[Paul Cassell] Do crime victims have an interest in avoiding unreasonable delay in criminal appeals?

The “Contemplation of Justice” statue in front of the Supreme Court building in Washington. (Andrew Harrer/Bloomberg)

My friends at Arizona Voice for Crime Victims, represented by some very capable pro bono attorneys at Gibson Dunn’s Dallas office, just filed an amicus brief with the Supreme Court presenting an important issue concerning crime victims’ rights. The amicus brief explains that decades-long delays in capital cases cause significant harms to the family members of murder victims. The brief urges the court to grant the cert petition previously filed by the state of Arizona in a long-delayed capital case to explore whether these interests of the victims’ families should be considered when deciding how jurisdictional deadlines apply in capital cases.

Here is a streamlined summary of the facts, taken from the amicus brief.

On June 8, 1987, Theodore Washington brutally murdered Sterleen Hills. Washington shot Mrs. Hills at close range with a 12 gauge shotgun. He also shot Ralp..

[Eugene Volokh] Liberal UC Berkeley law professor Dan Farber on Neil Gorsuch

Supreme Court nominee Neil Gorsuch. (Drew Angerer/Getty Images)

From Politico’s mini-symposium on the Gorsuch nomination, an item by Professor Dan Farber, a noted liberal constitutional law and environmental law scholar (and one who, unlike me, has no longstanding friendship with Gorsuch):

Based on what we know so far, trying to stall Neil Gorsuch’s nomination seems wrong on principle. I say that as someone who fervently supported Merrick Garland and found the GOP blockade of his nomination appalling. It’s understandable that many Democrats think it would be only fair to return the same treatment. But I think it would be wrong.

I had never heard of Gorsuch until I read and blogged about one of his opinions that came down in July 2015. The case involved a challenge to a Colorado law mandating that utilities get at least 20 percent of their electricity from renewable energy sources. The specific issue was too esoteric to get into here, but the law was sufficiently unclear that a judge..

[Ilya Somin] Originalism, living constitutionalism, and outrageous outcomes

Harvard Law School Professor Cass Sunstein, one of the nation’s leading constitutional theorists, recently wrote a column arguing that consistent application of originalism might lead to a variety of “intolerable” results:

1. States can ban the purchase and sale of contraceptives.

2. The federal government can discriminate on the basis of race — for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.

3. The federal government can discriminate against women — for example, by banning them from serving in high-level positions in the U.S. government.

4. States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.

5. Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.

6. States can establish Christianity as their official religion.

7. Important provisions of n..

[Eugene Volokh] The anti-free-speech movement at UC Berkeley

Protesters watch a fire on Sproul Plaza during a rally against a scheduled speaking appearance by Breitbart News editor Milo Yiannopoulos on the University of California at Berkeley campus on Wednesday. (Ben Margot/Associated Press)

From the Los Angeles Times (Matt Hamilton, Teresa Watanabe & Peter H. King):

A speech by conservative firebrand and British writer Milo Yiannopoulos was canceled at UC Berkeley on Wednesday amid a violent protest that sparked at least one fire….

Witnesses said some windows were broken at the Martin Luther King Jr. Student Union, where Yiannopoulos was scheduled to speak at an event hosted by the Berkeley College Republicans.

The same thing happened last month at UC Davis….

In the weeks before Yiannopoulos’ planned Berkeley appearance, administrators received hundreds of letters from faculty, students and others demanding they bar him from speaking.

One letter from a dozen faculty members argued that his talk could be canceled on the grounds that his a..

[Eugene Volokh] Ninth Circuit battle: May Arizona deny driver’s licenses to beneficiaries of Obama’s Deferred Action for Childhood Arrivals program?

Thursday, a U.S. 9th Circuit of Appeals panel in Arizona Dream Act Coalition v. Brewer refused to reconsider its earlier decision striking down Arizona’s refusal to issue driver’s licenses to beneficiaries of President Barack Obama’s Deferred Action for Childhood Arrivals program:

DACA recipients are noncitizens who were brought to this country as children. Under the DACA program, they are permitted to remain in the United States for some period of time as long as they meet certain conditions. Authorized by federal executive order, the DACA program is administered by the Department of Homeland Security and is consistent with the Supreme Court’s ruling that the federal government “has broad, undoubted power over the subject of immigration and the status of aliens” under the Constitution.

In response to the creation of the DACA program, instituted a policy that rejected the Employment Authorization Documents … issued to DACA recipients under the DACA prog..

[Eugene Volokh] Judge Neil Gorsuch on libel law, the media and the Aryan Brotherhood

Judge Neil Gorsuch (European Pressphoto Agency/Shawn Thew)

I’ve been excerpting some of Judge Neil Gorsuch’s most interesting opinions so that readers can see for themselves Gorsuch’s writing style — and, perhaps, something of his jurisprudential approach. Here is much of the opinion from an interesting libel case of his, Bustos v. A & E Television Networks (10th Cir. 2011). I’ve excluded most of the citations, but you can see them (together with an interesting discussion of the “libel-proof plaintiff” theory) in the original case — for now, note that the opinion relies heavily on applying existing Colorado law (the relevant law for purposes of this case) and on law from other jurisdictions when Colorado law is absent:

Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no. While the statement may cause you..

[Orin Kerr] Google must turn over foreign-stored e-mails pursuant to a warrant, court rules

A federal magistrate judge handed down an opinion this afternoon, In re Search Warrant No. 16-960-M-01 to Google, ordering Google to comply with a search warrant to produce foreign-stored e-mails. The magistrate judge disagrees with the Second Circuit’s Microsoft-Ireland warrant case, recently denied rehearing by an evenly-divided court. Although the new decision is only a single opinion by a single Magistrate Judge, the decision shows that the Department of Justice is asking judges outside the Second Circuit to reject the Second Circuit’s ruling — and that at least one judge has agreed.

The new case involves two routine Stored Communications Act warrants served on Google for the contents of e-mails. Google responded with the e-mails that it knows were stored inside the United States, but it refused to turn over e-mails that could be outside the United States. Because Google breaks up its e-mails and the network might distribute them anywhere in the world, Google can’t know where many..

[KC Johnson and Stuart Taylor] Campus sexual assault and the Brown trial

Although the general rule on America’s campuses today is that students accused of sexual assault are denied a fair chance to defend themselves, some schools stand out for their special zeal on the matter.

This list includes Amherst, Swarthmore, Occidental, Columbia and Brown; this post examines Brown, which has been sued by at least four accused students in recent years. It has not prevailed in any of those cases, with one pending. Yet even as the university was suffering multiple defeats in the courts, it has revised its procedures — under strong pressure from students and some faculty — to weaken the meager protections that accused students once had.

These changes led to the first full-scale trial in a campus sexual assault lawsuit since before April 2011, when the Obama administration required colleges to adopt procedures more likely to find students guilty. The trial occurred this past summer, before Chief Judge William Smith of the U.S. District Court in Providence. The public n..

[Ilya Somin] Video of Reason Foundation panel on “Immigration Reform in the Era of Trump”

I recently participated in a Reason Foundation panel on immigration policy under Trump. The video is available here. The other participants were economist Tim Kane (Hoover Institution) and Shikha Dalmia of the Reason Foundation. Kane outlined the economic benefits of increased immigration, Dalmia assessed the impact of immigration restrictions on civil liberties, and my presentation focuses on the moral case for increasing immigration (an issue I covered in greater depth here).

[Eugene Volokh] Proposed R.I. bill: Any judge who is ‘person of color’ must be replaced by another ‘person of color’

A bill introduced by Rhode Island legislator Anastasia P. Williams would require that, whenever a Rhode Island trial judge “who is a person of color leaves the bench, for whatever reason, their replacement must be a person of color, so as not to diminish the number of judges of color in that court.”

Such a rigid racial allotment would be a pretty clear violation of the Equal Protection Clause, I think, even given the narrow forms of race-based preferences that the Supreme Court has allowed; and I think it would violate the even more explicit provision in the Rhode Island Constitution:

No otherwise qualified person shall, solely by reason of race, gender or handicap be subject to discrimination by the state, its agents or any person or entity doing business with the state.

But in any event, I thought I’d mention it.

(I learned of this from Gavel to Gavel, a very useful — and nonideological — blog run by Bill Raftery at the National Center for State Courts.)