My Quick Take: Originalism Makes an Appearance in a Scalia-less Court

One of the more interesting outcomes at this point of the Supreme Court’s term, with the recently departed Antonin Scalia leaving the Court evenly split ideologically, is the opinion in Evenwel v. Abbott. The Court ruled 8-0, affirming the lower court’s ruling,


Consideration of SCOTUS Term Limits

In the wake of the unexpected passing of Justice Antonin Scalia a deluge of articles have hit the internet regarding the composition of the Supreme Court going forward, in particular the nomination of a ninth jurist before the tenure of


Freedoms Allow Discrimination, Even Against You!

Claims, by some, that a private actor does not support exercises of freedom- religion, speech, association or any other liberty- for not adopting the public standard as a private standard is a smokescreen for their distaste of the exercise of those very rights.

My Quick Take: The Take Care Clause Disputes

A lot of the excitement in the legal blogosphere this week has focused on the Supreme Court granting review of the 5th circuit case regarding DAPA, in U.S. v. Texas. This case is about the President’s actions regarding suspension of certain immigration


The Incentives of Policing: How the Police Power Persecutes Innocence

If there is one thing often emphasized by economist it is this simple principle: Incentives matter. This two-word mantra guides policy for better or for worse and not just in financial matters but in legal matters as well. Criminal law dampens



I, Pencil… And This is My Job.

[Photo found in Wikimedia commons] Few essays illustrate with as much clarity and poignancy the miracle of the free market as the famous I, Pencil essay by Leonard Reed. It explores the cooperation of the hundreds, maybe thousands of people


Overinclusivity, Liberty, and the Fallacy of Safety

Overinclusive restrictions on liberty often punish innocence and exacerbate the problems that they attempt to cure. John Adams, a defense attorney, Constitutional scholar, and one of the drafters of the Declaration of Independence once famously said, “It is more important that innocence


Top Gear and Free Speech In Argentina

If you are a fan of the British TV show Top Gear you know that the former presenters are not immune to controversy. Often accused of being insensitive and nationalist it is not surprising that a relatively recent episode detailing

Why Libertarians and Conservatives Hesitate on Climate Change

Ignoring the long-term and immediate benefits of low-cost energy in climate change advocacy has played a substantial role in why conservatives and libertarians have hesitated to accept the premise of climate change. Jonathan Adler,  a legal scholar I respect and with whom I share similar views,

Christie Hunts for Patriot Act Heretics

In pursuit of heretics and dissenters, Chris Christie declared on a morning news broadcast that Rand Paul “should be in front of hearings and in front of Congress if there is another attack, not the director of the FBI or


When Basic Economics Eludes Elected Officials

Under Franklin Delano Roosevelt the Supreme Court shifted in composition and jurisprudence.  Now referred to by many as the “Switch in Time,” this marked the beginning of the end of the Commerce Clause as a limited congressional power.  Now there

Gun study highlights common problems in analyzing gun benefits

The Hill has posted a short article highlighting a recent study on gun deaths in the United States researched by the Violence Policy Center (VPC).  The Hill summarizes: According to the study, gun owners committed 259 justifiable homicides compared to


Judicial Deference Over Constitutional Engagement on Second Amendment

Denial of Appellant’s plea to protect Second Amendment rights is a symptom of the larger problem of judicial deference.  Unfortunately the Supreme Court has decided not to take up the gun law case coming out of San Francisco. The city

Constitutionally Protected: the Marketplace of Political Ideas

Those that bemoan the vast amounts of money in politics can feel comfortable knowing they have absolutely contributed to the increase of money in politics. George Will has a particularly astute post requesting an apology from campaign finance reformers. He



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Constitutional Problems in Utah Voting Law

[Warning: above picture contains guarantees of freedom] Utah is a special place. It boasts a beautiful, diverse landscape; a decent economy; and a strange populace (I know – I lived there most of my life and remain strange).  Most of





Why Libertarians and Conservatives Hesitate on Climate Change

Ignoring the long-term and immediate benefits of low-cost energy in climate change advocacy has played a substantial role in why conservatives and libertarians have hesitated to accept the premise of climate change. Jonathan Adler,  a legal scholar I respect and with whom I share similar views,





Federal Appellate Court Declares Metadata Collection Illegal

“[W]e hold that the text of § 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program. “ The Second Circuit Court of Appeals struck down the



Equality No Matter the Road: Too Much Parental Care

Equality above all else reads like an intentionally absurd dystopic novel. As if the short story “Harrison Bergeron” had come to life, two British philosophers, Adam Swift and Harry Brighouse,  ‘philosophize’ on the unfair advantages bestowed by loving parents. In order


Toasters and Campaign Finance Law

Those most hurt by campaign finance laws are the tax payers whose funds are appropriated by incumbents to garner votes and challengers up against the power of government wielded by incumbents. Whatever happened to that fun little toaster perk that



The Appearance of Corruption, Clinton and the Democratic Party

Hillary Clinton demonstrates that limiting campaign contributions, in an overbroad attempt to curb corruption and a misguided attempt to limit the appearance of corruption, fails to seriously address and recognize the reality of politics and the danger of government power.  For


Balking at Balkinization’s Explanation of King v. Burwell

It should not fall on the judiciary to rescue ill conceived and overreaching legislation, but instead should be resolved by the body that creates the law – the legislator. Despite a lot of interesting content on Prof. Balkins’ law blog Balkinization,



What Does a National Defense Moderate Look Like? Rand Paul?

[Caption: Explosion Noise] A Moderate Position on National Defense is the Balance Between the Desire for Peace and the Necessity of Defense.   In a party that is particularly hawkish – known for strong stances on foreign policy, national defense,


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Why Not Net Neutrality?

The case for regulation should rest on well established evidence, not specters of unseen horrors. The FCC recently approved categorizing internet service providers (ISPs) under Title II of the FCC Telecommunications Act. Tom wheeler, the chair of the FCC board,


Science and Skepticism: A Defense of Politically Incorrect Science

As crucial to science as methodology, skepticism should be embraced not stifled. Recent inquiries from Congressional representatives on dissenting views regarding climate change reminded me of an experience I had while an undergraduate. In an effort to fulfill the requirements


Deference is Activism

Judicial Deference is a Brand of Judicial Activism Evan Bernick at the Institute for Justice has spent considerable effort dispelling the “Dogma of Deference.” Deference is the idea that on questions of constitutional law the Supreme Court should give deference

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