- Protecting Access to Care Act: “House passes medical malpractice bill” [Kimberly Leonard/Washington Examiner, GovTrack, Todd Shryock/Medical Economics, my earlier]
- “FDA’s Gottlieb Hints at a Huge Overhaul of Health Tech Regulations” [Mike Riggs, Reason]
- “Law Review Article on Off-label is On Target” [Stephen McConnell, Drug & Device Law on Conners, “Illuminating the Off-label Fable: How Off-label Promotion May Actually Help Patients”]
- There’s a British website called Stop Suing the NHS, here is a sample post, and here is more about the writer, Susanne Cameron-Blackie;
- Another survey ranks New York worst state for doctors, trial lawyer supremacy in legislature a major reason [Thomas Stebbins, Gotham Gazette]
- Iowa law requires Certificate of Need for freestanding surgical centers. Sweet deal for exempt hospital competitors [Eric Boehm/Reason, Mike Rappaport/Law and Liberty]
Antitrust as CNN leverage
Press accounts suggest that the Trump White House has given thought to using its leverage over the pending AT&T merger to pursue the President’s grievances against CNN, which is owned by merger participant Time Warner. Dangerous, though hardly unprecedented, stuff, I argue in my new post at Cato.
“World’s most dangerous door”
World's most dangerous door discovered at Vauxhall tube.
via @paddyoclery pic.twitter.com/RrR1SFiapE
— Andrew Bloch (@AndrewBloch) June 21, 2017
Spotted at Vauxhall station on the London underground. [Andrew Bloch on Twitter, where there are some funny comments as well]
Martin Redish: “Commercial Speech and the Values of Free Expression”
The Supreme Court has been vigorous over the past 40 years in extending First Amendment protection to truthful commercial speech. Yet the “scholarly community has, with only rare exception, been either grudging or downright hostile to extending constitutional protection to commercial advertising. Most, although not all, scholars believe that protecting commercial speech trivializes what the First Amendment is truly about,” endangers vigorous regulation, “and risks diluting the strong protection traditionally given to more valuable areas of expression.” In this new Cato Institute policy analysis, Martin Redish of Northwestern University School of Law undertakes a defense:
…the question of protecting such speech should not be in doubt. Controversy comes from a failure to recognize how commercial speech furthers the values implicit in the First Amendment’s guarantee of free expression. To show how commercial speech advances free speech values, I adopt a “perspectives framework” for First Amendment theory. First Amendment values are appropriately viewed from four different perspectives: the speaker perspective, the listener perspective, the regulator perspective, and the rationalist perspective. Subsequently I will show how protecting commercial speech advances freedom of speech from each perspective; in contrast, rejecting or reducing constitutional protection for commercial speech contravenes the reasons each perspective values free speech.
Banking and finance roundup
- New Treasury report lambastes CFPB, calls for reforming its powers [Thaya Brook Knight, Alex Spanko/Reverse Mortgage Daily, text of report]
- Very likely headed for Supreme Court: “En banc D.C. Circuit splits over constitutionality of SEC administrative law judges” [Jonathan Adler, Thaya Brook Knight] “One Loss before ALJ Doesn’t Unmake SEC’s Home-Court Advantage” [Stephen Bainbridge, WLF] Earlier here;
- “The case for pruning the shareholder proposal regime” [Stephen Bainbridge]
- Amid feds’ push to cut banking access for cannabis business, PNC Bank closes long-term accounts of advocacy group Marijuana Policy Project [Washington Post]
- “House member launches fintech lending investigation” [Ballard Spahr]
- Overregulation of small banks and credit unions: “Financial Reform Both Parties Can Agree On” [Mark Rambler, Bloomberg]
Decline and fall of the Contracts Clause
George Leef reviews James W. Ely, Jr., book The Contract Clause: A Constitutional History. The clause, part of Article I, prescribes that no state shall pass any law “impairing the obligation of contracts”:
By the end of the Marshall era, the Contract Clause provided a firm defense against legislative interference for rights under public and private contracts. That would be its high-water mark. Soon state and federal courts began to whittle away at it….
The 1934 Supreme Court case of Home Building and Loan v. Blaisdell is often cited as a turning point in the clause’s demotion, but the stripping away of protection against such laws has continued into more modern times.
Thus, state governments now have nearly unlimited power to tamper with contractual obligations and the reliability of a contract depends upon how judges might weigh several vague factors. Where the Founders wanted certainty, we now have a great deal of uncertainty.
Ely concludes by taking us into recent cases where the clause has been resurrected in efforts by public employee unions to prevent legislatures from whittling away any of their promised benefits through efforts to lower budget deficits.
These may sometimes prevent even laws aimed at reducing “unearned” future benefits arising from public-sector work that has not yet been performed. Even as some courts render such benefits provisions constitutionally binding on subsequent legislatures, they show little interest in reviving the clause’s old scope so as to bar legislation that impairs the obligation of existing private contracts.
Media law roundup
- More on broad “right of publicity” bill in New York legislature [Jonathan Peters, Columbia Journalism Review; earlier]
- “Court Orders Man Who Sued News Orgs For Clipping His Facebook Video To Pay Everyone’s Attorney’s Fees” [Timothy Geigner, TechDirt]
- ABC settles “pink slime” defamation lawsuit on undisclosed terms [AP, earlier]
- “Power Line” blogger attends media reception at White House, finds notes subpoenaed by travel ban challengers [Scott Johnson, City Journal]
- “Europe serves as a warning against Sarah Palin and Trump’s libel law crusade” [Tom Rogan, Washington Examiner]
- Litigation consequences of scripted hookups on reality TV: last paragraph is especially surreal [James Callenberger, Vulture]
“Walmart sued after teen steals machete and kills her Uber driver”
Because anti-shoplifting measures should be perfect, and because these days what isn’t reasonably foreseeable? “It is unclear whether Walmart employees and their security staff were aware that the girl had the weapons when she left the store.” [David Kravets, Ars Technica]
Pronoun prescription in Canada
“Few Canadians realize how seriously these statutes infringe upon freedom of speech. The Ontario Human Rights Commission has stated, in the context of equivalent provisions in the Ontario Human Rights Code, that ‘refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity … will likely be discrimination when it takes place in a social area covered by the Code, including employment, housing and services like education.'” [Bruce Pardy, National Post] We noted the New York City Human Rights Commission’s similar guidance last year.
July 5 roundup
- Court order (arising from federal demand for information on three accounts) forbids Facebook “from communicating the existence of the warrants to its users” [Paul Alan Levy]
- “The great intellectual property trade-off”: brief guide to IP by economist Tim Harford [BBC]
- Eye-opening if dogmatic history of how federal government and other institutions connived at residential segregation [David Oshinsky in N.Y. Times reviewing Richard Rothstein’s The Color of Law]
- About those “do not remove under penalty of law” mattress tags [Now I Know]
- What comes after a Congressional Review Act (CRA) repeal of a regulation? [Sam Batkins and Adam White, Cato Regulation magazine]
- Estate tax, DC Metro, bogus search-engine takedown suits, and kudos for a Democrat in my latest Maryland policy roundup [Free State Notes]