Last year, I blogged extensively about the pending Fifth Circuit case on Fourth Amendment protection for cell-site data. Readers may recall that this is the case in which a Magistrate Judge denied an application for a court order to obtain cell-site data on the ground that he thought the Fourth Amendment would be violated by […]
Archive | July, 2013
Dorf on “Lifetime” Warranties
When a product has a “lifetime” warranty, what does that actually mean, and whose lifetime is it referring to? Mike Dorf has some interesting reflections. (I confess I’d always assumed, without really thinking about it, that it meant the lifetime of the purchaser, which Dorf dismisses as “absurd” and “preposterous.”)
Discussing Peace Process on TV
Tonight, Shalom TV will be airing an encore of an interview with me about settlements, international law, and the peace process, 9 pm and 12 am ET. You can stream it live or watch on the following television providers: Optimum CH 138; RCN CH 269 (CH 335 in Lehigh Valley); Hotwire CH 269; MetroCast (Maine […]
NY appellate court rules 5-0 against Bloomberg soda ban
By David Kopel on July 30, 2013 2:02 pm in "Bullying" Bans, Administrative Law, Constitutional Law, Executive Branch, Food and Drink, Growth of Government, Health Care, New Class, Paternalism, Separation of Powers
The First Department of the Appellate Division of the New York Supreme Court has ruled 5-0 against NYC Mayor Michael Bloomberg’s soda ban, in the case of In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. The New York City Department of Health and Mental Hygiene, et al. (The Hispanic […]
MIT Releases Hal Abelson Report on the Aaron Swartz Case
MIT has just released the long-awaited report by Hal Albelson about MIT’s involvement in the Aaron Swartz case: The 183-page report is here. I’m going to be reading it today and plan to blog on it more later, but for now here’s the conclusion: As the length of this report demonstrates, the narrative of MIT’s […]
Major Shift Coming in Pennsylvania Self-Defense Law?
Right now, all but either one or two states provide that, once the defense in a criminal case introduces any evidence of possible self-defense, the prosecution must disprove self-defense beyond a reasonable doubt. In this respect the absence of self-defense is treated similarly to any element of the crime. Just as the prosecution must prove […]
Cozen O’Connor v. Tobits: A Questionable Resolution of Some Complicated Choice of Law Problems
Thanks to the ever-alert Chris Geidner, I saw this post-DOMA decision by a federal district court in Pennsylvania, which is a good example of how complicated the post-DOMA choice-of-law problems can be (and how hard it is to get them right). The case is an interpleader action dealing with ERISA problems (bear with me!) arising […]
First Circuit Denies En Banc Review in Cell Phone Search Case, But Two Judges Ask Supreme Court To Step In
Two weeks ago, when DOJ petitioned for rehearing en banc in United States v. Wurie, the Fourth Amendment case on searching cell phones incident to arrest, I wrote that the petition for rehearing was a possible preview of a future DOJ cert petition: I wouldn’t be surprised if this filing offers us a preview of […]
Don’t Throw a Fit Over Your Opponent’s Arguing that Your Tactics Are a “Bastardiz[ation] of the Litigation Process,”
especially when your client is a pornographer accused of litigation extortion. From Barker v. Patrick Collins, Inc. (W.D. Ky. July 19, 2013): Barker and Hutchinson have brought suit against five companies, Patrick Collins, Inc., Malibu Media, LLC, Raw Films, Ltd., K–Beech, Inc., and Third Degree Films, who allegedly are pornography distributors. … The plaintiffs claim […]
Potter Stewart and “I Know It When I See It”
A comment on the duty to comply with negative demands thread — “Fortunately the collective experiences and common senses of juries nearly in every instance trump the purely-academic exercise of dancing on the heads of semantic and theoretical pins. In Realityville jurors know self-defense the way Potter Stewart knew about pornography” — reminded me of […]
Losing Self-Defense Rights If You Refuse to Comply with Attacker’s Demands to Abstain from Conduct?
I’ve long been curious about the “duty to comply with negative demands,” an analog to the duty to retreat suggested by the Model Penal Code (based on the Restatement (First) of Torts) and implemented in Connecticut, Delaware, Guam, Hawaii, Maine, Nebraska, New Hampshire, and New Jersey. (Alabama and Pennsylvania had such a rule, but recently […]
Libertarianism and the Supreme Court
By Ilya Somin on July 29, 2013 6:14 pm in Commerce Clause, Federalism, Libertarianism, Property Rights, Supreme Court
Simon Lazarus of the liberal Constitutional Accountability Center is correct to point out that the Supreme Court’s decisions have trended in a somewhat libertarian direction over the last year. I also agree with many of co-blogger Randy Barnett’s explanations for why this has happened. In addition to the cases cited by Lazarus, it’s also worth […]
Former Bush Attorney General Alberto Gonzales Responds to my USA Today Op Ed on Unanimous Supreme Court Decisions and Executive Overreach
By Ilya Somin on July 29, 2013 5:07 pm in Constitutional Law, Executive Branch, National Security, Supreme Court, War on Terror
Former Bush Administration attorney general and White House counsel Alberto Gonzales has written a response to my USA Today op ed on unanimous Supreme Court opinions and executive overreach. Gonzales largely agrees with my assessment of the Obama administration’s record, but – not surprisingly – he takes issue with my argument that Obama’s overreach was […]
San Antonio Exclusion from Government Commissions of People Who Have Ever “Demonstrated” “Bias” “by Word or Deed”
According to San Antonio Municipal Code § 2-9 (enacted 1994), No person shall be appointed to a position if the [city] council finds that such person has, prior to such proposed appointment, engaged in discrimination or demonstrated a bias, by word or deed, against any person, group or organization on the basis of race, religion, […]
New Republic: “Libertarianism has won over the Supreme Court conservatives”
Simon Lazarus of the Constitution Accountability Center has a provocative essay that the New Republic has entitled “Alito Shrugged: Libertarianism has won over the Supreme Court conservatives.” (Whoever writes their urls gave it the more tendentious title, “supreme-court-libertarianism-ron-pauls-bench”) Here’s a taste: On high profile issues, the conservative bloc’s five members—Chief Justice Roberts and Associate Justices Antonin […]