June 19 roundup

  • Gorsuch: “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result.” And yet he and Ginsburg were the only dissenters from the Supreme Court’s 7-2 decision Monday in Gamble v. U.S. to allow consecutive state and federal prosecutions over the same conduct, the so-called dual sovereignty exception to double jeopardy protection [Reuters, Ilya Shapiro, Cato brief (with ACLU and Constitutional Accountability Center) that had urged an end to the exception; and a conspiracy theory about Kavanaugh that wound up having absolutely no predictive value]
  • “When Should Plaintiffs Be Able to Sue Anonymously?” [Eugene Volokh]
  • 77-year-old antitrust consent decrees were designed for a music business that long since faded into history, DOJ’s decision to reconsider is welcome [Federalist Society podcast with Kristen Osenga and Mark Schultz, Osenga blog post]
  • Clarence Darrow once boasted a cult following among American lawyers. His manipulative speech in the Leopold/Loeb case leaves you to wonder whether much will outlive the hype [Bryan Caplan]
  • Federal aid-to-state programs have exploded in recent years, a good way to redistribute money and power into the hands of political elites with little taxpayer or voter accountability [Chris Edwards, Cato, new study and blog post]
  • Dear Caterpillar: do you think there is much likelihood of consumer confusion about whether this coffee shop t-shirt is promoting earth-moving machinery? [Timothy Geigner, TechDirt]


  • The Darrow speech–
    If jurors took our law on insanity literally, they would have to acquit virtually all murderers. Fortunately for public safety, this is a time when jury nullification works for the prosecution.

  • Darrow was a defense lawyer whose two clients had pleaded guilty to murder; his only goal was to persuade the judge not to sentence them to death. He did so with what little he had to work with, and did it effectively without ever crossing any ethical lines. Why that should undermine his reputation is a mystery to me; to the contrary, I think his argument enhances his reputation as a skilled trial attorney.

  • The Caterpillar case claiming a trademark on “cat” (waiting for them to start suing veterinarians) reminds me of a report many years ago when Sun Microsystems first announced the Java programming language. Seems anybody with “java” in a name was getting a letter, including Javan Corporation (or something close to that).

    After all of this, I continue to be amazed that McDonald Hardwoods continues to be a store in Denver.

    • How are their burgers? Does this mean that McDonald’s hamburgers do, indeed, contain some sawdust? I is confused.

      • You is thinking of Wetson’s.

    • There is a story(it may be apocryphal) out there about The McDonald’s fast food corporation going after a full service restaurant in the UK owned by a member of the Scottish clan McDonald.

      According to the story, The McDonald of Clan McDonald sent an official representative in full clan regalia to the UK headquarters of the McDonald corporation and told them with much poetry and fanfare to bring it.

    • I worked for Caterpillar’s financial services captive at one point. I took a course they were offering at corporate called “Business Law for the Non-Specialist,” which included a module on IP/copyright. CAT’s position was basically that no matter how low the likelihood of anyone confusing something containing the word “cat,” with the CAT trademark or Caterpillar brand they had to at least send a letter so as to show that they were vigorously defending their trademark. And mind you, there was a lot of cheap, knock-off CAT branded merchandise out there, so it wasn’t a completely irrational position to take.

  • I thought it was the McDonald’s Shakes that contained edible wood pulp as a thickener/stabilizer. (Cellulose)

    Yep, just checked their ingredient list today. Still there. Its no longer in the nuggets, the fried chicken patty, but remains in the fish.

    Feel free to check yourself at: https://www.mcdonalds.com/us/en-us/full-menu.html

    Similar results searching Wendy’s, Burger King, Taco Bell, Carl’s Jr, etc – generally in the same types of ingredients (plus shredded cheese).

    • Shredded cheese in the shakes? Yikes.

    • So McDonald’s food is made of paper/cardboard? Figures.

  • Prof. Caplan’s dismissal of Darrow’s arguments is Exhibit A of an academic out of touch with reality. It’s hard to imagine more unsympathetic defendants than two brilliant students at Chicago from wealthy families that for kicks decided to kidnap, rape (a detail left out of most accounts), and murder a fourteen year old boy for the thrill of it. Compared to them, Charles Manson’s life prior to his little peccadillos deserves our heartfelt sympathy.

    Darrow convinced a judge that defendants who had no redeeming qualities that their lives should be spared, this in an era when capital punishment for first degree murder was common. For Caplan (and Walter too?) to say that they find the logic he used to be unconvincing and overrated suggests that they are using a totally different measuring stick than the one Darrow faced. Any lawyer who’s been inside a courtroom would have said beforehand that his task was beyond the abilities of any mortal.

  • Why should both the state and the federal government make the same thing illegal? Shouldn’t there be federal preemption, if it is truly worth federal enforcement? Shouldn’t that cure any possible double jeopardy?
    Alternatively, if it is a matter left to the states, then should there be a federal law involved at all?
    In short, one way or the other, there should be no dual sovereignty

    • “if it is a matter left to the states, then should there be a federal law involved at all?”

      Maybe, if limited to federal land where state law has no jurisdiction and cases where the crime itself crosses state lines.

      However, the DOJ’s current doctrine on federal criminal jurisdiction under the commerce clause is absurd. They claim they have valid jurisdiction if a tool used to commit the crime traveled in interstate commerce 30 years before the crime was committed. In other words, in today’s world, they always have jurisdiction on interstate commerce grounds. Heads we win, tails you lose.

      • I would cut back the “interstate commerce” justification to laws genuinely about interstate commerce. But, in its place, I would expand Congress’s Fourteenth Amendment power to guarantee all citizens the equal protection of the laws.

  • […] the New Deal. Justice Neil Gorsuch’s dissent in Gundy, together with his scalding dissent (earlier) in the double jeopardy/dual sovereignty case Gamble v. U.S. on Monday, makes him the libertarian […]

  • […] “Caterpillar Now Going After All The Cats For Trademark Cancellations” [Timothy Geigner, TechDirt, earlier] […]