Sunday, March 31, 2013
How to Decide United States v. Windsor
Thursday, March 28, 2013
Law, Music, and Other Performing Arts-- The case of Verdi's High C
I've posted a draft of my latest article, Verdi's High C, on SSRN. Here is the abstract:
A Same-Sex Marriage Postscript
Gerard N. Magliocca
I want to make a couple of observations about the arguments before we go into hibernation until June.
Tuesday, March 26, 2013
Supreme Court Arguments We'd Like to See
Taking Structure Seriously
The signs and banners outside the Supreme Court today referred to the right to marry but the argument in Hollingsworth v. Perry was all about constitutional structure. Indeed, I can’t remember a recent argument in which the entire Court appeared to take constitutional structure so seriously. The standing question (on which the outcome in the case might very well turn) presented a virtual civics lesson on democratic design: the role of elected officials in enforcing laws, the residual interests of ordinary citizens in having their laws enforced, the relationship between ballot initiatives and ordinary legislation, and the appropriate function of the courts. And although nobody uttered the F-word, federalism concerns drove questions from nearly all of the members of the Court. In a sign that we are all federalists now--or at least for today--Justice Sotomayor suggested that the marriage question should “perk” at the state level before the Court gets involved. Several justices likewise highlighted the concern (it clearly doomed the Solicitor General’s nine-state solution) that requiring states that already give same-sex couples all the benefits of marriage to also give those couples a marriage license would shut off the very experimentation that federalism is meant to encourage. Today was not a good one for the odd couple of David Boies and Ted Olson, whose effort to establish a right to same-sex marriage nationwide came to a screeching halt. But constitutional structure proved to be alive and well. One structural question, of course, remains: can five members of this third branch of government now agree on an outcome?
Quote of the Day
Gerard N. Magliocca
Courtesy of a live blog from the WSJ:
Interview on Gay Marriage and Originalism
Monday, March 25, 2013
Affirmative Action and Same-Sex Marriage
This week, the Supreme Court hears arguments in the marriage cases: one case involves a constitutional challenge to section 3 of DOMA; the other case involves a challenge to California's Proposition 8. There seems to be a growing consensus that in U.S. v. Windsor, section 3 of DOMA will be invalidated (a popular rationale is that DOMA will offend both Justice Kennedy's commitment to federalism and his sympathy to gay rights). Predicting the result in Hollingsworth v. Perry (the Prop 8 case) has produced larger divides. This is because even if there is a majority to invalidate Prop 8, there are at least four options to produce that result: (1) The Court could simply dismiss the case for lack of standing on the part of the petitioners, thereby leaving the district court decision invalidating Prop 8 intact. (2) The Court could go big and issue a 50-state ruling that the Constitution prohibits denying marriage licenses to same-sex couples. (3) The Court could hold that once a state grants all of the benefits of marriage through civil union laws (which a minority of states have now down) the state cannot withhold just the term marriage. (4) The Court could follow Judge Reinhardt's logic in Perry and issue a California-specific ruling: that Romer v. Evans prohibits an amendment to the California constitution to overturn a judicial ruling that the state constitution protects the right of same-sex couples to marry (and that resulted in same-sex marriages being performed in the state).
The Same-Sex Marriage Cases
Gerard N. Magliocca
Robert H. Jackson once said:
Sunday, March 24, 2013
"My Work Here Is Done"
Do Corporations Enjoy a 2nd Amendment Right to Drones?
An emerging, "solutionist" narrative about drones goes something like this:
Friday, March 22, 2013
Tim Jost interviews me on The Tough Luck Constitution
Same-sex marriage in New Mexico?
Thursday, March 21, 2013
Obama White Paper Relied on Nixon Falsification
Mary L. Dudziak
My op-ed in the current New York Times:
BREAKING: Supreme Court opinion in gay marriage case pre leaked
CISPA and Surveillance Culture: Who Has the First Amendment Right Against Whom?
Tuesday, March 19, 2013
Symposium on Fleming and McClain, Ordered Liberty
For convenience, here are all of the posts for our February Symposium on Jim Fleming and Linda McClain's new book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013).
Friday, March 15, 2013
The Tough Luck Constitution and the Assault on Health Care Reform
Wednesday, March 13, 2013
Arguments from the Future-- A New Modality of Constitutional Argument
At a meeting of the Supreme Court Clinic this evening, we discussed the upcoming arguments in the Marriage Cases. We considered what arguments would likely weigh most heavily with the Justices.
The Visible Deterioration of Law School Quality
A red flag is signaling the potential deterioration of quality at a significant number of law schools. LSAT medians rise and fall by a point or two over time at many law schools, usually in conjunction with changes in the size of the overall applicant pool and the standing of a particular school. That in itself is not a concern—problems arise, however, when law schools accept students who would not have gained admission in years past. Applicants with low LSAT/GPA scores, in particular, have a higher risk of failing out and a higher risk of not passing the bar exam.
Tuesday, March 12, 2013
The Law Graduate Debt Disaster Goes Critical
Last year I wrote about the quickly exploding law graduate debt disaster. It is getting worse, much worse. In 2010, only 4 law schools had graduates with average debt in excess of $135,000; in 2011, 17 law schools did. This past year 26 law schools surpassed this amount.
Monday, March 11, 2013
The Voting Rights Case You Haven’t Heard Of