October 24, 2008
The Teaching Assistant
Hello fellow law teachers! Let's see what's out there for the week of October 19 . . .
The ACLU blog has a first-hand account from Ms. Jessica Lenahan describing her experiences with domestic violence. The relevance to your class? Ms. Lenahan was formerly known as Jessica Gonzales, the plaintiff in Gonzales v. City of Castle Rock. Although she lost her claim in the Supreme Court, she is now alleging that the actions of the city violated her international human rights. This is a good story to share with your students to let them know: 1) real people are behind these cases; 2) international law can be a valuable alternative source of rights; and 3) creative lawyers should find alternatives, even when they think all paths have exhausted.
Over at the Legal Times, Robert Levy of the Cato Institute has an interesting piece entitled, "Is the Bailout Constitutional?" Levy begins by questioning the Congressional authority for the bailout, arguing that it is beyone Congress' commerce clause powers. I, for one, think this is problematic for two reasons. First, the analysis overlooks the fact that the United States banking industry almost assuredly has an impact on interstate commerce. Second, having read EESA in its entirety, it seems clear to me that the legislation is predicated upon Congress' spending powers, which are far broader than those granted by the Commerce Clause. However, I think Levy is on surer footing when he states that even if Congress posseses the authority to act, there are serious issues of delegation raised by the statute as written. However, given the Court's reluctance to invalidate a statute for lack of an "intelligible principle" for the past 75 years or so - up to an including Whitman - it's unlikely that the Court will agree with Levy. However, he is absolutely correct to raise the question, especially in light of the impact that EESA will have on our economy and our day to day lives.
In Supreme Court news, USA Today ran an interesting story about Former Justice Sandra Day O'Connor's talk at a legal forum in Mexico City. Among the highlights: 1) her reluctance to express any regret over the widely decried decision in Bush v. Gore. She stated that independent journalists had confirmed the result through their own recounts, and she has "stopped losing sleep" over the outcome; 2) her strong defense of Planned Parenthood v. Casey and the role of stare decisis in law. According to O'Connor, "a Supreme Court ruling should be overturned only when historical or social conditions surrounding an issue have changed — not simply because of a change in the court's makeup;" 3) her defense of the decisions from the Court in Hamdi, Hamdan, and Boudendine, which granted significant rights to persons held as enemy combatants in Guantanamo Bay.
Over at concurring opinions, Danielle Citron has a piece about agency activity prior to a presidential transition. While you might think that agency activity would be reduced during the lame duck portion of a presidency, Professor Citron notes that a forthcoming article by Professor Anne Joseph O'Donnell indicates that such activity increases, rather than decreases, immediately before a president's departure.
Finally, over at the Volokh Conspiracy, Johnathan Adler reports that the Sixth Circuit has announced a dormant commerce clause decision that distinguishes the Court's decision in Granholm v. Heald. A link to the Sixth Circuit case as well as excerpts of the relevant cases can be found in Adler's article.
That's all for this week. Happy Teaching!
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