Nahmod Law

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Know Your Constitution (3): Myths About the Supreme Court

I blogged on November 29, 2012, regarding two myths about the Constitution. That post was the second in my series, “Know Your Constitution,” which is intended for a general audience.

This is the third in the series and it addresses three myths about the Supreme Court with a minimum of legal jargon.

The First Myth. The Supreme Court’s primary function is to do justice.

Reality. The Supreme Court’s primary function is to interpret the Constitution and federal statutes. These interpretations become the supreme law of the land. The Court’s function is not necessarily to do justice in individual cases.

Of course, there are times when interpretations of particular constitutional provisions are considered by many to be just. For example, the equal protection clause of the Fourteenth Amendment, which prohibits racial and other kinds of discrimination by government, is considered to be a just constitutional provision because it is based on the concept of equality.

Another example is the due process clause and its application in criminal cases. Due process has been interpreted to include concepts of justice and fairness so as to protect the rights of criminal defendants to an unbiased court, to confrontation and cross-examination, to be free from self-incrimination, to an attorney, and so on.

What is most important to remember, though, is that Supreme Court decisions are not necessarily just or moral. A Supreme Court decision can uphold an unjust federal or state law as constitutional. For example, the Court in Plessy v. Ferguson unfortunately upheld separate but equal in the racial setting at the end of the 19th century.

On the other hand, a Supreme Court decision can rule that a wise and just federal or state law is unconstitutional. For example, the Supreme Court struck down the Violence Against Women Act in United States v. Morrison at the beginning of this century. Read the rest of this entry »

Written by snahmod

December 6, 2012 at 11:12 am

Know Your Constitution (2): Myths About the Constitution

My post of November 12, 2012, on the structure of our government, was the first in a series called “Know Your Constitution.” This series is intended to educate citizens about the Constitution and the Supreme Court with a minimum of legal jargon.

This post, the second in the series, addresses two commonly and erroneously held beliefs, or myths, about the Constitution.

The First Myth The Constitution is a sacred document or is at least divinely inspired.

Reality  The Constitution was written by human beings (all men at the time) and is a product of Enlightenment thinking. The Constitution exemplifies the application of reason to self-government. The divine right of kings is emphatically rejected by the Constitution.

Notice that there is no reference whatever in the Constitution to a divine being. Religion is mentioned only in several places. One place is the First Amendment with its Establishment and Free Exercise Clauses. Another place is the prohibition against religious tests for political office. In other words, religion has its role, but that role is not in government.

Along these lines, to characterize the Constitution as deeply influenced by Judaism and/or Christianity, as many like to do, is simply incorrect historically. Traditional Judaism and Christianity had nothing to say about democracy. Also, many of the Framers were deists who believed that a divine being created the universe and nature with its “laws” but then bowed out of human affairs. In contrast, theists believe that a divine being revealed itself and remains concerned with, and involved in, human affairs.

The Second Myth  The Constitution, even if not divinely inspired, comes as close to being as perfect a document for self-government as is humanly possible.

Reality The Constitution is far from a perfect document.

The Framers were only human beings, although we are fortunate that they were very well educated, far-sighted and obsessed with forming a new kind of government that the world had never seen before. But they made mistakes. This is obvious if only because of the number of Constitutional Amendments that have been ratified—twenty-seven–including the Bill of Rights two years after the Constitution.

More seriously, the Constitution was almost fatally flawed from the beginning because of slavery. This word was never used in the Constitution—embarrassment, perhaps?–although there were three indirect references to it. I say “fatally flawed” because, as everyone knows, slavery led to the temporary breakup of the United States. It took an horrific Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments to amend the Constitution and eliminate slavery once and for all. In a very real sense, the Civil War and these three Constitutional amendments finally brought the Constitution into line with the Declaration of Independence.

Next in the Series: Myths about the Supreme Court

Written by snahmod

November 29, 2012 at 3:11 pm

Know Your Constitution (1): The Structure of Government

Constitutional Education for Citizens

United States citizens, in my view, have an obligation to understand their government, the Constitution that created it and the Supreme Court‘s role in interpreting the Constitution.

However, I’ve thought for a long time that we in the legal profession and the law schools do a mediocre job, at best, in educating the public about the United States Constitution and the Supreme Court.

What I would like to do in this and in occasional succeeding posts is try to explain, with a minimum of legal jargon, the Constitution and the Supreme Court’s role in interpreting it. Of necessity, these posts will be selective. I cannot cover everything.

This first post addresses the basic structure of our government as created by the Constitution, including separation of powers, checks and balances and federalism.

What is Separation of Powers?

The first three articles of the Constitution create and set out the powers of the three branches of government.

First and foremost, Article I deals with Congress, the lawmaking branch, and its two houses, the Senate  and the House of Representatives. All legislation must be passed by both houses in order to become law. Congress may only act pursuant to its enumerated powers.

Second, Article II deals with the President, elected every four years, who enforces the law and thereby exercises executive powers. The President also has primary responsibility for foreign affairs except insofar as Congress is the branch that declares war. All legislation that is passed by both houses must go to the President for his approval.

Third, Article III creates the Supreme Court, the only non-politically accountable branch, in which is vested the judicial power to decide cases and controversies brought before it. Much more about this in later posts. Read the rest of this entry »

Written by snahmod

November 12, 2012 at 2:04 pm

All My Posts Through July 7, 2010

Since Nahmodlaw.com began in August 2009, and to this date, July 7, 2010, I have written thirty-four posts (including a video and podcast) on what I consider to be topics of interest and importance going beyond what might be considered “hot” at any particular time.

It occurs to me that it would be useful to readers, especially those who have only recently discovered this blog, to have a list of the thirty-four linked posts by category for ease of reference and use.

(It is also possible to use the “search” function to look for particular cases or topics among every one of my posts, including those subsequent to July 7, 2010).

What follows is a list comprising these thirty-four posts divided into the following four categories:

SECTION 1983;  CONSTITUTIONAL LAW;  FIRST AMENDMENT;  EDUCATION

I. SECTION 1983

Section 1983 Supreme Court Decisions–2009: A Video Presentation

A Section 1983 Podcast: Damages and Procedural Defenses

A Section 1983 Primer (1): History, Purposes and Scope

A Section 1983 Primer (2): The Seminal Decision of Monroe v. Pape

A Section 1983 Primer (3): Constitutional States of Mind

A Section 1983 Primer (4): Causation and the Mt. Healthy Burden-Shift Rule

Iqbal and Section 1983 Supervisory Liability

My Position on Supervisory Liability after Iqbal

Van De Kamp and the Shift in Prosecutorial Immunity

Haywood v. Drown: Close Call for the Supremacy Clause?

Rethinking Section 1983 Malicious Prosecution

Qualified Immunity “Order of Battle” Modified

Preempting Section 1983 Constitutional Claims: Fitzgerald v. Barnstable School Comm.

Prosecutorial Immunity Revisited: The Pottawattamie County Case (UPDATED)

Justice Stevens and Section 1983

Certiorari Granted in Connick v. Thompson: A Prosecutorial Failure to Train Local Government Liability Case

Purdue v. Kenny A.: A New Supreme Court Attorney’s Fees Decision

Certiorari Granted in Skinner v. Switzer: Section 1983, Habeas and Heck

Read the rest of this entry »

Written by snahmod

July 7, 2010 at 10:28 am

Laptops in the Socratic Classroom

The First Signs

I noticed it first about eight years ago. Students began asking me in class to repeat what I had just said. This was happening more and more often, so I began to think about its significance, especially for the kind of discussion, or modified Socratic, method I use to teach constitutional law, First Amendment and various seminars. It was especially disconcerting because I had been teaching enthusiastically and, I hope, rather  successfully for over three decades.

Once I thought about it, I realized that many students were actually taking dictation on their laptops, rather than thinking about what was being discussed and then taking notes. I also noticed that it was getting harder and harder to get students to participate in class discussion, or even for me to see their faces hidden behind laptops and focused on their laptop screens. And if these things were happening when I was speaking or trying to engage students in discussion, they were surely happening when other students were speaking, further adversely affecting the classroom experience.

My use of the discussion method to teach analysis and evaluation (“thinking like a lawyer”)–and not simply to convey doctrine–was therefore being undermined by the use of laptops in the classroom!

Remedial Attempts

It made no real difference that I regularly reminded students that good note-taking was not about taking dictation, that it was essential for their education and professional development that they participate in class discussion and that they make eye contact with me and fellow students. It also did not make any real difference that I occasionally instructed students to stop using their laptops and just to listen for a few minutes.

Of course, I spoke with colleagues about this, and most of them–particularly those using the discussion method–reported similar concerns. Some also were worried about their students surfing the Web and emailing during class, but that was, so far as I knew, not a problem for me because I have always walked around the classroom when I teach for the purpose of keeping students (and myself) more engaged. Despite their concerns, none of my colleagues had banned laptops in the classroom, although I had heard that some faculty at other law schools were beginning to do so.

A Decision to Ban Laptops

Finally, I made a decision. Beginning with the 2008-9 academic year, I banned laptops from all my classes, making sure that students registering had sufficient notice. It was not an easy or popular decision to make, and it had a touch of irony because I use a computer for research, writing and communicating with students. And I have always appreciated the typing of exams on computers. But I felt that, as an educator with teaching goals going well beyond the transmission of legal doctrine, I had no real choice in the matter.

A Subsequent Modification

Even though I received excellent feedback from many students about the educational value of my ban, I  have since repealed the ban in the required con law course because students complained to the administration that they were being forced to take my class without computers.

Though the administration did not compel me to repeal the ban (I believe academic freedom would prevent that), I nevertheless concluded that there was something to the student complaints.

However, I remain convinced that I am correct pedagogically, and I emphasize this to my students.

Written by snahmod

May 22, 2010 at 8:31 am

Posted in Teaching

A Section 1983 Podcast: Damages and Procedural Defenses

Introduction

My law school, Chicago-Kent, and I just wrapped up our 27th annual conference on section 1983 held on April 15-16, 2010. This conference lasted two days and featured nationally known scholars and attorneys addressing different aspects of section 1983 litigation. Over 160 attorneys from all over the country were in attendance and, thanks to the outstanding speakers and excellent audience questions, the conference was once again a major success.

The speakers were Dean and Professor Erwin Chemerinsky (immunities and Supreme Court review), Professor Karen Blum (local government liability) Professor Rosalie Levinson (substantive due process), Professor Carolyn Shapiro (ethical issues), attorney John Murphey (nuts and bolts of section 1983 litigation), attorney Gerry Birnberg (police misconduct) and I (section 1983 cause of action and damages and procedural defenses).

My Podcast on Damages and Procedural Defenses

In addition to doing The Section 1983 Cause of Action, I did an hour-long presentation on Damages and Procedural Defenses, which covered compensatory damages, punitive damages, and procedural defenses such as statutes of limitation, preclusion, release-dismissal agreements and wrongful death and survival. The entire conference was audio-taped and I am posting my hour-long presentation as a podcast available for listening and downloading. I hope you find it informative.

If you would like to save the file directly, here is the link: Damages and Procedural Defenses: The Basics

The Full Conference Is Available

For those of you who may be interested in purchasing CDs containing the entire two-day conference, please contact Chicago-Kent’s Continuing Legal Education Department at 312-906-5090.

Written by snahmod

May 7, 2010 at 1:57 pm

Supreme Court Decisions, 2007-2008: A Video Presentation

Introduction

In February 2009, I spoke at Chicago-Kent to our law students and others about important decisions handed down in the Supreme Court’s 2007 Term (October 2007–June 2008), and also addressed several pending, and since decided, cases in the 2008 Term which ended in June 2009.

As an experiment, I’m putting the video of this presentation on my blog in the hope that some of you might find it of interest. Please let me know through your comments or via email (snahmod@kentlaw.edu) what you think.

The video link appears below (the video is slightly choppy but it still works just fine and the audio is good).

Coverage of Presentation

The presentation includes the following:

United States v. Williams, 128 S. Ct. 1830 (2008)(child pornography)

District of Columbia v. Heller, 128 S. Ct. 2783 (2008)(Second Amendment protects an individual’s right to bear arms for the purpose of self-defense in the home)

Engquist v. Oregon Dept. of Agriculture, 128 S. Ct. 2146 (2008)(public employment and class-of-one Equal Protection claims)

Crawford v. Marion County Election Bd., 128 S. Ct. 1610 (2008)(requiring voters to show government-issued photo)

Medellin v. Texas, 128 S. Ct. 1346 (2008)(state criminal procedure, treaties and consular notification)

Boumediene v. Bush, 128 S. Ct. 2229 (2008)(habeas corpus and the war against terrorism)

Pleasant Grove v. Summum (description and assessment of difficult government speech, public forum and Establishment Clause issues before decision handed down subsequently at 129 S. Ct. 1125 (2009))

video link (Requires Real Player)

Real Player is free – download it here for PCs or here for Macs

Written by snahmod

March 15, 2010 at 9:43 am

Posted in Constitutional Law, Teaching

Tagged with

Freedom of Speech (3): The Clear and Present Danger Years

Introduction

Perhaps surprisingly, free speech jurisprudence in the Supreme Court began in earnest only in the second decade of the 20th century. The subject that caught the Court’s and the nation’s attention during that period was advocacy of illegal conduct and, more specifically, subversive advocacy. Did the First Amendment protect the speech of those advocating interference with the efforts of the United States during the First World War? Did it even protect the speech of those advocating the use of force to overthrown the government of the United States? In answering these questions, Justices Holmes and Brandeis, dissenting, made First Amendment history with their clear and present danger test for punishing speech: did the speech present a clear danger of imminent and serious illegal conduct?

The Problem

When I teach First Amendment, I frame the issue this way: if speech advocating illegal conduct to an audience is at one end of the spectrum, and the illegal conduct of the audience (which is clearly punishable) is at the other end, at what point can the government intervene to arrest the speaker?

The least speech-protective approach would ask whether the speech advocating illegal conduct could possibly cause illegal conduct, even if it did not do so in fact. If the speech met this test, the speaker could be arrested at that point. This was pretty much the approach of the Supreme Court, with Holmes and Brandeis dissenting in the 10’s and 20’s. A good early example is Abrams v. United States, 250 U.S. 616 (1919).

The most speech-protective approach would never allow government to arrest the speaker. Government could arrest only those who acted illegally.

The Supreme Court never adopted this extreme speech-protective position but the Holmes-Brandeis clear and present danger test came close. This test was designed to keep the government’s hands off the speaker until the danger, i.e., the illegal conduct, was both imminent and serious. The powerful Enlightenment assumption of rationality underlying this test was that requiring government to wait until the last minute before intervening provided an opportunity for counter-speech that might, and hopefully would, prevent the illegal conduct. Holmes grounded the clear and present danger test on the marketplace of ideas rationale, while Brandeis grounded the test on the self-government and self-fulfillment rationales.

The Outcome

After almost a half-century’s experience by the nation and the Court with the political doctrines of anarchy, radicalism, syndicalism, socialism and Communism (see Dennis v. United States, 341 U. S. 494 (1951) on the last), the Court in 1969 finally came up with the test set out in Brandenburg v. Ohio, 395 U.S. 444 (1969). This speech-protective test was based in large measure on the clear and present danger test, although it did not use the Holmes-Brandeis language.

Brandenburg essentially held that speech advocating illegal conduct could not be punished unless two conditions were met. The first was subjective: did the defendant intend to bring about imminent illegal conduct? The second was objective and predictive in nature: was imminent illegal conduct likely to occur as a result of the speaker’s advocacy of illegal conduct? If the answers were yes, then the speaker could be punished for the speech.

In a very real sense, this test demonstrates that the Supreme Court had learned over the years that government inevitably and quite naturally tends to over-predict danger.

Comments

As it turns out, the Brandenburg test is not universally applicable to many First Amendment issues beyond advocacy of illegal conduct. But it set the stage for what was to come in the remainder of the 20th century and beyond by emphasizing the importance of providing breathing space for free speech, particularly high-value political speech. It also reflected the Court’s suspicion of government motives when punishing speech.

The Brandenburg test can be understood as a kind of strict scrutiny test for speech because it places a very heavy burden of justification on government.

Written by snahmod

February 14, 2010 at 9:48 pm

Freedom of Speech (2): Content, Medium and Forum

Introduction

The last post dealt with the three major rationales of freedom of speech. This one addresses the important factors to which attention must be paid in every free speech case: content, medium and forum.

Content

The threshold consideration in free speech cases typically revolves around the content (the WHAT) of what is communicated. It turns out that, despite the power of the marketplace of ideas rationale, there is a free speech hierarchy consisting of several tiers, each of which receives a different level of First Amendment protection. At the top of the hierarchy is political speech (recall the self-government rationale), followed closely by artistic and scientific expression. At the bottom is speech that is not protected at all: for example, fighting words, true threats and obscenity. Commercial speech is in the middle.

Medium

It is also important to be sensitive to the particular medium of communication (the HOW) involved in a free speech case. The traditional media of oral speech and writing are ordinarily accorded the maximum protection, all things being equal. In contrast, electronic media such as radio and television are sometimes accorded less than that. Significantly, to this point the Internet has been treated by the Court for the most part as if it were a traditional medium.

Consider also that different media have different physical characteristics that sometimes play a determinative role in First Amendment analysis. For example, a sound truck with blaring announcements that are difficult to ignore is quite different from a person handing out leaflets who can be ignored or otherwise avoided.

Forum

The last important factor in free speech cases is the forum (the WHERE) in which the communication takes place. Thus, different kinds of public property to which speakers desire access are accompanied by different levels of protection. Maximum First Amendment protection is given in traditional public forums such as streets and parks, as well as in voluntary public forums created by government. At the other extreme is public property having a special purpose incompatible with free speech access. A public library’s reading room is one example of the latter.

Conclusion

I realize that the above is quite general. Still, these three factors, which I have found helpful for law students in understanding the First Amendment, must always be taken into account in free speech cases.

This brief explanation of these factors may also be useful for non-lawyers.

Written by snahmod

January 29, 2010 at 12:09 pm

Freedom of Speech (1): Three Rationales

The blog is back from vacation.

Introduction

When I begin teaching the First Amendment course, I introduce freedom of speech by briefly describing the conventional rationales of freedom of speech (this post) and then setting out three factors that are crucial for all free speech analysis (a subsequent post).

Three Rationales of Free Speech

1. Self-Government

Like the Constitution, a document that establishes a structure for self-government, the free speech clause of the First Amendment is a product of the Enlightenment. Citizens of the United States are to engage in self-government by using reason and practical judgment. Accordingly, one rationale of freedom of speech is that it is indispensable for self-government. People communicate on political matters so that they can intelligently participate in the democratic process.

This rationale is often identified with the work of Alexander Meiklejohn but it was articulated much earlier by Justice Brandeis in Whitney v. California.

Under this rationale, political speech ranks at the top of the First Amendment hierarchy, with other kinds of speech ranked in a derivative manner based on their relation to  political speech.

2. The Marketplace of Ideas

This rationale, long identified with Justice Holmes in his dissent in Abrams v. United States but actually going back to John Stuart Mill, posits that freedom of speech is important because, in a marketplace of ideas, the better ideas eventually prevail through competition. It is modeled both on laissez faire in the economic realm and on scientific experimentation.

Under this rationale there is no hierarchy of speech. The value of different kinds of speech depends solely on the marketplace’s assessment.

3. Self-Fulfillment and Individual Autonomy

This rationale treats freedom of speech as promoting every individual’s self-fulfillment and autonomy.

Under this rationale, non-political speech such as artistic expression is fully covered; as with the marketplace of ideas rationale, there is no hierarchy of speech. On the other hand, under this approach one wonders what is so special about freedom of speech inasmuch as other provisions of the Constitution–think substantive due process–similarly promote self-fulfillment and autonomy.

Observations

No single one of these rationales captures either the complexity of free speech issues or the actual free speech jurisprudence of the Supreme Court. For example, the self-government rationale does not do that good of a job in explaining why artistic expression and scientific speech should be protected by the First Amendment. Similarly, the marketplace of ideas and self-fulfillment/ individual autonomy rationales do not satisfactorily explain why obscene speech and child pornography are not at all protected by the First Amendment.

Only in combination do these rationales do an adequate job of justifying and explaining free speech jurisprudence. This is a point I made quite some time ago in a Wisconsin Law Review article on artistic expression. Others have made the same point.

Written by snahmod

January 19, 2010 at 11:35 am

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