Editor's Note :

close editor's note Editor's Note :

Our coverage of Judge Brett Kavanaugh’s nomination to the Supreme Court is available at this link.

Friday round-up

By on Aug 10, 2018 at 7:02 am

Robert Barnes reports for The Washington Post that “[a] Senate committee released a sliver of the voluminous White House record of Supreme Court nominee Brett M. Kavanaugh on Thursday, amid a rancorous partisan debate over how the documents are being released to the public.” For The New York Times, Charlie Savage and Michael Shear report that an email included among the documents shows that “Kavanaugh volunteered to prepare a senior Bush administration official to testify about the government’s monitoring of conversations between certain terrorism suspects and their lawyers after the Sept. 11, 2001, attacks.” According to Eliana Johnson at Politico, the email “is likely to reignite a debate over [Kavanaugh’s] involvement in making the legal case for the Bush administration’s treatment of terrorist suspects — and whether he misled Congress about it.”

Continue reading »

Posted in Round-up
 
Share:

Petitions of the week

By on Aug 9, 2018 at 1:42 pm

This week we highlight cert petitions pending before the Supreme Court that address retroactive “public nuisance” liability and the due process clause, the application of a state anti-SLAPP provision in federal court, and the powers granted to states by the 21st Amendment.

The petitions of the week are:

18-84

Issues: (1) Whether imposing massive and retroactive “public nuisance” liability without requiring proof that the defendant’s nearly century-old conduct caused any individual plaintiff any injury violates the due process clause; and (2) whether retroactively imposing massive liability based on a defendant’s nearly century-old promotion of its then-lawful products without requiring proof of reliance thereon or injury therefrom violates the First Amendment.

18-86

Issues: (1) Whether, in conflict with decisions of the Supreme Court and the U.S. Court of Appeals for the 3rd Circuit, the First Amendment permits California to impose tort liability for truthfully promoting a lawful product that it finds to be hazardous in some uses; and (2) whether the due process clause allows a state to impose retroactive and grossly disproportionate public nuisance liability to inspect and abate millions of residences based on decades-old promotions without evidence that consumers relied on those promotions or that petitioner’s lead paint is in any residence.

18-89

Issues: (1) Whether a state anti-SLAPP provision requiring an award of attorney’s fees and costs to a prevailing defendant applies in federal court as the U.S. Courts of Appeals for the 1st, 2nd, 5th and 9th Circuits have concluded, in conflict with the U.S. Courts of Appeals for the 10th and District of Columbia Circuits; and (2) whether a state anti-SLAPP provision requiring expedited disposition of dismissal motions applies in federal court as the U.S. Courts of Appeals for the 1st and 5th Circuits have held, in conflict with the U.S. Courts of Appeals for the 10th and District of Columbia Circuits.

18-96

Issue: Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entitles that have resided in-state for a specified time.

 
Share:

Thursday round-up

By on Aug 9, 2018 at 7:34 am

Senate Democrats yesterday opened a new front in their effort to obtain records from Supreme Court nominee Brett Kavanaugh’s tenure as staff secretary to President George W. Bush. At The Hill, Jordain Carney reports that the Democratic members of the Judiciary Committee “filed Freedom of Information Act (FOIA) requests on Wednesday to try to force the Trump administration to hand over documents from Supreme Court nominee Brett Kavanaugh’s time working in the White House.” Additional coverage comes from Igor Bobic at Huffpost, who reports that “Democrats are particularly interested in whether [Kavanaugh] authored or edited any documents relating to the Bush administration’s controversial enhanced interrogation and warrantless wiretapping programs.” At The Hill, John Bowden reports that “Sen. Dianne Feinstein (Calif.), the top Democrat on the Senate Judiciary Committee, said Wednesday that she is ‘alarmed’ that Democrats have been denied requested documents from the National Archives on Supreme Court nominee Brett Kavanaugh.”

Continue reading »

Posted in Round-up
 
Share:

The current Supreme Court is friendly toward big business. How friendly? If the court’s trajectory continues, perhaps as friendly as any court dating back to the Lochner era, when laissez-faire policies permeated the court’s rulings. Prominent scholars, most notably Lee Epstein, William Landes and Richard Posner, have found empirical support for the proposition that the current court is more pro-business than previous iterations. (That study was recently updated through the 2015 term.) This post uses data from the 2015 through 2017 terms to add to this discussion. In particular it seeks to locate the trajectory of the court with the possible addition of Judge Brett Kavanaugh for the October 2018 term. Although the court’s right and left sides found themselves on opposite ends of business rulings during the October 2017 term, we might expect an even stronger pro-business court next term with the addition of another likely predictably pro-business justice in Kavanaugh.

Continue reading »

Judge Brett Kavanaugh wrote two opinions in PHH Corp. v. Consumer Financial Protection Bureau: a panel opinion declaring an aspect of the bureau to be unconstitutional and an opinion dissenting from the en banc U.S. Court of Appeals for the District of Columbia Circuit’s decision overruling his panel opinion. In both opinions, Kavanaugh expressed serious skepticism of the regulatory state while celebrating a view of the Constitution that vests in the president an extensive degree of unilateral authority over the executive branch’s enforcement of federal laws. Those views have been lauded by conservative commenters who celebrate Kavanaugh’s “[t]aming” of “the administrative state” — and by the White House, which has praised his record of “protect[ing] American businesses from illegal job-killing regulation.” Commenters on the left see in Kavanaugh’s PHH opinions a hostility to the CFPB’s mission more than to its structure, detecting an anti-consumer bias and general hostility to financial regulation.

In 2010, in response to the financial crisis of 2008, Congress enacted the Dodd-Frank Wall Street Reform Act and Consumer Protection Act. Among other things, the Dodd-Frank Act created a new administrative agency: the Consumer Financial Protection Bureau. Congress charged the CFPB with improving transparency and accountability in the market for consumer financial products, including enforcing a broad array of consumer-protection laws. Because the new agency was created to respond to a financial crisis and would operate in what Congress viewed as a fast-changing world of consumer finance, Congress designed it to become operational promptly and to act efficiently by providing for a single director to lead the CFPB, rather than a multi-member body. And, in order to give the agency some degree of independence and to promote stability and confidence in the country’s financial system, Congress provided that the director will serve a five-year term and can be removed by the president only for cause (i.e., for inefficiency, neglect of duty or malfeasance in office). Independent agencies are nothing new — the Federal Communications Commission, the Securities and Exchange Commission, the Federal Trade Commission, the National Labor Relations Board and the Federal Energy Regulatory Commission all operate independently in the sense that the heads of those agencies are removable only for cause. But each of those agencies is headed by a multi-member body, with the idea that the members of the leadership body will serve as a check on each other.

Continue reading »

Wednesday round-up

By on Aug 8, 2018 at 7:05 am

The nomination of Judge Brett Kavanaugh to the Supreme Court is keeping senators occupied even during their truncated August recess. At The Hill, Jordain Carney reports that “Sen. Dianne Feinstein (D-Calif.) is doubling down on her demand for the National Archives to hand over documents tied to … Kavanaugh’s tenure in the George W. Bush White House.” In an op-ed for The Wall Street Journal, Senate Judiciary Committee Chairman Chuck Grassley maintains that the documents from Kavanaugh’s tenure as White House staff secretary, requested by Senate Democrats, “are both the least relevant documents to the nomination and the most sensitive to the executive branch, two considerations that have guided previous review processes.”

Continue reading »

Posted in Round-up
 
Share:

Timothy Zick is the Mills E. Godwin, Jr., Professor of Law at William & Mary Law School.

As Jonathan Adler recently observed, Justice Anthony Kennedy’s “expansive conception of the First Amendment’s protection of freedom of speech is among his most important judicial legacies, marking his jurisprudence from his first days on the Court to his last.” Although it is not clear whether Judge Brett Kavanaugh would compile a similar record on the Supreme Court, we can make a few tentative predictions based on his record in the U.S. Court of Appeals for the District of Columbia Circuit. (Of course, all of the usual caveats associated with predicting the behavior of lower court judges once elevated to the Supreme Court apply.) This post reviews cases in which Kavanaugh either joined or authored opinions concerning freedom of speech and, to a lesser extent, other First Amendment rights (specifically, press and petition). It excludes decisions and opinions in the area of campaign finance, which were discussed in a prior post.

Kavanaugh’s record in First Amendment cases demonstrates a precedent-based or “common law” methodology, one that also relies on the lessons of history regarding free speech, press and petition rights. In substance, his record suggests that Kavanaugh would not expand the speech rights of government employees and might interpret the government speech principle rather broadly. He has also concluded that noncitizens abroad do not enjoy First Amendment rights – an issue the Supreme Court has not directly decided. However, in many contexts, Kavanaugh would likely be a consistent supporter of First Amendment rights. He has emphasized the importance, to democratic self-governance and the search for truth, of robust free speech, press and petition rights. He has adopted an expansive interpretation of editorial and speaker autonomy rights, is generally skeptical of measures that compel speech and association, and views government power to regulate private speech as sharply circumscribed. Looking forward, Kavanaugh’s appointment could have a significant impact in regulatory areas such as telecommunications and data privacy. Notably in this regard, his opinions suggest strong support for the speech rights of corporations, including digital-content providers.

Continue reading »

Tuesday round-up

By on Aug 7, 2018 at 6:54 am

For the Associated Press, Lisa Mascaro reports that “[l]ate last week, Democrats lost ground in their fight to unearth some 1 million documents related to [Supreme Court nominee Brett] Kavanaugh’s time as staff secretary at the Bush White House, a three-year stint on his resume that Republicans say is irrelevant to his qualifications for the court.” Additional coverage comes from Jimmy Hoover and Michael Macagnone at Law360 (subscription required), who report that the Democrats’ chances of accessing the documents “plummeted after the National Archives confirmed that such requests could only come from Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa.”

At First Mondays (podcast), Dan Epps and Ian Samuel “round up the latest Kavanaugh news, including speculation on the Bush documents and a debate over whether Democrats should support his confirmation when they disapprove on the merits.” In an op-ed for The Hill, Ken Blackwell maintains that Kavanaugh’s nomination is “great news for Americans concerned about protecting religious freedom and making sure administrative agencies stay within the realm of their legal authority.” In an op-ed for the Los Angeles Times, Joshua Gelzer cautions those worried about Kavanaugh’s views on the “administrative state” against confusing “the demise of a doctrine of statutory interpretation with the demise of the regulatory and administrative agencies themselves.”

Continue reading »

Posted in Round-up
 
Share:

We round up the latest news on Judge Brett Kavanaugh, including speculation on documents from his time in President George W. Bush’s administration and a debate over whether Democrats should support his confirmation when they disapprove on the merits.

Monday round-up

By on Aug 6, 2018 at 7:29 am

At BuzzFeed News, Chris Geidner and Jason Leopold report that “[i]n the midst of a growing fight over what documents senators will see from Supreme Court nominee Brett Kavanaugh’s five years in the George W. Bush White House, a narrow glance into three months of Kavanaugh’s communications with just one office at the Justice Department shows that he worked on key questions involving the president’s power to keep documents from Congress and the public, as well as important legislation in the aftermath of the Sept. 11 attacks.” For The Washington Post, Seung Min Kim reports that “Senate Democrats will begin meeting with Supreme Court nominee Brett M. Kavanaugh to press him privately on releasing his papers, … after Democrats had boycotted these sit-downs for weeks amid a document dispute with Republicans.” At Jost on Justice, Kenneth Jost asserts that “the Republicans’ prime movers on judicial confirmations — Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley — are adopting tactics that flatly contradict their stances on President Obama’s last two Supreme Court nominations.”

Continue reading »

Posted in Round-up
 
Share:
More Posts: More Recent PostsOlder Posts
Term Snapshot
Awards