Current Legal Controversies - Fall 2020
Instructor: Leora Harpaz
Website: http://www.lharpaz.com
Direct Link to JASA material: http://www.lharpaz.com/ContinuingEd/JASA/

Email - LHARPAZ@LHARPAZ.COM

Please use the following link if you want to make suggestions for topics you would like covered in upcoming classes:

http://www.lharpaz.com/ContinuingEd/JASA/suggestions/

Feel free to use the link as often as you want.

Spring Semester Class:

Major Legal Controversies: Past, Present, and Future
The law develops over time with past decisions serving as precedent to influence the outcome of current controversies. This course will examine current legal controversies as well as ones we can anticipate will confront the courts in the future. An important focus of this examination will be on how the outcome of these cases is likely to be shaped by Supreme Court precedent which the current Supreme Court will either adhere to, distinguish, or overrule.

Classes 8 and 9 - November 30 and December 7

Enumeration Clause: Article I, Section 2

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. . . .

Fourteenth Amendment, Section 2

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.
 
The Census Act: 13 U.S. Code § 141. Population and other census information

(a) The Secretary [of Commerce] shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the “decennial census date”, in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary.
(b) The tabulation of total population by States under subsection (a) of this section as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States.
Enacted Oct. 17, 1976

2 U.S.C. 2a provides:
Reapportionment of Representatives; time and manner; existing decennial census figures as basis; statement by President; duty of clerk
(a) On the first day, or within one week thereafter, of the first regular session of the Eighty-second Congress and of each fifth Congress thereafter, the President shall transmit to the Congress a statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained under the seventeenth and each subsequent decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State to receive less than one Member.

Taylor v. Riojas:

Supreme Court:
Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in “‘massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “ ‘packed inside the water faucet.’ ” Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

Fifth Circuit:
The law wasn't clearly established. Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn't be housed in cells teeming with human waste for months on end, we hadn't previously held that a time period so short violated the Constitution. That dooms Taylor's claim.

Supreme Court:
1. But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.

2. Footnote: In holding otherwise, the Fifth Circuit noted “ambiguity in the caselaw” regarding whether “a time period so short [as six days] violated the Constitution.” But the case that troubled the Fifth Circuit is too dissimilar, in terms of both conditions and duration of confinement, to create any doubt about the obviousness of Taylor’s right.

Class 7 - November 23

Donald J. Trump For President, Inc. v. Boockvar (opinion by Judge Matthew Brann):

    Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.
    That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more.

Taylor v. Riojas:

Supreme Court:
Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in “‘massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “ ‘packed inside the water faucet.’ ” Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

Fifth Circuit:
The law wasn't clearly established. Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn't be housed in cells teeming with human waste for months on end, we hadn't previously held that a time period so short violated the Constitution. That dooms Taylor's claim.

Supreme Court:
1. But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.

2. The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency. Nor does the summary judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration. And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells.

3. Footnote: In holding otherwise, the Fifth Circuit noted “ambiguity in the caselaw” regarding whether “a time period so short [as six days] violated the Constitution.” But the case that troubled the Fifth Circuit is too dissimilar, in terms of both conditions and duration of confinement, to create any doubt about the obviousness of Taylor’s right.

Classes 5 and 6 - November 9 and 16

Oral Argument in California v. Texas:

Chief Justice Roberts:

[O]n the severance question, I think it's hard for you to argue that Congress intended the entire Act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the Act.

[Y]ou talk about the findings in the legislation and treat them as if they were an inseverability clause, but it doesn't look like any severability clause anywhere else in the rest of the U.S. Code to me.

Justice Alito:

[L]ooking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the Act in place, the provisions regarding preexisting conditions and the rest. So the question to you, obviously, is how do you get around those precedents on severability, which seem on point here?

At the time of the first case, there was strong reason to believe that the individual mandate was like a part in an airplane that was essential to keep the plane flying so that if that part was taken out, the plane would crash. But now the part has been taken out and the plane has not crashed. So if we were to decide this case the way you advocate, how would we explain why the individual mandate in its present form is essential to the operation of the Act?

Rust v. Sullivan (1991):

The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way. In so doing, the Government . . . has merely chosen to fund one activity to the exclusion of the other.

Taylor v. Riojas:

1. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in “‘massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “ ‘packed inside the water faucet.’ ” Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

2. But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time. See Hope, 536 U. S., at 741 (explaining that “ ‘a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question’ ” (quoting United States v. Lanier, 520 U. S. 259, 271 (1997))); 536 U. S., at 745 (holding that “[t]he obvious cruelty inherent” in putting inmates in certain wantonly “degrading and dangerous” situations provides officers “with some notice that their alleged conduct violate[s]” the Eighth Amendment). The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency. Nor does the summary judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration. And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells.

3. Footnote 2: “In holding otherwise, the Fifth Circuit noted “ambiguity in the caselaw” regarding whether “a time period so short [as six days] violated the Constitution.” But the case that troubled the Fifth Circuit is too dissimilar, in terms of both conditions and duration of confinement, to create any doubt about the obviousness of Taylor’s right. See Davis v. Scott, 157 F. 3d 1003, 1004 (5th Cir. 1998) (no Eighth Amendment violation where inmate was detained for three days in dirty cell and provided cleaning supplies).”

Classes 3 and 4 - October 26 and November 2

The elections on Tuesday,
Will it be a good news day?
Will we know the ending,
Or live with suspending?
Will he win by a landside,
Or look like the vote’s tied?
Who will be the next POTUS,
Will we learn it from SCOTUS?
Will it grant a petition,
Or reject a submission?
The elections on Tuesday,
Will it be the right choose day?


The Elections Clause - Art. I, Sec. IV, Clause 1:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.

The Electoral College

U.S. Constitution Article II, Section 1:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Twelfth Amendment:
The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Fifth Amendment:
“No person shall ... be deprived of life, liberty, or property, without due process of law”

Section One of the Fourteenth Amendment:
“[N]or shall any State deprive any person of life, liberty, or property, without due process of law”

Class 2 - October 19

The Census Act:
(b) The tabulation of total population by States under subsection (a) of this section as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States

14th Amendment, Section 2:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

Alexander Bickel, The Least Dangerous Branch:
But as time passes, fewer and fewer relevantly decisive choices are to be divined out of the tradition of our founding. Our problems have grown radically different from those known to the Framers, and we have had to make value choices that are effectively new, while maintaining continuity with tradition.

Justice Kavanaugh's Opinion in Barr v. American Association of Political Consultants Inc.:
Applying the presumption, the Court invalidates and severs unconstitutional provisions from the remainder of the law rather than razing whole statutes or Acts of Congress. Put in common parlance, the tail (one unconstitutional provision) does not wag the dog (the rest of the codified statute or the Act as passed by Congress). Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute. If the rule were otherwise, the entire Judiciary Act of 1789 would be invalid as a consequence of Marbury v. Madison.

Class 1 - October 12

Advice on How to Vote in NY: https://gothamist.com/news/new-yorkers-heres-how-vote-2020-election?mc_cid=4e6f4241e5&mc_eid=60325efc95

Quotations:

1. RBG about her two teachers at Cornell:
“He was a man in love with the sound of words. He taught me the importance of choosing the right word and presenting it in the right word order. He changed the way I read, the way I write. He was an enormous influence. To this day, I can hear some of the things Nabokov said.” The other influence she described as “a kind and caring professor, Robert E. Cushman, for constitutional law. I worked for him as a research assistant. In his gentle way, he suggested that my writing was a bit elaborate. I learned to cut out unnecessary adjectives and to make my compositions as spare as I could.”

2. In speaking about her husband:
“Marty Ginsburg was the first boy I met who cared that I had a brain.”

3. In discussing her decision to attend law school, Ginsburg has admitted that she chose law school not because at the time she had a passion for social justice, but only as she said "for personal, selfish reasons. I thought I could do a lawyer's job better than any other. I have no talent in the arts, but I do write fairly well and analyze problems clearly."

4. Ginsburg has described several pieces of advice her mother gave her:
"My mother told me two things constantly. One was to be a lady, and the other was to be independent." Another piece of advice was "don’t lose time on useless emotions like anger, resentment, remorse, and envy. Those, she said, will just sap time; they don’t get you where you want to be."

4. On her first oral argument before the Supreme Court in Frontiero v. Richardson:
“I was very nervous. It was an afternoon argument. I didn’t dare eat lunch. There were many butterflies in my stomach. I had a very well-prepared opening sentence I had memorized. Looking at them, I thought, I’m talking to the most important court in the land, and they have to listen to me, and that's my captive audience. [Then] I felt a sense of empowerment because I knew so much more about the case, the issue, than they did.”
At the end of her oral argument in Frontiero she quoted 19th Century abolitionist and activist for women’s rights Sara Grimke, who said: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

5. Remarks after her nomination to the Supreme Court:
She quoted her daughter's 1973 high school yearbook, which said that Jane Ginsburg's ambition was "to see her mother appointed to the Supreme Court," adding, "If necessary, Jane will appoint her." She ended her remarks by talking about her mother, Celia Bader: "I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons."

6. Ruth about Marty and Marty about Ruth:
At her confirmation hearing, Ginsburg spoke about her husband: “I have had the great good fortune to share life with a partner truly extraordinary for his generation, a man who believed at age 18 when we met, and who believes today, that a woman’s work, whether at home or on the job, is as important as a man’s.”
Toward’s the end of his life, Marty Ginsburg told a friend: “I think that the most important thing I have done is to enable Ruth to do what she has done.”

7. Her opinion in United States v. Virginia:
"self-fulfilling prophec[ies] once routinely used to deny rights or opportunities" including when women sought to practice law, attend medical school, join the military, and work in law enforcement.

8. Gonzalez v. Carhart - dissent from an opinion upholding a partial birth abortion ban.
In Ginsburg’s dissent, she made clear that “at stake in cases challenging abortion restrictions is a woman's ‘control over her [own] destiny.’”
“Women, it is now acknowledged, have the talent, capacity, and right ‘to participate equally in the economic and social life of the Nation.’ Their ability to realize their full potential is intimately connected to "their ability to control their reproductive lives.’”

9. In her dissent in Shelby County v. Holder, Ginsburg wrote:
"Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

10. Speaking about her dissenting opinions at Michigan Law School in 2015, she said:
"I like to think most of my dissents will be the law someday."
 
11. In an interview with Rachel Maddow she was asked what would you like to be remembered for? She said:
"Someone who used whatever talent she had to do her work to the very best of her ability, and to help repair tears in her society. ‘To do something,' as my colleague David Souter would say, ‘outside myself.’ Because I’ve gotten much more satisfaction for the things that I’ve done for which I was not paid."

12. When he was in the hospital during his final illness, Marty Ginsburg left behind a handwritten letter which Ruth found when she went to pick up his belongings. It said:
"My dearest Ruth,
You are the only person I have loved in my life. Setting aside a bit parents and kids, and their kids.
And I have admired and loved you almost since the day we met at Cornell some 56 years ago. What a treat it has been to watch you progress to the very top of the legal world.
I will be in Johns Hopkins Medical Center until Friday, June 25th, I believe. And between then and now, I shall think hard on my remaining health and life, and consider on balance the time has come for me to tough it out or to take leave of life because the loss of quality now simply overwhelms.
I hope you will support where I come out, but I understand you may not.
I will not love you a jot less."

13.  Jane Ginsburg:
“Mommy does the thinking and daddy does the cooking.”

14. Ginsburg's last wish:
“My most fervent wish is that I will not be replaced until a new president is installed.”

15. Ending of Tribute by Gloria Steinem:
“Being so close to the same age, I thought I would never have to live in a world without Ruth in it. Now, I can only think of one answer to the heartbreak and tragedy of her loss: Whenever we face a question or a challenge, we can ask ourselves: What would Ruth do? As long as this answer guides our acts, she will be with us still.”