Legal Theory

Scalia Explains Stance on Abortion, GPS Ruling

Justice Antonin Scalia doesn’t shy away from controversy, even before a large crowd of ABA members at the midyear meeting in New Orleans. Scalia didn’t hesitate when an audience member asked him whether his Catholic religion influenced his opposition to Roe v. Wade. The answer, Scalia said, is no. If…

Mar 1, 2012 7:30 AM CST

Patriots Debate: The Meaning of the Constitution in a Time of Terror

Since the events of 2001, the intersection of law and terrorism has become one of the most volatile zones in the public square—a place where qualities of life and manners of death are deliberated against 225 years of the U.S. Constitution.

Feb 1, 2012 11:39 AM CST

Constitutional Dilemma: The Power to Declare War Is Deeply Rooted in American History

Commanding the American warship the USS Constitution in the waning days of the 18th century, Capt. Silas Talbot steered the massive 44-gun frigate into the path of a little vessel called the Amelia. Talbot knew what he was after. An experienced naval officer since the American Revolution whose prowess prompted…

Feb 1, 2012 11:35 AM CST

War Powers Belong to the President

In ordering the U.S. Air Force to attack Libyan targets on the ground and impose a no-fly zone in the air, President Barack Obama sent the U.S. military into combat without Congress’ blessing. This was not always President Obama’s view. Anti-war Democrats vigorously challenged President George W. Bush’s conduct of…

Feb 1, 2012 11:30 AM CST

Only Congress Can Declare War

John Yoo and I agree that the framers rejected the British system of royal prerogative. In his Commentaries, William Blackstone placed all of foreign policy and the war power with the executive. Clearly the framers repudiated that model, which is obvious simply by looking at the text of the U.S.…

Feb 1, 2012 11:20 AM CST

The High Bench vs. the Ivory Tower

Searching for the proper understanding of a refined issue of bankruptcy law, Judge Thomas L. Ambro discovered his saving grace in a 1998 law review article. “I felt I had found my Rosetta Stone,” wrote Ambro of the 3rd U.S. Circuit Court of Appeals at Philadelphia, referring to an article…

Feb 1, 2012 11:00 AM CST

Unknown Knowns: Torture Suits Against Rumsfeld May Revive a 40-Year-Old Liability Case

Asked in 2002 whether there was any evidence that Iraq had supplied terrorists with weapons of mass destruction, then-Defense Secretary Donald Rumsfeld famously opined: “As we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say, we…

Feb 1, 2012 9:40 AM CST

Law Profs from Wisconsin, Illinois Die on Christmas Eve

Two law professors noted for their publications have died on Christmas Eve. University of Illinois law professor Larry Ribstein, who wrote for the Truth on the Market blog, died at the age of 65 in Fairfax, Va., the Champaign News-Gazette reports. He has expertise in corporate and securities law. His…

Jan 3, 2012 12:20 PM CST

An Arresting Development: Courts Split Over DNA Testing for Those Merely Charged with a Crime

DNA “fingerprinting” has become so crucial to linking individuals to crimes that many wonder how far law enforcement will push it. Criminals who raped and murdered years—even decades—earlier have been caught and convicted based on DNA collection, analysis and matching. Courts, meanwhile, have generally upheld DNA collection and testing of…

Jan 1, 2012 9:20 AM CST

On Second Thought: Changes Mulled Re ABA Opinion on Client Communications Issue

The ABA’s newest formal ethics opinion has endured an unusual existence almost since the day it became official. Opinions issued by the ABA Standing Committee on Ethics and Professional Responsibility are important tools for guiding lawyers on the practical meaning of the Model Rules of Professional Conduct, which are the…

Jan 1, 2012 8:50 AM CST

Chemerinsky: The Latest Test on the Confrontation Clause

Although Williams v. Illinois will likely make few headlines, it is a case that could have a major effect on how criminal trials are conducted in the United States. The issue is whether the Confrontation Clause of the Sixth Amendment is violated when a laboratory analyst testifies as an expert…

Dec 1, 2011 2:40 PM CST

Changing Course: Initiative Seeks to Emphasize Teaching Practice Skills

The typical law school class features a combination of lectures and the so-called case-dialogue method, in which a professor prods students with questions about a court decision in efforts to spark an analytical discussion about its legal import. But professor Roberto Corrada’s course in labor relations law at the University…

Dec 1, 2011 7:50 AM CST

Sky-High Spy: With GPS Probing, the Zone of Privacy Is Getting Even Smaller

Since at least the 1920s, the U.S. Supreme Court has grappled with whether “sensory-enhancing” techniques used by the police constitute searches or seizures requiring a warrant under the Fourth Amendment. Included are wiretaps, detectaphones, “pen registers” (the phone company’s log of numbers customers dial), eavesdropping (but not wiretapping) of a…

Nov 1, 2011 8:20 AM CDT

Did Procedural Protections for Criminal Defendants Perversely Lead to Longer Sentences?

A law professor’s book suggests a possible link between Warren court protections for criminal defendants and longer prison sentences. Harvard law professor William Stuntz finished the book, The Collapse of American Criminal Justice, before his death from colon cancer earlier this year. In a Wall Street Journal (sub. req.) book…

Oct 26, 2011 4:37 PM CDT

John Yoo Praises Justice Thomas, Says His Ideas ‘Set the Table for the Tea Party’

Justice Clarence Thomas is the “intellectual godfather” of the tea party movement, according to one of his former law clerks, University of California at Berkeley law professor John Yoo. Writing in the Wall Street Journal, Yoo notes that Thomas has embraced originalism during his 20 years on the court and…

Oct 25, 2011 11:00 AM CDT