Mississippi, along with North Carolina, has preserved the tort of “alienation of affections,” which enables lawsuits by married persons against a spouse’s lover for undermining a marriage. Exercising long-arm jurisdiction, it even allows suits against alleged paramours who have never set foot in Mississippi but (it is claimed) engaged in trysts with a married Mississippian outside the state. In a recent case, however, the Mississippi Supreme Court ruled 7-2 that a woman sued under the law could move to dismiss the case for lack of personal jurisdiction on the grounds that she had no idea her boyfriend resided in Mississippi over the course of a relationship conducted in other states. [Nordness v. Faucheaux via Volokh]
- Natural experiment in greater Dallas area on whether fracking is good for local land values or not [Peter Van Doren, Cato]
- Inclusionary zoning drives up housing costs, allowing greater density would be better way to serve interests of poor [Scott Beyer] “The ‘Plan Bay Area’: Restricting Housing Development Isn’t Reform” [Jonathan Wood and Randal O’Toole, Forbes/Cato]
- “Poorly argued, destructive in intent”: Vatican’s eco-encyclical is old nonsense in green new garb [Andrew Stuttaford, Secular Right]
- “Lion hunters warn U.S. conservation rules could backfire” [Helen Nyambura-Mwaura, Reuters]
- California’s notorious Prop 65: any hope for reform? [Cal Biz Lit, more]
- Citizen suits and consent decrees: in New England, “Conservation Law Foundation wields tremendous power” [Peter Ubertaccio, WGBH]
- “EPA Shifts its Legally Suspect ‘Environmental Justice’ Agenda into Higher Gear” [Glenn Lammi, WLF]
- Breaking: Supreme Court rules 5-4 against EPA on Clean Air Act power plant emissions rule [CNN, Michigan v. EPA, Daniel Fisher, Andrew Grossman]
By cutting off contractual freedom for pre-dispute arbitration agreements in the workplace, trial lawyers and unions in California intend to pave the way for more and bigger class actions [Dave Roberts, Fox and Hounds] More: Coyote (“Here is how you should think about this proposed law: Attorneys are the taxi cartels, and arbitration is Uber. And the incumbents want their competitor banned.”)
In this half-hour Cato podcast, Caleb Brown interviews Roger Pilon and me on yesterday’s decision in Obergefell finding that states are constitutionally obliged to extend marriage to same-sex couples. I touch on some topics of wider interest (no, I don’t think polygamy is next; the Justices write and behave differently when it’s a really big case; the law’s treatment of churches mustn’t depend on whether their theology suits the government’s taste or not). And lots of more specialized points, such as Roberts’ weird demonization of the famed Lochner case in his dissent (“gay marriage and laissez-faire capitalism, peas in a pod!”), what I call Kennedy’s “gin and tonic” method of mixing Due Process with Equal Protection, and a remarkable story by Roger of getting Scalia to admit he doesn’t think the Court was correct when it recognized a constitutional right to send one’s kids to private and religious schools.
P.S. And here’s a video version of the same conversation:
The Jason Kuznicki paper I mention — on how legal practicalities undercut the idea of the government “getting out of marriage” in the sense of not attempting to certify who is married and who not — is here.
More links: Ilya Shapiro reacts at Cato (which had filed an amicus brief on the winning side urging an Equal Protection rationale, written by William Eskridge Jr. of Yale Law, Roger Pilon, Ilya Shapiro, and Trevor Burrus). David Bernstein has a lot to say about the continuity between Obergefell and the pro-individual-rights tradition of jurisprudence overthrown by the New Deal. Among those who approve of the outcome but would send the whole thing back for editing are Timothy Sandefur and Ilya Somin. Evan Bernick (writing before the decision) on the need for strong religious liberty protection. And David Boaz on how libertarians were there long, long before most others caught up. “The Libertarian Party endorsed gay rights with its first platform in 1972.” That’s not a misprint: 1972.
Patents for mobile technology have been receding somewhat from the sky-high values seen earlier amid intense litigation and legal developments may be among the reasons [Ina Fried, Re/Code]:
Over the past couple of years, more patents are being overturned as part of a more extensive post-grant review process at the patent office. Various court rulings have also made it harder to get injunctions on standards-essential patents. Finally, the Supreme Court set new limits in a key case over software patents, known as the Alice decision.
More on Alice v. CLS Bank here.
Patient undergoing sedation for colonoscopy leaves cellphone recording, which picks up a string of insulting remarks made by anesthesiologist and others while he was under. The comments alleged to be defamatory were mostly heard only by other health workers present, so reputational damages are at best uncertain, but a Northern Virginia jury valued the sheer indignity of it all at $500,000. [Washington Post, Orlando Sentinel]
…There’s nothing fair about it. I’ve got a post at Cato about yesterday’s important Supreme Court victory for the Left in which Justice Anthony Kennedy joined the four liberals to hold that current federal law allows housing suits based on “disparate impact” theories. I explain why pundits are being silly when they claim that the Court “saved” the Fair Housing Act or that a contrary ruling would have “gutted” it, and why Samuel Alito and Clarence Thomas were right in their dissents to spotlight the shaky basis of the theory in the statutory text, going back to the original disparate-impact case, Griggs v. Duke Power.
True, Kennedy did throw a sop or two about how courts applying disparate impact need to avoid pressuring actors toward the potentially unconstitutional result of quotas. Although some consider these bits of wording significant, I suspect that will mean about as much as similar sops that the Court has thrown over the years about avoiding quotas in employment and education, i.e., not much. Others, such as Cory Andrews of WLF, point to Kennedy language suggesting (on what statutory basis is not entirely clear) that disparate impact scrutiny might be limited to “artificial, arbitrary, and unnecessary” practices, a narrowness of approach not seen in other disparate-impact contexts. How administrable such a standard might prove, or how much litigation will be needed before it is clarified, is anyone’s guess.
Some further background on Texas Department of Housing and Community Affairs v. Inclusive Communities Project: SCOTUSBlog, Cato’s brief in the case and earlier coverage by Ilya Shapiro and company here and here, and my podcast.
If the National Labor Relations Board (NLRB) succeeds in its aim of holding franchisors legally liable for labor law violations by franchisees, it’s likely to upend the terms on which small and fledgling operators gain access to marketplace opportunities through franchising [Lydia DePillis, Washington Post]
With three decision days remaining — today, tomorrow, and next Monday — Ilya Shapiro outlines the remaining seven cases and their importance, including Texas Dept. of Housing v. Inclusive Communities Project (are defendants liable under “disparate impact” theories in housing discrimination law?) and King v. Burwell (interpreting Congress’s language on Obamacare subsidies).
Update: Both of those cases were decided this morning. In King v. Burwell, the Court broke 6-3 for the administration to uphold the IRS’s rewrite of ObamaCare subsidies. The Court keeps on hand a supply of what one observer called Get Out Of Bad Drafting Free cards, but as Justice Scalia noted in his “SCOTUScare” dissent, awards them only for certain laws. And the housing case was a big win for the left as Justice Anthony Kennedy joined the four liberals to uphold housing suits based on “disparate impact” theories. His opinion throws a sop or two about how disparate impact shouldn’t imply quotas, which I suspect will mean about as much as similar sops the Court has thrown over the years in employment and education, i.e., not much. (P.S. As one reader rightly objects, the problem in Burwell wasn’t so much bad drafting as drafting that failed of its intended coercive effect and therefore needed to be revised if there was to be a Plan B. More on King v. Burwell: Roger Pilon and Ilya Shapiro at Cato)