- Judge orders Kansas Secretary of State Kris Kobach to take CLE lessons as sanction for disclosure and discovery missteps [Lowering the Bar, Jonathan Adler]
- In 7-2 decisions, Supreme Court of Canada finds it “proportionate and reasonable” limitation on religious liberty for Ontario and British Columbia to refuse rights of legal practice to grads of conservative Christian law school which requires students to agree to refrain from sex outside heterosexual marriage [Kathleen Harris, CBC, Caron/TaxProf, Trinity Western University v. Law Society of Upper Canada, Jonathan Kay/Quillette, earlier on Trinity Western]
- “Gratiot County, Mich. officials foreclose on 35-acre parcel worth $100k over unpaid $2k tax debt. They sell the property for $42k and keep $2k to cover the tax bill—and keep the other $40k as well. District court: ‘In some legal precincts that sort of behavior is called theft.’ Motion to dismiss denied.” [John Kenneth Ross, “Short Circuit” on Freed v. Thomas, United States District Court, E.D. Michigan]
- UK: “Obese people should be allowed to turn up for work an hour later, government adviser recommends” [Martin Bagot, Mirror]
- “Law Schools Need a New Governance Model” [Mark Pulliam, and thanks for mention]
- “Until 1950, U.S. Weathermen Were Forbidden From Talking About Tornados” [Cara Giaimo, Atlas Obscura]
Supreme Court upholds travel ban
The Supreme Court yesterday in a 5-4 decision upheld the Trump administration’s travel ban, citing the relevant statute’s extreme deference toward executive branch national security determinations on the entry of persons, as well as the Court’s own historic deference toward executive branch discretion in this area.
The four liberal justices dissented, but did not agree on reasoning. Breyer and Kagan went for a low-key, minimalist fix — keep the injunction in place while ordering additional factfinding about implementation — that might have begun as an effort to craft a narrow decision conservatives would join. Only two Justices, Sotomayor and Ginsburg, went along with the arguments that persuaded the Ninth Circuit judges below.
Both dissents, however, stressed the significance of improper animus / discrimination against religious belief, the same issue championed by the Court’s conservatives in Masterpiece Cakeshop earlier this month.
Legal buffs may be interested in Thomas’s concurrence in which he pronounces universal injunctions “legally and historically dubious.”
Finally, and of interest to all Americans, the Court through its majority opinion officially repudiated Korematsu v. U.S. (1944), the decision in which it once upheld forced wartime internment of Japanese-Americans. Korematsu had never been officially repudiated until today.
The podcast above with Caleb Brown and Ilya Shapiro is at this link. Earlier here and here. Other views: Eugene Volokh, Ilya Somin. More: Roger Pilon.
Schools roundup
- Even as Washington, D.C. saddles child-care providers with new degree requirement, it leaves unenforced some of its certification rules for public school teachers [David Boaz, earlier here, etc.]
- Mayor de Blasio plans to overhaul admission to NYC’s elite high schools. Watch out [Lisa Schiffren, New York Post]
- On the Banks of Plumb Crazy: American Library Association removes Laura Ingalls Wilder’s name from children’s-book award [AP/The Guardian]
- Max Eden investigation of death at a NYC school [The 74 Million] Eden and Seth Barron podcast on school shootings and discipline policy [City Journal]
- “The Transgender Bathroom Wars Continue in State Court” [Gail Heriot]
- Oklahoma, West Virginia, Arizona and on: are teacher uprisings justified? [Neal McCluskey and Caleb Brown]
Pearson pants suit, ten years later
Believe it or not, the case of Judge Roy Pearson and his lost pants, widely covered here and at many other outlets ten years ago, continues to drag on in peripheral legal proceedings. “Disciplinary Counsel began this investigation eleven years and one name change ago,” declares the District of Columbia Board on Professional Responsibility in an opinion rejecting a lesser sanction and ordering a 90-day suspension for the former administrative law judge, who had “sued his dry cleaners for $67 million for allegedly losing his pants.” The court said that although the definition of frivolous litigation in Washington, D.C. practice was so strict that few lawsuits went over the line, Pearson’s did. He had also unreasonably delayed and multiplied proceedings in the disciplinary case itself. [Mike Frisch, Legal Profession Blog; ABA Journal] “Throughout the proceedings,” the board said, Pearson “failed to conduct an objective appraisal of the legal merits of his position. He made, and continues to make, arguments that no reasonable attorney would think had even a faint hope of success on the legal merits.”
Liability roundup
- “Now the Personal Injury Lawyers Have Scooters in Their Sights” [Anousha Sakoui and Edvard Pettersson, Bloomberg]
- Jury orders Rams to pay $12.5 million for Reggie Bush injury [AP/Valley Morning News; St. Louis Post-Dispatch]
- “Lawsuit Against Snapchat Encouraging Speeding Can Proceed” [Eugene Volokh]
- “Art Imitates Life: ‘Billions’ Describes Six-Figure, Part-Time Jobs On Asbestos Trusts” [Daniel Fisher, Legal Newsline/Forbes]
- Lawsuit by insurer State Farm accuses prominent Michigan attorney of maintaining covert ties to medical imaging provider [JC Reindl, Detroit Free Press]
- “California Court Rejects Warranty Claims Where Rats Allegedly Chewed Through Soy-Coated Auto Wiring” [Neal Walters and Casey G. Watkins, Ballard Spahr]
Save the date: adoption and foster care conference at Cato July 19
Details and registration here:
Panelists include Walter Olson, Senior Fellow, Cato Institute, Robert A. Levy Center for Constitutional Studies; Stephanie Barclay, Assistant Professor, J. Reuben Clarke School of Law, Brigham Young University; formerly Legal Counsel, Becket Fund for Religious Liberty; Sarah Warbelow, Legal Director, Human Rights Campaign; Robin Fretwell Wilson, Roger and Stephany Joslin Professor of Law, University of Illinois College of Law; Elizabeth Bartholet, Morris Wasserstein Public Interest Professor of Law, Harvard Law School; Faculty Director, Child Advocacy Program; Margaret Brinig, Fritz Duda Family Chair in Law, Notre Dame School of Law; Mark Montgomery, Professor of Enterprise and Leadership, Grinnell College; coauthor, Saving International Adoption: An Argument from Economics and Personal Experience; Irene Powell, Professor of Economics, Grinnell College; coauthor, Saving International Adoption: An Argument from Economics and Personal Experience; and Ryan Hanlon, Vice President of Education, Research, and Constituent Services, National Council for Adoption.
America has developed its own decentralized and pluralist approach to adoption, with a wide variety of both private and public actors helping match children with the families they need along several paths: adoption of older children in public care, including the foster-to-adopt path; adoption of newborns; and international adoption. But services for children in public care have been swept up in controversy over what if any role is appropriate for religious and other agencies that decline to work with gay parents or that give preference to cobelievers. The rate of international adoption, once hailed as a success, has plunged in recent years. Meanwhile, the domestic foster care system has long been beset by policy challenges.
How can government policy best avoid placing obstacles in the way of finding permanent homes for children? Are there ways to respond to legitimate concerns about international adoption, such as official corruption, that do not simply close down that process? What is the role of pluralism, and can groups with differing objectives and fundamental premises work side by side?
Cato’s half-day conference, featuring keynote speaker Elizabeth Bartholet, a Harvard law professor and noted adoption expert, will air a variety of informed views. Topics will include the conflict between LGBT advocates and some conservative religious agencies over the latter’s participation in state child placement systems; sources and possible solutions of the crisis in international adoption; and the proper role and practical effect of birth mother choice.
“HUD has nearly killed the manufactured homes with their stupid regulations.”
Despite a surge in jobs in some rural states, housing hasn’t caught up, as one traditional method of meeting sudden housing demand there — manufactured housing — has floundered. One reason is the fairly recent enactment of federal regulations, say some locals [Andrew Van Dam, Washington Post/Ogden Standard-Examiner]:
In Nebraska, mobile-home retailers say it’s not just land costs that have lifted prices: It’s now more expensive to stick a mobile home into the ground. In December 2015, the Department of Housing and Urban Development began enforcing strict installation standards in Nebraska and other states that lacked local oversight.
Most notably, new homeowners are forced to spend an estimated $3,000 to $8,000 to lay a footing or foundation that will protect the home from being damaged when the ground underneath shifts as it freezes. The cost isn’t always covered by financing, which makes it unattainable to many buyers. On an entry-level home, installation cost could surpass the down payment.
Nebraska mobile-home retailers say the rules seem overzealous and appear especially cruel because the residents typically don’t own the plot of land into which they’re pouring thousands of dollars. Furthermore, the custom-built foundations aren’t guaranteed to fit the next home to use the lot, and they’ll have to go through the entire, costly process again when they move.
Keeping an overdue appointment with the Appointments Clause
Caleb Brown interviews Trevor Burrus and me for the Cato Daily Podcast on Lucia v. SEC, Thursday’s Supreme Court case on the Appointments Clause and administrative law. Crossing to join with the conservatives, Justice Elena Kagan wrote a narrowly tailored opinion invalidating the method by which the Securities and Exchange Commission had appointed its five administrative law judges at the time of the dispute (it has since fixed its appointment method). The majority opinion carefully sidesteps the issue of how ALJs may properly be removed; Justice Breyer, who largely concurred with the result on separate grounds, explored some of those issues in his opinion. See also Ilya Shapiro on June 21 as “government structure day” at the Supreme Court, and with more on the merits. Related: Federalist Society forum on Michael Rappaport proposal for replacement of ALJs with Article III judges.
Court: police use of cellphone location data generally requires warrant
In Friday’s Carpenter v. United States the Supreme Court by 5-4, with Chief Justice John Roberts writing and joined by the four liberals, held that police collection of cellphone location records covering a period of a week is a search covered by the Fourth Amendment and generally requires a warrant. Orin Kerr has first thoughts. Ilya Shapiro at Cato writes that the Court reaches “the right result for the wrong reason,” in an “artificial muddle” of a decision that carves an exception into the third-party doctrine without the more searching rethinking of search and seizure law that is needed.
More promising, Shapiro says, is Justice Neil Gorsuch’s opinion — which he styles as a dissent, but is a concurrence in all but name — which points the way to rethinking and strengthening Fourth Amendment search and seizure law along first principles of “the people’s right to be secure in their ‘persons, houses, papers, and effects’ based not on privacy expectations but on property rights, contract law, and statutory protections (all of which can certainly be applied in the modern digital age).” The alternative, says Shapiro, will be for the Court to fall back on “reinventing the Fourth Amendment with each technological revolution,” amid new ad hoc exceptions and elaborations. More background at Cato at earlier stages of the case: Matthew Feeney on oral argument, merits brief, certiorari brief.
Supreme Court roundup
A Cato-centric list:
- Supreme Court’s past refusal to enforce plain language of Contracts Clause cries out for review, but in Minnesota life insurance dispute only Gorsuch is up for the task [Roger Pilon, related Cato podcast] More: John McGinnis;
- In Collins v. Virginia, all Justices except Alito agree “that the cops need a warrant to enter your curtilage [area immediately surrounding your home] even if they are doing so to search a vehicle parked there.” [Kevin Underhill, Lowering the Bar, earlier here and here]
- SCOTUS agrees 8-1 that arrest can constitute First Amendment retaliation even if also backed by probable cause, a position urged by Cato in its brief [Lozman v. City of Riviera Beach; Heidi Kitrosser, SCOTUSBlog]
- Audio: I join Yuripzy Morgan on her WBAL radio show to discuss Husted v. A. Philip Randolph Institute, recent case on Ohio’s maintenance of voter rolls;
- Last winter I observed that neither wing of the Court seemed to be angling for a Culture War knockout at the Masterpiece Cakeshop oral argument, and predicted Kennedy might dispose of the case this way [New York Daily News flashback, more on cert grant and on Court’s decision, Cato Tumblr links on the case]
- Through pretextual police stops, government stealthily revives that hated institution of colonial days, the general warrant [Jay Schweikert on Cato cert amicus in Johnson v. U.S.]