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OpenMarket: Law and Constitution

  • A Blow to Privatization and Interstate Commerce

    April 30, 2007
    Once again, Justices Roberts and Alito have split over whether federal law preempts a state regulation. In United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, Chief Justice Roberts issued a decision in favor of a local government's taking over waste disposal from out-of-state businesses against a dormant Commerce Clause challenge, while Justice Alito wrote a dissent urging that it be struck down. The Constitution's dormant Commerce Clause prohibits regulations that discriminate against, or are unduly burdensome to, interstate commerce. In its absence, a business engaged in interstate commerce could be subjected to a suffocating patchwork of regulations imposed by dozens of distant states and hundreds of obscure municipal governments. In the United Haulers case,...
  • Regulated to Death

    April 19, 2007
    The New York Times has an interesting story on how federal privacy and disability-rights regulations may have helped pave the way for the Virginia Tech massacre by hamstringing school officials ("Laws Limit Options When A Student Is Mentally Ill"). Overlawyered links to discussions of how federal privacy laws like HIPAA and FERPA may have contributed to the tragedy. Professor David Bernstein has opened an interesting comment thread at the Volokh Conspiracy, in which lawyers (including me) cite instances in which disabilities-rights laws have been used to prevent...
  • Re: Guns in Virginia

    April 17, 2007
    Following up on Eli's post below, the blog Classically Liberal (linked to from Freedom News Daily) notes that not only is the Virginia Tech campus a gun-free zone, but that last year Virginia Tech administrators actively opposed a bill to allow college students and employees to carry on campus if they held "a valid concealed handgun permit."
    The legislation went to the House Committee on Militia, Police and Public Safety. And the vote was a quick one. The process was over almost before it began. A spokesman for Virginia Tech was thrilled at the results. He...
  • Guns in Virginia

    April 17, 2007
    I wrote about the tragedy at Virginia Tech in National Review Online. My piece, which I wrote really quickly, went up yesterday and, as more information comes out, some of what I wrote may be overtaken by events. Here's one interesting thing I found out while researching the piece that didn't make it in: although Virginia Tech's own campus code of conduct forbids any weapons (even fencing foils) on campus, Virginia itself has pretty liberal laws about concealed carry. According to, existing Virginia state law explicitly forbids carry on the Virginia Commonwealth University campus. I'm no expert on firearms laws or the legal status of public university judicial codes, but this might imply that, the college's own...
  • 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...


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