- Auto fuel economy standards: “The indirect CAFE program costs the economy at least six times as much as a carbon tax that reduces emissions equivalently.” [Peter Van Doren and Randal O’Toole, Cato]
- Whether grounded in official discretion or legislation, cash exactions levied on land development should still need to meet constitutional standards [Ilya Shapiro and Reilly Stephens on Cato Institute certiorari amicus brief in Dabbs v. Anne Arundel County]
- A stumbling block for Boulder: “With Two High-Profile Losses, When Do Climate Plaintiffs Start Worrying About Sanctions?” [Daniel Fisher; John O’Brien (views of former Colorado AG Gale Norton and current Colorado AG Cynthia Coffman); Adam Morey, New York Post] Issue isn’t whether climate change should be addressed, but what the Constitution and prudence tell us about whose job that is [Donald Kochan, L.A. Times] And a Federalist Society podcast with Kochan on municipal climate lawsuits;
- “Contract Dispute Cracks the ‘Thin Green Line’ Activists Are Drawing to Stop U.S. Fossil Fuel Exports” [Greg Herbers, Washington Legal Foundation, earlier]
- Neigh-ligence: latest effort to get courts to create standing for non-human plaintiffs is suit on behalf of neglected horse [Karin Brulliard, Washington Post/SFGate, earlier on animal rights]
- EPA announces intention to make regulatory science more transparent by making scientific work on which it relies open to public. Pressure groups erupt with outrage [Adam J. White, City Journal]
On Sept. 12 Justice Elena Kagan spoke at Hannah Senesh Community Day School in Brooklyn, interviewed by journalist Dahlia Lithwick. Steven Mazie, Supreme Court correspondent for The Economist, covered the speech on Twitter and a print account by Rob Abruzzese at the Brooklyn Daily Eagle confirms the same general points. From Mazie’s account, slightly edited for readability:
KAGAN: People viewing the judiciary as legitimate is part of the “marvel” of the third branch of government.
But that’s fragile. People can lose that faith in “unelected, pretty old” justices. If we lose that, we’re losing something incredibly important to American constitutional democracy.
This is a dangerous time for the court, because people see us as an extension of the political process. “It’s dangerous if in big cases, divisions follow ineluctably from political decisions.”
You have to try as hard as you can to find ways to avoid 5-4 decisions “by taking big questions and making them small.” Recently, we’ve had good practice in that. During 8-member court, we had to try hard to avoid 4-4s and find consensus. Sometimes it had a ridiculous air to it, “since we left the big thing that had to be decided out there.”
We kept on talking until we achieved consensus, and CJ Roberts gets huge credit for that.
I cited this passage Monday at Cato’s Constitution Day as going far to explain several cases this past term in which Kagan took an important role, including Masterpiece Cakeshop (where she and Justice Stephen Breyer joined conservatives in deciding the case on different grounds than those most strenuously contested), Lucia v. SEC (in which she wrote for the court to decide a structural question on administrative law judges narrowly while sidestepping contentious issues of separation of powers and presidential authority) and above all in the partisan gerrymandering cases (decided unanimously without addressing the principal merits, and with a Kagan-authored concurrence on behalf of the four liberals).
“What a wild story: a prisoner serving 39 years to life started making drawings of golf courses. The drawings made their way to Golf Digest, which wrote about him, then realized his conviction was sketchy, then investigated, and now he’s free.” [Tom Gara on Max Adler, Golf Digest]
The article quotes one of Valentino Dixon’s pro bono lawyers: “It’s embarrassing for the legal system that for a long time the best presentation of the investigation was from a golf magazine.”
- Are public subsidies to low-earning employees a subsidy to their employers, as Sen. Bernie Sanders claims? [Cato Daily Podcast with Ryan Bourne and Caleb Brown; Bourne in USA Today and National Review]
- “To Speak or Not to Speak, That Is Your Right: Janus v. AFSCME” [David F. Forte, Cato Supreme Court Review] From two critics of decision: “What Janus Got Right — and Wrong” [Will Baude and Eugene Volokh] “More on Suits against Unions for Janus Violations” [Will Baude] Earlier here, here, etc.
- On sexual harassment, social mores have changed; biology hasn’t [Suzanne Lucas, Law and Liberty]
- California’s criminal code is honeycombed with special exemptions for conduct carried on as part of labor activity [Edmund Pine, California Policy Center last year] Or at least make sure federal law does not provide it an artificial shield: “Congress Should Ban Union Violence” [Emily Top, Economics21; David Kendrick, Cato 1998]
- “Verizon employee leaves work early, prompting months long investigation, during which employees offered conflicting accounts of whether the employee’s departure was authorized. NLRB: All of which was a pretext to fire a union-supporting employee. D.C. Circuit: Nope. Companies can fire employees for being dishonest, and that’s all that happened here.” [John Kenneth Ross, IJ “Short Circuit” on Cellco Partnership v. NLRB]
- “Workers affect worker safety too” [David Henderson]
How much risk did that recent “no level of alcohol drinking is safe” study find? For the one-drink-per-day group, “a total of 400,000 bottles of gin [was] associated with one extra health problem.” [David Spiegelhalter via Flowing Data] If one of those bottles should happen to fall, 399,999 bottles of gin on the wall…
On Monday the Cato Institute published its annual Cato Supreme Court Review for the 2017-18 Supreme Court term. Included is my 7,000-word article on the Supreme Court’s cases last term on partisan gerrymandering, Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). Several people have told me that I managed to make a dry and complicated subject understandable and even entertaining, which I take as the highest compliment.
The entire CSCR is online, and here are its contents. I assisted in the editing of the pieces by Joseph Bishop-Henchman on the Internet sales tax case South Dakota v. Wayfair, and by Jennifer Mascott on the government-structure case Lucia v. SEC.
FOREWORD AND INTRODUCTION
ANNUAL KENNETH B. SIMON LECTURE
The Administrative Threat to Civil Liberties by Philip Hamburger
IMMIGRATION AND NATIONAL SECURITY
The Travel Bans by Josh Blackman
The Ghost Ship of Gerrymandering Law by Walter Olson
THE CRIMINAL LAW
Katz Nipped and Katz Cradled: Carpenter and the Evolving Fourth Amendment by Trevor Burrus and James Knight
Class v. United States: Bargained Justice and a System of Efficiencies by Lucian E. Dervan
THE FIRST AMENDMENT AND THE CULTURE WARS
Masterpiece Cakeshop: A Romer for Religious Objectors? by Thomas C. Berg
NIFLA v. Becerra: A Seismic Decision Protecting Occupational Speech by Robert McNamara and Paul Sherman
FEDERALISM AND GOVERNMENT STRUCTURE
Internet Sales Taxes from 1789 to the Present Day: South Dakota v. Wayfair by Joseph Bishop-Henchman
“Officers” in the Supreme Court: Lucia v. SEC by Jennifer Mascott
Looking Ahead: October Term 2018 by Erin E. Murphy
- Paradox of Jones Act: by jacking up shipping costs from mainland, it can give goods made overseas artificial price advantage [Cato Daily Podcast with Colin Grabow] Trade wars are immensely destructive, hurting producers and consumers alike, and the latest is no exception [Reuters on China retaliation]
- Joel Kotkin-Michael Greve exchange on localism at Liberty and Law [Kotkin, Greve]
- Government demands for encrypted data pose threat to digital privacy [Erin Dunne, D.C. Examiner]
- “New York’s transportation establishment will not reduce prices to world standards as long as it can demand quintuple the world standard and get away with it” [Connor Harris, City Journal]
- “The Fair Housing Act prohibits ‘making, printing, or publishing’ any ‘notice, statement, or advertisement’ with respect to ‘the sale or rental of a dwelling’ that indicates any racial preference or discrimination. Does this mean that Ohio county recorders violate the law when they maintain property records that contain unenforceable, decades-old racially restrictive covenants? Sixth Circuit: No need to answer that question, because the plaintiff doesn’t have standing.” [John Kenneth Ross, IJ “Short Circuit”, on Mason v. Adams County Recorder]
- Trademark-go-round: “Monster Energy Loses Trademark Opposition With Monsta Pizza In The UK” [Timothy Geigner, TechDirt] “Disney Gets Early Loss In Trademark, Copyright Suit Against Unlicensed Birthday Party Characters” [same] “Two Georgia Sausage Companies Battle Over Trademarked Logos That Aren’t Particularly Similar” [same]
Following a lawsuit for trademark infringement by the San Diego Comic Con against the Salt Lake Comic Con that resulted in a jury award of $20,000 — accompanied by a $4 million attorneys’ fee award and broad injunction — other comics conventions around the country are scrambling to change their names. [Timothy Geigner, TechDirt, more]
- $101 million in Texas could be biggest trucking damages award in history; crash victim had “told the responding police officer he was not injured and continued on with his journey” [John Kingston, FreightWaves]
- “Lawyers For Texas Counties In Opioid Cases May Not Have Valid Contracts” [Daniel Fisher, earlier on Texas scramble here, here, here, and especially here]
- Arbitration defended [Ross A. Marchand, Economics21]
- “Madden NFL 19 Jacksonville shooting victim sues Electronic Arts, claiming negligence” [Cyrus Farivar. ArsTechnica]
- “Prosecutors Are Said to Issue Subpoenas Over Pelvic-Mesh Surgery Financing” [Matthew Goldstein and Jessica Silver-Greenberg, New York Times, earlier and more]
- Federal courts split on whether SCOTUS’s Bristol-Myers Squibb limits on personal jurisdiction apply to class actions [Bradley, Akin Gump, Carlton Fields]