Standing

Last month, the U.S. Supreme Court issued two eagerly anticipated rulings in major gay marriage cases. In United States v. Windsor, the challenge to the Defense of Marriage Act, the Court struck down Section 3 of DOMA. In Hollingsworth v. Perry, the challenge to California’s Proposition 8 ban on gay marriage, the Court held that the petitioners lacked standing to appeal, vacated the decision of the Ninth Circuit, and remanded with instructions to dismiss the appeal for lack of jurisdiction. This left the district court’s ruling intact and had the effect of allowing same-sex marriages to take place in California (although there’s some litigation winding its way through the courts on this matter).

Now that we have the decisions, let’s take a deeper dive into them. What do they reflect about the Court’s role in society? And what can we expect from future SCOTUS rulings in this area?

double red triangle arrows Continue reading “After Perry & Windsor: A Conversation About The Supreme Court’s Rulings”

If you want to see something really racist, check out what her lawyers are saying.

Look, I think the Paula Deen controversy is more theater than news. The only people who need the information that there are still white people in the South who are horribly racist are John Roberts and his band of conservatives. Deen is awful, but I don’t have a lot of spare outrage to waste on a television fry cook.

There is, however, a really interesting and novel legal argument being launched by Paula Deen and her attorneys. I think the argument is arguably just as racist as anything Deen actually said, but that doesn’t mean it’s legally incorrect. Deen’s lawyers are saying that white people, namely the white plaintiff suing Paula Deen, don’t have standing to claim a “hostile work environment” if all Deen did was run around saying awful things about non-whites.

And her lawyers are now using the Supreme Court’s recent decision in Hollingsworth v. Perry, the constitutional challenge to California’s Proposition 8, as the basis for their objections…

double red triangle arrows Continue reading “Paula Deen’s New Argument Seems To Be That White People Are Immune To Racism”

The Supreme Court’s decision in Windsor got the attention of the day yesterday, if not the attention of the Term, even if it doesn’t instantaneously make same-sex marriage the law of the land. Shelby County’s Voting Rights Act ruling was historic, but not as historic as it might have been. Section 4’s formula was struck down, but with Section 5 still in place, Congress has an opportunity to redraft an alternative. Fisher’s remand was no mighty victory for either side of the affirmative action debate. It emphasized that strict scrutiny review demands that UT get less deference than the Fifth Circuit panel gave the school. But we really know that this week’s opinion just kicks the can down the road, teeing up next Term’s Schuette v. Coalition to Defend Affirmative Action.

In important ways, Shelby County and Fisher, and in slightly different ways Windsor, keep us talking. Talking about hard issues, but talking. That’s part of the tough stuff of democracy. But SCOTUS’s decision in the California Proposition 8 case, Hollingsworth v. Perry, shuts down democratic dialogue in a way that should make all of us wince. I would rather listen to a thousand screaming Mystals argue about affirmative action through the end of OT 2013 than live with the consequences of this week’s decision in Hollingsworth . . . .

double red triangle arrows Continue reading “What’s Horrible About Hollingsworth Is Horrible for Us All”


Way back in the callow, innocent days of, um, February 2013, the U.S. Supreme Court delivered its opinion in Clapper v. Amnesty International. The case stemmed from a challenge of the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a.

If you didn’t pay much attention to the Court’s decision in Clapper back then, you might want to revisit it now that we know we’re all subject to NSA surveillance . . . .

double red triangle arrows Continue reading “The Hidden Blessings of the NSA’s Spying”

Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so…. Heeding Lincoln’s wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so.

– Judge Richard Clifton, writing for a unanimous panel of the Ninth Circuit in Righthaven LLC v. Hoehn.

(Additional commentary about this interesting case, after the jump.)

double red triangle arrows Continue reading “Benchslap of the Day: Ninth Circuit Smacks Copyright Trolls”

* Is the Roberts court really as pro-First Amendment as we’ve been led to believe? Lawyers aren’t really that good at math, but they’ve done studies, you know. And 34.5% of the time, it works every time. [New York Times]

* The people at the ABA aren’t concerned that William Robinson’s remarks made him seem like a tactless tool. Instead, they’re concerned that his “quotes were used out of context.” [Thomson Reuters News & Insight]

* Duncan Law wants the ABA to remove a memo denying the school’s provisional accreditation from its website. Why? So students will keep applying and paying them tuition money. At least they’re being honest. [Knoxville News Sentinel]

* Montgomery Sibley, whose license to practice is suspended, is running for president and suing “Barrack” Obama. Well, that’s a unique way to establish standing in a birther lawsuit. [Huffington Post]

Prof. Hans Smit

* Money can’t buy happiness, but it can buy your way out of jail. Just ask Floyd Mayweather. Thanks to this judge, he’ll be fighting someone other than his ex on Cinco de Drinko. [Washington Post]

* Hans Smit, beloved Columbia Law professor (and owner of a $29 million mansion), RIP. [Columbia Law School]

* The actress suing IMDb has finally been unmasked. I’ve never heard of her, but she’s probably suing for more than she’s ever made in her B-movie Z-movie career. [New York Daily News]

Rick Perry: 'It's this big.'

* Ken Cuccinelli, Virginia’s Attorney General, wants Rick Perry’s election law suit to be dismissed, because really, what’s the point? Standing or not, Perry got completely hosed in Iowa. [Bloomberg]

* What’s next for Stephen Glass? When all else fails, hire a high-profile appellate team to do your dirty work for you. He could write a book about this and he wouldn’t even have to lie. [Am Law Daily]

* 1Ls who hope for good grades have better chances of getting them. Everyone else is screwed unless they buy that Secret book housewives raved about on Oprah. [National Law Journal]

* An Illinois police officer tracked a woman down after giving her a speeding ticket, wrote her a love note, and now she’s suing him. Harsh. Why not throw him a rejection hotline number? [Daily Mail]

* You thought Touro was the worst law school in New York by a landslide, but our second-place finisher is earning its medal. CUNY Law’s bar passage rates plummeted in 2011. [New York Post]

* Johnny Weir, the most fabulous figure skater in all the land, has married a Georgetown Law grad. His Twitter profile says he’s taking the New Jersey bar exam soon. Good luck! [Washington Post]

* Robert L. Carter, S.D.N.Y. Senior Judge and desegregation strategist, RIP. [New York Times]

Accepted in Utah.

* Prop 8 made an appearance today at the California Supreme Court before newly seated Justice Goodwin Liu. As suspected, the liberal Liu immediately made the proponents have sex with each other as he cackled “I hate families.” [Poliglot / Metro Weekly]

* Next time a TSA agent sticks her hand down your pants and cops a feel, try not to call it “rape” on your blog. Instead, maybe just admit that you were asking for it by showing up to the airport dressed in all them clothes. [Techdirt]

* After Labor Day, consider that “every day should be a day to care about working people.” And don’t forget that even though judges live in impenetrable fortresses of justice, they are people, too. [Underdog]

* Here’s a good one for the 1Ls. If you’re a grieving mother and your boss forces you to remove pictures of your dead daughter from your cubicle as if she never existed, is he intentionally inflicting emotional distress upon you? Nope, but he sure is a douchebag. [Courthouse News Service]

* “In my day, we used to walk 70 miles to school…” Next time grandpa forces you to hike the Grand Canyon and starts with this old codger rhetoric, give your mom a call. That’s not legal. [CBS News]

Grandpa's idea of fun.

* If you have time to read real books, maybe you should check some of these out from the library. Do those even exist anymore? Ugh, just download them to your Kindle. [Constitutional Daily]

* One is the loneliest number, especially if you’re supposed to be in a partnership. Professor Larry Ribstein has some ideas on what ought to happen post-breakup. [Truth on the Market]

* Ahoy, me matey. This law blogarrrr wants ya t’ know that if ya want t’ trade for booty usin’ yer gold doubloons, steer yer ship toward th’ land o’ many wives. [Adjunct Law Prof Blog]