Friday, February 5, 2010

Rumors of SCOTUS Retirements and Nominations

The speculation regarding the retirements of Justices Ruth Bader Ginsburg and John Paul Stevens continues. "That can't be news," Stevens reportedly said,  "I'm not exactly a kid."  Ginsberg has seemingly not commented.

Following closely on any rumor of retirement is discussion of possible nominees.  Among those being mentioned are Elana Kagan, Diane Wood (Judge on the Seventh Circuit, pictured below) and Cass Sunstein.




February 5, 2010 in Current Affairs, News | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 3, 2010

AG Holder Defends Criminal Justice System for Terrorist Suspect

Attorney General Eric Holder today wrote to Senator Mitch McConnell defending the Justice Department's use of the regular criminal justice system--and not military tribunals--to arrest, detain, charge, and try Umar Farouk Abdulmutallab in connection with his attempted bombing of Northwest flight 253 near Detroit on December 25, 2009.

The letter is largely a political response to criticism of the administration for using the regular criminal justice system and Article III courts instead of military tribunals for suspected terrorists.  But Holder includes a couple paragraphs on Constitutional issues related to detention and interrogation of terrorist suspects, defending current policies in part because they are consistent with past practice (of the Bush administration).

Here's a sample related to detention authority and what Holder calls "law of war" custody:

Since the September 11, 2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States. . . .

In fact, two (and only two) persons apprehended in this country in recent times have been held under the law of war.  Jose Padilla was arrested on a federal material witness warrant in 2002, and was transferred to law of war custody approximately one month later, after his court-appointed counsel moved to vacate the warrant.  Ali Saleh Kahlah Al-Marri was also initially arrested on a material witness warrant in 2001, was indicted on federal criminal charges (unrelated to terrorism) in 2002, and then transferred to law of war custody approximately eighteen months later.  In both of these cases, the transfer to law of war custody raised serious statutory and constitutional questions in the courts concerning the lawfulness of the government's actions and spawned lengthy litigation.  In Mr. Padilla's case, the United States Court of Appeals for the Second Circuit found that the President did not have the authority to detain him under the law of war.  In Mr. Al-Marri's case, the United States Court of Appeals for the Fourth Circuit reversed a prior panel decision and found in a fractured en banc opinion that the President did have authority to detain Mr. Al Marri, but that he had not been afforded sufficient process to challenge his designation as an enemy combatant.  Ultimately both Al-Marri (in 2009) and Padilla (in 2006) were returned to law enforcement custody, convicted of terrorism charges and sentenced to prison.

Letter at 2-3 (emphasis in original).  We covered Al-Marri's case most recently here.

Here's a sample related to detention authority of "enemy combatants":

Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney.  But the government's legal authority to do so is far from clear.  In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer.  Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General.  In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney . . . .

Letter at 5. 


February 3, 2010 in Executive Authority, Foreign Affairs, Fundamental Rights, News, Procedural Due Process, War Powers | Permalink | Comments (0) | TrackBack (0)

California Marriage Bill: Civil Marriage and Religious Protection

The legal definition of "marriage" is at the core of the Proposition 8 trial in California federal court: A new Bill introduced in the California Senate, SB 906, would alter that definition and clarify some of the constitutional issues surrounding solemnization of marriage by clergy.  The Bill does not specifically pertain to same-sex marriage, but does have - - - and is most likely intended to have - - - implications for the constitutional arguments surrounding same-sex marriage and religious free exercise.


The summary of the Bill states:

Existing law defines marriage as a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. This bill would instead define the term civil marriage as a personal relation arising out of a civil contract between a man and a woman, established pursuant to a State of California marriage license issued by
the county clerk, to which the consent of the parties capable of making
that contract is necessary. The bill would also make conforming related
changes by changing certain references to marriage to civil marriage.

Existing law enumerates persons who are authorized to solemnize a
marriage, including, but not limited to, any priest, minister, rabbi, or authorized person of any religious denomination. The bill would specify that no priest, minister, rabbi, or authorized person of any religious denomination would be required to solemnize a marriage that is contrary to the tenets of his or her faith. The bill would state that any refusal to solemnize a marriage under that provision shall not affect the tax exempt status of any entity.

Thus, the Bill enacts a conscience clause for religious solemnizers of civil marriages. No similar conscience clause exemption exists in the Bill for public officials. 


February 3, 2010 in Current Affairs, Family, Recent Cases, Religion, Sexual Orientation, Sexuality, State Constitutional Law, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 2, 2010

Chicago Programs on Guantanamo Lawyering, Rights and National Security

Chicago chapters of the American Constitution Society and the Federalist Society have (coincidentally) scheduled two exciting and related, but independent, programs this week and next, both related to detention and treatment of "enemy combatants."

On Thursday the Chicago Lawyers Chapter and the John Marshall Law School Student Chapter of the American Constitution Society, the Illinois ACLU, and the Chicago Council of Lawyers are co-hosting a lunch-time discussion titled The Guantanamo Lawyers: Inside a Prison Outside the Law, featuring four attorneys who have represented detainees at Guantanamo Bay who also tell their stories in a book by the same name.  The anouncement follows.

 The Chicago Lawyer Chapter of the American Constitution Society presents:

The Guantanamo Lawyers:
Inside a Prison Outside the Law

Featuring attorneys who have represented Guantanamo detainees:

Marc D. Falkoff
Assistant Professor of Law,
Northern Illinois University College of Law

H. Candace Gorman
The Law Office of H. Candace Gorman

Gary A. Isaac

Counsel, Mayer Brown LLP




Thomas P. Sullivan

Partner, Jenner & Block LLP

Thursday, February 4, 2010

12:00 p.m.

John Marshall Law School

315 S. Plymouth Court

Room 200

Chicago, IL

Following 9/11, the United States imprisoned more than 750 men at its naval base at Guantanamo Bay, Cuba.  The stories of these detainees told by their lawyers are collected in the book The Guantanamo Lawyers: Inside a Prison Outside the Law. This panel discussion brings some of these lawyers together to discuss their experiences: from gaining access to their clients, to establishing their clients' right to habeas corpus, to documenting the conditions at the prison.

There will be no cost to attend this event.  Please feel free to bring your lunch.

1.0 hours of CLE credit will be offered free of charge
to attorneys who bring their ARDC number.

Copies of the book will be available for sale and signing.

RSVP by Wednesday, February 3rd here.

Questions? Please contact Amy M. Gardner at
or Scott J. Richard at

This event is co-sponsored by the John Marshall Law School Student Chapter of the American Constitution Society, the American Civil Liberties Union of Illinois and
the Chicago Council of Lawyers.

On Monday, February 8, the Chicago Lawyers Chapter of the Federalist Society is hosting a debate between John Yoo and Congressman Bob Barr titled Balancing Individual Rights and National Security.  (Thanks to student Matt Fender for the tip.)  The announcement follows.



Balancing Individual Rights

and National Security

Sponsored by the Chicago Lawyers Chapter

See Other Upcoming Federalist Society Events HERE

The Federalist Society
1015 18th Street, NW
Suite 425
Washington, DC 20036

Professor John C. Yoo

Professor of Law, University of California, Berkeley, Boalt Hall School of Law
Author of
Crisis and Command: A History of Executive Power from George Washington to George W. Bush.


Congressman Bob Barr

Represented the 7th District of Georgia in the U.S. House of Representatives from 1995 to 2003, and was the 2008 Libertarian Party nominee for President of the United States. He practices law with the Law Offices of Edwin Marger, and runs a consulting firm, Liberty Strategies, Inc., in Atlanta, Georgia.

Moderated By

Mr. Gil M. Soffer

Co-Chair of the National White Collar Practice at Katten Muchin Rosenman, LLP. In 2008, Mr. Soffer served as  Associate Deputy Attorney General at the U.S. Department of Justice.

Monday, Feb. 8, 2010
11:30 a.m. - 1:30 p.m.

Union League Club
65 W. Jackson Blvd.
Chicago, IL

Union League Club Dress Code: Business or Business Casual Attire. No jeans or athletic attire.

Prof. John C. Yoo will sign his book: Crisis and Command: A History of Executive Power from George Washington to George W. Bush after the debate. Copies of the book will be available for purchase.

Luncheon and Debate
$30 for Lawyers - $15 for Students

To RSVP for this event, please email:


February 2, 2010 in Conferences, Congressional Authority, Executive Authority, Foreign Affairs, Fundamental Rights, International, Interpretation, News, War Powers | Permalink | Comments (0) | TrackBack (0)

California Constitution: Conference and CFP


Picture 5

More information and Call for Papers here.


February 2, 2010 in Conferences, Scholarship, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, February 1, 2010

Arar Files Cert. Petition in Detention, Access, Torture Case

The Center for Constitutional Rights yesterday filed a cert. petition in the U.S. Supreme Court on behalf of Maher Arar, the Canadian citizen detained by U.S. authorities, denied access to the courts, and delivered to Syria for torture, seeking review of the Second Circuit's rejection of Arar's claims.  The CCR has an outstanding legal resource page, including media links and C-Span's coverage of the Second Circuit's en banc oral argument, here.

Arar filed his claim against a host of senior federal officials and 10 unknown federal law enforcement and immigration agents for violations of the Torture Victim Protection Act and the Fifth Amendment Due Process Clause.  The district court rejected Arar's claims; a divided three-judge panel of the Second Circuit affirmed; and the en banc Second Circuit upheld, 7-4 (with four separate and notably sharp dissents).

Arar argues four points in his cert. petition.  First, he argues that the Second Circuit's rejection of his Bivens claim for obstruction of access to the courts is contrary to laws implementing the Convention Against Torture (the "CAT") and the purpose and spirit of Bivens.  Federal law implementing the CAT prohibits sending any person to a country where he faces danger of torture, 8 U.S.C. Sec. 1231(a) and (e), and grants court of appeals jurisdiction to review constitutional and CAT claims in petitions for review of removal orders.  8 U.S.C. Secs. 1252(a)(2)(D) and (a)(4).  Arar argues that defendants in the case violated both, and that the Second Circuit's rejection of his claims allows federal officials "to escape accountability so long as they ensure that aliens in their custody cannot get to court."  (Cert. Petition at 13.)  This undermines "one of the predominant justifications for Bivens remedies[:] to deter unconstitutional conduct."  (Id.)

Arar argues next that the Second Circuit erred in weighing only those factors against recognizing a Bivens action in the case (and not those factors in favor of recognizing an action) and in holding that any reason for hesitation in recognizing a Bivens action should bar such claims.  Arar argues that this approach is inconsistent with the balancing approach in Wilkie v. Robbins (2007) ("weighing reasons for and against the creation of a new cause of action"), the Court's most recent Bivens decision, and decisions of other courts of appeals.

Third, Arar argues that the Second Circuit erred in ruling that defendants did not act "under color of law" of a foreign nation, for the purpose of the Torture Victim Protection Act, when they conspired with Syrian officials.  Arar argues that defendant's "willful participation in joint action" with Syrian officials satisfies the standard set in Dennis v. Sparks (1980) (holding that private parties who bribed a state judge to issue an injunction acted under color of state law for purposes of 42 U.S.C. Sec. 1983).

Finally, Arar argues that the Second Circuit, in affirming the dismissal because Arar couldn't name the defendants and identify their precise actions, set a pleading standard that exceeded even the heightened pleading standards in Twombly and Iqbal, because, unlike the defendant in Iqbal, the defendants here cannot give (and have not given) an "obvious alternative explanation" for the facts asserted in the complaint.

The sharply divided Second Circuit opinion, and Arar's strong arguments that the ruling runs up against well settled law, make Arar's case a good candidate for Supreme Court review.  But the trend of this Court is to curtail judicial review, not expand it.  A Court ruling in this case could well extend that trend, possibly doing even more damage to Bivens, to liberal pleading standards, and to access to the courts in cases involving the government's claimed interest in national security.  (On this last point, the other case to watch is Mohamed v. Jeppesen Dataplan, the state secrets case pending before the en banc Ninth Circuit.  The case was argued December 15, 2009; audio is here.)  


February 1, 2010 in Due Process (Substantive), Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Recent Cases, Separation of Powers, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)

Could this be from one of your students?

A bit of humor, or perhaps not:

Picture 2


February 1, 2010 in Games, Teaching Tips, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, January 31, 2010

Tribune Profiles Second Amendment McDonald

The Chicago Tribune today profiled Otis McDonald, the lead plaintiff in McDonald v. City of Chicago, the Second Amendment incorporation case now before the Supreme Court.  We've posted on the case, here, here, here, here, here, and here.  It's scheduled for oral argument on March 2.

McDonald is a 76-year-old Chicago resident who says he needs to carry a handgun for personal protection and self-defense.  After agreeing to serve as lead plaintiff--and on instructions from his attorney--he sought to register his .22 Beretta pistol with the Chicago police.  The police denied his application, citing the city's 28-year-old handgun ban, and he sued.

According to the story, McDonald's compelling personal background and legitimate reason for wanting to carry a handgun made him a good pick for lead plaintiff.  But the story cites constitutional law experts as suggesting another reason: McDonald is black.  According to one source, this may "help us remember [the] history" of the Fourteenth Amendment.  The Tribune: "In the Hellerdecision, Justice Antonin Scalia, writing for the majority, referred to that chapter in history, arguing that those who had opposed disarmament of freedmen did so with the understanding that the Second Amendment protected an individual right to own a gun for self-defense."

This story is a good complement to lessons on incorporation, the Second Amendment, and even constitutional litigation generally, reminding us that so many of these disputes come to the Court as carefully engineered cases, not as accidents.


January 31, 2010 in Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Privileges and Immunities, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Perry v. Schwarzenegger, Prop 8 Trial: The Re-enactment

The United States Supreme Court may have blocked the actual broadcast of the Proposition 8 trial, but the enterprising folks behind are re-enacting the trial, using the transcripts and the reports from bloggers and tweeters.

Picture 1

The "episodes" will be available on YouTube.  Here is the trailer:


January 31, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Gender, Recent Cases, Reconstruction Era Amendments, Sexual Orientation, Sexuality, Teaching Tips, Television, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)