- Sports betting: best to ignore the leagues’ special pleadings and let federalism work [Patrick Moran, Cato, related podcast]
- Everything you thought you knew about corporate personhood in the law is wrong [David Bernstein reviews Adam Winkler’s We the Corporations]
- Federal judge John Kane, on lawyer’s filings: “I have described them as prolix, meandering, full of unfounded supposition and speculation, repetitive and convoluted almost to the point of being maddening.” And he’s just getting started [Scott Greenfield]
- “Florida Voters Join Chevron Revolt And Strike A Blow Against Judicial Bias” [Mark Chenoweth, Federalist Society Blog] Plus video panel on “The States and Administrative Law” with Nestor Davidson, Chris Green, Miriam Seifter, Hon. Jeffrey Sutton, and Hon. Michael Scudder;
- Argument that Congressionally extended extension of copyright on (among other works) Atlas Shrugged violates Ayn Rand’s own ethical code [Edward Sisson]
- “More Legislation, More Violence? The Impact of Dodd-Frank in the Democratic Republic of the Congo” [Nik Stroop and Peter van der Windt, Cato; our longstanding coverage of the conflicts mineral fiasco]
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
A 1992 federal law forbids states to legalize sports betting. The Supreme Court should nix that under its federal-state “anti-commandeering” doctrine: “If the federal government wants to enforce its chosen policy, it must find a way to do so that doesn’t involve having New Jersey do its dirty work.” [Ilya Shapiro and Matthew Larosiere on Cato-joined amicus brief in Christie v. NCAA; Amy Howe; John Brennan, Milwaukee Journal Sentinel; earlier] More: Richard Morrison, CEI.
The Supreme Court’s “anti-commandeering” doctrine holds that the federal government lacks authority under the Constitution simply to order state governments to implement federal programs or act affirmatively in other ways. Did Congress overstep this bound when it enacted the Professional and Amateur Sports Protection Act of 1992 (PASPA), a federal statute that with some exceptions forbids states to “authorize” sports gambling “by law”? That question has come up in a case in which New Jersey sought to repeal some of its old gambling laws. [Ilya Shapiro and David McDonald on Cato’s amicus brief participation supporting New Jersey’s petition for Supreme Court review in Christie v. NCAA et al.]
Under an old Illinois law, not only can persons who lose at unlawful gambling sue the winners to claw back their losses, but if they fail to act, literally any other person can sue demanding that money. Citing this law, two women sued online-poker operators seeking to recover gambling losses of men who happened to be their sons (but could as easily under the law have been strangers). A Seventh Circuit panel, Judge Posner writing, has now upheld a lower court’s dismissal of the case (an intended class action) on the grounds that the Illinois law by its terms allows suit only against the other gamblers who won the poker games in question, not the house that collected a fee for presiding. [Courthouse News, Rakebrain; opinion in Sonnenberg v. Amaya Group Holdings via John Ross, Institute for Justice “Short Circuit”]
While on the subject of Judge Posner, Harvard Magazine has a Lincoln Caplan interview with him that is worth a read.
Game of skill, or game of chance? “The [class-action] suit, filed in Manhattan federal court on behalf of FanDuel and DraftKings players nationwide, accuses Visa, MasterCard, American Express and other defendants of participating in a racketeering scheme to facilitate illegal gambling operations.” [Alison Frankel, Reuters]
“After a month-long investigation, New York State Attorney General Eric Schneiderman is sending cease-and-desist letters to DraftKings and FanDuel — essentially banning the two sites from operating in New York. Schneiderman feels that they are illegal gambling sites, rather than offering games of skill as both companies argue.” [Neal Ungerleider/Fast Company, David Marcus/Federalist, earlier]
More: “I challenge you to a fantasy football duel, Eric Schneiderman” [Paul McPolin, New York Post]
Financial economists and fans of old murder mysteries know about tontines. Was the law too hasty in banning them? [Jeff Guo, Washington Post “WonkBlog”]
“And for those who had cash seized from them — one player had more than $20,000, the regular player said — the police agreed to return 60 percent of the money, and keep 40 percent. … in Virginia state courts the local police agency may keep 100 percent of what they seize.” In a Fairfax SWAT raid on unlawful private gambling nine years ago, an officer shot and killed Sal Culosi, an optometrist who “had no criminal record and no known weapons.” [Washington Post, earlier (Radley Balko: Culosi incident in 2006 “wasn’t even the first time a Virginia SWAT team had killed someone during a gambling raid”)]