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A year ago, I had a short post on a new decision interpreting the federal gambling laws: Is Playing Texas Hold’ Em a Form of Gambling? No, rules Judge Jack Weinstein, at least for purposes of the Illegal Gambling Business Act (IGBA), 18 U.S.C. § 1955, because Texas Hold’em “is not predominately a game of […]

Sometimes, it is difficult to explain to people the very substantial downside of a copyright (or other IP) regime.  Paul Heald’s new study, reported on here (“The Hole in Our Collective Memory: How Copyright Made Mid-Century Books Vanish”) should help on that score.  As the Atlantic’s headline puts it:  “A book published during the presidency of […]

So holds B.H. v. Easton Area School Dist. (3d Cir. Aug. 5, 2013). Here’s the Introduction (some paragraph and numbered list breaks added): Once again, we are asked to find the balance between a student’s right to free speech and a school’s need to control its educational environment. In this case, two middle-school students purchased […]

So holds last week’s district court decision in In re Archdiocese of Milwaukee (E.D. Wis. July 29, 2013). I’m skeptical about this result. I do think that the Religious Freedom Restoration Act should be read to apply to such federal litigation, and it may well be that requiring a church to pay funds that it […]

Two updates for those following the XKeyScore debate: Joshua Foust has written an excellent post that clarifies a few things I didn’t cover in my earlier post. He notes that XKeyScore allows analysts to recover only material that NSA has collected and stored; that’s important because just being able to enter the President’s email address is not […]

Jack Goldsmith at Lawfare asks a good question: How is the NSA Director Alexander’s claim that “we can audit the actions of our people 100%” (thus providing an important check against abuse) consistent with (a) stories long after Snowden’s initial revelations that the White House does not “know with certainty” what information Snowden pilfered, (b) reported NSA uncertainty weeks after […]

I’ve seen several links to the Washingtonian piece on Supreme Court signing bonuses. The interesting claim in the piece is that hiring Supreme Court clerks is a “gamble,” because it’s possible they’ll leave after a very short period of time but keep all the money. (“So how can a law firm ensure it’s betting on […]

The working paper is here, and it was released for comment yesterday. I’m generally skeptical of ABA reports, but there are a lot of promising ideas in this one. I don’t agree with everything in there, certainly, but there are some significant ideas in there worth taking seriously.

Michelle Friedland, a former clerk for Justice O’Connor and lawyer at Munger, Tolles & Olson, was just nominated to the Ninth Circuit. I know Michelle and think very highly of her — she’s an excellent lawyer, and I think she’d make an excellent judge. As with Paul Watford — whose resume reads a lot like […]

My law school classmate Tim Edgar has a very interesting opinion essay in the Wall Street Journal arguing for greater transparency of the NSA’s surveillance activities. That message isn’t new, of course, but Tim’s unusual career gives him a special insight into the issue: He’s a former ACLU lawyer who then went to work for […]

I think my co-blogger Stewart Baker is missing the point of Michael Vatis’s post on the Obama campaign and the CFAA. Vatis argues that the Obama campaign violated the CFAA if you accept DOJ’s ridiculous view that violating Terms of Service of a website is itself CFAA violation. But Vatis does not argue that DOJ […]

A few weeks ago, Jonathan Adler noted the recent D.C. Circuit decision in Ass’n of Am. Railroads v. DOT. I now have a post up on the Reason Foundation website about it. Here’s an excerpt: On July 2, 2013, in Ass’n of American Railroads v. DOT, the D.C. Circuit struck down a delegation of authority […]

The prosecutorial discretion built into the Computer Fraud and Abuse Act is already controversial in the blogosphere, where leftie admirers of Aaron Swartz and libbie opponents of prosecutorial discretion have made common cause against the law.  And indeed it’s true; forfeiture laws aside, the CFAA is among the most flexible tools in a federal prosecutor’s […]

I ended up testifying again on FISA reform yesterday, this time to Senate Judiciary.  While mostly repeating my past testimony, I added a critique of two recent proposals for reforming FISA: One idea is to declassify FISA court opinions. Another is to appoint outside lawyers with security clearances who can argue against the government.  The […]

Readers will recall that when Glenn Greenwald released the FISC order indicating that the NSA was getting all domestic telephony metadata, that order was designated the “secondary order.” We have since heard that there was a “primary order” covering what the government is allowed to do with the data obtained under the “secondary order.” The […]