Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘on TV and radio’

Finally, rules to rein in agency guidance documents

Agencies use informal guidance documents in lieu of formal regulation to clarify and interpret uncertainties in existing law and enforcement. Unfortunately, this and other forms of “subregulatory guidance” can also offer a tempting way to extend an agency’s power and authority into new areas, or ban private actions that hadn’t been banned before, all without going through the notice and comment process required by regulation, with its protections for regulated parties. Fair? Lawful? The Department of Justice under Jeff Sessions has lately sought to bring agency use of guidance documents under better control, and in particular end the use of documents that 1) are obsolete, 2) improperly use the process to circumvent the need for formal regulation, or 3) improperly go beyond what is provided for in existing legal authority. I’m interviewed about all this by Caleb Brown for the Cato Daily Podcast.

More: Charlie Savage, New York Times (DoJ revokes batch of guidance documents), Matt Zapotosky/Washington Post; Scott Shackford, Reason (rescission of guidance letter on local fines and fees should be read not as blessing those practices as okay, but as reflecting fact that federal government lacks clear statutory or constitutional mandate to intervene against them); Stephen McConnell, Drug and Device Law (“DOJ Says its Litigators May Not Use Noncompliance with FDA Guidances as Basis for Civil Enforcement Actions”).

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Political pressure on Facebook intensifies

Will revelations over data use by Cambridge Analytica lead to more intense government regulation of Facebook? Julian Sanchez and I talk to Caleb Brown at the Cato Daily Podcast. Separately, Sanchez writes that we shouldn’t expect regulatory micromanagement to do a good job of safeguarding user privacy. “How Cambridge Analytica’s Facebook targeting model really worked – according to the person who built it” [Matthew Hindman, The Conversation] Note that regulation tends to entrench incumbents [Tyler Cowen linking Stratechery (one consequence of outcry is that social media providers may make it harder for users to export their data to other platforms)]

Related: “In Europe, platforms are incentivized to take down first, ask questions second.” [William Echikson, Politico Europe] Pro-censorship UNC professor and New York Times contributing op-ed writer (and what a phrase that is to type) recalls days when media had but one throat to squeeze [David Henderson on Zeynep Tufekci in Wired] How Facebook recently navigated pressures on hosting a group whose leaders were prosecuted under British hate-speech laws [John Samples, Cato] From LBJ and Nixon to Trump and Elizabeth Warren, “regulation is an inherently political act.” So maybe think twice before putting Facebook and Google under the thumb of your worst political foe? [Donald E. Graham]

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Maryland gerrymander before the Supreme Court

This week the Supreme Court heard oral argument (transcript) in Benisek v. Lamone, the challenge to Maryland’s gerrymandered Sixth District. I was there with some critics of the gerrymander in front of the Court steps and spoke to a number of reporters afterward [Danielle Gaines, Frederick News-Post; Bruce DePuyt, Maryland Matters] See also Eric Boehm, Reason. Earlier here. Background links on Maryland case: Cynthia Prairie, Maryland Reporter in January.

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Redistricting in listenable format

I’ll be testifying in Annapolis on behalf of comprehensive redistricting reform on Monday (Maryland House of Delegates) and Thursday (Senate) of this week. In the mean time, here are two new audio contributions, first (above) a Cato Daily Podcast in which I’m interviewed by Caleb Brown.

The second clip is a narrator’s reading for Cato’s “Cato Out Loud” feature of my recent piece on why libertarians and others should oppose gerrymandering:

I’m also in the question period a bit more than two-thirds through this Federalist Society program featuring former Rep. Chris Shays (R-Ct.) and Weekly Standard senior writer Jay Cost.

On recent redistricting fireworks in Pennsylvania — which are being decided under that state’s constitution, and thus do not directly affect the federal constitutional issue or the situation in other states — see Nate Cohn, Matthew Bloch and Kevin Quealy, New York Times and Dave Wasserman, Cook Political Report. The Pennsylvania Supreme Court’s map scores high on a measure of partisan proportionality — that is, matching the number of seats won by a party to its share of overall vote. As Cohn et al. note, however, partisan proportionality in general “is not usually a goal when redistricting,” in part because it calls for conscious affirmative attention to partisan considerations as distinct from neutral principles. In this case it also comes as “something of a surprise, since the court’s order didn’t specify that partisan balance was an objective for the new map.”

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February 14 roundup

  • “One-Sided Loser Pays Is the Worst of Both Worlds” [Mark Pulliam at his new blog Misrule of Law, and thanks for mention]
  • My first piece for Quillette debunks claims of jump in rate at which gay men are being murdered in U.S.;
  • Welcome news: Department of Justice memo advises DoJ attorneys to seek dismissal of meritless False Claims Act suits [Reuters, Federalist Society teleforum with Brandon Moss, Greg Herbers/WLF, Michael Granston memo]
  • Empirical evidence on factors that lead to approval of low-quality patents [Timothy Lee, ArsTechnica, noting ideas for improving patent review process: (1) eliminate issuance fees, (2) limit re-applications, (3) give senior examiners more time per patent]
  • “Will we see tort reform in the midterms?” [Joseph Cotto interview with me for San Francisco Review of Books, YouTube audio, 33:51]
  • FSMA will drive many smaller farmers/foodmakers out of business, only question is how many [Baylen Linnekin, our earlier]

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Podcast: interviewed on think tanks and the policy world

Check out this 17:23 podcast in which I’m interviewed by Patrick Hanes of Maryland’s WFRE. He wanted to know about think tanks, in particular, and our conversation led on to how those nonprofit groups affect the policy conversation, how Cato and other think tanks are adapting to changes in media formats and public consumption of information, my own background, and why I recommend the study of economics to every student.

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November 1 roundup

  • Antitrust crackdown on Big Tech based on predictions of where markets may head in future? Just don’t [Alan Reynolds in part three of series; parts one and two]
  • Copyright holder sends mass demands to IP address holders, but for lower amounts and as “fines” rather than settlements. A move away from troll model, or refinement of it? [Timothy Geigner, TechDirt]
  • Among the many issues far afield from Bill of Rights that ACLU is up to lately: defending drive-by ADA filing operations against remedial legislation [ACLU, earlier on its drift from civil liberties mission]
  • Texas AG sues arguing unconstitutionality of Indian Child Welfare Act (ICWA); case involves blocking of “adoption [that] has the support of the boy’s biological parents and grandmother, Paxton said.” [Texas Tribune] More: Timothy Sandefur, NR;
  • More local and personal than my usual fare, I ramble about my education and upbringing, why I live where I live, as well as some policy matters [Frederick News-Post “Frederick Uncut” local-newsmaker podcast with Colin McGuire and Danielle Gaines]
  • “What’s the Difference between ‘Major,’ ‘Significant,’ and All Those Other Federal Rule Categories?” [Clyde Wayne Crews, Jr., CEI]

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Cato Constitution Day videos

There goes the rest of your weekend: the videos of Cato’s Constitution Day conference are now online.

I moderated the third panel, on “Property, Religious and Secular,” with Roger Pilon, Vice President for Legal Affairs at Cato; Prof. Rick Garnett, Notre Dame Law School; and Goodwin Procter LLP partner Thomas Hefferon, discussing Murr v. Wisconsin (land and regulatory takings), Trinity Lutheran (state aid to otherwise qualifying church playground, and Miami versus Wells Fargo and Bank America (scope of damages in fair housing mortgage suit).

NYU law professor Philip Hamburger delivered the annual Simon Lecture on “The Administrative Threat To Civil Liberties.”

Full set of videos, including three other panels, here.

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Puerto Rico recovery after Hurricane Maria: waiving the Jones Act

The 1920 Jones Act confines shipping traffic between US ports to US-flag, US-crew ships. That includes traffic between the mainland and outlying islands. It’s onerous for Puerto Rico in the best of times and now, in the emergency following the devastation of Hurricane Maria, much worse than that.

The Department of Homeland Security waived the Act beginning Sept. 8 in a limited manner for the purpose of allowing oil shipments to reach areas of Texas and Florida hit by Hurricanes Harvey and Irma. Those waivers expired Sept. 22. On Sept. 25 DHS announced that it would not waive the act for Maria and Puerto Rico even for the limited purpose of oil shipments, let alone general relief. DHS says it thinks most relief supplies for Puerto Rico from the U.S. will be sent by barge and it thinks there will be enough U.S.-flag barges available.

My Cato colleague Nicole Kaeding wrote two years ago that due to the Act, “goods coming from the mainland [to Puerto Rico] can’t come on the most cost-competitive vessel. They must go with one of four U.S. shippers operating that route. The limited competition increases costs. Puerto Rico’s shipping costs are twice those of its island neighbors, making items more expensive to purchase on the island. It also limits Puerto Rico’s ability to export its products to the mainland.”

Now the restrictions also mean that, say, a Norwegian- or Liberian-flagged vessel loaded up in Jacksonville or Savannah with relief supplies will not be allowed to unload them in Puerto Rico, no matter how much port capacity may have reopened there.

Rep. Nydia Velasquez (D-N.Y.) has called on President Trump to suspend the operation of the act for a year to reflect the current emergency, and that should be just an opening bid: Congress should move to repeal the law. Easier said than done: the Act, which also greatly drives up costs for Americans in places like Hawaii and Alaska, is tenaciously defended by U.S.-flag shipping interests and associated labor unions. Inertia, and the special interests that grow up around an existing law that protects some livelihoods, are powerful things. Critics of the Act, including Sen. John McCain (R-Ariz.), have made little headway. Trump, on Wednesday, on why he has hesitated: “a lot of people that work in the shipping industry… don’t want the Jones Act lifted.”

See also Amber Phillips/Washington Post “The Fix” (with link to Overlawyered), Nelson Denis, New York Times (“The Law Strangling Puerto Rico”), Henry Grabar/Slate, Michael Tanner/NRO. Marc Scribner/CEI, and this new WSJ editorial (“DHS argues that under U.S. law the agency can’t ask for a waiver unless there’s a national defense threat and there aren’t enough Jones Act-compliant ships to carry goods. That may or may not be a cramped reading of the law by DHS, but the Department of Defense has fewer legal constraints. Defense Secretary Jim Mattis could simply find a Jones Act waiver is ‘necessary in the interest of national defense.’”)

UPDATE: This morning the White House announced a 10-day suspension of the act. A 10-day suspension itself means very little when set alongside the magnitude of the need in Puerto Rico, so let’s hope this is just the prelude to a longer term fix. I did appearances this morning on CBS Streaming and WNYC/WGBH “The Takeaway” to discuss the issue.

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