Josh Patashnik

Football, Instant Replay, and Arbitrariness
December 08, 2009

(Note: if you're not either a football fan or a legal aficionado, you probably want to skip over this post.) Ashby Jones from the Wall Street Journal's Law Blog flags an interesting discussion in the legal blogosphere from last week: why are instant replays in the NFL and college football subjected to a heightened standard of review?  As football fans know, a call on the field is supposed to be overturned after instant replay only if there is "conclusive" or "indisputable" video evidence that the call was wrong.  If the video leaves room for debate, the call on the field stands. Law professor

Seeking the Death Penalty for 9/11 Plotters Does Not Offend Federalism
November 18, 2009

Josh Gerstein at Politico flags a pretty dubious argument (see also here) against seeking the death penalty for the alleged 9/11 plotters: They're being tried in New York, which doesn't currently have a death penalty statute, so doesn't it offend federalism for federal prosecutors to seek the death penalty there? No, it doesn't.  As a strictly legal matter, federal criminal law and state criminal law are entirely separate bodies of law; a state government (formally, at least) does not control or influence federal prosecutions within its jurisdiction.  And as a theoretical matter, the whole po

Where Are You, California Republicans?
November 05, 2009

Just in case the California Legislature's passage of a landmark water bill earlier this week had convinced you that John Judis is wrong and that things are finally looking up for the Golden State, William Voegeli's essay in the current issue of City Journal might put things back in gloomy perspective.  Voegeli asks a worthwhile question: Given that the overall tax burden in California is fairly high relative to other states (with some complicating factors), why aren't public services like roads, schools, and police in California any better than in low-tax jurisdictions like Texas?  Voegeli's a

In Defense of States
October 12, 2009

I never thought I'd write a blog post defending the existence of states--at least no more than I thought I'd write one defending the existence of, say, brunch or toilet paper.  But Matt Yglesias and Ezra Klein have the laboratories of democracy squarely in their crosshairs.  In Ezra's words, "I just don't consider states to be a particularly useful political unit."  And this, sadly, isn't an isolated sentiment among liberals these days.  Look no further than the popularity of the mildly offensive "Tenther" label--as if states' rights are just a wacky conspiracy theory and people who believe i

The Troy Davis Case And Standards Of Review
August 18, 2009

The Supreme Court made waves yesterday with its nearly unprecedented decision to order a federal district court to conduct an evidentiary hearing into the case of Troy Davis, the Georgia man sentenced to death based largely on the testimony of eyewitnesses who have since recanted.

California And The Consequences Of Legislative Gridlock
July 24, 2009

As legislators in Sacramento work late into the night to pass the budget package agreed to by Governor Schwarzenegger and legislative leaders earlier in the week, it's worth checking out Kevin Drum's spot-on summary of the consequences for the Republican Party of California's supermajority budget requirement. The bottom line is this: Essentially the only way the Republicans could conceivably retake power in the California Legislature in the near future is as a result of a large-scale tax revolt.

Against Judicial Irony
July 15, 2009

Georgetown law professor Louis Michael Seidman has caused a bit of a stir in the blogosphere with a strongly-worded critique of Judge Sotomayor's performance at her confirmation hearings. The thrust of Professor Seidman's argument is that Sotomayor ought to have acknowledged that Supreme Court justices do more than simply mechanically apply settled principles of law to the facts of a case: Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today.

The Presidency Is Not That Weird An Institution
June 15, 2009

Matthew Yglesias, in a nice post exploring the nature of presidential political capital, writes: The American presidency is a weird institution. If Barack Obama wants to start a war with North Korea and jeopardize the lives of hundreds of thousands of people, it’s not clear that anyone could stop him. If he wants to let cold-blooded murderers out of prison, it’s completely clear that nobody can stop him. But if he wants to implement the agenda he was elected on just a few months ago, he needs to obtain a supermajority in the United States Senate.

Affirmative Action, Public Opinion, And Federalism
June 07, 2009

I'm often sympathetic to Stuart Taylor's columns, but his latest effort is a real head-scratcher. The main thrust of Taylor's argument seems to be that the Supreme Court should ban racial preferences because it's what the majority of Americans want, even if their elected representatives decline to take a stand for fear of being labeled racist.

Justice Oprah?
May 17, 2009

In response to the Fox News poll indicating that one in six Americans thinks Oprah would do a good job as a Supreme Court justice, Matthew Yglesias says: I’m actually 100 percent positive that were Oprah on the Supreme Court she would do a good job. In a lot of ways, it’s just not that difficult a job.

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