Title: Message
I have
been asked to speak about this case on the local media (as I am sure many of you
also have been), and I am curious what you experts expect the outcome of the
case to be, especially given that Scalia has recused himself.
Rebecca E. ZietlowProfessor of Law University
Why would a self-described textualist, like Scalia, examine the constitutionality of a law while admitting that no text is involved authorizing or prohibiting the law (Printz)?Is it because if a textualist insists that that when the Constitution is silent, Congress may act, one is then turning
Bobby:
You're assuming that Justice Scalia is being consistent. Prof. Tribe wrote
a wonderful comment in the Harvard Law Review about the Saenz case that
convinced me (if I needed more convincing) that almost none of the justices
(conservative or liberal) are methodologically consistent. I
Scott:
Do you think Scalia was being inconsistent in this case?
In addition to Larry Tribe's comment, I would recommend Sandy Levinson's piece,
The Operational Irrelevance of Originalism. The question of the authority of
precedent is obviously a significant challenge for originalists, but Scalia
If I may be permitted to raise a minor quibble with Scott's point:
(1) A demonstration of methodological inconsistency is always difficult.
Because judges do not articulate their full theory of the law, the methodology
of a particular judge must always be inferred. When trying to prove a charge
A larger problem for Justice Scalia in Printz is that after he
says text doesn't help (which by the way it does, see Steven's dissent), is that
Scalia then purports to look at history, structure, and precedent, though
history and structure clearly cut against the result. New York does
Under Kay v. Ehrler, 499 U.S. 432 (1991), a pro se
litigant who is also a lawyer cannot be awarded fees under 42 U.S.C. sec.
1988, which is, I assume, the fee-shifting statute most likely to apply
to this case.
Pam Karlan
At 01:09 PM 10/15/2003 -0400, you wrote:
Since Mark Newdow is apparently
I must be getting slow in my old age, but I don't see how precedent poses a
greater problem for originalists than for those who take other views. A
judicial decision is a superceding text adopted through a legitimate
process (even if the mode of reasoning is not what I would choose). It is
thus
It seems to me that the question for originalists is WHETHER a judicial
decision is a superceding text adopted through a legitimate process. This
question has at least two dimensions, one functional and the other normative.
The functional question is whether precedents are to be treated as
Might not a judge--originalist or otherwise--simply conclude that stare
decisis has independent value, in terms of legal stability, reliance,
etc.? In this respect, is the originalist judge necessarily different
from, say, a judge who believes that the Constitution should be
interpreted in
If we define an originalist as someone who agrees with Robert Bork that
the only legitimate modality is original understanding, then there is an
obvious problem with adhering to precedents that violate the original
understanding. Indeed, as I have argued elsewhere, the only way of making
sense of
Title: Message
All
right, I'll take a whack.
Rehnquist, O'Connor, and Thomas for reversal. Kennedy joins them,
because he's a political animal and may want to "make it up" with the right
after Lawrence, sort of the way he did in Stenberg and Colorado v. Hill after
Casey (though I'm sure
The only thing I'd say about this is that I wouldn't count any of the
Fab Four as sure votes for the plaintiff on the standing
question.
At 03:33 PM 10/15/2003 -0400, you wrote:
All
right, I'll take a whack.
Rehnquist, O'Connor, and Thomas
for reversal. Kennedy joins them, because he's a
Title: Message
Thanks, I agree. Except I wish I were more confident about the Cubs
making it to the series.
RZ
-Original Message-From: David M Wagner
[mailto:[EMAIL PROTECTED]Sent: Wednesday, October 15, 2003 3:33
PMTo: [EMAIL PROTECTED]Subject: Re: Justices
Take Case on
One can reconcile an originalist viewpoint with an evolving meaning of the
Constitution -- although it would be an originalism that Bork and other
originalists probably would not like. The Framers understood the
Constitution to be a treaty that must be construed in conformity with
customary
I seem
to recall that the Court, or some court, head a case challenging the "In God we
Trust" motto on US money, and of course upholding it. Is my recollection
correct? And, am I correct that in favor of"God" in the pledge of
allegiance as not establishment of religion is that it's not
Dear all,
Regarding the Sabri grant, and Eric Muller's question (disclosure:
I helped write an amicus brief for the NACDL supporting cert):
There is a clear and (I think) cert-worthy circuit split over
the question whether the statute (Section 666) requires the government to
establish a nexus
I would
highly recommend reading the 8th Circuit's opinion. In brief, the
court holds that (i) the statute is an exercise of the spending power;
(2) but that it is not a conditions statute [i.e. placing a
condition on spending federal funds, where a nexus argument night well be
made]; yet (3) it
This might very well be the position Scalia takes. In his dissent
in Union Gas, he argues:
"Even if I were wrong, however, about the original
meaning of the Constitution, or the assumption adopted by the Eleventh
Amendment, or the structural necessity for federal-question suits against
the
When I first read the court of appeals decision in Sabri (while looking for
an exam question last semester), I was struck by the potential
expansiveness of its reasoning. The court emphatically rejects treating
section 666 as a conditional spending statute -- and doesn't make Eric
Muller's move
Dear All,
I've been told that he is a lawyer, although only quite recently
admitted in California -- apparently so recently admitted that he will
have to proceed pro hac vice in the Supreme Court because he
doesn't have the requisite three years to be eligible for admission to
the Supreme Court
Given my own views, I'm delighted that Scalia will not be participating,
but I'm not clear why he has to recuse himself because of his candid
remarks to the Knights of Columbus and not, say, if he had written one of
his patented dissents in a school prayer case that made reference to the
Pledge
Today's LA Times story on the case says he is a lawyer and plans to argue
the case. But of course, a lot of people question the LA Times's reporting
these days...
-Original Message-From: Discussion list for con law
professors [mailto:[EMAIL PROTECTED]On Behalf Of Pam
From the AP [http://www.nytimes.com/aponline/national/AP-Scotus-Pledge-of-
Allegiance.html?hp]:
Newdow, a doctor and lawyer representing himself in the case, hopes to argue
the case but he must get special permission from the court.
If the AP can be trusted. . .
Will Baude
One of the readers of my Web log brought this link to my attention yesterday:
http://members.calbar.ca.gov/search/member_detail.aspx?x=220444
It confirms Mr. Newdow's admission to the State Bar of California last year.
Best regards,
HJBashman
That's correct. If Newdow wishes to argue the
case,he'llneed leave of the Court to do so pursuant to Rule
6.3. The Courtdoesnot invariably
grant such a motion. See, e.g., Buckley v. ACLF, 524 U.S.
975(1998) (mem.).
- Original Message -
From:
Pam
Karlan
To: [EMAIL
At 09:29 PM 10/15/2003 -0500, you wrote:
If I were going to argue that they should (which I haven't thought much
about), I'd start by pointing out that we haven't done a very good job of
coming up with other, substantive limits on the spending power, so
imposing a procedural hurdle in the form of
[Apologies if this is a repeat, but I sent it this afternoon and it
doesn't seem to have made it to the list]
It's axiomatic under administrative law that an agency must state the
statutory basis for its claim of regulatory power. But Congress isn't an
agency. Where in the constitution (other
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