Environmental protesters charged with trespassing and turning off valves at a Minnesota pipeline, as part of a coordinated “Shut It Down” direct action campaign, have proffered a “necessity defense.” But the necessity defense is a narrow one that has seldom prevailed in past civil disobedience prosecutions, and it shouldn’t prevail here. [Stephen Bainbridge]
- Federalist Society podcast with Wayne Crews and Devon Westhill on subregulatory guidance, agency memos, circulars, Dear Colleague letters, and other regulatory “dark matter”;
- Having announced end to practice of funneling litigation settlement cash to private advocacy groups, AG Sessions plans to investigate some actions of previous administration in this line [New York Post, earlier, related Nicholas Quinn Rosenkranz testimony on Obama bank settlements]
- Update: jury acquits 4 Boston Teamsters on extortion charges in intimidation of “Top Chef” show and guest host Padma Lakshmi [Nate Raymond/Reuters (“smash your pretty little face”), more, Daily Mail (language, epithets); earlier]
- “Hunted becomes the hunter: How Cloudflare is turning the tables on a patent troll” [Connie Loisos, Techcrunch]
- Here’s a pro se sovereign citizen complaint if you can stand to look [@associatesmind thread on this N.D. Calif. filing]
- IP license withheld: “Spain’s Bright Blue ‘Smurf Village’ Is Being Forced to De-Smurf” [Cara Giaimo, Atlas Obscura; Júzcar, Spain]
- Deadline passes for repeal of Obama-era regulations through the Congressional Review Act, at least those that were properly reported to Congress at the time [David Jordan and Nia Prater, Medill/Charlotte Observer, I’m quoted]
- “Removal of Trump’s Muslim Comments Raise Travel Ban Questions” [Cogan Schneier, National Law Journal, and thanks for quote]
- What happened to the ACLU? [Wendy Kaminer/Alan Dershowitz, WSJ]
- Canada’s Charter allows for override of judicial rulings, and 2015 Canadian Supreme Court ruling finding a constitutional right to strikes in essential public services would make a good occasion for it [Conrad Black, National Post, with a further discussion of the native residential schools issue]
- New Jersey legislature passes a bill, which Gov. Chris Christie then vetoes, banning couples both 17 year old from marrying each other even when both sets of parents or a judge approve [Daily Caller; CBS News report quotes no critic of the idea]
- Protesters from inauguration-trashing DisruptJ20 among those at home of FCC chairman: “Alt-left targets Ajit Pai” [Elizabeth Harrington, Washington Free Beacon]
- “SEAT Act: Top Senators Sponsoring Bill to Outlaw Low Cost Carriers, Raise Airfares” [Gary Leff, View from the Wing]
- “Trump’s Safe and Sane ‘Regulatory Reform’ Idea” [Cass Sunstein/Bloomberg, earlier Sunstein on Trump regulatory initiatives]
- Changing law and economics shape street protest [Tyler Cowen] Arizona’s bad idea on protestors involves racketeering charges, forfeiture, and more [Coyote]
- “Rights And Reality: Georgia Cop Jails Ex-Wife For Facebook Gripe” [Ken White, Popehat]
- “Opponents of same-sex marriage cynically…manufacture[d] a baseless controversy in the Texas Supreme Court” to attack City of Houston’s spousal benefits, but as the Hon. Jerry Smith of the Fifth Circuit had already stated in persuasive guidance, Obergefell “is the law of the land.” [Mark Pulliam, Law and Liberty; a second view from Josh Blackman]
- Idea making some headway: adapting use of class action and similar aggregate litigation procedures to administrative adjudication [Sergio Campos, Jotwell]
An Oregon jury has reached a verdict acquitting the occupiers of the Malheur wildlife refuge (earlier) of conspiracy charges. In seeking to explain this outcome, it may help to know about a detailed letter from a juror in the case, published in The Oregonian. Obviously, one juror’s view is not definitive in such a case.
I am indebted to reader J.B. for the following rough paraphrase of some themes and highlights of the juror’s letter:
* We didn’t intend to affirm or endorse the defendants’ views.
* We were certainly convinced that the defendants’ actions caused a lot of real-world disruption and damage.
* We don’t want to encourage other people to do stuff like that and regret the possibility that the acquittal might do that.
* The government had a complicated theory that, according to the law as the judge explained it to us, made the defendants’ subjective intentions more significant than the actual effects of their actions.
* We didn’t think the evidence about the defendants’ subjective intentions was strong enough to meet the legal standard for conviction under the government’s complicated theory as the judge explained the law to us.
* We’re frankly kind of puzzled as to why the government didn’t charge less complicated crimes like criminal trespass that might have been easier to get a conviction for.
All of which is not short enough to fit on a bumper sticker. The report by the Oregonian’s Maxine Bernstein, again, is here.
- Subpoena turnabout not fair play: Congressional Republicans investigating state AGs’ climate advocacy probe are lobbing subpoenas at private enviro groups that urged the anti-speech campaign. Knock it off, two wrongs don’t make right [Eli Lehrer and earlier] “You don’t need complicated models to figure out what happens when governments censor speech. The evidence on that question is solid.” [Steve Simpson]
- And speaking of fraud in policy advocacy (whatever that may mean) some varieties of it are plainly going to have no legal consequences whatsoever [Matt Welch channeling Virginia Postrel on California political class and high-speed rail]
- Michigan attorney general Bill Schuette says 40 anti-pipeline activists gathered and beat on the front door of his home for 30 minutes with his wife alone there [Detroit News]
- Pro-nuclear demonstrators blockade Greenpeace office in San Francisco, but wouldn’t the ultimate way to protest an odious environmental group be to respect the property rights of all concerned? [SFist]
- “It’s a shotgun approach”: injury lawyers find many defendants to blame after Flint public water fiasco [NPR via Renee Krake, Legal Ethics Forum]
- “District court voids Obama administration fracking regulations” [Jonathan Adler, Alden Abbott]
“Calling the Department of Labor’s new interpretation of its LMRDA Persuader Rule ‘defective to its core,’ the District Court for the Northern District of Texas issued a nationwide injunction” against the Final Rule published on March 24, 2016.” [Labor Relations Today, earlier] We summarized the regulations early on:
New Department of Labor regulations will require, on pain of serious criminal penalties, regular disclosures by lawyers, consultants, advisers, website developers, P.R. firms, pollsters and many others whose activities might persuade employees not to sign union cards. (Current regulations require disclosures only regarding consultants who actually meet with employees, as opposed to generating information that might reach them.)
The result would be not only to put we-know-where-you-live intimidation pressure on a much wider range of persons, and create many new tripwires for damaging liability, but also imperil attorney-client privilege, as with a provision demanding that attorneys disclose relationships with other clients.
My take on the Oregon standoff, this morning at The Federalist:
As my Cato Institute colleague Randal O’Toole skillfully explained, none of the protagonists in the Oregon standoff really deserve our admiration: the Hammond ranching family misbehaved, the federal government overcharged, and then the Bundy cranks arrived to spray kerosene on the glowing embers….
Unlawful protest occupations of public places and government buildings have long been a familiar part of American public life, and even those not involving arms sometimes have rather serious consequences for the health and well-being of innocent bystanders….
In the ordinary calculations of humanity, events like Waco and Ruby Ridge and the Philadelphia MOVE bombing represent a grotesque failure. Despite the spirit of the mob and the ever-present temptation to shoot first, most such situations in our country are resolved with legal consequences for the wrongdoers but not with loss of life and limb. We should be glad of that.
Read the whole thing here. I’ve covered the earlier Bundy Nevada standoff in this space, as well as the wider phenomenon I call folk law. For more coverage of occupations, blockades, and acts of physical intimidation that were resolved without bloodshed (and sometimes without later legal consequences to those who broke the law) see our tag on selective law non-enforcement, including this from 2011 about how some cheered when unionized Wisconsin police announced solidarity with protesters occupying the state capitol and refused orders to oust them.
More: Randal O’Toole has a new post up on the Hammonds’ actions and punishment.
Forget boycotts and protests: the executive director of the Fraternal Order of Police knew what he was doing when he warned Quentin Tarantino about a “surprise” at the hands of police who would wait until seizing the “right time and place” to “try to hurt” the filmmaker (who has lately criticized police shootings). Asked to clarify, Fraternal Order of Police executive director Jim Pasco said he wasn’t talking about physical violence, but didn’t rule out the other ways police can use the powers of their office to hurt people. I’ve got a post at Cato wondering where this sort of talk will lead. Meanwhile, Scott Shackford at Reason suspects that Pasco’s we-know-where-you-live hinting will end in an anticlimax, like bringing out an inflatable rat or something.
- Mess surrounding ex-Willkie partner could drag down giant credit card settlement after exposure of “burn this” emails to adverse lawyer [Alison Frankel, WSJ Moneybeat, New York Post]
- “The war against homeschooling is…not a fight to make sure children are safer/better educated” [Bethany Mandel, Acculturated, reacting to ProPublica/Slate piece raising alarms about how, e.g., 48 states don’t make parents go through background checks before being allowed to homeschool their kids] ProPublica also complains that parents with criminal records are allowed to homeschool; did they run this by the “Ban the Box” advocacy groups?
- President Jimmy Carter’s deregulatory record looks even better in retrospect [Cato podcast with Peter Van Doren, Caleb Brown]
- Ugly tactic: protesters rally at home of Judge Bunning in Kim Davis case [River City News, Kentucky; links to some other instances]
- “Obama celebrates Labor Day by making it more expensive to hire employees”; executive order requires federal contractors to provide paid sick leave [W$J, Sean Higgins/Washington Examiner (“offering paid leave is already the norm among the vast majority of federal contractors”)]
- “FBI, DEA and others will now have to get a warrant to use stingrays” [ArsTechnica]
- After the prosecutorial abuses: “John Doe Reform Bill Moves to Assembly” [Right Wisconsin]