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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.
By Steven D. Schwinn, Ruthann Robson, Nareissa L. Smith

Post Frequency: 3.1/day

Last Entry: November 04, 2020 at 10:04:25

Report concludes Sotomayor's opinions lack strong ideological bent

Posted on June 28, 2009
The 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, 2009
The 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, 2009
Shortly 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...

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Can the Government Hold "Sexually Dangerous" Persons Beyond Their Prison Term?

Posted on June 24, 2009
The 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, 2009
In 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, 2009
The 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, 2009
The 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, 2009
Senator 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, 2009
The 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, 2009
New 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, 2009
Could 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, 2009
As 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, 2009
The 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, 2009
Pace 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, 2009
How 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, 2009
What 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, 2009
Federal 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, 2009
The 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, 2009
The 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, 2009
The 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, 2009
Now 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, 2009
Individual 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, 2009
I 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, 2009
The 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, 2009
The 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, 2009
The 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, 2009
The 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, 2009
Calculating 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...

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