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

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]