Oct

14

President Chester A. Arthur and the Birthers, 1880’s Style

Posted by: J. Gordon Hylton | October 14, 2009 | 1 Comment

The Obama citizenship “debate” has surprisingly brought former president Chester A. Arthur (1829-1886) back into the pages of American newspapers, which is no small feat.  Unlike President Obama, who is clearly eligible to hold the nation’s highest office, Arthur, the twenty-first president (1881-84), may well have been an “unconstitutional” president.
Although Arthur is frequently seen as Millard [...]

Oct

14

When the Answer is No: Constitutional Protection for Faith Healing?

Posted by: Richard M. Esenberg | October 14, 2009 | 2 Comments

The tragic case of  Kara Neumann highlights one of the problems with robust protection for the free exercise of religion. Kara died of untreated diabetes because her parents chose to pray rather than take her to the doctor. Both have been convicted of second degree reckless homicide. How does their prosecution square with robust protection [...]

Oct

13

Reinert on the Actual Success of Bivens Claims and Its Implications for the Constitutional Rights of Federal Employees

Posted by: Paul M. Secunda | October 13, 2009 | Leave a Comment

Alex Reinert (Cardozo) has posted on SSRN his forthcoming article in the Stanford Law Review: Measuring the Success of Bivens Litigation and its Consequences for the Individual Liability Model.
Here’s the abstract:
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that the Federal Constitution [...]

Oct

13

In Defense of Negative Spaces

Posted by: Richard M. Esenberg | October 13, 2009 | 3 Comments

Ed Fallone’s post last week on finding negative space in the Constitution got me to thinking about the uses – and dangers – of metaphors in legal thinking. What does it mean for there to be “negative space” in the Constitution. We could think of it, as Ed does, like the open areas in a [...]

Oct

13

What The Birthers Have Taught Us About Barack Obama And The Constitution

Posted by: J. Gordon Hylton | October 13, 2009 | 1 Comment

The campaign to prove that Barack Obama is not eligible to serve as president of the United States, carried out by certain opponents who have become known as “Birthers,” has succeeded in establishing (1) that Obama is in fact eligible to be president and (2) that Article II, Section 1 of the United States Constitution, [...]

Oct

7

Searching for Negative Space in the Constitution

Posted by: Edward A. Fallone | October 7, 2009 | 3 Comments

Some people dislike the game of soccer.  They observe the players running around on the field and it all seems like random chaos.  Soccer aficionados, however, are not focusing on the players.  They are watching the spaces in between the players.  These empty spaces ebb and flow, like waves in the ocean, creating momentary opportunities [...]

Sep

20

A Republican Form of Government

Posted by: Edward A. Fallone | September 20, 2009 | 2 Comments

On September 17, I participated in the Constitution Day program at the Law School.  All of the presenters were asked to discuss one part of the United States Constitution that is often overlooked.  My choice was the “republican form of government” clause, Article IV Section 4, which reads as follows: “The United States shall guarantee [...]

Sep

11

Constitution Day

Posted by: Chad M. Oldfather | September 11, 2009 | 1 Comment

Some portions of the Constitution are the subject of frequent discussion. Concepts like “due process,” “equal protection,” “freedom of speech,” and the like are headline-grabbers. Phrases like “Commerce … among the several States” do not resonate quite as much with the general public, but are certainly familiar to lawyers.
A glance at the Constitution [...]

Aug

31

Catholics on the Court

Posted by: Edward A. Fallone | August 31, 2009 | 6 Comments

Three recent events have added a new wrinkle to a debate that has been taking place among legal scholars: what, if anything, does it mean to be both a Catholic and a Supreme Court Justice?
First, the confirmation of Justice Sonia Sotomayor has added a sixth practicing Catholic to the Supreme Court.  As a proportion of the [...]

Jul

23

More on Coulee Catholic Schools v. LIRC

Posted by: Daniel Suhr | July 23, 2009 | 3 Comments

As Professor Esenberg has just posted about, earlier this week, the Wisconsin Supreme Court handed down a very important decision, Coulee Catholic Schools v. LIRC (2009 WI 88). Although some describe the holding as “a dramatic change” in Wisconsin employment law, I think the case is more important for its constitutional discussion. On the actual question [...]

Jul

23

Coulee Catholic: Of Loopholes and Legislating

Posted by: Richard M. Esenberg | July 23, 2009 | Leave a Comment

Wednesday, in a case called Coulee Catholic Schools v. Labor and Industry Review Commission, the Wisconsin Supreme Court held that the “ministerial exception” to state laws prohibiting employment discrimination applied to a teacher in a Catholic grade school. As a result, the teacher’s claim against the school for age discrimination must be dismissed.
There a few [...]

Jul

15

The Sotomayor Hearings: Supreme Court Citations to International and Foreign Law

Posted by: Michael P. Waxman | July 15, 2009 | Leave a Comment

As the Senate hearings addressing the nomination of Judge Sonia Sotomayor to the United States Supreme Court proceed through the thickets of legal concerns, one issue that appears to be rather arcane to the average American may be among the most significant. Indeed, it reflects a philosophical dispute that underlies many of the questions at [...]

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