Josh Chafetz John Roberts has strengthened GOP, weakened Conress, protected Trump

 Josh Chafetz (Georgetown) on the impact of John Roberts rulings have entrenched GOP power see (Rucho v. Common Cause - barring federal courts to partisan gerrymandering cases), Trump-protective (see immigration cases), and judicial power-enhancing (see judicial scrutiny of Congressional subpoenas).

See also this 2015 piece (https://t.co/BqT4KePDIT) on the way Roberts’s election law decisions have entrenched GOP power and this 2021 piece on how Vance/Mazars were both judiciary-empowering and Trump-protective (https://t.co/z1aD6c9871) https://t.co/Do2wL5xD6a

— Josh Chafetz (@joshchafetz) December 29, 2021

Symposium on Cass Sunstein and Adrian Vermeule’s “Law and Leviathan: Redeeming the Administrative State” Archives - Yale Journal on Regulation

OTHERWISE: Symposium on Cass Sunstein and Adrian Vermeule’s “Law and Leviathan: Redeeming the Administrative State” Archives - Yale Journal on Regulation

Proud Boys, Oathkeepers sued by D.C.'s Racine over Jan. 6 riot - The Washington Post

Proud Boys, Oathkeepers sued by D.C.'s Racine over Jan. 6 riot - The Washington Post

By Devlin Barrett

, 

Tom Hamburger

 and 

Rachel Weiner

 

December 14, 2021 at 1:00 p.m. EST

D.C. Attorney General Karl A. Racine (D) on Tuesday sued the Proud Boys and Oath Keepers over the Jan. 6 attack on Congress, seeking to use a law written to cripple the Ku Klux Klan to seek stiff financial penalties from the far-right groups that Racine alleges were responsible for the violence.

The lawsuit filed in federal court in Washington cites the modern version of an 1871 law known as the Ku Klux Klan Act, which was enacted after the Civil War to safeguard government officials carrying out their duties and protect civil rights. Two similar suits have been filed already this year related to Jan. 6 — one by Rep. Bennie G. Thompson (D-Miss.), chair of the House Homeland Security Committee, and another by a number of police officers who fought the rioters that day.

Racine’s suit, however, is the first effort by a government agency to hold individuals and organizations civilly responsible for the violence at the U.S. Capitol on the day Congress ceremonially confirmed President Biden’s 2020 election victory.

Proud Boys, Oathkeepers sued by D.C.'s Racine over Jan. 6 riot - The Washington Post

Proud Boys, Oathkeepers sued by D.C.'s Racine over Jan. 6 riot - The Washington Post

By Devlin Barrett

, 

Tom Hamburger

 and 

Rachel Weiner

 

December 14, 2021 at 1:00 p.m. EST

D.C. Attorney General Karl A. Racine (D) on Tuesday sued the Proud Boys and Oath Keepers over the Jan. 6 attack on Congress, seeking to use a law written to cripple the Ku Klux Klan to seek stiff financial penalties from the far-right groups that Racine alleges were responsible for the violence.

The lawsuit filed in federal court in Washington cites the modern version of an 1871 law known as the Ku Klux Klan Act, which was enacted after the Civil War to safeguard government officials carrying out their duties and protect civil rights. Two similar suits have been filed already this year related to Jan. 6 — one by Rep. Bennie G. Thompson (D-Miss.), chair of the House Homeland Security Committee, and another by a number of police officers who fought the rioters that day.

Racine’s suit, however, is the first effort by a government agency to hold individuals and organizations civilly responsible for the violence at the U.S. Capitol on the day Congress ceremonially confirmed President Biden’s 2020 election victory.

Ninth Circuit judge questions fairness of $9 million for privacy groups in Google Street View settlement | Courthouse News Service

Ninth Circuit judge questions fairness of $9 million for privacy groups in Google Street View settlement | Courthouse News Service

SAN FRANCISCO (CN) — After ordering Google to pay privacy rights groups $9 million from a $13 million settlement over data collected by its Street View cars, a Ninth Circuit judge said her colleagues should rethink the practice of distributing the fruits of hard-fought class actions to charitable organizations and nonprofits in place of direct payments to class members.

U.S. Circuit Judge Bridget Bade, a Donald Trump appointee, wrote there is an “increasing skepticism” over whether injured class members actually benefit from seeing their settlement money go to third parties, especially when they may not have even heard of the organization.

This type of settlement is known as cy pres, a French legal term meaning “as near as possible,” and is typically adopted when it is impractical to distribute money to a class.

LSN: Harvard Law School, Public Law & Legal Theory Research Paper Series, Vol. 23 No. 4, 12/16/2021 - gconk@fordham.edu - Fordham University Mail

 Constitutional Hardball" 

Forthcoming, Cambridge Handbook of ConstitutionalThoery (J. King & R.Bellamy eds.)
Harvard Public Law Working Paper No. 21-37

MARK TUSHNET, Harvard Law School
Email: mtushnet@law.harvard.edu

After defining the term constitutional hardball and examining how political actors defend specific examples of constitutional hardball, this Chapter examines why political actors engage in hardball, focusing first on their short-term political motivations and then turning to the function of constitutional hardball within reasonably well-functioning constitutional democracies. After examining how political actors defend hardball practices, it offers a “regime-centered” analysis, arguing that constitutional hardball is a signal of proposed or impending constitutional change, and the change might be for the better rather than for the worse. The Chapter ends with a discussion of what might be done to convert constitutional hardball into ordinary political maneuvering, concluding that such efforts are unlikely to succeed and might be inappropriate (though not illiberal) efforts to halt more or less ordinary transformations in political practices

LSN: Harvard Law School, Public Law & Legal Theory Research Paper Series, Vol. 23 No. 4, 12/16/2021 - gconk@fordham.edu - Fordham University Mail

 The Unable or Unwilling Doctrine: A View From Private Law" 

Harvard International Law Journal, Forthcoming
Harvard Public Law Working Paper No. 21-47

GABRIELLA BLUM, Harvard Law School
Email: gblum@law.harvard.edu
JOHN C. P. GOLDBERG, Harvard Law School
Email: jgoldberg@law.harvard.edu

May a threatened state use force against armed nonstate actors situated in another state? Proponents of the “Unable or Unwilling Doctrine” (UUD) answer in the affirmative, provided that the territorial state in which the nonstate actors are based is either unable or unwilling to tackle the threat by itself. Opponents reject the UUD, arguing that it has no place within existing international law.

The intense, multi-layered debates over the UUD have thus far been grounded primarily in the international law of self-defense. Moreover, both proponents and opponents of the doctrine have tended to treat its two prongs as interchangeable, such that the legality of a use of force or the consequences that follow from it are unaffected by which of the two explains the territorial state’s failure to negate the threat to the targeted state. This article challenges both of these features of UUD analysis.

Our first contention is that, while states enjoy limited leeway to use defensive force against nonstate actors in another state’s territory, the prerogative to enter the territorial state without other authorization is rooted in principles of necessity, not self-defense. In turn—and here we reach our second main contention—grounding the UUD in necessity suggests that, for cases in which the territorial state is unable, rather than unwilling, to deal with the threat, the threatened state is obligated to compensate the territorial state for its unpermitted entry, as well as for any resulting personal injury or property damage (other than harm to legitimate targets). Our third contribution is to explain why compensation might be owed, as a matter of equity, even in circumstances in which a state can claim, reasonably, that it bears no international legal responsibility.

All of these claims, we contend, are bolstered by interpreting international law through the lens of private law, particularly the Anglo-American law of tort and restitution and its rules for the imposition of liability in cases of “private necessity.”

LSN: Harvard Law School, Public Law & Legal Theory Research Paper Series, Vol. 23 No. 4, 12/16/2021 - gconk@fordham.edu - Fordham University Mail

What's the Harm of Trademark Infringement?" 
Akron Law Review, Vol. 49, No. 3, 2015
Harvard Public Law Working Paper No. 21-41

REBECCA TUSHNET, Harvard Law School
Email: rtushnet@law.harvard.edu

This Article explores the classic harm theories of trademark infringement that don't involve sales substitution and argues that courts should recognize their empirical weakness. Despite the expansion of infringement liability based on new theories of such harm, questions about what constitutes trademark harm are now being reexamined at the remedy stage. These changes are positive to the extent that they make courts rethink overly expansive models of trademark confusion.

Congress's Article III Power and the Process of Constitutional Change by Christopher Jon Sprigman :: SSRN

Congress's Article III Power and the Process of Constitutional Change by Christopher Jon Sprigman :: SSRN

Christopher Jon Sprigman

New York University School of Law; New York University (NYU) - Engelberg Center on Innovation Law & Policy

Date Written: August 8, 2020

Abstract

Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that has how the power has historically been understood.

Is Congress’s power to remove the jurisdiction of federal courts in effect a legislative power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which Supreme Court has never spoken definitively.

In this Article, I argue that Congress’s Article III power can be understood as a means by which Congress may change the Constitution without amending it. I argue, further, that we should welcome it as such. Working through the ordinary legislative process, Congress may remove the jurisdiction of federal courts to hear cases involving most questions of federal law, including cases that raise questions under the federal Constitution. To be clear, I am not arguing that the Constitution unambiguously establishes this congressional power. As on so many important issues, the Constitution is indeterminate: Article III provides a textual foundation for the power, and neither history nor precedent rule it out. In this matter, however, what Congress does is more important than anything the Constitution says. The Constitution’s indeterminacy opens a space for Congress to reclaim authority, in particular cases, over constitutional interpretation. If a determined Congress acts to fill that space, courts will have little power to resist. Correction, if it comes at all, will come from voters.

Understood this way, the implications of Congress’s Article III power are potentially transformative. Congress may prescribe, by ordinary legislation, constitutional rules in areas where the meaning of the Constitution is unsettled. Or it may displace otherwise settled constitutional rules by ordinary legislation. In either case, Congress may remove the jurisdiction of federal courts to hear constitutional challenges to its interventions. And Congress may do the same with respect to state courts.

To be clear, Article III does not permit Congress to escape accountability. Rather, Article III gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters. In the push-and-pull between judicially-enforced constitutional rules and the desires of current democratic majorities, the potential for Congress’s exercise of its Article III power helps legitimate both constitutionalism and judicial review.

Keywords: constitutional law, constitutionalism, democracy, judicial review, federal courts

Suggested Citation:

Sprigman, Christopher Jon, Congress's Article III Power and the Process of Constitutional Change (August 8, 2020). New York University Law Review, Vol. 95, No. 6, 2020, Available at SSRN: https://ssrn.com/abstract=3669954

The brutal trade in enslaved people within the US has been largely whitewashed out of history

The brutal trade in enslaved people within the US has been largely whitewashed out of history

by Joshua D. Rothman (University of Alabama)

For my recently published book, “The Ledger and the Chain,” I visited more than 30 archives in over a dozen states, from Louisiana to Connecticut. Along the way, I uncovered mountains of material that exposed the depravity of the men who ran the largest domestic slave trading operation in American history and revealed the fortitude of the enslaved people they trafficked as merchandise.

But I also learned that many Americans do not realize that a domestic slave trade existed in the U.S. at all.

Slave trader Joseph Bruin placed this advertisement in the Alexandria Gazette on March 20, 1844. City of Alexandria, Virginia

Mentioning my research to others repeatedly provoked questions about Africa, not America. They obviously assumed that a scholar working on the slave trade must be working on the trade that brought millions of Africans to the Western Hemisphere via the terrifying Atlantic Ocean crossing known as the Middle Passage.

They did not appear to know that by the time slavery ended in 1865, more than 1 million enslaved people had been forcibly moved across state lines in their own country, or that hundreds of thousands more had been bought and sold within individual states.

The nihilism of Neil Gorsuch on the Supreme Court - Vox

The nihilism of Neil Gorsuch on the Supreme Court - Vox

Trump’s first Supreme Court appointee’s radical vision to remake America, explained.

By Ian Millhiser  Oct 2, 2021, 8:00am EDT

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Neil Gorsuch was ready to blow up the US housing market over a minor legal violation.

The case in front of the Supreme Court was Collins v. Yellen (2021), which had at its center the Federal Housing Finance Agency (FHFA), an obscure body that oversaw hundreds of billions of dollars’ worth of transactions intended to stabilize the housing market after the 2008 recession. The FHFA is led by a single director whom only the president can fire “for cause.” The plaintiffs in Collins v. Yellen argued the president must have unlimited power to fire the agency’s head, citing the Supreme Court’s 2020 ruling in Seila Law LLC v. Consumer Financial Protection Bureau (CFPB).

But under the Collins plaintiffs’ arguments, it also followed that if the FHFA head was fired, every action the agency had taken since its creation in 2008 should be declared void — a truly radical prospect. That argument won very little favor from the justices. Last June, the Court handed down a relatively modest opinion that gave President Joe Biden (and all future presidents) the power to fire the FHFA director without reversing the agency’s past work.

But Gorsuch would have none of it.

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In a partial dissent, Gorsuch complained that his colleagues were too spooked by the prospect of “unwinding or disgorging hundreds of millions of dollars that have already changed hands” (an underestimate of the amount of money at stake by several orders of magnitude). The proper approach, Gorsuch opined in Collins, was to declare the FHFA’s actions “void.”

If Gorsuch had gotten his way, 13 years of work and hundreds of billions of dollars’ worth of transactions would have been unraveled, possibly delivering a shock to the mortgage-lending industry similar to that of the 2008 crisis — or even sending the world economy into a tailspin.

And yet, for Gorsuch, the potential consequences were irrelevant to how the Court should rule.

Fordham Law Mourns the Loss of Professor Gail D. Hollister '70

Gail Hollister was the most dedicated teacher I have ever known.  She did the unglamorous work - tutoring students who were struggling, reading hundreds of applications for admission, taking on administrative tasks, preparing for class. 

- GWC

Fordham Law Mourns the Loss of Professor Gail D. Hollister '70

The Fordham Law community is mourning the passing of Professor Gail D. Hollister ’70, longtime Archibald R. Murray Professor of Law and Murray Professor of Law Emerita. Hollister was a member of the Fordham Law faculty for 40 years—from 1977 until her retirement in 2017. She was chosen by Dean Emeritus and Norris Professor of Law John D. Feerick ’61 to serve as the first leader of the newly created student affairs office while serving as a full-time faculty member. Hollister was also named director of legal writing in 1982, was the first holder of the Archibald R. Murray Chair of Law, and was named the first associate dean of administration in 2001. She also proudly served as an advisory board member of The Feerick Center for Social Justice, beginning in 2017. Hollister died on April 29 at the age of 75. She is survived by her husband, Edward G. Williams, her son, Gregory P. Williams, and her daughter-in-law, Sarah R. Williams.

“Gail spent virtually her whole adult life at Fordham Law—as a student, member of the faculty and associate dean,” said Dean Matthew Diller. “One of her most admirable qualities was her devotion to the students, putting them first and always being there with her office door open to answer students’ questions.”

“Gail has earned accolades from students over the years for her brilliance, for knowing tort law inside and out, and for her ability to respond to students’ questions with clear examples,” he continued. “She was a consummate teacher of law and a wonderful colleague, and she will be sorely missed by all.”

Professor Hollister on her graduation day from Fordham Law School in 1970. Photo: Courtesy of Gregory Williams.

Hollister majored in political science and graduated from the University of Wisconsin in 1967. She earned a J.D. from Fordham Law in 1970 and was a member of the Fordham Law Review and the Law School’s social committee.

After graduating from Fordham Law, Hollister clerked for the late Judge Inzer B. Wyatt, U.S. District Judge for the Southern District of New York. Hollister later was an associate at Webster, Sheffield, Fleischmann, Hitchcock & Brookfield, and practiced at Merrill Lynch, Pierce, Fenner & Smith where she specialized in securities regulation.

Hollister joined the Fordham Law School faculty the fall of 1977 under the leadership of Hon. Joseph McLaughlin, who served as dean from 1971 to 1981.