As noted below, Justice Scalia was the lone dissenter in Decker v. Northwest Environmental Defense Center. The reason was not that Justice Scalia has decided to become the Justice Douglas of the 21st century. Rather, it was due to his relatively newfound opposition to Auer deference (aka Seminole Rock deference), under which courts are to defer […]
Archive | March, 2013
Justice Scalia, Environmental Champion
Today the Supreme Court decided Decker v. Northwest Environmental Defense Center. By a vote of 7-1 (with Justice Breyer not participating) the Court held that the Clean Water Act and its implementing regulations do not require timber companies to obtain NPDES permits for stormwater runoff from logging roads. The sole dissenter was Justice Scalia, who would […]
Fifth Circuit Strikes Down Casket Sales Limit on Rational Basis Grounds
The decision is St. Joseph Abbey v. Castille (5th Cir. Mar. 20, 2013), and it strikes down “rules issued by the Louisiana Board of Funeral Directors granting funeral homes an exclusive right to sell caskets.” The court concludes that “mere economic protection of a particular industry” is not “a legitimate governmental purpose,” and that the […]
Passover Rhapsody
I’m talking to my daughter’s preschool class about Passover tomorrow, and in preparation I’ve been looking for appropriate Youtube videos to show them. This one didn’t make the cut for the particular occasion, but it’s my favorite Passover Youtube video (and one of a series of very clever Passover videos from Aish.com). A must if […]
Economics, Egalitarianism and Immigration
Economist Tyler Cowen has an interesting New York Times column on the egalitarianism underpinning economic analysis and its implications for immigration policy: Economic analysis is itself value-free, but in practice it encourages a cosmopolitan interest in natural equality…. The crucial implication is this: If you treat all individuals as fundamentally the same in your theoretical […]
Ammori on local taxicab competition, antitrust, and other solutions
My friend Marvin Ammori has a piece in Slate about Uber, Lyft, and SideCar, three new companies trying to provide competition to the taxicab market. Here’s what he has to say about the antitrust solution to taxicab monopolies: It might seem odd to call for a federal agency like the FTC to take action in […]
Walter Olson on the Protection of Lawful Commerce in Arms Act
Good post at PowerLine on the subject. I generally quite agree with it, except that the title (“six myths about the law that bans gun lawsuits” is imprecise — the law bans many lawsuits against gun manufacturers and dealers, but by no means all.
Judicial Nominations and Competing Constitutional “Mainstreams”
By Ilya Somin on March 19, 2013 8:15 pm in Conservatism, Constitutional Law, Constitutional Theory, Judicial Nominations
In a recent column, Harvard Law Professor Cass Sunstein argues that Republican senators who have filibustered some of Barack Obama’s judicial nominees are more to blame than Democrats who previously filibustered GOP nominees because the Democrats only tried to block nominees who were “out of the mainstream,” while the GOP targeted any nominees whom they […]
Tomatoes: Fruits, Vegetables, or Both?
From today’s Kirstaeng v. John Wiley & Sons, Inc.; pay particular attention to the last sentence: We cannot, however, give the Quality King statement the legal weight for which Wiley argues. The language “lawfully made under this title” was not at issue in Quality King; the point before us now was not then fully argued; […]
House Judiciary Committee Testimony on the Electronic Communications Privacy Act
Today’s hearing on the Electronic Communications Privacy Act is available here via C-SPAN. The hearing was pretty fascinating for electronic privacy nerds: Everyone seemed to agree that the laws needed revising, and even DOJ was on board with the basic idea of expanding privacy protections to have a general warrant requirement for access to stored […]
Upcoming Talk on Democracy and Political Ignorance at Campbell University
This Thursday at 6 PM, I will be speaking about my forthcoming book Democracy and Political Ignorance: Why Smaller Government is Smarter (Stanford University Press) at Campbell University in North Carolina. The event wil lbe held in the Hartness Lecture Hall in the Science Building. The book itself will be published this fall. It argues […]
I Think Jeffrey Goldberg is Trying to Defend President Obama
when he says, “Like many liberal American Jews, when he looks at Netanyahu he sees a conservative Republican and he fails to understand how a Jew can be a conservative Republican. I think he looks at Netanyahu in much the same way he contemplates Eric Cantor, the Republican (and Jewish) house majority leader. Like many […]
Another Interesting Thing About the Kirtsaeng Lineup
In addition to Jon’s observation, another noteworthy thing about Kirtsaeng is that the case was decided 6-3. But wait–the whole reason the Court took Kirtsaeng was to resolve the question the Court couldn’t reach in Costco Wholesale Corp. v. Omega, S.A., because Justice Kagan was recused and the remaining Justices were divided 4-4. So who […]
Chemerinsky on Color Blindness
By David Bernstein on March 19, 2013 11:37 am in Academia, Affirmative Action, Fisher v. University of Texas
Atlantic: Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, said that the concept of colorblindness holds great rhetorical appeal but that “there is no basis for concluding that the 14th Amendment equal protection clause requires colorblindness.” In drafting the 14th Amendment, he said, Congress recognized “an enormous difference between a […]
Two excellent talks in Atlanta
Yesterday and today, I attended two excellent talks in the Atlanta area — the free-market/libertarian scene in Atlanta is actually kind of booming these days, with FEE, AFF, GPPF and ATLOS having an active presence, as well as some interesting student organizations. Last night, Tom Palmer of Cato/Atlas came down to Kennesaw State University to […]