A Win-Win Compromise on the Wall

By Professor Karl Manheim

We don’t give Donald J. Trump all the credit he deserves. He’s been arguing for a brilliant bi-partisan solution to the immigration problem for years, and the rest of us have simply ignored him. Is this the way to treat serious policy proposals by the President?

We’re all well aware of those mispronunciations, malapropisms, garbled words and covfefes, that dot Trump’s tweets and speeches. But, these are equally signs of genius at work. We should listen to his bigly words very carefully.

The mainstream press began reported in early 2016, when Trump was a candidate, that he was energizing his base with tough talk of putting up a beautiful wall at the southern border, one that Mexico would pay for. Closer inspection of the audio tapes at his speeches reveals that it wasn’t a wall than Trump wanted, but a Walmart!

The Walmart demand is actually quite clever, and one that should earn strong bipartisan support. First, building a 1,000 mile long Walmart on the border will ramp up infrastructure investment big time, improve our export balance and bring high-paying construction and manufacturing jobs back to the U.S. (except for those jobs that have to be performed on the Mexican side).

But its principal function will be to keep undeserving immigrants from crossing our borders illegally. Here’s how it would work:

The mega-Walmart would be positioned directly on the U.S. Mexican border, with north-facing entrances on the U.S. side and south-facing entrances on the Mexican side.

Mexicans and other southern immigrants would enter the Walmart through south side entrances. Americans and our visitors would enter through north side entrances. Once inside the mega-mega-store, all customers would be treated alike. They could mingle and purchase goods and services in either dollars or pesos (so long as the peso remains a convertible currency). Persons who need medical attention can visit one of the many pharmacies located at the north and south sides of the building. As many pharmacies are already doing, Walmart Pharmacy might add medically-licensed staff that can make diagnoses, prescribe drugs, give shots and make recommendations for hospital transfer where necessary. Current national health insurance plans would apply to the respective health care services provided at the northern and southern pharmacies. However, the Mexican and U.S. governments might find this a much more effective way to deliver health care services to the poor and appropriate additional funds for the purpose.

Mexicans and other immigrants seeking entry to the U.S. can begin the process in the comfort of familiar Walmart surroundings. First, they’d want to speak to NGO representatives who are given space (perhaps in the housewares aisle) to set up consultations. In some cases, applicants for asylum, family unification, H1B visas, and other lawful categories of entry, including just plain old temporary visitor visas, would then be directed to official U.S. immigration officers, also stationed within Walmart.

It is likely that only a very few of these referred persons would be permitted to exit at the northern (U.S.) side of Walmart unaccompanied. All persons exiting the north doors will need to show U.S. documentation. Converse for the south doors. Anyone denied exit at their preferred door, can always go back through the door they entered. (But you won’t be able to shop at this Walmart without some proof of passage within your own country).

There are solutions for those who want to further pursue immigration credentials, if denied at first. They will obviously need temporary accommodations until their cases can be acted upon. Walmart owns and manages one of the largest real estate portfolios in the U.S. What could be better than a captive audience of renters? I’m envisioning housing in a gated community, say adjacent to the mega-Walmart, that is far less terrifying and costly than those housing units rimmed by steel bars. Walmart could also partner, through Walmart Marketplace, with third-parties (churches, NGOs, home builders) to build new housing. Costco is already selling 300 sq. ft. houses for a bit over $7,000. That’s an order of magnitude less than what the Border Patrol currently spends on housing immigrants. Other firms sell small houses for $500 to $12,000; again cheaper than a holding cell.

The entire operation is humane, efficient, safe and likely very profitable to Walmart and America. What’s not to like? It was sheer brilliance for President Trump to propose this solution to secure our borders. He must keep trying. And the press and members of Congress should open their ears to hear what our Commander in Chief is really saying. Don’t let his words of wisdom trail off to the point where they become indecipherable, and don’t attack him for the wrong reason. Remember, genius and madness are sometimes hard to tell apart.

On Independence Day, a Renewed Focus on Individual Liberties

By Professor Gary Williams

"I think eternal vigilance is the price of keeping it (the Bill of Rights) in working order." – Professor Lawrence Tribe, Harvard Law School 

I am reminded of the critical importance of vigilance as we approach Independence Day 2018. The pictures of innocent children in cages after our government separated them from their parents could not be more striking evidence of violation of the 8th Amendment prohibition of cruel and unusual punishment. President Trump tweeted that all aliens, even those who may be seeking asylum, should be deported “When somebody comes in we must, with no Judges or Court Cases, bring (sic) them back from where they came.”[1] This disparages the right to due process of law guaranteed to all, including noncitizens, by the 5th and 14th Amendments.

Our revered system of checks and balances, designed to protect our democracy, appears to be in peril. The Supreme Court just upheld the Muslim ban despite clear evidence it was motivated by prejudice and politics, not “national security.” Congress is in danger of becoming a “rubber stamp” because members of the President’s party are afraid to oppose his policies or criticize his behavior.[2]

The First Amendment of the Bill of Rights, born out of the founders’ quest to form “a more perfect union,” allows me to retain hope. The brave young survivors of the Parkland High School mass shooting have boldly utilized their right of free speech to educate the public about their demand for sensible gun control legislation. The media have fearlessly exercised freedom of the press to help uncover and expose to the world, through words and pictures, the family separations resulting from implementation of the “zero tolerance” policy. Citizens have powerfully exercised their right to protest in response to that coverage, forcing the government to rescind the policy of separating children from their families, despite the initial insistence of government officials that family separation was “mandated by law.” And lawyers have effectively utilized the right to petition the government to convince Federal District Court Judge Dana Sabraw to order a halt to most family separations at the United States border, and reunification of all families that were separated by the government until the due process guarantee is satisfied.[3]

The vigilance of those high school students, media members, everyday citizens and attorneys has kept the Bill of Rights in working order. On July 4, each of us should honor their vigilance by pledging to exercise vigilance whenever we can.

-----

[1] @realDonaldTrump, June 24, 2018.
[2] "What he (Trump) has taken is the legitimate hopes and fears people have had for change in Washington and he has morphed that into -- given the strength of his personality -- a whole host of different loyalty tests about him… People come up privately numerous times a day and talk about different frustrations with the President's style…. His caustic nature, his latitude with the truth, but they won't voice those opinions publicly for fear of reprisal." Representative Mark Sanford, Republican, CNN, June 22, 2018.
[3] “California federal judge orders separated children reunited with parents within 30 days,” Alene Tchekmedyian and Kristina Davis, Los Angeles Times, June 27, 2018

Professor Levitt's Testimony on Census Citizenship Question

On May 8, 2018 Loyola Law School, Los Angeles Dean for Research Justin Levitt testified before the U.S. House Committee on Oversight and Government Reform regarding the 2020 census. An excerpt appears below:

In the current political climate, asking a question about citizenship status of every individual in the country is no mere request for information. Those who work in and with communities skeptical about the role of the federal executive branch fear that the question will prove explosive. Secretary Ross made the determination to ask this question despite his own admission that the career staff of “the Census Bureau and many stakeholders expressed concern [that doing so] would negatively impact the response rate,” and despite the absence of any opportunity to test that impact before implementing the change.

Read his full testimony below:

Finding a Bright Line on Expression in Masterpiece Cake Case

Loyola Law School, Los Angeles Professor Kimberly West-Faulcon is following the U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case stems from baker Jack Phillips’ refusal to make a wedding cake for a safe-sex couple, which challenged the refusal based on the Colorado Anti-Discrimination Act.

Professor West-Faulcon, Loyola’s James P. Bradley Chair in Constitutional Law, observes:

This is a case that tries to pit our constitutional right to be free from government censorship of our expression against civil rights protections for same-sex couples. I think finding a sensible place to draw the line on what constitutes artistic expression would mean people who run store-front bakeries must serve all of their products to all of the public because a bakeshop is a public accommodation. If you are more “artist” than baker, I’d think the Court would expect you to have a private studio with more exclusivity than a place where the general public goes to buy cookies.

On Independence Day, Professor Sees Hope in Constitution

By Professor Gary C. Williams
Johnnie L. Cochran, Jr. Chair in Civil Rights

As Independence Day approaches I am apprehensive. Terms such as “Muslim ban” and “fake news” are bandied about with impunity. The concepts of “extreme vetting” and building a wall alarm me. At the same time I am grateful. Three essential building blocks in the foundation of this nation - freedom of the press, the right to petition the government for redress of grievances, and the right of free speech - are at the forefront as we confront today’s challenges.

The press has been courageous in fulfilling its role under the first block. It has reported truthfully the actions of politicians of all stripes. It is reporting on, and investigating, Russian interference with our elections. And despite presidential claims that the press is “the enemy of the people,”[1] it has persisted in reporting on the actions and misrepresentations of our government and its leaders.

Our profession has seen some of its finest moments helping the defenseless utilize the second building block – the right to petition the courts for redress of grievances. Lawyers volunteered to represent people caught in the dragnet cast by the “Muslim ban.” Lawyers toiled from dawn to midnight crafting briefs challenging the worst aspects of that ban. And our courts have, thus far, remained steadfast in enforcing the principles of equal protection and freedom of religion - holding that a ban based upon religious affiliation violates the basic tenets of the Bill of Rights.

Dr. Martin Luther King once declared: “Every person of humane convictions must decide on the protest that best suits his [and her] convictions, but we must all protest.”[2] The ability to protest is protected by the third building block, the right of free speech. Americans have exercised that right by showing up at airports to protest the “Muslim ban.” And Americans poured out in unprecedented numbers to protest the political acceptance of sexist language and behavior.[3]

Our nation is not perfect. The Constitution that contains those building blocks at one time condoned slavery and denied women the right to vote. During World War II it allowed American citizens of Japanese descent to be imprisoned solely because of their race. But those building blocks made it possible to correct those errors. Today I see hope for our future.

[1] Trump Embraces ‘Enemy of the People,’ a Phrase With a Fraught History, New York Times, ANDREW HIGGINS, February 26, 2017
[2] Dr. Martin Luther King, 1967
[3] More than 500,000 in Washington D.C., and 400,00 in New York city alone. Women’s March Highlights as Huge Crowds Protest Trump: ‘We’re Not Going Away,’ ANEMONA HARTOCOLLIS and YAMICHE ALCINDOR, New York Times, January 21, 2017

Professor Caplan Pens ACLU Amicus Brief

Professor Aaron Caplan was the primary author of an amicus brief submitted to the California Court of Appeal in Geoffrey C. Keyes v. Jan Brio. The case interprets the California civil harassment statute, a topic on which Caplan has a leading law review article. In the brief, Caplan focuses on whether the speech in question is “directed at a specific person” or is merely about that person.

[Excerpt]

The First Amendment broadly protects a speaker’s right to communicate with listeners about topics of the speaker’s choice—even when the topic is another person. Restricting such communication just because its content distresses the person spoken about constitutes a forbidden prior restraint on constitutionally protected speech.

Read the full brief below:

Our Undemocratic Constitution

By: Professor Allan Ides

This op-ed originally appeared on The Huffington Post

The election of Donald Trump, who achieved his victory through the arcane and antiquated Electoral College, but appears to have lost the popular vote, is but one example of the undemocratic character of our Constitution. In truth, the Constitution was designed to operate as an anti-democratic check on We the People. The framers saw democracy as a form of mob rule. In fact, one of the chief reasons they met in Philadelphia in 1787 was to curb the democratic excesses of state legislatures.

Let’s begin with Congress, which is composed of two legislative bodies, the Senate and the House of Representatives. Although the people elect the membership of both Houses, neither House is truly representative of the people and both are far from democratic.

The Senate is notoriously and purposefully undemocratic. Each state is awarded two Senators, regardless of the population of that state. Hence, the approximately 600,000 citizens of Wyoming are given the same power and voice in the Senate as the nearly 39 million citizens of California. As a consequence of this grossly disproportionate system of representation, a minority of the national population controls a majority of the Senate. And given the Senate’s requirement of a 60-persons super majority to bring any measure up for a vote, the anti-democratic character of the Senate is even more pronounced.

At first glance, the House of Representatives seems more representative, but the emphasis should be

on the word “more.” Membership in the House is proportioned among the states based on population. So far so good. In this sense, the House is more representative than the Senate. But the current system of congressional districting, under which the districts are re-mapped every 10 years by state legislatures, has led to endemic political gerrymandering that artificially distributes power between the two parties in accord with whichever party happens to be in power in the state at the time of the redistricting. As has often been said, the voters don’t pick their representative. Rather, the representatives pick their voters.

The membership in the House also suffers from the fact that the current method of election—i.e., district-by-district, winner-take-all—artificially enthrones the monochromatic two-party system and virtually eliminates any serious competition from third-party candidates. A proportional system of election—i.e., one that gears a party’s share of representation to its share of support as voiced in the election—is decidedly more democratic and more likely to reflect the true democratic consensus.

The anti-democratic character of Congress is further exacerbated by “bicameralism, ” which requires that both Houses approve any legislation before it becomes a law. Although neither chamber of Congress is truly representative, bicameralism imposes an additional safeguard against democracy by giving the wholly undemocratic Senate a check on any democratic impulse exhibited by the House.

The president, as we know from this most recent election, is certainly not elected democratically. Rather, the president is elected in accord with a system that gives stronger voice to persons living in less populous states—much like the composition of the Senate, but marginally less disproportionate. And even in those cases where a presidential candidate wins both the popular vote and the Electoral College vote, it does not follow that that candidate won a majority of the popular vote. In fact, in 16 presidential elections, no candidate received a majority of the popular vote. So in close presidential contests, victory goes to the candidate who can best game the system or who is simply the luckiest of the pack. Surely, we could survive a democratic system in which the victor of a presidential contest would be required to win a majority of the votes cast. And in those cases where no candidate achieves a majority in the first round, a prompt runoff between the two leading candidates could resolve the contest.

One final point on the president: Along with bicameralism, no legislation can become a law unless “presented” to the president for approval. Thus, the undemocratically elected president has the power to veto legislation that has somehow has survived the gauntlet of the Senate, the House, and bicameralism.

The judiciary is said to be the least democratic branch. The president nominates, and with the approval of the Senate, appoints the justices of the Supreme Court and all lower federal court judges. We often hear critiques of the “unelected” judiciary and of the anti-majoritarian character of judicial review—the power to declare a law unconstitutional. But although the judiciary is surely “unelected,” it is neither more nor less democratic than the decidedly undemocratic institutions that nominate, approve, and appoint the members of the judicial branch. Like all of the undemocratic obstacles listed above, the judiciary and its attendant power of judicial review are simply part of the anti-democratic constitutional arsenal.

Finally, let’s consider the Bill of Rights and those amendments to the Constitution designed to protect individual rights. In one obvious sense, these amendments are also anti-democratic in that they prevent even a true majority from taking action in violation of the protected rights. In a sense, the activities protected by those provisions are sealed from majority (or sub-majority) interference.

In a more important sense, however, the provisions protecting individual rights may be the only truly democratic provisions in the Constitution. Those rights preserve the liberty of the demos and create a platform from which the possibility of democracy might emerge. The platform is built on freedom of speech and press, the right to assemble, the right to vote, and the right to equal protection of the laws. Given the power of judicial review, one might argue that the constitutional mission of judiciary is to not to preserve the Constitution but to preserve the possibility of democracy through the enforcement of those rights. Of course, I’m being idealistic. The democratic values of the current Supreme Court are far from evident. But it would be a delicious irony if the unelected judiciary became the vehicle through which a true democracy could emerge.

Capital Sentencing Expert Foresees Problems with California Proposal

Yesterday, California voters passed Proposition 66, a measure that is designed to hasten the capital sentencing process. Professor Sean Kennedy, executive director of the Loyola Center for Juvenile law & Policy and former head of the Federal Public Defender's Capital Habeas Unit, foresees problems:

Habeas lawyers are likely to argue that Prop 66 violates due process. For 40 years, the state supreme court decided all the capital habeas petitions to ensure uniformity and fairness in the application of the death penalty in California.  Now all bets are off because the individual trial judges will decide those issues, leading to conflicting decisions and inconsistent application of the death penalty throughout the state.     

That Delicate Balance

By Professor Allan Ides

This op-ed originally appeared on The Huffington Post

The overall goal of our Constitution is to promote the general welfare of the people through a system of ordered liberty. Over the past two centuries, this constitutional structure has functioned reasonably well, though not without serious challenges, including a bloody civil war. It is a system designed for public-spirited problem solvers. And it seems clear that if the people’s representatives want to accomplish something, our constitutional system will allow them to do so. Of course, that will require thoughtfulness, negotiation, and compromise.

There is, however, nothing mystical or metaphysical about our Constitution. It is not perfect and no reorganization of it or amendment to it will ever make it so. When drafted and ratified it represented best ideas on governance that could survive the necessary political compromises of that day. Some of its imperfections have been repaired, such as the abolishment of slavery, but others remain, including our grossly malapportioned Senate. Its success and longevity is the product of the public servants who make it work.

Do Lawyers Make Better Presidents?

What do the following Presidents have in common: Thomas Jefferson, Abraham Lincoln, Woodrow Wilson, and Franklin D. Roosevelt? All are frequently voted by historians as amongst the 10best U.S. Presidents – and all were lawyers or law school graduates.

And what do the following Presidents have in common: Millard Fillmore, Franklin Pierce, James Buchanan, and Richard Nixon? All are frequently voted by historians as among the 10 worst U.S. Presidents – and all were lawyers or law school graduates.

Combined with the fact that many highly regarded presidents were not trained in law – including George Washington, Harry Truman, and Dwight Eisenhower – these lists suggest that legal training is not necessarily correlated with the good judgment, political acumen, and leadership skill necessary to excel in the Oval Office. But there’s more to the story than the best-and-worst rankings.

The most important number may be that 25 out of 44 presidents graduated from law school or practiced law. (The two are not the same thing, especially in earlier times when most lawyers entered the profession through apprenticeship.) Lawyers represent only 0.36% of the U.S. population, but over 56% of presidents. The electorate, it seems, considers legal training a useful characteristic in presidents – or least not a disqualifying one.

It stands to reason that legal credentials would be common among the people who excel at politics and public service. People with an interest in government tend to gravitate toward law, since most government posts involve law in one capacity or another, whether it be making it, interpreting it, or enforcing it. As a result, the pool of credible presidential candidates is more lawyer-heavy than the public at large. This helps explain why three out of four of this year’s presidential and vice-presidential candidates – Hillary Clinton, Tim Kaine, and Mike Pence – were practicing lawyers before running for public office. And why one former president – William Howard Taft – and one serious presidential candidate – Charles Evans Hughes – later became chief justices of the U.S. Supreme Court.

The modern J.D. degree builds knowledge and skills useful for office-holders even if they never represented clients. President Barack Obama, for example, never had a private practice comparable to that of First Lady Michelle Obama. But like President Bill Clinton before him, he taught constitutional law at a law school (where one eye could also be kept on political opportunities). For which of our past lawyer-presidents was the daily practice of law a major part of their personal and professional identity? President John Adams considered one of his greatest professional accomplishments to be his successful defense of some very unpopular criminal defendants: British soldiers charged in the Boston Massacre. President Abraham Lincoln was a self-taught lawyer renowned for his courtroom skills. His “country lawyer” persona remains a defining part of his legacy. Rounding out this list of presidents whose outlook on life may have been shaped by their legal practice is Richard Nixon, who practiced law both before entering Congress and during his mid-1960’s political hiatus. Nixon’s most well-remembered statement – “I am not a crook” – interacts poignantly with Lincoln’s advice to young lawyers: “Resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.”

A law degree is of course no guarantee that today’s student will win tomorrow’s election. It does not guarantee how history will remember future lawyer-presidents. But as a credential that is both relevant for the job and respected by the voting public, a law degree seems to be a sound political investment.

Prof. Lapp Publishes 'Taking Back Juvenile Confessions'

Professor Kevin Lapp's law review article, "Taking Back Juvenile Confessions," addresses some of the key issues that undermined the confession and subsequent conviction of Brendan Dassey. A federal magistrate judge recently overturned the conviction of Dassey, whose story was featured in the Netflix series "Making a Murderer," on grounds that his confession was unconstitutional.

Recess Appointments and the Scalia Vacancy

By Professor Aaron Caplan

No semester of Constitutional Law ever goes by without a teaching opportunity taken from the front pages. This post suggests how teachers can connect yesterday's unexpected death of Justice Antonin Scalia to the recess appointments clause of Art. II, sec. 2, cl. 3. That clause was at issue in NLRB v. Noel Canning (2014).

The timeline:

Friday, February 12, 2016: The Senate goes into intra-session recess scheduled to end on Monday February 22. This gives legislators a break for the week containing the President's Day holiday (Monday February 15).

Saturday, February 13: Justice Scalia dies.

Sunday, February 14: Today.

If the President can lawfully make a recess appointment, the new justice would serve until the "end of [the Senate's] next session." At the latest, the session of the Senate will end when the new Congress takes office; according to the 20th Amendment this will occur on January 3, 2017 or another date set by statute. (January 3, 2017 is a Sunday, so perhaps such a statute exists.) At the earliest, the session ends when both Houses of Congress agree to adjourn. According to Art. I, sec. 5, cl. 4, neither house can adjourn for more than three days without the consent of the other.

So is a recess appointment allowed this week? If Justice Scalia's concurrence in Noel Canning had prevailed, the answer would be an easy "no." In his view, a recess appointment is allowed only during a recess that falls between two sessions of Congress, and not during an intra-session recess like this one. Moreover, he believed a recess appointment was possible only if the vacancy begins during such a recess between sessions. Since the vacancy did not occur within the right kind of recess, no recess appointment would be allowed.

The majority would reach the same result through a different route. The majority view in Noel Canning does not require that the vacancy begin during a recess. Nor does it prohibit recess appointments during intra-session recesses. But to be constitutional, a recess appointment may only be made during a recess that is sufficiently long that the Senate's inability to timely confirm the nominee would pose a significant problem for effective governance. The majority believed that such recesses must, as a matter of constitutional requirement, be more than three days long, and that a recess of ten days or less was presumptively not long enough to trigger the recess appointment power, although that presumption could be potentially be overcome. It is hard to see how it could be overcome on these facts, since the Court is capable of operating with eight members for the coming week, after which time the Senate returns and can consider nominations under the usual process.

Thus, under either Noel Canning approach the President would not be able to appoint a new justice this week, since it falls within an intra-session recess of ten days and the vacancy occurs with nine days of recess remaining.

Going forward, either house of Congress can prevent any possible recess appointment by ensuring that no sufficiently long recess occurs. The majority in Noel Canning made clear that the Senate is "in session" when it says it is, even in a pro forma session where no business is conducted. Hence, the Senate could choose to bang the gavel once every two or three days and stave off recess appointments. Or, as happened in Noel Canning itself, the House could refuse to give the Senate permission to adjourn for longer than three days, forcing the Senate once again to bang the gavel.

Because Noel Canning has as a practical matter made recess appointments over the objection of either house of Congress impossible, the courts will not need to puzzle through a question not presented in that case: namely, what does it mean for a recess appointee to finish a term at the "end" of the "next" session? Assume the President actually makes a recess appointment in February 2016. Assume Congress takes a one-month intra-session recess on August 1. It then adjourns the entire session on December 1, 2016, allowing the new Congress to begin its session on January 3, 2017. Does the recess justice's term end on August 1, September 1, December 1, or January 3? Looks like we won't find out.

Prof. Caplan writes ACLU Amicus Brief in Religious Freedom Case

Prof. Aaron Caplan was the primary author of an amicus brief to the Fifth Circuit in Ali v. Stephens, a case involving the religious rights of prisoners. He teaches courses in Constitutional Law and First Amendment, including freedom of religion.

David Rasheed Ali is an observant Sunni Muslim who is incarcerated by the state of Texas. He has a sincere religious belief that he should grow a beard about as long as his fist (three or four inches) and wear a kufi (a white, seamless, knit cap with small holes) during the day. The prison's rules forbid this, even though the federal Religious Land Use and Institutionalized Persons Act of 2000 requires prisons to accommodate religious exercise unless there is a "compelling" reason not to. Even after the prison lost in the trial court, and after the US Supreme Court held earlier in 2015 that the Act required a prison in Arkansas to allow an inmate to grow a religiously-motivated beard, Texas nonetheless appealed to the Fifth Circuit.

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.

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.

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).

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?

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?

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.

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).