On the Slippery Slope to Gay Marital Bliss

On Friday, November 6, Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern, visited William & Mary School of Law and gave a talk on gay marriage. His speech was presented by the Institute of Bill of Rights Law and the American Constitution Society.

Koppelman stated that the gay marriage movement is one of the mot successful such movements in U.S. history; ten years ago, no gays could marry; in 1999, Vermont was the first state to allow it, and at present there are nine states, representing almost 25% of the United States by population, that give same-sex couple all the rights of married couples (though only four states actually use the term ‘marriage’). There is a clear trend towards continued acceptance of gay marriage: 58% of 18-34 year olds support it, whereas only 24% of those over 65 do.

Much of Koppelman’s talk focused on presenting a response to the work of the so-called  ‘new natural law’ theorists, such as Robert George, John Finnis, and Patrick Lee. These thinkers have attempted to sketch out what makes the relationships of heterosexual couples intrinsically more valuable than those of homosexuals, even when the former couple is unable to conceive a child.

According to Koppelman, one of the approaches taken by these theorists includes the argument that heterosexual sex involves some ‘two in one-ness,’ or a biological unity, that gay sex doesn’t. According to this argument, each human is an incomplete, potential part of a mated pair that becomes one during the sex act.


Published in: on November 9, 2009 at 11:17 pm Comments Off on On the Slippery Slope to Gay Marital Bliss

Suing Google: Don’t Judge an E-book by its Publisher

The W&M chapter of ACS recently co-sponsored an event with the Student Intellectual Property Society with attorney Joanne Zack, a founder of Boni & Zack LLC, who was plaintiff’s counsel in the recently settled Authors Guild v. Google (PDF). The case involved a lawsuit against Google Books for making a searchable database of books which the Authors Guild claimed was massive copyright infringement.

Zack started out the talk with a very succinct overview of copyright law in the U.S., which was sorely needed for many of the copyright greenhorns (like myself) present in the audience. To summarize, Art. I §8 contains the copyright clause which empowers congress to “secur[e] for limited times to authors and inventors the exclusive right to their respective writings and discoveries” With this grant of authority, congress has passed Title 17 of the U.S. Code, which deals exclusively with copyright, and more importantly in the Google Books case, fair use doctrine, which is covered in 17 U.S.C. §107. §107 makes clear that uses for “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” are not an infringement of copyright depending on the outcome of a balancing test using the so-called “fair use factors”:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;


Published in: on April 6, 2009 at 4:53 pm Comments Off on Suing Google: Don’t Judge an E-book by its Publisher

WM ACS Goes to D.C. – “Dude, it was awesome.”

On Friday, William & Mary ACS traveled to D.C. for a visit to the Supreme Court, and meetings with two lawyers working in very different jobs on House committees.

The travel to D.C. was nice, and incredibly fuel-efficient for those of us in Mark’s 50.4 MPG Prius.  I had no idea the Prius had that kind of fuel-efficiency game.  It was mighty impressive.


Once we arrived in D.C., we walked from Union Station, where we all parked, to the Supreme Court.  We just missed the Supreme Court tour, so we were treated to a summary of the lecture by Mr. Mark Pike.  Then, we traveled down to the Supreme Court museum on the lower level to look at some of the models of the court, and paintings of famous former Justices.  Then came the highlight of the Supreme Court portion of our trip.  The Supreme Court cafeteria.  I ordered the Chicken Parmesan sub and french fries.  I was expecting really greasy, fried food, but I was pleasantly surprised that the chicken was grilled and the french fries appeared to be freshly made and not nearly as greasy as I would have expected.  Fellow ACS’ers who made the trip, feel free to share your food experiences at the Court in the comments.

Upon leaving SCOTUS, we walked over to the Rayburn House Office Building, and on the way, we were given an impromptu walking tour of the city by Masha.  We arrived at the Rayburn building and after going through the metal detectors and security check, natch, we entered the House Judiciary Committee Office.  We were then shown the House Judiciary Committee’s hearing roomr by Ted Kalo, the General Counsel for the House Judiciary Committee.  After seeing the hearing room, Mr. Kalo took us in for a meeting in the same room that Billy Corgan of the Smashing Pumpkins had been in just two weeks prior. Mr. Corgan had been on the Hill testifying in support of a bill Rep. John Conyers, Mr. Kalo’s boss, had introduced to provide artists more money for the use of their copyrighted material on terrestrial radio.  Mr. Kalo is a huge Smashing Pumpkins fan, and unfortunately, was out with a sinus infection when Mr. Corgan was in the office, but he managed to get an autograph and a faux picture taken with him (Mr. Corgan held a picture of Mr. Kalo up and had his picture taken in the office).


Published in: on March 31, 2009 at 9:13 am Comments Off on WM ACS Goes to D.C. – “Dude, it was awesome.”

Student Chapter of the Week

When our chapter established goals for the academic year, we aimed high.

In addition to planning countless compelling events on campus, generating hundreds of original blog posts on this website, and maintaining a strong progressive presence at William & Mary– we also sought to be recognized as an American Constitution Society “Chapter of the Week”.

Well, we did it!

Check us out, currently featured on their site with this glowing praise: (more…)

Published in: on February 23, 2009 at 12:21 pm Comments Off on Student Chapter of the Week

ACS National Student Writing Competition

Would you like $3,000? How bout $1,000? A certificate of appreciation?

If you answered in the affirmative to any of the above questions, I would highly encourage entering the American Constitution Society’s fifth annual National Student Writing Competition

The top three papers will earn special recognition at the conference this summer. The winner will take home a cool $3,000 and each of the runner-ups will take home $1,000. Think of it as a personal economic stimulus package.

The American Constitution Society welcomes all papers furthering and promoting a progressive vision of the Constitution, law, and public policy. Entrants are encouraged to view this topic broadly, and we welcome submissions on a variety of substantive areas. Examples of possible topics include:

  • access to the courts
  • civil liberties
  • consumer rights
  • criminal justice
  • disability rights
  • freedom of speech
  • GLBT rights
  • human rights
  • immigration
  • labor law
  • voting and the political process
  • privacy
  • protection of health, safety, and the environment
  • racial equality
  • religion
  • separation of powers and federalism
  • women’s reproductive rights and reproductive freedom


Published in: on February 11, 2009 at 12:05 am Comments Off on ACS National Student Writing Competition

The Role of Gender in the 2008 Presidential Election

On Monday, November 17th, the William and Mary chapter of the American Constitution Society hosted Dr. Karen Beckwith, a prominent political scientist from Case Western Reserve University, for a discussion of the role of gender in determining the outcome of the 2008 presidential election.  Although data are only just becoming available, Dr. Beckwith presented nationwide exit polling that indicates that women played a substantial and perhaps unprecedented role in choosing our 44th president.

Role of Women in the Election

Women make up a majority of the national population, a majority of the electorate, and turn out to vote at a higher rate than men.  Interestingly, however, women (and men) did not identify manifest womens’ issues (like legal abortion) as important issues during the 2008 election.  Instead, Beckwith said, “latent women’s issues, defined as those traditionally or stereotypically associated with women,” dominated women’s vote choice.  Latent women’s issues include support for education, general concern for healthcare, programs for children, social welfare policy support, and a preference for peace and a reluctance to support military intervention.  In the 2008 presidential election, exit polling identified the top issues of concern to voters as the economy, jobs, employment and housing, healthcare, education, and the war in Iraq – all latent women’s issues.  These issues are “not necessarily issues which women support in every campaign, nor are they issues on which all women agree,” said Beckwith, but “in some campaigns for some candidates, latent women’s issues become central campaign issues” that candidates disregard at their peril.  In the 2008 election, latent women’s issues, Democratic Party issues, and women’s voting preferences “further gendered the electoral context” and “reflected the gendered nature of party competition” in the United States.


Published in: on November 19, 2008 at 10:37 am Comments Off on The Role of Gender in the 2008 Presidential Election

Brian Siebel Discusses Implications of D.C. v. Heller

On October 7, Brian Siebel, a 12-year veteran attorney at the Brady Center, spoke to the ACS about the implications of the recent U.S. Supreme Court decision in D.C. v. Heller.  In Heller, the Court ruled 5-4 that handguns may be legally kept inside the home for purposes of self-defense, striking down what it found to be an overbroad D.C. statute that prohibited handgun ownership regardless of purpose.  By interpreting the Second Amendment in this fashion, the Court established a clear, constitutional right to handgun ownership; the ruling indicates that in D.C., it still will be illegal to carry handguns outside the home, and all pistols must be registered with police.

With that framework in mind, Mr. Siebel discussed what the Heller decision will mean to gun ownership, gun regulation, and concealed carry laws.  Siebel characterized the ruling as a narrow one, drawing attention to the numerous uses of the phrase “handguns for self defense in the home.”  According to the text of the decision, all gun laws, other than those banning hand guns kept in the home for self defense, are “presumptively lawful.”  In other words, the Court makes no ruling on the validity of regulations pertaining to dangerous or unusual guns, guns at sensitive locations (e.g. schools, government buildings, etc.), or guns used for hunting.  In fact, said Siebel, the Court seems to assert that these regulations are entirely lawful, and that the thrust of their ruling goes to the necessity of defending oneself at home, rather than to the ownership of any gun for any purpose.

So what does this mean for the future of gun control legislation and litigation?  According to Siebel, the ruling effectively nullifies the gun lobby’s “slippery slope” argument – after Heller, any gun legislation that prohibits handgun ownership for law-abiding citizens must be deemed unconstitutional.  This, Siebel hopes, will direct Second Amendment dialogue to more practical matters, preventing gun violence, preventing felons and the mentally ill from circumventing background checks, and preventing illegal gun ownership through the establishment of universal background check standards.

“Prevention works,” he said: 1.6 million people have been denied a gun based on background checks under the Brady Law since 1993, and deaths from gun violence have plateaued.  This progress, however, is being thwarted by public reactions to the tragic shootings at Virginia Tech and on other college campuses around the country.  Rather than seeking to crack down on gun ownership in the aftermath of the shootings, 17 states – including Virginia – have introduced legislation to allow guns on campus; eight states have introduced guns in the workplace legislation.  A vast majority of the latter measures have failed, and all of the former have failed.

The reason for their failure, Siebel says, is a practical one.  The Virginia Tech shooter, for example, was adjudicated mentally defective long before he attempted to purchase the guns he used in his attack.  However, prior to the attack, only 10% of mentally ill gun buyers were successfully screened by the background check system because its reporting standards varied so greatly from state to state.  If the background check system operated as it should have, he would not have been able to obtain a gun.  In the wake of the tragedy, the Brady Center worked in conjunction with NRA to make sure that mental health adjudication records were made available to state agencies who conduct background checks, in order to prevent the recurrence of such an event. (more…)

Published in: on October 8, 2008 at 7:38 am Comments Off on Brian Siebel Discusses Implications of D.C. v. Heller

The Presidential Election and the Subsequent Shaping of the Supreme Court

On Friday September 26th, following the moot court trial of FCC v. Fox Television Stations that Mark wrote about here and for the Marshall-Wythe Press, there was a panel discussion regarding the 2008 Presidential contest between Senators Barack Obama and John McCain and how the election’s outcome would affect the Supreme Court.  The panelists were Walter Dellinger, John McGinnis, David G. Savage, Miguel Estrada, and Ted Shaw.

The panelists began the discussion by speaking in very general terms about the possibilities for either an Obama or McCain administration to shape the court.  Mr. McGinnis brought up a number of statistics to make his points.   He noted that the justices that would be considered ideologically liberal were much older than their conservative counterparts, on average.  He said, then, that under either administration there would more likely be seats vacated by the more liberal justices by “involuntary departures,” as he put it.  This would undeniably be to Senator McCain’s advantage should he be elected.  Mr.McGinnis further noted that Senator Obama would likely have a much easier time getting his nominees through the Senate, because it is estimated by the current polling available that the Democrats will have anywhere from 55 to 58 Senate seats after the 2008 election.  Further adding to Senator Obama’s advantage, according to Mr. McGinnis, is the speculation that one or two of the more ideologically liberal justices would like to retire, but would opt not to under a McCain administration.

The panelists also discussed the candidates’ favorite justices.  Senator Obama has cited Justices Breyer, Ginsburg, and Souter as “sensible”, whereas John McCain has cited Justices Roberts and Alito as his favorite justices.  Later in the discussion, Mr. Shaw engaged Mr. Estrada in a debate on the partisan nature of judicial nominations by saying “I want you to come back at me on this.”  Mr. Estrada had earlier argued that the contrasts between the Justices that Senators Obama and McCain would place on the bench would not be as stark as was being claimed by several of the panelists.  He decried the portrayal of the nominations in such an ideological, partisan manner because he believes it greatly damages the court’s reputation and reduces the logical, but divergent conclusions that the justices reach to simplistic partisanship.  In response, Mr. Shaw had said that he thought Mr. Estrada’s claims that judicial nominations aren’t a “my team against your team thing” were not really true.  He seemed to imply that because the law is pronounced and interpreted by people that it will always be shaped by their worldview and ideology and therefore, a partisan team analogy is appropriate.


Published in: on October 6, 2008 at 6:42 pm Comments Off on The Presidential Election and the Subsequent Shaping of the Supreme Court

Voter Protection in the Upcoming Election

Judge Charleston, Waller County Justice of the Peace, was able to inject a surprising amount of humor and no shortage of passion into the telling of his personal experiences of struggling against appalling practices in Texas designed to keep black students from exercising their right to vote.Judge DeWayne Charleston

Judge Charleston’s speech today, co-sponsored by ACS, Black Law Students Association, and the American Civil Liberties Union centered on students at Prairie View A&M University, a historically black university in the majority white Waller County, Texas. Judge Charleston personally oversaw the registration of over 1100 black student voters. However, when the judge went to survey the polls on election day, checking to make sure that his constituents and potential voters weren’t having problems, he found that these black student voters whose registration he had personally overseen were being denied their right to vote at the polls. With a little help from unlikely allies Scarface and the crew at Rap-a-lot Records, Judge Charleston was able to convince the crowds of students to stay and vote provisionally, but was nonetheless appalled at the discriminatory practices at the polls.

Published in: on October 1, 2008 at 8:25 pm Comments Off on Voter Protection in the Upcoming Election
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Tom Goldstein visits W&M ACS

Tom Goldstein + W&M ACS“That was the most enjoyable hour I have spent in all of law school.”

Compliments like this have been pouring in for Tom Goldstein’s visit with W&M ACS this past Friday. His talk, titled “How a Supreme Court Practice Works”, gave us insight on Goldstein’s meteoric rise from law school “reject” to one of the nation’s top Supreme Court litigators.

His story begins with a distant cousin writing a letter to American University law school, helping him gain last-minute admission. This, Goldstein said, was a perfect example of how your legal career can be propelled by who you know– a recurring theme in Goldstein’s path to to the top.

While in law school, Goldstein managed to secure a part-time gig with Nina Totenberg at NPR because a Harvard student had to delay his arrival for the job due to a law review write-on competition. In Goldstein’s words, “I didn’t have that kind of problem.” He helped Totenberg out during a few Supreme Court confirmation hearings in the mid-90’s began creating a personal network of DC connections. During his stint with Totenberg, Goldstein did something fairly simple that nobody else was doing; specifically, he used a calculator to figure out statistics on the Supreme Court decisions. He determined who was the swing vote how many times and some other basic numbers.

After graduating from law school, Goldstein continued to crank out these numbers. By virtue of being the only one doing it, or perhaps they were too lazy to do the long division themselves, publications like the Wall Street Journal and the New York Times began quoting him. “According to Tom Goldstein, a Supreme Court expert who follows the docket very closely…”

Meanwhile, Goldstein was working in private practice and was using his statistical analysis to predict which circuit split cases the Supreme Court might grant certiorari. He landed his firm about four cases and on the fifth one he told his supervisor, “I would love the chance to argue one of these.” His supervisor, not surprisingly replied, “Perhaps you should try out another court first before the Supreme Court. You know, maybe get your feet wet at the Court of Appeals or something?” 

Instead, Goldstein quit his job and decided to start his own firm. Using his first-mover advantage, Goldstein began cold-calling potential Supreme Court case holders and pitching his services. When they asked him why they should give him their case, he would simply say, “Well, did you see the New York Times? They consider me an expert on the Supreme Court who follows the docket very closely…” 

Goldstein landed a few cases and quickly expanded his network of legal professionals. He contacted Stanford and asked to set up a Supreme Court clinic. When they asked why, he would simply say, “Well, did you see the New York Times…” Harvard got jealous, so they set up a Supreme Court clinic with him too. Goldstein essentially made a decision to corner the market in free Supreme Court work. And, he has done exactly that.

His advice to W&M ACS was to find something you love and do it, and do it better than anybody else. If nobody else is doing it yet (e.g. SCOTUSblog), you have a tremendous opportunity to be the world’s best– hey, it’s statistically proven.


Published in: on September 30, 2008 at 3:56 pm Comments Off on Tom Goldstein visits W&M ACS