- 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]
- Judge Neil Gorsuch on securities litigation and related issues of agency deference [Paul Weiss attorneys at D & O Diary]
- New York attorney general’s office pursued Hank Greenberg for years, wound up settling for $9 million and this lousy t-shirt [WSJ editorial]
- Exit tax and FATCA: “America charges $2,350 to hand in your passport, a fee that is more than twenty times the average of other high-income countries.” [Robert Wood, Forbes]
- “Overgrown Wall Street regulation needs a trim in 2017” [Thaya Brook Knight, The Hill] Last-minute Obama regs encourage shareholder activism [Stephen Bainbridge]
- Organized push to restrict use of cash includes some idealists, some economists, quite a few tax- or rent-seekers [Lawrence White/Cato, David Henderson (did USAID push India?), Stephen Williamson via Henderson]
- U.S. regulatory environment threatens the rise of fintech [Nikolai Kuznetsov, TechCrunch]
- How to read last year’s Garland precedent? [David Post, Jonathan Adler]
- Gorsuch “consistently applied established First Amendment protections” [Adam Liptak, New York Times quoting Gregg Leslie of Reporters Committee for Freedom of the Press]
- We’ve earlier linked Cato podcasts on the nomination with Ilya Shapiro and Andrew Grossman and now here’s a somewhat more skeptical one featuring Ilya Somin;
- On product liability [Eric Wolff, Perkins Coie]
- California Federation of Teachers, explaining its opposition to the nomination, dismisses his constitutionalism as devotion to a document “drafted to protect the interests of white slave owners” (via Amy Alkon);
- “Follow the law, as judges are supposed to do, and you’ll get tarred as a supporter of criminals” when Nancy Pelosi et al. go low: [Eugene Volokh on gun cases U.S. v. Games-Perez and U.S. v. Reese]
“He’s a brilliant, terrific guy who would do the court’s work with distinction.” — Laurence Tribe.
“He’s immensely qualified for the Supreme Court — an outstanding lawyer, and judge, and person.” — Jack Goldsmith.
“The Democrats have to let somebody go through. And there is not going to be anybody more acceptable than him.” — Charles Fried.
“The single most qualified person” on Trump’s list of 21 potential nominees, a judge “who is smart and has integrity. This is a man of enormous achievements” — Richard Lazarus.
“”What struck me was his real, genuine reverence for the Constitution and the rule of law that came through on a daily basis, As a judge, he believes that cases should be decided on the basis of the law and not on the basis of policy or personal preferences. His judicial record shows he applies the law impartially.”
“He’s really a kind, genuine and decent man,” she said. “He’s a great boss and a great mentor for all clerks, including myself. Any clerk you speak to, would just speak glowingly and lovingly of him.” — Jane Nitze, who served in the Obama administration after clerking first for Gorsuch and then for Sonia Sotomayor (Gorsuch serves as a feeder judge for liberal as well as conservative Justices).
More here (Liz Mineo, Harvard Gazette). And for those who prefer a West Coast academic view, Prof. Michael McConnell — a rare conservative on the Stanford law faculty who formerly served as a judge alongside Gorsuch on the Tenth Circuit — in this appreciation at Hoover salutes Judge Gorsuch’s impartiality and devotion to constitutional principle:
I asked my research assistant to pull every case in the last five years where Judge Gorsuch sat with both a Republican-appointed and a Democratic-appointed judge and the panel split as to the outcome. The results were striking. In almost a third of the cases, Judge Gorsuch voted with his presumably more liberal Democratic colleagues rather than the presumably more conservative Republicans. That is the mark of an independent, non-partisan jurist.
This is not just my opinion. In the days since the nomination, several liberal professors have studied his record and come to a similar conclusion.
- Germany will drop law against insulting foreign leaders, invoked by Turkey’s Erdogan [DW, earlier]
- Judge Neil Gorsuch’s opinions and writing draw praise from First Amendment specialists [Ronald Collins, First Amendment Coalition]
- “Hey, Google, deindex this whole article because one of the comments harms our reputation.” A tactic ripe for abuse, no? [Eugene Volokh]
- ABA model rule defining harassment as professional misconduct violates free speech, says Texas AG [John Mudd, Josh Blackman, earlier on Rule 8.4(g)here, here, etc.]
- “CFPB Proposal Unconstitutionally Imposes Prior Restraint on Regulated Entities’ Speech” [Burt Rublin and Daniel Delnero, WLF]
- “On punching Nazis” [Ken at Popehat; “Der Fuehrer’s Face,” Spike Jones, 1943]
- Freedom of association is at risk from California’s effort to crack open donor names of advocacy nonprofits [Ilya Shapiro on Cato Ninth Circuit amicus]
- “Center for Class Action Fairness wins big in Southwest Airlines coupons case, triples relief for class members” [CEI, earlier here, here]
- Campus kangaroo courts: KC Johnson and Stuart Taylor Jr. have spent a week guestblogging at Volokh on their new book (first, second, third, fourth, fifth, earlier links; plus Christina Hoff Sommers and WSJ video interviews with Stuart Taylor, Jr.]
- Despite his I’m-no-libertarian talk, two 2015 cases show Judge Neil Gorsuch alert to rights of Drug War defendants [Jacob Sullum]
- Drug pricing, estate/inheritance double tax whammy, shaken baby case, mini-OIRA in my new Maryland policy roundup [Free State Notes]
- And the legal fees flowed like water: dispute with Georgia over water rights has clocked $72 million in legal bills for Florida [Orlando Sentinel]
- December Cato conference on criminal justice (Ken White, Harvey Silverglate, Hon. Shira Scheindlin, Kevin Ring, too many others to list) now online (earlier);
- Justice Scalia and criminal law: Federalist Society National Lawyers Convention panel with Rachel Barkow, Stephanos Bibas, Orin Kerr, Paul Larkin, Jr., and Hon. Stephen Markman (Michigan SC), moderated by Hon. David Stras (Minnesota SC).
- Nominee Neil Gorsuch and the criminal law [Andrew Fleischman/Fault Lines, William Patrick/Florida Watchdog, Kevin Ring, Eugene Volokh]
- Are you sure you want to prosecute drug overdoses as murders? [Scott Greenfield]
- “Three anonymous allegations of criminal activity within the past year” can result in eviction threat under NYC’s no-fault nuisance eviction law [Allie Howell, Economics 21]
- Think lawmaking was more rational in the old days? How panic in Congress brought us the 1986 drug law [Radley Balko]
- If your mission is truth-finding or criminal justice, “Start By Believing” is wrong approach [Eugene Volokh on campaign by Arizona Governor’s Commission to Prevent Violence Against Women] Two ethicists propose demoting standard of proof in U.K. rape prosecutions from beyond a reasonable doubt to preponderance of the evidence [Aeon via Community of the Wrongly Accused, which takes a different view]
Radley Balko urges civil libertarians, including those on the liberal side, to feel a sense of relief at the selection of Neil Gorsuch: “Trump has nominated a thoughtful judge who seems as likely to challenge inevitable future Trump power grabs as any justice on the court.” [Washington Post] Paul Karlsgodt of Class Action Blawg, who describes himself as a lifelong Democrat, says the high esteem for Neil Gorsuch in the Denver legal community cuts across ideological lines. As Chevron deference for the first time emerges as a popular national issue, here’s the point to keep in mind: “Gorsuch has favored an approach to administrative law that would limit President Donald Trump’s discretion and power.” [Jeffrey Pojanowski, CNN] On Gorsuch’s already-famous ruling in the burping-student case: “That does not sound like a judge who bends over backward to side with the government.” [Jacob Sullum] And Hilaire Belloc: “Always keep a-hold of Nurse/For fear of finding something worse.”.
SCOTUSBlog assembles a long list of reactions from left, right, and other places.
And the Cato podcast series with Caleb Brown has a double entry, the first interview being with Ilya Shapiro:
and the second with Andrew Grossman:
Judge Neil Gorsuch’s first call after being nominated was to Judge Merrick Garland, “out of respect.”
If there is a relationship of esteem between the two, it may have something of a history. In 2002, as a Washington litigator before his elevation to the Tenth Circuit, Gorsuch wrote a piece deploring how Senators had stalled the nominations to the D.C. Circuit of Garland and another nominee who was to become well-known:
…some of the most impressive judicial nominees are grossly mistreated. Take Merrick Garland and John Roberts, two appointees to the U.S. Court of Appeals in Washington, D.C. Both were Supreme Court clerks. Both served with distinction at the Department of Justice. Both are widely considered to be among the finest lawyers of their generation. Garland, a Clinton appointee, was actively promoted by Republican Sen. Orrin Hatch of Utah. Roberts, a Bush nominee, has the backing of Seth Waxman, President Bill Clinton’s solicitor general. But neither Garland nor Roberts has chosen to live his life as a shirker; both have litigated controversial cases involving “hot-button” issues.
As a result, Garland was left waiting for 18 months before being confirmed over the opposition of 23 senators. Roberts, nominated almost a year ago, still waits for a hearing — and sees no end to the waiting in sight. In fact, this is the second time around for Roberts: he was left hanging without a vote by the Senate at the end of the first Bush administration. So much for promoting excellence in today’s confirmation process.