Richard M. Re

“The Standing Realignment,” a draft by Yoav Paz-Priel and myself. Comments welcome! papers.ssrn.com/sol3/papers.cf…

One of my first law review articles pointed out that the Supreme Court’s willingness to adhere to party presentation principles and base an opinion on a legally erroneous premise varies dramatically based on the procedural context in which this issue arises: papers.ssrn.com/sol3/papers.cf… I argue that the Court at a minimum should apply the same standard across all contexts, and further suggest it should be tilted in favor of reaching correct conclusions on questions of law.

I’m so excited to finally see Consent & Causation out in print in the @VirginiaLawRev ! I really like this piece, which asks whether sexual consent should be understood in terms of causation. Thank you to the many generous commenters! virginialawreview.org/wp-content/upl…

Supreme Court Justice Sotomayor said something unfair about a colleague, Justice Kavanaugh. When called out, she did the right thing without hesitation. She admitted her wrongdoing and apologized--ungrudgingly. Good for her. Let's all follow her example when we err, as we all do.

SCOTUS APOLOGY-OLOGY: As far as I can tell, before today the last time a justice publicly said sorry was 2016. Ruth Bader Ginsburg actually issued two apologies that year: one for criticizing Trump, and one for criticizing NFL players who refused to stand for the national anthem.

Little on the Constitutional Right of Judges to Dissent, legaltheoryblog.com/?p=111167 - Rory K. Little (UC Hastings Law) has posted Reading Justice Brennan: Is There a 'Right' to Dissent? in The Hastings Law Journal, Vol. 50, No. 4, on SSRN.

How to Disagree. Forthcoming, possibly under another title, in @Cornell_L_Rev papers.ssrn.com/sol3/papers.cf…

In “Should Judicial Opinions Be Read Like Statutes?”, Prof. Margaret Lemos (@DukeLaw) explores courts’ growing use of the “not-statutes trope”—a rhetorical device for reading precedent differently from statutes—and shows how it can finesse the demands of stare decisis. (1/2).

NEW: Supreme Court Justice Sonia Sotomayor releases public apology to Justice Brett Kavanaugh for her "hurtful comments" describing him as privileged and out of touch for his concurrence in an immigration case.

Braver proposes reforming the military professional ethic into a more coherent theory of disobedience in which officers should disobey if an order is “illegal or manifestly unethical” and report refusal, even if it risks a court-martial. (2/2). scholarlycommons.law.northwestern.edu/nulr/vol120/is…

My book is out today. It examines how legal training shapes issues that impact all of us (e.g., policing, work, healthcare, the environment). It’s written for a broad audience—nonlawyers, law students, and professors alike. I think it can move some urgent conversations forward.

Baude on Marbury v. Madison, legaltheoryblog.com/?p=111052 - William Baude (University of Chicago Law School) has posted Marbury Now (Liberties, Volume 6, Issue 2, pp. 7–26 (Winter 2026)) on SSRN.

I've posted a new paper on SSRN: "Public Functions and Private Resources," forthcoming in the Washington University Law Review's symposium issue on Taxing, Spending, and the Constitution. papers.ssrn.com/sol3/papers.cf…

My article "The Nature of a Precedent's Error" is now out in Jurisprudence. In it I set out a theory of "egregiously erroneous" precedents, suggesting that they involve a special sort of moral error. Here it is: tandfonline.com/eprint/ACUTP2M…

Very glad my paper with Katherine Strandburg (@ILI_NYU @nyulaw), "Algorithmic Opacity as a Principal-Agent Problem," is now forthcoming in the NYU Journal of Intellectual Property papers.ssrn.com/sol3/papers.cf…

Interesting talk by Professor Mila Sohoni which was given as a "keynote" in the recent Conference of Constitutional Law Scholars we organize here every year here in Tucson--the topic of the talk is "The Strange Career of Judicial Restraint" youtube.com/watch?v=NRm520…

Thank you Larry for the highly recommended!

@mike_frags Thanks. This could be an interesting project.

You have to dig through the SJQs to try and get it so it’s probably imperfect. Here’s the first nine of the last three admins (excluding Fed Cir). Trump 47: HYS (1); T14 (5); High honors/Coif (6); 1st in class (5); LR (6); SCOTUS (6); Circuit (8) Biden: HYS (4); T14 (7); High honors/Coif (2); 1st in class (0); LR (2); SCOTUS (2); Circuit (6) Trump 45: HYS (4); T14 (7); High honors/Coif (4); 1st in class (1); LR (6); SCOTUS (6); Circuit (8)

It’s an interesting difference to be sure. It goes back a ways as well—GWB judge pickers were way more clerk oriented than, for example, the senators they had to deal with or than Obama. My guess is that there was a synergy btw fedsoc and some of the Reagan/GHWB judges that made clerking the Spanish March of judicial conservatism within the profession. Over the last ten years I think demographic imperatives have a lot to do with accentuating the difference. There’s a reason Biden didn’t appoint any black RBG clerks. The broader elite-credential disparity depends on how you track it. As I’ve told any journo who asks, the Trump picks do not tend to come from top schools but they do tend to have done very well wherever they went. In other words a Biden pick is much more likely to have gone to Yale while a Trump pick is more likely to have been summa somewhere else.

As you wait for the decisions in Slaughter and Cook to drop, check out my essay with @EskridgeBill, The Unitary Executive and the Due Process State, now final in the @NotreDameLRev Reflection: papers.ssrn.com/sol3/papers.cf…

New to @SSRN: The @GWLawReview invited me to pen the foreword to its annual administrative law issue. Here's a draft of that article, entitled Proportionality in Administrative Law: ssrn.com/abstract=65535…