Pursuant to the deal under which Senate Republicans agreed to stop filibustering several Executive Branch appointments, President Obama has named two new nominees to the National Labor Relations Board: AFL-CIO general counsel Nancy Schiffer and Kent Hirozawa, chief counsel to the current NLRB chair. Under the terms of the deal, Republicans have agreed not to […]
Archive | July, 2013
Metadata, the NSA, and the Fourth Amendment: A Constitutional Analysis of Collecting and Querying Call Records Databases
In his recent Wall Street Journal op-ed, my co-blogger Randy Barnett argues that massive-scale collection of communications metadata by the NSA violates the Fourth Amendment because it is an unreasonable seizure. Randy’s colleague Laura K. Donohue recently argued in the Washington Post that such collection violates the Fourth Amendment as an unreasonable search. Jennifer Granick […]
A Few Zimmerman-Related Notes
I. For most of its history, the ACLU opposed separate state and federal prosecutions for the same acts as unconstitutional double jeopardy. If I’m remembering correctly, the ACLU abandoned this position under the pressure of the egregious facts of the Rodney King case, but by an extremely close vote with much controversy. Apparently, the ACLU […]
What Will Happen to Section Two of the Voting Rights Act?
In a speech today, Attorney General Holder announced that he has “directed the Department’s Civil Rights Division to shift resources to the enforcement of Voting Rights Act provisions that were not affected by the Supreme Court’s ruling – including Section 2.” Section 2 of the Voting Rights Act is the one that nationwide forbids voting […]
A Correction and Apology Regarding the New York Times Zimmerman Editorial
In a post Monday, I criticized the New York Times editorial that read, in relevant part, The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of the now-notorious Stand Your Ground provision in Florida’s self-defense law. Under that law, versions of which are on the books in two […]
Libertarianism, the Confederacy, and the Civil War Revisited
By Ilya Somin on July 16, 2013 8:34 pm in Civil War, History, Libertarianism, Racial Discrimination, Secession
Revelations that Rand Paul aide Jack Hunter has a history of racist and pro-Confederate statements during his days as a radio shock jock have rekindled the longstanding debate over libertarian attitudes towards the Civil War. Hunter has repudiated many of his former statements and attitudes. But that hasn’t stopped the controversy from continuing. This uproar […]
DOJ Seeks En Banc Review in Searching Cell Phone Incident-to-Arrest Case
Today DOJ filed a petition for rehearing en banc in United States v. Wurie, the First Circuit case holding that a warrant is required to search a cell phone incident to arrest. (HT: Michael Scarcella) My earlier coverage of Wurie is here. I wouldn’t be surprised if this filing offers us a preview of a […]
Intelligence Under Law — Judiciary Testimony
I’ll be testifying tomorrow to the full House Judiciary Committee about FISA, NSA, and the Snowden flap. (Excerpts below. My prepared testimony is here: Download Pdf of Baker testimony to House Judiciary Committee on FISA .) I used this opportunity to muse on the resemblance between today and the waning Clinton era: To be blunt, one of […]
The Uncertain Future of the Matthew Shepard Hate Crimes Prevention Act
I do not think it is likely that the federal government will end up charging George Zimmerman with a crime. But if it does, the prosecution may raise several interesting and potentially certworthy constitutional issues. Jonathan has already noted the possibility of revisiting the dual sovereignty exception to the Double Jeopardy Clause. But another important […]
Kiobel, Followed by DaimlerChrysler: What the Roberts and Breyer Views on Jurisdiction over Foreign Corporations Share
(First, big welcome to the newest Conspirator, Will Baude!) A few months ago, in April, the Supreme Court handed down its decision in Kiobel v. Royal Dutch Petroleum Corp., giving guidance on the Alien Tort Statute. In this rather lengthy post, I’m going to explore some ideas I’m using in an essay on Kiobel for […]
Cordray to Be Confirmed at CFPB
Potentially ending a stand-off over the use of filibusters to block Executive Branch nominees, the Senate voted 71-29 to end debate on the nomination of Richard Cordray to head the Consumer Financial Protection Board. The Senate is scheduled to vote later today to end debate on several other executive nominations. For what it’s worth, I […]
Our Amicus Brief on the Property Rights of Private Planned Communities
The Cato Institute recently filed an amicus brief urging the Supreme Court to hear Mariner’s Cove Townhomes Association v. United States , a case addressing an important issue involving the property rights of private planned communities. The brief was filed on behalf of Cato and several property scholars, including Richard Epstein (Chicago and NYU), James […]
Room for Debate: Should Zimmerman Face Federal Charges?
The latest NYT Room for Debate feature asks the question: “Should Zimmerman Face Federal Charges?” My answer (as readers might anticipate given my prior post) is “No.” In my contribution to the debate, I argue that federal prosecution of individuals acquitted in state court should be a rarity, and should really only occur when there […]
What Happens Next If the U.S. Actually Catches Edward Snowden?
Over at LawFare, David Pozen has a very interesting post on that question.
FISC Orders Executive Branch to Conduct Classification Review of Secret 2008 Opinion
The Washington Post has the story here, and the FISC’s order is here. From the Post story: The secret surveillance court that approved the U.S. government’s broad collection of millions of Americans’ e-mail and telephone records called Monday for the Obama administration to declassify and release as much as it can of one of the […]