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Elena Kagan

Speaking at Princeton, Justice Elena Kagan described as “just ridiculous language” Paul Krugman’s claim that the higher federal courts are “corrupt.” It is just ridiculous, as we noted the other day, and it’s nice to hear Krugman called out for it at his own university by someone in a position to know. +1 Elena! [Daily Princetonian via Josh Blackman]

My new post at Cato at Liberty takes a look at yesterday’s Supreme Court decision in Williams v. Illinois, a Confrontation Clause case involving an accused rapist. It’s one more data point bolstering the observation that if the three most liberal members of the current Court (Ginsburg, Kagan, and Sotomayor) vote together with some frequency, it’s more because they share a certain philosophy about the law than because they’re all women.

P.S. I see Eugene Volokh got there first, drawing similar conclusions (& welcome Nabiha Syed, SCOTUSblog readers).


August 10 roundup

by Walter Olson on August 10, 2010


July 27 roundup

by Walter Olson on July 27, 2010

  • Dodd-Frank major oops: Faced with new liabilities, agencies refuse to let their ratings be used in bond issuance [WaPo, Salmon] SEC scurries to suspend requirement for six months while it figures out what to do [Salmon]
  • Left-leaning law lectern: study of newly hired lawprofs identifies 52 liberals, 8 conservatives [Caron, ABA Journal, Lindgren/Volokh]
  • “Progress in protecting gripe site owners against silly trademark claims” [Levy, CL&P]
  • “Congress Investigates Beck, Ingraham Advertisers” [Stoll]
  • “Uncle Sam Kicks Out Legal Immigrants for Down Profits in Recession” [Shapiro, Cato]
  • Judge punishes Goodyear for discovery heel-dragging by denying it chance to disprove liability in $32M case [Las Vegas Sun]
  • “$2.3M verdict against Dole thrown out on fraud grounds” [PoL, background]
  • Paul Campos vs. Elena Kagan: this time it’s personal [Lawyers Guns & Money]


July 12 roundup

by Walter Olson on July 12, 2010

  • Kagan to senators: please don’t confuse my views with Mark Tushnet’s or Harold Koh’s [Constitutional Law Prof]
  • Too much like a Star Wars lightsaber? Lucasfilm sends a cease-and-desist to a laser pointer maker [Mystal, AtL]
  • Ottawa, Canada: family files complaint “against trendy wine bar that turned away dinner party because it included 3mo baby” [Drew Halfnight, National Post]
  • “House left Class Action Fairness Act alone in SPILL Act” [Wood/PoL, earlier]
  • Not so indie? Filmmaker doing anti-Dole documentary on Nicaraguan banana workers says he took cash from big plaintiff’s law firm Provost Umphrey [AP/WaPo, WSJLawBlog, Erik Gardner/THREsq., new plaintiffs' charges against Dole]
  • Will liability ruling result in closure of popular Connecticut recreational area? [Rick Green, Hartford Courant; earlier]
  • Class action lawyer Sean Coffey, running for New York attorney general, has many generous supporters [NYDN, more, WNYC (Sen. Al Franken headlines closed fundraiser at Yale Club)]
  • “Judge Reduces Damages Award by 90% in Boston Music Downloading Trial” [NLJ, earlier on Tenenbaum case]


July 6 roundup

by Walter Olson on July 6, 2010

  • “Kagan refused to identify anything the government couldn’t do under its Commerce Clause power” and “consciously left herself plenty of breathing room to cite foreign law inappropriately” [Ilya Shapiro, more]
  • Multiple civil/criminal hats? “The odd responses of the attorney general to the oil spill” [WaPo editorial]
  • Phillies Phanatic, “‘Most-Sued Mascot in the Majors’ Is Back in Court” [Lowering the Bar, which also hosts Blawg Review #271 this week]
  • Federalist Society has a new blog;
  • California will pay $20 million to woman abducted for nearly two decades [AP]
  • Charges dropped against teen who tried to help lost kid in shopping mall [Lenore Skenazy, earlier]
  • Two libertarians arrested after videotaping police in Greenfield, Mass. [Balko, earlier here and here]
  • “‘Ambulance Chaser’ Lawsuits Hound Apple Over iPhone 4″ [Atlantic Wire]


June 30 roundup

by Walter Olson on June 30, 2010

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She’s not expected to sympathize with them, for reasons Ted outlines at Point of Law.

June 24 roundup

by Walter Olson on June 24, 2010

  • “IP Lawyer Who Spotted Expired Patent on Solo Cup Lid Loses Quest for Trillions in Damages” [ABA Journal, earlier on "false markings" suits here, here, etc.]
  • Like we’re surprised: Linda Greenhouse favors sentimental (“Poor Joshua!”) side in 1989 DeShaney case and hopes Elena Kagan does too [NYT Opinionator, my take a few years back]
  • Why is Le Monde in financial trouble? For one thing, firing a printing plant employee costs €466,000 [Frédéric Filloux, Monday Note via MargRev]
  • “Will these salt peddlers stop at nothing?” Michael Kinsley on NYT sodium-as-next-tobacco coverage [Atlantic Wire]
  • “‘Victim’ Gets $4.17 Coupon, Lawyers Get $10 Million Cash”: Expedia class action settlement [John Frith, California Civil Justice Blog]
  • Scruggs investigation finally over as feds drop probe of political operative P.L. Blake; several figures in Mississippi scandal are up for release soon from prison [Jackson Clarion Ledger]
  • $20 billion Gulf spill fund: “Oil Gushes and Power Rushes” [Sullum, Althouse]
  • “NYC Naked Cowboy to Naked Cowgirl: Stop copying me” [AP]


May 26 roundup

by Walter Olson on May 26, 2010

  • Oh dear: Elena Kagan praised as “my judicial hero” Aharon Barak, ultra-activist Israeli jurist flayed by Posner as lawless [Stuart Taylor, Jr./Newsweek] Kagan and executive power [Root, Reason]
  • More on efforts to get feds to redesign hot dogs and other choking-risk foods [NYT, earlier]
  • Amid brouhaha over Rand Paul views, Chicago firefighter-test case provides reminder of how discrimination law actually plays out in courts today [Tabarrok, MargRev]
  • So please, Ken, tell us what you really think of this Mr. Francis (“Girls Gone Wild”) and his nastygrams [Popehat]
  • More on SEIU’s tactic of sending mob to banker’s home in suburban Maryland [Volokh and more, earlier]
  • “Intensive Parenting Enforced: Parents Criminal Liability for Children Skipping School” [Gaia Bernstein, ConcurOp on a California bill]
  • Julian Ku unimpressed with United Nations officials’ claims that Arizona immigration statute violates international civil rights law [Opinio Juris] Plus, a complaint to the Inter-American Commission on Human Rights [Kopel, Volokh] Ilya Shapiro analyzes statute’s constitutionality [Cato]
  • Bill moving through Congress would force states, localities to accept unionization, arbitration for public safety workforces [Fox, Jottings] And here comes the giant federal bailout of union pension funds [Megan McArdle]


May 24 roundup

by Walter Olson on May 24, 2010


I was a guest this evening on Kevin Whalen’s Pundit Review talk show on the Boston station. We mostly discussed the Elena Kagan Supreme Court nomination, on which I’ve blogged here, here, here, and here. More: a write-up, and audio.

  • Sorry, guys, but being a law dean who treated conservative scholars with cordiality and fairness doesn’t mean you’ll either 1) be anything but a predictably liberal judge yourself, or 2) show any particular unusual persuasiveness with conservative colleagues on the bench. Jim Copland invites us to consider the example of Guido Calabresi;
  • As part of their job duties, persons who hold the office of Solicitor General sometimes sign their name to arguments they’d reject out of hand if hearing the case as a judge. We’d better hope this is the case with Kagan’s defense of the federal law on depictions of animal cruelty, in which she advanced what Chief Justice Roberts rightly called the “startling and dangerous” position that the protections of the First Amendment should be subject to case-by-case cost-benefit balancing. Jacob Sullum explains.
  • Mark Moller contributes some perspective worth considering on the military-recruitment issue. More: Roger Pilon.
  • Not my view alone: “We are seeing what government by the faculty lounge looks like,” writes Michael Barone. More: David Wagner. “My experience with Prof. Kagan” accounts: Elie Mystal, Above the Law, and Sasha Volokh, Volokh Conspiracy.
  • “Libertarians respond to the nomination” [Damon Root, Reason "Hit and Run"]. Views of Miguel Estrada and Stuart Taylor, Jr. [Moller, Cato] While in the Clinton administration, she took “pro-plaintiff” stances on liability reform [Mark Hofmann, Business Insurance quoting Victor Schwartz, via Ted at Point of Law] More from Jim Copland [City Journal] She helped beef up Harvard’s Berkman Center on intellectual property; does this mean she’s sympathetic to “fair use” concerns? [Cavanaugh, Reason "Hit and Run"]

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I’m one of the participants in a National Review Online symposium on how Republican senators should approach Elena Kagan’s Supreme Court nomination (earlier). And I’ve got a big link roundup at Cato at Liberty this morning pulling together some highlights of what’s being said about her, including some not-especially-reassuring reports on her views of administrative/regulatory law and First Amendment law.

P.S. As for Left critics of Kagan, Ted at Point of Law thinks they’re being foolish: she’ll deliver a voting record as Justice very similar to what a more outspoken ideologue would have done, without exposing President Obama to as much flak in the confirmation process.


I’ve got some thoughts up at Cato at Liberty on President Obama’s new nominee.

Other views: Ted and Carter at Point of Law, Ilya Somin, Jonathan Adler, and Jim Lindgren at Volokh. And Ilya Shapiro digs into Kagan’s record on the First Amendment with some not especially reassuring results, while Radley Balko finds cause for concern on criminal law and civil liberties.