Professor Richard Epstein on NRA v. Chicago

Professor Richard Epstein posted a new article on SSRN, forthcoming in the Chicago Law Review, titled NRA v. City of Chicago: Does the Second Amendment Bind Frank Easterbrook?

In NRA v. City of Chicago, Judge Easterbrook held that the Second Amendment, which protects the right to keep and bear arms, did not bind state governments. This article examines the reasoning that he uses to reach that result, which it contrasts with the style of argumentation that led to the opposite conclusion in Judge O’Scannlain’s decision in Norkdye v. King. Easterbrook’s approach emphasized the imperative need for lower court deference to the Supreme Court’s explicit Reconstruction Era holdings that the Second Amendment does not bind the states, even after the Supreme Court’s game-changing decision in District of Columbia v. Heller and thus gave only scant attention to the various historical authorities that O’Scannlain referred to in Nordyke. On balance it appears that Easterbrook is against incorporation on a variety of historical and federalism grounds, none of which are likely to prevail when the Supreme Court addresses the issue of incorporation when it hears the case later in the 2009 October Term.

Only scant discussion of the current Supreme Court case, and the Privileges or Immunities Clause, but it is a nice, short read.

Google Closing in on WestLaw, Lexis, Now Allows Searches of Legal Opinions and Law Journals

West and Google, start counting your duopoly days. TaxProfBlog reports that Google Scholar now allows you to search legal opinions and law journals.

I just did a couple quick searches, and you can search for cases by case name, and by citation. Extremely quick, efficient, and free. And it doesn’t just link to FindLaw or Cornell. It actually has an original, full text version. I just entered in a few key Supreme Court cases, and a few prominent Circuit cases, and they were all in Google. Pretty cool. Plus, it has a rough Shepardizing feature, called “Cited By.” I am not sure how broad the Shepardizing is, but it seems to know all citations in Supreme and recent Appellate cases.

Coming soon to a law school near you; a Google Table with student representatives handing out cool Google Office supplies and tasty treats.

And the ABA is getting in on the action as well. They just launched Media Alerts on Federal Courts of Appeals.

The website, which officially launches on Wednesday, now covers the U.S. Courts of Appeals for the 3rd, 5th and 9th Circuits. The plan is to add eventually all of the circuits.

About 60,000 cases are filed every year in the federal courts of appeals, McKeown told the ABA Journal. “Most courts have very good websites, but there is a lot of information out there, so this provides a special niche,” she says. “There is a certain needle-in-the-haystack element for someone to go through them every day in every jurisdiction of interest to find cases.”

“Our view is that fair and accurate reporting about the courts is important, both for the public and also in order to emphasize judicial independence,” says McKeown, whose three-year term as chair of the ABA Standing Committee on Federal Judicial Improvements ended in August.

Record Number of Students Taking LSAT, Yet Law School Isn’t Worth The Price. Not good.

Yesterday I blogged about how law school just wasn’t worth the high cost. Today TaxProfBlog reports that a record number of students took the LSAT! Big Law, We Have a Problem:

The numbers are out, and they are huge. On September 26th, more students took the LSAT than have ever taken a single administration of the LSAT in the history of the exam.



There is definitely an asymmetry of information here between those applying to Law School and those suffering with the rising costs and difficult employment situation. Potential applicants should be dropping, not rising.

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Online Job Applications For Federal Law Clerk Jobs Rise 66 Percent

No surprise here. From

A total of 401,576 electronic applications from lawyers seeking jobs as federal court law clerks were received in fiscal year 2009, a 66 percent increase from the 241,529 applications received in 2008 via the Online System for Clerkship Application and Review (OSCAR).

The applications were filed by 10,722 applicants who were competing for the 1,244 clerkship positions that were posted between October 1, 2008 and September 30, 2009.

About two-thirds of all federal judges participate in the OSCAR program, electing to maintain a judge profile, post a clerkship position and accept applications, or advertise that there are not hiring law clerks.

Fifty-two percent of the applicants that used OSCAR during FY 2009 were law school graduates, and 48 percent were third-year law students. But 68 percent of the 401,576 applications were generated by third-year law students.

OSCAR takes what was a paper-heavy – and expensive – process and puts it online. Applicants for law clerk positions can pull together and submit online applications complete with resumes, cover letters, transcripts, and writing samples.

The number of applications filed via OSCAR has increased each year since its introduction in FY 2005, when 94,693 applications were handled. The totals since have been 174,363 in 2006; 180,832 in 2007; 241,529 in 2008; and 401,576 in 2009.

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Interesting New Article: Formalism and Realism in Ruins (Mapping the Logic of Collapse)

From SSRN:  Formalism and Realism in Ruins (Mapping the Logic of Collapse) (H/T Legal Theory Blog)

After laying out a conventional account of the formalism vs. realism debates, this Article argues that formalism and realism are at once impossible and entrenched. To say they are impossible is to say that they are not as represented – that they cannot deliver their promised goods. To say that they are entrenched is to say that these forms of thought are sedimented as thought and practice throughout law’s empire. We live thus amidst the ruins of formalism and realism. The disputes between these two great determinations of American law continue today, but usually in more localized or circumscribed forms. We see versions of the disputes, for instance, in the stylized disagreements over the desired form of judicial doctrines (rules vs. standards); or the best rendition of key political values like equality (formal vs. substantive); or the proper mode of judicial interpretation (textual vs. purposive). Here too the arguments that comprise the localized variants of the dispute remain inconclusive. The Article concludes by mapping “the logics of collapse” – specifically, some critical moves that undermine the rhetorical and intellectual force of the formalism vs. realism disputes and their localized variants. The aims here are several. First, the ability to deploy the critical moves helps with analysis. The critical moves help show how the arguments are constructed in the first place and how they are rhetorically and intellectually compromised. Second, and relatedly, the critical moves allow us to avoid being taken in by the formalism vs. realism arguments and their localized variants. Third, the aim is to show how our formalist and realist argumentation has already been surpassed by a legal “logic” that undermines the cogency of that argumentation.

I just received Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging so these two should make for interesting reading.

@SCOTUS Srsly @SReinhardt, not again, get it right! Epic Fail! Reinhardt reversed 3rd time in same case.

I’ve joked that the Supreme Court needs to get a Twitter Account. If so, today would be the ultimate time to tweet:

@SCOTUS Srsly @SReinhardt, not again, get it right! Epic Fail!

According to Orin Kerr at Volokh, Judge Reinhardt has actually been reversed 3 times on the same case:

As I understand the history, Judge Reinhardt first authored an opinion overturning Belmontes’ death sentence in Belmontes v. Woodford, 350 F.3d 861 (9th Cir. 2003).  The Supreme Court granted, vacated, and remanded in light of Brown v. Payton, 544 U.S. 133 (2005).   To be fair, that one wasn’t really a direct reversal of Reinhardt: He wasn’t on the Ninth Circuit decision reversed in Brown, so the first reversal was only to account for the Supreme Court’s clarification of the law in Brown.  On remand, Judge Reinhardt wrote a second opinion overturning Belmontes’ death sentence in Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005).  The Supreme Court took that case and reversed in  Ayers v. Belmontes, 549 U.S. 7 (2006).   Judge Reinhardt then wrote a third opinion overturning Belmontes’ death sentence in Belmontes v. Ayers, 529 .23d 834 (9th Cir. 2008), which the Supreme Court reversed 9–0 in a per curiam decision today in Wong v. Belmontes.

Epic Fail!

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Is Law School a Good Investment? Nope.

From Economix, H/T BlackBoogLegal.

The paper tries to measure the return on investment in a law school education, using three prototypical students (the “Also Ran,” the “Solid Performer” and the “Hot Prospect”). . . . The results are somewhat disheartening, especially considering the surging interest in law school during this tough job market.

Of course, there is also the matter of nonmonetary returns from higher education. Neither the new research paper on law school R.O.I. nor most of the other related studies try to quantify the psychic rewards of additional social prestige, expanding one’s mind, being better equipped to make the world a better place, and so on, that come from earning a J.D. But presumably most people enroll in professional school primarily for less warm and fuzzy reasons.

TaxProfBlog has a full breakdown.


The Onion: Area Man Passionate Defender Of What He Imagines Constitution To Be

From the Onion:

Spurred by an administration he believes to be guilty of numerous transgressions, self-described American patriot Kyle Mortensen, 47, is a vehement defender of ideas he seems to think are enshrined in the U.S. Constitution and principles that brave men have fought and died for solely in his head.

“Our very way of life is under siege,” said Mortensen, whose understanding of the Constitution derives not from a close reading of the document but from talk-show pundits, books by television personalities, and the limitless expanse of his own colorful imagination. “It’s time for true Americans to stand up and protect the values that make us who we are.”

Unfortunately, too many Federalist Society members get lumped in with Pretenders like this satirical guy. Radio hosts and T.V. Personalities know little about the Constitution, and only invoke it when it enables Conservative policies. Yet, they ignore it whenever the Constitution places limits on Conservative agendas. The ObamaCare is only Constitutional if the War on Drugs is Constitutional. Conservatives reject the former, but like the latter. Consistency?

Accordingly, ahem, Mark Levin was definitely not the right speaker for the Federalist Society Convention, Ahem.

But, the Onion pokes fun at the Left as well:

“Dad’s great, but listening to all that talk radio has put some weird ideas into his head,” said daughter Samantha, a freshman at Reed College in Portland, OR. “He believes the Constitution allows the government to torture people and ban gay marriage, yet he doesn’t even know that it guarantees universal health care.”

Though, I suppose a key difference, is that many progressive Constitutional scholars do in fact view the Constitution as guaranteeing Universal Health Care. See my work on the Constitution in 2020.


Rule of Lenity on the Roberts Court similar to Usage on Roberts Court

Professor Krishnakumar has an interesting post at Concurring Opinions analyzing the use of the Rule of Lenity on the Roberts Court:

In their Legislation casebook, William Eskridge, Philip Frickey, and Elizabeth Garrett observe that between 1984 and 2006, the Supreme Court cited the rule of lenity in just over one-fourth of its cases interpreting criminal statutes and agreed with the government’s interpretation in over 60% of those cases. I thought it would be interesting to see how those figures compare to the still-nascent Roberts Court’s cases interpreting criminal statutes.

Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that favored the defendant. In only six of the cases did the Court reference the Rule of Lenity—four times in dissent, one time in both the plurality opinion and the concurring opinion providing the fifth vote, and one time in a concurring opinion alone.

Interestingly, Scalia and Stevens were the Justices most likely to reference the rule of lenity, while Justices Alito and Kennedy have not joined a single case invoking the rule. Krishnakumar concludes that the Roberts Court use of the rule of lenity mirrors the usage during the Rehnquist Court.

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Video: Discussion of Pandora’s Box and Privileges or Immunities

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