- Judge Royce Lamberth: EPA “offensively unapologetic” about its failures to comply with FOIA requests [Josh Gerstein/Politico, Washington Post, Courthouse News]
- Cato President and CEO John Allison to Senators Ed Markey (D-Mass.), Barbara Boxer (D-Calif.), and Sheldon Whitehouse (D-R.I.): “Your letter of February 25, 2015 is an obvious attempt to chill research into and funding of public policy projects you don’t like. … you abuse your authority when you attempt to intimidate people who don’t share your political beliefs.” [Patrick Michaels, Cato; earlier Allison rebuff to intimidating tactics by Sen. Dick Durbin (D-Ill.)]
- Smithfield Foods questions plaintiffs’ lawyers’ client recruitment methods in North Carolina farm-nuisance suit [Wilmington Star News]
- “Can Market Urbanism Revive U.S. Cities?” [Scott Beyer]
- Addressing sweetheart don’t-force-us-to-regulate consent decrees: “Sunshine for Regulatory Decrees and Settlements Act” would “require regulatory agencies to give public notice when they learn of a lawsuit that could eventually impose a federal rule” and “[give] outside parties an opportunity to intervene in the court case” [American Action Forum, U.S. Chamber in 2013]
- After nine-year battle, Interior’s Fish and Wildlife Service will let Native American pastor use sacred eagle feathers [WSJ via Becket Fund, Kristina Arriaga, Daily Caller, earlier on eagle feathers and the law here, here, etc.]
- “Yes, Gov. Whitman, states may choose which federal laws to implement” [Jonathan Adler]
Steve Bainbridge has a wish list for reforms to financial and securities law in the new Congress, especially the damaging Dodd-Frank and Sarbanes-Oxley laws. Included: repeal of conflicts minerals disclosure, “say on pay,” and pay ratio disclosure; more leeway for public companies to opt out of various regulatory obligations to shareholders that their own shareholders have not contractually seen fit to impose; and litigation reform.
Meanwhile, my Cato colleague Mark Calabria points out that there “are numerous protectors of the status quo in both major political parties,” which may frustrate the relatively free-market instincts of the responsible committee chairs, Sen. Richard Shelby and Rep. Jeb Hensarling. “But at least financial regulation is unlikely to get any worse.”
Gordon Crovitz reminds us not to underestimate the significance of the episode in which Sen. Harry Reid, at the behest of plaintiff’s lawyers, torpedoed legislation meant to restrain the activity of patent trolls. The technology community, formerly very friendly to Democrats in its politics, began taking more seriously the danger to its interests of a Senate in which Mr. Reid enjoyed a blocking role. [Wall Street Journal]
P.S. David Bernstein at Volokh doesn’t hold back from telling us what he thinks of Sen. Reid’s constant use of the Senate floor to attack private businesspersons and citizens by name.
- I’m quoted by Nicky Woolf of Great Britain’s Guardian on the police militarization angle in Keene, N.H. civil disturbances (also: Van Smith, Baltimore City Paper). Also quoted regarding the ominous move to heavy armaments of Wisconsin prosecutors investigating their political opponents in the dawn-raids “John Doe” proceeding [Watchdog, and second post, earlier] Humor in The New Yorker from Bruce McCall [“Pentagon Cop Aid Hits Snags“] And here’s a previously unlinked Cato panel last month on cop militarization with David Kopel, Mark Lomax, and Cheye Calvo, moderated by Tim Lynch;
- Australia prime minister declares “repeal day” with “bonfire” of regulations [Jeff Bennett and Susan Dudley, Cato Regulation mag; earlier on Minnesota legislative “unsession” to dump outmoded or pointless laws]
- “After dawdling for a year, panel tosses bogus complaint against Judge [Edith] Jones” [@andrewmgrossman on Houston Chronicle via Howard Bashman, Richard Kopf, Tamara Tabo, earlier here, here, and here]
- Making waves: Michelle Boardman review of Margaret Radin book on boilerplate, adhesion contracts, fine print [Harvard Law Review, SSRN]
- Why litigation lobby could cost Democrats Senate majority this year [Tim Carney]
- Online-services companies, better not do business in Maryland since the state has a very special law that one law professor believes sharply restricts your customer research [Masnick/TechDirt]
- Picking Thomas Perez as Attorney General would (or should!) ignite firestorm of opposition. Is that why President’s waiting till after Nov. 4? [Washington Examiner]
- California may lead in number of arrested lawmaker scandals but jealous New York vows to catch up [NYDN]
- Will voters in hotly contested Massachusetts primary remember Martha Coakley’s central role in the Amirault travesty of justice?
- “State of unions: Illinois’ big unionized workforce has become a big campaign issue” [Peoria Journal Star] Teachers’ union top priority: unseat GOP governors [Politico]
- In which I’m quoted saying relatively favorable things about left-leaning New York gubernatorial candidate Zephyr Teachout (though “enjoyed interacting with” is a long way from “would consider voting for”) [Capital New York]
- Meet the trial-lawyer-driven group behind the Rick Perry indictment [Texas Tribune; more of what’s up in Texas]
- Senate incumbents Reid, Pryor, and Durbin and hopeful Bruce Braley among recipients of asbestos law firm money [MCR, Legal NewsLine] Key trial lawyer ally Durbin has slipped in polls [Chicago Sun-Times]
- Montana Democrats’ candidate for U.S. Senate looking a little Wobbly [Lachlan Markay, Free Beacon; A. Barton Hinkle, Richmond Times-Dispatch; #wobblydem]
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!
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.
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.