Author Archive for robert-tsai
Hallucinogenic Tea with Chief Justice Roberts
posted by Robert Tsai
Earlier, I posted on the interesting position taken by the new Chief Justice on the Gonzalez v. Oregon case, which involved the Controlled Substances Act. There, he joined Justices Scalia and Thomas in a reading of the federal law that would have effectively ended Oregon’s experiment with physician assisted suicide. Now, in Gonzalez v. O Centro Espirit a Beneficente Uniao Do Vegetal, he authors a major opinion reading the Controlled Substances Act (CSA) narrowly to allow a church to import hallucinogenic tea. What gives?
February 23, 2006 at 1:56 pm
Posted in: Constitutional Law
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The Meaning of “Well Settled Law”
posted by Robert Tsai
Lawyers use the phrase liberally in their briefs; judges sprinkle their opinions with it. But hardly anyone agrees what it means. The phrase: “well settled law.” One of the most interesting exchanges occurred during the Alito hearings over this very phrase:
Ms. Feinstein asked whether Judge Alito did not agree that Roe “was well settled in court.”
He said, “It depends on what one means by the term ‘well settled.’”
This was followed by an extended back-and-forth and careful parsing of what the phrase may or may not mean to Alito.
It would be a mistake to see Alito’s equivocation as merely a product of confusion over terminology. Indeed, Alito’s hesitation to accord Roe the status of “well settled law”–he finally said only that it must be accorded “respect” as “very important precedent”–cannot be understood in an internally coherent way.
February 6, 2006 at 1:46 am
Posted in: Civil Rights, Constitutional Law, Legal Theory, Politics
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Hail to the (New) Chief: Death With Dignity-Part III
posted by Robert Tsai
So, what might be gleaned from the New Chief’s silent joining of Justice Scalia’s dissenting opinion in Gonzalez v. Oregon? First, as to be expected (at least for now), he is influenced more by his experiences as a former executive branch lawyer and member of the political elite than he is by any popular backlash against the unitary executive model.
Second, national interests trump state interests–even where there is ambiguity in the federal statute. His own questions at oral argument, particularly his concern for the uniformity and supremacy of federal law, suggested this outcome. Federalism is messy, and it appears he is unwilling to countenance too much muss. He, like Scalia, is willing to read Congress’ enumerated powers broadly (and the core of state’s rights narrowly in advance of national interests)–even when the strongest interest appears to be in cultivating moral standards. This is bad news for proponents of interstitial federalism.
Third, his willingness to sign Scalia’s dissent in toto–and thereby subjugate his own ego in a high-profile matter–shows that he is as savvy as his confirmation hearings suggested. The practice of writing separately has almost become a custom with the Rehnquist Court. He is willing to buck this trend, to allow Scalia to speak for this coalition on this day with a single voice, and to build his alliances carefully–starting with his natural friends.
January 18, 2006 at 5:30 am
Posted in: Constitutional Law
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Death With Dignity–Part II
posted by Robert Tsai
Justice Kennedy’s opinion affirmed Oregon’s statute, and overturned Attorney General Ashcroft’s interpretive rule claiming that the use of controlled substances to assist suicide is not a medical practice and therefore unlawful under the CSA (Controlled Substances Act). Technically, the case involved whether the Attorney General’s interpretation should be accorded any deference; here, the Court concluded “no.”
But I have to think that Oregon is very, very lucky regarding the timing of the case.
January 17, 2006 at 3:28 pm
Posted in: Constitutional Law
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Supreme Court Upholds Oregon’s Death With Dignity Act
posted by Robert Tsai
In a 6-3 decision, the Court today upheld Oregon’s physician-assisted suicide law. With the Court’s makeup in flux, there was much speculation that if the conference vote was 5-4, the case might be held over for reargument. It appears that the key was that the federalism position won over Justice Kennedy, who was visibly torn at oral argument. Assigning him to write–a privilege of the most senior Justice in the majority–helped to keep him on board. A decisive majority meant there was no reason for Justice O’Connor not to participate. Off to class–more analysis later.
January 17, 2006 at 11:13 am
Posted in: Constitutional Law
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Just Do It: Sports v.s. Academics
posted by Robert Tsai
So, another sportswriter has gotten under the skin of University of Oregon President Dave Frohnmayer. Awhile back, Sports Illustrated shined a national spotlight on the football program’s lavish digs.
Here is ESPN’s account of Phil Knight’s (read: NIKE’s) alleged influence on the track program and the university generally, prompting Frohnmayer to fire back.
January 16, 2006 at 4:21 pm
Posted in: Law School
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Green Bag Honors Good Legal Writing from Past Year
posted by Robert Tsai
The Green Bag has published its first ever “Almanac of Useful and Entertaining Tidbits for Lawyers & Reader of Good Legal Writing from the Past Year: Selected by the Legal Luminaries and Sages on our Board of Advisors.” (whew!–it’s a lawyerly mouthful; too bad the editors couldn’t practice what they’re preaching).
The top vote-getters in each category:
1. OPINIONS AND ORDERS
Honorable Paul H. Cassell, U.S. v. Angelos, 345 F. Supp.2d 1227 (D. Utah 2004)
Honorable Alex Kozinski, In re Complaint of Judicial Misconduct, 425 F.3d 1179 (9th Cir. 2005) (dissenting)
Honorable Mark P. Painter, Kohlbrand v. Ranieri, 823 N.E.2d 76 (Ohio Ct. App. 2005)
Honorable James M. Rosenbaum,Rohwer v. Federal Cartridge Co. 2004 U.S. Dist. Lexis 23744 (D. Minn.)
Honorable Antonin Scalia, Roper v. Simmons, 543 U.S. 551 (2005) (dissenting)
Honorable Diane P. Wood, Gore v. Ind. Univ., 416 F.3d 590 (7th Cir. 2005)
2. BOOKS
David Currie, The Constitution in Congress: Democrats and Whigs, 1829-1861 (Chicago Univ. Press 2005)
Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (Henry Holt 2005)
Sadakat Kadri, The Trial: A History, From Socrates to O.J. Simpson (Random House 2005)
January 9, 2006 at 12:28 am
Posted in: Law and Humanities
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