“New York City’s bizarre ordinance bans pistol permit holders from taking their firearms beyond the five boroughs. (The irony seems to be lost on the eminently anti-gun municipality, which one would think wants as many guns to leave as possible). …The Supreme Court will hear oral argument in New York State Rifle & Pistol Association v. City of New York in October, after it returns from its summer break.” [Cato at Liberty blog post by Ilya Shapiro and Matthew Larosiere, and related Cato Daily Podcast with Larosiere and Caleb Brown]
“Fresno, Calif. police seize cash pursuant to a search warrant, give property owners an inventory sheet stating they seized $50k. Allegation: The cops actually seized $276k, stole the difference. Ninth Circuit: It isn’t clearly established that cops can’t steal things they’ve seized with a search warrant, so they get qualified immunity.” [Institute for Justice “Short Circuit” on Jessop v. City of Fresno]
In other news, the Cato Institute together with a dozen other groups has filed an amicus brief urging the Supreme Court to review a divided Tenth Circuit holding that qualified immunity forbids suit against a state caseworker who conducted a warrantless and nonconsensual strip search of a four year old girl at her preschool based on unfounded abuse allegations. My colleague calls the qualified immunity doctrine “an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s, which shields government agents from liability for misconduct – even when they break the law.” [Jay Schweikert, Cato on Doe v. Woodard] More: Federalist Society debate on qualified immunity between Will Baude and Christopher Walker.
- Will the liberal wing’s success at piecing together 5-4 majorities survive Justice Kennedy’s departure? [Kimberly Strawbridge Robinson, Bloomberg] Fundamental restructuring of Supreme Court becomes a popular campaign issue with Democrats, and the dangers in that [Ilya Shapiro, Washington Examiner] More: Gorsuch, Kavanaugh differ often, we can see clearly now [Jonathan Adler and update]
- Federalist Society video on stare decisis with Roger Pilon, and related by Pilon on constitutional stare decisis;
- The high court decides relatively few admiralty/maritime cases but has heard more than one of them this term; one artist’s whimsical illustration [@CourtArtist on Twitter]
- In writing opinions, “the justices should be careful about naming politicians, especially when they name in order to make a point about the political process.” [Josh Blackman, The Atlantic]
- A constitutional right to religious exemptions from otherwise applicable laws? Eugene Volokh still backs Scalia’s logic on that, but it’s looking as if Court’s conservative wing may not. Cleanup in the Lemon aisle: Michael McConnell on Maryland Peace Cross case [Volokh Conspiracy]
- New resource: database of all Supreme Court nomination hearing transcripts that are yet available (with Kavanaugh’s still to come) [Shoshana Weissmann and Anthony Marcum, R Street]
- Next sector for a boom in IP litigation: trade secrets? [Ike Brannon]
- Creating split among federal appeals courts, Seventh Circuit rules auto-erotic asphyxiation falls under insurance policy exclusion for “self-inflicted injury.” [Volokh; Tran v. Minnesota Life Insurance Company] In its commentary, the Institute for Justice is willing to go there: “Will the Supreme Court resolve the split? Don’t hold your breath.”
- “The county has assigned at least four prosecutors to handle the Bellevue cat case” as Miska, the most notorious cat in King County, Washington, lawyers up [KIRO]
- I’m quoted in article on Supreme Court’s agreeing to consider whether 1964 ban on employment discrimination because of sex includes ban on transgender discrimination [Nicole Russell, Washington Examiner]
- Federalist Society podcast on populist antitrust with Babette Boliek, Geoffrey Manne, William Rinehart, Hal Singer, and Joanna Tsai;
- Did a mobile home park violate housing discrimination law by checking applicants’ lawful immigration status? Fourth Circuit ruling threatens to open “disparate-impact” floodgates Supreme Court warned of in earlier case [Ilya Shapiro and Nathan Harvey on Cato cert amicus in Waples Mobile Home Park v. de Reyes]
From my new Cato post:
“Read this section carefully. It requires you to waive your right to a jury trial and arbitrate certain disputes and claims and prohibits class and representative actions or arbitrations.” — from the “Bernie App.” (illustration via @NC_CyberLaw on Twitter).
That’s right. The campaign-ready “Bernie app” released this week requires its users to agree to submit to arbitration in case of dispute, in place of lawsuits and especially class actions. As Ted Frank observes, “Even Bernie Sanders recognizes the importance and value of arbitration in navigating a legal system designed to benefit lawyers over the interests of consumers and businesses.”
Wouldn’t it be nice if the Vermont senator preached what he practiced? Later I bring the discussion around to the Supreme Court’s ruling last week (Lamps Plus v. Varela, earlier here and here) that courts should not read class arbitration mechanisms into arbitration agreements that are silent or ambiguous on the subject. Whole thing here.
My new post at Cato covers the Supreme Court’s decision to resolve three cases in which it is argued that Title VII of the 1964 Civil Rights Act bans private workplace discrimination against gay and transgender employees. I cite a 2017 Seventh Circuit showdown on the question between Judges Richard Posner and Diane Sykes: “These philosophical divides on statutory interpretation — which of course play out every term in lower-profile cases — are likely to be on the Court’s mind next fall.” More: Jared Odessky, On Labor (rounding up commentary).
This term’s win in the Excessive Fines Clause case of Timbs v. Indiana comes as the latest in a series of legal actions waged against governments’ revenue-driven pursuit of law enforcement forfeitures, fines, and fees, and more important battles lie ahead [Scott Bullock and Nick Sibilla, The Atlantic]
Several Democratic candidates for President say they’re interested in adding seats to the U.S. Supreme Court, while others decline to rule out the idea. As historians point out, the number of seats on the Court did fluctuate over part of American history, with four changes between 1807 and 1869. On the other hand, points out Dan McLaughlin, “Directly related to that, we had a Civil War triggered in good part by the Supreme Court’s Dred Scott decision. Let’s not do that again.” [@baseballcrank Twitter thread, earlier on Court-packing] Plus: liberal critics of Court-packing heard from [Ilya Somin and more on the idea’s dangers]
…By requiring makers of components to pay for damages they did not cause in the name of warnings that the U.S. Navy almost certainly would not have heeded, the Court yields to an impulse to round up deep pockets lest a sympathetic set of litigants otherwise go uncompensated….
In his dissent, Gorsuch points out that [the new standard formulated by Justice Brett Kavanaugh for the majority] not only has no evident grounding in existing tort doctrine but is not in fact easy to apply or predict. …
But it seems almost quaint to ask whether a newly announced legal standard can readily be applied and predicted in the context of asbestos law, a sui generis creation in which the courts regularly extract vast sums from defendants on the basis of legal standards assuredly not recognized in law at the time those defendants acted in the 1950s, 1960s, and 1970s. The implications of assigning retrospective liability to actions lawful at the time loom large and disturbing over continuing expansions of liability like the one announced in today’s case.
After nearly a decade of silence, the Supreme Court finally takes another Second Amendment case. And it’s a doozy, on New York’s “eccentric and abusive” ban on gun transport [Ilya Shapiro, Cato, Jacob Sullum (including headline), Dave Kopel (“eccentric and abusive”), Joyce Lee Malcolm on New York State Rifle and Pistol Association Inc. v. City of New York, New York]