Overlawyered: Chronicling The High Cost Of Our Legal System

State constitution clauses that require compensation for “damaging” property

Most of us are familiar with the Constitution’s Takings Clause, which requires the federal government to pay compensation when it takes private property. Virtually all state constitutions contain similar provisions. But twenty-seven state constitutions go further than that by requiring the government also to pay compensation for “damaging” or “injuring” property.

Until now, these “Damagings Clauses” have largely been ignored by legal scholars, particularly constitutional law scholars—and even by property rights advocates. But an outstanding 2018 article by Professor Maureen “Molly” Brady (who has just moved from the University of Virginia to Harvard) could help change that. She sheds light on the origins of these clauses in the late nineteenth and early twentieth centuries, the ways in which they have been largely gutted by court decisions, and what can be done to resuscitate them today.

Of the many lessons, one is simple: getting a constitutional amendment on the books is only half the battle, and often not the more difficult half. [Ilya Somin, Jotwell]

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Free speech roundup

  • “‘Hate speech’ is not a legal category, and banning it wouldn’t stand up to scrutiny.” [Cato Daily Podcast episodes with Caleb Brown interviewing Matthew Feeney and Lou Perez]
  • “Civil FOSTA Suits Start Showing Up In Court; Prove That FOSTA Supporters Were 100% Wrong About Who Would Be Targeted” [Mike Masnick, TechDirt, earlier]
  • Cause célèbre in the U.K.: employment law tribunal, an institution with no exact counterpart in American law, rules against worker fired from nonprofit over tweets expressing view that sex is immutable biological characteristic [Owen Bowcott, The Guardian; Jodie Ginsberg (chief executive of Index on Censorship group]
  • California attorney general’s office demands donor lists of non-profits, including those out of state. Supreme Court should now clarify its doctrine that all laws infringing on First Amendment freedoms be narrowly tailored [Ilya Shapiro, Trevor Burrus, and James Knight on Cato certiorari amicus brief in Institute for Free Speech v. Becerra; earlier and related here, here, etc.]
  • Trump sues the New York Times for libel over a Max Frankel op-ed and Eric Turkewitz doesn’t think much of his prospects [earlier]
  • “Was This the Decade We Hit Peak Free Speech?” [Jesse Walker]

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Peggy Little on the opioids litigation

“The opioid litigation will have the same dire effects on the rule of law as the tobacco deal.” It will also have cruel consequences for pain sufferers and other legitimate participants in the market. And the other problems: “a well-orchestrated media frenzy that advance the trial lawyer’s narrative over solid science,” and a cozy network of highly lucrative contracts between law firms and city/state governments that, to judge from the parallel tobacco episode, is likely to exert a corrupting influence on both public service and law. An article not to miss from a longtime friend of this blog [Law and Liberty]

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Minnesota bill would prescribe child-removal standards that differ by race

“Should the law require state child-welfare authorities to treat black children differently from white children? Lawmakers in Minnesota may soon vote on a bill to do just that. ” I have an op-ed in the weekend Wall Street Journal’s “Cross Country” column (paywalled) on a bill that has passed a Minnesota senate committee and would introduce explicit racial classifications into the state’s child welfare system, the idea being to institute markedly stronger protections for black families against child removal. I argue that if the provisions are a good idea, they should apply to all families, an argument with implications for the Indian Child Welfare Act (ICWA), on which the Minnesota bill was modeled. More on the proposed Minnesota African American Family Preservation Act: Sara Tiano/Chronicle of Social Change, Brainerd Dispatch, Insight News.

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Ninth Circuit panel: YouTube isn’t a state actor

Everyone knew this was the state of the law, and highly unlikely to change, but conservative commentator Dennis Prager had many of his followers hoping otherwise. A Ninth Circuit panel has now ruled that YouTube is not a state actor and that its marketing of itself as a forum featuring diverse viewpoints was opinion and not false advertising. [Nancy Scola, Politico; Eugene Volokh; Prager University v. Google; earlier (many channels not identified with conservative ideas saw far higher shares of their content placed in parental-control category than did Prager); Jonathon Hauerschild, American Legislative Exchange Council last January (YouTube not “public forum” for legal purposes)]

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Labor and employment roundup

  • Politically effective or not, Sen. Elizabeth Warren’s debate attack on Mike Bloomberg over non-disclosure agreements (NDAs) was simplistic, and that’s putting it diplomatically [Robin Shea]
  • West Coast longshore union braces for bankruptcy [Richard Read, Los Angeles Times]
  • An issue to watch carefully: most Democratic White House contenders support labor law changes to introduce “sectoral bargaining,” which ropes employers into all-for-one industry-wide negotiations like it or not [Sharon Block and Benjamin Sachs, On Labor, approving of this idea]
  • “Arbitration in the MeToo Era,” Federalist Society panel discussion with Paul Clement, Alexander Colvin, Deepak Gupta, Andrew Pincus, moderated by Hon. Joan Larsen;
  • Chilling effect: employers fear being hit with unfair labor practices claims if they say things that 1) are true and 2) would be helpful for workers to know [Cato Daily Podcast with Ken Girardin and Caleb Brown]
  • “Chipotle Wants Sick Employees to Verify with a Nurse. This is a Very Pro-Employee Move.” [Suzanne Lucas, Inc.]

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Land use and zoning roundup

  • “NEPA Reforms a Big Step toward Correcting Worst Abuses of Environmental Permitting Process” [CEI on White House Council on Environmental Quality release of proposed revamp of National Environmental Policy Act]
  • Developer, relying on NYC’s own interpretation of zoning rules, puts up 668-foot tower. City: whoops, we’ve decided that wasn’t a good interpretation, here’s a new one. Judge: now lop off nearly half the building. What’s wrong here? [Rick Hills, City Journal] “Mom-and-pop shops ‘blindsided’ by de Blasio’s sign crackdown” [Melanie Gray, New York Post]
  • Challenge to Ohio town’s zoning ordinance limiting number of unrelated persons who can live together [Cato Daily Podcast with Maurice A. Thompson]
  • Tradeable rights for NIMBY objectors? [Peter Van Doren]
  • “Why the ‘Used Housing’ Market Should Be Like the Used Car Market” [Scott Beyer last summer]
  • “How California Environmental Law Makes It Easy For Labor Unions To Shake Down Developers” [Christian Britschgi, Reason] NIMBYs keep In-N-Out Burger out of Rancho Mirage [same]

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Show trials for fossil fuel execs? Candidates divided on that

My new Bulwark piece: “He does not say what criminal law he thinks they have broken, despite the plain current legality under current law of operating refineries, at-pump gas sales and so forth. But note that Sanders’ language is not forward-looking — it’s retrospective. He’s not just talking about passing some new law and then arresting executives who proceed to violate it. He is talking about prosecuting past lawful behavior….

“America needs a politics with fewer authoritarian impulses, not more.”

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