Thursday, July 30, 2015

Disability Constitutional Law

By Professor Michael Waterstone
This was originally posted on American Constitution Society for Law And Policy

This week is the 25th anniversary of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in employment, government programs and services, and privately owned places of accommodation. It was and remains an ambitious law, requiring employers and business owners to make reasonable accommodations, at their own expense, to be more accessible to people with a wide range of disabilities. And although there is still a long way to go, the ADA should be celebrated for its role in moving people with disabilities into the mainstream of society.

Monday, July 27, 2015

Closing Thoughts on The Science of Learning

By Professor Aaron Caplan

This post is part of the Strange Bedfellows series at Prawsblawg.

In this guest blogging series, I’ve had fun identifying connections between canonical cases not ordinarily taught together.  But is it any more than a parlor game?

For a teacher with years of familiarity with the cases, it can be invigorating to rearrange the furniture—and students always benefit from an invigorated teacher.  The fear is that giddily wandering away from the orthodox doctrinal silos might create an obstacle for students who need to know and apply the orthodox solutions to problems.  I’m convinced that when handled properly, exposure to these strange bedfellows actually leads to better comprehension of the orthodox approach.  This is primarily because a semester with a healthy amount of unexpected (but valid) juxtapositions will inevitably take advantage of two strategies favored by researchers into the science of learning: interleaving distinct but related topics, and repeated exposures spread over time.

The silo approach (a unit on the Commerce Clause, followed by a unit on the Spending Clause, and so on) presumes that it would be unduly confusing for students to shift gears, hurting their comprehension. But studies show the opposite: interleaving the presentation of related but distinct topics results in better mastery of each topic. Learners understand the relationships among silos better, and also—perhaps unexpectedly—they understand each silo better.

Friday, July 24, 2015

Subsequent History Surprises

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

Most Constitutional Law classes discuss how the system can correct its mistakes. If one branch or level of government errs, others can respond, pushing the substance of the law to a new equilibrium. Teaching the subsequent history of anti-canonical cases is one good way to demonstrate this point. Constitutional amendments erased Dred Scott and Pollock, later court decisions overruled Lochner, the Pregnancy Discrimination Act made Geduldig largely irrelevant, and the Georgia Supreme Court held that the sodomy statute upheld in Bowers v. Hardwick violated the state constitution. To show how SCOTUS does not always have the last word, my casebook includes short units called “Flash-Forwards” that tell the rest of the story (or at least some of it). Once students are attuned to possibilities outside the courtroom, they can have a good classroom discussion about what a concerned citizen, legislator, or executive branch official might do in response to a troubling court decision.

It is less common to spend time on the subsequent history of cases that are canonical—the ones considered good law, never overruled. As usually presented in casebooks, Cooper v. Aaron (1958), Palmore v. Sidoti (1984) and United States v. Carolene Products (1938) are all cases where the Court got things right, guiding the system to a proper equilibrium. But in each of these cases, the victory promised in the canonical opinion played out differently on the ground, with the results for the prevailing party being less than advertised. The subsequent histories of these canonical cases could in theory be as deserving of class time as the subsequent histories of anti-canonical cases—the basis for a discussion about the value of a court victory.

Tuesday, July 21, 2015

U.S. DOJ criticizes DEA informant program

 By Professor Alexandra Natapoff

This was originally posted on 

The Office of the Inspector General (OIG) of the U.S. Department of Justice has just released this report, Audit of the Drug Enforcement Administration’s Confidential Source Policies and Oversight of Higher-Risk Confidential Sources.

This is an important report for a number of reasons.  The press and the public have had trouble getting basic information from the DEA about its informant policies and usage: this audit fills in some of those informational gaps. The audit identifies numerous troubling practices within the DEA and offers new insights into the kinds of risks that are routinely run by federal officials who rely on criminal informants.  The audit also strengthens the case for a pending bill in Congress entitled "The Confidential Informant Accountability Act," H.R. 2985, introduced by Rep. Stephen Lynch (D-MA). That bill would require the DEA, along with the FBI and other federal investigative agencies, to report to Congress the serious crimes committed by their informants, as well as their payments and rewards.  As described in greater detail below, the OIG found that the DEA was seriously deficient in documenting and controlling the crimes committed by its informants.

Monday, July 20, 2015

Why So Tense?

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

A few blockbuster cases remain for SCOTUS to decide this term, and given the current make-up of the Court, this means a high likelihood of fire-breathing dissents. Teachers—and particularly casebook authors—need to decide which lessons, if any, to draw from these dissenting opinions. For myself, I always like to spend some time on at least a few throughout the semester, for what they teach us about the substance of the law and about the art of advocacy.

The substantive lesson comes in large part from considering which cases provoke verbal fireworks and which do not. At the outset, constitutional law is more likely than other legal subjects to provoke heat, and within the Con Law canon some topics provoke more flame wars than others. The flamer is trying to signal that something important is happening, so a suitable question for the class can be “why are they so upset?” This is especially valuable when a case that seemingly involves low stakes provokes what seems like a rhetorical overreaction, as in Caperton v. Massey Coal (2010) (judicial recusal) or BMW of North America v. Gore (1996) (punitive damages).

Friday, July 17, 2015

The Frame Game

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

The Con Law canon contains many opportunities to teach how the choice of frame greatly can affect the outcome of a case. In many cases, an advocate’s first and most important task is to convince the judge properly fill in the blank in the following sentence: “This is a case about ____.”

My favorite example is Johnson v California (2005), where a prisoner objected to a state department of corrections policy to house inmates with cellmates of the same race. The majority filled in the blank by concluding that “This is a case about race,” which meant that strict scrutiny applied. The dissenters filled in the blank by concluding that “This is a case about prisons,” which meant that a standard much more deferential to governmental decisions would apply. Nothing in existing law forced the court to choose one frame or the other, making Johnson a great opportunity to explore methods of persuasion with students. What would you say to convince the judge to use your frame instead of your opponent's?

Wednesday, July 15, 2015

Precedential Floors and Ceilings

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

The strange bedfellows presented so far in the series have been pairings of cases that reveal something interesting or unexpected about the substance of constitutional law. But as we all know, courses in Constitutional Law are required at most schools only in part for their substance. Since the substance is subject to (comparatively rapid) change, much of the value in the course is in how it can teach the set of legal skills necessary when dealing with a controlling text that where “majestic generalities” predominate. The next few posts looks at cases that could be taught together (or at the very least, linked together orally if not taught the same day) for their similarities of legal reasoning.

A recurring issue in any young area of law—and US Constitutional Law is young when compared to the common law topics like contracts and property—is how to reason from sparse precedents. Specifically, in an area with only a handful of decisions on point, do those precedents represent a ceiling or a floor?

Monday, July 13, 2015

Streams of Commerce

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

Those of us who also teach Civil Procedure are familiar with the “stream of commerce” concept within the constitutional law of personal jurisdiction. Under circumstances that the Supreme Court has notoriously failed to make clear, an entity that manufactures and sells a product in one state may be subject to personal jurisdiction to the courts of another if the product causes injury after traveling there through “the stream of commerce.” Less well remembered is that the “stream of commerce” once had a significant role to play in the law of the Commerce Clause.

These two streams of commerce are taught under different pedagogical silos, but may have something to say to each other.

During the Lochner era, SCOTUS cases involving the commerce power attempted to draw a line between transactions deemed to have “direct” impact on interstate commerce (which Congress could regulate) and those with only “indirect” interstate impact (which Congress could not regulate). Conversely, the federal government was allowed to impose regulations on interstate commerce that affected local commerce, so long as their impact was “indirect.” In appropriate cases, SCOTUS was willing to see “direct” impact when purely in-state activities took place within a stream of commerce that would predictably flow to other states.

Friday, July 10, 2015

Alcohol All Over The Place

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

For a topic that supposedly is not part of the standard Con Law curriculum, federal alcohol prohibition—and its repeal by the 21st Amendment—appears remarkably often in the typical syllabus.

The two alcohol-related cases most firmly established in the canon and reproduced in whole or in part in virtually every Con Law casebook are South Dakota v. Dole (1987) (allowing Congress to condition receipt of federal highway funds on states raising their drinking ages to 21) and Craig v. Boren (1976) (adopting intermediate scrutiny for sex-based classifications under equal protection, in a case where state established different drinking ages for males and females). Other alcohol cases sometimes taught in Con Law or related electives include Wisconsin v. Constantineau (1971) (invalidating on procedural due process grounds a statute allowing police to forbid sales of alcohol to problem drinkers), Larkin v. Grendel’s Den (1982) (invalidating on Establishment Clause grounds a zoning ordinance that gave veto over liquor licenses to nearby churches); 44 Liquormart, Inc. v. Rhode Island (1996) (invalidating state liquor advertising laws under the commercial speech doctrine), and Granholm v. Heald (2005) (invalidating under the dormant commerce clause doctrine a state law forbidding interstate direct-to-consumer wine sales while allowing similar intrastate sales).

Wednesday, July 8, 2015

Eugenics All Over The Place

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

It’s well known that Buck v. Bell (1927) and Skinner v. Oklahoma (1942) are the leading SCOTUS cases on the constitutionality of eugenic sterilization laws. But the legacy of the eugenics movement appears elsewhere in the Con Law canon—including such greatest hits as Loving v. Virginia (1967), Washington v. Davis (1976), and Cleburne Living Center (1985).

To best see the connections, it helps to know some of the history of intelligence testing. Researchers in the early 20th century attached a number of terms, intended to be clinical, to levels of intellectual development considered abnormally low. The two original terms were idiot and imbecile. An idiot was pre-verbal, with no more intelligence than an infant. An imbecile could use language, but had the intelligence only of a pre-pubescent child. Later researchers became concerned that there was a class of adults who could speak and function above the imbecile level, but should still be categorized as abnormally stupid. They might be good for factory labor, but they tended to be "immoral" and prone to "criminality." These were the morons. When Oliver Wendell Holmes, speaking of Carrie Buck’s genealogy, said that “three generations of imbeciles are enough,” he misspoke: at best, the allegation was that Carrie Buck was one of generations of morons. And she wasn’t one of those either. See Paul Lombardo, Three Generations, No Imbeciles, 60 NYU L. Rev. 30 (1985). The blanket category for idiots, imbeciles, and morons was feeble-minded.

Monday, July 6, 2015

Carolene Products, Skinner v. Oklahoma, the Japanese Internment Cases, and West Virginia v. Barnette

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

For those accustomed to the silo method, this collection of cases will seem really weird. “Barnette is a First Amendment case! Skinner is a fundamental rights case! Hirabayashi and Korematsu are equal protection cases! Carolene Products is an economic substantive due process case! They don’t belong together!” Actually, they teach extremely well together, because each deals with the central question of choosing the appropriate level of judicial scrutiny. Do some types of cases deserve more intense judicial review than others?

In the spring of 1937 the reasoning of the Lochner era came crashing down, and with it the Supreme Court’s commitment to skeptical review of economic legislation (whether that review involved the Commerce Clause, the Due Process Clause, or other areas of doctrine). Carolene Products (1938) is part of that story, announcing a very deferential form of rational basis review for economic regulation, but including a footnote suggesting that courts might choose to be more stringent in individual rights cases. Rather quickly—within the next six years, in fact—the Court had to decide if it was really going to adopt a two-level approach.

Wednesday, July 1, 2015

Citizens redistricting panels survive test

By Professor Jessica Levinson

This op-ed originally appeared in the Sacramento Bee. Levinson has also provided related commentary to the San Francisco Chronicle, Los Angeles Times, AZ Central and NBC 4-Los Angeles.

The U.S. Supreme Court just saved independent redistricting commissions, but a political earthquake could be coming next term.

Writing for a 5-4 majority, Justice Ruth Bader Ginsburg on Monday upheld the ability of citizens commissions to draw congressional district lines. At issue was the elections clause of the U.S. Constitution, which provides that the “Legislature” in each state shall prescribe the “times, places, and manner of holding elections for senators and representatives.”

The majority essentially found that the word “Legislature” includes not just elected lawmakers but also citizens acting in a legislative capacity, for instance when exercising their rights under initiatives or referendums to enact or repeal laws that affect congressional elections.

Had the court ruled the other way, it could have thrown the validity into question of other numerous other laws passed via direct democracy that affect congressional elections – open primaries, voter identification requirements, vote by mail provisions and early voting. In addition, California’s redistricting commission, likely legally indistinguishable from Arizona’s commission, now appears safe from this type of legal challenge. This ruling maintains the status quo throughout the country.