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OpenMarket: Law and Constitution

  • Nuisance Lawsuits Shielded by Democratic Leaders

    July 20, 2007
    Protection against nuisance lawsuits for private citizens who report suspicions of terrorist activity was removed by Congressional Democratic leaders from homeland security legislation.  Both houses of Congress had voted for similar provisions containing protection against nuisance lawsuits, but Democratic leaders removed the protections during conference committee deliberations. The Democratic leaders apparently believe that private citizens should be able to be sued based on bare allegations by terrorist suspects that they have engaged in racial profiling.  Defeating even a meritless discrimination lawsuit is very expensive.  For example, it costs an innocent defendant about $75,000 in legal bills, on average, to get a meritless employment discrimination lawsuit dismissed prior to...
  • Re: Historical Perspective on the Second Amendment

    July 20, 2007
    Brad, While I find your observation that "that the crime rate would go down if every single household were given a handgun" to be correct, I think you miss an important security aspect of the right to own a firearm when you posit:
    Imagine how terrified potential robbers would be if they knew, without a shadow of a doubt, that they were entering a gun-owning home. If that's not a deterrent, I don't know what is.
    In fact, criminals do not need to know that every household is armed, but only that some could be, without their knowing which. In that situation, breaking and entering then becomes a game of Russian roulette for criminals -- and that would certainly raise their blood pressure.
  • Racially Labeling Your Child

    July 19, 2007
    My family is puzzling over what racial label to pin on our children. Because of their different ethnic backgrounds, my daughter and my nephew might not be able to get into the same colleges. Racial classifications are truly bizarre. Under affirmative action, my partly-Spanish daughter, Sarah Amy Bader, would qualify as a "Hispanic" under some government definitions, but not others, since she has ancestors from Spain, not Latin America, and her mother, while born in France, speaks Spanish and cooks Spanish recipes. As law professor Eugene Volokh notes, some regulations define Hispanics as only people from Latin America, while others include people from Spain. (Brazilian and Portuguese people are typically excluded from the definition of Hispanic).
  • Washington Appeals Decision Striking Down Gun Ban

    July 17, 2007
    Washington, D.C. bans handguns, even when used solely for self-defense. Earlier this year, its gun ban was struck down under the Second Amendment by a federal appeals court --- the D.C. Circuit Court of Appeals -- in Parker v. District of Columbia. Washington is now asking the Supreme Court to review that ruling. Ironically, the law remains in force even after being declared unconstitutional because Washington, D.C., has two parallel court systems that don't hear appeals from each other. The federal courts have declared the ban unconstitutional (in the Parker case), but they...
  • Gigantic Class Action Lawsuit at Death's Door

    July 17, 2007
    Earlier, I wrote about the gigantic class action lawsuit in Schwab v. Philip Morris, in which the tobacco companies are being sued for selling "light" cigarettes. That suit includes 30 million smokers as members of its class of plaintiffs. I wrote about how it could be used to funnel billions of dollars to left-wing groups (rather than those who smoked light cigarettes) under a radical concept known as "fluid recovery." I also explained why it was an abuse of discretion for the trial judge, Jack Weinstein, to certify the case as a class action. Now, Anthony Sebok writes that an appeals court will overturn Judge Weinstein's decision in the case, whose name has changed to McLaughlin v. American Tobacco. Although Sebok is...
  • One Step Toward a Tobacco Monopoly

    July 17, 2007
    The New York Times has a story today on the FDA regulation bill, which would place the tobacco industry under FDA regulation. The bill has been amended to permit only two additives to cigarettes that are currently used by the dominant cigarette company, Philip Morris -- specifically, menthol and cloves -- while banning other natural and artificial flavors that other tobacco companies add to their cigarettes as a way of offering a competing product. (Small tobacco companies call the bill the "Philip Morris monopoly bill," since the regulatory costs of being subject to the FDA's jurisdiction would drive many small companies out of business). The bill also would make it harder to offer smokers reduced-risk tobacco products that are less...
  • FDA Regulation of Tobacco Opposed

    July 16, 2007
    Senator Richard Burr of North Carolina is opposing a bill to place the tobacco industry under the jurisdiction of the FDA. He cites the fact that the bill would make it harder to sell reduced-risk tobacco products. The harm caused by cigarettes comes largely from the smoke and only in small part from the nicotine. Smokeless tobacco provides the same amount of nicotine that tobacco users crave, without the harmful smoke (although smokeless tobacco does pose some increased risk of oral cancer). The FDA regulation bill would expand regulation of smokeless tobacco and also restrict the sale of reduced-risk tobacco products. The bill's sponsors call it the "Family Smoking Prevention and Tobacco Control Act." But small tobacco companies call it the "Philip Morris monopoly bill," arguing that it would further entrench the...
  • More Controversy About the N-Word

    July 13, 2007
    The Montgomery County Schools are eliminating a lesson plan designed to prepare students to read Harper Lee's classic To Kill A Mockingbird, saying that it offends parents by using a racial slur -- the N-word -- in order to prepare students to read the book, which contains the word. The elimination reflects the growing national movement to ban the N-word. The Sixth Circuit Court of Appeals held that use of the N-word by an instructor was speech protected by the First Amendment in Hardy v. Jefferson Community College (2001). But that hasn't stopped parents from suing to ban books that use the N-word in cases such as ...
  • Attorneys General: Corruption By Contingency Fee

    July 13, 2007
    Adam Liptak of The New York Times recently wrote about the increasing practice by state attorneys general of hiring trial lawyers to bring lawsuits on behalf of the state in exchange for a big share of whatever is recovered in such lawsuits. As he noted, giving trial lawyers a share of the loot raises serious due process and separation-of-powers issues, and has been deemed illegal by some state courts. It also results in corruption, noted former Alabama attorney general (and now federal judge) Bill Pryor, in a speech quoted by Liptak. I earlier wrote about how this practice promotes corruption, violates the law, and makes the political cronies of state attorneys general fabulously wealthy, in the Issue Analysis, "The Nation's Top...
  • Hate Crimes Bill is Back

    July 13, 2007
    Earlier, I wrote about how the federal hate crimes bill contains provisions that would undermine protections against double-jeopardy and constitutional federalism safeguards (see here, here, here, here, and here). The hate crimes bill passed the House, but the President's advisors recommended he veto it on federalism grounds. The bill's supporters can't muster the two-thirds vote needed to override a presidential veto, so it looked like the bill might...


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