Constitutional Law
Constitutional Law Prof Blog 
News, analysis, and commentary on constitutional law issues in the courts, the administration, Congress, and the states; and commentary and analysis on constitutional law scholarship.
Post Frequency: 1.3/day Last Entry: November 19, 2009 at 19:52:01 Recent Entries: 423
By Steven D. Schwinn, Ruthann Robson, Nareissa L. Smith
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Seventh Circuit Rules on Gun Case
Posted on November 19, 2009The Seventh Circuit, which spawned McDonald v. City of Chicago, the Second Amendment incorporation case now before the Supreme Court, ruled yesterday that the federal government failed to sufficiently justify its ban on firearms for domestic violence convicts under the...
Same-sex marriage updates: New York and Texas
Posted on November 19, 2009New York's highest court today (download here) affirmed the rejection of a taxpayer challenger to directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits...
Sheldon Whitehouse Lecture in NYC
Posted on November 19, 2009"Living Up To Our Constitution" is the title of a lecture to be given by United States Senator (D-RI) on Friday, November 20 at 5:30 pm, sponsored by the Brennan Center at NYU. As a member of the Senate Judiciary...
Dred Scott & Harriet Scott Plaque next to Taney Statute
Posted on November 18, 2009Justice Roger Taney, a Supreme Court Justice, lived in Frederick, Maryland and practiced law there. Thus, it is not surprising that the town of Frederick would have a monument to Taney. It is also not surprising that not everyone would...
Latina: the Magazine and the Justice
Posted on November 17, 2009On newstands today is the new issue of Latina, the magazine, with a cover portrait of Justice Sonia Sotomayor. Portions of the accompanying article, written by Sandra Guzman, a former Editor-in-Chief of Latina, are available on the magazine's website here...
Googling Constitutional Law
Posted on November 17, 2009Google's newest enhancement has the potential to change the way we research constitutional law. Here's an announcement from the "Official Google Blog" Starting today, we're enabling people everywhere to find and read full text legal opinions from U.S...
Right to Bear Arms is a Privilege or Immunity, McDonald Argues
Posted on November 16, 2009Petitioners in McDonald v. City of Chicago, the Second Amendment case now before the Supreme Court, filed their merits brief today and argued full force that the individual right to bear arms is protected against state interference by the Fourteenth....
Taking Private Property for Private Abandonment?: An Update on Kelo
Posted on November 14, 2009The "takings clause" of the Fifth Amendment provides "nor shall private property be taken for public use without just compensation.? Much of the constitutional controversy has revolved around "taking," especially when the "taking" is through regulation rather than physical appropriation...
Privileges or Immunities Clause Pedgagogy: Robson's Saturday Evening Review
Posted on November 14, 2009Teaching the Fourteenth Amendment?s Privileges or Immunities Clause in a Constitutional Law course has long been a challenging endeavor. For many years, the doctrine started and ended with The Slaughter-House Cases, 83 U.S. 36 (1872), in which a professor?s role...
Government to Try Five Guantanamo Detainees in Federal Court
Posted on November 13, 2009Attorney General Eric Holder announced today that the government will transfer ten Guantanamo detainees to the U.S. for trial. The government will try five Guantanamo detainees in the regular federal courts for their roles in the 9/11 attacks, and five...
Cato, Barnett Weigh in on Extended Civil Commitment of "Sexually Dangerous" Persons
Posted on November 12, 2009The Cato Institute and Professor Randy Barnett (Georgetown) filed an amicus brief in U.S. v. Comstock, the case involving Title III of the Adam Walsh Child Protection Act, 18 U.S.C. Sec. 4248, which authorizes the Attorney General to place in...
Civil Rights in the Obama Era: Conference
Posted on November 11, 2009The relationships between civil rights and constitutionalism will be explored this Friday, November 13, in a day long conference at Valparaiso University School of Law organized by Professor Penelope Andrews. Professor Frank I. Michelman, Harvard Law School, will kick-off the...
A Constitutional Play at the AALS Annual Meeting
Posted on November 10, 2009Actor, playwright, and Con Law Prof Paul Baier (LSU) has organized a preview production of his new play, "Father Chief Justice": Edward Douglass White and the Constitution during the AALS Annual Meeting in January. Con Law Profs attending the Annual....
Is an Individual Health Insurance Mandate Constitutional?
Posted on November 10, 2009Dean Erwin Chemerinsky (Irvine) and David B. Rivkin (Baker & Hostetler) are debating the constitutionality of an individual health insurance mandate as part of the federal healthcare overhaul in the Federalist Society Online Debate Series. The issue--whether Congress has authority...
French and American Constitutionalism: Panel Discussion
Posted on November 06, 2009On November 11, 2009, at 6pm, in New York City, Cardozo School of Law is sponsoring a discussion comparing how the United States and France cope with globalization and internationalization of law. The discussion is sponsored by Carozo's Floersheimer Center...
Racial and Economic Integration of K-12 Schools: Conference
Posted on November 04, 2009Reaffirming the Role of School Integration in K-12 Public Education Policy: A Conversation Among Policymakers, Advocates and Educators is the title of a conference to be held at Howard University School of Law Washington, D.C. on Friday, November 13, 2009...
Health Care Constitutionality Revisited
Posted on November 02, 2009Recently, this blog discussed an article considering the constitutionality of the current health care proposals. More developments have occurred since that writing. As promised, here is an update. In a column for politico.com, Erwin Chemerinsky, noted Con Law scholar and...
Who is Lady Brenda Hale?
Posted on November 02, 2009"A home maker as well as a judge, she thoroughly enjoyed helping the artists and architects create a new home for The Supreme Court." The Supreme Court in question is the new Supreme Court of the United Kingdom. Brenda Hale,...
Justice Scalia, Realism, and Life in the 21st Century
Posted on October 31, 2009Earlier this week, Justice Scalia and Justice Breyer debated methods of constututional interpretation before an audience in Tuscon, Arizona. During the event, Justice Scalia accused some of his colleagues of "making up rights." Justice Breyer, for his part, said that...
Translating Equality
Posted on October 30, 2009Third Annual Distinguished Conversation at CUNY School of Law TRANSLATING EQUALITY: LANGUAGE, LAW & POETRY A conversation between Professors Jenny Rivera & Kimiko Hahn Moderated by Professor Ruthann Robson Friday, November 6, 2009 at 11 am City University of New...
Full Ninth Circuit to Review Jeppesen, State Secrets ruling
Posted on October 28, 2009A majority of participating judges on the Ninth Circuit voted yesterday to grant en banc review to Mohamed v. Jeppesen Dataplan, the three-judge panel ruling that rejected the Bush and Obama administrations' state secrets claim. Six judges, including Judge Bybee,...
Amicus Metzger Talks About Free Enterprise Fund
Posted on October 27, 2009I spoke yesterday with Professor Gillian Metzger (Columbia) about her amicus brief in Free Enterprise Fund v. Public Co. Accounting Oversight Board, the case challenging Sarbanes-Oxley's new PCAOB, a body within the SEC, on Appointments Clause and separation of powers...
Metzger on Internal and External Separation of Powers
Posted on October 26, 2009Professor Gillian Metzger (Columbia) recently posted her thoughtful piece, The Interdependent Relationship Between Internal and External Separation of Powers, on SSRN. The article explores the relationships between internal and external checks on the executive and starts an important conversation on...
Reproductive Rights Roundup
Posted on October 24, 2009There are a number of reproductive rights issues in the news this week. Here is a summary of the relevant stories. ARIZONA The ACLU is once again battling Joe Arpaio, the Sheriff of Maricopa County, Arizona, in court. Previous litigation...
More listening and more diversity needed on SCOTUS, says Justice Thomas
Posted on October 24, 2009Justice Clarence Thomas, in a talk at the University of Alabama School of Law, yesterday reportedly said that the Justices already know where they stand before oral argument, and asked, "So why do you beat up on people if you...
Interracial Marriages as Children's Rights: Robson's Saturday Evening Review
Posted on October 24, 2009There was startling news last week of a Louisiana justice of the peace who said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. As one of my...
Hot Off the Presses
Posted on October 24, 2009Hello. This installment of Hot off the Presses will consider two articles that explore different facets of the same problem - racial intergration of our public schools. 1. A New Strategy for Pursuing Racial and Ethnic Equality in Public Schools...
Of Marriage, Monopolies, and Federalism
Posted on October 23, 2009Do the states have a marriage monopoly? That's the intriguing question posed by Adam Candeub and Mae Kuykendall, of Michigan State University College of Law, in their new article, E-Marriage: Breaking the Marriage Monopoly. They argue: States inadvertently have created...
Habeas, Indefinite Detention, and the Uighurs Head to the Court
Posted on October 22, 2009The Supreme Court this week granted cert. in Kiyemba v. Obama, the habeas case of the Uighurs, the Chinese Muslims held now for over eight years at Guantanamo Bay. Some background: Judge Urbina (D.D.C.) ruled last October on the Uighur's...
English Only Consumer Protection Defeated
Posted on October 22, 2009The proposed Consumer Financial Protection Agency Act of 2009, HR 3126, would establish the Consumer Financial Protection Agency as an independent executive agency to regulate the provision of consumer financial products or services. The bill was approved by the House...
ABA President Calls for Civil Gideon
Posted on October 22, 2009ABA President Carolyn Lamm called for a constitutional right to counsel in civil cases involving basic human needs, a "Civil Gideon," in the President's Message in the October 2009 ABA Journal. Lamm argues that Civil Gideon is a part of...
Torture and Academic Freedom
Posted on October 21, 2009The controversy over John Yoo's professorship at UC-Berkeley School of Law (Boalt Hall) continues. The PBS News Hour aired a segment yesterday, available as mp3 audio, streaming video and transcript here. RR
Joan Biskupic on Stevens and Questioning Styles
Posted on October 20, 2009USA Today's article on Justice Stevens reports he is keeping his retirement cards "close to his robes," although at age 89 it is "no secret" he might leave the Court. The piece by Joan Biskupic is based on a 75...
American Constitution Society Symposium on National Security and Human Rights
Posted on October 20, 2009The American Constitution Society last week hosted an outstanding half-day symposium titled National Security & Human Rights: Progress, Problems and Possibilities. The link contains video and audio of the event. Here's the description: As the 5th anniversary of the Military...
U. Akron Law Celebrates Fourteenth Amendment's 140th
Posted on October 19, 2009The University of Akron and The Akron Law Review put together an impressive and diverse group of scholars last year to celebrate the 140th anniversary of the Fourteenth Amendment. A good number of the papers touch on incorporation and the...
Medical Marijuana
Posted on October 19, 2009The Department of Justice has announced a new policy regarding federal prosecutions of the use of marijuana permitted under state law for medical reasons. In a memo released today to federal prosecutors, David W. Ogden, Deputy Attorney General, states: The...
The Federalist Society Annual Convention
Posted on October 19, 2009The Federalist Society's National Lawyers Convention is scheduled for Thursday, November 12 through Saturday, November 14, 2009 at the Mayflower Hotel, with its theme of "The Federal Government's Economic Role in our Constitutional System." Speakers include Justice Samuel Alito (dinner...
Plessy, Brown, Barbara Ehrenreich & "Positive Thinking": Robson's Saturday Evening Review
Posted on October 17, 2009Be positive! How many times have you heard that recently? How many times have you said that? Or if you haven't heard it or said it explicitly, how many times has that been the implicit message? In formal meetings and...
NY Tolls and the Dormant Commerce Clause
Posted on October 16, 2009Today, the Second Circuit published a case considering the Dormant Commerce Clause, both Privileges and Immunities clauses, and the prudential standing doctrine. In short, the facts are that New York charges a toll of 75 cents to cross the Grand...
William O. Douglas
Posted on October 16, 2009Born October 16, 1898, William O. Douglas served on the United States Supreme Court from 1939 until 1975 as its longest - and arguably its most controversial - - - Justice. A fairly balanced view of the Justice can be...
House Votes to Allow U.S. Trial of Guantanamo Detainees
Posted on October 16, 2009The House of Representatives voted today to allow detainees at Guantanamo Bay to be tried in the United States. The bill, H.R. 2892, the Department of Homeland Security appropriation bill, Section 552, requires the Department to conduct a threat assessment...
Due Process and Seizure of Property Related to Drug Crimes
Posted on October 13, 2009The Supreme Court will hear arguments tomorrow in Alvarez v. Smith, a case involving competing due process tests when law enforcement seize property related to crimes. At issue is the Illinois Drug Asset Forfeiture Procedure Act ("DAFPA"), which authorizes local...
100 Civil Liberties Sites
Posted on October 13, 2009Here's a new list of web-sites related to constitutional law: 100 Sites Every Civil Liberties Advocate Should Have Bookmarked. (Thanks to Adrienne Carlson for forwarding.) Many of these will be familiar; others may be new to you. It's a good...
Judicial Elections Revisited Once More
Posted on October 12, 2009Judicial elections seem to be the hot topic of the moment. The Blog of Legal Times reports that a panel at last weekend's meeting of the American Academy of Appellate Lawyers discussed the topic in depth. The speakers quoted in...
Schwarzenegger Signs Equal Access to Justice Bill
Posted on October 12, 2009California Governor Arnold Schwarzenegger early today signed AB 590, the California Assembly bill directing court fees and fines to services designed to promote and enhance access to the judiciary and to a pilot project to appoint legal counsel to low-income...
D.C. Circuit: Judicial Watch Has Standing to Sue Commerce Over NACC
Posted on October 12, 2009The D.C. Circuit ruled on Friday that Judicial Watch has standing to sue the U.S. Department of Commerce for declaratory and injunctive relief for alleged violations of the Federal Advisory Committee Act ("FACA") by the North American Competitiveness Council ("NACC")...
The Constitutional "Gay Agenda": Robson's Saturday Evening Review
Posted on October 10, 2009The Matthew Shepard Hate Crimes Act, ENDA, the repeal of "Don't Ask, Don't Tell" in the military, same-sex marriage and DOMA - - - these are often considered the "gay agenda." Indeed, President Obama's anticipated speech tonight at a Human...
Matthew Shepard Act Passes House of Representatives
Posted on October 10, 2009The House of Representatives passed the Matthew Shepard Hate Crimes Prevention Act, as part of the National Defense Authorization Act of 2010. The Act, named for Matthew Shepard (pictured below), would authorize federal assistance to states and localities in prosecuting...
Hot Off the Presses
Posted on October 09, 2009This was intended to be a bi-weekly feature, but the ravages of the illness have caused a delay in publication. However, the feature (and its author) are now healthy and ready to go. So, without further adieu, here is this...
Supreme Court on C-Span
Posted on October 09, 2009C-Span this week is posting a series of TV programs on the Supreme Court on its web-site. Blog readers may be particularly interested in Thursday's program on Attorneys Who Have Argued Before the Court, including interviews with Drew Days III,...
Oklahoma Abortion statute - and state con law challenge
Posted on October 08, 2009A new Oklahoma statute regulating abortion, formerly OK HB 1595, goes into effect November 1 The law requires publication of an "Annual Abortion Report" and forces doctors to give details about their patients under threat of criminal sanctions and loss...
Gender Equality?
Posted on October 08, 2009The gender of judging implicates constitutional as well as "rule of law" concerns. A new article, Judging Women, posted on ssrn has been garnering attention. The study comparing male and female judges provides an empirical perspective: "Primarily using a dataset...
Do White House Czars Violate the Appointments Clause?
Posted on October 07, 2009The Senate Judiciary Committee Subcommittee on the Constitution yesterday held its hearing on the constitutionality of White House "czars"--an issue that has gained increased popular attention since Glenn Beck published his "List of Obama's Czars" in August...
The Civil Right to Counsel in Foreclosures, Termination of Parental Rights
Posted on October 07, 2009The Brennan Center for Justice (NYU) today issued an outstanding report on the lack of legal representation for those facing foreclosures. (I previously posted on this issue here.) The report, titled Foreclosures: A Crisis in Legal Representation, offers a sobering...
Judicial Nominations for the Federal Courts
Posted on October 06, 2009From a White House Press Release: Today, President Obama nominated Judge Denny Chin for a seat on the United States Court of Appeals for the Second Circuit and Judge O. Rogeriee Thompson for a seat on the United States Court...
Don't Ask, Don't Tell - Updates
Posted on October 06, 2009The Military's "homosexual ban" is resurfacing as an issue these past few days. We've previously blogged about it here and here. Last week's Saturday Night Live skit noting that Obama has failed to deliver repealing "don't ask, don't tell," DADT...
In case you missed it . . . Summer Edition Part 1
Posted on July 09, 2009Hello dear profs! This has been quite a busy summer. Here a a few stories you might have missed while teaching, vacationing, or working on your scholarship. I present these in no particular order: 1. Pre-emption - Recently, the Third...
New York state's constitution and the newly appointed Lieutenant-Governor
Posted on July 08, 2009New York?s Governor David Paterson - - - who was once the Lieutenant-Governor under New York?s Governor Eliot Spitzer before Spitzer?s scandal-induced resignation in March 2008- - - appointed Richard Ravitch as Lieutenant-Governor today. Paterson?s timing is prompted by the...
Want to Attend the Sotomayor Confirmation Hearings?
Posted on July 06, 2009The Senate Judiciary Committee has posted guidelines for members of the media and the public who would like to attend the Confirmation Hearings. Guidelines For Public Attendance At The Nomination Hearing Of Sonia Sotomayor To Be An Associate Justice Of...
Dehli High Court Invalidates India's Sodomy Law: Analysis
Posted on July 02, 2009Section 377 of the India Penal Code criminalizing sodomy has been declared unconstitutional by the Dehli High Court. In a lengthy 105 page opinion, available as download here, authored by Chief Justice Muralidhar, the Court reasoned that the "underlying theme...
Ohio Supreme Court Abortion ruling
Posted on July 02, 2009Yesterday, the Ohio Supreme Court ruled in an interesting case - Roe v. Planned Parenthood of Southwest Ohio. The facts of this most intriguing case are these: Thirteen year-old Jane Roe and her 21-year old soccer ccoach John Haller began...
Franken is Minnesota's US Senator: The Minnesota Supreme Court distinguishes Bush v. Gore
Posted on June 30, 2009The Minnesota Supreme Court has issued its decision regarding the Franken-Coleman election (from November 2008). With Coleman's concession, this ends the saga; Al Franken will be seated, giving the Democratic party a 60 person "super" majority. The 32 page per...
Ricci Firefighters Race Discrimination Case: Preliminary Analysis
Posted on June 29, 2009In a 5-4 decision, with the Court's opinion authored by Kennedy, the majority concludes that the city of New Haven violated Title VII, reversing the Second Circuit. Weighing in at 93 pages, the opinion is available as pdf here. Here...
Kennedy remained the "swing" vote in the 2008-2009 Term
Posted on June 29, 2009Kennedy's reputation as the "swing vote" on the United States Supreme Court is substantiated by his performance during the Term that concluded today. According to the wonderfully informative "Super Stat Pack" by ScotusBlog, available here, Kennedy was in the majority...
Report concludes Sotomayor's opinions lack strong ideological bent
Posted on June 28, 2009The Congressional Research Service- a non-partisan body providing research services to both parties and both houses of Congress - released a 59-page report (available here) on Judge Sonia Sotomayor's judicial rulings, ideology, and methodolgy. First, the study attempted to discern...
"Preventative Detention Model Act": Framework for Obama?
Posted on June 28, 2009The likelihood of an Executive Order on "indefinite detention" is being widely discussed. For example, the Washington Post reported yesterday: Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay,...
Comparative Constitutional Law & Literature: Robson's Saturday Evening Review
Posted on June 28, 2009"What is a Constitutional Epic?" Penelope Pether asks in her piece Comparative Constitutional Epics, 21 Law & Literature 16 (2009) and available on ssrn here. Pether (pictured below) is one of the leading lights of the discipline loosely known as...
Judge Sotomayor as a Change Agent on the Court?
Posted on June 25, 2009Shortly after Justice Souter announced his retirement, I opined that if President Obama wanted to change the Court quickly, he should "find a nominee . . . that not only shares Obama's legal views and philosophy, but can also convice...
Can the Government Hold "Sexually Dangerous" Persons Beyond Their Prison Term?
Posted on June 24, 2009The Supreme Court on Monday agreed to hear the government's appeal of a Fourth Circuit decision earlier this year that held that the government lacks authority to hold a "sexually dangerous" person beyond their prison term. The Fourth Circuit case,...
Fourth Circuit Upholds Virginia "partial-birth" abortion ban
Posted on June 24, 2009In an en banc decision, the Fourth Circuit vacates its earlier panel decision and a district court decision concluding the Virginia state law was unconstitutional. In Richmond Medical Center for Women [and Dr. William Fitzhigh] v. Herring, decided today, full...
Supreme Court on Voting Rights Act - Northwest Utilities v. Holder: ANALYIS
Posted on June 22, 2009The United States Supreme Court has decided Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, opinion as pdf here reversing the district judge. However, the Court, in a 8-1 opinion authored by CJ Roberts does not hold...
Osborne's Deference to the States
Posted on June 20, 2009The Supreme Court ruled this week in DA's Office v. Osborne that a state prisoner has no Fourteenth Amendment Due Process right to access the state's evidence for DNA testing, even where all the parties agree that the testing could...
Specter on Judicial Scrutiny of Congressional Fact-Finding (and VRA Reauthorization)
Posted on June 19, 2009Senator Arlen Specter wrote this week to Judge Sonia Sotomayor to get her views on judicial scrutiny of Congressional fact-finding. The letter suggests that Specter thinks the Court's increasing scrutiny in cases like U.S. v. Morrison (ruling that Congress exceeded...
Government Seeks Review of Ninth Circuit's State Secrets Ruling
Posted on June 16, 2009The government filed a petition for reconsideration or rehearing en banc of the Ninth Circuit panel's decision in Mohamed v. Jeppesen Dataplan, Inc., the case against a private company for its alleged role in the CIA's extraordinary rendition program...
New York state constitutional crisis?
Posted on June 16, 2009New York's state constitutional crisis is not about Long Island seceding (see below), but about a Legislative logjam. As the NYT reported yesterday, "A week after Republicans wrested power in the State Senate away from Democrats, their thin majority collapsed...
Secession of Long Island Redux
Posted on June 16, 2009Could Long Island actually secede from New York? Our previous post from May 14 is here. It seems the Daily Show has caught up with us. The segment from last night's show (in that typically offensive style) is here: The...
Sotomayor, Ricci, and Affirmative Action ? Part II ? Standing to Speak
Posted on June 15, 2009As noted in Part I of this post, of all Judge Sonia Sotomayor's legal decisions, the Ricci case has garnered the lion's share of the media and academic attention. Part I of this post considered the opportunities presented by a...
DC rejects referendum on recognition of same-sex marriages
Posted on June 15, 2009The DC Board of Elections and Ethics ruled today that it will not allow a voter referendum reconsidering DC's stance on same-sex marriages. As the Board's 12 page opinion (available as download here) explained, the referendum seeks to suspend section...
CFP: Comparative Constitutionalism & National Security
Posted on June 15, 2009Pace International Law Review 2009-2010 Symposium Call for Submissions Pace International Law Review is planning a symposium entitled Comparative Constitutional Law: National Security Across the Globe to be held in November of 2009. The day-long symposium will feature multiple panelists...
Relevance of the United States Supreme Court: limited to nip and tuck?
Posted on June 15, 2009How important is the United States Supreme Court? Democracy: A Journal of Ideas has an interesting review by Eric Lane and Aziz Huq (available here, free subscription required), in which they ultimately conclude that the Court will nip and tuck,...
The Constitutionality of State and Local Laws Targeting Immigrants: Saturday Evening Review
Posted on June 13, 2009What power do state and local governments have to regulate or enforce laws relating to immigration? This question is a recurring one, even as the federal government attempts immigration reform. In her new article, The Constitutionality of State and Local...
Padilla v. Yoo - Judge denies motion to dismiss "torture memos" case
Posted on June 13, 2009Federal Judge Jeffery White in San Francisco has substantially denied the motion to dismiss the civil complaint filed by Jose Padilla against John Yoo, formerly of the DOJ, now on leave from UC-Berkeley (Boalt Hall). In a 42 page opinion...
Secretary of State Clinton is Constitutional, says OLC
Posted on June 12, 2009The Office of Legal Counsel opined in a little noticed (even non-noticed?) memo on May 20, 2009, that legislation designed to roll back a salary increase for an executive office can ensure compliance with the Emoluments Clause (or the Ineligibility...
DOJ Defends DOMA
Posted on June 12, 2009The Obama Administration has filed its Motion to Dismiss a challenge to DOMA in the US District Court for the Central District of California. Despite the possibility that Obama would leave DOMA undefended from various challenges (last discussed here), the...
Obama's Moves on Guantanamo
Posted on June 10, 2009The Obama administration made two significant moves in the last few days that signal its seriousness about closing Guantanamo and finding alternative ways--other than military tribunals--to deal with remaining detainees. The moves come less than a month after President Obama...
Sotomayor, Ricci, and Affirmative Action ? Part I ? Let the Dialogue Begin
Posted on June 10, 2009Now that the news frenzy surrounding the Sotomayor nomination has started to settle, the trends in the storylines are easy to follow. One of the recurrent issues is the Ricci case. There is much to say on this topic, so...
Another Cert. Petition Urging Second Amendment Application to States
Posted on June 09, 2009Individual plaintiffs, the Second Amendment Foundation, and the Illinois State Rifle Association filed a petition today asking the Supreme Court to reverse last week's Seventh Circuit ruling and apply the Second Amendment individual right to bear arms to the states...
Sotomayor Senate Hearings - July 13
Posted on June 09, 2009"The Senate Judiciary Committee has set a date for the start of nomination hearings on Judge Sonia Sotomayor to be associate justice of the Supreme Court: July 13." So reports the Washington Post here. Other outlets are reporting the same...
Wydra and Gans on Privileges and Immunities, Incorporation, Second Amendment
Posted on June 08, 2009I spoke this afternoon with Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, and David Gans, Director of the Constitutional Accountability Center's Human Rights, Civil Rights, and Citizenship Program, about their work on the Fourteenth Amendment Privileges or Immunities...
Court denies cert. petition on "Don't Ask, Don't Tell" Military Policy
Posted on June 08, 2009The United States Supreme Court issued its order today denying the petition for a writ of certiorari in PIETRANGELO, JAMES E. V. GATES, SEC. OF DEFENSE, ET AL., Case No. 08-824 (at page 6 of Order) which challenged the "don't...
Due Process Requires Judicial Recusal: Caperton v. Massey Coal Analysis
Posted on June 08, 2009The United States Supreme Court, in a 5-4 opinion issued today, has held that "in all the circumstances of this case, due process requires recusal." The case involves Justice Brent Benjamin, now the Chief Justice of the West Virginia Supreme...
Sotomayor Resources through Library of Congress
Posted on June 06, 2009The Library of Congress has a great resource on Sotomayor with great links here. RR (with thanks to Bridget Crawford at Feminist Law Professors).
Constitutional Challenges as Facial or As-Applied: Robson's Saturday Evening Review
Posted on June 06, 2009The Roberts Court has been less than favorable to facial challenges to statutes' constitutionality, preferring the more limited approach of an as-applied challenge to statutes' constitutionality. On this, both Luke Meier and Caitlin Borgmann agree. And both consider the Roberts...
Supreme Court Justice Ideological Profiles
Posted on June 05, 2009Calculating ideologies is an occupation (some might say an occupational hazard) of political scientists. According to well known political scientists Andrew Martin and Kevin Quinn, on their website here, Measuring the relative location of U.S. Supreme Court justices on an...
Equal Protection Issue in NH Same-Sex Marriage Bill
Posted on June 05, 2009Professor Tony Infanti over at Feminist Law Professors blog has noted that the new New Hampshire same-sex marriage bill signed into law this week does have a constitutional issue other than DOMA-type problems, which we discussed here. The new law...
Spending Clause, Unconstitutional Conditions, and Women's Health
Posted on June 05, 2009What will health care reform mean for women? If spending clause jurisprudence remains the same, the net result might be (further) infringement on women's constitutional rights. Nicole Huberfeld, a scholar and conlawprof who teaches and writes in both constitutional law...
DOMA is unconstitutional says Larry Tribe
Posted on June 05, 2009Quoting Larry Tribe, Con Law Prof, Huffington Post reports that Tribe has stated: "I certainly agree (a) that Section 3 of DOMA is unconstitutional, at least as applied to couples like those who are currently challenging it in federal court...
Judge Richard Arnold Biography
Posted on June 05, 2009Polly Price's biography of Judge Richard Arnold of the Eighth Circuit Court of Appeals (1980 - 2004) has just been published, introduction available on ssrn. Price describes her book's subject thusly: "As a college student in the 1950s, Arnold had...
Sotomayor's Responses to Senate Judiciary Committee Questionaire
Posted on June 04, 2009Sotomayor's answers to the "Questionnaire for Judicial Nominees" is available on the United States Senate Committee on the Judiciary here. It's 173 pages, not including the numerous appendices. It provides a wealth of information for Sotomayor researchers...
Warrantless Wiretapping Case Dismissed, Appeal Planned
Posted on June 04, 2009Judge Vaughn R. Walker (N.D. Cal.) yesterday dismissed the plaintiffs' claims in the consolidated cases against telecommunication providers for cooperating in the Bush administration's warrantless wiretapping program based on a section of the FISA Amendments Act of 2008 that grants...
NH same-sex marriage becomes law
Posted on June 03, 2009New Hamphsire Governor John Lynch has just signed a bill into law allowing same-sex marriage in the state. The article from the NH Union-Leader has links to the language of the bills. As a legislative act, there are no obvious...
Sotomayor Resource
Posted on June 03, 2009Those doing research might find a new website advocating for Sotomayor helpful: http://sotomayorforjustice.com. RR
District Court Rejects Blanket Protection of Detainees' Returns
Posted on June 02, 2009Judge Thomas Hogan (D.D.C.) today denied the government's motion for blanket protection of the factual returns in dozens of Guantanamo detainees' habeas cases. The returns state the government's basis for detention. The court previously implemented a protective order governing unclassified...
Obama on LGBT Pride Month - Proclamation
Posted on June 02, 2009Obama issued a Proclamation for Lesbian, Gay, Bisexual and Transgender "pride month," which occurs in June to commemorate the Stonewall uprising in New York City on June 27, 1969. The proclamation's most specific portion states: My Administration has partnered with...
Second Amendment Not Applicable to States, Seventh Circuit Rules
Posted on June 02, 2009A three-judge panel of the Seventh Circuit ruled today that the Second Amendment does not apply to the states and therefore does not restrict state and local governments from enacting gun-control laws. The ruling addresses the central question left open...
Dignity, Freedom and South African Constitutional Justice Ackerman: Robson's Saturday Evening Review
Posted on May 30, 2009Dignity, Freedom, and the Post-Apartheid Legal Order is a critical volume as well as a tribute to the constitutional jurisprudence of Justice Laurie Ackermann, (pictured below) now retired from the Constitutional Court of South Africa. Edited by AJ Barnard-Naude, Drucilla...
Justice Roberts Profile by Jeffrey Toobin
Posted on May 29, 2009Toobin's article on Chief Justice John Roberts in the New Yorker is worth a read, especially in light of current discussions about a person's background and judicial philosophy. Toobin writes that Roberts said ?Judges are like umpires,? during his confirmation...
Sotomayor is No Activist (by any Measure)
Posted on May 28, 2009My colleague Professor Corey Yung (JMLS) summarized some of his empirical research on judicial activism recently on the Sex Crimes Blog. His conclusion: By my measure, Judge Sotomayor is less activist than the average judge and does pretty well compared...
Sotomayor Nomination - Initial Reaction Round-up Part II - On the Issues
Posted on May 27, 2009This portion of the round-up will focus on what selected news outlets have reported about Judge Sonia Sotomayor's positions on various issues. Abortion Apparently, Judge Sotomayor has yet to rule in a domestic abortion case. However, she has ruled in...
Rivera on Sotomayor - the diversity factor
Posted on May 27, 2009Interviewed on PBS News Hour here, my colleague Jenny Rivera of CUNY School of Law had this to say about Sotomayer (for whom she clerked) in terms of background, judicial diversity, and decision-making: GWEN IFILL: Well, I want to pick...
California Supreme Court on Proposition 8: Analysis and New Litigation
Posted on May 27, 2009The California Supreme Court has issued its opinion in the three consolidated cases (Strauss v. Horton, S168047; Tyler v. State of California, S168066; City and County of San Francisco v. Horton, S168078) challenging the constitutionality of Proposition 8...
Court Rejects State's Limits on Federal Civil Rights Suits
Posted on May 27, 2009A sharply divided Supreme Court ruled yesterday that New York's efforts to limit prisoners' federal civil rights claims in New York state courts violated the Supremacy Clause. New York moved to restrict prisoner-rights claims in New York state courts under...
Obama to Nominate Sotomayor
Posted on May 26, 2009President Obama will nominate Judge Sonia Sotomayor (2d Cir.) to replace Justice Souter on the Supreme Court at a ceremony at 10:15 this morning at the White House, according to the NYT (and numerous others). SDS
Federalist Society on Counterterrorism and the Obama Administration
Posted on May 26, 2009The Federalist Society and the Heritage Foundation will co-host a program titled Counterterrorism and the Obama Administration on Thursday, 5/28, at the Capitol Visitor Center. (Register here.) From the program description: President Obama has decided to close Guantanamo and reassess...
Sotomayor Nomination - Initial Reaction Round-up, Part I
Posted on May 26, 2009As expected, the reaction to the nomination of Second Circuit Judge Sonia Sotomayor (correct pronunciation here) has been swift in coming. First, some facts. According to Orin Kerr at the VC, Judge Sotomayor is "the third Yale Law grad of...
Jawad, in Limbo at Guantanamo, Seeks Relief from Afghan Court
Posted on May 25, 2009Mohammed Jawad, detained at Guantanamo at age 12 or 18 (depending on whom you talk to), is stuck in limbo at Guantanamo until the Obama administration works out its new detention and trial policies for Guantanamo detainees. Jawad's attorneys, frustrated...
President Directs Agencies on Preemption
Posted on May 22, 2009President Obama this week issued a memorandum for agency heads that restores the federalism and preemption principles in Executive Order 13132 (August 10, 1999, "Federalism," Sec. 4, "Special Requirements for Preemption") and directs agencies to include statements of preemption in...
President Obama's Position on Detention Authority and Respect for the Courts
Posted on May 22, 2009President Obama in his national security speech yesterday identified five categories of detainees in the conflict against terrorists: those who can be tried in Article III courts for violations of U.S. law; those who can be tried in military commissions...
Pildes on Independent Agencies, the Unitary Executive, and Free Enterprise Fund
Posted on May 21, 2009I spoke this afternoon with Professor Rick Pildes (NYU) about Free Enterprise Fund v. Public Company Accounting Oversight Board, the D.C. Circuit case upholding the PCAOB against Appointment Clause and separation-of-powers challenges. The Supreme Court granted cert...
President Obama on National Security, the Rule of Law, and Tranparency in Government
Posted on May 21, 2009President Obama's speech today outlining his plans for Guantanamo Bay and detainees there reflects the sharp break that the Obama administration made from the Bush administration on inherent executive authority, the rule of law, and transparency in the conflict against...
Judge Bates: No Detention Based Merely On "Substantial Support"
Posted on May 20, 2009Judge John D. Bates (D.D.C.) ruled today that the government lacks authority to detain individuals in the global struggle against terrorism based merely upon their "substantial support" of Taliban, al Qaida, or associated forces or merely upon their "direct support"...
The President's Appointment Power, Separation of Powers, and the Unitary Executive
Posted on May 20, 2009The Supreme Court on Monday granted cert. in Free Enterprise Fund v. Public Co. Accounting Oversight Board, the D.C. Circuit case upholding (2-1 and 5-4 against en banc review) that portion of the Sarbanes-Oxley Act that created an independent Board,...
Court Rejects Ex-Detainee's Suit Against Ashcroft and Mueller
Posted on May 18, 2009A split (5-4) Supreme Court ruled today in Ashcroft v. Iqbal that allegations in an ex-detainee's complaint against former AG Ashcroft and FBI Director Mueller for constitutional torts while in custody after 9/11 were too conclusory to withstand a motion...
The State Sovereignty Movement
Posted on May 16, 2009A number of states have taken up measures to "assert their sovereignty" under the Tenth Amendment, reports USAToday. The Tenth Amendment Center tracks developments in the movement here. The state sovereignty movement speaks with many voices. At its modest, the...
Senate Judiciary Committee Hearing on Torture and OLC
Posted on May 14, 2009Former State Department Counselor Philip Zelikow testified yesterday before the Subcommittee on Administrative Oversight and the Courts of the Senate Judiciary Committee in its hearing, What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration? Zelikow...
Secession? Long Island, the Conch Republic, Texas, Vermont and Beyond
Posted on May 14, 2009Secession is akin to divorce; it indicates that any existing constitutional frameworks are deemed insufficient - - - at least by one party - - - to solve the discord. When secession-talk surfaces, it might be blustery, sardonic, or serious....
Torture Memo Dissenter Zelikow to Testify Before Senate Judiciary Committee
Posted on May 13, 2009Philip Zelikow, former State Department counselor and author of a memo dissenting from the OLC memos authorizing torture, will testify tomorrow before the Senate Judiciary Committee during its hearing, "What Went Wrong: Torture and the Office of Legal Counsel in...
What is an "Activist Judge" Anyway?
Posted on May 13, 2009The title of this post is the question posed by a new article in The Politico by Sidley Austin attorney and former Supreme Court clerk Keenan Kmiec. Shortly into the article, the author bemoans the way this term is used:...
Ninth Circuit Commerce Clause Case
Posted on May 12, 2009In the off-chance that you've not yet written your exam (or if you are looking for commerce clause fact patterns for next semester), a case issued by the Ninth Circuit - available here- may be exactly what you need. The...
Legalization of Marijuana: A Matter of Substantive Due Process?
Posted on May 11, 2009The San Francisco Chronicle editorialized about the California Governor's comments: With a rhetorical shoulder-shrug, Gov. Arnold Schwarzenegger said it's time to consider legalizing marijuana. His thoughts were the loose-fit variety: "I think it's time for a debate" and free of...
South African Constitutional Law, Polygamy, and Sexuality
Posted on May 09, 2009One of the very best volume on South African Constitutional Law remains The Post-Apartheid Constitutions edited by Penelope Andrews and Stephen Ellman, published in 2001. This anthology provides a study of the "processes of negotiation" of the constitutions as well...
Wydra on the Citizenship Clause and Birthright Citizenship of Children of Undocumented Aliens
Posted on May 08, 2009Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, just published Birthright Citizenship: A Constitutional Guarantee, an American Constitution Society Issue Brief, arguing that the text, history, original understanding and intent, principles, and precedent of the Fourteenth Amendment's Citizenship Clause...
Obama's Constitutional Law Exam and Feedback
Posted on May 08, 2009Interested in a Constitutional Law III examination and feedback from 1996? What about if the Professor was the now-President Barak Obama? The first question on the exam involves a lesbian seeking to obtain IVF despite a law that the "state...
Ninth Circuit Case on Eleventh Amendment & Section 5 (Fourteenth Amendment)
Posted on May 07, 2009Great discussion over at Workplace Prof Blog here on the Ninth Circuit's en banc opinion Alaska v. EEOC. Perhaps this would set the stage for SCOTUS to clarify Eleventh Amendment doctrine, as we just discussed here, in the context of...
Constitutional Interpretation, Literary Interpretation, and "torture memos"
Posted on May 06, 2009In a provocative essay in the Chronicle of Higher Education [subscription required to view], Peter Brooks, the distinguished literary scholar now at Princeton, writes: Literary scholars can be, and are, faulted for their interpretations, which may in any case never...
Lesbian (Gay) Supreme Court Nominee Possibility
Posted on May 05, 2009?To start with, we need a lesbian on the Supreme Court.? Or so I once said, in an interview: ?It was the summer of 1992, the last summer of the Reagan-Bush regime, although the demise of that era was far...
Michael McConnell Resigns Tenth Circuit to Return to Academia
Posted on May 05, 2009According to both Wall Street Journal Blog and Wikipedia(!), Michael McConnell is resigning his seat on the Tenth Circuit to direct the Stanford Constitutional Law Center. at Stanford Law School. Appointed to the Circuit by George W Bush is 2002,...
Justice Marshall - Practical Feminist?
Posted on May 05, 2009The Legal History Blog has a reference to a new article by Maryland Professor Taunya Lovell Banks which examines the role of Justice Thurgood Marshall in advancing women's rights while on the Court. Professor Banks compares his voting record on...
Liu, Karlan, and Schroeder on Constitutional Interpretation
Posted on May 04, 2009Professors Goodwin Liu (Boalt Hall), Pamela Karlan (Stanford), and Christopher Schroeder (Duke) just published Keeping Faith with the Constitution, a bold challenge to originalism (in all its stripes), on the one hand, and to "living constitutionalism," on the other, and...
The Souter Vacancy and Justice Kennedy as the Key
Posted on May 04, 2009Last Thursday, I was prepared to blog a bit about this article - a piece from the WSJ law blog about Justice Kennedy. The article briefly mentioned Justice Kennedy's possible role in resolving the Northwest Austin voting rights case and...
Justice Souter's Legacy and the Eleventh Amendment: Saturday Evening Review
Posted on May 02, 2009Certainly there is - - - and will be - - - much to say about Justice David Souter and his legacy on the United States Supreme Court. One place to start is the book David Hackett Souter by Tinsley...
Executive Policy by Website: Do changes to whitehouse.gov matter? Don't Ask Don't Tell Changes and Changes Again
Posted on May 02, 2009According to a few progressive websites, whitehouse.gov has been undergoing some changes and these changes are being "tracked." For example, Pro Publica has introduced Change Tracker, which lists all additions, deletions, and changes to whitehouse.gov, available here...
Quick Hit - Quotes from President Obama on the Criteria for SCOTUS Justices
Posted on May 01, 2009Here, from the Washington Post. NLS
Breaking - What President Obama wants in a Justice
Posted on May 01, 2009Moments ago, President Obama interrupted Press Secretary Gibbs to make a statement on the Souter vacancy. After thanking Justice Souter, President Obama stated he would prefer to nominate a person "'who understands justice is not just about some abstract legal...
The Teaching Assistant
Posted on May 01, 2009Dear all: What a week! What with torture memos and 100 days celebrations and critiques and swine flu and Justice Souter . . . there's been a lot going on. But luckily, your trust assistant has been keeping an eye...
Confirmation - Justice Souter IS retiring at the end of this term
Posted on May 01, 2009I previously blogged that Justice David Souter's failure to hire law clerks for the coming term lead some to speculate that he might be retiring from the Court. Tonight, that speculation ended, as both NPR and the New York Times...
ACLU's Ben Wizner Talks About Mohamed v. Jeppesen, Extraordinary Rendition, and State Secrets
Posted on April 30, 2009ACLU attorney Ben Wizner, lead counsel in Mohamed v. Jeppesen Dataplan, Inc., the case against a private company for its role in the CIA's extraordinary rendition program, took time today to talk with me by phone about the case, the...
Today is Equal Pay Day!
Posted on April 29, 2009This is an issue worth mentioning in a Con Law blog as it definitately has constitutional implications, and may soon inspire Congressional action. First, a few facts: - Equal Pay day is always on a Tuesday because a woman has...
Arlen Specter - Switch In Time Nets Fifty-Nine (Senate Seats)
Posted on April 29, 2009In case you were wondering about the legal and/or constitutional implications of a party switch by an imcumbent, I recommend James S. Wrona & L. Francis Cissna, "Switching Sides: Is Party Affiliation a Tie that Binds?, 28 Ariz. St. L.J....
Voting Rights Case - ANALYSIS of Oral Argument
Posted on April 29, 2009The Court held oral argument today in Northwest Austin Municipal Util. District 1 v. Holder, in which one of the two issues is the constitutionality of the Voting Rights Act of 1965: Whether, under the Court's consistent jurisprudence requiring that....
Con Law issues in Education (and Clerkships)
Posted on April 29, 2009My co-blogger wrote about the recent decision on Women's Studies at Columbia University. There are other stories involving education - particularly legal education - that may have Con Law implications. (Or, are simply interesting to anyone interested in Con Law...
Standing, Feminism, and Women's Studies at Columbia University
Posted on April 29, 2009The lawsuit by Roy Den Hollander against Columbia University's Institute for Research and Gender at Columbia University has provoked a spate of media coverage including the most recent NYT article reporting on the dismissal of the lawsuit. With a bit...
Second Circuit clears NYC Mayor Bloomberg's run for a Third Term
Posted on April 29, 2009The Second Circuit has issued its opinion in 09-0331-cv, Molinari v. Bloomberg, affirming the district court's rejection of challenges to Mayor Michael Bloomberg seeking a third term, despite previously approved term limits. As the Second Circuit noted, At issue in...
Equal - Fred Strebeigh's History of Women and Law
Posted on April 28, 2009Strebeigh's new book, Equal: Women Reshape American Law, published by WW Norton, might be a good book to recommend to students entering law school or students preparing for their first Constitutional Law course. The book has been getting some good...
Ninth Circuit Rejects Administration's State Secrets Claim
Posted on April 28, 2009A three-judge panel of the Ninth Circuit today rejected the Obama administration's claim that the state secrets privilege required dismissal of the plaintiffs' entire lawsuit at the pleading stage. The plaintiffs in the case, Mohamed v. Jeppesen Dataplan, Inc...
Vladeck on Boumediene and Access to the Courts
Posted on April 27, 2009Professor Stephen Vladeck (AU/WCL) recently posted his excellent article, Boumediene's Quiet Theory: Access to Courts and the Separation of Powers, on ssrn; it's also forthcoming in the Notre Dame Law Review. This is a thoughtful and engaging piece, characteristic of...
Do the Torture Memos Undermine the Administration's State Secrets Claim?
Posted on April 27, 2009The ACLU filed a letter with the Ninth Circuit arguing that the recently released torture memos undermine the administration's state secrets claim in the case challenging the Bush administration's extraordinary rendition program, Mohamed v. Jeppesen Dataplan...
The Teaching Assistant
Posted on April 26, 2009Hello! There a a variety of stories that may be of interest this week. Let's begin, shall we? Constitutional History Over at the Faculty Lounge, Al Brophy has a post discussing the extent and nature of the Founder's Christianity, and...
D.C. Circuit Dismisses British Detainees' Constitutional Tort Claims
Posted on April 25, 2009A three-judge panel of the D.C. Circuit ruled on Friday that federal officials were entitled to qualified immunity and that Boumediene v. Bush (holding that the Suspension Clause applies to aliens at Guantanamo Bay) did not mean that the Fifth...
Australian Constitutional Law: Saturday Evening Review
Posted on April 25, 2009There are many terrific articles and books on Australian Constitutional Law. Yet as I prepared for the public conversation with Justice Michael Kirby, recently retired from Australia's High Court, I found two invaluable sources that are worth reading - and...
D.C. District Sides with Government on Standard of Detention
Posted on April 23, 2009Judge Reggie B. Walton (D.D.C.) yesterday issued a memorandum opinion in a consolidated case of Guantanamo detainees that adopted the Obama administration's recently suggested and refined standard of detention for detainees at Guantanamo Bay. (I previously posted on this here...
Is the EPA Undemocratic?
Posted on April 23, 2009In the wake of the Environmental Protection Agency's decision last Friday to propose to find that greenhouse gases endanger public health and welfare, some are claiming that the EPA is undemocratic. For example, Jonah Goldberg wrote in today's Chicago Tribune...
Senate Committee Report on Detainee Treatment
Posted on April 22, 2009The Senate Armed Services Committee yesterday released its report on the treatment of detainees in U.S. custody, concluding that torture was approved by cabinet and other high-level officials in the Bush administration. The report (pp. 119-129) tells the story of...
It's Time to Work Out a Coherent Basis for Incorporation
Posted on April 22, 2009David Gans, the Director of the Human & Civil Rights Program at the Constitutional Accountability Center, argued earlier this week that Monday's Ninth Circuit Second Amendment case gets us closer to working out a coherent basis for incorporation of the...
Gender and the Supreme Court "Vacancy"
Posted on April 21, 2009Last week, Dahlia Lithwick wrote an intriguing article in Slate magazine regarding the frequently heard argument that President Obama's first nominee to the Court should be a woman. Lithwick quotes Justices Ginsberg and O'Connor lamenting the dearth of women on...
Quick Hit - Interesting Take on the Ricci Case and Equal Protection
Posted on April 21, 2009If you are at all interested in the Ricci case, please take a moment to read this posting by Deborah Hellman which discusses the Ricci case, but also critiques some of the underlying assumptions in equal protection jurisprudence. It's definately...
President Obama leaves door open to some prosecutions
Posted on April 21, 2009Today's NYT reports that while the President has reiterated his position that those CIA operatives following torture orders should not be prosecuted, there is hope for some prosecutions. The President said: Mr. Obama said once again that he does not....
Restraining Executive Power: The Views of Arlen Specter
Posted on April 21, 2009In a just published article in The New York Review of Books here, Arlen Specter, Senior Republican United States Senator from Pennsylvania and Ranking Member on the Senate Judiciary Committee, has signaled his intention to take "several concrete steps" to...
Setty on Comparative State Secrets
Posted on April 20, 2009Professor Sudha Setty (Western New England) just posted her enlightening article Litigating Secrets: Comparative Perspectives on the State Secrets Privilege on ssrn; it's also forthcoming in the Brooklyn Law Review. Setty presents a fresh and interesting comparative approach to state...
Ninth Circuit: Second Amendment Incorporated, Gun Show Ban Upheld
Posted on April 20, 2009A three-judge panel of the Ninth Circuit today ruled that the Fourteenth Amendment Due Process Clause incorporates the Second Amendment individual right to bear arms against state and local governments. At the same time, the panel upheld a county ordinance...
A Case of Mistaken Identity?: Justice Stevens and "Shakespeare"
Posted on April 20, 2009The Wall Street Journal has an engaging report on Justice Stevens' beliefs - - - as well as the beliefs of some other Justices - - - on whether Shakespeare was the author of Shakespeare's canon. Justice Stevens, it seems,...
Comparative Constitutionalism and Rights: Robson's Saturday Evening Review
Posted on April 19, 2009Being in Montreal the last two days for a workshop entitled "Queer Empire" at McGill University organized by Canadian scholars Kim Brooks and Robert Leckey has been quite a treat. The presenters included American ConLaw Profs Kendall Thomas and Kenji...
Civil Partnerships & Religious Marriages? Douglas Kmiec's Views
Posted on April 19, 2009Con Law Prof Douglas Kmiec of Pepperdine can be viewed on the popular comedy show "The Colbert Report" in the April 16, 2009 episode here. Kmiec appeared on the show to promote his book, Can a Catholic Support Him? Asking...
The Torture Memos
Posted on April 17, 2009DOJ released four Bush era OLC memos today providing the legal justification for certain "enhanced interrogation techniques" of alien detainees held outside the United States. These newly released memos concluded that specific techniques (and combinations of techniques) did not violate...
The Teaching Assistant
Posted on April 17, 2009Hello. Here are the stories that might interest you this week! Equal Protection/Fundamental Rights Sihks in the U.S. Army are challenging military regulations prohibiting the growth of facial hair and wearing of headgear as religious discrimination. The ACLU is working...
Basardh Released as an Unlikely Future Threat
Posted on April 17, 2009Judge Ellen Huvelle's April 15, 2009, Memorandum Opinion ordering the government "to take all necessary and appropriate diplomatic steps to facilitate [Guantanamo Detainee Basardh's] release" was released today in redacted form. Basardh gained fame as a government informer at Guantanamo,...
Notes on the Court, part III (final installment)
Posted on April 17, 2009This is the final portion of my three-part post looking at various issues affecting today's Supreme Court. Here is the final topic - should the Supreme Court look to foreign law in deciding its cases? Recently, Paul Horowitz at PrawfsBlawg...
NSA "Overcollected" Domestic Communications of Americans
Posted on April 16, 2009Eric Lichtblau and James Risen just posted an article in the NYT that the National Security Agency intercepted private e-mails and phone calls of Americans in recent months that exceeded the limits set by Congress. According to the article, the...
DOJ Releases OLC Torture Memos, Promises not to Prosecute
Posted on April 16, 2009The Department of Justice today announced the release of four previously unreleased Bush era OLC memos providing the legal justifications for particular interrogation techniques--now commonly understood to include torture--of detainees in the war on terror...
SCOTUS Vacancy?
Posted on April 16, 2009Well, it looks like our parlor game of "Who's out First?" may be coming to a C-SPAN near year. Today, Concurring Opinions reports that Justice David Souter has not hired law clerks for the upcoming term. Thus, those in the...
Obama Administration: No Habeas at Bagram
Posted on April 14, 2009The Obama administration last Friday filed a motion to certify for interlocutory appeal a federal district court's April 2, 2009, order extending the privilege of habeas corpus to certain detainees at Bagram Airfield in Afghanistan. (Thanks to Lyle Denniston at...
The Right to a Dishwasher - Justice Thomas
Posted on April 13, 2009Adam Liptak reports in today's New York Times about a talk given by Justice Clarence Thomas regarding the Bill of Rights: ?I have to admit,? [Thomas] said, ?that I?m one of those people that still thinks the dishwasher is a...
CFP: National Security and Constitutional Law
Posted on April 13, 2009Call for Articles, Essays, and Book Reviews: National Security and Constitutional Law Proposals due May 15, 2009 The editors of Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to a special issue on the relationship...
Loffredo and Friedman on Qualified Civil Gideon
Posted on April 13, 2009Stephen Loffredo (CUNY) and Don Friedman (Empire Justice Center at the William Randolph Hearst Public Advocacy Center at Touro) recently published Gideon Meets Goldberg: The Case for a Qualified Right to Counsel in Welfare Hearings as part of the Touro...
Law and Philosophy Conference in Spain
Posted on April 13, 2009A "Law and Philosophy" - "Filosophia Y Derecha" conference will be held in Spain next year. The conference will center on the topic "Neutrality and Theory of Law? and will take place the 20th , 21st and 22nd of May...
The Teaching Assistant
Posted on April 11, 2009Hello! Welcome to this week's edition of the Teaching Assistant! In an eventful week, there are a few stories that may have missed your attention. Here goes . . . Equal Protection The Third Circuit held that female Muslim police...
Involuntary Servitude Theorizing
Posted on April 11, 2009Both sides of the abortion debate invoke analogies to slavery. Recently, in the National Review Online, Michael Novak's article "Notre Dame Disgrace" criticizes the university for inviting Barak Obama, arguing that "I doubt very much whether the University of Notre...
LA Times Op-Ed on Caperton v. A.T. Massey Coal Co.
Posted on April 11, 2009According to an Op-Ed in the LA Times here by David B. Rivkin Jr., partner at Baker & Hostetler who served in the Justice Department and the White House counsel's office in the administrations of Ronald Reagan and George H.W....
CIA Closes Black Sites, Rejects Enhanced Interrogation Techniques
Posted on April 10, 2009CIA Director Leon Panetta yesterday issued a message stating that the CIA no longer operates its black sites, rejects "enhanced interrogation techniques," and no longer uses contractors to conduct interrogations. Panetta said that while the Agency no longer uses techniques...
Obama Administration Claims Broad State Secrets Privilege (Again)
Posted on April 09, 2009The Obama administration last Friday filed a motion to dismiss in Jewel v. NSA, the Northern District of California case challenging NSA's "dragnet surveillance" with the cooperation of private telecon operators, asserting sovereign immunity and the State Secrets Privilege...
Government Can Transfer Guantanamo Detainees Without Warning
Posted on April 08, 2009The D.C. Circuit ruled (2-1) yesterday that the administration can transfer nine Uighurs, the Chinese Muslims held at Guantanamo Bay, without warning to their counsel. (Recall that the D.C. Circuit last spring ordered the administration to release the Uighurs, transfer...
Filubuster Over Release of Torture Memos?
Posted on April 07, 2009Senate Republicans are threatening to filibuster the appointments of Dawn Johnsen as OLC chief and Harold Koh as State Department legal counsel if President Obama releases three OLC memos from the Bush administration that likely contain additional details and legal...
Justice Kirby in Conversation at Suffolk Law School
Posted on April 07, 2009Justice Michael Kirby is recently retired as one of the seven Justices of the High Court of Australia, Australia?s Supreme Court. He is Australia?s longest serving jurist, having been first appointed in 1975. On the occasion of his retirement last...
Vermont Legislature overrides veto to legislate same-sex marriage
Posted on April 07, 2009The story from the Burlington Free Press is here, includes roll calls and extensive coverage, with a permalink here. The New York Times story is here. Recall that this legislative action should replace civil unions, which the legislature had passed...
Criddle on Fiduciary Administration
Posted on April 06, 2009Professor Evan Criddle (Syracuse) just posted on ssrn his most recent article in a pair on the fiduciary nature of the administrative state, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking, also forthcoming in the Texas Law Review...
Debtors' Prisons and the Rights of the Poor
Posted on April 06, 2009The NYT opined today that states should buck the apparently increasing practice of jailing people because they're poor, calling this both "barbaric and unconstitutional." (Many thanks to Jon Gutek for the tip.) The NYT: In Georgia, poor people who cannot...
On Equality and "Judicial Activism"
Posted on April 06, 2009On Friday, the Supreme Court of Iowa became the latest state court to rule that preventing same-sex couples from marrying violates the constitution. Of course, there is much blathering about how the "activist court" has deliberately "run roughshod" over the...
Notes on the Court, Part II
Posted on April 06, 2009Last week, the Legal Times ran a piece that should be of interest to all those who are fascinated by the selection fo judges and the make-up of the Court. The piece focuses on judicial diversity, but not the type...
The Teaching Assistant
Posted on April 05, 2009Hello! After a brief hiatus to attend the SouthEast/SouthWest People of Color Scholarship Conference (which was amazing - thanks to all of the organizers!), the Teaching Assistant is back with a vengence. Let's take a look at this week's stories....
Who Knew What at Guantanamo?
Posted on April 05, 2009The Seton Hall Law Center for Policy and Research released report, Torture: Who Knew, last week concluding that top military brass were aware of detainee abuses at Guantanamo Bay and misled Congress about them. The report: A large number of...
Mary Dunlap and the Constitutional Rights of Sexual Minorities: Robson's Saturday Evening Review
Posted on April 04, 2009[U]nder a system that permits individualized sex identification, the past exercises of the legal power to enforce a male/female order might be discovered to have played a primary role in retarding the progress of creativity and diversity among human beings...
Sebelius(es) on Federal Burdens on States
Posted on April 04, 2009Kansas Governor Kathleen Sebelius, whose Senate confirmation as HHS Secretary both started and stalled this week, and Georgetown and Kennedy School student Ned Sebelius co-authored an article in the Harvard Law & Policy Review, the official journal of the American...
IOWA Same-Sex Marriage
Posted on April 03, 2009Although the Iowa Supreme Court website has "crashed" due to traffic, the first "twitter" reports are that the Iowa Supreme Court has declared the state's opposite-sex only marriage law unconstitutional. Updates to follow. RR
Analysis of Iowa Supreme Court ruling on same-sex marriage
Posted on April 03, 2009The first footnote of the 33 footnotes in the Iowa Supreme Court's opinion in Varum v. Brien (pdf of full opinion in post below) quotes the motto on the state flag: ?Our liberties we prize and our rights we will...
EZ Pass, Dormant Commerce Clause & Equal Protection Right to Travel
Posted on April 02, 2009As a story in the New York Times reports: An out-of-state driver crossing Narragansett Bay on the Claiborne Pell Newport Bridge must pay $1.75 with an E-ZPass transponder in the car, but Rhode Islanders, under a resident discount program introduced...
Habeas Extends to Bagram, Afghanistan, District Court Judge Rules
Posted on April 02, 2009U.S. District Court Judge John D. Bates (D.D.C.) ruled today that the privilege of habeas corpus extends to Bagram Airfield in Afghanistan. I most recently posted on the case here. Judge Bates ruled that three foreign nationals, detained outside of...
Fate of the Uighurs at Guantanamo
Posted on April 01, 2009The NYT reports today that the Obama administration may be accelerating its decision on what to do with the Uighurs, the Chinese Muslims detained at Guantanamo Bay. According to the report, administration officials interviewed the 17 Uighurs to "assess their...
Neglected Supreme Court Justices
Posted on March 31, 2009Vanderbilt Law Review just published a symposium issue on neglected Supreme Court justices. Articles cover Samuel Chase (1796-1811), William Johnson, Bushrod Washington, John Catron (1837-1865), John McLean (1829-1861), David Brewer (1889-1910), Rufus Peckham (1895-1909), George Sutherland (1922-1938), Pierce Butler (1922-1939),...
Notes on the Court, Part I
Posted on March 30, 2009Today in Slate Magazine, Dalia Lithwick has an article outlining the ever-popular SCOTUS parlor game "Who's Out First?" As usual, our most likely candidates are Souter, Stevens, and Ginsberg, roughly in that order. The article is also noteworthy because it...
Scalia Speaks Out
Posted on March 30, 2009Justice Antonin Scalia last week gave a series of wide-ranging interviews with Peter Robinson of the Hoover Institution. Audio is available here, thanks to the Federalist Society. Segment titles include "Why the Constitution 'is not living, but dead,'" "Why originalists...
CFP: Supreme Court Preview
Posted on March 30, 2009CALL FOR PAPERS The Charleston Law Review, the flagship law review of the Charleston School of Law, invites submissions for its Supreme Court Preview issue. Volume II of the law review had a forward by then - Senator Barak Obama...
Chafetz on Executive Contempt of Congress
Posted on March 29, 2009As is well known by now, the House Judiciary Committee last spring filed a complaint in federal court against former White House Counsel Harriet Miers and then-Chief of Staff Josh Bolton for contempt for failure to comply with Congressional subpoenas...
Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional?
Posted on March 29, 2009Yes, according to George Will here. Will provides this hypothetical (worth reading for ConLawProfs contemplating writing exam questions): Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do...
"too much law" & Judicial Bias (among other problems)
Posted on March 29, 2009The New York Review of Books April 9 issue has an insightful review by Anthony Lewis of Phillip K. Howard's book, Shall We Get Rid of the Lawyers? Lewis begins with a recollection: Justice Hugo L. Black once told me...
Voting Rights and African-Americans: Robson's Saturday Evening Review
Posted on March 28, 2009With Northwest Austin Municipal Utility District v. Holder (considering the application and reauthorization of Section 5 of the Voting Rights Act) scheduled for oral argument before the Court the last day in the term, and most recently blogged here, legal...
Spanish Court Moves to Investigate U.S. Officials for Torture
Posted on March 28, 2009The Spanish Audencia Nacional, the Spanish national security court, has taken the first steps toward investigating Bush administration officials for authorizing torture at Guantanamo Bay in violation of the Geneva Conventions and the Convention Against Torture...
Sanders on Will's Situational Constitutionalism
Posted on March 28, 2009Chicago attorney Steve Sanders argued yesterday on the American Constitution Society Blog that columnist George Will exhibited his own "situational constitutionalism" in his op-ed earlier this week in the Washington Post. In that piece, Will romped through recent actions of...
U.S. Bombing, Defamation Case Raises Political Questions
Posted on March 27, 2009The D.C. Circuit in a split decision today affirmed the lower court's dismissal of a Sudanese pharmaceutical manufacturer's Federal Tort Claims Act case against the United States for negligence in bombing its facility in 1998 and for defamation in subsequently...
House Judiciary Leaders Support VRA Reauthorization
Posted on March 26, 2009A bipartisan group of leaders of the House Judiciary Committee filed an amicus brief today in Northwest Austin Municipal Utility District v. Holder, the case dealing with the application and reauthorization of Section 5 of the Voting Rights Act--the preclearance...
Conference on 13th Amendment
Posted on March 26, 2009Slavery, Abolition, and Human Rights: Interdisciplinary Perspectives on the Thirteenth Amendment A Conference at the University of Chicago Law School, April 17-18, 2009 The conference is organized by Amy Dru Stanley (University of Chicago) and Alexander Tsesis (Loyola University) and...
O'Connor, Ginsburg & Feminism
Posted on March 24, 2009More on O'Connor's feminism can be found referenced in Julie Graves Krishnaswami, Justice Sandra Day O'Connor: A Selected Annotated Bibliography, 57 Cath. U. L. Rev. 1099 (2008). In her section, ?Equality and Feminism,? Krishnaswami lists and describes the following articles:...
Winkler on Heller's Contradictions
Posted on March 23, 2009Adam Winkler (UCLA) recently posted his smart and delightfully entertaining piece Heller's Catch-22on ssrn. The article is also forthcoming in the UCLA Law Review. This is clever, insightful, and important beyond the Second Amendment--a very satisfying read...
Justice O'Connor on Women's Rights
Posted on March 23, 2009Justice O'Connor participated in an interview with the New York Times to promote her new website for children. Though she declines to call herself a feminist, take note of what she does say: Do you call yourself a feminist? I...
White House to Release Details of Enhanced Interrogation Techniques
Posted on March 23, 2009The White House is moving to declassify and release three internal memos that set out the Bush administration's legal justification for its enhanced interrogation techniques (including waterboarding) used against high value detainees, report Michael Isikoff and Mark Hosenball in Newsweek...
Uighurs File for Contempt
Posted on March 22, 2009Huzaifa Parhat and the Chinese Muslims (the Uighurs) detained at Guantanamo Bay filed a motionFriday in the D.C. Circuit to hold Secretary of Defense Gates in contempt for failing to comply with that court's June 20, 2008, order to "release...
Detainees Push Back on Administration Detention Authority
Posted on March 21, 2009Lawyers for a group of detainees yesterday filed a Replyto the administration's definition of detainable individuals under the Authorization for Use of Military Force and international law. Many thanks to Lyle Denniston at SCOTUSblog for the tip and for posting...
Bill of Attainder - Saturday Evening Review
Posted on March 21, 2009Article I section 9 of the Constitution (not the First Amendment as some seem to believe) provides: ?No bill of Attainder or ex post facto Law shall be passed.? Given all the discussion of bills of attainder recently in connection...
The Teaching Assistant
Posted on March 21, 2009Hello! As always, we will cover a number of stories. This week's installment will take us through a varied collection of stories. Equal Protection: The NAACP has filed a suit against a number of mortgage lenders alleging that they deliberated...
Using the Obama Victory as an Excuse for Ending the VRA
Posted on March 20, 2009My co-blogger Steven recently posted about a challenge to the VRA. One particular portion of the brief has made the headlines recently. In defense of their request to nullify the provisions of the Voting Rights Act, the defendants have made...
John Yoo on same-sex marriage
Posted on March 20, 2009John Yoo, best known as the author of the Bush Administration?s so-called ?torture memos,? see here, also has something to say about same-sex marriage. In a brief essay, Can The Government Prohibit Gay Marriage?, 50 South Texas Law Rev. 15...
Equal Protection Viewpoint on AIG Bonuses
Posted on March 20, 2009Over at the Faculty Lounge (where I am frequently a guest, full disclosure), Con Law Prof (and Con Law casebook author) Calvin Massey has a brief post about a potential problem lurking in the AIG issue - and one tha...
ConLaw Prof named new Dean at William & Mary
Posted on March 20, 2009According to a press release, Davison M. Douglas, a Con Law Prof at William & Mary Law School since 1990, has been named Dean. Douglas' areas of constitutional specialties include race, religions, and elections. Perhaps his best known work is...
The Changing Face of Habeas for Guatnanamo Detainees?
Posted on March 20, 2009A group of Guantanamo detainees yesterday filed a Supplemental Memorandum arguing that the Geneva Conventions guarantee them certain conditions of confinement and that the federal courts have jurisdiction under the habeas statute to enforce them. Many thanks to Lyle Denniston...
Kagan Confirmed as SG; Johnsen Moves to Full Senate for OLC
Posted on March 20, 2009The Senate confirmed Harvard Law School Dean Elena Kagan as solicitor general by a 61-31 vote yesterday. Kagan will be the nation's first female solicitor general. The Senate Judiciary Committee voted yesterday 11-7 on the nomination of Dawn Johnsen, Indiana...
AIG Bonuses & Constitutional Remedies
Posted on March 19, 2009What are the constitutional ramifications of Congressional action seeking recoup of the bonuses paid to AIG executives? Over at TaxProf Blog, Paul Caron has a great post with supporting materials for Larry Tribe's opinion that "the proposed 90% tax on...
Wanted: Lawyer for Judicial Position. Must be learned in the law. Must look great in black. Must possess the quality of empathy.
Posted on March 19, 2009The title of this post could be a "help wanted ad" for the Obama administration as it seeks judicial nominees. This story created a flap during the campaign, but has resurfaced with the administration's first judicial appointment and the administration's...
Slavery, Abolition, and Human Rights: A Symposium on the Thirteenth Amendment
Posted on March 19, 2009The University of Chicago Law School and the Loyola University (Chicago) School of Law will host a symposium on April 17 and 18 at the University of Chicago Law School auditorium titled Slavery, Abolition, and Human Rights: Interdisciplinary Perspectives on...
Bush v. Gore Redux in Coleman v. Franken?
Posted on March 18, 2009The Minnesota recount litigation goes on and on - - - more than four and a half months after the election, the Senate race between Franken and Coleman is still not finalized. An insightful piece on Slate by Richard Hasen...
Edlin on Judges and Unjust Laws
Posted on March 18, 2009Douglas E. Edlin (Dickinson Poli. Sci.) recently published Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review with the University of Michigan Press. I look forward to reviewing and recommending it in greater detail here soon,...
The Big Change in Obama's Position on Detention Authority
Posted on March 18, 2009The Obama administration has come under fire for its "refined" position on its authority to detain individuals in the war on terror, filed with the U.S. District Court in D.C. last week. (I posted on this, with a link to...
Conference at Drake
Posted on March 17, 2009Drake Law School's 2009 CONSTITUTIONAL LAW CENTER SYMPOSIUM ?Global Perspectives on Religion, the State, and Constitutionalism? is on April 4, 2009. The goal of this Symposium is for an interdisciplinary group of experts on various religious traditions to describe the...
When and How to Use Signing Statements to Declare Law Unconstitutional
Posted on March 17, 2009The NYT editorialized today that President Obama should increase transparency in and promote checks on his use of Presidential signing statements to declare portions of bills unconstitutional. The editorial comes the week after President Obama first issued cautionary guidance on...
Further Issues Regarding the Constitutionality of the Bailout
Posted on March 17, 2009It appears that a specific provision of the new stimulus legislation is causing a constitutional stir. Con Law Professor Ronald Rotunda wrote an article for the Chicago Tribune criticizing the portion of the legislation that allows state legislators to bypass...
Justice Kennedy and the Supreme Court
Posted on March 16, 2009As Court-watchers well know, Justice Anthony Kennedy has firmly taken Justice O'Connor's place as the Court's designated swing-vote. This week two stories place Justice Kennedy in the spotlight. First, an article in the Washington Post outlines Justice Kennedy's role on...
Heller's Impact on the Right to Bear Arms
Posted on March 16, 2009D.C. v. Heller, last term's Second Amendment case in which the Court held that the Second Amendment protects an individual right to keep and bear arms, is not giving a lot of traction to gun-rights advocates in the lower courts,...
Call for Papers - Fourteenth Annual LatCrit Conference
Posted on March 16, 2009This year's LatCrit conference will be held from October 1-4, 2009 at the American University Washington College of Law. The theme of this year's conference is "Outsiders Inside: Critical Outsider Theory and Praxis in the Policy Making of the New...
The Teaching Assistant
Posted on March 15, 2009It's time for another edition of the Teaching Assistant. While I generally like to include a mix of stories involving the judiciary, the Congress, and the executive, there have been several equal protection and fundamental rights stories that merit your...
Rosenthal on the Original Understanding of Privileges or Immunities and Incorporation
Posted on March 15, 2009Professor Lawrence Rosenthal (Chapman) just posted The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation on ssrn. The piece is forthcoming in the Journal of Contemporary Legal Issues as part of a recent symposium...
SCOTUS opening?
Posted on March 14, 2009In the Huffington Post here: Ginsburg, who spoke at New England Law's annual "Law Day," said the nine justices only take pictures together when a new member is added. "We haven't had any of those for some time, but surely...
Class and Due Process - Saturday Evening Review
Posted on March 14, 2009In a provocative essay on State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), Martha McCluskey of State University at Buffalo Law School argues that the case demonstrates that the "real action on issues of class in...
Administration Refines Position on Detention at Guantanamo Bay
Posted on March 13, 2009The Obama administration today filed a long anticipated memo in federal court outlining its "refined" position on its authority to detain individuals at Guantanamo Bay. AG Holder also filed a declaration stating the status of the administration's review of detention...
Obama Issues Signing Statement with Constitutional Objections
Posted on March 12, 2009President Obama yesterday issued a statement upon signing H.R. 1105, the Omnibus Appropriations Act of 2009, claiming that certain portions of the Act unconstitutionally infringe upon his executive authority and stating that his administration will interpret those sections consistent with...
Finkelman to Deliver Nathan I. Huggins Lectures
Posted on March 12, 2009Professor Paul Finkelman (Albany) will deliver the Nathan I. Huggins Lectures next week at the W.E.B. Du Bois Institute for African and African American Research at Harvard on the theme "The Supreme Court and the Peculiar Institution: Marshall, Story, Taney,...
Marriage Abolition - Infringing on a Constitutional Right?
Posted on March 11, 2009Is marriage a fundamental right? Anyone who has read (or taught) the last paragraph of Loving v. Virginia has struggled with this issue. Certainly the same-sex marriage cases do not support a viable argument that marriage is a recognized fundamental....
CFP: Interpretation & Construction in Constitutional Law
Posted on March 11, 2009Steven G. Gey Call for Papers At the 2010 Annual Meeting of the AALS, the Section on Constitutional Law will host a panel exploring the distinction between ?interpretation? and ?construction? in constitutional law. One paper from an untenured, non-adjunct, faculty...
S.C. Governor Rejects Stimulus As Is, Seeks Waiver
Posted on March 11, 2009South Carolina Governor Mark Sanford yesterday wrote to members of Congress detailing his objections to the federal stimulus act, stating his intent to reject portions of the federal money for ongoing state needs, and indicating that he'll seek a waiver...
Follow-up on Standing to Enforce Qualifications of Elected Officials
Posted on March 10, 2009In a recent decision, the District Court for the District of Columbia dismissed yet another suit challenging Barack Obama's qualifications to serve as the 44th President. However, this case was noteworthy as it was dismissed as frivolous. Further analysis of...
The Privilege to Decline Habeas
Posted on March 10, 2009Judge Emmet Sullivan (D.D.C.) today dismissed a Guantanamo detainee's habeas petition, at the detainee's request. Judge Sullivan's order dismissing Ghassan al Sharbi's petition is here; al Sharbi's hand-written motion, filed on August 8, 2008, is here...
A Constitutional Amendment Concerning Senate Vacancies
Posted on March 10, 2009The Senate Judiciary Committee will hold a hearing tomorrow, 10:00 am EDT, on a proposed amendment to the constitution to require an election, not gubernatorial appointment, to fill a vacant Senate seat. The Senate Joint Resolution is here; the Senate...
CFP: Conceptualizing Substantive Justice
Posted on March 09, 2009Call for Papers CONCEPTUALIZING SUBSTANTIVE JUSTICE Sturm College of Law, University of Denver April 17-18, 2009 Keynote speaker: Professor Adrien WingAssoc. Dean for Faculty Devel. & Bessie Dutton Murray Prof. of Law, Univ. of Iowa ?Conceptualizing Substantive Justice: The South...
Bush Lawyers' OLC Memos: How Bad is Too Bad?
Posted on March 09, 2009Charlie Savage and Scott Shane in today's NYT take a look at this question: "What is a government lawyer's responsibility if legal advice he gives turns out to be, in the view of many authorities, grievously flawed?" The question arises...
Zelinsky on Davis's Quiet Dormant Commerce Clause Revolution
Posted on March 09, 2009Professor Edward Zelinsky (Cardozo) just posted on ssrn his very thoughtful take on the Supreme Court's recent turn in its Dormant Commerce Clause jurisprudence, The False Modesty of Department of Revenue v. Davis: Disrupting the Dormant Commerce Clause Through the...
Obama's E.O. on Stem Cell Research
Posted on March 09, 2009The Executive Order on stem cell research is here with the Memorandum For The Heads Of Executive Departments And Agencies (SUBJECT: Scientific Integrity) here . The press from the White House, with photo is from here: As we restore our...
Obama Cautions Agencies on Reliance on Bush Signing Statements
Posted on March 09, 2009President Obama ordered executive officials to check with AG Eric Holder before relying upon Bush signing statements to disregard federal law, Charlie Savage reports in today's on-line NYT. Here's President Obama's statement. President Bush issued an unprecedented number of signing...
Court Vacates Fourth Circuit, Orders Dismissal in Al-Marri
Posted on March 07, 2009The Supreme Court on Friday vacated the Fourth Circuit opinion in Al-Marri v. Spagone and remanded the case with instructions to dismiss the appeal as moot after the government indicted al-Marri last week in federal court. Recall that the Fourth...
Judicial Recusal and Judicial Bias: Saturday Evening Review
Posted on March 07, 2009As noted previously, on Tuesday SCOTUS heard oral arguments in Caperton v. A.T. Massey Coal Co., on the question of whether the refusal of Justice Benjamin of the Supreme Court of Appeals of West Virginia to recuse himself from the...
The Teaching Assistant
Posted on March 06, 2009Hello all! After a brief hiatus, we are back with a number of stories on Equal Protection and Fundamental Rights, plus one bonus story. Here are this week's equal protection/fundamental rights stories: The ACLU blog contains a first hand account...
Line-Item Veto Legislation in House, Senate
Posted on March 06, 2009Senator Russ Feingold (D-WI), Senator John McCain (R-AZ), and Representative Paul Ryan (R-WI) have introduced line-item veto legislation that purports to solve the constitutional problems in the 1996 Line Item Veto Act overturned in Clinton v. New York...
Illinois AG: Special Election for Senate Seat Constitutional
Posted on February 26, 2009Illinois AG Lisa Madigan issued an opinion yesterday concluding that there's nothing in the U.S. Constitution or the Illinois Constitution to prohibit the Illinois legislature from calling a special election to "fill" the U.S. Senate seat vacated by President Barack...
Marbury v Madison - more on
Posted on February 25, 2009Another new book on Marbury v. Madison, The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court by Cliff Sloan & David McKean. Here?s a bit from the Kirkus Review: "Former Supreme Court clerk and Slate publisher...
OLC Chief Nominee Johnsen Before the Senate Judiciary Committee
Posted on February 25, 2009The Senate Judiciary Committee held a hearing today to consider President Obama's nomination of Dawn Johnsen to serve as Assistant Attorney General for the Office of Legal Counsel. (The webcast is here.) As part of the materials in support of...
Toobin on the Voting Rights Act
Posted on February 25, 2009Jeffrey Toobin writes in The New Yorker that "the current conservative majority has a chance to undo this signal achievement of American democracy," Section 5 of the Voting Rights Act, when the Court considers Northwest Austin Municipal Utility District No...
Happy Birthday Marbury v. Madison
Posted on February 24, 2009NEWSWEEK has a birthday card of sorts to Marbury v. Madison; it begins:Tuesday, Feb. 24, is the 206th anniversary of Marbury v. Madison, the most important decision the Supreme Court?and perhaps any court?has ever issued. The late chief justice William...
Civil Right to Counsel
Posted on February 24, 2009Professor Clare Pastore (USC) published an op-ed in the LA Times yesterday arguing for a right to counsel for indigents in eviction proceedings, employment and healthcare disputes, custody proceedings, and other disputes involving basic human needs. Pastore:Every day, Americans without...
McClure on Vermeule at Admin Law Prof Blog
Posted on February 23, 2009Ted McClure reviewed Adrian Vermeule's Our Schmittian Administrative Law on our sister blog, the Administrative Law Prof Blog; check it out. McClure:What Professor Vermeule examines is where to draw the line, if that is possible, between routine executive action where...
Obama Administration Maintains Course on Habeas at Bagram
Posted on February 23, 2009The administration on Friday declined Judge Bates's (D.D.C.) invitation to "refine" the Bush administration position on whether the privilege of habeas corpus extends to the U.S. Airbase in Bagram, Afghanistan. I posted most recently on this here. The Bush administration...
Teaching- Call for Proposals for AALS
Posted on February 22, 2009ConLaw Profs tend to be under-represented in programs on law teaching and academic success - - - here's a chance to get involved. I did a workshop at this year's AALS joint program with academic support and teaching methods (described...
Constitution in Two Worlds - South Africa and US: Saturday Evening Review
Posted on February 22, 2009Mark Kende, Con Law Prof at Drake University, has a forthcoming book, Constitutional Rights in Two Worlds: South Africa and the United States, due next month, from Cambridge University Press. Kende has posted the Introduction to the book on ssrn,...
Federalist Society Fellowship for Law Grads to enter Legal Academy
Posted on February 22, 2009The Federalist Society is seeking applicants for Olin/Searle Fellows in Law, 2009-2010, deadline March 16, 2009: The Olin/Searle Fellows in Law program will offer top young legal thinkers the opportunity to spend a year writing and developing their scholarship with...
Hasen on "The Democracy Canon"
Posted on February 22, 2009Professor Rick Hasen (Loyola/LA and editor of the Election Law Blog) just posted "The Democracy Canon" on ssrn. This is Hasen's latest in a long line of impressive scholarship on election law, and it's every bit as thoughtful, timely, and...
Jefferson Files for Cert., Argues Speech and Debate Protection
Posted on February 20, 2009William J. Jefferson, the former Louisiana Congressman indicted on 16 counts in his corruption case in the Eastern District of Virginia, asked the Supreme Court this week to reverse a Fourth Circuit decision refusing to dismiss his indictment because it...
Center for Constitutional Rights names LawProf new Legal Director
Posted on February 20, 2009The Center for Constitutional Rights in a press release today announced that Bill Quigley, Director of the Law Clinic and the Gillis Long Poverty Law Center at Loyola University New Orleans, is the new legal director of CCR:The Center for...
Is Obama Different Than Bush in the War on Terror?
Posted on February 19, 2009The Obama administration may be following the Bush administration's lead in several key and controversial policies in the war on terror, Charlie Savage reported in yesterday's NYT. Savage:Within days of his inauguration, Mr. Obama thrilled civil liberties groups when he...
Where Have All the Unitary Executives Gone?
Posted on February 19, 2009The NYT reports today that Republicans are furious over Senator Judd Gregg's withdrawal as President Obama's pick for Commerce Secretary, because they believe it signals that the White House intends to "politicize" the 2010 census. The concern in part relates...
Senators: Wrap Up Ethics Investigation into Bush OLC Legal Advice
Posted on February 18, 2009Senators Durbin (D-Ill.) and Whitehouse (D-R.I.) called for an update and quick end to the Justice Department's Office of Professional Responsibility investigation into whether lawyers who authored certain OLC legal memos for the Bush administration followed ethical standards...
Chief Justice Roberts on Former Appeals Court Experience for Justices
Posted on February 18, 2009Adam Liptak reported in the NYT Tuesday that Chief Justice Roberts attributed the "more solid grounds of legal arguments" to a Court full of former federal appeals court judges in a speech at the University of Arizona College of Law....
Guantanamo Detainees in Limbo after Court Ruling
Posted on February 18, 2009The D.C. Circuit ruled today that the lower court lacked authority to order 17 Chinese Muslims, the Uighurs, held at Guantanamo Bay into the United States. I most recently posted on the Uighurs here; the Center for Constitutional Rights collects...
UC Davis Symposium on Justice Stevens
Posted on February 17, 2009UC Davis Law Review will host what looks like an excellent Symposium on Justice Stevens on March 6. Here's the description:As part of the 40th anniversary of the dedication of Martin Luther King, Jr., Hall, home to the University of...
Two Quick Hits
Posted on February 17, 2009Here are two stories you may wish to follow: 1. Findlaw has a great piece on the Religious Freedom Restoration Act; and 2. In an update to a previous posting, Harry Reid is "cautiously optimistic" that a bill will pass...
Wordle: The Constitution
Posted on February 16, 2009Wordle, http://www.wordle.net/, is a fun site which will "translate" a block of text into a graphic representation. The most frequently appearing words appear the largest. One can choose from different designs and color schemes, but the word frequency is the...
CFP: Gender and Sexual (In)Equality
Posted on February 16, 2009CALL FOR ROUNDTABLE PARTICIPANTSCRN No. 9 (Gender and Legal Education)LAW AND SOCIETY ASSOCIATION ANNUAL MEETING May 28-31, 2009 Denver, ColoradoDEADLINE FOR PROPOSAL: FEBRUARY 25, 2009 Roundtable: Teaching Gender Inequality in Law Schools Conversations about gender and sexuality in core law...
Griffin on a Theory of Constitutional Change for the Bush Presidency
Posted on February 15, 2009Professor Stephen Griffin (Tulane) in his latest and characteristically thoughtful piece The Bush Presidency and Theories of Constitutional Change, just posted on ssrn, takes on this provocative question: Can existing theories of constitutional change account for the Bush presidency?Griffin argues...
District Court Losing Patience with Administration on Definition of "Enemy Combatant"
Posted on February 14, 2009The U.S. District Court for the District of Columbia twice this week signaled its frustration with the Obama administration's refusal to refine its position on the definition of "enemy combatant" in detainee cases before the court. The administration filed a...
Gender Equality Classic: Saturday Evening Review
Posted on February 14, 2009The vigorous Valentine's Day media (and commercial) attention to relationships prompted me to reread Christine Littleton's classic article, Reconstructing Sexual Equality, 75 California Law Review 1279-1337 (1987). More than twenty years ago, Littleton, a Professor of Law at UCLA, Littleton...
Standing - When Can a Citizen challenge political figures?
Posted on February 13, 2009Yesterday's Wall Street Journal ran two pieces - here and here - about the difficulty of citizens challenging Hillary Clinton's salary through the Emoulients Clause or Barack Obama's eligibility through the Natural Born Citizen Clause. The argument can be summarized...
Senate, House to Weigh-In on State Secrets
Posted on February 13, 2009In the wake of the Obama administration's assertion of state secrets in Mohamed v. Jeppesen Dataplan, Inc., the Ninth Circuit case on extraordinary rendition (more here, and see Glenn Greenwald's excellent analysis at Salon.com), legislation has been re-introduced in the...
NAACP Centennial
Posted on February 13, 2009As you may have heard, yesterday marked the 100th anniversary of the founding of the NAACP. The NAACP has a far reaching legacy in Constitutional Law. Of course, the most obvious example is the litigation leading to Brown v. Board...
The Teaching Assistant
Posted on February 13, 2009It's time for the Teaching Assistant. Here are a few stories that you might be interested in this week. The Washington Post reports that the Obama Administration will expand the scope and duties of the National Security Council. According to...
CFP: Creative Writing on Obama
Posted on February 12, 2009Feeling the creative urge? Or the need to write something that is not footnoted? Or thinking of a creative assignment for students? The literary magazine New Millennium is having a writing competition for works centered on Obama - - -...
Four Reforms for Supreme Court
Posted on February 12, 2009Thirty-three law professors, former state supreme court justices, and practitioners proposed four significant changes to Supreme Court operations, Law.com reports. (Thanks to reader Darren Elliott for the tip.) The group sent the proposals to the House and Senate Judiciary Committees...
Obama Administration Maintains Bush Position on State Secrets
Posted on February 11, 2009The Obama administration maintained course on the Bush administration claims of state secrets in Mohamed v. Jeppesen Dataplan, Inc., a closely watched case at the Ninth Circuit. The NYT reports here. The case involves an Ethiopian's claims against a Boeing...
Court Denies Injunction for Guantanamo Detainees, Restrict Habeas (again)
Posted on February 11, 2009Judge Gladys Kessler (D.D.C.) yesterday denied Guantanamo detainees' motion for a preliminary injunction to halt the government's techniques in force-feeding them during their hunger strike. The detainees claimed that the government's use of a restraint chair and a nasal feeding...
Poverty, Class & Economic Justice
Posted on February 10, 2009Obama spoke today in Ft Myers, Florida today about the economic crisis, emphasizing jobs, housing and health. The HHS has just released the 2009 Federal Poverty guidelines. With the economic crisis looming and debates about a Presidential/Congressional "fix," I've been...
States Complain about Federal Sex Offender Registration Act
Posted on February 10, 2009The NYT reported yesterday on states' complaints about requirements under the federal Adam Walsh Child Protection and Safety Act and on sex offenders' claims that the registration requirements violate constitutional rights. The NYT:But officials in many states complain about the...
Truth and Reconcilation
Posted on February 09, 2009Earlier today, Senator Patrick Leahy (D-VT), stated that he would like to form a "Truth and Reconcilation" commission to investigate the abuses of power that occurred in the Justice Department and the White House in the previous administration. This evening,...
Katz on the Roberts Court and Election Law
Posted on February 09, 2009Professor Ellen Katz (Michigan) recently posted her excellent article Withdrawal: The Roberts Court and the Retreat from Election Law on ssrn. The piece is also forthcoming in the Minnesota Law Review. This symposium article--part of the Minn. L. Rev...
Conference: Separation of Powers sponsored by Federalist Society
Posted on February 08, 2009Yale Law School is hosting the 2009 Federalist Society National Student Symposium, ?Separation of Powers,? on February 27th and 28th, 2009; registration information here. Here's the program: Is the Separation of Powers Principle Exportable? (Friday, February 27, 6:45 p...
Don't Ask, Don't Tell (Lesbians & Other Women): Saturday Evening Review
Posted on February 07, 2009While we wait for Obama's promised action regarding the Military's "don't ask, don't tell" policy, previously blogged here, it seems a good time to take yet another look at the legal scholarship on the issue. There is quite a bit,...
It's baaaaack . . . . The Teaching Assistant!
Posted on February 06, 2009After a brief break, the Teaching Assistant is back! This week, we feature stories from a variety of Con Law fields. Executive Branch/Foreign Policy New CIA chief Leon Pannetta states that "harsh renditions" of terror suspects remains a possibility. He...
Art and Justice?
Posted on February 05, 2009As the United States Congress contemplates whether arts funding is suitable for economic stimulus legislation, see stories here and here, Justice Albie Sachs of the South African Constitutional Court is in the United States with a beautiful book project of...
Justice Ruth Bader Ginsberg
Posted on February 05, 2009As readers will no doubt have heard by now, today Justice Ginsberg had surgery for a recently discovered pancreatic cancer. We wish her the best and a speedy recovery. NLS
Equal Protection in Faith-Based Executive Order
Posted on February 05, 2009Today, Obama signed Amendments to Executive Order 13199 and Establishment of the President's Advisory Council for Faith-Based and Neighborhood Partnerships. The Washington Post has a video of the announcement and some of the appointments to the new Council here...
Justice Scalia scolds (undergraduate) student
Posted on February 04, 2009The Orlando Sun-Sentinel reports that Justice Scalia, appearing in Palm Beach County, Florida, was less than overjoyed at being challenged:Student Sarah Jeck stood in front of 750 people and asked Scalia why cameras are not allowed in the U.S. Supreme...
Holder on Inherent Presidential Authority
Posted on February 04, 2009AG Eric Holder in his Senate confirmation materials endorsed a slightly more modest form of inherent presidential authority--and somewhat greater transparency when asserting that authority--than we've seen from the Bush administration. Holder also distinguished Bush administration practices from similar Clinton...
Australia's High Court - transition
Posted on February 03, 2009In Australia, Justices on the nation's highest court - - - the High Court - - - face mandatory retirement at age 70. In the past few days, Justice Michael Kirby, seemingly the first gay man on a nation's highest...
Holder Signals Greater Openness with OLC, State Secrets
Posted on February 03, 2009AG Eric Holder--confirmed 75 to 21 last night and sworn in today--wrote that he would review "significant pending cases" in which the government asserted a state secrets privilege and that he would seek to minimize the use of that privilege,...
Proposition 8 in California Supreme Court
Posted on February 03, 2009We've blogged about the Proposition 8 litigation here (AALS panels) and here. According to the California Supreme Court website:The Supreme Court has announced that an oral argument will be held in the Prop. 8 cases on Thursday, March 5, 2009,...
LA Times: Put FISA Ruling in Perspective
Posted on February 02, 2009The LA Times ran an editorial today arguing that Bush administration defenders' jubilation over last week's FISA court ruling is unjustified. That decision upheld the Congressionally authorized surveillance program under the Protect America Act of 2007...
District of Columbia Voting Rights again . . .
Posted on February 02, 2009Last week, I wrote about the pending legislation that would give residents of the District of Columbia a vote in the House of Representatives. While I focused on the potential arguments in support of such a law to the exclusion...
How Far Left Will an Obama Appointment Push the Court?
Posted on February 02, 2009Adam Liptak asked the question in yesterday's NYT. Liptak: Should [Obama] appoint someone who by historical standards is a full-throated liberal, a lion like Justice William J. Brennan, Jr., or Justice Thurgood Marshall? Or should he follow the lead of...
Colombia Constitutional Court, Same-Sex Marriage, and Intersex Children: Saturday Evening Review
Posted on January 31, 2009This week, Colombia's Constitutional Court ruled that same-sex couples are constitutionally entitled to the same status as opposite-sex couples under Colombia's common law marriage scheme. The case was brought by the organization Colombia Diversa, and the opinion (in Spanish) is...
Heller, incorporation, the Second Circuit, and nunchaku
Posted on January 30, 2009In another opinion refusing to incorporate the Second Amendment to the states, the Second Circuit considered a challenge to a charge of possessing a chuka stick in violation of N.Y. Penal Law § 265.01(1). The New York statute defines a...
President Bush Re-Directs Rove, Miers Not to Appear Before Congress
Posted on January 30, 2009Counsel to former President Bush Fred Fielding wrote letters last week to counsel for Karl Rove and Harriet Miers directing them not to appear before, and not to provide information to, Congress in response to Congressional subpoena in the investigation...
Obama and Federalism
Posted on January 30, 2009Today's NYT contained an enlightening article on the Obama administration's view of federalism. The Times describes the approach as "progressive federalism" or "cooperative federalism." As support, the Times offers Obama's pledge earlier this week to allow states (California) to create...
John Yoo, torture, and the continuing saga
Posted on January 29, 2009John Yoo, formerly in the Justice Department from 2001-03, and now a law professor at the University of California, Berkeley and a visiting professor at Chapman Law School, has an op-ed in Washington Post entitled "Obama Made a Rash decision...
Indefinite Detention of Lawful U.S. Resident: Amici Weigh in on Al-Marri
Posted on January 29, 2009A spate of new amicus briefs came in yesterday in Al-Marri v. Spagone, including the constitutional law professors' brief on which I posted here. The case tests the President's authority to indefinitely detain a lawful U.S. resident in the United...
Flashback: Justice Brandeis nominated
Posted on January 28, 2009As Andrew Glass on politico.com reports: On this day in 1916, President Woodrow Wilson nominated Louis Brandeis for a seat on the Supreme Court. After a confirmation battle that lasted more than four months, Brandeis became the first Jewish justice...
ACLU Seeks OLC Memos
Posted on January 28, 2009The ACLU asked the Office of Legal Counsel today for Bush administration legal memorandums relating to interrogation, detention, rendition, and warrantless surveillance. The letter is here; Wired reports here. Meanwhile, Dan Nguyen and Christopher Weaver at ProPublica have put together...
Law Professors File Amicus Brief in Al-Marri
Posted on January 28, 2009A group of leading constitutional law professors filed an amicus brief today in Al-Marri v. Spagone, the case testing the President's authority to indefinitely detain, without trial, a lawful U.S. resident as an enemy combatant within the United States...
House Judiciary Committee Chair Conyers Subpeonas Karl Rove
Posted on January 28, 2009Rep. John Conyers, Chair of the House Judiciary Committee, issued a subpoena last week to Karl Rove requiring him to testify before the Committee in its investigation of the Bush administration's politicization of the Justice Department, including the firing of...
New Congress brings hope of change to D.C. . . . literally
Posted on January 28, 2009Readers have no doubt been keeping abreast of the stories outlining the numerous ways in which the change spurred by the new administration is playing out in the legal arena. Residents (and former residents, and friends and family of residents)...
What to do with Detainees in Bagram, Afghanistan
Posted on January 27, 2009The NYT reported today on President Obama's decision about what to do with 600 prisoners at the U.S. airbase in Bagram, Afghanistan. The report: President Obama must now decide whether and how to continue holding the men at Bagram, most...
Inaguration Double Post, Part II
Posted on January 26, 2009While I was in Washington, I had the great fortune to spend some time in the Smithsonian's National Museum of American History. While the exhibits there showcase all kinds of Americana, the exhibit on The American Presidency (online exhibit here)...
Inauguration Double Post
Posted on January 26, 2009Hello all! Last week, I did not post, as I was in Washington, DC for the Inauguration Festivities. It was something to behold. As a citizen, it was remarkable to reflect on this peaceful change of power. At the beginning...
House Bailout for Illinois Conditioned Upon Blagojevich Removal
Posted on January 26, 2009The House bailout plan--H.R. 1--contains an extraordinary provision apparently designed to deny funds to Illinois as long as embattled Governor Rod Blagojevich has any control over them (!). Read here: None of the funds provided by this Act may be...
Seventeenth Amendment & Senators
Posted on January 25, 2009Much in the news these days is the Seventeenth Amendment: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote....
Popular Constitutionalism?
Posted on January 25, 2009In a provocative piece in the Jan/Feb issue of The ATLANTIC, entitled The Founders' Great Mistake, ConLaw Prof Garrett Epps of University of Baltimore School of Law says, as Bush leaves the White House, it?s worth asking why he was...
Franklin on Facial Challenges and the Roberts Court
Posted on January 25, 2009Professor David Franklin (DePaul Law) recently posted his excellent article Looking Through Both Ends of the Telescope: Facial Challenges and the Roberts Court on ssrn; it is also forthcoming in the Hastings Constitutional Law Quarterly. In it Franklin explores facial...
Uighurs Seeks Release from Obama Administration
Posted on January 24, 2009Seventeen Chinese Uighurs, still held at Guantanamo Bay while their case is on appeal, have asked the Obama Justice and Defense Departments to release them, according to Lyle Denniston at SCOTUSblog. I previously posted (with links) on the Uighur case...
Global Gag Rule Scholarship - Saturday Evening Review
Posted on January 24, 2009President Obama's decision in his first days to reverse the so-called "global gag rule" or "Mexico City policy" barring international aid connected to abortion led me back to some of the excellent scholarship that has occurred in this area. For...
Letter to Obama Administration Urging Uighur Release
Posted on January 24, 2009I posted here yesterday that attorneys for the 17 Chinese Uighurs held at Guantanamo Bay, and whose habeas case is now on appeal to the D.C. Circuit, asked President Obama to release them into the United States, consistent with District...
Obama's Torture Ban
Posted on January 23, 2009President Obama issued an Executive Order yesterday banning torture and providing for treatment of individuals in U.S. custody consistent with Common Article 3 of the Geneva Conventions, the Federal Torture Statute, and the Convention Against Torture...
Obama's Review Orders for Guantanamo, al-Marri
Posted on January 23, 2009I posted yesterday that President Obama ordered a review of al-Marri's case, now before the Supreme Court. Here's the memo. There's nothing surprising here; just the administration trying to work out what to do with al-Marri. President Obama also ordered...
President Obama and Open Government
Posted on January 23, 2009President Obama issued a memorandum on Wednesday committing the administration to more open government. (I posted on another open-government effort by the administration here.) Among the principles set out in the memorandum: Government should be transparent...
Even More OLC Memos
Posted on January 22, 2009I posted just over a week ago that the OLC was releasing Bush-era legal memos on issues of interest in the prior administration. The OLC released another batch last week; check them out here. Below is a cut-and-paste of the...
Obama on Roe v. Wade
Posted on January 22, 2009Many many websites and news outlets reporting on Obama's press statement, which does not (yet?) appear on www. whitehouse.gov, but reads as follows: On the 36th anniversary of Roe v. Wade, we are reminded that this decision not only protects...
Al-Marri Brief at the Supreme Court
Posted on January 22, 2009Lawyers for al-Marri yesterday filed their merits brief at the Supreme Court. I posted on the administration's request for an extension on its own merits brief here; my most recent post previous to that is here. The case, now captioned...
Administration Requests Time to Review Al-Marri
Posted on January 22, 2009The Obama administration has asked the Supreme Court for an extension of time to file its brief in Al-Marri v. Pucciarelli, the case involving the government's authority to indefinitely detain, without charges, a lawful U.S. resident, captured and held in...
President Obama Closes Secret Prisons, Guantanamo, and Halts Torture
Posted on January 22, 2009President Obama today signed three executive orders closing overseas secret prisons, closing the detention facility at Guantanamo Bay within one year, and halting abusive interrogation techniques. The NYT reports here. Obama has yet to determine where to send Guantanamo detainees,...
Readers: Thank You for Your Support
Posted on January 22, 2009Our just-short-of-4-month-old blog received its 10,000th visit earlier today, we've been named a top-50 Constitutional Law Blog by the Masters in Criminal Justice Blog, and we've received favorable reviews elsewhere. Thank you, readers, for your support! We are, of course,...
Obama (Re)Opens Presidential Records
Posted on January 22, 2009President Obama yesterday issued an executive order reversing the Bush administration policy of allowing former Presidents or their designates to assert executive privilege and thus to protect certain presidential documents from public disclosure. The new EO returns to policies of...
President Obama Halts Guantanamo Prosecutions
Posted on January 21, 2009The NYT reports that President Obama ordered a halt to military tribunal prosecutions of detainees at Guantanamo Bay. The move is part of the new administration's plan to close the detention facility, but there's no word as to what the...
Robson on Teaching Marbury with PowerPoint
Posted on January 21, 2009The Con Law Prof Blog's very own Ruthann Robson (CUNY Law) gave an outstanding presentation at the Association of American Law Schools annual conference on the effective use of PowerPoint--yes, it can be effective--in teaching Marbury v. Madison. I suspect...
Presidential Oath
Posted on January 21, 2009It's one of those rare spots of specificity in the Constitution - Article II section I provides that before a President "enter on the Execution of his Office, he shall take the following Oath or Affirmation:--" -"I do solemnly swear...
ConLawProf in Obama Administration
Posted on January 20, 2009ConLawProf Marty Lederman, of Georgetown, has joined the Office of Legal Counsel. Here's the mention from thinkprogress: Over the past few years, Lederman?s legal blogging at Balkanization has provided invaluable insight and strength to critics of key Bush policies, including...
EXECUTIVE BLOG
Posted on January 20, 2009The inauguration of Barak Obama as the 44th President of the United States is a sign and promise of many changes AND one of those is the new whitehouse website - - - www.whitehouse.gov - - - with its own...
Call for Ideas: Con Law Section Program, AALS 2010 Annual Conference
Posted on January 20, 2009Plans are (already!) underway for the Constitutional Law Section program at the 2010 Association of American Law Schools Annual Conference. Please e-mail section Chair Rick Garnett (Notre Dame, rgarnett@nd.edu) with ideas and suggestions for the program...
The Sunday Reader: Bronin on the Myths and Realities of Special Municipal Utility Districts
Posted on January 19, 2009With the Supreme Court now poised to take up Northwest Austin Municipal Utility District v. Mukasey, the case challenging Congress's reauthorization of the Voting Rights Act (Section 5)--my previous post on this is here--you might reasonably ask (as I did):...
FISA Court Upholds Surveillance Program
Posted on January 19, 2009Last week the U.S. Foreign Intelligence Surveillance Court of Review--the appellate panel under FISA--affirmed a lower FISA court ruling that the Protect America Act of 2007 did not violate the Fourth Amendment. The redacted opinion is here. The PAA authorizes...
Poverty and Con Law - Saturday Evening Review
Posted on January 17, 2009Even if law students comply with Justice Scalia's widely reported remark last year admonishing them not to enroll in waste-of-time courses such as "Law and Poverty," it might not be sufficient to insulate students from the legal problems of poverty...
The People and the Judiciary
Posted on January 17, 2009The Federalist Society 2008 National Lawyers Convention is available online. The program, which explores the role of the judiciary, includes an impressive and extensive line-up from the bench, the bar, and academia. I especially recommend the Friday afternoon session titled...
The Road From Lincoln to Obama: The Constitution and the New Birth of Freedom
Posted on January 17, 2009The American Constitution Society, the NAACP LDF, MALDEF, and the Constitutional Accountability Center co-hosted a lunch-time panel discussion this past Wednesday on the "new birth of freedom" that Lincoln spoke of at Gettysburg and the Reconstruction Amendments...
Right to Counsel in Truancy Proceedings
Posted on January 16, 2009The Washington Court of Appeals--Washington's intermediate appellate court--ruled this week that children in truancy proceedings have a right to counsel (appointed by the district) as a matter of due process. The opinion is here. The court used the familiar Mathews...
Posner on Judicial Review
Posted on January 15, 2009Richard Posner's review of Law and Judicial Duty by Philip Hamburger (Harvard U Press, 2008), appears in The New Republic, available online here. Posner begins by calling judicial review the "most momentous, controversial, even frightening power of the federal judiciary--the...
Another Guantanamo Detainee Ordered Released
Posted on January 15, 2009Judge Richard Leon (D.D.C.) yesterday ordered detainee Mohammed El Gharani released. This is the second time--both within the last 30 days--that Judge Leon ordered a detainee released for lack of sufficient evidence. WaPo reports here; Judge Leon's Memorandum Order is...
Same-Sex Marriage Update
Posted on January 14, 2009Yesterday, a state legislator in Maine introduced a bill that would legalize same-sex marriage in the state. This is particularly noteworthy because, as the ACLU of Maine notes, while several states have judicially recognized such a right, Maine would be...
Detainee Qahtani Tortured, says Crawford
Posted on January 14, 2009Susan Crawford, the administration's official in charge of deciding to bring Guantanamo detainees to trial, said that "[w]e tortured [Mohammed al-]Qahtani," according to Bob Woodward's story in today's WaPo. Crawford dismissed war crimes charges against Qahtani in May 2008 because...
Congressional Research Grants
Posted on January 13, 2009Congressional Research Awards from the Dirksen Congressional Center - deadline February 1, 2009. Here's some info adapted from the Dirksen Center website: The Dirksen Congressional Center invites applications for grants to fund research on congressional leadership and the U...
Inauguration Rhetoric
Posted on January 13, 2009Like a good constitutional law case, a Presidential Inauguration address avails itself of effective rhetoric. As we anticipate Obama's speech next Tuesday, there is an urge to take a look at past efforts by US and other world leaders. NARRATIVE...
Burris Cleared (but only with Sec'y of State's Signature)
Posted on January 12, 2009The Senate cleared Roland Burris this afternoon as a temporary replacement to fill President-Elect Barack Obama's seat. NYT The Caucus reports here. This was the constitutional thing to do, but the Senate did it for the wrong constitutional reasons. The...
Voting Rights at the Roberts Court
Posted on January 12, 2009Linda Greenhouse published this op-ed piece last week (1/9) in the NYT on Northwest Austin Municipal Utility District v. Mukasey, the case challenging Congress's reauthorization of the Voting Rights Act preclearance procedure now headed for the Supreme Court...
Working while Gay - Equal Protection Issue
Posted on January 12, 2009Yesterday, Pandagon.com reported an interesting story out of Tennessee. Apparently, Mr. David Hill was fired by a hotel owner for being homosexual. Let?s talk about this in four ways. First, let?s pretend for the moment that the hotel is a...
Heller update
Posted on January 12, 2009Adam Winkler, ConLawProf at UCLA, posted an update on Heller on The Huffington Post here and it has been making the rounds amongst law students. Perhaps because I gave a Heller issue on the final exam last semester, a student...
Cass Sunstein Post in Obama Administration
Posted on January 11, 2009As The Chicago Tribune reported here, Obama is expected to name Cass Sunstein to head the Office of Information and Regulatory Affairs. The Chicago Tribune story continues: Sunstein brings a measure of star power to the post, as a leading...
The Sunday Reader: (Obama's OLC Pick) Johnsen on the Post-Bush Constitution
Posted on January 11, 2009Professor Dawn Johnsen (Indiana U. and President-Elect Obama's pick to head the Office of Legal Counsel) posted her characteristically excellent piece What's a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses on ssrn; it's also...
Three Thoughts on Prosecution of Administration Officials
Posted on January 11, 2009The NYT ran op-eds today opining on whether Bush administration officials should be prosecuted for authorizing certain acts in the war on terror. Charles Fried (Harvard) argues no; Dahlia Lithwick (Slate) argues yes; Jack Balkin (Yale and Balkinization) argues a...
Saturday Evening Review: Judicial Review, Marbury, and History
Posted on January 10, 2009In THE ACTIVIST: John Marshall, Marbury v. Madison, and the Myth of Judicial Review, independent scholar and author Lawrence Goldstone provides a highly readable discussion. (You might recall Goldstone as the author of Dark Bargain: Slavery, Profits, and the Struggle...
Proposition 8 - Two Panels at AALS
Posted on January 10, 2009The AALS Conference on Friday featured two panels discussing California's controversial Proposition 8 (limiting marriages to those between a man and a woman) passed last November and being challenged before the California Supreme Court, see previous posts here and here...
Fourth Circuit Rules Civil Commitment Law Unconstitutional
Posted on January 09, 2009The Fourth Circuit yesterday ruled in U.S. v. Comstock that Congress lacked authority under the Commerce Clause to enact 18 USC sec. 4248, which authorizes the federal government to place in indefinite civil commitment "sexually dangerous" persons even after they've...
(Semi-)Live from AALS!!
Posted on January 09, 2009This week we are in San Diego at the AALS Annual Meeting. Those of you that are here know that it is an awesome program! For those that are unable to attend, we are happy to summarize one of the...
Dept. of Justice OLC Memos Released
Posted on January 09, 2009In the last month of so--and as recently as yesterday--DOJ released several OLC memos relating to significant questions in the war on terror. Check these out here. Wow. I bet they continue to trickle out up to the inauguration. And...
Supreme Court Review of Sarbanes-Oxley?
Posted on January 08, 2009The Free Enterprise Fund filed a cert. petition this week seeking Supreme Court review of a D.C. Circuit decision upholding Title I of the Sarbanes-Oxley Act, which established the Public Company Accounting Oversight Board under the authority of the SEC...
Burris Blocked, Constitution Violated by Senate
Posted on January 06, 2009The NYT just reported that the Senate, as expected, blocked Burris. Read here why I think this violates the Constitution (more on this particular act below); I've also posted here and here. According to the report, Burris found his way...
Does Habeas Extend to Bagram?
Posted on January 05, 2009Lyle Denniston at SCOTUSblog reports that U.S. District Judge John Bates (D.D.C.) will consider whether habeas corpus extends to prisoners at Bagram Airfield in Afghanistan starting tomorrow. The cases--Wazir v. Rumsfeld, Maqalah v. Rumsfeld, Al Bakri v...
The Sunday Reader: Young on Motive Analysis in Constitutional Law
Posted on January 04, 2009Professor Greg Young (U. Md.) recently posted Justifying Motive Analysis in Judicial Review on ssrn; it is also forthcoming in the William & Mary Bill of Rights Journal. The article is a thoughtful exploration of motive analysis in constitutional law...
Why the Senate Cannot Block Burris
Posted on January 04, 2009The constitutional arguments have circulated (and recirculated) now since Governor Blagojevich appointed Roland Burris to fill President-Elect Obama's Illinois Senate seat. (I've posted here and here, with links to the best.) At the end of the day, the strongest constitutional...
Saturday Evening Review: Supreme Court's Original Jurisdiction
Posted on January 03, 2009This week?s Saturday Evening Review is another ?classic? edition, taking a new look at some familiar legal scholarship. Or perhaps this scholarship is not so familiar? It treats Art. III § 2?s provision: In all Cases affecting Ambassadors, other public...
The United States Senate - continued, continued
Posted on January 03, 2009The Huffington Post here, as well as other outlets, are reporting that Michael Bennet, 44, Denver's public schools superintendent, is the Colorado Gov's choice to fill a Senate vacancy that will be created by the promotion of Sen. Ken Salazar...
Liptak on Obama's Executive Authority Test
Posted on January 03, 2009Adam Liptak reports in today's NYT that the new Obama administration will face an early test of executive authority to detain legal U.S. residents as enemy combatants and to hold them indefinitely without charge in Al-Marri v. Pucciarelli. I've posted...
More on the Senate's Power (or Not) to Block Burris
Posted on January 02, 2009I previously posted here; read more analysis by Lyle Denniston at SCOTUSblog here, Sandy Levinson at Balkinization here, Akhil Amar and Josh Chavetz at Slate here, and Rick Hills at PrawfsBlawg here. Levinson's is the clearest and plainest reading of...
In Case You Missed it, Part III - Equal Protection Edition
Posted on January 02, 2009In this final installment of ?In Case You Missed It . . . ,? we review some of the equal protection stories that might have flown below your radar. The debate over same sex adoptions continues in Florida. While my...
In Case You Missed It, Part II
Posted on January 01, 2009In this installment of things you might have missed while celebrating the holidays or grading (okay, mostly grading), we focus on an important story from the executive branch. The last eight years have seen an unprecedented expansion of executive power...
Obama and the Judiciary
Posted on December 31, 2008The PBS News Hour with Jim Leher had an interesting discussion today with Con Law profs Pam Karlan of Stanford University (oft-mentioned as a possible Obama judicial appointment) and Paul Cassell of University of Utah (a federal district judge from...
Can the Senate Block Burris?
Posted on December 31, 2008Illinois Gov. Rod Blagojevich's appointment of Ronald Burris to fill President-Elect Obama's Senate seat is by now a too familiar story. The NYT reports today what we also expected: Senate Democrats will seek to block the appointment. But can they...
Fair Share and ERISA Preemption
Posted on December 30, 2008Rick Hills started an interesting discussion at PrawfsBlawg on ERISA preemption of state and local "fair share" laws. In general, these laws require employers to provide medical coverage for their employees, or to pay a tax (that goes into, e.g.,...
Phair on Constitutional Constraints on a Lame Duck President
Posted on December 29, 2008Ryan Patrick Phair recently published a very thoughtful American Constitution Society Issue Brief titled The Lame Duck Presidency: A Case for Restraint on "Midnight" Actions During the Transition Period. The Brief explores constitutional limits on a lame duck president and...
In Case You Missed It . . .
Posted on December 29, 2008Although the holidays technically aren't over yet, people are gradually easing back into the "work" mode. Well, my goal this week is to provide analysis of some stories that you might have overlooked while grading bluebooks, eating pumpkin pie, or...
The Sunday Reader: Sunstein on OSHA's Nondelegation Problem
Posted on December 28, 2008Cass Sunstein (Harvard, Chicago) recently published a characteristically thoughtful and important piece, whose title asks a provocative and perhaps surprising question: Is OSHA Unconstitutional? The article appears in the most recent issue of the Va. Law Review; it's also posted...
South Africa Constitutional Court appointment
Posted on December 28, 2008Edwin Cameron, has been appointed to the South Africa Constitutional Court. As South Africa's Sunday Times describes him in an article confirming his recommendation yesterday here: Judge Cameron, currently a Supreme Court of Appeals judge, is one of South Africa?s...
Saturday Evening Review: Oxford Handbook of Law and Politics
Posted on December 27, 2008The Oxford Handbook of Law and Politics, edited by Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (Oxford University Press, 2008), is a 832 page tome described by the publishers as providing a comprehensive survey of the field...
Rossi on the Nondelegation Doctrine
Posted on December 26, 2008Here's an excellent and concise (4-page) encyclopedia overview of the nondelegation doctrine by Jim Rossi (Fl. State) for the Encyclopedia of the Supreme Court of the United States. Take a look. SDS
Liptak on Bush v. Gore
Posted on December 23, 2008Adam Liptak reports in today's New York Times on the staying power of Bush v. Gore in the lower courts. From the article: But now, as the petitioner leaves the national stage, Bush v. Gore is turning out to have...
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