Constitutional Law

If you’ve been arrested, and the police want to interrogate you, they will tell you that you have the right to remain silent.

How do you assert that right?

One way would be to say something like “I would like to remain silent.” Saying “I want a lawyer” should also stop the questioning.

But today, in Salinas v. Texas, the Supreme Court of the United States held that you do not assert your right to remain silent by remaining silent. If you want to remain silent, you’ll need to be prepared to talk about it.

No one will be surprised that this result came from the Justice least likely to be voted most beloved by those in our nation’s prison systems, Justice Alito.

Sort of….

double red triangle arrows Continue reading “Introverts And The Fifth Amendment: Or, Why You Should Go To Law School”

Way back in the callow, innocent days of, um, February 2013, the U.S. Supreme Court delivered its opinion in Clapper v. Amnesty International. The case stemmed from a challenge of the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a.

If you didn’t pay much attention to the Court’s decision in Clapper back then, you might want to revisit it now that we know we’re all subject to NSA surveillance . . . .

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It used to be, back before 2005, that the federal sentencing guidelines were mandatory. If you were going to be checking into the United States Bureau of Prisons, the sentencing guidelines determined how long your reservation would be for.

And, it used to be, that if you committed a federal crime, and, between when you committed the crime and were sentenced, the sentencing guidelines went up, the judge had to apply the lower sentencing guidelines from when you committed the crime.

To do otherwise would violate the Ex Post Facto clause.

The sentencing guidelines changed, though, with Booker. Now they aren’t mandatory – they’re just something important that a federal judge has to look at and a federal judge may be risking reversal if she doesn’t follow them.

Got that? The guidelines are totally discretionary. But for the appellate review. Also most federal judges follow the guidelines almost every time. But that’s just a coincidence.

So, since the guidelines are no longer mandatory, but, rather, now just followed in the vast majority of cases, what happens to the Ex Post Facto clause?

double red triangle arrows Continue reading “Does the Ex Post Facto Clause Apply To Suggestions?”

Justice Kennedy announced the majority opinion in a long anticipated case today. It was met with a blistering dissent by Justice Scalia.

Unfortunately for most Court watchers, it was not the opinion in Fisher v. University of Texas, the latest in the Court’s attempts to resolve whether affirmative action in higher education is constitutional. Some observers expressed annoyance.

Instead, the Supreme Court issued a ruling in Maryland v. King, which Justice Alito previously identified as potentially the most important law enforcement decision in decades. The Court held that the police can take your DNA any time you’ve been arrested for a “serious” crime.

But the real fun was in the dissent….

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On Tuesday, the Supreme Court released opinions in two habeas cases, McQuiggin v. Perkins and Trevino v. Thaler. The holdings reek of liberal judicial activism, however well-intentioned.

In Perkins, my least favorite of Tuesday’s cases, the Court held that a showing of “actual innocence” is sufficient to circumvent the Antiterrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations. In effect, a narrow majority decided to judicially amend a validly enacted statute, creating an exception that the majority admits that the statute itself does not contain. On top of that, this particular case may have been a pretty defective vehicle for addressing the limitations question anyway. There’s a pesky matter, discussed at oral argument, about the procedural posture of the case, making it pretty dubious whether the Court should have even gotten to the merits here.

(Cases like Perkins make me want to appropriate my own version of Dan Savage’s “DTMFA” — shorthand for “Dump the Mother-F*cker Already.” Too often, it would be useful to just be able to write “DTMFA” for “DIG the Mother-F*cker Already” for cases that I wish that SCOTUS would dismiss as improvidently granted. But, alas, you probably have to be a syndicated sex columnist for the privilege of coining long-but-useful acronyms.)

Dark days for the fair application of AEDPA….

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Amanda Bynes

* Let’s get ready to rumble! Some of the Supreme Court’s most controversial opinions yet are expected to be rolled out in the coming weeks — and maybe even today. Stay tuned for news. [CNN]

* Let’s see what happens when Obama nominates three judges at once to the D.C. Circuit. How many of them will be confirmed as quickly as Sri Srinivasan? Probably not many. [New York Times]

* White House counsel and leading litigatrix Kathryn Ruemmler is best known for her fabulous shoes, but this week, she’s taking some flak for her involvement in the IRS scandal. [New York Times]

* “I don’t know whether the Lord Himself could get confirmed at this point.” It looks like poor Attorney General Eric Holder doesn’t have very many people left to turn to thanks to executive and congressional inaction. [Bloomberg]

* When it comes to recent diversity efforts in Biglaw there’s an ebb, but not really a flow, and it’s all being blamed on the recession. Also, “diversity fatigue” is apparently a thing now. [New York Times]

* The $200 million gender discrimination suit filed against Greenberg Traurig over the firm’s alleged “old boys club” has been settled for an undisclosed amount. You go girl! [Thomson Reuters News & Insight]

* According to Judge Murray Snow, Arizona’s most beloved sheriff, Joe Arpaio, has been violating the constitutional rights of all of the Latinos whom he supposedly “hadn’t” been racially profiling. [Reuters]

* My, how things change: David Blankenhorn, a man who once testified as an expert witness in support of Proposition 8 at trial, has come forward to condemn anti-marriage equality laws. [Los Angeles Times]

* Stewart Schwab, the dean of Cornell Law School, will step down in June 2014. Perhaps the next dean will crack down on the number of cam girls pleasuring themselves in the law library. [Cornell Chronicle]

* Law schools tend to be “bastions of liberalism,” which makes it hard for students to find intellectual diversity. It’s a good thing we’ve got the Federalist Society to balance things out. [Washington Times]

* People who think Washington needs another law school propose one for students “who can’t afford to … go into debt … to get their legal degree.” This won’t sit well with the legal academy. [News Tribune]

* With Lindsay Lohan stuck in rehab, Amanda Bynes decided it was her turn to go wild. The retired actress says she’s suing the NYPD for unlawful arrest and sexual harassment. [New York Daily News]

* Alton Lemon, the Supreme Court plaintiff behind the eponymous Lemon test, RIP. [New York Times]

Ed. note: This is the latest installment of Righteous Indignation, our new column for conservative-minded lawyers.

On Monday, the Supreme Court decided City of Arlington v. FCC. The question before SCOTUS was whether courts must defer to a federal regulatory agency’s interpretation of a statutory ambiguity even when that ambiguity involves the scope of the agency’s authority — its own jurisdiction.

Justice Scalia wrote for the majority, holding that even in cases such as this one, agencies are entitled to the usual deference established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. — aka Chevron deference. Chief Justice Roberts dissented, joined by Justices Kennedy and Alito.

The outcome of City of Arlington should be noteworthy to Court watchers — and conservatives in particular — for several reasons. First, the Scalia-Roberts split quiets the simplistic refrain that SCOTUS decides cases down rigid liberal-conservative lines. Second, it highlights an ongoing debate among conservative members of the Court about fundamental issues concerning the separation of powers and constitutional governance. Third, the Scalia and Roberts opinions demonstrate that, far from reserving their barbs for the left, conservatives can be pretty darn snarky amongst themselves.

So, let’s have a closer look….

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‘Oh my God! My career! Nooooooooooo!’

A few weeks ago, we learned that when it comes to failed professional endeavors, hell hath no fury like a patent attorney scorned. Now we know the same sentiment applies to their failed romantic wranglings.

What would a patent partner do if a summer associate turned away his sexual advances? He’d do what any dork would: in the hopes of ruining her budding career, he’d obtain a movie clip of the girl in a state of undress and pass it around via email to more than 50 Biglaw attorneys.

Of course, this led to a disciplinary action in which the brokenhearted patent practitioner employed some pretty wild defenses, the most entertaining one being that his slut-shaming was beyond ethical reproach because it was constitutionally protected speech….

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After a year-long break, we returned to law-related vanity license plates about a week ago. You heeded our call for submissions, and while we’ve been overrun with them, we’re always looking for more photos. If you’re a fan of the Law License Plates series, please send some in via email (subject line: “Vanity License Plate”).

Today, we’ll be taking a look at what some of the lawyers in our nation’s capital have displayed on their vanity plates. Unlike some of the submissions we’ve spoken about in the past, these plates aren’t direct invitations to get rear-ended, but that’s only because they’re too cryptic for laypeople to understand.

Get ready for some constitutional law nerd action….

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Cheerleading is a big deal in Texas. It’s the sort of thing that can get you killed if you’re not careful.

So when a bunch of high school cheerleaders started cheering less “Be Aggressive!” and more “Be Not Afraid, the Lord Is With Thee,” it stirred up the usual hornets’ nest of grandstanding atheists and civil libertarians complaining about freedom of religion, and an equal number of grandstanding conservative politicos complaining about the “War on Christians.”

Yesterday, the cheerleaders won their case — at least for now — opening the door to a new batch of inspirational cheers ripped from Christian Mingle ads. After looking at the signs (some pics below), the real issue is not constitutional, but practical: these are just terrible cheers….

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