Constitutional Law

The Constitution of the United States is a flawed document… [its] thinly veiled language… basically reaffirmed the legality of slavery.

– Justice Anthony Kennedy, explaining something historically accurate and entirely obvious to anyone with a third-grade education. But that hasn’t stopped right-wing commentators from freakingthe hellout, decrying Kennedy for suggesting that human bondage may undermine their totemic reliance on “original intent.” Because when the only justification for your preferred jurisprudence is that the Framers farted laser beams, a nuanced view of the Constitution isn’t in the cards.

* Have you all called the Breaking Bad law firm number yet? Because it works, so go for it! [Legal Cheek]

* How to make airlines more profitable: make everyone sit on bicycle seats! [Lowering the Bar]

* Ilya Somin explains why the D.C. Circuit’s interpretation in Halbig isn’t absurd. And it’s not absurd. It just reflects the hilariously cynical conservative opposition to giving their own citizens tax breaks. [The Volokh Conspiracy / Washington Post]

* Ohio State fired its band director amid sexual harassment allegations. To fire a guy, Ohio State must have dotted every “i” in this investigation. [USA Today]

* Speaking of sexual harassment, the Navy’s Blue Angels are the subject of a sexual harassment suit. And somehow it involves a blue and gold penis seen from space. [Slate]

* The Chevron battle over Ecuador continues. Turns out the star witness Chevron paid upwards of $1 million to testify took 50 days of prep to finally get his ever-shifting story straight. [Huffington Post]

* There’s a new book out called Kate’s Escape from the Billable Hour (affiliate link). We haven’t read it, but apparently this tale of “a burnt-out, second-year attorney working in the dysfunctional world of Big Law” mentions ATL. So they definitely did their research. [Amazon]

* Watch a drunk guy give cops a lesson in Con Law. Video after the jump…. [Barstool Sports]

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Amal Alamuddin, ready to graduate from law school

* There’s a very good chance that if you go in-house, you could wind up making more money than even the wealthiest of Biglaw partners. But how much more? Take a look at the latest GC compensation survey. [Corporate Counsel]

* GM has hired outside counsel to review the way the company handles its litigation practices. Since we’re not sure which, we’ll take bets on whether this “well-respected outside law firm” is Wachtell or Jenner & Block. [WSJ Law Blog]

* A federal judge in California ruled that the state’s death penalty was unconstitutional. It seems that allowing a defendant to live with the “slight possibility of death” violates the Eighth Amendment. Damn you, appeals! [New York Times]

* “He hasn’t been charged with anything at the moment and we’ll deal with the charges when they’re filed.” Sgt. Bowe Bergdahl is currently being represented by Yale Law lecturer Eugene R. Fidell, a recognized military law expert (and husband of noted legal journalist Linda Greenhouse). [New Haven Register]

* We all know that George Clooney’s fiancée, Amal Alamuddin, has both beauty and brains. What we didn’t know is that she poses for incredibly embarrassing pictures, just like the rest of us. [Us Weekly]

* How do Americans feel about the Supreme Court’s recent cellphone privacy ruling, Riley v. California? [Digital Constitution / Microsoft]


The Supreme Court released its opinion in Burwell v. Hobby Lobby on Monday, holding that the HHS contraception mandate violates an employer’s rights under the Religious Freedom Restoration Act, even when the employer is a for-profit corporation closely held by individuals who object to the mandate on religious grounds. Following the decision in McCullen v. Coakley, the abortion clinic buffer zone case, Hobby Lobby is the second case in a week where the Court told us how much each side of a fundamentally divided issue can ask of the other, under the law. They are hard cases to talk about without questioning the good faith or good sense of the other side. Nearly everyone thinks either Hobby Lobby or McCullen was a bad decision.

The only thing more frustrating than a bad high-profile Supreme Court decision may be the public’s response to any high-profile Supreme Court decision. For proof, one need only look as far as some of the tweets on SCOTUSblog’s Twitter feed….

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Ted Olson and David Boies (photo by yours truly)

We do treat [gays] the same. None of them can get married to each other. That’s called equal protection. Are you familiar with that clause?

Stephen Colbert, speaking about same-sex marriage last night while interviewing David Boies and Ted Olson, the lawyers behind the legal challenge to Proposition 8 and the authors of a new book, Redeeming the Dream: The Case for Marriage Equality (affiliate link).

(More about Boies and Olson and their book, plus video footage of their Colbert Report appearance, after the jump.)

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Justice Scalia: get off his lawn!

What is going on with the distinguished members of the Supreme Court of the United States? One of the justices recently got caught shopping at Costco.[1] Another just confessed to riding the bus — no, not the Metro, the bus.

Earlier this week, Justice Scalia dissented from the Court’s denial of certiorari in a very interesting Establishment Clause case, Elmbrook School District v. Doe. His dissent garnered media attention for the way he curmudgeonly railed against rock music (and got in a dig at Stravinsky).

But what jumped out at me was a different line in the opinion….

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Puff, puff, pass those voter initiatives.

* This failed firm’s drama is the Biglaw gift that keeps on giving: Dewey & LeBoeuf’s bankruptcy trustee filed an amended complaint against Steve DiCarmine and Joel Sanders seeking the return of more than $21.8 million. [WSJ Law Blog]

* Norton Rose Fulbright elected someone who “love, love, love[s] the law firm” as U.S. managing partner, and she’s the first woman to ever serve as U.S. chair of its management committee. We love, love, love this news! [National Law Journal]

* According to a California judge, tenure laws are unconstitutional and are depriving students of the high quality of education they deserve. The end is nigh, law professors. Enjoy it while it lasts. [New York Times]

* Not all states have legalized the recreational use of marijuana, but it’d be a lot cooler if they did. The tide is turning across the United States, and we’ll soon see which states’ drug laws go up in smoke. [Slate]

* “Document review attorneys are in demand now but the demand will gradually decrease.” Sorry to be the bearer of bad news, but the one job you were able to get soon won’t need or want you. [InsideCounsel]

Justice Stephen Breyer

On Friday, the National Archives unsealed a fifth batch of Clinton Administration presidential papers. The documents were originally released by the William J. Clinton Presidential Library in Little Rock. Let’s get these pesky papers out of the way before Hillary Clinton, author of a new memoir (affiliate link), launches her presidential bid.

The latest papers contain some juicy tidbits for legal nerds. For example, as noted in Morning Docket, then-Judge Stephen Breyer got dissed as a “rather cold fish” while being considered for a Supreme Court seat (the seat that ultimately went to Justice Ruth Bader Ginsburg).

The papers contain candid assessments of Justices Breyer and Ginsburg, as well as other fun nuggets. Here are some highlights:

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I’m not sure whether or not this adds to the debate over affirmative action programs in schools, but in a truly stunning display, a student turned in a constitutional law paper on the Reconstruction Amendments with a small aside about her personal struggle with discrimination as a black woman.

Except she’s white.

Maybe she’s laying groundwork early to get on a law review somewhere other than Chicago?

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Despite the ever-growing ways that the U.S. Food and Drug Administration regulates what Americans can consume, FDA does not currently regulate genetically modified food. The State of Vermont wants to step in.

This week, Vermont will become the first state to mandate labeling of food products containing ingredients from genetically modified organisms (GMOs). It would require retailers of raw agricultural commodities to clearly and conspicuously label GMO-sourced food with the words “produced with genetic engineering.” (Think ears of corn in your supermarket’s produce section.) Producers of packaged food products must label their products with similar language if any ingredient contained in the product comes from a genetically modified source. (Think of that 56-ingredient protein bar sitting on your desk.)

The bill passed the Vermont House and Senate, and Governor Peter Shumlin just signed it into law yesterday. The law is scheduled to take effect in July 2016.

Why are some people so lathered up about eating ingredients that come from genetically modified crops? “Monsanto” has become a dirty word, with nouveau-hippie parents washing out their kids’ mouths with biodegradable, SLS-free soap when they hear them say it. Unfortunately, much public debate conflates genetic modification, exposure to pesticides, and all sorts of other “unnatural” stuff related to food.

Ironically, genetic modification of seeds aims to make crops more resistant to pests, disease, and drought, thus reducing the need for conventional chemical pesticides and increasing crop yields. A growing world population demands innovation to produce more crops with fewer resources. Billions of people need to eat. Too many GMO opponents seem to picture Dr. Frankenstein when they should be picturing Gregor Mendel or Mother Teresa. (Or, to be fair, Walter De Jong.)

That, however, is only the beginning of what’s foolish about Vermont’s new law . . . .

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