Antonin Scalia – Overlawyered

Supreme Court roundup

Walter Olson — Mon, 07 May 2018 10:03:39 +0000

After oral argument, case challenging agencies’ use of in-house administrative law judges (Lucia v. SEC) remains hard to predict [Ilya Shapiro, Cato; earlier]
In dissent from cert denial: “Justices Thomas and Gorsuch Argue for Rejecting Deference to Agency Interpretation of Agency Regulations” [Eugene Volokh, Ilya Shapiro and Matthew Larosiere on Garco Construction, Inc. v. Speer]
High court still gun shy [Trevor Burrus and Matthew Larosiere on refusal to review Maryland felon gun possession ban] Ninth Circuit ruling on zoning exclusion of firearms business deserves cert review [Shapiro and Larosiere on Teixeira v. Alameda County] Court denies cert in widely watched Defense Distributed First Amendment case on dissemination of plans for 3-D printed weapon [Smith Pachter, earlier] A historical look: “The American Indian foundation of American gun culture” [David Kopel]
“The Supreme Court’s grant of a Contracts Clause case for the first time in a quarter-century reminds me that a certain John G. Roberts wrote a student note on the Clause back in 1978 (available at 92 Harv. L. Rev. 86).” [Aditya Bamzai on Twitter]
University of Chicago Law Review special issue on Justice Scalia [Will Baude; other recent Scalia scholarship includes articles on his influence in implied rights of action and standing]
Case on cert petition before SCOTUS could clarify law on distribution of property after church schisms [Samuel Bray on Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church]

Tags: administrative law, Antonin Scalia, churches, constitutional law, contracts, guns, Indian tribes, Supreme Court

Supreme Court roundup is a post from Overlawyered - Chronicling the high cost of our legal system

October 4 roundup

Walter Olson — Wed, 04 Oct 2017 10:02:49 +0000

D.C. debates requiring employers that offer free employee parking to offer all other employees equivalent cash value [David Boaz, Cato]
ADA frequent fliers in Gotham: “These handicapped New Yorkers are behind hundreds of lawsuits” [Melkorka Licea, New York Post]
When should judges keep celebrity divorce records private? [Naomi Schaefer Riley, Acculturated, quotes me]
“The Libertarian Lawyer Who Battled Jim Crow” [Damon Root on Moorfield Storey and Buchanan v. Warley]
Antonin Scalia and legal education [Adam White, National Affairs]
“Note to Texas, Florida: Insurance Fights Over Sandy Rage On” [David B. Caruso and Jennifer Peltz, Insurance Journal]

Tags: ADA filing mills, Antonin Scalia, celebrities, disasters, divorce, law schools, Washington D.C.

October 4 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court and constitutional law roundup

Walter Olson — Mon, 03 Apr 2017 04:05:42 +0000

All-Cato edition:

SEC’s use of in-house judges violates constitutional principle of independent judiciary [Thaya Brook Knight, Ilya Shapiro, Devin Watkins, and Ari Blask]
Have you checked out the annual Cato Supreme Court Review on the 2015-16 term, available both in-print and free online? Among the contents: Roger Pilon on Scalia’s originalism; Andrew Trask on the class action case of Tyson Foods v. Bouaphakeo (and more); Steven Calabresi on originalism and liberty; Steven Eagle on wetlands law; Harvey Silverglate and Emma Quinn-Judge on McDonnell and honest-services-fraud prosecutions of state and local officials; and Glenn Reynolds looking ahead to this (2016-17) term;
Federal agency can’t unilaterally rewrite unambiguous statutory provision [Ilya Shapiro and Frank Garrison on Cato certiorari amicus in FLSA tip-pooling case of National Restaurant Association v. Department of Labor]
“You Shouldn’t Be Criminally Liable If You Don’t Have a Guilty Mind” [Ilya Shapiro on Cato certiorari brief in mens rea case of Farha v. U.S.; related on mens rea, Orrin Hatch, Time]
Court must resolve constitutionality of CFPB structure, especially now that DoJ itself agrees it’s unconstitutional [Thaya Brook Knight and Ilya Shapiro, more]
In ineffective-assistance-of-counsel case that might hinge on whether drug defendant was bound to be convicted anyway, Court should not sidestep the historically significant phenomenon of jury nullification [Cato podcast with Tim Lynch on Lee v. U.S.; more on case from Amy Howe at SCOTUSBlog on oral argument and from Lynch at The Hill]

Tags: Antonin Scalia, Cato Institute, CFPB, constitutional law, jury nullification, mens rea, Securities and Exchange Commission, Supreme Court

Supreme Court and constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Stupid but constitutional

Walter Olson — Fri, 10 Feb 2017 13:03:11 +0000

David Lat, in a brief assemblage of Antonin Scalia anecdotes, gives this one:

“…A lot of stuff that’s stupid is not unconstitutional.”

“I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL … [Laughs.] And then somebody sent me one.”

And now the Twitter user has posted a relevant picture [link now broken].

P.S., a Twitter exchange shedding more light:

@Chazperin @walterolson @overlawyered My sister took the picture, but she's not on Twitter, so I'll take the credit.

— Christopher J Scalia (@cjscalia) February 11, 2017

Tags: Antonin Scalia, constitutional law

Stupid but constitutional is a post from Overlawyered - Chronicling the high cost of our legal system

Crime and punishment roundup

Walter Olson — Tue, 07 Feb 2017 11:33:23 +0000

December Cato conference on criminal justice (Ken White, Harvey Silverglate, Hon. Shira Scheindlin, Kevin Ring, too many others to list) now online (earlier);
Justice Scalia and criminal law: Federalist Society National Lawyers Convention panel with Rachel Barkow, Stephanos Bibas, Orin Kerr, Paul Larkin, Jr., and Hon. Stephen Markman (Michigan SC), moderated by Hon. David Stras (Minnesota SC).
Nominee Neil Gorsuch and the criminal law [Andrew Fleischman/Fault Lines, William Patrick/Florida Watchdog, Kevin Ring, Eugene Volokh]
Are you sure you want to prosecute drug overdoses as murders? [Scott Greenfield]
“Three anonymous allegations of criminal activity within the past year” can result in eviction threat under NYC’s no-fault nuisance eviction law [Allie Howell, Economics 21]
Think lawmaking was more rational in the old days? How panic in Congress brought us the 1986 drug law [Radley Balko]
If your mission is truth-finding or criminal justice, “Start By Believing” is wrong approach [Eugene Volokh on campaign by Arizona Governor’s Commission to Prevent Violence Against Women] Two ethicists propose demoting standard of proof in U.K. rape prosecutions from beyond a reasonable doubt to preponderance of the evidence [Aeon via Community of the Wrongly Accused, which takes a different view]

Tags: Antonin Scalia, crime and punishment, illegal drugs, Neil Gorsuch, sexual assault

Crime and punishment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court roundup

Walter Olson — Tue, 24 Jan 2017 11:29:03 +0000

I’ve written about Antonin Scalia’s role in the late 1970s and early 1980s as editor of Regulation magazine, and more references to his work there came up at several panels during the recent Federalist Society lawyers convention, all worth watching for their own sake: antitrust (with Judges Doug Ginsburg, Frank Easterbrook (mentioning Regulation at 16:00), et al.), administrative law (Eugene Scalia, same, at 4:25+), and statutory interpretation (Paul Clement, same, at 36:15); and see earlier on my question at the telecommunications panel;
“Can States Forcibly Unionize Small Businesses?” [Ilya Shapiro and Frank Garrison on Cato certiorari petition in Jarvis v. Cuomo, building on Harris v. Quinn line of cases]
High court will hear new cases on limits of personal jurisdiction [Bristol-Myers Squibb v. Superior Court, Tyrrell v. BNSF Railway Company, earlier on BNSF, and more from Michelle Stilwell, WLF on that case]
SCOTUS hears oral argument in “Slants” derogatory trademark First Amendment case [Mark McDaniel and Meredith Bragg/Reason, Jacob Sullum, earlier]
Court accepts case on patent venue that could threaten preferred forum-shopping supremacy of Eastern District of Texas [TC Heartland v. Kraft Foods Group, brief by 56 law and economics professors]
Now taking senior status, Judge Diarmuid O’Scannlain has ranked among MVPs of federal bench in part through his skill at flagging error by his Ninth Circuit for high court review [Ethan Davis and Daniel Sullivan, National Review]

Tags: Antonin Scalia, Eastern District of Texas, forum shopping, Ninth Circuit, patent litigation, Supreme Court

Supreme Court roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court roundup

Walter Olson — Thu, 29 Dec 2016 11:31:29 +0000

How feckless for an editorial board to undermine institutional legitimacy of a key check on executive power, the Supreme Court, by spreading notion that some of its seats are “stolen” [New York Times]
Eastern District of Tumbleweeds? High court asked to curtail forum shopping in patent suits [Washington Legal Foundation on TC Heartland LLC v. Kraft Foods Group Brands LLC, more on E.D. Tex.]
Federal charges result in plea deal. State then charges defendant over same conduct. Ought to call it double jeopardy, even if that means overturning misguided “dual sovereignty” doctrine [Ilya Shapiro and Thomas Berry on cert petition in Walker v. Texas]
“Justices Struggle With Cheerleader Uniform Case That Holds Big Implications For Fashion” [Daniel Fisher on Star Athletica v. Varsity Brands]
More Federalist panels on Justice Scalia’s influence: showcase panel on his constitutional influence; federalism and separation of powers with Roger Pilon et al.; the impact of his writing style; criminal law and the Fourth Amendment; Heller, guns, and the Second Amendment;
Appointments Clause makes one of few checks on unaccountable-by-design CFPB, Court should enforce it seriously [Ilya Shapiro on cert petition in Gordon v. CFPB]

Tags: Antonin Scalia, CFPB, Eastern District of Texas, forum shopping, guns, New York Times, patent litigation, Supreme Court

Supreme Court roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Free speech roundup

Walter Olson — Thu, 22 Dec 2016 11:05:32 +0000

Federalist Society National Lawyers Convention panel discussion on Justice Scalia, originalism, and the First Amendment with Profs. Nadine Strossen, David Forte, Michael McConnell, and David Rabban, moderated by Judge Carlos Bea;
Sad day for liberal Netherlands tradition of free political opinion [CNN on conviction of Geert Wilders, leader of prominent political party] More Euro speech-throttling: France mulls ban on anti-abortion websites (only) that “mislead” or “manipulate” [Guardian]
Judge grants motions to dismiss, and to strike as SLAPP, the suit in California demanding “R” ratings on films with tobacco use [Greg Herbers, Washington Legal Foundation, earlier here and here, related here and here]
“Congress’s rotten idea for fighting anti-Semitism” [Jacob Sullum, New York Post on S. 10, the Anti-Semitism Awareness Act of 2016]
“Lawyer seeks to identify author of three-word ‘horrible’ Google review” [Debra Cassens Weiss, ABA Journal; Eugene Volokh]
Section 230 vindicated: “Judge Tosses Charges Against Backpage Execs, Tells Kamala Harris To Take It Up With Congress” [Tim Cushing/TechDirt, Elizabeth Nolan Brown/Reason]
Breaking Thursday morning: court allows defamation claims by climate scientist Michael Mann to go forward against several defendants including Rand Simberg of the Competitive Enterprise Institute and columnist Mark Steyn, but throws out claim against National Review editor Rich Lowry over editorial [BuzzFeed, Jonathan Adler, CEI statement quoting CEI’s Sam Kazman and attorney Andrew Grossman]

Tags: Antonin Scalia, free speech, Netherlands, online speech

Free speech roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Environment roundup

Walter Olson — Fri, 16 Dec 2016 11:23:21 +0000

YIMBY (Yes In My Back Yard) movement in San Francisco, other cities says build more housing to tame housing costs [Alex Tabarrok] Zoning laws sometimes respond to tiny-house movement, and sometimes don’t [Curbed]
Federalist Society convention panel on Justice Scalia’s property rights jurisprudence with John Echeverria, James W. Ely, Jr., Roderick Hills, Jr., Adam Laxalt, Ilya Somin, Judge Allison Eid moderating;
Your regulated residence: “Santa Monica Moves to Make All New Homes Net-Zero Energy” [Mental Floss]
“King County, Washington, Caught Digging Through Residents’ Trash” [Christian Britschgi/Reason; see also on Seattle composting regulations]
“EPA to big cities: Stop killing rats with dry ice” [Aamer Madhani, USA Today]
“Policing for profit in private environmental enforcement” [Jonathan Wood; Clean Water Act citizen suits]

Tags: Antonin Scalia, Environmental Protection Agency, land use and zoning, law enforcement for profit, Los Angeles, pesticides, property law, San Francisco, Seattle

Environment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“Justice Scalia’s Telecommunications Legacy”

Walter Olson — Sat, 03 Dec 2016 19:05:22 +0000

Antonin Scalia’s work on telecommunications deregulation before he became a judge is not one of the more widely known parts of his career, but as director of a White House office on telecom policy in the 1970s he played a key role in promoting removal of old legal barriers to competition and innovation, which in turn laid the groundwork for the emergence of modern online data, voice, and entertainment delivery. This panel discussion at the Federalist Society Lawyers National Convention features Henry Goldberg, Richard Wiley, and Prof. Richard Epstein, with Texas Justice Don Willett moderating. At the very end of the Q&A period I ask a question from the audience, resulting in an exchange with Richard Epstein in which we reminisce about Scalia’s time as editor of Regulation magazine.

Tags: Antonin Scalia, live in person, telecommunications

“Justice Scalia’s Telecommunications Legacy” is a post from Overlawyered - Chronicling the high cost of our legal system