The Latest Breaking News from Alito

Predicting a Fragmented Vote in United States v. Texas

I don't think there will be a five vote bloc on standing or the remedy.

Reason · Dec 3, 2022

Some Thoughts on Elite-Law-School Bias in Clerkship Hiring

Does the bias exist? Is it a good thing? What does it mean for law students at lower-ranked schools? What does mean about me?

Reason · Nov 15, 2022

Life Imitates the Volokh Conspiracy

A reader reminded me of this blog post Jan. 24, 2022: Will the Supreme Court Ask Harvard How it Justifies Treating "Asian Americans" as a Homogenous Category? I wrote: "I'm not quite sure what Harvard's lawyer would or could say if asked why, say, Filipino, Nepalese, and Mongolian applicants are…

Reason · Nov 5, 2022

The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part V: The Abuse of Strict Scrutiny

I will conclude this series of posts by considering the variants of MFN that affect the way strict scrutiny is applied. MFN-6, ubiquitous in the Covid cases, makes strict scrutiny impossible to satisfy, by treating as equivalents regulated actions that are radically different in their effects on the pertinent state…

Reason · Aug 19, 2022

The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part II: The Origins of MFN

The present doctrinal development begins with Church of Lukumi Babalu Aye v. Hialeah (1993), in which the Court invalidated a ban on animal sacrifice. The Court had previously held that there was no right to religious exemptions from neutral laws. But this law wasn't neutral. It targeted an unpopular religion…

Reason · Aug 16, 2022

The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part I: The New Law of Free Exercise

Eugene has kindly invited me to contribute a series of posts, briefly describing my taxonomy of new variants of the most-favored-nation theory of religious liberty (forthcoming in the Iowa Law Review). I'm particularly pleased by the invitation, because I wrote the piece in conscious emulation of the kind of careful…

Reason · Aug 15, 2022

Should the Law Limit Private-Employer-Imposed Speech Restrictions? Some Other Reasons Why

As I mentioned yesterday, ten years ago I wrote a descriptive and analytical law review article called Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I'm returning to the subject, trying to analyze the strongest arguments for and…

Reason · Aug 3, 2022

Let's talk about 8 U.S.C. § 1252(f)(1) and Justice Barrett's concurrence in Biden v. Texas

As (yet another) Texas v. U.S. slides from the shadow docket to the rocket docket

Reason · Jul 23, 2022

Kagan Clings To Casey's Conception of Legitimacy

Like the Constitution itself, Casey's precedent on precedent is dead.

Reason · Jul 22, 2022

When Are Lies Constitutionally Protected?: Unpunishable Lies

[I'm working on a draft article called When Are Lies Constitutionally Protected?, and I thought I'd serialize it here, since I still have plenty of time to improve it; I'd love to hear your thoughts on it! (You can also read the whole article here; all the posts about it…

Reason · Jul 19, 2022