Con Law Party, come on in! Forum

[Sogui]

I'm fully prepared for this thread to fall flat on its face, but since I will be grinding my face into our ~1800 page conlaw book nonstop for the next 48 hours, I might as well try and make sure that the threads I visit for distraction are also on topic.

For starters: I'm just now starting my outline, part of me is scared shitless since this IS Conlaw. But part of me is relaxed since about 75% of our reading was "warmup material" to help understand the other 25% that are actually relevant today... should I give in to temptation and just breeze over the old stuff?

(with some exceptions for Lochner/Roe/etc...)

[GATORTIM]

Yes. The dissent is not the law. Neither are overturned cases.

[PirateCap'n]

Here's a practice question for you. I asked it in another thread and never got an answer. My Con Law exam is over, so it doesn't make much difference either way. I'd still like an answer if somebody could help me out though.

If someone is advocating illegal conduct, you use the Brandenburg test. If the conduct that the person is advocating is technically illegal but shouldn't be because making it illegal is a violation of the constitution (e.g. illegal for men to have custody but women can, I advocate men having custody and am charged with advocacy of illegal conduct -- statute says it's illegal but it would probably be invalid under equal protection if the statute were challenged), the person can still be charged with and convicted of advocacy, right (because he could have appealed to the legislature to change it rather than simply disobeying the law)?

[digitalcntrl]

I'm fully prepared for this thread to fall flat on its face, but since I will be grinding my face into our ~1800 page conlaw book nonstop for the next 48 hours, I might as well try and make sure that the threads I visit for distraction are also on topic.

For starters: I'm just now starting my outline, part of me is scared shitless since this IS Conlaw. But part of me is relaxed since about 75% of our reading was "warmup material" to help understand the other 25% that are actually relevant today... should I give in to temptation and just breeze over the old stuff?

(with some exceptions for Lochner/Roe/etc...)

Just remember that Boumediene and Gonzalez v. Raich were junk decisions.

[Cardboardbox]

I'm fully prepared for this thread to fall flat on its face, but since I will be grinding my face into our ~1800 page conlaw book nonstop for the next 48 hours, I might as well try and make sure that the threads I visit for distraction are also on topic.

For starters: I'm just now starting my outline, part of me is scared shitless since this IS Conlaw. But part of me is relaxed since about 75% of our reading was "warmup material" to help understand the other 25% that are actually relevant today... should I give in to temptation and just breeze over the old stuff?

(with some exceptions for Lochner/Roe/etc...)

Just remember that Boumediene and Gonzalez v. Raich were junk decisions.

Clearly I have a lot more to study. Why were these junk?

[Sogui]

Yes. The dissent is not the law. Neither are overturned cases.

I'm fully prepared for this thread to fall flat on its face, but since I will be grinding my face into our ~1800 page conlaw book nonstop for the next 48 hours, I might as well try and make sure that the threads I visit for distraction are also on topic.

For starters: I'm just now starting my outline, part of me is scared shitless since this IS Conlaw. But part of me is relaxed since about 75% of our reading was "warmup material" to help understand the other 25% that are actually relevant today... should I give in to temptation and just breeze over the old stuff?

(with some exceptions for Lochner/Roe/etc...)

Just remember that Boumediene and Gonzalez v. Raich were junk decisions.

I'm having trouble telling if this is trolling or if I'm just clueless (I've barely started my outline so it could be the latter).

Our ConLaw prof talked a great deal about Boumediene and put a Raich was the final case covering commerce clause for us, and I don't see anything in the court composition that would put either case in jeopardy let alone "junk" territory.

As for the Gator, I just assumed that was a troll. Of course I'm going to read the significant dissents and milestone cases. Our professor does expect us to provide a foil for our answers, as I expect most professors would. Naturally that means incorporating dissents and older SCOTUS cases as reasoning against continuing some modern set of precedent.

I'm more concerned with the fact that I've got a long 42 hours ahead of me and that the first 400 pages of material and roughly 30% of our class notes are introductory material that appears more suited to easing us into the class and Supreme Court than actually teaching us anything that could possibly come up in a modern court case.

[BarbellDreams]

Not sure how Raich is a "junk decision". It was on my midterm and unless my prof has lost his marbles is still good law and is cited in current decisions.

[keg411]

Not sure how Raich is a "junk decision". It was on my midterm and unless my prof has lost his marbles is still good law and is cited in current decisions.

Yeah, this. I don't see how Raich is "junk" at all, especially since it was cited in a few of the health care cases and we talked about it in class.

[Ty Webb]

The implication is that it's "junk" because it shook out on the basis of Scalia changing sides because the specific product in question was marijuana.

Scalia did some Constitutional Yoga to stretch portions of the Constitution to legitimize his decision, but that was pretty transparent. Someone like him doesn't just have a change of doctrine on an issue like commerce/state control/etc. He just put his moral persuasions ahead of his typical doctrine on those items. If the product had been something non-racy, many believe he would have voted differently.

This is why it's junk. It's junk because it doesn't reflect how things will shake out in the future.

[Sogui]

The implication is that it's "junk" because it shook out on the basis of Scalia changing sides because the specific product in question was marijuana.

Scalia did some Constitutional Yoga to stretch portions of the Constitution to legitimize his decision, but that was pretty transparent. Someone like him doesn't just have a change of doctrine on an issue like commerce/state control/etc. He just put his moral persuasions ahead of his typical doctrine on those items. If the product had been something non-racy, many believe he would have voted differently.

This is why it's junk. It's junk because it doesn't reflect how things will shake out in the future.

I don't think it's fair to put Raich in that light. Raich has a majority without Scalia's concurrence. Furthermore, all of them shared the belief that this was a far more economic good than the two cases used to pull back on Wickard (gun-free schools and domestic violence). The court is obviously zero'ing in on an acceptable middle ground and I think Raich represents a useful case for illustrating that activities that fall somewhere between "wheat" and "wife-beating" can fall under the commerce clause.

Even if you think the SCOTUS was just doing judicial acrobatics to reach its decision, the logic they use will still be important in future cases that test the limit of CC power, especially since it extends Wickard as good law.



For those of you who have professors who like to test on "hot" issues, have you guys tried to anticipate these questions? What recent/upcoming/pending SCOTUS cases would serve as good fodder for questions?

Last semester for this was alternative schools for children of illegal immigrants, and a follow up that had a required alternative school for anyone who failed a language test which asked what Constitutional "hooks" could justify the law and what vulnerabilities those hooks faced of being found unconstitutional. The rest was just theoretical questions about executive war-time powers, distinguishing Roe from Lochner in terms of defensibility, rights of the Constitution beyond US borders, standard for all-girl public schools v. all-white public schools, etc...

[Ty Webb]

The implication is that it's "junk" because it shook out on the basis of Scalia changing sides because the specific product in question was marijuana.

Scalia did some Constitutional Yoga to stretch portions of the Constitution to legitimize his decision, but that was pretty transparent. Someone like him doesn't just have a change of doctrine on an issue like commerce/state control/etc. He just put his moral persuasions ahead of his typical doctrine on those items. If the product had been something non-racy, many believe he would have voted differently.

This is why it's junk. It's junk because it doesn't reflect how things will shake out in the future.

I don't think it's fair to put Raich in that light. Raich has a majority without Scalia's concurrence. Furthermore, all of them shared the belief that this was a far more economic good than the two cases used to pull back on Wickard (gun-free schools and domestic violence). The court is obviously zero'ing in on an acceptable middle ground and I think Raich represents a useful case for illustrating that activities that fall somewhere between "wheat" and "wife-beating" can fall under the commerce clause.

Even if you think the SCOTUS was just doing judicial acrobatics to reach its decision, the logic they use will still be important in future cases that test the limit of CC power, especially since it extends Wickard as good law.



For those of you who have professors who like to test on "hot" issues, have you guys tried to anticipate these questions? What recent/upcoming/pending SCOTUS cases would serve as good fodder for questions?

Last semester for this was alternative schools for children of illegal immigrants, and a follow up that had a required alternative school for anyone who failed a language test which asked what Constitutional "hooks" could justify the law and what vulnerabilities those hooks faced of being found unconstitutional. The rest was just theoretical questions about executive war-time powers, distinguishing Roe from Lochner in terms of defensibility, rights of the Constitution beyond US borders, standard for all-girl public schools v. all-white public schools, etc...

I'm just giving you the argument for why one might say it's illegitimate. Not saying that I necessarily agree with it.

[de5igual]

The implication is that it's "junk" because it shook out on the basis of Scalia changing sides because the specific product in question was marijuana.

Scalia did some Constitutional Yoga to stretch portions of the Constitution to legitimize his decision, but that was pretty transparent. Someone like him doesn't just have a change of doctrine on an issue like commerce/state control/etc. He just put his moral persuasions ahead of his typical doctrine on those items. If the product had been something non-racy, many believe he would have voted differently.

This is why it's junk. It's junk because it doesn't reflect how things will shake out in the future.

I don't think it's fair to put Raich in that light. Raich has a majority without Scalia's concurrence. Furthermore, all of them shared the belief that this was a far more economic good than the two cases used to pull back on Wickard (gun-free schools and domestic violence). The court is obviously zero'ing in on an acceptable middle ground and I think Raich represents a useful case for illustrating that activities that fall somewhere between "wheat" and "wife-beating" can fall under the commerce clause.

Even if you think the SCOTUS was just doing judicial acrobatics to reach its decision, the logic they use will still be important in future cases that test the limit of CC power, especially since it extends Wickard as good law.



For those of you who have professors who like to test on "hot" issues, have you guys tried to anticipate these questions? What recent/upcoming/pending SCOTUS cases would serve as good fodder for questions?

Last semester for this was alternative schools for children of illegal immigrants, and a follow up that had a required alternative school for anyone who failed a language test which asked what Constitutional "hooks" could justify the law and what vulnerabilities those hooks faced of being found unconstitutional. The rest was just theoretical questions about executive war-time powers, distinguishing Roe from Lochner in terms of defensibility, rights of the Constitution beyond US borders, standard for all-girl public schools v. all-white public schools, etc...

potential hot issues: gay marriage; obamacare

[Sogui]

potential hot issues: gay marriage; obamacare

Our professor taught family/gender law, gender was present on the exam, but not a huge issue. I think a pregnancy question and an all-female school mini-question gave her favorite field like a 20 point presence on a 100 point exam.

So I could see gay marriage making an appearance this year, and this was in her Bio:

Sexing Skinner: History and the Politics of the Right to Marry (2010)
From McLaughlin v. Florida to Lawrence v. Texas: Sexual Freedom and the Road to Marriage (09)
Immoral Purposes: Marriage and the Genus of Illicit Sex (06)

On the other hand, Obama care is making more headlines lately and is on a fast track to the Supreme Court. But we didn't discuss healthcare at all and it's not in the Professor's field. Is Obamacare supposed to be an exercise of the commerce clause? If then I suppose we could see it but then again our Prof seems to favor short questions and not multi-page hypos, so I'm not sure how you could spit out an Obamacare question without giving lots of background detail.

Time to go read Lawrence and the sex cases again? Oh god, I can't even remember whether Lawrence v. Texas was equal protection or substantive due process...

[drdolittle]

Time to go read Lawrence and the sex cases again? Oh god, I can't even remember whether Lawrence v. Texas was equal protection or substantive due process...

Good luck to you now. Especially in trying to get all this done with TLS proving to be such a distraction. I've been there. I am there.

[clintonius]

Oh god. Take home final becomes available in less than five hours. I feel like I know nothing.

[mpard84]

1L:

Is anyone leaning 1st amend.? Or is everyone on the same structural page (as w/me) Raich, Lujan, 10/11 amend., etc.

[Sogui]

1L:

Is anyone leaning 1st amend.? Or is everyone on the same structural page (as w/me) Raich, Lujan, 10/11 amend., etc.

We didn't even touch 1st amendment, it's been commerce clause + 14th amendment for almost our entire class, with a few cases on Executive powers.

[npe]

I'll join the party; my Con Law II exam is in a few days, and I need some motivation to study.

1L:

Is anyone leaning 1st amend.? Or is everyone on the same structural page (as w/me) Raich, Lujan, 10/11 amend., etc.

We did 14th Amend. (equal protection, substantive due process) and 1st Amend. (speech, establishment, exercise).

[somewhatwayward]

what are the commerce clause arguments for obamacare?

also, how is the fundamental rights analysis different under SDP as opposed to EP?

[BarbellDreams]

what are the commerce clause arguments for obamacare?

also, how is the fundamental rights analysis different under SDP as opposed to EP?

1. For Obamacare the argument is that its a transaction (buying insurance) and thus is commercial in nature and it substantially affects the market because how many people have and dont have insurance directly correlates to insurance prices for everyone else, healthcare prices, etc. The harder question to answer how regulating a non-transaction (NOT buying insurance being penalized) is the same. There are multiple avenues you can go with this, and I dont have my midterm to remember which was I went.

2. The first step of everything is figuring out whether you're doing a SDP analysis or an EP analysis. If you can make the argument for a fundamental right interference (a right thats in the constitution, something that is rooter in history, etc.) then you automatically are using strict scrutiny. If its not a fundamental right its just rational basis and all the state needs to show is that there is a rational reason for enacting it (meaning thats its not arbitrary). Now if there is no fundamental right you can try and make the argument for the equal protection clause. In order to do this you will need to show that someone is being discriminated against (If the law discriminates against EVERYONE you can't use equal protection cause everyone is protected the same, at that point it HAS to be due process or if you can make the argument you can try Piriveges and Immunities but I wont get into that here). If you are looking at equal protection you need to see what the law is discriminating against, is it race? If so its automatically strict scrutiny under Korematsu. In order to find out whether a law is discriminating based on race you need to ask whether the law is colorblind, whether it leads to subordination, and if there was any intent. Now if the law discriminates against gender its generally intermediate scrutiny+, the plus meaning the VMI case development of "exceedingly persuasive justification" on top of the regular intermediate scrutiny test.

Keep in mind that you need to find intent. If its incidental even racial discrimination will just need rational basis under Washington v Davis. Here is a law to think about. Its widely known that african americans have a higher volume of fast-twitch muscles in their body than Caucasians. If a police department decides they only want to hire blacks (discriminate against whites), they could decide to make a quota saying that they want only officers that can run the half-mile in 2 minutes flat (or whatever the time is thats really good) that they know whites typically cant run. If a white officer sues, they wont be able to prove intent because all the police department has to say is that they want cops who run fast, and if that incidentally makes all the officers black in the end then so be it.

[zanda]

what are the commerce clause arguments for obamacare?

also, how is the fundamental rights analysis different under SDP as opposed to EP?

1. For Obamacare the argument is that its a transaction (buying insurance) and thus is commercial in nature and it substantially affects the market because how many people have and dont have insurance directly correlates to insurance prices for everyone else, healthcare prices, etc. The harder question to answer how regulating a non-transaction (NOT buying insurance being penalized) is the same. There are multiple avenues you can go with this, and I dont have my midterm to remember which was I went.

2. The first step of everything is figuring out whether you're doing a SDP analysis or an EP analysis. If you can make the argument for a fundamental right interference (a right thats in the constitution, something that is rooter in history, etc.) then you automatically are using strict scrutiny. If its not a fundamental right its just rational basis and all the state needs to show is that there is a rational reason for enacting it (meaning thats its not arbitrary). Now if there is no fundamental right you can try and make the argument for the equal protection clause. In order to do this you will need to show that someone is being discriminated against (If the law discriminates against EVERYONE you can't use equal protection cause everyone is protected the same, at that point it HAS to be due process or if you can make the argument you can try Piriveges and Immunities but I wont get into that here). If you are looking at equal protection you need to see what the law is discriminating against, is it race? If so its automatically strict scrutiny under Korematsu. In order to find out whether a law is discriminating based on race you need to ask whether the law is colorblind, whether it leads to subordination, and if there was any intent. Now if the law discriminates against gender its generally intermediate scrutiny+, the plus meaning the VMI case development of "exceedingly persuasive justification" on top of the regular intermediate scrutiny test.

Keep in mind that you need to find intent. If its incidental even racial discrimination will just need rational basis under Washington v Davis. Here is a law to think about. Its widely known that african americans have a higher volume of fast-twitch muscles in their body than Caucasians. If a police department decides they only want to hire blacks (discriminate against whites), they could decide to make a quota saying that they want only officers that can run the half-mile in 2 minutes flat (or whatever the time is thats really good) that they know whites typically cant run. If a white officer sues, they wont be able to prove intent because all the police department has to say is that they want cops who run fast, and if that incidentally makes all the officers black in the end then so be it.

I mostly agree, except that there's some intermediate level of DP scrutiny between strict scrutiny and rational basis for non-fundamental rights. This includes abortion (undue burden) and arguably same-sex sodomy (Lawrence- still being worked out in the circuits).

[npe]

And also rational basis-plus (or rational basis "with bite") for non-racial, non-gender discriminatory laws with an invidious purpose. See Romer v. Evans; City of Cleburne; Metro Life Insurance.

[YourCaptain]

I'm fully prepared for this thread to fall flat on its face, but since I will be grinding my face into our ~1800 page conlaw book nonstop for the next 48 hours, I might as well try and make sure that the threads I visit for distraction are also on topic.

For starters: I'm just now starting my outline, part of me is scared shitless since this IS Conlaw. But part of me is relaxed since about 75% of our reading was "warmup material" to help understand the other 25% that are actually relevant today... should I give in to temptation and just breeze over the old stuff?

(with some exceptions for Lochner/Roe/etc...)

Just remember that Boumediene and Gonzalez v. Raich were junk decisions.

edit - Someone want to explain the President and his ability to have standing in official capacity? Our Professor is bound to give us something where the President has to make a domestic choice, and is either going to disobey it or decide it's unconstitutional. The standing issues for parties suing the President, Congress, and the President suing himself intimidate me.

[Sogui]

Time to go read Lawrence and the sex cases again? Oh god, I can't even remember whether Lawrence v. Texas was equal protection or substantive due process...

Good luck to you now. Especially in trying to get all this done with TLS proving to be such a distraction. I've been there. I am there.

Turns out the question worth over half our grade was about the constitutionality of a Civil Union law, unfortunately the analysis had little to do with Lawrence and was more about Congressional powers.

[npe]

Time to go read Lawrence and the sex cases again? Oh god, I can't even remember whether Lawrence v. Texas was equal protection or substantive due process...

Good luck to you now. Especially in trying to get all this done with TLS proving to be such a distraction. I've been there. I am there.

Turns out the question worth over half our grade was about the constitutionality of a Civil Union law, unfortunately the analysis had little to do with Lawrence and was more about Congressional powers.

Ah, but hopefully rereading Lawrence et al. made you more confident that they didn't apply, at least.