Archive for the ‘Constitutional Law’ Category
The Return of Penal Colonies
posted by Gerard Magliocca
On Friday, attorneys for six of the Uighurs held in Guantanamo Bay announced that they have been transferred to live on the island of Palau. (Pitcairn Island must have been unavailable). Perhaps all of the detainees who are the parties in Kiyemba (just taken on certiorari by the Supreme Court) will be resettled to render the case moot.
This ad-hoc way of dealing with the detainee issue strikes me as problematic. In effect, it allows the Executive Branch unfettered discretion to establish penal colonies around the world and place curbs on the post-release activities of detainees without any due process whatsoever. While I’m sure most of the detainees would prefer some freedom on some random island over prison, I think that Congress needs to take a look at this practice and consider establishing some guidelines.
November 2, 2009 at 11:07 am
Posted in: Constitutional Law
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UCLA Law Review 57:1 (October)
posted by UCLA Law Review
Volume 57, Issue 1 (October 2009)
Articles
| From Privacy To Liberty: The Fourth Amendment After Lawrence | Thomas P. Crocker | 1 |
| Who Can Sue Over Government Surveillance? | Scott Michelman | 71 |
| Leverage in the Board Room: The Unsung Influence of Private Lenders in Corporate Governance | Frederick Tung | 115 |
Essay
| After the Bailout: Regulating Systemic Moral Hazard | Karl S. Okamoto | 183 |
Comments
| Evaluating The Public Interest: Regulation Of Industrial Hemp Under The Controlled Substances Act | Christine A. Kolosov | 237 |
| Improving The Education Of California’s Juvenile Offenders: An Alternative To Consent Decrees | Stefanie Low | 275 |
| The Right to Control One’s Name | Julia Shear Kushner | 313 |
Discourse
| Getting the Framers Wrong: A Response to Professor Geoffrey Stone | Samuel Calhoun | |
| The Perils of Religious Passion: A Response to Professor Samuel Calhoun | Geoffrey Stone |
Th UCLA Law Review is also pleased to announce the launch of a our new website.
October 30, 2009 at 4:21 pm
Posted in: Civil Rights, Constitutional Law, Corporate Law, Law Rev (UCLA), Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Uncategorized
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Native Americans and Equal Protection
posted by Gerard Magliocca
I want to flag this forthcoming article by Bethany Berger entitled “Reconciling Equal Protection and Federal Indian Law.” This is one of the best efforts I’ve seen to take the original understanding of the Fourteenth Amendment seriously with respect to how Native Americans should be treated. My own interest is how the Native American example should inform equal protection doctrine generally, which I think is a major blind spot in antidiscrimination law. While this is not what Berger is talking about, her focus on the interaction of these concepts is well worth reading. The Abstract follows the jump:
October 26, 2009 at 8:15 am
Posted in: Constitutional Law
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Medical Marijuana: A Wild Ride on Federal and State Law
posted by Deven Desai
The Justice Department has announced a policy memo about how it will handle medical marijuana. The full memo is on The Justice Blog and in pdf here. As AP summarizes the DOJ will go after medical marijuana operations that exceed state laws or are fronts for criminal acts. At the same time, the New York Times reports that Los Angeles is thinking of cracking down on its more than its estimated 800-1,000 (yes 800-1,000) dispensaries. It seems that many are not adhering to the law that allowed them to exist. For example, many are turning a profit which apparently is not allowed; they must be non-profit. One dispensary in Oakland that adheres to the law has revenues of around $20 million. As the Times reports in other states such as New Mexico, licensed sites still encounter vague and contradictory rules as couriers can be stopped by border patrol and the medical marijuana confiscated even though the delivery is authorized. My colleague Alex Kreit does some great work on drug policy and certainly knows more about it than I. Luckily he will be guest blogging here in the near future. For now I will point folks to his op-ed Yes: It’s Time To Rethink Marijuana Prohibition. It is a thoughtful approach to what to do about marijuana (and has some fascinating figures about how many Americans use marijuana). For me, the recent moves by the federal and state governments seem to indicate that some better system is required to allow the medical use of the drug. The inconsistent standards and enforcement within each state is not great. The more difficult question is how much will medical marijuana be seen as using the federal system to let states test public policy choices? If one adds in same-sex marriage to the question, it seems that federal and state laws are entering a new phase regarding how they interact. I say that because it seems to me that the open divergence between federal and state systems with the possibility that the federal government will ignore or defer to states on national issues is new. In other words, these two issues seem analogous to prohibition and civil rights; yet they are managed differently. I could easily be wrong on this idea. I welcome thoughts and leave sorting out the implications of this possible change to the constitutional law folks.
UPDATE: Lori Ringhand’s comment helped me refocus my thoughts. As she notes (and I was trying to capture but apparently did not), there are of course ebbs and flows in this dynamic. Maybe the better way to ask my question is whether we are seeing a shift towards more deference to states. Again it may not be possible to verify this notion. In addition, it may be that the large social issues are catching attention more than the day-to-day issues. If so, the question may be further refined as are large scale social issues being left to the states a little more than they were from around the 1930s to the 1970s?
Image WikiCommons, Public Domain
October 20, 2009 at 6:47 am
Tags: medical marijuana
Posted in: Constitutional Law, Health Law, Politics
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You’ve lost that Loving feeling
posted by Kaimipono D. Wenger
An incredible story in today’s news:
A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.
“I’m not a racist. I just don’t believe in mixing the races that way,” Bardwell told the Associated Press on Thursday. “I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.”
Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.
It’s 2009, the Obama era, and some folks (a JP!) still haven’t gotten the memo on Loving v. Virginia. Mind-boggling.
October 15, 2009 at 3:54 pm
Tags: Civil Rights, Loving v. Virginia, marriage, Race
Posted in: Civil Rights, Constitutional Law, Family Law
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Constitutional Amendments that Failed in Congress
posted by Gerard Magliocca
As part of my research on the Child Labor Amendment, I’ve come across an interesting issue. There is a strong assumption that constitutional amendments are hard to enact, in part, because you need a two-thirds vote in each House of Congress. It turns out, though, that there are very few amendment proposals that have received a majority in each House but not two-thirds. In other words, in practice, the rules that govern statutory enactments (including the filibuster) weed out almost all amendment proposals.
Think about it — in the last twenty-five years the only two contrary examples are the Balanced Budget Amendment and the Flag Burning Amendment. Reaching back further, I don’t think there are many others (though I’d be interested if people know of some). One wonders, then, why there is a belief that the two-thirds rule is the reason for the lack of amendments rather than robust political support (or norms) in favor of the text as is.
October 14, 2009 at 4:02 pm
Posted in: Constitutional Law
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The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid
posted by Spencer Waller
By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.
A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.
The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.
On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.
By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.
To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.
I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.
October 6, 2009 at 9:55 am
Tags: Chicago, Civil Procedure, Civil Rights, class actions, Constitutional Law, Olympics
Posted in: Civil Procedure, Civil Rights, Constitutional Law, Culture, History of Law, Race, Supreme Court
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When Facts Are Really Interpretations
posted by Gerard Magliocca
Last week I was at the FDR Library in Hyde Park to continue my research on the link between the Child Labor Amendment and the Crisis of 1937, which I’ve blogged about previously. Doing work in archives is always fun. You just feel more scholarly in these places (no more so than in the Reading Room at the Library of Congress.) Plus, old depositories are quirky. They tend, for example, to be fanatically anti-pen. Pens — as opposed to pencils — can leave marks on the documents. Presidential libraries are especially strange because they are memorials for their guy. When I was at the Nixon Library a few years ago, the Watergate section was “Closed for Renovation,” which I found hysterical. At the FDR Library, the term of choice for the President’s 1937 proposal is “judicial reform,” not “Court-packing.”
So what did I learn during my visit?
October 1, 2009 at 4:56 pm
Posted in: Constitutional Law
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Cert. Granted on Second Amendment Incorporation
posted by Gerard Magliocca
My article on this issue, which will be published in the Minnesota Law Review this Fall, is here.
September 30, 2009 at 10:04 am
Posted in: Constitutional Law
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The Proposed Health Care Individual Mandate
posted by Gerard Magliocca
There is a lively discussion underway (on Volokh and in some op-eds) about whether a federal statute requiring all Americans to buy health insurance would be constitutional under the Commerce Clause. I’m interested in this question because I’m now revising a draft paper on the “30,ooo foot” view of the Obama Administration in political time.
One feature of prior constitutional generations (or new party systems) in their initial phase is that there is often a clash between a rising movement and the Supreme Court over a key demand of that movement. Jackson and Marshall fought over the Cherokee Removal. Dred Scott attacked the Republican Party over slavery in the territories. And the Old Court in the 1930s went after the NRA. It is pretty clear that health care is the crucial issue for President Obama. The obvious question is how could the Court challenge that initiative (if enacted) consistent with existing doctrine?
My faculty colleague, David Orentlicher, and I batted around the following idea today. Congress clearly has broad authority to prohibit harmful commercial transactions. It also has similar power to regulate transactions that occur. But does it follow that Congress can require people to engage in a commercial transaction that they do not want to undertake? (Like buying health insurance). I’m not so sure. Are there any precedents for this? I don’t think so. Conscription is a possibility, but that’s a weak analogy. Nothing else comes to mind. Can you think of any examples of federally-mandated commerce? (Obviously, if Congress just encourages people to buy insurance through tax breaks, then this analysis would not apply.)
Of course, nothing in the “substantial effects” test distinguishes between prohibition, regulation, and requirement. I’m just saying that such a distinction could be made and would be plausible.
September 23, 2009 at 3:09 pm
Posted in: Constitutional Law
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Czar Wars
posted by Jon Siegel
Two interesting articles on the Washington Post Op-Ed page recently about the increasing number of policy ”czars” in the White House. These officials report to the President, are not subject to Senate confirmation, and play a nebulous role in policy formulation and implementation. Senator Kay Bailey Hutchison suggests that czars therefore damage the constitutionally required separation of powers. Lawyers David Rivkin and Lee Casey respond that the President can get advice from anyone he wants, and that, if anything, it would be unconstitutional for Congress to stop the President from getting advice from policy czars.
Both articles go too far, but, basically, Rivkin and Casey are right and Hutchison is wrong. As Rivkin and Casey point out, the President can get advice from whomever he wants. He could get all his advice from me if that’s what he wanted to do. He doesn’t need Congress’s permission to seek anyone’s advice.
Hutchison expresses concern that the czars may be “impos[ing] the administration’s agenda on the heads of federal agencies and offices who have been vetted and confirmed by the Senate.” But if we’re talking about officials who serve at the President’s pleasure, what’s wrong with that? The President would be entitled to tell these officers personally what they need to do to keep him pleased (the President does that all the time with Executive Orders, for example). But the President doesn’t have time to keep on top of every one of the innumerable officials who serve at his pleasure, so he appoints some trusted intermediaries to serve that function, and so what?
Of course, these intermediaries could not, any more than the President himself, order officials to do anything illegal, but the President, like any boss, can tell his suboridnates that what would please him best would be for them to do what some intermediate official tells them, insofar as it is lawful to do so. Imagine, for example, that the President said, “I want the heads of DOJ, DHS, the military, State, and Treasury to report directly to me. Everyone else who serves at my pleasure, do what Joe Biden tells you to do.” Could there be anything wrong with that? I think not.
And with regard to officers who exercise power but who don’t serve at the President’s pleasure, the President’s ability to influence them is more limited, but again, whatever the President can do with these officials personally, he can tell them that someone else is his voice in their affairs. So the President can’t exactly order Ben Bernanke to do something, but whatever influence the President has with Bernanke, he could say, “Ben, whatever my economic czar tells you, that’s what I want.”
So I think Hutchison is wrong to suggest that there’s a constitutional problem. Of course, whether having so many czars makes sense as a public policy matter is a different question.
And I do think Rivkin and Casey go too far in one respect — they suggest that there would be a constitutional problem in Congress’s insisting on vetting White House czars. I’m not so sure about that. If the President wants to seek my advice, Congress can’t stop him. But if someone wants to be on the federal payroll, then Congress is footing the bill. If Congress wants to eliminate the budget for czars, I’m hard pressed to see how it could be prevented from doing so. The President has a lot of power, but the power of the purse is pretty potent, too.
September 21, 2009 at 7:09 am
Posted in: Administrative Law, Constitutional Law
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Separation of Parties?
posted by Gerard Magliocca
Three years ago Rick Pildes and Daryl Levinson wrote a terrific piece in the Harvard Law Review called “Separation of Parties, Not Powers.” They argued there that separation of powers did not work the way that Madison envisioned because politicians identify more with their party than with their branch. So when the White House and Congress are controlled by different parties, they check each other vigorously. When we have unified government, though, Congress more or less rolls over, plays dead, and lets the Executive Branch have its way. This is a powerful insight that led Pildes and Levinson to make some thoughtful suggestions about the need to strengthen the rights of the minority party in Congress and about how the courts should review separation-of-powers claims differently depending on whether the challenged statute was produced under divided or unified government. But there is a problem with their theory that the health care debate is exposing. Read the rest of this post »
September 19, 2009 at 10:20 am
Posted in: Constitutional Law
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Rediscovering the Fourteenth Amendment
posted by Gerard Magliocca
I find that blogging is useful for three things. First, you can try out new ideas and see how people react. Second, you can react to current events in real time. Third, you can talk about old ideas that did not get enough attention the first time around. (Call this “Broadway revival” blogging.)
In that spirit, let me mention this paper of mine from a few years on the relationship between Jackson’s removal of the Cherokees from Georgia and the Fourteenth Amendment. The piece argues that part of the original understanding of the Amendment was shaped by its framers support for Native American rights and disgust at the “Trail of Tears.” For example, John Bingham cited Worcester v. Georgia more than once as a benchmark for interpreting Section One of the Amendment. Obviously, there were distinctions made between African-Americans and Native Americans in that text, as tribes with treaty relations with the United States were excluded from birthright citizenship under its “subject to the jurisdiction” clause. Nevertheless, there are important interpretive resources to be found in the law and practice concerning Native Americans leading up to 1868 (on the antidiscrimination principle, positive economic rights, and more traditional individual rights). After Brown, the legal community concluded that the Fourteenth Amendment’s history was basically unhelpful. That is a mistake that more scholars should examine.
September 18, 2009 at 11:05 am
Posted in: Constitutional Law
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Happy Constitution Day!
posted by Gerard Magliocca
“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. This is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow.
What, then, is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten — that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”
Learned Hand — 1944
September 17, 2009 at 5:18 am
Posted in: Constitutional Law
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More on Campaign Finance Reform
posted by Michael Kang
As Gerard noted earlier, the Court today is hearing arguments in Citizens United v. FEC, the well-publicized case featuring “Hillary: The Movie.” The case is receiving a great deal of public attention, not only because many commentators suspect the Court will overrule Austin v. Michigan Chamber of Commerce, but because the case represents a number of notable firsts—it will be the first case of the 2009 Term, the first oral argument by Elena Kagan as solicitor general, and the first case on the Court for Justice Sonia Sotomayor. Rick Hasen has collected previews of Citizens United here.
I’m not sure that the Court will outright overrule Austin, but I understand why many smart people are predicting that it will.
September 9, 2009 at 6:30 am
Posted in: Constitutional Law, Current Events, First Amendment, Politics
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Campaign Finance Reform
posted by Gerard Magliocca
Tomorrow the Supreme Court will hear reargument in Citizens United v. FEC and consider whether to overrule Austin v. Michigan Chamber of Commerce, which upheld limits on independent corporate spending in political campaigns. Since reargument was ordered, one would think that Austin will be overruled. And that would be a good thing.
Campaign finance reform reminds me of the adage, attributed to Mark Twain, that “the more you explain it, the less I understand it.” The Government committed a classic Kinsley error — inadvertently telling the truth — when it told the Court in the first Citizens United argument that Congress could prohibit the circulation of campaign books in the weeks prior to an election. How book banning is consistent with any theory of the First Amendment is beyond me. Granted, McCain-Feingold does not regulate books, but my concern is not alleviated just because its restriction on speech falls on electronic media.
September 8, 2009 at 4:51 pm
Posted in: Constitutional Law
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Copyright Irony, Of Royalty Boards and Google Book Deals
posted by Deven Desai
Earlier this week Live365 filed a law suit arguing that the Copyright Royalty Board is unconstitutional. Today is the deadline for authors to opt-out of the class in the Google Book Settlement. The idea that this Settlement ought to approved is more than suspect. Others have noted the myriad issues the settlement raises. As Pam Samuelson has put it “Exploiting an opportunity made possible by lawsuits brought by a small number of plaintiffs on one narrow issue, Google has negotiated a settlement agreement designed to give it a compulsory license to all books in copyright throughout the world forever. This settlement will transform the future of the book industry and of public access to the cultural heritage of mankind embodied in books. How audacious is that?” The nature of the class, whether class action (which I usually see as better suited to resolving tort rather than property claims) is the correct approach, the way in which this class purports to operate, and the anti-trust issues alone should make it clear that this deal, although possibly offering benefits, should be slowed down and put under further scrutiny.
It is ironic that one one hand Live365 has been able to raise a Constitutional challenge to a copyright royalty issue, and on the other hand what is surely a turning point in copyright history and the question of how society governs access-to-knowledge is subject to a private deal between private parties who have little concern for society’s claim to access and use the works in question. To be clear, I am not arguing that it is improper to figure out a possible payment system. Samuelson’s work on mapping the public domain is clear about reasons we may need and want to have certain groups build, maintain, and charge money for information repositories. The questions that concern me are what will that system look like? Will it allow innovation and competition in the provision of the similar services or will it hinder such efforts? Is this service a natural monopoly? Will the incumbents after the deal is done be able to extract rent? What about the different uses that are conflated here (e.g., higher educational uses, research uses, social networking uses, and more)? What about the spillovers that could come from a more open system such as empirical research on the data in the works and computer science work on the way language operates?
I have begun a close read of the 140 page contract and its appendices. I urge all of you to take a look at the contract. It reminds a little too much of entertainment deals I have read in practice. Some clauses are opaque; some bizarre. All protect one party and ignore others. In a Hollywood or other publishing arena that may be O.K. When talking about the modern Library of Alexandria, it is not.
To whet your appetite about why one should not accept the deal at face value look at this statement of objectives:
The economic terms for Institutional Subscriptions of Books will be governed by two objectives: (1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education. Plaintiffs and Google view these two objectives as compatible, and agree that these objectives will help assure both long-term revenue to the Rightsholders and accessibility of the Books to the public.
My initial comments are at the Public Index in Section IV. But in brief, the assumption that the objective of market rates and the realization of broad public access are compatible is on the surface semi-plausible but facile. The following sub-clauses make it clear that broad public access is not the animating force on the deal. Intense control over access and the ability to price discriminate (including a ban on k-12 access unless the Registry (publishers) agree) are the goals. Again if others read the sections and can show where I err, I am all ears.
As a general matter, if anyone can share why class action was wise and/or a good fit here, please share your insights.
Last, I suggest that this deal is so important that Congress has to be involved. As private re-writing of the Copyright Act is not the correct way to proceed. It will likely take away the chance for copyright to roar into the twenty-first century with a winning solution for authors, publishers, and society at large and instead will repeat history with the system being captured and benefiting only a narrow class of stakeholders.
September 4, 2009 at 11:33 am
Tags: class action, copyright, Google Book Settlement
Posted in: Constitutional Law, Google & Search Engines, Intellectual Property, Technology, Web 2.0
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UCLA Law Review 56:6 (August 2009)
posted by UCLA Law Review
Volume 56, Issue 6 (August 2009)
Articles
Overcoming Overdisclosure: Toward Tax Shelter Detection (pdf)
Joshua D. Blank
First Amendment Enforcement in Government Institutions and Programs (pdf)
Gia B. Lee
Ezra Pound’s Copyright Statute: Perpetual Rights and the Problem of Heirs (pdf)
Robert Spoo
Comments
Nonwaiver Agreements After Federal Rule of Evidence 502: A Glance at Quick-Peek and Clawback Agreements (pdf)
Jessica Wang
Narrowing the Definition of “Dwelling” Under the Fair Housing Act (pdf)
Karen Wong
Addressing Youth Bias Crime (pdf)
Jordan Blair Woods
September 2, 2009 at 3:17 pm
Posted in: Constitutional Law, Contract Law & Beyond, Corporate Law, Intellectual Property, Law Rev (UCLA), Race
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Conference: Important Questions of Federal Law—Assessing the Supreme Court’s Case Selection Process
posted by Yale Law Journal
The Yale Law School Supreme Court Advocacy Clinic and The Yale Law Journal Online, the forthcoming online platform of The Yale Law Journal, will host a half-day conference, “Important Questions of Federal Law”: Assessing the Supreme Court’s Case Selection Process, on September 18, 2009, at the National Press Club in Washington, D.C. The conference will consider the nature and causes of changes in the Supreme Court’s docket in recent years, as well as suggestions for reform of the certiorari process. The conference is made possible by the generous support of the Oscar M. Ruebhausen Fund. Practicing attorneys, judges, academics, and students are invited to attend. There is no charge for the conference, but space is limited, so all attendees must pre-register here. Breakfast and refreshments will be provided. If you are unable to attend, podcasts of conference sessions and downloadable papers from the panelists will be made available by Yale Law School’s main website. Select papers will also be published by The Yale Law Journal Online. Information on the conference can also be downloaded by clicking here. For more information on The Yale Law Journal Online and the conference, please contact YLJ Online Editor Kathleen Claussen here.
August 31, 2009 at 7:14 pm
Posted in: Conferences, Constitutional Law, Law Rev (Yale), Law Rev Forum, Supreme Court
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The Third Amendment and the War on Terror
posted by Gerard Magliocca
I’ve long wondered — mostly in jest — whether the Third Amendment says anything meaningful for modern constitutional analysis. Griswold v. Connecticut cited the Amendment as support for the “right to privacy,” but that’s the only time it’s really been used. But here’s an thought experiment (partly fun, partly serious).
Here’s the text of the amendment:
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
Most people overlook the fact that this means Congress has the power to quarter soldiers in your house during a war (it just needs to pass a law to do so). If the Third Amendment is construed as expressing a privacy principle, then this suggests that Congress has greater latitude to invade our privacy during a war. Of course, this begs the question of what “war” means. Does that mean there must be a declaration of war? Or is it just “not peace,” given that peace is stated as a condition in the preceding clause? If Congress decides that we need to put soldiers in private homes to fight the war on terrorism, would that be constitutional?
August 30, 2009 at 5:25 pm
Posted in: Constitutional Law
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