- In Knick v. Township of Scott, the Supreme Court overturned a precedent that made it hard for property owners to get justice in takings cases. Ilya Somin analyzes the outcome in the new Cato Supreme Court Review [more, earlier]
- But who will build the roads? “U.S. Should Adopt the Nordic Approach to Private Roads” [Giovanna da Silva, Devoe Moore Center Blog]
- One of the defining regulatory controversies of the past two years has been over the effort to reverse the Obama administration’s 2015 Waters of the United States (WOTUS) rule [Jonathan Adler, Cato Regulation magazine via Peter Van Doren] Another court has struck down the Obama rule [Adler]
- “The Public Trust Doctrine: A Brief (and True) History” [James L. Huffman, George Washington Journal of Energy and Environmental Law]
- “On Glyphosate, Who Do You Trust: UCSF Or Everybody Else?” [Alex Berezow, ACSH, earlier]
- “Trophy Hunting and African Development” [Cato podcast with Catherine Semcer and Caleb Brown]
Town won’t let owner build on her lot, says it owes $0.00 for taking
Janice Smyth’s family had paid property taxes for 40 years on a residential-zoned land parcel on Cape Cod, which has been left as the last plot in its neighborhood not residentially developed. But the town of Falmouth has adopted land-use regulations that have left only a 115-square-foot patch of it developable. Massachusetts courts: even if the plot’s valuation fell from $700,000 to $60,000, a decline of more than 90 percent, it’s not a taking since you could still use the land as a park or to walk dogs or for neighbors to buy as a buffer. The dispute might make a suitable vehicle for the Supreme Court to revisit the question of whether an outright confiscation of all uses is required before the Constitution’s requirement of just compensation kicks in [Trevor Burrus on Cato certiorari amicus brief in case of Smyth v. Conservation Commission of Falmouth et al.]
Dehumanizing disagreement on the Bay
Now unpaywalled: my WSJ piece on the San Francisco Board of Supervisors’ resolution branding the National Rifle Association a domestic terrorist organization. Earlier here, here, and here (mayor says resolution will have no effect on contracting)
Discrimination law roundup
- Supreme Court reconvenes for new term and tomorrow will hear cases over whether Title VII ban on sex discrimination extends to sexual orientation and gender identity [SCOTUSBlog symposium with contributors including Richard Epstein, William Eskridge; Will Baude, Volokh Conspiracy; George Will; earlier here, here, here, etc.]
- New York City Commission on Human Rights declares it a violation of anti-discrimination law to use the term “illegal alien” in workplace, rental, or public accommodation contexts “with the intent to demean, humiliate, or offend a person or persons.” Does it complicate matters that both federal law and the U.S. Supreme Court use “illegal alien” as a neutral descriptive? [Hans Bader]
- Minneapolis passes law restricting landlords’ taking into account of tenants’ past criminal histories, evictions, credit scores [Christian Britschgi, Reason]
- Obama-era Equal Employment Opportunity Commission (EEOC) mandated burdensome pay data reporting by employers. Will courts allow a course correction? [Federalist Society teleforum with G. Roger King and James A. Paretti Jr., earlier here and here]
- Professor who directs social justice center at Washington, D.C.’s American University proposes new federal Department of Anti-Racism that would wield ample power to order everyone around along with preclearance authority over all “local, state and federal public policies”; also “no political appointees” [Politico via Amy Alkon; Kelefa Sanneh, The New Yorker with more on work of Prof. Ibram X. Kendi]
- Late in its tenure, Obama administration began warning Fannie Mae that discouraging some of the riskiest mortgages (>43% debt-to-income) “could be seen as a violation of the Fair Housing Act.” Fannie and Freddie “quickly complied” and brought the punch bowl back out [Damian Paletta, Washington Post/MSN]
Scholarship gone right, and wrong
Old, new property law casebooks make for a contrast of doctrine versus indoctrination [Charles Rounds Jr., Martin Center] Former Yale dean Anthony Kronman’s latest book, The Assault on American Excellence, is a pointed critique of trends at elite universities [Caron/TaxProf; I reviewed one of Kronman’s earlier books back when] Shortcomings of present law school model leave dire need for alternatives [Mark Pulliam, Southeast Texas Record] “On the Ethics of Legal Scholarship” [Marquette Law Review symposium with Carissa Byrne Hessick, Paul Horwitz, and others]
In the name of child welfare
Three pending federal bills “call for increasing CPS [Child Protective Services] investigations of minor marks on children… The proposed bills should raise special concerns for families of children with rare medical conditions and disabilities” [Diane Redleaf] Argument: negotiations for kinship care in the shadow of threatened CPS proceedings amount to a parallel, hidden foster care system [Josh Gupta-Kagan, Stanford Law Review via Diane Redleaf] “Why Jailing Parents Who Can’t Pay Child Support Is Questionable Public Policy” [Hans Bader, FEE]
Liability roundup
- Philadelphia Common Pleas Court, long a forum-shopping destination, draws lawyers to sue over cladding after London’s Grenfell Tower fire [David Murrell, Philadelphia magazine]
- Georgia lawprof Elizabeth Chamblee Burch argues in new book that lawyers are enriching themselves at the expense of their clients in mass tort multidistrict litigation [her site; Katheryn Tucker, Fulton County Daily Report; Leigh Beeson, UGA Today, more]
- “Court cases reveal secret litigation networks for trucking accidents” [Aaron Huff, Commercial Carrier Journal]
- U.S. Chamber report on private rights of action and privacy claims by Mark Brennan, Adam Cooke, and Alicia Paller of Hogan Lovells;
- “Is PFAS the next asbestos? Probably not, lawyers say, but it may come close” [Daniel Fisher, Legal NewsLine]
- Uh-oh: “Progressive advocates have recently begun working with legislators in a handful of states to provide a qui tam mechanism for enforcing state statutory rights.” [Myriam Gilles and Gary Friedman, SSRN]
Eensy weensy interstate impact
Is it constitutional for the Endangered Species Act to prohibit a property owner’s act of mistakenly stepping on one of a swarm of tiny spiders when there’s no evidence such an action has any impact on interstate commerce? [Trevor Burrus on Cato amicus brief in Fifth Circuit case of Yearwood v. Department of the Interior on listing of bone cave harvestman spider]
Downfall of the Excuseman
Dear lawyers: you might want to avoid portraying a superhero character in your advertising “if you actually do the thing your character purportedly fights against” such as injuring your clients and then making excuses [Kevin Underhill, Lowering the Bar; Cook County, Ill. judge sentences Jordan Margolis to three years]
October 2 roundup
- Supreme Court should step in to protect freedom of association against California’s push to obtain donor identities for controversial groups [Ilya Shapiro and James Knight on Cato certiorari amicus brief in Americans for Prosperity Foundation v. Becerra, earlier]
- Civil liberties implications pretty dire if taken seriously: “Trump White House Mulls Monitoring the Mentally Ill for Future Violence” [Cato Daily Podcast with Julian Sanchez and Caleb Brown]
- Online platform liability: “all the ignorance about and hostility toward Section 230 of late has been infecting the courts.” Take for example the Ninth Circuit [Cathy Gellis, TechDirt]
- New book (not seen by me) by Bruce Cannon Gibney, The Nonsense Factory: The Making and Breaking of the American Legal System, draws a favorable review from Tyler Cowen and a less favorable one from Mark Pulliam;
- The loophole that lets 3.1 million persons — even millionaires — collect SNAP benefits even though they wouldn’t otherwise meet eligibility standards, and why some state agencies are fine with this [Angela Rachidi and Matt Weidinger, AEI]
- Mark your calendar for Harrisburg, Pennsylvania Nov. 16: I’ll be a featured speaker (as will author Dave Daley) at “Reclaiming Our Democracy: The PA Conference to End Gerrymandering” [Fair Districts PA]