- I join Caleb Brown at the Cato Daily Podcast to talk about federalism and the lead role of the states in applying pandemic-related police power. See also Chris Edwards, Cato;
- First John Tamny disagreed with my observation in the WSJ that the Constitution allows states, not the federal government, the power to make lockdown decisions during epidemic outbreaks. Now Roger Pilon weighs in and settles it [Real Clear Markets]
- “Contagion and the Right to Travel” [Anthony Michael Kreis, Harvard Law Review Blog] Lawsuits challenging lockdown orders, sometimes on constitutional grounds, are tried, but the courts are highly deferential during emergencies of this sort [Neil MacFarquhar, New York Times] “Divided Pennsylvania Supreme Court: Governor can shut down firearms dealers during Coronavirus emergency” [Josh Blackman]
- “Now the ex-fiancé and his paramour are using Illinois’s ‘revenge porn’ law to punish her for speaking, and the state is happily obliging.” A First Amendment botch that SCOTUS should correct [Ilya Shapiro and Michael Collins on Cato Institute brief]
- “Reviving the Contract Clause: An Acid Test for Originalism” [John McGinnis]
- “Indiana Supreme Court Applies Eighth Amendment to Curb ‘Oppressive’ Asset Forfeitures” [Ilya Somin in November; earlier on Timbs v. Indiana here and here]
What good is sitting alone in your room without catching up on your video watching? This newly released panel discussion from the 1991 (!) Federalist Society National Lawyers Convention tackles the then-afoot trend to diminish the domain of traditional principles of contract in favor of prescribed duties under tort law, a trend I had discussed in my book The Litigation Explosion in that year. That particular trend, like some of the others I criticized, was to turn around in later years; contract did not die and in fact came back strong as it remains today.
It was quite a line-up that day:
Walter Olson, Manhattan Institute
Hon. Joseph R. Grodin, University of California Hastings College of Law and former Associate Justice, California Supreme Court
Prof. Randy E. Barnett, Chicago-Kent College of Law
Prof. E. Allan Farnsworth, Columbia Law School
Moderator: Hon. Robert Bork, American Enterprise Institute and former Supreme Court nominee
A direct YouTube link is here.
In April of last year the California Supreme Court ruled that a large class of service workers historically categorized as independent contractors, those who are under contract with a host enterprise that performs the same kind of service they do, have to be treated as employees and brought under the full range of employment laws. Some labor advocates cheered, but many California workers did not. “I lost my entire staff,” said owner Anthony Giannotti of downtown Sacramento’s Bottle and Barlow barber shop. All seven of his barbers quit, he said. The ruling is expected to disrupt the marketplace for cosmetologists and tattoo artists, yoga and Pilates instructors, and even FedEx delivery personnel. [Angela Greenwood, CBS Sacramento in September]
- Teens in Gardendale, Ala. need a business license to cut grass and it’ll cost a cool $110; it was grown-up lawn servicer who threatened to call town if he saw teen cutting a lawn again [WBMA, UPI]
- “It Isn’t Just Hamburger Stands That Will Be Shut Down By ADA Lawsuit Filers. My Website And Countless Others Could Be” [Amy Alkon, related Mark Pulliam, L.A. Times, more on web accessibility]
- Ten years later, recalling when Nebraska state senator Ernie Chambers filed a lawsuit against God [Atlas Obscura, our coverage]
- 15% of Mumbai’s housing stock lies vacant, and 12% of India’s. Blame state housing mistakes and regulation of tenancy [Alex Tabarrok]
- “The Progressives Took Away Our Right to Contract. It’s Time to Reclaim It” [Iain Murray, FEE]
- “In that version, she didn’t do anything wrong — it was the other sexy cop who demanded money.” [Lowering the Bar on Ninth Circuit decision in Santopietro v. Howell, which breaks new ground as the first reported decision to use the phrase “sexy cop.”]
“Typical medical malpractice reform efforts are aimed at lowering costs for physicians, but what if many problems associated with medical malpractice could be handled via contract?” In a new Cato Podcast with interviewer Caleb Brown, I discuss that subject and go on to talk about issues in malpractice reform, including arbitration and the “nod to federalism” in this year’s Republican medical liability proposal in Congress. Related: reasons why Cato adjunct scholar Jeffrey Singer is skeptical of federal reform.
The idea of minimum price regulations saw its American heyday during the New Deal, where it was a prime component of FDR’s National Recovery Administration. And the 1935 Supreme Court decision striking down the NRA as unconstitutional didn’t affect state laws like the one that has gotten Grand Rapids-based grocery chain Meijer in trouble for allegedly pricing its goods too low [Michigan Live]:
“Wisconsin is among 16 states with minimum markup laws that have price protections for retailers, according to the National Conference of State Legislatures.
“This is a bit peculiar for us, we are not accustomed to regulations that limit our customers’ ability to save money when they shop with us,” Guglielmi said.
More: K. William Watson, Cato (“While state laws like Wisconsin’s Unfair Sales Act are relatively rare, the federal government relies on the same bad economics to justify the U.S. antidumping law, which imposes punitive tariffs on imports sold below ‘fair value.'”).
Six months ago the Delaware Supreme Court upheld the right of an enterprise to include a loser-pays provision in its bylaws, specifying that losing shareholder-litigants would have to contribute reasonable legal fees to compensate what would otherwise be loss to other owners. Since then there’s been a concerted campaign to overturn the ruling, either in the Delaware legislature or if necessary elsewhere. But as I argue in a new Cato post, allowing scope for freedom of contract of this sort is one of the best and most promising ways to avert an ever-rising toll of litigation. Contractually specified alternatives to courtroom wrangling have played a vital role, and are under attack for that very reason, in curbing litigation areas like workplace and consumer arbitration, shrinkwrap and click-through disclaimers of liability, and risk disclaimers at ballparks and elsewhere. (& Stephen Bainbridge).
To the extent America has made progress in recent years in rolling back the extreme litigiousness of earlier years, one main reason has been the courts’ increased willingness to respect the libertarian and classical liberal principle of freedom of contract. Most legal disputes arise between parties with prior dealings, and if they have been left free in those dealings to specify who bears the risks when things go wrong, the result will often be to cut off the need for expensive and open-ended litigation afterward.
More on the Delaware bylaw controversy: D & O Diary (scroll), Andrew Trask on state of the merger class action, WSJ Law Blog first and second, Daniel Fisher, and ABA Journal in June, Alison Frankel/Reuters (forum selection bylaws).
Still pretty much the Litigation Lobby’s number one target, and still worth defending with appropriate vigor. [Andrew Pincus, American Lawyer]
- Tips for those facing vexatious-litigant proceedings [Lowering the Bar; U.K.]
- Credit card arbitration: “Plaintiffs’ lawyers protect their cartel by bringing antitrust suit” [Ted Frank, PoL]
- Just what European business needs: gender quotas for corporate boards [Bader, CEI]
- “Food sovereignty” movement: next, rediscovering freedom of contract? [Alex Beam, Ira Stoll]
- Much-assailed group for state legislators: “ALEC Enjoys A New Wave of Influence and Criticism” [Alan Greenblatt, Governing]
- Symposium on David Bernstein’s Rehabilitating Lochner [Law and Liberty, earlier here and here]
- Because rent control is all about fairness [Damon Root]
What kind of medical liability market would emerge if courts decided to begin upholding freedom of contract? I take up that question — and explain some of my misgivings about efforts to portray today’s medical malpractice sector as somehow a free-market arrangement — at Cato at Liberty (& welcome Elie Mystal/Above the Law, GruntDoc, Ramesh Ponnuru readers).