Constitutional law roundup

  • Case reporting, contact tracing, location monitoring: “Disease Surveillance and the Fourth Amendment” [Alan Z. Rozenshtein, Lawfare]
  • Unanimous Supreme Court spanks Ninth Circuit for its attempt to use immigration-law case to bring up (admittedly interesting) issue that neither party had presented and was not necessary to resolve the dispute [Ilya Shapiro and Michael Collins on U.S. v. Sineneng-Smith: “Neither Party Is Right, But the Ninth Circuit Is Wrong”]
  • Judge Thomas Hardiman of the Third Circuit on the history of judicial independence [Cato audio]
  • “While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins’s account. This article argues that Tompkins and his witnesses were not telling the truth.” [Brian L. Frye, SSRN 2018]
  • Can procedurally valid constitutional amendments themselves be unconstitutional? [Mike Rappaport and followup post, both 2018]
  • And now for something completely different: “Ayn Rand, Gary Lawson, and the Supreme Court” [Balkinization symposium last summer on Ken Kersch book Conservatives and the Constitution, more; unrelated but also about Lawson]

High court challenge to mandatory bar dues, cont’d

“A case awaiting acceptance by the Supreme Court challenges required fees paid by attorneys to State Bar of Wisconsin. Much of that money then goes to fund extensive lobbying. Trevor Burrus and Andrew Grossman comment.” [Cato Daily Podcast with Caleb Brown on Jarchow v. State Bar of Wisconsin, distributed for Supreme Court conference of May 15; earlier]

States ordered nursing homes to take COVID-19 patients, cont’d

“States ordered nursing homes to take COVID-19 residents. Thousands died. How it happened.” We previously linked to earlier reporting on this remarkable set of decisions, with a focus on New York and New Jersey, but this report adds much detail as well as updating the ghastly toll. “Strikingly, Italian officials issued similar orders for nursing homes to admit coronavirus patients on March 8, a move under investigation by authorities for contributing to potentially preventable deaths, according to the Associated Press.” [David Robinson, Stacey Barchenger and Kelly Powers, USA Today Network, and Jo Ciavaglia, Bucks County Courier Times (Pennsylvania)]

More: Jim Geraghty rounds up many states’ problematic policies.

Law enforcement for profit roundup

  • Kentucky: “The day before the deal was offered, prosecutors also indicted Card’s wife, mother and father. If Card gave up the cash, the written plea offer said, the Commonwealth’s Attorney’s Office would drop their charges, too.” [Jacob Ryan, WFPL] Same state, different case: “Conviction Or Not, Seized Cash Is ‘Cost of Doing Business’ In Louisville” [Jacob Ryan, Kentucky Center for Investigative Reporting]
  • Judge in New York: “Suffolk County may not charge $80 to resolve a $50 red light camera ticket.” [The Newspaper]
  • “Civil Forfeiture Disenfranchises the Poor” [Cato Daily Podcast with South Carolina lawmaker Alan Clemmons and Caleb Brown] “Class-Action Lawsuit Challenges Detroit’s Asset Forfeiture Racket” [C.J. Ciaramella, Reason]
  • “Father and adult daughter sue feds over confiscated life savings” [Theresa Braine, New York Daily News]
  • “Free to Drive: States punish poverty by suspending millions of driver’s licenses for unpaid fines and fees” How about reserving license suspensions for instances of actual unsafety? [advocacy site with maps and more; related, Tachana Marc, Florida Policy Institute; New York state advocacy site]
  • “Missouri Cops Used Federal Loophole To Seize $2.6 Million From Drivers Who They Never Charged With Crimes” [Zuri Davis]

New York federal court shoots down Braille gift card suit

Hurray! Ruling in a suit against retailer Banana Republic, a New York federal judge has rejected a plaintiff’s claim that issuing gift cards without providing a version in Braille was a violation of the Americans with Disabilities Act. Among other theories, the judge ruled that a gift card was not a “place of public accommodation,” and that a law-firm client who had never asked for such a card in the first place could not complain of the lack of an individualized attempt to accommodate the request. The judge also noted as relevant the more general rule that product lines do not have to be made accessible — a bookstore, for example, is free not to deal in Braille editions of books. [Michael Steinberg and Minh Vu, Seyfarth Shaw/JD Supra]

While many other cases are still pending, the ruling could help in finally stopping a tide of abusive litigation I’ve been writing about in this space for a year or more, especially since the judge had stern words for the assembly-line mass-production of such suits for fees.

The lawsuits, which Judge Woods described as “copy-and-paste,” were riddled with mistakes such as listing the address of a Kohl’s store in Manhattan, where it has no outlets, and describing Banana Republic as a “food establishment.”

“Although it features the fruit in its name, Banana Republic does not sell bananas,” the judge wrote in his April 23 opinion.

“‘Our hope is this entire line of cases is shut down, and plaintiffs’ lawyers more generally think twice before blanketing everybody under the sun with meritless lawsuits,’ said Meredith Slawe, a partner with Akin Gump who defends companies against ADA suits.” [Daniel Fisher, Legal Newsline]

Medical roundup

Can’t lay your hands on a pulse oximeter? 1976 law, FDA regulation are among reasons

Because low blood oxygen may be an early symptom of serious COVID-19 disease, interest has quickly amounted among consumers and medical professionals in enabling wider access to the decades-old technology. Ordinarily inexpensive and widely available, the small finger-clasp devices are now back ordered on long delays in online commerce. And now for the regulatory rub: “The Apple Watch actually contains hardware to measure blood-oxygen level, but under current FDA regulation, the function is disabled.” And while the old finger-clasp technology is luckily grandfathered in, technologies updating the idea face an onerous path to market under the Medical Device Regulation Act of 1976, which mandates FDA review. “Samsung’s Galaxy phones possessed the capacity to read blood oxygen as well as pulse through its built-in Samsung Health app — until the most recent version, the S20, which suspended the function, likely due to regulatory and legal concerns.” [James Copland, City Journal]

Randy Barnett and Ilya Shapiro on the pandemic and the Constitution

One you won’t want to miss if you’re following the constitutional issues arising from the COVID-19 pandemic. From the Cato description:

Seven weeks into nationwide shutdowns, people are feeling restless. Have some governors and mayors gone too far, as a constitutional matter, in telling people to leave public parks, roping off “nonessential” goods in big-box stores, and other examples that have gotten national attention? What about prohibiting gatherings that exceed some maximum number of people but enforce social-distancing norms? Now that the debate has shifted to “opening up,” what legal considerations should state officials be taking into account? Can we be required to wear masks in public? For that matter, even if the president doesn’t have total authority to decide when to reopen, does the federal government have a role to play beyond pushing the Centers for Disease Control and Prevention and the Food and Drug Administration on the development of tests and vaccines? Should there be different treatment of people in or from hot spots such as New York City, either by other states or the federal government? Please join constitutional scholar Randy Barnett, in conversation with Ilya Shapiro, for an online forum to discuss these and other issues.

More on the Constitution and the coronavirus in this earlier Cato panel discussion, as well as here, here, here (religious liberty), here.

Land use and zoning roundup

  • California delay: “NIMBYs get to file until 90 days ‘after the current state of emergency ends.” In other words, no one can know when they are free to build so the law could put every CA construction project that hasn’t already past CEQA review into limbo.’ [Alex Tabarrok, earlier on CEQA] “San Francisco Bureaucrats Can Shoot Down Almost Any Housing Project They Want. This Ballot Initiative Would Change That.” [Christian Britschgi]
  • Local building-stopping regs have national economic implications: “If America’s three most productive cities relaxed their planning regulations to the same level as the median U.S. city, real per capita income [for *all* Americans] would rise by about 8.2%.” Conversely: “If you were to force America’s 11 largest cities to be no larger than Miami, real income per American would fall by 7.9%.” [Tyler Cowen]
  • In western U.S., value of implicit firefighting subsidy “can exceed 20% of a home’s value… and decreases surprisingly steeply with development density” [Patrick Baylis, Judson Boomhower, NBER]
  • Review of “Order Without Design” by Alain Bertaud [Scott Beyer]
  • Not new, but well worth a read: overlap between libertarian and Strong Towns ideas [Andrew Burleson, 2013]
  • “‘I asked the park representatives if there was any way we could negotiate on this, and they told me, “The time for talking is over. We’re taking this property.”‘” Bike path eminent domain [Steve Malanga, WSJ/Manhattan Institute]