- Congress’s enumerated powers don’t extend to making this local bar fight a federal hate crime [Ilya Shapiro on Cato brief in United States v. Metcalf, Eighth Circuit]
- On this point, at least, history’s verdict went with President Andrew Johnson: Congress can’t entrench Cabinet officers if the President no longer wants them to serve [Mental Floss]
- “Video: Ilya Shapiro on judicial abdication and the growth of government” [Acton Institute]
- “Our decision is about the First Amendment, not the Second.” Eleventh Circuit en banc strikes down Florida law restricting doctors’ speech with patients about guns [Eugene Volokh; quote is from Pryor concurrence in Wollschlaeger v. Governor]
- In the mail: paperback reissue of Michael Stokes Paulsen and Luke Paulsen, The Constitution: An Introduction [Basic]
- “Federal Appeals Court Nixes Blanket Drug Screening of State College Students” [Jacob Sullum]
Archive for February, 2017
Intellectual diversity at law schools
As I noted in my book Schools for Misrule a few years back, law faculties, especially at elite schools, tilt overwhelmingly leftward on the political spectrum. Last month the Association of American Law Schools turned down a request from conservative and libertarian legal scholars that a task force be set up to look into this issue and that data be released to help identify such patterns if indeed they exist. On Wednesday 28 dissident legal scholars went public with a letter urging a change of course. Here’s Josh Blackman’s post about the letter. Other signatories include Jonathan H. Adler, Randy Barnett, Gail Heriot, James Lindgren, John McGinnis, Nicholas Quinn Rosenkranz, Ilya Somin, Eugene Volokh, and Stephen Ware. More: Randy Barnett; Paul Caron/TaxProf with links.
More: AALS executive director Judith Areen responds.
Banking and finance roundup
- Judge Neil Gorsuch on securities litigation and related issues of agency deference [Paul Weiss attorneys at D & O Diary]
- New York attorney general’s office pursued Hank Greenberg for years, wound up settling for $9 million and this lousy t-shirt [WSJ editorial]
- Exit tax and FATCA: “America charges $2,350 to hand in your passport, a fee that is more than twenty times the average of other high-income countries.” [Robert Wood, Forbes]
- “Overgrown Wall Street regulation needs a trim in 2017” [Thaya Brook Knight, The Hill] Last-minute Obama regs encourage shareholder activism [Stephen Bainbridge]
- Organized push to restrict use of cash includes some idealists, some economists, quite a few tax- or rent-seekers [Lawrence White/Cato, David Henderson (did USAID push India?), Stephen Williamson via Henderson]
- U.S. regulatory environment threatens the rise of fintech [Nikolai Kuznetsov, TechCrunch]
Judge blocks California law on publishing actors’ ages
“A federal judge has barred the State of California from enforcing a new law limiting online publication of actors’ ages.” The actor’s union SAG-AFTRA, the measure’s chief advocate, had aimed it against online movie database IMDB, claiming that the goal of preventing employment discrimination outweighed any First Amendment concerns about banning publication of truthful information. A judge disagreed. [Josh Gerstein, Politico; Eugene Volokh; Gabrielle Carteris/Hollywood Reporter]
Thomas Perez, moderate?
The Democratic Party has selected as its DNC chair Thomas Perez, widely described as the Establishment choice. Perez didn’t give off much of an impression of moderation in the Obama cabinet, however, where he was a leading symbol of regulatory lawlessness, hauled up repeatedly by the courts for trampling employers’ rights. See, for example, Gate Guard (Fifth Circuit describes conduct of DoL as “vindictive,” “indefensible,” “bad faith”), the we-know-where-you-live “persuader” rule (blasted by ABA, enjoined by judge), and of course mid-level overtime (enjoined by judge). More: Dan McLaughlin (Perez’s manipulation of fair housing litigation); John Fund (hiring practices at DoJ civil rights division).
Sixth Circuit: IRS, unlike Caligula, cannot punish under unproclaimed law
Judge Jeffrey Sutton, writing for a Sixth Circuit panel, reverses a Tax Court ruling in an opinion beginning thus:
Caligula posted the tax laws in such fine print and so high that his subjects could not read them. Suetonius, The Twelve Caesars, bk. 4, para. 41 (Robert Graves, trans., 1957). That’s not a good idea, we can all agree. How can citizens comply with what they can’t see? And how can anyone assess the tax collector’s exercise of power in that setting? The Internal Revenue Code improves matters in one sense, as it is accessible to everyone with the time and patience to pore over its provisions.
In today’s case, however, the Commissioner of the Internal Revenue Service denied relief to a set of taxpayers who complied in full with the printed and accessible words of the tax laws. The Benenson family, to its good fortune, had the time and patience (and money) to understand how a complex set of tax provisions could lower its taxes.
And taking issue with the IRS Commissioner’s decision to disallow the use of two Congressionally approved devices, the Roth IRA and DISC (domestic international sales corporation), in a way said to trigger the so-called substance-over-form doctrine:
Each word of the “substance-over-form doctrine,” at least as the Commissioner has used it here, should give pause. If the government can undo transactions that the terms of the Code expressly authorize, it’s fair to ask what the point of making these terms accessible to the taxpayer and binding on the tax collector is. “Form” is “substance” when it comes to law. The words of law (its form) determine content (its substance). How odd, then, to permit the tax collector to reverse the sequence—to allow him to determine the substance of a law and to make it govern “over” the written form of the law—and to call it a “doctrine” no less.
[Summa Holdings v. Commissioner of Internal Revenue via Paul Caron/TaxProf]
“How a supplement maker tried to silence a Harvard doctor”
“A Harvard researcher dared to call out potentially dangerous dietary supplements. Then he got taken to court.” [StatNews on suit against Pieter Cohen, which resulted in a defense verdict]
“College bro blames school for his drunken punching rampage”
“A New Jersey man convicted of randomly punching fellow students at a Massachusetts university is now suing Endicott College, claiming the school was lax in enforcing underage drinking laws.” [Joshua Rhett Miller, New York Post]
Well, that didn’t work out as planned
“Judge tells Ohio village to pay back $3 million from traffic camera tickets” [AP]
Gorsuch nomination roundup
More on the nominee, starting with a Washington Post profile:
- How to read last year’s Garland precedent? [David Post, Jonathan Adler]
- Gorsuch “consistently applied established First Amendment protections” [Adam Liptak, New York Times quoting Gregg Leslie of Reporters Committee for Freedom of the Press]
- We’ve earlier linked Cato podcasts on the nomination with Ilya Shapiro and Andrew Grossman and now here’s a somewhat more skeptical one featuring Ilya Somin;
- On product liability [Eric Wolff, Perkins Coie]
- California Federation of Teachers, explaining its opposition to the nomination, dismisses his constitutionalism as devotion to a document “drafted to protect the interests of white slave owners” (via Amy Alkon);
- “Follow the law, as judges are supposed to do, and you’ll get tarred as a supporter of criminals” when Nancy Pelosi et al. go low: [Eugene Volokh on gun cases U.S. v. Games-Perez and U.S. v. Reese]