Professor Orin Kerr has a post here arguing that opponents of the Individual Mandate are wrong to argue that an Obama Administration victory in the Individual Mandate cases would mean that there are no limits to federal power under the Commerce Clause. Unfortunately, this is at most only half true. According to Kerr, advocates of [...]
Prof. Bell has a blog post objecting to both originalism and living constitutionalism because both interpretive theories lead to what he considers an objectionable outcome: the same word being used to mean different things within the document. This outcome, he contends, “threatens the rule of law” because “an average citizen, using ordinary English, would not [...]
Two cases from the mopping-up phase of the recent Supreme Court term—J.D.B. v. North Carolina and Brown v. Entertainment Merchants Assn.—have me thinking about kids and the Constitution. These two cases join prior Court decisions that delineate the constitutional rights of minors—cases such as Tinker v. Des Moines School District (1st Amendment—children [...]
Two Fridays ago, I attended the daylong Washington, DC, Judicial Conference on implicit bias. Implicit bias, as I observed in my prior post on Connick v. Thompson, is bias that is unconscious rather than conscious. The fact that bias is implicit, however, does not mean that it is not invidious. Implicit bias [...]
The Supreme Court granted certiorari last week almost assuredly to reverse a Ninth Circuit ruling creating a Bivens action for prisoners wanting to sue prison personnel at privately-run correctional facilities. The case is Minneci, et al., v. Pollard, No. 10-1104. After having read the lower court decision and cert-stage briefs, I am [...]
The Supreme Court’s recent decision in Brown v. Plata puts Governor Jerry Brown in the hot seat. Prison reform in California is now mandated by law. The good news is that California can look to other states for help. One of those states, somewhat surprisingly, is Texas. This is not just [...]
I’ve just posted a revised version of my paper, Substantive Due Process And The Promise of Lawful Rule: A Conceptual Guide, on SSRN. This article is an attempt to explain the argument in favor of “substantive due process” (a misleading name in itself) less in terms of history than in terms of [...]
I ran across a rather strange case in the Seventh Circuit involving several defendants on trial for various tax, mail and wire fraud counts. This was far from a routine tax case. To say the case was complex is kind of an understatement—there were over 1 million documents related to the trial. During the middle [...]
Update: Orin Kerr has this post about oral arguments this morning. Judge Motz told the attorneys challenging the ACA that they could argue for as long as they wanted but with the caveat that the government would be able to argue for the same amount of time. I just read over the ACA Litigation Blog [...]
A couple of weeks ago, I raised the issue of implicit racial bias in the exercise of prosecutorial discretion in Connick v. Thompson. Recently, I was paging through the April issue of the DC Bar's Washington Lawyer. There, on page 9, was a full-page ad for the upcoming (June) 36th Annual Judicial Conference of the [...]