In today’s NYT, Brooklyn Law’s Jason Mazzone explains why Judge Hudson’s analysis in Virginia v. Sebelius may prove “irresistible” to the Supreme Court. When the health care law makes it to the Supreme Court, the justices will ask, with varying degrees of concern, this age-old question: How do we define the limits, because limits there must […]
Archive | 2010
Happy Saturnalia!
Today is the first day of Saturnalia, the ancient Roman holiday that I have traditionally commemorated here at the Volokh Conspiracy (see here, here, and here). The Encyclopedia Romana has a helpful description of Saturnalia: During the holiday, restrictions were relaxed and the social order inverted. Gambling was allowed in public. Slaves were permitted to […]
Trickle Up Economics, An Xtranormal Cartoon
Here is an Xtranormal cartoon about trickle-up and trickle-down economics. Glenn Reynolds is mentioned about a half minute into it. “Trickle Up Economics” UPDATE: Here is the San Francisco Fed’s study, suggesting about a 0.4% increase in the unemployment rate because of extending benefits for up to a total of 99 weeks. It also documents […]
Frank Dikötter on Mao’s Mass Murders
By Ilya Somin on December 17, 2010 12:48 am in Communism, Genocide, International Human Rights Law, International Law
Back in September, I wrote a post about historian Frank Dikötter’s excellent new book on Mao Zedong’s “Great Leap Forward” terror famine of the early 1960s. Dikotter recently published a New York Times op ed summarizing his thesis: The worst catastrophe in China’s history, and one of the worst anywhere, was the Great Famine of […]
Judges Merritt and Martin Tell the Justices They Were Wrong
The Supreme Court recently handed down a unanimous 8-0 decision by Justice Ginsburg in Abbott v. United States on a criminal sentencing issue. On remand following a GVR, the Sixth Circuit applied Abbott but two judges, Boyce Martin and Gilbert Merritt, just had to let the Justices how wrong they were. Their joint concurring opinion […]
Historical Word Frequency and Google Books
Google Books has a vastly cool new feature, the Books Ngram Viewer, which lets you track the relative frequency words in various Google Books databases. So if you want to track the usage in American English of camaraderie and comradery (an inquiry that arose in this comment thread), just run this query and you’ll see. […]
Merits Brief for Petitioner in Davis v. United States — The Good-Faith Exception for New Fourth Amendment Decisions
Today I filed the merits brief for the Petitioner in Davis v. United States, 09-11328, a Fourth Amendment case the Supreme Court recently agreed to hear on the scope of the exclusionary rule for searches made in reliance on subsequently-overturned precedent. The brief is here: Brief for Petitioner in Davis v. United States, 09-11328. I […]
Constitutional Doctrine and the Constitutionality of Health Care Reform
I’ve been following the debate both at the VC and elsewhere, and find myself somewhat amused at the law professor conceit that the constitutionality of the individual mandate will be determined based on whether the “best” interpretation of USSC precedent supports it or not. Here’s my take: What the opponents of the individual mandate had […]
Cato Unbound Forum on Property Rights Continues
The Cato Unbound forum on property rights and the state, which I blogged about on Monday, is continuing. Lead author Daniel Klein has now replied to the response essays submitted by commentators David Friedman, Matthias Matthijs, and myself. He responds to Matthijs and Friedman here, here, and here. Klein’s reply to me takes issue with […]
Thoughts on Justice Scalia’s Wonderful Concurrence in Gonzales v. Raich
Many thanks to Randy Barnett for his thoughtful views below on the relationship between the Necessary and Proper Clause and existing Commerce Clause doctrine. Randy’s argument is more or less the one Justice Scalia makes in his concurring opinion in Gonzales v. Raich: That the “substantial effects” test in Commerce Clause doctrine should be read […]
The Doctrinal Limits of “Necessary” in the Necessary & Proper Clause
A couple days ago, Orin raised an interesting point about Justice Judge Hudson’s opinion in the challenge to the Affordable Care Act to which Kurt Lash and Jonathan have already responded. But I thought I would explain the source of the confusion, which lies not in Judge Hudson’s opinion, but in Chief Justice Rehnquist’s opinion […]
Supreme Court Refuses to Hear Columbia University Takings Case
By Ilya Somin on December 15, 2010 1:02 am in Blight, Eminent Domain, Kelo, Post-Kelo Reform, Property Rights
Sadly, the Supreme Court has refused to hear the Columbia University blight takings case. This New York state supreme court decision was a particularly egregious instance of the abuse of “blight” condemnations to take property that was not blighted in any meaningful sense and transfer it to a powerful private interest group. I wrote an […]
Understatement of the Day
“Occasionally, the justices slip their personal views into their judicial opinions.” — Dahlia Lithwick and Sonja West
Supreme Court Law Clerks Recall Brown v. Board
Part 1 and Part 2, from a panel that took place in 2004, via C-SPAN’s archives. For a transcript of a similar panel, see here.
The Origins of the “Search Incident to Arrest” Exception
The Fourth Amendment permits the government to search a person incident to his arrest. In a thread below, commenter “zuch” complains about this new-fangled assault on Fourth Amendment rights: One of the fascinating Fourth Amendment questions is how the “search incident to arrest” exception gets allowed to begin with. .. . . We need to […]