Constitutional law roundup

  • Does the Constitution allow Arizona to frame a new tax in such a way that de facto, though not de jure, nearly all of it falls on out-of-state residents? [Ilya Shapiro, Cato]
  • Writer and star of one-act play “isn’t a fan of America’s founding charter — which may be why her audiences are such big fans of hers.” [Andrew Ferguson, The Atlantic]
  • Pentagon has lately developed aerial surveillance technology with near-panopticon capabilities. OK to deploy over home territory? [Cato video with Patrick G. Eddington, Arthur Holland Michel, and Jenna McLaughlin on Michel’s book Eyes in the Sky: The Secret Rise of Gorgon Stare and How It Will Watch Us All]
  • Ilya Shapiro discusses New York Rifle and Pistol Association v. the City of New York [National Constitution Center We the People podcast; earlier here, here, and here] “Maryland’s gun permit system is challenged — and it’s probably unconstitutional” [my post at Free State Notes] “3-D Printed Guns & the First Amendment” [Federalist Society Policy Brief video with John Stossel and Josh Blackman]
  • Tradcons are kidding themselves if they imagine they can get a better constitutional deal outside the current legal conservative movement with its commitment to a broadly fusionist originalism, argues John McGinnis [Liberty and Law] “Originalism as ideology” [Michael Greve]
  • “Guam officials seek to hold referendum allowing voters to express their opinion about the future of the relationship between Guam and the United States but will only permit ‘Native Inhabitants of Guam’ to vote. Ninth Circuit: Which means restricting voting based upon race, which is explicitly prohibited by the Fifteenth Amendment.” [Institute for Justice “Short Circuit” on Davis v. Guam]

After outbreak of bootleg-vape injuries, government restricts aboveboard vaping products

1) Batches of black-market vaping products, mostly containing THC rather than nicotine and used to get high, turn out to contain adulterants, most likely Vitamin E acetate, known to be harmful when inhaled. Over a period of weeks, hundreds of users fall seriously ill and several die in a classic “bad batch” episode familiar to epidemiologists and those who study the Drug War. [Erin Schumaker, ABC News]

2) Government reacts by banning a range of lawful nicotine vaping products sold in stores, none of which have been implicated in the deaths or injuries.

3) Predictable result: to drive some nicotine vape users back to cigarette smoking, and others toward sources of black-market supply. Good job, government! What problem would you like to fix next?

[Kimberly Leonard and Cassidy Morrison, Washington Examiner; Federalist Society Regulatory Transparency Project video featuring Sally Satel; Slate podcast with Jacob Grier; Jeffrey Singer, New York Daily News]

More: “Might restricting e-cigarette flavors actually increase smoking? (And acculturate vapers to tobacco flavors?) There’s actually some research on that” [Jonathan Adler on Twitter] Plus: trial lawyers circle vaping industry [Brendan Pierson, Reuters]

September 20 roundup

  • Oregon: “Union-Backed Ballot Initiative Would Limit Grocery Stores to 2 Self-Checkout Machines” [Christian Britschgi, Reason]
  • Not unexpectedly, given its own precedent, Ninth Circuit rules Idaho inmate entitled to sex reassignment surgery [Amanda Peacher and James Dawson, NPR; pre-ruling (July) KRCC/NPR podcast and interview with Peacher, I’m quoted as in earlier coverage; earlier]
  • I wrote a personal recollection at Cato of philanthropist David Koch;
  • “Flight attendants and airport staff now get trained to intervene in what federal officials (falsely) portray as an epidemic of airline-based sex trafficking which can be spotted by good Samaritans who know the ‘signs.'” And mistakes will happen [Elizabeth Nolan Brown, Reason]
  • Population growth has caused the Ninth Circuit to bulge at the seams. Left-right political advantage isn’t a good reason to break it up, but there are plenty of nonpolitical reasons that are good [Ilya Shapiro and Nathan Harvey, George Mason Law Review]
  • “The legal profession was regarded by both the authors of The Federalist and Alexis de Tocqueville as the anchor of the republic —- a barrier to destabilizing innovation and a constraint on excessive democratic passions.” What happened? [John McGinnis]

“If it’s speech, you can’t force it.”

The Arizona Supreme Court made the right call, in my view, in ruling that it is forced expression for the city of Phoenix to require a wedding-calligraphy studio to inscribe invitations for weddings that go against its owner-artists’ religious scruples: “If it’s speech, you can’t force it.” The ruling is based on both the state constitution and on Arizona’s version of RFRA (religious freedom restoration act). [Lindsay Walker, Cronkite News/Arizona PBS; Eugene Volokh and Dale Carpenter (filed with Cato in the case on behalf of the studio); earlier here, etc., and related]

The latter part of the ruling does seem to result in a broader than usual reading of a state RFRA, because most state courts have declined to interpret the laws to provide very much protection for religious objectors in public-accommodation cases; their logic has been that reducing discrimination is a compelling state interest that cannot be enforced in a less restrictive way.

Law enforcement for profit roundup

Yes, liability suits can endanger Constitutional rights

In March the Connecticut Supreme Court, over a dissent from three of its seven justices, ruled that the federal Protection of Lawful Commerce in Arms Act (PLCAA) did not pre-empt a state unfair-trade-practice statute for purposes of allowing suits against the maker of the rifle used in the Sandy Hook massacre — this even though the firearm in question was never marketed or sold to the killer, who stole it from his mother who had purchased it lawfully long before. As expected, gunmaker Remington has now filed a certiorari petition to the U.S. Supreme Court, asking for a ruling clarifying the scope of the federal law.

The Cato Institute together with the Independent Institute has filed an amicus brief in the case [Trevor Burrus, Cato] urging the high court to review the Connecticut decision and accord the intended broad effect to Congress’s pre-emption of state litigation intended to achieve gun control by other means.

The brief emphasizes two lines of argument that I find exactly to the point. First, under the right circumstances, the workings of tort lawsuits can impinge on individual rights guaranteed by the Constitution: exorbitant libel verdicts can menace freedom of speech, and similarly stretching of tort and public nuisance law can endanger Second Amendment rights. It is worth making explicit the parallels between the Supreme Court’s acknowledgment of the first in New York Times v. Sullivan and Congress’s recognition of the second in its passage of PLCAA.

It is noteworthy that in both cases the line-drawing came in response to litigation campaigns intended to challenge, or chip away at, the rights in question. By organizing costly libel suits against defendants that included the New York Times, some Southern partisans hoped to silence voices critical of the status quo in their part of the country (and deter others). Decades later, advocates of gun control teamed up with government officials in a litigation campaign intended to force the firearms industry into negotiations by threatening it with bankruptcy through litigation costs, whether it won or lost its cases.

Writes David Kopel: “In both cases, the stakes are the same: whether the Supreme Court will allow the misuse of tort suits to destroy an enumerated right.” What the Supreme Court is being asked to do in this case, namely give effect to Congressional intention in a statutory interpretation case, is less ambitious and far-reaching than what it was asked to do in Sullivan, namely craft entirely new Constitutional law to respond to the problem.

The Swedish advantage in civil process

Excellent interview with Dan Klein, a George Mason economist bound by family and professional ties to Sweden, where his wife and daughter live. Among other things, confirms what I’ve been saying for years about comparative litigation climates:

Klein: Sweden does pretty well in the economic freedom ranking, currently 43rd of 162 in the Fraser ranking and 19th of 169 in the Heritage ranking. Incidentally, a significant advantage of Sweden over the US is civil law and litigation. The US system is terrible, as it does not have loser-pays and generally makes for shakedowns and extortion. Like most countries Sweden has loser-pays and no exorbitant and capricious damages. I believe that the freedom indexes do not pick up this advantage to Sweden, but I’m not sure. I’ll bet that per capita the US has ten times as much litigation and ten times as many lawyers as Sweden does. A sane court system shows up in ordinary life in Sweden, where trust and flexibility make possible things you don’t see in the US from fear of legal shakedown.

He goes on to recount a tale of emergency medicine that would very likely have gone differently in the United States. [Anders Ydstedt, interviewer, Svensk Tidskrift]

Public employment roundup