Richard M Re
@richardre.bsky.social
đ€ 4764
đ„ 449
đ 151
Law Prof
pinned post!
Last fall, the editors of the Harvard Law Review invited me to write the Foreword for this year's Supreme Court issue. My working draft is below, and comments are most welcome.
papers.ssrn.com/sol3/papers....
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Foreword: To A Conservative Warren Court
Ideological conflict has masked an underlying continuity in the American legal system. In recent years, the Supreme Court -- while obviously subject to fierce c
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5363502
4 months ago
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Jed H. Shugerman
4 days ago
A new paper from Gary Lawson & me: "Presidential Removal as Article I, Not Article II" Limits on congressional power to create independent agencies like the Fed & FTC don't come from Art II "Executive Power" absolutism. See the Necessary and Proper Clause instead:
papers.ssrn.com/sol3/papers....
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Presidential Removal as Article I, Not Article II
As a matter of original public meaning, Article I's Necessary and Proper clause is the starting point for both Congress's power to create offices and the limits
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5736583
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Richard M Re
Holger Hestermeyer
3 days ago
The wonderful
@oonahathaway.bsky.social
does not hold back: our international legal order is at risk. And she has some proposals...
www.theguardian.com/law/2025/nov...
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Willing states must act to save international legal order, warns top academic
Yale professor says wars in Ukraine and Gaza and threats from Donald Trump risk the âtotal collapseâ of the global courts system
https://www.theguardian.com/law/2025/nov/11/willing-states-must-act-to-save-international-legal-order-warns-top-academic
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Richard M Re
Orin Kerr
3 days ago
Very pleased to say that my new article, "The Two Tests of Search Law: What Is the Jones Test, and What Does That Say About Katz?", has just been published in final form by the Wash. U. L. Rev. You can now download it from here:
wustllawreview.org/2025/11/12/t...
Abstract below.
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Richard M Re
Danielle Citron
3 days ago
And read this brilliant HLR Foreword by the ever wonderful (sorely missed)
@richardre.bsky.social
harvardlawreview.org/print/vol-13...
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To a Conservative Warren Court - Harvard Law Review
The Warren Courtâs legacy is ubiquitous. With the eponymous Chief Justice Warren at the helm, the Supreme Court featured a strong majority of left-of-center jurists, and those âliberal lionsâ ruled (o...
https://harvardlawreview.org/print/vol-139/to-a-conservative-warren-court/
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Richard M Re
Danielle Citron
3 days ago
harvardlawreview.org/wp-content/u...
Read this brilliant piece by my colleagues
@richschragger.bsky.social
@micahschwartzman.bsky.social
and Nelson Tebbeâ:))
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https://harvardlawreview.org/wp-content/uploads/2025/11/139-Harv.-L.-Rev.-211.pdf
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Richard M Re
Rick Hasen
4 days ago
A few snippets from my new
@slate.com
piece on the Supreme Court's decision to hear the Watson case on mail-in voting timing:
slate.com/news-and-pol...
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Richard M Re
Pat Sobkowski
4 days ago
Read Richardâs article then listen to this podcast. đđ»
podcasts.apple.com/us/podcast/s...
add a skeleton here at some point
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Richard M Re
Micah Schwartzman
4 days ago
The Supreme Court had three religious freedom cases last Term. With
@richschragger.bsky.social
and
@nelsontebbe.bsky.social
, our latest comments on them, extending our analysis of religious preferentialism under the First Amendment.
harvardlawreview.org/print/vol-13...
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The Structure of Religious Preference - Harvard Law Review
A revolution has occurred in the law of religious freedom. At this point, the picture is reasonably clear. The Supreme Court has greatly expanded the scope of the Free Exercise Clause.
https://harvardlawreview.org/print/vol-139/the-structure-of-religious-preference/
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Thank you to the editors of the Harvard Law Review and to many commentators.
harvardlawreview.org/print/vol-13...
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To a Conservative Warren Court - Harvard Law Review
The Warren Courtâs legacy is ubiquitous. With the eponymous Chief Justice Warren at the helm, the Supreme Court featured a strong majority of left-of-center jurists, and those âliberal lionsâ ruled (o...
https://harvardlawreview.org/print/vol-139/to-a-conservative-warren-court/
4 days ago
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Richard M Re
Kate Redburn
4 days ago
Out today in HLR, my piece Skrmetti Beyond Scrutiny. What happened, what it means for trans rights and sex equality more broadly:
harvardlawreview.org/print/vol-13...
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Skrmetti Beyond Scrutiny - Harvard Law Review
In United States v. Skrmetti, the Supreme Court upheld Tennessee Senate Bill 1 (SB 1), a state law that prohibits transgender minors from accessing gender-affirming care.
https://harvardlawreview.org/print/vol-139/skrmetti-beyond-scrutiny/
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Richard M Re
Stephen E. Sachs
5 days ago
NOW IN PRINT in the Notre Dame Law Review: "GIVE PARENTS THE VOTE," with Joshua Kleinfeld: arguing that parents, not strangers, should direct the voting power of children, and that state legislatures can make it happen!
papers.ssrn.com/sol3/papers....
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Link:
papers.ssrn.com/sol3/papers....
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5 days ago
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Michael C. Dorf
5 days ago
On the blog: In approving Trump's transphobic policy of listing sex assigned at birth on passports, SCOTUS said govt was "merely attesting to a historical fact," thus echoing the obtuseness of Plessy v Ferguson's statement that Black folks were only choosing to see segregation as white supremacy. đ
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SCOTUS Echoes Plessy v Ferguson in Greenlighting Trump's Transphobic Passport Policy
Repeating a pattern that has become all too familiar, late last week the Roberts Court issued a per curiam order staying a lower court rulin...
https://www.dorfonlaw.org/2025/11/scotus-echoes-plessy-v-ferguson-in.html
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Richard M Re
Josh Chafetz
12 months ago
Hi new followers! If you happen to be interested in the separation of powers, Congress, government shutdowns, contempt of Congress, the filibuster, and more, have I got the book for you!
www.amazon.com/dp/0300248334/
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Congress's Constitution: Legislative Authority and the Separation of Powers: Chafetz, Josh: 9780300248333: Amazon.com: Books
Congress's Constitution: Legislative Authority and the Separation of Powers [Chafetz, Josh] on Amazon.com. *FREE* shipping on qualifying offers. Congress's Constitution: Legislative Authority and the Separation of Powers
https://www.amazon.com/dp/0300248334/
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Richard M Re
Volokh Conspiracy
6 days ago
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[David Post] What Does It Mean To "Regulate Importation"?
It's the central question in the tariff cases, and one exchange during oral argument caught my ear
http://dlvr.it/TP9XxC
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Richard M Re
Ilya Somin
9 days ago
My new article "Immigration is Not Invasion" is now up on SSRN. It comprehensively explains why illegal migration and drug smuggling do not qualify as "invasion" under the Constitution and the Alien Enemies Act of 1798:
papers.ssrn.com/sol3/papers....
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Immigration is Not Invasion
<div> In recent years, state governments and the second Trump Administration have increasingly advanced the argument that illegal migration and cross-border dr
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5712442
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Richard M Re
Genevieve Lakier
8 days ago
Law Profs teaching First Amendment: I have put together a FREE, recently updated, and easy to use casebook for use in free speech classes. If you are interested in using such a casebook, send me an email or DM and I would be happy to share!
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Richard M Re
Lawrence Solum
8 days ago
McConnell on âAgainst Constitutional Originalismâ by Gienapp Michael W. McConnell (Stanford Law School) has posted Against Bad Originalism on SSRN. Here is the abstract: Jonathan Gienapp's book, Against Constitutional Originalism, provides excellent critiques of some features of academicâŠ
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McConnell on âAgainst Constitutional Originalismâ by Gienapp
Michael W. McConnell (Stanford Law School) has posted Against Bad Originalism on SSRN. Here is the abstract: Jonathan Gienapp's book, Against Constitutional Originalism, provides excellent critiques of some features of academic originalist theory, but the title is a misnomer. Highly recommended.
https://legaltheoryblog.com/2025/11/07/mcconnell-on-against-constitutional-originalism-by-gienapp/
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www.politico.com/news/2025/11...
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Amy Coney Barrett and Brett Kavanaugh to conservative law students: Donât give up
The Trump appointeesâ remarks came at a Federalist Society event in Washington.
https://www.politico.com/news/2025/11/07/amy-coney-barrett-brett-kavanaugh-remarks-00641626
8 days ago
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Richard M Re
Mark Graber
12 days ago
On why judicial biographies are almost always bad, unless you collect cliches.
washingtonmonthly.com/2025/11/02/a...
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Justice Barrettâs Campaign Biography
Amy Coney Barrettâs book, "Listening to the Law," claims the Supreme Court is above politics. Its very existence proves otherwise.
https://washingtonmonthly.com/2025/11/02/amy-coney-barrett-book-review-listening-to-the-law/
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Richard M Re
Joanna Schwartz
4 months ago
There will now be 10,000 new ICE agents & 100,000 new detention beds--and few safeguards protecting people from constitutional violations by the feds. Time for states to pass laws allowing people to sue fed agents. Read about it these "converse-1983" statutes here:
papers.ssrn.com/sol3/papers....
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Richard M Re
Joey Fishkin
10 days ago
I did not write the headline, but I have an op ed on Prop 50 over at the
@sfchronicle.com
. Shorter version: the nationalization and polarization of our politics is what got us here, and it's also the most likely way out. It will take national partisan Democratic hardball to enact anti-hardball.
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Californiaâs Prop 50 passed. Now, hereâs how to end partisan redistricting once and for all
OPINION: We need a new federal statute of mutual disarmament â ideally before we reach the point where there are zero California Republicans and zero Texas Democrats, Joseph Fishkin writes.
https://www.sfchronicle.com/opinion/openforum/article/prop-50-trump-newsom-gerrymandering-texas-demorat-21138038.php
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Joey Fishkin
10 days ago
For the Democratic party, this is an enormous future test, and a completely unfair burden, but the party doesn't get to choose. For many years R's have been playing constitutional hardball D's have not matched. See this article I wrote with Dave Pozen. That will have to change.
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ASYMMETRIC CONSTITUTIONAL HARDBALL - Columbia Law Review
Introduction Donald Trump recently became the first President since James Garfield in 1881 to take office with a vacant Supreme Court seat to fill. Political struggle, as much as luck, produced this r...
https://www.columbialawreview.org/content/asymmetric-constitutional-hardball/
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Eric Segall
10 days ago
âThe Constitution in Crisis: The Supreme Need for Justice Robert Jackson's Legal Realism.â
www.dorfonlaw.org/2025/11/the-...
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The Constitution in Crisis: The Supreme Need for Justice Robert Jackson's Legal Realism
Donald Trump is asserting more executive power than any President since the Civil War. He would likely not only agree with that assessment b...
https://www.dorfonlaw.org/2025/11/the-constitution-in-crisis-supreme-need.html?m=1
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Many thanks to Mark and Mike for inviting me on their pod!
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10 days ago
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Prakash on the tariffs case
thehill.com/opinion/judi...
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https://thehill.com/opinion/judiciary/5587553-trade-deficit-emergency-threat/
11 days ago
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Paul Stephan
11 days ago
Andrew Kent and I have a blog post on Quorum Call, the blog of the Harvard Law School Journal of Legislation, about the tariffs case being argued tomorrow. You can find it here:
journals.law.harvard.edu/jol/2025/11/...
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Does the President Have Power to Impose Tariffs Using Peacetime Economic Sanctions Legislation? â Harvard Journal on Legislation
https://journals.law.harvard.edu/jol/2025/11/04/president-power-tariffs-peacetime/
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Richard M Re
Jessica Gillooly
12 days ago
New paper out! My co-author
@barryfriedman1.bsky.social
of
@policingproject.bsky.social
and I explore how 911 dispatch protocols can unintentionally undermine the goals of alternative response â and what to do about it. Out in Criminology & Public Policy:
onlinelibrary.wiley.com/doi/10.1111/...
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Rethinking rules for 911: Dispatching alternative responders in Denver and San Francisco
Research Summary Alternatives to police response to 911 calls have emerged as a leading public safety reform strategy. A key policy implementation challenge lies in determining whether alternative r...
https://onlinelibrary.wiley.com/doi/10.1111/1745-9133.70008
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Many thanks to the editors of the U Chicago Law Review! Link:
lawreview.uchicago.edu/print-archiv...
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Legal Realignment | The University of Chicago Law Review
The widely understood alignment between political ideology and legal methodologyâconservativism and constraint versus liberalism and discretionâexplains judicial behavior with diminishing accuracy. In...
https://lawreview.uchicago.edu/print-archive/legal-realignment
11 days ago
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Richard M Re
David A. Simon
12 days ago
Reposting my paper because it was not distributed in many SSRN e-journals--maybe it's a weird fit.
papers.ssrn.com/sol3/papers....
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Richard M Re
Sandeep
12 days ago
New from me in
@michlawreview.bsky.social
reviewing âNew Deal Law & Order: How the War on Crime Built the Modern Liberal Stateâ
michiganlawreview.org/whats-left-o...
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What's Left of the New Deal State? - Michigan Law Review
New Deal Law and Order: How the War on Crime Built the Modern Liberal State. By Anthony Gregory. Harvard University Press. 2024. Pp. 473. $45. Introduction A vast body of scholarship situates itself i...
https://michiganlawreview.org/whats-left-of-the-new-deal-state/
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Richard M Re
Evan Bernick, a finite mode with a smol hooman and a lorg floof
12 days ago
Review here:
papers.ssrn.com/sol3/papers....
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"Alas"
<p><span>Whether written or unwritten, young or old, constitutions canât compel the construction of institutions or the enforcement of norms any more than maps
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5599851
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Richard M Re
Michael C. Dorf
12 days ago
On the blog, I preview the issues in Wednesday's SCOTUS oral argument in the tariff case. I also discuss the prominent quotations of Trump's idiocy in the SG's lead brief, which cannot be persuasive but are probably included as a warning to the justices not to cross the mad king who loves tariffs.
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Some Major Questions for Wednesday's Oral Argument in the Tariff Case
On Wednesday, the Supreme Court will hear oral argument in two consolidated cases that present the question whether President Trump's impos...
https://www.dorfonlaw.org/2025/11/some-major-questions-for-wednesdays.html
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Richard M Re
Micah Schwartzman
13 days ago
In this post,
@richardre.bsky.social
argues that strategies of conciliation/dissent are not either/or. Even with a minority of 3, the liberal justices can specialize and, through division of labor, do both. But the argument against a unified strategy doesn't specify all the costs of appeasement. /2
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Some Thoughts on the Liberal Dissentersâ Dilemma
Inspired by Jodi Kantor's New Article
https://blog.dividedargument.com/p/some-thoughts-on-the-liberal-dissenters
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ICYMI
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12 days ago
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Lawrence Solum
12 days ago
Lerer on the Constitutional Paleontology and the Construction Zone Ignacio Adrian Lerer has posted CONSTITUTIONAL PALEONTOLOGY: TRACING THE ANCESTOR'S TALE OF LEGAL DOCTRINES on SSRN. Here is the abstract: Lawrence Solumâs interpretation-construction distinction revolutionized constitutionalâŠ
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Lerer on the Constitutional Paleontology and the Construction Zone
Ignacio Adrian Lerer has posted CONSTITUTIONAL PALEONTOLOGY: TRACING THE ANCESTOR'S TALE OF LEGAL DOCTRINES on SSRN. Here is the abstract: Lawrence Solumâs interpretation-construction distinction revolutionized constitutional theory by identifying where judges exercise genuine discretionâthe âconstruction zoneâ of textual underdeterminacy. But Solumâs framework is fundamentally synchronic: it maps the space of possible constructions at a given moment without explaining why some constructions persist across generations while others vanish.
https://legaltheoryblog.com/2025/11/03/lerer-on-the-constitutional-paleontology-and-the-construction-zone/
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Richard M Re
Brad Snyder
13 days ago
Great column by
@jamellebouie.net
on how a future Congress can wield its "broad array of powers" to restore our democracy. With quotes from excellent books by
@richardprimus.bsky.social
and my
@georgetownlaw.bsky.social
colleague
@joshchafetz.bsky.social
www.nytimes.com/2025/10/29/o...
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Opinion | The Empty Promises of Trumpâs Imperial Presidency
https://www.nytimes.com/2025/10/29/opinion/snap-hunger-republicans-congress.html
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Micah Schwartzman
13 days ago
This piece on Kagan/KBJ mainstreams discussion of an argument about judicial strategy that
@nelsontebbe.bsky.social
and I staked out in our article âEstablishment Clause Appeasementâ several years ago:
papers.ssrn.com/sol3/papers....
. /1
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The Debate Dividing the Supreme Courtâs Liberal Justices
https://www.nytimes.com/2025/10/31/us/politics/supreme-court-kagan-jackson-liberal-justices.html
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Richard M Re
Walter Olson
14 days ago
Why it may suit the needs of todayâs dissenting liberal coalition on the Supreme Court to have some of its members be relatively conciliatory (Kagan) and others relatively confrontational (Jackson).
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Lawrence Solum
14 days ago
Legal Theory Bookworm: âThe Actual Art of Governingâ by Magliocca The Legal Theory Bookworm recommends The Actual Art of Governing: Justice Robert H. Jackson's Concurring Opinion in the Steel Seizure Case by Gerard N. Magliocca. Here is a description: Since the adoption of the US constitution,âŠ
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Legal Theory Bookworm: âThe Actual Art of Governingâ by Magliocca
The Legal Theory Bookworm recommends The Actual Art of Governing: Justice Robert H. Jackson's Concurring Opinion in the Steel Seizure Case by Gerard N. Magliocca. Here is a description: Since the adoption of the US constitution, there has been ongoing calibration of the power balance between the three branches of government, often in the face of rapidly changing social and political contexts.
https://legaltheoryblog.com/2025/11/01/legal-theory-bookworm-the-actual-art-of-governing-by-magliocca/
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blog.dividedargument.com/p/some-thoug...
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Some Thoughts on the Liberal Dissentersâ Dilemma
Inspired by Jodi Kantor's New Article
https://blog.dividedargument.com/p/some-thoughts-on-the-liberal-dissenters?utm_campaign=post
14 days ago
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Richard M Re
Stephen E. Sachs
15 days ago
In honor of Halloween, my favorite essay in the philosophy of candy:
200proofliberals.blogspot.com/2021/03/the-...
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Richard M Re
Stephen E. Sachs
15 days ago
New amicus brief, now on
@ssrn.bsky.social
! Submitted today in King v. Bon Charge, No. 1:25-cv-105-SB (D. Del. filed Jan. 24, 2025), exploring how Rule 4(k)(2) personal jurisdiction applies after Fuld v. PLO. Download it here:
papers.ssrn.com/sol3/papers....
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Richard M Re
Julie Dahlstrom
15 days ago
Excited to share that my Article, Digitial Servitude, is hot off the presses @BCLawReview! The Article examines how technology facilitates forced labor in the US by analyzing federal criminal and civil pleadings.
bclawreview.bc.edu/articles/10....
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Richard M Re
Eric Segall
15 days ago
This is fun. Judge Silberman in dissent once called the Supreme Court, wait for it, a ânon-court Court.â Hereâs an article about it, and thanks to
@richardre.bsky.social
for the tip!
journals.law.harvard.edu/jlpp/wp-cont...
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https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2023/10/Party-Presentation-Miller-vf1.pdf
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Two quick thoughts on this: -This isnât an either/or choice. Dissenters usually create a division of labor. Eg, âyou conciliate, I rage.â -That Kagan deleted something late in Biden makes the Chiefâs op a lot more reasonable/understandable.
www.nytimes.com/2025/10/31/u...
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The Debate Dividing the Supreme Courtâs Liberal Justices
https://www.nytimes.com/2025/10/31/us/politics/supreme-court-kagan-jackson-liberal-justices.html?smid=nytcore-ios-share&referringSource=articleShare
15 days ago
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Marin K. Levy
17 days ago
I would have written an article about phone books if it meant getting to write with Zach Clopton . . . But luckily for me we wrote about Local Rules instead. So excited our article is now out with the Virginia Law Review . . . đđ§Ą
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Local Rules - Virginia Law Review
Federal courts have been making their own rulesââlocal rulesââsince the First Judiciary Act. These rules, which operate alongside the Federal Rules, govern all aspects of the litigation process, from ...
https://virginialawreview.org/articles/local-rules/
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Lisa L. Ouellette
16 days ago
Thank you
@prmalone.bsky.social
, Nina Srejovic & fantastic
@law.stanford.edu
Juelsgaard Clinic students Jina Zhou and Yiran (Isabella) Yang for filing this amicus brief on Jonathan Masur's & my behalf, explaining why a private third-party sale isn't prior art against an unrelated inventor:
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#25 in Cellulose Material Solutions, LLC v. SC Marketing Group, Inc. (Fed. Cir., 25-2000) â CourtListener.com
MODIFIED ENTRY: AMICUS BRIEF FILED by Jonathan Masur and Lisa L. Ouellette, Esq.. Service: 10/28/2025 by email. [1124194]--[Edited 10/29/2025 by GWK - Reason: compliance review complete] [Phillip Malo...
https://storage.courtlistener.com/recap/gov.uscourts.cafc.23311/gov.uscourts.cafc.23311.25.0_1.pdf
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Once more, a stay delayed is a stay denied.
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17 days ago
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news.bloomberglaw.com/us-law-week/...
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Kavanaughâs Chambers Are a Big Pipeline for Trump Circuit Judges
Justice Brett Kavanaugh has emerged as a major source of judicial nominees in the second Trump administration, with the president repeatedly looking to the justiceâs former clerks to fill influential ...
https://news.bloomberglaw.com/us-law-week/kavanaughs-chambers-are-a-big-pipeline-for-trump-circuit-judges
17 days ago
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