Cockfighting, Congress, and Interstate Commerce

Posted on Categories Congress & Congressional Power, Constitutional Interpretation, Criminal Law & Process, Federalism, Public1 Comment on Cockfighting, Congress, and Interstate Commerce

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 States . . . .” Federal prosecutors successfully applied the statute at the trial level, and now the case is before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit.

The defendants (now appellants) argue that their conduct is not sufficiently related to interstate commerce, and is too local in character, to justify Congress’ exercise of its interstate commerce authority. Their contention in this regard is not about whether the promotion of cockfighting may be banned, but rather whether such conduct may be banned by Congress, which can only enact statutes that further its constitutionally enumerated powers. (Such conduct is largely prohibited, albeit with a lesser criminal sanction, by South Carolina law.)  Their contention, moreover, appears not to be that the Animal Welfare Act as a whole is unconstitutional, but only that its application to their particular conduct exceeds Congress’s interstate commerce power.

The appellants’ arguments have a familiar ring to them. Continue reading “Cockfighting, Congress, and Interstate Commerce”

Tebowing and the Constitution

Posted on Categories First Amendment, Public, Religion & Law, Sports & Law, U.S. Supreme CourtLeave a comment» on Tebowing and the Constitution

Much has been made of Broncos quarterback Tim Tebow’s outward expressions of his Christian faith, especially his practice of kneeling in moments of prayer—“Tebowing” as it is now called—after touchdowns, some of them admittedly a bit miraculous.

A recent issue of Time magazine, for example, included an article on Mr. Tebow, his faith, and the Tebowing phenomenon, with pictures of people in different locations “Tebowing Round the World.” Fox Sports’ website similarly offers a gallery of athletes and celebrities Tebowing in various settings. And last month, the Wall Street Journal ran an article entitled “Tim Tebow: God’s Quarterback,” observing that his “combination of candid piety and improbable success on the field has made Mr. Tebow the most-discussed phenomenon of the National Football League season.”

So, what is the possible relationship between Tebow-like conduct and the Constitution? Continue reading “Tebowing and the Constitution”

New Database Creates Time-Series Plots of Phrases in U.S. Supreme Court Opinions

Posted on Categories Constitutional Interpretation, Federal Law & Legal System, Legal History, Legal Research, Public, U.S. Supreme CourtLeave a comment» on New Database Creates Time-Series Plots of Phrases in U.S. Supreme Court Opinions

Emory and Michigan State Law Schools have teamed up to create a free database that allows you to search for a term or phrase in U.S. Supreme Court opinions (1791-2005) and automatically generate a time-series frequency chart of the phrase’s appearance. Continue reading “New Database Creates Time-Series Plots of Phrases in U.S. Supreme Court Opinions”

American Indians and Equal Protection

Posted on Categories Civil Rights, Federal Indian Law, Public, Race & LawLeave a comment» on American Indians and Equal Protection

This is the second in a series of posts addressing some of the most commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post addressed casinos, hunting and fishing rights, and taxes. This second post, unlike the first, is devoted to just one question, namely, why doesn’t the unique legal treatment of Indian tribes or their members violate the Constitution’s guarantee of equal protection? Continue reading “American Indians and Equal Protection”

Answers to Some Common Questions About American Indians

Posted on Categories Federal Indian Law, Federal Law & Legal System, Public, Wisconsin Law & Legal System1 Comment on Answers to Some Common Questions About American Indians

This blog is written largely for the benefit of non-Indians, readers who have no affiliation with one of the hundreds of federally recognized tribes, eleven of which are found in Wisconsin.  I teach a course on federal Indian law at Marquette’s law school, and the questions that follow are just a few of the ones that I often encounter personally or hear in public discussions. Continue reading “Answers to Some Common Questions About American Indians”

Fleeting Indecencies and Enduring Constitutional Doctrine

Posted on Categories Constitutional Interpretation, First Amendment, PublicLeave a comment» on Fleeting Indecencies and Enduring Constitutional Doctrine

[Editor’s Note: This month, faculty members will discuss upcoming judicial decisions of particular interest. This is the first post in the series.]

On June 27, 2011, near the end of its October 2010 Term, the U.S. Supreme Court granted certiorari review in FCC v. Fox Television Stations, a case arising in 2010 out the Second Circuit Court of Appeals following a 2009 remand from the Supreme Court.

At issue, in this round of the litigation, is the FCC’s expansion of its broadcast prohibitions to include so-called “fleeting indecencies,” isolated (uncensored) utterances that “describe or depict sexual or excretory organs or activities” and, when used, are “patently offensive as measured by contemporary community standards for the broadcast medium.” Perhaps the most notorious fleeting indecency in recent years was Janet Jackson’s unfortunate “wardrobe malfunction,” precipitated by Justin Timberlake, during the halftime show of Super Bowl XXXVIII. Continue reading “Fleeting Indecencies and Enduring Constitutional Doctrine”

Orcas and the Thirteenth Amendment

Posted on Categories Civil Rights, Constitutional Interpretation, PublicLeave a comment» on Orcas and the Thirteenth Amendment

This last week, a lawsuit was filed in the U.S. District Court for the Southern District of California alleging that SeaWorld’s captivity and exploitation of five wild-captured orcas, or so-called killer whales, amounts to slavery and involuntary servitude in violation of the 13th Amendment to the U.S. Constitution.  The nominal plaintiffs are the orcas themselves—Tilikum, Katina, Corky, Kasatka, and Ulises—although the suit is technically being brought by PETA and several individuals.  The complaint seeks “an injunction freeing [the orcas] from Defendants’ bondage and placing them in a habitat suited to their individual needs and best interests.” Continue reading “Orcas and the Thirteenth Amendment”

The Supreme Court and the Fate of the Ministerial Exception

Posted on Categories Civil Rights, Constitutional Interpretation, Education & Law, First Amendment, Public, Religion & Law, U.S. Supreme CourtLeave a comment» on The Supreme Court and the Fate of the Ministerial Exception

In 1999, Cheryl Perich began service as a lay teacher at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Michigan.  A year later, she became a “called teacher,” selected by the congregation to serve as a commissioned minister and charged with duties of a more pastoral nature, such as teaching religion classes, leading the students in devotional exercises, and participating in weekly chapel functions, though continuing to teach predominantly secular subjects.

In June 2004, however, Perich developed symptoms of a medical disorder, eventually diagnosed as narcolepsy. Despite obtaining in February 2005 a doctor’s certification of her ability to return to work, the school had already made alternative arrangements and proposed that she resign her call. After she threatened legal action for alleged disability discrimination, the congregation then rescinded her call and she was duly terminated from her teaching position at the school. Continue reading “The Supreme Court and the Fate of the Ministerial Exception”

The Rise of Interdisciplinary Legal Education

Posted on Categories Legal Education, Public1 Comment on The Rise of Interdisciplinary Legal Education

[Editor’s Note: This month, we asked a few veteran faculty members to share their reflections on what has changed the most in legal education since they became law professors.  This is the fourth in the series.]

Since 1995, when I first joined Marquette’s law faculty, one of the most obvious changes I have witnessed has been an increase in the interdisciplinary nature of legal scholarship and, not uncoincidentally I believe, the number of interdisciplinary (“law and”) courses that law schools, including Marquette, offer their students.  Certainly these trends were on the rise before 1995, but their present pervasiveness across law school faculties and curricula seems to me to mark a cumulatively significant change.

This development likely has multiple causes.  The influx into law faculties of those holding doctoral degrees in other fields, noted recently by Professor Hylton, is certainly one, although the ready susceptibility of law or legal topics to analysis by these other disciplines suggests that other factors are at work.  One haunting explanation, of course, is that law is perhaps not a genuinely autonomous discipline after all, but rather little more than the procedure-laden application of independent fields of knowledge to the prevention and resolution of conflict.

Whatever its causes, this development likely has also generated multiple consequences, some of which might be seen as benefits, others as costs.  Continue reading “The Rise of Interdisciplinary Legal Education”

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