“Are the Lockdown Orders Constitutional?”

I’ve got a legal explainer up at ArcDigital, my first appearance there. My answer is “Mostly, yes.” You can read it here. From its conclusion:

After the immediate threat to life has passed, both we and the courts must be vigilant that constitutional rights now bent spring back upright, and that governments promptly and fully relinquish whatever emergency powers they have flexed. But we also need to face the facts about this country’s actual constitutional law, which from the Revolution to the present day has been united in treating legitimate government power as at its zenith during a “hot” emergency of deadly contagion.

It can be tempting to spin tales of constitutional law as we might like it to have been, and pass that off as the actual state of the law. We who believe in law as law should especially resist that temptation.

P.S. More sources on quarantine and related public health powers: Mark Miller, Pacific Legal Foundation; Al Tompkins, Poynter; Rebecca Katz et al., Journal of Public Health Management Practice 2018.

Filed under: constitutional law, COVID-19 virus, WO writings

More on whether shutdown orders are a taking; WSJ federalism reprint ungated

A month ago I posted about the interesting legal and policy question of whether business closures aimed at preventing spread of the COVID-19 virus should be seen as a taking for which fair compensation is due. I’ve got another round on that subject up now at Cato at Liberty.

In addition, the piece I wrote a month ago for the Wall Street Journal on federalism and the pandemic response is now out from behind that newspaper’s paywall in a Cato reprint.

Filed under: COVID-19 virus, eminent domain, federalism, WO writings

Liability roundup

“McConnell Demands Liability Protections in Next Coronavirus Bill” [Steven T. Dennis, Billy House, and Laura Litvan, Bloomberg; U.S. Chamber issue list] “Businesses Fear Lawsuits from Sick Employees, Patrons After Reopening” [Erik Larson, Edvard Pettersson and Christopher Yasiejko, Bloomberg] “Frivolous Litigators Bite the Hands That Care for Them” [Veronique de Rugy] “States pass lawsuit-protection measures as Pennsylvania resists” [Nicholas Malfitano, Legal Newsline]
Retroactive workers’ comp coverage for the virus by state decree? Illinois commission beats hasty retreat after gesture in that direction [Susanne Sclafane (presumption of compensability) and Stephanie Jones/Insurance Journal, Angela Childers/Business Insurance (vote to pull back from idea was unanimous)
White House executive order declaring emergency federal authority over meatpacking industry might have been welcomed by companies hoping for override of liability over worker illness [Liz Crampton and Gabby Orr, Politico, NBC News]
“The Case That Could Change Product Liability” [Daniel Fisher, Chief Executive on Ford v. Bandemer at the U.S. Supreme Court] More personal jurisdiction cases bubbling up from Seventh, D.C. Circuits [Jim Beck] “Constitutional Limitations on Product Liability?” [Stephen McConnell]
“Incorporating Catholicism: Dioceses are changing their secular legal forms to conform to canon law and insulate assets” [Stephen Bainbridge]
“Taco Bell wins Chalupa price case after claiming plaintiffs ignored menu” [John O’Brien, Legal Newsline, earlier]

Filed under: Catholic Church, COVID-19 virus, Illinois, product liability, workers' compensation

Bad ideas in our time: emergency merger moratorium

I’m quoted in Jack Arnholz’s report for ABC News on some of the problems with a very bad new scheme from Sen. Elizabeth Warren and Rep. Alexandria Ocasio-Cortez for a ban on corporate mergers . Excerpt:

“A bill like this would harm the economy in general. It would in particular threaten workers, consumers, investors and those affected by the coronavirus,” Walter Olson, a senior fellow at the Cato Institute, told ABC News.

“In crisis conditions especially, mergers are a way for companies with a relevant strength, such as a strong balance sheet or superior distribution channels, to combine with others that may be weaker yet have vital assets such as promising research, a loyal consumer base, or a superior product line. If mergers are blocked, some weaker, yet valuable companies, will flounder, discontinue research, furlough workers or even enter bankruptcy,” he added.

Despite its prominent sponsors, the proposal is unlikely to pass a Republican-controlled Senate and White House. Olson said that the possibility the bill becomes law is unlikely.

“This bill is an exercise in political symbolism, not the way an advanced democratic country should approach antitrust policy. It’s the equivalent of a Trump tweet — it lets off steam, everyone can take sides, and it allows momentary domination of a not especially meaningful conversation until everyone moves on to the next,” Olson said.

Mergers are also a main means by which successful tech startups hit the mainstream and win wide distribution for their products; absent the prospect of being able to exit this way, fewer funders and principals will be interested in going the startup route.

Filed under: antitrust, corporate governance, Elizabeth Warren, small business

Targets of fake subpoenas can sue Louisiana D.A., underlings

“A federal appellate court … ruled that a Louisiana district attorney and several prosecutors in his office violated the law by using fake ‘subpoenas’ to pressure the victims and witnesses of crimes to meet with them, finding that the attorneys were not entitled to “absolute immunity” from legal liability.” [Jerry Lambe, Law and Crime; earlier (“Even though the subpoenas were unlawful, he really did jail people who didn’t obey them.”)]

Filed under: Louisiana, prosecutorial abuse, subpoenas

COVID-19 pandemic roundup

As country eyes path to reopening, restart of non-COVID-19 medical care, including postponed surgeries, is desperately needed [Hans Bader, James Bacon (Virginia governor’s “statewide ban on elective surgery is a sledgehammer which may be appropriate for the hardest-hit parts of the state but is wildly inappropriate for others.”]
Michigan’s Gov. Whitmer rolls back some of the more arbitrary and controversial restrictions in her stay-at-home order [Billy Binion, Reason]
Tech firms among the first to respond when the virus appeared here: “So, the approximate order of events was: private sector response, then local government response in the west, then response in the east and by the Federal government.” [Arnold Kling]
We previously linked our Cato online panel on the pandemic and the Constitution; now our friends at Competitive Enterprise Institute have written a very nice review and summary of it [Richard Morrison, CEI]
Especially given its conduct during this outbreak, expenditures on the World Health Organization deserve top-to-bottom reevaluation [Lyman Stone, The Dispatch; Anish Koka]
“COVID-19 Exposes the Shallowness of Our Privacy Theories” [Jane Bambauer, Truth on the Market]

Filed under: COVID-19 virus, hospitals, Michigan, privacy

Small business could use some advance funding. Too bad gift cards are a legal mess.

Gift cards make a nice way to support your favorite business during the pandemic shutdown. They also make a compliance trap that can mire that same business in years of expensive hassle. My new piece at Reason explores the many legal exposures, from ADA lawsuits over lack of Braille translation to class actions over fine print and even exposure to money-laundering liability.

One durable problem, in some states at least, is state unclaimed-property law. Thinking of tossing a gift card into a drawer and never using it, as a kind of tip to an enterprise that’s brought you happiness over the years? Depending on what state you live in, you might actually be tipping your state tax authorities, and laying only future legal hassle on the merchant you wanted to help. I’ve covered state unclaimed-property law both here and at Cato. (More on its intersection with gift cards: Michael Waters, The Atlantic last fall.)

Delaware’s ambitious claims over unclaimed property have resulted in pitched courtroom battles for years, only a portion of which has been over gift cards specifically. Last year a jury awarded the state more than $7 million in a triple-damage unused gift card proceeding against just one national retailer, Overstock.com.

The Blue Hen State had to rewrite its unclaimed property law after a 2016 ruling by a federal court found its existing law a violation of due process and concluded that Delaware authorities had “engaged in a game of ‘gotcha’ that shocks the conscience.” The replacement law, which explicitly lays out a claim to gift cards rather than relying on older and more uncertain language, doesn’t have a long track record yet.

Filed under: COVID-19 virus, Delaware, property law, small business, taxes, WO writings

“Russian roulette” in nursing home placements

State authorities in New York, New Jersey, and California direct nursing homes to take in COVID-19 patients, even if they’ve otherwise managed to keep the virus out. Connecticut and Massachusetts instead designate some facilities as being for patients with the novel virus. At least one group of states, it would seem, is making a mistake [Kim Barker and Amy Julia Harris, New York Times; Bernadette Hogan and Bruce Golding, New York Post]

Filed under: Andrew Cuomo, COVID-19 virus, nursing homes

Schools roundup

Presumptive ban on homeschooling? A bad idea for so many reasons, especially when the presumption should be of liberty [Erin O’Donnell, Harvard Magazine; Kerry McDonald, Cato] Harvard Law School is hosting a June conference on homeschooling and the law dominated by advocates of placing new legal restrictions on the practice [Corey DeAngelis] A recent HLS grad who was homeschooled weighs in [Alex J. Harris]
Equity versus achievement: U.S. Department of Education urges schools working remotely to teach new content rather than just review the old [Andrew Ujifusa, Education Week, earlier on controversy; Hans Bader on Arlington, Va. schools]
“A politically progressive caucus within the [teacher’s] union is calling on its leaders to push for ‘less academic work’ during the coming months, and to lobby for a moratorium on student grades and teacher evaluations.” [Dana Goldstein and Eliza Shapiro, New York Times] San Francisco school board to vote on plan that would give students in grades 6-12 a grade of A in all subjects [KGO; Alison Collins and commenters; related on mass social promotion, Andy Smarick, The Atlantic]
Those copyright license issues that keep church congregations from incorporating music into their online services also complicate the lives of educators trying to carry out online instruction [Mike Masnick, TechDirt]
Before, or at least separate from, the crisis: “Should Students Be Excused from School for Political Activism?” [Jim Geraghty, National Review] “Public Education as Public Indoctrination” [Ilya Somin] Group that wants regulatory stringency of federal school lunch program to be decided in courtroom rather than at ballot box ironically styles itself “Democracy Forward.” [Lola Fadulu, New York Times]
Split Sixth Circuit panel rules that Due Process Clause of the Fourteenth Amendment protects a fundamental right to a “basic minimum education,” a holding that seems unlikely to survive Supreme Court review given such precedents as Rodriguez, Glucksberg, and DeShaney [Jonathan Adler, Josh Blackman]

Filed under: copyright, COVID-19 virus, disability & schools, school lunch, schools, Sixth Circuit

“The Lawyer Whose Clients Didn’t Exist”

“A well-known attorney helped land a $2 billion settlement for Gulf Coast seafood-industry workers. But who was he really representing?” The curious tale of Texas attorney Mikal Watts and the BP spill litigation [Francesca Mari, The Atlantic]

Filed under: BP Transocean oil spill, Mikal Watts