Wednesday, July 8, 2009

In case you missed it . . . Summer Edition Part 1

Hello dear profs!  This has been quite a busy summer.   Here a a few stories you might have missed while teaching, vacationing, or working on your scholarship.   I present these in no particular order:

1.  Pre-emption - Recently, the Third Circuit heard a case challenging the Snapple company's use of the term "natural" in its advertising.  The district court dismissed the case, reasoning that the FDA regulations on the issue had occupied the field and ended the matter.   However, in the intervening period, the Supreme Court decided the Wyeth case.  According to the Law.com write-up, the Third Circuit judges were quite aware of the change and questioned the continuing validity of the doctrine.  Lawyers for the food industry fear a ruling for the plaintiffs in this case could "open the floodgates to consumer class action claims against a whole slew of food sellers and manufacturers."

2.  Legal Theory Papers -  The Legal Theory Blog posts two papers that are worth a read.  The first is a  a paper by Prof. Richard A. Paschal (GMU) entitled "Congressional Power to Change Constitutional Law - Three Lacunae.  While conceding that the norm is that Congress cannot do so, in three areas - "state sovereign immunity under the Eleventh Amendment, intergovernmental tax immunity for both state and federal governments, and the Dormant Commerce Clause" - it can and does.   The second is a paper by law clerk Blake Denton entitled "While the Senate Sleeps: Do Contemporary Events Warrant a New Interpretation of the Recess Appointments Clause?"  According to the abstract, the paper "uses a "living Constitution" approach and concludes that in light of size, structure, and composition of the contemporary federal judiciary, the purposes underlying the Recess Appointments Clause's ratification are no longer met when the Clause is applied to vacancies in Article III Courts."   Both of these papers appear to raise quite intriguing questions on constitutional law.

3.  Dorf on the Important Counter-majoritarian Difficulty - Over at Dorf on Law, Professor Dorf argues that while the traditional counter-majoritarian difficulty - unelected judges overturning laws enacted by a popularly elected legislature - there are significant non-judicial counter-majoritarian difficulties as well.   Among these are: campaign finance and lobbying, super-majority requirements (such as 60 to break a filibuster) in Congress, and "the Senate itself  . . . iinsofar as it vastly over-represents residents of low-population states, which tend to be disproportionately agricultural and rural.

4. Fundamental Rights - Two quick notes here.  First, the Arizona legislature has passed a bill that would further restrict parental notice requirements and strengthen waiting period requirements.  Second, some doctors are threatening to end their practices if President Obama follows through on his goal to remove the so-called "conscience clauses" that permit health care professionals to refuse to provide certain medications or perform certain procedures on (primarily) religious grounds. 

That's all for now, but I'm sure we'll have more to report before classes begin!

NLS

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