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Before I go on to explain the basis for the framework I propose in my article, I want to offer a few thoughts on one last preliminary issue, namely, why modern presidents may be tempted to use non-enforcement as a policy tool. We live in an age of presidential administration and partisan gridlock. The public […]

As I indicated in my previous post, before I go further into the framework that I believe governs the scope of executive enforcement discretion, I want to offer a few thoughts on why the problem is hard to think about and why recent presidents have resorted to non-enforcement of statutes as a means of advancing […]

From Distractify. I do not vouch for their authenticity, but I laughed out loud at some of them. Thanks to GeekPress for the pointer.

I have a book review essay at the Liberty Law Blog on Taleb’s new book, AntiFragile. I use the central point of the book as a jumping-off point to discuss how Taleb’s insights might be applied to strengthen the financial system and make it more resistant to panics and crises. Josh Blackman adds a few thoughts […]

Today is Saturnalia, an ancient Roman holiday whose celebration has become a Volokh Conspiracy tradition. OK, in reality it’s only a tradition in so far as I put up a post about it every year. But that’s as traditional as anything in the blogosphere is ever likely to get. The Encyclopedia Romana describes this exciting […]

Hello! I’m delighted to be guest-blogging this week about my forthcoming article, “Enforcement Discretion and Executive Duty.” I’m grateful to Eugene for the opportunity to participate in the blog and for his introduction yesterday, and to Will for his generous post about my article a few weeks ago. My article will be published in the […]

A New York Times story out on Judge Leon has me quoted as saying: “He’s very passionate,” said Orin S. Kerr, a professor at the George Washington University Law School and a defender of the N.S.A.’s surveillance programs, who said he found the judge’s ruling short “on legal reasoning.” Just to be clear, I told […]

The degree to which a political party leans libertarian is proportional to the number of years since the party last held the White House.

Over at Dissenting Justice, Law prof Darren Hutchinson points out reasons that the DC Circuit might reverse Judge Leon without reaching the merits of the Fourth Amendment question he decided. According to Hutchinson: [T]he Supreme Court is very reluctant to enjoin policies related to national security. This is so, even if the defendant has violated […]

UPDATE (post bumped in light of the update): I asked the lawyer whether he wanted to say something in response; here is what he passed along: I feel that the brief explained the position in a case which dealt with a narrow issue and not much positive caselaw except for one recent Seventh Circuit case. […]

I’m delighted to report that Zachary Price, who is now a Visiting Assistant Professor at the University of California Hastings College of the Law, will be guest-blogging this week about his Enforcement Discretion and Executive Duty (forthcoming in Vand. L. Rev.). Prof. Price has also written previously about the rule of lenity, the constitutionality of […]

As you can see in this very informative infographic and blurb, there’s been a LOT of activity recently, with a good deal more on the way, involving the question of whether Aereo’s technology (or that of a copycat service, formerly called “Aereokiller” and now “FilmOn”) constitutes a “public performance” of the underlying copyrighted TV shows. […]

In Saturday’s New York Times. Thanks to InstaPundit for the pointer.

And now for something completely different: In an astonishing opinion, Judge Leon of the DC District Court has held that the NSA’s bulk collection of telephony metadata violates the Fourth Amendment and has enjoined the entire program (stayed pending appeal). In this post, I’ll just describe Judge Leon’s reasoning. In another post later today, I’ll […]