Earlier this week, the Supreme Court heard oral argument in Bond v. United States, an important case on the issue of whether the Constitution allows the federal government to use international treaties to give Congress authority over issues that otherwise would be beyond the scope of federal power. Bond – which has already been to […]
Archive | November, 2013
Rory Little on Fernandez v. California
UC Hastings professor Rory Little has written a response to my post on Fernandez v. California, the third-party consent case that the Supreme Court will be hearing next week. Professor Little asked if I would be interested in posting it, and I am happy to do so. I’ve included a few thoughts in reply at […]
“The Hyped Campus Rape That Wasn’t”
An interesting and troubling column by Cathy Young (Minding the Campus). The opening paragraphs: If a satirist had set out to write a scathing parody of the campus crusade against rape, he could not have come up with anything more bizarre, or more ridiculous, than the real-life comedy-drama that unfolded last month at Ohio University […]
Response From Religious-Liberty Scholars Supporting a “Marriage Conscience” Exemption
By Dale Carpenter on November 7, 2013 12:40 pm in Religion and the Law, Religious Freedom, Same-Sex Marriage, Sexual Orientation
Last week I wrote about the response of a group of us (Andy Koppelman, Doug NeJaime, Ira Lupu, William Marshall, and me) to calls for broad religious-liberty exemptions in laws authorizing same-sex marriage. Specifically in the context of the proposed marriage bill in Illinois, which has since passed, we argued that the proposals from several religious-liberty scholars urged for several years […]
New Expanded Edition of “Restoring the Lost Constitution” is now on sale (for $18.65)
The updated and expanded edition of my book Restoring the Lost Constitution: The Presumption of Liberty, published by Princeton University Press, is now for sale on Amazon.com for $18.65. The new edition features a 60-page Afterword on “Things I have Learned Since the First Edition,” which is quite a lot. Here are the topic […]
Republican Candidates Must Abandon Judicial Conservatism for Constitutional Conservatism
Todd makes an interesting suggestion in light of Peter Ferrara’s assessment (in The Anti-Cuccinelli Axis) of the Cuccinelli campaign: The Libertarian Party should emulate the Conservative Part in New York, and offer to endorse the preferable of the Republican or Democratic candidate. Make the major party candidate vie for the support of libertarians (though this […]
Commentary: CFPB Study on Overdraft Programs
I have just posted a new Mercatus Center Working paper, “Commentary: CFPB Study on Overdraft Programs” co-authored with Michael Flores. You can get it here. Here’s the Abstract: Abstract The Consumer Financial Protection Bureau (CFPB) released its initial analysis of bank overdraft programs in a June 2013 white paper. We review the report and provide […]
Cuccinelli and The Libertarian Party
By now, some readers are familiar with the peculiar news that came out close to election day that the Libertarian Party candidate Robert Sarvis in Virginia was apparently been a stalking horse for supporters Democratic Governor-elect Terry McAuliffe to try to draw votes from Ken Cuccinelli. Nevertheless, he captured about 6.5% of the vote, potentially […]
Richard Reinsch Comments on Sunstein, Chambers, and the Tea Party
Cass Sunstein had a couple of columns on Bloomberg here and here on Whittaker Chambers and the Tea Party (sort of hard to describe, so I’ll just leave it at that). Chambers biographer Richard Reinsch comments here with some additional thoughts. As for Rand and Chambers, I have found a lot to admire in both of them […]
A Preliminary Legal Analysis of Eckert v. City of Deming, the “Clenched Buttocks” Case
A lot of folks in the blogosphere have been writing about this story on Eckert v. City of Deming, a Fourth Amendment civil case involving a routine traffic stop that turned into the government forcing a suspect to undergo invasive medical procedures looking for drugs. I thought I would run through some of the allegations […]
“Great” Powers and Federal Power Over Treaties
In my new article, Rethinking the Federal Eminent Domain Power, I begin by explaining a theory of the Necessary and Proper Clause that I call the idea of “great powers.” Put simply, the idea is that there are some powers that are sufficiently important that they cannot be implied through the Clause, even if they […]
You Can’t Force Public School Students to Salute the Flag (or to Hold Their Hands over Their Hearts)
That’s been well-settled First Amendment law for 70 years, but some government officials are still not on top of it. Three years ago, a judge’s attempt to force people to say the Pledge hit the news; now, it’s a Florida teacher. According to Hernando Today, An Explorer K8 teacher was suspended [for five days without […]
The Elite Defense Bar and Expert Evidence
I was recently discussing with someone the record of the elite defense bar with regard to the law of expert testimony, and it’s not a happy history. Elite defense lawyers have often steered their clients in the wrong direction, to wit: (1) In the early 1980s, when toxic tort cases were just beginning, defense lawyers […]
Posner on Lochner (UPDATED: Posner versus Posner?)
By David Bernstein on November 6, 2013 8:25 am in Constitutional History, Constitutional Theory, Rehabilitating Lochner
While I greatly admire Judge Richard Posner’s amazing corpus of work, I’ve noticed in recent pieces that he has a tendency to state propositions as indisputable, absolute truths when they are at least disputable, and sometimes flat wrong. Here is an example. Posner writes in the California Law Review: The majority opinion in Lochner is […]
Kosher for Christmas
Newly certified from Orthodox Union (Union of Orthodox Jewish Congregations of America), which administers the U-in-a-circle kosher certification mark: CHRISTMAS MILK Frisco, TX October 24, 2013 Brands: Christmas Milk Products: French Vanilla Eggnog, Chocolate Swirl, OU-D French Vanilla Eggnog, Original, OU-D French Vanilla Eggnog, Sea Salt Caramel Swirl, OU-D Perfectly sensible, yet still amusing. Thanks […]