Jeffrey Rosen

On CISPA, Obama and Congress Still Don’t Get It
May 08, 2012

The Obama administration has hardly been a consistent defender of digital privacy. Recall, for example, its support for the reauthorization of the Patriot Act, or its position—unanimously rejected by the Supreme Court in U.S. v. Jones—that we should have no expectations of privacy in public.

Second Opinions
May 04, 2012

For the past few months, the legal discussion in Washington has centered around the Supreme Court’s upcoming ruling on health care reform. Far less attention has been paid to a decision issued by the U.S. Court of Appeals for the D.C. Circuit on April 13—even though it may prove, in the long run, to be similarly significant. At first glance, the case, Hettinga v. United States, doesn’t seem to merit much attention, since it concerns a less-than-scintillating subject: the production and distribution of milk.

First Health Care, Now Immigration: How the Government Fumbled Its Latest Supreme Court Case
April 26, 2012

At the conclusion of yesterday’s oral arguments in Arizona v. U.S., the case that will decide the fate of Arizona law SB 1070, Chief Justice John Roberts said, “Thank you, Mr. Clement, General Verrilli.

How the Obama Administration’s Suit Against Book Publishers Proves the Bankruptcy of Our Antitrust Laws
April 18, 2012

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.

Has Super PAC Cash Corrupted TV Stations?
April 13, 2012

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.

One Simple Argument Could Have Saved Obamacare. Too Bad Verrilli Didn’t Make It.
March 30, 2012

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.

Obamacare at the Court: Contortions All Around
March 28, 2012

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.

Judge Mental
February 22, 2012

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.

A Grave New Threat to Free Speech From Europe
February 10, 2012

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.