The Massachusetts House of Representatives last week “approved a bill that would ban flavored e-cigarettes, impose a 75 percent excise tax on ‘electronic nicotine delivery systems’ (including e-liquids as well as devices), and authorize forfeiture of cars driven by vapers caught with ‘untaxed’ products.” The law specifies that the state can seize, resell, and keep the proceeds from a motor vehicle, boat or airplane found to have contained or transported a single untaxed vaping device. “This is completely insane and endangers the property rights of anyone in Massachusetts,” said Dan Alban of the Institute for Justice, an attorney who has worked on cases of forfeiture abuse. [Jacob Sullum, Reason]
- 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]
Janice Smyth’s family had paid property taxes for 40 years on a residential-zoned land parcel on Cape Cod, which has been left as the last plot in its neighborhood not residentially developed. But the town of Falmouth has adopted land-use regulations that have left only a 115-square-foot patch of it developable. Massachusetts courts: even if the plot’s valuation fell from $700,000 to $60,000, a decline of more than 90 percent, it’s not a taking since you could still use the land as a park or to walk dogs or for neighbors to buy as a buffer. The dispute might make a suitable vehicle for the Supreme Court to revisit the question of whether an outright confiscation of all uses is required before the Constitution’s requirement of just compensation kicks in [Trevor Burrus on Cato certiorari amicus brief in case of Smyth v. Conservation Commission of Falmouth et al.]
“A federal court judge Monday ruled a Massachusetts General Law prohibiting the secret audio recording of police or government officials is unconstitutional. …In the 44-page decision [Judge Patti] Saris declared that ‘secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place and manner restrictions.'” [Noah Bombard, MassLive]
A “web of concealment and highly questionable ethical practices by experienced attorneys who should have known better”: a court has unsealed a scathing report on the conduct in the State Street case of a leading class action firm, Labaton Sucharow, and Garrett Bradley of the Thornton Law Firm in Boston. The court took particular notice of Labaton’s connections through a Houston middleman (to whom it had agreed to pay an undisclosed $4.1 million fee) to the Arkansas Teacher Retirement System, which served as institutional plaintiff [Daniel Fisher/Forbes, Amanda Bronstad/NLJ] Earlier here and here.
- High cross-border remittance costs for globally mobile workers slow ascent from poverty, and know-your-customer and money-laundering regulations have made things worse [Money and Banking]
- “The Supreme Court should find ALJs to be ‘officers of the United States’ and thus make them subject to presidential appointment and removal.” [Ilya Shapiro on Cato merits amicus filing in Lucia v. Securities and Exchange Commission]
- “Settlement of Lawyer-Driven ‘Merger Tax’ Litigation Stumbles in New York” [Greg Herbers, WLF]
- “Financial Regulation: The Apotheosis of the Administrative State?” 2017 National Lawyers Convention Federalist Society panel with Richard Epstein, Hal Scott, Peter Wallison, and Arthur Wilmarth, moderated by Judge Carlos Bea;
- With advances in Oregon and even California, deregulation of commercial insurance lines is having a moment [Ray Lehmann, Insurance Journal; Lehmann’s 2017 Insurance Regulation Report Card for R Street Institute] Perennially troubled Massachusetts, on the other hand, continues slide in same survey [Agency Checklists]
- Tech companies have been experimenting with old and lawful device of dual class stock and SEC shouldn’t be allowed to use raised eyebrow power to stop that [Bainbridge, WLF]
- Attitudes on law enforcement now function as culture war rallying point and vehicle of identity politics on both sides [Dara Lind] Good news on officer safety: “Line of duty deaths this year approached a 50-year low” [Ed Krayewski]
- SWAT deployment and police militarization — in rural Western Massachusetts [Seth Kershner, Valley Advocate] Trump still wrong on this issue [Eric Boehm]
- Would it be easier to address America’s high rate of fatal shootings by police if the focus were allowed to slip off race for a moment? [Conor Friedersdorf]
- Neighborhood police checkpoints employed in West Baltimore for several days in November, yet in 2009 DC Circuit, via conservative Judge Sentelle, found them unconstitutional [Colin Campbell and Talia Richman, Baltimore Sun; Elizabeth Janney, Patch]
- What should be done to address rising crime rates? Federalist Society convention panel video with Dr. John S. Baker, Jr., Heather Childs, Adam Gelb, Hon. Michael Mukasey, George J. Terwilliger III, moderated by Hon. David Stras;
- In Collins v. Virginia, Supreme Court has opportunity to reaffirm that home is truly castle against police search [Cato Daily Podcast with Jay Schweikert and Caleb Brown]
“Motherisk, a once-respected lab inside [Canada’s premier] Hospital for Sick Children, performed tests for more than 100 child welfare providers in five provinces, an investigation reveals.” The lab performed hair-strand drug and alcohol tests “on at least 25,000 people across Canada. The tests were discredited, but not before they were used in at least eight criminal cases and thousands of child protection cases. Now, many of those cases are under review.” While many of the cases drew on evidence other than the hair tests, false positives for drug or alcohol abuse could be a factor in temporary or permanent removal of children from parents [Toronto Star]
In British Columbia, a mother is desperate to convince the children she lost years ago that she didn’t choose drugs over them.
In Nova Scotia, a 7-year-old girl prays for her brother, who was adopted into another family.
And in Ontario, a mother whose daughters were taken shortly after they were born is waiting for a reunion that may never come.
In more than 100 cases since 1980, Massachusetts courts of appeal have thrown out criminal convictions based on prosecutorial improprieties, and in 20 of those cases they have used the words “egregious” or “misconduct” or both to describe impropriety. Both numbers are likely to be lower bounds for impropriety that reaches judicial notice, given the number of cases in which prosecutorial missteps are addressed by trial judges, or take place in cases that result in acquittals or are not appealed. Because prosecutors are virtually immune to suit, professional discipline and public exposure are left as among the few ways to deter misconduct or bad practice.
But the Massachusetts study found that since 1980, just two prosecutors have been publicly disciplined by that state’s bar. Nine others were disciplined, but the public was prevented from knowing their names. And it isn’t as if the bar is averse to disciplining attorneys. Since 2005, it is has imposed sanctions on more than 1,400 non-prosecutors.
The study points out that many of the prosecutors found by appeals courts to have committed misconduct went on to higher office: “Three went on to become judges, one became Massachusetts attorney general, and others rose to top positions in district attorneys’ offices and state legal-ethics bodies.” We’ve recently seen efforts in some parts of the country to hold bad prosecutors accountable at the polls. But it’s hard to do that if we don’t even know who the bad prosecutors are. The study found that of the numerous times state courts have found misconduct, the courts mentioned the offending prosecutor’s name just four times.
P.S.: From Texas, prosecutor John Jackson faces possible sanctions in the case of Cameron Todd Willingham, executed after his conviction for murder by arson in 2004 [Balko]
- Sixth Circuit ruling breaks new ground in disturbing ways: employer can be sued under Fair Housing Act if it withdraws job offer based on disapproval of accepted applicant’s public position on a housing controversy [Linkletter v. Western Southern Financial Group Inc.; Chiodi]
- A request from blogger Coyote: he’s looking to interview folks who run 10-40 employee firms [details]
- “Massachusetts is just one of six states that prohibit employers from donating to candidates while allowing unions to donate,” and the only one that prohibits employers from administering a PAC [Paul Craney and James Manley, Commonwealth Magazine]
- California voters sought to fix gerrymandering in races for state and federal office, but omitted to address the county level. Guess what’s happening now? [AP] No one is really fooled by Maryland legislature’s pledge to reform redistricting if five (5) nearby states all agree to enact exactly the same reforms [Nancy Soreng and Jennifer Bevan-Dangel, Washington Post; Rachel Baye/WYPR and related audio, legislation]
- D.C. should concentrate on deregulating hotel and apartment provision, rather than try to choke off AirBnB. [David Alpert, Greater Greater Washington, rounding up various views] “California will audit Airbnb hosts for racial discrimination” [ABA Journal, Guardian]
- Securities class action settlements continue steep rise [Harvard Corporate Governance Project]