The 9th Circuit in Peruta v. San Diego upheld longstanding precedent that the concealed carrying of firearms may be be prohibited. All 11 judges of the en banc court agreed bearing arms that are concealed is not, in itself, part of the Second Amendment right as that right has been traditionally understood. To the majority of seven […]
N.C. court strikes down ban on posting ‘personal or sexual information’ about minors ‘with the intent to torment’
A North Carolina statute makes it a crime — “cyber-bullying” — to, among other things, “post or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor,” “with the intent to intimidate or torment a minor.” “Torment” isn’t defined in the statute, but the state argued that it means […]
The calf-paths of the mind
I came across the following discussion of the case method in an Alabama Supreme Court opinion, Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156, 177-78 (Ala. 1991). Justice Houston in that case quoted it from Justice Jones in Lorence v. Hospital Board of Morgan County, 320 So. 2d 631, 634-35 (Ala. 1975). (This has […]
Court blocks California ban on using Assembly video in political ads
My co-counsel Brad Benbrook reports that Judge Morrison England has granted our request for a preliminary injunction against the enforcement of Cal. Gov. Code § 9026.5 against our clients (the Firearms Policy Coalition and others). Section 9026.5 makes it a crime to rebroadcast televised California Assembly proceedings “for any political or commercial purpose, including, but […]
The “Big Sort” and other potentially harmful political effects of voting with your feet
The just-published second edition of my book Democracy and Political Ignorance: Why Smaller Government is Smarter argues that we can reduce the harm caused by widespread political ignorance by limiting and decentralization government power, which will enable more issues to be decided by “voting with your feet” instead of ballot box voting. Foot voters have […]
Why should we care about speech restrictions at private universities?
Back in January, appellate lawyer Howard Bashman of the How Appealing blog came to Emory, and we had a nice discussion about free speech on university campuses. C-SPAN was filming, and I only just found out that the piece aired at some point — here’s the link to C-SPAN. As part of my comments on […]
Who is Gary Johnson?
Samantha Bee has the scoop.
When conservative justices support criminal defendants (and liberal justices do not)
We generally assume that “conservative” judges are more likely to support the police and prosecutors, whereas “liberal” judges are more likely to support criminal defendants and safeguard the rights of the accused. No doubt these stereotypes are grounded in observed behavior. Yet there are cases and causes that confound this conventional account. Today’s Supreme Court […]
Is criminal law banning political use of California Assembly video justified by ‘copyright infringement concerns’?
I blogged two weeks ago about a First Amendment challenge to California Penal Code § 9026.5, which makes it a crime to rebroadcast televised California Assembly proceedings “for any political or commercial purpose, including, but not limited to, any campaign for elective public office or any campaign supporting or opposing a ballot proposition submitted to […]
Video of my Cato Institute talk about “Democracy and Political Ignorance”
The video of my talk at the Cato Institute about the just-published second edition of my book Democracy and Political Ignorance: Why Smaller Government and Smarter is now available here. The event included questions and commentary by Kristen Cambell, Executive Director of PACE (Philanthropy for Active Civic Engagement), and John Samples of the Cato Institute. […]
Sex cases that depend upon what the meaning of the word ‘with’ is
Say you’re a lawyer, and state bar rules ban you from having sex “with a current client.” What if you’re having a three-way sexual encounter with your current client and the client’s girlfriend? Is that having sex “with” the client, because you and the client are having sex together (much like you might be going […]
The second edition of my book “Democracy and Political Ignorance” – and why I wrote it
The much-revised and improved second edition of my book Democracy and Political Ignorance: Why Smaller Government is Smarter has just been published by Stanford University Press. Here’s a brief summary of the book, and of the new material added in this second edition: One of the biggest problems with modern democracy is that most of […]
The Fifth Amendment limits on forced decryption and applying the ‘foregone conclusion’ doctrine
The U.S. Court of Appeals for the 3rd Circuit has a case pending on the Fifth Amendment limits of forcing a suspect to enter his password to decrypt a computer. The case provides an opportunity for the 3rd Circuit to correct an error in the 11th Circuit’s treatment of the same question, specifically on how to apply the “foregone […]
What sentence should the former Stanford swimmer have gotten?
A judge’s decision to sentence a former Stanford University swimmer to just six months in jail for sexually assaulting an unconscious woman has sparked outrage. The sentence has struck most observers as far too lenient. (Doug Berman’s post on the case makes the point as nicely as anyone — although the true “must read” here […]
The growing battle over the use of eminent domain to take property for pipelines
At the ThinkProgress website, Alejandro Davila Fragoso has an interesting article on the growing conflict over the use of eminent domain to seize property for pipelines: When an oil pipeline now poised to cut through four Midwestern states was first proposed in 2014, the project quickly got pushback from environmentalists and some landowners on the […]
Trump, Clinton, and the future of the courts – a reply to John McGinnis
Northwestern law Professor John McGinnis has posted a thoughtful response to my argument that a Donald Trump victory in the election is a greater threat to constitutional originalism than Hillary Clinton would be ((my post had criticized John’s earlier post on this subject. John makes some reasonable points. But his analysis ultimately falls short. He […]
Short Circuit: A roundup of recent federal court decisions
(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.) Peat-mining company would like to mine peat on Minnesota property. The Army Corps of Engineers issues a determination that the property is a regulated “wetlands,” which cannot be disturbed without a federal permit. Must the company spend […]
German court upholds fine for showing of ‘Life of Brian’ on Good Friday
TheLocal.de reports: “On Thursday . . . the High Court in North Rhine-Westphalia upheld a ruling from a lower court that ordered [Martin] Budich to pay a €100 fine” for organizing a public viewing of “Life of Brian” on Good Friday. “Showing the film was a deliberate act of rebellion against the ‘holiday laws’ which every […]
On Donald Trump and the Rule of Law (cont’d) — Episode 2 of ‘Celebrity President’
I’m not sure how to get people to start paying serious attention to what Donald Trump is saying in this campaign. His comments deserve serious attention — not because the comments themselves are serious or raise serious issues or serious ideas, but because they are being uttered by someone who could be president of the United States. […]
The conservative divide on Trump and the “how bad could it get” question
I’ve been following the reaction of policy-wonk conservatives, including many lawyers, to the likely nomination of Donald Trump as the Republican Party’s presidential candidate in the November election. By policy-wonk conservatives, I mean people such as the members of the Federalist Society; Republican staffers, past, current and future; employees of conservative and libertarian think tanks; […]
Prominent Harvard Law professor: ‘The rule of law’ and ‘the First Amendment’ are ‘almost entirely without content’
In my book “Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law,” I point out that “very ideas of the rule of law and the individual liberty that the rule of law was thought to protect came under a series of attacks in the legal academy from the [radical] left […]
Hillary Clinton on guns and the Second Amendment
A few weeks ago, an adviser to the Hillary Clinton campaign claimed that Clinton believes the Supreme Court’s decision in D.C. v. Heller, concluding that the Second Amendment protects an individual right to keep and bear arms, was wrongly decided. This comment was consistent with remarks Clinton made last year. These remarks, and resulting commentary, have […]
Alberto Gonzales’ dubious defense of Trump’s attack on Judge Curiel
Donald Trump’s claim that Judge Gonzalo Curiel, the federal judge presiding over the Trump University lawsuit is biased against him simply because he is “Mexican” has drawn nearly universal condemnation. Eugene Volokh offers a particularly thorough critique here. However, former Bush administration Attorney General Alberto Gonzales has (partially) come to Trump’s defense. Although Gonzales states […]
A response to Alberto Gonzales on Donald Trump and Judge Gonzalo Curiel
Donald Trump’s deplorable comments about the judge presiding over a Trump University lawsuit have drawn substantial comment, including from my co-bloggers Eugene Volokh and David Post. Few have sought to defend Trump’s suggestion that Judge Gonzalo Curiel’s Mexican heritage portends a conflict of interest or that the judge has otherwise demonstrated a lack of impartiality of […]
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