Author Archive | Orin Kerr

In Roper v. Simmons, yesterday’s decision declaring the juvenile death penalty unconstitutional, the Supreme Court relied heavily on the fact that five states have gone from allowing the juvenile death penalty to banning it since the Court’s 1989 decision in Stanford v. Kentucky:   Five States that allowed the juvenile death penalty at the time of […]

The law student group blog De Novo was out for a few days due to a server problem, but is now back online.

I have just finished working my way through the opinions in Roper v. Simmons. As someone who greatly values stare decisis, I was disappointed by Justice Kennedy’s majority opinion. There just isn’t much there to justify overruling a 16-year-old precedent and striking down 18 state laws. I’m not sure about the juvenile death penalty as […]

Liberal critics often accuse the Rehnquist Court of being an activist court that overthrows precedents and allows its own will to trump that of legislatures. The latest data point on this question is in: check out Roper v. Simmons, a 5-4 decision by Justice Kennedy invalidating the use of the death penalty for juveniles, overruling […]

The arrival of March 1 means that it’s peak law review submission season, and I am happy to have just finished submitting my latest article, Rethinking Searches and Seizures in a Digital World. I’m pretty excited about the article — it asks and answers a number of big questions in the field of criminal procedure […]

Chris Bertram of Crooked Timber points out a very cool site, Earlymoderntexts.com, which offers “translations” of classic works of philosophy into modern English. The idea of the translations is to present the arguments in modern English so the reader can understand the ideas without struggling through the archaic language of the original (and yet without […]

While a trial level opinion in this area merely sets the ball rolling for future appellate proceedings, it is worth noting that today a Bush-appointed District Judge in South Carolina ruled that the Executive Branch has no power to detain Jose Padilla, the alleged dirty bomber whose case previously went up to the Supreme Court. […]

David’s recent pitch to prospective law students encouraging them to turn down invitations to enroll where I teach and accept invitations to enroll where he teaches reminds me of this pretty good essay on the complex relationship between law school rank and career success. VC readers who are in the happy position of choosing among […]

Is the CIA “too cautious” when it comes to targeting terrorists abroad? Shaun Waterman of UPI has this interesting story.

Howard is back, and poses a very interesting constitiutional law question:   Assume that the [Supreme] Court issues a decision holding that the U.S. Constitution prevents a State from criminalizing certain specified conduct (e.g., early term abortion or consensual sodomy). Later, assume that the Court reverses course and holds that the U.S. Constitution does not prevent […]

One of the odd things about debates over the Patriot Act is that even its harshest informed critics actually only oppose a very small part of the Act; the overwhelming majority of the statute is uncontroversial among the fairly small number of people who understand what’s in it. As best I can tell, this has […]

Over at The Right Coast, Michael Rappaport has a thoughtful response to my Wednesday post about textualism and the Takings Clause. Meanwhile, Kip of A Stitch in Haste calls me “smarmy,” my post “utterly silly,” and the Volokh Conspiracy in general “a collection of bored semi-scholars and intellectual narcissists preening themselves in front of the […]

Stuart Buck responds to my prior post about textualists and the Takings Clause: [Kerr’s] argument is the equivalent of the following: “The Fifth Amendment prohibits the government from putting someone in jeopardy of ‘life or limb’ twice ‘for the same offense.’ Granted, this prohibits the government from prosecuting someone twice for the same offense, but […]

Jack Balkin has some thoughts about how different Justices came out in yesterday’s decision in Johnson v. California, a case involving racial classifications applied to prisons. I haven’t read the opinions yet so I don’t know whether I agree, but Jack’s perspective on the Court is always worth reading.

I don’t know much at all about the Takings Clause, so I hope the Takings Clause experts out there can help me (and inform the VC’s readers) with a very basic question I have concerning the issues raised in the Kelo v. City of New London case. In Steve Bainbridge‘s post linked to by Randy […]