[Volokh] New post at The Volokh Conspiracy
Posted by Todd Zywicki: Suitably Flip: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118313981 New libertarian/conservative blog looks pretty interesting--[1]here. References 1. http://suitablyflip.blogs.com/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
[Volokh] New post at The Volokh Conspiracy
Posted by Orin Kerr: Justice Kennedy's Vote in Raich: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118332759 In his [1]National Review piece on Raich, co-blogger Randy suggests that Justice Kennedy's vote in the case was inexplicable: Veteran Supreme Court reporter [2]Lyle Dennison has suggested that Justice Kennedy [voted to reverse in Raich because he] has a zero-tolerance approach to drugs. Justice Kennedy's deportment during oral argument supports that theory, but we will never know because he joined the majority opinion without comment. . . . How [Kennedy] reconciles his expressed support for the traditional law-enforcement role of the states with his joining what can only be described as the opposite view expressed by Justice Stevens only he can say. But he chose not to. But is Kennedy's vote in Raich really such a mystery? Justice Kennedy broadcast a decade ago in [3]his Lopez concurrence that while he valued federalism, and he was going to enforce federalism values in a number of contexts, he was not going to favor any positions that upset the basic settled view of the scope of the Commerce Clause: [T]he Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system. I realize that Randy believes his argument in Raich successfully distinguished [4]Wickard v. Filburn, such that it was possible to rule in his favor without overruling any cases. But the relevant question is not whether Raich can be distinguished from Wickard on its facts; the question is whether Randy's argument in Raich could comfortably coexist with the settled broad understanding of the Commerce Clause that Wickard helped cement. On the latter question, I think the answer is plainly no. The Raich case asked the Court and Justice Kennedy to shift the settled understanding of post-Wickard Commerce Clause doctrine in a very real and important way. Justice Kennedy announced in 1995 that he was going to decline such an invitation, and that's exactly what he did a decade later in Raich. References 1. http://www.nationalreview.com/comment/barnett200506090741.asp 2. http://www.scotusblog.com/movabletype/archives/2005/06/commentary_just.html 3. http://straylight.law.cornell.edu/supct/html/93-1260.ZC.html 4. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=volpagecourt=usvol=317page=127 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
[Volokh] New post at The Volokh Conspiracy
Posted by David Kopel: Is Resisting Genocide a Human Right? http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118340178 That's the title of the [1]law review article in progress that Paul Gallant, Joanne D. Eisen, and I have posted as a Working Paper. Conducting an in-depth study of the genocide in Darfur, Sudan, and also discussing other genocides, the article details the inadequacy of many of the international community's response to genocides, including targeted sanctions or international peacekeeping forces. Examining international legal authorities such as the Genocide Convention, the Universal Declaration of Human Rights, and the International Court of Justice, the article demonstrates that groups which are being subjected to genocide have a legal right of self-defense. International treaties, Security Council arms embargoes, or national gun control laws cannot lawfully be enforced in a manner which prevents self-defense resistance to a genocide in progress, because under international law, the prohibition against any form of complicity in genocide takes legal precedence over lesser laws. We welcome your comments, which can be sent to the e-mail address at the lower left of my [2]home page. References 1. http://www.davekopel.com/2A/Foreign/genocide.pdf 2. http://www.davekopel.com/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
[Volokh] New post at The Volokh Conspiracy
Posted by Orin Kerr: Scalia's Vote In Raich: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118350645 I've read lots of speculation in the blogosphere that Justice Scalia voted in the government's favor in the Gonzales v. Raich case because he's a social conservative who wants the government to crack down on drugs. If that's true, though, why did he vote in favor of the marijuana grower in [1]Kyllo v. United States? And why did he vote in favor of the crack dealer in [2]Booker v. United States? Is the idea that Scalia is principled when he votes in favor of defendants, but is just a social conservative when he votes in favor of the government? References 1. http://straylight.law.cornell.edu/supct/html/99-8508.ZO.html 2. http://straylight.law.cornell.edu/supct/html/04-104.ZO.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
[Volokh] New post at The Volokh Conspiracy
Posted by Eugene Volokh: Key to iYou're the Top/i, http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118358287 in [1]Slate. (I figure that since Sasha is off-blog due to clerking, I have to fill in for him now and again, and this is the sort of thing he'd link to.) References 1. http://slate.com/id/2120550/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
[Volokh] New post at The Volokh Conspiracy
Posted by Eugene Volokh: Pressure on Companies to Pay Money for Someone's Participation in the Slave Trade: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118360675 [1]Jeff Jacoby aptly criticizes this movement. References 1. http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/06/09/the_slavery_shakedown/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
