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Constitutional Law

Constitutional Law Prof Blog

News, analysis, and commentary on constitutional law issues in the courts, the administration, Congress, and the states; and commentary and analysis on constitutional law scholarship.
By Steven D. Schwinn, Ruthann Robson, Nareissa L. Smith

Post Frequency: 3.1/day

Last Entry: November 04, 2020 at 10:04:25

Equal - Fred Strebeigh's History of Women and Law

Posted on April 28, 2009
Strebeigh's new book, Equal: Women Reshape American Law, published by WW Norton, might be a good book to recommend to students entering law school or students preparing for their first Constitutional Law course. The book has been getting some good...

Ninth Circuit Rejects Administration's State Secrets Claim

Posted on April 28, 2009
A three-judge panel of the Ninth Circuit today rejected the Obama administration's claim that the state secrets privilege required dismissal of the plaintiffs' entire lawsuit at the pleading stage. The plaintiffs in the case, Mohamed v. Jeppesen Dataplan, Inc...

Vladeck on Boumediene and Access to the Courts

Posted on April 27, 2009
Professor Stephen Vladeck (AU/WCL) recently posted his excellent article, Boumediene's Quiet Theory: Access to Courts and the Separation of Powers, on ssrn; it's also forthcoming in the Notre Dame Law Review. This is a thoughtful and engaging piece, characteristic of...

Do the Torture Memos Undermine the Administration's State Secrets Claim?

Posted on April 27, 2009
The ACLU filed a letter with the Ninth Circuit arguing that the recently released torture memos undermine the administration's state secrets claim in the case challenging the Bush administration's extraordinary rendition program, Mohamed v. Jeppesen Dataplan...

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The Teaching Assistant

Posted on April 26, 2009
Hello! There a a variety of stories that may be of interest this week. Let's begin, shall we? Constitutional History Over at the Faculty Lounge, Al Brophy has a post discussing the extent and nature of the Founder's Christianity, and...

D.C. Circuit Dismisses British Detainees' Constitutional Tort Claims

Posted on April 25, 2009
A three-judge panel of the D.C. Circuit ruled on Friday that federal officials were entitled to qualified immunity and that Boumediene v. Bush (holding that the Suspension Clause applies to aliens at Guantanamo Bay) did not mean that the Fifth...

Australian Constitutional Law: Saturday Evening Review

Posted on April 25, 2009
There are many terrific articles and books on Australian Constitutional Law. Yet as I prepared for the public conversation with Justice Michael Kirby, recently retired from Australia's High Court, I found two invaluable sources that are worth reading - and...

D.C. District Sides with Government on Standard of Detention

Posted on April 23, 2009
Judge Reggie B. Walton (D.D.C.) yesterday issued a memorandum opinion in a consolidated case of Guantanamo detainees that adopted the Obama administration's recently suggested and refined standard of detention for detainees at Guantanamo Bay. (I previously posted on this here...

Is the EPA Undemocratic?

Posted on April 23, 2009
In the wake of the Environmental Protection Agency's decision last Friday to propose to find that greenhouse gases endanger public health and welfare, some are claiming that the EPA is undemocratic. For example, Jonah Goldberg wrote in today's Chicago Tribune...

Senate Committee Report on Detainee Treatment

Posted on April 22, 2009
The Senate Armed Services Committee yesterday released its report on the treatment of detainees in U.S. custody, concluding that torture was approved by cabinet and other high-level officials in the Bush administration. The report (pp. 119-129) tells the story of...

It's Time to Work Out a Coherent Basis for Incorporation

Posted on April 22, 2009
David Gans, the Director of the Human & Civil Rights Program at the Constitutional Accountability Center, argued earlier this week that Monday's Ninth Circuit Second Amendment case gets us closer to working out a coherent basis for incorporation of the...

Gender and the Supreme Court "Vacancy"

Posted on April 21, 2009
Last week, Dahlia Lithwick wrote an intriguing article in Slate magazine regarding the frequently heard argument that President Obama's first nominee to the Court should be a woman. Lithwick quotes Justices Ginsberg and O'Connor lamenting the dearth of women on...

Quick Hit - Interesting Take on the Ricci Case and Equal Protection

Posted on April 21, 2009
If you are at all interested in the Ricci case, please take a moment to read this posting by Deborah Hellman which discusses the Ricci case, but also critiques some of the underlying assumptions in equal protection jurisprudence. It's definately...

President Obama leaves door open to some prosecutions

Posted on April 21, 2009
Today's NYT reports that while the President has reiterated his position that those CIA operatives following torture orders should not be prosecuted, there is hope for some prosecutions. The President said: Mr. Obama said once again that he does not....

Restraining Executive Power: The Views of Arlen Specter

Posted on April 21, 2009
In a just published article in The New York Review of Books here, Arlen Specter, Senior Republican United States Senator from Pennsylvania and Ranking Member on the Senate Judiciary Committee, has signaled his intention to take "several concrete steps" to...

Setty on Comparative State Secrets

Posted on April 20, 2009
Professor Sudha Setty (Western New England) just posted her enlightening article Litigating Secrets: Comparative Perspectives on the State Secrets Privilege on ssrn; it's also forthcoming in the Brooklyn Law Review. Setty presents a fresh and interesting comparative approach to state...

Ninth Circuit: Second Amendment Incorporated, Gun Show Ban Upheld

Posted on April 20, 2009
A three-judge panel of the Ninth Circuit today ruled that the Fourteenth Amendment Due Process Clause incorporates the Second Amendment individual right to bear arms against state and local governments. At the same time, the panel upheld a county ordinance...

A Case of Mistaken Identity?: Justice Stevens and "Shakespeare"

Posted on April 20, 2009
The Wall Street Journal has an engaging report on Justice Stevens' beliefs - - - as well as the beliefs of some other Justices - - - on whether Shakespeare was the author of Shakespeare's canon. Justice Stevens, it seems,...

Comparative Constitutionalism and Rights: Robson's Saturday Evening Review

Posted on April 19, 2009
Being in Montreal the last two days for a workshop entitled "Queer Empire" at McGill University organized by Canadian scholars Kim Brooks and Robert Leckey has been quite a treat. The presenters included American ConLaw Profs Kendall Thomas and Kenji...

Civil Partnerships & Religious Marriages? Douglas Kmiec's Views

Posted on April 19, 2009
Con Law Prof Douglas Kmiec of Pepperdine can be viewed on the popular comedy show "The Colbert Report" in the April 16, 2009 episode here. Kmiec appeared on the show to promote his book, Can a Catholic Support Him? Asking...

The Torture Memos

Posted on April 17, 2009
DOJ released four Bush era OLC memos today providing the legal justification for certain "enhanced interrogation techniques" of alien detainees held outside the United States. These newly released memos concluded that specific techniques (and combinations of techniques) did not violate...

The Teaching Assistant

Posted on April 17, 2009
Hello. Here are the stories that might interest you this week! Equal Protection/Fundamental Rights Sihks in the U.S. Army are challenging military regulations prohibiting the growth of facial hair and wearing of headgear as religious discrimination. The ACLU is working...

Basardh Released as an Unlikely Future Threat

Posted on April 17, 2009
Judge Ellen Huvelle's April 15, 2009, Memorandum Opinion ordering the government "to take all necessary and appropriate diplomatic steps to facilitate [Guantanamo Detainee Basardh's] release" was released today in redacted form. Basardh gained fame as a government informer at Guantanamo,...

Notes on the Court, part III (final installment)

Posted on April 17, 2009
This is the final portion of my three-part post looking at various issues affecting today's Supreme Court. Here is the final topic - should the Supreme Court look to foreign law in deciding its cases? Recently, Paul Horowitz at PrawfsBlawg...

NSA "Overcollected" Domestic Communications of Americans

Posted on April 16, 2009
Eric Lichtblau and James Risen just posted an article in the NYT that the National Security Agency intercepted private e-mails and phone calls of Americans in recent months that exceeded the limits set by Congress. According to the article, the...

DOJ Releases OLC Torture Memos, Promises not to Prosecute

Posted on April 16, 2009
The Department of Justice today announced the release of four previously unreleased Bush era OLC memos providing the legal justifications for particular interrogation techniques--now commonly understood to include torture--of detainees in the war on terror...

SCOTUS Vacancy?

Posted on April 16, 2009
Well, it looks like our parlor game of "Who's out First?" may be coming to a C-SPAN near year. Today, Concurring Opinions reports that Justice David Souter has not hired law clerks for the upcoming term. Thus, those in the...

Obama Administration: No Habeas at Bagram

Posted on April 14, 2009
The Obama administration last Friday filed a motion to certify for interlocutory appeal a federal district court's April 2, 2009, order extending the privilege of habeas corpus to certain detainees at Bagram Airfield in Afghanistan. (Thanks to Lyle Denniston at...

The Right to a Dishwasher - Justice Thomas

Posted on April 13, 2009
Adam Liptak reports in today's New York Times about a talk given by Justice Clarence Thomas regarding the Bill of Rights: ?I have to admit,? [Thomas] said, ?that I?m one of those people that still thinks the dishwasher is a...

CFP: National Security and Constitutional Law

Posted on April 13, 2009
Call for Articles, Essays, and Book Reviews: National Security and Constitutional Law Proposals due May 15, 2009 The editors of Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to a special issue on the relationship...

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