January 2 roundup

  • Extended look at problems of the adult guardianship program in New York [John Leland, New York Times, earlier]
  • “‘Professional Speech’: a Distinction without a Difference” after the NIFLA case [Cato podcast with Caleb Brown and Robert McNamara of Institute for Justice]
  • New York enacts law imposing stiff new tax on opioid makers and wholesalers while forbidding them to recoup it by raising prices for buyers in other states. That won’t fly under the Dormant Commerce Clause, rules federal judge [Nate Raymond, Reuters/Insurance Journal]
  • Should courts uphold laws grounded in part on hostility to a religious group, though rationalized on some other basis? Both right and left have trouble staying consistent [Ilya Somin]
  • “Oxford University Gets Opposition To Its Attempt To Trademark ‘Oxford’ For All The Things” [Timothy Geigner, TechDirt]
  • Australian corrections officials keep bringing the wrong Peter Brown to court as murder defendant [Lowering the Bar]


  • Re: Professional Speech


    The question I always ask—these are clearly civil rights violations under color of law—where are the prosecutions? Just arresting these people would do more for our right to free speech than a million lawsuits.

    There was a story in the Indianapolis Star years ago about a private security guard in an apartment complex pulling over some guy (after he left the complex) for speeding. This was, of course, preposterous, as the security guard was not a cop and the speed limits weren’t enforceable under the law. He was arrested and actually given a short prison sentence. There seems to be a different standard with government officials such as this Oregon crew. Law enforcement will be really zealous when some rent-a-cop acts like a cop, but government officials routinely violating First Amendment rights, not so much.

  • With regard to face-neutral laws motivated by animus against a particular religion, I wonder whether their current effect should be considered. Trump’s travel ban, for example, was not only motivated by anti-Muslim animus but works primarily against Muslims. The Blaine Amendment, on the other hand, though motivated by anti-Catholic animus, today has a much more neutral effect – it not only prevents government funding of Catholic schools, but also of Protestant schools, of which there are now many, and of an increasing number of Muslim schools.

    • Three is a huge problem with ascribing motives to legislation or executive acts–namely, it undercuts the right of society to implement laws that are otherwise permissible. Yick Wo v. Hopkins is good law, but how far it goes is another question.

      With respect to Trump’s EO, we can see how anti-Trump fervor has just gone too far. Foreigners not on American soil have no rights, and hence it really shouldn’t matter what Trump’s motivation is. Second, orders that are valid on their face are now to be tested based on the supposed biases of those adopting it. Should Barack Obama’s executive orders regarding affirmative action have been tested based on his “Typical white person” comment or his “I don’t care about the suburbs” or his denigration of rural America. And in the realm of affirmative action, it is discrimination on the basis of race–and anyone who wants to go further than the courts allow, by definition, wants to engage in illegal discrimination.

      Should Justice Sotomayor’s judicial opinions be scrutinized because she said that wise Latinas come to better results than white men?

      And what considerations are verboten? Polling has shown that many Mexicans have irredentist views regarding the desert Southwest—would it be unacceptable to limit immigration from Mexico on that basis? Would it be ok to compare the crime rates of offspring of certain groups of aliens as a basis to exclude? What quantum of proof is necessary?

      • Your analysis fails to take into account the BIT [But It’s Trump] doctrine. No matter how clear the grant of discretion to the President, or jurisprudence, or whatever the past practices of previous Presidents, if such action is taken, or refrained from being taken, by the current administration, then the BIT doctrine applies and the action can be enjoined or refrained action ordered undertaken.

      • I actually agree that looking at motivation is problematic. My point is that even if one does consider motivation, might we not also want to consider the current effect of the legislation as a mitigating factor.

        • Obviously, with the Blaine Amendments, the relevant issue is the passage of time, not some judge’s assessment of whether something is good or bad.

          As for your shots at Trump, perhaps they can be taken more seriously if they didn’t seem to be based on the sui generis “Trump is uniquely bad, so new rules are justified” standard.

          Perhaps you could take the standard that you are applying to Trump and address the issues I have raised regarding Obama and Sotomayor?

          • I took no shots at Trump. You seem to be reading your own issues into what I said.

  • You accused Trump of anti-Muslim bias . …