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Serving the Syllogism Machine: Reflections on Whether Brandenburg Is Now (Or Ever Was) Good Law
SERVING THE SYLLOGISM MACHINE: REFLECTIONS ON WHETHER BRANDENBURG IS NOW (OR EVER WAS) GOOD LAW Burt Neuborne∗ I. INTRODUCTION: WHAT IS THE SOURCE OF THE SUPREME COURT’S POWER TO DECIDE BRANDENBURG? ...................................................... 1 II. MARBURY V. MADISON: A CONSTITUTIONAL FARCE IN THREE ACTS .... 5 A. Prelude to a Farce ........................................................................ 5 B. Building the Set: A Large Patronage Trough ............................. 12 C. Enter the Players ......................................................................... 15 1. Act I: The Disappearing Supreme Court Term ................... 19 2. Act II: How Not to Find Facts ............................................. 21 A Short Musical Interlude .................................................... 26 3. Act III: Find the Missing Court ........................................... 26 D. Requiem for an Epilogue ............................................................. 28 III. THE DIRTY LITTLE SECRET ................................................................. 30 IV. JOHN MARSHALL’S MIRACULOUS SYLLOGISM MACHINE .................. 32 V. ERROR DEFLECTION: A LEFT-HANDED REPAIR MANUAL FOR THE BROKEN MACHINE .............................................................................. 41 A. Screening for Bad Motive............................................................ 47 B. Deflecting Error on Justification or Consequence ..................... 48 VI. THE LEFT-HANDED REPAIR MANUAL IN OPERATION: ERROR- DEFLECTION -
The United States and the Helsinki Final Act. a Status Report
ri ,A;; . ;, ; . !-v- . DOCOMIT INSONN 10 1.13 446 SO 012 372 TITLE Fulfilling Our Promises: Ihe United States and the Helsinki Final Act. A Status Report. INVTITUTION Commission on Security and Cooperation in Europe, Washington, D.C. PUB DkTE Nov 79 NOTE 414p.: Chart 1 from Appendix IV on pages 330-331 and Table /XII from Appendix VII may not reproduCe clearly in paper copy from !DRS due to small print ,/type and fading ink EDRS PRICE NF01/PC17 Plus Postage. DESCRIPTORS Civil Liberties: *Complianc (Legal): *Cooperation: Cultural Exchange: Economic : *Federal Government: Foreiafl Countries: Forei olicy: Global kpiroAch: Govern ent Role: Inter tonal Educational Exchiftge: *Inter ational Relations: International Studies: National Defense: *Peace: Political Science; Technology IDENTIFIERS Europe: *Helsinki Final Act: United States ABSTRACT This report examines compliance by the United States with agreements made in the Helsinki Final Act. The Act was signed in 1975 by leaders of 33 East and West European nations, Canada, and the U.S. It contains numerous cooperative measures aimed at improving East-Nest relations. This report was prepared by the Commission on Security and Cooperation in Europe (CSCE1, an independent advisory agency that monitors the implementation recoeds of the U.S. and other countries which signed the Final Act. One of the report's purposes is the conscientious examination of the U.S. implementation record, including shortcomings pointed out by some CSCE participaats and .domestic critics. Pour maior chapters review U.S. actions injour _conceptual areas. The chapter titled "Security,in Europe" exglores principles such as soverian equality, inviolability of frontiers, and nonintervention in internal affairs. -
David Carliner, Esquire
Oral History Project United States Courts The Historical Society of the District of Columbia Circuit District of Columbia Circuit DAVID CARLINER, ESQUIRE Interviews conducted by: Charles Reischel, Esquire August 12, October 16, December 1 1, 1997 and March 13, 1998 TABLE OF CONTENTS Preface ..................................................................... i Oral History Agreements ... David Carliner, Esquire. ................................................... 111 Charles Reischel, Esquire .................................................... v Oral History Transcript of Interviews on: August12,1997 ............................................................ 1 October16,1997 .......................................................... 39 Decemberll,l997 ........................................................ 72 March13,1998 .......................................................... 117 Index ..................................................................... AI Tableofcases .............................................................. B1 Biographical Sketches David Carliner, Esquire .................................................... C1 Charles Reischel, Esquire .................................................. C3 NOTE The following pages record interviews conducted on the dates indicated. The interviews were electronically recorded, and the transcription was subsequently reviewed and edited by the interviewee. The contents hereof and all literary rights pertaining hereto are governed by, and are subject to, the Oral History Agreements -
Tribute to Norman Dorsen
TRIBUTE TO NORMAN DORSEN I am honored to have the opportunity to write about Norman Dorsen. My relationship with Norman began when I was a law stu dent. I am one of some 200 people who have been Arthur Garfield Hays fellows (or fellowettes), a program created by Norman Dorsen at New York University School of Law. When I was a "Hays," Nor man ran the program with Professor Sylvia Law; more recently, they have beenjoined by Professor Helen Hershkoff. I am therefore the recipient of a very special education, and I will sketch briefly some of what I have learned as a student of Norman's. A word of explanation is in order about the Hays Fellowship. In 1958, a fund was endowed at NYU School of Law in honor of Arthur Garfield Hays, the great civil libertarian. Since then, a small number of third-year NYU students annually are chosen as "Hays Fellows." As a Hays, one receives money towards tuition as well as course credits, and one does a mixture of academic research and hands-on work on issues such as free speech or welfare rights. Hays fellows have helped on many cases that went to the Supreme Court (such as Flast v. Cohen,l the Pentagon Papers litigation,2 and United States v. Nixon3 ) , as well as on thousands of lawsuits in the lower courts, on topics from discriminatory denial of homeowners insur ance, to unlawful limitations of access to abortion, to refusals to treat HIV patients. While I was a Hays, in 1974-75, I worked on a First Amendment book burning case, under the tutelage of Burt Neuborne and Alan Levine, who were then at the American and the New York Civil Lib erties Unions. -
Brennan Center for Justice at New York University School Of
ABOUT THE BRENNAN CENTER The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice. Our work ranges from voting rights to campaign finance reform, from racial justice in criminal law to presidential power in the fight against terrorism. A singular institution – part think tank, part public interest law firm, part advocacy group – the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector. ABOUT THE MONEY & POLITICS PROJECT To promote more open, honest, and accountable government, and to ensure that each citizen’s voice is heard in our democracy, laws governing money and politics must put the voter squarely at the center of the electoral process. The Brennan Center’s Money & Politics project supports grassroots/small donor public funding systems that enhance voters’ voices, as well as disclosure requirements and contribution limits that mitigate real and perceived excessive influence on elected officials. We are a leader in defending federal, state, and local campaign finance and public financing laws in court. In addition, we provide legal guidance to state and local officials and advocates, and publish reports and submit testimony in support of reform proposals. To restore the primacy of voters in elections and the integrity of the democratic process, the Brennan Center is responding to the Citizens United decision with a multi-pronged effort that endorses public financing of elections; modernizes voter registration; demands accountability in corporate political spending; and with this symposium, is beginning a multi-year effort to promote new jurisprudence that advances a voter-centric view of the First Amendment. -
The Mattachine Society of Washington, the American Civil Liberties Union, and the Invention of Gay Pride, 1
The Proud Plaintiff: The Mattachine Society of Washington, the American Civil Liberties Union, and the Invention of Gay Pride, 1957-1969 A dissertation presented by Eric Matthew Cervini of Emmanuel College to The Faculty of History in fulfillment of the requirements for the degree of Doctor of Philosophy The University of Cambridge Cambridge, United Kingdom July 2019 This dissertation is the result of my own work and includes nothing which is the outcome of work done in collaboration. It is not substantially the same as any that I have submitted, or, is being concurrently submitted for a degree or diploma or other qualification at the University of Cambridge or any other University or similar institution. I further state that no substantial part of my dissertation has already been submitted, or, is being concurrently submitted for any such degree, diploma or other qualification at the University of Cambridge or any other University or similar institution. It does not exceed the word limit prescribed by the Degree Committee of the History Faculty. © 2019 Eric Cervini All rights reserved. Abstract The Proud Plaintiff: The Mattachine Society of Washington, the American Civil Liberties Union, and the Invention of Gay Pride, 1957-1969 by Eric Cervini Histories of the early gay rights movement in America have aptly placed emphasis on the Mattachine Society of Washington (MSW), founded in 1961, and its founder, Frank Kameny. Told as part of broader social or political histories of the 1960s “homophile” movement, these narratives often recognize the MSW’s ideological and tactical contributions to the fight against the federal government’s gay purges; indeed, the Society is most known for the first gay pickets of the White House and its militant slogan, “Gay is Good.” These histories, however, have overlooked a crucial component of the MSW’s story: its legal alliance with the American Civil Liberties Union. -
The Norman Dorsen Brief
No. 18-422 IN THE Supreme Court of the United States dROBERT RUCHO, ET AL., Appellants, —v.— COMMON CAUSE, ET AL., Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA BRIEF OF COLLEAGUES OF PROFESSOR NORMAN DORSEN AS AMICI CURIAE IN SUPPORT OF APPELLEES BURT NEUBORNE Counsel of Record 40 Washington Square South New York, New York 10012 (212) 998-6172 [email protected] Attorney for Amici Curiae Colleagues of Professor Norman Dorsen i QUESTION PRESENTED Whether an extreme partisan gerrymander that intentionally pre-selects the overwhelmingly likely winner in each of North Carolina’s 13 Congressional Districts violates the First Amendment by: 1. discriminating of the basis of viewpoint; 2. imposing depressed levels of campaign fund- ing, speech, and electoral activity typically associated with non-competitive elections; and 3. denying voters of all political stripes the ability to exercise a meaningful personal choice over who is to represent them in the legislature? ii TABLE OF CONTENTS PAGE QUESTION PRESENTED ................. i TABLE OF AUTHORITIES ................ iv INTEREST OF AMICI ..................... 1 SUMMARY OF ARGUMENT .............. 2 ARGUMENT— THE FIRST AMENDMENT BARS THE NORTH CAROLINA LEGISLATURE FROM: .................................. 7 (1) DISCRIMINATING ON THE BASIS OF VIEWPOINT IN DRAWING VIRTUALLY UNCONTESTABLE DISTRICT LINES CONCEDEDLY DESIGNED TO FAVOR A SINGLE POLITICAL PARTY; (2) LOCKING AS MANY VOTERS AS POSSIBLE INTO VIRTUALLY UNCON- TESTABLE ELECTION DISTRICTS CHARACTERIZED BY DEPRESSED AND UNEQUAL LEVELS OF CAMPAIGN SPENDING, DIMINISHED LEVELS OF POLITICAL SPEECH AND ASSOCIATION, AND DISAPPOINTING LEVELS OF VOTER PARTICIPATION; AND (3) DENYING NORTH CAROLINA VOTERS A MEANINGFUL PERSONAL CHOICE CONCERNING WHO WILL REPRESENT THEM IN CONGRESS Introduction and Factual Summary ....... -
1 Oral History of David Carliner Interview No. 1
ORAL HISTORY OF DAVID CARLINER INTERVIEW NO. 1 August 12, 1997 This interview is being conducted on behalf of the Oral History Project of the District of Columbia Circuit. The interviewee is David Carliner and the interviewer is Charles Reischel. The interview took place on August 27, 1997. Mr. Reischel: I thought I’d start at the beginning with the fact that you are a local product. You were born here. Mr. Carliner: Washington, D.C., Sibley Hospital when it was on North Capitol Street. I tell people I woke up and I came out of my mother’s stomach and looked at the Capitol and screamed. Mr. Reischel: But you moved to Virginia at some point. Mr. Carliner: Well, not really. My father was in the grocery business and his style of business was to buy a grocery store and buy the real estate and stay in the grocery store for a couple of years and then sell the business and keep the real estate. So his income was built up by moving around owning different pieces of property which he rented and sold. My family lived in a number of different places in Washington, but it wasn’t until I was in my last year of high school, when I was about 16 years old, that my family moved to Arlington, Virginia. Mr. Reischel: So you went to D.C. schools? Mr. Carliner: I went to D.C. schools. I went to McKinley High School. This is not part of my legal history, but McKinley High School was my neighborhood school. -
Amending District of Columbia Charitable Solicitation Act ; 7- / Hearings Before Subcommittee No
AMENDING DISTRICT OF COLUMBIA CHARITABLE SOLICITATION ACT ; 7- / HEARINGS BEFORE SUBCOMMITTEE NO. 4 Or THE COMMITTEE ON *k U.S. GOVERNMENT PRINTING OFfPICE 82-775 WASIIINGTON : 1064 HOUSE COMMITTEE ON THE DISTRICT OF COLUMBIA JOHN L. McMILLAN, South, Carolina, Chairman THOMAS G. ABERNETHY, Mississippi JOEL T. BRO1XHILL, Virginia HOWARD W. SMITH, Virginia JAMES C. AUCHINCLOSS, New Jersey WILLIAM L. DAWSON, Illinois WILLIAM L. SPRINGER, Illinois JOHN BELL WILLIAMS, Mississippi ANCHER NELSEN, Minnesota ABRAHAM J. MULTER, New York ALVIN . O'KONSKI, Wisconsin JOHN DOWDY, Texas WILLIAM H. HARSHA, Ohio GEORGE HUDDLESTON, JR., Alabama CHARLES McC. MATHIAS, Jn., Maryland BASIL L. WHITENER, North Carolina FRED SCHWENGEL, Iowa JEFFERY COIIELAN, California FRANK J. HORTON, New York FERNAND J. ST GERMAIN, Rhole Island RICHARD L. ROUDEBUSH, Indiana JAMES W. TRIMBLE, Arkansas B. F. SISK, California CHARLES C. DIGGS, JR., Michigan G. ELLIOTT HAGAN, G( irgia JAMEs T. CLARK, clerIc CLAYTON GASQUE, Staff Director HAYDEN S. GARNER, Counsel SUBCOMMITTEE No. 4 JOHN DOWDZ, Texas, Ohairman JOHN BELL WILLIAMS, Mississippi JAMES C. AUCHINCLOSS, New Jersey GEORGE HUDDLESTON, JR., Alabama WILLIAM H. HARSHA, Ohio BASIL L. WHITENER, North Carolina FRANK J. HORTON, New York FERNAND J. ST GERMAIN, Rhode Island RICHARD L. ROUDEBUSH, Indiana B. F. SISK, California CONTENTS II.R. 5990, a bill to amend the District of Columbia Charitable Solicitation Act to require certain findings before the issuance of a solicitation permit 'age thereunder, and for other purposes --------------------------------- 1 Dowdy, Ion. John, chairman, Subcommittee No. 4, extension of remarks, U.S. Rouse of Representatives, July 5, 1963 ------------------------- 2 House Committee Staff Memorandum No. 1 ---------------------------- 5 House Committee Staff Memorandum No. -
The Nylon Curtain: America's National Border and the Free Flow of Ideas
William & Mary Law Review Volume 26 (1984-1985) Issue 5 Article 3 June 1985 The Nylon Curtain: America's National Border and the Free Flow of Ideas Burt Neuborne Steven R. Shapiro Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation Burt Neuborne and Steven R. Shapiro, The Nylon Curtain: America's National Border and the Free Flow of Ideas, 26 Wm. & Mary L. Rev. 719 (1985), https://scholarship.law.wm.edu/wmlr/vol26/ iss5/3 Copyright c 1985 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr ARTICLES THE NYLON CURTAIN: AMERICA'S NATIONAL BORDER AND THE FREE FLOW OF IDEAS BURT NEUBORNE* and STEVEN R. SHAPIRO** When Winston Churchill coined his inspired bit of rhetoric some forty years ago, he shaped the perceptions of a generation. By characterizing the Soviet empire as encased in an iron curtain,1 Churchill projected the essence of a closed, totalitarian regime bent on manipulating its citizens through controlled information flow; a regime that could never risk the free exchange of informa- tion, values, and ideals with competing social systems. More than any other phrase, "iron curtain" has symbolized for many of us in the postwar West the specter of whole nations turned into prisons, with national borders acting as walls to keep ideas out and citizens in. Like most rhetoric, even Churchill's tended to be one-dimen- sional, blinding many in the West to the existence of indigenous popular support for socialist societies premised on values different from our own, and grossly oversimplifying the problem of our rela- tionship with the Soviet world. -
Burt Neuborne Is a Litigating Academic, a Pragmatic Liberal, and an Inquisitive Teacher
oof: 2 • 7/18/04 • dn File: LSMGNEU05 • Pr Burt Neuborne is a litigating academic, a pragmatic liberal, and an inquisitive teacher. He sees himself, simply, as an imaginative lawyer. 16 THE LAW SCHOOL AUTUMN 2004 oof: 2 • 7/18/04 • dn File: LSMGNEU05 • Pr Illustration by Goro Sasaki CREATIVE COUNSEL BY JOSEPH BERGER o understand how Burt Neuborne has managed to win so many watershed constitutional Tcases and harvest billions of dollars for families of Holocaust survivors around the world, all while being a faculty star at the New York University School of Law, it helps to reach back to his days as a gangly youngster on the postwar streets of Jamaica, Queens. As dusk would fall, young Burt would be out playing stickball with the rest of the neighborhood kids and the receding light would make the spaldeen (as the pink Spalding rubber ball was known) hard to pick out. His less relentless buddies were ready to call it a day. Not Neuborne. “When it would get dark and I was losing, I would always say, ‘We can play another inning,’ ” he remembers. Now fast-forward to the Vietnam War era to roughly 1970, when Neuborne, a lawyer for the New York Civil Liberties Union, was defending an artist who had been arrested for sewing a 7 1/2 foot-long American flag into the shape of a penis, stuffing it, and displaying it near the window of AUTUMN 2004 THE LAW SCHOOL 17 a Madison Avenue gallery. A three-judge criminal court panel con- around a few signature themes like the First Amendment and civil rights. -
Supreme Court of the United States
No. 16-1161 IN THE Supreme Court of the United States dBEVERLEY R. GILL, et al., Appellants, —v.— WILLIAM WHITFORD, et al., Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN BRIEF OF COLLEAGUES OF PROFESSOR NORMAN DORSEN AS AMICI CURIAE IN SUPPORT OF APPELLEES BURT NEUBORNE Counsel of Record NORMAN DORSEN (1930-2017) 40 Washington Square South New York, New York 10012 (212) 998-6172 [email protected] Attorneys for Amici Curiae Colleagues of Professor Norman Dorsen QUESTION PRESENTED Whether a massive partisan gerrymander that entrenches the transient majority’s political control of the Wisconsin legislature for the foreseeable future, and virtually eliminates genuinely contestable legislative elections from Wisconsin political life, violates the First and Fourteenth Amendments? i TABLE OF CONTENTS PAGE QUESTION PRESENTED ..................................i TABLE OF AUTHORITIES ............................. iii INTEREST OF AMICI ....................................... 1 SUMMARY OF ARGUMENT ............................. 4 ARGUMENT ...................................................... 7 SYSTEMATIC POLITICAL GERRYMANDERING THAT DENIES VOTERS A FAIR OPPORTUNITY TO PARTICIPATE IN GENUINELY CONTESTABLE LEGISLATIVE ELECTIONS VIOLATES THE FIRST AMENDMENT .............................................. 7 A. The Impact of the Wisconsin Gerrymander on Genuinely Contestable Legislative Elections .......... 10 B. The Scope of the First Amendment Right to Participate in a Genuinely Contestable Legislative