American Constitution Society News
The 2011 Richard D. Cudahy Writing Competition On Regulatory and Administrative Law
The American Constitution Society for Law and Policy is pleased to announce its fourth annual Richard D. Cudahy Writing Competition on Regulatory and Administrative Law. Judge Cudahy's work in these areas combines a keen grasp of legal doctrine, deep insight into the institutional forces that determine how doctrine is implemented, and an appreciation of the public impact of doctrinal and institutional choices, including the consequences for fundamental values such as fairness, participation, and transparency. This competition seeks to encourage and reward these qualities in the scholarship of others.
Overview: The Richard D. Cudahy Writing Competition on Regulatory and Administrative Law is open to a wide array of participants. Practicing lawyers, policymakers, academics, and law students all are encouraged to take part. The judging committee will include federal judges and leading academics. A winner will be selected in both the lawyer and student categories. The author of the winning paper in each category will receive a cash prize of $1,500. The winning papers will receive special recognition at the ACS National Convention, on the ACS website, and potentially through other means agreed upon by the authors and ACS.
We encourage participants to view this topic broadly and welcome submissions on a variety of substantive areas.
The deadline for submissions is February 11, 2011.
Assessing the Indigent Defense System
An Issue Brief by:
Erica J. Hashimoto
ACS is pleased to distribute "Assessing the Indigent Defense System,"an Issue Brief by Erica J. Hashimoto, Associate Professor of Law at the University of Georgia School of Law. Professor Hashimoto's Issue Brief is the third in a series that ACS will be publishing focused on ideas for a role that the federal government can play in helping improve the indigent defense system around the country. Attorney General Eric Holder, Congress, and other federal policymakers have taken notice of the crisis in indigent defense that has existed since 1963 when the U.S. Supreme Court held in Gideon v. Wainwright that each state has an obligation under the Sixth Amendment to the U.S. Constitution to provide a criminal defendant with an attorney when he or she cannot afford one, and they have specifically identified reform of the system as a priority. Professor Hashimoto examines the significant gaps that exist in the data available to evaluate the operation of the system and offers specific recommendations as to what the U.S. Department of Justice (DOJ), through its Bureau of Justice Statistics (BJS), can do to help improve the state of the data and assist with reform.
Professor Hashimoto observes that, "in spite of the fact that we live in an era that is preoccupied with data, we still lack data on the most basic questions related to the indigent defense system." She points out that we do not have the data to tell us "how many defendants are represented by the indigent defense systems" or "how many misdemeanor defendants have a right to counsel." As a result, we cannot determine "what percentage of defendants who are entitled to court-appointed representation go unrepresented." Professor Hashimoto asserts that the limited available data point to regular violations of the Constitution, but that "[w]ithout more complete data, it is impossible to adequately assess this fundamental constitutional right and know the extent of any violations around the country." She discusses several sets of data that are needed and ways in which DOJ and BJS could make significant improvements by collecting and analyzing these data. Professor Hashimoto recognizes that this will not be an easy or costless process, and that data cannot solve all of the problems with the indigent defense system, but concludes that "until we have data establishing the nature and magnitude of the problems and the most effective mechanisms for addressing those problems, we cannot begin the process of systematically solving them."
All of the Issue Briefs that ACS has published as part of this series, as well as other materials related to indigent defense, can be found by clicking here. For more information and to download the issue brief, click here.
Table of Contents:
- ACS News and National Events
- ACSblog Highlights
- Law and Policy News
- Upcoming ACS Lawyer, Student Chapter Events
- ACS Job Opportunities
- Other Job Opportunities
- Fellowships and Internships
- President Obama Criticizes Lack of Movement on Judicial Nominations.
- Report: The Roberts Court is Most Conservative in "Living Memory."
- WikiLeaks Fallout.
- Recusal Standards for Justices.
- Tobacco Companies Lose Appeal.
- The ADA at 20.
From Error Toward Quality: A Federal Role in Support of Criminal Process
An Issue Brief by: James M. Doyle
ACS is pleased to distribute "From Error Toward Quality: A Federal Role in Support of Criminal Process," an Issue Brief by James M. Doyle. Mr. Doyle is a lawyer in private practice with the Boston law firm of Carney & Bassil and the former head of the Public Defender Division of the Massachusetts Committee for Public Counsel Services, which is the statewide public defender agency.
Mr. Doyle begins his Issue Brief by observing that "[c]ontemporary medicine is experiencing a vibrant quality reform movement born in the aftermath of horrific reports of fatal medical errors." Based on the reform experience in medicine, which is a team-oriented effort built on learning from routine human errors to improve practices and "prevent those inevitable errors from ripening into tragedies," he sees an opportunity for the federal government to "catalyze the willingness of criminal justice practitioners and stakeholders to learn from their own mistakes . . . and lay the groundwork for a continuous quality improvement initiative in America's criminal justice systems." With the federal government's help in designing a common template for assessing errors in the system, serving as a clearinghouse for collecting and sharing the analyses of errors performed at the local level, and providing other modest technical and financial support, Mr. Doyle believes that this effort could "set in motion a cultural shift that improves criminal justice, not by imposing top-down federal micro-management, but by exploiting the talents and insights of local systems' frontline practitioners." He also believes that it could "change a culture to one that routinely, every day, concentrates on improving the reliability of the criminal process for the victims, the accused, and the public."
Mr. Doyle's Issue Brief is the second in a series that ACS will be publishing focused on ideas about a possible role that the federal government can play in improving indigent defense systems in states around the country. Attorney General Eric Holder, Congress, and many other federal policymakers have taken notice of the crisis in indigent defense that has existed since 1963 when the U.S. Supreme Court held in Gideon v. Wainwright that each state has an obligation under the Sixth Amendment to the U.S. Constitution to provide a criminal defendant with an attorney when he or she cannot afford one, and they have specifically identified reform of the system as a priority. Mr. Doyle's systemic approach to criminal justice reform, which he believes will help identify problems that undermine compliance with the Sixth Amendment, offers another recommendation as to what the U.S. Department of Justice, Congress, and other parts of the federal government do to help bring about reform.
Disorderly (mis)Conduct: The Problem with "Contempt of Cop" Arrests
An Issue Brief by Christy E. Lopez
ACS is pleased to distribute "Disorderly (mis)Conduct: The Problem with 'Contempt of Cop' Arrests," an Issue Brief by Christy E. Lopez, a civil rights attorney with a practice focusing on police and criminal justice reform. Almost a year ago, the issue of "contempt of cop" arrests was thrust into the national news when Harvard University Professor Henry Louis Gates, Jr., was arrested by Cambridge Police Department Sergeant James Crowley. Sergeant Crowley was responding to a 911 caller who had reported a burglary in progress at Professor Gates's home, which is where the two encountered each other. As the events unfolded - Crowley's investigation of the burglary call and Gates's response to the Crowley's questions and actions - the situation escalated, and led to Sergeant Crowley arresting Professor Gates for disorderly conduct in the middle of the day just outside the front door to his house. The charges were later dropped, and after President Obama waded into the whole affair by saying that he thought the police acted "stupidly," the President later hosted a "beer summit" with both Gates and Crowley at the White House to help resolve the situation.
Ms. Lopez argues that "Sergeant Crowley's decision to arrest Professor Gates may or may not have been stupid. It may or may not have been consistent with Cambridge Police Department policy. But, if the facts are as Crowley asserted in his arrest report, the arrest was unlawful." She describes the law, and contends that, however loud, rude, or obnoxious Gates was, his behavior "falls squarely in the realm of speech protected by the First Amendment," and he should not have been arrested. Ms. Lopez continues that, "[d]espite its illegality, the arrest of Professor Gates was not unusual. This scenario - an individual being arrested after responding obstreperously to perceived police misconduct - is one that plays out routinely across the United States, albeit without the Ivy League backdrop or culminating in conflict-resolution-through-beer."
In this Issue Brief, Ms. Lopez asserts that there is "widespread misunderstanding of police authority to arrest individuals who passively or verbally defy them" and that there is "abundant evidence that police overuse disorderly conduct and similar statutes to arrest people who 'disrespect' them or express disagreement with their actions." She believes that "abusive arrests cause direct and significant harm to those arrested and, more generally, undermine the appropriate balance between police authority and individual prerogative to question the exercise of that authority." To fully explore this issue, Ms. Lopez discusses the relevant law governing these types of arrests, and several investigations of problems in police departments around the country. She then details her reasons for asserting that "the harm caused by improper arrests and threats of arrest for disorderly conduct far outweighs the justification given by some police and pundits for the aggressive (overly-aggressive, some would say) use of these statutes," and concludes by proposing "a roadmap for legislators, advocates, law enforcement officials, and others seeking to address this problem."
Citizens United: The Aftermath
An Issue Brief by Monica Youn
ACS is pleased to distribute Citizens United: The Aftermath, an Issue Brief by Monica Youn, Counsel at the Brennan Center for Justice at New York University Law School. In this Issue Brief, Ms. Youn examines the political impact of the Supreme Court's January 21, 2010 decision in Citizens United v. Federal Election Commission and outlines potential responses that, the author contends, "would buttress existing campaign finance safeguards from further attacks and mitigate some of the harmful effects of [the decision]." In Citizens United, the Court held that limitations on corporate funding of independent political broadcasts in candidate elections violate the First Amendment, striking down a significant portion of the Bipartisan Campaign Finance Reform Act. Ms. Youn contends that the 5-4 decision represents an undermining of precedent with potentially grave consequences:
By holding, for the first time, that corporations have the same First Amendment rights to engage in political spending as people, the Supreme Court re-ordered the priorities in our democracy -- placing special interest dollars at the center of our democracy, and displacing the rightful role of voters.
Ms. Youn proposes a variety of responses to the decision. In the short term, the author recommends a legislative response that includes enactment of stop-gap measures (such as shareholder consent and increased corporate disclosure requirements) and larger structural reforms (such as public financing and voter registration modernization). However, in the longer term, Ms. Youn recommends closer attention to the Judiciary and judicial nominations:
[I]n the long term, reclaiming the First Amendment for the voters will be the best weapon against those who seek to use the First Amendment for the good of the few, rather than for the many. Judges whose conception of the First Amendment takes account of the interests of voters can speed this process. As the nation seeks a successor to Justice Stevens, we hope that his successor advances a vision of a democratic, deliberative, and voter-centric First Amendment.
"The Prop 8 Court Can Have it All: Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role"Posted June 1st, 2010 by Virginia Mattingly
ACS is pleased to distribute The Prop 8 Court Can Have it All: Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role, an Issue Brief by Rebecca L. Brown, Newton Professor of Constitutional Law at the University of Southern California Gould School of Law. In this Issue Brief, Professor Brown discusses Perry v. Schwarzenegger, in which the United States District Court for the Northern District of California is considering whether the United States Constitution requires states to permit marriage between individuals of the same sex. While strong arguments may very well exist for a broad ruling, Professor Brown suggests that the case might also lend itself to a more modest resolution of the claims raised. Proposition 8 was a ballot initiative that originated as a reaction to a California Supreme Court decision interpreting California's Constitution as requiring the state to permit same-sex couples to marry; Proposition 8 subsequently added to the California Constitution a provision that "[o]nly marriage between a man and a woman is valid or recognized in California." After extensive analysis of case law, the author concludes that the United States Constitution's Equal Protection jurisprudence dictates that Proposition 8 be struck down, since "[a]ny legislation must have a public purpose other than stigmatization," and "no public purpose that could plausibly be served by this retroactive reduction in status has been offered to dispel the usual inference that any act of stigmatization is a violation of the state's obligation to legislate impartially."
While a decision along these lines would not touch upon the breadth of the fundamental right to marry, Professor Brown suggests that this modest resolution of Perry "would fulfill the best expectations we have of the federal judicial role, to resolve the case on strong, unassailable, time-honored, and yet narrow, grounds."
As the author argues:
A ruling of the kind I will advocate would not be an act of minimalism, but neither would it be an act of maximalism. Rather, this would be an exercise in judicial optimalism -- using good judgment to determine just how much judicial intervention is necessary to vindicate the core and essential purposes of the judicial role, without unnecessarily diverting the course of more widespread social and political movements that are at the heart of healthy and lasting legal change.
Click here to access the document.
The Kentucky Lawyer Chapter and the University of Louisville Louis D. Brandeis School of Law Student Chapter of the American Constitution Society present: "The Constitution in 2020: Religion in the Public" on April 27 at the Louisville Bar Association.
The Constitution in 2020 is a new book edited by Yale Law professors Jack Balkin and Reva Siegel. It is a collection of essays by leading constitutional scholars regarding the directions that constitutional law should take in the decades to come.
- William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law; Visiting Professor of Law, The George Washington University Law School; Member, Board of Directors, American Constitution Society; and Contributing Author, The Constitution in 2020
- Paul E. Salamanca, Wyatt, Tarrant and Combs Professor of Law, University of Kentucky College of Law
- David Tachau, Moderator, Partner, Tachau Meek PLC
There will be a reception following the panel discussion. The event is free of charge. 1.0 hours of CLE credit is pending for this event. The cost is $30 for members of the Louisville Bar Association and $60 for nonmembers.
Please RSVP online.
This event is co-sponsored by Americans United for the Separation of Church and State, Kentucky Chapter and the Louisville Bar Association.