In response to my post about today’s orders list, I’ve heard the suggestion that Harris v. Quinn is a “sleeper” case in which the Court might overrule or dramatically limit its prior precedent in Abood v. Detroit Board of Education. Abood was a First Amendment/employment decision that says basically that public employers can require all […]
Author Archive | Will Baude
The Long Conference Orders List, Part One
It’s one of my favorite days of Fall — the release of the orders list from the Supreme Court’s long conference — the day that cert petitions and other motions have been waiting for all summer. The Court has split the orders list into two, releasing grants (and a few other time-sensitive things) today, and […]
Are Judges “Judicial Executioners”?
A provocative blog post on those who want to be judges: The best way to think about it is to ask yourself this question: “Am I a willing judicial executioner, a person who consciously does great harm to other human beings by faithfully executing the extraordinarily harsh national criminal laws?” Those who covet a federal […]
Could The New Jersey Civil Unions Case Go to the Supreme Court?
Michael Dorf has an interesting and careful post where he analyzes whether last Friday’s decision in Garden State Equality v. Dow (the New Jersey civil unions case discussed here) raises a question of federal law reviewable by the Supreme Court. While the opinion is ambiguous with respect to the key question, he concludes that the […]
Thinking about Gridlock on the Eve of a (Potential) Government Shutdown
As the government-shutdown political theater continues to unfold, I naturally find myself wondering whether to blame the House for passing a spending bill that the Senate and President don’t like, or the Senate for passing a bill that the House doesn’t prefer either. This leads me to thinking about The Phenomenology of Gridlock, a recent […]
Understanding Today’s Ruling About New Jersey Civil Unions
A New Jersey trial court just invalidated New Jersey’s current civil union regime, holding that the state is required to let same-sex couples marry, not just get civil unions. I’ve blogged about this issue before, but let me quickly summarize the situation: Both sides of the litigation agree that same-sex couples are entitled to access […]
Judge Weinstein’s Reply to the Second Circuit
It looks like Judge Jack Weinstein is releasing child pornography opinions almost as fast as we can blog about them. Orin has already posted about the Second Circuit reversing the sentence in United States v. Reingold yesterday. Later that same day, Judge Weinstein issued a nine-page opinion decrying the injustice of the decision — citing […]
New Talent for October Oral Arguments
The Supreme Court’s 2013 October Term begins in a few weeks, and while the hearing list has not yet been released, the arguments are shaping up to be interesting. — Erin Murphy, my immensely talented co-clerk and “protege of former Solicitor General Paul Clement” will be arguing McCutcheon v. Federal Election Commission, an interesting challenge […]
Legal Systems Very Different From Ours
I’ve just started reading a very interesting draft book by David Friedman, called Legal Systems Very Different From Ours. It includes chapters on “Gypsy Law,” “Amish Law,” “Jewish Law,” “Islamic Law,” “Somali Law,” “Athenian Law,” “Irish Law,” “Chinese Law,” and “Plains Indian Law,” as well as a number of analytical chapters connecting these legal systems. […]
Murder Prosecution Raises Multiple Same-Sex Marriage Recognition Questions
A current murder prosecution in Kentucky happens to simultaneously raise two different same-sex-marriage recognition problems that I’ve previously blogged about. In Kentucky, as in many states, spouses don’t have to testify against one another about things they said while married. Ms. Bobby Jo Clary is on trial for murder, and the state wants her partner, […]
28 U.S.C. 2403(a) and State Court Litigation
One of my favorite statutes, 28 U.S.C. 2403(a), says that when a federal court is hearing a case in which the constitutionality of a federal statute is drawn into question, the court is supposed to notify the Attorney General if the United States is not already a party: In any action, suit or proceeding in […]
The Obvious But Underappreciated Point About Federal Power and Equality
Mike Rappaport has a post at the Liberty Law Blog making a seemingly straightforward but surprisingly underappreciated point: There is good reason to think that the Fourteenth Amendment’s equality requirement was not originally meant to apply to the federal government. People frequently try to challenge various originalist views about equality by pointing to the actions […]
“Average is Over” and The Future of Lawyers
I’ve just finished reading, and rather enjoyed, Tyler Cowen’s latest book: Average is Over. At a macro level, it is a claim about the dramatic changes we can expect in the economy and our society over the next century. But it has a lot of strange side discussions I wasn’t really expecting. I still can’t […]
My New York Times Entry on Retroactivity and Juvenile Sentencing
The New York Times “room for debate” feature is on the surprisingly technical question of the retroactivity of Miller v. Alabama — i.e. should those currently sentenced to life without parole for crimes committed while they were juveniles be allowed to reopen their final convictions? (Here’s a ton of background from Doug Berman for the […]
New Labor Guidance on Same-Sex Marriage and ERISA
Thanks to the indispensable Chris Geidner, I see that the Department of Labor has issued “guidance” about how to deal with same-sex marriages under ERISA. Like just about every federal agency other than the Social Security Administration, the labor department takes the view that a marriage is valid for federal purposes if it was valid […]