- Investigation of asbestos claiming in Hampton Roads, Virginia, a major center of such litigation, finds plenty of double-dipping and related problems [Chamber Institute for Legal Reform; Richard Berman, Washington Times]
- “The Year Ahead: Will Trump Tackle Asbestos Litigation Scandals?” [Sara Warner, Huffington Post]
- “Asbestos loss projection now $100 billion for US carriers: Best” [Insurance Insider]
- “Sheldon Silver left legacy of high awards in asbestos suits against city” [New York Post]
- 10+ year smoker who contracted lung cancer sues 199 defendants citing asbestos exposure [West Virginia Record]
- Coming, new documentary: “UnSettled: Inside the Strange World of Asbestos Lawsuits, a film by award winning director Paul Johnson.” [site, Madison County Record]
Archive for February, 2017
President Trump: “No federal funds” for Berkeley?
A President might not find it simple or straightforward to use direct executive orders to cut off funds to universities that tolerate disruption of speech or exclude speakers based on the content of their speech. But the power that the Department of Education and allied agencies have gathered to themselves over university life has steadily mounted, often against little resistance from the universities themselves, as in the Title IX instance. That gives an administration plenty of handles to make its will known, a process previewed in October, as to Trump, in a Chronicle of Higher Education piece. It quotes Alexander Holt, an education-policy analyst at New America, saying: “I could see a Trump administration going crazy on these ‘Dear Colleague’ letters.”
Two years ago I cited several examples of rule by Dear Colleague letter, as I called it, in this area. (More here.) And I noted one big problem with invoking judicial oversight to check the federal government’s power:
It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption.
More: cross-posted, slightly expanded, at Cato at Liberty. And FIRE (Foundation for Individual Rights in Education) has now weighed in on last night’s events at Berkeley surrounding an invited speech by Milo Yiannopoulos. On the federal funding issue, FIRE states its view as follows:
It is true that, under current law, public universities that enforce blatantly unconstitutional speech codes and private universities that violate their own promises of free speech do not face the same potential loss of federal funding for censoring campus speech that they do for violating other federal civil rights laws and regulations. However, FIRE has so far seen no evidence that Berkeley as an institution made any effort to silence Yiannopoulos.
Those who engage in violent and/or destructive protests are ultimately responsible for their unlawful behavior and may be subject to arrest and prosecution by law enforcement. To punish an educational institution for the criminal behavior of those not under its control and in contravention of its policies, whether through the loss of federal funds or through any other means, would be deeply inappropriate and most likely unlawful.
Neil Gorsuch on the Senate judicial confirmation process
Judge Neil Gorsuch’s first call after being nominated was to Judge Merrick Garland, “out of respect.”
If there is a relationship of esteem between the two, it may have something of a history. In 2002, as a Washington litigator before his elevation to the Tenth Circuit, Gorsuch wrote a piece deploring how Senators had stalled the nominations to the D.C. Circuit of Garland and another nominee who was to become well-known:
…some of the most impressive judicial nominees are grossly mistreated. Take Merrick Garland and John Roberts, two appointees to the U.S. Court of Appeals in Washington, D.C. Both were Supreme Court clerks. Both served with distinction at the Department of Justice. Both are widely considered to be among the finest lawyers of their generation. Garland, a Clinton appointee, was actively promoted by Republican Sen. Orrin Hatch of Utah. Roberts, a Bush nominee, has the backing of Seth Waxman, President Bill Clinton’s solicitor general. But neither Garland nor Roberts has chosen to live his life as a shirker; both have litigated controversial cases involving “hot-button” issues.
As a result, Garland was left waiting for 18 months before being confirmed over the opposition of 23 senators. Roberts, nominated almost a year ago, still waits for a hearing — and sees no end to the waiting in sight. In fact, this is the second time around for Roberts: he was left hanging without a vote by the Senate at the end of the first Bush administration. So much for promoting excellence in today’s confirmation process.
February 2 roundup
- “Louisiana Police Chief: Resisting Arrest is Now a Hate Crime Under State Law” [C.J. Ciamarella, earlier on so-called Blue Lives Matter laws here, here, etc.]
- Agency interpretive letters are the wrong way to enact new federal law [Ilya Shapiro and David McDonald on Cato amicus in school bathroom case, Gloucester County School Board v. G.G.]
- “Thousands of business threatened by ADA lawsuits” [Justin Boggs, Scripps/NBC26]
- “Reforming The Administrative State — And Reining It In” Hoover Institution panel with Adam White, Oren Cass, and Kevin Kosar, moderated by Yuval Levin [video, related Adam White paper, “Reforming Administrative Law to Reflect Administrative Reality”].
- New Hampshire: “Wal-Mart told to pay pharmacist $16 million for gender bias” [Reuters]
- Congress seldom has acted as if it believed strongly in D.C. home rule and it’s unlikely to start now [Ryan McDermott, Washington Times, thanks for quotes]
The Iowa spring gun case
Revisiting a 1971 landmark in tort law, the Iowa spring gun case [Randy Maniloff, Coverage Opinions]
Neil Gorsuch nominated to Supreme Court
I am a big fan of the work of Tenth Circuit Judge Neil Gorsuch and was very happy that President Donald Trump picked him last night for the Supreme Court vacancy.
Writing in the Wall Street Journal, David Rifkin and Andrew Grossman first praise Gorsuch’s eloquent and humane style of opinion-writing, then get down to particular cases. Many are of interest to those interested in resisting excessive government power, especially when centralized in Washington:
…Judge Gorsuch is among the judiciary’s most consistent and adept practitioners of textualism, the approach Scalia championed….
Looking to the “original public meaning” of the Fourth Amendment, for example, Judge Gorsuch has rejected the government’s view that a search warrant could be applied across jurisdictional lines. He also disputed its claim that police officers may ignore “No Trespassing” signs to invade a homeowner’s property without a warrant.
What about the Constitution’s separation of powers, intended to safeguard liberty? Judge Gorsuch has been at the vanguard of applying originalism to the questions raised by today’s Leviathan state, which is increasingly controlled by unaccountable executive agencies. These questions loom large after the rash of executive actions by President Obama, and now the whiplash reversals by the Trump administration.
The deference that judges now must give to agencies’ interpretations of the law, he wrote in an opinion last year, permits the executive “to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
Judge Gorsuch added: “Maybe the time has come to face the behemoth.” His addition to the Supreme Court would give the justices a better chance than ever to do precisely that.
Some more links:
- More background on the judge: Denver Post, Ramesh Ponnuru/NRO, Ilya Shapiro;
- He won Senate confirmation by voice vote in 2006 [hearings and related documents; floor debate]
- 11/9 Coalition on his civil liberties/Bill of Rights stands, including Fourth Amendment rulings;
- A key Gorsuch case on religious liberty: prison with sweat lodge for Native Americans broke the law by denying access to one inmate (Yellowbear v. Lampert). Extraordinarily clear and well written, the opinion also helps illustrate why Gorsuch, if confirmed, may fill Scalia’s place as the Court’s most talented writer.
- Everyone remember to switch positions on whether the Supreme Court is perfectly functional with eight members!
- Former Obama administration Acting Solicitor General Neal Katyal, in the New York Times (“Why Liberals Should Back Neil Gorsuch”);
- The judge in a 2008 dissent: don’t make it too easy to sue litigation experts who change their minds [our first, second Overlawyered posts]
- Just don’t tell anyone that he’s a Cato Institute author [Policy Analysis 1998, defense of term limits constitutionality]