John Culbreath Blog

Eric Goldman , “A Privacy Bomb Is About to Be Dropped on the California Economy and the Global Internet”: By tomorrow, the California legislature likely will pass a sweeping, lengthy, overly-complicated, and poorly-constructed privacy law that will have ripple effects throughout the world. While not quite as comprehensive as the GDPR, it copies some aspects of the GDPR and will squarely impact every Internet service in California (some of whom may be not currently be complying GDPR due to their US-only operations). The GDPR took 4 years to develop; in contrast, the California legislature will spend a grand total of 7 days working on this major bill. It’s such a short turnaround that most stakeholders won’t have a chance to participate in the legislative proceedings. So the Internet is likely to change radically tomorrow, and most people have no clue what’s coming or any voice in the process. As bad as this sounds, the legislature’s passage of the bill is likely the GOOD outcome in t

The Supreme Court has agreed to take up the question of whether the Bill of Rights’s Excessive Fines Clause applies to the states [ Eugene Volokh ] Because the case involves a state’s claim to a seized vehicle, it might also permit the Court to address issues of the constitutionality of asset forfeiture [ Ilya Somin , Nick Sibilla , IJ petition for cert in Timbs v. Indiana] Tags: crime and punishment , forfeiture , Supreme Court Timbs v. Indiana: does Excessive Fines clause apply to the states? is a post from Overlawyered - Chronicling the high cost of our legal system Timbs v. Indiana: does Excessive Fines clause apply to the states? curated from Overlawyered

My new opinion piece for the New York Post: “Even after a king we regard as benign steps down, we might want to reflect whether kingship is a good thing….Both Kennedy and O’Connor were famously reluctant to lay down clear rules for future cases, preferring to leave options open for the exercise of their sense of fairness. “Yet a sense of fairness provides no steady and stable basis for future cases. In the old courts of equity run by England’s Lord Chancellor, it came to be said that ‘Equity is as long as the Chancellor’s foot.’ As John Selden explained in the 17th century: ‘One Chancellor has a long foot, another a short foot, a third an indifferent foot: ’tis the same thing in a Chancellor’s conscience.'” Tags: Supreme Court Anthony Kennedy retires is a post from Overlawyered - Chronicling the high cost of our legal system Anthony Kennedy retires curated from Overlawyered

Is ACLU changing its tune on free speech for the worse? [ Wendy Kaminer, David Cole, Ira Glasser, Nadine Strossen ] Symposium on Louis Michael Seidman essay, “Can Free Speech Be Progressive?” [ First Amendment Watch , essay excerpt ] Series of posts and law review article by Eugene Volokh on how Founding-era public understanding of freedom of the press encompassed a much wider swath of activity than just commercial or professional press enterprise [ Volokh Conspiracy ] “Perhaps it would be easier if [Councilman Justin] Brannan just issued a list of who is allowed to speak in his community.” [ Karol Markowicz on Brooklyn pol who’s bragged of pressuring venues to cancel GOP and NRA events] “Free Speech in International Perspective” symposium this month at Cato Unbound includes Jacob Mchangama , Anthony Leaker, Jeremy Waldron, Jonathan Rauch ; “An opinion, however moronic or unfair, is absolutely protected [absent special circumstances not present here]…. Though I celebrate an apolo

“A federal court in California dismissed climate change lawsuits by the cities of San Francisco and Oakland against five oil companies, saying the complaints required foreign and domestic policy decisions that were outside its purview.” [ Reuters ; opinion in Oakland v. BP] Judge William Alsup of the federal district court in San Francisco had gathered extensive evidence before granting the defendants’ motion to dismiss for failure to state a claim. Andrew Grossman has a thread (courtesy ThreadReaderApp) quoting high points from the ruling, including the “breathtaking” scope of plaintiffs’ theory (“It would reach the sale of fossil fuels anywhere in the world”), the circumstance that all of us, as distinct from some defendant class only, have benefited from the use of energy, the suitability of the problem for a legislative or international solution rather than judicial invention of new law, and the flagship status of the case (The San Francisco and Oakland suits were the most high-

Judge orders Kansas Secretary of State Kris Kobach to take CLE lessons as sanction for disclosure and discovery missteps [ Lowering the Bar , Jon 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 , 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 C

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] Tags: NYC , occupational licensure , political correctness , school discipline , schools , transgender Schools roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“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 ] Tags: asbestos , autos , cellphones , football , Michigan Liability roundup is a post from Overlawyered - Chronicling the high cost of our legal system Liability roundup curated from Overlawyered

How do you onboard modern clients in the 21st Century? In today's podcast you will learn about what clients value. Do they want speed, responsiveness, mobile access? Do they want intake options such as online forms, chatbots, text messaging? How do you create and respond to the client's journey from finding you through resolution? You'll learn all this more today. Listen and learn. Written by Susan Cartier Liebel 21st Century Methods for Onboarding Clients – Guest Lecture with Jared Correia curated from Solo Practice University®

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

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. Tags: administrative law , constitutional law , on TV and radio , Securities and Exchange Commission , Supreme Court Keeping an overdue appointment with the Appointments Clause is a post from Overlawyered - Chronicling the high cost of our leg

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, con

Part 1 (50%) PLEASE ANSWER PART 1 FIRST, AND ANSWER PART 2 SECOND. Instructions : You are a law clerk and asked to write a memorandum of no more than 1,000 words assessing five property questions concerning Miguel, Coco, Ernesto, and Hector. These issues arose in Texas, which, at least for purposes of this question, applies common law property rules. With respect to marital property, Texas follows a community property system. — Miguel is an only child who lives with his mother, Coco, in Texas. Every year, Miguel’s family celebrates the holiday, known as the Day of the Dead . By placing photographs of deceased relatives on an altar in their home, they can remember those who departed into the afterlife. Yet, one photograph always perplexed Miguel: it showed Coco as a young child with her parents, but someone tore out her father’s face. Miguel never knew who his grandfather was. Miguel studied the front of the photograph carefully and recognized that his grandfather was holding a di

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 ] 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

Don Rotunda, who was Ron’s twin brother, gave me permission to publish these remarks which he gave at Ron’s memorial in April. About My Brother Ron Rotunda Anyone who knows Ron Rotunda professionally knows about his many extraordinary accomplishments — his work for the Senate Watergate Committee; his work for the Ken Starr investigation of President Clinton; that he advised the governments of Cambodia, Moldova, Romania and Ukraine on drafting their first democratic constitutions; that he was a highly distinguished law professor at Chapman University and other places, including universities in Belgium, Venezuela, and Italy.  They also know that he wrote a lot of books, more than 200 of them.  He’s written more books than most people have read.  Wayne LaFave, his colleague at the University of Illinois, once described “reading Ron’s resumé” as “my most ambitious undertaking since ‘War and Peace.’” Our similar names have led to confusion.  Ronald Rotunda is one of the most cited law

“Constant litigation, combined with years of legislation empowering unions and state agency bureaucrats to slow construction, have quadrupled the time required to build California’s water projects.” [ Ed Ring, City Journal ] Meanwhile, on the national level: “It can take years to get a federal permit for a major infrastructure project. Congress has an opportunity to change that” [ Philip Wallach and Nick Zaiac, Brookings ] Tags: California , environment , regulation and its reform California water projects face legal slog is a post from Overlawyered - Chronicling the high cost of our legal system California water projects face legal slog curated from Overlawyered

Instructions : The year is 1803. You are a clerk to Levi Lincoln, the Attorney General under President Thomas Jefferson. You are asked to address five issues in no more than 1,000 words. — The year is 1803. President Thomas Jefferson sent two ambassadors to France, with instructions to purchase the city of New Orleans for up to $10 million. However, the ambassadors soon learn that Napoleon, the Emperor of France, wanted to sell the entire Louisiana Territory—stretching from the Mississippi River to the Rocky Mountains—for only $15 million. The ambassadors worried that Napoleon, who was embroiled in costly European wars, would revoke the offer if they didn’t immediately agree. Attempting to communicate with the President back in the District of Columbia could take months. Without express approval from President Jefferson, the ambassadors decided to sign a “Treaty Between The United States of America and the French Republic” on behalf of “The President of the United States of America.

Part I of this series explained that “[e]ven though the [Affordable Care Act’s] penalty is [now] set to $0, the individual mandate still plays an important social function to reduce adverse selection, and plays a role in the operation of employer-based coverage.” It still has a legal effect. Part II “focus[ed] on how the recent tax reform legislation affects Chief Justice Roberts’s saving construction in NFIB v. Sebelius .” Specifically, because the mandate can no longer fall within the NFIB saving construction—because the penalty is $0—it is no longer constitutional. This third installment will address the issue of severability: if the mandate is now unconstitutional, should other portions of the law also be set aside. A “Convergent Constitutional Violation” in Frost Prior to December 22, 2017, Section 5000A(a) of the Affordable Care Act—that is, the individual mandate—was constitutional by virtue of Chief Justice Roberts’s saving construction in NFIB v. Sebelius . However, whe