Hackensack, New Jersey: “A woman delivering plants to a Home Depot store claims the retailer was overrun by rodents and that a mouse jumped on her, leaving her traumatized and with physical injuries.” [Anthony Attrino, N.J. Advance Media]
Cato Constitution Day videos
There goes the rest of your weekend: the videos of Cato’s Constitution Day conference are now online.
I moderated the third panel, on “Property, Religious and Secular,” with Roger Pilon, Vice President for Legal Affairs at Cato; Prof. Rick Garnett, Notre Dame Law School; and Goodwin Procter LLP partner Thomas Hefferon, discussing Murr v. Wisconsin (land and regulatory takings), Trinity Lutheran (state aid to otherwise qualifying church playground, and Miami versus Wells Fargo and Bank America (scope of damages in fair housing mortgage suit).
NYU law professor Philip Hamburger delivered the annual Simon Lecture on “The Administrative Threat To Civil Liberties.”
Full set of videos, including three other panels, here.
Medical roundup
- New Mercatus report on certificate-of-need laws, which operate to suppress competition in health care;
- “Hospitals don’t dispense perfectly safe but expired drugs because that may expose them to regulatory penalties or lawsuits.” [Mike Riggs, Reason]
- California unions push law setting minimum staffing requirements for dialysis centers [L.A. Times]
- Glaxo neither made nor sold the pill he took, jury tells it to pay $3 million anyway [Roni Caryn Rabin, New York Times]
- Maryland and Michigan suits seek to characterize patient falls as non-medical negligence; Kentucky suit aims to avoid medical review panel requirement [Andis Robeznieks, AMA Wire]
- “Ohio Drug Price Initiative Gives Taxpayer Money to Unnecessary Lawyers” [Hans Bader, CEI]
Philly workers’ comp lawyers and their special pharmacy
“Three partners at the [law] firm and its chief financial officer are majority owners of a mail-order pharmacy in the Philadelphia suburbs that has teamed up with a secretive network of doctors that prescribes unproven and exorbitantly priced pain creams to injured workers — some creams costing more than $4,000 per tube…. These sorts of doctor- and lawyer-owned pharmacies are largely unknown outside of the local workers’ comp industry and are not fully understood even within legal and medical communities, because the lawyers and physicians behind them have kept a low profile or sought to conceal their ownership….Clients who click through to the pharmacy’s website are told: ‘Focus on your recovery. Let us handle the fine print.'” [William Bender, Philadelphia Daily News]
Today: watch Cato’s First Amendment conference
I’m on the second panel, “Religious Liberty In the Post-Obama Era,” with Prof. Robin Fretwell Wilson and author John M. Barry, beginning 10:45 a.m. Eastern. Other highlights: luncheon address by Eugene Volokh and panels including Martin Redish, Conor Friedersdorf, Flemming Rose, and Matthew Feeney. Program and stream here (direct link to livestream).
Can the feds force New Jersey to ban sports betting?
A 1992 federal law forbids states to legalize sports betting. The Supreme Court should nix that under its federal-state “anti-commandeering” doctrine: “If the federal government wants to enforce its chosen policy, it must find a way to do so that doesn’t involve having New Jersey do its dirty work.” [Ilya Shapiro and Matthew Larosiere on Cato-joined amicus brief in Christie v. NCAA; Amy Howe; John Brennan, Milwaukee Journal Sentinel; earlier] More: Richard Morrison, CEI.
Puerto Rico recovery after Hurricane Maria: waiving the Jones Act
The 1920 Jones Act confines shipping traffic between US ports to US-flag, US-crew ships. That includes traffic between the mainland and outlying islands. It’s onerous for Puerto Rico in the best of times and now, in the emergency following the devastation of Hurricane Maria, much worse than that.
The Department of Homeland Security waived the Act beginning Sept. 8 in a limited manner for the purpose of allowing oil shipments to reach areas of Texas and Florida hit by Hurricanes Harvey and Irma. Those waivers expired Sept. 22. On Sept. 25 DHS announced that it would not waive the act for Maria and Puerto Rico even for the limited purpose of oil shipments, let alone general relief. DHS says it thinks most relief supplies for Puerto Rico from the U.S. will be sent by barge and it thinks there will be enough U.S.-flag barges available.
My Cato colleague Nicole Kaeding wrote two years ago that due to the Act, “goods coming from the mainland [to Puerto Rico] can’t come on the most cost-competitive vessel. They must go with one of four U.S. shippers operating that route. The limited competition increases costs. Puerto Rico’s shipping costs are twice those of its island neighbors, making items more expensive to purchase on the island. It also limits Puerto Rico’s ability to export its products to the mainland.”
Now the restrictions also mean that, say, a Norwegian- or Liberian-flagged vessel loaded up in Jacksonville or Savannah with relief supplies will not be allowed to unload them in Puerto Rico, no matter how much port capacity may have reopened there.
Rep. Nydia Velasquez (D-N.Y.) has called on President Trump to suspend the operation of the act for a year to reflect the current emergency, and that should be just an opening bid: Congress should move to repeal the law. Easier said than done: the Act, which also greatly drives up costs for Americans in places like Hawaii and Alaska, is tenaciously defended by U.S.-flag shipping interests and associated labor unions. Inertia, and the special interests that grow up around an existing law that protects some livelihoods, are powerful things. Critics of the Act, including Sen. John McCain (R-Ariz.), have made little headway. Trump, on Wednesday, on why he has hesitated: “a lot of people that work in the shipping industry… don’t want the Jones Act lifted.”
See also Amber Phillips/Washington Post “The Fix” (with link to Overlawyered), Nelson Denis, New York Times (“The Law Strangling Puerto Rico”), Henry Grabar/Slate, Michael Tanner/NRO. Marc Scribner/CEI, and this new WSJ editorial (“DHS argues that under U.S. law the agency can’t ask for a waiver unless there’s a national defense threat and there aren’t enough Jones Act-compliant ships to carry goods. That may or may not be a cramped reading of the law by DHS, but the Department of Defense has fewer legal constraints. Defense Secretary Jim Mattis could simply find a Jones Act waiver is ‘necessary in the interest of national defense.’”)
UPDATE: This morning the White House announced a 10-day suspension of the act. A 10-day suspension itself means very little when set alongside the magnitude of the need in Puerto Rico, so let’s hope this is just the prelude to a longer term fix. I did appearances this morning on CBS Streaming and WNYC/WGBH “The Takeaway” to discuss the issue.
September 27 roundup
- Welcome news: U.S. Department of Education withdraws notorious Dear Colleague letter on Title IX and misconduct accusations [Hans Bader, CEI; ABA Journal]
- Kaspersky Lab turns tables, forces E.D. Tex. patent claimant to pay to end case [Joe Mullin, ArsTechnica] Following unanimous SCOTUS ruling easing fee awards for ill-grounded patent litigation, firm told to “pay $1.6 million in attorney’s fees for filing an unwarranted patent lawsuit against a competitor.” [same, Octane Fitness vs. Icon]
- Activist litigation with taxpayer imprimatur: “University Of North Carolina Law School’s Civil Rights Center Closes Following Board Of Governors Vote” [Paul Caron/ TaxProf, Bainbridge, earlier]
- Another positive review for Ben Barton and Stephanos Bibas’s Rebooting Justice [Jeremy Richter, earlier]
- Appeals court rejects constitutional challenge to North Carolina homewrecker tort (“alienation of affection”) [ABA Journal, Eugene Volokh, earlier]
- Social engineering often seen as intrinsically anti-liberty. Rightly so? [Cato Unbound: Jason Kuznicki, Alex Tabarrok and others]
Velcro: don’t say our name
Funny trademark protection video from the people at Velcro, that is to say, Velcro brand hook and loop fasteners.
Free speech roundup
- Internet companies aren’t the government and their actions don’t violate the First Amendment – but if we want a liberal society they should think hard before yanking connectivity from groups they politically despise [John Samples, Cato]
- An argument you may not have heard before: “The neurodiversity case for free speech” [Geoffrey Miller, Quillette]
- Prof. Joel Gora: over past decade “the Roberts Supreme Court may well have been the most speech-protective court in a generation, if not in our history.” [Steve Chapman]
- “Respecting Rights? Measuring the world’s blasphemy laws” [Joelle Fiss and Jocelyn Getgen Kestenbaum, U.S. Commission on International Religious Freedom report via Eugene Volokh]
- Michigan man appeals jury tampering conviction over “fully informed jury” leafleting outside courthouse [Jacob Sullum]
- New law school buzz over proposals to ban “atrocity speech,” seemingly defined to include speech that might touch off future atrocity [David J. Simon, Opinio Juris on Gregory Gordon’s Atrocity Speech Law] Revealingly, author says opposition to idea “is primarily of American origin — owing to a rabid free speech ethos flowing from libertarian impulses” [Gregory Gordon at Opinio Juris]