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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]

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Exceptionalism by Michael B Mukasey

When Enforcing the Constitution Means Rejecting Precedent: A Reply to Greg Weiner

Evan Bernick December 30, 2016
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Part bull, part man, and nourished by Athenian blood, the minotaur has been the stuff of nightmares for millennia. It is to be doubted, however, that anyone has put it to more terrifying use than the French political scientist Bertrand de Jouvenel , who deployed the minotaur as a symbol of a particularly menacing kind of government power—arbitrary power, unconstrained by principles of law and hostile to individual rights.

In a recent essay at Liberty & Law, Greg Weiner trots out Jouvenel’s minotaur to frighten readers about the supposed menace of “a jurisprudence of ‘wrong the day that it was decided’”—that is, a judicial approach whereby judges reconsider and reject decisions that never did reflect an accurate understanding of the law. This judicial approach has been recommended by both Randy Barnett and Mark Tushnet, albeit on the basis of fundamentally differing understandings of the Constitution and of judicial duty. Warns Weiner, “the judicial Minotaur does not differ from other variants of the all-consuming creature . . . having been forged for one hand to brandish, [judicial power] will ultimately be wielded by another.” [Read More]

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Constitution

Deciding Unclear Originalist Cases: Towards Good-Faith Constitutional Construction

Evan Bernick December 19, 2016
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Interpreting a centuries-old document and applying it to factual circumstances unknown and perhaps inconceivable to those who ratified it into law is not an easy task. As Professor Mike Rappaport recently observed, many of the provisions of our Constitution “are simply not clear, unless one has done . . . extensive historical research.” Further, even those who maintain—as originalists do—that (1) the meaning of the Constitution’s text was fixed when each provision was framed and ratified; and (2) judges must decide cases in accordance with that fixed meaning, must acknowledge that fallible, busy judges may be unable to arrive at a single determinate answer concerning the meaning of a particular clause or how that clause applies to a particular set of facts. What are judges to do in such cases? [Read More]