• Tim Wu for Lt. Governor

    Follow: Previous Post FAN 29.1 (First Amendment News) — Florida Bar Joins Petitioner in Urging Court Review of Judicial Elections Case Our Books Recent PostsRecent Comments Current Events Tim Wu for Lt. Governor Constitutional Law FAN 29.

    2 readers - Gerard Magliocca/ Concurring Opinions
  • Does Salaita Have a Contract Claim?

    As I’ve argued in pedantic detail, Prof. Salaita’s hypothetical promissory estoppel claim against the University of Illinois is weak. In the Illinois Court of Claims, even if one can assert estoppel against a state instrumentality, the claim should fail unless the undiscovered facts are radically different from those publicly known.

    1 readers - Concurring Opinions
  • Further Thoughts on Halbig and Originalism

    Since my post on Halbig and originalism drew several great comments (including a response by Larry Solum here), I thought would add some clarifying thoughts. My point is that recovering the original public meaning of a legal text is often much harder than people care to admit. Historians are more likely than lawyers to say that the meaning of a past event is indeterminate.

    7 readers - Gerard Magliocca/ Concurring Opinions
  • Residence Requirement of the Federal Circuit

    One of the most curious provisions in federal law is 28 U.S.C. Sec. 44(c), which states the following: “While in active service, each circuit judge of the Federal judicial circuit . . . and the chief judge of the Federal judicial circuit, whenever appointed, shall reside within fifty miles of the District of Columbia.

    Gerard Magliocca/ Concurring Opinions
  • Halbig and Originalism

    One criticism of originalism in constitutional law is that we cannot always determine with reasonable certainty what the Framers of the 1787 Constitution, the Bill of Rights, or the Fourteenth Amendment intended or what the public understood those provisions to mean. Nonsense, say defenders of originalism.

    7 readers - Gerard Magliocca/ Concurring Opinions
  • En Banc Review

    The DC Circuit is considering a petition for rehearing en banc in Halbig (the Affordable Care Act case). I have no opinion on what the Court should do, and I think that it’s silly for outsiders to advise judges on a discretionary matter. (In other words, there is no “expertise” on whether to go en banc.

    2 readers - Gerard Magliocca/ Concurring Opinions
  • Some Textual Questions

    I was rereading the Constitution the other day, and two things stuck out this time that I had not thought about before. 1. Article I, Section 3 says “each senator shall have one Vote.” But Article I never says that each Representative shall have one vote. I wonder why. Perhaps because the Senate was new, the Framers felt the need to clarify the role of a Senator.

    2 readers - Gerard Magliocca/ Concurring Opinions
  • FAN 28 (First Amendment News) — The Demise of Stare Decisis?

    Professor Randy Kozel Start here: “Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis.” Okay, so much for the gospel regularly taught in law schools. But there is another gospel — the one actually practiced by judges. (Somewhere the old Florentine grins.

    6 readers - Ronald K.L. Collins/ Concurring Opinions
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  • Disclaimers & Promissory Estoppel

    Imagine that, rather than because of his speech, but for no reason at all, University of Illinois Chancellor Wise decided not to present Prof. Salaita’s appointment to the Board of Trustees.

    3 readers - Concurring Opinions
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