- “We’re not asking for the Wild West. We’re asking for cookies.” New Jersey is the last state without a law legalizing at least some cottage food sales [Amelia Nierenberg, New York Times]
- Reversing district court, Fifth Circuit panel upholds Indian Child Welfare Act against constitutional objections; dissent by Judge Owen finds a commandeering problem [Brackeen v. Bernhardt, earlier]
- “The Larsens’ videos are a form of speech that is entitled to First Amendment protection.” Eighth Circuit panel rules [correctly, in my view] for videographers who wish to craft wedding videos only when the ceremonies accord with their religious beliefs [Telescope Media Group v. Lucero; Eugene Volokh]
- “Innocent man spent months in jail for bringing honey back to United States” [Lynn Bui, Washington Post/MSN]
- Preakness, Peter Pan Inn, relocating USDA jobs, Baltimore and Abell Foundation in my new Free State Notes roundup;
- Pushing back against the argument, much circulated lately, that eviction is a major factor in causing poverty [John Eric Humphries, Nicholas Mader, Daniel Tannenbaum, Winnie van Dijk, Cowles Foundation]
I’ve got a new piece at Ricochet on the problems with the Indian Child Welfare Act of 1978, which a federal judge struck down as unconstitutional in October in a ruling (Brackeen v. Zinke) likely to be appealed. Excerpt:
One effect is to give tribal governments dangerous power over persons who never willingly submitted to their authority, including persons who have never set foot in Indian country. A couple briefly connect at a bar in Boston or Brooklyn or Baltimore one night and a child is born as a result. The father may not have mentioned at the time, indeed may only imperfectly remember, that as a child he was inducted into an affiliation with some faraway tribe toward whose leadership he has long felt indifferent or estranged. But ICWA covers as an “Indian child” any biological child of a tribal member so long as that child is “eligible for membership” in a tribe.
Sorry, Dad – and sorry, total-bystander Brooklyn Mom — but under ICWA that distant tribe now has a lot of power over your future. You are not necessarily free to make an adoption plan with some trusted member of your local community. Instead, you must submit to a distant tribal authority and prepare for the child’s possible “placement … in … homes [that] reflect the unique values of Indian culture.” What about your own cultural background as a non-Native parent, along with that of your relatives who may have been helping care for the child during his first years? Your youngster may have spent his life thus far immersed in that other culture — perhaps Korean-American, or Dominican, or African-American, or Eastern European. But the law cares not. In fact, it encourages as “ICWA-compliant” placement of your child with any Indian tribe around the country, however remote from that of either biological parent’s, in preference to any non-Native placement, however well matched to the circumstances of the child’s life thus far.
The law I really despise is the ICPC, the Interstate Compact for the Protection of Children. It was originally intended to stop states from dumping foster children in other states to take advantage of their looser welfare policies.
First, it would seem to me that this should be the price paid for having loose welfare policies, but beyond that the real effect of the law is horrendous.
What the act does is make it hard to move children to caregivers out of state without that state’s permission or agreement. That agreement can take many months. A court action to return children to parents or name the state as their conservator has to be completed within a deadline, usually one year.
So, I have several cases where the parents’ families are from out of state. They have a large family network in that other state. But we can’t move the children to that family and have to put them in foster care. By the time the ICPC is completed, the foster family has a vested interest in the children and now they are fighting, and often succeed, in keeping the children away from the blood family.
I find this result to be repulsive, and that result is not at all unusual. I have a case that just ended where the mom and the dad’s family in New Hampshire are both very fine with middle class homes and lots of family support, yet because the children had been kept in foster care the courts don’t want to “disrupt” their lives again. It’s just about the most asinine government policy ever.
This gets me curious about ICPC. Other comments about its history and workings, positive or otherwise, are welcome.
- 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]
- Peer-to-peer car sharing platforms could reduce the costs of car usage, unless elements of rental car industry manage to strangle it through regulation [Jonathan M. Gitlin, ArsTechnica on Illinois Gov. Rauner’s veto of a bill to cripple startups] Are we headed toward a legal requirement that cars be designed to sense that a driver has high blood alcohol and not function then? Does it matter whether the car is self-driving? [Nicole Gelinas]
- “11th Circuit rages against ‘incomprehensible’ shotgun complaint, concludes lawyer’s intent was delay” [ABA Journal]
- Quackery and bluster define the lawsuit filed by NY, MD, NJ, and CT attorneys general against Congress’s curtailment of state and local tax (SALT) deduction [Reilly Stephens; more, Howard Gleckman, Tax Policy Center]
- “Conservative/Libertarian Faculty Candidates Are Hired By Law Schools Ranked 12-13 Spots Lower Than Equally-Credentialed Liberal Applicants” [James Cleith Phillips via Paul Caron/TaxProf]
- Coming next week: I’m set to host and moderate a Sept. 20 forum at Cato in D.C. on the Indian Child Welfare Act. Featured are three lawyers who have been involved in high-profile ICWA litigation, Timothy Sandefur of the Goldwater Institute, Matthew McGill of Gibson Dunn, and Charles Rothfeld of Mayer Brown and Yale Law School [details and registration; event not livestreamed, but video to be posted later]
- And now for something completely different: “Charles Evans Hughes and Chevron Deference” [Gerard Magliocca]
- Popehat’s Patrick tells the story of how, representing a bank, he resisted a serial litigant rather than pay her off [Twitter thread]
- News of suits motivated by attorneys’ fees may be slow to reach Harvard [“Bill of Health”, dismissing “idea of opportunistic lawsuits to enforce the ADA” as “somewhat farfetched” since federal law does not grant damages]
- Tim Sandefur on the Indian Child Welfare Act [Cato Regulation magazine, earlier]
- $3.5 million gift from leading trial lawyer Elizabeth Cabraser launches new Berkeley Center for Consumer Law and Economic Justice [Berkeley Law School]
- “The South African government will soon discover the extremely complex technical headache of expropriating land without compensation.” [Johann Kirsten and Wandile Sihlobo, Quartz]
- Speak not of trolls: “Lawyer who filed 500-plus copyright cases in federal court calls $10K sanction ‘judicial error'” [ABA Journal]
- Antitrust crackdown on Big Tech based on predictions of where markets may head in future? Just don’t [Alan Reynolds in part three of series; parts one and two]
- Copyright holder sends mass demands to IP address holders, but for lower amounts and as “fines” rather than settlements. A move away from troll model, or refinement of it? [Timothy Geigner, TechDirt]
- Among the many issues far afield from Bill of Rights that ACLU is up to lately: defending drive-by ADA filing operations against remedial legislation [ACLU, earlier on its drift from civil liberties mission]
- Texas AG sues arguing unconstitutionality of Indian Child Welfare Act (ICWA); case involves blocking of “adoption [that] has the support of the boy’s biological parents and grandmother, Paxton said.” [Texas Tribune] More: Timothy Sandefur, NR;
- More local and personal than my usual fare, I ramble about my education and upbringing, why I live where I live, as well as some policy matters [Frederick News-Post “Frederick Uncut” local-newsmaker podcast with Colin McGuire and Danielle Gaines]
- “What’s the Difference between ‘Major,’ ‘Significant,’ and All Those Other Federal Rule Categories?” [Clyde Wayne Crews, Jr., CEI]
- Clarence Thomas completes a quarter century of distinguished service on the Supreme Court, not that certain journalists will ever see past their loathing [Adam White, Weekly Standard; Ann Althouse]
- Hollywood actor’s lawsuit-related vengefulness against anonymous Twitter troll endures past death [Mike Masnick]
- United Nations panel: U.S. owes racial reparations [PBS]
- “Yesterday’s Antitrust Laws Can’t Solve Today’s Problems” [Tyler Cowen]
- “As a gay man, I’m horrified that Christian bakers are being forced to surrender their beliefs” [Neil Midgley, Telegraph on ruling by Belfast, Northern Ireland court of appeal]
- Another review of Naomi Schaefer Riley’s new book, The New Trail of Tears: How Washington Is Destroying American Indians [W. B. Allen, earlier] ABA Journal covers ongoing controversy over Indian Child Welfare Act (ICWA) [earlier]
- Bad Texas law requiring breweries to give away territorial rights for free violates state constitution, judge says [Eric Boehm]
- California’s identity theft statute bans so many more things than just identity theft [Eugene Volokh]
- Cato Unbound symposium on Indian Child Welfare Act/ICWA, to which I contributed, wraps up [Timothy Sandefur on sovereignty and fixes] Minnesota’s Indian foster care crisis [Brandon Stahl and MaryJo Webster, Minneapolis Star-Tribune]
- If you want to hear me translated into Arabic on bathroom and gender issues, here you go [Al-Hurra back in May]
- Asset forfeiture: “New Mexico Passed a Law Ending Civil Forfeiture. Albuquerque Ignored It, and Now It’s Getting Sued” [C.J. Ciaramella] “IRS Agrees to Withdraw Retaliatory Grand Jury Subpoena Against Connecticut Bakery” [Institute for Justice] “California Asset Forfeiture Reform Heading to Approval” [Scott Shackford]
- Evergreen: “‘I never thought leopards would eat MY face,’ sobs woman who voted for the Leopards Eating People’s Faces Party.” [Adrian Bott]
- Do lawyers find ways to litigate over the effects of the leap day, Feb. 29, that is inserted into the calendar every four years? Glad you asked [Kyle White, Abnormal Use]
- Weren’t regulations supposed to have fixed this, or is it that accommodation rules for air transport are legally separate from those for ordinary commerce? “More flights seeing odd animals as emotional support companions” [WHIO]
- Tiny desk and art magnets: Zen Magnets wins partial but important legal victory against Consumer Product Safety Commission (CPSC) [Zen Magnets, Nancy Nord, earlier]
- Federal government, which has passed no law on private-sector LGBT bias, considers withholding funds to punish North Carolina for declining to have one [New York Times; earlier on Obama EEOC’s wishful effort to generate such coverage through reinterpretation of other law]
- Spirit of trade barriers: Nevada workers walk off job to protest use of workers from other U.S. states [Alex Tabarrok] Expansion of foreign trade “has revealed, not created, problems in the American economy” [Scott Lincicome] More: “Limiting trade with low-wage countries as severely as Sanders wants to would hurt the very poorest people on Earth. A lot.” [Zack Beauchamp, Vox; related Jordan Weissmann, Slate (what Sanders told NYDN “should be absolutely chilling to the developing world… inhumane”)]
- Latest ICWA (Indian Child Welfare Act) cause célèbre is over 6-year-old Lexi, whose world is getting upended because of her 1.5% Choctaw descent (a great-great-great-great grandparent on her father’s side) [Christina Sandefur/Federalist Society blog, Naomi Schaefer Riley, New York Post earlier generally on ICWA and in my writing at Reason and Cato on the Adoptive Couple case]
Live now: The Goldwater Institute has filed a multi-sided challenge to the operation of the Indian Child Welfare Act. AD v. Washburn; website at EqualProtection.org; investigative report Death on a Reservation; Goldwater policy paper. More updates will follow.
Related: in Minnesota, a Twin Cities couple represented by attorney Mark Fiddler has filed suit saying that ICWA violates their constitutional rights by requiring that they notify the Mille Lacs Band of Ojibwe before proceeding with plans to allow a non-Indian couple to adopt their infant. [Minneapolis Star-Tribune] Also: Johnston Moore, Children Deserve Families.