Above The Law

Since April 2013, I’ve written a weekly opinion column on law & politics from a conservative-libertarian perspective for the popular legal site Above the Law.  In addition to my column, I occasionally post pieces on legal education, popular culture, books, and other non-political topics that strike my fleeting fancy.  A frequently updated — though not always frequently enough — list of my contributions follows.


2 May 2016 – 3 Arguments In Favor Of Warrantless Breathalyzer Tests – And Why They’re Wrong

For civil libertarians, some states’ drunk driving laws really blow. And, unless drivers in some of those states want to face criminal penalties for refusing to submit to a warrantless Breathalyzer test, those drivers had better blow too.

Currently, 12 states, as well as the National Parks, make it a crime for a driver to refuse to comply with breath or blood sobriety tests when a police officer suspects that the driver is intoxicated. A person can be guilty of the offense even when officers have not obtained a warrant first.

That may change, however.

Recently, the United States Supreme Court heard oral arguments in Birchfield v. North Dakota. The case asks the Court to decide whether a state can make it a crime for a person suspected of drunk driving to refuse a warrantless breath or blood test to determine his blood-alcohol level. The Justices will consider whether either type of chemical sobriety test falls within any of the exceptions to the Fourth Amendment’s general rule prohibiting warrantless searches.

Here are three reasons why the government thinks it doesn’t need to get a warrant before making you blow or bleed . . . and why they’re wrong.

18 April 2016Why I Will Miss ATL’s Comments

In the past three years that I have written for Above the Law, I have had comments question the nature and quality of: my intellect, my legal pedigree, my political philosophy, my chastity, my reproductive history, my weight, my breasts, my relationships with members of various racial and ethnic groups, and my relationship with objective reality itself. So why would I, of all people, be disappointed that Above the Law will no longer allow comments?


11 April 2016What Else Is Terrible About Trump’s Abortion Comments

If you listen carefully to Donald Trump responding to public questions about his stance on abortion, you can also hear him reveal a few of his fundamental beliefs about law and social policy more generally . . . .


28 March 2016No Matter What You Think Of Abortion, The Man Behind The Planned Parenthood Videos Deserves To Be Prosecuted

Lots of conservatives and foes of abortion have rallied to David Daleiden’s defense, condemning the indictments or praising Daleiden for fighting for his cause.

Not me.

Though I strongly oppose abortion and am critical of Planned Parenthood, I have no problem with prosecuting David Daleiden. Here’s why David Daleiden deserves what he’s getting . . . and should be grateful that he’s not getting worse . . . .


21 March 2016 –  Merrick Garland Is The Right Man For The Job, But Not The Job You’re Thinking Of

When President Obama nominated Judge Merrick Garland to the United States Supreme Court last week, he may have picked the right man for the job. Unfortunately for Merrick Garland, the job in this case is probably not serving on the Supreme Court . . . . 


14 March 2016Why A Nude Portrait Of Donald Trump Should Worry Everyone In America

Artist Illma Gore’s “Make America Great Again” depicts a decidedly doughy Trump, one knee propped up, awkwardly displaying what can fairly be described as a very, very small penis. But the portrait isn’t disturbing simply because it offers a vision of a nude Trump. It is disturbing because it offers a vision of what free expression could look like if Donald Trump is allowed to remain in politics. That vision should worry us all . . . .


26 February 2016Why This Judge May Be One Of The Only Supreme Court Nominees Worth Considering

If we stand any chance of having a 9-member Supreme Court any time in the next 14 months, both the President and the Senate will need to show a spirit of good faith and compromise. I argue that Judge Gregg Costa on the Fifth Circuit — Democrat! Rehnquist clerk! — is exactly the sort of nominee we need right now . . . .


21 February 2016Why Everyone Should Read A Scalia Opinion Today

This week, U.S. Supreme Court Justice Antonin Scalia was laid to rest.  I can think of no more fitting way of marking his passage into history than by reading his work. This is true whether reading that one opinion affirms how much you honor Justice Scalia as an icon of unflagging, right-minded legal method, or it reminds you of why you are glad that there will never be another opinion beginning with “Scalia, J., delivered the opinion of the Court . . .  . “


1 February 2016After 10 Years, Sam Alito Is The Most Important Conservative On The Supreme Court

Happy tenth anniversary, Justice Alito! It seems like only yesterday that Ted Kennedy was pronouncing your name “Al-ee-oh-toh” in your Senate confirmation hearings . . . .


20 January 2016Birthers Beware: Why Court Challenges To Ted Cruz’s Citizenship Can’t Win

Any legal resolution to the question of Ted Cruz’s citizenship must involve a justiciable case — no advisory opinions, no generalized grievances, no political questions. Unless Donald Trump or other Cruz critics can overcome that burden, they simply can’t win. In fact, they can’t even be heard . . . .


8 January 2016Sandra Bland And What No One Seems To Know About Their Rights

Traffic stops are among the most common encounters with law enforcement that most Americans will have. If the average citizen in our Constitutional republic has no clue what their rights or duties are during these commonplace encounters with law enforcement, then we’re doing it wrong . . . .


21 December 2015Does It Matter That Waco DAs Charged 100+ Bikers In A ‘Murder’ That May Never Have Happened?

District Attorney Abel Reyna may not be able to get a grand jury to indict a ham sandwich, but he could probably get a grand jury to indict defendants for the murder of a ham sandwich.

After all, that couldn’t be too much harder than what he’s actually just done. Reyna recently convinced a grand jury to indict numerous defendants in the death of a victim whose existence nobody seems able to confirm, whose murder probably never happened . . . .


8 December 2015Aloha, Racism! The Supreme Court Stops The Vote Count In A Hawaii Election That Excludes White People & Foreigners

The United States Supreme Court recently halted the counting and certification of ballots in a controversial Hawaii election. The case, Akina v. State of Hawaii, shows what serious — and seriously complex — race issues look like off the shores of the American mainland . . . .


23 November 2015What Happens To A Texas Veterinarian Could Make A Difference In What You’re Allowed To Say

What happens to one Texas veterinarian could make a big difference in the lives of licensed professionals across the country, including attorneys.

When the United States Supreme Court holds its next conference this Tuesday, November 24, the Justices will consider whether to grant certiorari in the case of Hines v. Alldredge. If SCOTUS agrees to hear the case, the Court’s decision could be one of its most important rulings to date on the legal status of occupational speech — speech performed in the context of one’s occupation or profession . . . .

15 November 2015Missouri Professor Opts For Coddling Kids Over First Amendment Rights of Journalists

When we’re old, members of Generation Y will start yanking our feeding tubes and smothering us with pillows when caring for us becomes inconvenient for them. In my piece, I explain what that prognostication has to do with the First Amendment and the University of Missouri.

I mean, as if it weren’t already obvious . . . .

26 October 2015Is This What ‘Exoneration’ Looks Like To Alan Dershowitz?

In interviews and in his recent deposition, Alan Dershowitz has claimed that he was able to round up all the documents necessary to exonerate himself within an hour of first hearing the accusations.

After the deposition, though, it looks like Dershowitz might not even know what the documents produced so far look like, much less how they they manage to exonerate him . . . .

19 October 2015Dersh Deposed: Alan Dershowitz Accuses Former Federal Judge of Billion-Dollar Extortion Scheme

After months of media chatter, Alan Dershowitz finally spoke under oath in his defamation suit/countersuit against Paul Cassell (University of Utah law professor and former federal judge), and Brad Edwards (Florida victims’ rights attorney.) I explain how a wild story just got even wilder . . . .

9 Oct 2015The DA Who Is Trying To Shut Up 177 Arrested Waco Bikers Won’t Shut Up

The Texas Court of Criminal Appeals is now reviewing the gag order against those involved with the Twin Peaks shooting. Ironically, the one person who hasn’t followed the order is District Attorney Abel Reyna, the person who asked for the gag order in the first place. In my ATL piece, I discuss why he’s proving his opponents’ point . . . .

6 Oct 2015Supreme Court Conservatives’ Famous Last Words

Justice Anthony Kennedy’s judicial goo and other things to watch for in the coming Supreme Court term . . . .

28 Sep 20157 Handy Tips For The Gaslamp And Other (Allegedly) Racist Nightclubs

When “don’t be racist,” is insufficient guidance . . . .

21 Sep 2015   3 Black Lawyers Don’t Walk Into A Bar: Allegations Of Racism At A Houston Nightclub

Three lawyers walk into a bar . . . .


No, three lawyers don’t walk into a bar, but the story only begins there.

14 Sep 2015Republicans’ Hypocritical Stance on Alabama’s Proposed Porn Tax

The Alabama legislature is poised to pass a bill that would levy a 40 percent tax on the sale or rental of pornographic material. Republicans have led the move.  As conservatives, they should be ashamed of themselves . . . .

31 Aug 2015A Supreme Court Justice Who Does His Job Well, But Bores The New York Times While Doing It

New York Times Supreme Court correspondent Adam Liptak likes throwing shade on U.S. Supreme Court Justice Clarence Thomas.  Liptak’s most recent attempt, focusing on how frequently Thomas quotes in his majority opinions, falls flat in some laughably lame ways . . . .

17 Aug 2015 – The Reason You Haven’t Heard More About The 177 Bikers Arrested in Waco

Whatever happened to all those Waco bikers? You know, the 177 people arrested at the Twin Peaks restaurant in Waco, Texas after a motorcycle rally on May 17 ended with nine people shot dead?

Why did the story fade from public attention? What’s come out since the story broke?

As it turns out, it’s no accident that you haven’t heard more about the Waco biker debacle.  It might have something to do with a questionable gag order . . . .

8 Aug 2015 – Slouching Towards Politics: What Jon Stewart Has Spawned

I’d rather watch even the most nakedly partisan Jon Stewart monologue again and again than see Lena Dunham dance in her panties to a Lil Jon remake in a Rock The Vote video. But that doesn’t mean I like how Stewart changed how some people talk about politics . . . .

1 Aug 2015 – 3 Lies That Linger Even After Rolling Stone’s UVA Rape Story Was Debunked

How many false gang-rape allegations need to happen before everybody cultivates some healthy skepticism?  I wish I knew. Given the number of myths and misconceptions that persist, even after the UVA rape story was discredited, I fear that whatever the number is, we haven’t hit it yet . . . .

24 Jul 2015 – The Questions About The Death Of Sandra Bland That Still Need To Be Asked

Why didn’t Waller County jail officials follow up on the inconsistencies in Sandra Bland’s intake documents?  Didn’t they appreciate the risks associated with depriving her of anti-seizure medication?  Why wouldn’t they put her on suicide watch, knowing that she was taking a medication known to cause suicidal behavior and ideation?

17 Jul 2015 – Summer Reading For Supreme Court Justices

Now that the hurly-burly of October Term 2014 is in the rear view, United States Supreme Court Justices have the opportunity to step away from their chambers. For a few precious months, they can travel, teach, write books. Finally, the Justices have some time to themselves. Maybe read a little fiction. Maybe some take the time to work on themselves, a little personal growth time. Maybe explore their options. After all, a Justice is more than the sum of his or her Court opinions.

Below are some helpful suggestions for each Supreme Court Justice’s summer reading list.

Cert petitions will wait . . . .

14 Jul 2015 – An Open Letter To Judge Richard G. Kopf, Author Of The Blog ‘Hercules And The Umpire’

By writing Hercules and the Umpire, Judge Kopf helped to make the sometimes impenetrable mind of a federal judge more transparent, more open. To the chagrin of some, he published it online, for all the world to see. So, using the same medium to show my gratitude seems right and proper . . . .

10 Jul 2015 – The South Will Rise Again (And This Time It Will Try To Be Less Racist)

Fans of the Confederacy are free to disagree with the removal of Southern symbols as a matter of pure policy, of course. But it would be ironic if people who want to display symbols that they claim only signify states’ rights and self-governance would reject the choices of individual states to govern themselves in a slightly less racially inflammatory way . . . .

12 Jun 2015 – United States v. The Internet: America’s Most Wanted May Look A Lot Like You

5 June 2015 – Clarence Thomas Stands Alone

29 May 2015 – Josh Duggar Is Not The Only One Who Escaped Prosecution

22 May 2015 – Just How Badly Are Authorities Screwing Up The Arrest Of 170 Bikers In Texas?

15 May 2015 – Ben Carson Versus Marbury v. Madison: The GOP Presidential Candidate Questions Judicial Review

8 May 2015 – Chief Justice John Roberts Comes Out

1 May 2015 – The Latest Lethal-Injection Challenge May Depend On The Answer To One Question — And It’s Not What You Think

26 April 2015 – The Latest Legal Superstar To Collide With Alan Dershowitz: David Boies

17 April 2015 – The Sony Hack Emails Are Now Available On WikiLeaks – But Should You Look?

10 April 2015 – The Tyranny of Title IX: How The Case of the Porn-Linking Law Professor Could Be Worse

6 April 2015 – Does Alan Dershowitz Have A Proof Problem?

27 Mar 2015 – Is Death By Firing Squad ‘Cruel & Unusual’? Try Asking Someone Who’s Been Given The Choice

20 Mar 2015 – Persecution For Unpopular Opinions Or Pedagogical Nightmare? Prof Kicks Student From Class For Doubting Rape Stats

7 Mar 2015 – Standing: The Cure For Cert Grantor’s Remorse In King v. Burwell

2 Mar 2015 – What Lawyers Must Learn From Dentists About The Unauthorized Practice of Law

20 Feb 2015 – Speaking Truth To Power Is Only Noble When You Are Actually Speaking The Truth:  The Failed Complaint Against Judge Edith Jones

13 Feb 2015 – Fifty Shades of Liability: The Legal Risks Of Kinky Sex

6 Feb 2015 – Does The ABA Care More About ‘Access To Justice’ Than It Cares About Members’ Access To Jobs?

30 Jan 2015 – Jeffrey Epstein’s Lawyers Want To Seal Documents To Stop The Frolic With The Media

23 Jan 2015 – Can You Be Prosecuted For Sharing A Link? The Troubling Case of Barrett Brown

22 Jan 2015 – Alan Dershowitz’s Accuser Swears By Her Story of Misconduct

16 Jan 2014 – Alan Dershowitz’s Recurring Nightmare: Accusations Of Involvement In Sex Scandal May Be Older Than You Thought

05 Jan 2014 – A Second Look At The Allegations Against Alan Dershowitz

22 Dec 2014 – Sony’s Choice: Is Obama Engaged in Victim Shaming?

15 Dec 2014 – Black Law Professor Sues Predominantly Black Law School . . . For Race Discrimination?

08 Dec 2014 – Should ‘Girls’ Star Lena Dunham Be Prosecuted?

24 Nov 2014 – If Oregon Can Give Death With Dignity, Why Can’t Death Row?

14 Nov 2014 – Legislation By Equivocation, Negotiation By Strangulation, And Other Dumb Ways To Handle Immigration

07 Nov 2014 – When Bar Scores Plummet, Who Will Examine The Examiners?

31 Oct 2014 – Do Physician Assisted Death Laws Deserve To Die With Dignity?

24 Oct 2014 – A High Dollar Koch Habit Should Defense Lawyers Accept Money From The Koch Brothers

10 Oct 2014SCOTUS Denies Cert, World Denies Uncertainty

03 Oct 2014 – Ebola And Abortion Two Words No One Likes To Hear But Everyone Can Learn From

26 Sep 2014 – When The Confirmation Of The Next Attorney General Gets Political Thank Eric Holder

19 Sep 2014 – Constitutional Ties That Bind Also Gag The United Kingdom Keeps Scotland

12 Sep 2014 – On The Anniversary Of His Death Why Lawyers Love David Foster Wallace

04 Sep 2014 – Is There A Constitutional Right To Same Sex Marriage?

28 Aug 2014 – Splitting Hairs Over Causation When Is Amish Beard Cutting A Hate Crime

21 Aug 2014 – Can We Picture A White Police Officer Murdering A Black Teenager Without Race Being A Factor

14 Aug 2014 – What Do A Wendy Davis Campaign Ad And An Unusual SCOTUS Order Have In Common

07 Aug 2014 – Battling Anecdotes With Symbols: Why The Voter Id Debate Goes Nowhere

31 Jul 2014 – Liberal Critiques Of Challenges To Obamacare: 2 Errors Worth Correcting

24 Jul 2014 – Is The Death Penalty Worth It

17 Jul 2014 – Critical Mass Is A Critical Mess The New Opinion In UT vs Fisher

11 Jul 2014 – There Are No HEROs:  The Fight Between LGBT Rights And Religious Objectors Gets More Polarized

03 Jul 2014 – Celebrate July 4Th Like Our Founding Fathers Intended: By Questioning The Government

02 Jul 2014 – Who Do You Take Seriously In The Hobby Lobby Debate

26 Jun 2014 – Why Should Conservatives Be Disappointed In A 9 0 Decision In Favor Of Abortion Protestors

19 Jun 2014 – One Woman’s Empathy Is Another Mans Bias: On Judges With Daughters

12 Jun 2014 – Tenure Itch: Whats Bad (And What Isn’t) About The Case Striking Down California Teacher Retention Laws

30 May 2014 – Did Edward Snowden Have Options?

16 May 2014 – The Crowd Funded Sexual Misconduct Case Against A Yale Professor May Not Hurt Who You Think It Does

09 May 2014 – Food Fight: Eating The Costs Of Not Eating GMO Food

01 May 2014 – Smoke Signals: The Misinformation Behind FDA’s Proposed Regulation Of E-Cigarettes

24 Apr 2014 – Dissenting Opinions And Strange Bedfellows

17 Apr 2014 – Should ‘Campaign For Liberty’ Have Called Itself ‘Campaign For Progress’ Instead

10 Apr 2014 – The ENDA Title VII As We Know It: Why House Republicans Should Pass The Employment Non Discrimination Act

03 Apr 2014 – Cupids Arrow Strikes Eich: OKCupid, Mozillas CEO, And Campaign Finance Laws

27 Mar 2014 – Sex And Uniforms: Why We Care About What Female Lawyers Wear

20 Mar 2014 – A Conservative Case For Keeping Cameras Out Of The Courtroom

13 Mar 2014 – Who Cares If Gitmo Detainees Starve To Death?

06 Mar 2014 – Welcome To The Post Filibuster Senate: The Bipartisan Rejection Of Debo Adegbile

21 Feb 2014 – Give This Man A Federal Judgeship: A Review Of The Nominee By Leslie Southwick

20 Feb 2014 – Wendy Wants It Both Ways: Wendy Davis And Double Standards

13 Feb 2014 – Who Better To Reform Higher Ed Laws Than Some Law School Graduates

06 Feb 2014 – Who’s To Blame For Ibogaine: A Debate Over Whether Big Government Or Big Pharma Is Keeping Heroin Addicts From Getting Well

30 Jan 2014 – Drafters Of Affirmative Action Proposal Could Avoid Criticism By Reading Their Own Proposal

23 Jan 2014 – Obama Calls Out Federalism: Will Federalists Answer

03 Jan 2014 – NSA Surveillance In 2013: The Year Of Vindicated Political Paranoia

26 Dec 2013 – The Mistake Behind The Posthumous Pardon Of Alan Turing

19 Dec 2013 – Do Women Need Rape Insurance

12 Dec 2013 – Have A Merry Christmas….Whether You Like It Or Not

05 Dec 2013 – A Reasonable Expectation Of Transparency: Dave Eggerss The Circle

21 Nov 2013 – The D.C. Distraction: Judicial Vacancies Beyond The D.C. Circuit

07 Nov 2013 – When ‘Our Federalism’ Turns Into ‘Somebody Else’s’ Federalism: Why Local Elections Matter

31 Oct 2013 – Identity Politics, The Fifth Circuit, And The Texas Abortion Case

24 Oct 2013 – SECs New Rules On Equity Crowdfunding Give People New Ways To Ask Friends For Money

17 Oct 2013 – The Consequences Of Brown V Plata Are Nothing To Dismiss The California Prison Case Continues

10 Oct 2013 – Rumors Of Democracy’s Death Are Greatly Exaggerated: Why Mccutcheon Can Be A Good Thing

04 Oct 2013 – When Democracy Hurts: The Painful But Legitimate Debate Over Obamacare

19 Sep 2013 – Some Thoughts On The Washington Navy Yard Shooting

12 Sep 2013 – Obama’s Right To Be Wrong: Presidential Power And Military Action

05 Sep 2013 – Why Using Anti Discrimination Laws Against Wedding Photographers Doesn’t Work

29 Aug 2013 – Driving Through Fly Over Country: Conservative Pluralism And Finding The Good Life

22 Aug 2013 – Infectious Diseases: The Back To School Edition

08 Aug 2013 – What’s More Racist? The Trouble With Low Bar Passage Rates At Historically Black Law Schools

01 Aug 2013 – Bradley Manning Thinks He Knows Best: The Hubris Of A Leaker

25 Jul 2013 – The Impossible DREAM (Act): Why This Immigration Question Is Just A Distraction

19 Jul 2013 – Marine Barracks Or College Dorm Senate Bill Raises False Alarm Over Where Women Are Most Likely To Be Raped

15 Jul 2013 – It Was Just Another Criminal Case: Why The Outrage Over George Zimmermans Acquittal

05 Jul 2013 – Wendy’s Wasted Voice: Why Fighting The Texas Abortion Bill Was Not Pro Woman

27 Jun 2013 – What’s Horrible About Hollingsworth Is Horrible For Us All

20 Jun 2013 – Mandatory Minimums Scotus Gets (A Little Less) Confused

13 Jun 2013 – The Hidden Blessings Of The NSA’s Spying

06 Jun 2013 – A Tale Of Sound & Fury (But No Transcript): In Defense Of Judge Edith Jones

30 May 2013 – Why We Cant Have Nice Things: The Death Penalty Dilemma

23 May 2013 – Conservatives Benchslapping Conservatives

16 May 2013 – On The IRS Abuses And The Banality Of Bureaucratic Evil

09 May 2013 – Why Is The NRA So White?

02 May 2013 – The Trial Of Dr Kermit Gosnell And Some Thoughts On Abortion

25 Apr 2013 – The Righter Side Of Law

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