Category Archives: Constitutional Law

Published: “The Misuse of Asian Americans in the Affirmative Action Debate”

I have a short essay called “The Misuse of Asian Americans in the Affirmative Action Depate” just out in the UCLA Law Review Discourse — the online companion to the UCLA Law Review — about the way opponents of affirmative action have attempted to leverage Asian American identity and experience in support of their position. Of course, some Asian Americans do oppose affirmative action, as is to be expected in a large and very heterogeneous community, but the larger point of my essay is that the claim that “Asian Americans” are “harmed” by affirmative action is not supported.

Justin Pidot: “Tie Votes in the Supreme Court”

In light of Justice Scalia’s recent passing, check out my University of Denver colleague Justin Pidot‘s brand new paper on SSRN, “Tie Votes in the Supreme Court.” Justin gives us some empirical data on 4-4 splits in the Supreme Court and argues that the court should dismiss cases as improvidently granted if the result would be a tie.

The RightsCast, Ep. 12, Pt. 2: Charlotte Garden, “Meta Rights”

I released this last week and just realized I forgot to post it on the blog. Part 2 of Charlotte Garden’s discussion of her article “Meta Rights.”

Due to the holiday this weekend, there will be no new episode of The RightsCast this week. It will return next week.

The RightsCast, Episode 12, Part 1: Charlotte Garden, “Meta Rights”

This week’s episode of The RightsCast features Professor Charlotte Garden (Seattle U), a scholar of labor law and constitutional law as well as Litigation Director at the school’s Korematsu Center for Law & Equality. (I am also proud to say that I have coauthored an article with Charlotte on the potential for coalitions between civil rights and labor interests —  it’s called “So Closely Intertwined: Labor and Racial Solidarity” and appeared in the George Washington Law Review in 2013.)

On The RightsCast, Charlotte discusses her article “Meta Rights,” which appeared in the Fordham Law Review and which examines when and why we’re entitled to be informed of our constitutional rights. As I’ve done with some other recent guests, I split our conversation into two parts; here is Part One:

The RightsCast, Episode 11, Part 2: Osamudia James, “White Like Me”

The second part of my conversation with Osamudia James (Miami Law) about her wonderful article “White Like Me” is now available! Check it out. Great material for those who teach affirmative action in Constitutional Law I and II, or for any upper level seminar relating to race.

On Hamilton & Griffin on Rights: “The Anticlimax of Elonis v. United States”

I have a belated post about Elonis v. United States on Hamilton & Griffin on Rights. I’ve seldom felt so little enthusiasm for writing about a Supreme Court decision. The Court refused to decide any of the hard questions and left open the question of whether a recklessness standard will suffice — a question sure to create chaos in the lower courts, not to mention in the lives of those charged with crimes and those targeted by threatening speech.

This is one of the least helpful Supreme Court decisions I’ve seen in a long time. Why didn’t the Court just say whether either the statute or the First Amendment allows a showing of recklessness for conviction? Or not? Both positions are reasonable, and I think almost everyone would be fine with either outcome. (I would.)

Anita Bernstein: “Abuse and Harassment Diminish Free Speech”

Outstanding piece by Anita Bernstein (Brooklyn) in the Pace Law Review about something that so-called free speech absolutists too often forget: that abuse and harassment actually silence speech, and that if we care about speech we ought to care about the speech that abuse silences.

The article can be downloaded here, and here is the abstract:

Owen Fiss focused on “the robustness of public debate” to conclude on his last page: “The autonomy protected by the First Amendment and rightly enjoyed by individuals and the press is not an end in itself, as it might be in some moral code, but is rather a means to further the democratic values underlying the Bill of Rights.”

This article embraces the same values but more conservatively. Whereas Fiss defended state-sponsored coercion, I leave the government mostly outside the descriptions and arguments presented here. Scholars have sought to apply the law—of crimes, torts, intellectual property, and statutory allotments and immunities—as remedies for online abuse and harassment. A few states have modified their penal codes in this direction. I applaud many of these innovations but do not rely on them. They can be rejected for purposes of the thesis that I sketch in these pages.

Like writings that come before it, this article challenges the chestnut that freedom comes at the expense of another progressive good. Equality, to some writers; antisubordination, to others; “civil rights” also serves. In contending that free speech advances and supports these progressive goals, I step into big footprints—not just those of Owen Fiss but before him, inter alia, Harry Kalven, who argued when the sixties revolution was young that white speakers ought to thank “the Negro” and his civil rights struggle for enlargement of their First Amendment rights delivered to them by the Supreme Court. But my connection to free speech is more literal than what these great precedent-writings teach. Abuse and harassment pull valuable words out of the marketplace of ideas, I argue. They lessen the discourse.

Also following in the path of other writings, this article notes a few higher stakes present in online speech as contrasted with its lower-tech antecedents. Electronic discourse adds anonymity, amplification, and permanence; within this medium, these conditions reinforce each other. Think of a rock thick and opaque enough to hide behind, durable enough to intimidate, heavy enough to inflict a real blow.

Don’t stop there. Think also of a rock’s majesty and beauty. Opacity, durability, and weight are strengths as well as dangers. In this article, I advocate measures against abuse and harassment because (not “even though”) I cherish free speech.

Project for a future post, or perhaps an article: why the term “free speech absolutist” is incoherent, and misleading, and also just kind of dumb. I’m with Martha Nussbaum that no one is really a free speech absolutist. So at a minimum we need a more accurate description of those who call themselves free speech absolutists.

More on Wyoming’s Bullshit Law

The Washington Post has some useful coverage by Jeff Guo of Wyoming’s law that makes it a crime to collect data from both private and public lands for purposes of providing those data to the federal government. The article builds on a Slate piece that my University of Denver colleague Justin Pidot published last week and quotes Justin in the article. An excerpt:

“Government shouldn’t be in the business of concealing wrongdoing. When you have a state government creating a law criminalizing people revealing truthful information about illegal conduct, then something’s gone horribly astray in our democracy.”

The law is unconstitutional in a number of ways, and the chilling effect on citizens’ First Amendment rights — both the right to free speech and the right to petition the government — is particularly troubling.

Enforcing Rights: Final Version Now Available in UCLA Law Review

My coauthored article with superstar University of Denver alum Aaron Belzer is now out in the UCLA Law Review! You can download it on UCLA’s website here. UCLA was a joy to work with and so was Aaron. I’ve written before about why I like coauthoring articles with students, and this time was no exception.

The RightsCast Episode 2 Preview: Joanna Schwartz, Police Indemnification

This week’s episode of The RightsCast features Joanna Schwartz (UCLA) talking about her wonderful empirical research on police indemnification. This is a must-watch for everyone who has been following the proceedings following the deaths of Michael Brown, Eric Garner, Tamir Rice, Darien Hunt, and many others. Her work reveals a near-100% level of indemnification of police officers.

In other words: police don’t pay, taxpayers do.

Preview the episode here.