Posts for March 22, 2017
These are the posts
that are accumulated in our weekly newsletter which goes out throughout the
school year. The posts are organized by the major units in our Constitutional Law (5th ed.) student textbook.
Supreme Court Justice Confirmation Hearing, Day 3. Here’s the C-SPAN link:
The Educational
Function of Kabuki Confirmation Hearings [Justia, 3/22/17]: Professor Dorf explains the value of the confirmation hearing of
Supreme Court nominee Neil Gorsuch, despite the tradition in such hearings of
the nominee evading answering questions about the most divisive legal issues of
the day. Dorf argues that the Gorsuch hearing provides a unique opportunity for
bipartisan repudiation of President Trump’s irresponsible attacks on the
judiciary.
I. Introduction to Law, the
Constitution, and the Supreme Court [See TOPICS 1-10 in the 5th
edition of Constitutional Law]
Here are some recent articles that are relevant to this unit:
High Court Shakes Its
Pom-Poms for Uniform Makers [CNS, 3/22/17]: Adding
a new kind of chevron to its precedent, the Supreme Court ruled Wednesday that zig-zags and other cheerleading-uniform
designs enjoy protection under copyright law.
The Gorsuch hearings
Gorsuch promises he would
be independent on Supreme Court, including from President Trump [LA
Times / NPR, 3/22/17]: “Nobody is above the law
in this country, and that includes the president of the United States,” he
said.
Joviality at Neil Gorsuch’s Hearing Masks
Drama Behind the Scenes [NY
Times / NPR, 3/22/17]: Judge Neil M.
Gorsuch will continue to be questioned Wednesday at his confirmation hearing,
but the real struggle over his nomination to the Supreme Court is already well
on its way to the Senate floor.
Supreme Court nominee Neil Gorsuch evades tough
questions at confirmation hearing [USA Today, 3/21/17]:
Supreme Court nominee stakes out independence from Trump [Reuters, 3/21/17]:
Gorsuch's Nomination Is the Fruit of a Broken
Confirmation Process [The Atlantic,
3/21/17]: The Colorado judge's potential rise to the Supreme Court is
compromised by the crudest sort of bare-knuckle partisan politics.
Can Neil Gorsuch Answer a Question? [Slate, 3/21/17]: On Day 2 of his Supreme Court
confirmation hearings, it remains unclear.
Justice Jackson and Originalism
[Gerard Magliocca in Concurring Opinions, 3/21/17]: Supreme Court confirmation hearings are
full of rituals, and one of the recent ones is praise for Justice Jackson’s
concurring opinion in The Steel Seizure Cases. Close readers of our Con
Law student textbook might recognize the famous Jackson quote on our
title page.
II. Defining the Political
System: Federalism and Checks and Balances [See TOPICS 11-15
in the 5th edition of Constitutional
Law] Here are recent articles that are relevant to this unit:
The Chevron doctrine will become a
hotly-contested topic in the near future. From an opinion in the 3rd
Circuit Court of appeals: “The doctrine of deference deserves another
look. Chevron and Auer and their like are,
with all respect, contrary to the roles assigned to the separate branches of
government.”
Here is the opinion, a concurring one, in Egan
v. Delaware River Port Auth.:
My Testimony on Originalism for the Gorsuch Hearings [Legal Theory blog, 3/22/17]: Lawrence Solum’s
testifyies on originalism at the Gorsuch hearing.
U.S. Supreme Court hears arguments in dispute over St.
Croix riverfront lot [Minneapolis
Star Trib / Volokh Conspiracy, 3/21/17]: Siblings say zoning restrictions
wrongly interfere with its sale.
Teacher Gets New
Perspective on U.S. Supreme Court: His Own Family's Case [School Law Blog,
3/21/17]: As a veteran high school social science teacher in Minnesota, Mike Murr
has taught generations of students about the Supreme Court and other
governmental institutions. On Monday, he sat in the spectator rows of the high
court to hear arguments in a case with his name on it.
The
American Presidency [TOPIC 15]
How the FBI tailing Trump could dog his presidency [Politico,
3/21/17]: From Richard Nixon to Bill Clinton, history suggests that it is never
a good thing for a president to have the FBI, with its nearly infinite
resources and sweeping investigative powers, on his tail.
Trump to GOP critics of health care bill: ‘I’m gonna come
after you’ [Wash Post, 3/21/17]: President Trump spent Tuesday selling
the Republican health-care overhaul to skeptical House members, warning his
party that failure would endanger his legislative agenda and their own
political careers.
III. The Political System: Voting and Campaigns
[See TOPICS 16-20 in the 5th edition of Constitutional Law] Here are some recent articles that are
relevant to this unit:
Legislation and the Legislative
Process (TOPIC 20)
How Democrats could bring down Obamacare repeal [Politico,
3/21/17]: Senate Democrats want House conservatives to think twice before
supporting Speaker Paul Ryan's Obamacare repeal bill — because Democrats
believe they can strip out key provisions used to woo the right when the bill
comes over to the Senate.
New effort to extend the time needed for teachers to earn
tenure [LA Times, 3/21/17]: A previous effort to extend the
probationary period, led by then-Gov. Arnold Schwarzenegger, failed at the
ballot box. A lawsuit, Vergara vs. California, to do away
with current tenure rules and some other teacher job protections prevailed at
the trial court level in Los Angeles, then was overturned on appeal.
IV. Criminal Law and Procedure (4th, 5th,
6th, and 8th amendments) [See TOPICS 21-28 in
the 5th edition of Constitutional Law] Here are some
recent articles that are relevant to this unit
Public Record, Astronomical Price [Marshall Project, 3/21/17]: Unable to afford a trial
transcript, a journalist digs into the laws that govern them.
V. 1st Amendment
(Speech, Religion, Press and Assembly)
[See TOPICS 29-33 in the 5th edition of Constitutional Law] Here are some recent articles that
are relevant to this unit:
How the First Amendment
Applies to Trump's Presidency [New Yorker, 3/21/17]: One of the strangest
sentences in American law comes from Justice Lewis F. Powell, Jr. “Under the
First Amendment,” he wrote, in 1974, “there is no such thing as a false idea.” Should
former President Obama sue President Trump for libel?
Is the New Travel ban
Unconstitutional? It May Come Down to Whether Courts Can take Campaign
Statements Seriously [Newseum, 3/22/17]: The
Supreme Court has established that courts can’t just consider the words of a
law when deciding whether or not the law’s purpose is discriminatory; they also
have to analyze the law’s history, the context in which it was
proposed, and statements made by key decisionmakers.
UN rights chief urges
international community to target hate speech [Jurist, 3/21/17]: UN High Commissioner for Human Rights Zeid Ra'ad
Al Hussein marked the International Day for the Elimination of Racial
Discrimination Tuesday by making astatement emphasizing the importance of
curtailing hate speech. Highlighting the racially motivated atrocities
occurring worldwide, Zeid noted how several reputable organizations have
reported an increase in hate crimes, potentially due to racially charged
rhetoric.
Gorsuch's Selective View of 'Religious Freedom' [The Atlantic, 3/21/17]: Trump's nominee to replace Justice Antonin Scalia
possesses the same limited view of religious freedom supported by the
conservatives currently on the Supreme Court.
Texas school board can
start meetings with prayer: U.S. appeals court [Reuters / AP,
3/21/17]: In a 3-0 decision, the 5th U.S. Circuit Court of Appeals rejected an
appeal by the American Humanist Association, which said the practice by the
Birdville Independent School District violated the First Amendment's
prohibition of a government establishment of religion.
VI. 14th
Amendment, Discrimination, Privacy, Working, Citizenship & Immigration [See TOPICS 34-41 in the 5th edition of Constitutional Law] Here are some recent articles that are relevant to
this unit:
No Peeking? Korematsu and Judicial Credulity [“Take Care”
blog, 3/22/17]: A curious argument has
become fashionable in certain circles. The argument is about President Trump’s
travel bans, and goes something like this: when a court evaluates the legality
of these bans, what is required is a sort of studied judicial credulity.
Supreme Court
Bolsters Rights of Learning-Disabled Students [CNS,
3/22/17]: The U.S. Supreme Court on Wednesday bolstered the rights of
learning-disabled students by requiring public school districts to ensure their
special education programs offer these children more than the bare minimum of
instruction.
The unanimous opinion in Endrew
F. v. Douglas County School
Dist. RE-1 can be found at:
Unanimous Supreme Court
Expands Scope of Special Education Rights [School Law Blog,
3/22/17]: In Endrew F., the high court
rejected the "merely more than de minimis" standard set by the U.S.
Court of Appeals for the 10th Circuit, in Denver. That language was also used
in an opinion in another special education case by Judge Neil M. Gorsuch,
President Donald Trump's nominee for the Supreme Court.
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