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Volokh Conspiracy: April, 2014

Posted at 05:01 PM ET, 04/30/2014

Is it unethical for Justice Stevens to write and testify about campaign finance restrictions?

Ed Whelan (National Review Online) and Prof. Josh Blackman think so; I don’t.

By Eugene Volokh  |  05:01 PM ET, 04/30/2014 |  Permalink  |  Comments ( 0)

Posted at 07:18 AM ET, 04/30/2014

Are religious prisoners specially entitled to conjugal visits?

A Muslim inmate claims such a right under a federal religious freedom statute -- and a Pennsylvania appellate court lets his claim go forward (at least for now).

By Eugene Volokh  |  07:18 AM ET, 04/30/2014 |  Permalink  |  Comments ( 0)

Posted at 09:27 PM ET, 04/29/2014

The politics of science fiction

This year’s Hugo Awards have been the focus of ideological conflict in the science fiction world, much of it far from edifying. Fortunately, ideological clashes are far from a new phenomenon in the genre, which has always focused on political issues. They did not impede its progress in the past, and probably won’t do so now.

By Ilya Somin  |  09:27 PM ET, 04/29/2014 |  Permalink  |  Comments ( 0)

Posted at 09:13 PM ET, 04/29/2014

Corruption and the Maryland public-sector prison guard union

An interesting article about how the Maryland Correctional Officers Bill of Rights, passed under union pressure, makes it harder to prevent corruption scandals.

By Sasha Volokh  |  09:13 PM ET, 04/29/2014 |  Permalink  |  Comments ( 0)

Posted at 03:43 PM ET, 04/29/2014

The role of warrants in the cell phone search cases

By Orin Kerr  |  03:43 PM ET, 04/29/2014 |  Permalink  |  Comments ( 0)

Posted at 02:55 PM ET, 04/29/2014

Homer nods in EPA v. EME Homer City Generation — UPDATED

Scalia makes an embarrassing error in his EME Homer City dissent.

By Jonathan H. Adler  |  02:55 PM ET, 04/29/2014 |  Permalink  |  Comments ( 0)

Posted at 02:05 PM ET, 04/29/2014

Initial impressions from the oral argument in the Supreme Court cell phone search cases

I attended the oral arguments in the Supreme Court’s cell phone search cases this morning. Here’s an initial report and some guesses as to how the Court might rule.

By Orin Kerr  |  02:05 PM ET, 04/29/2014 |  Permalink  |  Comments ( 0)

Posted at 01:22 PM ET, 04/29/2014

‘State Department: Prosecuting journalists is not harassment’

By Eugene Volokh  |  01:22 PM ET, 04/29/2014 |  Permalink  |  Comments ( 0)

Posted at 11:12 AM ET, 04/29/2014

A unanimous opinion — except for three footnotes

The Supreme Court was unanimous in Octane Fitness, LLC v. Icon Health & Fitness, except for three footnotes in the majority opinion.

By Jonathan H. Adler  |  11:12 AM ET, 04/29/2014 |  Permalink  |  Comments ( 0)

Posted at 10:52 AM ET, 04/29/2014

Does separation of powers lead to a monarchical presidency?

Frank Buckley argues that separation of powers systems lead to a dangerous concentration of power in the hands of the president. But, separation of powers actually helps curb abusive executives, especially during periods of divided government.

By Ilya Somin  |  10:52 AM ET, 04/29/2014 |  Permalink  |  Comments ( 0)

Posted at 06:07 PM ET, 04/28/2014

New Jersey appellate court on handgun licenses

Plus a bit on people’s surreptitiously recording their conversations with police officers.

By Eugene Volokh  |  06:07 PM ET, 04/28/2014 |  Permalink  |  Comments ( 0)

Posted at 04:54 PM ET, 04/28/2014

Why I suspect the Supreme Court will screw up copyright law in the Aereo case

By Stewart Baker  |  04:54 PM ET, 04/28/2014 |  Permalink  |  Comments ( 0)

Posted at 02:03 PM ET, 04/28/2014

Another secret FISA opinion disclosed, and a question for Stewart Baker

If this is constitutional, why can’t the NSA also collect the credit card, bank, and medical records of all Americans?

By Randy Barnett  |  02:03 PM ET, 04/28/2014 |  Permalink  |  Comments ( 0)

Posted at 01:12 PM ET, 04/28/2014

When fish are ‘informational items,’ and part of a record

Can “any record, document, or tangible object” include fish? The Supreme Court has agreed to decide this.

By Eugene Volokh  |  01:12 PM ET, 04/28/2014 |  Permalink  |  Comments ( 0)

Posted at 12:46 PM ET, 04/28/2014

Applying the Fourth Amendment to the global Internet

In a forthcoming article, I take on a set of novel issues that courts must settle to apply the Fourth Amendment to global computer networks.

By Orin Kerr  |  12:46 PM ET, 04/28/2014 |  Permalink  |  Comments ( 0)

Posted at 12:44 PM ET, 04/28/2014

Republican Governors Association releases another contemptible ad attacking legal representation

The RGA releases another ad attacking an attorney for having represented unpopular clients.

By Jonathan H. Adler  |  12:44 PM ET, 04/28/2014 |  Permalink  |  Comments ( 0)

Posted at 10:45 AM ET, 04/28/2014

Does destroying fish violate the ‘anti-shredding’ provision of Sarbanes-Oxley?

A fisherman accused of violating Sarbanes-Oxley will get his day before the High Court.

By Jonathan H. Adler  |  10:45 AM ET, 04/28/2014 |  Permalink  |  Comments ( 0)

Posted at 09:28 AM ET, 04/28/2014

The Justice Department is fascist… literally!

By Eugene Kontorovich  |  09:28 AM ET, 04/28/2014 |  Permalink  |  Comments ( 0)

Posted at 02:25 AM ET, 04/28/2014

Courts grapple with the mosaic theory of the Fourth Amendment

The Eleventh Circuit, the FISC, and Magistrate Judge Facciola have cases pending (or recently handed down decisions) involving this controversial new approach to the Fourth Amendment. Here’s a run-down of the latest developments.

By Orin Kerr  |  02:25 AM ET, 04/28/2014 |  Permalink  |  Comments ( 0)

Posted at 01:11 AM ET, 04/28/2014

Court: Standard & Poor’s is entitled to discovery supporting its ‘selective prosecution’ claim

S & P argues that the Obama administration is actually going after it because S & P downgraded the United States’ own credit rating. The court says S & P introduced enough evidence to allow further discovery on the question.

By Eugene Volokh  |  01:11 AM ET, 04/28/2014 |  Permalink  |  Comments ( 0)

Posted at 07:36 PM ET, 04/27/2014

Unpersuasive Judicial Punctuation

By Stewart Baker  |  07:36 PM ET, 04/27/2014 |  Permalink  |  Comments ( 0)

Posted at 03:11 PM ET, 04/25/2014

State appellate courts of last resort that aren’t called “supreme court”

How many can you name?

By Eugene Volokh  |  03:11 PM ET, 04/25/2014 |  Permalink  |  Comments ( 0)

Posted at 02:23 PM ET, 04/25/2014

University of Hawaii (Hilo): Our students are easily intimidated, need to be protected from people handing out literature

A lawsuit against the university challenges the no-approach policy on First Amendment grounds.

By Eugene Volokh  |  02:23 PM ET, 04/25/2014 |  Permalink  |  Comments ( 0)

Posted at 12:53 PM ET, 04/25/2014

Judge sues accuser for libel, demands to see accuser’s evidence …

gets the evidence, drops the case, and asks for the evidentiary record to be sealed.

By Eugene Volokh  |  12:53 PM ET, 04/25/2014 |  Permalink  |  Comments ( 0)

Posted at 12:33 PM ET, 04/25/2014

Federalist Society’s second annual Executive Branch Review Conference

By Eugene Volokh  |  12:33 PM ET, 04/25/2014 |  Permalink  |  Comments ( 0)

Posted at 10:06 AM ET, 04/25/2014

My reply to Bruce Ackerman

Ackerman tries to derive a normative “ought” from an historical “is“

By Randy Barnett  |  10:06 AM ET, 04/25/2014 |  Permalink  |  Comments ( 0)

Posted at 10:04 AM ET, 04/25/2014

Meritless defamation lawsuit leads to award of fees to defendant, plus sanctions against plaintiff’s lawyers

The fee awards are normal in states that have “anti-SLAPP statutes.” The sanctions is much less normal.

By Eugene Volokh  |  10:04 AM ET, 04/25/2014 |  Permalink  |  Comments ( 0)

Posted at 09:16 AM ET, 04/25/2014

Why the Jerusalem passport case should be dismissed for lack of standing

While the plaintiff, Zivotofsky, may have the better of the arguments on the merits in the Jerusalem passport case, there are unexamined questions about his Art. III standing. After all, it is not his passport.

By Eugene Kontorovich  |  09:16 AM ET, 04/25/2014 |  Permalink  |  Comments ( 0)

Posted at 10:10 PM ET, 04/24/2014

Fifth Circuit rules that a federal law punishing hate crimes is a permissible exercise of Congress’ power under the Thirteenth Amendment

The Fifth Circuit Court of Appeals has upheld a federal statute banning hate crimes as a permissible exercise of congressional power under the Thirteenth Amendment, which bans slavery and “involuntary servitude.” But, in doing so, the court raised serious doubts about the soundness of Supreme Court precedent giving Congress extremely broad authority under the Amendment.

By Ilya Somin  |  10:10 PM ET, 04/24/2014 |  Permalink  |  Comments ( 0)

Posted at 04:30 PM ET, 04/24/2014

How we know Jerusalem passport issue is not about recognition

The Jerusalem Passport law allows people born in Jerusalem to not have “Israel” on their passport, and for people not born in Israel to have “Jerusalem” on theirs. That is not about recognition, but personal affiliation.

By Eugene Kontorovich  |  04:30 PM ET, 04/24/2014 |  Permalink  |  Comments ( 0)

Posted at 02:52 PM ET, 04/24/2014

Why the Court should uphold Congress’s power in the Jerusalem Passport case

The Passport Case is not about the President’s recognition power. Rather, it is about whether Congress can use its enumerated foreign relations power effectively. For example, if Congress declares war on Vietnam, can the president bomb Laotian cities, saying they are in Vietnam in his book?

By Eugene Kontorovich  |  02:52 PM ET, 04/24/2014 |  Permalink  |  Comments ( 0)
Tags:  Israel, separation of powers

Posted at 01:53 PM ET, 04/24/2014

British tourist arrested and about to be deported from Sri Lanka because of her Buddha tattoo

By Eugene Volokh  |  01:53 PM ET, 04/24/2014 |  Permalink  |  Comments ( 0)

Posted at 01:50 PM ET, 04/24/2014

The Muslims of America lose

An interesting lesson about libel of corporations.

By Eugene Volokh  |  01:50 PM ET, 04/24/2014 |  Permalink  |  Comments ( 0)

Posted at 01:36 PM ET, 04/24/2014

A legislative fix for Paroline?

Two law professors endorse a congressional fix to make sure that child pornography victims receive full restitution.

By Paul Cassell  |  01:36 PM ET, 04/24/2014 |  Permalink  |  Comments ( 0)

Posted at 01:06 PM ET, 04/24/2014

Colorado cyber-bullying bill fails, despite initial 54-10 vote in state House

Looks like some state senators took concerns about free speech and overcriminalization seriously.

By Eugene Volokh  |  01:06 PM ET, 04/24/2014 |  Permalink  |  Comments ( 0)

Posted at 01:00 PM ET, 04/24/2014

“‘[E]xplosion’ does not include a decomposing body’s cells explosively expanding, causing leakage of bodily fluids”

News you can use -- under unusual circumstances.

By Eugene Volokh  |  01:00 PM ET, 04/24/2014 |  Permalink  |  Comments ( 0)

Posted at 12:44 PM ET, 04/24/2014

Non-unanimous criminal jury verdicts

The latest case to challenge such verdicts, Jackson v. Louisiana, is on Friday’s Supreme Court conference list. on the Court.

By Eugene Volokh  |  12:44 PM ET, 04/24/2014 |  Permalink  |  Comments ( 0)

Posted at 12:21 PM ET, 04/24/2014

The continuing storm doctrine

They never taught me this in first-year Torts -- but maybe that’s because I went to law school in Los Angeles.

By Eugene Volokh  |  12:21 PM ET, 04/24/2014 |  Permalink  |  Comments ( 0)

Posted at 12:03 PM ET, 04/24/2014

A sad judicial family story

The removal of Judge McCree from the Michigan bench.

By Eugene Volokh  |  12:03 PM ET, 04/24/2014 |  Permalink  |  Comments ( 0)

Posted at 10:28 AM ET, 04/24/2014

The RGA’s despicable ad in South Carolina

A new ad resurrects the shameful tactic of attacking an attorney for the actions of his clients.

By Jonathan H. Adler  |  10:28 AM ET, 04/24/2014 |  Permalink  |  Comments ( 0)

Posted at 05:37 PM ET, 04/23/2014

The Supreme Court promises child pornography victims full restitution “someday.” How long is that?

The battle for full restitution for child pornography victims will now shift to Congress.

By Paul Cassell  |  05:37 PM ET, 04/23/2014 |  Permalink  |  Comments ( 0)

Posted at 11:20 AM ET, 04/23/2014

The crime victim’s reaction to today’s Supreme Court decision

Amy, the victim in today’s Supreme Court case, gives her reaction to the Court’s split-the-difference ruling.

By Paul Cassell  |  11:20 AM ET, 04/23/2014 |  Permalink  |  Comments ( 0)

Posted at 10:42 AM ET, 04/23/2014

On freedom of speech, social tolerance, and opposition to gay marriage (updated with a response to Travis Weber of the Family Research Council)

My take on the ouster of Mozilla executive Branden Eich for opposing same-sex marriage, and the limits of social tolerance.

By Ilya Somin  |  10:42 AM ET, 04/23/2014 |  Permalink  |  Comments ( 0)

Posted at 10:39 AM ET, 04/23/2014

Another 5-4 decision, but not another left-right split

An unusual line-up in a crime victim restitution case.

By Jonathan H. Adler  |  10:39 AM ET, 04/23/2014 |  Permalink  |  Comments ( 0)

Posted at 10:34 AM ET, 04/23/2014

The Supreme Court reverses the Sixth Circuit in yet another habeas case

Once again, a majority of the Supreme Court finds that the Sixth Circuit was too quick to grant habeas relief.

By Jonathan H. Adler  |  10:34 AM ET, 04/23/2014 |  Permalink  |  Comments ( 0)

Posted at 09:59 AM ET, 04/23/2014

D.C. council v. D.C. mayor: A very interesting local constitutional crisis

By Eugene Volokh  |  09:59 AM ET, 04/23/2014 |  Permalink  |  Comments ( 0)

Posted at 06:18 PM ET, 04/22/2014

Why the result in Schuette was inevitable

Given that the constitutionality of affirmative action preferences in higher education is premised on the diversity rationale, the argument that curtailing preferences uniquely disadvantages minority students was a sure loser.

By David Bernstein  |  06:18 PM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 05:26 PM ET, 04/22/2014

Six thoughts on Navarette v. California

In the Supreme Court’s new 5-4 Fourth Amendment decision on drunk-driving stops, the Court gets it (mostly) right.

By Orin Kerr  |  05:26 PM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 04:01 PM ET, 04/22/2014

Should President Obama (and President George H.W. Bush before him) have signed an unconstitutional law?

I first addressed this question in an article three years ago, and here I analyze the latest controversy.

By Will Baude  |  04:01 PM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 03:35 PM ET, 04/22/2014

Asian-Americans, affirmative action, and the “political restructuring” doctrine: Does the doctrine work when there are minority groups on both sides of the issue?

Today’s Supreme Court decision upholding Michigan’s ban on racial preferences in college admissions turns on the “political restructuring” doctrine, which holds that states cannot reconfigure the political process in ways that impose special burdens on minority groups. Defenders of the restructuring doctrine don’t have a good explanation of how it can be applied in an increasingly diverse America where there are often minority groups on both sides of any important policy issue.

By Ilya Somin  |  03:35 PM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 02:30 PM ET, 04/22/2014

Freedom to marry, freedom to disagree: a public statement

In the wake of the Mozilla controversy, 58 prominent supporters of same-sex marriage urge tolerance of those who disagree.

By Dale Carpenter  |  02:30 PM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 02:24 PM ET, 04/22/2014

Today’s Supreme Court false election statements case is unlikely to produce any ruling about false election statements

The issue before the court at this point is a procedural one: Have plaintiffs shown enough of a credible threat of prosecution that they are entitled to go to court for a declaration that the statute is unconstitutional?

By Eugene Volokh  |  02:24 PM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 01:52 PM ET, 04/22/2014

The Roberts concurrence in Schuette v. BAMN

The Chief writes a separate opinion taking aim at Justice Sotomayor’s dissent (and defending the Court’s opinion).

By Jonathan H. Adler  |  01:52 PM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 01:43 PM ET, 04/22/2014

Making sense of the Supreme Court’s Michigan affirmative action decision

A splintered decision produces an unclear holding.

By Jonathan H. Adler  |  01:43 PM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 11:13 AM ET, 04/22/2014

What was the Coalition to Defend Affirmative Action thinking?

Today the Supreme Court upheld Michigan’s Proposal 2 against a challenge to its prohibition on race-base preferences in university admissions. Almost everyone expected this result. So what was the strategy behind bringing this case?

By Stuart Benjamin  |  11:13 AM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 10:57 AM ET, 04/22/2014

Why the ABC v Aereo case matters — and why it doesn’t

By David Post  |  10:57 AM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 10:54 AM ET, 04/22/2014

Thomas v. Scalia on traffic stops

Justices Thomas and Scalia diverge on the constitutionality of a traffic stop.

By Jonathan H. Adler  |  10:54 AM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 10:46 AM ET, 04/22/2014

Supreme Court upholds Michigan civil rights initiative

Six justices agree Michigan voters may prohibit the state’s use of racial preferences in higher education.

By Jonathan H. Adler  |  10:46 AM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 08:19 AM ET, 04/22/2014

Why the Supreme Court’s “right to lie” case is not really about the “right to lie”

What is really at stake in Susan B. Anthony List v. Driehaus

By Jonathan H. Adler  |  08:19 AM ET, 04/22/2014 |  Permalink  |  Comments ( 0)

Posted at 07:28 PM ET, 04/21/2014

“Old: Selfie. New: Dronie.”

The possibilities are endless.

By Eugene Volokh  |  07:28 PM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 07:01 PM ET, 04/21/2014

A gun control law that even the Massachusetts attorney general’s office thinks is unconstitutional (as applied in two cases)

The law banned gun purchase by people who had any out-of-state drug convictions, even decades-old convictions for possessing small quantities of marijuana.

By Eugene Volokh  |  07:01 PM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 05:35 PM ET, 04/21/2014

The First Amendment Guide to the Second Amendment

First Amendment doctrines are often useful in resolving Second Amendment legal issues.

By David Kopel  |  05:35 PM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 04:55 PM ET, 04/21/2014

Portland is flushing 38 million gallons of water from reservoir, because teenager urinated in it

When there’s a reservoir that’s open to the elements, shouldn’t one dose of urine be the least of your worries?

By Eugene Volokh  |  04:55 PM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 01:51 PM ET, 04/21/2014

Upcoming talks on “Democracy and Political Ignorance” at Stanford and the Austin, TX chapter of the Federalist Society

Upcoming talks on “Democracy and Political Ignorance” Stanford Law School and the Austin, TX Lawyers Division Federalist Society Chapter.

By Ilya Somin  |  01:51 PM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 12:20 PM ET, 04/21/2014

Does the need to maintain a successful political community create an obligation to obey the law? (Updated with a reply to political theorist Greg Weiner’s latest post)

Political theorist Greg Weiner argues that the need to maintain a successful political community creates an obligation to obey the law. But, in reality, it justifies obedience to only some laws.

By Ilya Somin  |  12:20 PM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 12:00 PM ET, 04/21/2014

New Jersey accused of discriminating against pro-atheism personalized license plates

BAPTIST apparently allowed, 8THEIST not.

By Eugene Volokh  |  12:00 PM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 11:15 AM ET, 04/21/2014

Down the memory hole

What looks like a patently unconstitutional injunction against Google, ordering it to block access to forgery allegations made against Texas lawyer Calvin C. Jackson in a now-settled case.

By Eugene Volokh  |  11:15 AM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 10:25 AM ET, 04/21/2014

Speech aimed to make someone “lack self-confidence in her relations with the opposite sex and about her body-build” = “intimidation”?

An Iowa prosecutor and Iowa juvenile court said “yes,” and the court found a high school girl guilty as a result. Fortunately, an appellate court has just said “no.“

By Eugene Volokh  |  10:25 AM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 09:43 AM ET, 04/21/2014

Eleventh Circuit rules that discovery can move forward on my Crime Victims’ Rights Act case

The case presents important issues about what remedies are available to crime victims when federal prosecutors illegally conceal plea discussions

By Paul Cassell  |  09:43 AM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 09:18 AM ET, 04/21/2014

Will the court cry for Argentina?

Monday the Supreme Court hears Argentina’s effort to avoid payment to its creditors.

By Jonathan H. Adler  |  09:18 AM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 08:16 AM ET, 04/21/2014

Two new and intriguing reviews of Rehabilitating Lochner

By David Bernstein  |  08:16 AM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 01:59 AM ET, 04/21/2014

Highly recommended urban fantasy / police procedural — Ben Aaronovitch’s Peter Grant series, starting with “Midnight Riot”

By Eugene Volokh  |  01:59 AM ET, 04/21/2014 |  Permalink  |  Comments ( 0)

Posted at 11:58 PM ET, 04/20/2014

Seventh circuit rejects second constitutional challenge to Wisconsin Act 10

By Jonathan H. Adler  |  11:58 PM ET, 04/20/2014 |  Permalink  |  Comments ( 0)

Posted at 11:45 PM ET, 04/20/2014

Another Obama Administration signing statement

By Jonathan H. Adler  |  11:45 PM ET, 04/20/2014 |  Permalink  |  Comments ( 0)

Posted at 08:43 PM ET, 04/20/2014

A Bitcoin Boulevard in Cleveland Heights

By Jonathan H. Adler  |  08:43 PM ET, 04/20/2014 |  Permalink  |  Comments ( 0)

Posted at 12:36 PM ET, 04/20/2014

More on speed limits and duties to obey the law

Michael Rappaport and I continue to debate the implications of attitudes towards speed limit violations for the debate over the extent of our duty to obey the law.

By Ilya Somin  |  12:36 PM ET, 04/20/2014 |  Permalink  |  Comments ( 0)

Posted at 12:03 PM ET, 04/20/2014

Should libertarians try to reclaim the word “liberal”?

Some libertarians argue that we should try to reclaim the word “liberal.” I am sympathetic to their project. But, on balance, we would do better to stick with “libertarian.“

By Ilya Somin  |  12:03 PM ET, 04/20/2014 |  Permalink  |  Comments ( 0)

Posted at 05:03 PM ET, 04/18/2014

Federalist Society podcast on using acquitted conduct at sentencing

Listen to my debate with Professor Doug Berman on whether a drug dealer acquitted of running a drug ring should be sentenced for running a drug ring.

By Paul Cassell  |  05:03 PM ET, 04/18/2014 |  Permalink  |  Comments ( 0)

Posted at 03:45 PM ET, 04/18/2014

National Firearms Law Seminar

Firearms law CLE program in Indianapolis on April 25.

By David Kopel  |  03:45 PM ET, 04/18/2014 |  Permalink  |  Comments ( 0)

Posted at 03:42 PM ET, 04/18/2014

Wisconsin limits on public employer collective bargaining upheld

By Eugene Volokh  |  03:42 PM ET, 04/18/2014 |  Permalink  |  Comments ( 0)

Posted at 03:36 PM ET, 04/18/2014

Sterilization of the “intellectually disabled”

Sometimes it’s illegal -- but sometimes it’s legal, and sometimes prohibitions on such sterilization are unconstitutional.

By Eugene Volokh  |  03:36 PM ET, 04/18/2014 |  Permalink  |  Comments ( 0)

Posted at 03:34 PM ET, 04/18/2014

BET has First Amendment right to tell transgender on-screen TV personality to dress differently on-screen

So holds a California trial court.

By Eugene Volokh  |  03:34 PM ET, 04/18/2014 |  Permalink  |  Comments ( 0)

Posted at 03:18 PM ET, 04/18/2014

Atheism, self-sacrifice, and morality

Damon Linker argues that atheists cannot explain or justify self-sacrifice. In reality, atheism is no less compatible with moral constraints on self-interest than theism.

By Ilya Somin  |  03:18 PM ET, 04/18/2014 |  Permalink  |  Comments ( 0)

Posted at 11:16 AM ET, 04/18/2014

He said “yes.” — good. He said “no;” — bad.

Tips for law review editors about punctuation, quotation marks, and footnote calls.

By Eugene Volokh  |  11:16 AM ET, 04/18/2014 |  Permalink  |  Comments ( 0)

Posted at 11:02 AM ET, 04/18/2014

“Dude, it’s just a fringe”

Complaints about fringes on the flag came as early as the 1920s -- in 1925, the U.S. Attorney General actually wrote an opinion about them.

By Eugene Volokh  |  11:02 AM ET, 04/18/2014 |  Permalink  |  Comments ( 0)

Posted at 10:30 AM ET, 04/18/2014

Judges weigh in on credibility findings for law enforcement

Judge Richard Kopf has now weighed in on this question: why is it so rare for a judge to find law enforcement officers not credible?

By Will Baude  |  10:30 AM ET, 04/18/2014 |  Permalink  |  Comments ( 0)

Posted at 01:21 AM ET, 04/18/2014

Game of Thrones quote from professor = threat to shoot up the school?

It gets better: The “threat” came via a photo of his young daughter wearing an “I will take what is mine with fire & blood” T-shirt. Fire! Blood! Dragons! Oh my!

By Eugene Volokh  |  01:21 AM ET, 04/18/2014 |  Permalink  |  Comments ( 0)

Posted at 11:06 PM ET, 04/17/2014

‘That’s all you are, with your yellow fringe’

An unsurprisingly ineffective argument -- or is it a found poem? -- from a criminal defendant.

By Eugene Volokh  |  11:06 PM ET, 04/17/2014 |  Permalink  |  Comments ( 0)

Posted at 05:23 PM ET, 04/17/2014

He’s no clone: Justice Thomas’s legacy in law and politics

Justice Thomas’s approach to the Constitution is rooted in the Declaration of Independence.

By Randy Barnett  |  05:23 PM ET, 04/17/2014 |  Permalink  |  Comments ( 0)

Posted at 04:08 PM ET, 04/17/2014

Snowden Self-Incriminates

By Stewart Baker  |  04:08 PM ET, 04/17/2014 |  Permalink  |  Comments ( 0)

Posted at 03:42 PM ET, 04/17/2014

Speed limits, immigration, and the duty to obey the law

Law professor Michael Rappaport argues that attitudes towards speed limit laws are a special case that don’t tell us much about obligations to obey the laws more generally. But the reasons why most people believe that violating the speed limit is often justified also apply to many other laws.

By Ilya Somin  |  03:42 PM ET, 04/17/2014 |  Permalink  |  Comments ( 0)

Posted at 02:02 PM ET, 04/17/2014

Further reading on the problem of dishonest law enforcement agents

Further thoughts on and some criticism of my earlier post on findings of dishonesty by police officers.

By Will Baude  |  02:02 PM ET, 04/17/2014 |  Permalink  |  Comments ( 0)

Posted at 12:36 PM ET, 04/17/2014

Kahan v. Krugman

Empirical research tells us more about motivated reasoning than does one columnist’s “lived experience.“

By Jonathan H. Adler  |  12:36 PM ET, 04/17/2014 |  Permalink  |  Comments ( 0)

Posted at 12:04 PM ET, 04/17/2014

Debating Halbig and PPACA Implementation

Competing perspectives on the Obama Administration’s implementation of the PPACA

By Jonathan H. Adler  |  12:04 PM ET, 04/17/2014 |  Permalink  |  Comments ( 0)

Posted at 09:49 AM ET, 04/17/2014

New article on criminal law enforcement privatization

The law of neighborhood watch associations, and why private policing is more complicated than it may appear at first glance.

By Sasha Volokh  |  09:49 AM ET, 04/17/2014 |  Permalink  |  Comments ( 0)

Posted at 09:32 AM ET, 04/17/2014

Hugo Black and Norm Pattis on bravery, sacrifice, and the legal profession

One opinion I had forgotten about was Black’s dissent in In Re Anastaplo.

By Will Baude  |  09:32 AM ET, 04/17/2014 |  Permalink  |  Comments ( 0)

Posted at 01:17 AM ET, 04/17/2014

Will hasn’t persuaded me that Hugo Black was a “great” Justice

Hugo Black had considerable influence, but he also had the good fortune to serve for over three decades on a Court in which he was in the ideological majority. Meanwhile, it’s hard to see that his demonstrated legal ability qualifies as great, certainly not compared to the likes of Louis Brandeis.

By David Bernstein  |  01:17 AM ET, 04/17/2014 |  Permalink  |  Comments ( 0)

Posted at 07:38 PM ET, 04/16/2014

No legal recourse for Gallaudet University official demoted because she signed anti-same-sex-marriage petition

Angela McCaskill, former Gallaudet University Chief Diversity Officer, loses her lawsuit.

By Eugene Volokh  |  07:38 PM ET, 04/16/2014 |  Permalink  |  Comments ( 0)

Posted at 05:26 PM ET, 04/16/2014

Minnesota State football coach Todd Hoffner, the dropped child pornography charges, and the First Amendment

The charges against the coach were dropped, and he’s getting his job back -- here’s how a court also decided that certain evidence in his case ought not be made public.

By Eugene Volokh  |  05:26 PM ET, 04/16/2014 |  Permalink  |  Comments ( 0)

Posted at 05:20 PM ET, 04/16/2014

Second Annual Executive Branch Review Conference

By Jonathan H. Adler  |  05:20 PM ET, 04/16/2014 |  Permalink  |  Comments ( 0)

Posted at 05:13 PM ET, 04/16/2014

Charges will be dropped in “disorderly conduct” / recording of bullies case

I wish it had happened earlier.

By Eugene Volokh  |  05:13 PM ET, 04/16/2014 |  Permalink  |  Comments ( 0)

Posted at 04:54 PM ET, 04/16/2014

The new liberal “nationalist” case for federalism

Yale Law School Professor Heather Gerken outlines the new liberal “nationalist” defense of federalism. This school of thought has both strengths and weaknesses. But even those who disagree with it, as I sometimes do, should recognize that it is an important contribution to the debate.

By Ilya Somin  |  04:54 PM ET, 04/16/2014 |  Permalink  |  Comments ( 0)

Posted at 03:59 PM ET, 04/16/2014

Mexico’s gun control laws: A model for the United States?

Claims about American guns smuggled into Mexico are greatly exaggerated.

By David Kopel  |  03:59 PM ET, 04/16/2014 |  Permalink  |  Comments ( 0)

Posted at 01:50 PM ET, 04/16/2014

FTC Commissioner Josh Wright’s dissent on the antitrust analysis of mergers

In Commissioner Wright’s (and others’) view, the FTC requires stronger evidence to believe in competitive efficiencies from mergers than to believe in anticompetitive harms. Is that right?

By Sasha Volokh  |  01:50 PM ET, 04/16/2014 |  Permalink  |  Comments ( 0)

Posted at 01:41 PM ET, 04/16/2014

Fourth Circuit affirms Lavabit contempt order

The court doesn’t reach the merits because the key arguments weren’t made at trial.

By Orin Kerr  |  01:41 PM ET, 04/16/2014 |  Permalink  |  Comments ( 0)

Posted at 09:32 AM ET, 04/16/2014

The greatness of Justice Hugo Black

A co-blogger has questioned Black’s greatness a couple of times, so I thought I’d offer a brief explanation.

By Will Baude  |  09:32 AM ET, 04/16/2014 |  Permalink  |  Comments ( 0)

Posted at 09:17 AM ET, 04/16/2014

Choosing between ‘never search’ and ‘sometimes search’ in the cell phone search cases

This is the hardest issue that the Supreme Court must decide in trying to determine how the Fourth Amendment applies to search of a cell phone incident to arrest. Let’s take a look at four focal points that might influence the decision.

By Orin Kerr  |  09:17 AM ET, 04/16/2014 |  Permalink  |  Comments ( 0)

Posted at 08:47 PM ET, 04/15/2014

Improving private prisons through the tax code

An NYU Law Review student note about Private Prisoner Rehabilitation tax credits, along similar lines to my Emory Law Journal article about Prison Accountability and Performance Measures.

By Sasha Volokh  |  08:47 PM ET, 04/15/2014 |  Permalink  |  Comments ( 0)

Posted at 07:52 PM ET, 04/15/2014

Chemerinsky and Menkel-Meadow on curricular reform

In the New York Times, Erwin Chemerinsky and Carrie Menkel-Meadow argue that what law schools really need is curricular innovation. Here’s a response.

By Orin Kerr  |  07:52 PM ET, 04/15/2014 |  Permalink  |  Comments ( 0)

Posted at 04:21 PM ET, 04/15/2014

My SCOTUSblog interview

I was interviewed recently for “SCOTUSblog on Camera.” Here’s the video of the interview.

By Orin Kerr  |  04:21 PM ET, 04/15/2014 |  Permalink  |  Comments ( 0)

Posted at 01:33 PM ET, 04/15/2014

Proposed Pennsylvania ban on using drones to interfere with hunting, fishing, and boating

The bills would ban “us[ing] an unmanned aircraft in a manner that interferes with another person’s lawful taking of game or wildlife,” and likewise as to boating and fishing.

By Eugene Volokh  |  01:33 PM ET, 04/15/2014 |  Permalink  |  Comments ( 0)

Posted at 01:17 PM ET, 04/15/2014

Food for thought: 4 columns on Rand Paul

The Kentucky Senator’s political traction is striking a nerve, but everyone needs to chill.

By Randy Barnett  |  01:17 PM ET, 04/15/2014 |  Permalink  |  Comments ( 0)

Posted at 01:14 PM ET, 04/15/2014

‘Disorderly conduct’ for high school student to secretly record his tormentors in the classroom?

That Pennsylvania criminal conviction on these grounds is just as unsound as news reports -- and my previous post -- suggest.

By Eugene Volokh  |  01:14 PM ET, 04/15/2014 |  Permalink  |  Comments ( 0)
Tags:  privacy

Posted at 11:43 AM ET, 04/15/2014

Futile suit against filibuster dismissed

The D.C. Circuit readily dispatches an ill-conceived suit challenging the constitutionality of the filibuster.

By Jonathan H. Adler  |  11:43 AM ET, 04/15/2014 |  Permalink  |  Comments ( 0)

Posted at 11:32 AM ET, 04/15/2014

“We the People: Each and Every One”

In a new paper, I critique Yale law professor Bruce Ackerman’s thesis about constitutional change and offer an alternative to his collective conception of popular sovereignty

By Randy Barnett  |  11:32 AM ET, 04/15/2014 |  Permalink  |  Comments ( 0)

Posted at 11:27 AM ET, 04/15/2014

D.C Circuit finds SEC’s conflict mineral disclosure rule violates First Amendment

The D.C. Circuit issued another potentially important decision concerning the constitutional limits on compelled commercial speech.

By Jonathan H. Adler  |  11:27 AM ET, 04/15/2014 |  Permalink  |  Comments ( 0)
Tags:  First Amendment

Posted at 10:41 AM ET, 04/15/2014

Voting with your feet and the meaning of Passover

This week is Passover. The holiday has multiple possible meanings. But one that should not be overlooked is the celebration of voting with your feet as a tool for overcoming oppression.

By Ilya Somin  |  10:41 AM ET, 04/15/2014 |  Permalink  |  Comments ( 0)

Posted at 09:29 AM ET, 04/15/2014

Five police officers found lying — and why it’s so rare

I wonder if the severe consequences to being caught lying actually cause more police lying in the long run.

By Will Baude  |  09:29 AM ET, 04/15/2014 |  Permalink  |  Comments ( 0)

Posted at 01:02 AM ET, 04/15/2014

Is the private prosecution of the Hillsborough disaster a model for the U.S.?

Today is the 25th anniversary of the Hillsborugh disaster, in which 96 Liverpool soccer fans were crushed to death. A later private prosecution shed light on the events -- Should opportunities for crime victims to bring private prosecutions in the U.S. be expanded?

By Paul Cassell  |  01:02 AM ET, 04/15/2014 |  Permalink  |  Comments ( 0)

Posted at 05:36 PM ET, 04/14/2014

The Second Amendment right to firearms commerce

Why the Second Amendment protects the rights of gun stores and gun manufacturers.

By David Kopel  |  05:36 PM ET, 04/14/2014 |  Permalink  |  Comments ( 0)

Posted at 03:03 PM ET, 04/14/2014

More about my amicus brief in DOT v. Ass’n of American Railroads

A link to the amicus brief, and a discussion of why the Due Process Clause is a better way to discuss the issues of bias that result when a financially interested party is also a regulator.

By Sasha Volokh  |  03:03 PM ET, 04/14/2014 |  Permalink  |  Comments ( 0)

Posted at 01:05 PM ET, 04/14/2014

Riddle: What should you call it when a U.S. federal court decides that a case ought to be litigated instead in Germany?

It’s often perfectly proper to do this, if the case is much more closely related in various ways to Germany than to the U.S.

By Eugene Volokh  |  01:05 PM ET, 04/14/2014 |  Permalink  |  Comments ( 0)

Posted at 12:19 PM ET, 04/14/2014

A citizen’s legal right to get a police officer fired for illegal surreptitious recording?

That’s the law in Pennsylvania.

By Eugene Volokh  |  12:19 PM ET, 04/14/2014 |  Permalink  |  Comments ( 0)

Posted at 12:12 PM ET, 04/14/2014

Crime for high school student to secretly audio-record his tormentors in the classroom?

According to a news story, Pennsylvania officials thought it was, but I very much doubt it.

By Eugene Volokh  |  12:12 PM ET, 04/14/2014 |  Permalink  |  Comments ( 0)

Posted at 11:35 AM ET, 04/14/2014

New paper on the idea of animus in constitutional law

What the Supreme Court’s DOMA decision really means.

By Dale Carpenter  |  11:35 AM ET, 04/14/2014 |  Permalink  |  Comments ( 0)

Posted at 09:32 AM ET, 04/14/2014

Why was Judge Pryor mad at Attorney General Holder?

I confess I am not quite certain exactly what the fight is about. There are four possibilities.

By Will Baude  |  09:32 AM ET, 04/14/2014 |  Permalink  |  Comments ( 0)

Posted at 07:06 AM ET, 04/14/2014

Legal scholarship in the lean years

Law school applications are way down, and many schools are struggling to adjust. Here’s some speculation on how the new environment might impact legal scholarship.

By Orin Kerr  |  07:06 AM ET, 04/14/2014 |  Permalink  |  Comments ( 0)

Posted at 11:40 PM ET, 04/13/2014

Speaking to the Texas Federalist Society

By Dale Carpenter  |  11:40 PM ET, 04/13/2014 |  Permalink  |  Comments ( 0)

Posted at 03:55 PM ET, 04/13/2014

How many recordings of the Goldberg Variations does the world need?

Answer:  As many as it can get (provided they’re good . . .).

By David Post  |  03:55 PM ET, 04/13/2014 |  Permalink  |  Comments ( 0)
Tags:  Goldberg Variations, JS Bach, music

Posted at 06:37 PM ET, 04/11/2014

Auernheimer to be set free tonight

A quick update on the case of Andrew Auernheimer.

By Orin Kerr  |  06:37 PM ET, 04/11/2014 |  Permalink  |  Comments ( 0)

Posted at 01:52 PM ET, 04/11/2014

My amicus cert petition in DOT v. Ass’n of American Railroads

The D.C. Circuit struck down a delegation based on a “private non-delegation doctrine” of its own invention, when it should have used the Due Process Clause. I hope the Supreme Court remands.

By Sasha Volokh  |  01:52 PM ET, 04/11/2014 |  Permalink  |  Comments ( 0)

Posted at 01:25 PM ET, 04/11/2014

Third Circuit vacates convictions in United States v. Auernheimer

The Third Circuit ruled that the government had failed to establish venue for charges in New Jersey, and therefore that Auernheimer was improperly charged in that district.

By Orin Kerr  |  01:25 PM ET, 04/11/2014 |  Permalink  |  Comments ( 0)

Posted at 10:32 AM ET, 04/11/2014

The Conspiracy goes (off off) Broadway

Last night members of the Volokh Conspiracy discussed nude dancing at the Woolly Mammoth Theater in DC

By Randy Barnett  |  10:32 AM ET, 04/11/2014 |  Permalink  |  Comments ( 0)

Posted at 08:46 AM ET, 04/11/2014

Scratching the surface

What separation of campaign and state might look like.

By Prof. Bradley A. Smith (guest-blogging)  |  08:46 AM ET, 04/11/2014 |  Permalink  |  Comments ( 0)

Posted at 03:50 AM ET, 04/11/2014

The need for computer-specific Fourth Amendment rules in the cell phone search cases

The Supreme Court faces three basic choices for when the Fourth Amendment allows the search of a cell phone incident to arrest. In this post, I argue against one option and set up the difficult choice between the remaining two options.

By Orin Kerr  |  03:50 AM ET, 04/11/2014 |  Permalink  |  Comments ( 0)

Posted at 06:19 PM ET, 04/10/2014

Why not get the state out of the marriage business?

Why I’m skeptical of such proposals.

By Eugene Volokh  |  06:19 PM ET, 04/10/2014 |  Permalink  |  Comments ( 0)

Posted at 04:04 PM ET, 04/10/2014

Williams v. Johnson: A neglected cert petition on a very troubling issue

This involves what was either an inadvertent error or an extremely irresponsible decision by the Supreme Court.

By Will Baude  |  04:04 PM ET, 04/10/2014 |  Permalink  |  Comments ( 0)

Posted at 02:58 PM ET, 04/10/2014

Studying for your Contracts exam?

It is not too late to try my little book: The Oxford Introductions to U.S. Law: Contracts.

By Randy Barnett  |  02:58 PM ET, 04/10/2014 |  Permalink  |  Comments ( 0)

Posted at 02:29 PM ET, 04/10/2014

The Making of a Libertarian, Contrarian, Nonobservant, but Self-Identified Jew

Last week at DePaul, Jack Balkin, Richard Primus, Eugene Kontorovich, and I (and others) spoke about how Judaism has influenced our work

By Randy Barnett  |  02:29 PM ET, 04/10/2014 |  Permalink  |  Comments ( 0)

Posted at 12:18 PM ET, 04/10/2014

Utah backs away from anti-gay-parenting study

The continuing trials of Mark Regnerus, the leading social scientist of the anti-same-sex marriage movement.

By Dale Carpenter  |  12:18 PM ET, 04/10/2014 |  Permalink  |  Comments ( 0)

Posted at 10:52 AM ET, 04/10/2014

The Fourth Amendment and Airport Security, cont’d

By David Post  |  10:52 AM ET, 04/10/2014 |  Permalink  |  Comments ( 0)

Posted at 10:41 AM ET, 04/10/2014

Frederick Douglass on immigration

Frederick Douglass’ 1869 speech defending Chinese immigration has great relevance to modern debates over immigration restriction.

By Ilya Somin  |  10:41 AM ET, 04/10/2014 |  Permalink  |  Comments ( 0)

Posted at 09:17 AM ET, 04/10/2014

More on the Brandeis-Hirsi Ali controversy

At Brandeis University, it’s incompetence all the way down.

By David Bernstein  |  09:17 AM ET, 04/10/2014 |  Permalink  |  Comments ( 0)

Posted at 09:14 AM ET, 04/10/2014

‘Something politically incestuous’

Government efforts to regulate campaigns inexorably lead to the government placing its thumb on the scale to advantage certain candidates and interests.

By Prof. Bradley A. Smith (guest-blogging)  |  09:14 AM ET, 04/10/2014 |  Permalink  |  Comments ( 0)

Posted at 09:12 AM ET, 04/10/2014

Respondents file merits briefs in the cell phone search cases

The Supreme Court will hear these important Fourth Amendment cases on April 29th. Here are links to the respondents’ filings, as well as a few thoughts on the sets of briefs filed in the case.

By Orin Kerr  |  09:12 AM ET, 04/10/2014 |  Permalink  |  Comments ( 0)

Posted at 10:50 PM ET, 04/09/2014

What do Jamestown (Virginia), San Diego, and New York City have in common?

By Eugene Volokh  |  10:50 PM ET, 04/09/2014 |  Permalink  |  Comments ( 0)

Posted at 08:39 PM ET, 04/09/2014

The litigation landscape for same-sex marriage

Here comes the avalanche.

By Dale Carpenter  |  08:39 PM ET, 04/09/2014 |  Permalink  |  Comments ( 0)

Posted at 04:04 PM ET, 04/09/2014

California court declines to hear case, saying it should be brought in Iran instead

Plaintiffs say the Iranian system is unfair, and hostile to non-Muslims (like them). Defendants say the lawsuit is about real estate in Iran, and a key witness is there, too.

By Eugene Volokh  |  04:04 PM ET, 04/09/2014 |  Permalink  |  Comments ( 0)

Posted at 03:19 PM ET, 04/09/2014

Originalism and its critics: My dialogue with Eric

A collection of posts about a course on originalism.

By Will Baude  |  03:19 PM ET, 04/09/2014 |  Permalink  |  Comments ( 0)

Posted at 03:12 PM ET, 04/09/2014

‘In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses’

With such an opening sentence, the bottom line can’t be a surprise.

By Eugene Volokh  |  03:12 PM ET, 04/09/2014 |  Permalink  |  Comments ( 0)

Posted at 01:58 PM ET, 04/09/2014

Crime to e-mail your roommate’s girlfriend saying ‘he really is a useless person’?

So says a prosecutor, arguing in front of New York’s highest court.

By Eugene Volokh  |  01:58 PM ET, 04/09/2014 |  Permalink  |  Comments ( 0)

Posted at 12:20 PM ET, 04/09/2014

The incoherence of limits

The third in a series of posts on “Separation of Campaign and State.“

By Prof. Bradley A. Smith and guest-blogging  |  12:20 PM ET, 04/09/2014 |  Permalink  |  Comments ( 0)

Posted at 11:04 AM ET, 04/09/2014

Apokalypse God Allah

An interesting inmate name change case from Oklahoma.

By Eugene Volokh  |  11:04 AM ET, 04/09/2014 |  Permalink  |  Comments ( 0)

Posted at 10:27 AM ET, 04/09/2014

Brandeis University’s double standard on honorary degrees

The university is willing to forgive some, but not all, offensive comments made by potential honorees.

By David Bernstein  |  10:27 AM ET, 04/09/2014 |  Permalink  |  Comments ( 0)

Posted at 10:16 AM ET, 04/09/2014

Post corrects Koch oil sands story, but critics remain unsatisfied

The Washington Post has corrected the story claiming the Koch brothers are the largest owners of leases in the oil sands, but critics of the original story are unsatisfied.

By Jonathan H. Adler  |  10:16 AM ET, 04/09/2014 |  Permalink  |  Comments ( 0)

Posted at 04:59 AM ET, 04/09/2014

Another denied application from Judge Facciola in the e-mail warrant case

Magistrate Judge John Facciola has recently issued a string of notable opinions denying applications for warrants to search for and seize computers and computer-stored evidence. Here’s a look at the most recent opinion. The third in a series.

By Orin Kerr  |  04:59 AM ET, 04/09/2014 |  Permalink  |  Comments ( 0)

Posted at 09:57 PM ET, 04/08/2014

Is refusing to photograph a gay marriage properly considered discrimination based on sexual orientation?

It doesn’t seem to make sense to argue that photographer who refuses to photograph a brit milah on moral grounds is discriminating based on religion, so why is refusing to photograph a gay wedding discrimination based on sexual orientation?

By David Bernstein  |  09:57 PM ET, 04/08/2014 |  Permalink  |  Comments ( 0)

Posted at 05:10 PM ET, 04/08/2014

Court rejects attempt to stop MoveOn’s use of Louisiana tourism slogan

The case is over a billboard that MoveOn.org put up, using Louisiana’s tourism slogan and other imagery.

By Eugene Volokh  |  05:10 PM ET, 04/08/2014 |  Permalink  |  Comments ( 0)

Posted at 01:32 PM ET, 04/08/2014

Upcoming talk on “Democracy and Political Ignorance” at Amherst College (Rescheduled)

I will be speaking “Democracy and Political Ignorance” at my alma mater, Amherst College, on April 17 (talk rescheduled from March 25, when it was cancelled due to snow).

By Ilya Somin  |  01:32 PM ET, 04/08/2014 |  Permalink  |  Comments ( 0)

Posted at 10:58 AM ET, 04/08/2014

The power to regulate elections, not campaigns

The Constitution, Art. I, Sec. 4, specifically gives Congress the power to regulate the “Times, Places and Manner of holding Elections.” Does this authorize Congressional regulation of election campaigns?

By Prof. Bradley A. Smith and guest-blogging  |  10:58 AM ET, 04/08/2014 |  Permalink  |  Comments ( 0)

Posted at 10:32 AM ET, 04/08/2014

Wall Street Journal calls occupied territories “disputed”: paging Gov. Christie

The Wall Street Journal runs a correction after I point out that Western Sahara, not Morocco, borders Mauritania. But it calls the territory “disputed,” apparently rejecting the notion that it is occupied.

By Eugene Kontorovich  |  10:32 AM ET, 04/08/2014 |  Permalink  |  Comments ( 0)

Posted at 09:34 AM ET, 04/08/2014

Zombie federalism and moral disagreement

The criticism of “Zombie Federalism,” and a serious point about federalism.

By Will Baude  |  09:34 AM ET, 04/08/2014 |  Permalink  |  Comments ( 0)

Posted at 08:10 PM ET, 04/07/2014

Do illegal immigrants have an obligation to obey laws banning them from entering the United States?

Many critics of illegal immigration assume that the very fact of its illegality makes it morally wrong. But it is far from clear that illegal immigrants have any obligation to obey immigration restrictions that would consign them to lives of poverty and oppression through no fault of their own.

By Ilya Somin  |  08:10 PM ET, 04/07/2014 |  Permalink  |  Comments ( 0)

Posted at 05:08 PM ET, 04/07/2014

Arnold Kling on political ignorance

Economist Arnold Kling correctly argues that widespread political ignorance is just one of several serious shortcomings of the modern democratic state. But he underrates the extent to which it exacerbates the others.

By Ilya Somin  |  05:08 PM ET, 04/07/2014 |  Permalink  |  Comments ( 0)

Posted at 04:54 PM ET, 04/07/2014

Separation of campaign and state

“What is needed to protect free speech and our basic democratic institutions, and what I believe the Constitution was intended to provide, is a robust doctrine that prevents state interference with the process by which the government is selected ....“

By Prof. Bradley A. Smith and guest-blogging  |  04:54 PM ET, 04/07/2014 |  Permalink  |  Comments ( 0)

Posted at 12:51 PM ET, 04/07/2014

Australia High Court: Government must list petitioner’s sex as ‘non-specific’

“[N]ot everyone is male or female.“

By Eugene Volokh  |  12:51 PM ET, 04/07/2014 |  Permalink  |  Comments ( 0)

Posted at 12:34 PM ET, 04/07/2014

“Awesome Marines save American flag from protesters dishonoring it”

So reads a Daily Caller headline -- but was this really so awesome?

By Eugene Volokh  |  12:34 PM ET, 04/07/2014 |  Permalink  |  Comments ( 0)

Posted at 12:14 PM ET, 04/07/2014

Introducing guest blogger Professor Bradley Smith

Noted election law scholar will be writing about his recent article, ‘Separation of Campaign and State.’

By Eugene Volokh  |  12:14 PM ET, 04/07/2014 |  Permalink  |  Comments ( 0)
Tags:  campaign finance

Posted at 10:18 AM ET, 04/07/2014

What are the constitutional limits on compelled commercial speech?

The U.S. Court of Appeals for the D.C. Circuit, sitting en banc, will consider whether there are meaningful limits on the mandatory disclosure of information about products or services.

By Jonathan H. Adler  |  10:18 AM ET, 04/07/2014 |  Permalink  |  Comments ( 0)

Posted at 10:02 AM ET, 04/07/2014

Who are the ‘all time great’ Supreme Court Justices?

They aren’t the ones Cass Sunstein thinks.

By Will Baude  |  10:02 AM ET, 04/07/2014 |  Permalink  |  Comments ( 0)

Posted at 09:09 AM ET, 04/07/2014

More on the competitive consequences of Dodd-Frank’s regulatory burden

By Todd Zywicki  |  09:09 AM ET, 04/07/2014 |  Permalink  |  Comments ( 0)

Posted at 11:36 PM ET, 04/06/2014

A strange new respect for markets

By Dale Carpenter  |  11:36 PM ET, 04/06/2014 |  Permalink  |  Comments ( 0)

Posted at 12:22 PM ET, 04/06/2014

Should high-frequency trading be regulated?

By Todd Zywicki  |  12:22 PM ET, 04/06/2014 |  Permalink  |  Comments ( 0)

Posted at 02:34 AM ET, 04/06/2014

Do travelers have a right to leave airport security screening areas without the TSA’s permission?

The TSA says that you can’t leave the screening area without the TSA’s permission. Does the Fourth Amendment allow that? My co-blogger David Post says no, but the cases appear to support the TSA’s view.

By Orin Kerr  |  02:34 AM ET, 04/06/2014 |  Permalink  |  Comments ( 0)

Posted at 05:54 PM ET, 04/05/2014

New Forbes.com column on the CFPB

By Todd Zywicki  |  05:54 PM ET, 04/05/2014 |  Permalink  |  Comments ( 0)

Posted at 03:49 PM ET, 04/05/2014

How Many Constitutional Violations Does It Take to Keep Our Planes Safe?

By David Post  |  03:49 PM ET, 04/05/2014 |  Permalink  |  Comments ( 0)

Posted at 03:37 PM ET, 04/05/2014

Al-Aulaqi ‘Bivens’ damages suit in drone strikes dismissed

Judge Collyer dismisses suit by families of Anwar Al-Aulaqi and other US citizens for damages for alleged 4th and 5th amendment violations.

By Kenneth Anderson  |  03:37 PM ET, 04/05/2014 |  Permalink  |  Comments ( 0)

Posted at 01:11 PM ET, 04/05/2014

Obama overtakes George W. Bush on judges confirmed

By Jonathan H. Adler  |  01:11 PM ET, 04/05/2014 |  Permalink  |  Comments ( 0)

Posted at 09:11 AM ET, 04/05/2014

How the ‘Game of Thrones’ TV show helps us understand the books (and a prediction about Season 4)

In many respects, the show ends up serving as an interpretive guide.

By Will Baude  |  09:11 AM ET, 04/05/2014 |  Permalink  |  Comments ( 0)

Posted at 10:57 PM ET, 04/04/2014

Isn’t it bubonic… don’t you think

New skeletons and old theories about the Black Death.

By Sasha Volokh  |  10:57 PM ET, 04/04/2014 |  Permalink  |  Comments ( 0)

Posted at 07:12 PM ET, 04/04/2014

An “ugly, illiberal footnote” to a “happy, hopeful story.”

By Jonathan H. Adler  |  07:12 PM ET, 04/04/2014 |  Permalink  |  Comments ( 0)

Posted at 06:52 PM ET, 04/04/2014

Federal judge to force Ohio to recognize out-of-state same-sex marriages

By Jonathan H. Adler  |  06:52 PM ET, 04/04/2014 |  Permalink  |  Comments ( 0)

Posted at 04:51 PM ET, 04/04/2014

WeRobot2014 conference and the diffusion of robots into society

The legal and policy issues as robots gradually start being used in ordinary human society

By Kenneth Anderson  |  04:51 PM ET, 04/04/2014 |  Permalink  |  Comments ( 0)

Posted at 04:06 PM ET, 04/04/2014

Wall Street Journal gives Western Sahara to Morocco

The Wall Street Journal accidentally forgets Morocco’s occupation of Western Sahara, and no one notices. This is because the Israel-Palestine issue has sucked up all the world’s passion and attention. If you want to “end impunity,” end the focus on Israel.

By Eugene Kontorovich  |  04:06 PM ET, 04/04/2014 |  Permalink  |  Comments ( 0)

Posted at 11:07 AM ET, 04/04/2014

DEA administrator claims that marijuana legalization imperils dogs

DEA Administrator Michele Leonhart claims that marijuana legalization creates health risks for dogs. In reality, the War on Drugs poses a far greater threat to man’s best friends.

By Ilya Somin  |  11:07 AM ET, 04/04/2014 |  Permalink  |  Comments ( 0)

Posted at 09:27 PM ET, 04/03/2014

Hiding in plain sight: evidence that NSA isn’t wrecking internet security

By Stewart Baker  |  09:27 PM ET, 04/03/2014 |  Permalink  |  Comments ( 0)

Posted at 08:47 PM ET, 04/03/2014

Maryland General Assembly kills plan to use eminent domain against “House of Cards”

The Maryland state legislature kills a dubious plan to use eminent domain against “House of Cards,” in order to prevent the hit TV show from moving filming to a different state.

By Ilya Somin  |  08:47 PM ET, 04/03/2014 |  Permalink  |  Comments ( 0)

Posted at 10:44 AM ET, 04/03/2014

Did Judge Calabresi violate the Judicial Code of Conduct?

Sitting federal judges are precluded from public comment on pending cases.

By Jonathan H. Adler  |  10:44 AM ET, 04/03/2014 |  Permalink  |  Comments ( 0)

Posted at 09:13 AM ET, 04/03/2014

The Volokh Conspiracy in Tablet Magazine

By Sasha Volokh  |  09:13 AM ET, 04/03/2014 |  Permalink  |  Comments ( 0)

Posted at 10:56 PM ET, 04/02/2014

Post-argument letters filed in United States v. Auernheimer

The Third Circuit held oral argument in this important computer hacking case on March 19th. Since then, the government has filed two supplemental letters and Auernheimer has filed responses to them. Here are the letters.

By Orin Kerr  |  10:56 PM ET, 04/02/2014 |  Permalink  |  Comments ( 0)

Posted at 10:11 PM ET, 04/02/2014

How the IRS has changed since 1974

The Internal Revenue Service has grown along with the size and complexity of the tax code.

By Jonathan H. Adler  |  10:11 PM ET, 04/02/2014 |  Permalink  |  Comments ( 0)

Posted at 07:15 PM ET, 04/02/2014

Where do the Supreme Court’s campaign finance cases come from?

By Will Baude  |  07:15 PM ET, 04/02/2014 |  Permalink  |  Comments ( 0)

Posted at 05:48 PM ET, 04/02/2014

Breyer’s dangerous dissent in McCutcheon (the campaign finance case)

Justice Breyer has a narrow vision of freedom of speech. He inherited it from early twentieth century Progressives who thought that freedom of speech is neither a natural right nor a restraint on government power, but a way of encouraging a robust marketplace of ideas.

By David Bernstein  |  05:48 PM ET, 04/02/2014 |  Permalink  |  Comments ( 0)

Posted at 12:18 PM ET, 04/02/2014

Chua and Rubenfeld on law school admissions; Baude on zombies and federalism

Real and fake papers posted yesterday, including mine.

By Will Baude  |  12:18 PM ET, 04/02/2014 |  Permalink  |  Comments ( 0)

Posted at 09:30 AM ET, 04/02/2014

Constitutional challenges to the Detroit bankruptcy

My Reason.org blog post on how the federal and Michigan Contract Clauses, and the Michigan Pension Clause, may affect the validity of the Detroit bankruptcy.

By Sasha Volokh  |  09:30 AM ET, 04/02/2014 |  Permalink  |  Comments ( 0)

Posted at 11:22 PM ET, 04/01/2014

Federal court pushes back against gag-order grand jury subpoena issued to Twitter

By Eugene Volokh  |  11:22 PM ET, 04/01/2014 |  Permalink  |  Comments ( 0)

Posted at 12:08 PM ET, 04/01/2014

Language tips from Etymology Ethelwulf

Fascinating true facts about etymology.

By Sasha Volokh  |  12:08 PM ET, 04/01/2014 |  Permalink  |  Comments ( 0)

 

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