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Name That Tune

Many instructors will use music as a way to start a class session.  A short musical piece, played just before or right at the start of the lecture period, can be an effective means of relaxing students prior to the start of class.  And a relaxed student is one that is more open to the learning experience.

One other way that music can be used for teaching (or learning, for that matter)  is to set up a theme or point that might be explored during the lecture, or to use as a kind of mnemonic device for studying.   I’ve used music in this way during my constitutional law course.  Recently, Prof. Kevin McGuire (U of North Carolina- Chapel Hill) offered a link to his web page exploring linkages between the members of the Supreme Court and rock music: .  In that vein, I offer a partial list of songs that I think are useful and fun for constitutional law.

“Signed, Sealed, Delivered” by Stevie Wonder—Marbury v. Madison (This was actually suggested by a student—I also like “Mr. Postman” by the Marvelettes; alternate version by the Beatles)

“When I’m 64” by the Beatles—Steward Machine v. Davis

“Freight Train” by Elizabeth Cotten or any number of folks singers—discussion of the evolution of the Commerce Clause post-Civil War and the role of railroads in that expansion

“Bread and Roses” by Judy Collins or other folk singers for Muller v. Oregon

“You’ve Got a Friend” by Carole King (also version by James Taylor) for discussion of West Coast Hotel v. Parrish (the switch in time that saved nine)

“Love Potion Number 9” by the Searchers for NFIB v. Sebelius

“Don’t Stop Believin’” by Journey, for the reemergence of the expansive commerce clause interpretation in Garcia v. SAMTA

“Purple Haze” by Jimi Hendrix for Gonzalez v. Raich

I think you get the idea.  There are lots of ways to spin this and lots more songs to be used (certainly, more recent songs, but with so many covers of older pop songs, they can still work for today’s students).   And it’s a nice way to set a tone for class.


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The Scorecard and the Ninth Circuit

In the past few years a great deal of attention has been lavished on the Supreme Court treatment of the Ninth Circuit.  Articles with titles like “U.S. Supreme Court again rejects most decisions by the U.S. 9th Circuit Court of Appeals”  or “Take a Hint? Supreme Court Rejects 5 Rulings in a Row from West Coast Bench.”   There is a blog called the 9th Circuit Watch  and on its front page it details the reversal rate of the 9th over the past few Supreme Court terms.  Many of these articles are from 2011, but reputations have lasting effects.  As the ‘most liberal’ circuit in the federal system, it is an easy target for such scrutiny.  As the largest circuit in the federal system, it is an easy target for such scrutiny.  But is such scrutiny deserved?

SCOTUSblog has just released a partial Statpack  for the October 2012 term.  As expected the 9th Circuit tops the Court of Appeals for number of cases docketed and decided thus far—12 cases docketed and 7 decided already.  And the affirmation rate is not high—14%.  So, it seems that the 9th Circuit is still living up to its reputation for ‘getting it wrong’.  However, the 3rd Circuit, with 6 cases docketed and 4 already decided, has faired worse.  Its reversal rate is 100%.  The 11th circuit (6 cases docketed and 3 decided), the 5th Circuit (7 docketed; 2 decided), and the 7th (3 docketed; 2 decided) all have 100% reversal rates thus far.  In fact, only the D.C. Circuit (3 docketed; 2 decided) and the 4th Circuit (5 docketed; 3 decided) have a batting average of 500 or better.  Overall, the reversal rate thus far is 74%.  While the 9th will likely remain the media’s favorite whipping circuit, the overall data reveal that the 9th is really not very different from its brethren and the Court, with its small docket of 74 cases for the year, is still practicing the error correction strategy.

As we close out the Spring term and start concluding our constitutional law courses, its important to remember the lessons from the start of the term as well.  In Chapter 1, Epstein and Walker introduce students to judicial politics—the study of judicial behavior.  Perhaps now is a good time to come full circle and remind students that the behaviors noted are in evidence today.  The Court has issued unanimous decisions in 56% of its cases.  Since the “more difficult” cases are often left to the end of the term, its likely that this number will be reduced and hit closer to the norm, between 35 and 45%.  Not surprising, our swing justice, Justice Kennedy, has yet to write a dissenting opinion this term.  So far, the Chief Justice has authored 5 opinions and all have been 9-0—perhaps revealing the secondary desire for the Chief Justice to maintain a solid Court whenever possible.  And the workload of majority opinions is following the norms of equal work thus far as well.  Roberts tops the list with 5 opinions and Alito and Kennedy are at the bottom with 3.  What we know about the Court still holds and as our students finish up their constitutional law courses for the year, these lessons as well as the case law, will help them understand and follow the Court and its work without our assistance.

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Firearms and the FIRST Amendment?

NPR and The New Yorker have recently reported that Sen. Ted Cruz (R-TX) and Sen. Dianne Feinstein (D-CA) exchanged words on the Senate floor about Sen. Feinstein’s recently proposed legislation to restrict firearms.[1]  The legislation, sparked by the horrific shooting incident at Sandy Hook Elementary School, would ban assault rifles and certain ammunition clips.

Sen. Cruz criticized the legislation by making an analogy between the Second and First Amendments, and asked Sen. Feinstein if she would “consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights.”

Sen. Feinstein’s initial response to the question and the coverage on broadcasts of the story on NPR focused on her defense of her understanding of the Constitution—as a senator of longstanding, she didn’t need a lesson on the Constitution.  Buried in her later remarks to Sen. Cruz’s remarks was the recognition that “there are different tests for different amendments.”  And I think this is a teachable moment.

To my hearing, Sen. Cruz’s comments reflected an understanding of constitutional rights that I think is also shared by the NRA and likely others as well—that rights articulated in the Bill of Rights are absolute, particularly as regards the Second Amendment.  But I think this understanding as a legal matter is incomplete.

As students of constitutional law are aware, no right is absolute.  Because individuals live in societies, reasonable regulations are imposed on individual behavior to prevent harmful actions by individuals who want to exercise their rights in unreasonable ways.  Is it okay for individual students to pray before a math test?  Yes.  Is it okay for the math teacher to lead those students in a state-mandated prayer before the math test?  Not so much.  Constitutional law is all about cases where the Court must balance the individual right in question against the state’s interest in reasonable regulation.  The question, of course, is what constitutes “reasonable” regulation.  Is a ban on assault weapons “reasonable,” or is it a serious restriction of an individual constitutional right that guarantees access to all weapons?  The answer to these questions rests on consideration of the importance and urgency of the government’s reason for the ban and the importance and nature of the individual’s right to bear arms.

Sen. Cruz’s remarks suggest that access to weapons is like access to books—implicit in his comments is that since access to books is not restricted under the First Amendment, access to firearms of all types shouldn’t be restricted either.  Yet, the Court has not provided an absolute protection for access to books; for example, school boards under Pico may remove books from a school library if they find that the books are “pervasively vulgar” or not suitable for educational purposes.[2]  This limitation would be consistent with the recognition of the importance of access to ideas as part of the educational function, balanced against the need for school boards to shape curricula for the development of young minds.  Can one draw an analogy to access to assault weapons, arguing that since the purpose of the right to bear arms is  self-protection, banning one type of weapon doesn’t significantly diminish that purpose, and thus, determining the government’s purpose in imposing this restriction would be crucial in determining the constitutionality of the legislation

[1] Eyder Peralta, “’I Am Not a Sixth Grader’: Sens. Feinstein, Cruz Spar on the 2nd Amendment,” The Two Way: Breaking News from NPR, 3/14/2013; (accessed 3/15/2013); Amy Davidson, “Feinstein and Cruz Fight About Guns,” The New Yorker, 3/14/2013; (accessed 3/15/2013).

[2] Board of Education v. Pico, 457 US 853, at 871.  Discussed in Claire Mullally, “Banned Books,” First Amendment Center, 9/13/03,; accessed 3/15/13.

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Forty Years and Counting….

This past January saw the 40th anniversary of Roe v. Wade.  As folks protested and demonstrated about the decision at the Court, you had to share a little feeling of déjà vu; a little sharing of Justice Stewart’s reaction as described by Linda Greenhouse in her New York Times blog entry for the day: “I don’t understand.  We’ve decided that.”[1]

Except, of course, that the abortion issue continues to come back, like a bad penny or that tune that you can’t get out of your head.  On Wednesday, NPR blogged that the Arkansas legislature had just approved the most restrictive abortion law in the US, over the veto of its Democratic governor.  The bill requires abortion providers to perform an abdominal ultrasound that will allow the detection of a fetal heartbeat.  If there’s a heartbeat and the pregnancy is at 12 weeks or more, then no abortion can be performed; the bill allows exceptions to preserve the mother’s life, in cases of rape or incest, and in cases of medical emergency.  Mike Beebe, the Arkansas governor, claimed that the bill is not constitutional.   The bill’s major sponsor, State Sen. Jason Rapert, was “grateful that [the Arkansas Legislature] has continued to stand up for the bills that have passed.”[2]

Since the Court’s decision in Roe, the Court has had to struggle over the question of abortion rights.  Greenhouse’s January blog entry is a worthwhile read for the history of this issue in the Court and for the symbolism of the issue over its 40 year life.  Greenhouse argues that the case’s meaning for the justices was not about women’s rights, but about the ability of doctors to practice their profession without fear of criminal prosecution.  Thus, the issue for them was about policy, not about political ideology.  It was the ensuing conflict about abortion, and the use that political parties made of the issue, that caused it to become the hot button issue that it is.  And the current partisan alignment of abortion stances with the two parties, the increased partisanship of elections, and the close electoral divide make it likely that abortion will continue to be an issue.

Which leads me back to Greenhouse’s blog.  Greenhouse ends by pointing to a recent Wall Street Journal poll that found that 70% of respondents felt that Roe v. Wade should not be overturned.  This result, along with the recent 2012 election, leaves her feeling hopeful:

Until recently, I shared the sense of doom that pervades the abortion-rights community. But as the history of the last 40 years shows, elections matter, and the 2012 election matters a great deal. Those looking for signs of “regime change,” as my colleague Jack Balkin at Yale Law School puts it, can find them in unexpected places. The decision last week by Arizona’s governor, Jan Brewer, to accept the Medicaid expansion that she and other Republican governors had fought as part of their lawsuit against the Affordable Care Act was, I believe, an underappreciated portent of shifting tectonic plates….
On one of New Haven’s main streets, a few blocks from my office, is a building that houses the local Planned Parenthood affiliate. Its clinic provides a full range of women’s health services, including contraception and abortion. I grew up about five miles from that location – not then a Planned Parenthood clinic, of course. At the time I graduated from high school, a year before the Supreme Court decided Griswold v. Connecticut, not only was abortion still illegal in my home state, but so was birth control, even for married couples. Every time I drove by the building, and especially this week, I think to myself that despite all the worries and perturbations of the last 40 years, there’s progress.[3]


I wish I could share her optimism.  Legislatures have been adopting many restrictions on abortions in the past year and states are continuing to consider further restrictions.  Presumably, these restrictions have public support, belying the Wall Street Journal results.  That is because, despite the 70% support for upholding Roe, the same survey shows that Americans continue feeling ambivalence about abortion.  In the same poll, 23% of the respondents agreed that abortion should be legal “most of the time;” 35% agreed that the procedure should be illegal with some exceptions.  When combined with the 9% that support a total ban on abortion, this led to the conclusion that “Almost 7 in 10 respondents say there are at least some circumstances in which they don’t support abortion.”[4]

The ACLU has announced that it will challenge the Arkansas ban.  As other challenges are filed in other states, as they will, and make it to the Court, as I imagine they will,  I wonder how the Court will read public opinion after this past election.  If they truly “follow th’election returns,” which 70% will they see?

[1] Linda Greenhouse, “Misconceptions,” New York Times, January 23, 2013;; accessed Mar. 6, 2013.

[2] Bill Chappell, “Arkansas Legislature Embraces Strictest US Abortion Law,” The Two Way: Breaking News from NPR, Mar. 6, 2013,, accessed March 6, 2013.

[3] Greenhouse, Ibid.

[4] Louise Radnofsky and Ashby Jones, “Support Grows for Roe v. Wade”, Wall Street Journal, January 22, 2013; accessed March 7, 2013.

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The Power to Tax….

With all the attention being paid to the federal budget and the sequester, tax policy has come under scrutiny.  One issue that briefly received attention was the possibility that Congress would end the federal income tax deduction for the state income tax.  The New York Times and NPR commented on the impact of such a change in policy.[1]  In brief, the repeal of the deduction would not only reverse a tax policy that has existed as long as the federal income tax, but would impose greater burdens on residents in states with high income tax rates.  It could be argued that this policy change would threaten state policies that support the needy; it could also weaken state autonomy to determine state policy.

As was noted by both NPR and the Times, the basis of the state income tax deduction is to exempt the portion of individual income that was paid in taxes from being taxed as income—in effect, to avoid double taxation.  States that impose an income tax on its residents find it easier to get acceptance of the taxes since they are exempt.  But the exemption also amounts to a subsidy from the federal government to the states.  What’s more, this subsidy is larger for those states that impose higher taxes to fund programs that provide more support to the needy.  In other words, the subsidy is greatest for those states that believe in the effectiveness of a strong government. [2]

The problem is that the state income tax deduction is estimated to cost the federal government about $70 billion a year.  In the search for more sources of revenue, both Congress and the President have suggested that the state income tax exemption could use another look, either by capping federal tax deductions, which would impact more people in high tax states, or by repealing the exemption.

However, repealing or limiting the exemption could increase pressure to reduce state tax rates, limiting the ability of states to fund many state programs.  As the Times argues,

The deduction is Washington’s way of supporting states that support their most vulnerable citizens and neediest cities. The seven states that account for 90 percent of state and local tax deductions (including sales and property taxes) — New York, New Jersey, California, Pennsylvania, Maryland, Illinois and Massachusetts — generally do a better job of providing for the health and welfare of their citizens, and are more willing to pay for institutions that are good for society as a whole.[3]


As such, it could be argued that repealing the exemption would have a deleterious effect on the states’ abilities to adopt and shape their policies.  The policy also reflects a “balance between the federal government and the states.”[4]  After all, as the Chief Justice Marshall so famously noted, “the power to tax is the power to destroy.”   So could repeal of the state income tax deduction be challenged as an unconstitutional infringement on the state’s powers and the federal system?

[1] For the stories, see NPR, “Day 8 of 12 Days of Tax Deductions,” and New York Times,  “Keep the State Tax Deduction, “

[2] To see a nice map of the relative value of the state income tax deduction, see  accessed 2/28/13

[3] NPR, “Day 8”

[4] New York Times, “Keep the State Tax Deduction”

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Free exercise and corporate personhood

Rorie writes…

On January 20, 2013, the Washington Post published a story about a series of lawsuits challenging the contraceptive provision of the Affordable Care Act.[1]  The challenges use Citizens United as a starting point.  Citizens United continued to recognize corporations as persons under the law and provided them with the right of free speech.  Now some corporations are also seeking protection for their right of free exercise.  The ACA requires that most employers covered by the law provide contraception as part of the insurance plan.  However, some owners of privately held companies contend that providing employees with such coverage violates the tenets of their religion.

Two cases have already made it to the courts of appeals and the circuits have split on the issue.  The 7th circuit sided with the employers and the 10th with the government.

These cases raise interesting questions for discussion.  If a company can refuse to provide contraception coverage because it infringes on their personal constitutional right to religious liberty,  is that any different from firing an employee for the posting anti-gay messages on a cubicle in direct conflict with company policy?[2]  The courts have allowed infringement of employee rights to promote a sanctioned end (tolerance and diversity), but doesn’t the reverse also hold?  The implications of the 7th circuit ruling are that it does.  If an employer’s religious tenets constitutionally supersede the ACA, do they also supersede the Civil Rights Act?

Do federal policies mandating nondiscrimination in hiring homosexuals or women also become a matter of religious freedom in this analysis?  If your religion dictates that a woman’s place is in the home, can you discriminate against women?  Fire or fail to hire any homosexuals because it violates the tenets of your religion?  Fire workers for getting pregnant out of wedlock or taking the Lord’s name in vain?  How far do the rights of a corporate person extend?  Can the rights of a corporate person be distinguished from the rights of an individual?

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The Wright House?

Pity John Hoffman and Steve Sells, the recent purchasers of a home in Phoenix, AZ.  The two bought a fixer-upper home in Phoenix, AZ for what seemed to be a steal—$1.8 million.  The home had been sold for $2.8 million to the previous owners.

Hoffman and Sells could not believe their good fortune.  “The property is gorgeous,” said Sells.[1]  And it is.  Located in one of the most popular neighborhoods in Phoenix and near the famed Camelback Mountains, Hoffman and Sells figured that the property alone was worth almost as much as their purchase price.  Their plan was to demolish the existing home which, though striking, needed a lot of repair and maintenance.  They would then split the lot and build two homes on it, easily recouping their investment.   The two purchasers successfully applied to the city for permission to split the lot, received permission to demolish the house, and all looked rosy.

But hold the phone.  It turns out that the house that Hoffman and Sells bought is not just any house.   The house was designed and built by that iconic American architect, Frank Lloyd Wright in 1952 for his son and daughter-in-law.   The Wright grandchildren could not afford the costs to maintain the house, and so sold it to purchasers who then sold it to Hoffman and Sells.[2]  A tour of the house reveals the features that characterize the Wright aesthetic—curved walls are echoed by custom cabinets and furniture, and even Wright’s signature red tile can be plainly seen at the front door.   Preservationists requested that the city provide landmark designation for the Wright house just as the new owners were preparing to begin their development plan.  Realizing the importance of the house, the city of Phoenix rescinded the demolition permit and initiated the landmark designation process.

This has wreaked havoc on Hoffman and Sells’ plans for the property.   Surprisingly, both men say they had no knowledge about Frank Lloyd Wright and his stature, and hence had no clue about the significance of the house.  “If [the house] becomes a landmark, we’re out of business,” said Sells.[3]  He and Hoffman planned to fight the landmark designation.  Even if they are unsuccessful and landmark designation status is accorded to the house, however, under Arizona law the designation is only good for three years.

The city sought to find another buyer for the home; that buyer would have to pay the current asking price of $2.379 million.  According to a recent article, such a buyer has been found.   However, the city council representative for Arcadia wants to be sure to discuss the sale with the buyer, noting that the council doesn’t “want to be in a position of dictating what should happen to the property.” [4]

This situation is reminiscent of regulatory takings cases like Lucas or Penn Central where government regulations interfere with a property owners’ plans for their property.  It is interesting to discuss the situation in terms of the considerations surrounding takings.  After all, what is the public interest in preserving a Wright house that would justify public control of the disposition of the house?   And although Hoffman and Sells want to demolish the house, does the public interest change if the new buyer wants to modify the house by painting or remodeling, and what is the basis for that public control?

[1]  Fernando Santos, “Buyers of a Wright Home in Phoenix Reconsider a Deal ‘Too Good to Be True,” New York Times, Oct. 25, 2012,

[2] Ibid.

[3] Ibid.

[4] Op cit., “A New Buyer Appears for a Threatened Wright House,” New York Times, Nov. 1, 2012,

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