Published on April 26, 2011 | by LawNews
Prof. James Sample’s Op-ed Generates Widespread Internet Conversation
In response to the article’s proposal to impose limits on spending in judicial races, Peter Hardin of Gavel Grab wrote that Sample and co-author Erwin Chemerinsky, dean of the Irvine Law School at the University of California, “lay out a case for incremental rather than sweeping reform.”
Frank Pasquale of Concurring Opinions refers to the article as a “compelling proposal” that “expertly highlight[s] a conflict between First and Fifth Amendment rights.”
Cornell Professor Michael Dorf also featured Sample’s piece on his blog, Dorf on Law, offering a “friendly amendment” to the proposal. Dorf explained, “If I were a lower court judge, I would probably agree with Chemerinsky and Sample. But I am not especially confident that five Justices of the Supreme Court would see it the same way.” He suggested urging state legislatures that are considering enacting the Sample/Chemerinsky proposal to include a fallback provision in which “any judge whose judicial election campaign was aided by any person or entity that made contributions or independent expenditures in excess of the foregoing limits shall be recused from sitting on any case involving the interests of that person or entity for a period of X years.”
Carrie Severino presented a critical review of the piece on The National Review Online in her article, “Justice Kennedy Gets It Right.” She compared Sample’s piece to an excerpt from Justice Kennedy’s concurrence in Minnesota v. White and argued, “The answer is not to attack the peoples’ voice in the judicial-selection process, but to elect or appoint judges who will enforce the rights that are in the Constitution and refuse to invent rights that aren’t there.”
The Harvard Civil Rights-Civil Liberties Law Review, a publication of Harvard Law School, also listed the article as a Featured News Brief and summarized the piece on their website, as did Common Cause blog and the American Constitution Society blog. Sample’s piece was also included in a discussion between Dahlia Lithwick ofSlate and Professor Ann Althouse of University of Wisconsin School of Law on Bloggingheads.tv.
Sample’s full article, “Democracy at the Corner of First and Fourteenth: Judicial Campaign Spending and Equality,” may be found on SSRN.