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Differing Levels of Scrutiny for Economic Regulations: “Anything Goes” Rational Basis v. Rational Basis “With Bite”

Jarrett Dieterle April 26, 2017
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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 analyzed the reasoning used by the South Carolina Supreme Court in reaching its decision. Part two will explore the differing levels of constitutional scrutiny that economic regulations have received during our nation’s history.

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The fight over how to treat economic liberty under the Constitution has been as lengthy as it has been acrimonious. Under current constitutional jurisprudence, certain types of recognized rights—so-called “fundamental rights”—receive more robust judicial protection (known as “strict scrutiny”) than other rights. In order for a government to infringe upon these “fundamental” rights, it must have a compelling interest and adopt the least intrusive means to advance that interest. This requires an inquiry into both the goals of the infringing law and the means the law adopts to achieve those goals. [Read More]

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Could Economic Liberty Litigation Free the Booze?

Jarrett Dieterle April 24, 2017
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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]

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Teleforum Preview: Regulatory Crimes: Clay v. U.S. Oral Argument by John J. Park, Jr.

Regulation by Litigation at the State Level

John J. Park, Jr. March 01, 2017
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Last week, Peggy Little and the Competitive Enterprise Institute published Pirates at the Parchment Gates, in which she explained how the practice of state attorneys general entering into contingency fee contracts runs roughshod over at least three constitutional principles. Those contracts got their start in the tobacco litigation of the 1990s. After that experience left a bad taste in the mouths of many, the practice moved toward the shadows although it never disappeared. Average wholesale price litigation and other such schemes kept the practice alive until it reappeared in the recent climate change inquisition.

Little notes that, when state attorneys general enter into contingent fee contracts with private counsel, they: (1) end run the appropriation process in a constitutionally impermissible way that cannot be sanctioned by state statutes; (2) it creates pots of money that have not been legislatively authorized and are not subject to legislative control and accountability; and (3) the allow private firms to play a role in governmental investigations and prosecutions in violation of due process. Moreover, the contracts represent bad policy.

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State Court Docket Watch News Clips: 10/5/2015

Compliance Nightmare Looms for Baltimore Police Department

James Scanlan February 08, 2017
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In my January 4, 2017 post titled “Will Trump Have the First Numerate Administration?,” I discussed Department of Justice (DOJ) actions regarding police practices in Baltimore, Maryland in the context of the longstanding situation where federal civil rights law enforcement policies have been based on an understanding of statistics that is the opposite of reality. Specifically, with regard to matters including lending, school discipline, employment, criminal justice, and voting, many government policies have been premised on the belief that relaxing standards or otherwise reducing the frequency of adverse outcomes tends to reduce (a) relative (percentage) racial and other demographic differences in rates of experiencing those outcomes and (b) the proportions more susceptible groups make up of persons experiencing the outcomes. In fact, generally reducing any outcome tends to increase, not decrease, (a) and (b).

[Because of the length of this post, a PDF version is available here.] [Read More]