L to R: Clint Bolick, Goldwater Institute;  Professor Melissa Murray, UC-Berkeley School of Law; and Judge Neil V. Wake, U.S. District Court in Phoenix.

L to R: Clint Bolick, Goldwater Institute; Professor Melissa Murray, UC-Berkeley School of Law; and Judge Neil V. Wake, U.S. District Court in Phoenix.

Constitution Day was celebrated at the University of Arizona Law School as it has in the past—with a panel of smart people discussing compelling cases from the recent U.S. Supreme Court Term.

Due to conflicts in my schedule, I was unable to attend. Happily, a law student—who also is a great writer—offered to summarize the afternoon’s conversation.

The scribe’s name is Logan Rogers, and here is his background:

“Logan Rogers has a B.A. in journalism and an M.A. in U.S. history. He is a 2L student at the University of Arizona College of Law and a member of Arizona Law Review. He can be reached at loganrogers@email.arizona.edu

What follows is Logan’s reporting. If other lawyers and law students would like to contribute guest blog posts, please contact me at arizona.attorney@azbar.org. Together, we may be able to cover a state’s worth of legal happenings.

Here’s Logan:

Voting rights, same-sex marriage, and consumers’ access to class action lawsuits were among the issues dissected on Monday at the James E. Rogers College of Law.

Con Law enthusiasts gathered at the University of Arizona to hear an expert panel discuss recent U.S. Supreme Court decisions during the 15th Annual Constitution Day program, sponsored by the William H. Rehnquist Center. Four controversial rulings provided the panelists with plenty of grist for a lively discussion.

The panel consisted of moderator Professor David Marcus, a specialist in international law and civil procedure at Arizona Law; Clint Bolick, an award-winning litigator who currently serves as Vice President for Litigation at the Goldwater Institute in Phoenix; Judge Neil V. Wake of the U.S. District Court in Phoenix, an alumnus of Arizona State University and Harvard Law School; and Professor Melissa Murray of UC Berkeley School of Law, a family and constitutional law expert and former Yale Law School classmate of Prof. Marcus.

Rehnquist Center Director Sally Rider

Rehnquist Center Director Sally Rider

Marcus argued that Shelby County v. Holder “demolished” the Voting Rights Act. The Court’s decision specifically invalidated § 4(b) of the Act as unconstitutional. That section used a formula to identify jurisdictions with a history of discriminatory practices. Another section of the Act required these jurisdictions to get federal pre-clearance before changing their election laws.

Bolick and Wake contended that Marcus overstated the ruling’s damage to the Voting Rights Act. They emphasized that other sections of the Act still protected racial minorities from discrimination. Bolick agreed with the Shelby County ruling, and contended that § 4(b) unfairly punished jurisdictions for discrimination that took place several decades ago, despite that fact that voter turnout has reached racial parity in many of these jurisdictions. Wake and Bolick emphasized the financial and administrative burden the preclearance requirement imposed upon state and local governments.

Marcus countered that the progress toward voting equality in these regions was in large part due to the Voting Rights Act, including § 4(b). Murray agreed with Justice Ginsburg’s dissent, which suggested that recent actions by officials in some of these jurisdictions had discriminatory intent. She argued these facts demonstrated the necessity of upholding § 4(b).  Marcus emphasized that Congress renewed the Act several times, including as recently as 2006. He stated that the Court engaged in “judicial immodesty” by overturning part of the Voting Rights Act.

The panel discussed the Court’s two big cases involving same-sex marriage, United States v. Windsor, which invalidated the federal Defense of Marriage Act (DOMA), and Hollingsworth v. Perry, which declined to rule on a California initiative banning gay marriage because the parties lacked standing.

Marcus called Windsor a “doctrinal mess” because its rationale for overturning a federal ban on same-sex marriage contained disparate elements of federalism, equal protection, and substantive due process. Bolick said he personally supported same-sex couples’ access to marriage (although he emphasized that this was not an official position of the Goldwater Institute), but he thought the opinion was a poorly reasoned “mish-mash.”

Marcus said that although Windsor provided “no immediate aid” for same-sex couples in Arizona, the opinion paved the way for an eventual Court ruling striking down state bans on gay marriage. Both Murray and Marcus thought some supporters of same-sex marriage on the Court tried to avoid legalizing it across the U.S. in this opinion. Murray suggested these justices feared a backlash if they got too far ahead of the public on the issue.

In Hollingsworth, the Court ruled that the plaintiffs had no standing, because only California state officials could defend the initiative that banned gay marriage, but they refused to uphold the law, leaving the private citizens who supported the initiative as the only possible litigants. The California Supreme Court held that grassroots proponents could have standing to defend initiatives in court, but the U.S. Supreme Court disagreed.  Because the Court refused to take action in the case, a 9th Circuit court ruling that invalidated the initiative banning gay marriage on 14th Amendment grounds remained in effect. Therefore, same-sex marriage remains legal in California.

Wake and Bolick agreed that the Hollingsworth decision on standing was incorrect, in part because it allows state government officials to ignore the public’s wishes by refusing to enforce initiatives. Wake called this an “affront to the initiative process,” which he argued is an essential part of democracy in western states such as Arizona.

Murray said the fourth case, American Express Co. v. Italian Colors Restaurant, had less obvious appeal to people interested in “social justice” issues, but she said its importance had been underestimated by the national media. Marcus characterized the ruling as one of many examples of the pro-business leanings of the Roberts Court. The opinion upheld a contract containing a class-action waiver in the form of a mandatory arbitration clause. Marcus said this waiver made it difficult for consumers and small businesses to sue large corporations, because without the option of a class-action suit, the costs of litigation are often prohibitive for these parties.

Professor David Marcus, right, and the Constitution Day panel.

Professor David Marcus, right, and the Constitution Day panel.

Wake said that although he thinks class-action lawsuits can sometimes be problematic and excessive, he believes the Court should not have allowed companies to contract their way out of class-action liability without offering other options besides arbitration. On the other hand, Bolick argued that enforcing contracts is “essential to a free society.” He contended that class-action lawsuits are bad for the public because the costs they impose on corporations lead to higher consumer-goods prices.

The event concluded with a discussion of whether the Court is too influenced by politics and popular opinion. Bolick suggested the Court should act on principle, with little concern for political implications, but other panelists emphasized the importance of the Court maintaining its legitimacy with the public.

The panelists disagreed on much, but all would likely agree on the importance of educating the public about the Court and its impact upon key social and political issues. Events such as Constitution Day at Arizona Law help shed light on the often-mysterious workings of the highest court in the land.

Questions and dialogue? Remember to contact Logan at loganrogers@email.arizona.edu

Rehnquist Center banner logoI do enjoy Monday-morning-quarterbacking U.S. Supreme Court decisions. You too? Now imagine how great it would be if we also possessed deep knowledge to accompany our opinions.

That is kind of the thought behind the celebration of “Constitution Day” at law schools. In recognition of one of our nation’s founding documents, scholars and wise practitioners hold forth on recent opinions.

The University of Arizona Constitution Day event was a high point of my 2012 (and I covered it here). Unfortunately, it’s looking like I will be unable to attend this year’s event, to be held next Monday, September 16.

Is anyone else planning on attending? Would you like to write a blog post covering the highlights? Or do you just want to send photos? Write to me at arizona.attorney@azbar.org.

Meanwhile, here’s the news:

The William H. Rehnquist Center on the Constitutional Structures of Government will present its annual Constitution Day program at the University of Arizona James E. Rogers College of Law, featuring legal experts who will review some of the major cases decided by the U.S. Supreme Court in the 2012 Term.

Date:               Monday, September 16, 2013

Time:              1 – 4:30 p.m. (reception to follow)

Location:        Ares Auditorium (room 164), James E. Rogers College of Law

Address:         1201 E. Speedway, Tucson, Ariz.

Arizona Law logoCLE credit is available. Space is limited, and registration is recommended. Reserve a seat online here. Visitor parking is available for a fee at several parking garages near campus. A visitor parking map is available here.

Panelists include:

  • Clint Bolick, Vice President for Litigation, Goldwater Institute
  • Melissa Murray, Professor of Law, University of California, Berkeley
  • Hon. Neil V. Wake, U.S. District Court, District of Arizona
  • Moderator: David Marcus, Professor of Law, James E. Rogers College of Law         

Cases to be discussed are (click the names to read the opinions):

For more information about the Rehnquist Center, visit here.

Rehnquist Center banner logoSo far, my overscheduled Tuesday looks like it won’t accommodate a trip south to Tucson. And that’s really too bad. (Well, that’s too bad most any day, but it’s especially the case on February 26.)

The reason I’d like to drop by the University of Arizona Law School is to attend an oral argument—before the Court of Appeals for the Armed Forces, of all legal bodies.

Here is how the Court describes itself and its civilian judges:

“The United States Court of Appeals for the Armed Forces exercises worldwide appellate jurisdiction over members of the armed forces on active duty and other persons subject to the Uniform Code of Military Justice. The Court is composed of five civilian judges appointed for 15-year terms by the President with the advice and consent of the Senate.”

Court of Appeals for the Armed Forces sealThe Rehnquist Center at the law school has announced the morning event, during which law students will have the opportunity to argue; those same students have already filed an amicus brief in the case.

The Center says that the Court has never traveled to Tucson. But if that’s not enough of a draw, here are the case facts:

“GCM conviction of possession of child pornography, larceny of military property and filing a false claim. Granted issues question (1) whether the military judge abused his discretion when he failed to suppress evidence of child pornography discovered on Appellant’s personal computer in the course of an unreasonable search conducted to find contraband after Appellant was wounded in Iraq and medically evacuated to the United States; and (2) whether the Army Court erred in creating a new exception to the Fourth Amendment when it held that the Government’s search of Appellant’s personal computer was reasonable because the Government was not ‘certain’ or ‘absolutely clear’ that it would be returned to the wounded-warrior Appellant.”

From where I sit, that is a fascinating Fourth Amendment question. (Although didn’t the U.S. Supreme Court this past Term examine a question related to privacy rights on a school computer that could possibly be returned to the employer? What case was that? Anyone?) (Recently, Canada’s Supreme Court took the view that folks do have some measure of privacy, even on their work-issued computer. O Canada.)

More information about the Tuesday morning arguments is here. Included among the detail are the argument briefs (in PDF).

Supreme Court cases and what they mean will again be the focus at this year’s annual Constitution Day panel at the University of Arizona James E. Rogers College of Law. It will occur this Friday, September 14, from 1:00 to 4:00 p.m. The 14th annual event is once again hosted by the University’s Rehnquist Center.

Constitution Day

(You can read my coverage from last year’s event here and here.)

Panelists include UA Professor Toni Massaro, the Goldwater Institute’s Clint Bolick, U.S. District Court Judge Neil Wake, and WilmerHale partner Seth Waxman.

Curious what they’ll cover? The advance materials list three cases:

More detail, include links to panelist bios, are here. And you may register for the free event here.

I will attend Friday and try to tweet out some panelist wisdom. But #ConstitutionDay is so darn long. Why don’t I try #UASCOTUS.

Bob McWhirter

And to keep up in the race to create Constitution Day programming, next Monday, Sept. 17, the ASU Law School holds a lunchtime presentation by lawyer Bob McWhirter. Titled “Are You Talking to Me? Who Are Those ‘People’ in the Tenth Amendment?” the talk is bound to illuminate and amuse, like everything else Bob offers.

As Bob marvels, “Did you know that the original Constitution didn’t protect your vote? In fact, the original Constitution didn’t give you many rights at all? So where do we get them? Let’s look at the 10th Amendment!”

He suggests that we should wonder: “Are you one of “the People” or not?”

Could there be a more inviting call? Perhaps I’ll see you there, too, to get an answer.

A week ago today, The Rehnquist Center at the University of Arizona Law School hosted a program on courts and New Media. The full title was Public Understanding of the Courts in the Age of New Media. 

Russell Wheeler, Brookings Institution, and John Davidow, WBUR.org

The panels were packed with judges, policy experts and some journalists. (The full agenda is here.)

(More photos are available on the Arizona Attorney Magazine Facebook page.)

I was able to attend the morning sessions. Here’s who presented:

New Media – Is it Changing the Coverage and Conduct of Trial Court Proceedings?

Anonymous No Longer? The Federal Courts of Appeals and the New Media

The afternoon panels include a lunch keynote by Hon. Sandra Day O’Connor, which I was disappointed to have to miss.

The presentations I saw were quite good. But they also put me in mind of how advanced Arizona already is in terms of some of the topics addressed. For instance, while other jurisdictions wrestle with media in the courtroom and developing media-use policies for jurors, many of our courts have had such policies in place for years.

And can we stop calling it “New Media”? Do we really have to wait until our younger cohorts openly smirk as we ramble on about “logging on” to the World Wide Web, or the “Internets”?

It’s just media, folks, which happens to be new. And not even so new anymore. I mean, when was the last time you marveled about your fax machine, or the scanner at the supermarket? (Apologies to George Bush I).

But as long as I’m on a social media tear, here are some of the tweets (mine and others’, raw and unmediated) from the conference. (the hashtags were #barmedia and #newmediaconf):

#newmediaconf on courts, the public and new media at DT Phoenix J school hosted by @UofAZLaw Rehnquist Ctr http://tinyurl.com/4tdfwtu

ABA President-elect William Robinson at #newmediaconf – surprised how many in public don’t understand courts

ABA President-elect William Robinson at #newmediaconf – Legal profession needs journalists to collaborate on telling public re courts

San Jose Mercury News rptr @hmintz at @newmediaconf – days of reporters going to court just w/ pen and spiral pad are over

Access to court records good, but risks: child and DV protection, data mining, “outing” plea agreements on “Who’s a Rat” sites #newmediaconf

Trying to figure out the types of people that are at this seminar. Are we lawyers? Journalists? Joe schmoes? #barmedia

“Lost art”: Reporters going to the courthouse and chatting with the clerk @hmintz #barmedia

Important to determine when cameras should be on in courtrooms. Maybe judge can say turn off but must state a reason @JohnDavidow #barmedia

Judges need to impose firm instructions to try to minimize the “Google tendencies” of jurors #barmedia

Judge Virginia Kendall at #barmedia – Instinctively we are Googlers, jurors too. It’s all about instruction and control.

Panel at #barmedia discuss court changes to improve juror understanding (some of which Arizona courts have been doing for decades!)

Fact that info will be “out there” should not alter the principle that court info generally should be public @hmintz #barmedia

Awesome that this panel has adopted the phrase “nutty blogger”, and that everyone understands who they’re talking about. #barmedia

#BarMedia My old friend Ben Holden suggests jurors are routinely ignoring judicial instructions re new media tools. judge on panel disagrees

Audience Q at #barmedia – Use of term “nutty blogger” suggests mainstream media are not nutty.

It’s fascinating in #barmedia session how decline of mainstream media is accepted as a given. The struggles are no secret.

Is it time for national standards on court approach to social media reporting and juror issues, or just leave up to each judge? #barmedia

Ok, it is FREEZING in this seminar room. Do you think they’re trying to be ironic in freezing our fingers off so we can’t tweet? #barmedia

The phrase “judicial discretion” = nightmare for reporters, in regard to cameras in courtroom and many other things @hmintz #barmedia

Public cmt reveals misunderstanding of courts: “You must be tired, riding the circuit & being a night court” (Ninth ! Circuit) #barmedia

At #barmedia @TonyMauro says as written, appellate court rulings are not “a grabber.” “My suggestion: Write them better.”

For years, many judges said court reporting got it wrong. Now, judges bemoan lack of reporters in the courtroom. #barmedia

#barmedia Numerous poignant tributes to Judge John Roll at this conference. He was obviously loved and respected.

Sandra Day O’Connor is speaking to #barmedia conf. She is funny, spunky and practical. Decrying lack of Civics classes. Straight-talker!

#barmedia Judge says tbere are 4 kinds of high profile cases. Celebrity, issues, sensational and political.

“Citizen journalist, citizen brain surgeon, whats the difference?” Pete Williams making fun of the characterization of bloggers #barmedia

Had a wonderful time at a conference today #barmedia. Went old school & took handwritten notes. :)

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