From U.S. v. Ibarra-Luna (5th Cir. Dec. 22), n.14: The charging document for the 2003 offense nominally alleges that Ibarra “knowingly delivered by actual transfer,” “by constructive transfer,” and “by offering to sell.” Notwithstanding this language, a conviction would require the government to prove only one of these allegations, not all three, and therefore we […]
Archive | 2010
Mighty Barca!
Sports Fans!: Brian Phillips, over on Slate, has a nice piece on “the special feeling of euphoria, a kind of Olympian giddiness, that soccer fans experience while watching F.C. Barcelona.” Even for those of you who care little for the game, you should make at least a small mental note about what is happening over […]
Payday Lending Booms as Credit Cards Become Less Available
A nominee for least-surprising business story of the year–payday lending booms as new credit card regulations and the credit crunch reduce access to credit cards, especially for higher-risk borrowers. “We believe that we’re starting to see a benefit of a general reduction in consumer credit, particularly … subprime credit cards,” Patrick O’Shaughnessy, Advance America’s chief […]
New York Times Article on Law and the Multiverse
The New York Times recently published an article on the Law and the Multiverse blog, which focuses on legal issues raised by superheroes and supervillains. The article includes some commentary by yours truly. In conjunction with my analysis of the law of Dungeons and Dragons (see here and here), constitutional federalism in Star Trek and […]
OLC’s “Best Practices” In Giving Legal Advice
In May 2005, Steven G. Bradbury, Principal Deputy Assistant Attorney General for the Office of Legal Counsel, issued a memorandum entitled “Best Practices for OLC Opinions.” At the time, the Office was the subject of controversy because of leaked national security opinions that were prepared during the months following 9/11. Bradbury was (and for the […]
Davis v. United States Oral Argument Scheduled for March 21
I know many VC readers have been anxiously waiting to find out what day the oral argument might be in Davis v. United States, the Fourth Amendment case on the scope of the exclusionary rule that I’ll be arguing. (I mean, what else are you doing — getting ready for the holidays? Bah.) The Court […]
Nineteen Judicial Nominees Confirmed in the Last Week
Nineteen judicial nominees have been confirmed in the last week. By my count, those nineteen confirmations include five circuit court confirmations: 1) Mary Murguia for the Ninth Circuit; 2) Scott Matheson Jr. for the Tenth Circuit; 3) Kathleen O’Malley for the Federal Circuit; 4) Raymond Lohier Jr. for the Second Circuit; and 5) Albert Diaz […]
Is the Constitution America’s Civil Religion?
Sandy Levinson offers a historical perspective on the tendency some have to treat the Constitution as a sort of Biblical document. Interesting stuff, via Jack Balkin.
Where Pat Robertson and I Agree
I rarely have anything good to say about Pat Robertson. But the devil-monger deserves his due: I have to commend his call for the legalization of marijuana. Moreover, he cites several good reasons for this stance, including the high cost of prohibition, and the fact that imprisonment of small-time drug dealers and users is “ruining […]
Alaska Supreme Court Rules That State May Certify Lisa Murkowski as Winner of Senatorial Election
Here is the opinion, in Miller v. Treadwell. Among other things, the court rejected challenger Joe Miller’s claims that only those write-in ballots that accurately spelled Lisa Murkowski’s name could be counted in her favor (see pp. 4-8). Prof. Rick Hasen (Election Law) has more.
Finally . . . Another Nominee For OLC Chief?
The Wall Street Journal reports that in January, President Obama will nominate DC’s Virginia Seitz to be Assistant Attorney General for the Office of Legal Counsel. OLC hasn’t had a confirmed head since July 2004. NPR reported back on August 4 that Seitz, who is a respected appellate litigator at Sidley Austin, was the front-runner […]
Akaka Bill Won’t Be Enacted in Lame-Duck Session
Ilya Shapiro of the Cato Institute (no relation, though sometimes confused with me) reports that the Akaka Bill is not going to be pushed through Congress during the present lame-duck session. I criticized an earlier version of the bill on federalism grounds here. As my fellow Ilya points out, this probably won’t be the last […]
Use of Night-Vision Goggles Not A Fourth Amendment Search
So holds a state court in People v. Lieng, 2010 Cal. App. LEXIS 2106 (1st Dist. December 14, 2010), distinguishing the infrared thermal imaging device used in Kyllo v. United States: Kyllo is inapplicable to this case. First, night goggles are commonly used by the military, police and border patrol, and they are available to […]
The Definition of a “Courageous” Judicial Decision
A judicial decision that stretches the law but nicely matches the observer’s policy preferences.
A Possible Endorsement Test Case for the U.S. Supreme Court?
Yesterday, the Tenth Circuit voted 5-4 not to rehear the Utah roadside cross memorial case, American Atheists, Inc. v. Duncan. The result, and the forceful dissents from denial of rehearing en banc, make it likely that the Supreme Court will agree to hear the case, and perhaps overturn the Establishment Clause endorsement test. I blogged […]