- Drivers’ license should signify ability to drive motor vehicle safely. Denial for miscellaneous arm-twisting reasons – e.g. child support – is bad policy. [Beth Schwartzapfel, Marshall Project (“43 states suspend driver’s licenses for unpaid court debts, but only four require a hearing beforehand to determine whether the failure to pay is willful or simply a reflection of poverty.”); Jessica Silver-Greenberg, Stacy Cowley and Natalie Kitroeff, NYT (“Twenty states suspend people’s professional or driver’s licenses if they fall behind on [student] loan payments, according to records obtained by The New York Times.”)] Earlier here (tax delinquents in New York), here, here, here, etc.;
- Under centuries of precedent, bail must be individualized as well as not excessive [Ilya Shapiro on Cato amicus in Walker v. City of Calhoun, Eleventh Circuit] And my piece on Maryland’s botched bail reform is now available ungated at Cato;
- Harvey Silverglate recounts an old tale of prosecutorial entrapment — starring Robert Mueller, then acting U.S. Attorney in Boston [WGBH]
- Criminal justice, mass incarceration, and the libertarian cause: Radley Balko’s speech on winning Bastiat Award [Reason]
- “The Troubling Expansion Of The Criminal Offense Of Obstructing The IRS” [Kathryn Ward Booth, Vanderbilt Law]
- Murder rap for drug supplier after overdose distorts both criminal law principle and incentives [Scott Greenfield, earlier here and here, see also here and here (prescribing doctors)]
Posts Tagged ‘Maryland’
November 22 roundup
- Steven Wise and his Nonhuman Rights Project are back with another animal rights suit, this time claiming to represent elephants against small Connecticut zoo [Ted Folkman, Wesley Smith]
- Thomas Hemphill reviews Philip Hamburger mini-volume The Administrative Threat, which summarizes arguments from Hamburger’s magnum opus Is Administrative Law Unlawful? [Cato Regulation mag]
- Dialing for dollars: plaintiff who’s filed 80 lawsuits can proceed under Telephone Consumer Protection Act even if he purposely placed himself in harm’s way [John O’Brien, Chamber-backed Legal NewsLine/Forbes] Plus: Nov. 27 update;
- Occupational licensure, college free speech, Roy Moore’s Anne Arundel council chum, and more in my latest Maryland policy roundup [Free State Notes]
- New Cato Institute podcast series Cato Out Loud consists of print publications in audio format, give it a try;
- Remember the panic over tax inversions? “Anti-Inversion Regulation Invalidated in Federal Court” [Elizabeth Chorvat, Tax Notes]
October 18 roundup
- Research by Todd Henderson et al. suggests that lawyers may often do well as CEOs, and anticipating and reducing litigation risk may be a key mechanism [Stephen Bainbridge]
- Canada: Couple sues neighbors for $2.5 million for copying their house’s architecture [Rain Noe, Core77]
- Abraham Lincoln on public choice and the aligning of interest with ethical duty [David Henderson]
- Redistricting, Anne Arundel county executive allies with trial lawyers to file opioids suit, Baltimore police, Montgomery County minimum wage in my latest Maryland policy roundup [Free State Notes]
- Black smokers in the U.S. are more likely than whites to prefer menthol, and prohibitionists frame foiling their wishes as a matter of racial justice [Christian Britschgi]
- Here come the trustbusting conservatives back again, no more convincing this time around [Steven Greenhut]
Medical roundup
- New Mercatus report on certificate-of-need laws, which operate to suppress competition in health care;
- “Hospitals don’t dispense perfectly safe but expired drugs because that may expose them to regulatory penalties or lawsuits.” [Mike Riggs, Reason]
- California unions push law setting minimum staffing requirements for dialysis centers [L.A. Times]
- Glaxo neither made nor sold the pill he took, jury tells it to pay $3 million anyway [Roni Caryn Rabin, New York Times]
- Maryland and Michigan suits seek to characterize patient falls as non-medical negligence; Kentucky suit aims to avoid medical review panel requirement [Andis Robeznieks, AMA Wire]
- “Ohio Drug Price Initiative Gives Taxpayer Money to Unnecessary Lawyers” [Hans Bader, CEI]
Bail reform? Careful how that goes
A campaign to get rid of the bail bond industry is currently in full swing across the country, with support from many liberals and libertarians. I’ve got an op-ed in the weekend Wall Street Journal’s “Cross Country” feature warning that Maryland’s experience over the past year should be a cautionary lesson:
Last fall the state’s attorney general, Brian Frosh, issued guidance that suddenly declared past bail methods unlawful, prodding the court system into an unplanned experiment. Judges may not set financial requirements if there is a reason to believe the defendant cannot pay, and unless they hold a suspect without bail, they must impose the “least onerous” conditions.
Now the results are coming in, and they can’t be what Mr. Frosh had in mind. An early report in March by Kelsi Loos in the Frederick News-Post found that since October the share of Maryland defendants held without bail had increased from 10% to 14%. The Washington Post later reported that from September 2016 to May the figure had jumped from 7% to 15%.
Meanwhile, fewer released defendants are showing up for trial. The Post, confirming anecdotal reports, writes that the “failure to appear” rate in January was 14.5%, up five points from October. Failing to show up for court sets up a defendant for more-severe consequences down the road, which can include being held without bail.
While bail reform is supposed to reduce the number of inmates held in jail, the number has instead increased in some places, though the results appear inconsistent.
If bail is taken away, judges need other tools to do the same job. Decades ago, when Congress steered the federal criminal-justice system away from bail bonds, lawmakers provided practical replacements, including systematic help in assessing a defendant’s risk of flight or re-offense, options for pretrial supervision, and methods of home and electronic detention. Several states have done the same. New Jersey now uses a mathematical algorithm to assess a person’s risk of fleeing or committing another crime. But the Maryland legislature, deeply split over Mr. Frosh’s destabilizing changes, has failed to set up such alternatives.
Maryland’s example doesn’t refute the idea of bail reform. But it does suggest state leaders should work to build consensus for comprehensive changes, instead of charging ahead with moralizing experiments.
On the current campaign to end bail bonds, see American Bar Association, Sens. Kamala Harris and Rand Paul and newspapers praising, Marc Levin (conservative), ACLU (villainizing insurers), Gary Raney.
Other perspectives: Scott Greenfield (“pre-trial incarceration was a huge factor in obtaining guilty pleas from innocent defendants,” but algorithms, used as replacement in places like New Jersey, have problems too), Joshua Page (some families value bond company’s service), Dan Mitchell. On the uncertain stance of constitutional law, see Pugh v. Rainwater (Fifth Circuit 1977) and more (LaFave et al.), Walker v. City of Calhoun, 2016 (Cato amicus: bail must be individualized) and more (James McGehee).
In which I defend the national anthem
Not quite an Overlawyered topic, but: The crazies who defaced the Francis Scott Key statue in Baltimore the other day weren’t just lawless goons — they were wrong about the song too. I explain at National Review.
I might have added countless other examples of songs, poems, and nationalist rhetoric in which “slave” was employed 1) as an epithet, 2) to signify subjection to kingly or other un-republican authority, or 3) both, everywhere from Patrick Henry’s famous speech to Schiller’s Wilhelm Tell to Rule, Britannia! to La Marseillaise. Suffice it to say that the word’s occurrence in a poem — even one penned by a slaveholder — needs to be read in context to determine whether American chattel slavery was the intended reference, and in the case of the third verse of the national anthem, there are plenty of reasons to think it was not.
Unanimous House backs IRS structuring seizure reform
A victory worth cheering for due process and property rights: the U.S. House has unanimously approved a bill that would curb IRS seizure of bank accounts premised on the owners’ having engaged in a pattern of deposits or withdrawals below the $10,000 reporting threshold (“structuring forfeiture”). The measure would 1) codify a recent IRS practice of not keeping money if no underlying illegality were found such as tax evasion or income from unlawful sources; 2) assure account holders a quick hearing after a seizure, a process that can now drag out for long periods. [Institute for Justice press release; Michael Cohn, Accounting Today] The Treasury inspector general found that “in a whopping 91 percent of sampled cases, the laws were being used to forfeit assets from individuals and businesses found to have obtained their income legally.” [Michael Haugen, The Hill, April]
I’ve been writing on this issue for years. The bill, co-sponsored by Reps. Peter Roskam (R-IL) and Joseph Crowley (D-NY), is called the Clyde-Hirsch-Sowers RESPECT Act; I’ve written about the structuring case of Maryland farmer Randy Sowers here and here.
Supreme Court and constitutional law roundup
- Litigating the boundaries of religious liberty: Tunku Varadarajan interview/profile with Becket Fund’s Montse Alvarado [WSJ] And mark your calendar for Sept. 28, Cato’s inaugural day-long conference “The Future of the First Amendment” at which I’ll be on a panel on religious liberty;
- What Hamilton wrote: archive find casts further doubt on theory President isn’t “officer” subject to Emoluments Clause [Brianne Gorod, Take Care] Broad definition of emoluments in suit against Trump might trip up its own lead plaintiff, Connecticut Sen. Richard Blumenthal [Michael Stern] “There is nothing wrong with Justice Gorsuch speaking at the luncheon despite its venue.” [Steve Lubet on Trump-Hotel-as-speech-venue flap]
- Duties of celebration: Cato amicus urges SCOTUS to consolidate Arlene’s Florist with Masterpiece Cakeshop case [Ilya Shapiro and David McDonald]
- Maryland gun ban unconstitutionally broad, argue Randy Barnett and Dave Kopel in Cato amicus [Shapiro, Kopel, and Matthew Larosiere] Restore rights to a rehabilitated felon? Sure, says Maryland, but not gun rights. Constitutional check [Shapiro]
- Federalist Society’s annual Supreme Court roundup speech for last term, by Miguel Estrada, is now online. Unfinished business: 10 certiorari petitions from last term SCOTUS justices should have granted [Mark Chenoweth, WLF] And don’t forget to mark your calendar for Cato’s Constitution Day Sept. 18;
- By 2019, constitutional law discussions at America’s top law schools were being conducted entirely in emoji [@tribelaw on Twitter on “First or Second Amendment, pick one” question of whether persons assembling for political protest have right to bear arms at the same time]
The year of movable statues: what to do with Roger Taney?
My new op-ed at the Frederick News-Post on Gov. Larry Hogan’s decision to support removal of the statue of Roger Taney from its place in front of the Maryland State House:
Taney did many things in an illustrious legal career but is remembered for only one: the disastrous Dred Scott decision, which served to entrench slavery….
Change in the display of public memorials is natural and inevitable….
No one has erased him from the history books — the Dred Scott case itself makes sure of that.
Plus: some thoughts from Andrew Stuttaford. From Atlas Obscura, displaced statues as a subject of historic preservation. Related: “My favorite Civil War era monuments are the 13th, 14th, and 15th Amendments.” [@david_tanenhaus on Twitter]
Environment roundup
- California law requires cities, counties to generate elaborate plans for new housing. No need to grant permits though [Liam Dillon, L.A. Times]
- Strenuous campaigns to block fossil fuel infrastructure have helped saddle Rhode Island with some of the highest electric rates in the land [Douglas Gablinske, Providence Journal]
- Ronald Bailey reviews Getting Risk Right: Understanding the Science of Elusive Health Risks, by Geoffrey Kabat [Reason last winter]
- Update: judge strikes down Montgomery County, Md. ban on common lawn pesticides [my Free State Notes post]
- Short video with Prof. Eric Claeys (George Mason/Scalia) on Penn Central v. City of New York (1978), the leading case in regulatory takings law [Federalist Society]
- Scientist leading WHO review of Roundup chemical knew of but omitted recent study finding no cancer risk; California went ahead and listed glyphosate anyway [Reuters Investigates, Karl Plume/Reuters on California action, Kiera Butler/Mother Jones]