The next post in the Series on Lee v. Tam will be coming ASAP.  (Petitioner PTO has now filed its brief.)  But, I want to address a more timely issue in light of the surprising election results and the response engendered by those results.

A state Senator from Iowa is planning on introducing legislation he calls the “suck it up, buttercup” bill.  The proposed legislation would subject schools to punitive budget cuts if they use state funds to administer election-related grief counseling beyond the normal mental health services offered.  Republican Bobby Kaufman, who plans to introduce the bill in January, also seeks to add criminal penalties to punish protesters who shut down highways.

The Washington Post article reporting on the proposed legislation was sent to me by a former coworker who noted the parallel between the “suck it up” phrasing and one of my law review articles.  My article, Emotional Duties, establishes a duty to reasonably regulate one’s own emotional well-being before he/she can sue in tort (which colleagues refer to jokingly as the “suck it up doctrine”)  — partially in order to harmonize tort law with First Amendment doctrine.

Despite my view that schools are trending in a direction that is solicitous to students’ emotional needs in a way that underserves both students and society, I do not believe this sort of bill should pass.  The bill interferes with a school’s prerogative about how best to educate its students and thus compromises core academic freedom values.  There is a constitutional dimension to academic freedom such that the bill may even rise to the level of a First Amendment violation.

Continue reading “The “Suck it Up, Buttercup” Bill Should Not Pass – But Universities Should Take Heed Anyway” →

This will be my last blog until a few days after the election, when I will return with the next in the series on Lee v. Tam.  (Go VOTE!)

Neil Patrick Harris sings a wonderful, lambasting yet humanizing song, created by Frozen songwriters Kristen Anderson-Lopez and Robert Lopez, about the mixed emotions of House Speaker Paul Ryan.  NPH’s Ryan promises to “be there to pick up the pieces” when his Republican Party returns after the nightmare of Donald Trump.  (“Now that guy is calling me a wussy/ I wish I could grab him by the lapels.”) The song is a treasure and has gotten a lot of play, including on This American Life.  Unfortunately, the song misunderstands an important distinction in constitutional interpretation.

This distinction – between a court’s failure to find a constitutional right with which to nullify a law and the court’s nullification of a law based on a constitutional right- is conflated frequently by the media.  Conflations of this nature lead to an overemphasis on a case’s result and unnecessary cynicism about the politicization of the Supreme Court.  This is not to say that results never matter and that Justices pay attention only to reasoning when deciding cases.  However, public misunderstanding about the posture in which a court confronts a case leads to judging a case only by the results and not its reasoning.

Continue reading “NPH’s Delightful Paul Ryan Song Highlights Frequent Constitutional Misunderstanding” →

My views about Justice Scalia, unlike his own views about constitutional meaning, constantly evolve.  On Friday, the Supreme Court Bar held a memorial to honor Justice Scalia’s life and legacy that inspired me anew to reflect upon the Justice, his contributions, and his shortcomings.  I highly recommend that both skeptics and disciples of Justice Scalia (and everyone in between) watch the memorial, where former clerks from law practice, legal academia, government, and the judiciary all shared their experiences with the Justice.

Below are the aspects of Justice Scalia’s influence that I hope will not be lost with his passing.   Although I would not want a Court of nine Justice Scalias, I hope that each Justice, and especially anyone who replaces Justice Scalia, will continue his legacy in the following areas.

Continue reading “Justice Scalia’s Memorial and the Future of the Supreme Court” →

This is a nonpartisan blog. I have been critical of President Obama’s views of constitutional law and executive power. I thought it especially damaging to the integrity and independence of the Supreme Court when Obama chastised the Court and angered the public with an oversimplified depiction of Citizens United.  But, in this post, I offer nothing but respect to President Obama for accomplishing something fundamental to the survival of our constitutional democracy.

Obama models the importance of free speech values. Both the substance and the style of his communications to the nation exemplify many of the values that give meaning and legitimacy to our First Amendment freedoms.

Continue reading “Thanks Obama (for modeling free speech values)!” →

A University of Oregon Law professor has been placed on paid administrative leave for dressing in blackface at an off-campus Halloween party attended by faculty and students.  Her intention was to portray the author of a book, Black Man in a White Coat, which chronicled the racism the author, Dr. Damon Tweedy, experienced as a student at Duke Medical School.  A letter written by 23 faculty members has asked for the professor’s resignation, and a petition signed by over 500 students and alumni supports that push.

Continue reading “An Oregon Law Professor’s Horrible Halloween Choice, Racism, Retribution, and the First Amendment” →

On Tuesday, I will be voting for President.  Although I am less politically engaged than the median law professor (to me, politics necessitates partisan, unprincipled, opportunistic behavior, and the law, at its best, manifests beautiful, clear, logically evolving rules), this election is too important.  Plus, I am now an Ohio voter.   I will even encourage students to accompany me to the nearby polling place so they can vote.  But I will not be sharing with the students the candidate for whom I am voting.  I will not even express pleasure or displeasure at the election results, despite the fact that I believe this election is both symbolically and practically monumental.

Continue reading “One Speech-Torts Professor’s Thoughts on Handling the Upcoming Election” →

Can you find all of the torts references in this costume?  Answers below.

Continue reading “Happy Tortsoween” →

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?” →

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)” →

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?” →