Yesterday, Michael McConnell and I filed an amicus brief in NLRB v. Noel Canning (the Supreme Court’s recess appointments case) on behalf of ourselves and a group of other constitutional law scholars, including co-conspirators Dale Carpenter, Eugene Kontorovich, and Nick Rosenkranz, as well as Nathan Chapman, Samuel Bray, John Eastman, Richard Epstein, Michael Greve, Joshua […]
Author Archive | Will Baude
Is There a New Filibuster Rule?
What has the Senate actually done so far, with respect to the filibuster? Some of the reports of what happened today say that the Senate has adopted “new rules” eliminating the filibuster for some purposes. I’m not sure that’s true, in a formal sense. As I understand what happened, the Senate voted to ignore the […]
Chief Judge Kozinski on His Critics
David Lat has a report on a recent talk that Chief Judge Alex Kozinski gave at Yale Law School. It sounds like it was quite an interesting event, as almost all Kozinski events are. And for those readers who remember my post last month about the oral arguments in United States v. Maloney, Lat reports: […]
Jack Goldsmith on Labor Law
I did not know until relatively recently that in addition to blogging at Lawfare, Harvard Law professor Jack Goldsmith blogs about labor law, at a newish project called “On Labor.” (“On Labor” is also home to Ben Sachs, another Harvard Law professor and one of the greatest labor law experts in the country.) Goldsmith has […]
My SCOTUSBlog Argument Recap of Walden v. Fiore
There were a lot of high-profile cases argued at the Court this week, but one case that was argued was Walden v. Fiore, the personal-jurisdiction/venue dispute about a deputized DEA agent who seized a bunch of money from some professional gamblers. I’ve posted my assessment of the oral argument at SCOTUSBlog: As the first few […]
“Great” Powers and Federal Power Over Treaties
In my new article, Rethinking the Federal Eminent Domain Power, I begin by explaining a theory of the Necessary and Proper Clause that I call the idea of “great powers.” Put simply, the idea is that there are some powers that are sufficiently important that they cannot be implied through the Clause, even if they […]
What Questions Will Be Resolved By Bond v. United States?
Tomorrow the Supreme Court will hear argument in Bond v. United States, a case about a conviction under a statute that purports to implement a chemical weapons treaty. The arguments at the Court raise basic questions about the scope of the treaty power and the scope of Congress’s ability to implement that treaty power. While […]
Chief Justice Roberts Cites a Law Review Article in Marek v. Lane
Remember all of the recent discussion about the uselessness of law review articles, and the way nay-sayers like to invoke Chief Justice Roberts’s remark about “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria”? Today the Chief Justice issued an opinion respecting the cert denial in Marek v. Lane, a challenge to the […]
My Talks about “Great Powers” and Eminent Domain Next Week
Next week I’ll be giving two talks about my most recent article (and I think it’s my best!) — Rethinking the Federal Eminent Domain Power. Here’s Ilya’s JOTWELL post about the piece. (Even if you think you don’t care about the federal eminent domain power, I promise it’s far more interesting than that, since it’s […]
“The designation ‘That innocent man’ would also be acceptable.”
A Tennessee prosecutor in the case of State v. Powell apparently moved to preclude the defense from referring to his side as “the government.” The defense lawyer had an entertaining response. You can get the whole motion here, but I’ve reproduced most of it below: [NOTE: I’VE ALSO UPDATED BELOW THE FOLD WITH MORE INFORMATION.] […]
My SCOTUSBlog Argument Preview on Walden v. Fiore
I have just posted my first post as an occasional blogger on SCOTUSBlog — a preview of the argument next week in Walden v. Fiore. An excerpt: The facts sound like the beginning of one of the Court’s many constitutional tort cases. Gina Fiore and Keith Gipson are professional gamblers who were — like millions […]
Missouri Marital Benefits Decision (and the Conceptual Question of Subset/Superset Discrimination)
Today, the Missouri Supreme Court decided Glossip v. Missouri D.O.T., a case brought by a man seeking survivor’s benefits from the death of his same-sex partner, a Missouri patrolman. Missouri does not let same-sex couples marry, nor recognize same-sex marriages from elsewhere. But Missouri law provides survivor’s benefits only to married couples. So Glossip argued […]
The Strange Career of Judge Gary Kreep
Last year here in San Diego, we had a funny judicial election for a local Superior Court judgeship. The two candidates were Gary Kreep and Garland Peed, and at the time their names caught my eye not only for the obvious juvenile reasons, but because Peed listed his career as a prosecutor, and Kreep described […]
Posner’s “About Face” on Crawford Continues Turning About
Two weeks ago, Jonathan noted that in an interview with Mike Sacks of the Huffington Post, Judge Richard Posner said that he thought he’d been wrong to uphold Indiana’s voter ID statute in Crawford v. Marion County Election Board. In more recent comments (here at The New Republic which are clarified here at the Wall […]
Same-sex Marriage in Oklahoma (under Tribal Law)
This story has an interesting wrinkle in the question of which marriages count for purposes of federal law. Two men were married by the Cheyenne & Arapaho tribes in Oklahoma. The marriage is apparently permitted by tribal law even though Oklahoma law would not permit it. (Thanks to Chad Flanders for the link.) The news […]