Constitutional Law

* The D.C. Circuit just spanked the FCC and its net neutrality rules for the second time in a row, but at least the court was polite enough to give the agency a reach-around by saying that it had authority to govern broadband providers. [National Law Journal]

* Current and former judges of the Foreign Intelligence Surveillance Court wrote a strongly worded letter in opposition to Obama’s proposed surveillance reforms. Apparently they don’t want their secret workload to increase. [Washington Post]

* Oooooooklahoma, where gay marriage comes sweepin’ down the plain! A federal judge ruled that the Sooner state’s ban on same-sex marriage is unconstitutional, issuing a stay pending the obvious appeal to come. [BuzzFeed]

* California can prevent LSAC from notifying law schools when prospective law students were given extra time on the LSAT. LSAC values its ability to discriminate, so expect an appeal. [San Francisco Chronicle]

* Yo, Kanye West, I’m really happy for you, I’ma let you finish… I’m sorry, but Coinye had one of the best bitcoins of all time. ONE OF THE BEST BITCOINS OF ALL TIME. [MoneyBeat / Wall Street Journal]

In too many ways, 2013 was a year that vindicated the long-standing paranoia of many Americans, particularly the more conservative. A bewildering number of stories littered the news that seemed to confirm exactly the sort of gross government overreach that previously sounded like a delusion of someone whose eyes were scanning the skies for black helicopters. In spring 2013, for example, we learned that the IRS had been targeting the 501(c)(3) applications of conservative and libertarian organizations, apparently based solely on their political and philosophical affiliations. Nothing in 2013, though, fanned the flames of political paranoia quite like revelations of the National Security Agency’s mass surveillance programs.

In Clapper v. Amnesty International USA, decided in February, the U.S. Supreme Court dismissed Amnesty International’s constitutional challenge to a portion of the FISA Amendments Act of 2008. In its 5-4 opinion, the Court found that Amnesty lacked Article III standing, in part because the plaintiffs could not show that they had necessarily been targeted for surveillance. When Edward Snowden later disclosed details of the NSA’s PRISM surveillance program, civil libertarians experienced something of a Pyrrhic victory. Standing would not be a problem in many future lawsuits because the revelation of PRISM established that millions of Americans had been subject to some NSA spying. The only question was whether that surveillance amounted to a violation of the law.

As we leave 2013 and 2014 dawns, some new developments have emerged . . . .

double red triangle arrows Continue reading “NSA Surveillance In 2013: The Year Of Vindicated Political Paranoia”

Edward Snowden

* Now that a federal judge has ruled against the NSA’s domestic spying program, maybe government prosecutors will cut Edward Snowden some slack — or maybe haha, yeah right. [WSJ Law Blog]

* On that note, the ACLU is appealing the other federal ruling that says the agency’s activities are constitutional. The NSA will let you know what the Second Circuit’s decision is this spring. [Guardian]

* Alas, Judge Shira Scheindlin knew from the get-go that her stop-and-frisk ruling would be contested, and she even warned the lawyers involved that they ought to consider a jury. [New York Times]

* “How do you say, ‘I’m married, but not really? I’m divorced, but not really?’” Thanks to Utah’s same-sex marriage ruling, unhappy gay couples who married in other states are rejoicing over the fact that they can finally get divorced. [Deseret News]

* Facebook, a social network that constantly changes its privacy settings to make your life less private, is being sued over its alleged interception and sharing of messages with advertisers. Shocking. [Bloomberg]

* It goes without saying that Sergio Garcia is having a happy new year. The California Supreme Court ruled that the undocumented immigrant will be able to legally practice law in the state. ¡Felicitaciones! [CNN]

Reema Bajaj

* In his year-end report, Chief Justice Roberts politely asked Congress to make it rain on the federal judiciary in fiscal year 2014, because “[t]he future would be bleak” without additional funding. [Reuters]

* Utah finally asked for Supreme Court intervention in its quest to stop gay couples from marrying, but Justice Sotomayor wants a response from the other side before she weighs in. WWSSD? [BuzzFeed]

* Perhaps Justice Sotomayor saw the humor in this: she just gave a group of nuns a temporary reprieve from having to give out birth control to a bunch of women who have taken vows of chastity. [Bloomberg]

* Where in the world is Carmen Sandiego Steven Davis? Oh boy, Dewey have some news for you! The failed firm’s former chairman is now the chief legal representative for Ras al Khaimah in the United Arab Emirates. [WSJ Law Blog]

* “The Second Amendment does not preclude reasonable regulation.” A judge upheld the majority of New York’s new gun laws as constitutional. Opponents are ready to lock and load on appeal. [New York Times]

* Just because your law school isn’t ranked, it doesn’t mean you can’t dream big. Case in point: one of this year’s Skadden Fellows will graduate from John Marshall (Chicago) this spring. [National Law Journal]

* Reema Bajaj, the attorney who pleaded guilty to a prostitution charge, decided that she wasn’t in the mood to ride this Johnson any longer. Like her panties, the case has been dropped. [Daily Chronicle]

Edward Snowden

* People have “greatly underestimated how powerful a jurist Justice Sotomayor would be,” and now that one of her concurrences flies directly in the face of Obama’s NSA tactics, we’ll get to see how powerful she really is. [MSNBC]

* Here’s a fun end-of-the-year roundup: President Obama’s Top 10 Constitutional Violations of 2013. Fifty internet points shall be awarded to the first person who correctly guesses how many are related to Obamacare without looking. [Forbes]

* Following Judge Shira Scheindlin’s stop-and-frisk spanking, the Southern District of New York changed its rules on case assignments in order to increase transparency. Related-case judge-shopping just got a whole lot harder. [New York Times]

* Wiley Rein is defending its fee request in the Voting Rights Act case, and says the Department of Justice is “[tying] itself in knots” trying to find a way to get out of paying the piper. Harsh. [Blog of Legal Times]

* These are four ways you can overcome a low GPA when applying to law school, but really, the best way to overcome a low GPA is to not apply at all. [Law Admissions Lowdown / U.S. News & World Report]

* “I am not trying to bring down the NSA, I am working to improve the NSA.” Now that he’s unleashed all of America’s deep dark secrets, Edward Snowden just wants to Google like a regular guy. [Washington Post]

The media has toppled a barrel of digital ink on the issue of Justice Ginsburg’s insistence on retaining her seat on the Supreme Court. Above the Law has even mentioned it once or twice or thrice. Like any other conventional wisdom story emanating from inside the Beltway, someone raised the issue, Justice Ginsburg said “no,” and then scores of pages were written explaining how she was wrong. And now, as that’s played itself out, scores of pages are going to be written taking the stance that maybe Justice Ginsburg… isn’t wrong?

Well, she is wrong, and bucking the trend of conventional wisdom makes for fun thought experiments, but isn’t as helpful when it comes to discrete, short-term decision-making. The thinking is all too clever by half and should be heaved onto the bonfire of civil liberties Scalia has cooking in his mind….

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It’s often noted that the United States is governed by the world’s oldest written constitution that is still in use. This is usually stated as praise, though most other products of the eighteenth century, like horse-borne travel and leech-based medical treatment, have been replaced by improved models.

Jeffrey Toobin, writing in the New Yorker about whether the current dysfunction of the federal government might be due, at least in part, to the Constitution.

(Additional notable quotes from his interesting article, after the jump.)

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The other shoe has dropped: Senator Harry Reid went forward with the long-awaited “nuclear option” to end the Republican filibuster of Obama nominees, most notably the nominations of Judge Robert Wilkins, Georgetown Law Professor Nina Pillard, and Akin Gump partner Patricia Millett to three vacant seats on the D.C. Circuit.

By a 52-48 vote, Democrats killed off the filibuster for most of the president’s upcoming nominations, though kindly preserved the minority’s right to filibuster Supreme Court nominees. So they didn’t take away all of our fun.

But you probably already know that. You probably already have a militant opinion about it if social media is to be believed. But as we prepare to welcome three new judges to the D.C. Circuit, our friends, family, politicians, and media people are going to toss around some really hollow sound bytes both for and against this move. Let’s just get some of them out of the way now, so you don’t have to act surprised when you watch Meet the Press on Sunday.

double red triangle arrows Continue reading “And Boom Goes The (Nuclear) Dynamite: Previewing The Derptastic Sound Bytes You’re About To Hear”

Is belief in old St. Nick unreasonable?

One of the great things about religious liberty is the ability to believe unreasonable things.

– Professor Andrew Koppelman of Northwestern Law, speaking yesterday at the Federalist Society National Lawyers Convention, on a panel about religious freedom.

(If you’re curious, a little explanation appears after the jump.)

double red triangle arrows Continue reading “Why Does Xenu Love The First Amendment?”

A person expects that the area under their clothing is private and protected against hostile intrusion … but if a clothed person is out in public and reveals areas under their clothing, whether inadvertently or otherwise, to plain view, she or he no longer has an expectation of privacy.

– Attorney Michelle Menken, arguing that the Massachusetts Peeping Tom law does not apply to her client, a man who was arrested for exercising his right to free speech — by taking “upskirt” pictures of women on the Boston subway.

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