Last July, the Ninth Circuit in Latif v. Holder held that the district courts have original jurisdiction over claims that the government failed to afford U.S. citizens and legal residents an adequate opportunity to contest their inclusion on the No-Fly list. The court noted that its decision was another step [...]
With this year’s big affirmative action case, Fisher v. University of Texas, being one of the highlights of the Supreme Court’s current term, it is worth circling back to CRCL’s previous treatment of the issue and reflecting on the moment in the 1990s when Hopwood killed UT’s earlier attempt to use affirmative action to remedy a history of segregation. What can these articles tell us about the issues at stake in Fisher? There seem to be two general lessons.
In the wake of Gonzaga Univ. v. Doe, in which the Supreme Court entrenched a tight-fisted test for whether Congress has guaranteed a statutory right to individuals, the lower courts have felt out the bounds of a new doctrine piecemeal. Recently, in Shakhnes v. Berlin, the Second Circuit held that at least in some cases where Congress confers a right with bounds set by flexible standards – as opposed to hard and fast rules – and a regulation subsequently “defines or fleshes out that right” by imposing a rigid rule, the statute provides the “source” of a right but the regulation ultimately defines the limits of what is enforceable under § 1983. The court ignored persuasive reasoning that would have provided a conceptually sounder basis for deciding the narrow issue at bar, but in so doing mitigated the unduly harsh consequences of the narrower conception of rights that would follow from such reasoning in the wake of Gonzaga.
Matt and Noah are joined by CRCL Online Content Editor Nitzan Weizmann to highlight the problem of pregnancy discrimination. Noah and Matt also take a look at a recent Second Circuit opinion striking down part of the Defense of Marriage Act.
With Matt in the hosting chair this week, CR-CL’s Executive Editors for Online Content, Noah Kaplan and Matt Giffin take a close look at this week’s oral arguments in Fisher v. University of Texas and at the pace and process of President’s Obama’s judicial nominations. The show begins with our weekly news round-up, This Week in Civil Rights and Civil Liberties.
Reviving the trespassory model of the Fourth Amendment, the Court in U.S. v. Jones has raised more questions about data privacy than it answered. If the mere existence and transmission of data can signal a lack of a reasonable expectation of privacy, the only way to demonstrate a subjective interest in privacy will be to go off the grid. There has to be a better way.
Many on the political and legal left—including, perhaps most prominently, Glenn Greenwald—have routinely expressed their staunch disapproval of the Obama Administration’s handling of civil liberties in the realm of national security. Their bill of particulars is lengthy and spans his entire presidency; a small but notorious sampling of these charges [...]
This summer, the Supreme Court quickly dispensed with a campaign finance law from Montana in American Tradition Partnership, even though the state argued that there was, indeed, a history of corruption that gave the state a compelling interest in limiting independent campaign expenditures. This decision did not speak explicitly about judicial elections, but a more recent decision of the 9th Circuit has invoked Citizens United to weigh in on a different speech issue concerning judicial elections, making the relationship between money, speech, law, and politics deliciously convoluted.
Noah and Matt give their brief reactions to United States v. Alvarez, Miller v. Alabama, Arizona v. United States, and NFIB v. Sebelius. Noah and Matt take a look at Mitt Romney’s recently leaked closed-door comments. The discussion turns to the recent protests and violence in the Middle East over the YouTube video negatively depicting Islam.
Rather than condemning the profligacy of the State in providing basic human rights for its most marginalized, we must continue to demand positive rights for all. Demanding humane treatment of inmates is substantively necessary, but can also be strategically valuable because it is one of the few spaces in our jurisprudence that recognizes the language of positive human rights.
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