- 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]
- “Bad writing does not normally warrant sanctions, but we draw the line at gibberish.” And Judge Sykes had much more to say besides that [Kevin Underhill, Lowering the Bar]
- Man claiming to possess vast trove of secret Jeffrey Epstein data approaches two prominent lawyers. Episode sheds light on “extraordinary, at times deceitful measures” lawyers may employ “in an effort to get evidence that could be used to win lucrative settlements.” [Jessica Silver-Greenberg, Emily Steel, Jacob Bernstein and David Enrich, New York Times]
- “How Cloudflare Stood up to a Patent Troll – and Won” [Alex Krivit, CloudFlare]
- “By enacting government licensing of online speech, the Ending Support for Internet Censorship Act would risk increasing censorship instead of preventing it.” [Diane Katz, Heritage]
- New Charles Blahous paper on where next for gerrymandering reform coincides with many of my own views [Mercatus, Mitch Kokai/Carolina Journal; more to say in a future article] “Roundtable: 3 experts on SCOTUS’ gerrymandering ruling” [Jerrick Adams, Ballotpedia, thanks for including me]
- Changes in American law (torts especially) have trained us to blame those with money when we suffer a harm. Should it be a surprise that the resulting attitudes might spill over into the political system? [Robin Hanson]
* As expected, Democrats took over both houses in the Virginia legislature, sweeping the D.C. and Richmond suburbs where they successfully nationalized the issues. Virginia has been a badly gerrymandered state, which figured as an issue in the campaign. Now that they are fully in charge of the process, Virginia Democrats will need to decide whether they actually believe in moving toward neutral and impartial redistricting methods that take the power of line-drawing out of the hands of interested parties.
* New York City voters overwhelmingly approved a proposal to adopt ranked choice voting (RCV) in primary and some other elections. While I know this isn’t a universally shared view, I see a lot of merit in ranked choice voting and look forward to seeing more large jurisdictions experiment with it.
* Jim Hood, whose doings as Mississippi Attorney General have long furnished grist for this blog, looks to have fallen short in his bid for Mississippi governor.
- Supreme Court should step in to protect freedom of association against California’s push to obtain donor identities for controversial groups [Ilya Shapiro and James Knight on Cato certiorari amicus brief in Americans for Prosperity Foundation v. Becerra, earlier]
- Civil liberties implications pretty dire if taken seriously: “Trump White House Mulls Monitoring the Mentally Ill for Future Violence” [Cato Daily Podcast with Julian Sanchez and Caleb Brown]
- Online platform liability: “all the ignorance about and hostility toward Section 230 of late has been infecting the courts.” Take for example the Ninth Circuit [Cathy Gellis, TechDirt]
- New book (not seen by me) by Bruce Cannon Gibney, The Nonsense Factory: The Making and Breaking of the American Legal System, draws a favorable review from Tyler Cowen and a less favorable one from Mark Pulliam;
- The loophole that lets 3.1 million persons — even millionaires — collect SNAP benefits even though they wouldn’t otherwise meet eligibility standards, and why some state agencies are fine with this [Angela Rachidi and Matt Weidinger, AEI]
- Mark your calendar for Harrisburg, Pennsylvania Nov. 16: I’ll be a featured speaker (as will author Dave Daley) at “Reclaiming Our Democracy: The PA Conference to End Gerrymandering” [Fair Districts PA]
- UK: “British newspapers can legitimately mock parrots and compare them to psychopaths, the press regulator has ruled, after an unsuccessful complaint that the Daily Star misrepresented the emotions of a pet bird.” [Jim Waterson, Guardian]
- Cato scholars regularly crisscross the country talking to students. Book one (maybe me) at your campus this Fall [Cato Policy Report]
- Local-government preemption, single-use plastics, lemonade stands, Sen. Cardin on redistricting: my new post at Free State Notes recounts my experience attending the Maryland Association of Counties summer conference;
- Can a police officer be criminally prosecuted for refusing to risk his life to stop a school shooter? [Eugene Volokh on Marjory Stoneman Douglas High School case]
- I’m quoted on press freakout over new proposed religious liberty regs: “This is a narrowly drawn rule for a minority of federal contractors. It’s really not that radical and not that new.” [Brad Palumbo, Washington Examiner]
- Beware proposals that would transform antitrust law into general bludgeon for avenging all sorts of grievance against big business [Glenn Lammi, WLF]
A constitutional wrong to which there is no remedy? For decades the Supreme Court has held severe partisan gerrymandering to be a violation of equal protection, but for just as long it has proved unwilling to convert that holding into any sort of solid remedy. In last year’s Cato Supreme Court Review I described the resulting situation as the “ghost ship of gerrymandering law,” drifting on as precedent, yet abandoned by a majority crew.
Today in Rucho v. Common Cause and Lamone v. Benisek Chief Justice Roberts as expected recruited the votes of newcomers Neil Gorsuch and Brett Kavanaugh for the position identified with Justices Sandra Day O’Connor and Antonin Scalia that gerrymandering is a political question to which the Constitution provides no judicial remedy.
If partisan gerrymandering is a substantial evil worth fighting – and I believe it is – we should now get serious about finding that remedy through other means….
Alabama readers: I’ll be giving a 11:30 a.m. talk to the Federalist Society chapter in Montgomery this coming Thursday at the Capital City Club in Montgomery, discussing gerrymandering and the cases before the U.S. Supreme Court. Drop by and say hello!
This is only tangentially related to Overlawyered (unless you are a big fan of the posts on redistricting reform and the Supreme Court’s pending Lamone v. Benisek) but one of the projects I’m involved in as a civically active Marylander, the Emergency Commission on Sixth Congressional District Gerrymandering, sent a proposed new Sixth and Eighth District map to Governor Larry Hogan last week, which he promptly introduced as a bill in the legislative term that ends soon. And yesterday, again by a unanimous vote, we approved our final report to send to the governor.
You should also listen to former California Gov. Arnold Schwarzenegger on the subject:
Let’s pump up @GovLarryHogan’s #fairmaps bill, Maryland. Call your representative and tell them you’re sick and tired of gerrymandering and want them to support the bipartisan commission’s map: https://t.co/9eGqRImJox pic.twitter.com/ljA7tfDVTG
— Arnold (@Schwarzenegger) March 29, 2019
More coverage, mixing the Supreme Court case from last week with mentions of our remedial efforts: Samantha Hogan, Frederick News Post (with picture) and earlier, Bruce DePuyt and Robin Bravender, Maryland Matters (also with good pictures), Tamela Baker, Herald-Mail (Hagerstown), Jennifer Barrios, Washington Post, Kimberly Eiten/WJZ, Dominique Maria Bonessi, WAMU.
Also, Nina Totenberg’s approach to Schwarzenegger on the Supreme Court steps became a viral meme and I’m in it:
Walk up to everyone you want to interview the way Nina Totenberg walks up to the Terminator pic.twitter.com/iwruCvPxbg
— Mary E. Harris (@marysdesk) March 27, 2019
The Maryland gerrymander case, back for its third trip to the Supreme Court, was argued March 26. This Federalist Society animated video about the case has me as narrator. Jon Levitan at SCOTUSBlog rounds up commentary on the oral argument. The Brennan Center offers an annotated guide to the amicus briefs.
“Epic can of worms”: a North Carolina judge has ruled that because of racially gerrymandered districts the state’s lawmakers have no legitimate authority to propose amendments to the state’s constitution. The effect is potentially to nullify two amendments that the state’s voters approved in November, one on voter ID and one on capping state income taxes. [Alan Greenblatt, Governing]
But wait: wouldn’t declaring a legislature illegitimate mean nullifying a lot of legislative actions that are pleasing to progressives, such as funding and expanding the public sector in various ways? Conveniently, it seems Wake County Superior Court Judge G. Bryan Collins has not signaled any willingness to strike down decisions made by a simple legislative majority, which would therefore be regarded as legitimate and allowed to stand. Gerrymanders, of course, do have a direct influence on whether a legislature adopts measures subject to simple majority vote, even as they do not have a direct influence on whether voters approve or do not approve a constitutional amendment for which balloting is statewide.
It will be curious to see whether this opinion stands up on appeal, even at the North Carolina Supreme Court, which I understand has issued some strenuously progressive rulings in recent years.