The Supreme Court has just agreed to hear the latest incarnation of FCC v. Fox Broadcasting (cert petition here), which asks whether the FCC’s current anti-indecency enforcement regime violates the freedom of speech or of the press, and is unconstitutionally vague. Justice Sotomayor is apparently recused. This could be an opportunity for the Court to […]
Archive | June, 2011
The Final Four
This morning, the Supreme Court is expected to issue merits opinions in the four remaining cases from the October 2010 term. Don’t expect unanimous opinions. Some of these cases have been under consideration for some time. Two were argued in January, and one last November. The last four cases are: Brown v. Entertainment Merchants Association […]
Monday Bear Blogging
Bear sightings are on the rise in Ohio. The Cleveland Plain Dealer reports there were 119 sightings in 2009 and 164 in 2010. Official estimates of Ohio’s black bear population remain quite low. Increased sightings, if evidence of growing bear numbers, would be a positive sign. On the other hand, increased sightings could also be […]
Are You Starting Law School in the Fall?
If you are starting law school in the fall, you will have to take Contracts. May I recommend my recent book, Contracts, which is in the new series from Oxford University Press, called The Oxford Introductions to U.S. Law. It was written to provide law students with an accessible overview of contract law principles and […]
Alito v. Sotomayor?
Last Sunday, the Washington Post ran a story comparing Justice Alito with Justice Sotomayor. The comparison is interesting as they are the only justices on the court with prosecutorial experience and much direct experience with trial court proceedings (although Sotomayor has substantially more than Alito). The Supreme Court’s two former prosecutors sit on opposite ends […]
Wisconsin Justices Get Physical
It was clear the justices on the Wisconsin Supreme Court were divided, and disagreed sharply over how to resolve litigation over the passage of controversial legislation curtailing public employee collective bargaining rights. But things in chambers apparently got even more heated than many realize. The Journal-Sentinel reports that an argument among some of the justices […]
A Nightmare Justice
Imagine a twentieth century Justice who was a Social Darwinist; who had a self-proclaimed disdain for facts, and who often substituted flip aphorisms for legal analysis; who was the most hostile Justice of the century to the rights of African Americans, dissenting even in cases invalidating peonage laws as violations of the Thirteenth Amendment; who […]
Is There a First Amendment Right of Access to Material Witness Proceedings?
Yesterday, in United States v. Brice, the U.S. Court of Appeals for the D.C. Circuit turned away a convicted defendant’s effort to unseal the records of material witness proceedings that were referred to during his sentencing hearing. Even assuming there was a “qualified” First Amendment right of access to material witness proceedings the Court held […]
The Dangerous Effort to Delegitimate Supreme Court Justices
It has been clear for some time now that activists have moved from impugning the character of conservative Supreme Court nominees to delegitimating them as sitting justices. Curt Levey has an interesting article idescribing these tactics and the possible motives of the attackers: Ganging Up on Justices Thomas, Scalia, and Alito. Here is how the […]
Would the REINS Act Rein In Federal Regulation?
I have an article in the new issue of Regulation on the REINS Act, which would prevent major regulations from taking effect without the passage of a joint resolution of approval by Congress. The article is largely based on my Congressional testimony about the Act, and summarizes the arguments for and against the measure. My […]
The Incidental Unconstitutionality of the Individual Mandate
By David Kopel on June 24, 2011 7:44 pm in Constitutional History, Constitutional Law, Health Care, Individual Mandate, Necessary and Proper, Originalism
A recent Yale Law Journal Online article by Northwestern law professor Andrew Koppelman argues that the Obamacare individual mandate is obviously constitutional, especially in light of how McCulloch v. Maryland construed the Necessary and Proper clause. Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform (April 2011). Gary Lawson (Boston Univ.) and I […]
Gay Marriage Vote in N.Y. Senate Tonight?
It looks like a long-anticipated vote on whether to approve same-sex marriage will be held in the state senate, perhaps tonight. As of now, 31 of the 62 senators have publicly supported it. Two Republicans are counted among those 31, and the search has been on for at least one additional GOP vote. The price […]
My Article on Abolitionist Constitutionalism
I have blogged about this in the past, but the final published version of my article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment is now uploaded to SSRN. This is the final version as it will appear in the peer-reviewed Journal of Legal Analysis. Because the Journal is migrating from the […]
Circuit Split Over Speech and Debate Clause
Yesterday, the U.S. Court of Appeals for the Ninth Circuit rejected former Representative Richard Renzi’s effort to escape prosecution for alleged quid pro quo corruption. Rep. Renzi claimed he was immune from prosecution under the Constitution’s the Speech and Debate Clause. Specifically, Rep. Renzi claimed the federal government sought to prosecute him for privileged “legislative […]
Why Are Evidentiary Objections “Overruled” or “Sustained” Instead of “Denied” or “Granted”?
Amanda Rice asks the interesting linguistic question at Just Enrichment. I assume the reasons are historical, but I don’t know the relevant history enough to know. Does anyone have a more informed answer?