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Senate

Huge win for justice and good sense: facing a mounting public furor, “The Social Security Administration announced Monday that it will immediately cease efforts to collect on taxpayers’ debts to the government that are more than 10 years old.” [WaPo] Credit goes above all to the Washington Post and its reporter Marc Fisher for exposing the most outrageous features of the IRS’s refund-interception program last week, as recounted in this space; I like to think I helped as well by beating the drum early and repeatedly since then with Cato’s help. Overlawyered’s Facebook post on the subject has been seen by more than 60,000 people and shared more than 700 times in the past few days. (Have you liked us yet?)

The next step should be to establish for the public record how the provision in question got slipped into the farm bill, and at whose behest. Congress’s refusal to be forthcoming on this topic speaks volumes about its lack of a felt sense of responsibility toward the people it represents.

And a theme I’ve been repeating for almost as long as I’ve been writing about law: statutes of limitations developed in civilized legal systems for a reason. They protect us not only from cost, uncertainty, and the misery of legal process, but from injustice of a hundred other kinds, and they protect society itself from spiraling into a legal war of all against all. Stop trying to abolish them!

More: Ed Morrissey, Megan McArdle. And here’s a Cato podcast just out on the subject in which Caleb Brown interviews me on the topic:

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Explainers by Trevor Burrus and William Baude at Forbes and by Nina Totenberg at NPR . “Noel Canning” is a packaging company in Yakima, Wash., not a person like Noel Coward, but confusingly enough is represented by Noel Francisco of Jones Day, who is a person. Coverage of yesterday’s Supreme Court argument from Cato’s Ilya Shapiro, who says the argument went very badly for the administration’s claims of executive power. “At one point during argument, SG Verrilli argued for Schroedinger’s Senate: in session re 20th Am, not in session for Recess Appts Clause.” [@ishapiro] Cato’s brief in the case is here.

Comments from my Cato Institute colleagues Roger Pilon and Ilya Shapiro, as well as CEI’s Hans Bader. A “totally risk-free strategy for Democrats, as long as they are never again in the minority.” [Lowering the Bar] Patterico on the elegant consistency of the New York Times editorial page over the years (it is consistent, once you know to look for the pattern) and an unheeded 2005 prayer (YouTube, auto-plays) from then-Sen. Joseph Biden (D-Del.). And some further observations from Jonathan Adler.

P.S. Further thoughts from Roger Pilon regarding the immediate focal point of the struggle, the three nominations to the D.C. Circuit:

…a second point, too little noted, concerns the implications from there being numerous “judicial emergencies” in the other circuits — vacancies in seriously overworked circuits for which the president hasn’t even named anyone. Judicial emergencies have increased 90 percent since 2006, and the vacancies with nominees have declined from 60 percent to 47 percent. Yet rather than attend to filling those vacancies, Obama and Reid are focused on adding three more judges to the already seriously underworked and overstaffed DC Circuit. That speaks volumes, of course, about what their agenda is. As I wrote yesterday, the DC Circuit’s docket is mostly about challenges to administrative decisions. Judges in such cases have considerable discretion about whether or not to defer to the judgment of those agencies. If you want to rule by executive diktat, as Obama plainly does, you’ll want “your people” on that court, deferring to “your people” at EPA, HHS, OSHA, the FEC, the IRS, and so on down the line. Let the folks out in the country wait a little longer to get justice.

P.P.S. And relatedly from Mickey Kaus:

Regulation is D.C.’s economic substructure, its mode of production, as Marx might say – even more so than legislation. Those big gleaming office buildings aren’t filled with Congressional lobbyists! They’re filled with administrative lawyers. Now, with a full 11 member court stacked to favor Democrats, there will be even more rules to litigate, more counsel to hire, more mansions to house them and restaurants to feed them. Whatever happens in the rest of America, the capital’s economic future is secure.

They should erect a statue of Harry Reid outside the Mazza Gallerie.

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Yesterday, a Senate Judiciary subcommittee chaired by Illinois Democrat Dick Durbin held a hearing on Stand Your Ground laws. My Cato Institute colleague Ilya Shapiro testified (video link here) and I recommend his written testimony, a condensed version of which is also online at National Review.

On the history of these laws in America:

…there’s nothing particularly novel, partisan, or ideological about these laws. All they do is allow people to assert their right to self-defense in certain circumstances without having a so-called “duty to retreat.” The SYG principle has been enshrined in the law of a majority of U.S. states for over 150 years, originating as judge-made common law and eventually being codified by statute.

At present, about 31 states — give or take, depending on how you count — have some type of SYG doctrine, a vast majority of which had it as part of their common law even before legislators took any action. So even if these statutes were repealed tomorrow, SYG would still be the law in most states because of preexisting judicial decisions. And, of course, some states, like California and Virginia, maintain SYG only judicially, without having passed any legislation.

It’s also worth noting that of the 15 states that have passed variations of the law since 2005, the year Florida’s model legislation became law, eight — a majority — had Democratic governors when the laws were enacted. None issued a veto. Democratic governors who signed SYG bills, or otherwise permitted them to become law, include Kathleen Blanco of Louisiana, Jennifer Granholm of Michigan, Brian Schweitzer of Montana, John Lynch of New Hampshire, Brad Henry of Oklahoma, Phil Bredesen of Tennessee, Joe Manchin of West Virginia, and Janet Napolitano of Arizona. The bills in Louisiana and West Virginia passed with Democratic control of both houses in the state legislatures, in 2006 and 2008, respectively. Even Florida’s supposedly controversial law passed the state senate unanimously and split Democrats in the state house. Conversely, many so-called “red states,” or those that have a significant gun culture — such as Arkansas, Missouri, Nebraska, and Wyoming — impose a duty to retreat.

The Supreme Court has noticed the issue as well:

At the Supreme Court, SYG dates back to the 1895 case of Beard v. United States, in which the great Justice John Harlan wrote for a unanimous Court that the victim “was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.”

And Ilya does not allow to pass unremarked the browbeating tactics of subcommittee chairman Dick Durbin (D-Ill.):

Finally, I would be remiss if I didn’t mention before concluding one episode in the leadup to this hearing that has unfortunately contributed to the sensationalism surrounding discussions of SYG laws: Chairman Durbin’s attempt to intimidate businesses and organizations that have had any affiliation with the American Legislative Exchange Council (because ALEC had sponsored model SYG legislation, among other reforms that may not have curried Chairman Durbin’s favor). Chairman Durbin’s letter noted that responses would be included in this hearing’s record, but just to be safe, I’m submitting with this statement both the Chairman’s letter and the response by Cato’s president, John Allison.

Earlier on the Durbin/Allison exchange here. More: WSJ’s Kim Strassel on Durbin’s vendetta against the American Legislative Exchange Council (ALEC); Jacob Sullum on Sybrina Fulton’s testimony.

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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.

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A manufacturer of Greek yogurt “paid $80,000 to Cornerstone Government Affairs to lobby Congress on its behalf, according to federal records.” And now Sen. Chuck Schumer of New York — upstate being a leading center of production for the premium product — has made sure it will be included in federally prescribed school lunches, even in places where local budgets and tastes might not have generated much demand for it. [The Hill; Ira Stoll]

P.S. And plenty of bad GOP behavior on the farm bill too, notes my colleague Mike Tanner.

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May 7 roundup

by Walter Olson on May 7, 2013

  • In quiet retreat from STOCK Act, Congress dispenses with trading transparency for its staff [Prof. Bainbridge]
  • Deep-pocket quest: hotel named as additional defendant in Florida A&M hazing death [Orlando Sentinel, earlier]
  • “Keynes didn’t expect to have kids so he didn’t care about the future” wheeze long predates Niall Ferguson [Kenneth Silber; my new post at IGF, where I've also been posting lately on the topic of adoption]
  • Ten and five (respectively) reasons for a plaintiff’s lawyer to turn down a personal injury case [Eric Turkewitz, Max Kennerly]
  • Setback for man seeking to trademark “Eat More Kale” [AP, earlier]
  • Gawker is now on the UK “Warning: This bag of nuts may contain nuts” case [earlier]
  • Overlawyered’s Twitter feed just passed the 7,000-follower mark, while our Facebook page, which recently stood at 1,000 likes, has now surged to nearly 2,500. Thanks for following and liking, and if you’d like to engage with other parts of Cato on social media, check out this nifty guide by Zach Graves.

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Don’t the New Yorker’s readers deserve a better law analyst than Jeffrey Toobin? In his rant against the Canning decision, notes Ed Whelan, “Toobin asserts that there has never before been a ‘legal challenge’ to the scope of a president’s authority to make recess appointments. Somehow he missed the Eleventh Circuit’s ruling in 2004 — highlighted prominently in the D.C. Circuit opinion — in which liberal law professor Laurence Tribe and others challenged one of President Bush’s recess appointments.” ["Bench Memos"]

P.S. Mike Rappaport on another datum omitted by Toobin amid his fevered charges of judicial partisanship: “Prior to Judge Sentelle’s decision, the only judicial opinion to adopt the same position was written by liberal 11th Circuit Judge Rosemary Barkett, following a brief filed for Ted Kennedy by liberal Marty Lederman.”

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A. “Buried in the middle of the penultimate paragraph.”

Q. “Where, amid a long rant against the D.C. Circuit’s decision striking down most recess appointments by the President (“A Court Upholds Republican Chicanery”), would you expect the Times to concede that the practice of holding pro forma sessions to stymie such appointments was pioneered under Democratic Senate rule as a way of restraining President George W. Bush?

No prizes, as distinct from amusement value, in demonstrating what the New York Times thought of the practice back then.

More on the Canning v. NLRB decision: Trevor Burrus/Cato, massive link roundup at How Appealing, John Elwood, Point of Law roundtable, Michael Fox/Employer’s Lawyer (implications for NLRB), @markcalabria (implications for Richard Cordray CFPB appointment), Michael Greve, Mike Rappaport.

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My colleague John Samples argues for the venerable instrument of Senate obstruction [Philadelphia Inquirer] And some sort of prize should go to Sen. Carl Levin (D-Mich.) who chided “one of the major newspapers in our country” — he probably meant the New York Times — for siding with anti-filibuster Democratic ultras this time around, though it had taken exactly the opposite position when Republicans controlled the Senate. “We’ve got to be consistent.” [Dave Weigel]

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Check out whether they change their position on the filibuster depending on which party controls the Senate. [Barton Hinkle, Richmond Times-Dispatch]

President Obama, along with a number of Senators and longtime ADA advocates, have urged rapid Senate ratification of the United Nations Convention on the Rights of Persons with Disabilities, hailed in some quarters as an “international ADA”. Sen. Jim DeMint and other senators have objected to the super-fast-track proposed ratification schedule, arguing that the measure might affect the rights of homeschooling families caring for disabled children and that, in general, opponents deserve a right to be heard. If Senators take a closer look at the ambitious views of the treaty held by various disabled-rights and international-law advocates — one advocate says it could revolutionize the legal rights of the mentally ill, for example — they might find further reasons for caution. [hearing]

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Hey, EEOC….

by Walter Olson on May 30, 2012

… can we have a heart-to-heart talk about some of what’s wrong with your new guidelines restricting employers from asking about job applicants’ criminal records? [Robin Shea] More: Diane Katz/Heritage, Ted Frank, Federalist Society podcast with Maurice Emsellem, Dominique Ludvikson and Dean Reuter, Brian Wolfman/Public Citizen (favorable to rules). Amy Alkon rounds up several more links, regarding which it should be noted that the EEOC has traditionally conceded an employer’s right to consider an embezzler’s rap sheet when filling a bookkeeping job — but not necessarily an axe-murderer’s rap sheet, since that’s not demonstrably “job-relevant.” Don’t you feel reassured now?

In related news, Roger Clegg reports that the House has passed a provision blocking EEOC enforcement of the guidance, which is encouraging as a preliminary matter; the Senate, however, is very likely to take a different position, and the rider will have no effect if the Senate view prevails. [NRO]

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February 29 roundup

by Walter Olson on February 29, 2012

  • Jackpot justice and New Jersey pharmacies (with both a Whitney Houston and a Ted Frank angle) [Fox, PoL, our Jan. 3 post]
  • New Mexico: “Trial lawyers object to spaceport limits” [Las Cruces Bulletin]
  • Dodd-Frank: too big not to fail [The Economist] Robert Teitelman (The Deal) on new Stephen Bainbridge book Corporate Governance After the Financial Crisis [HuffPo] Securities suits: “trial lawyers probably won’t be able to defend a defective system forever” [WSJ Dealpolitik]
  • Uh-oh: U.K. Labour opposition looks at unleashing U.S.-style class actions [Guardian] “U.K. Moves ‘No Win, No Fee’ Litigation Reforms to 2013″ [Suzi Ring, Legal Week]
  • More on controls on cold medicines as anti-meth measure [Radley Balko, Megan McArdle, Xeni Jardin, earlier here, here, here]
  • Recognizable at a distance: “In Germany, a Limp Domestic Economy Stifled by Regulation” [NY Times]
  • Fewer lawyers in Congress these days [WSJ Law Blog]

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February 24 roundup

by Walter Olson on February 24, 2012

  • Melissa Kite, columnist with Britain’s Spectator, writes about her low-speed car crash and its aftermath [first, second, third, fourth]
  • NYT’s Nocera lauds Keystone pipeline, gets called “global warming denier” [NYTimes] More about foundations’ campaign to throttle Alberta tar sands [Coyote] Regulations mandating insurance “disclosures” provide another way for climate change activists to stir the pot [Insurance and Technology]
  • “Cop spends weeks to trick an 18-year-old into possession and sale of a gram of pot” [Frauenfelder, BB]
  • Federal Circuit model order, pilot program could show way to rein in patent e-discovery [Inside Counsel, Corporate Counsel] December Congressional hearing on discovery costs [Lawyers for Civil Justice]
  • Trial lawyer group working with Senate campaigns in North Dakota, Nevada, Wisconsin, Hawaii [Rob Port via LNL] President of Houston Trial Lawyers Association makes U.S. Senate bid [Chron]
  • Panel selection: “Jury strikes matter” [Ron Miller, Maryland Injury]
  • Law-world summaries/Seventeen syllables long/@legal_haiku (& for a similar treatment of high court cases, check out @SupremeHaiku)

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DealBreaker and Prof. Bainbridge try to clarify what the proposed ban would do, and address fears that it would criminalize stock trading by persons not employed by Congress who learn of impending legislative developments. Related: Jim Copland.

They’re coming up within the next few days, but Prof. Bainbridge warns that the draft legislation circulating from the office of Sen. Kirsten Gillibrand (D-N.Y.) is “bizarre” and “toothless.” Earlier here, here, etc.

More: Gillibrand’s office says the weakness of the proposal was due to an inadvertent drafting error and that it will be given teeth. C-SPAN covers the hearing, the SEC and Sen. Scott Brown make their views known, Todd Henderson and Larry Ribstein take a contrarian position, and Prof. Bainbridge covers the scholarly testimony.

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November 22 roundup

by Walter Olson on November 22, 2011

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