The Unitary Executive Theory As Government-Smasher
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- 2025-07-25 14:58 event
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When Jed Barden joined Lawyerist Lab, his firm wasn’t failing. But it wasn’t sustainable either. He and his wife (and […] The post How Jed Barden Doubled His Hiring Capacity and Took Back His Life appeared first on Lawyerist. News Articles, Case Study
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Emergency docket orders should ‘inform’ courts in similar cases, SCOTUS says
A serious multi-vehicle crash accident on Highway 99 in Alameda, California, sent multiple people to the hospital Thursday afternoon, highlighting the ongoing safety concerns on one of the region’s busiest thoroughfares. The collision involved up to seven vehicles, including a pickup truck and a semi-truck, which occurred near the Houghton Road offramp around 3:45 PM on July 24, 2025. Details of the Highway 99 Accident According to the California Highway Patrol (CHP), the collision began when a pickup truck crossed through the center divide, traveling from the northbound lanes into oncoming southbound traffic. The pickup truck collided with a semi-truck, causing the smaller vehicle to burst into flames upon impact. The force and location of the collision created a chain reaction involving as many as five additional vehicles. The semi-truck came to rest in a field on the right side of the highway, while debris and emergency response vehicles temporarily blocked multiple…
Original photo: Matt H. Wade via Wikipedia / CC-BY-SA-3.0It is a misnomer to discuss the current Supreme Court’s “jurisprudence” on anything, as if it has an approach to any legal question other than, “because we said so, libtard.” But in the wake of the Court’s lawless and arbitrary use of the shadow docket to destroy statutes and precedents for the purpose of giving Donald Trump greater power – and not even bothering to explain why – something did occur to me. To the extent that there is any jurisprudence behind the Court’s destruction of the Department of Education, the Consumer Product Safety Commission, the Merit Systems Protection Board, and what will surely be environmental and public health agencies, it lies in the Unitary Executive Theory, a doctrine invented out of whole cloth by Antonin Scalia and other right-wingers in the 80’s and 90’s. The idea is that the executive power is invested in the…
(Photographer: Stefani Reynolds/Bloomberg)The Supreme Court’s shadow docket has become a lawless mess. The justices are issuing extremely consequential rulings with either no explanation at all, or with barely a paragraph of reasoning. No full briefing. No oral arguments. Just vibes-based constitutional law that lower courts are somehow supposed to follow. Now the Court has made this chaos worse by essentially telling lower courts to treat these half-baked emergency rulings as more important than actual binding precedent. If you’re a district court judge, what do you do? Follow the actual binding precedent, or guess at what the Supreme Court’s vibes-based constitutional law might mean? Earlier this week, we wrote about a district court judge who faced this impossible situation. She was bound by the Supreme Court’s 1935 precedent in Humphrey’s Executor, which clearly states that Presidents cannot fire the heads of independent…
On Wednesday, July 23, the International Court of Justice (ICJ) in the Hague issued its long-awaited advisory opinion on climate change, thereby concluding the biggest-ever proceedings before the “World Court.” This landmark opinion, while not legally binding in its own right, carries major persuasive legal weight. Given the legal and moral authority of the Court, the quality and scope of its reasoning and the scale of participation by States and international organizations in the proceedings, this opinion is sure to inform international litigation, U.N. Conference of Party negotiations (in the context of the U.N. Framework Convention on Climate Change (UNFCCC) and the Paris Agreement), and domestic procedures going forward. This article analyzes some of the key points among those the Court covered in its 140-page opinion. Context of the Proceedings This opinion stems from mobilization that began as a student-led initiative, supported by Vanuatu and a core group of…
Rights and Responsibilities is a recurring series by Richard Garnett on legal education, the role of the courts in our constitutional structure, and the law of religious freedom and free expression. Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff. One of the more closely watched, “hot-button” cases of the Supreme Court’s recently wound-down 2024-25 term was Mahmoud v. Taylor. (For more, see my friend Asma Uddin’s helpful July 1 review and discussion of the decision.) In a nutshell, the case involved several parents’ First Amendment challenge to a Maryland school district’s policy banning notice about, and “opt outs” from, certain books and lessons regarding gender identity and sexual orientation. The court ruled, in a 6-3 decision, that the policy (likely) imposes a “burden” on the objecting parents’ religious-freedom rights and that…
From a recent email message: The Marquette Intellectual Property and Innovation Law Review is now accepting papers for Volume 30, Issue 1 (Fall/Winter Issue). The Marquette Intellectual Property & Innovation Law Review invites the submission of unsolicited manuscripts by scholars and practitioners that offer critical, reflective thinking on important, cutting-edge issues in intellectual property. Our editorial board and staff work closely with authors to provide a thorough editing process for accepted articles prior to publication. Managing editors supervise staff members as they verify cited sources, edit footnotes for accuracy, and review the article text to ensure readability while maintaining the author’s unique voice. MIPILR publishes scholarship devoted to all areas of intellectual property and innovation law, including patents, copyrights, trademarks, trade secrets, privacy, technology and computer law, and the law of entrepreneurship. We are also open to…
How David Sacks’ AI Policy Doctrine Threatens Political Expression The Legal Thimblerig: Fair Use Meets Safe Harbor Big Tech loves them some safe harbors because Big Tech is just, you know, special people and smarter than you. Laws are for the little people, safe harbors are for the special people from Silicon Valley and David Sacks is no different. If you’ve never heard of him, David Sacks is the Viceroy of Silicon Valley and AI Czar. He holds himself out as the head of America’s AI strategy in his capacity as a part time Special Government Employee. Of course it’s patently illegal for an SGE to be a department head, so in Mr. Sacks case he must be a Very Special Government Employee. Mr. Sacks also has a very special take on the affirmative defense of “fair use”. Fair use under 17 U.S.C. § 107 was originally designed to balance copyright with freedom of expression. Courts…
Pix credit hereWestern news organs recently reported on the high level meeting between European Union and Chinese officials. The focus was on the spaces that separate them and challenges to further or deepening cooperation. Chinese President Xi Jinping met with European Commission President Ursula von der Leyen in Beijing at a tense bilateral summit, making no headway on geopolitical disputes and only modest advances on trade and climate change. While EU leaders raised concerns over China's export surplus flooding European markets with cheap goods, and Beijing allegedly providing support for Russia's war in Ukraine, Chinese officials denied responsibility for these challenges and instead called for a deepening of the partnership. "As our cooperation has deepened, so have imbalances," von der Leyen told Xi during their meeting, describing EU-China trade imbalances as having reached "an inflection point" where China must "come forward…
For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).Richard Primus If I ever doubted that the production of knowledge was a collective activity, my experience as the author of The Oldest Constitutional Question would set me straight. While writing the book, I learned so much from so many interlocutors. It would have been impossible to write the book without the criticisms and contributions of other people—not just one or two, but dozens. Now that the book exists, I continue to learn from the reactions of scholars like the seven who participated in this symposium: Christina Ponsa-Kraus, Sandy Levinson, Jonathan Gienapp, Bill Ewald, Will Baude, Abbe Gluck, and John Mikhail. It’s a privilege to have one’s work taken so seriously by such a distinguished group. I’m deeply grateful to them——and also to…
Letter to the Editor, Criticizing the actions of the current administration, particularly the actions related to the deportation of Venezuelan nationals to El Salvador, is a fair topic for discussion. Questioning the credibility and sufficiency of the assurances obtained by the United States is a reasonable question to explore. Ascribing indifference or, at worst, malevolent motives to career attorneys who, as Mr. Finucane should know, are unable to refute such claims as they are likely to be bound by privilege is truly disappointing. As such, I cannot comment on the substance of the article because I am still a government attorney, for a few more days. I find it surprising, particularly from someone who spent time in the Office of Legal Adviser, that this article demonstrates a fundamental lack of understanding of the role of the attorney in the federal government. We research, debate, raise concerns, question and test the legal basis for actions and then we give our advice.…
Symposium, AI and Legal Education and Legal Profession, 31 Int'l J. Legal Prof. 293-363 (2024): Amanda Head (Macquarie University) & Sonya Willis (Macquarie University; Google Scholar), Assessing Law Students in a GenAI World to Create Knowledgeable Future Lawyers, 31 Int'l J. Legal Prof. 293 (2024) Fife Ogunde (Government of Saskatchewan),...