We live in a golden age for empiricism. Pythagoras said the world is made up of numbers and that is the slogan of empiricists. But until this time of big data and exponential computer power, empiricism had an Achilles heel, because it lacked substantial processing capacity. Fortunately, the relentless increase in computational power and the […]
Archive | March, 2013
What is the State of the Jones Trespass Test After Florida v. Jardines?
In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court announced that the Katz reasonable-expectation-of-privacy test is not the only test for what is a Fourth Amendment search. According to Jones, Katz supplemented but did not replace the trespass test that the Court indicated had existed before Jones. According to Jones, “[t]respass . […]
The Timing of the Same-Sex Marriage Case and Bickel’s Passive Virtues
When Ted Olson and David Boies filed their challenge to Prop 8 in 2009, there was a lot of debate about the timing of the case. Olson & Boies expressed their strong confidence that there were five votes on the Supreme Court for a national constitutional right to same-sex marriage. According to Olson & Boies, […]
The “Pretext” Argument Against Section Three of the Defense of Marriage Act
In his most recent post, Randy responds to my critique (here and here) of the DOMA “federalism brief.” He begins by conceding: “In most every conceivable case, there is no objection to any particular definition adopted by Congress for purposes of federal law. Most definitions can easily be shown to be both necessary and proper […]
How to Figure Out When Laws Banning Same-Sex Marriage Became Unconstitutional and Why the Precise Date May Not Matter
By Ilya Somin on March 26, 2013 11:44 pm in Constitutional Theory, Gay Marriage, Gay Rights, Originalism, Sex Discrimination
At today’s Proposition 8 oral argument, Justice Scalia asked Ted Olson, the lawyer for the plaintiffs, “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” The intuition behind Scalia’s question is that if a law would not have been unconstitutional on the day the Fourteenth […]
Justice Kennedy on Proposition 8 and Sex Discrimination
By Ilya Somin on March 26, 2013 9:52 pm in Gay Marriage, Gay Rights, Same-Sex Marriage, Sex Discrimination
In today’s Proposition 8 oral argument on the constitutionality of California’s law banning same-sex marriage, Justice Anthony Kennedy – a key swing voter on the Court – asked whether such a law qualifies as sex discrimination, which he called a ” a difficult question that I’ve been trying to wrestle with”: JUSTICE KENNEDY: Do you […]
Cybersecurity Meets the WTO
The continuing resolution that I wrote about yesterday could have a big impact on the federal government’s procurement of IT equipment from Chinese companies. As described in an earlier post, the resolution includes a provision that bars purchases of an “information technology system” that was “produced, manufactured or assembled” by entities “owned, directed, or subsidized by the People’s […]
Technical Difficulties Overcome
The VC posting page has been down for much of today due to technical problems. These problems have now been solved and – hopefully – will not recur. We apologize for any inconvenience. We will have a good deal more to say about today’s Proposition 8 oral argument shortly. Stay tuned!
When Did Laws Prohibiting Same-Sex Marriage Become Unconstitutional?
At the oral argument today in Hollingsworth v. Perry, Justice Scalia repeatedly questioned Ted Olson on when same-sex marriage became unconstitutional. From the transcript: JUSTICE SCALIA: I’m curious, when - when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some […]
Oral Argument Audio Released in Hollingsworth v. Perry
The audio is here.
Goldstein on the Oral Argument in the Prop 8 Case
Over at SCOTUSblog, Tom Goldstein writes: The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional. Several Justices seriously doubt whether the […]
Upcoming Talk on “Progressive Federalism” at Harvard Law School
On Tuesday, April 2, I will be speaking on federalism and its implications for various racial, ethnic, religious, and political minorities at Harvard Law School. I will be appearing with Yale Law School Professor Heather Gerken, a leading federalism scholar who has argued that her fellow progressives should take a more favorable view of federalism […]
Supreme Court Hands Down Florida v. Jardines
This morning the Supreme Court handed down Florida v. Jardines, the case on use of a drug-sniffing dog at a suspect’s front porch to sniff around for narcotics inside. Held, in a 5-4 decision by Justice Scalia: Entry onto the porch was an unconstitutional search because it was a physical intrusion into the curtilage around […]
Legalize Prediction Markets Now!
I do not want to shock readers of the blog, but Washington is a spin city where many politicians and pundits say a policy will deliver a set of results without really believing it. It would be very beneficial to counter this band of dissemblers with an army of people focused on the accuracy of […]
Upcoming George Mason University Panel on the Tea Party and Voter Rationality
On Monday April 1, I will be speaking at a George Mason University School of Law panel on the Tea Party movement and voter rationality. Lots of data show that voters are often ignorant about politics and highly biased in their evaluation of the information they do know. The panel will focus on the extent […]