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OpenMarket: Law and Constitution

  • Move Slowly and Establish Rules: Facebook's Call for Regulation

    April 2, 2019
    Facebook founder Mark Zuckerberg’s motto used to be “Move fast and break things.” Now that his company is under increased political scrutiny—and facing calls for breakup from both right and left—he has changed his tune to “move slowly and establish rules.”
  • Supreme Court Likely to Limit Administrative State's Ability to Interpret Rules

    April 1, 2019
    Last week the Supreme Court heard a case on limiting the powers of the administrative state that could be one of the most important this term. The Trump administration has actually agreed that the executive branch’s ability to interpret its own regulations should be limited (it is remarkable that the executive branch is advocating limiting its own power), although it doesn’t contend that it should be entirely overturned.
  • Regulation and Neglected Costs of Authoritarianism and Over-Criminalization

    March 19, 2019
    Corrupt government and authoritarianism have been the historical rule rather than the exception. The U.S. Constitution’s elevation of individual rights and restraints on governmental power in particular represented the peak of the exception.
  • Agencies Failing to Follow Law on Key Financial Regulation

    March 12, 2019
    The Dodd-Frank Act of 2010 is one of the worst pieces of legislation to have become law in recent history. It created the Consumer Financial Protection Bureau as an independent government unto itself, unaccountable to the president, Congress or the American people. Another provision, the Durbin amendment, was meant to save consumers money, but ended up costing those with a checking account an estimated $8 billion in additional fees.
  • States Challenge Federal Internet Gambling Ban

    March 11, 2019
    This January, the Department of Justice (DOJ) issued an opinion that threatens legal online gambling in the U.S. The tenuous rationale on which the opinion is based has raised some eyebrows, but the most concerning aspect is that the DOJ revisited the Internet betting issue at the behest and in service of a single casino owner, one who just so happens to be a major donor to the president.
  • Virginia Legislature Restricts Privately-Funded State Legal Staff

    February 27, 2019
    As revealed in detail in “Law Enforcement for Rent: How Special Interests Fund Climate Policy through State Attorneys General,” former New York City mayor Michael Bloomberg established a “State Impact Center” at New York University Law School with the goal of privately financing state attorneys general to investigate and litigate on issues surrounding climate change.
  • Confusing Poll Clouds Public Perception of Trump Emergency Declaration

    February 21, 2019
    President Trump’s national emergency declaration is constitutional, as I explained in a recent op-ed in the Washington Examiner. That’s an important fact, because we trust in our political leaders to obey their oath of office in defending the Constitution. So it might seem troubling if most Americans expect the president’s emergency declaration will be struck down in court, as today’s headline in The Hill proclaimed.
  • Kids Climate Litigants Petition Court to Stop Fossil Fuel Development

    February 11, 2019
    Kelsey Juliana and her fellow litigants are the youngsters who, since 2015, have been suing the federal government to “prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide] so as to stabilize the climate system.” On February 7th, they petitioned the Ninth Circuit Court of Appeals  to halt fossil fuel development on U.S. soil and territorial waters.
  • VIDEO: Operation Choke Point Sets Dangerous Precedent

    February 7, 2019
    Our friends at the Federalist Society have an interesting new video out on legal businesses being targeted for government harassment because their products have become politically unpopular. These tactics were notoriously employed by the Obama-era “Operation Choke Point,” but could be deployed in the future against any industry that attracts the ire of federal bureaucrats. 
  • Ninth Circuit Strikes Down Soda Labeling Ban for Wrong Reasons

    February 1, 2019
    This week the federal Ninth Circuit Court of Appeals held unconstitutional the size requirement in San Francisco’s soda warning labeling regulation. However, there are broader problems with the law that the Ninth Circuit failed to identify.

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