- More on this to come, but Epic Systems, the workplace arbitration decision, is an epic win for contractual freedom and a big loss for the class action bar [earlier here and here]
- SCOTUS will revisit 1985 Williamson decision, which “makes it very difficult to bring takings cases in federal court.” [Ilya Somin on cert grant in Knick v. Township of Scott, earlier]
- Gorsuch and Thomas: similar originalist methods, which do not always arrive at similar results [Ilya Shapiro]
- “Can Agencies Adjudicate Patentability?” Two views of the recent case Oil States Energy Services v. Greene’s Energy Group [Cato “Regulation,” Jonathan Barnett and Jonathan Stroud via Peter Van Doren]
- “Victory for Defendant Autonomy and the Criminal Jury Trial in McCoy v. Louisiana” [Jay Schweikert]
- Quantitative analysis of amicus brief success at Supreme Court tells many stories, among them the sterling record of the Cato Institute’s amicus program [Adam Feldman, Empirical SCOTUS]
In the case of a federal law providing for the mandatory deportation of lawful permanent residents convicted of a hazily defined “crime of violence,” Justice Neil Gorsuch steps comfortably into Nino Scalia’s shoes as the Court’s champion of void-for-vagueness invalidation of criminal laws whose contours were left overly unclear. “It doesn’t make him a squish. It makes him an originalist,” [Ilya Shapiro, Washington Examiner; opinion in Sessions v. Dimaya] More: Jay Schweikert, Cato.
- A strong 9-4 showing: “Even in a ‘Slow’ Year, Cato Continues Its Winning Ways at the Supreme Court” [Ilya Shapiro]
- Court follows up Bethune-Hill v. Virginia State Board of Elections with another race-and-redistricting case, Cooper v. Harris [SCOTUSBlog symposium]
- “What Do We Mean By a “Pro-Business” Court — And Should We Care?” [James Copland, Case Western Law Review]
- Kennedy’s opinion for Court cites Cato amicus brief in Packingham v. North Carolina, ruling unconstitutionally overbroad law preventing nearly all social media access by released sex offenders [earlier]. Speech limits aren’t the only unconstitutional restrictions such offenders face. High court should take Karsjens case next [Ilya Shapiro and David McDonald]
- CALPERS v. ANZ Securities Inc.: pendency of class action does not suspend three-year time limit for filing individual securities actions [Kevin LaCroix/D & O Diary, Federalist Society podcast with Mark Chenoweth]
- Why I’m not joining the fury over Justice Gorsuch’s dissent in Pavan v. Smith, the case over Arkansas’s handling of birth certificates post-Obergefell [my Twitter sequence, more from Erica Goldberg]
New paper from Ilya Shapiro and Frank Garrison for the fledgling Cato Legal Policy Bulletin series, which launched in January with Thomas Berry’s paper “The Illegal Tenure of Civil Rights Head Vanita Gupta.” From the executive summary:
…President Donald Trump picked Gorsuch after promising the American people that he would appoint someone in the mold of the late Justice Antonin Scalia, who is best known for his devotion to the original meaning of the Constitution, his textualist approach to interpreting legal statutes, and his commitment to ordered liberty through constitutional structure. This policy bulletin weighs Judge Gorsuch’s record with respect to those ideals, ultimately asking whether a Justice Gorsuch would uphold the Constitution’s protection of individual liberty. A survey of Gorsuch opinions in cases involving criminal procedure, constitutional structure, and individual rights reveals an adherence to the rule of law. Moreover, Gorsuch has questioned legal precedent on the separation of powers—especially when it comes to the administrative state—in a way that shows a commitment to the judicial duty to check the other branches of government.
Other links on the nominee: A study of cases finds Neil Gorsuch in the middle of the pack among Tenth Circuit judges on employment discrimination and immigration [Kevin Cope and Joshua Fischman, Five Thirty-Eight] And the editors at the New York Daily News, one of the most outspokenly anti-Trump newspapers, say the Senate should confirm him:
In exchange after exchange with members of the Judiciary Committee, Gorsuch revealed himself to be not the caricature conjured up by Democrats, but a rigorous judicial practitioner with respect for the legislative process and for precedent….
Sen. Dianne Feinstein challenged Gorsuch on whether he “would give a worker a fair shot” — asking him to cite cases in which he stood up for the little guy, affirming his or her rights over that of a wealthy employer.
Gorsuch, off the top of his head, named 10….
Democrats are doing the nation a disservice by planning to filibuster his nomination….They should stand down.
- Gorsuch hearing “unlikely to change a single vote on anything” [Ilya Shapiro] “No, there is no way to force Supreme Court nominees to give revealing answers” [Orin Kerr] Members of Supreme Court bar are keen on the nominee [letter courtesy SCOTUSblog] And many law professors, even [letter via Will Baude]
- “Nice Try! Judge Nixes Attempt To Turn $4 Million Worth Of Stickers Into $10 Million Bonus” [Daniel Fisher]
- Problems here would seem to go beyond lack of court interpreter: “Interpreter no-show stalls Chigwedere witchcraft case” [The Herald, Zimbabwe]
- “The Strange Case of Everet vs. Williams: When Two Highwaymen Took Each Other To Court” [Paul Anthony Jones, Mental Floss]
- Important Phil Hamburger op-ed: Chevron entrenches a judicial bias in favor of state, Gorsuch is right to oppose it [New York Times]
- It’s cute when legislators try to legalize dachshund racing [Lowering the Bar, Idaho, earlier]
“I’m not sure who decided that the Democratic critique of U.S. Supreme Court nominee Judge Neil Gorsuch would be that he doesn’t side with the little guy. It’s a truly terrible idea.” Judges should stand up for the law and their interpretation of the correct way for it to develop, rather than ruling consistently with the interests of a particular category of litigant. “…consider the whole point of a rule-of-law system: It establishes rules so that people can be confident in advance of how decisions are made. That creates regularity and predictability. And in the long run, it protects the little guy a lot better than a system rigged to favor one side, because such systems will naturally tend to favor the rich and powerful, not the poor and downtrodden.” So cut it out, interest groups with your stop-Gorsuch campaign [Noah Feldman, Bloomberg View] More: David Harsanyi.
- A workplace hazard? Push in Britain to “make it illegal for a company to require women to wear high heels at work.” [Elizabeth Nolan Brown, Reason]
- Service dogs on planes: “a ‘credible verbal assurance’ books Fido a trip to San Francisco for the weekend” [David Post, Volokh Conspiracy] Australia, too, sees trend toward exotic service and emotional-support animals [Workplace Prof; earlier]
- Trial lawyers would like Supreme Court to squash the arbitration alternative, but few signs Judge Gorsuch is on board with that plan [Edith Roberts, SCOTUSBlog]
- New York radical lawyer Lynne Stewart, not a favorite in these columns, dead at 77 [Scott Johnson, PowerLine, earlier]
- Baltimore police scandal, “yes means yes” bill for MoCo schools, homicide rap for overdose suppliers?, school wi-fi scare, Tom Perez, and more in my Maryland policy roundup [Free State Notes]
- Suing so soon over White House regulatory reform, Public Citizen, and with so little show of injury? [Brian Mannix, Law and Liberty]
- Dairy Queen manager charged with involuntary manslaughter following suicide of teen employee reportedly bullied on the job [AP, Missouri]
- Court orders new trial: carpenter, in school to argue against son’s school suspension over knife, had displayed knife he carries as part of work [Lancaster Online, Commonwealth v. Goslin]
- Desires for retribution aside, hanging homicide rap on dealers after overdoses unlikely to solve opiate problem [Mark Sine and Kaitlyn Boecker, Baltimore Sun]
- “Man wrongly convicted with bite mark evidence confronts bite mark analysts” [Radley Balko]
- Judge Neil Gorsuch and over-criminalization [C. Jarrett Dieterle, National Review]
- Debate over DoJ oversight of city police forces continues [David Meyer Lindenberg, Fault Lines (report on Chicago) and more]
- Judge Neil Gorsuch on education law issues [Clint Bolick and Marty West, Education Next] And if you haven’t read Gorsuch’s dissent in the “burping student” case, A.M. v. Holmes — among his most famous opinions — it’s here;
- Tables for sharing food at cafeterias: “‘It’s the same objections every single time,’ he said. ‘There’s this myth that they’re going to get sued.'” [Michael Melia, AP/Yahoo]
- “Why heroin and classroom sex aren’t enough to get teachers fired anymore” [Julia Marsh, New York Post]
- “…a story of the pitfalls that await teachers who make extended efforts to aid troubled students.” [Andrew Marra, Palm Beach Post]
- St. Paul, Minn. saga of school discipline and “disparate impact,” cont’d [Katherine Kersten, earlier here, here, and here]
- “I first found ‘Free Range Kids’ from the Overlawyered site” — one commenter’s tale of the fate of children’s books at a local library after CPSIA came in [Free-Range Kids]
- Online accessibility demands under the ADA: “Surge in website lawsuits continues” [Retail Law Advisor, background]
- Even with no trade war yet, jitters affect livestock growers through slump in cattle futures [Richard Parker, Dallas News] Federalist Society/American Branch of the International Law Association panel on trade law in Trump era [part of symposium with panels on international law generally, alliances and interventions]
- “There is yet another more level of nerdiness, courtesy of Professor David Noll. Anne Gorsuch signed the rule at issue in Chevron.” [Josh Blackman]
- Stop Settlement Slush Funds Act reintroduced as H.R. 522 and likely again to command majority support in House Judiciary Committee [Rep. Bob Goodlatte, earlier (in face of veto prospect, committee approved bill last term by 18-6 vote), more: Fox News, earlier]
- Did Obama DoJ civil rights chief Vanita Gupta act without lawful authority? [Thomas Berry, Cato Legal Policy Bulletin]
- A second Trump executive order on regulation establishes reform officials within agencies [Brian Knight, Reuters, text, earlier on first order]