Last week, GOP Senator Lindsey Graham (R-SC) declared “Cap-and-trade is dead.” There is no way the Senate will pass the Waxman-Markey climate change bill that passed the House. But Sen. Graham is working with Senators John Kerry (D-MA) and Joseph Lieberman (I-CT) on an alternative proposal to control greenhouse gas emissions and promote the development […]
Archive | March, 2010
Married Women’s Property Rights and the Privileges or Immunities Clause
In the McDonald oral argument, Justice Ruth Bader Ginsburg implied that an originalist approach to the Privileges or Immunities Clause might justify protecting property rights for men, but not for married women. She claimed that “a large portion of the population at that time [1868] didn’t have those rights” and asked McDonald’s counsel Alan Gura […]
Liz Cheney and “The Al Qaeda Seven”
Liz Cheney, the daughter of former Vice-President Dick Cheney, was recently invited to imagine how former Senator Joseph McCarthy would have used 30-second TV spots if here were alive today. Cheney gamely agreed to participate, and she submitted the following video: That seems quite accurate to me — although I would guess McCarthy would have […]
The Incorporation Doctrine
Since the incorporation doctrine is in the news today, I thought I’d share a relevant excerpt from Rehabilitating Lochner (forthcoming, U. Chicago Press, Spring 2011): The Supreme Court … gradually applied most, but not all, of the Bill of Rights to the states, on a case-by-case basis. To blunt criticism that they were emulating their […]
A Few Thoughts on the McDonald Argument
Based on a quick read of the oral argument transcript, a few things stood out: 1. The Privileges or Immunities arguments never really got off the ground. None of the Justices seemed in favor of that approach, at least based on the questions. (Justice Thomas, as is his custom, asked no questions.) Only about […]
Transcript of the McDonald Argument
The transcript is available here.
The Good Faith Exception and Changing Law: The Benefit of the Exclusionary Rule on Direct Appeal
This is my second post in a planned series on why the good faith exception to the exclusionary rule does not apply when a police officer conducts a search that is lawful when it occurs that is later ruled unlawful before the conviction is final. This issue is being litigated all over the country right […]
First News Report on the McDonald Argument
It’s brief, but here’s what Lyle Denniston has posted at SCOTUSblog: The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend […]
Defining Aggression for the International Criminal Court
Over at Opinio Juris, an interesting exchange on the question of defining the crime of aggression as part of the International Criminal Court statute. Professor Michael Glennon discusses his Yale Journal of International Law article, The Blank-Prose Crime of Aggression, and Carrie McDougall, Larry Johnson, and Anthony Arend respond. I broadly agree with Professor Glennon, […]
My Visit to Tuvalu
Reason.tv’s interview with yours truly is now up; I chat with Ted Balaker about free speech, guns, nannies, and sex toys.
The Line for Oral Arguments in McDonald v. City of Chicago
Here it was at 11pm: I thought of trying to get one of the first-come, first-served seats provided to members of the Supreme Court bar, but I figure it’s a lot of lost sleep for 20 minutes of sparks given that we’ll get the transcript anyway. (For some reason, the Justices refused to release the […]
A New Rebel Mascot for a New South – Admiral Ackbar May Replace Colonel Reb at Ole Miss
Students at the University of Mississippi have started a campaign to replace the school’s longtime mascot Colonel Reb with Admiral Ackbar, leader of the Rebel Fleet in Star Wars. Colonel Reb was retired in 2003 because “coaches and athletic boosters concluded that C. Reb and other symbols of the Confederacy hurt the school’s recruiting prospects.” […]
The Good Faith Exception and Changing Law: The Context of the Good Faith Exception
This is my first post in a planned series of posts on why the good faith exception to the exclusionary rule does not apply when a police officer conducts a search that is lawful when it occurs that is later ruled unlawful before the conviction is final. This issue is being litigated all over the […]
Thoughts on the Reverse Yoo Hypothetical
The comments on the Reverse Yoo hypothetical are fascinating, and I wanted to try to draw some tentative conclusions from them. The most interesting result to me is that for a lot of Yoo’s critics, whether Yoo followed the law or not is mostly beside the point. The primary objection is that Yoo’s conduct permitted […]
Appointed Attorneys Are For Indigent Defendants
That’s the lesson of United States v. Wilson, handed down today by the Sixth Circuit in an opinion by Judge Sutton. A public defender was appointed in the defendant’s case based on his perceived inability to hire his own lawyer. But near the end of the trial, the district court learned that the defendant was […]