John Culbreath Blog

Fourth Circuit: Title IX may oblige universities to take action against outside social media sites whose content is said to create hostile environment. By blocking student access to them? [ Samantha Harris, FIRE , Eugene Volokh , Robby Soave on University of Mary Washington ruling] Return of the loyalty oath? Some senior academics speak out against required faculty diversity statements and pledges, at the University of California [ Stephen Bainbridge , Nick Wolfinger , John McGinnis, Law and Liberty ] and Harvard [ Colleen Flaherty, Inside Higher Ed , Jeffrey Flier, Times Higher Education ] Speech codes and “The Coddling of the American Mind”: Greg Lukianoff and Adam Goldstein guestblog at Volokh Conspiracy [ series : first , second , third , fourth , fifth ] “OCR’s use of overly broad anti-Semitism definition threatens student and faculty speech” [ Zach Greenberg, FIRE ] University of Washington lecturer publishes article on sex differences in pursuit of computer careers, it’s ci

Modern asbestos litigation has been described as an unending quest for the solvent defendant. Air and Liquid Systems v. DeVries, argued in October before the Supreme Court, presents the question of whether to permit suits against companies that made products containing no asbestos, “on the grounds that they had reason to foresee that the mineral would be used in conjunction with the products they did make.” I discuss the case in this new Reason piece . More coverage of the oral argument from Brandi Buchman, Courthouse News and Ronald Mann, SCOTUSBlog reporting before and after . See also Robert H. Wright, Washington Legal Foundation . Filed under: asbestos , Supreme Court , WO writings Supreme Court hears “bare-metal” asbestos case curated from Overlawyered

In the New York Times, financial writer Andrew Ross Sorkin asks why credit card companies and banks should not be made to monitor customers’ accounts for unusual gun purchases and share the information with law enforcers. Excerpts from my response at Cato . …In an advocacy piece imperfectly dressed up as a news story, New York Times financial reporter Andrew Ross Sorkin observes that some perpetrators of mass public shootings have bought guns and ammo using credit cards, and asks why credit card companies and banks should not be made to stop this. How? Well, they could “create systems to track gun purchases that would allow them to report suspicious patterns” and “prevent [customers] from buying multiple guns in a short period of time.” Invoking the Patriot Act – you knew that was coming, didn’t you? – the piece goes on to ask why the sweeping financial-snooping powers bestowed on the feds by that act should not be deployed against everyday civilians who purchase more guns than w

“A new case headed to the Supreme Court may challenge a great deal of deference courts currently afford federal agencies. Andrew Grossman comments.” [ Cato Daily Podcast with Caleb Brown, on Kisor v. O’Rourke, earlier on Auer and Seminole Rock deference] Filed under: administrative law , Supreme Court Has the case come that will overturn Auer deference? curated from Overlawyered

In 2010, I co-founded the Harlan Institute. Every year, we host the Virtual Supreme Court Competition, along with ConSource. High school students are invited to write briefs and give oral arguments about pending cases. Every year, we fly the top Petitioner and Respondent teams to Washington, D.C., where they delivered their arguments at the Georgetown Supreme Court Institute, before an all-star panel of judges. In 2017, we heard arguments on Trinity Lutheran .  In 2018, we focused on Carpenter . This year, we are mooting  Timbs . This ambitious project isn’t free. If you enjoy my work on this blog and elsewhere, please consider paying it forward with a contribution to our $18 for 2018 Campaign. Small donations go a long way to defraying the travel costs for the students and their teachers, and help pay for the prizes for the runner-ups. Thank you! Support the Harlan Institute $18 for 2018 Campaign curated from Josh Blackman's Blog

No, the federal court ruling in Texas isn’t likely to take down the Affordable Care Act / ObamaCare [ Ilya Shapiro ] Should doctors exhort their patients to vote? Hell, no [ Wesley J. Smith ] “Accutane Litigation Goes Out with a Bang, Not a Whimper” [ Beck ] “The Worst Prescription Drug/Medical Device Decisions of 2018” [ same ] Proposal for price controls on Medicare Part B might amount to drug reimportation lite [ Roger Pilon ] Canadian reimportation as shiny object [ Beck ] The European Medicines Agency has approved the powerful new opioid Dsuvia, and FDA head Gottlieb made the right choice in following suit, Sen. Markey and Public Citizen notwithstanding [ Jeffrey Singer, Cato ] “Your doctors didn’t jump out of business; they were pushed. And they were pushed by people way too convinced of their qualifications to redesign the world around them.” [ J.D. Tuccille, Reason ] Tags: Canada , medical , Medicare , ObamaCare , opioids , pharmaceuticals Medical roundup curated fro

The bikini entrepreneur used lawsuits vigorously in defense of what she said was her intellectual property. But was the garment design her invention? A story of a bikini, three lawsuits, and a cover-up [ Katherine Rosman, New York Times ] Tags: copyright , intellectual property The bikini, the borrower, and the cover-up curated from Overlawyered

Jameela Jamil (“The Good Place”) wants to ban airbrushing in magazines and advertisements, warning BBC readers that, “If you buy the products airbrushing is used to advertise, you won’t look like the person in the photograph.” “If this comes as a surprise to you, please exercise caution before stepping out of doors or in front of a mirror,” I reply in my new op-ed in southern California newspapers. “Here in the land of liberty, fortunately, we recognize that to ban display of someone’s airbrushed image even if they’re fine with the idea would constitute a trifecta of coercion, stomping on personal autonomy, freedom to contract with others, and freedom of the press.” Read it here . Tags: advertising , celebrities , photography , publishers , WO writings A ban on airbrushing? curated from Overlawyered

“Elephant Habeas Case: Steven Wise’s Forum Shopping Apparently Fails” [ Ted Folkman, Letters Blogatory , earlier here and here ] Right now owners of gas stations in D.C. “need approval from the Gas Station Advisory Board (GSAB) to close. However, there’s one small problem. The GSAB hasn’t had members since 2008, so there’s no one to get approval from.” [ Daniel Warwick, Greater Greater Washington ] “Jones Act Reform Gaining Momentum” [ Colin Grabow, Cato , earlier ] “Serving Two (or More) Masters: Civil Service and Bureaucratic Resistance in our Administrative State” [Adam White working paper and related video as part of Hoover Institution’s Land, Labor, and Rule of Law conference ] MoCo vs. NoVa in business site relocation, Baltimore policing, charmless climate suit, red flag law and more Maryland policy in my latest Free State Notes ; New York appears ready to return to the days of confiscatory rent control, a policy that helped ruin wide swaths of the city in the 60s and 70

From this summer: Playwright Matthew Lombardo’s comedy “Who’s Holiday!,” a raunchy tale set in the world of the Grinch years after the original story, wins a Second Circuit ruling as protected parody against a copyright suit filed by the Dr. Seuss estate [ Greg Evans, Deadline Hollywood ] Filed under: Christmas and other holidays , copyright , First Amendment Parody based on Grinch tale defeats Seuss estate curated from Overlawyered

Marry Christmas! You can read past highlights of Overlawyered Christmas coverage here , here , and here . Tags: Christmas and other holidays Spirit of Overlawyered past curated from Overlawyered

Kansas Supreme Court rules 4-3 that cops can conduct warrantless search of private homes if they say they smell marijuana. Practical difference between this and “…whenever they please” is not clear [ Tim Carpenter, Topeka Capital-Journal ] At Timbs v. Indiana oral argument, Court seems sympathetic to idea of applying Excessive Fines clause to the states [ Robby Soave , Jacob Sullum , Ilya Somin , earlier here , here , and here ] Notwithstanding Justice Gorsuch and Kavanaugh’s interjections, there is and has been no uniform incorporation of the entire Bill of Rights against the states [ Rory Little ] Arizona Supreme Court should recognize that First Amendment protects right of calligraphic art studio not to be forced to draw invitations and vows for wedding ceremony of which owner/artists disapprove on religious grounds [ Ilya Shapiro and Patrick Moran on Cato Institute amicus brief in Brush & Nib Studio v. City of Phoenix ] Claim: notwithstanding SCOTUS precedent to the contra

Citing the importance of the famed Strand used bookstore as a literary hub for Gotham writers over much of the past century, New York City’s Landmarks Preservation Commission is considering a proposal to slap landmark status on the structure, along with some other nearby buildings in its neighborhood south of Union Square. But “Nancy Bass Wyden, who owns the Strand and its building at 826 Broadway, said landmarking could deal a death blow to the business her family has owned for 91 years, one of the largest book stores in the world.” Landmark status in New York seriously constricts owners’ discretion to renovate, maintain and change space. [ Corey Kilgannon, New York Times ; Joe Setyon, Reason ] Tags: historic preservation , NYC , publishers “I’m not asking for money or a tax rebate….Just leave me alone.” curated from Overlawyered

President Trump has signed into law, Congress having passed by wide margins, the First Step Act, which will make substantial changes to incarceration practices at the federal level and lesser but still significant changes to sentencing practices. Joe Luppino-Esposito of the Due Process Institute responds to five criticisms that some conservatives have leveled against the bill in its later stages. Jonathan Blanks has more . Families Against Mandatory Minimums has a FAQ . And Caleb Brown interviews Shon Hopwood about the law for the Cato Daily Podcast. Tags: crime and punishment , prisoners First Step Act becomes law curated from Overlawyered

“It should not be ‘customary’ for police investigators to attend autopsies, hover over a medical examiner as he works, and point out things they believe fit their theory of the crime. It shouldn’t happen at all.” [Radley Balko on Fifth Circuit ruling in Dean v. Phatak] Dubious forensics were central to the federal government’s litigation onslaught seeking to pin blame on forestry company for Moonlight Fire damage in California [ Robert Nelson, Law and Liberty , earlier ] “Memory experts … were significantly more skeptical about repressed memory compared to practitioners, students and the public.” [ Lawrence Patihis et al., Memory ] Child abuse panic 20 years later: “San Antonio Four” women finally exonerated after wrongful conviction [ Elizabeth Zavala, San Antonio Express-News ] Yes, police body cams can make a difference in exonerating the officer [ Ashley May, USA Today , Scott Greenfield ] Or not [ Joe Setyon, Reason on Detroit home invasion] Re-examining the Tennessee conv

We’ve posted often about lawyer-driven slack-fill lawsuits, in which class action filers claim that food, cosmetic, and other products sold by weight have excessive empty space in their packaging. (Laws governing food packaging allow for empty space that serves a function such as protecting the product from damage or shoplifting, but there is room for much disagreement on what is or is not needed for functionality.) The suits’ outcomes can seem random if not whimsical: Ferrara Candy recently agreed to pay $2.5 million to settle claims [ Douglas Yu, Confectionery News ] while the makers of Fannie May and Junior Mints successfully obtained dismissal of suits against them in federal courts [ Scott Holland, Cook County Record ; Bloomberg ] California has been a hotspot of slack-fill litigation, but now the California legislature has passed a bill, signed into law by Gov. Jerry Brown in September, expanding the list of safe-harbor defenses that manufacturers (prospectively, in future suit

I’ve got a new piece at Ricochet on the problems with the Indian Child Welfare Act of 1978, which a federal judge struck down as unconstitutional in October in a ruling ( Brackeen v. Zinke ) likely to be appealed. Excerpt: One effect is to give tribal governments dangerous power over persons who never willingly submitted to their authority, including persons who have never set foot in Indian country. A couple briefly connect at a bar in Boston or Brooklyn or Baltimore one night and a child is born as a result. The father may not have mentioned at the time, indeed may only imperfectly remember, that as a child he was inducted into an affiliation with some faraway tribe toward whose leadership he has long felt indifferent or estranged. But ICWA covers as an “Indian child” any biological child of a tribal member so long as that child is “eligible for membership” in a tribe. Sorry, Dad – and sorry, total-bystander Brooklyn Mom — but under ICWA that distant tribe now has a lot of power

So often those who seek to control the rest of us seem unable to achieve self-control. Case in point: sponsor of NY bill to search gun applicants’ social media accounts [ Jon Campbell, Democrat and Chronicle , Sen. Rob Ortt on Twitter ] More on Sen. Kevin Parker’s proposal: Scott Greenfield , and my earlier ; Concerning an issue that Cato has warned about for many, many years, the emergency powers of the President [ Elizabeth Goitein/The Atlantic , related video ] Web accessibility suits hit colleges [ Rick Karlin, Albany Times-Union ], New York wineries [ Brianne Garrett, Wine Spectator , Kathleen Willcox, Wine Searcher , Thomas Pellechia, Forbes ], other defendants around New York [ Stephen Rex Brown, New York Daily News , Jamie Herzlich/Newsday ] “How the Feds Spy on Reporters” [ Cato Daily Podcast with Julian Sanchez and Caleb Brown] Thread on what government subsidies have done to Canadian literature. Reason to resist letting subsidies be pushed further into US literary arts

At National Review, Lyman Stone challenges the currently popular idea that American electoral processes are in the grip of a crisis of democratic legitimacy. While there is real room for process improvement, as with the issue of gerrymandering, it is less clear that imperfections in our electoral system 1) have worsened a lot or 2) are especially different from than those found in other mature democratic systems. It is also far from clear that over the long run the imperfections systematically benefit one “side”: at the moment Republicans hold more seats than their share of votes would predict, but one needn’t go far back in time to find periods when Democrats held the same sort of edge. Two areas where the U.S. is unusual: we have low voter turnout, well below that of most advanced countries, and each member of our House of Representatives represents a very large number of people. Tags: redistricting reform , Senate , U.S. House of Representatives A crisis of democratic legitimac

This fall the Cato Institute held a policy forum on plea bargaining featuring Clark Neily, vice president for criminal justice at Cato, Scott Hechinger of Brooklyn Defender Services, Bonnie Hoffman of the National Association of Criminal Defense Lawyers, and Somil Trivedi of the ACLU. Description: Supreme Court Justice Anthony Kennedy has observed that “criminal justice today is for the most part a system of pleas, not a system of trials.” Although nowhere mentioned in the text of the Constitution, plea bargaining has become the default mechanism for resolving criminal charges in the United States. Indeed, some 95 percent of criminal convictions today are obtained through plea bargains, which raises a number of serious concerns, including why so few people choose to exercise their hallowed and hard-won right to a jury trial. When one considers the many tools available to prosecutors to encourage defendants to accept plea offers, together with the incentive to resolve as many cases

Gov. Jerry Brown signs into law California bill imposing minimum quota for women on corporate boards: “it’s very hard to see how this law could be upheld” [ Emily Gold Waldman, PrawfsBlawg , earlier ] “The passage of this law resulted in a significant decline in shareholder value for firms headquartered in California.” [ Hwang et al. via Bainbridge ] Martin Act , part umpteen: “New York Attorney General Overreaches in Climate-Change Complaint Against Exxon” [ Merritt B. Fox, Columbia Blue Sky Blog ] “Now he tells us! You’d think that maybe Bharara would have publicly acknowledged this ambiguity and haziness [in insider trading law] before bringing a series of cases that destroyed careers and imposed huge costs on the individuals who were accused.” [ Ira Stoll ] “Because [Florida agriculture commissioner-elect Nikki Fried] took donations from the medical marijuana industry, Wells Fargo and BB&T banks closed her campaign accounts briefly, citing policies against serving businesse

Do something nice for your neighbors this Christmas and refrain from taking them to court. An attorney who resides in Hayden, Idaho, has gotten into “a miserable four-year war with his neighborhood” over holiday displays at his house [ Daniel Walters, Inlander ] Tags: Christmas and other holidays , housing discrimination , Idaho , property law Christmas lighting fight divides community curated from Overlawyered

Urged by the U.S., Canada recently arrested Huawei Chief Financial Officer Meng Wanzhou. “Meng was traveling in Canada, switching planes using a Chinese passport, when she was taken into custody.” For Tyler Cowen, the “procedural normality of the arrest is precisely what scares me. There are so many international laws, and so many are complex or poorly defined, and there are a couple hundred countries in the world. Arguably most multinational corporations are breaking some law in some manner or another, and thus their senior executives are liable to arrest. If I were a top U.S. tech company executive, I would be reluctant to travel to China right now, for fear of retaliation.” [ Bloomberg ] See also the FIFA (soccer) controversy , 2015, and related: our series of 2006 posts about the arrest of traveling British executives on charges of remotely violating U.S. online gambling laws. For more on the scope of white-collar crime laws, see my chapter on white-collar prosecution in last

Playlist: songs about eminent domain and takings, property law and the road [ Robert H. Thomas, Inverse Condemnation ] In-depth look into problems that develop when title to land is held as “heirs’ property,” leaving a dangerous collective tangle in place of individual right and duty [ David Slade and Angie Jackson, Post and Courier (Charleston, S.C.)] Dispute over remains of two dinosaurs locked in combat 66 million years ago, lately unearthed in Garfield County, Mont. and extremely valuable, hinges on whether their fossils are “minerals”; Ninth Circuit says they are under Montana law [ AP via Molly Brady (“property professor dream hypo”), Murray v. BEJ Minerals ] “Government Should Compensate Property Owners for Flood Damage It Facilitated” [ Ilya Shapiro and Patrick Moran on Cato amicus petition for certiorari in St. Bernard Parish v. United States] “Texas Court Rules Deliberate Flooding of Private Property by State Government in Wake of Hurricane Harvey can be a Taking” [

As with any cyber threat, prevention starts with awareness of the risk and, as a road warrior, I see people taking an unnecessary risk far too often. This one involves smart phones. Here’s the problem. The cable you use to charge your phone is the same one you use to transfer or sync your data. This reality creates an attack vector that someone could take advantage of during the charging process. Read on. Written by Mark Bassingthwaighte Juice Jacking, Say What??? curated from Solo Practice University®

“A federal court judge Monday ruled a Massachusetts General Law prohibiting the secret audio recording of police or government officials is unconstitutional. …In the 44-page decision [Judge Patti] Saris declared that ‘secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place and manner restrictions.'” [ Noah Bombard, MassLive ] Filed under: First Amendment , Massachusetts , movies film and videos , police Judge: First Amendment protects recording cops and officials performing public duties curated from Overlawyered

The U.S. Department of Education under Betsy DeVos plans to back off Obama-era guidance on disparate racial impact in K-12 school discipline; the regs have been a frequent target of scrutiny in this space . [Laura Meckler, Washington Pos t/ Taunton Gazette ] Filed under: school discipline Feds to back off school discipline regs curated from Overlawyered

“Scott Gottlieb’s FDA Is Moving Toward a Stealth Ban on Cigarettes and Cigars” [ Jacob Grier, Reason ] Supreme Court should take Melissa and Aaron Klein cake-refusal case from Oregon and resolve the issues of free expression it dodged in Masterpiece [ Ilya Shapiro and Patrick Moran , ABA Journal , earlier on Melissa and Aaron Klein cake-refusal case including oppressive $135,000 fine levied by Oregon BOLI (Bureau of Labor and Industries)] “Administrative Law Is Bunk. We Need a Bundesverwaltungsgericht” [ Michael Greve , responses from Mike Rappaport, Philip Wallach, and Ilan Wurman, and rejoinder from Greve] New York’s family court system is failing children and their families [ Naomi Riley/City Journal , thanks for quote] “The Emmys People Are Opposing A Pet Products Company Named After A Dog Named ‘Emmy'” [ Tim Geigner, TechDirt ] Metaphor alert: “Lawmaker Injured by Flying Constitution” [ Kevin Underhill, Lowering the Bar , and funny throughout] Filed under: adminis

In more than 300 cases, a defense attorney in the Australian state of Victoria acted as a police informant to undermine her clients’ interests [ Chris Vedelago, Cameron Houston & Tammy Mills/Sydney Morning Herald , Houston, Mills & Vedelago/Melbourne Age followup, Rohan Smith/news.com.au on Informer 3838 affair] Filed under: Australia , ethics , police Australian legal ethics (and police) scandal curated from Overlawyered

“A California attorney and his wife were convicted of engaging in a scheme to extort minority, immigrant-owned businesses.” [ Associated Press ] “[Rogelio] Morales and [Mireya] Arias engaged in a scheme in 2016 to file ‘meritless gender discrimination lawsuits to pressure minority business owners into giving them thousands of dollars in alleged “settlements,”‘ a prosecution trial brief said. Prosecutors said Morales and Arias would obtain services from the small businesses they targeted — salons or dry cleaners — and if they were charged differently for the same service, they would file a lawsuit claiming a violation of a California anti-discrimination law, prosecutors said.” [ Richard K. De Atley, Press-Enterprise (Riverside, Calif.)] Tags: California , legal extortion , serial litigants , sex discrimination California: “Lawyer, wife convicted in extortion plot against businesses” curated from Overlawyered

Fourth Circuit rejects gag order on parties and potential witnesses in North Carolina hog farm litigation [ Eugene Volokh ] Eighth Circuit, interpreting Missouri law’s obligation to register as “lobbyist,” leaves open possibility that requirement extends to unpaid lobbyists, also known as concerned citizens [ Jason Hancock, Kansas City Star ; Institute for Free Speech on Calzone v. Missouri Ethics Commission ] “9 Months in Prison for Forging Court Orders Aimed at Vanishing Online Material” [ Volokh ] Per one account at least 75 fake court documents have been sent to Google as part of takedown efforts, including an order purporting to come from the UK Supreme Court [ same ] The accused pipe bomber had made online death threats against Ilya Somin, libertarian lawprof and friend of this site. Lessons to draw? [ Cato Daily Podcast ] Entanglement of press and state leads nowhere good: Canadian government to allocate C$600 million in subsidies to newspapers and legacy media [ Stuart Th

As our friend R.J. Lehmann observed the other day: “New York now wants to require people to hold a kind of insurance that it sanctioned the NRA and an insurance broker earlier this year for selling at all.” I explain in my new Cato post . Tags: guns , insurance , New York , WO writings New York: maybe gun insurance is okay after all curated from Overlawyered

Many groups on the left, following the example of the right, have been de-emphasizing or even abandoning the old 501(c)(3) format of tax-deductible charitable endeavor in favor of the 501(c)(4) format, which has fewer tax advantages but allows a wider range of frankly political activity. For some on the progressive side, writes David Pozen, who teaches law at Columbia, this is in part a matter of giving up on the Supreme Court as an engine of far-reaching social change. “The 501(c)(3) form fit snugly into the postwar theory of legal liberalism, in which the federal courts were seen as the key agents of social reform and professionally managed nonprofits as their partners in that effort.” [ The Atlantic ] I would add one observation, which is that this shift of focus from strategic litigation to electoral politics and organizing is exactly what many legal conservatives have been urging the left to do for two generations: if you want the law to change, don’t take your case to an unelec

Big win for scientific rigor in the courts as New Jersey joins 40 other states in adopting Daubert standards for expert testimony, in In re Accutane Litigation [Washington Legal Foundation: Evan Tager and Surya Kundu , Joe Hollingsworth and Robert Johnston ] With the long domination of the Florida Supreme Court by its liberal bloc soon to end, is it too much to hope that Florida joins the national trend too? [ Evan Tager and Matthew Waring, WLF ] California lawyers sue electric scooter companies and manufacturers after users run into pedestrians on street, park improperly in handicapped spaces, and leave them in places where they can be tripped over [ Cyrus Farivar, ArsTechnica ] Defendants obtain fees and costs in suit against siren maker over firefighter hearing loss [ Stephen McConnell, Drug and Device Law ] Some safety advocates’ flip-flops on autonomous vehicle legislation in Congress might relate to trial lawyers’ agenda of the moment [ Marc Scribner, CEI ] “Labaton Sucha

Stepped-up litigation and reputational risks from charges of sexual misbehavior are changing employer policies in predictable ways: Privately, though, many of the men interviewed acknowledged they’re channeling Pence, saying how uneasy they are about being alone with female colleagues, particularly youthful or attractive ones, fearful of the rumor mill or of, as one put it, the potential liability. A manager in infrastructure investing said he won’t meet with female employees in rooms without windows anymore; he also keeps his distance in elevators. A late-40-something in private equity said he has a new rule, established on the advice of his wife, an attorney: no business dinner with a woman 35 or younger. “If men avoid working or traveling with women alone, or stop mentoring women for fear of being accused of sexual harassment,” he said, “those men are going to back out of a sexual harassment complaint and right into a sex discrimination complaint.” [ Gillian Tan and Katia Porz

A number of states have banned driver use of handheld cellphones, but the Ohio legislature has now gone further by enacting a ban on distracted driving that retains [such a ban] while also expanding distracted to include “Engaging in activity that is not necessary for the vehicle’s operation and that impairs, or reasonably would be expected to impair, the driver’s ability to drive safely.” The new law provides no further explanation of the new definition, leaving it to the discretion of officers and the courts. It is thought that this definition could be applied to any kind of distraction that is related to an accident, including consuming food and beverages or adjusting car systems like climate and radio. The problem here with vagueness and enforcement discretion go beyond the scope of the penalty, which for now is only $100. [ Tim Zubizarreta, Jurist ; Scott Greenfield ; Tim Cushing on Twitter (“a blank check for pretextual stops”); earlier ] Tags: cellphones , Ohio , traffic

“An important win for property owners”: Supreme Court rules 8-0 that protected species habitat doesn’t include tracts containing no actual dusty gopher frogs and not inhabitable by them absent modification [ Roger Pilon , George Will , earlier on Weyerhaeuser v. U.S. Fish & Wildlife Service, Cato Daily Podcast with Holly Fretwell and Caleb Brown (“The Frog Never Had a Chance”)] Proposed revision of federal Violence Against Women Act (VAWA) would expand definition of domestic violence to include nonviolent “verbal, emotional, economic, or technological” abuse. Vagueness only the start of the problems here [ Wendy McElroy, The Hill ] Bad ideas endorsed by the American Bar Association, part 3,972: laws requiring landlords to take Section 8 tenants [ ABA Journal ; earlier on “source of income discrimination” laws] Minneapolis “Healthy Foods Ordinance” drives up costs for convenience stores, worsens food waste, pressures ethnic grocers into Anglo formats [ Christian Britschgi ]

We just finished month three of this relaunch journey (I shared a report for my first two months here and here). The ship keeps sailing along. These monthly reports are the most popular thing I write, but I worry they’ll become mundane. “Another month of mostly the same thing…” And maybe there’s a lesson in there. Success rarely comes with sex appeal and clickbait headlines. It’s a slog. And maybe that’s why so few of us find it. However, to give you something you can act on right away, I’ll share with you monthly landmarks and some thoughts about websites. I’ll also detail numbers for you, and plans for the future. This is me CEO-ing out loud, and I hope you find it helpful. Written by Mike Whelan, Jr. An Experiment in Transparency – Monthly Report: May 2018 curated from Solo Practice University®

“Central bankers and mainstream monetary economists have become intrigued with the idea of reducing, or even entirely eliminating, hand-to-hand currency. Advocates of these proposals rely on two primary arguments. First, because cash is widely used in underground economic activities, they believe the elimination of large-denomination notes would help to significantly diminish criminal activities such as tax evasion, the illicit drug trade, illegal immigration, money laundering, human trafficking, bribery of government officials, and even possibly terrorism. They also often contend that suppressing such activities would have the additional advantage of increasing government tax revenue. [A second argument relates to monetary policy.]… Yet the arguments for phasing out cash or confining it to small denomination bills are, when not entirely mistaken, extremely weak.” [ Jeffrey Rogers Hummel, Cato Policy Analysis No. 855 ] Tags: banks “Should Governments Restrict Cash?” curated from O

The Education Department has published for public comment proposed changes in regulations to Title IX on campus discipline and sexual misconduct; its Obama administration predecessors had decreed major changes in the same law through a “Dear Colleague” letter without public notice or comment. The new proposals differ on some points from draft versions circulated earlier . Cathy Young and Robby Soave provide overviews, and Soave writes on how response from the ACLU left much to be desired. FIRE (Foundation for Individual Rights in Education) has an initial statement (Samantha Harris), a more detailed analysis (Susan Kruth), and a letter to Senate Democrats correcting some misconceptions. And John McGinnis says both sides are getting it wrong: the feds shouldn’t be regulating college misconduct codes in the first place [ Law and Liberty ] Filed under: ACLU , Title IX Title IX campus regs: the new proposal curated from Overlawyered

“Asking a Fourth Amendment nerd why the police don’t just get a warrant is like asking an auto mechanic why drivers don’t just buy a new car.” [ Orin Kerr on Twitter] “Judge Thapar Can Handle the Truth about the Fourth Amendment and Due Process” [ Ilya Shapiro on police-search case of Morgan v. Fairfield County as well as public university due process case of Doe v. Michigan] “Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power” [Gene Healy, Cato white paper and video feature ] Michael Stokes Paulsen series at Law and Liberty on impeachment and originalism [ introduction , developing a principled constitutional basis for use of the power, digression on Aaron Burr , special considerations of impeaching judges and presidents ; on original meaning of “high crimes and misdemeanors” in context of English history and Framers’ debates ] “Nonviolent Felons Shouldn’t Lose Their Second Amendment Rights” [ Ilya Shapiro and Matthew Larosiere on Cato amicus in S

My second and concluding round is now posted in this month’s Cato Unbound symposium on Child Protective Services and its power to seize children from homes. Excerpt: As I mentioned in my earlier comment, there are agencies willing, as policy, to snatch children from parents over marijuana use in the home, over letting Junior sit in the back seat while Mom picks up the dry cleaning, over playing alone in the park at age 8, and over a host of other infractions within past or present normal range. Ten years from now, maybe the triggers will be cigarette smoking in kids’ presence, moderate drinking during pregnancy, or a snack-food-based diet. Being popped into the care of paid strangers through multiple and shifting placements may involve getting yanked into a different school system, losing touch with your old friends, and crying yourself to sleep each night from missing your real family – but never mind, agencies record a low rate of formal abuse findings in situations like yours. A

What are the implications of the Constitution’s Appointments Clause for the tenure of acting attorney general Matthew Whitaker? Thomas Berry, recently a legal associate at the Cato Institute and now at the Pacific Legal Foundation, takes up the question in the Yale Journal of Regulation . More: Michael Rappaport ; and earlier at Overlawyered on other Appointments Clause controversies. Tags: constitutional law , Department of Justice The Appointments Clause and the acting AG curated from Overlawyered