I’ve blogged before about Obergefell v. Kasich, the first post-Windsor decision to raise the very interesting question of whether states are required to recognize out-of-state same-sex marriages. I’ve now written a short essay on that question, which is forthcoming in the NYU Journal of Law and Liberty’s inaugural Supreme Court Review-Preview. Here is the introduction: […]
Author Archive | Will Baude
Michael Dorf on the Social Practice of Originalism
Michael Dorf has an interesting blog post recounting some of his Constitution Day remarks: Suppose that Americans decided tomorrow to abandon the Constitution and to organize our legal and political systems in some other way. . . . [N]o one disputes that it would be possible — as a matter of brute fact — for […]
Insensitivity and Good Intentions in Commemorating 9/11
Sometimes it is hard to know what one is supposed to do or say about a tragic event. Yesterday a manager of a Marriott hotel here in San Diego put out coffee and mini-muffins for half an hour in the morning, “in memory of those we lost on 9/11.” Somebody offended by this posted a […]
President Obama and Compliance with Domestic Versus International Law
Last week I asked whether Presidents have a stronger obligation to obey domestic law than they do to obey international law, and suggested at least one argument for that view. In a very interesting pair of posts, Marty Lederman provides reason to think that President Obama may have this view as well. Treaties have legal […]
Events in Salt Lake City and Chicago Next Week
If you’re in Salt Lake City, you might be interested in this event: Next Thursday at noon, I’ll be speaking at a CLE luncheon for the Constitutional Law Section of the Utah Bar. I’ll be joined by co-conspirator and University of Utah law professor Paul Cassell, as well as professors Carissa Hessick and Amy Wildermuth, […]
“Country Music is … Like Benjamin Franklin.”
Pseudonymous blogger and political theorist “Miss Self-Important” has an interesting and entertaining post in defense of country music that I thought I’d share. My two favorite passages: Country music’s virtue is its adherence to the view that music has real emotional power, and that lyrics are part of that power. If a song bothers with […]
The Relevance of the “Size or Commercial Nature” of a Marijuana Business
I agree with Ilya that DOJ’s new marijuana federalism memo leaves a lot to be desired, but there was point in it that I was pleased (and surprised) to see. The 2011 Cole memo about medical marijuana spoke very disparagingly about large, profitable operations: The Department’s view of the efficient use of limited federal resources […]
What Kind of a Theory is Originalism?
Mike Rappaport has an interesting post about how to justify originalism. In particular, Rappaport writes about what kind of a theory originalism is. Is it a “normative” theory (what kind of theory would produce good policy), an “interpretive” theory (what kind of theory actually assesses the meaning of the document) or what I’d called a […]
IRS Will Recongize Same-Sex Marriages Regardless of Where Couples Reside
Today the Treasury department announced that it will recognize all same-sex marriages valid in the “place of celebration” regardless of where the couple now lives. This is particularly noteworthy because it seems like a policy change. It had generally been thought that the IRS deals with other questions of marital validity by looking to residence. […]
When Do We Care If Presidents Break “The Law”?
Ilya’s post about the unconstitutionality of a military intervention in Syria and Jack Goldsmith’s post about the problem under international law prompted me to wonder: Should we feel the same way about Presidential violations of domestic and international law, or are the two kinds of law morally different? Obviously different people can have different intuitions […]
Sachs on Personal Jurisdiction and Authority
Speaking of Steve Sachs and civil procedure, I was recently reminded of this passage, from a recent article by Steve, on the question of whether the Constitution’s limits on personal jurisdiction focus on convenience and fairness or on something more like sovereignty (an issue that may well come up again in next term’s personal jurisdiction […]
When Is Ignorance of Consanguinity Bliss?
For the past two days, the most-read article on Slate has been this “Dear Prudie” column about a man whose unacknowledged son is unwittingly marrying his cousin. The dispute presented to Emily Yoffe (Prudie) is whether to alert the couple that they are cousins. Yoffe’s response is a strong recommendation to keep quiet: As it […]
An Excellent Example of a Scholarly Amicus Brief
Eugene had some posts a while back about good amicus briefs, and now that I’m here I wanted to mention an unusually good academic amicus brief recently filed at the Supreme Court — that of Professor Stephen E. Sachs as amicus curiae in Atlantic Marine v. U.S. District Court (although the real respondent is J-Crew […]
San Diego’s Recall Election and California Constitution Art. 3, Sec. 3.5
San Diego’s mayor, Bob Filner, has been accused of widespread sexual harassment (and even assault). He is the subject of a recall petition, and today marks the official beginning of the signature-gathering period. But San Diego’s laws governing recall are both somewhat confusingly-written, and remarkably stringent. The city attorney has already issued three legal opinions […]
Should Senator Wyden Reveal Classified Information on the Senate Floor?
I’ve seen some chatter on the internet about the possibility of a member of Congress disclosing classified information. For example, the Hill discusses this Rolling Stone interview in which Senator Ron Wyden said that he considered (and apparently rejected) disclosing classified information about NSA activities on the floor of the Senate. How would this work? […]