Is it “have proven false” or “have proved false”? “Have proven to be right” or “have proved to be right”? Google Ngrams, in keeping with some usage guides, tells us that historically “have proved” has been the dominant form. In recent books, though, the two have been roughly equally common. I think “have proved” is the safer version, but both now seem standard. [...]
One of my favorite jazz musicians has died: Jim Hall, one of the great jazz guitarists. To get a sense of his sound, click here to listen to Intermodulation, Hall’s magnificent 1966 duet album with pianist Bill Evans. I also recommend this recent compilation of some of his early albums. Wonderful music. Finally, for a 1-hour documentary about Hall, click here. [...]
I mentioned a while ago that the two cert petitions on cell phone searches incident-to-arrest were calendared for December 6. They have been delayed, however, as the Court asked for the lower court record in Riley, the smart phone case. We don’t know what the Justices expect to get from the record, but it’s at least possible that some of them want to know exactly what the lower court record says about what searches were conducted. As I mentioned in my initial post on Riley, the facts are somewhat murky:
The exact scope of the search in Riley isn’t entirely clear, but it seems to have been a more wide-ranging search than in Wurie. According to the lower court opinion, the officer first “looked at Riley’s cell phone, [and] he noticed all of the entries starting with the letter K were preceded by the letter C, which gang members use to signify ‘Crip Killer.’” It sounds like this was a text search through the phone, although it’s not entirely clear. Second, the officer later “looked through the phone and found some video clips” and “some photographs.” This sounds like a more extensive search through the contents of the phone.
That lack of clarity has been common in cell-phone search cases so far, I’ve noticed. Because the early cases broadly allowed warrantless cell phone searches incident to arrest, and the split is fairly recent, litigants and trial judges haven’t focused much on the factual details of what search occurred. It’s at least possible that this lack of detail might end up delaying Supreme Court intervention. But again, this is just uninformed speculation, worth exactly what you’re paying for it.
Incidentally, I wanted to note a question that I think is not implicated by the division of authority on [...]
then changes her mind on the American Studies Association boycott resolution, perhaps for other reasons. But the entire situation is worth reviewing, given that BDS supporters are constantly claiming that pro-Israel forces are the ones doing the harassing, vilification, etc. Via Legal Insurrection, here are a couple of quotes from Potter about the reaction to her initial pro-academic freedom (but hardly pro-Israel) stand against the ASA resolution: “There were massive numbers of people, including a lot of people I know, just writing these nasty things on my blog about what a horrible person I was,” and “You may have received something on Facebook today, as well as on Twitter, floating the accusation that my opposition to the academic boycott of Israel being considered by the National Council of #2013ASA is a sham. This opposition is, the messages claims, only an excuse for me to continue an unhealthy and longstanding obsession with a prominent member of the American Studies Association.”
Keep this in mind next time your hear someone bloviating about how “brave” one has to be to be hostile to Israel in the American academy, and how pressure from pro-Israel forces makes an open debate impossible. Remember, the harassment of Potter came even though she essentially agreed with the BDSers on substance, but only disagreed with the tactic of boycotting academics. [...]
1. Having or marked by repeated turns or bends; winding or twisting: a tortuous road through the mountains.
2. Not straightforward; circuitous; devious: a tortuous plot; tortuous reasoning.
3. Highly involved; complex: tortuous legal procedures.
And usage reflects this; the customary adjective form of “tort” in legal American English is indeed “tortious” — for instance, a Westlaw ALLCASES search for “tortious conduct” & date(1/1/2013) yields 1574 results, and for “tortuous conduct” & date(1/1/2013) yields 48. Google Ngrams reports even more preference for “tortious conduct.” When the split is so lopsided, this suggests that the rarer usage is likely to be perceived as an error, and in any event is likely to be distracting. So “tort” goes with “tortious.” [...]
German President Joachim Gauck may be boycotting the Winter Olympics in Sochi, Russia, in order to protest Russia’s human rights abuses:
German President Joachim Gauck will not represent his country at the Winter Olympics in Sochi, Russia, his office says.
The announcement makes Gauck, a former pastor, the first major political figure to boycott the games, which will be held at the Black Sea resort in February.
According to a report in the German publication Der Spiegel, Gauck made the decision in protest against human rights violations and the harassment of Russian opposition political figures. The magazine said the Russian government was informed of his decision last week.
But Gauck’s office is downplaying the report. “He simply decided not to go,” his spokesman Tobias Scheufele told CNN. “We’re not saying anything about his motivations.”
Others have called for a boycott to protest Russia’s recent crackdown on gays and lesbians, which is just the tip of the iceberg of the Russian government’s repressive ways under the rule of Ex-KGB Colonel Vladimir Putin.
Washington Post blogger Jennifer Rubin argues for a limited boycott by world leaders:
The athletes are going to the games, for better or worse. (On one hand the almighty dollar and the bizarre primacy of sports make one queasy, on the other, one can sympathize with the young people who’ve devoted their lives for the perfect performance at just the right time.) But the politicians are an unnecessary and therefore dispensable part of the proceedings….
It would be a small but telling gesture if the Obama administration and all members of Congress would steer clear of Sochi. The athletes in full view of hundreds of millions around the world can compete — and then snag their endorsements. Refusal to grace Sochi with the presence of the
One of the most influential books that IHS introduced me to when I was in college was Bruno Leoni’s Freedom and the Law (available in pdf here). So I was delighted to have been invited to participate in a program celebrating Leoni’s 100th birthday today at the Cato Institute. Alas, we have been snowed out. So, instead, I will point you to this nifty short video on Leoni’s life and ideas produced by the Bruno Leoni Institute. I hope we will be able to reschedule it at some point in the future.
The video is a nice introduction to two key ideas of Leoni’s. The first is Leoni’s comparison of common law and legislation as law-making systems. Of particular interest here is (as Alberto Mingardi nicely explains) it appears that Leoni had a profound impact on Hayek’s thinking on the common law between The Constitution of Liberty and Law, Legislation, and Liberty. In the Constitution of Liberty (1960), Hayek very focused on the Rechsstaat model of law and the legislative notion of law-making. Then, suddenly and somewhat out of nowhere, the common law emerges as the core organizing principle of Law, Legislation, and Liberty Volume 1, “Rules and Order.” It appears that the key contributor to Hayek’s migration on this point was his introduction to Leoni’s ideas on the common law, especially as elaborated in Freedom and the Law (published in 1961).
The second key idea that comes out in the video is the importance of Leoni’s essay “The Law as Individual Claim” (available as a supplement to the Liberty Fund edition of Freedom and the Law). That essay makes explicit the organizing ideas of Freedom and the Law. This essay is particularly interesting in demonstrating the pernicious influence of legal positivism in changing our understanding [...]
Readers who may have RSVP-ed for today’s Heritage Foundation event on our coauthored book A Conspiracy Against Obamacare should be aware that it has been cancelled because of the snowstorm in the DC area. However, we and Heritage intend to reschedule. When we have a new date for the event, one of us will post it here. Until then, stay tuned and enjoy the snow! [...]
Google news searches:
Chinese+hackers+spied+on+g20 : 3 results
NSA+spied+on+g20: 2,330 results
china+hackers+spy+g20 -nsa: 4 results
If you missed this great column by James Taranto in the Wall Street Journal, here’s your chance to read it.
I had my own run-in with university kangaroo justice, fortunately much less serious than what Taranto describes. Just before I was going to graduate college, a friend with whom I had a falling out chose to escalate a minor personal dispute (involving, trust me, nothing remotely approaching illegal conduct) into a complaint with the university judicial process. I was told that no lawyer could be present, that there were no precedents that could be relied upon, and that my fate rested in the hands of the random students who sat on the judicial committee.
I pointed out to the associate dean in charge that the rules allowed him to dismiss the charges on the equivalent of summary judgment. He acknowledged that he could. I added that the charges were absurd, that even the strictest, most literal interpretation of the rules wouldn’t cover the alleged conduct. He agreed. I continued that nevertheless, the standards of behavior in the school manual were so broad and vague, and the discretion given to the student board so broad, and the lack of any governing rules of interpretation so glaring, that they could still “convict” me, really for any reason or no reason–they wouldn’t even have to issue an opinion. He nodded. I therefore asked him to exercise his authority to dismiss the charges. He refused, stating that he’d rather let the process play itself out, at which point he might or might not choose to intervene. Oh, and meanwhile I wouldn’t be allowed to graduate until the “case” was resolved.
Well, I didn’t want to deal with this nonsense, but I was at a loss as to how to proceed. Finally, an idea [...]
Eight years after the Supreme Court ruled in Kelo v. City of New London that private property can be taken and transferred to other private owners in order to promote “economic development” because such development qualifies as a “public use” under the Fifth Amendment, the Kelo condemnation site still lies empty. But New London Mayor Justin Finizio, who previously apologized for the original Kelo condemnations, has proposed devoting the property for a true public use:
The 2005 Supreme Court decision in New London v. Kelo [sic], in which the court by a 5-4 majority constitutionally validated the New London Development Corp.’s use of eminent domain to purchase and raze the homes of Fort Trumbull residents who refused to sell, remains a “black stain” on the city, said its mayor
NLDC wanted to clear the site to attract large corporate development and expand the city’s tax base. Its judicial triumpth proved a pyrrhic victory, the decision widely despised for interpreting “public use” to include the government taking the property of citizens to turn over to private developers. Count the New London mayor among the despisers. He characterized the Kelo decision as a “corruption of the constitutional interpretation of public use.”
Fort Trumbull has seen no new construction since the bulldozers departed the flattened neighborhood.
Mayor Finizio said he would like New London to symbolically overturn Kelo by undertaking a true “public use” of the seized private properties. He offered as an example a parking garage, under discussion recently as a means of meeting the parking demands generated by Electric Boat’s offices in the former Pfizer buildings, the one major project resulting from NLDC’s corporate development vision.
This would not be any municipal parking garage, but one with solar panels to power it, landscaping and design to fit it into
So concludes today’s Silvester v. Harris (E.D. Cal. Dec. 9, 2013). The analysis (some paragraph breaks added):
The WPL [the Waiting Period Law] prohibits every person who purchases a firearm from taking possession of that firearm for a minimum of 10 days. That is, there is a period of at least 10 days in which California prohibits every person from exercising the right to keep and bear a firearm.
There can be no question that actual possession of a firearm is a necessary prerequisite to exercising the right keep and bear arms. Further, there has been no showing that the Second Amendment, as historically understood, did not apply for a period of time between the purchase/attempted purchase of a firearm and possession of the firearm.
Although [Attorney General] Harris argues that the WPL is a minor burden on the Second Amendment, Plaintiffs are correct that this is a tacit acknowledgment that a protected Second Amendment right is burdened. Therefore, the Court concludes that the WPL burdens the Second Amendment right to keep and bear arms.
The next step is to analyze the WPL under either strict or intermediate scrutiny. As indicated above, Harris advances two rationales in defense of the WPL — it provides a “cooling off period” for those who may have an impulse to commit violence and it provides time for California to conduct a background check. It is unnecessary for the Court to determine at this time which scrutiny to apply because, even under the lesser “intermediate scrutiny,” summary judgment is not appropriate.
With respect to the rationale of providing time to perform a background check, Heller indicated that some laws or regulations presumptively do not offend the Second Amendment, including laws that prevent felons and mentally ill persons from possessing firearms. If a state presumptively
Here’s one more brief that the UCLA First Amendment Amicus Brief Clinic has filed in the last few weeks; its argument is that the “profane discourse” law is content-based, which would make it unconstitutional. This one is on behalf of the Thomas More Society, in SNAP v. Joyce (8th Cir.) (the link is to the decision that is being appealed). My students Tess Curet, Nathan Davis, and Michael Smith worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here. The plaintiffs, whose position we are supporting, are represented by the ACLU of Missouri.
Please note that, in all Clinic cases, the students and I act as advocates for the clients. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.
Missouri Revised Statutes § 574.035 (the Missouri House of Worship Protection Act), in relevant part, criminalizes behavior that
- “[i]ntentionally and unreasonably disturbs … or disquiets” a house of worship
- through “profane discourse [and] rude or indecent behavior”
- “so near [the house of worship] as to disturb the order and solemnity of the
It is the holiday season! And if you happen to be looking for gifts for the VC readers in your life, books by VC bloggers might be a good choice. Among my favorite books by VC authors are Randy Barnett’s Restoring the Lost Constitution (now available in a new edition), David Bernstein’s Rehabilitating Lochner, Dale Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas, and Eugene Volokh, Academic Legal Writing.
Randy’s book is one of the best recent works on originalism and constitutional legitimacy; Rehabilitating Lochner explodes numerous myths about one of the Court’s most reviled decisions; Flagrant Conduct is a great account of a milestone in the history of gay rights; and Academic Legal Writing is filled with useful advice, while also making a generally boring subject seem interesting. This list is not intended to slight important books by Ken Anderson, Orin Kerr, David Kopel, David Post, and others, which I have not discussed only because their subjects are further from my areas of expertise than the above.
In the spirit of shameless self-promotion, I will also mention my own recently published Democracy and Political Ignorance: Why Smaller Government is Smarter, and A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (coauthored with VC-ers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, and David Kopel). Democracy and Poitical Ignorance explains why widespread political ignorance is a serious problem for democracy, and strengthens the case for limiting and decentralizing government power, and for judicial review. Conspiracy Against Obamacare focuses on the VC’s role in the Obamacare litigation, and is the only book that includes contributions by six different VC bloggers. VC-reading Obamacare mavens may also want to check out The Health Care Case, which includes chapters by Jonathan [...]