and how satisfactorily a court has responded to an argument.

Chad Oldfather, Joseph Bockhorst, and Brian Dimmer ’09 think they have a solution to these difficulties: automated research that uses computers to compare a large number of briefs and opinions quickly and objectively.  They describe their project in a new paper on SSRN entitled “Judicial Inaction in Action? Toward a Measure of Judicial Responsiveness.”  

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