Class-Action Foes Have Trifecta Before Supreme Court

PJP fellow Daniel Fisher discusses three pending cases that could end class-action litigation.

Three cases that may determine the future of class-action litigation are before the Supreme Court. If business advocates get their way on all three, plaintiff lawyers could have a much harder time convincing courts to certify lawsuits on behalf of large groups of consumers and employees.

And the typical 5-4 split between conservative and liberal justices may not rule the day: Justice Ruth Bader Ginsburg, a former civil procedure professor, is a class-action skeptic who has previously voted to rein in cases on behalf of asbestos claimants and insurance customers.

Full article at Forbes

THE TWENTIETH AMENDMENT WAS SUPPOSED TO DO AWAY WITH THE "LAME DUCK" CONGRESS: SO WHY HAVE WE SPENT THE LAST DAYS OF 2010 WATCHING ONE?

"A very undesirable legislative condition." That is how the Senate Committee on the Judiciary, gathering in 1932, referred to the period after a bi-annual election and before the swearing in of the new Congress. The committee was describing reasons why the nation should adopt what turned out to be the twentieth amendment to the Constitution. This is the amendment which moved the beginning of the elected terms of federal offices to January from the original March date following the year of election. As the committee explained, the March date had been established in the 18th century when legislators needed a few months to close their home town affairs and move by horse-drawn coach to Washington. Such a long-drawn out period had no purpose in a faster world. But there was another reason for changing it: as Sen. George Norris, of Nebraska (pictured left), later one of those whom Sen. John F. Kennedy featured in his "Profiles in Courage," claimed, the lame duck session encouraged a kind of political fraud in which the Congress which had just been repudiated came back to meet, now absent any political mandate.

Publish and Perish? The Legal Times Article at the Heart of a Confirmation Battle

Ever since Robert Bork's nomination to the Supreme Court was defeated in 1987, there has been considerable worry over how a judicial nominee's written "track record" can work against them. The more someone writes, the more chances there are that what they write will offend a critical constituency (as it did with Bork) and lead to their defeat. The worry, of course, is that we are diminishing the chances of getting the best nominees for the courts if we make confirmation risky for anyone who has published significantly and, by being forthcoming, made important contributions to the law.

Now, in an interesting situation before the Congress, this tendency has been extended to include a nominee to become deputy Attorney General. James Cole, a partner at Bryan Cave, received the backing of the Judiciary Committee last summer but confirmation by the full senate has been held up because of an article he wrote in 2002 for Legal Times. The critical idea Cole expressed there was his belief, hardly novel, that terrorism cases should more appropriately be tried in the civilian courts.

The Constitution in "Quotes"

“If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation...It would be difficult to conceive of a proposition more inconsistent with the Constitution, or more dangerous to American liberty.”

Jameel Jaffer, a lawyer for the American Civil Liberties Union, on the decision this week by federal judge John D. Bates allowing the Obama administration to pursue the death of Anwar-al-Awlaki (in picture at left), an American citizen and Muslim cleric who is believed to have been involved with violent Al Qaeda activities in Yemen. Awlaki is now in hiding. While acknowledging that the thought of the president ordering the assassination of a U.S. citizen "without first affording him any form of judicial process whatsoever, based the mere assertion that he is a dangerous member of a terrorist organization” raised "stark" and "perplexing" questions, Bates saw the decision to target Awlaki for killing as a "political" question. Only the executive branch, he concluded, has the tools to determine whether someone in hiding "presents such a threat to national security that the United States may authorize the use of lethal force against him."

Distinguishing “Wikileaks” from the Pentagon Papers: One PJP Fellow’s Insight

Ever since Wikileaks burst onto the scene a few months ago, comparisons have been made linking the story of Julian Assange, the Wikileaks founder, with Daniel Ellsberg, the defense analyst who in 1971 exposed the Pentagon's secret history of the Vietnam War, revealing gross misrepresentations on the part of the government. Ellsberg's leak, which led to the publication of the Papers by the New York Times, resulted in a constitutional challenge and one of the most dramatic decisions in Supreme Court history, extending the reach of First Amendment protections and a reassertion of the doctrine of prior restraint. Ellsberg, now 79, has even spoken out in support of Assange and of PFC Bradley Manning, who leaked defense documents on the wars in Iraq and Afghanistan, to Assange. But can the two stories -- the Pentagon Papers and Wikileaks -- really be equated? PJP Fellow Trudy Rubin says no.

Does Our Primary System of Popular Election Threaten to Install Extremists into Positions of Power?

Former PJP Participant Bruce Ackerman Fears It Will

It was the Democratic convention of 1968 in Chicago that began a trend toward presidential primaries as the proving ground for major party nominations. Vice President Hubert Humphrey received the Democratic nomination for president that year despite having entered the campaign late and despite a strong showing by other candidates, notably Minnesota senator Eugene McCarthy. The convention, which was marred by violence from youth groups protesting the Vietnam War and questioning the legitimacy of American traditions and practices, gave impetus to those arguing for a popular national primary or, failing that, state practices that relied more on binding delegates to the results of statewide primaries.

One to Watch in the New Congress: Utah Senator-Elect Mike Lee

Members of the new, Republican-infused Congress that will take office in January, 2011, will be carrying with them well-read copies of the Constitution, though some of them have strong views on how to change it, both in language and doctrine. Writing in the New York Times, former PJP faculty member Jeffrey Rosen cited Utah senator-elect Mike Lee as having the best legal credentials of the new class: Lee's father was a Solicitor General under President Ronald Reagan ("Mike acquired his love for the Constitution early on while discussing everything from the Due Process Clause to the Second Amendment around the dinner table [with his father]," reads the senator-elect's campaign website) and the junior Lee served as a clerk to Judge Sam Alito when he was on the Third Circuit Court of Appeals and again after Judge Alito became Justice Alito of the United States Supreme Court. In-between, he joined the well-respected Washington firm, Sidley & Austin.

Andrew Mangino, PJP Collegiate Fellow 2009, Named Marshall Scholar

Andrew Mangino, who was a collegiate fellow for PJP 2009 while an undergraduate at Yale, has been awarded a Marshall Scholarship. The award is named for General George Marshall, who was secretary of state, secretary of defense and chief of staff of the Army as well as the author of the Marshall Plan. The Marshall Scholarship is provided to approximately 40 American graduate students to study in the United Kingdom. Mangino, who was editor of the Yale Daily News, graduated in 2009 and has been working as a deputy speechwriter to Attorney General Eric Holder.

Could the Obama Health Care Reforms Be Stopped Before They Start? This Man Will Decide

Judge Henry E. Hudson may be the most powerful man you have never heard of. As a federal district court judge in Richmond, VA, he will decide -- before year's end, he now asserts -- on a challenge to the recently passed federal health care law. The suit, brought by Virginia's attorney general, Kenneth T. Cuccinelli II, asserts that the provision of the law requiring people to buy health insurance is unconstitutional. While the Supreme Court has ruled that the Commerce Clause of the Constitution allows that body to regulate "activities that substantially affect interstate commerce," the question that Hudson must decide is: does the failure to do something -- in this case, the act of buying insurance -- constitute an "activity," albeit a passive one, that can be lawfully regulated by Congress?

The Constitution in "Quotes": 2007 PJP Participant Kathleen Sullivan's Nuanced View of Citizen's United

"Citizens United has been unjustly maligned as radically departing from settled free speech tradition. In fact, the clashing opinions in the case simply illustrate that free speech tradition has different strands. The libertarian strand from which the majority draws support emphasizes that freedom of speech is a negative command that protects a system of speech, not individual speakers, and thus invalidates government interference with the background system of expression no matter whether a speaker is individual or collective, for-profit or nonprofit, powerful or marginal. The egalitarian strand on which the dissent relies, in contrast, views speech rights as belonging to individual speakers and speech restrictions as subject to a one-way ratchet: impermissible when they create or entrench the subordination of political or cultural minorities, but permissible when aimed at redistributing speaking power to reduce some speakers’ disproportionate influence."

Stanford Law School Professor Kathleen Sullivan, on Citizen's United, the Supreme Court decision announced earlier this year barring Congress, under the First Amendment, from limiting corporate contributions to independent political broadcasts. Sullivan's comments appeared in the Harvard Law Review.

Of Prisons and Safety, Courts and Legislatures, and the Meaning of “Cruel and Inhuman”

This Tuesday, the Supreme Court will hold a hearing on a case that will be watched closely by state legislatures and prison officials across the country. It involves a decision by a three-judge federal panel in California to force that state to release thousands of inmates in state prisons in an effort to relieve overcrowding (they are now operating at twice the facilities’ design capabilities) as well as the prisons’ inability to address health issues in a timely and humane manner. In issuing its ruling, the three-judge panel, unusual in that it included two district court judges and a circuit court judge, declared that “a significant number of inmates have died as a result of the state's failure to provide constitutionally adequate medical care. As of mid-2005, a California inmate was dying needlessly every six or seven days.”

Featured Guest Blogger Witold J. Walczak

Two Cases Before the Third Circuit Raise the Question: Just How Far Can Public Schools go in Policing “off-campus” Speech?

As we react to the (merciful) end to one of the nastiest campaign seasons in memory, no one is suggesting that we should resort to censorship of political candidates. People are rightfully debating whether allowing corporate money is a good thing – a door opened by the Supreme Court in the Citizens United v. F.C.C. case last year – and whether disclosure requirements for donors should be imposed as a check on undue influence, but no one is suggesting that the government pass laws to limit candidates’ speech in order to promote civility and truthfulness, both of which seem in short supply.

Featured Guest Blogger Sarah Hinchliff Pearson

When Speech Can Get You in Trouble, Despite the First Amendment: The Shirvell Case

When an employer restricts an employee’s right to speak, by banning employee blogs or limiting what employees can say on social media sites, it is common for people to say it is a violation of the First Amendment right to free speech. This is not true. The First Amendment only protects people from government restrictions on speech. Private employers have no First Amendment limitations. They can fire employees for their speech without any constitutional consequences. (Employees are protected from being fired for some speech – like whistleblowing or union involvement – but these are statutory and unrelated to the First Amendment.)

The Constitution in "Quotes"

"I wish I didn't get nervous seeing black men behind me on the street. I wish there was no correlation between race and crime. I wish 100 percent of the terrorists who attacked us on 9/11 had not been members of one religion. I wish we didn't hear diatribes on a daily basis threatening our children and us in the name of Allah. I wish I didn't get nervous seeing Muslims on a plane. But firing Juan Williams won't make it so"

Former PJP Faculty Member Susan Estrich opining the firing of NPR commentator Juan Williams for comments he made on Fox News. Williams was canned for saying that he gets nervous when he gets on a plane and "sees people in Muslim garb." Estrich's entire piece can be read here.

Can the use of the word "boy" by a white supervisor addressing a black employee in a work situation be deemed an act of discrimination?

The 11th circuit says no.

2006 PJP Fellow Bill Rankin, writing in the Atlanta Journal-Constitution examines an interesting case that was recently heard by the 11th Circuit Court of Appeals in Atlanta. The suit was brought by John Hithon, a worker at the Tyson's chicken processing plant in Gadsden, Alabama, who claimed that his supervisor had addressed him as "boy," a term with historical racial overtones recalling the relationship between master and slave. Indeed, the trial court twice awarded Hithon damages on his claim that such slurs represented the racism that led to his being passed over for promotion. But in both cases, the circuit court overturned the decision, most recently when a three judge panel heard the case and dismissed it in Tyson's favor. As Rankin reports, now a distinguished group of civil rights pioneers -- including former Atlanta mayor Andrew Young, Rev. Fred Shuttlesworth (co-founder of the Southern Christian leadership Council) and former SCLC president Rev, Joseph Lowery -- is asking the 11th Circuit to reconsider the case en banc; that is, as a twelve-judge panel including all of the judges of the 11th circuit.

2010 PJP Fellow Lion Calandra Asks: "Why do Americans get the Constitution so wrong?"

"Recently, I was standing in line at a movie house behind a woman who objected to the theater’s policy of searching purses and backpacks. She indignantly told a theater employee that her purse could not be inspected, citing the Fourth Amendment’s protection against illegal searches. She did not know that, in general, the Fourth Amendment does not apply to private businesses – only to governments. The movie theater has a right to require a bag search; she has the right to take her business elsewhere."

So writes 2010 PJP Fellow Lion Calandra in a piece published in the Christian Science Monitor. But Calandra's fellow moviegoer pales in her constitutional ignorance when compared to many government servants. Calandra cites Sen. Roland Burris "quoting" the Constitution's as providing "for the health, welfare, and defense of the country." No such words appear in the document. She cites Sen. John Conyers of Michigan referencing the "good and welfare clause" of the U.S. Constitution. There is no such clause. Even President Barack Obama has tripped up, referencing, in his first State of the Union speech, "the promise enshrined in our Constitution: the notion that we’re all created equal." The "all men are created equal" line is actually from the Declaration of Independence.

The Constitution in "Quotes"

“Nothing in the Constitution or any other law requires the U.S. government to defend a law in court or to appeal an adverse ruling. Executive officials at all levels of government have discretion as to how, if at all, to proceed in court. All government officials take an oath to uphold the Constitution, and it would be inconsistent with that oath to require them to defend a law that they believe is unconstitutional..."

Former PJP Faculty Member Erwin Chemerinsky, dean of the University of California Irvine School of Law, in a piece in The Los Angeles Times,in which he asks why the Obama administration feels it necessary to defend “Don’t Ask, Don’t Tell,” the Pentagon’s policy on gays in the military, after a federal judge ruled it an unconstitutional restriction on freedom of speech. To read Dean Chemerinsky’s entire piece, follow this link.

The Constitution in "Quotes"

“The Tea Partiers would be well advised to devote their efforts to achieving significant limits on the federal government — such as limiting federal spending, cutting taxes, and reversing Obamacare — that don’t demand an amendment to the Constitution. They will have a limited political window to apply their political capital; constitutional amendments will only waste it..."

Former PJP faculty member John Yoo, writing in the National Review Online, on a movement among Tea Party members to repeal the 17th amendment to the Constitution, which required popular election of US senators. Prior to the 17th amendment, senators were elected by state legislatures. Many Tea Partiers believe that popular election undermines federalism, since the people are more likely to encourage federal involvement in state business than state legislatures would.To read the entire piece, follow this link.

The Constitution in "Quotes"

“The issue is not one of Thomas's First Amendment rights. She has them just like every other American. The question is one of civility and respect for the very powerful office her husband holds..."

From PJP Board member Sherrilyn Ifill's piece in ARENA, reacting to the news that Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, had left a telephone message on Anita Hill's answering machine, looking to send "an olive branch" to her husband's accuser. Hill's accusations of sexual harassment dominated Thomas's 1991 senate confirmation hearings. To read the entire piece by Ifill, follow this link.

2010 Jennings Fellow Accepts Fulbright to Teach in Kenya

Anna Clark, a 2010 Fellow of the Peter Jennings Project, is about to go to Kenya on a Fulbright grant where she will teach creative writing to Kenyans and report regularly for the Detroit News. An article in the local Michigan Herald-Palladium detailed her achievement. PJP has asked Anna to post reflections on constitutional issues during her visit.

Featured Guest Blogger Sarah Hinchliff Pearson

BROWSER BEWARE: WHAT YOU DON’T READ MAY STILL LEGALLY BIND YOU

Without realizing it, we have all entered into hundreds of legal contracts online. Nearly every website contains “terms of service” or “terms of use,” which dictate the rules under which you are allowed to access that site. Some websites require you to click to agree to the terms (so-called “clickwrap agreements”), while others simply state that by using the site, you agree to all of the terms listed (“browsewrap agreements”). In nearly all cases, the terms are dense, filled with legalese, and universally unread. But, despite being largely ignored by the public, these online contracts can have serious implications.

Test Revealing Ignorance About Religion Also Reveals Ignorance About the Constitution

A few years ago, attending my son's elementary school's December "Holiday Concert," I was surprised to examine the program and find no recognizable titles. The "holiday" reference was to, well, whatever holiday you might be celebrating at that time of year: Christmas, Chanukah, Kwanza, or something else, though you would have to keep the specifics of your enthusiasm to yourself for the musical numbers were chosen under the mistaken guidance that the First Amendment demands that nothing of any religious origin could be performed in a public school. Since that requirement pretty much eliminates all the great holiday music I can think of, the school turned to the works of a cottage industry of modern composers who turn out "music" that references the season without referencing a religious thought. I put the term "music" in quotes because this stuff barely met the standard for the word.

Our “Inconvenient” Constitution

Addressing the controversy over the Koran-burning Florida preacher, a story syndicated by USA Today a couple of weeks ago bemoaned our “inconvenient Constitution.” At first, I thought that merely an unfortunate phrase – something akin to “annoying laws” or “bothersome principles” – but was surprised when I did a Google search that resulted in thousands of hits on the same idea. Seems as though a lot of people look upon the First Amendment as an irksome thing; indeed, several authors cited their belief that if put to a popular vote, most people would today not endorse the freedoms granted by the Bill of Rights.

Featured Guest Blogger Sarah Hinchliff Pearson

Speaking from the Shadows: How the Internet Has Changed the Meaning of "Anonymous"

The First Amendment right to speak anonymously is well-established, and, at various times throughout American history, it has protected some of the most important speech in our political discourse. But anonymous speech also has a dark underbelly, which has been transformed and cultivated by the Internet. Courts attempt to balance these conflicting dynamics on a case-by-case basis and, not surprisingly, the result is inconsistency and uncertainty.

Should Airport Security Officials be Able to Search the Content of Your Phone and Computer Laptop?

The National Association of Criminal Defense Lawyers Says "No"

A recent article in Legal Times outlined a Fourth Amendment claim against airport security officers for searching the contents of laptop computers "without susipcion of wrongdoing." the complaint asserts that “electronic devices like laptops, ‘smart’ phones, and external data storage devices hold vast amounts of personal and sensitive information that reveals a vivid picture of travelers’ personal and professional lives, including their intimate thoughts, private communications, expressive choices, and privileged or confidential work product."

“We were prepared to go to court and sue if they did not put them up. Having a gun is a constitutional right.”

Alan Gottlieb, founder of the Second Amendment Foundation, speaking about ads promoting gun ownership that his organization succesfully placed at the San Francisco Metropolitan Transportation Agency's busstops despite the Agency's policy of not promoting guns. Ironically, earlier this year the MTA had forced the makers of the movie “The Other Guys” starring Mark Wahlberg and Will Farrell to alter an ad for their movie so that the two stars held cans of pepper spray instead of guns. But the Supreme Court's pro-gun-rights ruling in McDonald v Chicago, the controversaial gun rights case, has made the agency rethink its policy. Gottlieb is quoted in an article about the subject in the New York Times.

What You Can Learn From Studying the Tea Leaves Left by Supreme Court Clerks

For most of the Supreme Court's history, the job of Supreme Court clerk has been both prized and private. There has long been suspicion that the clerks -- who are among the most promising recent graduates from the top law schools around the country -- wield enormous power, sifting the cert pile to advance one case over another for the Court to consider, writing the rough drafts of opinions and, as rumored in some cases, the final drafts of opinions from justices who may not want to work that hard anymore. Still, all clerks are wed to a tradition of secrecy. A clerk works for a justice and then departs, never to utter a word about what went on while he or she was there.

What the Constitution Really Has to Say About the Ground Zero Mosque

As I listen to the debate on the Ground Zero mosque, engage friends and neighbors on the subject, and read editorials in what I hoped would be a more enlightened press, it is disturbing to see so much ignorance of, or indifference to, the Constitution and constitutional values.

Let's begin with the argument that the mosque must be allowed to be built because the First Amendment protects religious freedom. Yes, there is no doubt that the First Amendment protects the free exercise of religion – all religion -- and there should be no debate on whether the leaders of the mosque have the right to build it. They do. But so many, including Mayor Bloomberg of New York, think that the argument should end there. They see those who object to the mosque as hostile to the great American tradition of religious tolerance; indeed, I watched the Mayor on the Jon Stewart show a couple of weeks ago pompously pronouncing this fact to a rewarding round of applause. To which I can only react by asking, “just how much of the First Amendment, Mr. Mayor, have you read?”

The Constitution in "Quotes"

“They always say that I must abide by laws and constitutions...I know what is in laws and in constitutions, but what we have here in Egypt is neither laws nor constitution."

Mohammed ElBaradei, the Nobel laureate, on the political situation in his homeland where 82 year old President Hosni Mubarak, who has been president since the assassination of Anwar Sadat in 1981, is widely believed to be readying his son, Gamal, to soon become his successor.

Do the Homeless Deserve Protection as a Minority Class? In a Recenlty Published Piece, 2009 PJP Fellow Margo Pierce Says Yes

Margo Pierce, Jennings Fellow 2009, recently published a piece addressing an interesting question:, do the homeless deserve constitutional protection as a special class? That is, should we consider the homeless in the same manner that we consider other minority populations, such as African-Americans or homosexuals? Pierce’s work has appeared in several “street papers” – newspapers created to be sold by homeless people, providing them with a source of income – and has been syndicated by the International Network of Street Papers, which connects over 100 street papers worldwide. Pierce relied upon PJP faculty member Sherrilyn Ifill as a major sourc for her article, which is reproduced below. We invite your reactions.

By Margo Pierce

If 27 people had been killed in the United States in one year for being African-American or for being Jewish or for being developmentally disabled, there would be a national uproar. In 2008, 27 people were killed in the United States “for being homeless,” according to the National Coalition for the Homeless. Where is the uproar?

The Vexing Issues of Texting and "Sexting" in Public Schools

As a writer and reporter on the subject of educational reform, I am struck by the number of new constitutional issues arising these days in the public schools. My introduction to this came at the PJP conference this past February when I participated in the workshop run by Vic Walczak on a case involving the public schools and the subject of “sexting.” He and I have kept up since then and, let me put it this way, Vic Walczak is a busy man.

In fact, while we were meeting in the National Constitution Center last February, Walczak, who is the ACLU’s legal director for Pennsylvania, had three different cases before the federal Third Circuit Court of Appeals just around the corner.

“If you’re going to seek capital punishment, you’re going to have to pay for it...If we’re going to have harsh laws, at least we should fulfill our constitutional obligations."

Norman S. Fletcher, Former Chief Justice of the Georgia Supreme Court, upon hearing that his state had told the defendant in a capital case that it could no longer afford to pay for his lawyer and that, instead, he would have to switch to an overworked public defender unfamiliar with the case.

Featured Guest Blogger Sarah Hinchliff Pearson

Allowing the Presses to Roll: How the Second Circuit Expanded First Amendment Protections Despite Resistance from the Estate of J.D. Salinger

As most journalists probably know, Courts interpreting the First Amendment have always strongly resisted any “prior restraints” on speech because they suppress expression before a court can determine that the speech should indeed be denied First Amendment protection. In other words, our system says “we won’t prevent you from speaking, but we may punish you for it after the fact.” The breadth of protection goes rather far. Back in 1971, a federal judge deemed national security concerns to be insufficient to prevent publication of the Pentagon Papers, an internal defense department study of the Vietnam War that had been leaked to the New York Times.

Letter from Toulouse

I am in Toulouse, France, for a few days of vacation and watching from afar as the Supreme Court decisions come rolling out in a flurry as they do every year at this time. It is an interesting place from which to view the unique role that history plays in these two very different cultures.

The Constitution in "Quotes"

“If there is one basic element in our Constitution, it is civilian control of the military...If I allowed him to defy the civil authorities in this manner, I myself would be violating my oath to uphold and defend the Constitution."

President Harry Truman on the decision to fire GEN Douglas MacArthur as commander of UN forces in the Korean War, 1951

The Constitution v. "Oklahoma's Values"

Pity poor Brad Henry. An Oklahoma Democrat and the panhandle state's 26th governor, he has become the unlikely center of the abortion argument nationwide. Like many state legislatures -- eleven and counting says The New York Times in an article published today -- Oklahoma's has sought to put pressure on abortion rights by making it that much more difficult for women to get what remains a legal procedure protected by federal law. No less than eight abortion-themed bills have been introduced in the Oklahoma legislature recently, including several very modern ones like that barring an abortion performed because of the gender of the fetus or barring "wrongful life" lawsuits where a child is born with an unanticipated birth defect which had it been known to the mother before the child's birth would have prompted her to terminate the fetus.

What Drives Americans' Shifting Opinions on Abortion Rights?

A new Gallup Poll, issued yesterday, showed a plurality of Americans identifying themselves as "pro-life." You can see the results of the poll here, but the essential statistic that Gallup found is that 47 percent of those asked identified with the “pro-life” position while 45 percent of those responding said they were “pro-choice.” When compared to 1995, when only 33 percent of Americans polled claimed to be “pro-life” while 56 percent said they were “pro-choice,” it shows a marked shift toward the right. On the other hand, as recently as last May the divide was more decided: then, 51 percent were “pro-life” while 42 percent claimed to be “pro-choice.”

Former PJP Board Member Nominated to the High Court

Former Peter Jennings Project Board of Advisors member Elena Kagan was nominated today by President Barack Obama to take Justice John Paul Stevens seat on the Supreme Court. 2008 PJP fellows will remember Kagan as part of our panel on Women in the Law. But Kagan was more than a PJP participant. Until she resigned after assuming the position as Solicitor General for the Obama Administration, Kagan was an active board member, advising director Todd Brewster on programming and showing dedication to PJP's mission to increase constitutional awareness in the press. Here is an admiring piece about her from the New Republic, authored by PJP faculty member Jeffrey Rosen and released today.

Featured Guest Blogger: Lyle Denniston

Of “Standing” and “Injury” and Something Called “Ashwander Doctrine”

Peering Through the Looking-glass at the Constitutional Challenges to “Obama-care”

When Americans join in a hearty fight over a major public policy, they usually prove that Alexis de Toqueville was right. The shrewd French observer of life in America wrote in 1831: "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." With the sweeping new federal law on health care, that happened sooner: within moments after President Obama signed the measure into law, its constitutionality was challenged in federal courts in Michigan, Virginia and Florida.

Arguing Before the High Court

You're case has been granted certiorari and you are preparing for your first oral argument in front of the nine justices of the highest court in the land. How do you prepare? Do you aim to convince the whole bench or the two or three justices you feel are most likely on the fence? Are you ready for their questions? Is there anything you don't know about your case? As part of the 2010 Peter Jennings Project annual event, four seasoned litigators joined CNN legal analyst Jeffrey Toobin on stage for a lively discussion. The entire transcript can be accessed [here.] A few of the livelier moments are presented below.

Vic Walczak has Agreed to Join the PJP Answer Board

Witold "Vic" Walczak, legal director of the Pennsylvania ACLU and a member of the 2010 PJP faculty, has agreed to join the PJP panel of experts and has agreed to advise our Fellows in the area of student rights. 2010 PJP Fellows will recall Vic leading his group in the "sexting" case, Miller v. Skumanick. PJP is grateful for our continued association with Vic. He will also serve as a guest blogger, starting in the late spring.

PJP Board Member to Serve as Independent Prosecutor in the Paterson Ethics Case

Former Chief Judge of the State of New York, Judith Kaye, has just been named by New York Attorney General Andrew Cuomo to serve as a special prosecutor investigating the alleged ethics violations of New York Governor David Paterson. Judge Kaye, who has served on the PJP Advisory Board and as the chief judge of the moot court since PJP's inception in 2007, will be examining charges that Gov. Paterson interfered in a domestic violence case and that he lied to a state ethics panel about receiving free World Series tickets to Yankee Stadium last fall.

Celebrating the Fourth Annual PJP Event at the NCC

On Saturday, February 27, in what was the main event of this year's annual PJP meeting, U.S. Army General Jack Keane (Ret.), Brigadier General H. R. McMaster, and Yale Law School professor Bruce Ackerman squared off on a timely subject: just how can the Constitution tolerate what many believe will be a protracted, thirty years war against Islamic terrorism? The panel was mounted in partnership with the Center for Oral History at West Point. Terry Moran of ABC News was the moderator. Excerpts from a few dramatic moments in the dialogue appear below. (Transcript Provided by ADEPT WORD MANAGEMENT – The Transcription Experts, 800-982-3378)

Richard Lazarus joins the PJP Answer Board

Richard Lazarus, who was recently named the Justice William J. Brennan, Jr. Professor of Law at the Georgetown University Law Center and who is the founder and co-director of that school's Supreme Court Institute, has joined the PJP panel of experts and is ready to advise PJP Fellows on all aspects of Supreme Court advocacy. 2010 Jennings Fellows will recall Lazarus from his appearance at our Sunday morning panel, "Arguing Before the High Court." We are deeply grateful for Richard's ongoing association with PJP.

Featured Guest Blogger: Lyle Denniston

Court to Face Question of Anonymity in Public Advocacy

When Americans engaged in perhaps their most important-ever political debate – whether to ratify the new Constitution drafted in 1787 – most of the leading advocates on each side wrote and spoke behind a shroud of anonymity. There was “Publius,” the three anonymous Founders who together wrote the highly influential Federalist Papers. On the other side, the Anti-Federalists, making compelling arguments against the new document, penned their views under such names as “Cato,” “Brutus,” “the Federal Farmer,” and others. Today, we know who they were (or have good guesses about it – especially, about the identities of the Anti-Federalists).

Featured Guest Blogger: Lyle Denniston

Constitutional Cloning: How the Court Came to View the Corporation as a “Person”

Congress, it seems obvious, had real people in mind when, in 1866, it drafted what would become the Constitution’s Fourteenth Amendment, assuring protection for the rights of “persons.” As matters have turned out, that would be only partly right. A corporation, usually thought of as an “artificial being,” not a human being, is a “person” in the constitutional sense, and it has constitutional rights.