One of the most significant changes happening at the moment in the ideological complexion of the courts is not related to the federal courts at all. The Florida Supreme Court, for many years firmly in the hands of a liberal majority of justices, is likely to take a new turn with three appointments from new governor Ron DeSantis, a conservative Republican who campaigned against what he called judicial activism. The previous court is remembered especially for holding the national stage during the 2000 Bush v. Gore controversy. Among its other hits, it killed a school voucher program and liberalized tort law in such areas as premises, municipal, recreational, and rental-equipment liability. It also repeatedly struck down legislation aimed at reining in litigious excess in such areas as medical liability and expert testimony. [David Freddoso, Washington Examiner]
“An end to industrial civilization, but like in a totally pro-union way.” My two cents at Ricochet on the politics of this week’s “Green New Deal” boomlet, the land of pure imagination that exists beyond trade-offs, and the likelihood of universal high-speed rail’s getting even through its preliminary litigation stages, let alone built and operating, within ten years.
Many groups on the left, following the example of the right, have been de-emphasizing or even abandoning the old 501(c)(3) format of tax-deductible charitable endeavor in favor of the 501(c)(4) format, which has fewer tax advantages but allows a wider range of frankly political activity.
For some on the progressive side, writes David Pozen, who teaches law at Columbia, this is in part a matter of giving up on the Supreme Court as an engine of far-reaching social change. “The 501(c)(3) form fit snugly into the postwar theory of legal liberalism, in which the federal courts were seen as the key agents of social reform and professionally managed nonprofits as their partners in that effort.” [The Atlantic]
I would add one observation, which is that this shift of focus from strategic litigation to electoral politics and organizing is exactly what many legal conservatives have been urging the left to do for two generations: if you want the law to change, don’t take your case to an unelected caste of elite judges, take it to the people.
The Tax Foundation has published its guide for this year to tax-related ballot initiatives. Among the measures: easier transferability of Prop 13 limited assessment to another home (California), new taxes on business to fund homelessness programs (San Francisco), replace flat with progressive income tax (Colorado), require two-thirds legislative vote for tax hikes (Florida), create taxpayer cause of action against unlawful expenditures (New Hampshire), carbon tax (Washington).
- Critique of political-spending provisions of Sen. Elizabeth Warren’s proposals on corporate governance [Prof. Bainbridge] Plus, some WSJ letters on her plan [same; earlier here, here, and here]
- “The Impact of the Dodd-Frank Act on Small Business” [Michael D. Bordo and John V. Duca, Cato Research Briefs in Economic Policy]
- Something to keep in mind in New York Attorney General races: “The Martin Act Gives New York Politicians Way Too Much National Power” [Jeff Patch, Real Clear Markets, and thanks for quotes]
- Through its Charities Bureau the New York AG’s office can also make life difficult for private nonprofits of whose ideology it disapproves; Democratic nominee Letitia (Tish) James says she intends to use the power to go after crisis pregnancy centers and NRA [Zach Williams, City And State NY]
- Treasury based a list of supposed Russian oligarchs on Forbes mag list of wealthy Russians. Now a 79-year-old laser scientist faces sanctions who’s been a U.S. citizen for 10 years and says he isn’t friendly with Putin [Steven Mufson, Washington Post]
- “Why California’s Gender Quota Bill [for corporate boards] Is More Likely To Be Unconstitutional Than California’s Pseudo-Foreign Corporation Statute” [Keith Paul Bishop, California Corporate & Securities Law (Allen Matkins)]
- “Lawmakers are doing nothing to stop wheelchair ramp scams: businesses” [Julia Marsh and Yoav Gonen, New York Post, earlier on NYC ADA shakedowns]
- Not a flattering picture: inside the politicized office of one state’s (Minnesota’s) attorney general [Rachel M. Cohen, The Intercept, Briana Bierschbach, Minnesota Public Radio, J. Patrick Coolican and Jessie Van Berkel, Minneapolis Star-Tribune (Swanson releases criminal record of aide-turned-critic]
- Remembering when the U.S. went through its first moral panic about plastic guns, in 1986 [Dave Kopel]
- Until 2012, after 60 Minutes did an exposé, “it was perfectly legal for members of Congress to trade on inside information. Not for you, of course. You’d go to jail. But for some strange reason, mystifying to all, that law simply did not apply to Congress.” [Kevin Underhill, Lowering the Bar]
- “Federal Court: Miami Taxi Companies Have ‘No Right To Block Competition’ From Uber” [Nick Sibilla, Forbes]
- “Not even consumer law professors routinely read consumer contracts and disclosures” [Jeff Sovern, CL&P]
With results that are not flattering to the Democratic National Committee in its suit against Russia, the Trump campaign, and sundry others: “There are three groups that use RICO indiscriminately: pro se litigants complaining that the Bureau of Indian Affairs implanted SatNav in their junk, plaintiffs’ attorneys of the sort who go to court in a sports coat they keep in their glove compartment, and professional vexatious litigants. That’s why many federal judges often have standard orders they issue in civil RICO cases that say, in effect, ‘you think you have a valid RICO claim? Fine, answer these 20 complicated questions to help me sort it out.’ Judges don’t do that for other claims. …. DNC, your lawsuit appears to reflect you going all-in on public relations strategy at the expense of effective legal strategy.” [Popehat] More: Mike Masnick, TechDirt: “basically a laundry list of the laws that we regularly talk about (especially about how they’re abused in litigation). Seriously, look at the complaint. There’s a CFAA claim, an SCA claim, a DMCA claim, a “Trade Secrets Act” claim… and everyone’s favorite: a RICO claim.”
Sinclair Broadcasting, currently under fire for having local news talent read a canned script, is itself the product of earlier rounds of anti-media-consolidation rules, and tales of “70 percent market share” tales are sheerest bunk, reports Matt Welch [Reason] On local use of canned scripts, see also the regular Conan feature “Newscasters Agree.”
After the state’s high court ordered files of the politically charged Wisconsin John Doe II investigation destroyed, something else happened instead: “The Guardian published a leaked trove of documents from the John Doe II proceedings, including court filings, draft filings, and selected evidence prepared and kept by only some members of the prosecution team.” A just-unsealed report from the Wisconsin Department of Justice suggests a range of possible illegalities and rights violations, as well as political motivations, in the conduct of the investigators [“Warren Henry,” The Federalist]:
[Th]hree hard drives in particular contained nearly 500,000 unique emails (from Yahoo and Gmail accounts, for example) and other documents (email attachments, for example) totaling millions of pages. The hard drives included transcripts of Google Chat logs between several individuals, most of which were purely personal (and sometimes very private) conversations. GAB [a state agency involved in the investigations] placed a large portion of these emails into several folders entitled, ‘Opposition Research’ or ‘Senate Opposition Research.’
investigators obtained, categorized, and maintained over 150 personal emails between [state] Senator Leah Vukmir and her daughter, including emails containing private medical information and other highly personal information. [WIDoJ] was unable to determine why investigators ever obtained, let alone saved and labeled, over 150 very private and very personal emails between a Senator and her child, or why investigators placed those emails in a folder named ‘Opposition Research.’