- Case reporting, contact tracing, location monitoring: “Disease Surveillance and the Fourth Amendment” [Alan Z. Rozenshtein, Lawfare]
- Unanimous Supreme Court spanks Ninth Circuit for its attempt to use immigration-law case to bring up (admittedly interesting) issue that neither party had presented and was not necessary to resolve the dispute [Ilya Shapiro and Michael Collins on U.S. v. Sineneng-Smith: “Neither Party Is Right, But the Ninth Circuit Is Wrong”]
- Judge Thomas Hardiman of the Third Circuit on the history of judicial independence [Cato audio]
- “While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins’s account. This article argues that Tompkins and his witnesses were not telling the truth.” [Brian L. Frye, SSRN 2018]
- Can procedurally valid constitutional amendments themselves be unconstitutional? [Mike Rappaport and followup post, both 2018]
- And now for something completely different: “Ayn Rand, Gary Lawson, and the Supreme Court” [Balkinization symposium last summer on Ken Kersch book Conservatives and the Constitution, more; unrelated but also about Lawson]
- Educated Canadian circles have politely indulged theories about how indigenous sovereignty is purer and more legitimate than so-called settler government. Ten thousand land acknowledgments later, comes the reckoning [J.J. McCullough, Washington Post] Read and marvel: “As lawyers and legal academics living and working on this part of Turtle Island now called Canada, we write to demand…” [Toronto Star; similarly, David Moscrop, Washington Post]
- Plaintiff’s lawyers in talc case played footsie with Reuters reporters: “Judge Sanctions Simmons Hanly for ‘Frivolous’ Disclosure of Johnson & Johnson CEO’s Deposition” [Amanda Bronstad, New York Law Journal]
- Bernie Sanders’ disastrous rent control plan [Cato Daily Podcast with Ryan Bourne and Caleb Brown] Housing construction unwelcome unless public? Vermont senator boosts opposition to East Boston plan to build mix of 10,000 market and affordable new homes on defunct racetrack [Christian Britschgi]
- Happy to get a request from Pennsylvania to reprint and distribute my chapter on redistricting and gerrymandering, found on pp. 293-299 of the Cato Handbook for Policymakers (2017). If you’re interested in the topic, check it out;
- Family courts deciding the future of a child commonly don’t take testimony from foster carers. Should that change? [Naomi Schaefer Riley/Real Clear Investigations, quotes me]
- Supreme Court will not review Ninth Circuit ruling that Eighth Amendment’s prohibition on cruel and unusual punishment prohibits city of Boise from enforcing law against homeless encampments when there are insufficient beds available in shelters [Federalist Society teleforum and transcript with Andy Hessick and Carissa Hessick]
- Court grants review of two cases, likely to be among the term’s more important for business, to clarify the limits of state court personal jurisdiction when none of defendants’ actions relevant to the dispute took place in the state [Jim Beck on Ford Motor Co. v. Bandemer (Minnesota) and Ford Motor Co. v. Montana Eighth Judicial District Court]
- From Peace Cross to Espinoza: where religious exercise and the Establishment Clause are headed in the Roberts Court [Federalist Society conference panel video and transcript with Stephanie Barclay, Luke Goodrich, Micah Schwartzman, and William P. Marshall, moderated by the Hon. Carlos Bea] “Conservatives want courts to consider the governments’ bigoted motives in enacting anti-Catholic Blaine amendments, but not when it comes to Trump’s travel ban. Liberals tend to be inconsistent in the opposite way.” [Ilya Somin]
- Federal law forbids attorneys and advocates to “encourage” an alien to reside unlawfully in the U.S. Spot the First Amendment problem with that [Ilya Shapiro and Michael Collins on Cato merits amicus brief in case of U.S. v. Sineneng-Smith]
- “The Supreme Court Should Continue To Defend Arbitration” [my new post with Ilya Shapiro and Dennis Garcia on Cato Institute certiorari brief in OTO, LLC v. Kho]
- What Martin Van Buren had to say in his memoirs concerning James Madison, Bushrod Washington, and Chancellor James Kent [Gerard Magliocca, Prawfsblawg]
- Is the Ninth the most overturned circuit? Checking the numbers [Adam Feldman, Empirical SCOTUS]
- Search and seizure: “How Long Does the Third Party Doctrine Have Left?” [Cato Daily Podcast with Billy Easley II and Caleb Brown, earlier]
Josh Blackman, at The Atlantic and Volokh Conspiracy, has the tale of how in the nomination of conservative Ninth Circuit nominee Lawrence Van Dyke, the American Bar Association (ABA) appears to have played fast and loose with the interview process, breaking its own rules along the way. Given “that the ABA cannot be trusted to accurately recount the conversations” resulting from its inquiries, Blackman proposes that in future “these interrogations should be treated as hostile depositions. A court reporter and videographer should be present, as well as private retained counsel to push back on unfounded accusations.”
- Oregon: “Union-Backed Ballot Initiative Would Limit Grocery Stores to 2 Self-Checkout Machines” [Christian Britschgi, Reason]
- Not unexpectedly, given its own precedent, Ninth Circuit rules Idaho inmate entitled to sex reassignment surgery [Amanda Peacher and James Dawson, NPR; pre-ruling (July) KRCC/NPR podcast and interview with Peacher, I’m quoted as in earlier coverage; earlier]
- I wrote a personal recollection at Cato of philanthropist David Koch;
- “Flight attendants and airport staff now get trained to intervene in what federal officials (falsely) portray as an epidemic of airline-based sex trafficking which can be spotted by good Samaritans who know the ‘signs.'” And mistakes will happen [Elizabeth Nolan Brown, Reason]
- Population growth has caused the Ninth Circuit to bulge at the seams. Left-right political advantage isn’t a good reason to break it up, but there are plenty of nonpolitical reasons that are good [Ilya Shapiro and Nathan Harvey, George Mason Law Review]
- “The legal profession was regarded by both the authors of The Federalist and Alexis de Tocqueville as the anchor of the republic —- a barrier to destabilizing innovation and a constraint on excessive democratic passions.” What happened? [John McGinnis]
- If you regard Neil Gorsuch and Brett Kavanaugh as “very decent, very smart individuals,” are tired of party-line confirmation bloc votes, and don’t favor adding to the line-up of nine Justices, you have a co-thinker at the Supreme Court [John McCormack, National Review; Nina Totenberg/NPR interview with Ruth Bader Ginsburg]
- “Manhattan federal judges are getting fed up with notorious copyright ‘troll’” [Alison Frankel, Reuters; ABA Journal; Mike Masnick, TechDirt; Richard Liebowitz]
- Idaho, though far from California, still falls under the Ninth Circuit’s distinctive body of law protecting homeless encampments against municipal authority [Steve Malanga, City Journal, earlier here, here]
- “Liability for User-Generated Content Online Principles for Lawmakers” [53 individual and 28 institutional signers including many names and groups familiar in this space; TechFreedom] “Comments on Sen. Hawley’s ‘[Ending] Support for Internet Censorship Act'” [Eric Goldman] And the Missouri senator’s latest: “Josh Hawley Wants To Appoint Himself Product Manager For The Internet” [Mike Masnick, TechDirt]
- Jury convicts south Texas judge charged with bribery, conspiracy and other crimes [Lorenzo Zazueta-Castro, McAllen Monitor; Fred W. Heldenfels IV, Corpus Christi Caller-Times/Texans for Lawsuit Reform (“The fact that a judge under indictment for accepting bribes can run for higher office and win should be a major red flag for Texans.”)] Michigan Supreme Court removes Livingston County judge over long list of ethical violations, criminal charges also pending [Andy Olesko, Courthouse News]
- “Auction Winner Learns Why Property Was Such a Great Deal: It’s Only 12 Inches Wide” [Kevin Underhill, Lowering the Bar]
Complying with wage and hour law these days is no easy matter, whether you’re Sen. Bernie Sanders or running a California offshore oil platform. I explain why in my new Cato post on Parker Drilling v. Newton, decided by the Supreme Court last month. More on Sen. Sanders’s travails here and here, from my Cato colleague Ryan Bourne.
- A longtime progressive objects to the diversity pledge (applying to personal and professional lives alike) soon to be expected of Ontario lawyers and paralegals as a condition of their licenses [Murray Klippenstein with Bruce Pardy, Quillette]
- More on Cato’s First Amendment challenge to SEC gag-order settlements [Cato Daily Podcast with Clark Neily, Robert McNamara, and Caleb Brown]
- “Federal judge sanctions lead lawyer in Roundup trial for opening statement ‘misconduct'” [Debra Cassens Weiss, ABA Journal]
- Unanimous high court (Sotomayor concurring in judgment) rules Ninth Circuit may not count Judge Stephen Reinhardt’s vote in decisions issued after his decease: “Federal Judges Are Appointed for Life, Not for Eternity” [Eugene Volokh]
- Copyright law firm has “a pattern of making aggressive and, in many cases, unsupportable demands” for payment [Paul Levy, CL&P]
- “Genealogists shouldn’t have to become technophobes,” yet to spit in a cup is now to enter oneself and one’s relatives intoto a genetic panopticon for the benefit of law enforcement [Matthew Feeney, Real Clear Policy]
“A federal appeals court on Thursday blocked a San Francisco law requiring health warnings on advertisements for soda and other sugary drinks in a victory for beverage and retail groups that sued to block the ordinance.” The ruling, by a unanimous 11-member en banc panel of the Ninth Circuit, found that thelaw violates First Amendment rights of commercial speech. [AP/BakersfieldNow; American Beverage Association v. City and County of San Francisco]
Class action tolling means suspending time limits on future lawsuits while a class action suit is pending. This is distinct from class action trolling which is when the Ninth Circuit adopts a deliriously liberal rule and dares the Supreme Court to reverse it.
Both phenomena were involved in today’s unanimous Supreme Court opinion in China Agritech v. Resh. In the 1974 case of American Pipe & Construction v. Utah the Court had adopted a rule permitting individual claimants to file otherwise-tardy actions after a court had declined to certify a class action. The American Pipe rule is itself decidedly indulgent toward the class action device, but it took the Ninth Circuit to take a crucial extra step off the Santa Monica pier by holding that the late-arriving claimants should themselves be able to ask for certification as a class action. After all, the first try at certification might have been based on a flawed legal strategy or incomplete factual record. Why not give our friends in the bar a second bite?
Or a third bite, or an nth: in fact the case that reached the high court was the third class action in a row attempted on the same underlying facts, a securities dispute. To almost everyone but the Ninth Circuit, the resulting danger was clear enough: without any real need to accept “no” for an answer, class action lawyers could just come back again and again with new tame plaintiffs until they find a judge willing to grant certification, the step that tends to guarantee a payday in the class action business.
Today’s unanimity is significant. On procedural and jurisdictional issues, at least, today’s liberal wing on the Court has sometimes been willing to unite with the Rehnquist-Scalia-Roberts wing to recognize and rein in the dangers of lawyer-driven overlitigation, the tactical use of lawsuits as a weapon, and so forth. Justice Ruth Bader Ginsburg, who wrote today’s opinion, has more than once joined and sometimes led such coalitions. By contrast, Justice Sonia Sotomayor has often been found alone and out on a limb in favor of a more litigation-friendly position, which happened again today: she joined in a concurrence agreeing that the Ninth Circuit had gone too far but seeking to limit the Court’s holding to securities suits governed by the Private Securities Litigation Reform Act of 1995 (PSLRA).
The Senate might want to quiz future liberal nominees – yes, there will be such – on whether they more favor the Ginsburg or the Sotomayor approach to these issues.
[cross-posted from Cato at Liberty]