Articles

What is the Clean Water Act?

June 14, 2022 | By JAMES BURLING

The Clean Water Act is one of the more commonly known pieces of federal legislation in America, but the history of the Act, why it was originally passed, and what it actually does is much less widely understood. What is the Clean Water Act, and what does it do?   How did the Clean Water … ...

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What is the difference between originalism vs. textualism vs. living constitutionalism?

April 27, 2022 | By JAMES BURLING

While we hear legal debates around originalism vs. textualism during high profile Supreme Court cases, they can often feel like vague terms. What exactly is originalism vs. textualism?  The late Justice Antonin Scalia called himself both an originalist and a textualist. Justice Neil Gorsuch is cconsidered “a proud textualist,” and yet ...

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Emergency orders and the Supreme Court’s ‘shadow docket’

April 21, 2022 | By JAMES BURLING

Schoolchildren are not known for their patience. But sometimes they have good reason to want something not next year, not next month, but now. Such as when their futures are on the line before the Supreme Court.   The slow Supreme Court process  In normal circumstances, it takes more than a year for the Supreme … ...

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Senators shouldn’t treat Supreme Court confirmation hearings as theater 

March 21, 2022 | By JAMES BURLING

It is with some trepidation that the nation approaches the Supreme Court confirmation hearings for Judge Ketanji Brown Jackson, which begin today. Will these hearings descend into a Twitter-mobbing reality TV show, or will they focus on the qualifications of Judge Jackson?   Americans have good reason to pay attention. For better or worse, the re ...

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The future is the past : New York and “good cause” eviction

February 24, 2022 | By JAMES BURLING

In 1905, the philosopher George Santayana famously said, “Those who forget the past are condemned to repeat it.”   Maybe that explains why some people are so nostalgic and want to repeat the time a half-century ago when landlords were abandoning between 21,0000 and 50,000 apartments a year throughout New York City.   In 1976, a New ...

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Daily Journal : Challenge to Coastal Commission action may head to US high court

February 15, 2022 | By JAMES BURLING

This is the story of a California couple caught in the cross-hairs of environmental bureaucracy bent on revenge for the crime of standing up to the state’s attempt to help people fall off a cliff. The revenge has taken its toll: a fine of over $4 million imposed in a hearing with procedures that would … ...

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Daily Journal : Property rights, the First Amendment and Malibu

December 01, 2021 | By JAMES BURLING

Last June, in Cedar Point v. Hassid, 2021 DJDAR 6262, the U.S. Supreme Court ruled that a California law that forced farmers to suffer uninvited union organizers onto their properties violated the Constitution’s takings clause. In holding for the farmers, Chief Justice John Roberts wrote for the majority that, “The Founders recognized ...

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The Hill : Soon to be blockbuster cases from the Supreme Court

October 04, 2021 | By JAMES BURLING

The Supreme Court convenes today for the start of its October 2021 term, in person for the first time since March 2020, when the pandemic drove the justices to — literally — phone it in. This year, the court has some blockbuster cases, both on its docket and in the cert petition pipeline. Here are … ...

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The crisis exception to the Constitution?

September 17, 2021 | By JAMES BURLING

When a great crisis visits the nation, the niceties of constitutionally protected rights must take a holiday. Only later, once the crisis has resolved, can we go about deciding which rights should be fully restored, and which rights should be modified to meet the new circumstances of a post-crisis world. Rights, after all, must give … ...