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Friday, September 17, 2021

Constitution Day: Is September 17 the Right Choice?

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Vik Amar and I have this essay on the designation of September 17 as Constitution Day. We explain that the date is not the only possible ch...
Wednesday, September 15, 2021

Is the U.S. Constitution Up to the Task of Preserving American Democracy?

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On September 9, I participated in a panel sponsored by the new Fair Elections and Free Speech Center at UC Irvine Law School discussing...
Saturday, September 11, 2021

An Alternative Test for the Necessary and Proper Clause

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The Administration's new vaccine mandate for private employers will surely be attacked in the courts. There will be a statutory challeng...
Friday, September 10, 2021

Some Not Very Focused Preliminary Thoughts About the Shadow Docket (But Leading Up to Some Fundamentals about Constitutional Law)

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The following thoughts were provoked by and during an interesting Roundtable chat convened by Neysun Mahboubi for something called the "...
Tuesday, September 07, 2021

The Supreme Court's Texas abortion decision is a threat to constitutional rights (all of them)

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  Abortion opponents are jubilant about the Supreme Court’s recent refusal to block a Texas law banning abortion after six weeks.  The law...
Friday, September 03, 2021

The Problem with the Shadow Docket

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My view is that the main problem with the "shadow docket" is that the Supreme Court is deciding consequential matters without full...
Thursday, September 02, 2021

Michael Perry and human rights

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I 've just posted on SSRN my contribution to a forthcoming festschrift issue, in the Emory Law Review, on the work of the distinguished...

Private Enforcement Mechanisms and You

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Three points about the Texas mess and one suggestion.  First, of course we know that the Texas law SB8 is an attack on abortion jurisprudenc...

Facebook Announces Formation of Supreme Court Oversight Board

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John Jay Washington, D.C. and Menlo Park, CA-- Today Facebook and the United States Supreme Court announced a joint venture, the creation of...
Thursday, August 26, 2021

Cases Without Controversies: An Author Responds (With Gratitude) (II)

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For the Balkinization Symposium on  James E. Pfander,  Cases Without Controversies: Uncontested Adjudication in Article III Courts  (Oxford ...
Wednesday, August 25, 2021

Cases Without Controversies: An Author Responds (With Gratitude) (I)

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For the Balkinization Symposium on  James E. Pfander,  Cases Without Controversies: Uncontested Adjudication in Article III Courts  (Oxford ...
Sunday, August 22, 2021

The OLC and Section 3

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A few days ago, Juan Williams wrote an op-ed  in The Hill arguing that Section 3 of the Fourteenth Amendment bars Donald Trump from being el...
Tuesday, August 17, 2021

The Once and Future Federal Judicial Power

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For the Balkinization Symposium on  James E. Pfander,  Cases Without Controversies: Uncontested Adjudication in Article III Courts  (Oxford ...
Monday, August 16, 2021

The New York eviction moratorium decision and the problems of the shadow docket

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Maybe the Court’s decision in the New York eviction moratorium case was right. But the legal problem it presented was way more complicated t...

Koppelman vs. Berman and Krishnamurthi

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In Bostock was Bogus: Textualism, Pluralism, and Title VII , forthcoming in the Notre Dame Law Review and available on SSRN , Mitchell Berma...

Beyond Default

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For the Balkinization Symposium on  James E. Pfander,  Cases Without Controversies: Uncontested Adjudication in Article III Courts  (Oxford ...
Sunday, August 15, 2021

Unearthing The Historical Meaning Of Article III “Cases”: The Value Of Nonpartisan Originalism

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For the Balkinization Symposium on  James E. Pfander,  Cases Without Controversies: Uncontested Adjudication in Article III Courts  (Oxford ...
Saturday, August 14, 2021

A "Review" of Justice Breyer's "Manuscript"

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  Dear Harvard University Press: As a long-time reviewer for Harvard University Press, I am sure you are not interested in my evaluation t...
Friday, August 13, 2021

Pfander on “Cases” and “Controversies” and the Proper Role of the Federal Courts: Uncovering Important Lost History

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For the Balkinization Symposium on  James E. Pfander,  Cases Without Controversies: Uncontested Adjudication in Article III Courts  (Oxford ...