Month: October 2016

How Realist Versus Formalist Are You?

Today in torts class, I taught Palsgraf, the classic duty/proximate cause case that illustrates the difference between Justice Cardozo’s somewhat formalist bent and Justice Andrews’s stark legal realism.  I told my class that everyone falls along the spectrum somewhere from the most process-based, almost transcendental formalist to the most practical politics legal realist. Here’s a quiz I created last year to determine where you fall.

Assign a numeric value to each question.

5 = Strongly agree

4 = Agree

3 = Neutral

2 = Disagree

1 = Strongly disagree

  1.    The life of the law is not logic, but experience.
  2.     Law is not a science; you cannot just apply a formula and divine the right answer.
  3.     Legal reasoning is not inherently self-justified; we have to look elsewhere (to sociology, political science, philosophy) to give legal concepts meaning.
  4.      There is no such thing as a neutral, objective assessment of the law.
  5.     The state action doctrine makes no conceptual sense; it is designed to oppress the disadvantaged and maintain our current power structures.
  6.     When a court flagrantly violates precedent to do what it knows to be right (and I agree with that conception of right), I feel happy.

Down by a 9, you’re quite the formalist (that is my score – although that’s what I got last year and may have moved more realist this year. [Edit: I am now an 11].).  The highest scores I’ve seen are in the mid to high 20s.

Suggestions welcome!

Readers’ comments about the quiz added after the jump:

Continue reading “How Realist Versus Formalist Are You?”

Lee v. Tam: Offensive Trademarks at the Supreme Court: Speech Rights and Government Prerogative (A Series)

Part One: The Weighty Legal Questions

Last month, the Supreme Court granted certiorari to review Lee v. Tam, a case about whether the federal government can deny registration to trademarks that disparage individuals or groups.  At issue was the United States Patent and Trademark Office’s denial of trademark registration to a band called The Slants, a name that was intended to reclaim and de-stigmatize an Asian stereotype.  The Slants appealed the denial of its registration application.  The Federal Circuit Court of Appeals, sitting en banc as a full court, held that the denial of a trademark registration on the basis that it was racially insensitive violates the First Amendment.  The Federal Circuit applied strict scrutiny to find that the disparagement clause of the federal trademark registration statute discriminates against speech on the basis of viewpoint and is therefore unconstitutional.

This case will decide many weighty legal questions, such as (1) does the First Amendment even apply to trademark registration, (2) is the denial of a trademark registration benefit treated differently than a direct penalty on speech, and (3) are trademarks purely commercial speech that are not subject to the highest constitutional scrutiny.

The facts of this case are particularly striking, because the trademark for the band The Slants was registered by Simon Shiao Tam to make a statement against racism and stereotyping.  But if the Patent and Trademark Office deems a brand or product disparaging to consumers, the PTO can deny trademark registration.   The outcome of Lee v. Tam will also have implications for the Washington Redskins, whose trademark registration was cancelled as being disparaging to Native Americans, and whose case is pending before the Fourth Circuit.  The government’s position, that “the Constitution does not require Congress to open the federal trademark registration system to racial epithets,” applies to The Slants and the Redskins, despite the difference in how the names may be considered disparaging, and to many others applying for trademark protection.  A separate provision of federal trademark law, which prevents registration of scandalous or immoral matter, might also be vulnerable to invalidation if the disparagement clause is deemed unconstitutional.

This case will decide sweeping issues of government power to regulate speech when the government creates a system that gives procedural and substantive benefits to some speech and not others.  The right not to have one’s speech discriminated against on the basis that someone at the PTO finds the speech disparaging is countered by the government’s interest in disassociating its federal trademark registration system with what many might consider a racial slur.  In Part One of a series on this case, I will provide a broad overview of the legal issues.  Subsequent parts will delve deeper into the doctrine, precedent, and implications of the case.

Continue reading “Lee v. Tam: Offensive Trademarks at the Supreme Court: Speech Rights and Government Prerogative (A Series)”

What we should really be asking SCOTUS nominees (and Clinton and Trump): When does your evaluation of judicial decisions depart from your own politics?

In the third Presidential debate, Clinton and Trump essentially repeated their thoughts about what they want in a Supreme Court nominee.  But, as their answers indicate, they were asked the wrong question.  What we must demand of anyone appointing a Supreme Court Justice is, specifically, where do their views of the Constitution depart from their own political opinions.

In answer to the less pointed question they were asked, Trump again invoked his love affair with the Second Amendment (“and all amendments”) and then made some largely contentless statements about the respectability of the Justices he wishes to appoint.   Clinton reiterated that she wants someone to “not reverse” Obergefell and Roe yet “stand up against” (i.e.  reverse) Citizens United – this time her language evinced some awareness of how anathema it is to rule of law principles and the legitimacy and consistency of the law to overturn precedent simply based on disagreement (especially while simultaneously wishing to insure the longevity of precedent you like).

Continue reading “What we should really be asking SCOTUS nominees (and Clinton and Trump): When does your evaluation of judicial decisions depart from your own politics?”

Clinton v. Trump on Supreme Court Justices

Last night’s Presidential debate featured an uncomfortable amount of ugliness and shallow, canned, unrelentingly one-sided answers to important questions, but one bright spot was the candidates’ takes on what kind of Supreme Court Justice they would appoint to fill Justice Scalia’s vacancy.  Although I disagree with much of what both candidates profess to be looking for, an exploration of their differences highlights the polar perspectives politicians have on an appointment process that is too politicized.

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Policing Clowns on Campus: What Is and Is Not Constitutional (and what is murky)

Yesterday, I received an email with the subject line “Timely Warning Notice” from campus Security at the private institution where I work as a law professor.  The email, directed to the entire campus community, mentioned that my university received a call regarding a “possible clown sighting.” Campus Security is now investigating the incident, and “[a]nyone found dressing as a clown on [] campus will be processed with the local authorities.”  I was immediately concerned – not about clowns, but about misleading students about their constitutional rights.

There is currently an epidemic of creepy clowns (if that isn’t redundant) terrorizing the country- some are harmless pranksters who enjoy dressing like a Stephen King nightmare while others are making actual threats of violence.  The moral panic that you might imagine creepy terrorist clowns would induce is exacerbated by the fact that false reports of clowns luring children into woods or kidnapping people are also being filed with police.

Campus security wants to inform students that they have recourse against individuals purposely creating panic and fear, and that is a laudable goal.  But what a private university can do to avoid the clown terror that has swept the nation is a complicated question.

Continue reading “Policing Clowns on Campus: What Is and Is Not Constitutional (and what is murky)”