Day: January 26, 2017

USA Today Profiles FantasySCOTUS Prediction Market. We predicted Kagan. Will it be Gorsuch?

Since the beginning of December, Judge Gorsuch has been firmly perched atop the short-list on the FantasyJustice prediction market from LexPredict. I recently spoke with Dick Wolf at USA Today, who profiled our market.

WASHINGTON — Before the last time a Supreme Court seat was filled, court watchers and legal beavers who ventured on to the “FantasySCOTUS” website correctly predicted it would be Elena Kagan.

If the survey proves prescient again, Colorado’s Neil Gorsuch could be President Trump’s guy.

Gorsuch, 49, who sits on the U.S. Court of Appeals for the 10th Circuit, has led a field of 22 potential nominees listed on the site since shortly after Trump’s election. At last count, he had 649 votes to 512 for Alabama’s more controversial William Pryor, the early favorite among both conservatives and cognoscenti.

The Supreme Court nerds who frequent FantasySCOTUS aren’t as impressed with the other two judges said to be among Trump’s finalists. Michigan’s Raymond Kethledge is in 8th place with 160 votes; Pennsylvania’s Thomas Hardiman is 10th with 91.

“I was shocked that Judge Gorsuch shot up so quickly at the outset,” says Josh Blackman, a South Texas College of Law professor who founded the online prediction market in 2009. “I think this is one case where the ‘wisdom of the crowds’ actually identified the leading candidate long before everyone else.”

FantasySCOTUS allows attorneys, law students and others to predict how justices will vote on cases pending before the high court, with winners and prizes announced at the end of each term. The chance to guess who will fill a vacancy has only come around once since the site was created.

That was in 2010, when President Obama chose Kagan, then the U.S. solicitor general and a former Harvard Law School dean, to replace the retiring Justice John Paul Stevens. Voters on the site were way ahead of Obama, predicting early that Kagan would outpace other potential nominees — including federal appeals court Judge Merrick Garland, who got the nod after Justice Antonin Scalia’s death last year but was blocked by Senate Republicans.

“These are not random people on the street,” Blackman, 32, says of the thousands who participate on FantasySCOTUS. “They’re people who follow this closely.”

That doesn’t mean the voting is completely reliable. Some participants tried to game the system by voting multiple times, until a filter was used to prevent more than one vote per IP address. “They have an interest in their guy winning,” Blackman says.

Trump’s favorites are thought to be federal appeals court judges — including, at least until recently, Wisconsin’s Diane Sykes, who is fifth in FantasySCOTUS voting. But ahead of her is Minnesota Supreme Court Justice David Stras, a 42-year-old long shot, with more than 400 votes. And Sen. Ted Cruz is a credible seventh with 170 votes — despite not being on Trump’s list at all.

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Larry Tribe Calls My Emoluments Clause Analysis A “Linguistic Sleight of Hand”

On Tuesday, one of my students asked me about the recently-filed Emoluments Clause challenge. I explained that in my opinion, the plaintiff suffered no injury, and thus had no standing. The student asked in response how Professors Tribe and Chemerinsky could possibly join a case with no merit. I paused for a moment, and replied that they’ve both supported cases in the past that were unsuccessful. That answer satisfied the student, but it left another though on my mind. When legal giants like Tribe or Chemerinsky–the people who write your ConLaw book–join a complaint, it provides the case with a gravitas that (with all due respect to the rising SCOTUS star) Deepak Gupta lacks. Indeed, this is the sort of academic responsibility that is utterly lacking when hundreds of law professors sign a letter opposing the Attorney General nominee that they had no role in drafting.

With that background, I link to an article by Kimberly Robinson, which reports on an American Constitution Society’s conference call about the case with Larry Tribe, and his co-author Joshua Matz. During the call, Tribe took exception to my argument that under Baker v. Carr, the case presented a non-justiciable political question.

Earlier this week, I wrote:

Putting aside the question of standing, a serious justiciability hurdle is whether this is a political question. (No court has ever addressed this Clause). The foreign emoluments clause specifically references Congress:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Under Baker v. Carr (if those factors even matter any more), there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department.”

It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

There is every reason for the courts to stay away from this issue.

Robinson reported:

Therefore, the emoluments question is one committed to Congress alone, Blackman suggests.

That argument is just “linguistic sleight of hand,” Tribe said.

The clause allows Congress to consent to the emolument, but says nothing about whether the clause itself has been violated, Tribe said.

Yet, Tribe backs off the argument:

He acknowledged that a few decades ago, Blackman might have been correct that the political question doctrine would bar the suit.

But the doctrine has been “profoundly transformed,” Tribe said.

He pointed to the Supreme Court decision in Zivotofsky v. Clinton, 566 U.S. 189 (2016) [Sic – should be 2012]

Justice Kennedy’s opinion in Zivotofsky v. Clinton (not to be confused with the repeater Zivotofsky v. Kerry) does indeed discuss Baker v. Carr, but it is unhelpful to CREW. The 2012 case concerned whether the Court could consider the constitutionality of a statute that required the Secretary of State to amend passports for those born in Jerusalem to state that their place of birth was Israel. In Zivotofsky v. Clinton, the Court held the case was justiciable, notwithstanding Baker. Justice Kennedy explains:

The Secretary contends that “there is `a textually demonstrable constitutional commitment'” to the President of the sole power to recognize foreign sovereigns and, as a corollary, to determine whether an American born in Jerusalem may choose to have Israel listed as his place of birth on his passport. Nixon, 506 U.S., at 228, 113 S.Ct. 732 (quoting Baker, 369 U.S., at 217, 82 S.Ct. 691); see Brief for Respondent 49-50. Perhaps. But there is, of course, no exclusive commitment to the Executive of the power to determine the constitutionality of a statute. The Judicial Branch appropriately exercises that authority, including in a case such as this, where the question is whether Congress or the Executive is “aggrandizing its power at the expense of another branch.”

In other words, the question at issue here was whether the Court had the power to determine the constitutionality of the passport law, notwithstanding the Constitution’s “textual” commitment to the President over recognition. (As the Chief Justice ably pointed out in Kerry, this textual commitment is indeed somewhat lacking–hence the “Perhaps” rejoinder). Thus, in the context of the separation of powers, the Court is able to determine if the Executive is “aggrandizing its power at the expense of another branch.” Furthermore, with respect to the Baker v. Carr factors, this case had a “judicially discoverable and manageable standards for resolving” the dispute–namely, order the Secretary of State to modify Zivotofsky’s passport.

Justice Sotomayor elaborated on this point in her concurring opinion:

To decide that question, a court must determine whether the statute is constitutional, and 1435*1435therefore mandates the Secretary of State to issue petitioner’s desired passport, or unconstitutional, in which case his suit is at an end. Resolution of that issue is not one “textually committed” to another branch; to the contrary, it is committed to this one. In no fashion does the question require a court to review the wisdom of the President’s policy toward Jerusalem or any other decision committed to the discretion of a coordinate department.

The CREW case presents very different concerns. The Court would not be exercising a familiar function–is a statute contrary to the separation of powers–but instead determining (for the first time ever!) how the President can manage his business affairs. More to the point, because the Constitution specifically states that Congress can resolve this issue, under Baker (a case whose factors I noted are nebulous at best), the Court should take a signal to stay out.

Justice Sotomayor’s opinion is also helpful here:

When a case would require a court to decide an issue whose resolution is textually committed to a coordinate political department, as envisioned by Baker‘s first factor, abstention is warranted because the court lacks authority to resolve that issue. See, e.g., Nixon v. United States,506 U.S. 224, 229, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (holding nonjusticiable the Senate’s impeachment procedures in light of Article I’s commitment to the Senate of the “`sole Power to try all Impeachments'”); see also Marbury v. Madison, 1 Cranch 137, 165-166, 2 L.Ed. 60 (1803) (“By the constitution of the United States, the president 1432*1432 is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience”). In such cases, the Constitution itself requires that another branch resolve the question presented.

I freely concede that we do not have here a commitment as clear as the impeachment power, which has the word “sole.” There is no doubt whatsoever that courts have no role to play in the impeachment process. But Baker does not require such an express delegation. Rather it only asks for a “textually demonstrable constitutional commitment.” The text of the emolument clause demonstrates that Congress has a commitment to resolve these issues.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Going back to Tribe’s point about a shift in the caselaw, there is another doctrine that has been  “profoundly transformed” Standing. Since Havens Realty was decided, the Court has issued decisions in Clapper and Spokeo that are entirely incompatible with Justice Brennan’s 1982 opinion. For reasons I discuss here, that is a primary obstacle from CREW. I heard from several reporters (one who was texting me during the call) that Tribe rebutted my post contending that CREW’s injury was self-inflicted. Tribe’s response was that there is Second Circuit precedent to the contrary. (Mike Dorf made a similar argument). I will address those arguments, probably next week (a lot to catch up on ).

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ConLaw Class 5 – The Executive Power II – Foreign Affairs and War

Class 5 – 1/26/17

The Executive Power II- Foreign Affairs and War

  • Dames & Moore v. Regan (554 – 558)
  • Hirabayashi v. United States (558 – 567)
  • Korematsu v. United States (568 – 576)
  • Ex Part Endo (577 – 581)
  • ISIS (Reading to be posted)

The lecture notes are here.

The lecture notes are here.

The Executive Power II- Foreign Affairs and War

  • Inherent Executive Powers (308).
  • Executive Powers for Foreign Affairs (383-385).
  • Curtiss-Wright (385-390).
  • Dames & Moore v. Regan (392-399).
  • The War Power (411-413).
  • ISIS
  • Practice and Precedent (415-416).
  • Prisoners of War and Civilian Detention (439-440).
  • Korematsu v. United States (454-468)

Dames & Moore v. Regan

This is Donald T. Regan, who was the secretary of the treasury in Dames & Moore v. Regan.


This is the logo for the Dames & Moore Group Company.

Dames-MooreJustice Rehnquist wrote Dames & Moore v. Regan in a short span of 8 days. There are several remarkable aspects of this opinion. First, Rehnquist cites as the definitive statement of executive power Justice Jackson’s concurring opinion Youngstown Sheet & Tube Co. v. Sawyer.

robert-jacksonOf course, Rehnquist clerked for Jackson that term. As Judge Bybee noted in this article:

Rehnquist’s first professional brush with the separation of powers came soon after the start of his legal career as a junior law clerk to Justice Robert Jackson. It was an auspicious start. Rehnquist began his clerkship in February 1952, just months prior to the famous Youngstown separation of powers litigation at the Supreme Court . . . . On May 16, 1952, the Court voted 6-3 in conference to reject Truman’s claim of authority to seize the steel mills.15 As Justice Jackson described the vote to his then-law clerks William Rehnquist and C. George Niebank, Jr., “Well boys, the President got licked.’

Yet, Youngstown was written by Jackson himself, with little involvement by his clerks. In fact Rehnquist and his co-clerks suggested resolving the case on non-separation of powers grounds.

To begin, Jackson’s law clerks had very little hand in drafting his opinions generally and little role in preparing the Youngstown concurrence specifically. 30 Thus, the Youngstown concurrence represented Jackson’s, not Rehnquist’s, work product. In fact, archival materials indicate law clerk Rehnquist suggested alternate non-separation of powers grounds on which Youngstown might have been resolved. In an apparently unsolicited memorandum to Justice Jackson, William Rehnquist and his co-clerk proposed they undertake additional research for Youngstown. Interestingly, all the issues proposed non-separation of powers grounds for resolving the appeal–e.g., by balancing equities on the preliminary injunction, etc.31 To be sure, the 1952 clerk memorandum, standing by itself, would be a thin reed to support a claim that Rehnquist had doubts about resolving the separation of powers question in Youngstown against the President. It might merely suggest Rehnquist favored the parsimonious adjudication of constitutional cases by resort to avoidance. The memorandum, however, does not stand by itself. In his book The Supreme Court, Rehnquist, without mentioning his prior memorandum, expressed doubts about how Youngstown was resolved. Noting that the separation of powers issue was not well settled, but in his view “more or less up for grabs,” he believed Youngstown might have been resolved on the balancing of equities and that the law on those issues favored the executive.32

When pressed to write Dames & Moore v. Regan in a short span of 8 days, Rehnquist elevated Jackson’s concurrence to the effect holding of the case (and modified it along the way). And guess who was clerking for Justice Rehnquist in 1981 when Dames & Moore was decided.


A young pup names John G. Roberts (first from the right), who would go on to replace his boss as the Chief Justice of the United States.

On the last day of the term in 1981, for instance, Justice Rehnquist wrote for a unanimous court to say that Presidents Carter and Reagan had the legal authority to nullify court orders and suspend private lawsuits as part of the agreement with Iran that ended the hostage crisis there. The decision, Dames & Moore v. Regan, took an exceptionally deferential view of executive power.

Judge Roberts cited the decision last year in an opinion accepting the Bush administration’s position that it could block claims against Iraq from American soldiers who had been tortured there during the Persian Gulf war.

Korematsu v. United States

This is a young Fred Korematsu.


This is Fred Korematsu later in life.


This is an announcement the United States Government posted, ordering “all persons of Japanese ancestry” to be rounded up.


It says:

Pursuant to the provisions of Civilian Exclusion Order No. 33, this Headquarters, dated May 3, 1942, all per- sons of Japanese ancestry, both alien and non-alien, will be evacuated from the above area by 12 o’clock noon, P. W . T., Saturday, May 9, 1942.

No Japanese person living in the above area will be permitted to change residence after 12 o’clock noon, P.W.T., Sunday, May 3, 1942, without obtaining special permission from the representative of the Commanding General

The Civil Control Station is equipped to assist the Japanese Population affected by this evacuation in the following ways:

  1. Give advice and instructions on the evacuation.
  2. Provide services with respect to the management, leasing, sale, storage or other disposition of most kinds of

property, such as real estate, business and professional equipment, household goods, boats, automobiles and livestock.

  1. Provide temporary residence elsewhere for all Japanese in family groups.
  2. Transport persons and a limited amount of clothing and equipment to their new residence.


Here is a piece of U.S. Government propaganda explaining the “relocation” and do the “job as a democracy should. With consideration.”

Fast-forward to 12:30 when the narrator says there are no constitutional problems with the internment.

Here is a map of the “relocation centers” and camps.

Map_of_World_War_II_Japanese_American_internment_campsThe San Francisco Examiner announces the “Ouster of all Japs in California near.”


To give you a sense of the propaganda, here is a cartoon drawn by Dr. Seuss (Theodor Giesel):

‘This is a so-called “temporary camp” or “assembly center” that were set up in public places, like fairgrounds, before the Japanese-Americans could be transported to the “Detention centers” dubbed “Relocation Centers.”


This is the Topaz Internment Center in Utah, where Fred Korematsu was sent.


Here are Americans locked up in internment camps.


Another photographed of interned Americans.


Here are Americans being rounded up on busses to the middle of the Utah desert.


Here is Eleanor Roosevelt at an internment camp.


This great picture contains a meeting of Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi, who also had companion cases before the Supreme Court.


And here is Fred Korematsu posing with Rosa Parks.


In 1990, Korematsu received a redress letter and a reparations check for his internment.

Korematsu-Fred Korematsu with redress & reparations letter and check 1990

President Clinton would Korematsu the Presidential Medal of Freedom in 1998.


Korematsu passed away in 2005.


The lead plaintiff in a related case was Gordon Hirabayashi. In Hirabayashi, the Court upheld curfews directed towards Japanese Americans because the nation was at war with Japan.


And this is Mutsuye Endo.



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Prop 1 Class 5 – Property in Yourself

Class 5 – 1/26/17

Property in Yourself

  • Property in Persona, 83-84
  • White v. Samsung Electronics America. 84-90. Note the panel opinion is from pp. 84-87. The final full paragraph of p. 87 begins a dissent from denial of rehearing en banc (“dissental“) by Judge Kozinski.
  • Notes, 90-91

Property in your Body

  • Moore v. Regents of the University of California, 91-102
  • Notes, 102-104 (skip Note 4)

Today we will discuss how you can own property in yourself.

The lecture notes are here.

Here is a recent article about the rights of publicity of college football players.

First, we’ll do the case of Vanna White v. Samsung Electronic America.

vanna v. samsung

The dissental was authored by Judge Kozinski, a colorable character on the 9th Circuit.


Here is the image of robot Vanna White. Alas neither of these predictions of the year 2012 came true (well played, Mayans).


Samsung had a series of ads displaying their products in the 21s century.


To learn more about property rights in cell lines, I highly commend you read The Immortal Life of Henrietta Lacks. This article in Salon discusses it.

In 2013, the National Institute of Health reached an agreement to honor Lacks’s memory:

On Tuesday, the National Institute of Health announced it was, at long last, making good with Lacks’ family. Under a new agreement, Lack’s genome data will be accessible only to those who apply for and are granted permission. And two representatives of the Lacks family will serve on the NIH group responsible for reviewing biomedical researchers’ applications for controlled access to HeLa cells. Additionally, any researcher who uses that data will be asked to include an acknowledgement to the Lacks family in their publications.

The new understanding between the NIH and the Lacks family does not include any financial compensation for the family. The Lacks family hasn’t, and won’t, see a dime of the profits that came from the findings generated by HeLa cells. But this is a moral and ethical victory for a family long excluded from any acknowledgment and involvement in genetic research their matriarch made possible.

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