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OpenMarket: Law and Constitution

  • Kavanaugh's View of Judicial Power: Could It Be Tested at Supreme Court in Frank v. Gaos?

    August 30, 2018

    Brett Kavanaugh’s Supreme Court confirmation hearing is slated to begin Tuesday, September 4, at 9:30 a.m. before the Senate Judiciary Committee. It is safe to say that the hearing will be replete with the usual senatorial posturing and pandering. But if they actually get around to asking the nominee some substantive questions, among those that loom largest is how Kavanaugh conceives of the judicial power.

  • Judge Strikes Down Trump Executive Orders on Federal Employment

    August 28, 2018

    In a lengthy decision, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia effectively struck down a package of executive orders issued by President Trump that sought to ensure the efficient administration of public business. All that remains of the orders are broad policy statements that do not hold the force of law or provisions not challenged by labor unions. It is a near certainty that the Department of Justice will appeal this decision.

  • Reform Endangered Species Act to Contain Costs

    August 22, 2018

    The Endangered Species Act (ESA), passed in 1973, has had several decades to accumulate a record of costs and benefits. Despite bureaucrats and activists often pointing to it as a success story of environmental policymaking, its record is one of enormous costs and shockingly few benefits. The time is long since due for a formal reckoning of the ESA’s economic impact—and a plan for how Congress and the executive branch can reform it. You can find the beginning of such a plan in the new CEI study “‘Whatever the Cost’ of the Endangered Species Act, It’s Huge.  

  • Claim that 99% of Species Are Saved by ESA Not Supported by Data

    August 22, 2018

    An urgent fundraising appeal from The Nature Conservancy’s (TNC) “Global Policy Lead[er]” warns of congressional and administration efforts to change—and from the perspective of many—improve implementation of the Endangered Species Act (ESA). As a recent Competitive Enterprise Institute analysis demonstrates, the overall costs of the federal ESA program are easily in the tens and more likely hundreds of billions of dollars, begging the question, are we getting what we pay for? Campaigners for the current law like TNC skip over such information and make nice-sounding claims like: “the Endangered Species Act is one of our nation’s most effective environmental laws. 99% of the species it's protected have been saved from extinction!”

  • Hernando de Soto: How To Make the Third World Richer than the First

    August 17, 2018

    Our good friend Nick Gillespie interviews Peruvian economist and property rights activist Hernando de Soto about the future of prosperity in the developing world, and how legal reform can be the path to wealth for traditionally impoverished communities around the world.

  • Securities and Exchange Commission Drops Probe of ExxonMobil over Climate Risk

    August 11, 2018

    The Wall Street Journal reported late last Friday that Securities and Exchange Commission (SEC) regulators have “decided against trying to penalize the energy giant over its disclosures and how it accounted for oil and gas assets.” For years, climate campaigners have alleged that ExxonMobil defrauds shareholders by failing to take into account the financial risks of potential future climate policies that put a price on carbon.

  • Looking Back at the Success of 'Free Enterprise Fund'

    August 10, 2018

    In the last decade there has been a kind of separation of powers renaissance in the courts. Previously, separation-of-powers cases were rare and usually occurred when Congress did something very unusual (like give itself veto powers). But in the last eight years, almost every term of the U.S. Supreme Court has had at least one, and sometimes several, separation of powers cases.

  • Four Reasons the Endangered Species Act Desperately Needs Reform

    August 8, 2018

    The Department of Interior recently announced proposed revisions to enforcement of the Endangered Species Act (ESA). These revisions are designed to lessen the regulatory burdens of this ineffective and outdated piece of legislation. The Endangered Species Act was passed almost 45 years ago in 1973. It was inspired by the environmentalism of the 1960s-70s and the growing fear that certain animals were facing extinction due to human impact on the natural world. Environmentalists defend the ESA with the assertion that its regulations are saving species, but it just takes time.

  • Real Sin for Social Media Companies Not 'Censorship,' but Getting into Bed with Government

    August 7, 2018

    Social media outlets have been filled with commentary this week about the decisions by Apple, Facebook, YouTube, and Spotify to remove content created by talk show host and conspiracy theorist Alex Jones. This is a useful opportunity to clarify what actually counts as “censorship” and what responsibilities that media platforms have to the public.

  • Will Trump Auto Rule End California's Regulation of Fuel Economy?

    August 1, 2018

    The Trump administration is expected tomorrow to release its proposed revisions of the Obama administration’s Corporate Average Fuel Economy (CAFE) and motor vehicle greenhouse gas emission standards for model years 2021 and later. On Saturday, July 28, The New York Times posted a leaked draft that the National Highway Traffic Safety Administration (NHTSA) sent in May to the White House for review. The question of the hour is whether the final draft released tomorrow will retain or retreat from the May draft’s bold initiatives.


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