Monthly Archives: June 2011

US Sentencing Commission Votes for Retroactivity of Crack Cocaine Amendment

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Today, the U.S. Sentencing Commission “voted unanimously” to give “retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010,” a press release said. The retroactively applicable guideline amendment for crack cocaine offenses will allow over 12,000 federal prisoners to seek resentencing. According to the Sentencing Commission [...]

Third Circuit Rules that Padilla v. Kentucky is Retroactively Applicable on Habeas

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The Third Circuit took the unusual step of declaring a Supreme Court opinion (Padilla v. Kentucky, 130 S.Ct. 1473 (2010)) retroactively applicable to defedants filing habeas corpus motions. The case is United States v. Orocio and the opinion can be found here. For those who do not regularly follow post-conviction and habeas cases, federal courts [...]
Posted in Criminal Law |( 2 Comments)

Recent Court Opinions

Brown v. Entertainment Merchants Assn., 08-1448 California passed a law regulating the sale and rental of violent video games to minors. The 9th Circuit declined to use the standard applied to laws restricting sexual obscenity, and instead struck down the law after a strict scrutiny examination. Writing for a diverse majority, Justice Scalia reasoned that [...]

Sackett: Do you have a right to court review of administrative commands?

The Supreme Court today agreed to hear a case brought by the Pacific Legal Foundation, to decide whether an Idaho couple, Michael and Chantell Sackett, have the right to judicial review of an EPA “compliance order” that forces them to remove certain improvements on their land or face tens of thousands of dollars in fines [...]
Posted in Uncategorized |( Comments closed)

Kagan Reverses Course in First Amendment/Video Game Case

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I remember when Steve Lubet questioned whether former Solicitor General Ted Olson should be allowed to argue that the federal campaign finance reform statute was unconstitutional in Citizens United, because, as Solicitor General, he had argued a contrary position. At the time, I didn’t understand why that mattered since “advocates represent clients,” not their personal [...]

Government’s CON job

The cover story of the new issue of Regulation magazine is my article on “Certificate of Necessity” (CON) laws, including the law that we’re challenging in the case of Missouri entrepreneur Michael Munie. CON laws are laws that require businesses to prove to a government agency that there’s a “public need” for a new business [...]
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Best of the Weekend

I read several great pieces over the weekend. Here are the best of them. University of Chicago Professor Geoffrey R. Stone had this New York Times op-ed entitled “Our Untransparent President.” Mr. Stone alleges that: “While Mr. Obama has taken certain steps, notably early in his administration, to scale back some of the Bush-era excesses, [...]

Recent Court Opinions

Stern v. Marshall, 10-179 This highly anticipated ruling, covered by E! Online and Access Hollywood, has finally established that bankruptcy court judges are not federal judges in the Article III sense, and therefore may not hear certain claims (C.J. Roberts wrote the opinion; J. Scalia filed a concurring opinion; J. Breyer filed a dissent, joined [...]
Posted in Uncategorized |( 1 Comment)

Ron Paul and Barney Frank Introduce Bill to Legalize Weed

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The USA Today and a host of other media outlets report that Representatives Ron Paul and Barney Frank introduced a bill to legalize marijuana. According to Politico, the bill was: Modeled on the 21st Amendment to the Constitution that repealed the prohibition of alcoholic beverages, the legislation is being cast by the Marijuana Policy Project [...]

Go Go Gadget Arms: Why Justice Breyer Rightly Reached Out to Decide a Question Not Presented in Turner v. Rogers

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Sometimes the Supreme Court reaches out to decide issues not raised in the petition for certiorari. It is a rare occurrence. But it happened in Turner v. Rogers, No. 10-10. If you weren’t following the case, here are the facts: Michael D. Turner racked up large debts owed to his child’s mother and the state [...]