- Maryland: no strict liability when noise from lawful fireworks display causes cows to stampede in nearby barn [Volokh]
- Minimum wage and affordable housing: “Oregon Legislature Repeals Laws of Supply & Demand” [Randal O’Toole, Cato]
- Policy debate on international trade: Donald Trump v. Milton Friedman (more);
- Defense pounces on Garlock trust asbestos revelations [Bates White, Chamber Institute for Legal Reform and more]
- “Seven steps to ensure you become overregulated” include “#1 – Be Successful.” [Mark Jamison, Tech Policy Daily]
- We’ve restored (again) our custom 404 Not Found page, an old favorite that has made various best-of lists;
- Ink colors, flag fringe, lower case: @jjmacnab tweetstorm explores fixations of “sovereign citizen” subculture. Plus: “Oregon Occupier Files ‘Counter-Complaint’ Against Feds and/or Devil” [Lowering the Bar]
Initially, Justice Antonin Scalia supported the doctrine (Auer/Seminole Rock) by which courts defer to administrative agencies in interpreting the scope of their regulations. Toward the end of his life, however, he changed his mind. And in that change lies a lesson about the tension between the dangers of arbitrariness and abdication in the judiciary, and how the Constitution goes about addressing that tension [Evan Bernick; earlier]
Missed this outstanding Jacob Levy post from 2014, you should really read the whole thing but here’s an excerpt:
A lot of people a lot of the time underestimate how burdensome, onerous, and intrusive complicated bureaucratic rules and regulations are. …Politically we associate this kind of talk with business owners and managers complaining about government regulation, and that’s not a class to which academics are (as an overall pattern) especially warmly inclined– but goodness knows that academics understand these dynamics when it comes to the administrative micromanagement of our own professional lives. Time that we should be spending researching or teaching is instead spent asking for permission to do so, by humbly seeking to prove ourselves innocent of all sorts of potential malfeasance. No, I didn’t buy a glass of wine with that grant money. No, I haven’t given an in-class exam during the two weeks before finals. No, my study of Plato does not involve potential harm to human subjects or laboratory animals. No, I haven’t made up publications to include on my CV for my performance review. Yes, here’s the proof in triplicate.
I think this is a case in which our biases between groups we like and groups we don’t is especially strong. We are mainly honest competent adults trying our best to do what we’re supposed to do, and they keep getting in our way with these insulting burdensome rules; they don’t take seriously the cost to our time and energy of having to prove compliance constantly, both by paperwork and by subordination to the administrative officials who monitor all of us in order to detect wrongdoing by a tiny few. You are basically suspect characters to begin with, and if we let you get away with it you’d all be running wild, and the other ways you were going to spend your time we don’t really like anyways, and we’re dubious enough about you that monitoring you closely is a good idea anyway even if some of you aren’t technically violating the rules, and the moral cost of even one of you getting away with this terrible thing is so great that we simply have to prevent it, and anyway what are you complaining about, if you obey the rules like you supposed to, there’s no harm to you.
As I say, read the whole thing, which also includes an analysis of the actual likely effects of a typical venture in legislative posturing, a ban on dispensing food stamps to lottery winners.
“My own anecdote about Justice Scalia is that he once hired me for my dream job because I wouldn’t stop arguing with him.” I set down a few recollections about the great man which are up now at The Daily Beast.
The dream job in question was to help with the editing of Regulation magazine, which in its early years was a project of the American Enterprise Institute (it’s at Cato now). I remember well the magazine’s publication of the classic debate between Antonin Scalia and Richard Epstein on the proper role of the courts in protecting economic liberty, itself based on an “Economic Liberties and the Constitution” conference sponsored by the Cato Institute. By that point Scalia had departed as editor of the magazine and was a judge on the D.C. Circuit, while Epstein continued to teach law at the University of Chicago, where he had been Scalia’s colleague. Scalia begins his piece thus:
I recall from the earliest days of my political awareness Dwight Eisenhower’s demonstrably successful slogan that he was “a conservative in economic affairs, but a liberal in human affairs.” I am sure he meant it to connote nothing more profound than that he represented the best of both Republican and Democratic tradition. But still, that seemed to me a peculiar way to put it — contrasting economic affairs with human affairs as though economics is a science developed for the benefit of dogs or trees; something that has nothing to do with human beings, with their welfare, aspirations, or freedoms.
Archives of Regulation magazine are here. During his editorship (which lasted until 1982), Scalia wrote many pieces both signed and unsigned, and his contributions to the unsigned front part of the magazine can often be identified once you know to look for his distinctive style (often there was one such piece per issue). I was at the magazine from its first 1981 through its last 1985 issue.
More: Earlier here. And I’ve adapted this (with some additional historical material) into a new Cato post, to which Nick Zaiac, Peter Van Doren, and Thomas Firey add a second post analyzing some of Scalia’s signed articles for the magazine during his tenure. I remember that his irreverent cover essay “The Freedom of Information Act Has No Clothes” was the one I most worried some senator would wave about to oppose his confirmation, but nothing of the sort happened. In it he wrote, of FOIA, “It is the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost- Benefit Analysis Ignored.”
- Nice work: how one lawyer cleans up filing piggyback class actions after the Federal Trade Commission and other enforcement agencies cite marketers for violations [Daniel Fisher, Forbes]
- Cites inmate’s 18-year history of frivolous complaints: “Prisoner can’t sue USA Today for not printing gambling odds, Pennsylvania court says” [PennLive]
- Canada’s pioneering cap on regulation could be a model for U.S. [Laura Jones, Mercatus via Tyler Cowen]
- “He had a right to shoot at this drone, and I’m going to dismiss this charge” [Eugene Volokh on Kentucky case noted in July]
- Dear John: Los Angeles may use license-plate readers to go after drivers who enter “wrong” neighborhoods [Brian Doherty]
- Asylum law (which differs in numerous ways from refugee law, among them that it typically addresses claims of persons already here) hasn’t quite solved its own vetting problem [flashback from last year, more]
- Georgia lawyer “sanctioned for ‘deploying boilerplate claims’ and ‘utterly frivolous’ arguments” [ABA Journal]
I somehow missed last year that Nashville’s Gibson Guitar, target of a notoriously militarized regulatory raid by the U.S. government (“When I got there, there were people in SWAT attire that evacuated our entire factory“) has not let the matter be forgotten among its customers. It has launched a product line called the Government Series II Les Paul, which “uses the wood that the Feds ultimately returned to Gibson after the resolution and the investigation was concluded.” (The raid was in service of the surprisingly cronyish and protectionist Lacey Act, which restricts import of various foreign woods.)
From the company’s announcement:
Government Series II Les Paul Great Gibson electric guitars have long been a means of fighting the establishment, so when the powers that be confiscated stocks of tonewoods from the Gibson factory in Nashville—only to return them once there was a resolution and the investigation ended—it was an event worth celebrating. Introducing the Government Series II Les Paul, a striking new guitar from Gibson USA for 2014 that suitably marks this infamous time in Gibson’s history.
Good going, Gibson.
- Judge Kozinski ate a sandwich paid for by the ACLU and the National Law Journal and American Bar Association are totally on it;
- Update: “Ohio court says city can’t use ‘quick-take’ to seize property” [Watchdog, earlier on town of Perrysburg’s effort to seize property in adjoining Middleton Township]
- Regarding the wildly one-sided attacks on arbitration of late, I’ve noticed that the people who call contractually agreed-to arbitration “forced” are usually the same people who don’t call taxation “forced”;
- “‘Underground Regulations’ Violate the Constitution as Much as Headline-Grabbing Executive Actions” [Ilya Shapiro, earlier on subregulatory guidance]
- Reminder: if you’re interested in Maryland policy you should be keeping abreast of my blog Free State Notes;
- Business litigants battle it out, sugar v. corn syrup [L.A. Times]
- Obama just backed ENDA-on-steroids Equality Act [Washington Post, earlier, Scott Shackford/Reason (bill would cover not only employment but “housing, lending, jury duty, and public accommodations” while “massively expand[ing] what the federal government counts as a public accommodation,” thus turning into federal cases what are currently local disputes like the Arlene’s Flowers case)]
- News on legal policy front: Center for Class Action Fairness, founded and run by longtime Overlawyered co-blogger Ted Frank, merging into Competitive Enterprise Institute, Ted and all [CEI]
- Arnold Kling isn’t cheering Brookings Institution’s defenestration of well-known economist Robert Litan at Sen. Elizabeth Warren’s behest. More: Sean Higgins, John Fund;
- Proposed anti-soft-drink laws favored by Michael Bloomberg & Co. have been mostly shot down, but New York Times eager to credit politicians anyway for the drop [more: Jacob Sullum];
- We interrupt the campaign season propaganda-fest with news of an actual issue sighting, on regulatory reform [Ira Stoll, Veronique de Rugy on Jeb Bush plan] After Obama initiative to eliminate red tape, agencies added $14.7 billion in regulatory costs [Sam Batkins, American Action Forum]
- Qualified immunity: “Shooting a 68-Year-Old Who Poses No Threat Violates Clearly Established Law” [Ilya Shapiro, Cato]
- If you’ve read Steve Teles’s article on upward redistribution (as you should), read Michael Greve’s reaction and Ilya Somin‘s too;
- East Texas judge throws out 168 patent cases in one fell swoop [Joe Mullin/ArsTechnica, related on popularity of East Texas among trolls]
Complying with federal regulations costs Vanderbilt University $146 million a year, 11% of its overall expenses, the university estimates [Vanderbilt press release via Prof. Bainbridge]