Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for February, 2019

Timbs v. Indiana: state forfeiture can violate Excessive Fines Clause

A unanimous Supreme Court ruling in Timbs v. Indiana confirms that state governments, like their federal counterpart, may not impose excessive fines. The ruling also holds that “at least some state civil asset forfeitures” violate the Excessive Fines Clause. “As a result, the ruling could help curb abusive asset forfeitures, which enable law enforcement agencies to seize property that they suspect might have been used in a crime – including in many cases where the owner has never been convicted of anything, or even charged. Abusive forfeitures are a a widespread problem that often victimizes innocent people and particularly harms the poor.” [Ilya Somin; ABA Journal]

Now keep your eye on the Privileges and Immunities Clause, advises Ilya Shapiro; Justice Gorsuch used a concurrence to signal that he is interested in revitalizing it, a position already held by Justice Clarence Thomas [Cato; see also Josh Blackman on Twitter]

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February 20 roundup

  • Get me Civics, and make it an emergency: West Virginia legislature “moves to withhold judicial retirement benefits until state supreme court overturns a ruling” [Gavel to Gavel]
  • Do threats to publish intimate pictures of Jeff Bezos fall under provisions of criminal blackmail law? [Eugene Volokh]
  • Manuel Reyes, head of the Puerto Rico Food Marketing, Industry and Distribution Chamber, argues that policy shifts have heightened the costs of the Jones Act [Cato Daily Podcast with Caleb Brown, earlier]
  • Battle of the Ilyas: Ilya Shapiro vs. Ilya Somin on sanctuary city and state litigation [Federalist Society podcast]
  • “Most comprehensive study to date on the effects of voter ID argues that these laws have no effects on overall turnout or on the turnout of any group defined by race, gender, age, or party affiliation,” or on real or perceived fraud; results “cannot be attributed to mobilization against the laws” either [Enrico Cantoni and Vincent Pons, National Bureau of Economic Research] [via]
  • Worst Pigouvian tax idea of the year? Oklahoma lawmaker proposes taxing Uber surge pricing to combat DUI [Ryan Bourne]

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The NYPD’s DNA dragnet

New York City police have employed the equivalent of DNA dragnets, combining voluntary with covert (e.g., grabbing a discarded cup) collection methods. Thus, before identifying a suspect in the Howard Beach jogger case, “the NYPD collected well over 500 DNA profiles from men in the East New York area….But things get worse from there. For those people excluded from the jogger case, the Office of the Chief Medical Examiner, the city’s crime lab, permanently keeps those profiles in their databank [with more than 64,000 others] and routinely compares profiles to all city crimes.”

In other words, cooperate with police by giving a DNA sample in order to help solve (or clear yourself in) some dreadful crime, and you’re in the database to nail for anything and everything else in future. “In this respect, [you] will be treated just like someone convicted of a crime.” And did you guess this? “Under their labor contract with the city, rank-and-file officers don’t give the lab their DNA, which means the lab can’t easily rule out possible crime-scene contamination.” [Allison Lewis, New York Daily News]

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Regulation and administrative law roundup

  • Supreme Court could help rein in the administrative state by overruling Auer v. Robbins (1997), which directs courts to defer to agencies’ interpretations of their own regulations [Ilya Shapiro, Trevor Burrus, and William Yeatman on Cato amicus brief in Kisor v. Wilkie, earlier] “Does Kisor Really Threaten the Foundations of Administrative Law?” [William Yeatman]
  • “What Is Regulation For?” [video panel from Federalist Society National Lawyers’ Convention with Richard Epstein, Philip Hamburger, Kathryn Kovacs, Jon Michaels, moderated by Hon. Britt Grant] Plus, panel on the use of adjudication in place of rulemaking [Jack Beermann, Allyson Ho, Stephen Vaden, Chris J. Walker, moderated by Hon. Gregory Katsas; Antonin Scalia, “Making Law Without Making Rules,” Regulation magazine 1981]
  • “Businesses in regulated industries rely on the regulating agency’s advice to make decisions.” But if advice from agency staff can neither be relied upon for legal purposes nor be subject to judicial review, isn’t it worse than getting no advice at all? [Ilya Shapiro on Cato cert amicus brief in Soundboard Association v. FTC]
  • “Administrative Law’s Assault On Civil Liberty: Lucia Vs. SEC” [Margaret Little, Federalist Society, earlier]
  • Identifying regulations that disproportionately harm the poor [Cato Daily Podcast with Ryan Bourne, Vanessa Brown Calder, Diane Katz, and Caleb Brown]
  • Seek permission to innovate, or innovate first and then seek forgiveness? How startups manage regulators [Sam Batkins, Regulation reviewing Regulatory Hacking by Evan Burfield with J.D. Harrison] Sides tend to switch on this each time White House changes partisan hands, so now it’s the left-liberals who see a silver lining in agencies’ procedural ossification [Stuart Shapiro, Regulation]

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Police roundup

  • “Twenty-five years of developments in both the law and social science show that a police command to ‘stop’ is more than a mere request for information.” Courts should handle accordingly [Ilya Shapiro on Cato amicus brief in Cisse v. New York, New York Court of Appeals]
  • Procedures must be followed: “Murder suspect tries to turn himself in at New Orleans jail, but deputies demand proper ID” [Matt Sledge, The Advocate]
  • New project aims to educate public on how to navigate oft-complex police complaint process [Cato Daily Podcast with Steve Silverman and Caleb Brown]
  • “Are We About to See a Wave of Police Using ‘Victim’s Rights’ Laws to Keep Conduct Secret?” [Scott Shackford, earlier]
  • “Militarization Fails to Enhance Police Safety or Reduce Crime but May Harm Police Reputation” [Jonathan Mummolo, Cato Research Briefs in Economic Policy, earlier]
  • In letter to Google, NYPD threatens legal action if Waze app fails to remove feature allowing users to post locations of police checkpoints [Amanda Robert, ABA Journal]

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Finally, the Florida Supreme Court is changing

One of the most significant changes happening at the moment in the ideological complexion of the courts is not related to the federal courts at all. The Florida Supreme Court, for many years firmly in the hands of a liberal majority of justices, is likely to take a new turn with three appointments from new governor Ron DeSantis, a conservative Republican who campaigned against what he called judicial activism. The previous court is remembered especially for holding the national stage during the 2000 Bush v. Gore controversy. Among its other hits, it killed a school voucher program and liberalized tort law in such areas as premises, municipal, recreational, and rental-equipment liability. It also repeatedly struck down legislation aimed at reining in litigious excess in such areas as medical liability and expert testimony. [David Freddoso, Washington Examiner]

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