jurisprudence

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 »

Obamacare is in trouble with the law again

Featured image Four separate pending lawsuits suits, filed in various federal district courts, challenge the legality of a crucial IRS rule authorizing tax credits for the purchase of health insurance on federally run health care exchanges. Each suit alleges that the IRS rule contravenes the plain text of the ACA (Obamacare) because the statute only authorizes tax credits (and subsidies) for the purchase of insurance in an exchange “established by a state” »

Judge Posner’s weak and inappropriate mea culpa

Featured image Judge Richard Posner, in his latest book Reflections on Judging, has declared that he made a mistake in upholding Indiana’s voter-ID law. Posner wrote the majority opinion in the case. The decision was affirmed by the Supreme Court, by a vote of 6-3 with the lead opinion by Justice Stevens. Judge Posner blames the lawyers for his mistake — always a good ploy. In an interview, he claimed that the »

Dez Wells fights back

Featured image Dez Wells is the best basketball player on the University of Maryland’s men’s team. He came to Maryland after being kicked out of Xavier University due to allegations that he sexually assaulted a female student. My first reaction to Wells’ transfer was disappointment that the team I support would accept a player deemed morally unsuitable by his prior school. But it quickly became apparent to me that Xavier treated Wells »

Chad Ochoclinko

Featured image Former NFL star Chad Johnson (known as Chad Ochocinco for a time during his playing days) was sentenced to 30 days in jail for a probation violation in a domestic violence case (he head-butted his wife). Johnson was set to serve no jail time, thanks to a plea bargain. But the judge rejected the deal after Johnson slapped his attorney’s backside when the judge asked him if he was satisfied »

In Praise of Slow Learners

Featured image There’s this much to be said in praise of Jonathan Turley, professor of “public interest law” at George Washington University Law School, and frequent bobblehead on cable TV shows: at least he isn’t a supercilious smug-mugger like Jeffrey Toobin.  In addition, unlike Toobin, Turley often gets things right. But come on man, you’re only just discovering now that the federal administrative bureaucracy—the “fourth branch of government”—has become problematic?  From Turley’s »

Live from the Upper Midwest Employment Law Institute

Featured image At the moment I am listening to the ostentatiously liberal Judge Mark Bennett of the United States District Court for the Northern District of Iowa summarize the Supreme Court’s employment law decisions of the past year. Judge Bennett wants us to know that he has got his mind right (i.e., left), and how. I understood that from his disparagement of the conservative Supreme Court justices as “the usual suspects.” That »

Five notes on five takes

Featured image Glenn Reynolds not only teaches law at the University of Tennessee College of Law, where he is the Beauchamp Brogan Professor of Law, he writes regular newspaper columns and books of general interest, conducts interviews for InstaVision, and scours the Web for material of interest to flag on InstaPundit, which looks like it would have to be a full-time job all by itself. And he also publishes readable law review »

The barbarism in Philadelphia

Featured image I first became aware of the Gosnell case through Joseph Bottum’s February 2011 Weekly Standard article “To live and die in Philadelphia” and Clarke Forsythe’s January 2011 Weekly Standard online column “The Supreme Court’s back alley runs through Philadelphia.” Bottum’s and Forsythe’s pieces were based on the grand jury report in the case, which has now gone to trial. The Standard takes another look at the Gosnell case today, not »

CRB: Gay rites

Featured image We conclude our preview of the new issue of the Claremont Review of Books this morning with a humdinger. Thanks to our friends at the CRB for the privilege of previewing the issue for Power Line readers. Please think about subscribing here for the ridiculously low price of $19.95 and getting access to the whole shooting match online immediately in addition to home delivery of the hard copy at some »

Affirmative action forever

Featured image In an excellent Wall Street Journal column James Taranto holds out hope that the Supreme Court is on the verge of ending the regime of racial discrimination that it has licensed in higher education. I hope Taranto is right, but I think pessimism is warranted. I’m taking the liberty of reiterating my own observations on the subject below. The principle of equal treatment without regard to race is one that »

Report: The Supreme Court will probably duck the merits of the Prop 8 case

Featured image Tom Goldstein, as shrewd an observer of the Supreme Court as anyone I’m aware of, believes that the Court “probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.” The Court could avoid reaching the merits by deciding that the defenders of Prop 8 lack standing to »