Wednesday, August 16, 2017

Fordham University Statement on Charlottesville

University Statement on Charlottesville

Dear Members of the Fordham Family,
You have likely heard of the ugly events that took place in Charlottesville on Saturday. Fascism, Nazism, and Racism were literally on the march, and at this point we know of one person killed and at least 19 injured, believed to be the victims of the action of a deluded and hateful member of the racist mob that gathered in Charlottesville for a white supremacy rally. I know you join me in mourning both the woman who was killed, and the two police officers who died when their helicopter crashed that afternoon. Our thoughts and prayers are with their families, and with the people who were injured and their loved ones.
I am a historian, and I can assure you that the marchers, and almost certainly the person who drove into the crowd of peaceful demonstrators, are on the wrong side of history (I say “almost” because it is still possible, if unlikely, that the act was unintentional). I believe that rights for people of color, LGBT people, Jewish people, immigrants—and all of the would-be targets of Saturday’s marchers—will continue to expand and be protected in our country. If this incident has a silver lining, it is the swift, bipartisan rejection of the marchers’ rhetoric, beliefs, goals and actions.
As a priest, as a university president, and as a human being, my heart goes out to the intended targets and victims of the march, victims who number in the millions, and who include marginalized people everywhere, and anyone who cares about decency, compassion, and justice. Fordham University stands against everything the marchers represent—the hate, the bigotry, the profound ignorance, the casual cruelty, and the violent and vicious expression of those views. Such ideas and sentiments have no place in a civilized society, and of course are completely antithetical to both the Gospel values and Jesuit beliefs that have always guided the University.
I know many of you will not be back on campus for another ten days or so: the University will certainly support events for members of the University community who wish to come together for reflection and prayer in the wake of the events in Charlottesville.
Finally, to those who feel targeted by the Charlottesville marchers, know that the Fordham community supports you and is here for you. Though it may not seem so in moments like this, decency and compassion do prevail. We will get though this trying time together.
Sincerely,
Joseph M. McShane, S.J

Sunday, August 6, 2017

The Policies of White Resentment - The New York Times

The Policies of White Resentment - The New York Times

by Carol Anderson - Emory University  (Author of White Rage: the Unspoken Truth of our Racial Divide)

White resentment put Donald Trump in the White House. And there is every indication that it will keep him there, especially as he continues to transform that seething, irrational fear about an increasingly diverse America into policies that feed his supporters’ worst racial anxieties.
If there is one consistent thread through Mr. Trump’s political career, it is his overt connection to white resentment and white nationalism. Mr. Trump’s fixation on Barack Obama’s birth certificate gave him the white nationalist street cred that no other Republican candidate could match, and that credibility has sustained him in office — no amount of scandal or evidence of incompetence will undermine his followers’ belief that he, and he alone, could Make America White Again.
The guiding principle in Mr. Trump’s government is to turn the politics of white resentment into the policies of white rage — that calculated mechanism of executive orders, laws and agency directives that undermines and punishes minority achievement and aspiration. No wonder that, even while his White House sinks deeper into chaos, scandal and legislative mismanagement, Mr. Trump’s approval rating among whites (and only whites) has remained unnaturally high. Washington may obsess over Obamacare repeal, Russian sanctions and the debt ceiling, but Mr. Trump’s base sees something different — and, to them, inspiring.

Friday, July 21, 2017

Miller v. Davis - counsel fees awarded against defiant County Clerk

The United States Supreme Court's 2015 ruling in Obergefell v. Hodges put to rest the issue of whether same sex couples had a right to marry.  A Kentucky County Clerk Kim Davis responded by refusing to issue any marriage licenses.She was briefly jailed for contempt of court - defiance of a preliminary injunction.  Judge David L. Bunning has now rejected the Magistrate's recommendation to deny counsel fees on the ground that April Miller was not a prevailing party because the case resolved short of the permanent injunction plaintiff had sought in her complaint. The court allowed counsel fees of $222, 695, plus costs.  - gwc
Bunning, D.J. Memorandum and Order awarding counsel fees to plaintiff, July 21, 2017 and rejecting
Recommended Disposition and Order of Magistrate denying motion for counsel fees

Monday, July 3, 2017

Program to Spur Low-Income Housing Is Keeping Cities Segregated - The New York Times


The history of "white flight" and suburban segregation.

THE COLOR OF LAW A Forgotten History of How Our Government Segregated America
By Richard Rothstein
Illustrated. 345 pp. Liveright Publishing. $27.95.
Reviewed by David Oshinsky
In the summer of 1950, with Americans reeling from the news of North Korea’s invasion of South Korea and Senator Joseph McCarthy’s ever expanding “Red hunt” in Washington, Time magazine ran a disarmingly cheerful cover story about the nation’s housing boom, titled: “For Sale: A New Way of Life.” Featuring the builder William Levitt, who had recently transformed some Long Island potato fields into a sprawling complex of starter homes — two bedrooms, one bath and an extension attic for $7,990 — it spoke reverentially of the development’s parks and playgrounds and many rules. “Fences are not allowed,” Time noted. “The plot of grass around each house must be cut at least once a week,” and laundry couldn’t be hung outside “on weekends and holidays.”
One rule, however, was conveniently absent from the piece. Homeowners in Levittown were forbidden to rent or sell to persons “other than members of the Caucasian race.” Asked about this so-called “racial covenant,” Levitt blamed society at large. “As a Jew, I have no room in my mind or heart for racial prejudice,” he said. “But I have come to know that if we sell one house to a Negro family, then 90 or 95 percent of our white customers will not buy into the community. This is their attitude, not ours. As a company, our position is simply this: We can solve a housing problem, or we can try to solve a racial problem, but we cannot combine the two.”
At first glance, Levittown stands as a prime example of de facto segregation, which results from private activity, as opposed to de jure segregation, which derives from government policy or law. Levitt, after all, appeared to be an independent businessman responding to the prejudices of the home buyers he hoped to attract. In truth, it wasn’t that simple. As Richard Rothstein contends in “The Color of Law,” a powerful and disturbing history of residential segregation in America, the government at all levels and in all branches abetted this injustice. “We have created a caste system in this country, with African-Americans kept exploited and geographically separate by racially explicit government policies,” he writes. “Although most of these policies are now off the books, they have never been remedied and their effects endure.”
Levittown reflected this dynamic. Popular with World War II veterans and their families, its 17,500 houses required no down payment. The federal government guaranteed low-interest bank loans for Levitt to build them, and low-interest mortgages for veterans to buy them. The government also made clear that developers receiving these incentives must sell to whites only.
It didn’t stop there. In the 1950s, following a Supreme Court decision that restricted the scope of racial covenants, an African-American veteran bought a house in a second Levitt development outside Philadelphia. A white mob formed, the house was pelted with rocks and crosses were burned on the lawn. Amazingly, the black family held out for several years before moving back to a segregated neighborhood. Rothstein sees this incident, and dozens like it, as an insidious form of de jure segregation — the failure of racially biased police and public officials to protect African-Americans from unlawful intimidation
KEEP READING REVIEW
Continue reading the main stor
Program to Spur Low-Income Housing Is Keeping Cities Segregated - The New York Times 

by 

HOUSTON — A mural on the wall of an elementary school here proclaimed, “All the world is all of us,” but the hundreds of people packing the auditorium one night were determined to stop a low-income housing project from coming to their upscale neighborhood.

The proposed 233-unit building, which was to be funded with federal tax credits, would burden their already overcrowded elementary school with new children, many people argued during a lively meeting last year. Some urged the Houston Housing Authority to pursue cheaper sites elsewhere.

As cheers rang out over nearly three hours for every objection raised, Chrishelle Palay, a fair-housing advocate, confronted the mostly white crowd.

“It’s time to face your fears,” Ms. Palay said as boos rang out. “Stop succumbing to misleading rhetoric, and begin practicing the inclusive lifestyles that many of you claim to lead.”

Continue reading the main story
RETRO REPORT
Housing Bias and the Roots of Segregation September 2016

Advocates of Fair Housing Face a Tough Four Years - January 2017

Wednesday, June 28, 2017

Unlocking the Mysteries of Trump v. International Refugee Assistance It's All About that Stay (and Its Surprising Limits) | Take Care

Unlocking the mysteries of Trump v. International Refugee Assistance

by Marty Lederman

Many close observers of the Court are still scratching their heads, trying to figure out just exactly what the Court did yesterday in Trump v. IRAP–and why.  With the luxury of a few hours to ponder the mysteries, here are some tentative speculations on the most commonly posed questions.***



KEEP READING



It's All About that Stay (and Its Surprising Limits) | Take Care

by Marty Lederman



Preliminary thoughts (reserving the right to add more as the day goes on!):
The Court nominally granted certiorari in the two "travel ban" cases today, but for reasons I've already explained--reasons the Court implies in its opinion--that's likely to have very little, if any, legal significance, because the case will almost certainly be mooted out by the time oral argument rolls around--and not because of the original March 14 expiration date, which the Court asked the parties to address, and which is no longer a real issue in light of the President's amended Executive Order changing the expiration date of the entry ban.
No, the case will be moot for two other reasons:  For one thing, the 90-day entry ban goes into effect 72 hours from now, at least as to some aliens (see below), and thus it will expire by its terms on September 27.  Moreover, as the Court explains, by October the Section 2 "internal review" should be completed ("[W]e fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).”), and therefore the predicate for the entry ban will be kaput by then, too.
To be sure, it is very possible that at the end of the internal agency review, the Administration might impose a new entry ban, or something similar, with respect to aliens who are nationals of particular countries (perhaps a subset of the six now covered; perhaps some different countries altogether--who knows?).  But if and when it does so, it will be based on a very different factual record, different national security assessments, and, presumably, it will have different terms.  Accordingly, the legality of such a ban (or other entry restrictions) would have to be adjudicated in new lawsuits, beginning at the start, in district courts.  I will therefore be very surprised if the Court issues a merits opinion in these cases--indeed, it's very possible there won't be any oral argument.

OTHERWISE: What Happened in Hernandez v. Mesa? - Lawfare

OTHERWISE: What Happened in Hernandez v. Mesa? - Lawfare

By Andrew Kent
 Tuesday, June 27, 2017, 2:23 PM
During a back-and-forth on Lawfare with Steve Vladeck a few months ago, I suggested that Hernandez v. Mesa, pending at the Supreme Court this term, had the potential to generate a very important opinion: the Fourth Amendment issue in the case could impact the legality of worldwide extraterritorial national security activities by the U.S. government like electronic surveillance and drone strikes.
Hernandez arose out of the deadly shooting of a Mexican national in Mexico by a U.S. border patrol agent standing in the United States. Under a Supreme Court case dating back to 1990, also arising in Mexico, the Fourth Amendment does not protect noncitizens located outside the United States, unless they have some pre-existing substantial, voluntary connection to the United States. The deceased in Hernandez lacked any such connection.
But the Court’s 2008 decision in Boumediene v. Bush, applying the Constitution’s Habeas Suspension Clause to the noncitizen detainees at the Guantanamo base, arguably overruled a bright-line approach to determining the Constitution’s applicability beyond U.S borders. Instead, the Court applied totality of the circumstances analysis. Using Boumediene, the plaintiffs’ counsel in Hernandez, among whom is Steve, argued that the Court could rule for their clients on the applicability of the Fourth Amendment without opening the entire can of worms about extraterritorial national security activities. This was possible, they suggested, because like Guantanamo—Cuban sovereign territory, but leased permanently and controlled exclusively the by U.S. government—the Mexico-U.S. border area is a sui generis territory. This border, they argued, was a liminal zone of shared control with constantly traversing populations, and therefore wholly unlike purely foreign territory.
I was skeptical that the border was truly so unique and that a Fourth Amendment ruling for the plaintiffs could be cabined and limited so neatly.
On Monday, the Court vacated and remanded Hernandez to the Fifth Circuit, declining to rule on the merits of the Fourth Amendment. It avoided this constitutional issue, the Court told us, because “[t]he Fourth Amendment question in this case . . . is sensitive and may have consequences that are far reaching.” This per curiam opinion was issued for Chief Justice Roberts and Justices Kennedy, Alito, Sotomayor, and Kagan. Along the way the Court made important statements about Bivens (more below) and qualified immunity.
Justice Thomas concurred, saying he would have ruled for the border patrol agent on Bivens grounds. Justice Breyer, joined by Justice Ginsburg, dissented, essentially adopting the plaintiffs’ view of the Fourth Amendment. Justice Gorsuch did not participate, as he was seated after oral argument.
What can we glean from the per curiam’s treatment of the Fourth Amendment? We know that five justices seized the opportunity to duck the issue for now. They did so by directing the Fifth Circuit to apply the Court’s new decision in Ziglar v. Abassi on the availability of Bivens, before reaching the merits. 

Tuesday, June 27, 2017

Good Journalism Requires Clarity, Accuracy – Talking Points Memo

Good Journalism Requires Clarity, Accuracy – Talking Points Memo

by Josh Marshall

Pretending that both parties just have very different approaches to solving a commonly agreed upon problem is really just a lie. It’s not true. One side is looking for ways to increase the number of people who have real health insurance and thus reasonable access to health care and the other is trying to get the government out of the health care provision business with the inevitable result that the opposite will be the case.

If you’re not clear on this fundamental point, the whole thing does get really confusing. How can it be that both sides flatly refuse to work together at all? As Bash puts it, “Why can’t these parties work together on something that is such a huge part of the economy, that is something that is so vital to everybody’s lives, all of their constituents’ lives, [it’s] mind boggling.”

Monday, June 26, 2017

Verb That Adjective Noun! “Google” Is Not (Yet) Generic. | LIKELIHOOD OF CONFUSION®

In David Elliot v. Google, Inc. the Ninth Circuit last month rejected the argument that Google is a victim of genericide: that as a verb google it is synonymous with search on the internet.  In such cases - Murphy beds are a prime example - the term loses its ability to identify the source.



Verb That Adjective Noun! “Google” Is Not (Yet) Generic. | LIKELIHOOD OF CONFUSION®

Friday, June 23, 2017

Balkinization: Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]

Rebecca Tushnet's 43(B)log: Slightly cooler take on Tam


Balkinization: Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]


Marty Lederman

 The constitutional analysis in the Supreme Court's decision yesterday in Matal v. Tam is, with one exception, split between two four-Justice opinions, the first written by Justice Alito (joined by the Chief Justice, and Justices Thomas and Breyer), and the second written by Justice Kennedy (joined by Justices Ginsburg. Sotomayor and Kagan).   Here are a few preliminary reactions to those opinions.