With cases like the ObamaCare challenge, it’s less clear that broad constitutional standing necessarily advances “liberal” political goals, and advocates on both sides may be adjusting their positions (even) farther toward a tactical or instrumental view of standing controversies. (Ilya Somin; Somin v. Kerr on the merits); Linda Greenhouse, NYTimes “Opinionator”.
Posts Tagged ‘constitutional law’
Timothy Sandefur, “The Right to Earn a Living”
The author and Pacific Legal Foundation attorney was at the Cato Institute on Monday to discuss his new book on the tradition of constitutional protection for economic liberty overthrown by the Supreme Court in its New Deal-era “switch in time.” That panel (with commenters David Bernstein of George Mason and Clark Neily of the Institute for Justice) doesn’t seem to be online yet, but there’s a Cato audio podcast with Sandefur, and his book is available here.
“Any idea that’s 100 years old will probably offend someone or other”
I have a bit more to say about the “warning label on the U.S. Constitution” story in Diane Macedo’s FoxNews.com report today, which is getting a lot of readership. Original posts here and here (& welcome KTRH, Lars Larson listeners). Update: statement from Wilder Publications courtesy Distaff View of the World.
Speaking of warnings, Bob Dorigo Jones has picked the finalists for his 13th annual Wacky Warning Labels Contest (on a go-cart: “This product moves when used”) and I’ve got a post on that at Cato at Liberty.
Keep out of kids’ reach. It’s a founding document!
I blogged at Cato at Liberty yesterday about a copy of the U.S. Constitution sold with a parental advisory warning (hat tip: reader Clark S.). According to the warning, it might be a good idea not to let kids read the nation’s founding document until having a discussion with them about how views on race, sex, etc. have changed since it was written. It’s just boilerplate, of course, as found on other books from the same publisher. More: Eugene Volokh and Damon Root, Reason “Hit and Run”. And reader L.S. points out that in their prefatory matter the publishers also purport to prohibit readers from using or reproducing the text of the Constitution without permission.
P.S. First Things commenter Jared: “I presume, in the interests of not being chauvinistic about the present, that which they publish written today also carries a similar warning label: ‘This book is a product of the cultural mores and prejudices of the early twenty-first century…'”
Lawprof’s bias suit cites curriculum, panel imbalance
Catching up with a story from a while back: a law professor at Oklahoma City University, Danne Johnson, has filed a federal lawsuit accusing the university of discrimination. Per this account six months ago in The Oklahoman, the lawsuit sounds as if it will raise issues of wider interest. It is apparently based at least in part on the handling of an October 2007 memo by four OCU law professors alleging, in The Oklahoman’s words, “sexual harassment, pay disparity and insensitivity”:
The female professors also complained the OCU law school has no regular civil rights course, criminal law classes don’t cover rape, and the landmark abortion case Roe v. Wade is only covered sporadically in constitutional law.
The memo was sparked by two incidents: the alleged sexual harassment of two female professors at Dean Lawrence Hellman’s home in July 2007 and the all-male panel chosen for a Constitution Day program in September 2007. …
The memo notes the lack of women on a faculty appointment committee, which regularly included two university professors who are “openly hostile” to the idea of giving special consideration for women and minorities.
According to The Oklahoman, Johnson’s lawsuit cites as indicative of the university’s discriminatory stance that its general counsel, William J. Conger, “indicated the issues raised by Johnson and the other professors were misunderstandings or ‘cultural’ issues, rather than legal issues” (via Secunda/Workplace Prof Blog).
“Top Illinois Court Axes Mandatory Retirement Law for State Judges”
They’ve got the Illinois Constitution — or at least their power to read things into the ambiguities and interstices of that document — and they’re not afraid to use it. [ABA Journal] Scott Greenfield has some comments on the equal protection ruling and its policy implications.
May 14 roundup
- Yielding to pressure from state AGs, Craigslist will close “erotic services” section and replace with more highly moderated “adult services”; New York’s Cuomo is furious the site took unilateral action “in the middle of the night” rather than negotiating with him [NY Times, Hartford Courant, office of Connecticut AG (and longtime Overlawyered bete noire) Richard Blumenthal, Citizen Media Law, Above the Law] More: Ambrogi.
- Or they could absorb it and move on: “Bounty sues Brawny in paper towel tilt” [Atlanta Journal-Constitution]
- Was granting patents relating to diagnostic analysis of human genes a mistake? Should courts undo it? Via constitutional law? Three different questions there [Ars Technica, Doc Gurley/San Francisco Chronicle]
- Canadian Human Rights Commission wants new ban on discrimination based on “social condition” (with concomitant penalties for hurtful speech premised on such condition) [Ken at Popehat]
- Luxury-goods makers’ suits against eBay over sale of counterfeits may be petering out [Frankel, American Lawyer]
- Today must be exotic-dancer-litigation day at Overlawyered: Trademark Trial and Appeal Board denies trademark protection for “Cuffs and Collar Mark” of Chippendales male exotic dancers [TTA Blog via Lowering the Bar, Ron Coleman, opinion in PDF]
- Allegations fail to stick: “Judge drops class-action suit on Teflon cookware” [AP/Des Moines Register, WSJ, American Lawyer; earlier here and here]
- Asbestos litigation ramps up against Detroit automakers after bankruptcy of many earlier defendants [five years ago on Overlawyered; up-to-the-minute report from Kirk Hartley]
Wyeth v. Levine
After the Wyeth v. Levine argument, I worried that the Supreme Court might decide the case on such narrow grounds that it would do little good to confront the problem of trial-lawyer abuse. I now see I wasn’t nearly pessimistic enough.
We can put the nail in the coffin in the idea that this is a pro-business Supreme Court: the 6-3 Wyeth v. Levine decision is the worst anti-business decision since United States v. Von’s Grocery, 384 U.S. 270 (1966). Justice Thomas’s confused concurring opinion is especially disappointing, as it declares an abdication of the Supreme Court’s appropriate structural role to prevent individual states from expropriating the gains from interstate commerce.
Sell your pharmaceutical stocks now, because the Supreme Court just declared it open season on productive business. One should now fear the coming decision in the as-yet-to-be-briefed Clearinghouse v. Cuomo, and the effect that is going to have on an already battered banking economy, as well.
Beck and Herrmann have first thoughts, but are likely to be relatively quiet thereafter.
Update, as Walter points out in the comments, see also Andrew Grossman’s post at Point of Law, and the earlier coverage at that site by numerous authors, dating back to when the case first began making headlines.
Contrary to the suggestion of Justice Thomas, Dan Fisher, this is not a “victory for federalism” by any stretch of the imagination: federalism is a two-way street, and permitting states to impair interstate commerce through a litigation tax upsets the federalist structure of the Constitution. See, e.g., Epstein and Greve.
Is litigation the answer to the CPSIA problem?
As anyone reading Walter Olson’s posts and Forbes coverage knows, CPSIA is a bad law, with disastrous effects on retailers and small manufacturers.
It certainly seems unfair that Congress can wipe out thousands of businesses with the stroke of pen. It’s certainly bad public policy: as I have written elsewhere, when legislatures act to retroactively disrupt settled expectations, the effects redound far beyond the targeted industries to create uncertainty throughout the economy.
It’s a jump, however, from “bad public policy” to “unconstitutional,” and I am concerned that I see many lay blogs asserting otherwise. Starting in the 1930s, the Supreme Court has given free rein to Congress and legislatures to engage in economic regulation, even when that regulation has dramatic effects on individuals. In cases such as Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 202 (2002), and Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987), the Supreme Court signed off on the constitutionality of far-reaching regulations, despite the large economic effect on property owners affected by the laws. While conservative justices and scholars have argued that such “regulatory takings” without compensation violate the Fifth Amendment, their respect for the rule of law and the actual text of the Constitution are pooh-poohed by Democrats as following an esoteric (and fictional) “Constitution in Exile” movement. There are, at most, four justices on today’s Supreme Court that would recognize the doctrine of regulatory takings; that number is not going to grow under President Obama (who has explicitly disclaimed any need to appoint judges who merely “follow the law”) and a Democratic Senate.
There exist public-interest law firms like the Institute for Justice that engage in litigation over economic constitutional rights–and, while they take donations, they do so without charging their clients money. I think litigation would be fruitless with the makeup of the current judiciary, but I acknowledge that IJ does do a good job of putting forward its principles, and often leveraging its litigation into political success.
But it concerns me even more to see a website recruiting victims of CPSIA to send money to a lawyer to bring a lawsuit. The attorney, involved, Michael Kushner, is a run-of-the-mill plaintiffs’ attorney without any demonstrated expertise in Fifth Amendment law, but has offered to take the case for a $25,000 retainer–which is certainly not enough to fully litigate this to the Supreme Court. There is questionable ethics, if not outright fraud, in asking parties to what is most appropriately filed as a Rule 23(b)(2) class action to “file forms” and send money to join–the whole point of a class action is that a representative of a class is named who will act on behalf of parties that haven’t signed up. Moreover, the Equal Access to Justice Act permits attorneys who have won constitutional litigation when the government’s position was not “substantially justified” to collect attorney’s fees. And note that at no point in Kushner’s website or the related blog recruiting members does he spell out a theory of legal victory.
Sending money to a lawyer to litigate the CPSIA is throwing good money after bad. That a law is unsound does not make it unconstitutional and vice versa. The road to solving the problem of the CPSIA is through Congress, either by making Democratic legislators see common sense, or electing legislators who aren’t so willing to sign off on bills constructed by trial lawyers to benefit themselves at the expense of society at large. Spending resources on doomed litigation diverts from the pressure needed to get Congress to change its mind.