Schemes like a government mandate of worker representation on corporate boards (an element of German “co-determination”) are not new, and scholars have studied their track record in Europe for years. In particular, they tend not to provide robust incentives for risk-taking and dynamism; that’s aside from their interference with the contractual liberty of all parties to adopt alternative governance methods agreed to by all parties. I talk with Cato’s Caleb Brown about that and Massachusetts Senator Elizabeth Warren’s other ideas for revamping how large companies are run. Earlier here and here.
The hearings for Supreme Court nominee Brett Kavanaugh have wrapped up:
- Ilya Somin on the nominee’s view of executive power;
- “The attacks on originalism during the Gorsuch hearings were seen as failures—in the sense that they failed to persuasively portray originalism as outside the mainstream. Thus they were not widely repeated during the Kavanaugh hearings… ” [Michael Ramsey, Originalism Blog]
- Sen. Kamala Harris (D-Calif.) took a quote in which Kavanaugh summarized the positions taken by litigants in a lawsuit, snipped off his “But they said” wording introducing the summary, and represented the remainder as his own position. Others followed [PolitiFact; Glenn Kessler, Washington Post “Fact Checker” (four Pinocchios); our earlier encounters with Harris on truancy laws and the Moonlight Fire case, and see also Elizabeth Nolan Brown]
- Some critics charged Kavanaugh with not answering truthfully in several lines of questioning; David Lat responds with explanations regarding Judge Bill Pryor’s nomination, MemoGate, and NSA surveillance. Also, when you’ve lost Vox…
- I joined Newell Normand on WWL for a brief recounting of the week’s action and a look at what lies ahead (most likely, confirmation before month’s end);
- Another overview of the four days: “Arguing about documents rather than Kavanaugh’s qualifications or his judicial philosophy has a political purpose.” [John McGinnis]
I joined Rick Sincere on his podcast The Score for the Bearing Drift site (Virginia politics) for what turned out to be a two-part interview. You can listen to part 1 on Brett Kavanaugh’s Supreme Court nomination, and part 2 on why the Court is unlikely to overturn its Obergefell decision on same sex marriage.
A noteworthy podcast: I join Dr. Saurabh Jha [@RogueRad on Twitter] for an lengthy discussion of how American tort and medical malpractice law has changed over the past century, similarities and differences with Britain, how ethics in the legal field stacks up against ethical trends in medicine and the pharmaceutical business, contingency fees, the successes and shortcomings of legislated tort reform, trends in the courts, incentives for medical testing, and much more. It’s all part of Dr. Jha’s podcast series, associated with the Journal of the American College of Radiology. You can listen here.
Yesterday was a two-podcast day for me. The first was a discussion at FIRE on prospects for free speech at the Supreme Court after Anthony Kennedy’s retirement and the nomination of Brett Kavanaugh. Other panelists were First Amendment experts Robert Corn-Revere and Paul Sherman and the moderator was FIRE’s Nico Perrino.
At the Cato Daily Podcast, Caleb Brown interviewed me about what we know from nominee Brett Kavanaugh’s career as a judge, which has been spent on the influential but atypical D.C. Circuit Court of Appeals. That means we know a lot about his views on some subjects (regulatory and administrative law, separation of powers, national security law) but much less about his approach toward issues that loom larger as a share of the docket in other circuits, such as disputes involving schools, land use, police abuse and prisoner cases, torts, and so forth.
Not very closely related: you’ve probably heard the theory that Trump made the choice he did because Kavanaugh doesn’t think Presidents should be investigated or charged with criminal offenses. Here’s Ben Wittes, who’s anything but a Trump fan, on the problems with that theory. [Lawfare]
More: And now a video of the FIRE panel:
The White House has indicated that President Trump will announce a nominee for the Supreme Court vacancy Monday evening. Jonathan Adler breaks it all down at Volokh Conspiracy as does David Lat in a series of posts (sample: feeder judge Brett Kavanaugh “sends clerks to almost all the justices, on both sides of the aisle.”) Other resources while we wait:
- Factually rich cheat sheet with links to writings and opinions of judges thought to be on the list [TIFIS]
- The New Civil Liberties Alliance has evaluated the likely picks on the basis of their posture toward the powers of the administrative state. Chris Walker at the Yale Journal on Regulation examines related issues of their views on administrative law. And the Institute for Free Speech on records on free expression;
- Judge Raymond Kethledge’s concurrence in the Cathedral Buffet case, with observations about government scrutiny of religious beliefs and the First Amendment’s Free Exercise Clause, is getting some attention. I wrote it up at the time here and at Cato at Liberty;
- Hmm. “[Amy Coney] Barrett defended the Supreme Court’s current approach in cases dealing with economic regulation, in which the scales are tipped in favor of lawmakers via the highly permissive standard of judicial review known as the rational-basis test.” [Damon Root, Reason]
- Ilya Shapiro has some kind things to say about another Sixth Circuit judge on many shortlists, Amul Thapar. What got my attention as a confirmed legal formalist is that Judge Thapar threw a case out of court for being one cent short of federal jurisdiction. As I argued way back in The Litigation Explosion, bright-line rules are generally a good thing and jurisdiction, especially, should not be subject to rules of close-enough. This recent Michigan Law Review piece by Judge Thapar and Benjamin Beaton, reviewing a new book by Judge Richard Posner has more on the virtues of formalism and is eminently worth reading;
- Highlights of Kevin Cope’s ideological scoring of the judges for the Washington Post’s Monkey Cage: likely picks other than Thapar are clustered closely together, all less conservative than Justice Alito’s Third Circuit record when he was picked; Thapar gets a more moderate rating but his tenure as an appeals judge has been very brief. Note also that Merrick Garland, much promoted as centrist two years back, scores well to the left of the pre-appointment records of Ruth Ginsburg and Sonia Sotomayor.
- You can listen to me briefly discussing the possibilities on the Hartford-area Ray Dunaway show here.
Roger Pilon and I join Caleb Brown in This Cato podcast assessing the 30-year tenure of Justice Anthony Kennedy, who usually reached sound outcomes but often not by the reasoning we might have liked. Among the topics discussed: the gay rights cases, Kennedy’s change of tune on enumerated powers, and his authorship of Citizens United.
Caleb Brown interviews Trevor Burrus and me for the Cato Daily Podcast on Lucia v. SEC, Thursday’s Supreme Court case on the Appointments Clause and administrative law. Crossing to join with the conservatives, Justice Elena Kagan wrote a narrowly tailored opinion invalidating the method by which the Securities and Exchange Commission had appointed its five administrative law judges at the time of the dispute (it has since fixed its appointment method). The majority opinion carefully sidesteps the issue of how ALJs may properly be removed; Justice Breyer, who largely concurred with the result on separate grounds, explored some of those issues in his opinion. See also Ilya Shapiro on June 21 as “government structure day” at the Supreme Court, and with more on the merits. Related: Federalist Society forum on Michael Rappaport proposal for replacement of ALJs with Article III judges.
I’ve got a piece up at the Weekly Standard on yesterday’s Masterpiece Cakeshop decision, on which a Supreme Court uniting 7-2 on result — but split five ways as to particulars — found the Colorado Civil Rights Commission to have operated unfairly, thus managing to dodge a substantive decision about the limits of forced expression. “Next time you run this process, skip the religious animus” is not the same as proclaiming a First Amendment right for the baker to turn down the wedding, though it may convey a significant message for the future in its own right.
More commentary: Ilya Shapiro (“the real action is foreshadowed by the concurring opinions”), Eugene Volokh (“will have little effect on other such same-sex wedding service provider cases, especially when government commissioners realize they shouldn’t say more about religion than is necessary”), John Corvino (opinion could put a brake on “rushing to dismiss our opponents as ‘despicable'”), David French (Kennedy’s emphasis on comparing the case with cake inquiries that offend other bakers bodes well for religious service providers), and Richard Epstein (“the worst kind of judicial minimalism”; what does the not-yet-legality of gay marriage at the time have to do with anything? and can Colorado reopen the case?), and earlier here. And you can listen to my guest appearance yesterday on the popular Clarence Mitchell IV (C4) show on Baltimore’s WBAL.
- “Crash survivor sues publisher, claims he was exploited by book’s false claim of visit to heaven” [Debra Cassens Weiss, ABA Journal on William Alexander “Alex” Malarkey claim against Tyndale House Publishers] More: Lowering the Bar;
- Attorney-client privilege and the raid on Trump lawyer Michael Cohen: my Saturday chat with Yuripzy Morgan of Baltimore’s WBAL radio [listen] On the same general subject, Clark Neily chats with Caleb Brown for the Cato Daily Podcast, and Ken at Popehat has a Stormy Daniels/Michael Cohen civil litigation lawsplainer;
- “While there were many problems with the $1.3 trillion omnibus spending bill, one thing the Republican-led Congress got absolutely right was defunding Affirmatively Furthering Fair Housing” [Robert Romano, Daily Torch, earlier on AFFH]
- “The nearest Macy’s department store is several thousand miles away” but a small hair salon in Scotland will need to change its similar name or face lawyers’ wrath [Timothy Geigner, TechDirt]
- Facebook sued for allegedly allowing housing discrimination by way of ad targeting [autoplays] [Seth Fiegerman, CNN Money]
- Beverage equivalent of clear backpacks: South Carolina bill would make it a crime to let teenagers consume energy drinks [Jacob Sullum]