- “Doctors as Data Entry Clerks for the Government Health Surveillance System” [Jeffrey Singer, Cato]
- “Judge Orders Spine Surgeon to Pay Discovery Fees Over Funding Model” [Greg Land, Daily Report Online (Atlanta); defense lawyer says case “throws a harsh light on the interaction between personal injury lawyers, healthcare providers and litigation funders”]
- What if feds’ enforcement policies on truthful off-label pharmaceutical promotion run aground on First Amendment considerations? [James Beck, Drug and Device Law]
- Chronic pain patients: “Civilian Casualties Continue to Mount in Governments’ War on Opioids” [Jeffrey Singer] Feds’ tightening of opioid scheduling cut refills, but increased number of pills initially prescribed [same] So sinister for psychiatrist to take cash payment and keep night hours in a rented office, or is it? [Ira Stoll]
- Certificate-of-need laws: “North Carolina Doctor Sues to Break Up State-Enforced Medical Cartels” [Christian Britschgi, Reason]
- Law firm of Morgan & Morgan, awarded contingency contract for Kentucky opioid suit, holds fundraiser for Kentucky AG Andy Beshear [Legal NewsLine]
Investigative series: NYC home seizures
Kings County Politics investigates a series of cases in which New York City has seized the properties of Brooklyn homeowners after procedurally or substantively dubious findings of distressed condition or tax/water arrears. In some cases the city then hands the property over to politically connected developers. “Public Advocate Letitia James [has] called for a temporary freeze of the Department of Housing Preservation and Development’s (HPD) Third-Party Transfer (TPT) program” to address the concerns. [Stephen Witt and Kelly Mena, Kings County Politics]
“Ban on putting Shetland in a box on maps comes into force”
Symbolic legislation in the Scottish Parliament with a Monty Python flavor: mapmakers told to incorporate more blue space so as to encourage proper empathy for the challenges of remoteness faced by the Shetland Islands. Please don’t anyone pass on this idea to the elected officials of Hawaii, or the overseas departments of France. [BBC, Lowering the Bar]
O’Connor: “I am no longer able to participate in public life”
Retired Justice Sandra Day O’Connor has released a letter to the public about her declining health. O’Connor is rightly admired for her inspiring life story and unswerving loyalty to the highest civic principles as well as the ideals of the judiciary. Even at this difficult moment of her life, as the letter shows, she is intent on advancing the res publica.
That O’Connor was the swing Justice of her day did not mean that her role on the Court came down to trimming or compromise. Together with fellow Arizonan Rehnquist, no one was more central in the Court’s reinvigoration of federalism, drawing on her record as the only Justice of our era with extensive service in a state legislature. She has led public discussion in the right direction on issues ranging from professional responsibility and race and redistricting to judicial elections.
And as I noted in 2005, if a single jurist deserves our thanks for helping turn back what had seemed like an irresistible trend toward ever more litigiousness in the civil justice system, it is she. “More vocally than any of her present colleagues, Justice O’Connor sounded the alarm against what she’s termed ‘the increasing, and on many levels frightening, overlegalization of everyday life in our country today.'” Her leading role on such issues as due process review of punitive damages reflected that view. For that, as well as for her notice of my work along the way, count me among the grateful.
Free speech roundup
- Repercussions of Supreme Court’s Janus ruling on bar associations’ compulsory extraction of dues from nonmembers [Maxine Bernstein, Oregonian] “State Supreme Court calls a ‘timeout’ for Washington Bar Association to review its rules” [Steve Miletich, Seattle Times] “ABA Model Rule 8.4(g) Cannot Survive the Supreme Court’s Recent Decisions in NIFLA and Matal” [Kim Colby, Federalist Society, earlier on rule banning some types of speech and expression by lawyers on anti-discrimination grounds]
- Pardoned former sheriff Joe Arpaio sues New York Times for libel [Quint Forgey, Politico; Joe Setyon, Reason; over the years]
- When may governments boycott private companies’ output because those companies promote disapproved ideas? [Eugene Volokh, more]
- First Amendment has consistently foiled Donald Trump’s designs against critics’ speech [Jacob Sullum; related, David Henderson] “The culture of free speech has been deteriorating for long enough that politics, sadly and predictably, is catching up.” [Matt Welch] “Threats of violence discourage people from participating in civic life. This is an unusually good opportunity to deter them.” [Conor Friedersdorf during Ford-Kavanaugh episode]
- “Fighting Words and Free Speech” [John Samples] “A New Podcast on Free Speech: Many Victories, Many Struggles” [same on Jacob Mchangama podcast series]
- “U.K. Supreme Court: Baker Doesn’t Have to Place Pro-Gay Marriage Message on Cake” [Dale Carpenter, Peter Tatchell, Lee v. Ashers]
Constitutional law as it shoulda been
In learning to reason impartially about constitutional law, a valuable exercise is to come up with a list of instances in which the best reading of the Constitution cuts *against* your own view of good policy. Ilya Somin goes first, with examples that include near-total Congressional control over foreign trade; too much use of juries; the extreme difficulty of removing a seriously bad President; the near-indelible status of state lines; and an amendment process that is too hard to use.
“Eet eez, how you say — zee dumb law.”
Reuters reports (“French lawmaker proposes bill to outlaw mockery of accents”) that lawmaker Laetitia Avia of Emmanuel Macron’s ruling party intends to introduce a bill adding discrimination based on accent or pronunciation (“glottophobia”) to the list of banned discrimination categories. This came after an exchange between leftist party leader Jean-Luc Mélenchon and journalist Véronique Gaurel, born in Toulouse, in which he appeared to make fun of Gaurel’s southwestern accent and then called for the next question to be in “comprehensible French.”
I thought of researching whether France has enacted other vaguely framed laws aimed at soothing the sensibilities of the Toulouse region. But since there is no way to search for vague laws as a category in themselves, I soon realized that might set me off on — if you will excuse the expression — a Too-Loose-Law Trek.
[cross-posted from Cato at Liberty]
Supreme Court roundup
- “The Supreme Court should…reaffirm that the Constitution’s prohibition against ex post facto lawmaking forbids states from skirting constitutional scrutiny by simply labeling penalties as ‘civil'” [Ilya Shapiro and Nathan Harvey on Cato certiorari brief in Bethea v. North Carolina]
- Interesting: arguments that might work for progressive litigation outcomes in a more conservative Supreme Court [Daniel Hemel, Take Care]
- Notable cert grants: continued viability of Illinois Brick indirect purchaser doctrine [Cory Andrews, WLF on Apple v. Pepper iPhone antitrust litigation] Arbitration returns in two cases on class arbitration [Steptoe on Lamps Plus v. Varella; more, FedSoc with J. Michael Connolly] and delegation of arbitrability [Peter Phillips on Henry Schein Inc. v. Archer and White Sales Inc.] Court will revisit retaliatory-arrest First Amendment issue [Eugene Volokh on Nieves v. Bartlett, last year’s case]
- Gundy v. U.S., on whether Congress can delegate to the Attorney General the range of punishable conduct under the sex offender registry law SORNA, might revive vitality of non-delegation doctrine with far-reaching consequences [Trevor Burrus and Reilly Stephens on Cato brief; Damon Root, Reason; Matthew Cavedon and Jonathan Thomas Skrmetti, Federalist Society; more, FedSoc “Courthouse Steps” before and after, Randolph May, Georgetown/FedSoc panel with Todd Gaziano and Amanda Shanor, moderated by Evan Bernick, for FedSoc’s “Necessary and Proper” podcast] Law authorizing Homeland Security secretary to waive other laws to build border wall delegates too much legislative power to executive branch [Ilya Shapiro on Cato cert amicus on non-delegation doctrine in Animal Legal Defense Fund v. Department of Homeland Security]
- This is really something: argument that maybe it’s unconstitutional to have too conservative a Supreme Court [David Orentlicher, PrawfsBlawg]
- High court should review whether California state commission can force grape growers to pay for industry ads [Ilya Shapiro and Michael Finch on Cato amicus seeking cert in Delano Farms v. California Table Grape Commission]
State AGs for hire on environmental activism
My new Cato post looks at a low-profile program in which a nonprofit backed by former New York City Mayor Michael Bloomberg places lawyers in state attorney generals’ offices, paying their keep, on the condition that they pursue environmental causes. We know much about this and other AG entanglements thanks to two reports by Chris Horner of the Competitive Enterprise Institute (CEI) based on public records requests that had been strenuously resisted by the state AGs. (CEI was itself the target of a notorious subpoena engineered by AG offices.) The New York Post also takes a critical view of the program.
West Virginia’s constitutional crisis
Timothy Sandefur has been tracking (continued) the constitutional crisis unfolding in West Virginia, in which the legislature has impeached all of the Justices on the state’s supreme Court and the courts have struck back with a ruling refusing to recognize the legislature’s authority to impeach under such circumstances.