I have a book review essay at the Liberty Law Blog on Taleb’s new book, AntiFragile. I use the central point of the book as a jumping-off point to discuss how Taleb’s insights might be applied to strengthen the financial system and make it more resistant to panics and crises. Josh Blackman adds a few thoughts […]
Archive | December, 2013
Property Rights on the Moon?
Space law scholar Glenn Reynolds (AKA Instapundit) has an interesting USA Today column on the potential development of property rights on the Moon: On Saturday, a Chinese lunar probe made the first soft landing anyone’s made on the moon since 1976…. Though the landing was a big deal in China, most of the rest of […]
Israel, Palestine, and Democracy
At Commentary, I have a new piece on the common argument that Israel must make a deal with the Palestinians to save itself as a democracy. Here is an excerpt: The “democracy” argument has become the central justification of the diplomatic process, incessantly invoked by Secretary of State John Kerry and Israeli peace envoy Tzipi […]
Happy Saturnalia!
Today is Saturnalia, an ancient Roman holiday whose celebration has become a Volokh Conspiracy tradition. OK, in reality it’s only a tradition in so far as I put up a post about it every year. But that’s as traditional as anything in the blogosphere is ever likely to get. The Encyclopedia Romana describes this exciting […]
Enforcement Discretion and Executive Duty: Introduction
Hello! I’m delighted to be guest-blogging this week about my forthcoming article, “Enforcement Discretion and Executive Duty.” I’m grateful to Eugene for the opportunity to participate in the blog and for his introduction yesterday, and to Will for his generous post about my article a few weeks ago. My article will be published in the […]
Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?
By Orin Kerr on December 17, 2013 3:05 am in Fourth Amendment, Mosaic Theory of the Fourth Amendment, NSA
Here’s a thought experiment. Let’s assume that when DOJ appeals Judge Leon’s opinion in Klayman v. Obama, the DC Circuit does not reverse on the procedural issues. Instead, on appeal the DC Circuit takes precedent seriously and tries to square the NSA surveillance program with United States v. Maynard and its mosaic theory on the […]
Just to Clarify
A New York Times story out on Judge Leon has me quoted as saying: “He’s very passionate,” said Orin S. Kerr, a professor at the George Washington University Law School and a defender of the N.S.A.’s surveillance programs, who said he found the judge’s ruling short “on legal reasoning.” Just to be clear, I told […]
A Useful Political Rule of Thumb
The degree to which a political party leans libertarian is proportional to the number of years since the party last held the White House.
The Procedural Problems With Judge Leon’s NSA Ruling
Over at Dissenting Justice, Law prof Darren Hutchinson points out reasons that the DC Circuit might reverse Judge Leon without reaching the merits of the Fourth Amendment question he decided. According to Hutchinson: [T]he Supreme Court is very reluctant to enjoin policies related to national security. This is so, even if the defendant has violated […]
“The Inadequacy of the Brief That Her Lawyer Has Filed … Precludes Our Vacating the Denial of Asylum”
UPDATE (post bumped in light of the update): I asked the lawyer whether he wanted to say something in response; here is what he passed along: I feel that the brief explained the position in a case which dealt with a narrow issue and not much positive caselaw except for one recent Seventh Circuit case. […]
Prof. Zachary Price, Guest-Blogging
I’m delighted to report that Zachary Price, who is now a Visiting Assistant Professor at the University of California Hastings College of the Law, will be guest-blogging this week about his Enforcement Discretion and Executive Duty (forthcoming in Vand. L. Rev.). Prof. Price has also written previously about the rule of lenity, the constitutionality of […]
Preliminary Thoughts on Judge Leon’s Opinion
In this post, I’ll offer a few thoughts on Judge Leon’s remarkable opinion on NSA surveillance. Unfortunately, my time was limited, so I have to offer a more brief analysis than I would normally like to do. Here are a few thoughts for now, with more to come later if time permits. (1) Distinguishing Smith […]
Aereo, and the Strange Case of the “Public Performance” Right in Copyright Law
As you can see in this very informative infographic and blurb, there’s been a LOT of activity recently, with a good deal more on the way, involving the question of whether Aereo’s technology (or that of a copycat service, formerly called “Aereokiller” and now “FilmOn”) constitutes a “public performance” of the underlying copyrighted TV shows. […]
“Leaked! Harvard’s Grading Rubric”
In Saturday’s New York Times. Thanks to InstaPundit for the pointer.
Judge Leon Enjoins NSA Telephony Metadata Program in Larry Klayman Lawsuit
And now for something completely different: In an astonishing opinion, Judge Leon of the DC District Court has held that the NSA’s bulk collection of telephony metadata violates the Fourth Amendment and has enjoined the entire program (stayed pending appeal). In this post, I’ll just describe Judge Leon’s reasoning. In another post later today, I’ll […]