Save the date for this Tues., Sept. 17 event including a roster of Cato regulars plus outside stars including Hon. Thomas Hardiman (3rd Circuit), Jan Crawford, Tom Goldstein, Paul Larkin Jr., and Brianne Gorod. I’ll be moderating an afternoon panel with Joshua Wright, Ilya Somin, and Andrew Grossman.
- Cato batted 12-4 in Supreme Court term that saw Kavanaugh agreeing nearly as often with Kagan as with Gorsuch [Ilya Shapiro; another roundup of the recently concluded term from Jonathan Adler]
- Not only is Alan Dershowitz wrong about Supreme Court review of impeachment, he’s wrong in a way that practically invites constitutional crisis [Keith Whittington]
- High court declines certiorari in challenge to Wisconsin butter grading law [Ilya Shapiro and Matt Larosiere, Mark Arnold, Husch Blackwell with update, earlier here and here]
- “The John Marshall Legacy: A Conversation with Richard Brookhiser” [Law and Liberty audio on new biography; Federalist Society panel with Brookhiser, Hon. Kyle Duncan, Hon. Kevin Newsom, and David Rifkin, moderated by Hon. William Pryor]
- I’m quoted on Gundy v. U.S., the improper-delegation case: “While the Court majority did not agree this time, the line-up suggests breakthrough imminent” [Nicole Russell, Washington Examiner] From some quarters on the Left, rage at the Supreme Court that got away [Ilya Shapiro at P.J. O’Rourke online magazine American Consequences]
- “Supreme Court Returns Constitutional Patent Case to Sender” [Gregory Dolin, Cato] on Return Mail v. U.S. Postal Service, earlier on dangers when federal agencies litigate before federal agency tribunals]
Last week the Supreme Court heard oral argument in Return Mail Inc. v. USPS, posing the patent law issue (to quote SCOTUSBlog) of “Whether the government is a ‘person’ who may petition to institute review proceedings under the Leahy-Smith America Invents Act.” On pp. 30-31 of the transcript, Justice Sonia Sotomayor referred favorably to the Cato Institute’s brief on the unique dangers that can arise when federal agencies litigate before tribunals operated by federal agencies.
And that wasn’t even the best part! This was, from her comments immediately afterward, on the failure of the law to specify whether the word “person” includes the government:
It does seem like the deck is stacked against a private citizen who is dragged into these proceedings. They’ve got an executive agency acting as judge with an executive director who can pick the judges, who can substitute judges, can reexamine what those judges say, and change the ruling, and you’ve got another government agency being the prosecutor at the same time.
In those situations, shouldn’t you have a clear and express rule?
“For Congress to impose a racialized and non-neutral regime on parents and children is not only unwise and unfair, but unconstitutional.” The Cato Institute has joined an amicus brief challenging the Indian Child Welfare Act (ICWA) in the Fifth Circuit case of Brackeen v. Bernhard. I’ve got more details in a new post at Cato at Liberty. Earlier on ICWA here.
When the Securities and Exchange Commission settles with defendants, it extracts gag orders forbidding them forever after from making or causing to be made “any public statement denying, directly or indirectly, any allegation in the complaint.” We noted that fact briefly in yesterday’s roundup adding the question: Is it constitutional for the government to do that?
It isn’t according to the Cato Institute, which wants to publish as a book a businessman’s personal memoir telling his side of the story about his legal battles with the SEC, but cannot do so given that he consented to a settlement containing the gag order. Cato, represented by the Institute for Justice, has now filed suit seeking a court determination that the government cannot use gag orders in settlements to silence those it accuses of wrongdoing. [Clark Neily, Cato at Liberty]
IJ’s press release about the case has fun with redaction:
- “Fractional reserve banking is at the root of business cycles” is no more persuasive than “fractional-reserve banking is inherently fraudulent” [George Selgin, Cato Alt-M] And Cato’s 36th annual monetary conference will be held in DC Nov. 15 with the theme: “Monetary Policy: Ten Years After the Crisis”;
- Some fear anticompetitive effects from patterns of common ownership of corporate equities among index funds and institutional investors. Not so fast [Thomas A. Lambert and Michael E. Sykuta, Regulation magazine]
- “10 Years Later, Assessing the Dangerous Legacy of TARP” [John Allison, Real Clear Markets]
- “Why Bitcoin Is Not an Environmental Catastrophe” [Diego Zuluaga, Cato]
- Vern McKinley reviews book by advocate of postal banking revival [Regulation; earlier here and here]
- “America has strong protection of private property rights, is bound by the rule of law, and pays its debts.” Well, for the most part [Gerald O’Driscoll, Jr., Cato Journal reviewing book on FDR gold episode]
On Monday the Cato Institute published its annual Cato Supreme Court Review for the 2017-18 Supreme Court term. Included is my 7,000-word article on the Supreme Court’s cases last term on partisan gerrymandering, Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). Several people have told me that I managed to make a dry and complicated subject understandable and even entertaining, which I take as the highest compliment.
The entire CSCR is online, and here are its contents. I assisted in the editing of the pieces by Joseph Bishop-Henchman on the Internet sales tax case South Dakota v. Wayfair, and by Jennifer Mascott on the government-structure case Lucia v. SEC.
FOREWORD AND INTRODUCTION
ANNUAL KENNETH B. SIMON LECTURE
The Administrative Threat to Civil Liberties by Philip Hamburger
IMMIGRATION AND NATIONAL SECURITY
The Travel Bans by Josh Blackman
The Ghost Ship of Gerrymandering Law by Walter Olson
THE CRIMINAL LAW
Katz Nipped and Katz Cradled: Carpenter and the Evolving Fourth Amendment by Trevor Burrus and James Knight
Class v. United States: Bargained Justice and a System of Efficiencies by Lucian E. Dervan
THE FIRST AMENDMENT AND THE CULTURE WARS
Masterpiece Cakeshop: A Romer for Religious Objectors? by Thomas C. Berg
NIFLA v. Becerra: A Seismic Decision Protecting Occupational Speech by Robert McNamara and Paul Sherman
FEDERALISM AND GOVERNMENT STRUCTURE
Internet Sales Taxes from 1789 to the Present Day: South Dakota v. Wayfair by Joseph Bishop-Henchman
“Officers” in the Supreme Court: Lucia v. SEC by Jennifer Mascott
Looking Ahead: October Term 2018 by Erin E. Murphy
More kids find homes when government doesn’t stand in the way: videos are now online from Thursday’s successful Cato adoption conference. They include a first panel on discrimination law and religious agencies:
A keynote address on international adoption by Harvard law Prof. Elizabeth Bartholet:
And a final panel on policy obstacles to adoption.
I figure in all three sessions, in the first as introducer/panelist and in the other two as moderator.
- Mark your calendar now for Cato’s Constitution Day September 17 with a star-packed program (plus me) [register; Facebook event]
- “Cato Did Remarkably Well at the Supreme Court” with an 11-3 record this term [Ilya Shapiro]
- Cakeshop crumbs: “The Scope of the Masterpiece Cakeshop Decision Will Be Determined by the Concurrences” [Erica Goldberg] “Does Masterpiece Cakeshop’s Easy Inference of Hostile Intent Overturn Employment Division v Smith?” [Rick Hills] Plus: thoughts from Prof. Michael McConnell [Volokh] and from Douglas Laycock and Thomas Berg as part of SCOTUSBlog’s symposium on the decision;
- South Dakota v. Wayfair: Court approves state sales tax collection from out-of-state vendors [Caron/TaxProf first and second link roundup, Trevor Burrus and Matthew Larosiere, earlier]
- Ohio v. Amex: divided Court lays out antitrust principles for transaction platforms [Beth Farmer, SCOTUSBlog; Eric Fruits, Truth on the Market; Diego Zuluaga (“Don’t Blame American Express for the Plight of the Poor”)]
- Animal Science Products v. Hebei Welcome Pharmaceuticals: Court considered question of deference allowable to foreign law and we didn’t have a culture war about it [Amy Howe, SCOTUSBlog; Cassandra Burke Robertson and Stephen Sachs, Prawfs]
- More on this to come, but Epic Systems, the workplace arbitration decision, is an epic win for contractual freedom and a big loss for the class action bar [earlier here and here]
- SCOTUS will revisit 1985 Williamson decision, which “makes it very difficult to bring takings cases in federal court.” [Ilya Somin on cert grant in Knick v. Township of Scott, earlier]
- Gorsuch and Thomas: similar originalist methods, which do not always arrive at similar results [Ilya Shapiro]
- “Can Agencies Adjudicate Patentability?” Two views of the recent case Oil States Energy Services v. Greene’s Energy Group [Cato “Regulation,” Jonathan Barnett and Jonathan Stroud via Peter Van Doren]
- “Victory for Defendant Autonomy and the Criminal Jury Trial in McCoy v. Louisiana” [Jay Schweikert]
- Quantitative analysis of amicus brief success at Supreme Court tells many stories, among them the sterling record of the Cato Institute’s amicus program [Adam Feldman, Empirical SCOTUS]