- “California’s Unconstitutional Gender Quotas for Corporate Boards” [Ilya Somin, Stephen Bainbridge, Jerome Woehrle, Ann Althouse]
- Useful tool, or abuse of power? “Leveraging allows regulators to use their gatekeeping authority to secure concessions that they might not be able to achieve otherwise—and to do so quickly and cheaply.” [William Kovacic and David Hyman, Cato Regulation magazine]
- The conflict minerals law fiasco: “between 2010 and 2012, the monthly incidence of battles, looting and violence against civilians strongly increased in the mining areas targeted by Dodd-Frank” [Nik Stoop, Marijke Verpoorten and Peter van der Windt, Washington Post “Monkey Cage”, Dominic Parker, PERC (summarizing two recent studies), my earlier]
- “Return of Bill Lerach: Disbarred attorney consults on case alleging hedge funds mismanaged Kentucky pensions” [ABA Journal]
- “The Politics of Pay: The Unintended Consequences of Regulating Executive Compensation” [Kevin J. Murphy and Michael C. Jensen, Cato Institute Research Briefs in Economic Policy series]
- “Increasingly, our [financial] regulatory structure has been adopting processes that are inconsistent with adherence to the rule of law.” What to do? [Charles Calomiris, Cato Journal]
Acting Director Mick Mulvaney’s memo on the future of the Consumer Financial Protection Board “encapsulates a humility and restraint and respect for rule of law that is often all too lacking in government.” [Ira Stoll, New York Sun]
- Even if troublesome for other reasons, discussion of nominees’ religious beliefs does not violate the Constitution’s Religious Test Clause [my post at Secular Right]
- I’m quoted toward the end of this report: Congress rather than courts likely to get ultimate say on defining “emoluments” [NPR with Peter Overby, audio and related article, earlier]
- Convention of the States? Federalist Society panel video with Thomas Brinkman, Jennifer Brunner, David Forte, Matt Huffman, Larry Obhof, Matthew Byrne [earlier on Article V conventions]
- Supreme Court opened — and should now close — “dual sovereignty” exception to rule against double jeopardy [Ilya Shapiro, Cato]
- Encyclopedia of Libertarianism, 2008, has articles on the U.S. Constitution by David Mayer and on the rule of law by Norman Barry;
- Following big First Amendment win in Slants case Matal v. Tam, feds drop effort to void trademark of Washington Redskins [Ilya Shapiro, Eugene Volokh, earlier]
“I’m not sure who decided that the Democratic critique of U.S. Supreme Court nominee Judge Neil Gorsuch would be that he doesn’t side with the little guy. It’s a truly terrible idea.” Judges should stand up for the law and their interpretation of the correct way for it to develop, rather than ruling consistently with the interests of a particular category of litigant. “…consider the whole point of a rule-of-law system: It establishes rules so that people can be confident in advance of how decisions are made. That creates regularity and predictability. And in the long run, it protects the little guy a lot better than a system rigged to favor one side, because such systems will naturally tend to favor the rich and powerful, not the poor and downtrodden.” So cut it out, interest groups with your stop-Gorsuch campaign [Noah Feldman, Bloomberg View] More: David Harsanyi.
Judge Jeffrey Sutton, writing for a Sixth Circuit panel, reverses a Tax Court ruling in an opinion beginning thus:
Caligula posted the tax laws in such fine print and so high that his subjects could not read them. Suetonius, The Twelve Caesars, bk. 4, para. 41 (Robert Graves, trans., 1957). That’s not a good idea, we can all agree. How can citizens comply with what they can’t see? And how can anyone assess the tax collector’s exercise of power in that setting? The Internal Revenue Code improves matters in one sense, as it is accessible to everyone with the time and patience to pore over its provisions.
In today’s case, however, the Commissioner of the Internal Revenue Service denied relief to a set of taxpayers who complied in full with the printed and accessible words of the tax laws. The Benenson family, to its good fortune, had the time and patience (and money) to understand how a complex set of tax provisions could lower its taxes.
And taking issue with the IRS Commissioner’s decision to disallow the use of two Congressionally approved devices, the Roth IRA and DISC (domestic international sales corporation), in a way said to trigger the so-called substance-over-form doctrine:
Each word of the “substance-over-form doctrine,” at least as the Commissioner has used it here, should give pause. If the government can undo transactions that the terms of the Code expressly authorize, it’s fair to ask what the point of making these terms accessible to the taxpayer and binding on the tax collector is. “Form” is “substance” when it comes to law. The words of law (its form) determine content (its substance). How odd, then, to permit the tax collector to reverse the sequence—to allow him to determine the substance of a law and to make it govern “over” the written form of the law—and to call it a “doctrine” no less.
Even as progressives rediscover the separation of powers and other limitations on executive action these days, many conservatives as quickly forget them [Greg Weiner, Law and Liberty]
Better than law school: Frank Easterbrook, John Harrison, Akhil Amar, and Victoria Nourse on rules versus standards in jurisprudence, with particular attention to the work of Justice Antonin Scalia, who made the subject a particular theme of his. The video is from the Federalist Society National Lawyer’s Convention last weekend, which had a Scalia theme.
“5. Issue More Guidance (and Accept the Consequences) 6. Be Less Capricious and More Transparent in ‘Waiving’ Laws 7. Stop Stealing Money from Congress.” [Adam White (Hoover), Liberty and Law]
- As government’s grip tightens in Turkey, Erdogan begins rounding up journalists [New York Times, Jonathan Turley on aftermath of coup attempt]
- German court fines man $2,480 for comparing state politician’s IQ to that of “a piece of toast” [Deutsche Welle]
- University of Cape Town disinvites free speech hero and Cato fellow Flemming Rose, of Danish cartoons fame, prompting letters of protest from Nadine Strossen, Floyd Abrams, Kenan Malik [John Samples]
- “If it’s perceived by the victim, then it is” — adviser to London police on online insults as hate crime [Express] “Nottinghamshire police to count wolf-whistling in street as a hate crime” [Guardian, quoting three backers and no critics of idea]
- Maybe our state AGs could offer tips on punishing wrongful advocacy: campaigners in UK want to prosecute public figures for fraud in promoting Leave side in Brexit referendum [Business Insider on “Brexit Justice” effort]
- Meanwhile, here: prominent Harvard Law professor says “rule of law” and “First Amendment” are “almost entirely without content” [David Bernstein on views of Mark Tushnet]
“We live in a nation of laws, in the same way people on “Hoarders” live in houses of cat food boxes” — David Burge on Twitter