Law

A framework for analyzing the Colorado wedding cake case

Featured image Listening to the oral argument before the Supreme Court in the wedding cake case, it struck me how artificial the discussion was. Much of it centered on whether and under what circumstances cakes are speech. Bizarre. I don’t blame the advocates or the current Justices for the content of the argument. They must be mindful of Supreme Court precedents whether or not, as a practical matter, they fit this case »

An encouraging oral argument in the Colorado cake case

Featured image The Supreme Court heard oral argument today in the Colorado cake maker case. The issue is whether Colorado can coerce a baker, Jack Phillips, into making a custom cake for a gay wedding when he objects to gay marriage on religious grounds. It quickly became apparent that, to no one’s surprise, Justice Kennedy’s vote will likely decide the case. The questions Kennedy asked created some discomfort for both sides, but »

The left clings to power at the CFPB

Featured image The Consumer Financial Protection Bureau (CFPB) is the federal agency that’s supposed to protect consumers in the financial sector. It was created by the Dodd-Frank Act. The CFPB’s director heads the agency free from presidential supervision. Given the CFPB’s broad authority over the U.S. economy, the director “enjoys significantly more unilateral power than any single member of any other independent agency.” So said the U.S. Court of Appeals for the »

The administrative state revisited

Featured image As it wound up its 2017 National Lawyers Convention this past Saturday, the Federalist Society convened an all-star panel to discuss administrative agencies and the separation of powers. Newly minted Eleventh Circuit Judge Kevin Newsom served as the panel’s moderator. The panel of law professors included Boston University’s Gary Lawson, the author of a classic article on administrative law, and Columbia University’s Philip Hamburger, author of (in my estimation) the »

D.C. anti-Trump rioters hide behind bogus free speech claims

Featured image The Washington Post reports on the trial of six defendants who are charged with what the Post calls the “fiery, glass-shattering civil disturbance on President Trump’s Inauguration Day.” (“Fiery” as in setting fires). The trial began today. The Post story was written after jury selection but before the opening statements and the presentation of evidence. The defendants face felony charges of inciting a riot and destruction of property. Each offense »

Linda Greenhouse freaks out

Featured image Linda Greenhouse, the former Supreme Court reporter for the New York Times, is often wrong but never in doubt. These days, she has no doubt that “we’re all living in Sheriff Joe [Arpaio] country now.” How so? Because of the Trump administration’s position on whether a 17 year-old illegal immigrant in federal custody can obtain an immediate abortion on demand. A three-judge panel ruled, in a 2-1 decision, that the »

Should Boalt Get the Boot?

Featured image Lawyers will know that U.C. Berkeley’s law school has long been known as Boalt Hall, named for John Boalt, a prominent 19th century California lawyer whose estate donated the money for Berkeley to start a law school way back in 1906. But there’s a problem: it seems Mr. Boalt harbored some racist views, in particular against the Chinese. You can read a paper Boalt delivered in 1877 entitled “The Chinese »

Judge refuses to dismiss case against Menendez

Featured image The bribery case against U.S. Senator Bob Menendez will proceed, and eventually be resolved by a jury, the trial judge ruled today. Judge William Walls rejected a motion by the defense to dismiss the charges against Menendez. A few days ago, it looked like the defense motion would succeed. Judge Walls initially indicated a willingness to accept Menendez’s position that the prosecution’s bribery case cannot withstand the Supreme Court’s decision »

Have Trump’s tweets aided the kneelers’ legal position?

Featured image The Washington Post wants to create that impression. Its story on the subject is called (in the paper edition): “Trump may have bolstered kneelers’ legal position.” No sound argument supports this notion. The Post’s Tracy Jan who, according to the paper “covers the intersection of race and the economy,” peddles the view that Trump’s talk about revoking the NFL’s tax breaks means that the government is now infringing free expression. »

Initial thoughts on the Weinstein employment contract

Featured image Earlier today, Scott wrote about Harvey Weinstein’s employment contract. Reportedly, it provides that if Weinstein “treated someone improperly in violation of the company’s Code of Conduct,” he must reimburse the company for settlements or judgments. Additionally, “[Weinstein] will pay the company liquidated damages of $250,000 for the first such instance, $500,000 for the second such instance, $750,000 for the third such instance, and $1,000,000 for each additional instance.” The contract »

Supreme Court dismisses challenge to travel ban

Featured image Yesterday, the Supreme Court dismissed a challenge to a now-expired version of President Trump’s 90-day ban on travel from six countries. The U.S. Court of Appeals for the Fourth Circuit had upheld that challenge. The Supreme Court concluded that the challenge is moot because the ban has expired. A new travel ban has superseded it. The Court stated: We granted certiorari in this case to resolve a challenge to “the »

Our Crazy Legal System

Featured image The Associated Press reports on a 3rd Circuit decision involving a movie theater: Federal disability law requires movie theaters to provide specialized interpreters to patrons who are deaf and blind, an appeals court said Friday. The Philadelphia-based 3rd U.S. Circuit Court of Appeals ruled against Cinemark, the nation’s third-largest movie chain, in a case involving a Pennsylvania man who wanted to see the 2014 movie “Gone Girl” and asked a »

Obama weighs in on DACA, disingenuously

Featured image Former President Obama takes to Facebook to attack President Trump’s decision to phase out DACA. As one would expect, Obama’s piece is a masterpiece of misdirection. Scott has posted the full text of Obama’s statement. As Scott says, the former president indulges in his favorite pastimes: question begging, condescension, and attempting to make his opponents out to be indecent, immoral and stupid. I found this passage from Obama’s statement telling: »

Dreams from Obama

Featured image One of the defining characteristics of President Obama that we disliked most was his disdain for the rule of law. If he could get his way, he might take the prescribed route to his destination. If not, he took a shortcut, with his phone and his pen. He even bragged about it. Obama’s DACA program — a supposedly temporary stopgap — represents the quintessence of his monarchical disposition. Before he »

President Trump and the rule of law

Featured image President Trump should have ended the DACA program, or at least announced its phasing out, as soon as he took office. Nonetheless, his decision to announce its phasing out now, assuming he sticks to it, represents a victory for the rule of law. The legal status of “dreamers” is a matter for Congress, not the executive, to decide. Even President Obama said so before he elected to decide the matter »

Trump expected to end DACA, and should

Featured image By all accounts, President Trump is about to phase out the DACA program. DACA grants work permits to about 800,000 undocumented immigrants brought to the United States as children Trump reportedly will delay terminating the program for six months. This gives Congress time to pass legislation to replace it, if Congress chooses to do so. Trump has made the right decision. As Hans von Spakovsky argues, under our Constitution, Congress »

Justice Scalia on “the very human realities” in Arpaio’s Arizona

Featured image Whichever way one comes down regarding President Trump’s pardon of Sheriff Joe Arpaio, I think it’s important to recognize the context in which Arpaio took the over-zealous law enforcement actions that led to his conviction. That context was described by Justice Scalia in his opinion (concurring in part and dissenting in part) in Arizona v. U.S., a decision that struck down in large measure an Arizona immigration enforcement law called »