- Massachusetts state lawmaker who introduced much-derided bill to criminalize the word “bitch” when directed at another person says he “filed the bill after being asked to do so by a constituent.” [Alex Griswold, Free Beacon]
- Presidents have long used their power to retaliate against the press. When does the constitution direct or permit the courts to do anything about that? [First Amendment lawyer Robert Corn-Revere for FIRE, part one and part two]
- After two students shout racial slur loud enough for others to hear, University of Connecticut arrests and charges them “under a rarely-used, unconstitutional state law prohibiting ‘ridicule.'” [Adam Steinbaugh, FIRE]
- “May a company get an injunction to block a defendant from invoking the Streisand Effect?” [Paul Alan Levy]
- How courts draw the line on when menacing language triggers the “true threat” exception to First Amendment protection [Federalist Society teleforum with Eugene Volokh, John Elwood, and Michael Dreeben]
- “Should Congress Pass A ‘Deep Fakes’ Law? A few tentative thoughts.” [Orin Kerr, Volokh Conspiracy]
In March the Connecticut Supreme Court, over a dissent from three of its seven justices, ruled that the federal Protection of Lawful Commerce in Arms Act (PLCAA) did not pre-empt a state unfair-trade-practice statute for purposes of allowing suits against the maker of the rifle used in the Sandy Hook massacre — this even though the firearm in question was never marketed or sold to the killer, who stole it from his mother who had purchased it lawfully long before. As expected, gunmaker Remington has now filed a certiorari petition to the U.S. Supreme Court, asking for a ruling clarifying the scope of the federal law.
The Cato Institute together with the Independent Institute has filed an amicus brief in the case [Trevor Burrus, Cato] urging the high court to review the Connecticut decision and accord the intended broad effect to Congress’s pre-emption of state litigation intended to achieve gun control by other means.
The brief emphasizes two lines of argument that I find exactly to the point. First, under the right circumstances, the workings of tort lawsuits can impinge on individual rights guaranteed by the Constitution: exorbitant libel verdicts can menace freedom of speech, and similarly stretching of tort and public nuisance law can endanger Second Amendment rights. It is worth making explicit the parallels between the Supreme Court’s acknowledgment of the first in New York Times v. Sullivan and Congress’s recognition of the second in its passage of PLCAA.
It is noteworthy that in both cases the line-drawing came in response to litigation campaigns intended to challenge, or chip away at, the rights in question. By organizing costly libel suits against defendants that included the New York Times, some Southern partisans hoped to silence voices critical of the status quo in their part of the country (and deter others). Decades later, advocates of gun control teamed up with government officials in a litigation campaign intended to force the firearms industry into negotiations by threatening it with bankruptcy through litigation costs, whether it won or lost its cases.
Writes David Kopel: “In both cases, the stakes are the same: whether the Supreme Court will allow the misuse of tort suits to destroy an enumerated right.” What the Supreme Court is being asked to do in this case, namely give effect to Congressional intention in a statutory interpretation case, is less ambitious and far-reaching than what it was asked to do in Sullivan, namely craft entirely new Constitutional law to respond to the problem.
“The cop actually hauling him to the station [for warning motorists that there were cops ahead] was more to the point, telling the man he was arresting him for ‘interfering with our livelihood,'” according to the complaint in the subsequent lawsuit. [Tim Cushing, TechDirt; Stamford, Ct.] We covered a similar ruling in Florida in 2012.
- Estonia introduces artificial intelligence algorithms to adjudicate small claims disputes [Eric Niiler, Wired]
- “The Connecticut Ruling: Another Attempt to Blame the Gun for Gun Crime” [Joyce Lee Malcolm, Law and Liberty on 4-3 Connecticut Supreme Court ruling finding state consumer law not preempted by federal PLCAA (Protection of Lawful Commerce in Arms Act)] “But will the Supreme Court allow Connecticut to circumvent federal law?” [Scott Greenfield] Remington will seek certiorari review at U.S. Supreme Court [Dave Collins, AP/WTIC]
- In Pennsylvania, there’s “a feeling that law firms can get judges fired” after a worker’s comp judge who angered “one of the state’s most politically connected law firms…quickly lost her job” [William Bender, Philadelphia Daily News]
- Nanny staters vs. comptroller’s moves to modernize alcohol marketing regulation, no action on Sixth District gerrymander, Angelos asbestos bill tripped up, critics are right to oppose push to abolish child-abuse statute of limitation, heads should roll in business lobby after minimum wage fiasco, and more in a Sine Die (end of legislative term) roundup at my Maryland blog Free State Notes;
- “Harm Reduction: Shifting from a War on Drugs to a War on Drug-Related Deaths,” videos of Cato Institute conference with Jeffrey Singer, Maia Szalavitz, Ed Rendell, Clark Neily, Jeffrey Miron, Michael Cannon, and others [parts one, two, three, four, Jeffrey Singer overview blog post] and related Cato podcasts with Daniel Ciccarone on prohibition as crisis driver, Scott MacDonald on heroin-assisted treatment, Darwin Fisher on supervised injection, and Adrianne Wilson-Poe on cannabis and opioid overdose;
- “How Are State Supreme Court Justices Selected?” [Federalist Society Policy Brief video with Chris Bonneau and Brian Fitzpatrick]
Over a dissent from three of its seven justices, the Connecticut Supreme Court has green-lighted a suit over purportedly negligent marketing of the Bushmaster rifle used in the Sandy Hook massacre, even though the firearm in question was never marketed or sold to the killer, who stole it from his mother who had purchased it lawfully long before. To do so, it had to get around a specific federal law (the Protection of Lawful Commerce in Arms Act, or PLCAA) intended to stop exactly this kind of suit, which stretches available legal materials to an extreme so as to enable gun control objectives to be pursued through tort lawsuits. It resorted to ruling that the Connecticut Unfair Trade Practices Act (CUTPA), a state unfair-trade-practices law, is included as a “predicate statute” in an exception to PLCAA allowing suit in cases where guns have been sold in violation of a law or regulation. [Soto v. Bushmaster, majority opinion and dissent; Chris Woodyard, USA Today]
Writes Kevin Williamson: “The lawsuit against Remington is bogus. It has little to do with Connecticut commercial law and everything to do with a substantive gun-control agenda and the opportunistic inclination to wring money from institutions that have a great deal of it.”
In 2005 Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) specifically to put an end to product liability suits over guns that had been made and sold in accordance with law. The courts have generally enforced it as written – even the Ninth Circuit’s famously liberal Judge Stephen Reinhardt agreed that it was constitutional – which has mostly, if not entirely, led to the dismissal of such lawsuits. …
Let’s not forget that calculation of the relatively shallowness of pockets of gun-related businesses was part and parcel of the abusive strategy of the politicians and lawyers promoting the suits back then:
because gunmakers were too thinly capitalized to withstand the costs of years of legal defense, it was thought they’d fold their hands and yield to “gun control through litigation” (explicitly couched as an end run against a then-Republican Congress resistant to gun control proposals). …the suits eventually reached judges and were generally thrown out, but not before imposing huge and uncompensated costs on many small companies that had violated no laws. Some were bankrupted.
We may hope that the courts are alive to the ongoing importance of PLCAA, and willing, as appropriate, to apply the tool of sanctions against legal strategists and campaigners who would seek to circumvent its provisions in the name of ideological grandstanding, profit, or revenge.
More: Jacob Sullum (distinguishing negligent entrustment theory also promoted in suit, which was rejected in new ruling).
- Highlights from the career of Sheriff Joe Arpaio, newly pardoned by President Trump [Jon Gabriel/USA Today, Phoenix New Times thread on Twitter] Still vividly remembered: the Thomas-Arpaio raids on elected officials, judges, and journalists who’d crossed the sheriff [samples here and here from our coverage; Terry Carter, ABA Journal]
- Fran and Dan Keller, freed from Texas prisons after 21 years in Satanic abuse hysteria, finally getting official declaration of innocence (+ $3.4 million) [AP/CBS, Michael King, Austin Chronicle]
- Cops fired even for outrageous misconduct often win reinstatement, investigation finds [Washington Post] “Police Won’t Say Whether Cops Caught Fabricating Charges Were Disciplined” [Ed Krayewski, Connecticut]
- “A Rogues’ Gallery of Bad Forensics Labs” [C.J. Ciaramella]
- You can come back above ground now: NYC dismisses 644,000 stale arrest warrants for minor offenses [James C. McKinley, Jr., New York Times]
- Deferred prosecution agreements (DPAs) turn U.S. Department of Justice into regulator without accountability [James Copland and Rafael Mangual, Manhattan Institute]
The Connecticut Supreme Court has ruled “that schools have a duty to warn parents and students of potential hazards associated with field trips – in particular, dangerous insect bites – and let stand a $41.7 million verdict to a student who was disabled after developing encephalitis from a tick bite while on a school trip to China.” The Second Circuit had certified the question to the Connecticut court as part of the case of Munn v. Hotchkiss School. [Edmund H. Mahony/Hartford Courant, more] “According to the CDC, Munn was the first reported case of tick-borne encephalitis (TBE) in a U.S. traveler to China.” [Jennifer Morgan DelMonico, Murtha Cullina Appellate Insights]
- Claw back money spent on unhelpful college tuition after bankruptcy? Not if Connecticut has anything to say about it [The American Interest]
- Incoming civil rights/Title IX enforcement officials tell university lawyers they plan to take less adversarial stance toward colleges than did previous administration [Doug Lederman, Inside Higher Ed]
- “Maryland becomes first state to outlaw scholarship displacement by public colleges” [Tim Prudente, Baltimore Sun] Note that practice undercuts gratitude-inducing efficacy of state’s custom of “legislative scholarships” [sample explanation]
- Clinton, Obama education bureaucracy couched Title IX dictates as “guidance,” which should make them easier to revisit [Hans Bader, CEI]
- California, other states’ embargo on state-paid travel to “bad” conservative states is putting stress on academic conferences [Nick Roll/Inside Higher Ed, Teresa Watanabe and Rosanna Xia, L.A. Times]
- The ABA is stifling innovation in legal education [Allen
Mendenhall, Law and Liberty]
“A Connecticut law makes it the first state to provide animals with court-appointed advocates to represent them in abuse and cruelty cases, similar to laws that provide for victim’s or children’s advocates.” [Laurel Wamsley, NPR]
- Go figure: Trump executive order says “Hire American” even as federal law bans job discrimination in favor of American citizens [Jon Hyman]
- Though ADA excludes “gender identity” claims, judge green-lights suit over gender dysphoria [P.J. D’Annunzio, Law.com]
- “UC Berkeley Drops Free Online Videos In Response To Government Threat” [Jane Shaw/Heartland, and thanks for quote]
- “Hostile work environment can be created with one racial slur, 2nd Circuit rules” [ABA Journal]
- Connecticut’s CHRO attracts much higher per capita filings of workplace discrimination than comparable agency in Massachusetts, with complaints from incumbent employees a key growth area [Marc E. Fitch, Yankee Institute; Daniel Schwartz with somewhat different view]
- Missed, from December: Philadelphia could close businesses deemed to discriminate [Tricia Nadolny, Philadelphia Daily News, related earlier]