Constitutional Law

Overton, Overton, Overton ParkA

Posted on March 24, 2010
Overton, Overton, Overton ParkA snark can't judge, but a judge can snarkHave me adjudicate, I remarkOverton, Overton, Overton Park.

From the Fed Soc, a bucket of documents

Posted on March 22, 2010
From the Fed Soc, a bucket of documents on the Health Care Bill issue, including an analysis of the individual mandate issue, shaping up as the early leader among possible constitutional issues.You might be amused to know that, in this year in which the Big Constitutional Issue besides health care is the 2nd Am...

Sestakgate: Did the White House

Posted on March 13, 2010
Sestakgate: Did the White House (comma, someone at) commit bribery in offering Rep. Joe Sestak (D-Pa.) a high-ranking federal job if he would pull out of his primary race against Sen. Arlen Specter? And if so, did Sestak commit "misprision of felony" in delaying the reporting of it, as Specter -- hardly a disintereted party -- now claims?

A Yale Law Journal article makes

Posted on March 05, 2010
A Yale Law Journal article makes the case for more, and more candid, political influence in administrative rule-making, linking this to the "democracy theory" of the Chevron doctrine, a theory I have always favored.(In a nutshell: Chevron doctrine = judicial deference to an agency's interpretation of a statute it administers, where that interpretation is at least reasonable and not foreclosed by

To access this complete feed in the blog feed reader login or register for free.

"Old McDonald had a Clause: p/i

Posted on March 03, 2010
"Old McDonald had a Clause: p/i I Don't Know"Some 2nd day reflections following oral argument in McDonald v. Chicago:1. Many news sources (e.g. the WSJ's page one refer-hed) are announcing this morning that the Court is likely to hold that gun ownership is a "fundamental right...

McDonald oral argumentPostpone

Posted on March 02, 2010
McDonald oral argumentPostpone the Privileges & Immunities revolution. Attorney Alan Gura led with it, but the Chief and Scalia weren't buying any, and both "sides" of the Court showed concern (or prurient interest?) in "what else" p/i might cover.I expect Justice Thomas will say something about this in a separate opinion -- though you'd think that if there was ever a time for him to break his

Maryland v. Shatzer: Edwards is

Posted on February 26, 2010
Maryland v. Shatzer: Edwards is a made-up rule, to protect Miranda, which is also a made-up rule. If the Ct is going to stick by these made-up rules, a made-up 14-day rule is as good as any other and better than most.

The Yoo-Bybee issue: here, thanks

Posted on February 22, 2010
The Yoo-Bybee issue: here, thanks to Andy McCarthy at NRO (hat-tip also to PowerLine) is the Mukasey-Filip letter of January 19, 2009 (their last full day as AG and DAG, respectively), comprehensively critiquing the leaked Dec. '08 OPR Draft Report condemning John Yoo and Jay Bybee...

Bravo to various DC firms, listed

Posted on February 07, 2010
Bravo to various DC firms, listed here by The BLT , for allowing their employees to dress down and leave early last Friday due to Apocalypse Snow.Here in Virginia Beach we get good dosing of snow on Saturday afternoon while Regent was hosting a major moot court competition, but nothing like the previous weekend's Nine Inch Pales.

Credit where it's due: Linda Greenhouse

Posted on January 28, 2010
Credit where it's due: Linda Greenhouse nails Obama's con law misstatement in SOTU

Why I haven't as yet enabled comments

Posted on January 26, 2010
Why I haven't as yet enabled comments on this blog. H/t: Walter Olson.

Re "Justice Scalia's Musical Interlude"Hey,

Posted on January 26, 2010
Re "Justice Scalia's Musical Interlude"Hey, that's Zerbinetta! If you read my other blog, you probably know all about her, but in case not, here's the brief.In this appearance as an extra at the Washington National Opera, as once several years ago (with Ginsburg), Scalia was an extra is Richard Strauss?s ARIADNE AUF NAXOS...

Judge Walker?s ?Immediate Need? for a YouTube Circus?Part 3

Posted on January 11, 2010
The Ted Olsen-initiated Prop. 8 trial -- which, if successful up to the Supreme Court, would make same-sex marriage the "law of the land" by virtue of the 14th Am. Equal Protection Clause, overturning all state laws against it and the wave of recent state legislative votes rejecting it -- starts tomorrow, pending a possible Supreme Court ruling on (George H...

Prop. 8 trial: playing anti-Prop.

Posted on January 11, 2010
Prop. 8 trial: playing anti-Prop. 8 ads, asking plaintiffs how they made them feel. Relevance, acc. to Judge Walker: to "establish homophobia." What a thoughtcrime trial looks like.

Ted Olson at Prop. 8 trial: marriage

Posted on January 11, 2010
Ted Olson at Prop. 8 trial: marriage is "highest expression of self." Pretty much the syllabus of the thing, no? Whether it's an expression of self (the "highest," no less), or a social institution that happens, incidentally, to "express selves" (assuming w/o deciding that that's even a meaningful phrase) when those "selves" align themselves with the goals (permanence, fidelity, rearing of the

Great moments in "universal jurisdiction":

Posted on December 16, 2009
Great moments in "universal jurisdiction": Britain apologizes to Livni over arrest warrant. Too right it does -- and scrambles to fix its ridiculous laws, too.Be sure to view the Livni video-statement in this link too.

Ginsburg v. Sotomayor. Now, Ginsburg's

Posted on December 02, 2009
Ginsburg v. Sotomayor. Now, Ginsburg's take on this (if I may extrapolate based on past remarks she's made about media attention to similar clashes with O'Connor) will be that the pressies only get their knickers in a twist when it's the women on the Court cutting each other off...

An excellent article in, for a

Posted on November 24, 2009
An excellent article in, for a marvel, the New York Times: Right and Left Join Forces on Criminal Justice.?Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,? said Douglas A...

Substantive Due Process and Unenumerated

Posted on November 11, 2009
Substantive Due Process and Unenumerated Rights: confronted with the Janus-face of the current Court, what's a student to due -- er, do?A student asks:In Con Law II class, I tried at the beginning of class to very poorly state an argument on why an incestuous Plaintiff ][i...

"Come to think of it, draft cards

Posted on October 29, 2009
"Come to think of it, draft cards aren't persons either." -- John Hart Ely.Win.

Lawsuit Fail. (H/t: Above the

Posted on October 27, 2009
Lawsuit Fail. (H/t: Above the Law)

Chuck Cooper wasn't prepared to

Posted on October 27, 2009
Chuck Cooper wasn't prepared to answer the "What's the harm" question? Amid all his research, he didn't take in Prof. Lynn Wardle's essay collection, or Prof. Robert P. George's articles (you might start with this, but there's a lot more)? Without an awareness of the impact of a common culture of marriage on individuals and families in the aggregate, present and future, why was he even motivated

U.K. social workers plan to take

Posted on October 27, 2009
U.K. social workers plan to take child from unwed mother -- because she's unwed? Oh no: in fact, she and the father are engaged. It's because in the social worker's opinion the 17-year-old mother does "not understand the implications of getting married...

It's great to be a cause-oriented

Posted on October 14, 2009
It's great to be a cause-oriented lawyer, but don't be this type.

"A Delta airliner en route from

Posted on October 14, 2009
"A Delta airliner en route from Seattle to Atlanta made an unscheduled stop in Nashville after a passenger reportedly began quoting Bible passages. No one was hurt."Imagine our relief.Actually, it appears that what got the passenger arrested was battery attempted kidnapping; interesting, though, that reporters would give the ?lede? to the Bible factor...

Frakk'n Nebbia. If that rapacious

Posted on October 13, 2009
Frakk'n Nebbia. If that rapacious milk price-fixing scheme didn't violate the Due Process Clause (and it probably didn't -- let's talk about P/I later), then it violated the Equal Protection Clause as blatant class legislation. I'll even entertain a motion that it violated the Titles of Nobility Clause...

Prof. Paul Robinson, U. Penn Law

Posted on September 23, 2009
Prof. Paul Robinson, U. Penn Law School:The rules of international law governing the use of force by victims of aggression are embarrassingly unjust and would never be tolerated by any domestic criminal law system. They give the advantage to unlawful aggressors and thereby undermine international justice, security and stability...

Go put My Friend Vinnie in the

Posted on September 18, 2009
Go put My Friend Vinnie in the Netflix queue: Politico explains; Above the Law comments

"Where the rights of others are

Posted on September 13, 2009
"Where the rights of others are not involved, however," writes Prof. Michael McConnell is his great article in 103 Harv.L.Rev., describing the view of free exercise of religion taken in the early state constitutions, "the free exercise right prevails...

I'm re-reading Gonzales v. O Centro

Posted on September 11, 2009
I'm re-reading Gonzales v. O Centro and appreciating for the first time the Court's sense of irony. "Oh yes, Congress, first you enacted broad Controlled Substance Act exemptions for Native Americans, then you enacted freakin' RFRA -- and *now* you want us to go all neutral-and-generally-applicable...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.