It’s pretty remarkable: If a contract provides that it is to be decided under, say, English law (or Mexican law), a judge wouldn’t be able to apply that law (see subsection C) — on penalty of impeachment. If a court is trying to decide whether an immigrant was another immigrant’s adoptive parent, a question that […]
Archive | 2010
Podcast extravaganza
Five new podcasts from the Independence Institute’s iVoices.org: 1. The University of Montana’s Rob Natelson on the Executive Vesting Clause. Natelson argues that the first clause of Article II grants the President no additional powers–contrary to the theory that the clause gives the President almost all the powers formerly possessed by English Kings. 36 minutes. 2. The […]
New York’s Highest Court Refuses to Hear Second Amendment Issue, One Judge Dissents
From In the Matter of Kachalsky v. Cacace (decided yesterday): Appeal dismissed without costs, by the Court sua sponte, upon the ground that no substantial constitutional question is directly involved. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur. Judge Smith dissents and votes to retain jurisdiction in an opinion. SMITH, J. […]
Secession or Divestment? Or Both?
Further to Orin’s secession post below. For reasons I won’t try to go into now, I don’t think there is a right to secede as a matter of US Constitutional law; I think Lincoln’s arguments in the First Inaugural are persuasive and, moreover, endorsed in blood by the Civil War, and even if one can […]
Hayek Sales Booming:
Bruce Caldwell observes that sales of The Road to Serfdom boomed in November 2008 and haven’t slowed down since. And he offers a few hypotheses on why that is. Much has been written about whether Hayek is right or wrong as a matter of history or historical inevitability. To my mind that’s largely a side […]
Why is it Cool to Claim You’ve Been Called an Anti-Semite?
Three years ago, I wrote: on the one hand, we have friends of Israel who are too quick to label others anti-Semitic, though I believe that this phenomenon is declining, as it has received increasing scrutiny and criticism. On the other hand, we have critics of Israel who try to portray anyone who defends Israel […]
Scalia on the Right to Secede
Eugene says the Civil War didn’t settle whether there is a right to secede. Ilya agrees. But it looks like Justice Scalia might disagree. (Incidentally, how cool is it that Scalia actually answered a screenwriter’s letter with a substantive response?) Thanks to Ben Smith for the pointer.
John Bellinger on International Law in Bush Second Term and Obama Administration
John Bellinger, former Legal Adviser to the State Department, has an interesting op ed in the New York Times (February 14, 2010), comparing ways in which the Obama administration’s international law positions largely continue the second Bush term positions. As my Opinio Juris colleague Julian Ku observes, “The shape of U.S. foreign policy, and its policy […]
Relist Watch #2: Harrington v. Richter, the Ninth Circuit, and Ineffective Assistance
By John Elwood on February 16, 2010 4:04 pm in Criminal Procedure, Ninth Circuit Smackdown (Again), Supreme Court
It’s still too early to have much of an idea what the Supreme Court might be doing in Harrington v. Richter, 09-587—but that won’t stop me from blathering about it anyway. The Court has relisted only twice, at the January 15 and 22 conferences, and it has not yet called for the record. But Richter […]
Instruction and Recall:
Eugene notes the interesting question of whether a state could pass an advisory recall of a Senator. As I discussed in one of my papers on the 17th Amendment (see this article, pages 171-173 especially) for the Framers the issues of “instruction” and “recall” were tied up together. Under the Articles of Confederation, state legislatures […]
Useful Feedback
A commenter, responding to my Another Reason to Keep Your Writing Simple post, wrote: Eugene, that’s incontestably good advice if you’re need to persuade, but it does “dumb down” a profession that is supposed to be educated. A law prof once marked me down for using “complicated words” — turned out she didn’t know what […]
Euro-Sense and Sensibility in the Greek Debt Crisis
Not everyone is quite so fascinated as I with CDS spreads on Greek sovereign debt. However, the issues raised by the Greek debt difficulties and the urgent discussions in the Eurozone over a possible bailout, attendant moral hazard, and the like are far more than merely fiscal or monetary questions. Rather, this crisis is one […]
Another Reason to Keep Your Writing Simple
Here’s a new subsection I’m adding to my Academic Legal Writing book, right after I discuss various tips for avoiding usage errors: * * * Simple words will rarely steer you wrong: You know what they mean, and you generally use them only because you think they’re the right tools for the job. But fancy […]
Write to Explain, Not to Impress
Yesterday, I was editing the Introduction to my “Rehabilitating Lochner” book, and I needed a word to fill in the following sentence: “Lochner itself is now considered the ___ of the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.” After some thought, I came up with the word “apotheosis.” […]
Taliban’s Top Military Commander Captured
This sounds like big news: The Taliban’s top military commander was captured several days ago in Karachi, Pakistan, in a secret joint operation by Pakistani and American intelligence forces, according to American government officials. . . . Mullah Baradar has been in Pakistani custody for several days, with American and Pakistani intelligence officials both taking […]