Month: February 2017

What the Supreme Court’s First Amendment Cases Show About Trump’s Relationship to the Media

President Donald Trump is not shy about his distaste for the press, and even for mainstream media entertainment.  President Trump recently characterized the media as “the enemy of the American people.”  He believes the media slants stories unfairly, uses quotes out of context, and even fabricates facts, to serve a political agenda.

The media has not taken these criticisms lightly.  Many journalists and politicians have spoken about the historical connection between media disrespect and authoritarian regimes.  To truly understand the import of Trump’s comments for this country, however, we need to examine the Supreme Court’s First Amendment jurisprudence relating to the media.  The Supreme Court protects the First Amendment rights of a fallible media – a media that is factually incorrect, misleading, and crass —  because the media is a necessary instrument to robust public discourse and informed democratic participation.  President Trump’s criticisms turn First Amendment jurisprudence on its head.  The media deserves deference from the government despite its flaws; the government does not deserve deference because of the media’s flaws.   
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An Insurance Amputation Case With a Pure Legal Issue

My students in Insurance described feeling saturated by political debates, and I sympathize.  Today, I won’t be blogging about a current crisis or pressing First Amendment lawsuit.  Instead, I want to demonstrate how thinking about a purer legal issue – arising in an Insurance case about whether a particular contract term should be void as a matter of public policy –gives us perspective on more abstract questions involving freedom to contract and the scope of the judicial role in shaping public policy.  Contemplating these questions outside of our fraught political climate may be helpful in thinking through current issues.

Contracts are generally enforced as written, unless their terms violate a state’s specific public policy, either codified by the legislature or articulated by judges.  “Public policy” is why courts will not enforce the terms of a murder-for-hire contract, or an organ-sale contract, even though the parties freely bound themselves by the contract’s terms.  Those are easier cases.  Cases involving public policies not specifically covered by statutory prohibitions are much more difficult and complex.  How much power one believes a judge should possess to nullify an insurance contract depends on one’s views about autonomy, insurers and their motives, and the role of judges versus private parties in ordering society.

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To those Inspired to Practice Law – Remember That Law School is Also an Intellectual Journey

The past few weeks have demonstrated the efficacy and beauty of practicing law.  When Trump’s Executive Order banning travel from seven countries took effect, lawyers met with green card and visa holders detained at airports across the country.  Lawyers achieved a temporary stay of deportation of those who traveled before the EO took effect, and a stay of the travel ban to visa holders affected (and, in Boston, a stay of the entire order).  Lawyers even helped get back to this country some who lived here but were prevented from traveling, so they could reunite with their loved ones.   The finer points of immigration law and civil procedure became the focal point of the day, and now, as lawyers challenge the constitutionality of the travel ban (Ninth Circuit arguments to air today), equal protection and due process issues move to the fore.  All of this legal activity is rightly portraying lawyers as important guardians of justice and the rule of law.

To those energized by the ability of lawyers to concretely challenge the injustices plaguing our country, and to those now paying more attention to the courts as the arbiters of justice, I have a note about the role of law school and lawyers.  One reason the law can legitimately be used as a force for good is because it is generally logical, rational, and restrained.  Change through the courts is often incremental, and the positions of both sides usually have some merit.  Because everyone has his or her own sense of what is “just,” the law requires methodologies that are independent, nonpartisan, and coherent.  Creating legal doctrine that can be reconciled with all other areas of the law, on many levels of abstraction, is what gives the law its legitimacy.  If you want to go to law school, prepare yourself for an intellectual journey, where both your mind and your heart may change.

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What does “Rule of Law” Mean to You?

I am excited that people are speaking positively about the rule of law.   President Trump’s attacks on the legitimacy of “so called” judges, and his initial reluctance to follow judicial decisions on his Executive Order banning travel from seven countries, threaten the fabric of our constitutional democracy and the concept of judicial review.  However, simply citing rule of law concerns without understanding them, or without having rules for applying them consistently, is actually antithetical to rule of law values.

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The Berkeley Protests and the Loss of Free Speech Norms

On Wednesday night, the peaceful protest of a speaking event by alt-right troll Milo Yiannopoulos at Berkeley turned violent.  Led by masked rioters, who the UC Berkeley administration claims are not students, protesters bashed in ATMs and windows, set fires, and punched people. The riots appear to be a coordinated effort by the antifa (anti fascist and anti capitalist) movement, whose slogan is resist, to shut down Milo, a gross, unnuanced, racist troll who has signaled out students for harassment, but who does not advocate for violence against anyone.

Although Berkeley’s Chancellor recognized that, as a public institution committed to promoting challenging exchanges of ideas, it must allow Milo to speak, the event was cancelled due to the destructive nature of the protests.  The cancellation of Milo’s speaking event at Berkeley, and a previous cancellation at UC Davis, demonstrate a loss of free speech norms that is gaining momentum in this country, on both the right and the left.

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Why Hobby Lobby Should Not Be Disqualifying for Judge Gorsuch (i.e. it’s not as bad as it seems)

Last night, after Judge Neil Gorsuch was nominated to be the next Associate Justice of the Supreme Court, many cited Burwell v. Hobby Lobby as a reason to oppose his nomination.  Judge Gorsuch signed onto a Tenth Circuit opinion, affirmed by the Supreme Court, holding that closely held for-profit corporations need not follow the Affordable Care Act’s mandate to provide health insurance coverage for contraception that the owners’ believe facilitate abortions.

Because I have taught Law and Religion, and because I am now teaching Insurance, I want to comment on the case that joins both subjects.  I understand the opposition to the result in Hobby Lobby.  However, as Judge Gorsuch alluded to last night, results should not be the primary way in which we judge whether an opinion is correct.  Below is a quick and dirty primer on why Judge Gorsuch’s reasoning is justifiable.

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