Legal news. Independent commentary. Federalist Society contributors and independent experts.


Could Economic Liberty Litigation Free the Booze?

Jarrett Dieterle April 24, 2017

Recently, the South Carolina Supreme Court issued a decision striking down a state law that limited the number of liquor retail outlets that a single owner could operate within state boundaries. The Court held that the law’s sole justification was economic protectionism, which made it an improper use of the state’s police powers to regulate alcohol. R Street Institute fellow Jarrett Dieterle takes an in-depth look at case in this three-part blog series.

The first part of the series will analyze the reasoning used by the South Carolina Supreme Court in reaching its decision. Parts two and three take a look at economic liberty litigation and its potential application to the world of booze.

* * * * *

The South Carolina Supreme Court recently struck down a state law limiting how many liquor retail outlets an individual or business could own within the Palmetto State.  According to the court, the only justification for the law was economic protectionism, an improper basis for economic regulation. The case may be a portent for oppressive and protectionist alcohol-regulation regimes across the country, and a sign that the recent revival in economic liberty jurisprudence could be coming to the world of booze. [Read More]


[ARTICLE]: Warning to Corporate Counsel: If State AGs Can Do This to ExxonMobil, How Safe Is Your Company?

Timothy Courtney April 24, 2017

Professor John Baker writes for the Georgetown Law Journal:

Nation-states have long fought wars for control of oil. In a novel development, American states are now fighting a war over control of oil—not with one state attempting to take oil from another, but with some states attempting to deny its use to other states. In 2015, New York’s Attorney General, Eric Schneiderman, began an investigation of ExxonMobil. Then, at a news conference held in New York City on March 29, 2016, Schneiderman said that he and a group of other attorneys general were looking at “creative legal theories” to bring about “the beginning of the end of our addiction to fossil fuel.” The group is comprised of seventeen attorneys general, representing fifteen states, the District of Columbia, and one territory. Opposing these attorneys general from mostly “blue states” are attorneys general from twenty-seven mostly “red states.”

Download fileDownload the complete article. 


5G Boasts $3.5 Trillion in Benefits, If the Government Doesn’t Get in the Way

Timothy Courtney April 18, 2017

David Teece writes for Morning Consult:

The central goal of the Trump administration is to create new jobs and bring home old jobs that have moved overseas. To have any hope of success, President Donald Trump will need to have an innovation policy that supports new technologies and reduces regulatory and legal barriers to growing these technologies.

There are many places to start. Research firm IHS Markit in January released a study of the coming economic impact of 5G, the next generation of mobile technologies. According to the report, 5G will be a significant step forward in the evolution of mobile technologies. This new technology, successfully implemented, will have great economic impact, with the “value chain” amounting to $3.5 trillion of output and 22 million new jobs, many of them here in the United States.

Read the full article


Supreme Court Building at dusk
Photo Credit: Shutterstock | Sean Pavone (link)

“Uncommonly Silly”—and Correctly Decided: The Right and Wrong of Griswold v. Connecticut and Why It Matters Today

Evan Bernick April 18, 2017

It is one of the Supreme Court’s most consequential and controversial decisions, and no one should have been surprised that now-Justice Neil Gorsuch was asked about it during his confirmation hearings. In the 1965 case of Griswold v. Connecticut, the Court held unconstitutional a Connecticut statute that prohibited the use of contraceptives, affirming a “right of privacy” that appears nowhere in the Constitution’s text. Justice William O. Douglas’s majority opinion, which speaks of “penumbras, formed by emanations” from non-textual “guarantees that help give [the guarantees in the Bill of Rights] life and substance” has been ridiculed ever since it was issued. Conservative critics of the Court have long invoked “penumbras” and “emanations” to heap scorn upon the notion that the Constitution protects any rights that are not expressly listed in the Constitution’s text. [Read More]


Accreditation Overreach Part 2: Forcing Affirmative Action on Colleges and Universities

Montana Legislature Passes Joint Resolution Declaring New ABA Rule 8.4(G) Unconstitutional

John J. Park, Jr. April 17, 2017

In October 2016, the Supreme Court of Montana proposed the adoption of ABA Rule of Professional Conduct 8.4(g). That new rule, which the ABA adopted at its 2016 annual meeting, would make it professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” New comment (g)(4) defines conduct related to the practice of law to include “representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.” [Read More]


Immigration and the Separation of Powers by Margaret D. Stock

President nominates Neomi Rao to head OIRA

Susan E. Dudley April 12, 2017

President Trump on Friday reinforced how serious he is about reforming the regulatory state by nominating administrative law professor and Federalist Society member Neomi Rao to head the Office of Information & Regulatory Affairs (OIRA). The next OIRA Administrator, or “Regulatory Czar,” will oversee President Trump’s order that agencies eliminate two regulations for every new one, among other things. This will require principled and pragmatic leadership, and Rao, a respected legal scholar with experience in all three branches of government, has the experience, intellect, and character needed for the job.

The Wall Street Journal has more of my analysis of the nomination.


Civil Forfeiture: Three Recent Cases (Part 1)

Justice Thomas' Long History of Criticizing Asset Forfeiture

Nick Sibilla April 10, 2017

Alongside Sen. Rand Paul, Supreme Court Justice Clarence Thomas has become one of the most high-profile critics of “civil forfeiture.” Under this appalling practice, police can confiscate property, even from those who haven’t been charged with a crime. In a concurrence released last month, Justice Thomas surprised many when he slammed the practice as “egregious” and questioned if it’s even constitutional. Although his concurrence was brief—just six pages—Justice Thomas identified many of the glaring defects in civil forfeiture. [Read More]


Fannie Mae building

The D.C. Circuit Decision On The “Net Worth Sweep” Was Not A Clean Sweep For The Government

Jason Levine March 29, 2017

Overlooked by much of the commentary on the D.C. Circuit’s recent decision on the Treasury Department’s “net worth sweep” are the contract claims remanded to the district court. Perry Capital LLC et al. v. Mnuchin et al., No. 14-5243, slip op. at 58-73 (D.C. Cir. Feb. 21, 2017). These claims warrant attention because they may result in sizable damages to investors in Fannie Mae and Freddie Mac securities, despite the dismissal of plaintiffs’ statutory claims for injunctive relief. [Read More]

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