I’ve got a few thoughts up at Ricochet about the size of the Mall crowd, “alternative facts,” and the encouragement of inaugural crowderism.
Archive for January, 2017
January 25 roundup
- Four views of the Trump conflicts plan [Milan Markovic/Legal Ethics Forum, Prof. Bainbridge, Andrew Grewal series, Max Kennerly, earlier on Morgan Lewis] And the paper that summarizes the views of President’s most vocal critics [Norman Eisen, Richard Painter, and Laurence Tribe, Brookings, earlier on Emoluments Clause]
- Five years after filing, Michigan consumer’s unusual suit against makers of Ryan Gosling movie ‘Drive’ grinds on [Eriq Gardner, Hollywood Reporter]
- A law unto themselves: Indian tribe expulsions and related governance issues can trample member rights [Brooke Jarvis, New York Times Magazine (“The ejection of tribal members is most prevalent in small tribes with casinos on their land”), earlier on Nooksack controversy]
- “The False Promise of ‘Buy American'” [Dan Ikenson, Cato]
- State travel sanctions against other states: a bad idea in themselves, an insult to constitutional comity, and inevitably a 2-way street [Samantha Allen, The Daily Beast]
- Obama HUD’s far-reaching AFFH (Affirmatively Furthering Fair Housing) scheme now being portrayed unconvincingly as just slight extension of earlier law [Vanessa Brown Calder]
Supreme Court roundup
- I’ve written about Antonin Scalia’s role in the late 1970s and early 1980s as editor of Regulation magazine, and more references to his work there came up at several panels during the recent Federalist Society lawyers convention, all worth watching for their own sake: antitrust (with Judges Doug Ginsburg, Frank Easterbrook (mentioning Regulation at 16:00), et al.), administrative law (Eugene Scalia, same, at 4:25+), and statutory interpretation (Paul Clement, same, at 36:15); and see earlier on my question at the telecommunications panel;
- “Can States Forcibly Unionize Small Businesses?” [Ilya Shapiro and Frank Garrison on Cato certiorari petition in Jarvis v. Cuomo, building on Harris v. Quinn line of cases]
- High court will hear new cases on limits of personal jurisdiction [Bristol-Myers Squibb v. Superior Court, Tyrrell v. BNSF Railway Company, earlier on BNSF, and more from Michelle Stilwell, WLF on that case]
- SCOTUS hears oral argument in “Slants” derogatory trademark First Amendment case [Mark McDaniel and Meredith Bragg/Reason, Jacob Sullum, earlier]
- Court accepts case on patent venue that could threaten preferred forum-shopping supremacy of Eastern District of Texas [TC Heartland v. Kraft Foods Group, brief by 56 law and economics professors]
- Now taking senior status, Judge Diarmuid O’Scannlain has ranked among MVPs of federal bench in part through his skill at flagging error by his Ninth Circuit for high court review [Ethan Davis and Daniel Sullivan, National Review]
Overlawyered’s 50,000th comment
Our 50,000th approved comment is this one, by Gitarcarver late yesterday. Thank you to our commenters, both veteran and new, who add greatly to our discussions.
Obama’s limp win rate at SCOTUS
The Obama administration won only 50.5 percent of its cases before the Supreme Court, an unusually low rate historically. The number can be seen as an outlier, or as “part of a trend that started after the Reagan administration, which won 75 percent of the time. Each succeeding president did worse than the last. President George Bush won 70 percent of his cases, President Bill Clinton 63 percent and President George W. Bush 60 percent.” [Adam Liptak, New York Times; earlier here, here, etc.]
Emoluments Clause suit likely to run aground on standing
A fresh-outta-the-gate lawsuit asks the courts to step in to prevent President Donald Trump from violating the Constitution’s Emoluments Clause through his business dealings. So, Josh Blackman asks, what’s its argument for standing under Article III? Basically, it’s that “because CREW is spending time on Trump’s emolument issue, they are not able to do things they would otherwise do.” That’s remarkably weak, even under what’s left of such liberal precedents as Havens Realty Corp. v. Coleman (1982), and unlikely to persuade the courts. The ACLU is biding its time while preparing a stronger eventual case for standing by looking for a hotel or other competitor that can plausibly claim to have lost business because of transactions involving the Trump Organization and foreign states that (it expects to argue) violate the clause. Even if litigants succeed in obtaining standing in some case, they will still face a daunting barrier in the state of the doctrine on justiciability and political questions, which could lead the courts to step back and defer to Congress as the appropriate branch to devise a remedy. Earlier here.
More: Jonathan Adler on Twitter comes to similar conclusions about standing — “It’s as if complaint is just a PR exercise” — and notes that Prof. Erwin Chemerinsky, who backs the new suit, argued earlier that Texas and other states, for lack of injury, had no standing to challenge the Obama administration’s DAPA immigration action. “If no standing because Texas had ‘choice’ not to issue drivers licenses, CREW has a choice not to worry about emoluments.” And from Derek Muller:
I wondered if Chemerinsky's suit v. Trump for an Emoluments Clause violation was justiciable, so I checked his Fed Jur book for answers: pic.twitter.com/xtv87pIQ9I
— Derek T. Muller (@derektmuller) January 22, 2017
I wondered if Tribe's suit v. Trump for an Emoluments Clause violation was justiciable, so I checked his Con Law treatise for answers: pic.twitter.com/wiCN4xW85p
— Derek T. Muller (@derektmuller) January 23, 2017
Food roundup
- Sugar, fat, and the state’s role in nutritional misinformation: Cato Unbound with Gary Taubes and commenters;
- Montreal authorities ban new restaurants in some neighborhoods, which seems to be just fine with owners of some incumbent eateries [Baylen Linnekin]
- Among other ominous trends for the hip-restaurant sector, including customer burnout and advance of food delivery apps, health insurance and wage mandates sure don’t help [Kevin Alexander, Thrillist]
- Latest slack-fill class action alleges there’s too much air in box of Nestle Raisinets [TMZ] Behind wave of class actions over food/beverage labeling, packaging [Jessica Karmasek, Legal NewsLine]
- What could go wrong? Scotland considers joining Ukraine in enacting a legal right to food [Mental Floss]
- Restaurant in Turin, Italy, asks diners to sign waiver before consuming hot-pepper-laden dish [La Stampa, in Italian]
Mandated conservation in your bath, kitchen, and HVAC
Light bulbs are just the start: “Your Shower Is Lame, Your Dishwasher Doesn’t Work, and Your Clothes are Dirty” thanks to mandates from Washington [Jeffrey Tucker, FEE; related, Danielle Paquette/Washington Post on how rash of regulations have affected Carrier and other makers of heating/cooling equipment, and chance to change things under new administration]
Court: Pennsylvania has no common law asset forfeiture
“Under a Pennsylvania court ruling, the state cannot engage in asset forfeiture without an authorizing statute. About time.” My piece this week at Cato.
A new presidential administration
Donald Trump’s inaugural address missed the mark a bit in discussing the oath of office, and would have profited by a mention or two of the Constitution, I argue at Cato at Liberty.
Meanwhile, my colleague Ilya Shapiro has this send-off to the departing president: “Top 10 Ways Obama Violated the Constitution during His Presidency.”