All Hail Samuel Alito, Privacy Champion Extraordinaire!
January 24, 2012
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.
SOPA: A Bad Solution to a Very Real Problem
January 20, 2012
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.
In Praise of Smallness: Why AT&T’s Merger With T-Mobile Would Have Been a Disaster
December 05, 2011
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.
November 24, 2011
Ever since Bush v. Gore, we’ve come to expect that federal courts will divide along predictable ideological lines: Judges appointed by Democrats are supposed to vote for Democratic priorities, while judges appointed by Republicans are supposed to prefer Republican priorities. In short, many people now assume judicial institutions will behave like legislative ones. But four recent decisions from the federal appellate courts call this assumption into question. On November 8, Judge Laurence Silberman, writing for the U.S. Court of Appeals for the D.C.
Why Cain’s Deny, Deny, Deny Strategy Is So 1990s
November 08, 2011
As his campaign implodes in the face of sexual harassment allegations, Herman Cain’s Super PAC has launched an ad featuring Clarence Thomas’s 1991 charge that similar harassment allegations represented “a high tech lynching for uppity blacks who in any way deign to think for themselves.” “Don’t let the left do it again,” the ad concludes. In a tight spot, both Cain and Thomas played the race card they had previously criticized, and both denied the sexual harassment allegations rather than taking responsibility.
October 26, 2011
During a Republican presidential forum in South Carolina on September 5, the conservative Princeton political philosopher Robert George asked the candidates a provocative question. George, the intellectual architect of the campaign against gay marriage and abortion rights, has long argued that Congress should declare war on the Supreme Court by passing a federal ban on abortion that clearly violates Roe v. Wade. Would the candidates be willing to sign such a ban—intentionally provoking a constitutional crisis?
On Wednesday, the Supreme Court confronted the latest frontier in the battle over strip searches: Does the Constitution allow prison officials to conduct a strip search of everyone arrested for a minor offense, no matter how trivial? And instead of focusing on high principles, the arguments took a surprisingly graphic turn.
September 14, 2011
For the past generation, if you wanted to understand the legal philosophy of the leading Republican presidential contenders, the best person to look to was Antonin Scalia. And, on the surface, that would appear to be true again this year. After all, the current Republican front-runner, Rick Perry, has plenty in common with Scalia—namely, a professed aversion to judges who legislate from the bench or broadly interpret the Constitution. But, once you read Perry’s manifesto, Fed Up!
How Obama Perpetuated America's Biggest Post-9/11 Mistake
August 24, 2011
For each of the security challenges that confronted the nation after September 11, there were sensibly balanced solutions—moderate laws and technologies that could have increased security without threatening liberty or privacy. But, as everyone now knows, George W. Bush opted for a very different vision. His government asserted the right to detain suspected enemy combatants indefinitely without review by independent courts and then, without congressional approval, created military tribunals that lacked the most basic procedural protections.
“I’ve talked to my lawyers,” President Obama said in explaining his dismissal of the argument that Section Four of the Fourteenth Amendment authorizes him to raise the debt ceiling if Congress fails to act. “They are not persuaded that that is a winning argument.” But who are President Obama’s cowering lawyers, and why would the former constitutional law professor defer to their overly cautious prediction that the Supreme Court would rule against Obama if asked to adjudicate a dispute between the president and Congress?