Federal Law & Legal System – Page 69 – Marquette University Law School Faculty Blog

New Criminal Law Blogs

Post author:Michael M. O'Hear
Post published:May 1, 2012
Post category:Computer Law Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

Criminal law aficionados might want to check out two new blogs with Marquette connections. First, U.S. Court of Appeals for the Seventh Circuit Updates tracks new decisions by the Seventh Circuit in criminal cases. The authors are Amelia Bizzaro ’03, Tony Cotton ’05, Chris Donovan ’05, Josh Uller ’05, and your truly.

Second, Cybercrime Review explores “new technology, recent legal developments, and interesting arguments at the intersection of computers and the law.” The authors are a current Marquette student, Justin Webb, and Jeffrey Brown, a student at the University of Mississippi School of Law. In addition to being law students, both Justin and Jeffrey have impressive professional credentials in the IT field. Justin’s comment on GPS tracking and the Fourth Amendment appeared in the most recent issue of the Marquette Law Review.

SCOTUS to Decide on Padilla Retroactivity

Post author:Michael M. O'Hear
Post published:April 30, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Public Seventh Circuit U.S. Supreme Court

Earlier today, the Supreme Court granted cert. in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). Chaidez held that the Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), would not be applied retroactively to defendants whose convictions were already final when Padilla came out. In Padilla, the Court held that a lawyer performs below minimal constitutional standards when he or she fails to advise a client of the deportation risks of a guilty plea. Now, the Court itself will have an opportunity to determine whether its decision should have retroactive effect.

The majority and dissenting judges in Chaidez all agreed that the case turned on whether Padilla announced a new rule of criminal procedure, within the meaning of Teague v. Lane, 489 U.S. 288 (1989). With only a couple of execeptions not relevant here, Teague prohibits retroactivity for new rules. So, the question in Chaidez seems to boil down to whether Padilla announced a new rule or merely applied the basic ineffective assistance test of Strickland v. Washington, 466 U.S. 668 (1984).

The Individual Mandate: A Rejoinder

Post author:Richard M. Esenberg
Post published:April 16, 2012
Post category:Business Regulation Congress & Congressional Power Constitutional Interpretation Constitutional Law Health Care Public

Last week, Ed Fallone posted his prepared remarks at our debate on the constitutionality of the individual mandate in the health care law. Inspired by his example, I have – after a fashion – cleaned up my notes for last week’s debate. This is how I see it.

When Nancy Pelosi was asked about the potential for a constitutional challenge to the health care law, her response was “you’ve got to be kidding.” The substance of her response – “look, we used the commerce power and that permits us to do almost whatever we want” – reflected large patches of conventional wisdom.

Many lawyers (particularly those trained before the Rehnquist Court began to push back against an unlimited commerce power) and, in particular, Progressive legal academics thought that this dragon had been slain long ago. They assumed that the idea that there might be structural limits on the federal constitution had been relegated to the status of flat earth creationism and alchemy.