Like a number of other states, Wisconsin by law requires lawyers to join and pay dues to its state bar, which takes stands on controversial issues. Two earlier SCOTUS cases upheld mandatory bar rules. Has the Janus decision changed that? [Deborah La Fetra, Ilya Shapiro, and Trevor Burrus on Cato certiorari brief in Jarchow v. State Bar of Wisconsin; Alison Frankel, Reuters; Eugene Volokh (in second case seeking certiorari, Fleck v. Wetch, Eighth Circuit rejected challenge to North Dakota dues; and note update that Supreme Court has denied certiorari in that North Dakota case); earlier here (Louisiana challenge), here, here (Texas)]
Police officers in Wisconsin “drew Gerald Mitchell’s blood while he was unconscious—to test his blood alcohol content after a drunk-driving arrest. The state has attempted to excuse the officers by citing an implied-consent statute, which provides that simply driving on state roads constitutes consent to such searches.” Although the right to privacy are not absolute, there are problems with that approach, made worse by a strange Wisconsin Supreme Court opinion extending to highway searches a Fourth Amendment search exception for “pervasively regulated businesses.” [Ilya Shapiro and Patrick Moran on Cato cert amicus brief urging the Supreme Court to review Mitchell v. Wisconsin]
- We’ll pass the bill first, and let the courts tell us later whether it violates the First Amendment. That’s not how it’s supposed to work [my Free State Notes on a Maryland “cyberbullying” bill]
- Local laws requiring government contractors to disclose/disclaim ties to the anti-Israel BDS movement have rightly come under criticism. Will that spill over to a constitutionally dubious new Los Angeles ordinance requiring contractors to disclose ties with an advocacy group devoted to a different issue, the NRA? [Eugene Volokh]
- “Lust on Trial,” new book by Amy Werbel on celebrated vice crusader Anthony Comstock [Kurt Conklin with Alex Joseph, Hue (Fashion Institute of Technology, NYC); podcasts at FIRE with Nico Perrino and ABA Journal with Lee Rawles]
- “The Rushdie affair became a template for global intellectual terrorism” from Paris and Copenhagen to Garland, Tex.; in a different way, it also foreshadowed the far pettier heresy hunts and sanctity trials of callout culture [Jonathan Rauch]
- $250 million libel suits as a fantasy way to own the libs? In real life meanwhile big-ticket libel suits are used to silence conservatives [Competitive Enterprise Institute press release (leading media orgs including RCFP, SPJ, ASNE support rehearing of D.C. court ruling favorable toward Michael Mann defamation action), NR editors, Jack Fowler] “The media’s Covington coverage was appalling, but Nick Sandman’s libel lawsuit is not the answer” [Robby Soave, Irina Manta] Another part of the forest: Justice Clarence Thomas criticizes New York Times v. Sullivan [Will Baude, Cass Sunstein, Ramesh Ponnuru]
- “A new documentary showcased by PBS presents Montana as a success story of campaign finance reform and Wisconsin’s John Doe investigations as a failure.” But “Dark Money” has some omissions [Cato Daily Podcast with Caleb Brown and Steve Klein of the Pillar of Law Institute]
- Social justice education: on the march and coming to a school system near you [Frederick M. Hess and Grant Addison, National Review]
- New wave of institutional reform litigation aims to replace democratic oversight of public schools with governance by courts, lawyers, and NGOs [Dana Goldstein, New York Times]
- Texas Attorney General Ken Paxton, trying to force a student to stand for the Pledge of Allegiance, ignores 75 years of Supreme Court precedent [Scott Shackford] “My Daughter’s Middle School Plans to Teach Her Meek Compliance With Indiscriminate Invasions of Privacy” [Jacob Sullum]
- “The Regressive Effects of Child-Care Regulations: More strenuous requirements raise child-care prices but have little apparent effect on quality” [Ryan Bourne, Regulation and Governing]
- “Denver Schools Stopped ‘Lunch-Shaming’ Kids Whose Parents Didn’t Pay. The Results Were Predictable.” [Hess and Addison]
- Wisconsin public union reform: “A school district’s implementation of Act 10 is associated with an increase in math proficiency on average. The positive impact … is consistent across small town, rural, and suburban school districts.” [Will Flanders and Collin Roth, Wisconsin Institute for Law and Liberty]
- “Look to the Dutch for true educational pluralism” [Charles Glenn, Acton Institute]
By February, clues were in plain sight that the Supreme Court was not inclined to hand down a “big” landmark decision this term on gerrymandering. That was confirmed yesterday when the Court got both cases off its plate without reaching the merits, instead disposing of them for now on issues of standing (Gill v. Whitford, Wisconsin) and timing (Benisek v. Lamone, Maryland). Strikingly, both decisions were unanimous as to result, a clue as to the carefully limited scope of what was decided, and both cases can continue in the courts below with their legal theories mostly intact. “The Court has kicked the issue of partisan gerrymandering down the road. States shouldn’t,” I write in a new Cato commentary on the decisions.
Wisconsin, where dairy producers hold great political sway, maintains a uniquely onerous scheme of butter grading that “has nothing to do with public health or nutrition” but does serve to restrict the sale of butter made in other states, including high-end artisanal butter. Representing Ohio’s Minerva Dairy, the Pacific Legal Foundation has sued to overturn the regulation on Commerce Clause, Due Process, and Equal Protection theories, and Cato has now filed a pun-strewn amicus supporting the due process and equal protection claims [Ilya Shapiro and Matt Larosiere]
“When Congress passed that big spending plan, an anticipated reform to civil forfeiture had been curiously abandoned. Darpana Sheth of the Institute for Justice comments” in this Cato Daily Podcast with Caleb Brown.
On the other hand, there’s this from the state level: “Wisconsin joins Minnesota in signing law saying authorities now have to convict you of a crime before they can take your cash” [Christopher Ingraham, Washington Post/Grand Forks Herald]
Ballotpedia asked me to contribute to a mini-symposium on how the Supreme Court may deal with the partisan gerrymandering cases cases of Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland), and you can read the results here (see also my Cato write-up).
Separately, I’m scheduled to testify in Annapolis on state-level proposals for redistricting reform on Feb. 26 (House of Delegates) and March 1 (Senate). Come up and say hello afterward if you’re there.
- Florida, California, St. Louis, New York asbestos courts, and Philadelphia top this year’s annual ATRA “Judicial Hellholes” list;
- Also getting attention, Louisiana, with legal climate ranked last among US states in business survey thanks in part to car-crash litigation, government-backed suits [Dee Thompson/Louisiana Record, local reform groups Louisiana Lawsuit Abuse Watch and Coalition for Common Sense]
- Survey of last year’s (i.e. 2016’s) civil justice landscape [Andrew C. Cook, Federalist Society]
- “Wheels come off fundamentally dishonest minibus claim” [John Hyde, Law Gazette (U.K.)]
- “Phoney Lawsuits: How To Sue Your Way Out Of College Debt” [John O’Brien, Legal NewsLine/Forbes] Cold calls: insurers and agents wary of TCPA litigation [Cyril Tuohy, InsuranceNewsNet]
- Reform package introduced in Wisconsin legislature includes changes to discovery, class actions, statute of limitations [Emily Zantow, Courthouse News]
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.’