Fifteen professors recently filed a misconduct complaint against Kellyanne Conway with a D.C. bar disciplinary committee over things she has said in support of President Trump. Prominent legal ethicist Steve Lubet argues — and I agree — that this “dangerously misguided” complaint would set a terrible precedent if it somehow succeeded. Last week Paul Alan Levy, the First Amendment lawyer with Public Citizen, came to the same conclusion: bar panels have no business going after people who happen to be lawyers over their political speech. The complaint is an irresponsible stunt, and should be tossed out ASAP. More: Maya Noronha, Fed Soc Blog.
Medical roundup
- States that are best at deploying coercive public health laws are also generally unable to resist meddling of other sorts [Werner Troesken via Vincent Geloso, Notes on Liberty]
- Artificial intelligence in medical practice could help curb defensive medicine — if the law cooperates [Shailin Thomas]
- “How Two Florida Hospitals Used the Power of the State to Stop Another From Being Built” [Eric Boehm, Reason]
- Organ transplants and the right to try [Sally Satel, Volokh/AEI]
- “Stronger malpractice laws may not prevent surgical complications” [Reuters/Fox News]
- State attorney general intervention and drug prices [Marc Kilmer/Maryland Public Policy Institute, Dan Menefee/Maryland Reporter]
Jim Copland: Congress should override NY’s Martin Act
Especially given the role of the Constitution’s Commerce Clause, federalism provides no good reason why successive holders of the office of New York attorney general, through the state’s ultra-broad Martin Act, should regulate national business practices in ways at odds with federal regulation and the wishes of the other 49 states:
national financial markets have been overseen since the Depression by the SEC under federal law. In 1996 Congress enacted the National Securities Improvement Act to exempt nationally traded securities from state registration and review requirements. Congress should go further and pre-empt state securities laws that seek to require disclosures exceeding federal standards or that have looser proof requirements on questions like intent.
[Jim Copland, WSJ ($) via Manhattan Institute; earlier on Martin Act]
POTUS reopens WOTUS
On Tuesday President Trump signed an executive order directing the Environmental Protection Agency to reopen the rulemaking process to reconsider its assertion of jurisdiction during the Obama years over large tracts of land remote from navigable water. “The regulation, known as the Waters of the U.S. rule, broadened the definition of the type of water body that would fall under EPA’s formidable clean water enforcement powers, making everything from streams to ditches and watering holes subject to the EPA’s and Army Corps of Engineers’ oversight.” [Washington Examiner; Jonathan Adler]
Good. This was an outrageous regulatory power grab. If Congress decides that it has some Constitutional authority to seize control over seasonal moist depressions on farmland, it should say so explicitly. And if it does, it might want to prepare to set aside large sums under the Fifth Amendment, which states that “private property [shall not] be taken for public use, without just compensation.”
“At least 32 states have sued to prevent the new regulations from taking effect, and the Sixth Federal Appeals Circuit Court stayed the new rules in October, 2016.” [Ronald Bailey, Reason] When you manage to tick off 32 states badly enough for them to sue, you might have gone out on a limb. More: AP, Jonathan Wood.
…and gerrymandering by race at the Supreme Court
Yesterday, in Bethune-Hill v. Virginia State Board of Elections, the Supreme Court ruled unanimously that a lower court had been too indulgent toward race-based drawing of district lines, a process subject to scrutiny under the Equal Protection Clause. Although the decision makes at most a small difference in the law, I write at Cato that the Court’s relatively unified stand serves as a testament to the far-sightedness of Justice Sandra Day O’Connor, who was roundly excoriated in the New York Times and elsewhere after warning in a landmark 1993 decision that “Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions.” Two more views: Rick Hasen, Richard Pildes. (Also reprinted Newsweek; and see Kimberly Strawbridge Robinson, BNA Bloomberg coverage, thanks for quotes).
Gerrymandering: the political kind…
I wrote the new chapter on redistricting reform in the just-out 8th Edition of Cato’s Handbook for Policymakers. The issue continues to rise in visibility with new federal court rulings on the topic, notably in Wisconsin (Whitford v. Gill), and former President Barack Obama’s announced intention of being active on the topic.
Closer to home for me, the Maryland legislature will again consider Gov. Larry Hogan’s bill to create an independent redistricting commission to replace the state’s current insider-dominated method of drawing Congressional and state legislative district lines. Last month (see above) I joined WAMU radio host Kojo Nnamdi, former Del. Aisha Braveboy and Maryland GOP chair Dirk Haire to discuss the prospects for reform (audio link). Hearings are this Friday in Annapolis and I’ll be there, not wearing my Cato hat but as part of my civic involvement.
March 1 roundup
- Online accessibility demands under the ADA: “Surge in website lawsuits continues” [Retail Law Advisor, background]
- Even with no trade war yet, jitters affect livestock growers through slump in cattle futures [Richard Parker, Dallas News] Federalist Society/American Branch of the International Law Association panel on trade law in Trump era [part of symposium with panels on international law generally, alliances and interventions]
- “There is yet another more level of nerdiness, courtesy of Professor David Noll. Anne Gorsuch signed the rule at issue in Chevron.” [Josh Blackman]
- Stop Settlement Slush Funds Act reintroduced as H.R. 522 and likely again to command majority support in House Judiciary Committee [Rep. Bob Goodlatte, earlier (in face of veto prospect, committee approved bill last term by 18-6 vote), more: Fox News, earlier]
- Did Obama DoJ civil rights chief Vanita Gupta act without lawful authority? [Thomas Berry, Cato Legal Policy Bulletin]
- A second Trump executive order on regulation establishes reform officials within agencies [Brian Knight, Reuters, text, earlier on first order]
Judge “started laughing as soon as he looked at the ticket”
Providence: “Woman Gets a Ticket for Parking Two Seconds Early” [Lowering the Bar]
Constitutional law roundup
- Congress’s enumerated powers don’t extend to making this local bar fight a federal hate crime [Ilya Shapiro on Cato brief in United States v. Metcalf, Eighth Circuit]
- On this point, at least, history’s verdict went with President Andrew Johnson: Congress can’t entrench Cabinet officers if the President no longer wants them to serve [Mental Floss]
- “Video: Ilya Shapiro on judicial abdication and the growth of government” [Acton Institute]
- “Our decision is about the First Amendment, not the Second.” Eleventh Circuit en banc strikes down Florida law restricting doctors’ speech with patients about guns [Eugene Volokh; quote is from Pryor concurrence in Wollschlaeger v. Governor]
- In the mail: paperback reissue of Michael Stokes Paulsen and Luke Paulsen, The Constitution: An Introduction [Basic]
- “Federal Appeals Court Nixes Blanket Drug Screening of State College Students” [Jacob Sullum]
Intellectual diversity at law schools
As I noted in my book Schools for Misrule a few years back, law faculties, especially at elite schools, tilt overwhelmingly leftward on the political spectrum. Last month the Association of American Law Schools turned down a request from conservative and libertarian legal scholars that a task force be set up to look into this issue and that data be released to help identify such patterns if indeed they exist. On Wednesday 28 dissident legal scholars went public with a letter urging a change of course. Here’s Josh Blackman’s post about the letter. Other signatories include Jonathan H. Adler, Randy Barnett, Gail Heriot, James Lindgren, John McGinnis, Nicholas Quinn Rosenkranz, Ilya Somin, Eugene Volokh, and Stephen Ware. More: Randy Barnett; Paul Caron/TaxProf with links.
More: AALS executive director Judith Areen responds.