- If your personal injury lawyer instructs you not to file a claim with your health insurer concerning your medical care, you may instead be in the hands of a “lien doctor” [Sara Randazzo, WSJ, paywall]
- Supreme Court passes up opportunity to decide whether the Constitution’s Excessive Fines Clause applies to business defendants, and also whether a state can conjure an excessive fine out of existence by conceptually slicing it up into smaller daily fines [Ilya Shapiro on Cato support for certiorari petition in Dami Hospitality v. Colorado; petition denied January 13]
- Assessing (favorably) the Trump Administration record on regulation [Cato Daily Podcast with William Yeatman and Caleb Brown; Casey Mulligan, Economics 21]
- Twelve scholars pick their favorite dissents in Canadian law, and the result might furnish something of a mini-education in the jurisprudence of Canada, where unions, for example, are deemed to have a constitutional right to strike [Double Aspect via Prawfsblawg]
- Ben Barton of the University of Tennessee, whose books we’ve much admired, has a new one out on a topic dear to our heart, called Fixing Law Schools [Scott Jaschik interview, Inside Higher Ed via Caron/TaxProf]
- This, except not disapprovingly: current administration retreats from predecessor’s moves to define international human rights as including economic welfare and social justice claims [JoAnn Kamuf Ward and Catherine Coleman Flowers, Columbia Human Rights Law Review]
Change in the federal appeals courts is not a rapid process. Some reasons for both sides to calm down about the supposed Republican capture of the federal judiciary [Martin Siegel, New York Times] I wrote in February that “the nature of the courts in our system is not that one side wins any permanent victories on judicial selection. And that’s a good thing.”
Charles Harder, a lawyer representing Donald Trump, last month “sent what has to be one of the most ridiculous threat letters I’ve seen (and that’s saying something) to CNN promising to sue the company for its ‘biased’ coverage of the possible Trump impeachment process.” Rather than defamation, a frequent cause of action threatened by Trump, the letter invokes the Lanham Act, alleging that the network is engaged in false advertising by describing itself as employing “journalists” who are “fair and balanced.” “Everything about the letter is pretty crazy, especially from a President whose fans like to pretend he he supports free speech.” [Mike Masnick, TechDirt]
“When public officials or those running for office call out the political donations of people they don’t like, what’s the goal? Is it merely to shame them?” I comment in this new Cato Daily Podcast with Caleb Brown.
More on the controversy over Rep. Joaquin Castro’s (D-Tex.) tweet: Katie Rogers and Annie Karni, New York Times; Bradley Smith, National Review, Christian Britschgi, Reason; and earlier episodes, not exactly parallel but with some points of similarity, involving Sen. Marco Rubio (Maduro-cozying restaurant owner) and the then-campaigning Donald Trump (“They better be careful, they have a lot to hide!”).
- “Arkansas Passes Bill to Prevent Sale of ‘Cauliflower Rice'” [Bettina Makalintal, Vice via Anthony M. Kreis (“Carolene Products of our time”, and more on that celebrated filled-milk case]
- Ted Frank has another case raising the cy pres issues the Supreme Court just sidestepped in Frank v. Gaos [Marcia Coyle on rewards-program class action settlement in Perryman v. Romero]
- Feds recommend 12 year sentence for copyright and ADA troll Paul Hansmeier [Tim Cushing, TechDirt]
- Didn’t realize New York City still had such a substantial fur industry – much of it in the district of an elected official who’s keen to ban it [Carl Campanile, New York Post]
- “Who’s Afraid of Big Tech?” Cato conference with Matthew Feeney, Alec Stapp, Jonathan Rauch, Julian Sanchez, Peter Van Doren, and John Samples, among many others [panels one (“Big Brother in Big Tech”), two (“Is Big Tech Too Big?”), three (“Free Speech in an Age of Social Media”)]
- Looking forward to this one, due out from New York lawyer James Zirin in September: Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits [St. Martin’s Press]
- “In Cato’s latest ‘funny brief,’ Ilya Shapiro and Trevor Burrus are once again telling the Court that scandalous speech is valuable to society and that there’s no way for a government office to be trusted to decide what’s ‘scandalous.'” [Ilya Shapiro and Trevor Burrus on Cato certiorari amicus brief (with P.J. O’Rourke, Nadine Strossen, and others) in trademark registration case of Iancu v. Brunetti]
- Could someone remind the President of the United States that there’s no law against making fun of him on TV? [Jacob Sullum]
- New Zealand declares it a crime to possess or distribute manifesto of Christchurch mass murderer, begins filing charges against persons who shared on social media [Charlotte Graham-McLay, New York Times via Josh Blackman, Tripti Lahiri/Quartz]
- Airport concession flap appears to set up a First Amendment case that Chick-fil-A would win, should it choose to pursue its rights against the city of San Antonio [KSAT, Hans Bader] Courts take seriously the doctrine of First Amendment retaliation even in otherwise discretionary areas of government operation [David French on Riley’s American Heritage Farms v. Claremont Unified School District, C.D. Calif. (school field trips to “living history farm” with outspokenly conservative owner)]
- Courts should narrowly construe “true threat” exception to free speech law to cases where there is objective threat, not just malicious intent [Ilya Shapiro and Michael Finch on Cato certiorari amicus brief in Knox v. Pennsylvania]
- Did a federal magistrate judge order the Chicago Sun-Times not to publish a juicy, mistakenly unsealed FBI affidavit from the city’s unfolding corruption case? (The paper published anyway) [Tim Cushing, TechDirt]
President Donald Trump’s backing of a version of the First Step Act is a big deal. Among noteworthy features: retrospective relief on some overlong sentences currently being served. In this new Cato Podcast, Caleb Brown interviews Molly Gill of Families Against Mandatory Minimums.
- Repercussions of Supreme Court’s Janus ruling on bar associations’ compulsory extraction of dues from nonmembers [Maxine Bernstein, Oregonian] “State Supreme Court calls a ‘timeout’ for Washington Bar Association to review its rules” [Steve Miletich, Seattle Times] “ABA Model Rule 8.4(g) Cannot Survive the Supreme Court’s Recent Decisions in NIFLA and Matal” [Kim Colby, Federalist Society, earlier on rule banning some types of speech and expression by lawyers on anti-discrimination grounds]
- Pardoned former sheriff Joe Arpaio sues New York Times for libel [Quint Forgey, Politico; Joe Setyon, Reason; over the years]
- When may governments boycott private companies’ output because those companies promote disapproved ideas? [Eugene Volokh, more]
- First Amendment has consistently foiled Donald Trump’s designs against critics’ speech [Jacob Sullum; related, David Henderson] “The culture of free speech has been deteriorating for long enough that politics, sadly and predictably, is catching up.” [Matt Welch] “Threats of violence discourage people from participating in civic life. This is an unusually good opportunity to deter them.” [Conor Friedersdorf during Ford-Kavanaugh episode]
- “Fighting Words and Free Speech” [John Samples] “A New Podcast on Free Speech: Many Victories, Many Struggles” [same on Jacob Mchangama podcast series]
- “U.K. Supreme Court: Baker Doesn’t Have to Place Pro-Gay Marriage Message on Cake” [Dale Carpenter, Peter Tatchell, Lee v. Ashers]
- North Carolina’s heartbalm law strikes again, as judge orders man who slept with married woman to pay jilted husband $8.8 million [Virginia Bridges, Raleigh News & Observer, more on homewrecker tort]
- Cornell economist Rick Geddes explains the federal government’s postal monopoly [David Henderson]
- Trademark swagger: “Chicago Poke Chain Sends C&D To Hawaiian Poke Joint Demanding It Not Be Named ‘Aloha Poke'” [Timothy Geigner, Techdirt] “Shipyard Brewing Loses Its Lawsuit Over Ships and The Word ‘Head'” [same]
- “Man files lawsuit under False Claims Act against manufacturer of batteries for use in intercontinental ballistic missile launch controls, asks for $30 mil, settles for $1.7 mil. What follows is—in the trial court’s words—a “hellish” dispute over the man’s attorneys’ fees. Third Circuit: We feel you; the order reducing requested fees is affirmed in almost every respect.” [John K. Ross, Short Circuit, on U.S. ex rel. Palmer v. C&D Technologies]
- Using the law to suppress one’s competition: New York Taxi Workers Alliance cheers City Council’s move to cap Uber and ridesharing [Reuters] It’s totally normal and not at all suspicious that the city council president who wants tougher enforcement against Airbnb is also president of the state’s hotel lobby [Eric Boehm, Reason; Biloxi, Mississippi]
- For those still keeping score, it’s improper and prejudicial for the head of the nation’s law enforcement apparatus to declaim publicly against a criminal trial in progress, whether or not the defendant happens to be his own campaign manager [David Post, Volokh; April Post and podcast on inapplicable “fruit of the poisonous tree” claim]
The Supreme Court yesterday in a 5-4 decision upheld the Trump administration’s travel ban, citing the relevant statute’s extreme deference toward executive branch national security determinations on the entry of persons, as well as the Court’s own historic deference toward executive branch discretion in this area.
The four liberal justices dissented, but did not agree on reasoning. Breyer and Kagan went for a low-key, minimalist fix — keep the injunction in place while ordering additional factfinding about implementation — that might have begun as an effort to craft a narrow decision conservatives would join. Only two Justices, Sotomayor and Ginsburg, went along with the arguments that persuaded the Ninth Circuit judges below.
Both dissents, however, stressed the significance of improper animus / discrimination against religious belief, the same issue championed by the Court’s conservatives in Masterpiece Cakeshop earlier this month.
Legal buffs may be interested in Thomas’s concurrence in which he pronounces universal injunctions “legally and historically dubious.”
Finally, and of interest to all Americans, the Court through its majority opinion officially repudiated Korematsu v. U.S. (1944), the decision in which it once upheld forced wartime internment of Japanese-Americans. Korematsu had never been officially repudiated until today.