Jan 29, 2014

Ruth Vader Ginsburg

The force is strong with this neck doily.


Via LadyPuns

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Jan 29, 2014

Constitutional Places: Youngstown Sheet & Tube Co. v. Sawyer

This is a postcard of the Youngstown Sheet and Tube Mill.


Here are photographs of the actual steel mill at issue in Youngstown, Ohio.





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Jan 29, 2014

Unprecedented Tour Storms Into Twin Cities on Thursday and Friday

On Thursday, January 30, I will venture from the mere-freezing temperatures of Houston, where less than 0.05 inches of ice shut the city down, to the veritable Tundra of Minnesota, where the wind chill this week hit -40 degrees.

Tomorrow at noon I will be presenting at the William Mitchell College of Law. My talk will be like Chief Justice Burger, an alum of William Mitchell–well done.

Friday at 12:15 I will be speaking at the University of Minnesota. Gopher it!

If you are around, I hope to see you there.

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Jan 29, 2014

Constitutional Faces: Jagdish Chadha

I found this great article from the Times in 1985, titled “Faces Behind Famous Cases,” with a focus on Jagdich Chadha, the litigant in the famous legislative veto case, INS v. Chadha:

JAGDISH RAI CHADHA, now a citizen of the United States, lives a quiet life in a San Francisco suburb with his wife and two daughters. Few of his neighbors and co-workers know that because of him, the United States Congress can no longer exercise the legislative veto, a 50-year-old practice used to block special actions taken by the President or Federal agencies. …

Jagdish Rai Chadha, Steven Pico and Amy Rowley are ordinary people thrust into extraordinary circumstances. In law schools across the country and in newspaper accounts, they are commonly referred to by their case names: I.N.S. v. Chadha; Pico v. Island Trees; Rowley v. Hendrick Hudson School District. They did not set out to rewrite history. But as litigants in landmark Su-preme Court cases, they challenged the status quo, thereby changing their own lives and the lives of millions of Americans.

The people behind many Supreme Court decisions are overshadowed by the emotional debate that follows the Court’s sweeping opinions. Mr. Chadha and Mr. Pico, for example, are mentioned on the standardized law school admission test, but many people taking the test cannot identify them. In many instances, the importance of these individuals as individuals began to fade even as their cases were being argued.

The Times offers some more background (beyond the sparse facts in the opinion):

In 1972, Mr. Chadha was working on a master’s degree in political science at Bowling Green University in Ohio when his student visa expired. He was ordered deported but found that his homeland, Kenya, which had won independence from Britain, would not accept him because his parents were British subjects. Immigration officials suspended deportation proceedings under a legal provision authorizing the Attorney General or his designate to take such action, subject to Congress’s power to invalidate it.

The House of Representatives used the legislative veto, under which either house can, by a simple majority, block specific actions that the President or a Federal agency takes to carry out authority that Congress has delegated. The House disapproved the decision and called for the deportation of Mr. Chadha and five other aliens in December 1975.

Chadha also spoke of his time in court:

On many occasions, litigants are present during oral arguments, as were Mr. Pico and Mr. Chadha. But the justices are seldom aware of this and probably could not identify them. The reverse is not always true. ”By the time the case was argued, I felt inextricably tied to the justices,” Mr. Chadha said. ”They didn’t know me, but I followed their lives and their cases rather closely.” Indeed, when Justice Byron R. White became ill, he said, he was ”inclined to send a card.’

Plus they talked with Alan Morrison who argued the case!

All three litigants speak modestly of their role in history. ”They didn’t need Jagdish Chadha for this case, it could have been any of millions of people,” Mr. Chadha said.

But Alan B. Morrison, director of litigation for Public Citizen Litigation Group, a nonprofit litigation center in Washington and the attorney who argued the case before the Supreme Court, suggests otherwise. ”The case could have been over once Mr. Chadha, for example, married his wife, who is an American citizen,” he said. ”But it became a matter of principle for him. He was determined not to let this case get sidetracked.”

And this great quote from Justice Stewart about how individual litigants make no difference in the case.

Former Justice Potter Stewart said the justices ”do not at all” consider individual litigants or take into account the effect the Court’s decisions may have on their lives. Justice Stewart, who retired from the Court in 1981 after 23 years of service, is a Federal appeals court judge and arbitrator.

”We have to strictly look at the circumstances surrounding the cases,” Justice Stewart said during a recent telephone interview from his Washington office. This is true even in death-row cases. The justices understand that a life can depend on their ruling, he said, but that knowledge ”never enters into the decision-making process.”

Here is a photo of Chadha, and the cover of a book written about his case.

Jagdish Rai Chadha


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Jan 29, 2014

ConLaw Class 4 – The Legislative Powers

The lecture notes are here. The live chat is here.

The Legislative Powers

  • Bicameralism & Presentment (260-261).
  • INS v. Chadha (261-272).
  • Clinton v. City of New York (272-281).
  • Read Article I, Section 8 of the Constitution (3-4).
  • Enumerated Powers in Article I, Section 8 (281-283).
  • Bills of Attainder (283-284).
  • Note 5 – Nixon v. GSA (293-294).
  • Ex Post Facto Clause (294-295).
  • Contracts Clause (295).

This is Chief Justice Warren E. Burger, who wrote the majority opinion in INS v. Chadha.



This is Jagdish Chadha.

Jagdish Rai Chadha


Justice Louis Powell authored a concurring opinion.


Justice White dissented.



The City of New York was led, at the time by Mayor Rudy Giuliani, who opposed President Clinton’s usage of the “Line Item Veto.”


The majority opinion was authored by Justice John Paul Stevens.


Justice Anthony Michael Kennedy concurred.


Justice Stephen G. Breyer dissented, in part.


Justice Antonin Scalia dissented, in other parts.


Nixon v. GSA concerned President Nixon’s attempts to keep secret tapes he recorded privately in the White House.

nixon3 nixon2 nixon1


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Jan 29, 2014

A Modern Day Pierson v. Post?

In Jeremy Schath v. State of Indiana , a 5-page opinion, Judge Bradford writes:

During the evening hours of November 17, 2012, Appellant-Defendant Jeremy Schath was raccoon hunting, with permission, on property located along the south side of County Road 640 in Decatur County. At some point, Schath’s hunting dog crossed onto property on which Schath knew he did not have permission to hunt. When Schath became aware that his dog had entered the other property, he entered the property, unarmed, for the purpose of retrieving his dog.

On March 12, 2013, Appellee-Plaintiff State of Indiana charged Schath with Class C misdemeanor hunting upon private property without the consent of the landowner. The trial court conducted a bench trial on July 29, 2013, during which the State amended the charging information to include the allegation that Schath chased wildlife, i.e., a raccoon, on privately owned property without the consent of the landowner. At the conclusion of the bench trial, the trial court found Schath guilty of the amended charge. On appeal, Schath contends that the evidence is insufficient to sustain his conviction. Concluding that the evidence supports only the inference that Schath went on to the property in question to retrieve his dog, not to “chase” a raccoon, we reverse.

H/T Rob L.

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Jan 29, 2014

Prop1 Class 5 – Property in Yourself

Today we will discuss how you can own property in yourself.

The lecture notes are here, and the live chat is here. Here is a recent article about the rights of publicity of college football players.

First, we’ll do the case of Vanna White v. Samsung Electronic America.

vanna v. samsung

The dissental was authored by Judge Kozinski, a colorable character on the 9th Circuit.


Here is the image of robot Vanna White. Alas neither of these predictions of the year 2012 came true (well played, Mayans).



To learn more about property rights in cell lines, I highly commend you read The Immortal Life of Henrietta Lacks. This article in Salon discusses it.

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Jan 29, 2014

Would Rep. Grimm be protected by “Speech or Debate” Clause For Threatening To Throw Reporter Off Balcony in Capitol?

By now, I’m sure you’ve seen the ridiculous video of Staten Island Representative Michael Grimm threatening to snap a reporter in half, and throw him off a balcony.


“And just finally before we let you go, we haven’t had a chance to talk about some of the…” Scotto began before Grimm cut him off.

“I’m not speaking to you off-topic, this is only about the president,” said Grimm, before walking off camera.

“So Congressman Michael Grimm does not want to talk about some of the allegations concerning his campaign finances,” Scotto said before tossing back to the station. But as the camera continued to roll, Grimm walked back up to Scotto and began speaking to him in a low voice.

“What?” Scotto responded. “I just wanted to ask you…”

Grimm: “Let me be clear to you, you ever do that to me again I’ll throw you off this f—–g balcony.”

Scotto: “Why? I just wanted to ask you…”

[[cross talk]]

Grimm: “If you ever do that to me again…”

Scotto: “Why? Why? It’s a valid question.”

[[cross talk]]

Grimm: “No, no, you’re not man enough, you’re not man enough. I’ll break you in half. Like a boy.”

So usually, making threatening comments to someone would constitute assault (it’s not clear from the video if he made physical contact, which would be a battery).

But, he made these comments in the Capitol. Are his comments protected by the “Speech or Debate” clause?

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The Court has limited this privilege to statements made as “part of the legislative process.” Making statements to the press–even in the Capitol–are not privileged.

Oh well.

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