Jan

30

Cockfighting, Congress, and Interstate Commerce

Posted by: | January 30, 2012 | 1 Comment

Some convicted defendants in South Carolina are crying foul at the application of the federal Animal Welfare Act to criminally punish the promotion of cockfighting. The statute is said to be based in the power of Congress, found in article I, section 8 of the Constitution, to “regulate commerce . . . among the several [...]

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Jan

16

John Paul Stevens’ Restraint

Posted by: | January 16, 2012 | 1 Comment

After he retired in 2010, John Paul Stevens published Five Chiefs: A Supreme Court Memoir.  After a brief description of the first twelve Chief Justices of the United States Supreme Court, from John Jay through Harlan Fiske Stone, he describes in more detail the last five with whom he was professionally acquainted.  Stevens clerked for [...]

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Oct

11

Severability and the Erie Doctrine

Posted by: | October 11, 2011 | Leave a Comment

“Severability” doctrine holds that where a statute is partially unconstitutional, a reviewing court can excise the unconstitutional part rather than declare the entire statute invalid, if consistent with legislative intent. The doctrine figures centrally in a broad array of constitutional litigation, including ongoing litigation over the “individual mandate” provision of the Patient Protection and Affordable [...]

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Aug

22

The Constitutional Right of Recall

Posted by: | August 22, 2011 | 4 Comments

The largest newspaper in Wisconsin, the Milwaukee Journal-Sentinel, continues to take the editorial position that the public’s right to recall elected officials should only be exercised in cases of misfeasance in office or of criminal conduct.  The editorial page actively disparages the use of the recall process in cases where voters simply disagree with the [...]

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Jul

29

Trying to Hire a Hit Man? Don’t Answer Your Cell Phone

Posted by: | July 29, 2011 | 1 Comment

A new Seventh Circuit decision underscores the jurisdictional breadth of the federal murder-for-hire statute, 18 U.S.C. § 1958(a). Although solicitation to commit murder would seem a prototypical state offense, it can be prosecuted federally if money was involved and a “facility of interstate commerce” was used. And it takes very little indeed to satisfy the latter [...]

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Jul

9

Measuring the McCarran-Ferguson Act’s Antitrust Immunity

Posted by: | July 9, 2011 | Leave a Comment

That insurance regulation rests primarily with the fifty states has become axiomatic and even cliché.  Around the country are operational state insurance commissions, and for much of the twentieth century, the federal government has let these agencies be.  The Employee Retirement Income Security Act’s (ERISA) sweeping preemptive force is cabined by a savings statute that allows [...]

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Jun

16

Defendant Can Raise Tenth-Amendment Challenge to Her Conviction, SCOTUS Rules

Posted by: | June 16, 2011 | Leave a Comment

Earlier today, in Bond v. United States (No. 09-1227), the Supreme Court ruled that the defendant should have been permitted to raise a Tenth-Amendment challenge to the chemical-weapons statute that she was convicted of violating.  In response to her indictment for violating 18 U.S.C. § 229, Bond had argued that the conduct with which she is [...]

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Oct

25

Best of the Blogs: One Lump or Two?

Posted by: | October 25, 2010 | Leave a Comment

November 2 is fast approaching, and the nation is awaiting the election results to see whether the Tea Party Movement will be revealed to be a force in American politics or an over-hyped media sensation.  This week’s “Best of the Blogs” feature provides everything a political junkie needs to learn more about the Tea Party Movement. The [...]

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Oct

4

Tea Party Economics

Posted by: | October 4, 2010 | 9 Comments

Readers of this Blog know that I have a longstanding interest in the debate over the scope of the federal government’s power to regulate the economy under the Constitution.  I am also inclined to take the Tea Party Movement seriously as a political phenomenon rather than writing them off as a group of buffoons or [...]

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Aug

5

Perry v. Schwarzenegger and the Slippery Slope

Posted by: | August 5, 2010 | 5 Comments

As just about everyone knows, yesterday a Northern District of California judge struck down California’s Proposition 8 as unconstitutional. There has been a tremendous amount of blog commentary on this already, much of it worth reading. (See Orin Kerr (here and here), Dave Hoffman, Eugene Volokh, Dale Carpenter, Howard Wasserman, Rick Hasen.) The one issue [...]

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Aug

1

Best of the Blogs

Posted by: | August 1, 2010 | Leave a Comment

Is American law too complex?  PrawfsBlawg featured an interesting exchange on this question last week.  Eric Johnson initiated the exchange with this post, in which he observed: There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it’s not there. It’s so large as to be [...]

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May

14

The Constitutionality of Health Reform’s “Individual Mandate”

Posted by: | May 14, 2010 | Leave a Comment

  As noted in my blog post last week (“The Beginning of Health Reform“), pushback against the federal Patient Protection and Affordable Care Act was swift.  Members of nearly 40 state legislatures have proposed legislation or constitutional amendments limiting or opposing certain provisions of the Act, with most of the proposals targeting the Act’s requirement that [...]

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