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Reason.com

The Good, the Bad, and the Ugly of Jarkesy v. SEC

Earlier this year, in Jarkesy v. SEC, a divided panel of the U.S. Court of Appeals for the Fifth Circuit held that Securities and Exchange Commission's enforcement proceedings are unconstitutional on three separate grounds. Judge Elrod wrote for the panel, joined by Judge Oldham. Judge Davis dissented. Last month, the SEC filed a petition for en banc review.
CONGRESS & COURTS
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Make the CDC an Infectious Disease Epidemic Fighter Again

The Centers for Disease Control and Prevention (CDC) did neither control nor prevention when confronted with the COVID-19 coronavirus outbreak over the past two-and-a-half years. The agency's many shortcomings began with its spectacularly botched rollout of tests for monitoring the spread of the coronavirus in early 2020. This was followed by the agency's failure for many months to recognize that the disease was chiefly spread via respiratory droplets. And let's not forget the agency's comprehensive ineptitude concerning the swift evaluation of the effectiveness of its proposed mitigation strategies such as masking, social distancing, and quarantining. In addition, the agency was dilatory in releasing relevant data concerning boosters, hospitalization trends, and wastewater detection of the virus.
PUBLIC HEALTH
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The Pandemic Home-Building Boom Is Over

New U.S. home construction is plunging after a brief pandemic boom, showing the strain of continued supply chain woes mixed with persistently high inflation. Data released Tuesday by the U.S. Census Bureau and U.S. Department of Housing and Urban Development show that 1,446,000 new homes started construction in July, a 9.6 percent fall from June and an 8 percent fall from July last year.
REAL ESTATE

"Leung, Like the Villainous Deacon in the Movie Night of the Hunter, Was Back!"

From Chief Judge F. Dennis Saylor IV in McLeod v. Fessenden School (D. Mass.):. This case concerns alleged acts of sexual abuse and molestation of a student by her teacher. According to the complaint, some of the abuse occurred during a summer program at The Fessenden School…. The complaint, exclusive of exhibits, is 152 pages long; it names 49 defendants and purports to assert 65 counts. Portions of it read more like a tabloid story than a legal pleading, and large sections of it are obviously irrelevant and improper. Defendants have moved to strike various portions of the complaint under Fed. R. Civ. P. 12(f)….
PUBLIC SAFETY

San Francisco Spent Over $20,000 on a Trash Can

This summer, a collection of custom and off-the-shelf trash cans hit the streets of San Francisco as the city prepares to replace its stock of over 3,000 public bins. The San Francisco Department of Public Works says it's time, since the current bins "have become easy targets of scavengers"—but the prototypes have come under fire for their exorbitant costs.
SAN FRANCISCO, CA

Third Circuit Rejects Oil Company Efforts to Remove Climate Claims to Federal Court

Today the U.S. Court of Appeals for the Third Circuit decided Hoboken v. Chevron, rejecting the oil company defendants' efforts to remove state-law-based climate change claims to federal court. The opinion by Judge Stephanos Bibas is short and to the point, and makes quick work of the oil company efforts to derail climate change-based tort claims filed in state court.
CONGRESS & COURTS

Religious Speech on or with Government Property

It took me a while to wrap my head around all the details in this case, but I finally did that while editing it down for the 2022 Supplement to my First Amendment and Related Statutes casebook. Here's my summary of the legal background, followed by excerpts from the relevant opinions (which are still long, unfortunately):
RELIGION

Sunstein Challenges Originalists on Bolling v. Sharpe

In a lengthy guest post at Ius & Iustitium (aka the "common good constitutionalism" blog), Harvard law professor Cass Sunstein argues that Bolling v. Sharpe, in which the Supreme Court held that racial segregation of public schools in the District of Columbia violated the Due Process clause of the Fifth Amendment, cannot be reconciled with originalism, particularly not as embraced in the Supreme Court's recent Dobbs decision.
CONGRESS & COURTS

Federal Circuit Bulk Unsealing Plans

An interesting order today, from the Federal Circuit:. The United States Court of Appeals for the Federal Circuit intends to unseal certain paper case records in accordance with Federal Circuit Rule 25.1(a)(1) in order to accomplish accession to the National Archives and Records Administration. Parties, counsel, or other impacted individuals with an interest in keeping sealed records in any case identified in the court's order must show cause no later than 60 days from the date of the order why those records must remain sealed. No response is needed unless parties or counsel intent to contest the unsealing. Please refer to the order for further details, including how to submit a response.
CONGRESS & COURTS

Oklahoma Governor Orders Stay of Execution for Richard Glossip

Oklahoma's governor has ordered a two-month stay of execution for Richard Glossip as the Oklahoma Court of Criminal Appeals considers whether to review new evidence that might prove his innocence. Glossip was scheduled to be executed on Sept. 22. On Tuesday, Gov. Kevin Stitt released an executive order allowing a...
OKLAHOMA STATE

Upcoming Speaking Engagements

Below is a list of my upcoming speaking engagements for the Fall 2022 semester. Unless otherwise noted, all events are free and open to the public - and in person. Unless otherwise noted, the event times are those in the time zone where the event is being held. I will...
EDUCATION

The Truth About Globalization

There was once a bipartisan agreement that free trade was good for both America and the world. After the financial crisis of 2008, Occupy Wall Street, the election of Donald Trump, and the resurgence of the progressive wing of the Democratic Party, that consensus fractured. Free trade and globalization have...
ECONOMY

The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part III: Misconstruing the State Interest

Here I will consider how the MFN theory was expanded to its present bloated proportions. Recently members of the Court, and sometimes a majority, have developed variants of MFN that are far more far-reaching and skeptical than the modest heightened scrutiny suggested by Lukumi. The key innovation, pioneered by Justice...
CONGRESS & COURTS