- Texans tangle over municipal ordinances requiring preservation of trees on private land [Mindy Fetterman, Huffington Post]
- WOTUS, SCOTUS, and POTUS: “The Supreme Court wrestles again with the Clean Water Act’s due process deficit” [Jonathan Wood, earlier]
- Florida turned land into bird sanctuary without owners’ consent. As compensation it gave them “points.” Takings review needed [Ilya Shapiro and Meggan DeWitt, Cato on Ganson v. City of Marathon and Trevor Burrus’s first official brief] Alas, SCOTUS has denied certiorari on two other property rights cases, 616 Croft Ave. v. City of West Hollywood and Wayside Church v. Van Buren County;
- “How Suburban Parking Requirements Hold Back Downtown” [Nolan Gray, Market Urbanism]
- “Does the Constitution Provide a Substantive Due-Process Right to a Stable Climate System?” [Andrew R. Varcoe, WLF]
- Short Circuit: “Does Texas’ delegation of its eminent domain power to private pipeline companies violate the Due Process Clause? Probably not, according to this Fifth Circuit panel.” [John Ross, Short Circuit, on Boerschig v. Trans-Pecos Pipeline]
Posts Tagged ‘Supreme Court’
Time to revisit the Chevron stretch
A case called Digital Realty Trust v. Somers gives the Supreme Court a chance to rein in a particularly inappropriate use of the Chevron doctrine, under which courts give deference to agencies’ interpretations of law [Ilya Shapiro, Harvard Law Review blog]
The last few years have of course seen renewed attention — academic, judicial, and journalistic — to the question of whether courts have become altogether too deferential to executive agencies. While Chevron deference (and its cousins, Auer and Seminole Rock deference) was originally justified as a necessary tool for preventing courts from unduly meddling in administrative decisionmaking, hasn’t the pendulum swung too far?…
As the Supreme Court explained in Long Island Care at Home, Ltd. v. Coke in 2007, the APA [Administrative Procedure Act] requires an agency conducting notice-and-comment rulemaking to provide the public with “fair notice” of what will be, or might be, included in its final regulation. Yet there was nothing in the [Securities and Exchange Commission’s Notice of Proposed Rulemaking] that would have given any notice to the public that it was going to change whom Dodd-Frank would protect from retaliation.
Just last year, the Court reaffirmed in Encino Motorcars, LLC v. Navarro that procedurally deficient rules that violate the APA do not receive Chevron deference because they lack the “force of law.” The SEC regulation here was procedurally deficient because of the final rule’s fair-notice problem, so it shouldn’t qualify for Chevron.
More on the Somers case and Cato’s amicus brief: Trevor Burrus and Frank Garrison.
Labor and employment roundup
- Will California suit against GrubHub strangle the gig economy? [Cyrus Farivar/ArsTechnica, Megan Rose Dickey/TechCrunch, Jon Steingart/Bloomberg]
- “The War on Work — And How To End It” [Edward Glaeser, City Journal via John Cochrane (“It is interesting that our political class says it wants more Americans to work. Yet there are few activities as hit by disincentives and regulatory barriers than the simple act of paying another person to do something for you.”)
- North Carolina attorney Jonathan Harkavy does an annual Supreme Court employment law roundup of which the latest installment is here;
- Restaurant owner who wrote in favor of higher minimum wage shutters eatery in Oakland’s Fruitvale neighborhood: ““The specifics of the paperwork that restaurants in SF and California have to do are overwhelming….Being an owner-operator is a really taxing job.” [SF Eater, Slate in 2014]
- “Analyzing James Damore’s Employment-Related Claims against Google” [Matthew Bodie/On Labor, one, two, three; related, Suzanne Lucas]
- “New labor code for France?” [Jeff Hirsch, Workplace Prof referencing 2013 article with Sam Estreicher, “Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism“]
Waivers of class actions against employers
The Supreme Court will resolve a circuit court split on whether employment agreements under which workers agree to “arbitrate disputes with their employers individually, rather than bringing class-action lawsuits collectively with their co-workers, are valid….In an unusual twist, the administration will face off against an independent agency of the federal government, the National Labor Relations Board (NLRB).” [Lawrence Hurley and Robert Iafolla, Reuters, earlier here, here, here, and arbitration generally] Monday was oral argument on the trio of Murphy Oil, Ernst & Young, and Epic Systems [Amy Howe, transcript]
Supreme Court and constitutional law roundup
- “The justices tackle partisan gerrymandering again: In Plain English” [Amy Howe, SCOTUSBlog, earlier on Gill v. Whitford here and here] SCOTUS declines to speed up review of Maryland gerrymander, and what that could mean for wider issue [Lyle Denniston]
- Reversal of fortune: firing back on the Hamilton angle in Emoluments Clause fight [Josh Blackman on new filings countering previous Hamilton claims, Prof. Jed Shugerman’s apology, Adam Liptak]
- From Usery to Garcia to commandeering: better for SCOTUS to respect states’ core sovereignty [Nick Dranias, Liberty and Law]
- Cato Unbound roundtable on religious liberty with Ilya Shapiro, David Gans, Robin Fretwell Wilson, and K. Hollyn Hollman; related 2016 conference and new volume from Cato, Deep Commitments; 2016 religious liberty report from U.S. Conference on Civil Rights (note in particular separate statements and rebuttals by commissioners including Gail Heriot);
- Panel on expected trends in federal courts with Republican nominations: Randy Barnett, Richard Epstein, Adam White, James Copland [Manhattan Institute] At 23:35, White refers to Scalia’s 1981 “Regulatory Reform: The Game Has Changed” on how party control change implies playbook change in seeking regulatory reform, while Epstein at 28:00 cites his own exchange with Scalia;
- SCOTUS should apply papers and effects language of Fourth Amendment to protect data records as property [Ilya Shapiro]
Liability roundup
- Multi-district litigation still a Wild West realm: “Lawyers for Civil Justice Urges Reform of MDL Procedures” [request for rulemaking via TortsProf] “Multidistrict Litigation Reform: The Case for Earlier Application of Federal Pleading Standards” [James Beck, WLF]
- Lawyer vs. lawyer: “Philadelphia Injury Firm Sues Morgan & Morgan for False Advertising” [P. J. D’Annunzio, The Legal Intelligencer]
- Trespasser injured climbing electrical tower loses suit against Metro-North railroad and utility [Robert Storace, Connecticut Law Tribune; Daniel Fisher, Legal NewsLine, earlier] “Ohl was walking along the train tracks with earbuds in on March 2”; family now suing CSX [Amanda C. Coyne, Atlanta Journal-Constitution]
- “The U.S. Supreme Court Reins in Discovery Sanctions” [Phil Goldberg and Kathryn Constance, IADC]
- Annual state lawsuit climate survey from U.S. Chamber is out; could be a “wake-up call” for Delaware, assumed to have pro-business courts [Zoe Read, Newsworks]
- Boom in third-party litigation finance continues apace [Longford Capital]
Cato Constitution Day videos
There goes the rest of your weekend: the videos of Cato’s Constitution Day conference are now online.
I moderated the third panel, on “Property, Religious and Secular,” with Roger Pilon, Vice President for Legal Affairs at Cato; Prof. Rick Garnett, Notre Dame Law School; and Goodwin Procter LLP partner Thomas Hefferon, discussing Murr v. Wisconsin (land and regulatory takings), Trinity Lutheran (state aid to otherwise qualifying church playground, and Miami versus Wells Fargo and Bank America (scope of damages in fair housing mortgage suit).
NYU law professor Philip Hamburger delivered the annual Simon Lecture on “The Administrative Threat To Civil Liberties.”
Full set of videos, including three other panels, here.
Can the feds force New Jersey to ban sports betting?
A 1992 federal law forbids states to legalize sports betting. The Supreme Court should nix that under its federal-state “anti-commandeering” doctrine: “If the federal government wants to enforce its chosen policy, it must find a way to do so that doesn’t involve having New Jersey do its dirty work.” [Ilya Shapiro and Matthew Larosiere on Cato-joined amicus brief in Christie v. NCAA; Amy Howe; John Brennan, Milwaukee Journal Sentinel; earlier] More: Richard Morrison, CEI.
Saying it with frosting at SCOTUS
My Cato Institute colleagues (Sept. 6) and the U.S. Department of Justice (Sept. 7) have both weighed in with amicus briefs in the Supreme Court’s fall-term case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, supporting the principle that the First Amendment does not permit Colorado public accommodations law to force independent baker Jack Phillips to create a cake intended for a same-sex wedding in which he does not wish to participate.
Cato’s brief emphasizes the expressive significance of custom cake baking, which involves the creation of a unique work of art with symbolic and emotional elements (more from Ilya Shapiro and David McDonald).
The Department of Justice brief advances a similar argument and also argues that creative expression aside, the law must not force “participation in an expressive event” under First Amendment precedents such as Barnette v. West Virginia Board of Education (public school students may not be compelled to take part in Pledge of Allegiance, flag salutes, or similar ceremonies), absent a more compelling state interest than Colorado has shown here.
Both briefs distinguish custom cake making from other wedding services. Cato notes that some services (wedding photography, custom floral design) share elements of creative expression with custom cake baking, while many other services do not. DoJ says there is no First Amendment problem applying public accommodation law to hall or limo rental or to the sale of off-the-shelf cakes. Where a product is not custom made for a particular client or event, the law is dealing with a sale of goods, not conscripting an expressive service.
Neither Cato’s nor DoJ’s brief is grounded in a free exercise of religion argument, but would apply to refusals to deal whether grounded in religious belief or not. Earlier here and here. More: Erica Goldberg.
Publishing a gun design online = arms export?
Design for using 3-D printing technology to produce a gun is posted on the internet. Feds order it taken down as a violation of arms export laws, because anything posted online can be read overseas and a data file counts as an “export.” Is there a constitutional problem with that? Trevor Burrus and Meggan DeWitt on a new Cato amicus brief. Update January 2018: Supreme Court denies writ of certiorari.