Last week, witnesses before the Senate Judiciary Committee faced much more amicable questions than then-Judge Gorsuch. In a rare moment of bipartisan consensus, Senators on both sides of the aisle agreed to pass legislation by year end. The subject: law enforcement’s ability to collect email evidence under the Electronic Communications Privacy Act (“ECPA”). While electronic communications have changed rapidly, the law protecting consumers’ private data has stood still. ECPA was written when Facebook founder Mark Zuckerberg was two years old. Back then, emails were an up-and-coming technology with no international implications, and storing an email was a costly affair. As the hearing last week underscored, it is time for Congress to take ECPA out of storage and fix it. [Read More]
Earlier this week, the Federalist Society hosted a teleforum conference call to discuss that subject. Brett Shumate of Wiley Rein addressed the impact of the president's appointments on the D.C. Circuit, and I addressed the same question as applied to the Ninth Circuit, with particular reference to the latter court's environmental law jurisprudence.
The president has appointed seven new judges to the Ninth Circuit. Interestingly, three of them come from the same California appellate law firm, Munger Tolles & Olson. The remainder have the typical background of DOJ and lower court experience. Although all of the appointments could fairly be described as liberal in their basic outlook, they appear to lack much of the "green" taint of prior Democratic appointees to the Ninth Circuit. Instead, the new appointees appear to prefer to defer consistently to federal agency decision-making, even as against environmentalist challenges to an arguably "anti-green" result. [Read More]
The United States is famously a nation of laws and not of men—or must we now say “persons”?—but what, exactly, does that mean? And, more important, is that still even true? In many ways it isn't. And the further from the rule of law we stray, the less of a Republic we become. [Read More]
Because the U.S. Constitution is dedicated to liberty through limited government, power is divided between the federal and state governments and separated among the three branches of the federal government—the purpose in both cases being to pit power against power in order to check it. Stare decisis, the principle that courts should follow previous rulings when deciding similar cases, plays a limited but important role in that undertaking: it gives notice to actors in the political branches and the states about what the law is and what it will likely be in the future, thus securing the rule of law. Furthermore, it enables private parties also to adjust their behavior and plan ahead; especially in economic and business affairs, where long-term investments are common, legal stability and predictability are crucial. ... [Read More]