- Playlist: songs about eminent domain and takings, property law and the road [Robert H. Thomas, Inverse Condemnation]
- In-depth look into problems that develop when title to land is held as “heirs’ property,” leaving a dangerous collective tangle in place of individual right and duty [David Slade and Angie Jackson, Post and Courier (Charleston, S.C.)]
- Dispute over remains of two dinosaurs locked in combat 66 million years ago, lately unearthed in Garfield County, Mont. and extremely valuable, hinges on whether their fossils are “minerals”; Ninth Circuit says they are under Montana law [AP via Molly Brady (“property professor dream hypo”), Murray v. BEJ Minerals]
- “Government Should Compensate Property Owners for Flood Damage It Facilitated” [Ilya Shapiro and Patrick Moran on Cato amicus petition for certiorari in St. Bernard Parish v. United States] “Texas Court Rules Deliberate Flooding of Private Property by State Government in Wake of Hurricane Harvey can be a Taking” [Ilya Somin]
- Constituent-group politics continues to shape use of federal lands, to the detriment of its economic value [Gary Libecap, Regulation and related working paper]
- Caution, satire: Facebook parody of super-intrusive, restrictive, and meddlesome HOA [East Mountain West View Home Owners Association]
- “Rejected Applicant Sues Law Schools for Violating Magna Carta” [Kevin Underhill, Lowering the Bar]
- “Attorney sued for malpractice is suspended after releasing client’s psychiatric records” [Stephanie Francis Ward, ABA Journal]
- Moving state and local alcohol regulation past the bootlegger/Baptist era [Cato Daily Podcast with Jeremy Horpedahl]
- In Charlottesville today? I’ll be on a University of Virginia School of Law panel discussing redistricting / gerrymandering reform, campaign and election law, Maryland politics and more [Ele(Q)t Project]
- Rejecting ADA claim, Georgia Supreme Court says man cannot blame sleep apnea for “alleged inability to be truthful, accurate, and forthcoming” in bar application [Legal Profession Blog]
- Update: after national outcry, county D.A. in North Carolina drops charges of unlicensed veterinary practice against Good Samaritan who took in pets during Hurricane Florence [Wilson Times]
The negligence claims over the Las Vegas mass shooting could exceed $1 billion, with effects on some sectors of the liability insurance market as a whole [Sonali Basak and Hannah Levitt, Bloomberg/Insurance Journal]
- Hoping to blame Pacific Gas & Electric power lines for Northern California fires, lawyers from coast to coast descend on wine country [Paul Payne, Santa Rosa Press-Democrat]
- Courts should police lawyers’ handling of class actions, including temptation to sweep additional members with doubtful claims into class so as to boost fees [Ilya Shapiro, Trevor Burrus, and Reilly Stephens on Cato certiorari amicus in case of Yang v. Wortman]
- “Seventh Circuit Curtails RICO Application to Third-Party Payor Off-Label Suits” [Stephen McConnell, D&DL] “Here Is Why The False Claims Act Is An ‘Awkward Vehicle’ In Pharma Cases” [Steven Boranian]
- Litigation finance moves into car crash business [Denise Johnson, Insurance Journal]
- Slain NYC sanitation worker’s “frequent advice to Sanitation colleagues about how to save for the future helped persuade the jury that Frosch had a viable career ahead of him in financial planning,” contributing large future earnings component to $41 million award [Stephen Rex Brown, New York Daily News]
- “Ninth Circuit Overturns State Licensing Scheme Forcing Businesses to Incorporate in California” [Cory Andrews, WLF]
After a brief suspension during the moment of maximum public outcry, the Trump administration earlier this month allowed the Jones Act to go back into effect restraining trade between Puerto Rico and the U.S. mainland. According to this WSJ editorial, Puerto Ricans are paying the price:
Ricky Castro is a food and beverage wholesaler and president of Puerto Rico’s Chamber of Food Marketing, Industry and Distribution, known as MIDA, which boasts 200 members across the island. This month MIDA conducted an informal survey of 15 members and found there are roughly 1,400 containers of their provisions sitting in U.S. ports, waiting to be shipped to Puerto Rico.
Mr. Castro attributes the delay to the Jones Act, which mandates that U.S.-flagged, -built and -manned carriers conduct all shipping between U.S. ports. This means an oligopoly of three companies—Crowley Maritime Corp., TOTE Maritime and Trailer Bridge Inc.—conduct the vast majority of the protected trade between the mainland and the island, at inflated costs on aging ships. The ocean-going Jones Act fleet numbers a mere 99 vessels, compared to thousands available from foreign-flagged carriers.
Protectionism for the benefit of stateside shipping interests wins out over the rescue-and-rebuild interests of Puerto Rico and its citizenry. And yes, non-Jones ships have already been coming to help in the island’s Hurricane Maria recovery, so forget the claim heard last week that lack of port capacity and the availability of U.S. government vessels makes the law irrelevant. [Scott Shackford, Reason, earlier here and here] And given the Act’s impact on consumers in Hawaii and Alaska, how can it be that all four members of the Hawaii congressional delegation, and two of the three from Alaska, are stalwart backers of the law? [Colin Grabow, Cato] More: Tyler Cowen.
Ten day suspension more than halfway over already, time to refocus: the Jones Act “is a swamp creature that’s strangling Puerto Rico” [Colin Grabow, USA Today] The Act’s inefficiencies cost America many jobs, but they’re harder to identify than the jobs “saved” [Ike Brannon] An aged fleet [Thomas Firey on Regulation magazine analysis] A drag on the energy sector [James Coleman, Regulatory Transparency Project] Only two Washington problems are amenable to easy and correct solutions: simplify the tax code and get rid of the Jones Act [Ray Lehmann, R Street] More: Matt Yglesias. Earlier here.
- 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]
The 1920 Jones Act confines shipping traffic between US ports to US-flag, US-crew ships. That includes traffic between the mainland and outlying islands. It’s onerous for Puerto Rico in the best of times and now, in the emergency following the devastation of Hurricane Maria, much worse than that.
The Department of Homeland Security waived the Act beginning Sept. 8 in a limited manner for the purpose of allowing oil shipments to reach areas of Texas and Florida hit by Hurricanes Harvey and Irma. Those waivers expired Sept. 22. On Sept. 25 DHS announced that it would not waive the act for Maria and Puerto Rico even for the limited purpose of oil shipments, let alone general relief. DHS says it thinks most relief supplies for Puerto Rico from the U.S. will be sent by barge and it thinks there will be enough U.S.-flag barges available.
My Cato colleague Nicole Kaeding wrote two years ago that due to the Act, “goods coming from the mainland [to Puerto Rico] can’t come on the most cost-competitive vessel. They must go with one of four U.S. shippers operating that route. The limited competition increases costs. Puerto Rico’s shipping costs are twice those of its island neighbors, making items more expensive to purchase on the island. It also limits Puerto Rico’s ability to export its products to the mainland.”
Now the restrictions also mean that, say, a Norwegian- or Liberian-flagged vessel loaded up in Jacksonville or Savannah with relief supplies will not be allowed to unload them in Puerto Rico, no matter how much port capacity may have reopened there.
Rep. Nydia Velasquez (D-N.Y.) has called on President Trump to suspend the operation of the act for a year to reflect the current emergency, and that should be just an opening bid: Congress should move to repeal the law. Easier said than done: the Act, which also greatly drives up costs for Americans in places like Hawaii and Alaska, is tenaciously defended by U.S.-flag shipping interests and associated labor unions. Inertia, and the special interests that grow up around an existing law that protects some livelihoods, are powerful things. Critics of the Act, including Sen. John McCain (R-Ariz.), have made little headway. Trump, on Wednesday, on why he has hesitated: “a lot of people that work in the shipping industry… don’t want the Jones Act lifted.”
See also Amber Phillips/Washington Post “The Fix” (with link to Overlawyered), Nelson Denis, New York Times (“The Law Strangling Puerto Rico”), Henry Grabar/Slate, Michael Tanner/NRO. Marc Scribner/CEI, and this new WSJ editorial (“DHS argues that under U.S. law the agency can’t ask for a waiver unless there’s a national defense threat and there aren’t enough Jones Act-compliant ships to carry goods. That may or may not be a cramped reading of the law by DHS, but the Department of Defense has fewer legal constraints. Defense Secretary Jim Mattis could simply find a Jones Act waiver is ‘necessary in the interest of national defense.’”)
UPDATE: This morning the White House announced a 10-day suspension of the act. A 10-day suspension itself means very little when set alongside the magnitude of the need in Puerto Rico, so let’s hope this is just the prelude to a longer term fix. I did appearances this morning on CBS Streaming and WNYC/WGBH “The Takeaway” to discuss the issue.
“California state university researchers are banned from using funds to travel to Texas to study Harvey’s aftermath.” — Joshua McCabe on Twitter. The guidelines from California Attorney General Xavier Becerra do cite the legislature’s allowance of a number of narrow exceptions including travel that is “required…for the protection of public health, welfare, or safety, as determined by the affected agency.” The cited project, however, might not make it past that tough standard, given that it is possible in principle to wait and study flood aftermaths in some other place that (unlike Texas) is not under legislated California sanctions.
All of which should remind us that boycotts of states by other states 1) operate like internal trade barriers; 2) do not do much for national unity. See earlier posts from April 2015 (would Constitution provide any remedy if states closed state university systems to residents of “bad” states?); April 2016 (logic of lifting sanctions against Cuba extends to sanctions against Texas and North Carolina).