Federal Law & Legal System – Page 29 – Marquette University Law School Faculty Blog

Grilling By Judges? It’s Not Just for Moot Court.

Post author:Deborah Darin
Post published:December 18, 2014
Post category:Federal Law & Legal System Legal Practice Legal Research Legal Writing Marquette Law School Public

Perhaps it is because I just spent an enjoyable few weeks judging the Appellate Writing and Advocacy class moot court rounds, that lately I have taken a few detours while doing research. While reading some of the NSA phone data cases, I watched an enlightening and very entertaining appellate argument online. We may wait a long time to see video recordings of U.S. Supreme Court arguments, but the Circuit Courts of Appeal oblige us for some of their cases, which is a bonus for everyone including students.

Several plaintiffs’ lawsuits that challenge the National Security Administration’s phone records surveillance program are making their way through the federal courts. Plaintiffs in these cases have claimed the NSA data grab violated their rights under the Fourth Amendment or that Section 215 of the Patriot Act, the original basis for the surveillance under President George W. Bush, cannot reasonably be interpreted as allowing the program. For students who participate in a moot court competition, or are considering it in the future, video of the oral arguments in these cases provides an opportunity to learn something about the privacy issues and also to see the types of questions and atmosphere an attorney might expect from a federal appellate panel.

Discerning the Relationship Between Bankruptcy Judges and Article III Judges

Post author:Frank Remington
Post published:December 11, 2014
Post category:Federal Law & Legal System Judges & Judicial Process Public U.S. Supreme Court

This summer, the United States Supreme Court handed down a decision in the case of Executive Benefits Insurance Agency v. Arkison that changed how bankruptcy judges, covered under Article I (the Executive Branch) of the Constitution, and district court Article III judges work together. Arkison helped clarify nagging procedural issues between district and bankruptcy courts. At the same time, Arkison verified a significant reduction in the ability of bankruptcy courts to resolve common claims arising in bankruptcy proceedings.

Arkison began as a seemingly conventional case. In 2006, Bellingham Insurance Agency filed for Chapter 7 bankruptcy. Peter Arkison was assigned as the trustee. Mr. Arkison filed a fraudulent conveyance complaint against Bellingham, something not uncommon in a bankruptcy proceeding. In fact, Title 28 specifically grants bankruptcy courts the ability to hear and determine such claims. The bankruptcy court granted summary judgment on Mr. Arkison’s claim.

The black letter language in Title 28 and Supreme Court precedent contradict each other.

President Obama’s Executive Orders are Constitutional

Post author:Edward A. Fallone
Post published:November 27, 2014
Post category:Constitutional Law Immigration Law President & Executive Branch Public

A “head fake” is a basketball move where the player holding the ball feints as if starting a jump shot, but never leaves his feet. Done correctly, it causes the defender to jump off of their feet in anticipation of the shot, arms flailing helplessly. Meanwhile, the shooter calmly resets and scores a basket while the defender is harmlessly suspended in the air.

Just over two weeks ago, the mid-term elections supposedly signaled the end of President Obama’s ability to drive the policy agenda in Washington. Last Thursday night, the nation’s “Basketball Player in Chief” executed a brilliant head fake on immigration policy, disproving this conventional wisdom. Hints that the President intended to “go big” and use his executive authority to conduct an overhaul of the Immigration and Nationality Act had generated anticipatory paroxysms of outrage by Republicans, who hit the airwaves with charges of constitutional violations and threats of impeachment. However, the executive actions that the President actually announced last Thursday were more modest in scope than what Latino groups and reform advocates wanted, and far less provocative than congressional Republicans feared.

The executive actions on immigration fall well within the Executive Branch’s established authority to set priorities in the enforcement of Immigration Law and clearly within the constitutional power of the President. Meanwhile, the President’s Republican critics have already committed themselves to a campaign of outrage and indignation, even though it is increasingly evident that they lack a legal basis to attack the President’s actions or a political strategy to undo them. The President’s head fake is evident when the details of the Executive Orders are examined.