Posts tagged as:

Cato Institute

Last week Cato held its annual Constitution Day celebrating the publication of the new 2013-14 Cato Supreme Court Review, with articles from such contributors as Roger Pilon, David Bernstein, Eric Rassbach, Andrew Pincus, Richard Epstein, and P.J. O’Rourke. They discuss most of the big and a few of the not-so-big cases of the past term, including Hobby Lobby, Canning, Schuette, Bond, McCutcheon, and Harris v. Quinn. The panel above (also available as video and podcast download) looks forward to the upcoming October term; it’s moderated by the review’s editor, Ilya Shapiro, with panelists Michael Carvin, Tom Goldstein, and Richard Wolf. The review concludes with an essay on the same general subject by Miguel Estrada and Ashley Boizelle.

This year, the contents of the review are available for immediate download (although we also encourage buying hard copies, of course.) As I’ve said while singing its praises before, it’s distinguished from conventional law reviews not only by its Madisonian point of view, and by its extreme speediness (published only three or so months after the conclusion of the Court’s last term) but also by its unusual readability and style, pitched to intelligent readers whether or not they are specialists in the law.

{ 0 comments }

Registration is open only until Monday for one of the Cato Institute’s premier annual events, the annual Supreme Court symposium celebrating Constitution Day and the publication of what will be the thirteenth annual Cato Supreme Court Review. The theme of the all-day event is “Past and Prologue,” looking back to the 2013 term and forward to the next, and panelists include Nadine Strossen, Tom Goldstein, Michael Carvin, and Eric Rassbach, as well as familiar Cato names like Roger Pilon, Ilya Shapiro, and Trevor Burrus. The program concludes with the annual B. Kenneth Simon Lecture, this year given by the Hon. Diane Sykes, judge on the Seventh Circuit U.S. Court of Appeals, who will discuss “Judicial Minimalism and Its Limits.” A reception follows. Register here.

July 15 roundup

by Walter Olson on July 15, 2014

  • “Cato Went 10-1 at Supreme Court This Term” [Ilya Shapiro; on merits cases] Yesterday I spoke to a private policy gathering in Annapolis, Md. with a retrospective on the Supreme Court term, especially its lessons for state government. If you’re looking for a speaker on Court issues, I or one of my colleagues at Cato’s Center for Constitutional Studies may fit the bill;
  • “CrossFit Sues ‘Competitor’ For Revealing Its Injury Rates” [DeadSpin]
  • New Jersey court rules for casino in unshuffled baccarat deck case [Elie Mystal/Above the Law, earlier]
  • Family rescued from 1000 miles offshore plans to sue over nonworking satellite cell phone [ABC 10 News]
  • Tartly worded response to third-party-subpoena demand in Sherrod/Breitbart case [attorney Robert Driscoll]
  • Legal academia: Prof. Bainbridge takes on law-and, empirical legal studies crowds [Bainbridge, TaxProf and reactions] George Leef on reforming law schools [Pope Center]
  • “Uber Agrees to End Surge Pricing During NY Emergencies, And Why That Means You’ll Never Find a Ride” [Gary Leff; Peter Van Doren, Cato]

The Supreme Court unanimously ruled this morning in Susan B. Anthony List v. Driehaus that a lower court challenge can proceed against Ohio’s law purporting to ban untruthful campaign speech. [decision, SCOTUSBlog, earlier Overlawyered coverage] The ruling was widely expected: “not a single amicus brief was filed on behalf of the state of Ohio, and even liberal groups conceded that allowing the state to arbitrate truth or falsity in political campaigns was troubling. During oral argument, the Justices seemed profoundly skeptical of the law’s underlying constitutionality.” [MSNBC]

The Court did not decide the First Amendment merits. Its ruling instead turns on the cluster of issues relating to standing: was there injury in fact from the law sufficient to support a challenge even though the original complaint had been dropped? While the two wings of the Court often divide on standing, they united in taking an expansive view this time. Here and there Justice Thomas’s opinion for the 9-0 Court does brush up against the underlying First Amendment problem of the chilling of speech, which will now move front and center as the lower court again takes up the case. A passage of particular interest from pp. 15-16 (footnotes omitted):

As the Ohio Attorney General himself notes, the “practical effect” of the Ohio false statement scheme is “to permit a private complainant . . . to gain a campaign advantage without ever having to prove the falsity of a statement.” “[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election.” Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election.

Here’s the entertaining and hilarious amicus brief (what a concept) filed by my Cato colleagues Trevor Burrus, Ilya Shapiro, and Gabriel Latner on behalf of humorist and Cato fellow P.J. O’Rourke (who explains his involvement; more from Ilya and Trevor). And Ilya has a reaction to the opinion at Cato at Liberty (“Chilling speech is no laughing matter… today was a banner morning for free speech and judicial engagement.”)

Peter Schuck, professor emeritus at Yale Law School, came to Cato in March to discuss his new book Why Government Fails So Often: And How It Can Do Better. Caleb Brown of Cato interviewed him for this Cato podcast.

“…Most companies roll over.” [Tim Lynch, Cato; WSJ; related on Federal Energy Regulatory Commission enforcement]

On this coming Monday, May 19, the Cato Institute is hosting a lunch on the subject of “Mugged by the State: When Regulators and Prosecutors Bully Citizens,” featuring Kevin Gates, Vice President, Powhatan Energy Fund; William Hurwitz, M.D., Pain Treatment Specialist; Lawrence Lewis, Engineer and Building Manager; and William Yeatman, Senior Fellow, Competitive Enterprise Institute; moderated by Tim Lynch, Director, Project on Criminal Justice, Cato Institute. You can watch live online at http://www.cato.org/live.

More: Cato podcast, brothers’ website, Philly.com (with an additional story of a man resisting the Delaware insurance commission after it took over his nightclub insurer). And: WSJ via John Cochrane on another FERC case.

Yesterday Yale Law professor emeritus Peter Schuck visited Cato to discuss his new book, and Arnold Kling commented, with me moderating. More about the book and its arguments is here, and a further note from Kling.

Socialism_Inspectors
I’ve been blogging about a different political poster each day this week at Cato:

* Monday, “Socialism Would Mean Inspectors All Round,” 1929 British Conservative Party poster;

* Tuesday, “Come on, Dad! We’re going to vote Liberal,” 1929 British Liberal Party poster;

* Wednesday, “I Need Smokes,” World War One American poster;

* Thursday, Art Deco Prohibitionist traffic safety poster.

Update: and here’s Friday’s final installment, a contemporary freedom-of-the-press poster from Jordan.

{ 1 comment }

Now online: Wednesday’s Cato Institute event at which Virginia Postrel discussed her new book The Power of Glamour: Persuasion, Longing, and Individual Aspiration with sparkling comments from economist Tyler Cowen and New York Times writer-at-large Sam Tanenhaus. Subtracting considerably from the glamo(u)r factor, I moderated and introduced. More here.

If you missed that fantastic lunch, you’ll really kick yourself if you miss our author lunch next Wednesday with the phenomenal Lenore Skenazy, founder of the Free-Range Kids movement. Click through and register now, while you’re thinking about it.

Tune in Tuesday night as Cato colleagues and I liveblog the State of the Union, or check Twitter at #CatoSOTU.

While you’re at it, do follow me on Twitter at @walterolson and @overlawyered, and at Facebook on both author and blog pages.

A reform proposal floated in a 2010 Cato Institute policy analysis is now becoming a pilot project in one Texas county. More: Greenfield.

{ 1 comment }

So will the federal government pay just compensation? The Supreme Court may decide that question in the pending case of Brandt v. U.S., in which the Cato Institute has filed an amicus brief. [Ilya Shapiro, Cato]

{ 1 comment }

On Thursday I was a panelist at the Federalist Society National Lawyers’ Conference discussing the rapid rise of litigation funding — specifically, well-capitalized firms that advance money to plaintiffs in commercial high-stakes litigation, often in exchange for a share in the proceeds. (A separate wing of the litigation finance business, which was not the panel’s primary focus, advances smallish sums to individual injury plaintiffs at high interest rates in a sort of analogue of payday lending.)

My opening remarks speculate about the future emergence of divorce trolls — excuse me, “marital rights assertion entities” — set up to buy out an ex-spouse’s stake in ongoing matrimonial strife and play it for maximum extraction value. While no one has yet rolled out that kind of business model, note that outside financiers have indeed begun to fund divorce litigation.

More seriously, I went on to argue that the rise of patent trolls and mass tort operations prefigures problems we are likely to see emerge from litigation finance, from the encouragement given to low-value claims to a settlement process skewed by the interests of the funders rather than the original disputants, and suggest that the age-old rules against champerty, maintenance and barratry might owe something to an appreciation of such dangers. A link to the video is here.

More: Check out Roger Pilon’s post on what else Cato people were up to at the Mayflower last week.

{ 4 comments }

  • Now available: 2012-13 edition of the celebrated Cato Supreme Court Review. And full video of Cato’s Constitution Day, at which many of the CSCR authors spoke, is up here;
  • Is a hearing necessary if prosecutors freeze assets needed to pay defense lawyers? Court hears argument in forfeiture, money laundering case Kaley v. U.S. [ABA Journal, Jacob Sullum, Scott Greenfield, Harvey Silverglate]
  • Court grants certiorari in greenhouse-gas case Utility Air Regulatory Group v. EPA [Jonathan Adler, Richard Faulk]
  • Ilya Somin briefly reviews three new books on constitutional law: John McGinnis and Michael Rappaport on originalism, Randall Kennedy on affirmative action, and Clark Neily on judicial engagement [Volokh]
  • General jurisdiction: “Justices Wrestle With Whether California Law Reaches A Mercedes Plant In Argentina” [Daniel Fisher]
  • Home Building & Loan Ass’n v. Blaisdell (1934) eviscerated the Contracts Clause, right? Well, it’s complicated [Gerard Magliocca]
  • Much-noted interview with Justice Scalia [New York mag] Is there a conservative jurisprudence bubble? [Daniel McCarthy] New opera “Scalia/Ginsburg” [Washington Post]
  • “The Fiduciary Foundations of Federal Equal Protection” [Gary Lawson, Guy Seidman, & Robert Natelson, SSRN]

Sociological historian Karl Polanyi, who argued in The Great Transformation that the market economy was a novel and alien mode of human interaction imposed by strong central government and due for obsolescence, has long been a spent force even among most thinkers on the left. So it might have counted as mildly surprising that a writer at the left-leaning think tank Demos picks Polanyi as a champion to send into battle against libertarians (for what it’s worth, Demos now has a whole project, the “Gordon Gamm Initiative,” aimed at finding fault with libertarians; more here from Trevor Burrus). Assigning my Cato colleague Alex Nowrasteh to refute the Polanyi thesis, as Cato’s Libertarianism.org does here, is like sending in a skilled shipbreaker with power tools to remove the stuffing from a scarecrow.

Update: In response to Matt Bruenig, Alex bounces the rubble.

{ 3 comments }

The head of Lavabit — one of two small encrypted email providers that just closed down pre-emptively rather than fight federal government demands — “says he’s been told it’s illegal even to discuss what demand the feds made of him.” [Kashmir Hill/Forbes, more, TechCrunch, Guardian] “Wyden’s constant references to location tracking in this context would be nothing short of bizarre unless he had reason to believe that the governments assurances on this score are misleading, and that there either is or has been some program involving bulk collection of phone records.” [Julian Sanchez, Cato] “The Public-Private Surveillance Partnership” [Bruce Schneier, Bloomberg] “A Guide to What We Now Know About the NSA’s Dragnet Searches of Your Communications” [Brett Max Kaufman, ACLU] The Cato Institute has filed a brief urging the Supreme Court to accept a case challenging the legality of current programs of mass surveillance, in a case filed by the Electronic Privacy Information Center.

More: No right to noisy exit? “Feds Threaten To Arrest Lavabit Founder For Shutting Down His Service” [TechDirt] And now (Sunday): with no charges and no arrest, authorities at Heathrow held and interrogated the partner of journalist Glenn Greenwald (who has exposed the NSA program) for nine hours, exactly as long as they could under Britain’s anti-terror law without pressing a charge. They also confiscated his phone, laptop, USB sticks and other electronic gear. [Guardian, Greenwald, NY Times, Lowering the Bar, Peter Maass/NYT Magazine (filmmaker and Greenwald collaborator Laura Poitras regularly detained and interrogated at airports), Joel Mathis/Philly Mag] But see The Spectator (Miranda “carrying encrypted files from Snowden to Greenwald”).

Sen. Dick Durbin (D-Ill.), a close ally of labor union and trial lawyer interests on Capitol Hill, is sending out hundreds of letters to groups linked to ALEC, the free-market group of state legislators that has occasionally involved itself in other issue areas like criminal and self-defense law, promising to shame those supporters at a public hearing for the notional link to the Trayvon Martin affair. (ALEC backed the passage of some state “stand-your-ground” laws, which as we have grown weary of repeating, did not form the basis for George Zimmerman’s successful claim of self-defense; a new Quinnipiac poll finds that American voters back “Stand Your Ground” laws by a 53-40 margin, so that campaign against these laws has evidently flopped badly)

Mostly these letters were designed to intimidate businesses that might support ALEC, but Durbin also sent one of the browbeating letters to the Cato Institute, which might have been a mistake. As related by colleague Ilya Shapiro:

Earlier this week, we received a letter from Durbin asking two questions (you’ll have to pardon the awkward grammar; this went out to hundreds of groups, so Durbin’s staff apparently had no time for proofing):

Has Cato Institute served as a member of ALEC or provided any funding to ALEC in 2013?

Does Cato Institute support the “stand your ground” legislation that was adopted as a national model and promoted by ALEC?

And, by the way, Durbin wants recipients of his polite inquiry to know, “I plan to convene a hearing of the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights to examine ‘stand your ground’ laws, and I intend to include the responses to my letters in the hearing record. Therefore, please know that your response will be publicly available.”

Well, I’m proud to say that Cato isn’t going along with this charade. Our president John Allison has responded to Durbin with a letter that I’ll quote in its entirety:

Dear Senator Durbin:

Your letter of August 6, 2013 is an obvious effort to intimidate those organizations and individuals who may have been involved in any way with the American Legislative Exchange Council (ALEC).

While Cato is not intimidated because we are a think tank—whose express mission is to speak publicly to influence the climate of ideas—from my experience as a private-sector CEO, I know that business leaders will now hesitate to exercise their constitutional rights for fear of regulatory retribution.

Your letter thus represents a blatant violation of our First Amendment rights to freedom of speech and to petition the government for a redress of grievances. It is a continuation of the trend of the current administration and congressional leaders, such as yourself, to menace those who do not share your political beliefs—as evidenced by the multiple IRS abuses that have recently been exposed.

Your actions are a subtle but powerful form of government coercion.

We would be glad to provide a Cato scholar to testify at your hearing to discuss the unconstitutional abuse of power that your letter symbolizes.

Sincerely,

John Allison

The Wall Street Journal is on the issue today, and so is the Chicago Tribune, reproaching hometown Sen. Durbin for his propensity to “use the power of his high federal office as a cudgel against his enemies.” Incidentally, while Cato takes no official position so far as I know on “Stand Your Ground” laws, I have been active in discussing them: in the Orlando Sentinel, New York Times, Daily Caller, Bloomberg TV, Cato podcast and other places, and in many places here, including discussions of the campaign against ALEC here, here, here, and here (Paul Krugman at his most careless). Do you think I could ask the Senator to shame me by name at the hearing?

P.S. One of the rare occasions when my opinions diverge from Ira Stoll’s.

{ 8 comments }

Mark your calendar to be in Washington, D.C. Sept. 17 for the Cato Institute’s annual Constitution Day. Among the highlights: introductory talks by Cato’s Roger Pilon and Ilya Shapiro, a series of topical panels including many scholars, writers and lawyers oft linked in this space, a preview of next year’s term with star Court-watchers Tom Goldstein (SCOTUSBlog), Marcia Coyle (National Law Journal), and Howard Bashman (How Appealing), and a wrap-up address by Judge David Sentelle on freedom of the press. Full program and registration here.