Constitutional Law

"Finally, we cannot avoid comment

Posted on June 17, 2010
"Finally, we cannot avoid comment upon Justice Kennedy? s donning of the mantle of judicial restraint...."Uh oh, there's no way this ends well. The Scalia plurality has already not avoided comment on this: a but supra, where it said[I]t is strange to proclaim a democracy deficit and lack of special competence for the judicial taking of an individual property right, when this

Interesting that when Scalia, in

Posted on June 17, 2010
Interesting that when Scalia, in one of the plurality sections of the Save the Beach opinion, protests that the Kennedy concurrence "propels us back to what is referred to (usually deprecatingly) as ?'the Lochner era'[,]? he leavens his assertion "that the the 'liberties' protected by Substantive Due Process do not include economic liberties" with the parenthetical

Hey -- if Scalia is writing about

Posted on June 17, 2010
Hey -- if Scalia is writing about beaches, does that mean he's not writing about guns? Shoot me now.

From our hero, and just in time

Posted on June 17, 2010
From our hero, and just in time for beach season -- more than you ever wanted to know about littoral riparian rights. And the moral of that is: 1st year Property matters!

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Bankruptcy cases yield strange

Posted on June 17, 2010
Bankruptcy cases yield strange splits.

Justice Kennedy, concurring, says:The

Posted on June 17, 2010
Justice Kennedy, concurring, says:The Court?s Takings Clause jurisprudence has expanded beyond the Framers? understanding, as it now applies to certain regulations that are not physical appropriations. See Lucas, supra, at 1014 (citing Mahon, 260 U...

Today, closing arguments were heard

Posted on June 16, 2010
Today, closing arguments were heard in Perry v. Schwarzenegger, the "Proposition 8" case in federal court in California. Review the live-blogging by the National Organization for Marriage here.As he has throughout the trial, Judge Vaughan Walker left no doubt where he stands, approaching the issue as if marriage had been a gender-irrelevant practice from time immemorial until a bunch of bigoted

No particularly interesting SCOTUS

Posted on June 14, 2010
No particularly interesting SCOTUS opinions today -- and no majority opinions by Justice Scalia in quite some time. And McDonald -- the 2nd Am case -- was heard during the February sitting, like the other cases in which decisions are currently being released, was it not? Hmm...

More on the Virginia Episcopal

Posted on June 11, 2010
More on the Virginia Episcopal v. Truro caseThe Virginia Supreme Court says (slip op. at 18):While undoubtedly there was theological disagreement between TEC [the Episcopal Church] and the Diocese and CANA [Convocation of Anglicans in North America, with implied reference, no doubt to John 2:1-11], the ADV [Anglican Diocese of Virginia], the dissenting congregations and the Church of Nigeria [an

The Virginia Supreme Court, overruling

Posted on June 10, 2010
The Virginia Supreme Court, overruling a lower court opinion, has just ruled unanimously against a breakaway Anglican group (insert Henry VIII joke here) and in favor of the Episcopal Church, from which this Anglican group broke away.Apparently the substance of the ruling is that the lower court erred in holding that "continuing Anglican" group was actually part of the Episcopal Church...

"Critique the right to marry as

Posted on June 01, 2010
"Critique the right to marry as a movement priority"AALS conventions are one of the places where the "cutting edge" cuts its edges. It is with a certain amount of surprise, then, that one finds on the menu of one of the inevitable rethink-the-family seminars that they have every year at their early-January general conventions, the following offering from next January's meeting:The law and

So let's see: state courts can't

Posted on May 17, 2010
So let's see: state courts can't lock up juvenile armed robbers for life, b/c SCOTUS imagines the 8th Am says they can't; yet Congress can lock up "dangerous" people civilly (i.e. w/o criminal justice protections for the accused), b/c SCOTUS imagines Art...

Manhattan Institute's James Copland

Posted on May 12, 2010
Manhattan Institute's James Copland argues that a conservative-tolerant law-school dean easily morphs into a leftist judge.Copland also alludes to Kagan's poor performance right "out of the gate" in her first case before the Court, the Citizens United 1st Amendment case, argued last summer and decided last January, where her side lost, and for which President Obama gave the Justices present at

Is Kagan anti-military? The charge

Posted on May 12, 2010
Is Kagan anti-military? The charge may actually hold up. See Bill Kristol's piece on this here, and links therein.

Kagan: government power, not executive

Posted on May 12, 2010
Kagan: government power, not executive power (Lawrence Lessig wouldn't lie!)Day 3 of the Kagan debate seems to have shifted from her hardscrabble upbringing on the Upper West Side and the one-room schoolhouse at the elite Hunter College High School, a scholarship-only high school on the Upper East Side (those daily crosstown bus rides, omg!), plus the academic pressure of Princeton and

Walter Olson on Kagan nomination

Posted on May 11, 2010
Walter Olson on Kagan nomination as "revenge of the grinds," i.e. the Ivy-League grade-grubber -- the "organization kids."So strange that the Obamalama dingdongs would keep on playing the "common touch"/"empathy" theme. Yep, Manhattan's ultra-arty Upper West Side, then Princeton, then Harvard Law School, then the corridors of national power...

Kagan and the HLS military recruiting

Posted on May 11, 2010
Kagan and the HLS military recruiting policy:Her predecessor as Dean, Robert Clark, defends her in the WSJ. Weekly Standard editor (and former Harvard College poli sci prof) Bill Kristol deconstructs Clark's defense here.

Harvard Law and former SG Prof.

Posted on May 11, 2010
Harvard Law and former SG Prof. Charles Fried evaluates Kagan's time as HLS Dean. Conclusion: she was hospitable to conservatives and welcomed them -- and lefties too -- to the faculty; but in the final analysis, "her heart beats on the left."Glenn Greenwald at Salon continues to speak for the never-say-die anti-Kagan left.

Prof. Robert P. George's very interesting

Posted on May 11, 2010
Prof. Robert P. George's very interesting declaration on the Kagan nomination. Note that he believes she should and must explicitly answer questions about hot-button issues. Normally I would not agree, but Prof. George grounds his demand in specific demands that Kagan has made of other nominees (perhaps referring to this)...

ACLJ statement on KaganI'm glad

Posted on May 10, 2010
ACLJ statement on KaganI'm glad this statement called attention to her lack of judicial experience without calling this a disqualifier. After all (as Jordan Sekulow pointed out on the air -- gosh, my students are smart!), Rehnquist was in the same boat...

Looks like it will be KaganI haven't

Posted on May 09, 2010
Looks like it will be KaganI haven't been blogging about Stevens or his replacement, because Stevens's retirement just wasn't news by the time it was announced, and as for the choice of replacement -- meh, one liberal will replace another; the UK election (about which I Tweeted a lot; see left margin) was much more exciting...

Regent to showcase 15 student

Posted on May 04, 2010
Regent to showcase 15 student films

Daily Telegraph (London): "Christian

Posted on May 03, 2010
Daily Telegraph (London): "Christian preacher arrested for saying homosexuality is a sin"Had to be, see:Police officers are alleging that he made the remark in a voice loud enough to be overheard by othersWhat is society supposed to do with preachers like that?Was the preacher, Dale McAlpine, a Westboro-Baptist-type lowlife? Here's his narrative: you be the judge...

"A case which bubbles over with

Posted on April 19, 2010
"A case which bubbles over with poetical emotion"In his on-going "This day in judicial activism" feature on the Benchmark blog at NRO, Ed Whelan recalls today's anniversary of Sierra Club v. Morton, a sound decision that produced a dissent from the fast-fading Justice Douglas, by then in the "cocktail napkin" phase of his career:Dissenting from the Supreme Court?s ruling in Sierra Club v...

CLS v. MartinezFogged about the

Posted on April 19, 2010
CLS v. MartinezFogged about the Christian Legal Society v. Martinez oral argument this morning. Lyle Denniston's account (than which no further authority is needed, tho' I will of course look at the transcript myself when I can) makes it sound as tho' the Court allowed this case to reach it despite uncertainty about basic facts, such as, do Hastings's draconian rules requiring its campus's

Why Judge Crabb's decision striking

Posted on April 16, 2010
Why Judge Crabb's decision striking down about the National Day of Prayer is wrong* It assumes that government action that neither coerces religious conduct nor confers on any religious denomination(s) the status of an official church violates the Establishment Clause...

Eric Posner sasses out "universal

Posted on April 15, 2010
Eric Posner sasses out "universal jurisdiction" and the International Criminal Court.

Justice Thomas did mention George

Posted on April 15, 2010
Justice Thomas did mention George Mason as a great, non-Ivy League law school, during his testimony around 1:20:20. Win!

Unanimous 3-judge DC Cir. ruling:

Posted on April 06, 2010
Unanimous 3-judge DC Cir. ruling: FCC's net neutrality power grab goes beyond its statute (Tatel, writing for self, Sentelle, and Randolph)

Daily Telegraph (London): Senior

Posted on March 29, 2010
Daily Telegraph (London): Senior bishops call for end to persecution of Christians in Britain.One case in particular is highlighted (though many are cited) in the Anglican Bishops' letter: that of Nurse Shirley Chaplin, who has been told to stop wearing her cross-necklace at her job at the NHS, after wearing for 38 years...

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