Archive | September, 2007

The Supreme Court has granted cert in Baze v. Rees, a case considering how the Eighth Amendment regulates methods of execution — and specifically, whether it allows the currently prevailing methods of lethal injection. This case really calls out for amicus participation to give the Justices context: In particular, it really needs briefs by leading […]

Michael McCann’s latest column for SI.com, on the Isiah Thomas sexual harassment trial is available here. He notes one of Isiah’s stranger arguments in the case: 3) Under oath, Thomas opined that it would be worse for a “white man [to call] a black woman a bitch” than for an African-American male to do the […]

Jeffrey Toobin writes: Hi Eugene, I’ve been reading your posts on The Nine with interest. I am serious about correcting errors in my books, and I intend to fix anything I can. (Differences of opinion and interpretation are another story, of course.) In any event, I’d continue to welcome your thoughts or those of your […]

In my post on this last week, I forgot to include one item that strikes me as especially telling. It’s from p. 102: Indeed, it is difficult to point to a single truly significant majority opinion Thomas had written. Many of his assignments were unanimous opinions on minor subjects — “dogs,” in the Court’s parlance. […]

At least for now, this will be my last post on forced labor. I think I have said all I reasonably can say about my arguments on this subject in the blog post format. However, I do want to address one more counterargument: the claim that my position that forced labor is unconstitutional might lead […]

So yesterday Eugene asked me why the word inartful (meaning ‘unskillfully’) wasn’t in any dictionary that he’d consulted, including the OED and all the dictionaries you can search through onelook.com. He pointed out that this word has been used 600 times in 2007 alone, and that he’d found a cite going back to 1751, which […]

Today the Supreme Court announced the results of the “long conference,” the Justices’ September conference in which they vote on the cert petitions that piled up over the summer. The Court granted 17 cases altogether, which you can find over at ScotusBlog. I was particularly interested to see the Court grant cert in Virginia v. […]

Critics of my argument that the Thirteenth Amendment is a comprehensive ban on forced labor can legitimately ask about the implications of my ideas for mandatory jury service. After all, mandatory jury service is pretty obviously a form of forced labor, yet almost everyone seems to believe that it doesn’t violate the Thirteenth Amendment’s ban […]

In this article in the Space Review, political scientist John Hickman argues that space exploration has been seriously impeded by the 1967 Outer Space Treaty, which prevents the establishment of national sovereignty and private property rights in space. As a result, he claims, we have created a tragedy of the anti-commons which undercuts the incentive […]

Leslie Gelb, in the NY Times, says the following about The Israel Lobby: But as my mother often said, “They [M & W] asked for trouble” — by the way they make their arguments, by their puzzlingly shoddy scholarship, by what they emphasize and de-emphasize, by what they leave out and by writing on this […]

Despite levee failures and bridge collapses, Congress continues to divert public works spending to pork barrel projects. The latest example is the $23 billion water resources bill passed overwhelmingly by the Senate yesterday. Senate leaders on both sides of the aisle praise the measure. Senator Feingold was one of the few to call a pig […]

In my earlier posts discussing the constitutionality of the draft and other forced labor programs under the Thirteenth Amendment, I made a mistake in failing to consider the 1916 case of Butler v. Perry. I thank Georgetown law professor Marty Lederman for drawing my attention to this important and unduly neglected decision. Butler provided a […]

According to the Columbia Spectator, Barnard religion professor Alan Segal was asked by the university to provide a list of archeology experts to comment on the controversial tenure case of Nadia Abu El-Haj’s tenure–archeologists who “preferably” were not Jewish. Segal quite properly refused, noting that religion “has nothing to do with what you say as […]

It is sometimes argued that the Thirteenth Amendment couldn’t possibly have banned mandatory national service because the Union had had a draft during the Civil War (which ended a few months before the Amendment was enacted). There are four problems with this common argument: First, it is the text of the Constitution which is the […]

I just finished reading Jeffrey Toobin’s new book about the Supreme Court. Like Ed Whelan, and to some extent, Eugene, I found myself rather frustrated by it. In this post I wanted to explain why.   First some background. Books purporting to offer an “inside” picture of the Supreme Court generally mix and match three different […]