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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

Equal Protection Issue in NH Same-Sex Marriage Bill

Posted on June 05, 2009
Professor 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, 2009
What 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, 2009
Quoting 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, 2009
Polly 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...

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Sotomayor's Responses to Senate Judiciary Committee Questionaire

Posted on June 04, 2009
Sotomayor'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, 2009
Judge 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, 2009
New 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, 2009
Those 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, 2009
Judge 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, 2009
Obama 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, 2009
A 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, 2009
Dignity, 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, 2009
Toobin'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, 2009
My 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...

CFP: On Justice Albie Sachs of South African Constitutional Court

Posted on May 28, 2009
RR

Sotomayor Nomination - Initial Reaction Round-up Part II - On the Issues

Posted on May 27, 2009
This 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, 2009
Interviewed 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, 2009
The 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, 2009
A 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, 2009
President 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, 2009
The 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, 2009
As 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, 2009
Mohammed 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, 2009
President 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, 2009
President 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, 2009
I 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, 2009
President 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, 2009
Judge 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, 2009
The 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, 2009
A 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...

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