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Constitutional Law

Third federal appeals court rejects Trump administration bid on birthright citizenship

By Debra Cassens Weiss

March 12, 2025, 12:05 pm CDT

The 1st U.S. Circuit Court of Appeals at Boston on Tuesday refused to allow President Donald Trump’s order on birthright citizenship to take effect, joining two other federal appeals courts that also ruled against the administration on the issue.

The 1st Circuit refused to stay pending appeal a federal judge’s Feb. 13 nationwide preliminary injunction blocking the order. The appeals court joined the 9th Circuit at San Francisco and the 4th Circuit at Richmond, Virginia, which issued similar rulings.

Law360, Reuters, the Associated Press and the Volokh Conspiracy covered the March 11 decision.

Trump’s Jan. 20 order bans birthright citizenship when a mother is in the country illegally or temporarily and when a father was not a U.S. citizen or a lawful permanent resident at the time.

U.S. District Judge Leo T. Sorokin of the District of Massachusetts had granted a preliminary injunction to 18 states that challenged the order, finding that they were likely to succeed in their argument that it violated the citizenship clause of the 14th Amendment. The District of Columbia and San Francisco were also plaintiffs.

On appeal, U.S. Department of Justice lawyers did not “make any developed argument” that the government was likely to succeed in showing that Trump’s order was constitutional, the 1st Circuit said. Instead, lawyers claimed that the plaintiffs did not have standing.

The states had countered that they had standing because the order would result in a loss of federal funds for health care, special needs education, child welfare and applications for Social Security numbers.

The 1st Circuit sided with the states, finding that the government had not made the strong showing needed to overcome state arguments.

1st Circuit Chief Judge David J. Barron, an appointee of former President Barack Obama, wrote the opinion in the case, New Jersey v. Trump.

New Jersey Attorney General Matt Platkin applauded the decision in a statement cited by Law360.

“Every court to consider President Trump’s effort to end birthright citizenship by executive order has found it is flagrantly unconstitutional, and every appellate court has rejected DOJ’s effort to put his order back in place,” Platkin said. “We are thrilled with the 1st Circuit’s decision, and we look forward to standing up for our birthright citizens no matter how far the Trump administration takes this case.”

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3. Law prof suspended over exam question, class…

First Amendment

Law prof suspended over exam question, class discussion can sue for First Amendment retaliation, 7th Circuit says

By Debra Cassens Weiss

March 13, 2025, 2:14 pm CDT

A federal appeals court has revived a First Amendment retaliation claim by a professor at the University of Illinois Chicago School of Law who used an “expurgated racial slur” on an exam question, leading to an investigation, required diversity training, a suspension and denial of a pay raise.

The 7th U.S. Circuit Court of Appeals at Chicago ruled Wednesday in a lawsuit by professor Jason Kilborn, whose 2022 suit was dismissed in December 2023.

His federal suit had alleged retaliation for constitutionally protected speech, due process violations of the 14th Amendment and state law violations.

A university professor’s academic speech is entitled to qualified First Amendment protection under U.S. Supreme Court precedent, the 7th Circuit ruled Wednesday in an opinion by Judge Thomas Lee Kirsch II, an appointee of President Donald Trump during his first term.

“We conclude that Kilborn has plausibly alleged that his speech is constitutionally protected and reverse the dismissal of his claim,” the appeals court said.

Because the appeals court revived the retaliation claim, it also vacated a federal judge’s refusal to exercise supplemental jurisdiction over the state law claims and ordered further consideration.

The university had found that Kilborn violated the harassment section of its nondiscrimination police after an investigation that followed the controversial exam question.

The December 2020 final exam in civil procedure included a hypothetical in which a plaintiff alleged that her managers had called her a “n- – – – -” and a “b- – – -.” Kilborn’s exam included only the first letter of the word followed by underlined blanks. Some students were upset by the question.

The university then investigated allegations that Kilborn created a racially hostile environment for minorities in a class that he taught two semesters earlier by commenting on “cockroaches” and a “public lynching.”

The cockroach comment was part of a discussion on why defendants sometimes settle frivolous cases. The media only covers frivolous cases when the defendant loses, not when the defendant wins, he said. Kilborn said defendants fear that the public will learn about losses in frivolous cases, and “then all the cockroaches come out of the walls, they’re thinking, right?”

In the same discussion, Kilborn said, “I’m not subjecting my corporate bottom line to that public lynching; I’m sorry, that’s not the right word to use.”

In a different discussion on race-based traffic stops, the appeals court said, “Kilborn used an African American Vernacular English (AAVE) accent while repeating the lyrics of a Jay-Z song, which describes the pretextual stop of a young Black man (‘You was doin’ 55 in a 54.’).”

In response, the university refused to give Kilborn an across-the-board 2% merit raise and said he could not return the classroom until he completed an eight-week diversity training program.

Kilborn’s exam question, as well as other remarks investigated by the university, “address matters of public concern, notwithstanding the limited size of Kilborn’s audience,” the 7th Circuit said.

“The exam question was designed to give students experience confronting a highly charged situation that they may encounter in real-life practice and to be a continuation of the learning that occurred in the classroom,” Kirsch wrote. “The content, form and context of the exam question give no indication that it involved a matter of private concern, rather than serving broader pedagogical purposes. Kilborn’s in-class statements performed a similar function. They were designed to engage students and stimulate in-class discussion on topics of significant interest to the broader community, including frivolous litigation and pretextual police stops.”

Hat tip to Law360, which covered the decision.

See also:

UIC law prof must receive online diversity training, coaching before classroom return, letter says

Exam question wasn’t only offensive behavior of UIC law professor, according to internal investigation

Court dismisses part of UIC law prof’s civil rights lawsuit

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3. Lawyers who critique critical race theory…

Lawyer Discipline

Lawyers who critique critical race theory may challenge Connecticut’s anti-bias ethics rule, 2nd Circuit says

By Debra Cassens Weiss

December 10, 2024, 12:45 pm CST

Two lawyers who fear their comments could lead to discipline under Connecticut’s anti-bias ethics rule have standing to sue, a federal appeals court ruled Monday.

The New York-based 2nd U.S. Circuit Court of Appeals revived a First Amendment lawsuit by Mario Cerame and Timothy Moynahan, report Law360, Reuters and Law.com.

Cerame and Moynahan say they regularly speak out “in forceful terms” on issues that include the free exercise of religion and critical race theory. Those with opposing viewpoints may construe the remarks as personally derogatory or demeaning, they say.

Contemplated comments by Cerame and Moynahan “are arguably proscribed” by the Connecticut ethics rule, the appeals court said in the Dec. 9 decision by Chief Judge Debra Ann Livingston, an appointee of former President George W. Bush.

Connecticut Rule of Professional Conduct 8.4(7) took effect in 2022. It bars conduct related to the practice of law that a lawyer knows or reasonably should know is harassment or discrimination based on 15 protected characteristics. Those characteristics include race, color, ancestry, sex, religion, sexual orientation, gender identity and gender expression.

The rule defines discrimination to include “harmful verbal or physical conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories.” It defines harassment to include “severe or pervasive derogatory or demeaning verbal or physical conduct.”

A “carve-out” in commentary to the ethics rule states that conduct protected under the First Amendment does not violate the rule.

While the First Amendment carve-out could make an ethics complaint more unlikely, it “is not enough to negate [the lawyers’] reasonable fear that their proposed speech” may be banned by the rule, Livingston said.

Connecticut is one of just a few jurisdictions that have adopted anti-bias rules that are “substantially similar” to Rule 8.4(g) of the ABA Model Rules of Professional Conduct, which was adopted in 2016, the appeals court said.

In their lawsuit, Cerame and Moynahan listed the kind of comments that could lead to ethics complaints in Connecticut if made by other lawyers. Examples could include a failure to use a transgender person’s preferred pronouns, using the term “gender preference” rather than “gender orientation,” telling jokes that could offend some members of protected groups, publishing cartoons that mock a religious deity, or espousing theories that socioeconomic disparities are largely due to disparities in cognition and social behaviors among racial groups.

Cerame and Moynahan are represented by the New Civil Liberties Alliance. NCLA president Mark Chenoweth commented in a press release.

The 2nd Circuit decision “gets the rules of First Amendment standing right,” Chenoweth said. “The court distinguished on two grounds the 3rd Circuit’s recent case denying standing to plaintiffs challenging a similar rule. First, Pennsylvania’s rule, unlike Connecticut’s, focuses on intentional harassment or discrimination. Second, the Pennsylvania Office of Disciplinary Counsel interpreted the rule there not to prohibit general discussion of controversial ideas and specifically blessed plaintiffs’ planned speech as not violating the rule. Not so in Connecticut, where the rule at issue is stricter.”

The Connecticut case is Cerame v. Slack.

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3. Judiciary ‘has no power to unimpeach,’ federal…

Judiciary

Judiciary ‘has no power to unimpeach,’ federal judge says while citing Dr. Seuss

By Debra Cassens Weiss

March 26, 2024, 8:57 am CDT

A federal judge has tossed former Democratic Illinois Gov. Rod Blagojevich’s pro se lawsuit seeking the right to run for political office, despite his impeachment and conviction, saying the complaint is “riddled with problems” and is an “Issue-Spotting Wonderland.”

U.S. District Judge Steven C. Seeger of the Northern District of Illinois said Blagojevich made several mistakes when he claimed that the Illinois Senate violated the First Amendment, the Sixth Amendment and the 14th Amendment by disqualifying him from future office in the state, in violation of Section 1983 of the Civil Rights Act.

Among the problems cited by Seeger: Blagojevich wrongly sued the state of Illinois and the Illinois General Assembly, rather than naming a person as a defendant under Section 1983; he cites the Sixth Amendment, but it applies to criminal cases and not impeachment proceedings; he lacks standing to assert First Amendment voting rights of voters; and he has said he is unsure whether he even wants to run for office, which could mean that his claim isn’t ripe for adjudication.

The bigger problem, Seeger said in his March 21 opinion, is that a federal court can’t get involved in impeachment decisions.

“The bottom line is that the judiciary has no power to unimpeach, unconvict and unremove a public official,” Seeger wrote. “The legislature taketh away, and the judiciary cannot giveth back.”

The Chicago Tribune, the Associated Press and Law360 are among the publications with coverage.

In 2011, Blagojevich was sentenced to 14 years in prison for political corruption, but he served only eight years before then-President Donald Trump commuted the sentence in February 2020. Blagojevich was a lawyer before his May 2020 disbarment, according to the Chicago Tribune.

Seeger is known for his opinions pillorying lawyers. He said a food labeling lawyer’s “warehouse of complaints” are “not fit for public consumption,” a Chicago lawyer’s motion was littered with “unnecessary potshots and hyperbole,” and lawyers in a trademark suit should be aware that “‘judge shopping’ ain’t a thing here.”

In the hyperbole case, Seeger declared that “searching for over-the-top sentences in the motion is like shooting fish in a barrel.”

Seeger returned to the analogy in Blagojevich’s case.

“The complaint is riddled with problems,” he wrote. “If the problems are fish in a barrel, the complaint contains an entire school of tuna. It is a target-rich environment. The complaint is an Issue-Spotting Wonderland.”

Seeger noted that the case began with “great fanfare” as Blagojevich announced with “a gaggle of press in tow” that he might want to return to public life.

“The case started with a megaphone, but it ends with a whimper,” Seeger wrote. “Sometimes cases in the federal courthouse attract publicity. But the courthouse is no place for a publicity stunt.”

Seeger quoted from the 1972 Dr. Seuss book Marvin K. Mooney Will You Please Go Now!

“The time has come. The time has come. The time is now. Just Go. Go. Go! I don’t care how. You can go by foot. You can go by cow. Marvin K. Mooney, will you please go now!”

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3. DNA issues ‘cast a pall’ over murder conviction,…

U.S. Supreme Court

DNA issues ‘cast a pall’ over murder conviction, warranting SCOTUS review, ABA amicus brief says

By Debra Cassens Weiss

March 28, 2024, 9:02 am CDT

The U.S. Supreme Court should once again consider the case of a Texas death row inmate whose conviction was based on DNA evidence tested by a lab that “consistently and egregiously mishandled DNA evidence,” the ABA has said in an amicus brief.

The ABA filed the March 27 brief in the case of Areli Escobar, according to an ABA press release. It is the second time that the ABA has urged the Supreme Court to hear the case.

The ABA filed its first amicus brief in August 2022, arguing that Escobar’s conviction “ought not stand as a matter of fundamental fairness.” The brief cited findings by a state habeas court, which found that DNA evidence in Escobar’s case was “false, misleading and unreliable.”

The lab’s mishandling of DNA evidence was so egregious that it was shut down by the state, the first ABA brief said.

According to SCOTUSblog, in January 2023, Supreme Court vacated a Texas Court of Criminal Appeals decision that upheld Escobar’s conviction and remanded. The Supreme Court said the Texas court should consider the state’s position supporting Escobar and confessing error in the case.

The Texas Court of Criminal Appeals, the top criminal court in Texas, once again upheld the conviction in September 2023.

The Texas Court of Criminal Appeals said it was aware that the state was no longer defending Escobar’s conviction when it originally ruled against Escobar, and nothing presented to the court since then changes its conclusion that there was no due process violation. There was no showing that lab deficiencies affected Escobar’s DNA evidence, the court said.

Evidence shown to be false—statistical errors in DNA probability estimates—isn’t material because Escobar would have been convicted anyway, the court had concluded.

The victim in the case, 17-year-old Bianca Maldonado Hernandez, had 46 stab wounds. She lived in the same apartment building as Escobar. Escobar’s girlfriend testified at trial that she called him in the early-morning hours on the date in question, and she could hear moaning and screaming in the background. The girlfriend had concluded that Escobar was having sex with someone and had complained to her friends about it.

The Texas Court of Criminal Appeals cited the girlfriend’s testimony, along with shoe-print evidence, Escobar’s appearance after the offense, and Escobar’s fingerprint on a lotion bottle near the victim’s body,

According to the ABA’s new brief, the Texas Court of Criminal Appeals “improperly downplayed the inculpatory effect of the false DNA evidence, and retroactively attempted to rehabilitate certain pieces of evidence” to support the conviction.

“The DNA errors go to the heart of the reliability of the evidence in this case and cast a pall over [Escobar’s] conviction and sentence,” the new ABA brief said.

DNA evidence found to be false and unreliable “ran afoul” of at least four parts of the ABA Standards for Criminal Justice: DNA Evidence, according to the new amicus brief.

Those standards say labs should maintain accreditation through “scrupulous adherence to scientific best practices,” should collect and keep evidence in a manner that prevents contamination, should implement scientifically valid protocols, and should take steps to minimize bias in the interpretation of DNA test results.

In Escobar’s case, the brief said, lab employees provided misleading testimony that gave the impression they had a system of checks and balances. In addition, the lab had multiple instances of evidence contamination, employed unqualified staff members who used “indefensible” protocols, and failed to minimize bias in interpreting test results.

Lab contamination affected samples from Escobar’s shoe and his sister’s Mazda vehicle, the new ABA brief said.

“It ought to be uncontroversial that when critical evidence in a capital murder trial was based on scientifically unreliable methods and processes of dubious validity, the resulting conviction cannot stand,” the ABA brief said.

See also:

The New York Times: “In Death Penalty Cases, a Texas Court Tests the Supreme Court’s Patience”

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3. Did ‘grand bargain’ fail to materialize in…

U.S. Supreme Court

Did ‘grand bargain’ fail to materialize in Trump ballot case? Metadata leads to speculation

By Debra Cassens Weiss

March 5, 2024, 10:07 am CST

The U.S. Supreme Court left “a big clue dangling in the metadata” about potential negotiations when it issued a unanimous decision Monday that kept former President Donald Trump on the ballot in Colorado, according to an article in Slate.

Although all the justices agreed that Trump should remain on the ballot, four justices said the majority should not have gone further by ruling that Congress had the exclusive power to enforce the constitutional ban on insurrectionists holding office.

The four justices expressed their views in two separate concurrences. One was jointly written by Justice Sonia Sotomayor, Justice Elena Kagan and Justice Ketanji Brown Jackson—the high court’s liberal justices—and the other was written by conservative Justice Amy Coney Barrett. The liberal concurrence was angrier in tone than Barrett’s, who emphasized unanimous agreement on the ballot issue and stated that “this is not the time to amplify disagreement with stridency.”

But the metadata shows that Sotomayor was initially a partial dissenter, according to Slate, Above the Law and Law360.

One way to see the metadata, on some computers, is by copying and pasting the top of the liberal justices’ concurrence that says “Sotomayor, Kagan and Jackson J.J., concurring in judgment” into a Microsoft Word document. The pasted version reads “Sotomayor, J., concurring in part and dissenting in part.” The same metadata shows when you search for the word “dissent.”

“What happened?” Slate asks. “Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. … The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?”

Paul Schiff Berman, a professor at the George Washington University Law School, thinks that Sotomayor’s opinion may have become a concurrence in an attempt to emphasize unanimity.

“I think they really wanted to try to make this a unanimous opinion in order to say this is not about ideology and it’s not about politics,” he told Law360.

Slate offers further speculation. One explanation is that Kagan and Jackson “were keeping their votes fluid” in the hopes of joining with Barrett to seek a fifth vote for a narrow holding that did not address whether Congress had exclusive authority to enforce Section 3 of the 14th Amendment. When Kagan and Jackson failed in that quest, they teamed up with Sotomayor.

“Broaden the scope of the potential negotiations, though, and things get more interesting,” Slate says. “After oral arguments, many smart court watchers mused that the justices might reach a grand bargain that tied this case to a separate dispute involving Trump’s claim of immunity from criminal prosecution for election subversion. The liberal justices might agree to keep Trump on the ballot if the court also refused to take up the immunity case.”

If the Supreme Court had refused to hear the immunity case, the federal appeals court decision holding that Trump did not have immunity from prosecution would remain in place. And that would mean that his criminal trial in the federal election-interference case might take place before the presidential election.

“That, of course, didn’t happen,” Slate says. “The court sided with Trump on the ballot issue and took up his immunity case last week on a less-than-speedy timeline, helping him run out the clock to November.”

Slate raises other possibilities, including that Barrett agreed to hear the immunity case “on a marginally expedited basis” this term, rather than push the case onto the docket for next term.

Or maybe evidence of a bargain will turn up when the Supreme Court issues its opinion in the Trump immunity case, according to Above the Law.

“Perhaps buried in the metadata,” Above the Law says.

See also:

“SCOTUS agrees to hear Trump’s presidential immunity claim”

“What happens next after Supreme Court agrees to hear Trump immunity case”

How the U.S. Supreme Court writes its opinion in Trump v. Anderson could have enormous long-term implications. The oral arguments on Feb. 8 left no doubt that the Supreme Court will reverse the Colorado Supreme Court and hold that Donald Trump is not disqualified from being on the ballot for the Republican primary in that state.

Although the result was obvious from the two and a half hours of questions by the justices, it was unclear what rationale the court will adopt. Many of the possibilities would do serious damage to future elections and to constitutional law.

States can’t enforce the 14th Amendment

Chief Justice John Roberts suggested during oral arguments that the 14th Amendment was meant as a limit on state power, not authority for states to enforce the 14th Amendment. Commentators, such as New York Times columnist David Brooks, have praised this argument.

But it is just wrong. States enforce the 14th Amendment all the time. The Bill of Rights is applied to the states through the due process clause of the 14th Amendment. Literally every day, state courts hearing criminal cases enforce provisions such as the Fourth Amendment’s limits on police search and seizures and the Sixth Amendment’s requirements during a criminal trial. If a state adopted an unconstitutional law restricting voting, surely state courts could enjoin it.

There is no reason why state courts cannot also enforce Section 3 of the 14th Amendment. That provision, like all, is meant to limit what the government can do. And a state court keeping Donald Trump off the ballot is enforcing the limits imposed by the Constitution. If the court writes its opinion that states are limited in their ability to enforce the 14th Amendment, the implications would be huge.

The voters should not be disenfranchised

Many justices seemed to endorse this view at oral argument. There is a surface appeal to the idea that the voters should be able to have on the ballot and then elect whomever they want.

The problem with this argument, though, is that courts never could enforce any limits on who can be a candidate. Many states have restrictions on who can run for office. California, for example, requires that the attorney general and district attorneys be lawyers. Cities have requirements that officeholders live in their jurisdictions. Laws across the country require that a person live in the district from which he or she is elected. The Constitution imposes other limits on who can be president such as requiring that the person be at least 35 years old, a natural-born citizen, a resident for 14 years and not have served two terms as president already.

All of these restrictions disenfranchise voters in that they limit who they can vote for. If the court embraces the view that the voters get to choose notwithstanding Section 3 of the 14th Amendment, not only would it nullify that provision, but it would seem to put all limits on who can hold office in jeopardy.

One state should not decide for the country

At the oral argument, several of the justices, including liberal ones, raised this concern. Again, there is appeal to this concern and a fear that it will open the door to states in the future exercising this power in nefarious ways.

But this argument is flawed in that it would not be one state deeming that Donald Trump violated Section 3, but rather the United States Supreme Court. Every case must begin in one state, whether in federal court or state court there. The trial court will hold a hearing, as was done in Colorado with a five-day hearing over whether Trump was disqualified.

But then there are appeals, ultimately to the U.S. Supreme Court. And it is the Supreme Court which will resolve whether Section 3 applies, including whether the individual participated in an insurrection or rebellion. Some have expressed concern that the fact finding of a state court could bind the Supreme Court. The high court, though, can review the adequacy of the fact finding, as it constantly does in other cases. Besides, in this instance, the facts are not in doubt; there is no doubt as to what occurred on Jan. 6 or what Donald Trump did.

Every time a federal district court declares a law unconstitutional and issues a nationwide injunction, a court in one state is making a decision for the country. If enforcement of Section 3 cannot begin in one state, that provision is effectively nullified. And if this rationale is followed, it would call into question the ability of state and federal trial courts ever to engage in fact finding and make rulings that affect the entire country.

Section 3 only means that a person cannot serve as president; it does not keep a person from running

Justice Neil Gorsuch suggested this in his question. But this would mean that no restrictions on who can serve in an office ever could be enforced to keep the person off the ballot. This would be highly undesirable because it would mean that people would be wasting their votes by selecting individuals ineligible to serve.

This argument would mean that the people could vote for someone ineligible to serve, only for the court to act after the election. This would be far worse, as it would mean that the court could decide if Trump was eligible for president only after he was elected. If there is concern for disenfranchising the voters and causing political chaos, this would surely do it.

My point is that if the Supreme Court is going to reverse the Colorado Supreme Court and allow Trump to run for president, it should be very careful how it does so. Many of the rationales suggested at oral argument would have devasting implications for other elections in the future.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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3. Florida can’t enforce law blocking real estate…

Real Estate & Property Law

Florida can’t enforce law blocking real estate purchases by Chinese citizens against 2 plaintiffs, court rules

By Debra Cassens Weiss

February 6, 2024, 1:05 pm CST

A federal appeals court has ruled that a Florida law barring real estate purchases by Chinese citizens can’t be enforced against two plaintiffs while their court challenge continues.

The 11th U.S. Circuit Court of Appeals at Atlanta said the plaintiffs had shown a substantial likelihood of success on their claim that the Florida statute is preempted by federal law. The appeals court blocked enforcement against two plaintiffs with pending real estate transactions.

Reuters and Politico have coverage of the Feb. 1 decision, while the Volokh Conspiracy has highlights.

The federal law establishes a system for security review of real estate purchases by foreign nationals, according to a Feb. 1 press release by the Asian American Legal Defense and Education Fund, which seeks to protect and promote the civil rights of Asian Americans.

The Florida law, Senate Bill 264, generally bars any real-property purchases in the state by any person whose permanent domicile is in China and who is not a U.S. citizen or lawful permanent resident.

People domiciled in other countries “of concern” who are not U.S. citizens or lawful permanent residents may buy Florida property—unless it is within 10 miles of a military installation or critical infrastructure facility.

In a concurrence, Judge Nancy G. Abudu said she agreed that the plaintiffs were likely to prevail on their preemption argument. But she would have also granted the preliminary injunction based on a second ground— that the law likely violates the equal protection clause of the 14th Amendment.

Abudu acknowledged U.S. Supreme Court precedent holding that any state can deny aliens the right to own land within its borders. But the Supreme Court has since called into question that decision, Terrace v. Thompson, and the cases that followed, Abudu said.

Abudu is an appointee of President Joe Biden. Other judges on the panel are Judge Kevin Newsom, an appointee of former President Donald Trump, and Judge Adalberto Jordan, an appointee of former President Bill Clinton.

The case is Shen v. Commissioner, Florida Department of Agriculture.

The plaintiffs are a real estate company and Chinese immigrants who can’t buy a home in Florida, even though they live, work and raise families there.

The plaintiffs are represented by the American Civil Liberties Union, the ACLU of Florida, the DeHeng Law Offices, the Asian American Legal Defense and Education Fund and Quinn Emanuel Urquhart & Sullivan.

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3. Yale Law’s Owen Fiss talks about threats…

The Modern Law Library

Yale Law’s Owen Fiss talks about threats to democracy and ‘Why We Vote’

By Lee Rawles

January 31, 2024, 8:47 am CST

After 50 years as a professor at Yale Law School, Owen Fiss says his students are still idealistic and passionate about the rights won in the Civil Rights Act of 1964 and Voting Rights Act of 1965.

As a young lawyer in the late 1960s, Fiss worked with the Department of Justice to implement those laws. A classroom discussion in spring 2020 prompted him to draw upon his legal expertise and decades of experience to produce Why We Vote, his new book.

In this episode of The Modern Law Library podcast, Fiss speaks with the ABA Journal’s Lee Rawles about the paradox of the court system—the least democratic branch of government—having the responsibility of safeguarding the right to vote.

He looks back on his work with the DOJ in southern states and his time as a clerk for then-U.S. Supreme Court Justice Thurgood Marshall (then on the 2nd U.S. Circuit Court of Appeals in New York) and then-Justice William J. Brennan Jr.

Rawles and Fiss also discuss recent threats to the electoral system and the right to vote, including the insurrection at the U.S. Capitol on Jan. 6, 2021. Fiss shares his thoughts about Section 3 of the 14th Amendment and whether former President Donald Trump should be removed from the ballot on that basis.

While every book that he writes is for his students, Fiss says, he hopes Why We Vote can impress upon a broader audience the privilege and duty of voting and participating in a democracy.

In This Podcast:

Owen Fiss

Owen Fiss is a Sterling professor emeritus of law and professorial lecturer in law at Yale University. He was educated at Dartmouth College, Oxford University and Harvard University. He clerked for then-U.S. Supreme Court Justice Thurgood Marshall (when Marshall was a judge on the 2nd U.S. Circuit Court of Appeals in New York) and later for then-Justice William J. Brennan Jr. Fiss also worked in the Civil Rights Division at the Department of Justice from 1966 to 1968. Before coming to Yale, Fiss taught at the University of Chicago. Fiss is the author of many articles and books, including The Civil Rights Injunction, Troubled Beginnings of the Modern State, The Structure of Procedure (with Robert Cover), and Liberalism Divided: Freedom of Speech and the Many Uses of State Power. His most recent book is Why We Vote.