Advance Advance The Journal of the ACS Issue Groups Advance: Volume 5 The Journal of the ACS Issue Groups TABLE OF CONTENTS | FALL 2011 The Journal of the ACS Issue Groups Saved by the Supreme Court: Rescuing Corporate America Alan B. Morrison Restoring Access to Justice: The Impact of Iqbal and Twombly on Federal Civil Rights Litigation Joshua Civin and Debo P. Adegbile No Exception to the Rule: The Unconstitutionality of State Immigration Enforcement Laws Pratheepan Gulasekaram The Assault on Public Sector Collective Bargaining: Real Harms and Imaginary Benefits Joseph E. Slater When Excessive Public Defender Workloads Fall 2011 Violate the Sixth Amendment Right to Counsel Spring 2007 Without a Showing of Prejudice Laurence A. Benner The National Voter Registration Act Reconsidered Estelle H. Rogers The Standardless Second Amendment Tina Mehr and Adam Winkler Volume 5 Volume The Slow, Tragic Demise of Standing in Vol. 1, No. 1 Vol. Establishment Clause Challenges Steven K. Green An Evolving Foreclosure Landscape: The Ibanez Case and Beyond Peter Pitegoff and Laura Underkuffler Academic Freedom and the Public’s Right to Know: How to Counter the Chilling Effect of FOIA Requests on Scholarship Rachel Levinson-Waldman 1333 H St., NW, 11th Floor Washington, D.C. 20005 www.ACSLaw.org 202-393-6181 Copyright © 2011 American Constitution Society for Law and Policy Advance The Journal of the ACS Issue Groups Table of ConTenT s 1 Introduction Saved by the Supreme Court: Rescuing Corporate America 5 Alan B. Morrison Restoring Access to Justice: The Impact of Iqbal and Twombly on 19 Federal Civil Rights Litigation Joshua Civin and Debo P. Adegbile No Exception to the Rule: The Unconstitutionality of State 37 Immigration Enforcement Laws Pratheepan Gulasekaram The Assault on Public Sector Collective Bargaining: Real Harms and 57 Imaginary Benefits Joseph E. Slater When Excessive Public Defender Workloads Violate the Sixth 73 Amendment Right to Counsel Without a Showing of Prejudice Laurence A. Benner The National Voter Registration Act Reconsidered 89 Estelle H. Rogers The Standardless Second Amendment 107 Tina Mehr and Adam Winkler The Slow, Tragic Demise of Standing in Establishment Clause 117 Challenges Steven K. Green An Evolving Foreclosure Landscape: The Ibanez Case and 131 Beyond Peter Pitegoff and Laura Underkuffler Academic Freedom and the Public’s Right to Know: How to Counter 143 the Chilling Effect of FOIA Requests on Scholarship Rachel Levinson-Waldman ACS BOARD OF DIRECTORS Stephen P. Berzon Philippa Scarlett Lisa Blue-Baron Judith Scott David M. Brodsky Theodore M. Shaw Elizabeth J. Cabraser Reva Siegel Mariano-Florentino Cuéllar Cliff Sloan Peter B. Edelman Geoffrey R. Stone, Chair Jay W. Eisenhofer Stephen D. Susman Faith E. Gay Daniel Tokaji Linda Greenhouse Wade Gibson, Student Board Member, Dennis J. Herrera Yale Law School Dawn Johnsen Ashland Johnson, Student Board Member, Pamela S. Karlan University of Georgia Law Judith L. Lichtman Abner Mikva Andrew J. Pincus Robert Raben ACS BOARD OF ADVISORS Brooksley E. Born Christopher Edley, Jr. Mario M. Cuomo Shirley M. Hufstedler Drew S. Days III Frank I. Michelman Walter E. Dellinger III William A. Norris Maria Echaveste Janet Reno Caroline Fredrickson, President The Journal of the ACS Issue Groups 1 Advance dvance, the Journal of the Issue Groups of the American Constitution Society for Law and Policy (ACS), is published annually by ACS. Our mission is to promote the vitality of the U.S. Constitution and the fun- Adamental values it expresses: individual rights and liberties, genuine equality, access to justice, democracy and the rule of law. Each issue of Advance features a collection of articles that emanate from the work of ACS’s Issue Groups. This edition of Advance features a selection of Issue Briefs written for ACS in the preceding several months, on topics spanning the breadth of the Issue Groups. ACS Issue Briefs—those included in Advance as well as others avail- able at www.acslaw.org—are intended to offer substantive analysis of legal or policy issue in a form that is easily accessible to practitioners, policymakers and the general public. Some Issue Briefs tackle the high-profile issues of the day, while others take a longer view of the law, but all are intended to enliven and enrich debate in their respec- tive areas. ACS encourages its members to make their voices heard, and we invite those interested in writing an Issue Brief to contact ACS. We hope you find this issue’s articles, which span a range of topics, engaging and edifying. The Journal of the ACS Issue Groups 3 ACS Issue Groups ACS Issue Groups are comprised of legal practitioners and scholars working together to articulate and pub- licize compelling progressive ideas. The Groups are led by distinguished co-chairs who are experts in their respective fields. They are open to all ACS members, and new members and new ideas are always welcome. Access to Justice The Access to Justice Issue Group considers the barriers that deny access to our civil justice system and fo- cuses attention on ways to ensure that our justice system is truly available to all. Constitutional Interpretation and Change The Constitutional Interpretation and Change Issue Group promotes persuasive and accessible methods of interpretation that give full meaning to the guarantees contained in the Constitution, and debunks the pur- portedly neutral theories of originalism and strict construction. Criminal Justice The Criminal Justice Issue Group examines the administration of our criminal laws and the challenges that such administration poses to our nation’s fundamental belief in liberty and equality. Democracy and Voting The Democracy and Voting Issue Group focuses on developing a comprehensive vision of the right to vote and to participate in our political process. Economic, Workplace, and Environmental Regulation The Economic, Workplace, and Environmental Regulation Issue Group addresses a broad array of issues in labor law, environmental protection, economic opportunity, and administrative law. Equality and Liberty The Equality and Liberty Group addresses means of combating inequality resulting from race, color, ethnic- ity, gender, sexual orientation, disability, age and other factors. First Amendment The First Amendment Issue Group explores the appropriate relationship between church and state in contem- porary society, as well as the rights of free speech, free press, and free association. Judicial Nominations The Judicial Nominations Issue Group focuses attention on the growing vacancy crisis in the federal judiciary and encourages Congress and the Administration to prioritize judicial confirmations. Separation of Powers and Federalism The Separation of Powers and Federalism Issue Group addresses the proper balance of power between the three branches of government, as between the federal government and the states. Saved by the Supreme Court: Rescuing Corporate America Alan B. Morrison* here may be a recession still underway, and millions of Americans are without jobs or working for far less than they used to be paid, but Corporate America is doing just fine. It has record profits, and even Twith the recent downturn, stocks have rebounded very nicely from their low point in 2009. And collectively, American corporations are sitting on trillions of dollars in cash. They are well-armed with high paid lobbyists, their political committees are revved up and ready to go for 2012, and the Supreme Court has freed them from the law that forbad them from using their own money to fund independent political ads so that they can elect their favorites and defeat those who might try to pass laws that make life more difficult for them. In short, Corporate America is the perfect picture of a “have” in the world of “haves” and “have nots.” One reason that profits have increased for Corporate America is that the Supreme Court has been a major ally. Since the late 1980s, on almost every occasion where big corporations have had a case of major significance in the High Court, the Court has ruled in their favor. In most cases, the companies had not lost a legislative battle or gone to the Court to protect a right that had been swept aside. With few exceptions, they never asked anyone else to fix a problem, but preferred to let the Court help them out, as it was more than willing to do. The Court has come to their rescue on a wide range of both procedural and substantive issues, with a number of these cases coming in the Court’s most recent term. To be sure, the Court does not always side with Big Business, as evidenced by the failure of the Chamber of Commerce to persuade the Court that the Arizona law im- posing more serious punishments on those who hire illegal immigrants than does fed- eral law is not preempted by the federal statute.1 And in another preemption case this past term, Williamson v. Mazda Motors, the Court permitted an injured passenger to sue a car manufacturer under state law over an alleged defect that was not subject to any direct federal standard.2 In the overall scheme, these cases and others that went against a corporate party seem to be of only modest importance, because they applied to relatively few situations, rather than making a broad rule that is unfavorable to similarly situated defendants. They do at least demonstrate that the High Court does not always rule as Corporate America would like. Rather, my point is that, in the cases that really count, you can bet on Big Business winning in the Supreme Court. Many people who see “Supreme Court” and “Corporate America” in the same sentence immediately think of the 2010 decision in Citizens United v. FEC, in which the Court used the First Amendment to strike down the long standing federal law that * Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School.