Constitutional Law

Professor Ashutosh Bhagwat's book, The Myth of Rights, has just been issued by the Oxford University Press in paperback.

This is part one in a two-part series, co-authored with Professor Alan Brownstein, for Justia's Verdict on the ways in which lower courts and the Supreme Court will need to flesh out Second Amendment doctrine.

Last week, I participated in a panel discussion with Professor Jack Chin (Arizona, soon to join King Hall) on preemption and immigration policy at the State Bar of Arizona Annual Convention, which this year was held in Tucson.

My prior column, Part One in this two-part series, introduced readers to Proposition 26, a state constitutional amendment adopted by California voters in November that (1) reclassifies many regulatory fees as taxes, thereby subjecting them to supermajority- and referendum-vote requirements under the California Constitution, and (2) changes the trigger for supermajority and referendum votes on tax increases.

Analysts of the same-sex marriage legal saga are trying to read the tea leaves from the U.S. Court of Appeals for the Ninth Circuit's oral argument held last Monday. The argument took up the federal constitutional challenge to California's Proposition 8, a state constitutional initiative limiting marriage to a union between a man and a woman.

As early as this week, Congress might decide the fate of thousands of young Californians who would like to fully contribute to our economy, but currently are unable to do so because of their immigration status. The House of Representatives and the Senate plan to vote on the DREAM Act, which would provide undocumented young men and women of good moral character who attend college or enlist in the armed services with a pathway to citizenship.

Now that we know the identity of the three judges of the U.S. Court of Appeals for the Ninth Circuit who will hear the appeal in the case challenging Proposition 8 (California's ban on same-sex marriage), observers are trying to handicap the outcome. I too am guilty on occasion of getting caught up in the horserace aspect of litigation prediction, but in this column I explain why complex lawsuits, like racing forms, aren't for the faint of heart.

The Composition of the Ninth Circuit Panel

On December 6, the U.S. Court of Appeals for the Ninth Circuit will hear oral argument in the federal constitutional challenge to Proposition 8 -- California's voter-enacted ban on same-sex marriage. While the identity of the three judges to whom the appeal has been assigned won't be known until a week before the argument, the time is ripe to sketch out at least some of the possible outcomes of the Ninth Circuit proceedings.

Photo © Lisa R. Pruitt 2010

The closing line of my recent blog post asked: "Is even democracy a luxury for the poor?"

Many commentators and some Republican Senators have been suggesting that Supreme Court nominee Elena Kagan should undergo particularly rigorous questioning in the Senate because the "paper record" setting out what she believes and stands for is rather thin. This thinness is due in part, say some Kagan detractors, to the fact that she is not, and has never been, a judge.