jurisprudence

Jeb to Conservatives: Drop Dead

Featured image Back in September in “Bush League De-Regulation,” I took note of Jeb Bush’s Wall Street Journal op-ed about his views on regulation. I wondered whether he really understands the problem sufficiently, and concluded: This is another sign that Bush, as good as he is in many ways, is not good enough. He doesn’t get the full depths of the problem. Like his dad and older brother. Today, as reported by »

Clint Bolick for SCOTUS!

Featured image Terrific news out of Arizona today, where Governor Doug Ducey has announced his appointment of Clint Bolick to the state’s Supreme Court. How great an appointment is this? Well, the folks at the Center for American Progress are having a cow: The Most Chilling Political Appointment That You’ve Probably Never Heard Of Unless you’re unusually familiar with libertarian legal activists (or you are a Republican presidential candidate) you probably have »

A personal look back

Featured image This past December brought to mind some of the happiest parts of my life. John Hinderaker’s retirement party accounted for a good share. Working with John turned into a friendship that has changed my life for the better. The party took me back to our professional relationship. We started writing columns and articles together on the side of our law practice at the end of 1991. In his usual style, »

Freddie Gray judge prosecuted police misconduct cases for DOJ

Featured image The trial of the first of the first of six Baltimore officers charged in the arrest and death of Freddie Gray began today in Baltimore with jury selection. Officer William G. Porter, 26, faces charges of manslaughter, second-degree assault, misconduct in office, and reckless endangerment because he allegedly did not get medical help for Gray when he complained of injuries after his arrest. None of the 75 potential jurors in »

The Best Law Journal in America?

Featured image The Harvard Law Review? The Yale Law Review? The Journal of Law and Economics perhaps? No: let me suggest it is The Green Bag, which I wouldn’t exactly call a law review, but somehow law journal doesn’t seem to quite fit it either. There’s nothing else like it. Call it, for lack of a better term, a compendium of legal things of interest, not always serious or even timely. You »

Justice Kennedy’s testimony about gridlock harkens back to Obamacare case

Featured image Justice Kennedy made an interesting comment today when he testified to Congress regarding the Supreme Court’s budget. Responding to a question about politically charged issues before the Court, Kennedy stated: We think an efficient, responsive legislation and executive branch in the political system will alleviate some of that pressure. We routinely decide cases involving federal statutes and we say, well, if this is wrong the Congress will fix it. But »

Federal district court rules against Obamacare subsidies on federal exchange

Featured image A federal district court in Oklahoma has ruled that the Obamacare statute means what it says: subsidies may not granted to people obtaining their health insurance through the federal exchange. In Pruitt v. Burwell, Judge Ronald White of the Eastern District of Oklahoma followed the reasoning of the panel in Halbig v. Sebelius, a ruling that the full D.C. Circuit, having been packed by the Democrats, recently vacated. The Oklahoma »

Breaking: DC Circuit Vacates Obamacare Decision

Featured image Call this the first fruits of the Obama-Reid plan to pack the DC Circuit Court of Appeals.  The DC Circuit has just vacated its July 22 decision in Halbig v. Burwell that struck down the federal subsidies for Obamacare in states that did not set up exchanges as the clear language of the statute said.  The DC Circuit will now hear the case en banc, which likely favors a reversal »

Drafting error vs. poor draftsmanship

Featured image Obamacare by its express and unambiguous terms limits Obamacare subsidies to people using health care exchanges “established by the State.” Thus, subsidies to people in the federal exchange are not permitted, as these exchanges obviously are not established by the State. However couched, the argument that subsidies should nonetheless accrue to people in the federal exchange boils down to the notion that the limiting language of the statute is the »

Breaking: Obamacare Takes Torpedo Below the Water Line

Featured image Wish I had time to get through the just issued DC Circuit Court of Appeals ruling striking down the IRS twisting of the Obamacare statute’s clear language on state-based exchanges (I’m at the Reagan Library all this week doing a Gipper 101 course for high school teachers—see photo nearby of Sunday night’s opening talk—and I have to be off momentarily for this morning’s classes), but this looks to be HUGE, »

The courts will not save us

Featured image George Will seems to me the preeminent political columnist of our era, with the possible exception of Charles Krauthammer. Will and Krauthammer are in a league of their own. Both are conservatives, of course, and you have to wonder who the liberals can put up against them. Tom Friedman? Maureen Dowd? Paul Krugman? E.J. Dionne? I don’t know. I come to question Will, however, not to praise him. He has »

Two cheers for judicial restraint

Featured image George Will’s latest column endorses judicial activism. He argues that judicial deference to the political process is misplaced because majorities should not enjoy a largely untrammeled right to make rules for everyone; because it’s not the case that most things legislatures do reflect the will of a majority; and because “government is almost never disinterested.” Ed Whelan offers what I consider a persuasive rebuttal to Will. He argues, as Will »

Jackson at Nuremberg

Featured image Reading a book on cross examination twenty years ago, I got interested in the Nuremberg trial. I followed up reading several books about the trial and then discovered that the whole trial transcript is accessible online. I read enough of the trial transcript to write an article about Supreme Court Justice Robert Jackson’s famously failed cross examination of Hermann Goering. Could it really have been so bad? I wrote an »

Walter Olson: The embarrassment of Slate

Featured image Walter Olson holds down the fort over at the Cato Institute’s Overlawyered site, but he felt that this post exceeded the length appropriate for that site. With Walter’s permission, we are pleased to publish it here: What happens when the legal analysts at Slate get things flatly wrong, in the service of generating a desired ideological frisson for their liberal-minded readers? Does anyone act embarrassed or make humble noises about »

Where will it all ENDA?

Featured image Today, the Senate is expected to vote on the Employment Non-Discrimination Act (ENDA), a bill to “prohibit employment discrimination on the basis of sexual orientation or gender identity.” Whatever the Senate does, the House almost certainly won’t pass the legislation. Thus, in a sense, the Senate vote is symbolic — a chance for Democrats to tempt Republicans into taking an increasingly unpopular position and a chance for some Republicans to »

Second Circuit slaps down judge in NYPD stop-question-and-frisk case

Featured image In the early days of Power Line, we got word that a noted jurist liked the site, but thought we should write more about Court of Appeals decisions. My thought, as a practicing lawyer, was that Power Line was a vehicle for me to write about things other than court decisions. Since I’m no longer a practicing lawyer, my only excuse for not writing about Court of Appeals decisions is »

Judge Posner’s mea culpa was a recantation

Featured image I wrote here about Judge Richard Posner’s “weak and inappropriate mea culpa,” wherein he declared that he made a mistake in upholding Indiana’s voter-ID law. But now, Judge Posner denies that he is recanting that opinion. In a post on the New Republic’s website called “I Did Not ‘Recant’ on Voter ID laws,” he asserts: I did not say [in Reflections on Judging] that my decision, and the Supreme Court’s »