Change in the federal appeals courts is not a rapid process. Some reasons for both sides to calm down about the supposed Republican capture of the federal judiciary [Martin Siegel, New York Times] I wrote in February that “the nature of the courts in our system is not that one side wins any permanent victories on judicial selection. And that’s a good thing.”
Expensive windshields in Florida
Florida’s overdue insurance-law reform on the “assignment of benefits” issue had a carve-out excluding auto claims, and Sunshine State lawyers continue to ride auto-glass cases for automatic fee entitlements. A report from the Florida Justice Reform Institute “shows nearly all auto glass lawsuits come from just 15 law firms — one firm, Malik Law, accounts for nearly 30 percent of all such lawsuits filed this year. Additionally, the vast majority of auto glass lawsuits are in Hillsborough and Orange counties. FJRI speculates that’s due to higher attorney fee awards in those counties.” [Drew Wilson, Florida Politics, earlier]
Regulation and administrative law roundup
- Case over harsh IRS handling of lost-in-mail filing reflects worst practices on judicial deference [William Yeatman, Yale Journal on Regulation on Cato certiorari amicus brief in Baldwin v. U.S.] “Congressional Delegation of Regulatory Authority and Time” [Cato podcast with Yeatman and Caleb Brown]
- “Baseball, Legal Doctrines, and Judicial Deference to an Agency’s Interpretation of the Law: Kisor v. Wilkie” [Paul J. Larkin Jr., Cato Supreme Court Review; earlier on Kisor; Cato podcast with Ilya Shapiro (“Auer deference could become minute deference”), William Yeatman and Caleb Brown]
- “Gundy and the (Sort-of) Resurrection of the Subdelegation Doctrine” [Gary Lawson, Cato Supreme Court Review, earlier on Gundy v. U.S. here, here]
- “From Chevron to ‘Consent of the Governed'” [David Schoenbrod, Cato Regulation magazine; Cato panel discussion video with Adam White, David Doniger, Shapiro and Yeatman; Federalist Society panel discussion video with Mark Chenoweth, Doniger, Kristin Hickman, Schoenbrod, Jennifer Mascott]
- “Recognizing the Congressional Review Act’s Full Potential” [Jonathan Wood, Federalist Society, earlier]
- “Idaho is the only state in the nation where the elected representatives of the people must affirmatively act at regular intervals to continue the existence and operation of their regulatory system.” When a lapse in reauthorization threw the regulatory code into question, a remarkable struggle began [J. Kennerly Davis, Federalist Society]
Great moments in asset forfeiture law
The Massachusetts House of Representatives last week “approved a bill that would ban flavored e-cigarettes, impose a 75 percent excise tax on ‘electronic nicotine delivery systems’ (including e-liquids as well as devices), and authorize forfeiture of cars driven by vapers caught with ‘untaxed’ products.” The law specifies that the state can seize, resell, and keep the proceeds from a motor vehicle, boat or airplane found to have contained or transported a single untaxed vaping device. “This is completely insane and endangers the property rights of anyone in Massachusetts,” said Dan Alban of the Institute for Justice, an attorney who has worked on cases of forfeiture abuse. [Jacob Sullum, Reason]
“One of the most ridiculous threat letters”
Charles Harder, a lawyer representing Donald Trump, last month “sent what has to be one of the most ridiculous threat letters I’ve seen (and that’s saying something) to CNN promising to sue the company for its ‘biased’ coverage of the possible Trump impeachment process.” Rather than defamation, a frequent cause of action threatened by Trump, the letter invokes the Lanham Act, alleging that the network is engaged in false advertising by describing itself as employing “journalists” who are “fair and balanced.” “Everything about the letter is pretty crazy, especially from a President whose fans like to pretend he he supports free speech.” [Mike Masnick, TechDirt]
November 20 roundup
- Full Fifth Circuit agrees to rehear challenge to constitutionality of Indian Child Welfare Act; a three-judge panel, reversing district court, had upheld the law [Timothy Sandefur, my post with Nathan Harvey from earlier this year]
- On basis of lack of complainant standing, but without reaching First Amendment issue, Kentucky high court rules in favor of Lexington t-shirt maker who had been ordered by the city’s Human Rights Commission to print shirts with messages he disagreed with and attend diversity training [ABA Journal, earlier on Hands-On Originals case]
- “Never-ending net neutrality litigation means lawyers always win” [Roslyn Layton, AEI]
- Online political ads and the First Amendment, Frosh and Bloomberg, red flag laws, Orioles as lobbying tool, and more in my latest Maryland roundup at Free State Notes;
- Are hate crimes up or down in number? The government has no idea [Jeff Jacoby, Boston Globe, I’m quoted; earlier]
- New York City Council adopts foie gras ban to take effect in 2022 [Baylen Linnekin] If you’ve assumed that production of this delicacy is unethical, this article might change your mind [J. Kenji López-Alt, Serious Eats]
Retailer: sorry about that overreaching trademark claim. Also, we’ve fired our lawyers.
Some outdoor enthusiasts launched a boycott of electronic retailer BackCountry.com after reports that it had unleashed a barrage of trademark lawsuits against various smaller companies that had sought to claim more specialized uses of the word “backcountry.” Company CEO Jonathan Nielsen published an apology and then, according to published reports, went a step further [Adam Ruggiero/Gearjunkie, Jason Blevins/Colorado Sun]
Tort lawsuit named wrong state, described living complainant as dead
Details, always with the picky details: in an opinion written by Justice Jay Mitchell, the Supreme Court of Alabama has thrown out as untimely a tort suit filed against Janssen Biotech Inc. claiming injury from the side effects of a medication. [Charmaine Little, Chamber-backed Legal Newsline] Timeliness wasn’t the only problem with the suit, drafted by the complainant’s attorney wife:
Mitchell noted in the ruling that it was “apparent” from a review of the original complaint that it was copied from another complaint.
“The complaint included numerous factual and legal errors, including an assertion that Tim was dead even though he is alive and claims invoking the laws of Indiana even though that state has no apparent connection to this litigation,” Mitchell wrote.
Constitutional law roundup
- “North Dakota legislators attempt to retroactively change the terms of contracts between manufacturers and dealers of farm equipment. Well, crack open your Con Law casebook because that violates the Contract Clause of Article I, Section 10. So holds the Eighth Circuit (over a dissent), treating the reader to a history of the clause from 1789 to the New Deal and beyond.” [IJ “Short Circuit” on Association of Equipment Manufacturers v. Burgum]
- Subsidies conditioned on, and meant to promote, an official orthodoxy: California moves to approve $50 million state fund for film and TV production earmarked for producers who “share” state’s “values” on reproductive rights [Eugene Volokh]
- Not your usual combination: Cato Institute, Brennan Center, and Sierra Club join in amicus brief to challenge President’s powers under National Emergencies Act to divert funds appropriated for other purposes to construction of U.S.-Mexico wall [David Post]
- Judge Diarmuid O’Scannlain on textualism and the future of the federal judiciary [Federalist Society]
- “No person shall be disturbed in his private affairs, or his home invaded, without authority of law,” declares the constitution of Arizona. While judges in Washington have developed a distinctive jurisprudence based on the similar clause in their state’s constitution, the Arizona judiciary as yet has not [Timothy Sandefur]
- Does the Commerce Clause really empower the U.S. Congress to criminalize acts of animal cruelty “affecting” interstate commerce, whatever that means? [Jacob Sullum]
Arresting bystanders for taking photographs of emergencies
A reminder that if police try to invoke HIPAA, the health privacy law, to keep you from photographing a medical or police incident in a public place, they are almost sure to be talking through their hat. That isn’t how HIPAA works [Tim Cushing, Techdirt, Dallas transit case; earlier on Denver case]