If you think back to Constitutional Law class, you may recall Romer v. Evans, the landmark 1994 US Supreme Court case that voided a Colorado constitutional amendment preventing protected status based on sexual orientation. But you may not recall that, before reaching the highest court in the land, Romer came up through Colorado state courts—not the federal system.
Litigating on behalf of the state of Colorado was Solicitor General Timothy Tymkovich, who is now Chief Judge of the United States Court of Appeals for the Tenth Circuit.
“Some of the most important issues of the day will be litigated in the state courts, and people sometimes overlook that,” Tymkovich said in the Law School’s final Edward H. Levi Distinguished Jurist Program talk of the year. Romer, the judge said, is an “example in action” of not only federalism, but also separation of powers.
“Although many of the voters who voted in favor of the amendment were disappointed about the outcome of the case, I think the litigation through our state courts . . . demonstrated the checks and balances of the law-making branches and the role of the judicial branch,” he said. Despite controversy over the decision, the judge observed, it was applied and obeyed without issue.
In his talk, “Judicial Independence From Jay to Roberts,” Tymkovich focused on the importance of judicial independence and civil discourse. For both, he stressed, the current “energetic” political climate presents a challenge.
Take US Supreme Court Justice Neil Gorsuch’s recent Senate confirmation hearings, during which one senator claimed that the then-nominee’s “rigid ideology . . . always puts the little guy under the boot of corporations,” and another questioned whether Gorsuch has a “beating heart.”
Tymkovich admitted he might have winced a few times watching his former colleague on the Tenth Circuit endure hostile questioning. “As somebody who’s had a personal relationship and been friends [with Justice Gorsuch] for 25 years, it was kind of hard for me to square with the person I know,” he said.
Or take what Tymkovich described as an increasing polarization of voters.
“Even open, respectful conversation about political and social issues is—at least among those who disagree—becoming more difficult and fraught with controversy,” he said. “And with the social media and Internet, it has become easier to retreat into comfortable spaces where we reinforce our own views, rather than questioning what we believe and remaining open to changing our minds.”
But Tymkovich is optimistic that judicial independence will weather the present political storm, just as it has countless attacks on the judiciary throughout American history. He recalled that congressional comments were similarly scathing during Justice Sonia Sotomayor’s confirmation, and that Justice Samuel Alito’s wife left partway through her husband’s hearings in tears. President Thomas Jefferson and Chief Justice John Marshall openly disliked one another, President Abraham Lincoln questioned the Supreme Court’s authority, and President Franklin D. Roosevelt proposed a court-packing plan. Recently, a slew of Tenth Circuit cases on topics ranging from contraception to immigration have attracted strong criticism. Through it all, judges have not hesitated to enforce checks on the Congress and the President.
For that we have the Founding Fathers of our country to thank, the judge said.
“Our independent judiciary, of course, is a product of the founders’ vision and the protections they put in place to insulate judges from the caprices and pressures of partisan politics," he said. "I think our current climate is a kind of example of how these protections are once again tested. But I think there’s plenty of reason to be hopeful that the vitality of the independence of the third branch remains.”
Respectful communication should still be the goal, however, Tymkovich emphasized. He described the culture of collegiality among judges on the Tenth Circuit. The judges of varying viewpoints and judicial philosophies circulate their proposed opinions to every member of the court before final publication, and Tymkovich is regularly impressed by both the reading judges’ respectful constructive criticism and the authoring judges’ willingness to take feedback into account.
“You can disagree without being disagreeable,” Tymkovich said.
He also cited the fact that four judges on the Tenth Circuit, all of whom were appointed by President Obama, sent Justice Gorsuch a gift basket for his confirmation hearings.
“[Justice Gorsuch] went out of his way to remark how touched he was by that show of support . . . It may seem a like a small thing, but those gestures can go a long way in fostering and maintaining a collegial court,” Tymkovich said.
Students in the audience appreciated Tymkovich’s discussion of comity.
“Because the Supreme Court only takes 80 cases a year, having judges on the circuits who get along and can work together for 25 years is vital,” said Dan Simon, a fourth-year at the College who has made a point of crossing the Midway for a number of Edward H. Levi Distinguished Jurist Program talks.
Reeves Jordan, ’17, agreed: “It was a really great reminder of the importance of concrete relationships for making institutions work well.”
I well let McGinnis and Rappaport defend their paper from Goldfarb’s critique, but I wanted to chime in to flag an alternative way of thinking about legal interpretive rules — as law, not language.
Three months ago, Steve Sachs and I published an article, called “The Law of Interpretation,” which takes this legal view. (Longtime readers may recall that I also blogged about here at Volokh last year).
In that piece, we argue that some interpretive rules are linguistic ones, elements of our written language, but others, maybe many, are legal ones. Rather than assimilating them to rules of language, we analogize them to other legal defaults, many of which are unwritten, such as the rules for mens rea or accomplice liability in criminal statutes. Seeing such rules as law, not language, avoids critiques like Goldfarb’s that legal rules don’t operate in the way that he says that languages generally operate.Read more at: William Baude
The Trump administration’s release of a tax plan — or, at least, a one page summary of its goals for tax policy — has drawn renewed attention to the president’s refusal to release his own tax returns. How much would the president personally benefit from his proposal to abolish the Alternative Minimum Tax? How much does he stand to gain from a reduced 15 percent rate on certain business income?
House Democrats have proposed a number of measures that would make the president’s tax returns public, but the Republican majority has blocked these efforts (despite defections by two of their members). With the president unlikely to release his returns and Congress unlikely to force him to, state lawmakers are looking for creative ways to compel disclosure of the president’s tax filings.
One such strategy, which state lawmakers in New York are pursuing, would lead to the immediate release of President Donald Trump’s state tax returns. A bill pending in Albanyleverages the Empire State’s unique position as the sitting president’s lifelong home. It would require the state’s tax authority to publish any New York state returns filed by the president, the vice president, and all statewide elected officials. That bill would apply to returns filed in the past five years as well as all New York state returns filed by those officeholders in future years.Read more at: Daniel Hemel
Harvey Nixon age 85. Beloved husband of the late Shellie Nixon nee Keir. Loving father of Jamin (Phoebe) Nixon, Marian Nixon and Paula Nixon. Devoted grandfather of Reed, Evan, and Parker Nixon. Dear brother of David (Gloria) Nixon, the late Jacob Nixon and the late Marvin (Helene) Nixon. Proud veteran of the U.S. Navy. Service Monday 1PM at Jewish Reconstructionist Congregation, 303 Dodge Ave., Evanston, IL 60201. Interment Memorial Park. Memorials to JRC www.jrc-evanston.org or Greater Chicago Food Depository, www.chicagosfoodbank.org. Arrangements by Chicago Jewish Funerals - Skokie Chapel 847.229.8822, www.cjfinfo.com.
Published in a Chicago Tribune Media Group Publication from Apr. 28 to Apr. 30, 2017Read more at:
The likelihood that Donald Trump would voluntarily release his own tax returns probably hit zero well before his 100th day in the presidency. But his resistance alone might not be enough to keep them out of public view: A bill now being considered by the New York State Legislature would require Trump’s state tax returns to be published online. Since those contain much of the same information that’s in his federal returns, we’d finally get a sense not only of how much he’s actually worth, but how much he’d potentially stand to benefit from his radical tax-slashing plans. The idea to leverage the state legislature to reveal Trump’s taxes was originally proposed by Daniel Hemel, a law professor at the University of Chicago, in a Washington Post op-ed. More recently, Hemel has also issued a legal paper arguing for why it would hold up in court. I caught up with him last week for a breakdown on how the plan would work.
How did the idea end up in the state legislature?
After I wrote the op-ed in the Washington Post, the office of Brad Hoylman, the state senator who represents lower Manhattan, contacted me to talk about it. Also, a constituent of David Buchwald, who represents Westchester County, went to the protest over Trump’s tax returns on April 15, saw her assemblyman there, and put us in touch. So this was grassroots democracy at its best. I also give a lot of credit to a New York lawyer named Andrea Weiss, who saw the op-ed and got together a group of lawyers in New York who are active in city and state politics. She worked on draft legislation and got state senators and assemblymen on board.
Senate Republicans rebuffed President Trump’s Twitter demand on Tuesday for an end to the legislative filibuster. As long as the filibuster remains in place, it will be much harder for Republicans to push key elements of the Trump agenda through the upper chamber. Why are Republicans determined to save a 60-vote threshold that makes it more difficult for them to achieve their legislative goals?
One reason is tradition. “The Founding Fathers set it up this way,” Sen. John Kennedy (R-La.) said. Which isn’t quite true: the origins of the filibuster can be traced back to an 1806 rule change, but that still means the Senate survived its first 15 years without the filibuster.Read more at: Daniel Hemel
We know that readers have been bombarded with unusual developments, so we are trying to take as fair and structured an approach as possible to put major events in context. We defined normal as typical for presidential administrations, like the veto of a bill, while abnormal events would be highly unusual in contemporary American democracy, like ordering newspapers to suspend publication of the Pentagon Papers. We defined unimportant as having limited consequences for federal policy, like the menu for a state dinner. We considered important events to be those creating lasting and significant changes in policy, like the establishment of Social Security.
Many of the president’s controversial actions, like unwinding President Obama’s climate actions, were normal, the panel concluded, and others, like frequently vacationing at Mar-a-Lago, were viewed as unimportant. Still, some of the administration’s actions continued to be unusual and significant, they said, particularly the F.B.I.’s investigation into Russia ties, the administration’s attacks on the press and Mr. Trump’s unsubstantiated allegations that Mr. Obama wiretapped him.
Below are the 28 news events, grouped by their quadrant on our reality-check matrix.
Mr. Trump has repeatedly insulted news organizations that produce what he sees as negative coverage. Here, our panel was in strong agreement. “His proposal indicates an attitude we might call ‘a-constitutional’: both unaware of and unconcerned with the First Amendment,” said Tom Ginsburg, professor of comparative and international law at the University of Chicago. Thomas Nichols, professor at the U.S. Naval War College, said, “What Spiro Agnew would have done if Agnew had even less respect for the law than he already did.”Read more at: Tom Ginsburg
Improving women’s rights is important across the globe, but it is of utmost importance in countries like Pakistan. Even though Pakistan was the first Islamic country to have a female head of the state (Benazir Bhutto) and is the home of the youngest female Noble Laureate (Malala Yousafzai), it was recently ranked 143 out of 144 countries for gender equality by the World Economic Forum. Women in Pakistan not only regularly experience threats to their safety in the form of rape, assault, and domestic violence, but they are also frequently murdered by their own relatives in so-called “honor killings”.
One of the primary goals of the international human rights movement is to eliminate this kind of violence; indeed, the Convention on the Elimination of Discrimination Against Women (CEDAW) was created to outline countries’ obligations to women, and the United Nations (UN) regularly issues reports on the ways that countries need to change their policies to live up to their treaty commitments.
However, despite all the effort that has been put into the creation of CEDAW and the related UN reports, it’s still not clear whether these steps have helped to improve the rights of women around the world. Many scholars have attempted to research treaty compliance, and some have suggested that in certain cases human rights actually get worse after a treaty is signed. In the case of CEDAW, 189 of 193 members of the UN have ratified CEDAW, making it difficult to compare countries that have and have not become states parties to the convention. But even if a sufficient “control group” existed, there would be the problem that countries self-select into treaty regimes. Additionally, comparing data before and after a country ratifies an agreement is problematic due to the many potential confounding variables or long-running trends that pre-date UN treaties. Finally, the ways that organizations measure human rights violations—and the type and quality of data available—have changed substantially over the last few decades, adding a further complication to assessing change over time.Read more at: Adam Chilton
Views on sex have ebbed and flowed in the U.S. even before we became a country. The Puritans in the 17th Century tried to legislate sex and morality, punishing those who deviated from the prescribed sexual mores. Things loosened up somewhat in the mid-18th Century during the time of the American Revolution. This pattern followed for the next 200 years and always at the center was the role of government in regulating sex. In his new book Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century, scholar and University of Chicago Law Professor Geoffrey Stone takes a deep dive into the social, political and religious history of attitudes towards sexual behavior. Stone talks about the links between Ancient Greek and today’s views on sex. And the role the Constitution has played in more recent times.Read more at: Geoffrey R. Stone
The search for Donald Trump’s tax returns finally may have struck gold—in Albany.
Efforts elsewhere to force the president to release his tax filings have proven fruitless thus far. On Capitol Hill, Republican leaders are blocking a bipartisan bill that would make President Trump’s returns publicly available, even though 64 percent of self-identified Republicans say the president should release his tax filings. In Trenton, New Jersey, state lawmakers have passed legislation that would require presidential candidates to release their returns as a condition for their names appearing on the state’s 2020 ballot, but Republican Governor Chris Christie vetoed the bill this week.
Lawmakers in Albany, however, have a much more viable opportunity to compel the immediate disclosure of the president’s tax filings—and it arises out of New York’s unique position as the sitting president’s home state.Read more at: Daniel Hemel
Charles Barnwell generated the photocopies at the University of Chicago law school, where his curiosity and intelligence made him a polymath able to converse with any professor on subjects ranging from the Monroe Doctrine to the U.S. space program.
“I always wondered, how do you relate to those professors at the law school? But he was a pretty smart guy. He loved to read,” consuming three newspapers a day, and books on history and science fiction, said his son Steve.
“He was never intimidated by anybody on the job, those big professors,” said his daughter Gail.
On the side, Mr. Barnwell dabbled in photography. He collected cameras, started a photography club and built a home darkroom. “That was his man cave,” his son said.
He experimented with lighting and hand-tinting pictures, like the image he took of himself looking as snazzy as the famed musicians he followed in his 20s when they performed at the Regal theater and the Club DeLisa, known as “the Harlem of Chicago.”Read more at:
Despite the current atmosphere where politicians decry activist judges and presidential tweets assail court rulings, 7th Circuit Court of Appeals Chief Judge Diane P. Wood is optimistic about the future of the judiciary.
“No one is ever going to be happy with every decision because, as we say, we’re in a line of business where half the people walk away losing,” she said recently while visiting Wabash College. “But if we’ve been a faithful listener, if we’ve tried to respond to the arguments, I think you can leave people with the sense that they got a fair hearing.”
Wood was named Wabash College’s 2017 recipient of the Donald W. Peck Senior Medal for Eminence in the Law. The Chicago appellate judge was on campus April 24 to deliver a lecture titled “Public Service and Private Initiative: An American Tradition” and attend the 44th annual Peck Dinner.
Wood is the second woman to receive the Peck Medal that was first given in 1974. Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana was the first in 1989.Read more at: Diane P. Wood
During the 2016 presidential campaign, Donald Trump waged a rhetorical assault against the United States’ international legal commitments. Trump repeatedly claimed that he would tear up many international treaties—including the Iran Nuclear deal and all trade deals—and he also said he would adopt policies that would clearly violate other agreements—like promising to torture the families of terrorists. If Trump actually followed through on these promises, it would constitute a major break in the United States’ approach to international law. Which is why it’s worth asking at the end of his first 100 days: has Donald Trump’s promised assault on international law materialized?
I. Participation in International Institutions
Trump continues to say he will reduce the United States’ participation in international institutions. Two specific developments are worth noting. First, Trump’s budget proposal includes large cuts in America’s funding of international institutions. Specifically, the so called “skinny budget” released by the Trump administration calls for a 28% reduction in funding to international organizations. Since the proposal spares some defense-related spending—including funds to NATO and security assistant to Israel—the United Nations, OECD, and other organizations may suffer substantially larger cuts than 28%. Second, Trump has de-emphasized the State Department in a number of ways that could hamper the United States’ capacity for diplomacy and participation in international organizations. More concretely, failing to fill senior posts within the department and calling for dramatic cuts in the State Department’s budget.Read more at: Adam Chilton
John Rappaport, a law professor at the University of Chicago, proposes a more radical idea: If pretrial bargaining with the prosecutor is going to take place, it should embrace more than the basic exchange of guilt for leniency. Defendants should be able to bargain across the trial process itself, offering simplicity in exchange for a lesser charge. What if a defendant agreed to a trial before six or three jurors, instead of 12? Or what if the standards of evidence were downgraded, from beyond a reasonable doubt to a preponderance of the evidence?
“It’s all fairly straightforward, and wouldn’t require any real administrative framework, but it’s foreign,” Rappaport said. “If a defense lawyer approached a prosecutor and said, ‘Hey, let’s do away with voir dire and take the first 12 jurors who walk in the room,’ the prosecutor would be taken aback.”
He suggests that reforming the plea system to incorporate more trials would expose other problem areas. “Trials are an important window into how the system is functioning—they’re a form of audit,” Rappaport said. “They shine light on investigatory and prosecutorial behavior and air them publicly.” If the police behave badly, this remains buried when defendants take a plea. In this regard, even a heavily pruned trial is favorable to no trial at all. And such a bargaining process would not exist without limits. “The outcome of the trial still has to stem from the application of general legal principles to facts of individual cases,” he said. A defendant could not agree to a coin flip, for example, as the determinant of guilt.Read more at: John Rappaport
Martha C. Nussbaum started the 2017 Jefferson Lecture Monday night reviewing the transformations of Athenian democracy and justice -- and the limits placed on vengeance -- that are portrayed in Aeschylus’ Oresteia.
"Like modern democracies, the ancient Greek democracy had an anger problem," Nussbaum said, according to an advance copy of her remarks. "Read the historians, and you will see some things that are not remote: individuals litigating obsessively against people they blame for having wronged them; groups blaming other groups for their lack of power; citizens blaming prominent politicians and other elites for selling out the dearest values of the democracy; other groups blaming foreign visitors, or even women, for their own political and personal woes."
The National Endowment for the Humanities selects someone each year to give the Jefferson Lecture, and being selected is considered the top honor from the U.S. government in the humanities. Nussbaum -- Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago -- was selected for the honor just prior to the inauguration of President Trump. And while her remarks didn't include his name or mention fake news or certain political movements, the themes she raises reflected issues much discussed in the context of his election, and the growth of populist movements fueled by anger in other countries as well. (Video of the event may be found here.)Read more at: Martha C. Nussbaum
Lawyers were the prime architects of American democracy during the founding—and today they are critical foot soldiers, sworn to protect the US Constitution at a time when many of the nation’s most fundamental values are under attack, Roberta Cooper Ramo, ’67, told members of the Law School community during the Ulysses and Marguerite Schwartz Memorial Lecture last week.
During a talk in which she recalled inspiring events from her own half-century legal career as well as the highs and lows of American legal history, Ramo urged future lawyers to consider the impact of their own choices, both personally and professionally. She said she had originally planned to talk about the ethical obligations of lawyers in private practice but now wanted also to focus on the responsibilities of lawyers working in government and politics. She referenced several recent events, including the January executive order barring refugees and citizens of seven countries from entering the United States as well as President Donald Trump’s comments about the federal judiciary. Ramo also expressed concern about the impact of the 2010 Supreme Court decision Citizens United v. Federal Election Commission, which classified political donations as free speech by extending First Amendment protections to businesses and corporations.
“Today I’m deeply concerned about attacks on the pillars of our Constitution and the social contracts that flow from its protection,” said Ramo, a shareholder at Modrall Sperling in Albuquerque who was the first woman to serve as president of the American Bar Association, as well as the first women to serve as president of the American Law Institute, a post she has held since 2008. “I think some of these attacks, and the language and the popularity with which they are received in some quarters, illuminate a profound and troubling lack of understanding of the constitutional democracy, of our history—and they pose a challenge to the legal profession, sworn to uphold the Constitution. … I fear that democracy will founder from the constant attacks on the independence of the court and the integrity of judges, and the impact of money on electing judges—and the attacks on facts as being optional or illegal or evil when it suits a political need.”
But even in the face of challenges, she said, lawyers have a long history as fierce protectors of democracy—whether they are bringing pivotal cases, deciding those cases as judges, making tough decisions to uphold professional ethics, or simply showing up, case by case, to protect those who need protecting.
Ramo recalled the time, as a young lawyer at a civil firm, that she’d been appointed to represent a woman who had been accused of a serious felony. She didn’t feel prepared, and there wasn’t time between the appointment and arraignment to find an experienced criminal lawyer to handle the case. So she called a lawyer she’d met at a bar function to seek his advice. He spent two hours with Ramo over coffee that day, explaining the law and procedure, and promised to make some calls the next day to help find the client a proper criminal lawyer. Ramo, however, still needed to handle the arraignment, and she worked into the night to prepare.
“The next morning, as I sat in court at the counsel table with my client, I had this feeling someone was staring at my back,” Ramo said, drawing laughter as she added: “I had two children by then so I had eyes in the back of my head.” When she turned around, she saw the lawyer who had helped her prepare the day before.
“Just in case I put the client in jeopardy, he was there to come to her defense,” Ramo said. “When I teased him about it later, he said that of course he’d had full confidence in me and was just there to enjoy the fruits of his good teaching. But we both knew better. It was one American lawyer making sure that one indigent criminal defendant did not face the danger of incompetent counsel. No one was paying him, no court order demanded his presence. He knew he was an officer of the court and had a license to practice that gave him privileges but also serious personal responsibility to the American justice system.”
She also recalled the law firm partner who responded seriously when she shared concerns that a client’s request would push her into ethically gray territory, and the time she overheard Martin Luther King, Jr. at a kitchen table in Chicago telling supporters not to give up because they had lawyers and the Constitution on their side.
“I’ve seen the work of our profession make democracy work in the most profound ways, even though the help was often for a single citizen and came from a single lawyer,” she said.
The key, she said, is for lawyers to view their ethical obligations as broader than what they do in the courtroom.
“When you raise your hand, as I hope you all do, to take the oath to protect and defend the Constitution of the United States, you must do just that—and not just in cases in front of the Supreme Court, but in your carpools and at your dinner tables,” Ramo said. “Sometimes your oath will require that in court you defend odious people, (and sometimes it will lead you) to rush to the airport to defend people who are being kept out of the country if you think that is unlawful.”
This may be the most important time for American lawyers since the formation of our nation, she said.
Our Founders “were brave and smart and principled, and they put country over money and power and political benefit,” she said. “Now it’s our turn (to put) country over money and power and political benefit.”dsc_3174.jpg
Do I want to get caught with it or without it? That's the tragic and unfortunate question that some people in Chicago's most hazardous neighborhoods ask themselves. Caught with it may mean jail and prison time, without it could mean serious injury or death. The "it" is a handgun.
"Increased prison sentences for gun offenders" is not the answer to the question. Illinois already has some of the harshest penalties in the country. Those convicted of violent crimes are serving increasingly longer periods of time with gun enhancements requiring those convicted to serve 100 percent of their sentences. Are we safer? Haven't we proved that we cannot incarcerate our way out of the crime problem?
Illinois is now spending more than $1.3 billion on its prison system. There are approximately 44,000 people in Illinois' prisons, a 30,000 person increase since 1983 when there were only 14,000 in prison. African-Americans are about 14.7 percent of Illinois' population but about 57 percent of the prison population. Nearly 30,000 people leave prison every year and the recidivism rate is about 50 percent, meaning that half the people who leave are back in prison within three years. Moreover, almost 90 percent of the people in prison are released at some point to return to society. Many are returning to the most segregated, most economically bereft and most resource-deprived areas of Chicago.Read more at: Randolph N. Stone
On March 21, I traveled with a fellow student and faculty of the International Human Rights Clinic at the University of Chicago to Washington D.C. to attend the hearings of the Inter-American Commission on Human Rights to hear the Trump Administration defend the human rights implications of the then-recent Executive Orders on migrants and immigration. As it turned out, the defense would be quick – in fact, there wouldn’t be one at all.
That morning, however, the other student, my professor and I entered the hearing room in anticipation of exciting and important debates. The day’s schedule listing was heavily focused on the U.S.:
- 8:30AM: Case 12:545 – Isamu Carlos Shibayama and Others, United States (Merits).
- 10:15AM: Impact of Executive Orders “Border Security and Immigration Enforcements Improvements;” “Protecting the Nation from Foreign Terrorist entry into the United States;” “Expediting Environmental Reviews an Approval for High Priority Infrastructure Projects” on Human Rights in the United States (Ex-officio).
- 11:30AM: Policies that Prevents Access to Asylum in the United States.
As we sat down, however, we quickly joined others in the room in staring with disbelief at the striking row of empty chairs directly across from the panel of lawyers and advocates who had worked tirelessly to prepare their arguments in defense of immigrants and asylum seekers. The United States – for the first time in the history of the Inter-American Commission – had simply failed to attend any of the three hearings in which its actions were at issue.Read more at:
In the last few years, political conservatives have self-righteously proclaimed themselves to be fervent champions of free speech on college and university campuses. In response to the regrettable efforts of some leftist students and community members to exclude, intimidate, and silence conservative speakers ranging from Milo Yiannopoulos to Richard Spencer to Ann Coulter to Charles Murray, conservative journalists, foundations, politicians, professors, and students have joyously wrapped themselves in the flag of academic freedom and fiercely condemned those students and community members who, they insist, are undermining our nation’s profound commitment to freedom of speech.
Let me be clear from the outset: I agree wholeheartedly that the students and community members who have embraced censorship, disruption and even violence in order to deny invited speakers whose views they oppose an opportunity to speak are deeply in the wrong. Such conduct is fundamentally incompatible with the core principles of our democracy and with the central precepts of academic freedom.
But I am a bit puzzled by contemporary conservatives who suddenly and quite vigorously defend the principle of free expression. I say “suddenly” because throughout American history it has been political conservatives who have consistently been the opponents of free speech and academic freedom. That they now energetically embrace what they have always rejected inevitably lends itself to more than a bit of skepticism.Read more at: Geoffrey R. Stone
Today the Supreme Court held that the sovereign immunity of Indian tribes does not extend to suits against tribal employees when the employee, instead of the tribe, is the “real party in interest.”
Lewis v. Clarke involved a run-of-the-mill car accident: The plaintiffs, Brian and Michelle Lewis, citizens of Connecticut, were driving on an interstate highway outside the boundaries of the Mohegan Reservation when they were rear-ended by the defendant, William Clarke, also a citizen of Connecticut. Clarke was an employee of the Mohegan Tribe, however, and the accident occurred while he was driving customers to the tribe’s casino.
The Lewises sued Clarke in Connecticut state court for damages resulting from the accident. Clarke moved to dismiss the lawsuit, arguing that he was cloaked in the tribe’s sovereign immunity because he was acting as a tribal employee or, in the alternative, because the tribe had agreed to indemnify him for any damages arising from his official acts in furtherance of the tribe’s interests.
The Connecticut trial court denied the defendant’s motion to dismiss the suit on the ground that the remedy the plaintiffs sought — money damages from Clarke — did not, as today’s opinion put it, “affect the Tribe’s ability to govern itself independently.” The Supreme Court of Connecticut reversed, holding that permitting a plaintiff to overcome tribal immunity simply by styling his complaint as against the defendant in an individual capacity would render tribal immunity a nullity.
A unanimous Supreme Court reversed, in an opinion written by Justice Sonia Sotomayor.Read more at: M. Todd Henderson