Archive | Uncategorized

Time for a VC Reader poll, asking for your views and your politics: Do you support today’s filibuster reform in the Senate? Yes, and I tend to vote Republican No, and I tend to vote Republican Yes, and I tend to vote Democratic No, and I tend to vote Democratic Yes, and I don’t tend […]

This is an historic moment on our constitutional history. With the change of Senate rules today by a simple majority to [allow a simple majority to] close debate on judicial nominations, a Rubicon has been crossed. Restoring the Lost Constitution has now been made far more feasible, and will make the 2014 & 2016 of enormous […]

Not in a drug case, or a slander case, but a contract case, Beastie Boys v. Monster Energy Co. (S.D.N.Y. Nov. 4, 2013). The relevant question was whether a response of “Dope!” conveyed a license to use copyrighted work; here’s the heart of the court’s analysis (paragraph breaks added): In proper context, the word “Dope!” […]

Alan K Henderson offers this Photoshop contribution:

It was an honor, and a real hoot.  

The Leahy-Sensenbrenner USA FREEDOM Act puts the Foreign Intelligence Surveillance (FIS) court in charge of shaping, overseeing, and enforcing minimization guidelines in connection with section 215, pen/trap orders, and section 702, largely taking the Attorney General out of the process of writing minimization guidelines. I’m appalled, because the FIS court has taken control of minimization […]

As they say, “Better than n guilty men go free than one innocent man be punished.” See also 146 U. Pa. L. Rev. 173 (1997). But how do you figure out what value of n you think the legal system should adopt? Easy — just do this set of hypotheticals: 1. Suppose you have a […]

Lots of people liked this very much, and I’m one of them, even though I almost never much care for ads. Thanks to GeekPress for the pointer.

Here are the last two segments of my SCOTUSBlog “On Camera” interview.  Kudos to interviewer Fabrizio di Piazza for his insightful questions that seemed to anticipate where my thoughts were going next. Being there:   Justice’s Arc:

In today’s Wall Street Journal, I review Clark Neily’s most excellent book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government.  Here is a taste: In “Terms of Engagement,” Clark Neily draws upon his extensive experience as a lawyer for the libertarian Institute for Justice to expose this pervasive legal maneuvering […]

In the past few months, at least two articles have come out that apply behavioral law and economics to the analysis of bank overdraft protection. One by Bubb and Pildes (forthcoming in the Harvard Law Review) and the other by Lauren Willis in The University of Chicago Law Review. Both articles make the same claim–that there are situations in […]

Headline seen on a newspaper story in Lexis/Nexis: PENGUINS CALL UP GIBBONS I take it that this is the print headline; the online headline for the story is different.

I cannot say I was particularly impressed with Ian Millhiser’s article, How Conservatives Abandoned Judicial Restraint, Took Over The Courts And Radically Transformed America, except insofar as it was actually pretty impressive how he was able to dredge up, dust off, and then somehow include in a single essay pretty much every Leftie trope about conservative […]

I’ll be speaking at noon on Rehabilitating Lochner for the Federalist Society, with comments from Prof. Laura Weinrib. Weinrib, I should mention, is doing some really interesting work on how left-leaning jurisprudence, which had been largely indifferent to civil liberties in the Progressive era, came to embrace them soon thereafter. Come by if you’re in […]

Here is the panel on Textualism and Constitutional Interpretation from the Federalist Society Lawyer’s Convention last Friday.  It was a dynamite line-up with the super smart (and fellow Guggenheim Fellow) Richard Primus (Michigan), conservative originalist John McGinnis (Northwestern), and originalism critic Mitch Berman (Texas).  I go first to defend originalist constitutional interpretation and distinguish it […]