D.C. Circuit Takes McGahn Case En Banc (Again)
Unless President Trump is re-elected, it is not clear this will matter.
Volokh Conspiracy
Judge Barrett: "For me to say, I am not willing to undertake it even though I think this is something important, would be a little cowardly and I would not be answering a call to serve my country."
"If we are to protect our institutions, and protect the freedoms, and protect the rule of law that is the basis for society and the freedom we all enjoy, if we want that for our children and our children's children, then we need to participate in that work."
Eighth Circuit Seals Published (Printed) Opinion, Later Grants Our Motion to Unseal
An attempt to protect litigant privacy meant that binding precedent was vanished from Westlaw.
Judge Barrett is asked about the Emoluments Clause litigation
Remember Emoluments?
Judge Barrett on the Lochner Era and the "Switch in Time"
Senator Hawley asks ACB about OWH's dissent.
Judge Barrett Refuses To Accept the Mythicized Account of Brown
You can't talk about the Court's strength in Brown, without acknowledge its impotence in Cooper.
A Qualified Defense of Supreme Court Confirmation Hearings
They have serious flaws, many of which are on display this week. But we are still better off with them than without them.
Classes #16: The Scope of the 14th Amendment I – The Privileges or Immunities Clause, andCovenants II
Slaughter-House Cases, Bradwell v. Illinois, and U.S. v. Cruikshank
Emails from Jewish Residents in New York City's Redlined Neighborhoods
"Who could possibly fathom that this would be America in 2020?"
OK to Use Evidence Indirectly Obtained Using Facial Recognition Software
The results of facial recognition software might not be admissible evidence—but the police are allowed to use them to generate admissible evidence.
"Does Owning a Gun Make a Judge's Second Amendment Rulings Suspect?"
"Barrett says she owns a gun, but could fairly judge a case on gun rights" -- why the "but"?
Public Opinion Supports Covid Vaccine Challenge Trials
A recent study finds broad support for the idea in many countries, including the US.
Amy Coney Barrett Testifies on the ACA Severability Case
She didn't definitively tip her hand. But her statements reinforce my view that she is likely to rule the residual individual mandate unconstitutional, but also that it is severable from the rest of the law.
An Argument Against Supreme Court Term-Limits
Would regular SCOTUS confirmations produce too much volatility in the case law? I am unconvinced.
How To Ensure a High Unemployment Rate for Individuals with Down Syndrome.
The U.S. Commission on Civil Rights wants Down Syndrome individuals to have to compete with everyone else for jobs.
Due Process for Butterflies in the D.C. Circuit
The North American Butterfly Association will get the chance to press its Fifth Amendment claims against the Department of Homeland Security.
Judge Barrett: "What sane person would go through [the Confirmation Process] if there was not a benefit on the other side?"
"Why should I say someone else should do the difficulty if the difficulty is the only reason to say no."
Supreme Court to Consider Constitutionality of Administrative Patent Judges
The Court adds an important Appointments Clause case to the docket.
Supreme Court Denies Certiorari in Blumenthal v. Trump
Petitions for certiorari in the other two Emoluments Clause cases remain pending.
Justice Thomas Writes in Favor of a Narrow Reading of 47 U.S.C. § 230
He seems open to materially increasing Internet service and content providers' liability for libels posted by their users, and based on other user misconduct.
No Preliminary Injunctions Against Libel
A good illustration of the modern rule, which allows some permanent injunctions against repeating specific statements found to be libelous at trial—but only after such a finding on the merits.
Two Questions for Judge Barrett About Stare Decisis
In a constitutional case, should a justice ever stand by a clearly erroneous precedent?
Why Amy Coney Barrett is Unlikely to Have Any Meaningful Effect on the Future of the ACA
She's unlikely to cast a vote to strike down the law as a whole, and unlikely to have a decisive impact on its fate even if she does.
Meanwhile in Portland, Roosevelt and Lincoln Get Canceled
Statues of Presidents Abraham Lincoln and Theodore Roosevelt are the latest victims of rioters in Portland.
Ninth Circuit Rules Against Trump's Diversion of Military Construction Funds to Build his Border Wall
The divided 2-1 decision is the first court of appeals ruling to rule on the legality of a key part of the funding diversion effort.
The Fourth Rule of Court Packing Is Accuse Republicans of Court Packing
Biden: "The only court packing is going on right now -- it's going on with Republicans packing the court now. It's not constitutional."
Federal Court Accepts Church's Challenge to D.C.'s 100-Person Limit on Outdoor Religious Services
The court applied the federal Religious Freedom Restoration Act, which was enacted in 1993 by a nearly unanimous Congress.
D.C. Circuit Considers Obama and Trump Administration Climate Rules
A marathon oral argument on EPA's attempts at climate policy.
Which is it? 1619 or 1776?
Bret Stephens, in what may be his last NYT column, tracks the foundational rewriting of the 1619 Project.
