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Summum and the Establishment Clause

Meyler, Bernadette | August 24, 2009

Chief Justice Roberts: [T]he more you say that the monument is Government speech to get out of the first, free speech—the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause. If it’s Government speech, it may not present a free speech problem, but what is the Government doing speaking—supporting the Ten Commandments? Justice Kennedy: [I]t does seem to me that if you say it’s Government speech that in later cases, including the case of the existing monument, you’re going to say it’s Government speech and you have an Establishment Clause problem. I don’t know if—I’m not saying it would necessarily be resolved one way or the other, but it certainly raises . . . an Establishment Clause problem. Justice Souter: But . . . [t]he Government isn’t disclaiming [the Ten Commandments monument]. And the difference[,] it seems to me[,] between you and your friends on the other side is you want this clear statement [that the city has adopted the monument]. You want a statement—for example if you took Justice Scalia’s statement, that would satisfy you, and it would also be the poison pill in the Establishment Clause. Isn’t that what’s—I mean, that’s okay with me. I don’t see that as an illegitimate object. I was a Van Orden dissenter . . . . I. A Ghostly Dialogue A specter haunts Pleasant Grove City v. Summum—the specter of religion. Although both sides insistently litigated the case under the Free Speech Clause, the prospect of an Establishment Clause violation continually emerged during oral argument, slightly beyond the Supreme Court’s purview. The written statements that the Court ultimately produced conjured a similar ghostly apparition located just outside the boundaries of the holding. Whereas Justice Alito’s majority opinion simply determined that the display of the Ten Commandments monument constituted government speech, a circumstance that precluded the possibility of a free speech-based challenge, the concurring opinions of Justices Scalia (joined by Justice Thomas) and Souter again raised the Establishment Clause specter.

Summum and the Establishment Clause

Meyler, Bernadette | August 24, 2009

Property and Speech in Summum

Blocher, Joseph | August 16, 2009

City of Pleasant Grove v. Summum is, by its own reckoning, a case about government speech under the Free Speech Clause of the First Amendment. Even so, most commentary has justifiably focused on the decision’s implications for another part of the First Amendment: the Establishment Clause. This brief Article addresses yet another feature of Summum—what itdraws from, and says about, the relationship between speech rights and property ownership. This relationship is not only the driving force behind the majority’s opinion, but is also an important tool for understanding government speech in other cases involving government intrusion into speech markets, which often involve speech that is less physical than the monuments at issue in Summum. Part I of this Article discusses the intersection of property rights and government speech in Summum. Part II explores how that intersection illuminates three often-hidden characteristics of all speech: ownership, rivalry, and excludability. Focusing on these concepts may help explain the property-like characteristics of speech (even when it takes forms less physical than the monuments in Summum), and whether property ownership is itself a communicative act.

Property and Speech in Summum

Blocher, Joseph | August 16, 2009

Privatizing and Publicizing Speech

Tebbe, Nelson | August 9, 2009

When should we allow governments to deploy private-law rules in order to circumvent public-law obligations? Two cases this year call that question to mind. They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment. On the one hand, the Court recently handed down Pleasant Grove City v. Summum, which involved a Ten Commandments monument that a private religious organization donated to a city. The Court concluded that the permanent monument became government speech when the city accepted the gift, displayed it in a municipal park, and formally took ownership of the monument itself. The Justices therefore turned away a free speech challenge brought by Summum, a minority faith that wanted the city to display its monument—The Seven Aphorisms of Summum—alongside the Ten Commandments. Finding the existing monument constituted government speech allowed the Court to dismiss Summum’s claim that municipal officials selectively opened the parkland to only certain types of private sectarian speech in violation of the First Amendment. The Court reasoned that Pleasant Grove could exclude Summum’s monument because when the government itself speaks, it can select its message without giving equal airtime to other perspectives. (Of course government endorsement of the Ten Commandments raised obvious antiestablishment questions, which the Court did not consider because of the way the case was litigated, as I will explain.) You can think of the city’s decision to accept, display, and acquire the Ten Commandments monument as the opposite of privatization—it “publicized” a sectarian symbol, both in the sense that it formally took title to the display and in that it used public property to broadcast the message. On the other hand, consider Salazar v. Buono, which the Court will hear in the fall. It concerns a white cross that has long stood in the Mojave National Preserve. After a lower court ruled that the cross was an unconstitutional establishment, Congress intervened and conveyed the small parcel of land containing the cross to a private organization. Privatizing the speech was meant to quell antiestablishment concerns by disassociating the federal government from the sectarian message. Yet Congress retained ties to the land, including a property interest and certain regulatory power. The transaction’s highly structured nature left the federal government open to charges of ventriloquism—using a private party to convey what essentially remained a government message. Moreover, to the extent that Congress succeeded in privatizing the cross, it became vulnerable to just the sort of free speech objection that the government in Summum successfully evaded by publicizing the sectarian monument. In fact, another religious group—a Buddhist organization—initially sparked the controversy over the white cross when it wrote to the National Park Service and requested permission to display its monuments nearby. Although the Buddhists never brought legal action, it is not totally inconceivable to imagine them arguing today that once Congress has agreed to privatize one form of sectarian speech, it has a constitutional obligation to offer such deals to all private speakers on equal terms. As things turned out, however, only one constitutional issue is before the Court—the antiestablishment request to undo the privatizing transaction—and the government’s evasion of that claim is likely to succeed, at least in the short term.

Privatizing and Publicizing Speech

Tebbe, Nelson | August 9, 2009

Deference to Clients and Obedience to Law: The Ethics of the Torture Lawyers (A Response to Professor Hatfield)

Wendel, W. Bradley | August 2, 2009

In the early months of the Obama administration, we are learning a great deal more about the previous administration’s program of using “enhanced interrogation techniques” on alleged al-Qaeda detainees. On April 16, 2009, the new administration released to the public several memos, prepared by lawyers at the Office of Legal Counsel (“OLC”) in the administration of George W. Bush, dealing with certain legal aspects of whether detainees in U.S. custody could lawfully be subjected to torture. I and many others have criticized the quality of legal reasoning in previously disclosed memos, and it is now conventional wisdom that something went terribly wrong with the legal advising process in the previous administration, at least with respect to terrorism and national security issues. At the time of this writing, it remains uncertain whether an investigative report of the Justice Department’s Office of Professional Responsibility (“OPR”) will be released to Congress, and whether there will be a public version of the report. Not surprisingly, the OPR report is rumored to be highly critical of the conduct of the lawyers who prepared these documents. Professor Hatfield concludes, in my view correctly, that the legal analysis produced by the OLC in the Bush administration was intended not as a good-faith attempt to determine what the law requires, but to lay the groundwork for American personnel to later claim reliance on the advice of counsel if subjected to prosecution for human-rights violations. There are two strands to Professor Hatfield’s critique of the advising process. The first is positive, or empirical, and the second is normative. The positive claim is that OLC lawyers such as Jay Bybee and John Yoo lost sight of their moral compass because as lawyers they were professionally socialized into a kind of moral anesthesia. The normative claim is that the profession’s stance toward the immorality of client activities is passive instead of active, that it impermissibly commends a morality of deference to authority over the insistence on the moral responsibility for complicity in wrongdoing. I will have something to say about each of these points in turn, but my overall reaction is that Professor Hatfield’s proposed reform is much too strong. He would have lawyers act directly on the claims of their own consciences rather than on the requirements of law (including tort, contract, and agency law norms structuring the attorney-client relationship). This is surprising given his diagnosis of the reason for the bad lawyering in the OLC memos: I believe these lawyers began with the objective of justifying torture. They concluded that they were obligated to justify torture, and then they set out to do so. Whoever was ultimately responsible for requesting the Torture Memo apparently had such an objective, and the lawyers . . . accepted that position as a morally acceptable starting point. They made a bad moral conclusion, and I believe it drove them to make a bad legal argument. An appeal to conscience would therefore entrench the problem identified by Professor Hatfield. The last thing lawyers like Jay Bybee and John Yoo should be encouraged to do is to act on their sincere moral convictions in violation of the requirements of law.

Keeping the Government’s Religion Pure: Pleasant Grove City v. Summum

Lund, Christopher C. | July 26, 2009

In January, the Supreme Court decided Pleasant Grove City v. Summum. Summum, a religious organization, sought the right to put up a permanent monument of its Seven Aphorisms—its version of the Ten Commandments—in a local city park. At the time, the park had about fifteen other monuments, including a traditional Ten Commandments display. But this was a Free Speech case, not an Establishment Clause case. The plaintiffs were not trying to use the First Amendment to have the existing Ten Commandments display removed; they were instead trying to use the First Amendment to force the city into displaying their monument as well. Most people expected the plaintiffs to lose. And they did, clearly and unanimously. I publicly predicted that Summumwould lose on the day the Supreme Court granted certiorari, and suggested that it might be unanimous a few hours after oral argument. But I do not claim any special powers of foresight. My point is actually the opposite—anyone with experience in this area could recognize that the plaintiffs faced an uphill climb. They were asking for a sweeping change in the law, and it was no surprise that they did not get it. This Essay explains the decision in Summum, giving special focus to the religious dimensions of the case. Summum, again, was decided on Free Speech grounds. It was not an Establishment Clause case. But it nevertheless reveals much about the course that the Supreme Court is now charting with the Establishment Clause.

Professionalizing Moral Engagement (A Response to Michael Hatfield)

Vischer, Robert K. | June 22, 2009

In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.” In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows, some of the most scandalously deficient legal advice may stem (at least in part) from the lawyer’s inability or unwillingness to override his moral intuition. There is no reason to believe, however, that Yoo’s moral intuition would have led him to reject the conclusions set forth in the memos, and there is some evidence that his moral intuition helped shape his analysis. Seen in this light, the memos could be construed—in direct opposition to Hatfield’s characterization—as evidence that law schools need to redouble their efforts to train lawyers to override their moral intuition. But this reaction would miss the partial truth underlying Hatfield’s analysis. The torture memos do underscore a desensitizing that afflicts many lawyers, though its implications are broader—and perhaps less insurmountable—than Hatfield describes. Although he is undoubtedly correct that lawyers should “stop telling [one another] that overcoming personal moral squeamishness is the great call of the law,” the law’s call is a bit more nuanced: although lawyers should not ignore their own moral squeamishness, neither should they wallow in it. The lawyer’s cognizance of her own moral intuition should mark the beginning, not the end, of her inquiry into the moral dimension of the representation.

Imperfect Oaths, the Primed President, and an Abundance of Constitutional Caution

Peabody, Bruce | June 14, 2009

Presidential inaugurations frequently invite widespread civic celebration, the broad rhetoric of an incoming Chief Executive, and traditions stretching back for decades and even centuries. The inaugural ceremonies of January 20, 2009 offered all this and something more: a set of important constitutional puzzles radiating from Barack Obama’s imperfect recitation of his oath of office. At 12:04 p.m., Mr. Obama attempted to fulfill the Constitution’s requirement that each President take a prescribed thirty-five word oath “[b]efore he enter on the Execution of his Office . . . .” During the recitation, Chief Justice John Roberts (who was administering the oath) prompted Obama with both an incorrect word and several improper word sequences. At the end of their verbal exchange, Obama had uttered an inexact version of the presidential oath, including a pledge to execute “the office of President of the United States faithfully” rather than promising to “faithfully execute” that office. The errors in the oath-taking prompted immediate and widespread speculation and commentary: did problems with the administration and recitation of the presidential oath somehow render it invalid? If so, had Obama failed to become President, perhaps leaving us with some other Chief Executive, or even no President at all?

Professionalizing Moral Deference

Hatfield, Michael | June 1, 2009

As I write this Essay, legal memoranda about torture, once again, are headline news. This Essay considers these memoranda. However, this Essay does not address the legality of torture or the legal limits of interrogation or even if lawyers who provide bad advice on these issues should be punished. Instead, this Essay uses what has come to light about the “torture memoranda” to consider broader issues about the contemporary state of becoming and being an American lawyer. With new memoranda being released, for the sake of convenience, this Essay refers only to the best-known example (at least as things currently stand), which is the August 1, 2002 memo to Alberto Gonzales signed by Jay Bybee and prepared by John Yoo. Without substantive consideration of counterarguments, that memorandum concluded that torture was not illegal—at least not if the President ordered the torture. To many, it seems undeniable that the memorandum was not written in a good-faith effort to constrain any possibly illegal behavior, but rather as a shield against future prosecution.

Professionalizing Moral Deference

Hatfield, Michael | June 1, 2009

Lessons Learned from Forest Grove School District v. T.A.: How the Supreme Court Can Refine the Approach to Private School Tuition Reimbursement Under the IDEA

Baron, Courtney Rachel | May 24, 2009

On April 28, 2009, the Supreme Court heard oral argument in Forest Grove School District v. T.A., a case that addresses a deeply contested issue in special education litigation. Reviewing the Ninth Circuit’s decision in Forest Grove, the Court will decide whether the Individuals with Disabilities Education Act (IDEA) entitles parents to reimbursement for their child’s private school education if the child has never received special education services provided by a public school. Forest Grove represents the latest of many cases to perpetuate the circuit split on this issue. In fact, in 2007, the Supreme Court addressed the same question in Board of Education v. Tom F. Just two weeks before the Court heard argument in Tom F., however, Justice Kennedy recused himself, resulting in a 4-4, non-precedential decision affirming the Second Circuit’s grant of reimbursement to parents facing circumstances similar to those presented in Forest Grove. Currently, the Second, Ninth, and Eleventh Circuits recognize the availability of reimbursement, while in contrast, the First Circuithas refused to do so. Because of the growing divide between the circuits, many parents of children with disabilities face uncertainty about whether they will be reimbursed if they choose to enroll their children in private schools. The Supreme Court should end parents’ uncertainty by affirming the Ninth Circuit’s decision in Forest Grove and holding that parents who enroll their child in private school before that child has received publicly provided special education services are not precluded from tuition reimbursement under the IDEA. The language and intent of the IDEA and the balance of policy considerations support the Ninth Circuit’s decision. More importantly, the Court should capitalize on its opportunity to refine the judicial approach to private school reimbursement cases by adopting an analytical framework that encourages parents and schools to cooperate more closely.

The Synergy of Early Offers and Medical Explanations/Apologies

Robinette, Christopher J. | May 17, 2009

Medical malpractice law has been subjected to strong criticism by both medical and legal commentators. It has been challenged as inefficient, inaccurate, and even counterproductive. Although many reforms have been proposed, most tend to benefit one group—either physicians or patients—to the exclusion of the other. Professor Jeffrey O’Connell’s “early offers” proposal provides a reform of the system that is beneficial to plaintiffs, defendants, and society as a whole. Although some attention has been paid to combining early offers with explanations of the incident or with apologies, the idea has never received a focused analysis. Recent scholarship on explanations and apologies allows greater insight into the role they play in conflict resolution, and their importance to an early offers proposal in the field of medical malpractice. This Essay considers such scholarship and explores the advantages of combining early offers with explanations of the incident and/or apologies.