Wednesday, March 22, 2006

Views on Georgia v. Randolph?

I have deleted my original post to help make more immediately visible Galen's post about TOMORROW evening's event featuring Judge Silberman. It should be a delightful occasion for Federalists and non-Federalists alike! Hope to see you there!

Judge Silberman - Award and a Speech

Please join the Georgetown Federalist Society for an evening with Judge Laurence Silberman (DC Circuit) and Prof. Viet Dinh. The occasion is our 3rd Annual Lifetime Service Award, which will be presented to Judge Silberman next Wednesday, Mar. 29 at 6:45 pm in Hart Auditorium.

Judge Silberman will speak about restructuring the FBI, an issue he is quite familiar with because he co-chaired the WMD Commission which made the recommendation he will be discussing. Afterwards, there will be a catered reception (including wine and non-alcoholic beverages) with the judge. Area attorneys and the judge’s former clerks have been invited as well.

Judge Silberman has had an extraordinarily wide-ranging career – from serving in the Labor Dep’t, then the Justice Dep’t, to being U.S. Ambassador to Yugoslavia, to serving as a bank executive, to teaching administrative law for 20 years, to (of course) his almost 21 years on the DC Circuit. He is an unexpectedly gracious professor who brings a wealth of context to the classes he teaches – and keeps students entertained in the process.

Both the Judge and Prof. Dinh are engaging, even witty, speakers and I can assure you that attending is well worth your time.

Monday, March 20, 2006

Family Voters

This is an ingenious discussion of the political and legal shifts of the "family vote" over the last 100 years. For instance these passages:

The dominant wing of the GOP tilted in favor of the banks, the great industries, and--perhaps more surprisingly--the feminist movement. Indeed, as early as 1904, the National Association of Manufacturers had formed an alliance with the feminists, for they shared an interest in moving women out of their homes and into the paid labor market. When the feminists reorganized as the National Woman's party in 1917, the manufacturers' association apparently provided secret financial support. More openly, Republican leaders embraced the feminists' proposed Equal Rights Amendment, first advanced in Congress in 1923. The GOP was also the first major party to endorse the ERA in its platform. ...

The Democrats also welcomed the "Maternalists" into their ranks, female activists who--while believing strongly in equal legal and political rights for women--also emphasized the natural differences between the sexes when it came to childbirth and child care. They favored federal programs for the training of girls in home economics and for "baby saving," meaning efforts to reduce infant and maternal mortality. They fiercely opposed working mothers and day care. Under this Maternalist influence, every New Deal domestic program openly assumed or quietly reinforced the goal of a "family wage" and the model American family of a breadwinning father, a homemaking mother, and an average of three or four children. In short, from 1912 until 1964, the Democrats were--on balance--the pro-family party. The Republicans, on balance, were the party of business interests and the feminists. ...

For the Republican party as reshaped by Reagan now saw pro-family social conservatives in political alliance with the interests of the banks and the large corporations. Main Street and Wall Street were under the same tent, which was a very new development. ...

Indeed, the GOP has done absolutely nothing to curb the egalitarian frenzy and the gender-role engineering set off by Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972 and enshrined at the Pentagon. Equity feminism still rules these roosts.Or consider child care. A timely veto by Richard Nixon stopped the government's day care juggernaut in 1971, but only for a few months. The same year, Nixon signed a Republican-designed measure also backed by the National Organization for Women (heir to the GOP-favored National Woman's party). This law allowed families to deduct day care costs from their income tax, cleverly labeling them "business expenses." This has since grown into a credit worth between $1,500 and $2,100 in reduced taxes for households using day care. Even the wealthiest qualify. Meanwhile, families that sacrifice a second income to keep a mother or father at home receive nothing except a higher net tax. Bills to correct this gross inequity have been regularly introduced in Congress since 1996, most recently the Parents' Tax Relief Act of 2006 (H.R. 3080). However, the Republican leadership has ignored them. To underscore the lost opportunity here, note that conservatives in Canada rode to victory just a few weeks ago by embracing a plan to extend that nation's day care benefit to stay-at-home parents; not a whiff of this, though, in the recent State of the Union address.

Regardless of whether one agrees with the author's obvious preference for mothers staying at home, the political analysis is insightful and the presentation of policy tradeoffs and interests honest - the stresses average people face.

Friday, March 17, 2006

Follow-up on Epstein and Google

A suit against Google was dismissed by a Philadelphia judge. The judge didn't discuss fair use doctrine--which is one of Google's two main legal claims supporting their project--at all.

Epstein's prediction was that east-coast courts would be unfavorable to the Google Library project because that area is the seat of the publishing industry. Though Epstein specifically mentioned the suit in the Southern District of New York, my guess is that he'd classify Philly as east coast. Maybe Google will have an easier time that Epstein thought.

See the article on WSJ here.

Wednesday, March 15, 2006

Affirmative Action and the ABA

As was noted on the Volokh Conspiracy, we are cosponsoring a panel with the Federalist Society's Civil Rights Practice Group on the newly proposed ABA standard which would require law schools to "demonstrate, by concrete action ... a commitment" to diversity in both acceptance of students and hiring of faculty.

The ABA's previous policy was a suggestion. This one would be a command - for those schools which wish to become or remain accredited. The merits of affirmative action are a separate question that whether the sole accreditor should be able to require such actions. And then there are the constitutional and legal considerations under Title VII and the Equal Protection Clause.

Come Monday, March 20, at noon and hear all about it!

Our moderator:

Thomas Morgan, professor at George Washington, and former President of the Association of American Law Schools

Our panelists:

David Bernstein, a George Mason professor whose Wall Street Journal article on the topic provoked a response from the ABA President (reported by bloggers here and here for those without WSJ access).

Roger Clegg, the President of the Center for Equal Opportunity.

Jim Freeman, staff attorney at the Advancement Project.

And our own professor Peter Edelman.


Here is the markup version of the proposal. Some excerpts:

Standard 211(b)
"Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race and ethnicity."

Interpretation 211-1:
"The requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 211." (emphasis added)

Saturday, March 11, 2006

Debate Leads to More Law, Less Politics?

This article by Terry Eastland ends with the following interesting comment on the effect CJ Roberts is having on the Court:

"The other day Justice Breyer told an Alabama audience that the justices discuss cases more under Roberts than they did under Rehnquist. Roberts is surely responsible for that, and it marks an important change.

Justices Stevens and Scalia have both complained over the years about the conferences held on the Fridays of weeks with oral arguments. It is then that the justices at least tentatively decide cases, and yet under Rehnquist the justices typically did little more than declare their votes. For Roberts to invite discussion means that Roberts himself has to come to the conference table fully prepared. That's not hard to imagine. But the other justices have to come prepared as well, or risk embarrassment.

Over time, the Roberts effect may produce not only larger majorities and more stable rulings but also a Court that, thanks to conferences that really are conferences, pays more attention to working out the relevant law and less to mere politics. The distinction between law and politics is, of course, precisely what Roberts (and Samuel Alito) insisted upon during their confirmation hearings, and it lies at the heart of judicial conservatism. The prospect of the continuing advancement of that philosophy is a happy one, and a reason to say hail to this particular chief."

Sunday, March 05, 2006

Comparative Federalism

Thought this Slate article on the UAE was worth Federalists pondering. Particularly:

"It's a federation of seven somewhat autonomous sheikdoms—Abu Dhabi, Dubai, Sharjah, Ajman, Umm al-Qaiwain, Ras al-Khaimah, and Fujairah. Under the country's constitution, each emirate maintains principal control of its own oil revenues and other natural resources. They turn over a set percentage of their revenues to the federal government, which takes care of defense, diplomacy, education, public health, banking, and several other concerns for everyone. But that's the extent of it: The constitution gives each emirate explicit and exclusive control over any matter not specifically assigned to the federation. For example, a conservative emirate like Sharjah has the right to institute its especially strict code of decency, which prohibits bathing suits, midriffs, and skirts above the knee."

Unlike some federal systems (eg Russia), this one has real teeth: the component parts have bargaining power with the federal government. Japan is a unitary state, so by contrast there is little possibility of experimentation regionally; the Japanese generally must get fresh policy ideas from abroad.