- Justice Kagan: “The fact of the matter is, you wake up in 100 years and most people are not going to know most of our names…. [T]hat is really not the case with Justice Scalia.” [David Lat, New York Daily News]
- Nollan v. California Coastal Commission, his first landmark decision, was “turning point in the history of property rights” [Bill Fulton, Rice “Urban Edge]
- Revive doctrine of enumerated powers? “Oh, Roger, we lost that battle a long time ago.” But then came Lopez… [Cato podcast with Roger Pilon, 3:50+]
- Younger Scalia was quite positive about idea of an Article V constitutional convention, an idea he famously criticized later in life [Adam White, Weekly Standard; related here and here]
- Jacob Sullum on Scalia and the Second Amendment (and more) and on the Drug War. More: Daniel Schwartz on the imprint he left on employment law even aside from Wal-Mart v. Dukes;
- Blowup at Georgetown Law as profs Randy Barnett, Nicholas Quinn Rosenkranz flay colleague’s “startlingly callous and insulting” email to students on Justice’s death [Above the Law]
- How Scalia changed originalism [Michael Ramsey in Liberty and Law symposium] In George Eliot’s phrase, his work on that issue was incalculably diffusive [Lawrence Solum]
Archive for February, 2016
“Time to Rein in Judicial Deference to Executive Agencies”
The Seventh Circuit case we wrote about in October, on whether a federal agency is entitled to deference in how it interprets the legal scope of its own regulations, is now before the U.S. Supreme Court on a petition for certiorari review. Ilya Shapiro and Randal John Meyer explain why the Cato Institute has joined a brief urging the Court to take up the case of United Student Aid Funds v. Bible. [Cato at Liberty; more on so-called Auer deference]
My conversation with Mirriam Seddiq
Mirriam Seddiq had me on as a guest on her podcast this week to chat about law, libertarianism, Cato, my books, and much more — a long conversation with many questions I never get asked in other interviews. It’s the latest in her series of podcasts (“Not Guilty No Way“) with law-related guests. Her own legal practice, based in the D.C. suburbs, concentrates on criminal defense and immigration.
She introduces our discussion at the beginning of the show, and the conversation itself begins at 27:15.
“‘Happy Birthday’ settlement reached”
“Great news for those of you who have been paying royalties every time you sing ‘Happy Birthday’ – assuming the judge approves a proposed settlement, he will declare that the song is in the public domain, making it free for everyone.” Warner will make some refunds for royalties paid, and plaintiff’s lawyers will ask for $4.62 million — “an awful lot of money for freeing ‘Happy Birthday.'” [Lowering the Bar; earlier here, etc.]
Take three steps back from the bell, avoiding any sudden movements
From Bill Childs on Twitter:
“WARNING: Cycling can be dangerous. Bicycle products should be installed and serviced by a professional mechanic. Never 
modify your bicycle or accessories. Read and follow all product instructions and warnings including information on the manufacturer’s website. Inspect your bicycle before every ride. Always wear a helmet and use lights at night. Failure to heed any of these warnings may result in serious injury or death.”
Which, as Bill says, seems a bit much for a warning on a bicycle bell.
“US Marshals arresting people for not paying their federal student loans” (P.S.: Really?)
[Note: updated Friday 9:30 a.m., an hour and a half after publication, after it became clear that the original reporting was gravely flawed] According to KRIV, “the US Marshals Service in Houston is arresting people for not paying their outstanding federal student loans. Paul Aker …says seven deputy US Marshals showed up at his home with guns and took him to federal court where he had to sign a payment plan for the [$1500] 29-year-old school loan. Congressman Gene Green says the federal government is now using private debt collectors to go after those who owe student loans. Green says as a result, those attorneys and debt collectors are getting judgments in federal court and asking judges to use the US Marshals Service to arrest those who have failed to pay their federal student loans.”
But see: Scott Riddle with plenty of evidence that KRIV’s version of the story omits material facts (h/t commenter Matthew: Aker “wasn’t arrested for the debt itself. He was arrested for evading service and failing to show up for mandatory court dates.”) As for the guns, the marshals’ office said it sent reinforcements when an attempt to arrest Aker failed and the situation escalated. As Riddle notes, the original report had spread rapidly around news outlets, but corrections and clarifications are often slow to catch up.
Free speech roundup
- “And Hansel and Gretel (children!) kill their captor by baking her in an oven.” — Scalia, J., noting the commonness of violence in youthful entertainment over the centuries, in Brown v. Entertainment Merchants Association (2005), his landmark opinion confirming full First Amendment protection for videogames as works of expression [Jim Copland/City Journal, Owen Good/Polygon; contrasting Hillary Clinton position]
- Scalia made crucial fifth vote for many First Amendment liberties. Which ones are safe now? [Ronald Collins first, second posts]
- Wisconsin redux? Montana ethics official targets political adversaries with subpoenas [Will Swaim, Reason]
- Goaded by governments, Facebook now has big program in Europe “finding and then removing comments that promote xenophobia.” [Independent, U.K.] Sad to see Israeli official backing legal curbs on freedom of social media [Times of Israel]
- “Flemming Rose talks about the decision to publish 12 cartoons featuring the prophet Mohammed in the Danish newspaper Jyllands-Posten in 2005.” [“Free Thoughts” podcast with Aaron Ross Powell and Trevor Burrus, Cato’s Libertarianism.org]
- 2016 workplan from ACLU doesn’t include free speech as a main concern, and some aren’t surprised by that [Ronald Collins]
- “Appeals Court Tells City It Can’t Use Its Terribly-Written Zoning Laws To Censor Speech” [Tim Cushing, TechDirt; Fourth Circuit, Norfolk, Va.]
Apple vs. FBI
“Can Apple be forced to hack its own iPhones? … This week, the FBI obtained a court order demanding Apple’s help breaking into the iPhone used by [San Bernardino terrorist] Syed Rizwan Farook.” My Cato colleague Julian Sanchez has an introduction to the case at the New York Post. More: Nicholas Weaver/LawFare, Brad Reed/BGR, Sanchez Cato podcast.
Cutting employee hours to avoid ObamaCare mandate = “retaliation”
The Affordable Care Act, otherwise known as ObamaCare, sometimes gives employers an incentive to reduce the work hours of employees so that they will not meet eligibility thresholds for costly health insurance. Lawyers for employees have responded by arguing that this reduction of hours constitutes “retaliation” under ERISA and is itself unlawful. Now a Southern District of New York federal court seems to have bought the theory, at least to the extent to denying a defense motion to dismiss. [R. Pepper Crutcher, Balch & Bingham on Marin v. Dave & Buster’s, Inc.]
Justice Scalia’s jurisprudence
Scalia for the general reader: my new piece briefly explains his textualism, originalism, and rules jurisprudence [American Media Institute Newswire, syndicated] And in a new Cato Podcast, Caleb Brown interviews Tim Lynch and me about the Justice’s legacy in the areas of criminal law, regulation, and administrative law:
In his long battle against vagueness in defining crimes, Justice Antonin Scalia was a true hero of liberty and the rule of law. Harvey Silverglate discusses that here.