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John Roberts

Riley’s best line

by Walter Olson on June 28, 2014

“The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of [a wallet or purse] … That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.” — Chief Justice Roberts, writing for the Court in Riley v. California, in which the Justices unanimously disallowed warrantless police searches of arrestees’ cell phones.


Law schools roundup

by Walter Olson on July 26, 2013

  • “How To Fix Law School” symposium at New Republic with David Lat, Paul Campos, Mike Kinsley etc. follows up on Noam Scheiber article on erosion of BigLaw business model, which in turn drew semi-rebuttal from Mark Obbie at Slate;
  • “So the poor defendants have to spend thousands on legal fees, while law students get their ‘practice.'” [John Stossel]
  • Brian Tamanaha vs. Simkovic and McIntyre “law degree worth a million bucks” study [Balkinization, response here, Adler, Caron]
  • Amid crisis, tone-deaf ABA “actually in the process of trying to make it harder for accredited law schools to fire professors and control their costs” [Elie Mystal]
  • Foundation case studies include Carnegie 1921 report on legal education, Olin support for law and economics, and some others related to law schools [J. Scott Kohler and Steven Schindler, Philanthropy Central]
  • “Shifts in law professors’ views” [Kyle Graham]
  • Bring on the strong verbs, and not just in legal writing [Ross Guberman] In recent Nike shoe case, Chief Justice Roberts wrote rings round Justice Kennedy [same]

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May 14 roundup

by Walter Olson on May 14, 2013

Constitutional law roundup

by Walter Olson on February 21, 2013

  • Colorado solon’s lawsuit claims direct voter initiatives are unconstitutional. Nice try but no go [Ilya Shapiro]
  • Gail Heriot and Alison Somin on creative interpretations of the Thirteenth Amendment [Fed Soc]
  • Ted Olson’s work on punitive damages provides clue to his approach on originalism [Mike Rappaport]
  • Yes, Prof. Seidman, there is an Origination Clause [Shapiro, my related take]
  • Justice Roberts and legislative deference [PoL]
  • Easterbrook, Barnett and others: video of panel on federalism and federal power [Fed Soc] Constitutional law treatise available free online through Library of Congress [Volokh] New Podcast: Who violates the constitution–statutes or individuals? [Nick Rosenkranz, PoL]
  • National Endowment for the Arts uses creative misreading to conjure up a constitutional charter for its existence [Roger Pilon/Cato]

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Politics roundup

by Walter Olson on October 27, 2012


From one of the star speakers at Cato’s Constitution Day yesterday.

July 23 roundup

by Walter Olson on July 23, 2012

  • Oh, ABC: “America’s Wrongest Reporter” Brian Ross achieves another feat of wrongness [Hans Bader] “Don’t turn Aurora killer into celebrity” [David Kopel, USA Today] For the media: five tips on how not to misreport the gun angle [Robert VerBruggen, NRO]
  • Ed Brayton of Dispatches from the Culture Wars challenges me on the War For Roberts’ Vote, and I respond;
  • The “contains peanuts” warning on a peanut jar [Point of Law]
  • “California Stats Show Elected Judges Disciplined More Often than Appointed Judges” [ABA Journal] New Federalist Society guide on state judicial selection procedures;
  • “Science Quotas for Women–A White House Goal” [Charlotte Allen, Minding the Campus; Hans Bader] More: Heritage. “Title IX swings wildly at invisible enemy” [Neal McCluskey]
  • So that’s what his business card meant when it said he practiced at Loeb and Wachs [AP: "Hawaii attorney convicted in ear licking case"]
  • Rare occasion in which defendant is allowed to strike back: California appeals court says software executive can pursue malicious prosecution case against class action lawyers [NLJ]

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Medical roundup

by Walter Olson on July 13, 2012

  • How’d we get shortages of hospital and community sterile injectables? Check out the role of FDA Good Manufacturing Practice (GMP) regs, warning letters, and resulting plant closures [Tabarrok, with comments controversy; earlier here, here, here, etc.]
  • California orthopedist sues, wins damages against medical society that took action against him based on his testimony for plaintiff in liability case [American Medical News; earlier here, etc.]
  • Can’t have that: medical apology should be opposed because it “can create an emotional connection with an injured patient that makes the patient less likely to ask for compensation.” [Gabriel Teninbaum (Suffolk Law), Boston Globe]
  • Feds’ war on painkillers is bad news for legit patients and docs [Reuters, Mike Riggs/Reason]
  • New federal pilot project in Buffalo will provide concierge-style home care to emergency-department frequent fliers. Spot the unintended consequence [White Coat]
  • Dastardly drug companies? Deconstructing Glaxo SmithKline’s $3 billion settlement [Greg Conko, MPT] More: Beck, Drug and Device Law, on suits over “what are mostly medically valid and beneficial off-label uses”. Paging Ted Frank: “HIPAA’s Vioxx toll” thesis may depend on whether one accepts that the premised Vioxx toll has been established [Stewart Baker, Ted's recent post]
  • U.K.: “Lawyers seizing lion’s share of payouts in NHS negligence cases” [Telegraph]
  • Silver linings in SCOTUS ObamaCare ruling? [Jonathan Adler and Nathaniel Stewart] “DNC Scientists Disprove Existence of Roberts’ Taxon” [Iowahawk humor] Did Ginsburg hint at the court’s direction on the HHS contraception mandate? [Ed Morrissey, Hot Air]

[cross-posted at Cato at Liberty]


My new opinion piece on the ObamaCare decision and its leaks. It’s the first thing I’ve written for The Daily, the iPad-native news launch. Earlier coverage of NFIB v. Sebelius/the Health Care Cases here, here, here, here, here, etc.


  • The article everyone’s talking about on John Roberts’s switch [Jan Crawford, CBS] But who were her sources?
  • “ObamaCare Lost on the Medicaid Mandate & Commerce Power. It May Yet Lose on the Tax Power” [Michael Cannon, Cato]
  • The ultimate, and I do mean ultimate, link roundup [Joshua Matz, SCOTUSBlog]
  • Opinion reactions: Steve Chapman, Michael Barone.
  • A view from Left: conservatives lost Thursday, and purported silver lining’s not even tin [Lemieux] NFIB v. Sebelius “the most important court victory for liberalism in my lifetime.” [Joey Fishkin]
  • Not Marbury, no way, no how [David Wagner, Ninomania]
  • “Polarization and legitimacy: why we’re wigging out” [Will Wilkinson, The Economist]
  • Call off the celebrations, it’s just a satire: “Supreme Court Strikes Down All Laws Signed By Barack Obama” [Balkin]
  • Don’t forget that Cato’s star-packed event looking at the meaning of the NFIB v. Sebelius decision will take place live on the web tomorrow, Monday, Jul. 2, 1:30-4:45 Eastern.
  • And I’ll be the guest on the “Pundit Review” show this evening at 7:30 Eastern on Boston’s RKO with Kevin Whalen to discuss Thursday’s ruling.
  • “We won everything but the case.” Ilya Shapiro at SCOTUSBlog on what it’s like to have your arguments succeed while your client goes down. Recommended;
  • David Kopel applauds, especially the Medicaid ruling limiting strings on federal support of states;
  • Michael Greve turns thumbs down: “the Chief’s supposed act of statesmanship has bought nothing that is worth having.”
  • Clark Neily: “as litigators know very well, it is always more important what a court did than what it said. … Notwithstanding the majority’s assurances … the Court ratified what many perceive as the most significant expansion of federal power in 75 years.”
  • John Podhoretz: Roberts’ artful dodgery on tax issue does the Court no credit. Similarly: Jim Huffman;
  • From a David Frum reader: did Roberts bail because the four justices to his right got too frisky on severability?
  • And Cato’s star-packed event looking at the meaning of the NFIB v. Sebelius decision will take place live on the web this coming Monday, Jul. 2, 1:30-4:45 Eastern.

Earlier here, here, and here.

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The wise general does not always march forth and capture a city, even one of great strategic importance, if he knows his forces are unlikely to hold it against the inevitable counterattack. He may be better off taking only the territory he has a good chance of holding on to.

P.S. And see this Sun-Tzu-citing Will Wilkinson analysis.

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“For those of us who oppose the Affordable Care Act as a policy matter, this is a bad day,” [Georgetown law professor Randy] Barnett said. “For those of us in this fight to preserve the limits of constitutional government, this is not a bad day.” [Ezra Klein; more from Prof. Barnett at Daily Beast] Similarly, at more length: Sean Trende, RCP via Tom Smith, Right Coast. Contrasting views: Ilya Shapiro, Philadelphia Inquirer (“an unfortunate convergence of two unholy strains of constitutional jurisprudence: liberal activism and conservative pacifism”); Ramesh Ponnuru (“The resulting law may be a better one than Congress wrote. It is not, however, the law that Congress wrote.”).

And here is a podcast from the Cato Institute with colleagues Roger Pilon, Ilya Shapiro, Trevor Burrus, Michael Cannon, and Michael Tanner:

And a video interview with Trevor Burrus here. Don’t forget, if you didn’t check in on it at the time, yesterday’s periodically updated Twitter-scroll post with (at last count) 43 tweets and dozens of links to relevant posts and resources.

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Law schools roundup

by Walter Olson on August 5, 2011

  • Law profs (some of them, anyway) bristle at “impractical scholarship” critique from Chief Justice Roberts [Ifill, ConcurOp; Adler; Chiang, Prawfs; Markel]
  • Noisy exit by University of Baltimore law dean calls attention to law schools’ role as cash cows for universities [Caron]
  • There’ll always be a legal academia: redefining banks as public nuisances [Lind via CL&P] “Disability as a Social Construct” [Areheart, Yale Law and Policy Review] North Dakota’s fiscal health? Nothing to do with shale boom or budget prudence, it’s that they’ve got a state-owned bank [Pasquale/Canova]
  • “Why Does Pedigree Drive Law Faculty Hiring?” [Paul Caron] Using the accreditation process to mandate more tenure for lawprofs? [same] “ABA to Continue as Law School Accrediter, Despite Noncompliance With 17 Regs” [same]
  • “Have Law Schools Violated Consumer Protection Laws?” [Jeff Sovern, CL&P] Villanova keeps mum after embarrassing revelations [Inquirer]


January 5 roundup

by Walter Olson on January 5, 2011

  • Notables including Alan Morrison, Richard Epstein, Kathleen Sullivan sign amicus brief urging court review of multistate tobacco settlement [Daniel Fisher/Forbes, Christine Hall/CEI, Todd Zywicki]
  • “Congress rediscovers the Constitution” [Roger Pilon, WSJ]
  • Chief Justice John Roberts Jr. profiled [Roger Parloff, Fortune]
  • When outside investors stake divorce litigants: yes, there are legal ethics angles [Christine Hurt]
  • Mexico, long noted for strict gun control laws, has only one legal gun store [WaPo]
  • Judge throws out “parasitic” lawsuit piggybacking on Wisconsin drug-pricing settlement []
  • Erin Brockovich sequel: Talking back to the Environmental Working Group on dangers of chromium-6 in drinking water [Oliver, Logomasini/CEI]
  • “Little white lies” to protect the bar’s image [five years ago on Overlawyered]

Rep. Peter DeFazio (D-Ore.) bids for laughingstock status [Adler, Root]