Election law maven Rick Hasen writes: I have now had a chance to review the text the Voting Rights Amendments Act of 2014 introduced today by Representatives Sensenbrenner and Conyers (with parallel legislation being introduced by Senator Leahy in the Senate). I believe parts of the VRAA are likely constitutional (including the new coverage formula), […]
Author Archive | Will Baude
Recapping Daimler Chrysler AG v. Bauman
I have a post at SCOTUSBlog recapping yesterday’s decision in Daimler Chrysler AG v. Bauman. It begins: Readers of the Supreme Court’s decision yesterday in Daimler Chrysler v. Bauman may have learned two things: First, it is increasingly difficult to establish general jurisdiction over a corporation for conduct unrelated to the forum; second, the Court […]
Printz, Commandeering, and the Federalist
Today was the second day of Originalism and its Critics, which I’m co-teaching with Eric Posner. We read Printz, Jud Campbell’s article on commandeering, and an article by John Manning on the use of the Federalist Papers. Two general thoughts on those readings: 1. On Printz and commandeering, I have already said that I think […]
Methodological Consistency in Noel Canning
One theme of the amicus brief I helped write in Noel Canning was the need for a consistent treatment of text, history, and modern practice. If the executive branch wishes to argue that modern practice trumps the text and early history on questions 1 and 2 (“the recess” and “happen”), then it should be stuck […]
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 […]
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.” […]
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.
ABA Teleforum on Recess Appointments Friday
If you haven’t yet heard enough from me about Noel Canning and recess appointments — or if you want to actually hear me talk rather than just read me — I will be doing a teleforum for the American Bar Association on the case on tomorrow morning at 11:30 EST. (You could catch much of […]
Heller As an Advertisement for Originalist Methodology
Eric Posner has posted a few comments on our first class on originalism, including his thoughts on Heller: It seems to me that the text of the Second Amendment suggests that the right to bear arms is tied to serving in a militia, though not unambiguously, and that the exhaustive historical research discussed by the […]
NYU Journal of Law and Liberty’s Supreme Court Review-Preview
The newest issue of the NYU Journal of Law and Liberty is available online. It contains their special Supreme Court Review-Preview, which in turn contains my short article, Interstate Recognition of Same-Sex Marriage after Windsor, which I’ve mentioned here before. It begins: Last June, the headlines said that the Supreme Court’s decision in United States […]
Michael Rappaport on the Nonoriginalist Arguments for Broadening the Recess Appointments Clause
Those who have been following the recess appointments litigation are probably aware of the extensive originalist arguments that the Recess Appointments Clause is limited to appointments that arise (“happen”) while the Senate is in recess, and that “recess” means that the Senate is not in session. Those arguments were made by University of San Diego […]
My New Class, Originalism and its Critics
My new colleague Eric Posner has a post on his new blog about a class that we will be teaching together this quarter, Originalism and its Critics: I have long been skeptical of originalism, and my interest in it is more sociological than intellectual. I hope to learn from this seminar why originalism is appealing […]
Christian Burset on William Baude on Federal Eminent Domain
Last year I published an article in the Yale Law Journal arguing that the Constitution did not give the federal government the power of eminent domain. The Necessary Proper Clause was originally understood not to implicitly grant “great” powers to the federal government, and I argue that eminent domain (at least over land) was best […]
The Limited(?) Nature of the Ohio Same-Sex Marriage Decision
Like Jonathan (posting directly below) I saw a lot of early reports suggesting that Judge Black, in the Southern District of Ohio, had invalidated Ohio’s ban on same-sex marriage. But Chris Geidner has a link to the actual decision, and as a technical matter it is slightly more limited: it invalidates Ohio’s ban as applied […]
Atlantic Marine and the Sachs Brief: A Post-Mortem
The Green Bag has picked, as an example of “exemplary legal writing,” Professor Stephen Sachs’s amicus brief in Atlantic Marine v. U.S. District Court (previously discussed here). This reminds me that I didn’t have a chance to write a post when the Supreme Court decided Atlantic Marine a few weeks ago. The decision was unanimous […]