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.

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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 2016 – Why 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 2016 – What 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 2016 – No 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 2016 – Why 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 2016 – Why 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 2016 – Why 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 2016 – After 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 2016 – Birthers 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 2016 – Sandra 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 2015 – Does 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 2015 – Aloha, 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 2015 – What 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 2015 – Missouri 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 2015 – Is 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 2015 – Dersh 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 2015 – The 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 2015 – Supreme 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 2015 – 7 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 . . . .

Wait.

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

14 Sep 2015 – Republicans’ 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 2015 – A 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