The United States Court of Appeals for the Eleventh Circuit
ruled yesterday [.pdf] that a citizen's refusal to decrypt encrypted drives is protected by the Fifth Amendment, at least under some circumstances. In doing so it reversed the district court's contempt order entered against a John Doe defendant after he refused to decrypt his laptop hard drive and five external hard drives in response to a subpoena. This decision arguably conflicts with an
earlier decision in which a district court in Vermont required a defendant to provide the password to his encrypted drives. The Eleventh Circuit distinguishes the earlier case on the basis that the government in that case knew of the existence of the files and simply couldn't access them, while in the recent case the government did not know the names of files or even whether or not files actually existed on the encrypted drives.
posted by monju_bosatsu
on Feb 24, 2012 -
89 comments
The Supreme Court issued its opinion
Bell Atlantic Corp. v. Twombly [pdf] today. Although superficially an antitrust case, the Court examined the standard of review under 12(b)(6) and concluded that the old "no set of facts" standard should be officially retired.
posted by monju_bosatsu
on May 21, 2007 -
34 comments
In a
5-4 opinion [pdf], the Supreme Court concluded today that the EPA has the authority to regulate greenhouse gases that may contribute to global warming, and must examine the scientific evidence of a link between those gases contained in the exhausts of new cars and trucks and climate change. Justice Stevens wrote the majority opinion, and Justice Scalia wrote a dissent, joined by Roberts, Thomas, and Alito. ScotusBlog summary
here.
posted by monju_bosatsu
on Apr 2, 2007 -
30 comments
In June, the American Bar Association
created a
task force to investigate President Bush's use of
signing statements to qualify his approval of certain laws. Some of the members of the task force, among others,
testified before Congress, and today the task force issued its
final report and recommendations [pdf]. Its conclusion: "American Bar Association opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress."
posted by monju_bosatsu
on Jul 24, 2006 -
43 comments
Two recent papers examine networks among Republicans: one among lawyers and the other among judges.
Lawyers of the Right: Networks and Organization concludes that conservative lawyers, and particularly the Federalist Society, occupies a structurally important core bridging the gap between the religious and business constituencies on the right, which otherwise wouldn't interact. Meanwhile,
Do Republican Judges Cite Other Republican Judges More? concludes that judges tend to base outside-circuit citation decisions on the political party of the cited judge, tend to cite judges of the opposite political party significantly less, are more likely to engage in biased citation practices in certain high stakes situations, and cite disproportionately more to those judges that cite back to them frequently.
[via Professor Bainbridge and Empirical Legal Studies]
posted by monju_bosatsu
on Jul 18, 2006 -
10 comments
Legal Theory Lexicon. A companion to Prof. Larry Solum's
Legal Theory Blog, the Lexicon collects Solum's introductory posts on various aspects of legal theory. The Lexicon does a spectacular job of providing both a clear introduction to a wide range of basic and advanced topics, as well as references for more advanced reading.
posted by monju_bosatsu
on Jul 17, 2006 -
4 comments
SCOTUS strikes down campaign finance restrictions [pdf]. The Supreme Court issued an opinion today in
Randall v. Sorrell, striking down limits on campaign contributions and campaign spending imposed by the state of Vermont. The Court, in a fractured opinion (six separate opinions, including two dissents), concluded that restrictions on both contributions and expenditures ran afoul of the First Amendment.
More from Amy Howe at SCOTUSblog. Expect more from
Rick Hasen later today.
posted by monju_bosatsu
on Jun 26, 2006 -
81 comments
Why Tolerate Religion? Brian Leiter's new paper on the philosophical and legal justifications for toleration of religion. From the abstract:
Religious toleration has long been the paradigm of the liberal ideal of toleration of group differences, as reflected in both the constitutions of the major Western democracies and in the theoretical literature explaining and justifying these practices. While the historical reasons for the special “pride of place” accorded religious toleration are familiar, what is surprising is that no one has been able to articulate a credible principled argument for tolerating religion qua religion: that is, an argument that would explain why, as a matter of moral or other principle, we ought to accord special legal and moral treatment to religious practices. There are, to be sure, principled arguments for why the state ought to tolerate a plethora of private choices, commitments, and practices of its citizenry, but none of these single out religion for anything like the special treatment it is accorded in, for example, American and Canadian constitutional law. So why tolerate religion? Not because of anything that has to do with it being religion as such - or so this paper argues.
posted by monju_bosatsu
on May 30, 2006 -
126 comments
David Garrow reviewed
Justice Blackmun's papers,
released to the public in 2005, and
concludes that towards the end of his career, Blackmun's clerks all but signed his opinions. In an
interview, discussing senility and Supreme Court Justices, Garrow argues that there has been "a dramatic increase over the last 35 or 45 years in the amount of the justices’ work that is performed by their law clerks," and recommends a "reduction to two or, even better yet, one clerk" from the four clerks available per Justice now. Garrow also comments on the now-deceased Chief Justice Rehnquist, who suffered from an
addiction to painkillers in the 1980s. Garrow's view is
controversial, though, and Legal Affairs published
several responses in the same issue. Other law professors have weighed in, including
Dan Markel,
Mark Tushnet, and some of the folks at the
Volokh Conspiracy. So how
large is the
impact of law clerks?
posted by monju_bosatsu
on Feb 15, 2006 -
63 comments
The
Oyez Project has placed online mp3s for
all of the arguments from the 2004 term of the United States Supreme Court. The 2004 terms spans all cases argued between October 4, 2004, and April 27, 2005, including
United States v. Booker and United States v. FanFan,
Roper v. Simmons ,
Raich v. Gonzales,
Kelo v. City of New London,
McCreary County v. ACLU, and
Van Orden v. Perry.
[slightly more inside]
posted by monju_bosatsu
on Feb 7, 2006 -
25 comments
The Supreme Court
decided Ayotte v. Planned Parenthood today, vacating the lower court's ruling that the parental notification statute was unconstitional. Instead, the Court instructed the lower court to consider narrower relief. The Court, in an
opinion [pdf] written by Justice O'Connor, held that if enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.
[more inside]
posted by monju_bosatsu
on Jan 18, 2006 -
33 comments
Supreme Court upholds Oregon's assisted suicide law. Justice Kenedy wrote the opinion for the majority, concluding that Ashcroft did not have the authority to sanction doctors under the Controlled Substances Act. Justice Scalia dissented, joined by Justice Thomas and Chief Justice Roberts. Thomas also wrote a separate dissent. The Washington Post has the
opinions, and you can get the
pdf from the Supreme Court's website.
posted by monju_bosatsu
on Jan 17, 2006 -
44 comments
In July, Georgia federal judge William C. O’Kelley ordered Barrow County to remove a Ten Commandments plaque from its courthouse. The suit was filed by
ACLU Georgia, which not only succeeded in getting the plaque removed, but also recovered $150,000 in attorneys’ fees and expenses.
Ten Commandments-Georgia pledged to reimburse the county for its legal expenses. In order for the group to raise the last $52,000 it needs to meet that pledge, it has put the actual Ten Commandments plaque that was removed from the courthouse under the order of the court
up for auction on eBay.
posted by monju_bosatsu
on Sep 13, 2005 -
40 comments
The Supreme Court
ruled today that Michael Newdow did not have standing to sue on behalf of his daughter in challenging the recitation of the pledge in a public school classroom in California.
posted by monju_bosatsu
on Jun 14, 2004 -
81 comments
Looks like Rice will testify before the 9-11 Commission after all. In a
letter sent by White House counsel Alberto Gonzales to the Sept. 11 commission, Gonzales notes:
Furthermore, we have now received assurances from the speaker of the House and the majority leader of the Senate that, in their view, Dr. Rice's public testimony in connection with the extraordinary events of September 11, 2001, does not set, and should not be cited as, a precedent for future requests for a national security adviser or any other White House official to testify before a legislative body.
Separation of powers question: If the institution of the separation of powers is a set of informal arrangements between the branches, which continually look to previous practice, how can this
not be a precendent?
Various blawgs weigh in.
posted by monju_bosatsu
on Mar 31, 2004 -
48 comments
Anthony Argyriou uncovers what seems to be a serious problem either with California voting machines or the vote tallying system:
The Secretary of State's summary of votes on the Davis recall shows three counties--Alameda, Kern, and Plumas--that apparently had
zero voters who didn't vote on the recall. Not one. All three counties used Diebold machines. Other counties ranged from 0.5% to 10.3% of voters not voting on the recall.
More from Rick Hasen, a top election law scholar.
[Via Volokh.]
posted by monju_bosatsu
on Nov 16, 2003 -
41 comments
