Author Archive | Eric Posner

In response to the debate over the Sotomayor nomination, three coauthors and I tried to answer this question empirically (however, focusing on gender, not on race).  A brief description of our findings is here; our working paper is here.

I have read with dismay David and Jonathan’s arguments that all legislators should read all bills before voting. The argument fits a genre of populist rhetoric that claims that problems of governance can be solved with simple, common-sense rules, denying that political institutions are highly complex organizations that have evolved in response to needs and […]

At the invitation of the Foreign Policy blog, I wrote some brief comments on the differences between Obama and Bush’s approaches to international law. If you’re curious, go here.

A long time ago, I wrote about President Obama’s nomination of Cass Sunstein to head OIRA and noted that some academics and commentators opposed it because of Sunstein’s support for cost-benefit analysis. Sunstein is not yet confirmed many months later, not because of the opposition of critics on the left, but because some senators took […]

A new book edited by Jack Balkin and Reva Siegel collects essays that envision a progressive constitution by 2020. The odd thing about the book is that the editors stipulate that Warren Court-style judicial activism is dead, while still insisting that a progressive constitution in eleven years is possible or even likely. Hence they and […]

Here is the Massachusetts statute under which Gates was arrested, Mass. G. L. ch. 272, s. 53: Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech […]

The African Union has decided not to cooperate with the International Criminal Court, which has indicted Sudan

Tyler Cowen criticizes the Waxman-Markey bill for imposing tariffs on goods from countries that do not reduce their greenhouse gas emissions. (See also VC contributors linked at the end of this post (and scroll down).) Tyler gives lots of good reasons why trying to punish (say) China would be counterproductive. Clearly, doing so is not […]

Continued from here. What divides the two groups in the foreign law debate? I will make a few conjectures, again with the proviso that I am supplying broad generalizations and do not mean to attribute any of these views to any particular person (including Koh) on either side of the debate. Doctrine. Much of the […]

Now that Harold Koh is on his way to confirmation, it may be possible to discuss why some people (not me) opposed his appointment while others pooh-poohed their objections and accused Koh

Republican divide and conquer the American public. Obama divides and conquers American Jews. Republican congressmen divide and conquer Democrats on cap-and trade. Chrysler and GM divide and conquer automobile dealerships. Interior designers divide and conquer small rooms to create an impression of more space. Marines are not dividing and conquering in Afghanistan. All of this […]

Among this morning’s four cert grants was Stop the Beach Renourishment v. Florida Department of Environmental Protection, a challenge to the constitutionality of Florida’s Beach and Shore Preservation Act. Specifically, the petition challenges the Supreme Court of Flordia’s conclusion that the law does not deprive upland owners of littoral rights without just compensation in violation […]

The Obama Administration is continuing to defend the use of the state secrets privilege in seeking en banc review of Mohamed v. Jeppesen in the Ninth Circuit. The brief is here. As Marc Ambinder reports, the Obama Administration now “owns the state secrets privilege.”

Ann Althouse asked her Constitutional Law students to identify cases that did (or did not) exemplify “empathy” on their exam. Try it for yourself and see how you do. UPDATE: Here’s the “winner.”