Bloc voting and individual independence at the Supreme Court

From colleague Ilya Shapiro, writing in USA Today: “There were 67 decisions after argument in the term that ended in June. In those cases, the four justices appointed by Democratic presidents voted the same way 51 times, while the five Republican appointees held tight 37 times. And of the 20 cases where the court split 5-4, only seven had the ‘expected’ ideological divide of conservatives over liberals. By the end of the term, each conservative justice had joined the liberals as the deciding vote at least once.”

Meanwhile, those who decry supposed bloc control of Court outcomes are missing a story staring them in the face, namely that not in many decades have a single president’s appointees diverged as sharply from each other as have President Trump’s, with Neil Gorsuch typically taking a more libertarian line and Brett Kavanaugh more centrist as well as more deferential to government power. According to SCOTUS scholar Adam Feldman, “Kavanaugh agreed equally often with Justices Stephen Breyer, Elena Kagan and Neil Gorsuch, at 70 percent apiece.”

San Francisco NRA resolution, cont’d

San Francisco’s resolution denouncing the National Rifle Association (earlier) might seem like so much empty wind. But there are practical reasons why such a designation poses a problem. I talk with
Caleb Brown for the Cato Daily Podcast.

Relatedly, and in no surprise, the NRA itself has sued San Francisco over the resolution, although there may be questions about whether a contractor at risk of losing city business might have a sounder claim to standing. [AP] Jacob Sullum cites “the poisonous tendency to portray one’s political opponents as mass murderers.” [Reason] And the supervisors may have a bigger group of co-thinkers out there than you might expect: 18% of voters polled “think it should be against the law to belong to pro-gun rights groups like the NRA.” [Eugene Volokh]

Liability roundup

  • As one who wrote at length about the silicone-implant litigation at the time — founded as it was on junk science theories hyped to panic potential plaintiffs — I agree that Elizabeth Warren has nothing to apologize for about her bankruptcy work for Dow Corning. Move on to better criticisms, please [Darren McKinney, WSJ] Related: Federalist Society teleforum on mass tort bankruptcies with Steven Todd Brown, Ralph Brubaker, and Dan Prieto;
  • “What should be the duty of public retailers whose customers have bizarre or offensive clothing, appearance, demeanor or behavior but do not actually engage in or threaten violence on the retailers’ premises? To avoid risk, should the retailers exclude them from their stores?” [Eugene Volokh quoting federal court opinion in Budreau v. Shaw’s Supermarkets, Inc. (D. Maine)]
  • New York residents should brace for higher taxes as trial-lawyer-backed bill in Albany exposes public authorities to more road claims [John Whittaker, Jamestown Post-Journal]
  • “Kansas Supreme Court Throws Out Personal Injury Damages Cap” [Associated Press]
  • Whose proposal for joint trial counts as triggering removal of mass action under the Class Action Fairness Act? The court’s? Choice between federal and state courts implicates fundamental questions of fairness [Eric Alexander, Drug and Device Law on Supreme Court certiorari petition in Pfizer v. Adamyan]
  • Glyphosate, talc verdicts suggest juries may be paying more attention to purported smoking-gun documents than to scientific evidence on causation [Daniel D. Fisher, Northern California Record; Corbin Barthold, WLF] “Inconsistent Gatekeeping Undercuts the Continuing Promise of Daubert” [Joe G. Hollingsworth and Mark A. Miller, WLF]

“That huge opioid verdict? Watch out — the energy industry is next”

Can the lawful sale of products be retrospectively declared a “public nuisance” and tagged with enormous damages, based on theories that the products caused harm after being used by third parties not in court? Before such theories succeeded in an Oklahoma courtroom against Johnson & Johnson over its promotion of opioid painkillers, they had been unsuccessfully deployed against the makers of guns used in crime, while another set of recent lawsuits attempts to deploy them in hopes of making the sellers of fossil fuels pay for the harms of climate change. Scott Keller, Houston Chronicle/Texans for Lawsuit Reform:

Public nuisance claims traditionally have been limited to conduct interfering with truly public rights. For example, courts for decades have recognized public nuisance claims brought by governments to remove impediments from their public highways or waterways. Even then, courts generally did not recognize such claims where a legislature or administrative agency had already regulated an industry. After all, if the political branches of government regulated an industry, then they were telling courts what did and did not qualify as an unlawful “nuisance.”

But a series of recent lawsuits wants courts to ignore these limits on public nuisance claims and obliterate entire industries. These lawsuits seek to massively expand what counts as a public right, and they want courts to destroy companies that are already complying with existing regulations.

Similarly: “’A loss on the public nuisance theory in the Oklahoma opioid public nuisance theory would have been a potentially devastating state court precedent for the climate change public nuisance cases now pending in state courts,’ said Richard Lazarus, a professor of environmental law at Harvard.” [Dino Grandoni, Washington Post]

Which raises a question: when trial lawyers were pitching Oklahoma politicos on the large sums to be gained by pursuing strained public nuisance theories against opioid makers, do you think they mentioned that the theories if embraced might work to shut down the locally popular oil and gas business?

“You should be the hero of your story, not the villain. This is very doable.”

Lisa Bloom, whose Twitter bio describes her as “Trial lawyer fighting for victims of discrimination, harassment and abuse,” and who is also the daughter of well-known sexual-abuse attorney Gloria Allred,

was working behind the scenes with [Harvey] Weinstein — at a rate of $895 an hour — to quash the journalists’ investigation and thwart his accusers. In a confidential memo to Mr. Weinstein that Ms. Bloom wrote in December 2016, which is reproduced in “She Said,” she offered to help him damage the reputation of one of his accusers, Rose McGowan, and portrayed her background as a victims’s rights advocate as an asset.

“I feel equipped to help you against the Roses of the world, because I have represented so many of them,” Ms. Bloom wrote, before laying out a multistep playbook for how to intimidate accusers or paint them as liars. One of Ms. Bloom’s suggested tactics for undermining Ms. McGowan: “We can place an article re her becoming increasingly unglued, so that when someone Googles her this is what pops up and she’s discredited.”

[Alexandra Alter, New York Times; Yashar Ali (text of full memo, including “You should be the hero of the story” quote)]

ADA mass filers hit Atlanta immigrant-owned businesses

Craig Ehrlich’s law firm “has filed more than 550 ADA lawsuits in the North Georgia Judicial Circuit, 86% of which have been filed in the past two years. Most of those cases list one of a half dozen of Ehrlich’s testers as plaintiffs, some of whom are party to more than 100 lawsuits since 2017.” Overall, the number of ADA lawsuits filed in Georgia’s federal courts since 2015 is up 370% over the number filed over the preceding five years. Now a lawsuit filed on behalf of businesses he has targeted, many owned by immigrants, claims that Ehrlich has abused the system and is after settlements more than reform. “It’s only abusive if you think the ADA is not important,” retorts a lawyer for Ehrlich. Georgia State University Provost Wendy Hensel, “a law professor and ADA expert,” also defends the mass filings. [Chris Joyner, Atlanta Journal-Constitution; more on ADA filing mills]

Colorado Supreme Court: Excessive Fines Clause applies to corporations

Taking up an issue that the U.S. Supreme Court has never pronounced on — whether or not the Eighth Amendment’s Excessive Fines Clause applies to corporations as well as to individuals — the Colorado Supreme Court has ruled that it does. Cato, together with the Independence Institute, had filed an amicus brief in the case [Eugene Volokh; Jodee R. Rankin, Washington Legal Foundation; decision in Colorado Department of Labor and Employment, Division of Workers’ Compensation v. Dami Hospitality, LLC; earlier]

September 10 roundup

  • The beet grows on: some unintended consequences of mid-century sugar regulation [Chad Syverson via Bryan Caplan, EconLib]
  • Veteran Houston attorney charged with misdemeanor assault “for slapping a plaintiff’s attorney before a deposition.” [Angela Morris, Texas Lawyer, update]
  • I have a theory as to why Politico didn’t use a picture of Elena Kagan, Elizabeth Warren, Stephen Breyer, or Ruth Ginsburg speaking at Federalist Society events to illustrate Ted Olson’s piece comparing the Society’s activism heat index with that of the ABA;
  • Citing “misogynistic history,” state high court makes New Mexico first to abolish spousal testimonial privilege [ABA Journal, New Mexico v. Gutierrez]
  • Don’t go away angry, ex-sheriff Arpaio. Just go away [Jon Gabriel, Arizona Republic; our coverage over the years]
  • “Pro se allegation: After my friend got divorced, he refused to help set me up with his ex-wife. That’s intentional emotional abuse (also, he’s guilty of money laundering and tax evasion). Tenth Circuit: Yeah, we’re pretty sure the district court got this one right when it ruled against you.” [Institute for Justice “Short Circuit” on Anderson v. Pollard, 10th Circuit]

“You’re a domestic terrorist organization.” “No, you are!” “No, you!”

I’m in today’s Wall Street Journal [paywalled for some readers] with a piece on last week’s vote by the San Francisco Board of Supervisors to brand the National Rifle Association a “domestic terrorist organization.” The resolution repeatedly takes the view that “advocacy,” “propaganda” and “promotion” of certain political viewpoints, or of gun ownership, constitutes terrorism or, as the case may be, “material support” for it.

First Amendment aside, there’s more than just symbolism in the board’s divisive attempt to change the meaning of words by main force. The resolution also declares a crackdown on city contractors who do business with the gun-advocacy group, and under current law that is very likely to be struck down in itself as inconsistent with the First Amendment under a 1996 Supreme Court precedent.

Some related links: the resolution; the 1996 Board of County Commissioners v. Umbehr case, in which the Supreme Court ruled 7-2 that the First Amendment restrains localities’ discretion to shun contractors because of their politics; Jonathan Adler in 2015 on the Chick-Fil-A controversies; and reporting on the San Francisco supervisors’ resolution to use nicer, not-so-dehumanizing terminology about criminals (Jim Geraghty at National Review noticed this before me).

“Truth won out over partisanship, as it should.”

If you didn’t follow the Leif Olson episode last week, here’s the nutshell version: the Bloomberg Law news operation ran a wildly unfair piece attacking a newly appointed Labor Department official; Olson, a conservative lawyer who is no relation to me, briefly lost his job but then was reinstated. I’ve written up my thoughts at Cato (“Man Engages In Sarcasm On Social Media. Career Survives”) and an editor at Bloomberg Law has already furnished a piquant sequel.