Proposals for just a little bit of Court-packing — just a balancing! — are no more stable than the more blatant kind. “There is no magic bullet that will enable either Democrats or Republicans [to] stealthily pack the Supreme Court without risking retaliation in kind.” [Ilya Somin on the Ian Ayres / John Fabian Witt plan; related, Howard Wasserman]
Obergefell reliance interests
My Wall Street Journal opinion piece from last month on why same-sex marriage isn’t going away under a conservative Supreme Court is now online paywall-free at Cato.
From Tumblr, on Willy Wonka
From NatlSecCnslrs on Twitter, who got it from Tumblr:
I am dead. I have died. pic.twitter.com/FEA8PAsPrB
— Natl Sec Counselors (@NatlSecCnslrs) July 25, 2018
Banking and finance roundup
- “State-run retirement plans are the wrong way to protect the poor” [Andrew G. Biggs, AEI]
- Fifth Circuit panel: Federal Housing Finance Agency (FHFA) “is unconstitutionally structured and violates the separation of powers” [Jonathan Adler] Unconstitutional structure afflicts Consumer Finance Protection Bureau too [Ilya Shapiro on Cato amicus brief in Fifth Circuit case of CFPB v. All American Check Cashing, earlier here, etc.]
- Study: financial advisers in Canada who are not subject to fiduciary duty have personal investments similar to their clients [Peter Van Doren]
- Regulation can have a lulling effect. Might it even breed financial illiteracy? [Diego Zuluaga, Cato]
- “As I predicted, the ratchet effect is going to save Dodd-Frank. Sigh.” [Bainbridge]
- “SEC proposes to limit whistleblower awards” [Francine McKenna, MarketWatch]
“Plea Bargaining: Good Policy or Good Riddance?”
Cato held a conference on plea bargaining last month:
Today, more than 95 percent of criminal convictions in the United States are obtained through plea bargains. As the Supreme Court observed in 2012, “criminal justice today is for the most part a system of pleas, not a system of trials.” Compared with jury trials, plea bargains are efficient and inexpensive, and they free up resources that might otherwise be devoted to securing convictions in cases where the defendant’s guilt is not seriously in doubt.
But plea bargaining has a dark side as well. Given the imbalance of resources between prosecutors and most defendants, together with the array of tools that prosecutors can bring to bear in any given case, such as mandatory minimum sentences, charge-stacking, and witness inducements, it is fair to ask how many guilty pleas are truly voluntary. A growing body of evidence suggests that false confessions may not be nearly as rare as we would hope, and indeed the specter of coercion casts a shadow over the entire plea-bargaining process.
The panel featured the Hon. Joseph Goodwin, a federal judge in West Virginia who has announced that he would no longer accept plea bargains except when there are truly extenuating, case-specific circumstances; New York City criminal defense attorney and popular law blogger Scott Greenfield, and University of Illinois law Prof. Suja Thomas, with Cato’s Clark Neily moderating. You can watch or download it here.
“Wheelchair-bound man who sues inaccessible shops can walk”
Not the first instance of this particular surprise on the part of a serial ADA complainant, and no doubt not the last instance either. [Julia Marsh, Kevin Sheehan and Ruth Brown, New York Post, more, followup editorial]
A libertarian case for Judge Brett Kavanaugh
My colleague Ilya Shapiro says that even with a few questions open about his approach to the Fourth Amendment, national security, and mass data collection, Brett Kavanaugh overall is very much the sort of nominee libertarians should back. More from Randy Barnett, and earlier here.
Literally (for once) weaponizing the First Amendment
The Internet interprets censorship as damage and routes around it: even after opponents manage to talk a judge into issuing a prior restraint order on speech, gun blueprints are still online in widely available libraries and will remain so. And making a gun at home in the U.S. remains legal, as it has been all along, though subject to a recent law on those undetectable by scanner technology [Brian Doherty, David French/NRO, Declan McCullagh, Josh Blackman thread, Erica GoldbergCodeIsFreeSpeech.com] And I only read Playboy for the articles about guns written by colleague Matt Larosiere (“Fully 3-D printed guns are still ineffective, probably less effective than firearms you can craft from hardware store scraps.”) Earlier on Defense Distributed “arms export” controversy here and here, and more from David Kopel and Cyrus Farivar on the lawsuit settlement. More: Trevor Burrus (“Judge Issues Temporary Restraining Order Against Blueprints for Homemade Muskets”).
Labor and employment roundup
- Lancaster, Calif. Mayor R. Rex Parris proposes that city ban employers from requiring male employees to wear neckties [Laura Newberry, L.A. Times]
- Reasons to settle employment-law claims: “It’s Not the Damages, It’s the Attorneys’ Fees” [Daniel Schwartz]
- “Court Ruling Casts Constitutional Doubt on State and City Salary-Inquiry Bans” [Marc Dib, WLF; related here, here]
- I’m quoted hailing Supreme Court ruling on workplace arbitration [Jeff John Roberts, Fortune]
- Federal labor regulators versus local food truck operators [Ira Stoll]
- “What is happening to French labor law?” [Tristan Bird, On Labor]
No duty for gas station to paint pavement grooves
“Woman catches her shoe in groove in pavement at Tewksbury, Mass. gas station; she falls, is injured. Woman: The station had a duty to warn me of the danger, perhaps by painting the grooves (which are mandated by state law to contain spills) brightly. First Circuit: There is no such duty. But here’s a Judge Selya vocab quiz for your trouble: pellucid, behoof, animadversions, and rescript.” [John Kenneth Ross, Short Circuit on Potvin v. Speedway LLC]