This Judge Is Wrong About Economic Liberty and the Constitution
A flawed argument for judicial passivity in cases of government regulation.
Supreme Court
Justice Department Asks Supreme Court To Block Judge's Order To Release Inmates at Ohio Federal Prison
A federal judge ordered officials at Elkton to stop "thumbing their nose" at their own authority to release inmates at risk of coronavirus.
Do Tattoo Shops Have a First Amendment Right To Remain Open During a Pandemic?
The idea is not so far-fetched.
Another State Supreme Court Stands Up for Economic Liberty
Following Georgia's ruling in favor of a lactation consultant, Pennsylvania’s high court reviews another “unreasonable” occupational licensing scheme.
Two Cops Were Given Qualified Immunity After Allegedly Stealing $225,000. SCOTUS Won't Hear the Case.
But the high court may consider other cases that could overturn the outrageous legal doctrine.
Supreme Court Won't Hear Suit Saying Facebook Helped With Hamas Attack
Hamas "used and relied on" Facebook "as among its most important tools to facilitate and carry out its terrorist activity," the plaintiffs claimed.
Textualism, Title VII, and "Discrimination . . . Because of Such Individual's Sex"
Does the text of Title VII prohibit discrimination on the basis of sexual orientation or transgender status?
State Supreme Courts Stand Up for Economic Liberty While SCOTUS Falls Down on the Job
"We have long interpreted the Georgia Constitution as protecting a right to work in one's chosen profession free from unreasonable government interference."
A Nondelegation Challenge to Trump's Border Wall
An under-the-radar environmental lawsuit could provide the Supreme Court another opportunity to revive the nondelegation doctrine.
10 Ways a Roadside Police Stop Can Go Wrong
What could happen—and what to do about it—if you get pulled over by the cops
Justice Thomas Takes Aim at State Standing
In a brief exchange during a recent oral argument, the Justice suggested the Court should reconsider giving states "special solicitude" under Massachusetts v. EPA
The Penalty-less Individual Mandate Is Severable from the Rest of the ACA No Matter How You Look at It.
We submitted another strange bedfellows amicus brief on severability in the Texas ACA case.
Will Breyer Side With Trump in Congressional Subpoena Fight?
The Supreme Court weighs the congressional subpoena power in Trump v. Mazars.
Will SCOTUS Revoke Its License for Police Abuse?
This week the justices are considering 13 petitions involving the pernicious doctrine of qualified immunity.
"Valid Legislative Purpose"
Do legislative subpoenas really need a limiting principle?
Is There Any Limit on the Congressional Subpoena Power?
There was a potentially pivotal exchange in today's Supreme Court oral argument over the House subpoenas seeking the President's financial records.
How Supreme Court Doctrine Protects Cops Who Kill (or Otherwise Use Excessive Force)
A Reuters report suggests changes in qualified immunity doctrine have immunized police officers sued for misconduct.
Did Louisiana Enact a Bogus Health Law as a Pretext for Banning Abortion?
The Supreme Court will consider the constitutionality of a Louisiana law that requires physicians who perform abortions to have admitting privileges at local hospitals.
Courts Grant Qualified Immunity to Cops in More Than Half of Cases When Invoked
A Reuters investigation reveals courts "growing tendency" to grant cops immunity from civil rights lawsuits.
Supreme Court Can Put a Stop to Rule Compelling Anti-Prostitution Speech From Anti-HIV/AIDS Groups
The anti-prostitution pledge is unconstitutional when applied to U.S. nonprofits. But the feds say it's still OK to compel speech from these groups' foreign affiliates.
Supreme Court Justices in Texas and Pennsylvania Emphasize That COVID-19 Lockdowns Require Judicial Scrutiny
Not everything that states do in the name of protecting public health is consistent with the Constitution.
When Are COVID-19 Control Measures 'Arbitrary' and 'Unreasonable'?
Courts so far have not been inclined to ask that question.
Will the Trump Administration Finally Abandon Its Bizarre Position in the Texas ACA Case? (Update: No)
CNN reports that Attorney General Barr is (again) voicing opposition to DOJ's argument that zeroing out the mandate penalty should upend the entire law.
It's 'Access' to Birth Control Versus Employer Beliefs Again at the Supreme Court
The Obamacare contraception mandate continues to cause legal trouble.
When the Supreme Court Upheld a Compulsory Vaccination Law
Infectious disease, public health, and the Constitution
A Virus Makes the Supreme Court More Transparent
Unprecedented live audio streaming of oral arguments could signal more openness.
Deeming a Lawsuit Moot, SCOTUS Passes Up a Chance to Correct Judicial Disrespect for the Second Amendment
The Court decided that New York City's revision of its restrictions on transporting guns gave the plaintiffs what they sought.
Supreme Court Rules That Georgia Can't Copyright Its Annotated Code
A long-running legal battle ends with a victory for open government.
Supreme Court Orders Government To Fund $12 Billion Obamacare Bailout
The ruling says health insurers are owed money that Congress never appropriated.
A Quite Unusual 5-4 Split on the Supreme Court
Three opinions, no blockbusters, but an odd (and unprecedented?) 5-4 split - and interesting order on Congressional subpoenas.
Why Was the Wisconsin Primary Election a Federal Case in the First Place
Most of the commentary on the Supreme Court's rejection of last minute judicial intervention glossed over the underlying constitutional question.
Do We Really Need the Supreme Court to Decide the "Faithless Elector" Cases Now?
The Court could have, and probably should have, pushed these cases over to the 2020-21 Term
Supreme Court Upholds Broad Reading of Clean Water Act
Environmental groups were worried the Court would curtail CWA jurisdiction in Maui v. Hawaii Wildlife Fund. It didn't.
Fordham Urban Law Journal Symposium on Knick v. Township of Scott
I have a contribution (coauthored with Shelley Ross Saxer) in this symposium on last year's important Supreme Court takings decision.
Supreme Court Rules Non-Unanimous Jury Verdicts in Criminal Cases Unconstitutional
A 50-year-old precedent was tossed, which caused three justices to dissent.
Unusual Supreme Court Lineup Holds that Jury Verdicts in (Most) Criminal Cases Must Be Unanimous
All three of today's Supreme Court decisions featured unusual alignments among the justices.
Can Trump Order Congress Home and Unilaterally Fill Vacancies Via the Recess Appointment Power?
The president contemplates a sweeping exercise of executive authority.
Even in a Pandemic, 'Constitutional Rights Still Exist'
A federal judge defended religious freedom by blocking a misguided ban on drive-in Easter services.
Abortion Providers Plead With Supreme Court To Allow Abortion Pills in Texas
"Delaying abortions by weeks does nothing to further the State's interest in combatting COVID-19," they say.
The Constitutional Case Against the Consumer Financial Protection Bureau
Will the Supreme Court question the underpinnings of the modern administrative state?
The CFTC Velociraptor Has Escaped the Fence That Dodd–Frank Built to Contain It
“Can an independent federal agency that is supposed to regulate commodity futures assert power over every single purchase or sale of a commodity?”
Making Sense of the Wisconsin Election Supreme Court Decision(s)
Marquette University law professor Chad Oldfather offers a helpful explainer laying out the issues in the SCOTUS and SCOWIS decisions on the Wisconsin primary elections.
Sotomayor Upbraids SCOTUS for a Decision That 'Destroys Fourth Amendment Jurisprudence That Requires Individualized Suspicion'
The justice filed a lone dissent in Kansas v. Glover.
Another Trump-Appointed Judge Benchslaps the Trump Administration for Rewriting Federal Gun Laws
“The federal government forgot the Tenth Amendment and the structure of the Constitution itself.”
Can Police Task Forces Play Jurisdiction Games To Avoid Liability for Misconduct?
An innocent man was beaten up by a local police detective and an FBI agent. No one wants to take responsibility.
This Business Is Suing the Government Over a Coronavirus Closure Order
"These uncompensated seizures violate the Takings Clause of the Fifth Amendment."
Don't Let Temporary COVID-19 Restrictions Become Permanent
Emergency restrictions should always be lifted as soon as the crisis has sufficiently abated.
Supreme Court Upholds State Law Limiting the Use of the Insanity Defense
Kansas “will not wholly exonerate a defendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong.”
