By a 10-7 vote, the Senate Foreign Relations Committee passed an authorization for the use of military force in Syria today. The AUMF adopted by the committee appears to be similar to the draft I discussed in this post (though I have not yet seen the final text). However, the nonbinding Statement of Policy section […]
Archive | September, 2013
My JOTWELL Post on Will Baude’s “Rethinking the Federal Eminent Domain Power”
In my capacity as one of the editors for the constitutional law section of JOTWELL (a sited devoted to reviewing important new legal scholarship), I review an important new constitutional law article every summer. I usually try to pick articles that are 1) within one of my fields of expertise (primarily federalism and property rights), […]
The Strategy in NFIB v. Sebelius, Part II: The Commerce Clause Limiting Principle
In my previous post, I discussed how the government decided to argue that the Anti-Injunction Act was not a barrier to the Court hearing the case in 2012. The Solicitor General’s second big decision, after staying the course with the AIA, was how to frame the commerce clause issue. When asked in the courts of […]
Drug Sniffing Dogs and Marijuana Decriminalization
Under Illinois v. Caballes, 543 U.S. 405 (2005), the use of a drug sniffing dog to alert for drugs is not a Fourth Amendment search. Caballes reasoned that possession of the drug is a crime, and a sniff that only alerts to the presence of the drug does not infringe on an expectation of privacy […]
The Strategy in NFIB v. Sebelius, Part I: The Anti-Injunction Act
In a series of posts, I will explore in some detail how the government and the challengers developed their strategies before the Supreme Court in NFIB v. Sebelius. I elaborate on these themes at some length in Chapter V of Unprecedented (“Strategizing for the Supreme Court, p. 159”). Please note that I am not trying to persuade […]
Duquesne Invites Geraldo Rivera to Be on Panel, then Revokes the Invitation …
because Rivera had posted a picture of himself shirtless on Twitter. No, really, he had, and Duquesne did. Duquesne had invited Rivera to participate in a symposium on the 50th anniversary of President Kennedy’s assassination, apparently because Rivera was the first to air (in 1975) the Zapruder film of the assassination. Then it disinvited him, […]
Thoughts on the Senate Foreign Relations Committee’s Narrow Version of the Syria AUMF
The Senate Foreign Relations Committee has drawn up its own version of a resolution authorizing the use of military force in Syria, which imposes significantly tighter constraints on the president than the administration version. Here is the key language [SEE IMPORTANT UPDATES BELOW]: SECTION 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES. (a) AUTHORIZATION-The […]
Syria and the Morality of Humanitarian Intervention
Legal scholar Fernando Teson, a leading academic expert on humanitarian intervention has an interesting post on why the humanitarian case for intervening in Syria is weak. Like Fernando, I’m not opposed to such intervention on principle. But it can only be justified if there is a high probability of improving the situation in the targeted […]
Can the Police Go to the Front Door of a Home Marked With “No Trespassing” Signs?
In Florida v. Jardines, 133 S.Ct. 1409 (2013), the Supreme Court indicated that a police officer’s right to walk up to a front door of a person’s home is subject to an implied license based on existing social norms. Going on to the property and approaching the front door is a physical intrusion onto the […]
Henderson on Coase
In Wednesday’s WSJ economist David Henderson has an op-ed on Ronald Coase’s legacy. As henderson notes, the primary thrust of Coase’s work was a rejection of “Blackboard economics” in favor of careful examinations of the real world, with a particular focus on institutions. This was the theme that unified his work across various subjects. Although […]
Parent Convicted for Publicly Humiliating 12-Year-Old as Punishment for Getting an “F”
From State v. Broten (Minn. Ct. App. Sept. 3, 2013) (some paragraph breaks added), which upholds the conviction: In May 2012, officers from the Fridley Police Department were dispatched to a townhome in Fridley to investigate a report of a girl with a shaved head being forced to run outside wearing a diaper. An individual […]
It’s Unprecedented!
Hi everyone. Many thanks to Eugene, Randy, and everyone else at VC for giving me the keys to the Conspiracy to talk about my new book, Unprecedented: The Constitutional Challenge to Obamacare. Unprecedented will officially be released on September 10, but it is already shipping from Amazon. You can read some of the blurbs from Larry Tribe, Jack Balkin, […]
Adversarial Bias Among Forensic Psychologists
In my recent academic work on expert testimony, I’ve emphasized the problem of “adversarial bias,” bias that arises because experts are chosen (and paid) by a partisan party to the litigation. Adversarial bias could involve a “hired gun,” an individual who unconsciously biases his testimony to be a good member of the team, or an […]
Introducing Guest Blogger Josh Blackman
I wish to welcome Josh Blackman as a guest blogger this week Josh is an Assistant Professor of Law at the South Texas College of Law, and author of Unprecedented: The Constitutional Challenge to Obamacare. It is a marvelous book describing the constitutional challenge to the Affordable Care Act based on extensive interviews with all the major players. […]
Forbes.com Column on the Credit Card Interchange Fee Antitrust Litigation Settlement
I have a column at Forbes.com today on the upcoming hearing on the preliminary settlement of the longstanding litigation regarding credit card interchange fees: “Set Visa, MasterCard and Markets Free: Approve the Credit Card Interchange Fee Settlement.” (My apologies: My original post had both a glitch in my syntax and a bad link. I hope […]