In a post below, Orin notes that many federal statutes define the meaning of the term “property,” even though property is generally defined under state law. If this is so, Orin understandably wonders, how could there be a problem with Congress defining marriage for purposes of federal law in DOMA? The short answer to Orin […]
Archive | March, 2013
Congratulations to Orin on Having His Blog Post Cited in a First Circuit Opinion
Court citations to blog posts are still rare enough — unless you are Sentencing Law & Policy — that I thought it was worth mentioning. From United States v. Sparks (1st Cir. Mar. 26, 2013): The government does not dispute that Sparks, who did not own the Chrysler but was its usual driver, has standing […]
Why Striking Down DOMA on Federalism Grounds Would not Lead to “Litigation Chaos”
By Ilya Somin on March 28, 2013 5:48 pm in DOMA, Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
In a recent op ed, Harvard Law Professor Noah Feldman argues that striking down the Defense of Marriage Act on federalism grounds – as advocated in an amicus brief I signed along with several other federalism scholars, including co-bloggers Jonathan Adler, Randy Barnett, and Dale Carpenter – would lead to “litigation chaos”: [T]he problem with […]
Orthodox Easter: What’s up with that?
Easter is this Sunday, March 31. But Orthodox Easter, celebrated by most branches of the Eastern Orthodox Church (including the Russian Orthodox Church) and some Oriental Orthodox churches, is May 5 this year, a full five weeks after Easter as celebrated by Western Christian churches. (As a footnote, you may listen to Rimsky-Korsakov’s Russian Easter […]
A Question for Supporters of Increasing Maximum Sentences Under the Computer Fraud and Abuse Act
As I recently noted, Congress is considering legislation to increase maximum punishments under the Computer Fraud and Abuse Act. Here’s my question for supporters of this legislation: Can you identify any cases under the current version of the CFAA in which judges sentenced defendants to the current maximum sentences? In other words, have there been […]
Can the Federal Government Define “Property” For Purposes of Federal Law?
In his most recent post, my co-blogger Randy Barnett writes that “defining marriage — like defining property — is a traditional function of the states.” He continues: [T]hat is crazy. It would be like saying you “own” your home under the property law of California, but you don’t “own” your home “for purposes of federal […]
Prediction Markets and the Danger of Manipulation
The most frequent critique of my proposal to legalize prediction markets stemmed from fear of manipulation or gaming. A specific concern is that manipulators will choose to skew the markets at the time of some democratic event, such as a vote in Congress. For instance, those who stand to gain from a President’s stimulus package […]
The Chief Justice’s Excellent Hypothetical: Under Our System of Federalism, Can You Be Both Married and Unmarried at the Same Time?
In oral argument yesterday, the Chief Justice asked Solicitor General Verrilli what Ed Whelan on Bench Memos thought was a killer question: CHIEF JUSTICE ROBERTS: Suppose your — you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say […]
Line-Standing Services at the Supreme Court
The New York Times Caucus blog had a recent article that touched on the lawfulness and propriety of hiring line-standing services for Supreme Court arguments: By hiring companies like LineStanding.com and Washington Express, people who want to hear the court arguments can pay for a proxy to hold their place in line hours or days […]
Right and Left Continue to Change Where they Stand on Standing
In this week’s oral arguments in the two gay marriage cases before the Supreme Court, right and left-wing litigants continued to take unaccustomed positions on standing: the technical legal doctrine that determines whether would-parties to a lawsuit have enough of an interest at stake to be allowed to participate in the case. Historically, conservatives have […]
Reading the Tea Leaves in the Proposition 8 Same-Sex Marriage Oral Argument
By Ilya Somin on March 27, 2013 11:39 pm in Gay Marriage, Gay Rights, Same-Sex Marriage, Sex Discrimination
Most commentators, including the VC’s own Dale Carpenter, have concluded after the Proposition 8 oral argument that the Supreme Court is unlikely to strike down the California law banning gay marriage. I predicted such an outcome last year, and in this recent post, pointing out that the Supreme Court is unlikely to announce a nationwide […]
Congratulations to SCOTUSblog on Winning a Peabody Award
I’m on a family vacation this week, but I have a moment to post, so I wanted to congratulate SCOTUSblog on winning a Peabody Award. The Peabodies, which are now in their 72th year, were originally an award for broadcasting, but have expanded to cover “electronic media” more broadly. SCOTUSblog seems to be the first […]
Federalism Concerns Dominate the Attack on “Skim Milk” Marriage
At the Supreme Court today, the Defense of Marriage Act took a beating from Justices concerned about federalism. By my count, five Justices expressed deep constitutional concerns with DOMA, and four of these (Kennedy, Ginsburg, Sotomayor, and Breyer) expressly cited its intrusion into the traditional state domain of marriage law as a reason. Another, Justice […]
Not there yet
Here’s what I had hoped to be able to post after the oral argument in the Prop 8 case yesterday, but was unable to because I couldn’t get into the site. Yesterday it seemed urgent; today not so much. But here goes: Ten years ago today, I attended the Supreme Court oral argument in Lawrence […]
Oral Argument Audio in United States v. Windsor, the DOMA Case
The audio of the argument, lasting almost 2 hours, is here. (If you want to listen to the merits discussion, start at the 54 minute mark.) Lyle Denniston’s take on the arguments at SCOTUSblog is here.