- SEC in-house administrative law judges are unconstitutional, rules 10th Circuit, creating circuit split [ABA Journal, Jonathan Adler]
- “Dear Sen. Warren: If we care to share our policy views, we’ll let you know. Otherwise MYOB. Signed – 33 firms” [Elizabeth Warren letter demanding to know what financial firms think of delay in Labor Department fiduciary rule, coverage WSJ/MarketWatch]
- New York Gov. Andrew Cuomo’s grab for more regulatory power over financial institutions would erode due process protections [New York Post quoting Mark Calabria]
- “Supreme Court Probes Whether Miami Can Sue Banks Over Foreclosure Crisis” [Daniel Fisher, earlier on Bank of America v. Miami here, etc.] Arnold Kling’s prescriptions for getting the government out of the mortgage market;
- Mini-symposium on the personal benefit standard for insider trading in the recent Supreme Court case of Salman v. U.S. [Bainbridge]
- India’s devastating crackdown on cash [Cato Daily Podcast with Jim Dorn and Caleb Brown]
“‘Hamilton’ Sued Over Show’s Lack of Services for Blind Patrons”
A Denver resident has sued the theater, producer, and general manager of the hit show “Hamilton,” saying it violates the Americans with Disabilities Act for them not to offer audio description services annotating the action of the play for blind audience members. Under new federal rules movie theater chains will need to offer such services by next year; a few Broadway shows do so, including “The Lion King” and “The Book of Mormon,” but their practice is still an exception. [Sara Randazzo, WSJ]
Higher education roundup
- Student claims public college required him to mouth correct views regarding social justice as part of class. Not since Barnette v. West Virginia you don’t [Ilya Shapiro and Devin Watkins on Cato amicus brief in Felkner v. Rhode Island College (“The First Amendment prohibits government actors from compelling private citizens to express views with which they disagree.”)]
- In the mail: KC Johnson and Stuart Taylor, Jr.’s “The Campus Rape Panic: The Attack on Due Process at American Universities” [Encounter Books; review, Robert VerBruggen; plus excerpt; interview with Taylor] “The Title IX Mess: Will It Be Reformed?” [KC Johnson, Minding the Campus]
- Departing Obama administration revises Common Rule on IRB/institutional review board human subjects protection [NEJM, Verrill Dana redline via Michelle Meyer, Zachary Schrag first, second, third posts on implications for social science research]
- Notwithstanding early reports, PEN America report on campus expression mounts “unflinching defense of free speech” [Anthony Fisher, Vox; related, José Cabranes/Washington Post and Orin Kerr]
- U.K.: graduate sues Oxford for negligent teaching, wants £1 million [Lowering the Bar, more links at Paul Caron/TaxProf]
- When should you report classmates to the Syracuse University administration? Suspect behavior includes “avoiding or excluding others,” “telling jokes based on a stereotype,” “posting or commenting on social media related to someone’s identity in a bias matter,” “imitating someone’s cultural norm or practice” [guidelines (from mission statement: “never privatize any wrongful act, no matter how small”) via Robby Soave]
Japan: families sue over failure to warn of volcano eruption
“Twelve people from five families of those killed in the 2014 eruption of Mount Ontake are set to sue the state and the Nagano Prefectural Government, demanding a total of 150 million yen in compensation, it has been learned.” The suit will argue that the Japan Meteorological Agency failed to raise the alert level for the volcano despite an increase in temblors, “partly on the grounds that the temblors were not accompanied by crustal movements.” [Mainichi]
“Every White House lies on at least some issues…”
I’ve got a few thoughts up at Ricochet about the size of the Mall crowd, “alternative facts,” and the encouragement of inaugural crowderism.
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