“The Influence of the State and Federal Governments Compared,” from the New York Packet, by James Madison. My essay thereon is here, at Constituting America’s series on The Federalist. Bottom line: even taking into account the many changes over the last two and quarter centuries, Madison was generally right.
Archive | 2010
Conservatism, Libertarianism, Civil Rights, and “Circumstances”
In a National Review post discussing the civil rights laws of the 1960s, Roger Clegg writes that “Conservatism is superior to libertarianism because it is less ideological and more readily acknowledges that circumstances matter.” Whatever the general validity of this claim, Clegg picked a very poor example to illustrate it. As co-blogger David Bernstein has […]
New ABA Accreditation Standards
Via TaxProf, I learn that the ABA Section of Legal Education & Admission to the Bar seeks comments on proposed changes to the law school accreditation standards. I blogged about one of these proposed standards in December, the one that requires law school graduates to have a “knowledge and understanding of … the legal profession’s […]
Written testimony on Kagan nomination
Available here. Co-authored with Stephen Halbrook. The oral testimony will be late July 1 or early July 2.
Possible Data Fraud in Research 2000 Polls Commissioned by the Daily Kos
Markos Moulitsos of the Daily Kos website has recently revealed that there was probably large-scale data fraud in a series of polls that the Daily Kos commissioned from the Research 2000 polling firm: I have just published a report by three statistics wizards showing, quite convincingly, that the weekly Research 2000 State of the Nation […]
Kagan, ACOG and the Partial-Birth Abortion Ban
By Jonathan H. Adler on June 29, 2010 11:26 pm in Judicial Nominations, Kagan Nomination, Politicizing Science
Was “language purporting to be the judgment of an independent body of medical experts devoted to the care and treatment of pregnant women and their children” actually “nothing more than the political scrawling” of then Clinton White House staffer Elena Kagan? That’s the charge made by former deputy Assistant Attorney General Shannen Coffin in this […]
The Sotomayor switcheroo, and the Kagan nomination
Justice Sonia Sotomayor, by joining the Breyer dissent in McDonald which called for Heller to be over-ruled, contradicted what she had told the Senate last summer. I supply the details in an op-ed for the Washington Times. On Thursday (or perhaps, early on Friday), I will be testifying on the Kagan nomination. My written testimony will […]
Chinese Food On Christmas
From today’s hearing: “Where were you on Christmas Day?” Graham asked. “Like all Jews,” Kagan responded, “I was probably at a Chinese restaurant.” “I could almost see this one coming,” Leahy quipped. Then Sen. Chuck Schumer (D-N.Y.) jumped in: “Those are the only restaurants that are open!” I, too, was at a Chinese restaurant last […]
“The ‘Silent Six’ States Worth Watching for Post-McDonald Second Amendment Litigation”
Prof. Doug Berman (Sentencing Law & Policy) has an interesting post on this, focusing on the six states that don’t have state constitutional right to keep and bear arms provisions. I would add to that list Massachusetts, which has a provision that has been interpreted as not securing an individual right, and Hawaii, which has […]
Superfund Is Constitutional
This morning the U.S. Court of Appeals for the D.C. Circuit rejected General Electric’s constitutional challenge to the Environmental Protection Agency’s use of administrative orders under the Comprehensive Emergency Response Cleanup and Liability Act (aka “Superfund”). Here is how the opinion begins: In this case, appellant challenges the constitutionality of a statutory scheme that authorizes […]
Non-Unanimous Criminal Juries
If I were a criminal defense lawyer in Oregon or Louisiana, I’d use McDonald as a reason to challenge those states’ practice of allowing non-unanimous criminal juries. In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this […]
Discussion of Shelley v. Kraemer
Over at Cato Unbound, Jason Kuznicki, prompted by V.C. commenters, takes up Shelley v. Kraemer, the 1948 decision in which the Supreme Court held that it was unconstitutional for state courts to enforce racially restrictive covenants. I respond, concluding that Shelley was probably correct, but that the Court could have articulated a much clearer and […]
Kagan Endorses Estrada
It may not be worth much now, but Elena Kagan just told the Senate Judiciary Committee that Miguel Estrada is “qualified to sit as an appellate judge” and “qualified to sit as a Supreme Court justice” (and then she told Senator Graham she would put this in writing).
Bad Timing
I was just talking to the V.C.’s D.C. lobbyist about our plan to place an earmark in the next appropriations bill to move the blog to West Virginia. The only downside was that we’d have had to rename it the “Robert C. Byrd Conspiracy.”
One More 5-4 Decision
This morning, with its end-of-term orders, the Supreme Court issued a 5-4 per curiam opinion in Sears v. Upton, a capital habeas case in which five justices voted to grant the petition of ceriorari, summarily vacate the decision below, and remand for further proceedings. According to the brief per curiam opinion, after determining that Sears […]