Wednesday Writs for 8/21


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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12 Responses

  1. fillyjonk fillyjonk says:

    L1: Commerce Clause was also heavily cited as justification for the 1970s environmental legislation on the part of the feds (e.g., Clean Air Act, Clean Water Act). The grounds are essentially: “Kentucky can’t produce massive air pollution that harms Tennesee’s tourist industry” (as a simple example).

    The problem is, it gets sticky when you try to define what is a “navigable water” (the original statement of the Clean Water Act was for protection of navigable waters of the US) and a lot of the cases involving wetlands (E.g., Rapanos v. United States) are about “does a wetland or other unconnected body of water contribute sufficiently to the ‘navigable waters’ that it must be protected?”

    (Finally! A writ I actually know a little bit about!!)Report

    • Avatar PD Shaw in reply to fillyjonk says:

      Also probably timely since one suspects a resolution of the “what is a wetland” will be something that will happen now that Kennedy is gone. There is a legal dispute about which opinion in Rapanos controls and IIRC there was a blistering opinion by a trial judge that was asked by a Court of Appeals to re-review his decision in light the then recent SCOTUS decision. He was semi-retired and entered an order removing himself from the case and then he went on for fifty pages or so about how the SCOTUS is not being helpful. He had overseen a lengthy trial, evaluating complex scientific evidence and legal abstractions, and was asked to redo it in light of an opaque, likely transient, SCOTUS decision.Report

  2. Avatar InMD says:

    L4: Am I the only one who strongly suspects that ending cash bail would have the opposite effect of what is intended?Report

    • Avatar PD Shaw in reply to InMD says:

      Nope, at least I think it will reduce the number of people released before trial. I gather from previous comments here that some people don’t care if more people are locked up because it seems unfair that some are treated differently.Report

  3. Avatar CJColucci says:

    L7: RBG’s reference to “the literary genius known by the name of William Shakespeare,” is a sly acknowledgement that Justice Stevens was an anti-Stratfordian, convinced (along with distinguished “Shakespearean” actors like Sir Derek Jacobi and Mark Rylance) that the works attributed to Shakespeare were actually written by Edward de Vere, the Earl of Oxford.Report

  4. The US v. Lopez decision was an interesting one in its own right. IIRC, the Solicitor General basically shot himself in the foot. He was asked if he saw ANY limits to the commerce clause and he couldn’t come up with any. He argue that the Feds can basically play “this is the house that jack built” with enumerated powers.Report

  5. Avatar Jaybird says:

    “Can you give five examples of things that are *NOT* interstate commerce?”

    This used to be my favorite question to ask in this debate before I gave up entirely.Report

  6. Avatar George Turner says:

    There’s an interesting new gun ruling discussed at Reason

    A Michigan appeals court ruled that brandishing a gun during an altercation is non-lethal force, and that civilians have the same right as police to draw their weapons to prevent an escalation of violence.Report

  7. Avatar Brandon Berg says:

    Apparently Trump opened his mouth and birthright citizenship is back in the news, so here’s an interesting legal history question.

    It’s commonly asserted that Wong Kim Ark is the relevant precedent establishing birthright citizenship for children of illegal immigrants as the canonical interpretation of the 14th Amendment. However, if you actually read the majority opinion, it stresses that Wong’s parents were “legally domiciled” in the United States.

    This would seem to rule it out as a precedent for the specific question of whether illegal immigrants are “subject to the jurisdiction” of the United States for birthright citizenship purposes.

    Since it’s the only case I ever see cited on this issue—and I’ve looked!—I’m guessing that there’s no case which more closely addresses this question.

    Am I correct in inferring that there is no actual legal precedent on the question of birthright citizenship for illegal immigrants?Report

  8. Avatar Oscar Gordon says:

    My preference is that if we are agreed that the government should attempt to stabilize commodity prices (which, by the way, I am not sold on the idea of), it shouldn’t be doing it through direct control of supply, but through the application of tax (like a carbon tax).Report