This is Steve Shiffrin's Typepad Profile.
Join Typepad and start following Steve Shiffrin's activity
Join Now!
Already a member? Sign In
Steve Shiffrin
Recent Activity
Last week Chief Justice Roberts delivered a Law Day speech in which, according to the Washington Post, he complained that partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees. By players in the political process, Roberts does not mean that the Court’s decisions have no impact on the political process. Rather he means that the Court’s decisions are not made in the same fashion as legislators. Instead, he maintains that the Court often makes decisions that are contrary to their policy views. Though he did not say so, presumably his vote upholding the Affordable Care Act would be one such case. He surely would not have voted for the Act if he were in the legislature, but many things are within the power of the legislature, not just those that track the... Continue reading
Posted 2 days ago at
If you are worried about Trump, you will be happy to read a column by Nate Silver. He says, "Trump is not very popular with general election voters. On the contrary, he’s extremely unpopular with independents and would begin the general election race with worse favorability ratings than any candidate to receive a major-party nomination before." See here. Silver has an intriguing analysis of the difficulties influential Republicans face in stopping him and the implications of a Trump nomination for the Republican Party. Continue reading
Posted Jan 26, 2016 at
Injustice permeates our criminal “justice” system. In theory, our system is not supposed to be an inquisitorial system, but the case law gives the lie to that claim on a daily basis. To be sure, some courts know how to “talk the talk.” The Court of Appeals in New York is one such court. As it said in People v. Anderson, 42 N.Y.2d 535 [1977]: “Ours is an adversarial . . . not an inquisitorial system.” Confessions are to be excluded when Miranda rules are violated (the rules are riddled with police-friendly interpretations that make a mockery of the original decision). Separate and apart from Miranda, a confession must be voluntary. As the Anderson Court explained, a confession is involuntary if it is coerced or otherwise unreliable on the issue of guilt or innocence or obtained or acquired under police methods “so extreme that they violate our notions of fundamental... Continue reading
Posted Jan 25, 2016 at
Guest Post for Religious Left Law by Vincent Ialenti & Meridian 180 In September 2015, Cornell Law School’s virtual think-tank Meridian 180 brought together anthropologists, legal scholars, a literature scholar, a futurist, a geographer, a corporate lawyer, and philosopher for a lively online conversation about Pope Francis’s 2015 encyclical Laudato Si: On Care for Our Common Home. The goal was to spark more global, intellectual, and frank reflection on how the pope’s environmental thinking could help us re-imagine how ecologies and theologies interrelate in the twenty-first century. Cornell postdocs translated the conversation into Korean, Japanese, English, and Chinese as it took place. We believe Religious Left Law’s readers may be interested in some of the insights, skepticisms, and questions that emerged from our discussions. 1) More careful attention must be paid to the powerful institutions, histories, and thinkers that have served as foundations for Laudato Si’s (progressive) points about Earth’s... Continue reading
Posted Jan 18, 2016 at
Should the First Amendment be interpreted to protect workers who ideologically object to paying fees to unions who represent them in the collective bargaining process? The question was explored before the Supreme Court in oral argument on Monday in the case of Friederichs v. California Teachers Association, and it appears the Court is about to overrule Abood v. Detroit Board of Education which ruled that the First Amendment provided no protection in these circumstances. As my colleague Michael Dorf observes in his excellent column yesterday, a key moment in the argument occurred when Justice Sotomayor asked the plaintiff’s attorney whether the state could simply fund unions from tax revenues to assure adequate representation for workers in the collective bargaining process. For Dorf, the point of the question is if government can tax to support unions (or, more precisely, tax employees to support unions without violating the First Amendment), why can’t... Continue reading
Posted Jan 13, 2016 at
Sarah Betsy Fuller, a clinical professor at the Cornell Law School devoted much of her life to combating unjust prison conditions. See here. At her funeral service in 2004, a close friend quoted her as saying that a society should be judged not by its artistic or scientific contributions, but by how it treats its prisoners. Even before Betsy’s death, the Prison Litigation Reform Act (PLRA) imposed burdensome restrictions on getting access to court to challenge unjust prison conditions. As it stands today, a promising alternative to lawsuits is to get the media to shine a spotlight on prison practices. What stands in the way of this is an excessively restrictive interpretation of press rights under the First Amendment. Of course, it makes sense that there is no general public right of access to prisons to interview prisoners. But the public loses when the press does not have such a... Continue reading
Posted Dec 30, 2015 at
In a recent post at First Things, Mark Movsesian makes some observations about Roger Scruton’s The Future of European Civilization: Lessons for America. Movsesian is particularly interested in human rights which Scruton views as a European religion replacing Christianity, at least for European elites. Scruton faults human rights for lacking grounding and for being indeterminate because of that lack of grounding. That is, there is wide disagreement as to what is and is not a human right. To this, Movsesian observes that Christians disagree about what Christianity teaches in a wide variety of important circumstances. So on this ground, Christianity has no advantage. Movsesian imagines that Scruton might respond that the dominant strand of secular human rights thought denies any objective truth claims, so there can be no objective basis for adjudicating between varying human rights claims. If this were true, however, human rights thought would be indefensible. If there... Continue reading
Posted Dec 22, 2015 at
One of the great differences between progressives and libertarians is that progressives favor economic regulation and libertarians oppose it. As a constitutional matter, it has long been settled that economic regulation is ordinarily not subject to any serious due process objection. One of the disquieting developments of recent years has been the misuse of the First Amendment to disrupt economic regulations involving speech. Many years ago, Kenneth Karst, one of the great progressive scholars of his generation, argued that some economic regulations involved important human rights that deserved to be subject to serious scrutiny under the due process clause. He had in mind the right to pursue an occupation, and he objected in particular to unnecessarily burdensome occupational licensing requirements. To my mind, the California Bar examination is an outstanding example of an excessively burdensome requirement. It is not just that fewer than half of the applicants passed the examination... Continue reading
Posted Dec 6, 2015 at
Thanksgiving is a day inspired by a group of refugees – the Pilgrims. It is hard for me to heap admiration on the Pilgrims. They were a group escaping from England to achieve their own religious freedom. But they persecuted those who did not follow their own crabbed version. Harold Meyerson today has an excellent Washington Post column (see here) in which he draws attention to the irony that Republicans on a day inspired by refugees are doing their best to deport immigrants and prevent refugees from arriving on their shores. Narrow as the religion of the Pilgrims might have been, it was not a religion of personal fear in this world and certainly not a religion of selfishness. Nonetheless, I am even more drawn to E.J. Dionne’s wonderful column today. See here. Thanksgiving is a day for gratitude. And he says that “Gratitude requires the swift, the strong, the... Continue reading
Posted Nov 26, 2015 at
On her Facebook page, Taryn Mattice links to a must read post by Jim Wallis on how to react to ISIS. Among other things, he argues that the kind of measures urged by Republicans are exactly the reactions that ISIS would welcome and would assist their recruitment efforts. Wallis argues that "To win the 'war' against ISIS, we must win the moral narrative – we must reveal ISIS’s distortions and lies and thus destroy their moral and religious legitimacy to those they seek to recruit. The best way to defeat bad religion is with good religion, and the better way to defeat religious fundamentalism is from within rather than trying to smash it from without." He argues that "Continuing to supply the narrative ISIS that clearly wants – dropping more bombs, invading more countries, refusing more refugees, offering our hate in response to theirs, and 'showing no mercy' as some... Continue reading
Posted Nov 21, 2015 at
Eric Schneiderman, the New York Attorney General, has declared that daily fantasy sports games are a form of illegal gambling, but I think his claim is spurious. Gambling is generally illegal if it is based on luck rather than skill, but the line between the two is unclear. I will focus on baseball because I know it somewhat better than other sports. Everyone would agree that the real game of baseball is a game of skill. Try throwing a 93 mile per hour fastball or hitting one. The better teams tend to prevail over the course of a season. Yet baseball games are often decided by a matter of inches. Even the best of batters have little control over where a ball goes. To be sure a batter can deliberately hit some pitches to the right side of the infield, but nobody has the precision to hit the ball between... Continue reading
Posted Nov 12, 2015 at
Fox News reporter Jesse Watters was recently thrown off campus while asking students questions primarily about liberal bias in the university. On camera, he asked Senior Director of Media Relations John Carberry why he was being asked to leave and Carberry in his best imitation of an imperial bureaucrat said he would send him a statement. Carberry proceeded to send a statement asserting that Cornell does not discriminate in hiring on the basis of politics, a statement that notably did nothing to explain why Cornell threw Watters off campus. When airing the segment Bill O’Reilly said to Watters, ““Don’t they understand that they look 18 times worse than if they’d just left you alone?” Mr. Carberry violated the first rule of public relations: never make matters worse by making public relations the story and above all, don’t appear to be covering up through censorship. Apparently, Vice President of University Relations... Continue reading
Posted Oct 30, 2015 at
Vice President Biden has decided not to run, but it is worthwhile to consider one of the problems he would have confronted if he had run. I have in mind the Catholic problem. It is not the same problem John Kennedy faced when he ran for President. The concern then was that he would be a puppet of the Vatican. Kennedy argued to the Houston Ministerial Association that he favored religious freedom, separation of church and state, and that he would follow his conscience rather than the impositions of religious prelates and he trusted that a Protestant would do the same. I wish he had made the point that it was part of Catholic doctrine that a person should follow his conscience rather than the views of Church leaders when he could not bring himself to agree. But Kennedy’s speech opened the door for him to run for the Presidency... Continue reading
Posted Oct 25, 2015 at
City, Town, and Village Courts in New York State essentially entertain the same types of cases including traffic, small claims, landlord tenant disputes, violations, misdemeanors, and felony preliminary hearings. To qualify to be a City Court judge in New York, you would need to be a member of the New York bar and have practiced law in New York for at least five years. To be a Town or Village justice, you would only need to be a resident of the town or village, be at least 18, and not have committed a felony. In New York State 72% of the Town and Village Justices are not lawyers. Many are quite smart and well educated. The County in which I live is investigating whether to seek legislation reforming this system. The Town and Village judges argue that the current system has worked for more than a century, that they are... Continue reading
Posted Oct 15, 2015 at
Matt Bai has written a wonderful book about political reporting entitled All the Truth is Out: The Week Politics Went Tabloid. The central claim of the book is that the reporting about Presidential candidate Gary Hart marked a fundamental change in political reporting. According to the Boston Globe, Bai shows that the reporting was bad for Hart and bad for democratic life. I think Bai is torn on the question (he does an excellent job of reporting both sides). In the end, however, he regrets the tabloid turn, and though he has great admiration for Hart, he pulls no punches in reporting about his weaknesses. Gary Hart you may remember was the front runner for the Democratic nomination and a strong favorite to win the Presidency in 1988. He led George H.W. Bush by 13 points and only 11% of the electorate was undecided. Moreover, he was a brilliant candidate,... Continue reading
Posted Sep 27, 2015 at
Approximately 25% of the U.S. News evaluation of American law schools is based on the quality of the student body, and the lion’s share of that criterion is based on the grade point averages and LSAT scores of the student population. Ten per cent of that assessment is related to the acceptance rate. This grade point and LSAT part of the evaluation system has quite pernicious effects. It used to be that the vast majority of law school financial aid was distributed on the basis of need. No more. Now schools throw money at those students that can help the collective GPA or LSAT at the particular levels of the class that U.S. News employs. Morever, the money is doled out in a highly strategic way. There is little point in offering money to a student accepted at a higher ranked school. Indeed, serious gamers of the system might deny... Continue reading
Posted Sep 14, 2015 at
Last week 130 religious, education, civil rights, labor, LGBT, women's, and health organizations wrote a letter to the President to complain about a 2007 Office of Legal Counsel opinion (see here) that a religious organization (World Vision, Inc.) providing secular services to guests on a non-discriminatory basis with the assistance of Federal funds had the right under the Religious Freedom Restoration Act to restrict its hiring to those who share the religion of the religious organization. See here. The 130 complained that the "broad" ruling constituted a "blanket override of a statutory non-discrimination provision," and argued that the government's interest in preventing religious discrimination is compelling. They worry that the ruling might support discrimination against LGBT workers or could be used to deny health services to undocumented children. To be sure, preventing discrimination on the basis of religion should ordinarily be considered a compelling government interest. If the Sierra Club... Continue reading
Posted Aug 30, 2015 at
Scott Walker is well known for his bulldog-like attacks on constituencies not devoted to Republicans. So he has attacked public and private unions. And his most recent budget would slash “$250 million from the University of Wisconsin, one of the country’s great public institutions of higher education, and [would ensure] that most K-12 school districts will get less funding than they did last year.” See Washington Post. Most important for my purposes Mr. Walker sought to remove tenure protection for professors at the University of Wisconsin. As the Post reports, this move would seriously harm the school’s ability to attract and retain talented faculty. Of course, this has attracted criticism, but coming to his rescue in the editorial pages of the Wall Street Journal (where else) come John O. McGinnis and Max Schanzenbach (see Wall Street Journal (subscription may be required)) to defend the proposal as a wonderful cost savings... Continue reading
Posted Aug 20, 2015 at
In 2009 Michael Jordan sued Jewel Food Stores among other things for appropriating his name for commercial purposes without his authorization violating his so-called right to publicity. I put the case on an exam, and recently noticed that the case is scheduled for trial in December. Already the case stands for several important points. But, first the facts. When Michael Jordan was admitted to the Naismith Memorial Basketball Hall of Fame, Sports Illustrated put together a commemorative issue and offered Jewel Food Stores a free ad if it would display the issue in each of its 175 markets in Chicago. Jewel agreed and was given a full page ad on the inside back cover. Jewel’s ad featured some shoes on a hardwood floor with the number 23 (Jordan’s number for most of his career – Jewel does not sell shoes). The ad said that Jordan was a Shoe In. It... Continue reading
Posted Aug 10, 2015 at
Princeton’s Robert Wuthnow, one of the leading sociologists of religion, has an illuminating article in First Things on the increasing unreliability of even prominent national polls on religion. As he observes in a crucial passage, “As public confidence in polls has tanked, so has the public’s willingness to participate in polls. Response rates have declined precipitously. In the 1980s, the typical response rate was in the 65- to 75-percent range—the range to which serious academic and government surveys aspire and frequently achieve. By the late 1990s, response rates had fallen to 30 to 35 percent. Currently the typical response rate is 9 or 10 percent, and rates rarely exceed 15 percent. In other words, upwards of 90 percent of the people who should have been included in a poll for it to be nationally representative are missing. They were either unreachable or refused to participate. Wuthnow identifies the characteristics of... Continue reading
Posted Aug 5, 2015 at
I may have a limited imagination, but it never occurred to me that anyone would deny that the murders in Charleston's Emanuel African Methodist Episcopal Church were racially motivated. I did not even think Fox News could be so clueless. Similarly, when John Russell Houser opened up fire in a crowded theater showing Amy Schumer's Trainwreak, is it difficult to suppose that his views of women were a major part of his motivation? He kills two women in a theater showing a movie written by and starring a feminist who he would surely find threatening. Is it really all that mysterious? Should we be irretrievably puzzled, or is the hate crime explanation the most plausible? For a strong argument in favor of the view that we need to start enacting and naming hate crimes against women, see this excellent post by Elizabeth Licorish in the Huffington Post. Continue reading
Posted Jul 30, 2015 at
70 Years after the War Blessed are the peacemakers – Now especially, peace must not depend upon weapons To our Brothers and Sisters in Christ and to All Who Wish for Peace The Catholic Bishops’ Conference of Japan issued messages marking the end of the Second World War in 1995 (Resolution for Peace -- On the 50th. Anniversary of the End of the War) and 2005 (Peace Message After 60 Years From the End of War World II -- The Road To Peace Based On Nonviolence -- Now Is The Time To Be Prophetic). In this year in which we mark the 70th anniversary of the end of the war, we wish to once again declare our commitment to peace. 1. The Church Cannot Remain Silent in the Face of Threats to Human Life and Dignity For the Catholic Church, this is a noteworthy year because it marks the 50th... Continue reading
Posted Jul 25, 2015 at
The press coverage of the same-sex marriage case was not uniformly distinguished. Particularly problematic were reports that evangelical ministers would combat the Court’s decision by refusing to have same sex marriages in their churches. The implication was the Court decision had something to say about what happens in churches. It, of course, had zero effect on the decisions religious leaders are entitled to make and act upon in determining who can and cannot be married in their houses of worship. The Court’s decision had absolutely nothing to say about what happens in any part of the private sector. Only in rare cases, does the Constitution reach beyond the regulation of government action. Nothing in our Constitution prevents a private employer from discriminating on the basis of sexual orientation, let alone dictating to a minister who he or she shall marry. I don’t expect that our law will ever intrude on... Continue reading
Posted Jul 19, 2015 at
The dissents in the same sex marriage case have been much criticized. But George Will deserves the prize for the most spectacular criticism. Chief Justice Roberts wrongly (see here) maintained that the only case supporting the majority’s decision was Lochner v. New York, a decision in 1905 invalidating a New York law setting maximum hours per day and week for bakers. Lochner has long been recognized as a dirty word. It is the poster child for what can go wrong in constitutional law. A court imposes its own economic theory in ways permitting employers to exploit workers and at the same time overrides the deliberative choices of a democratically elected body by reference to a pseudo-constitutional right. In his syndicated column this week, George Will comes forward to claim that Lochner was rightly decided. (See here). He thinks that “America urgently needs many judicial decisions as wise as Lochner.” As... Continue reading
Posted Jul 15, 2015 at
This is cross-posted from the Hill with Bob Hockett's permission. Greece's current travails offer many lessons, but they are not those that some seem to believe. This is not a story about corruption or profligacy, even if there has been some of that, as there always is. Nor is it a matter of "Greek vice" and "German virtue." It is a story about incomplete economic — hence political — unity among states. And this is a story that not only Europeans, but Americans and others, all should take heed. ADVERTISEMENT Begin with a fundamental datum: Some European economies — particularly those in the north — have long been commercial and industrialized. Others — particularly those in the south — remain to this day much more traditional and agricultural in character. This means that the northern economies produce and provide more in the way of high value-added, manufactured goods and services,... Continue reading
Posted Jul 10, 2015 at