- Antitrust legislation once targeted the unstoppable rise of chain stores A&P and Sears, both now bankrupt [my new Cato post, quoting Joe Nocera, Bloomberg (“The next time you hear somebody say that the dominance of Walmart or Amazon or Facebook can never end, think about Sears. It can — and it probably will.”)]
- When you wish upon a suit: visitor grabs Disney cast member and screams at her after she asks him to move out of parade route, later pleads no contest to disorderly conduct, now wants $15,000 [Gabrielle Russon, Orlando Sentinel]
- Tomorrow (Thurs.) at noon Eastern, watch a Cato panel on “Coercive Plea Bargaining” with Scott Hechinger of Brooklyn Defender Services, Bonnie Hoffman of the NACDL, and Somil Trivedi of the ACLU, moderated by Cato’s Clark Neily. Could you resist taking a plea bargain if faced with a false accusation? [Marc John Randazza, ABA Journal]
- “I am a Democrat. But this may be the dumbest thing I have seen…. the Speech or Debate Clause makes about as clear as anything in the Constitution that a court cannot enjoin legislative officials from taking a fundamental legislative action such as a vote.” [Howard Wasserman on suit by Sen. Jeff Merkley (D-Ore.) asking court to, among other things, order delay of Senate vote on Kavanaugh nomination]
- An ideological screen for CLE? Following demands from tribal attorneys, Minnesota bar authorities order shelving of continuing legal education class on Indian Child Welfare Act developments taught by attorney Mark Fiddler, who often handles ICWA cases on side adverse to tribes [Timothy Sandefur]
- Left-leaning Florida Supreme Court nixes plan to let incumbent Gov. Rick Scott fill vacancies, entrenching its leftward lean for a while at least depending on outcome of governor’s race [Spectrum News 9]
- Supreme Court will hear “Slants” trademark case, which could prove relevant to Washington Redskins controversy [Eugene Volokh on Lee v. Tam]
- Ooh: Oregon Sen. Jeff Merkley says SCOTUS vacancy being “stolen” which “delegitimizes” any nominee [Roger Pilon] More on President-elect Trump and the Supreme Court: Jeffrey Rosen/Politico, Josh Blackman/National Review;
- “Whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice.” [Microsoft v. Baker]
- Are malicious prosecution claims cognizable under the 4th Amendment? [Damon Root, Reason on Manuel v. City of Joliet; more, Glenn Harlan Reynolds/Cato Supreme Court Review]
- “Justice Kennedy: The Once and Future Swing Vote” [Ilya Shapiro] Justice Sam Alito’s speech to Federalist Society lawyers looks to post-Scalia era [Adam Liptak, NYT]
- “Supreme Court Justices Push Back On Government’s Expansive Insider-Trading Theories” [Daniel Fisher, earlier on Salman v. U.S., Thaya Brook Knight and related video]
Are you now, or have you ever been, a supporter of the Hoover Institution, the Mercatus Center, the Heritage Foundation, or the Acton Institute? Lachlan Markay, Free Beacon:
Democratic senators have been assigned conservative nonprofit groups to call out by name on the chamber floor in speeches on Monday and Tuesday criticizing corporations and advocacy groups for opposing Democratic climate policies, internal emails reveal.
…[Rhode Island Sen. Sheldon] Whitehouse and his allies, including Senate Minority Leader Harry Reid (D., Nev.), have crafted a schedule for floor speeches on Monday and Tuesday that assigns each participating Senator at least one group to go after by name.
Most of the groups have already been targeted by state Democratic officials that have undertaken a coordinated legal campaign against oil giant ExxonMobil since last year. Many were named in subpoenas sent to the company by state attorneys general as part of that effort.
The ringmaster, once again, is Sen. Sheldon Whitehouse of Rhode Island — yes, that Sheldon Whitehouse, whose hometown Providence Journal rightly called out his current campaign to sic the law on improper climate opinion as likely to “have a chilling effect on free speech, by intimidating dissenters into silence.” The leader on the House side is Rep. Ted Lieu (D-Calif.), also getting to be a familiar name.
One reason this is more sinister than your ordinary political sideshow: the proposed concurrent resolution urges right-leaning nonprofits “to cooperate with active or future investigations” of purportedly unlawful opinion-slinging. One of the most junior senators, Gary Peters of Michigan, apparently drew the short straw in the heresy posse and was assigned to attack my own Cato Institute (which publishes this site) at 6:30 this evening.
The senators participating in this appalling exercise besides Sens. Whitehouse, Reid, and Peters, all Democrats, are Sens. Ben Cardin of Maryland, Tim Kaine of Virginia, Barbara Boxer of California, Martin Heinrich of New Mexico, Chuck Schumer of New York, Al Franken of Minnesota, Elizabeth Warren of Massachusetts, Dick Durbin of Illinois, Tom Udall of New Mexico, Jeanne Shaheen of New Hampshire, Jack Reed of Rhode Island, Edward Markey of Massachusetts, Brian Schatz of Hawaii, Jeff Merkley of Oregon, Richard Blumenthal of Connecticut, and Chris Coons of Delaware.
Some early reactions: “All that is lacking are their public confessions” — Ronald Bailey at Reason (whose associated Reason Foundation is among the targets). “‘Assigned’ groups to attack? That sounds like middle school mean girl behavior.” [C.B. on Facebook] Peter Roff at U.S. News on how the Senators can’t (yet) make dissent illegal but can make it costly. And a reminder: the “Exxon Knew” crowd knew Whitehouse’s RICO-for-speech theory was wrong because their own allies had told them, but went ahead anyway.
More, Matt Welch at Reason:
…Since the targets of this shaming exercise are not being afforded the courtesy to rebut the charges in the forum at which they are being smeared, consider this a prebuttal…
This coordinated campaign would be an assault on free speech even if it were not drenched in conspiratorial inaccuracy. Democratic lawmakers, attorneys general, and activists are systematically singling out free-market think tanks for potential criminal prosecution and one-sided disclosure requirements based on the content of the think tanks’ research and commentary. They are literally trying to criminalize dissent. If successful, they will establish as “fraud” or “racketeering” any future think-tank work that runs afoul of political orthodoxy. …
Sadly, this heavy-handed act of government intimidation will likely go as unnoticed as Hillary Clinton’s long track record against free speech. Why? Because generally speaking both the mainstream press and the organized left reserve their First Amendment outrage for politicians they disagree with. Their silence is shameful, and deafening.
[Updated to correct error on Lachlan Markay’s name, sorry]
- Furor grows over Obama administration’s Operation Chokepoint program chilling bank access for legal but disfavored groups [Iain Murray, Elizabeth Nolan Brown, FDIC list (not just payday lenders but also lawful purveyors of pills, guns, ammunition, and much more), Hans Bader] Parallel, though not happening under same program: JP Morgan abruptly closes accounts of former Colombia finance minister who is a renowned international economist, apparently because he made it onto a list of diplomats and other “politically exposed persons” statistically associated with legal risks and high compliance costs [Business Insider] Update via Nolan followup: Dana Liebelson at Mother Jones quotes anonymous bank officials as claiming that some account closures are wrongly being attributed to the program, but even in defending it concedes that should banks opt for continuing to service clients in disfavored lines of business they will shoulder distinctive (maybe decisive) compliance costs from “manag[ing] these relationships and risks,” engaging in due diligence, etc. Also, lawmakers like Sens. Jeff Merkley (D-Ore.) and Elizabeth Warren (D-Mass.) and Rep. Elijah Cummings (D-Md.) back the program; besides, this isn’t “the first time that feds have asked banks to keep an eye on their customers” since the Know Your Customer program goes back some years. So that’s comforting!
- “Court: Standard & Poor’s is entitled to discovery supporting its ‘selective prosecution’ claim” [Volokh, earlier here and here]
- “Plaintiff? Is That Really Necessary In A Class Action?” [Daniel Fisher on ZymoGenetics case]
- Backed by hedge fund, lawyers exploit anti-terror law to squeeze global banks [Norman Lamont, New York Post]
- “CEO facial masculinity predicts firm’s likelihood of being subject to SEC enforcement action” [Jia, Van Lent, and Zeng, SSRN via @brucecarton]
- “Reflections on High Frequency Trading” [Robert Levy, Cato]
- Banks finally lay to rest long-running litigation under Missouri second-mortgage law (MSMLA), though only after one Kansas City law firm ran up more than $600 million in settlements [Litigation Daily]
Not long ago the U.S. Senate refused to accept an amendment to the stimulus bill by Sen. Jim DeMint (R-S.C.) that would have reformed some CPSIA provisions and delayed the implementation of others. Last night it rejected a similar DeMint effort in the form of a budget amendment, and this time there was a roll call, which confirmed that the rejection was largely along party lines: every Democrat voted against the measure except for Sens. Mark Begich (Alaska), Kay Hagan (N.C.), Amy Klobuchar (Minn.), and Ben Nelson (Neb.), while every Republican voted in favor except Susan Collins (Maine), John Cornyn (Tex.), Mike Johanns (Neb.), Mel Martinez (Fla.), and John McCain (Ariz.). Independent Bernie Sanders (Vt.) voted against, while Sens. Robert Byrd (D-W.Va.) and Edward Kennedy (D-Mass.) did not vote.
Following Wednesday’s rally on Capitol Hill, small business people who fanned out to visit their Senators brought back many encouraging-sounding stories of the favorable “We hear you!” “We get it!” reactions they had received visiting the offices of Democratic Senators like Roland Burris (Ill.), Joseph Lieberman (Conn.), Jeff Merkley (Ore.), Jay Rockefeller (W.Va.), and Charles Schumer (N.Y.). Whether or not anyone in those offices hears or gets the outcry, it sounds as if the members even more clearly hear and get a different message: that of party discipline.
Kimberly Payne feels oddly hopeful: “The original vote on the CPSIA was nearly unanimous – this one was 39-58. I call that progress!”
The WSJ editorializes on the law again today, its third, concentrating this time on the youth motorcycle/ATV ban. More: Montana senators fiddle while small businesses perish (Mark Riffey, Flathead Beacon); the rally and the Democrats (Rick Woldenberg).
Public domain image: Yankee Mother Goose (1902), illustrator Ella S. Brison, courtesy ChildrensLibrary.org.