:: welcome to

NINOMANIA

:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


"Scalialicious!"
-- Eve Tushnet


"Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of Ninomania for Frankfurter."
-- Mark Tushnet
(I agree, and commented here.)


"The preeminent Scalia blog"
-- Underneath Their Robes


 Subscribe in a reader



Site Feed


Also please visit my opera blog, Box Five!

    follow me on Twitter



    Bloglinks:

    Above the Law, by David Lat

    Balkinization

    CrimLaw

    Duncan's Con Law Course Blog

    Eve Tushnet

    Eye of Polyphemus, by Jamie Jeffords

    How Appealing

    Hugh Hewitt

    Justice Thomas Appreciation Page

    Legal Theory Blog

    Lex Communis

    Opinio Juris

    Overlawyered.com

    Paper Chase (from JURIST)

    Point of Law (Manhattan Inst.)

    Professor Bainbridge

    Public Discourse

    Redeeming Law, by Prof. Mike Schutt

    SCOTUS Blog

    Volokh Conspiracy

    WSJ Law Blog





    Other fine sites:

    Alexander Hamilton Inst. for Study of Western Civilization

    Ave Maria School of Law

    Center for Thomas More Studies

    Family Defense Center

    The Federalist Society

    The Founders' Constitution

    George Mason University School of Law

    Immigration and Refugee Appellate Center

    Judged: Law Firm News & Intelligence

    JURIST

    Law Prose (Bryan Garner)

    Liberty Library of Constitutional Classics

    National Lawyers Association (alternative to ABA)

    Supreme Court decisions

    The Weekly Standard



    Something I wrote about marriage


    lawyer blogs


    [::..archive..::]
    ::

    :: Thursday, June 28, 2007 ::
    OK, Panetti doesn't rely on foreign law (except insofar as it relies on the Court's own precedents that do so). Much of the controversy involves trying to construe a precedent by Justice Powell, a sisyphean undertaking to begin with. Decisions like this, that give capital defendants a bite at the apple late in the process, when (according to Justice Thomas's dissent) state procedure already affords him numerous bites, have the effect of backloading and prolonging such litigation. That's not a good thing, but I can't get too fussed about it.

    Some more analytic rigor in 8th Am. analysis would be most welcome, but again, "death is different," so if conservatives are going to lose one today, this was definitely the one to lose.

    Now, about Leegin Creative and overruling Dr. Miles: the debate here is not only about the anticompetitive effects vel non of vertical price restraints, but also about the standards for overruling precedent. Justice Breyer in dissent embraces the idea -- more commonly associated with conservatives advocating the overruling of Roe -- that the Court should be less willing to overrule statutory precedents, as opposed to constitutional ones, because erroneous statutory precedents can easily be nullified by Congress.

    Yes, says the majority, but the Sherman Act (like death?) is different, because it has always been understood by the Court as giving it a mandate to create a "common law" of antitrust, and therefore the Court properly takes account of shifting trends in the market and in scholarly opinion, both among lawyers (Robert Bork is extensively cited) and economists.

    Aside from the fact that use of the term "common law" in connection with anything at the federal level of American lawmaking makes me want to scream and break things, the majority is right. I myself won't call it common law, because that's what states do, and I won't call it delegation, because that's what Congress tries to get away with doing to agencies (and almost always does). But it's pretty clear that Congress foresaw in the Sherman Act, and has since then been content with, the courts exercising wide interpretive latitude in this area.

    :: David M. Wagner 11:02 AM [+] ::
    ...

    Site Meter
    This page is powered by Blogger. Isn't yours?