Monthly Archives: December 2011

A Pro Se Prisoner Victory

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As Professor Michael W. Martin and I pointed out in our new articles in the Fordham Law Review (here and here), although a huge swath of litigation occurring in federal courts is a result of filings from pro se prisoners, very few of those litigants actually obtain some modicum of success, let alone win a new [...]

The Goldwater Institute’s Litigation Arm

Yesterday, the New York Times published an article explaining the work of the Goldwater Institute, one of the leading libertarian organizations in the country. The GI’s litigation arm generally challenges any government infringement of individual liberties, including what it calls entrepreneurial freedom. What I found most interesting is that the Goldwater Institute doesn’t play favorites: it [...]
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Religious Freedom Versus Workplace Discrimination

Cases at the U.S. Supreme Court often involve a collision of competing values, such as Fourth Amendment cases where the right to privacy runs headfirst into the ability of police to acquire relevant inculpatory evidence. Cases in which important values clash are some of the most difficult for the Court to decide and the public [...]

New Merits Brief Filed by Cockle Printing

We filed a merits brief this week: Petitioners’ Reply Brief in Sackett v. EPA, No. 10-1062, filed on December 21, 2011.

The End of Liberty? Obama Plans To Enshrine Indefinite Detention Into Law

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Call me old-fashioned but I still believe the primary role of government is to protect our liberty. The Framers believed this was the government’s role and it was for quite some time. But if protecting liberty is the primary goal of government then with passage of the 2012 National Defense Authorization Act, government has become [...]

Liberty and federalism in the Individual Mandate cases

One of the stranger legacies of modern “constitutional law” is the separation of liberty concepts and government-structure concepts—that is, the notion that we can speak on one hand of arguments about federal authority, and on the other about the rights that are protected in the Bill of Rights or other constitutional provisions. This was not [...]
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Book Review: Rehabilitating Lochner

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In the Winter 2012 Independent Review, I review David Bernstein’s Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. Here’s how it starts: Few Supreme Court cases receive more scorn in U.S. law schools than Lochner v. New York (198 U.S. 45), the 1905 decision that struck down a New York law limiting the number of [...]

New Merits Brief Filed by Cockle Printing

We filed a merits brief this week: Brief for the Respondent in Filarsky v. Delia, No. 10-1018, filed on December 14, 2011.

Books I’d Recommend As Holiday Gifts

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The dreaded or longer for holiday season is upon us and many of you are looking for that $25 gift for someone because your family drew names over Thanksgiving. So here are some suggestions for those who enjoy the law and for those that don’t.  I’ve separated these into subject areas, since if you are giving [...]
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How Many Innocent People Are Incarcerated?

This article in Mother Jones suggests that the answer is approximately 1 percent. That doesn’t seem like a lot until you remember that there are over 2 million prisoners in the U.S. So that is roughly 20,000 people who were erroneously convicted. I wonder how many tax dollars are spent to house those 20,000.