I’ve always thought that when it came to turf wars between the executive and legislature, Congress held the trump card of the “power of the purse.” But here’s what happened back in 2011 when Congress voted to defund several “czar” positions, positions that upset people on both sides of the aisle because they can be […]
Archive | 2014
Professors and Former SEC Commissioners’ Brief in Halliburton
As promised, here is the brief submitted by a second group of professors, together with former SEC Commissioners, in Halliburton Inc. v. Erica P. John Fund, Inc. It argues that the Court “need not wade into the complex and highly technical debate over the efficient markets hypothesis to answer the question presented here. Instead, the […]
Right to Carry Guns on Federal Recreation Areas, and Right to Possess in Tents on Those Areas
Today’s Morris v. U.S. Army Corps of Engineers (D. Idaho Jan. 10, 2014) strikes down an Army Corps of Engineers regulation barring possession of loaded guns in recreation areas surrounding Corps dams. The court holds that tents are akin to homes, where Second Amendment rights are protected. The court also holds that the Second Amendment […]
Insider Trading Trial Reveals Case of Harvard Law Student Who Altered His Transcript for Clerkship Applications
The insider trading trial of Mathew Martoma has revealed an interesting episode of his earlier life thanks to a motion under Rule 404(b), and specifically the time he was kicked out of Harvard Law School for falsifying his transcript when he applied for appellate clerkships. Martoma (then named Mathew Thomas) altered his law school transcript […]
Ford “Know[s] Everyone Who Breaks the Law” Using Cars They Made — Why Aren’t They Doing Something About It?
Business Insider reports that Ford executive Jim Farley stated, in a panel discussion: We know everyone who breaks the law, we know when you’re doing it. We have GPS in your car, so we know what you’re doing. By the way, we don’t supply that data to anyone. He later retracted that, saying Ford doesn’t […]
Utah Same-Sex Marriages Valid for Purposes of Federal Law
A few minutes ago, Attorney General Holder announced that Utah same-sex marriages “will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages.” This is even though “the governor has announced that the state will not recognize these marriages pending additional Court action.” This may […]
Law Professors’ Brief in Halliburton
It’s been a busy enough week that I haven’t yet been able to post on the brief that colleagues and I filed on behalf of law professors Adam Pritchard and Todd Henderson in Halliburton Co. v. Erica P. John Fund, Inc., involving the continuing validity of Basic Inc. v. Levinson. Below is a short summary of the argument. Basic’s view […]
Originalism: We the People of the Past, the Present, and the Future
By Profs. John McGinnis & Michael Rappaport, guest-blogging on January 10, 2014 9:20 am in Originalism and its Critics
Frequently, it is argued that the problem with originalism is that it forces us to be governed by an old Constitution that is out of date. We think that this claim gets it backwards: nonoriginalism impedes the Constitution from being improved through the amendment process. It has sometimes been thought that the amendment process is […]
The Hall of Fame
As it happens, I have a more-than-the-usual-passing interest in the goings-on at the Baseball Hall of Fame this year. My oldest friend (I say we met in kindergarten, though he seems to think it was 1st grade), Eric Nadel, who has spent the last 30 years or so down in Texas as the voice of […]
Insane Clown Posse v. FBI, Vol. 2
In September 2012, noted “horror core” hip hop duo Insane Clown Posse sued the FBI seeking to obtain documents explaining why the federal government labeled ICP fans (aka “Juggalos”) as a “loosely organized hybrid gang” under the National Gang Threat Assessment. Now, with the help of the ACLU, the ICP is suing the FBI again […]
Further Thoughts on “During the Recess”
A while ago, I wrote a post about the grammar of the Recess Appointments Clause, which began: The Recess Appointments Clause, recall, says: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” […]
“A Little Bit of Laches Goes a Long Way”
My colleague Sam Bray is a remedies scholar, which makes him a rarity these days — and he is a remedies scholar who thinks the distinctions between legal remedies and equitable remedies are important and should in large measure be maintained, which makes him doubly rare. He now has a very interesting new paper on […]
Are Thermal Imaging Devices in General Public Use Yet? (2014 Edition)
Four years ago, I had a long post on whether thermal imaging devices are in general public use, which, according to dicta in Kyllo v. United States, might enable the police to use them on a home without triggering a Fourth Amendment search. At the time, single-point infra-red temperature sensors started at about $50, and […]
The Originalism Blog, on Originalism and its Critics
Professors Rappaport and Ramsey both have posts up on the Originalism Blog reacting to our originalism course (and Eric Posner’s posts about it). Here is Professor Rappaport, and here is Professor Ramsey.
Because Oral Sex Is Just So Much Worse for Teenagers Than Genital Sex
Delegate Thomas Garrett has proposed a bill that would make it a felony in Virginia for anyone to have oral or anal sex with a minor. But genital sex? Well, Virginia law would, even if this bill is enacted, provide that genital sex between an adult and a 15-to-17-year-old is a misdemeanor, and sex among […]