Author Archive | Randy Barnett

I am late for the program on Critiquing Contract Law–again because I was uploading the last blog post in my room. Since I now know someone is reading these posts, I decided to proofread it albeit quickly. Jay Feinman (Rutgers) is almost done with his talk. I like Jay a lot, ever since we both […]

One of the reasons I came to the AALS was to hear Steve Ware and Marcus Cole speak. I have known both since they were law students. Unfortunately Marcus, who was supposed to be on this morning’s panel became ill, so is not here. I had thought of skipping the first session, but my duty […]

The afternoon session is on Contracts and Arbitration. The panelists are Richard Alderman (Houston), Jean Sternlight (UNLV), and Steve Ware (Kansas). Jean has summarized the law of arbitration for the benefit of the contracts professors. I have a section on private arbitration in my casebook, but it is rarely discussed in first year contracts classes, […]

The next session is Intellectual Property (IP) Meets Contract Law. It is being chaired by Jean Braucher (Arizona). She explains that part of the issue is whether IP merely provides default rules that can be contracted around by entering into contracts. The concept of “default rules” is very basic to understanding contract law. The speakers […]

I am in Montreal at the Association of American Law Schools (AALS) Mid-Year Meeting. This year the topic is Exploring the Boundaries of Contract Law. These sessions are being held at the same time as an AALS Conference on Commercial Law at the Crossroads. This morning we are welcomed by Bill Hines, the AALS President […]

In my earlier post, I failed to link to my NRO article, The Ninth Circuit’s Revenge. I have now done so below, and also here. As for Orin’s defense of Justice Kennedy, there is very much that could be said, but I will limit myself to the following. Justice Steven’s opinion is a sweeping limitation […]

My column on Gonzales v. Raich, The Ninth Circuit’s Revenge, is now up on National Review Online. Here is how it begins: The Ninth Circuit finally got its revenge on the Supreme Court justices who seemed to delight in reversing it. In Gonzales v. Raich, it gave the conservatives a choice: Uphold the Ninth Circuit’s […]

I want to thank all my friends from around the country, and Volokh Conspiracy readers, for their many emails expressing support and words of encouragement to me following the Supreme Court’s disappointing decision on Monday in Gonzales v. Raich. I have also taken solace in the outpouring of disapproval for the Court’s decision from every […]

There is a very interesting new project at the University of Chicago called the Carceral Notebooks. The project is interesting not only because of its general topic—the intersection of law and morality—but also because it is student authored and being published electronically and printed without a commercial publisher. Of particular interest to me is the […]

By James Lilek. This how it begins, but it is NOT how it ends: One of the good things about the End of Trek: I’ll never have to listen to the bitching of fans. The more I troll the message boards and forums and Usenet groups, the more I’m convinced that the entirety of Trek […]

My latest upload to SSRN is a short Foreword the symposium on Lochner v. New York that is forthcoming in the NYU Journal of Law and Liberty. Inspired by the musical Wicked, it is entitled, What’s so Wicked About Lochner? Here is the abstract: In this brief Foreword to a forthcoming symposium on Lochner v. […]

Perhaps the most powerful objection to adopting an original meaning approach to constitutional interpretation is that such an approach would be inconsistent with the result in Brown v. Board of Education. For most, regardless of ideology, any theory of interpretation that does not get Brown correct, is unacceptable, almost by definition. The perception that Brown […]

It looks to me like Tom Palmer has updated the appearance of his website and blog, TomGPalmer.com. Tom is an old friend of mine of whom I have enormous respect. In addition to his formidable skills as a political thinker—he is extraordinarily well read—Tom effectively and courageously fights in the trenches to advance the cause […]

I hope it is not too late to wish a “Happy Mothers Day” to the appropriate readers of the Volokh Conspiracy.

Over on Positive Liberty, Jason Kuznicki raises some interesting concerns about the theory of constitutional legitimacy I develop in Restoring the Lost Constitution. I thought I would offer some clarifications of my approach which might address some of the issues he raises. (1) The concept of “legitimacy” I am considering concerns whether laws that are […]