June 28, 2018
Professor Kristin Hickman’s article with Matthew Krueger ‘06, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235 (2007), was cited by United States Supreme Court Justice Gorsuch, joined by Chief Justice Roberts and Justice Alito, in a statement respecting the denial of certiorari in E. I. du Pont de Nemours & Co. v. Bobbi-Jo Smiley, No. 16-1189, decided June 28, 2018. In the statement, Justice Gorsuch noted and suggested the Court ought to resolve a circuit split, discussed by Hickman and Krueger in their article, regarding whether an agency can demand judicial deference for an interpretation of a statute advanced for the first time in litigation.
June 22, 2018
Professor Heidi Kitrosser was quoted in the Washington Examiner regarding calls to fire a U.S. Department of Justice paralegal who participated in an immigration protest at a restaurant. Regarding allegations that the employee might also have sent political tweets during the workday, Kitrosser referenced the 1987 case of Rankin v. McPherson, in which the U.S. Supreme Court held that a Texas constable’s clerk had a First Amendment right to engage in a personal, intra-office discussion in which she indicated support for assassinating President Reagan. Kitrosser explained, “If I were the [Justice Department] paralegal and I found myself in trouble over on-the-job tweets I’d likely start with that case.”
June 13, 2018
Professor JaneAnne Murray co-chaired the annual Bloomsday Celebration of the Irish American Bar Association at Federal Hall in New York City on Monday, June 11, 2018. The celebration, founded by Murray in 2008, celebrates James Joyce’s masterful novel, Ulysses, and his contribution to First Amendment jurisprudence in the United States. Its centerpiece is the John Quinn Memorial Lecture (named after John Qunn, the Irish American lawyer who defended Joyce’s publishers, Margaret Anderon and Jane Heap, pro bono, on criminal charges of obscenity; he lost). This year’s speaker was Caitlin Halligan, partner at Gibson Dunn & Crutcher and former Solicitor General of New York State. Her speech focused on the role the First Amendment can play in adapting the Fourth Amendment to searches and seizures in the digital age. She was introduced in verse by Manhattan District Attorney, Cyrus Vance. Since this was the 100th anniversary of Anderson’s and Heap’s serialization of Ulysses in their literary magazine, The Little Review, Murray and co-chair Janet Walsh role-played Anderson and Heap in their introduction to Mr. Vance. They handed him a brief (drafted by the Law School’s Clemency Project) asking him to refer their convictions to his Conviction Integrity Unit for further consideration.
June 12, 2018
Professor JaneAnne Murray, who runs the Law School’s Clemency Project, appeared on MPR News to discuss the issue of presidential pardons. Murray discussed the scope of this constitutional power, whether the president can pardon himself, and proposals to help a president exercise this power in a manner envisaged by the founders.
June 9, 2018
Professor Heidi Kitrosser was quoted in an article in The Columbus Dispatch (subscription required) about a U.S. Justice Department investigation into alleged classified information leaks by a former staffer on the U.S. Senate Intelligence Committee. The article cites Kitrosser’s view that President “Trump has continued an unfortunate precedent begun by [President] Obama in aggressively pursuing leakers.” The article also quotes Kitrosser to the effect that “The heads of agencies, presidents, people in power are like the rest of us—they don’t like to be criticized, don’t like to be questioned, don’t like their mistakes to be pointed out. … Generally they are not going to approve of employees sharing inconvenient information with the press. But sometimes that information is very much in the public interest, and there needs to be some level of protection of confidentiality for journalists in order to have relationships with sources.”
June 7, 2018
In Praxair Distribution, Inc. v. Mallinckrodt Hospital Products, Inc. (Fed. Cir. May 16, 2018), Judge Pauline Newman filed a concurring opinion quoting Professor Thomas Cotter’s 2007 article, “A Burkean Perspective on Patent Eligibility,” for its discussion of patent law’s “printed matter” doctrine. According to the article, “[B]eginning in the mid-nineteenth century, the USPTO and the courts began rejecting applications claiming purportedly novel types of business forms under the ‘printed matter’ doctrine. By most accounts, the doctrine was intended to preserve the boundary between patent and copyright law.”
June 5, 2018
Professor Heidi Kitrosser was quoted in an article in the Grand Forks Herald on the question of whether presidents have the constitutional power to issue pardons to themselves. The article cited her view that while the Constitution’s text does not explicitly reference self-pardons, such pardons run counter to principles evidenced throughout the Constitution’s text and structure, including the notion that the nation should be guided by “the rule of law rather than the whims and self-interests of individual men.” Overall, she explained that “the best argument—though, again, not one made explicit in the text—is that the President cannot legally pardon himself.”
Prof. Chan Discusses the Historical and Current Operation of U.S. Immigration and Customs Enforcement on MPR NewsJune 5, 2018
Professor Linus Chan joined MPR News to discuss how ICE has historically operated and what types of changes have been made since President Trump took office. Chan emphasized, among other things, a “change in [ICE’s] policy and discretion” and an effort “to inject fear … in order to create an extremely hostile environment.” Former acting head of U.S Immigration and Customs Enforcement, John Sandweg, also joined the discussion.
Prof. Meili Presents Research on the Constitutionalization of Asylum Law in Mexico at the Annual Congress of the Latin American Studies AssociationJune 4, 2018
Professor Stephen Meili presented a paper at the annual Congress of the Latin American Studies Association in Barcelona on the constitutionalization of asylum law in Mexico and its impact on refugees from Central America who are apprehended by Mexican authorities on their way to the United States. The paper was part of a panel on the constitutionalization of human rights law in Latin America that Prof. Meili organized and chaired at the Congress. Prof. Meili’s research on this subject includes an analysis of strategic litigation by refugee lawyers in Mexico who are utilizing recently adopted human rights provisions in the Mexican Constitution (including the right to asylum) to compel courts to take a constitutional approach to asylum law, which affords greater protections to refugees than those permitted under the 1951 Convention Relating to the Status of Refugees. This topic is of particular importance in the current political environment, as Mexico has experienced a spike in asylum applications as a result of increased apprehensions of Central American refugees in Mexico, as well as the migration of many Venezuelan refugees to Mexico.
May 31, 2018
A report to the Office of the United Nations High Commissioner for Human Rights—authored by Professor Fionnuala Ní Aoláin, United Nations Special Rapporteur for the Protection and Promotion of Human Rights while Countering Terrorism—that analyzes the state of French anti-terrorism laws and how they might affect foundational human rights principles was featured in an article in Le Monde. “There is no doubt that the state may lawfully engage in restrictions to protect public order, but a clear tipping point to exceptionality arises when counter-terrorism measures engage profound, sustained and potentially disproportionate effects on the enjoyment of fundamental human rights and civil liberties,” wrote Ní Aoláin.