THIS WEEK @ ACS

10/29 - 11/2

TUESDAY October 30
12:20 PM, JG 101

Human Rights Institute event with Martin Scheinin

Martin Scheinin is the UN Special Rapporteur on the protection and promotion of Human Rights. Mr. Scheinin is a Finnish Law professor who has conducted investigations in the Philippines, South Africa, the United States and Israel and the Occupied Palestinian Territories, and will be speaking about his work in this increasingly relevant field of law.
Co-sponsored by Rightslink.

Lunch served

SUING GOD: The Religion Causes and the Roberts Court

Last Wednesday, Professor Steven Gey of the Florida State University School of Law and Professor Marci Hamilton of the Cardozo School of Law discussed the future of establishment clause rulings from the U.S. Supreme Court.

Professor Gey spoke first, discussing recent Supreme Court decisions that indicate the court’s tendency to favor religion in establishment clause cases. One of the better-known recent cases is Hein v. Freedom of Religion, in which the majority ruled that taxpayers cannot challenge the use of money allocated to the executive branch for promotion of religion. Five of the current justices (Scalia, Alito, Kennedy, Roberts and Thomas), Gey argued, generally favor allowing the government to facilitate religion as long as it does not favor a certain sect.

Gey then outlined the differences between the “old” and “new” views of the establishment clause. He stated that there are five important differences. The first is that, under the old view, the government basically ignored religion. Under the new, the Court says that politics are infused with and defined by religion, that the U.S. is a Christian nation that is defined by its values. Secondly, under the old paradigm, the Constitution protects all religions, while under the new, majority religions prevail over minority religious groups.

The third difference is that under the old paradigm, religious beliefs were irrelevant to whether one could obtain citizenship. Under the new paradigm, de facto religious tests are allowed for some aspects of democratic participation. To illustrate, Gey cited the impossibility of being elected to public office in certain areas as an avowed atheist. The fourth difference he cited is that under the old paradigm, the Court enforced one national theory of religious freedom, while the new paradigm has the Court stepping aside and allowing religious battles to be fought on the local level. The fifth and final significant difference between the old and new paradigms, Gey posited, was that under the old system, the government was agnostic and neutral. Now, the government advocates for certain “truths.”

However, Gey offered some hope for those who oppose the new direction of establishment clause doctrine. There are three reasons the new paradigm won’t stand, he said. The first is that the position by the majority is not historical. The writers of the Constitution supported a secular government. Secondly, the U.S. is no longer a Christian country; the two most rapidly growing religious groups are secularists and Muslims. Finally, local demographics are changing so that single religious groups are not so dominant in any given area, and elections will begin to reflect this change.

Professor Marci Hamilton spoke second. She clarified that the historic purpose of the establishment clause was to protect religion and government from one another, as one often has a tendency to overlap and overpower the other. But the separation of church and state is naturally fuzzy because there is no way the two can be totally separated.

Hamilton made the point that there is an idea that the U.S. has a set of shared beliefs and those beliefs are unavoidable. These beliefs are generally equated with Christian beliefs. However, the idea of the “Christian nation” is flawed, she argues, because the U.S. was not founded by an ecumenical Christian group. The various Christian sects that founded our country hated each other, so to say that there was a single unified “Christianity” in our country is inaccurate.

Despite the historical inaccuracy of the “Christian nation founded on Christian values” idea, the effects of the eroding barrier between church and state will be felt for at least the next 20 years, Hamilton said. In the Court’s next term, there will be more Ten Commandment cases, she predicts, in which the Court will clarify that they can be posted on public property.

However, if the country becomes opposed to the direction the court is taking the separation of church and state, there will be a response from the people through the legislature, she predicted. Hamilton ended her portion of the presentation with the question: Will the Court become irrelevant if there’s a backlash in favor of separation?

ACS sincerely thanks both professors for their time and presentations.

THIS WEEK @ ACS

10/22-10/26

WEDNESDAY October 24
6:30 PM, JG 106
Crack/Cocaine Sentencing Panel
In Kimbrough v. United States, the Supreme Court is considering the dramatic 100-to-1 disparity between crack and powder cocaine sentencing.

Panelists include: Professor Jeffrey Fagan; Marc Mauer, executive director of The Sentencing Project and Professor Harlan Protass of Benjamin N. Cardozo School of Law, criminal defense attorney and creator of the Second Circuit Sentencing Blog. Moderated by Professor Gerard Lynch '75, U.S. District Judge for the Southern District of New York.
Co-sponsored by the Criminal Justice Action Network (CJAN), American Civil Liberties Union (ACLU), and the Civil Rights Law Society (CRLS).
Dinner served.

The ACS 2008 National Student Writing Competition: "Liberty, Security and Democracy in Our Evolving Society"

ACS invites you to submit any paper that falls within the above topic. Submissions must be 25-50 pages in length and are due February 8, 2008. The winner will receive $3,000 and have her paper published in the University of Pennsylvania Journal of Constitutional Law. The two runners-up will receive $1,000 each. See here for details.

THIS WEEK @ ACS

10/15-10/19

WEDNESDAY October 17
12:15 PM, JG 105
Suing God: The Religion Clauses in the Roberts Court
Professor Marci Hamilton of the Cardozo School of Law, and Professor Steven Gey of the Florida State University College of Law, will discuss the future of the separation of church and state in light of recent Supreme Court decisions, such as Hein v. Freedom From Religion Foundation.

Professor Kent Greenawalt will be moderating.

Lunch served.

Top Gun: A Conversation with Jeh Johnson, CLS '82

Today, Jeh Johnson, CLS '82, joined the Columbia Chapter of the ACS and BLSA for a conversation about his time as General Counsel of the Air Force and the rule of law in the military.

Mr. Johnson focused on the balance between a mainstream legal career and a commitment to public service. Using his own biography as a touchstone, Mr. Johnson related a story all too familiar to law students: his first days of legal methods with Professor Peter Strauss. His career path - as a competitor in the Stone moot court, an associate at multiple New York firms, an assistant U.S. Attorney, partner at Paul Weiss, and general counsel of the Air Force - represents an evolution into a complete attorney: a socially conscious, efficient, and compelling advocate. The two most important pieces of career advice Mr. Johnson offered were: 1. never us a script; 2. be a U.S. Attorney. His war stories were not only entertaining, but demonstrative of the processes, tactics, and characteristics that constitute elite advocacy.

Mr. Johnson cites his experience at the Air Force and working with presidential candidates as the heart of why he originally came to CLS: to be a public servant.

He left us with the succinct words of wisdom: "Never lose your public interest interest."

Columbia ACS and BLSA would like to thank Mr. Johnson for his entertaining and enlightening visit.

Clive Stafford Smith Book Talk

On Wednesday, ACS and a slew of other campus group welcomed Columbia Law alum Clive Stafford Smith to discuss his book, Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantanamo Bay. After graduating from Columbia, Smith began defending capital cases, and quickly became appalled by the state of criminal justice in the United States. He has since broadened his focus to include the prisoners being held at Guantanamo Bay without legal representation, of whom he has now represented more than fifty.

Referring to his time at Columbia as a "complete waste," the irreverently charming Smith urged Columbia grads to avoid the straight subway line to Wall Street and do something meaningful with their lives. He described how, over the course of working on death penalty cases, he came to recognize the serious flaws in our justice system. As an example, he cited the "beyond reasonable doubt standard." In a survey of judges, Smith alleged that, when asked to quantify how sure they had to be in order to meet this standard, the average response was 83%, with some going as low as 75%. The logical conclusion is therefore that the average American judge expects almost 1 in 5 people convicted to be innocent.

Smith identified one of the major elements of false convictions as "snitches," or people who are willing to give the authorities names to save themselves jail time. These people, unsurprisingly, are not always truthful, but their confessions are given significant weight by police officers, prosecutors, and eventually juries.

Turning his attention to Gitmo, Smith pointed out that, if an open and transparent system like our criminal justice process has such serious flaws, things are bound to be exponentially worse in a closed, secret prison. In order to illustrate this, he offered examples of the appallingly low standard required to detain someone in Gitmo or one of its analogues. The enemy combatant label, by the admission of the U.S. Government, can extend to anyone who hears someone speaking kindly of a known terrorist and does not then report that person to the CIA.

Additionally, the United States offers a $5,000 bounty to anyone providing the identity of a terrorist. In countries like Afghanistan, this bounty is the equivalent of $250,000, and all that is required to receive it is the identity of a terrorist. Like snitches in the criminal justice system, there are no provisions for verifying the credibility of those who report "terrorists."

Once detained, Smith described, "enemy combatants" are abused in shocking ways. He recalled being appalled when he first heard his clients relate stories of the physical and psychological torture they were subjected to. Additionally, they are detained on unbelievably flimsy evidence. One of his clients is currently being held because, as a camera man for Al-Jazeera, he received camera training, which they qualify as "terrorist training."

Perhaps most disturbingly, Smith pointed out that Guantanamo is only a well-publicized example of the many secret prisons the U.S. currently runs throughout the world. In fact, it accounts for only 2.5% of such prisoners. Smith concluded his talk by taking questions and encouraging everyone in the audience to get involved, and to come "be exploited" by him in helping to represent the Guantanamo prisoners.

This Week @ ACS

10/8-10/12

WEDNESDAY October 10
5:30 PM, JG 102
Book Talk: Seeking Justice in Guantanamo Bay

Clive Stafford Smith '84 discusses his upcoming work, The Eight O'Clock Ferry to the Windward Side: Seeking Justice in Guantanamo Bay - an extraordinary, first-hand account of the US detention facility, written by one of the few individuals in the world who has had independent access to it.

Co-sponsored by Social Justice Initiatives, CPIL, and CLS's Human Rights Institute.

Reception to Follow.

THURSDAY October 11
12:15 PM, JG 107

Top Gun: Practicing in BigLaw and the Air Force

With Jeh Johnson '82

Jeh Johnson is a partner at Paul, Weiss and was General Counsel of the Department of the Air Force during the Clinton Administration. He has
been named one of the top black lawyers in New York City. He will speak about the rule of law in the military and other aspects of his career.

Co-sponsored by BLSA.

Lunch Served.

THURSDAY October 11
8:30 PM, Tim Abbott's Apartment, 415 W. 115th St., #41

ACS Membership Houseparty

Mama ain't home. Join ACS National ($10) and the drinks are on us!

School Desegregation

On Friday, ACS welcomed Goodwin Liu, a Professor at Boalt Hall, to discuss the recent Seattle and Louisville desegregation cases, the lessons of Brown and Plessy and the Supreme Court’s performance as a protector of civil rights.

Professor Liu began with an overview of the Seattle and Louisville cases, which considered to what extent, if at all, school districts can use race as a factor to achieve diverse schools. Writing for the plurality, Chief Justice Roberts held that race cannot be used for this purpose. For the dissent, Justice Breyer found that not only would such use of race be acceptable, it is not even deserving of strict scrutiny. Justice Kennedy staked out a middle ground, noting that while school districts have a very important interest in racially diverse schools, school districts may not use race to classify individual students.

Liu examined these cases through the lens of Plessy. Justice Harlan’s lonely and famous dissent includes the often-quoted line “our constitution is colorblind and neither knows nor tolerates classes among its citizens.” However, Harlan wrote this sentence as only part of a broader paragraph and, Liu suggested, without context it has lost its intended meaning. In fact, Harlan’s words indicated a belief that the constitution does not permit a system of “racial caste” and that the 14^th amendment guarantees membership in American society.

The Plessy majority denied the social facts of the effects of segregation, claiming that if minorities felt slighted by “separate but equal,” it was a choice that they made, not something inherent in the doctrine. Roberts also denies social facts when he equates the white Louisville children denied the opportunity to attend their first choice school to the African American children of Brown. Liu noted that in detaching his reasoning from social meaning, Roberts has arrived at an interpretation of Brown that no members of the Brown Court would have accepted.

Professor Liu remarked that he was not surprised by the Court’s recent decision, due in part to the Court’s current membership but also due to the Court's history of failing to advance civil rights. Indeed, Liu argued, Congress has usually led this charge, with the Court often signing on after the fact. It is not that the Court has been unimportant to civil rights, Liu contended, but that Congress has traditionally led the way and that as a result most civil rights’ victories have had a basis in a majoritatarian process, which provides an authority the Court never could.

Liu used these lessons of history to argue for a specific model of civil rights advocacy which emphasizes not simply getting cases to the Supreme Court, but allowing issues to “percolate” through the legislature such that when they reach the Court, the Court need not lead so much as follow. Specifically for school district diversity, Liu suggested an approach in which Congress incentivizes intra-district diversity through requirements on federal funds.