The Leahy-Sensenbrenner USA FREEDOM Act puts the Foreign Intelligence Surveillance (FIS) court in charge of shaping, overseeing, and enforcing minimization guidelines in connection with section 215, pen/trap orders, and section 702, largely taking the Attorney General out of the process of writing minimization guidelines. I’m appalled, because the FIS court has taken control of minimization […]
Archive | November, 2013
n guilty men in action
As they say, “Better than n guilty men go free than one innocent man be punished.” See also 146 U. Pa. L. Rev. 173 (1997). But how do you figure out what value of n you think the legal system should adopt? Easy — just do this set of hypotheticals: 1. Suppose you have a […]
Google India Ad
Lots of people liked this very much, and I’m one of them, even though I almost never much care for ads. Thanks to GeekPress for the pointer.
Parts 5 & 6 of my SCOTUSBlog “On Camera” Interview
Here are the last two segments of my SCOTUSBlog “On Camera” interview. Kudos to interviewer Fabrizio di Piazza for his insightful questions that seemed to anticipate where my thoughts were going next. Being there: Justice’s Arc:
Another Illegal ObamaCare Fix?
With Healthcare.gov still not working the way it is supposed to — and large portions of the “back office” functions yet to be completed — the Administration is preparing another fix: Allowing consumers to purchase qualified insurance plans directly from insurers with the benefit of the subsidies that are only supposed to be available through […]
Freedom of the Press as Protecting All Users of Mass Communications Technology — Responding to the Redundancy Objection
In the post below, I argue that the freedom of the press was originally and traditionally understood as protecting all users of the printing press as technology (and now its technological heirs), not the press as an industry or profession. One common response, which I’ve seen in many recent comments, is that this would make […]
Freedom for the Press — Protection for an Industry/Profession, or for All Users of a Technology?
Since the issue has come up again in recent comments, I thought I’d repost the introduction to my article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Penn. L. Rev. 459 (2011); the entire article is available in its full PDF form […]
My WSJ Book Review of “Terms of Engagement”
In today’s Wall Street Journal, I review Clark Neily’s most excellent book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. Here is a taste: In “Terms of Engagement,” Clark Neily draws upon his extensive experience as a lawyer for the libertarian Institute for Justice to expose this pervasive legal maneuvering […]
Behavioral Law and Economics and Bank Overdraft Protection
In the past few months, at least two articles have come out that apply behavioral law and economics to the analysis of bank overdraft protection. One by Bubb and Pildes (forthcoming in the Harvard Law Review) and the other by Lauren Willis in The University of Chicago Law Review. Both articles make the same claim–that there are situations in […]
Advances in Interspecies Communications
Headline seen on a newspaper story in Lexis/Nexis: PENGUINS CALL UP GIBBONS I take it that this is the print headline; the online headline for the story is different.
Damn, It Feels Good To Be A Gangsta
I cannot say I was particularly impressed with Ian Millhiser’s article, How Conservatives Abandoned Judicial Restraint, Took Over The Courts And Radically Transformed America, except insofar as it was actually pretty impressive how he was able to dredge up, dust off, and then somehow include in a single essay pretty much every Leftie trope about conservative […]
Talk at the University of Chicago Law School Tomorrow
I’ll be speaking at noon on Rehabilitating Lochner for the Federalist Society, with comments from Prof. Laura Weinrib. Weinrib, I should mention, is doing some really interesting work on how left-leaning jurisprudence, which had been largely indifferent to civil liberties in the Progressive era, came to embrace them soon thereafter. Come by if you’re in […]
Ian Millhiser on Me, the Federalist Society, and “Judicial Activism”
Ian Milhiser at ThinkProgress has written an article on the recently concluded Federalist Society National Convention, where he claims it shows that conservatives have embraced wideranging “judicial activism.” He also includes a summary of a discussion he had with me, at the convention. The summary is accurate in so far as it goes, but omits […]
“Reconsidering Citizens United as a Press Clause Case”
An excellent new Yale Law Journal article by Stanford Prof. Michael McConnell. The abstract: The central flaw in the analysis of Citizens United by both the majority and the dissent was to treat it as a free speech case rather than a free press case. The right of a group to write and disseminate a […]
Ian Millhiser on Conservatism and the Judiciary
Over at ThinkProgress, Ian Millhiser has a piece on conservative and the judiciary that ranges over many decades and many topics. Unfortunately, much of it is very tendentious and sometimes just wrong. It’s too much to do a detailed critique, so I’ll be brief and limit myself to his general historical perspective. [DB: Sentences in […]