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Legal Nerdsniping

The Volokh Conspiracy is a frequently-updated blog about legal issues. It reports on interesting upcoming court cases and recent court decisions and sometimes carries thoughtful and complex essays on legal theory. It is hosted by, but not otherwise affiliated with, the Washington Post.

Volokh periodically carries a “roundup of recent federal court decisions”, each with an intriguing one-paragraph summary and a link to the relevant documents, usually to the opinion itself. I love reading federal circuit court opinions. They are almost always carefully thought out and clearly-written. Even when I disagree with the decision, I almost always concede that the judges have a point. It often happens that I read the decision and say “of course that is how it must be decided, nobody could disagree with that”, and then I read the dissenting opinion and I say exactly the same thing. Then I rub my forehead and feel relieved that I'm not a federal circuit court judge.

This is true of U.S. Supreme Court decisions also. Back when I had more free time I would sometimes visit the listing of all recent decisions and pick out some at random to read. They were almost always really interesting. When you read the newspaper about these decisions, the newspaper always wants to make the issue simple and usually tribal. (“Our readers are on the (Red / Blue) Team, and the (Red / Blue) Team loves mangel-wurzels. Justice Furter voted against mangel-wurzels, that is because he is a very bad man who hates liberty! Rah rah team!”) The actual Supreme Court is almost always better than this.

For example we have Clarence Thomas's wonderful dissent in the case of Gonzales v. Raich. Raich was using marijuana for his personal medical use in California, where medical marijuana had been legal for years. The DEA confiscated and destroyed his supplier's plants. But the Constitution only gives Congress the right to regulate interstate commerce. This marijuana had been grown in California by a Californian, for use in California by a Californian, in accordance with California law, and had never crossed any state line. In a 6–3 decision, the court found that the relevant laws were nevertheless a permitted exercise of Congress's power to regulate commerce. You might have expected Justice Thomas to vote against marijuana. But he did not:

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.”

Thomas may not be a fan of marijuana, but he is even less a fan of federal overreach and abuse of the Commerce Clause. These nine people are much more complex than the newspapers would have you believe.

But I am digressing. Back to Volokh's federal court roundups. I have to be careful not to look at these roundups when I have anything else that must be done, because I inevitably get nerdsniped and read several of them. If you enjoy this kind of thing, this is the kind of thing you will enjoy.

I want to give some examples, but can't decide which sound most interesting, so here are three chosen at random from the most recent issue:

• Warden at Brooklyn, N.Y., prison declines prisoner’s request to keep stuffed animals. A substantial burden on the prisoner’s sincere religious beliefs?

• Online reviewer pillories Newport Beach accountant. Must Yelp reveal the reviewer’s identity?

• With no crosswalks nearby, man jaywalks across five-lane avenue, is struck by vehicle. Is the church he was trying to reach negligent for putting its auxiliary parking lot there?

Check it out.

[ Addendum 20171213: Volokh has just left the Washington Post, and moved to Reason, citing changes in the Post's paywall policies. ]

[ Addendum 20210628: Much has changed since Gonzales v. Raich, and today Justice Thomas observed that even if the majority's argument stood up in 2004, justified by the Necessary and Proper clause, it no longer does, as the federal government no longer appears consider the prohibition of marijuana necessary or proper. ]

[ Addendum 20231218: This article lacks a clear, current link to the Short Circuit summaries that it discusses. Here's an index of John Ross' recent Short Circuit posts. ]

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