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OpenMarket: Law and Constitution

  • Redundant Regulation Preempted

    April 17, 2007
    In a 5-to-3 decision, the Supreme Court just ruled in Watters v. Wachovia Bank that state regulators can't impose certain regulations on national banks' operating subsidiaries. CEI filed an amicus brief on behalf of Wachovia Bank in its battle with Michigan state regulators explaining why federal preemption of state regulation is good for both consumers and banks. The brief was joined by seven prominent economists and legal scholars. State banking regulations drive up the cost of credit for borrowers and result in banks being subjected to a confusing hodgepodge of regulations imposed by many different states. They also result in banks being subject to redundant paperwork, red tape, and oversight by multiple state and federal regulators. More...
  • Free At Last

    April 16, 2007
    In case you were wondering why tax day isn't until tomorrow, allow me to introduce you to D.C. Emancipation Day. This recently minted holiday marks the day in 1862 when Abraham Lincoln signed the Compensated Emancipation Act which, according to my good friend Wikipedia (and the DC city website), freed approximately 3,100 men and women from slavery - nine months before the Emancipation Proclamation. ...
  • Rhode Island Lead Paint Verdict Ethically Tainted

    April 6, 2007
    In Rhode Island, a jury recently returned a verdict holding out-of-state paint manufacturers liable to the state for potentially billions of dollars, under the theory that sales of lead paint constituted a "public nuisance" even back when it was legal. The trial judge rejected challenges to this verdict, ruling that a paint manufacturer could be held liable even if its paint cannot be found in even a single building in Rhode Island. Instead, the paint manufacturers were held liable based on their national market share of lead paint sales. One of the complaints of the paint companies in that case is that the state's lawsuit was brought against them by trial lawyers hired to work on a contingency fee-basis by the state's attorney general, who hired campaign contributors to sue the paint companies. The...
  • Foreign Courts Target U.S. Business for Plunder

    April 5, 2007
    The Supreme Court of Canada has just given the green light for British Columbia to force American tobacco companies to pay for smokers' past health care costs, even if the companies didn't themselves sell cigarettes in British Columbia. The companies can now be held retroactively liable in a foreign court for sales of cigarettes by third parties that were lawful at the time they were made. British Columbia is seeking to force the tobacco companies to pay it billions of dollars. The Supreme Court of Canada earlier approved British Columbia's suit against Canadian cigarette companies in a decision that I criticized in the National Post. That decision declared that there is no right to a fair civil trial under Canadian law, despite...
  • The Kelo Five Go Green

    April 4, 2007
    Our very own Chris Horner is in Human Events today on this week's Massachusetts v. EPA SCOTUS decision on the regulation of carbon dioxide as a pollutant under the Clean Air Act:
    The plaintiffs argued not just unique and demonstrable harm from climate change, but from sea level rise directly attributable to EPA declining to regulate emissions of carbon dioxide (CO2) from new automobiles under the Clean Air Act. The EPA accurately claimed that no such authority is found in a plain reading of the act and -- citing the National Academies of Science -- that the science is quite uncertain. A 5-4 majority -- the “Kelo Five” -- concluded, however, that many factors other than statutory language and admissions of uncertainty are at play in such momentous times as these. They concluded -- without an...
  • Bandow on Unions' new Global Strategy

    March 30, 2007
    What's worse than trade protectionism and compulsory unionism? Trade protectionism and compulsory unionism that shred national sovereignty, as CEI adjunct fellow Doug Bandow writes in TCSDaily today. He notes that some Democrats in Congress seek "to empower a UN body, the International Labor Organization (ILO) -- which promulgates rules on everything from child labor to union organizing -- more than the U.S. government. This is what organized labor desires; American unions began taking labor controversies to the ILO years ago." There is a good reason they're doing this:
    In theory, international agencies can help promote individual liberty and economic deregulation. In practice, global institutions are easily captured by professional staffs with their own agendas. That has been evident throughout...
  • Freedom to Hide Behind Avatar

    March 16, 2007
    The recent proposed law in Connecticut to verify age of and other social-networking site users has brought up an old question. Is anonymous speech protected under the 1st Amendment? The courts have a history of supporting anonymous speech as an extension of our right to free speech. Social-networking sites are just a new form of technology that allow people to exercise this right. Almost a year ago the Supreme Court reaffirmed this position in MacIntyre v. Ohio Election Commission. This case was narrow, focusing on political speech, and said that anonymous political speech is permissible so long as it serves the interest of the state. While any good libertarian would be appalled by the “interest of the state” portion of this ruling, as all types of anonymous speech should be protected, the ruling still favored protecting anonymous speech. A 1960 case, Talley v....
  • Punitive Damages Can Be Limited

    February 8, 2007
    The Ninth Circuit Court of Appeals has just held in the Engquist case that a legislature can limit punitive damages payable to a plaintiff in a pending lawsuit, without violating the Takings Clause. It reasoned that punitive damages are contingent and discretionary, and not a generally applicable right like the right to compensatory damages for an injury. Thus, a legislature can limit them, or require that part of the punitive damages awarded in a case be paid into the state treasury rather than to the plaintiff. This ruling buttresses the constitutionality of tort reform laws that limit punitive damages, which a minority of state courts have declared unconstitutional. In the same case, the court held that although, in general, a citizen can sue under the Equal...
  • A Temporary Reprieve for D.C. Employers and Landlords

    January 9, 2007
    D.C. Mayor Anthony Williams rightly vetoed a bill that would have banned employers from taking applicants' criminal records into account in hiring, and forced landlords to rent to ex-cons, even in units near their own living quarters.  But it was one of his last acts as mayor, and the D.C. Council (which includes the incoming mayor) voted for the bill by a veto-proof 10-to-2 margin.  Moreover, the bill was sponsored by William's predecessor as mayor, Councilman Marion Barry, who himself has a criminal record. The Washington Post has editorialized against the bill, noting that "under the bill a home health-care agency would have to hire someone who had been freed 10 years ago after serving...
  • Taste and Trans fats

    December 30, 2006
    Nobel laureate Gary Becker has some thoughts on the New York City trans-fats ban (reflecting on comments by his co-blogger, Judge Richard Posner):
    "Posner also gives a kind of lower bound estimate of the benefits as $100 million, and also suggests a much lower cost to restaurants of becoming trans fat-free -- I take this as $30 million. With a small taste benefit from the use of trans fats -- the New England Medicine Journal article I cited earlier does admit positive effect of trans fats on 'palatability' -- the total cost of the ban would equal or exceed total benefits. For example, suppose 1 million persons on average eat 200 meals per year in NYC restaurants with trans fats. If they value the taste of trans fats in their foods only by 35 cents per meal, the taste cost to...


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