Jeffrey Rosen

The first thing to be said about the lawsuit filed last week by the Justice Department against Apple and five book publishers is that the defendants very well may be guilty. There does seem to have been collusion among them to fix the price of e-books. But even if the book publishers’ actions were illegal, that’s not to suggest what they did wasn’t understandable. Indeed, there’s a plausible case to be made that the actions of the publishers actually amounted to combating an abusive monopoly—namely, Amazon.

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When writing for the 5-4 majority that decided Citizens United, Justice Anthony Kennedy argued that caps on corporate campaign contributions were unnecessary because corporations would inevitably be held accountable for the money they spent on advertising. Disclosure requirements, Kennedy suggested, would provide the electorate with full “information about the sources of election-related spending.” But the type of full disclosure that Kennedy envisioned has been harder to achieve than he imagined.

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In the oral arguments over the constitutionality of health care reform, John Roberts and Anthony Kennedy seemed at times to be looking for a reason to uphold the law despite their doubts. Unfortunately, Solicitor General Donald Verrilli didn’t give it to them.

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More than any Supreme Court case in memory, the health care lawsuit has produced a tangle of constitutional positioning, with both the Obama administration and its challengers at various points contradicting themselves and making arguments they can’t possibly believe. There is plenty of blame for this situation to go around: You can blame the lawyers and politicians on both sides; you can even, in some respects, blame the Supreme Court justices themselves.

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Judge Mental

Newt Gingrich’s attack on judicial independence—in particular, his call for Congress to subpoena judges and force them to explain their rulings under threat of arrest—is widely viewed as one of the reasons his now-moribund presidential campaign jumped the shark. Both conservative and liberal pundits were alarmed by Gingrich’s assault on the concept of judicial review, and rightly so. But, if Gingrich’s judge-bashing was extreme, it was not an isolated phenomenon.

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At the end of January, Viviane Reding, the European Commissioner for Justice, Fundamental Rights, and Citizenship, announced a sweeping new privacy right: the “right to be forgotten.” The proposed right would require companies like Facebook and Google to remove information that people post about themselves and later regret—even if that information has already been widely distributed.

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Yesterday the Supreme Court handed down the most important privacy case of the Roberts era, U.S. v. Jones. The unanimous decision is an occasion for dancing in the chat rooms. In holding that the government needs a warrant before attaching a GPS device to a suspect’s car to track his movements 24/7 for a month, all the justices rejected the Obama administration’s extreme and unnecessary position that we have no expectations of privacy when it comes to the virtual surveillance of our movements in public places.

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The Web protests that led to a collapse of support in the House and Senate for two ill-designed antipiracy bills are a cause for celebration. In their current forms, both the Stop Online Piracy Act (SOPA) in the House and the Protect IP Act (PIPA) in the Senate are heavy-handed and indefensible, attempts to shut down a handful of rogue pirate sites by changing the open structure of the Internet.

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Some commentators have attributed the FCC’s decision last week to block the $39 billion merger of AT&T and T-Mobile to the spread of anti-corporate sentiment in the wake of the Occupy Wall Street protests. “Imagine if the government didn’t take sides” lamented the conservative blog Red State. “Because AT&T really is getting an unfair deal.

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